6,7

Question 1

legislation

Answer 1

• statute law (legislation) now constitutes that part of the law which most dominates our social and commercial lives
• legislation is the formal declaration of legal rules by parliament and people or bodies unauthorised by parliament
• while there are clear procedures to be followed to create statute, the task of applying it to a given situation and of determining just what it means, may at times be very complex - task for courts

Question 2

statute law

Answer 2

• made by parliament and any subordinate bodies to which parliament has delegated legislative power
• can last for ever or until it is changed
• can be made retrospective
• where statute law and common law conflict statue law will prevail to the extent of the conflict

Question 3

parliamentary sovereignty in aus

Answer 3

• federal system requires division of legislative power between the federal parliament and the state parliaments
• parliament cannot legislate to limit its future sovereignty (although it can bing itself as to the manner and form or procedure for passing legislation)
• in practise political considerations restrain the powers of parliament

Question 4

legislative process

Answer 4

• original idea for legislative change may come from:
  
  • government policy
  • government department
  • parliamentary committee
  • law reform body
  • criticism of legislation in judgement
  • pressure group

Question 5

drafting of a bill

Answer 5

original idea is translated by parliamentary law-drafters into the form of draft legislation called a bill

Question 6

parliamentary process

Answer 6

• bill goes through the following stages in each house:
  
  • first reading stage
  • second reading stage
  • committee stage
  • third reading stage

Question 7

disagreement

Answer 7

• if:
  
  • senate rejects a bill passed by HOR
  • bill is reintroduced into and passed by HOR after 3 months
  • senate again rejects the bill
• then under s 57 of the Constitution the GG may dissolve both house of parliament ( double dissolution) and call an election
• if the deadlock continues with new parliament GG can convene a joint sitting of both houses
• if bill receives a majority vote it’s presented to GG for assent

Question 8

royal assent

Answer 8

after being passed by both houses the bill is presented to GG (or governer) for royal assent, whereupon it becomes an act of parliament

Question 9

date of operation

Answer 9

• act will commence
  
  • from the date specifies in the Act or
  • a date to be fixed by proclamation or
  • if the act is silent as to it’s commencement:
    
    • from the date of royal assent (state acts)
      28 days after royal assent (federal acts)
  • parliament has the power to declare an act to be retrospective but this powers is used sparingly

Question 10

common law in australia

Answer 10

• Australia’s court system uses precedents in order to provide fairness and consistency
• precedents is set by courts and is binding for any courts lower
• for example, any precedent set by the High court is binding for all courts

Question 11

statute law in australia

Answer 11

- In order for a bill to be passed it must be passed by both the House of Representatives and the Senate and then passed by
the crown (royal ascent)
- in parliament the government explains why the law is necessary and why it would be good for Australia
- the opposition can argue why this is not the case

Question 12

law making reflects democracy

Answer 12

• process of making laws truly reflects out democratic principles
• in statute law, the individuals we elected to represent us, help make our laws
• in common law, any law that is set becomes precedent and then must be followed making it fair

Question 13

delegated/subordinate legislation

Answer 13

• function of the executive branch of government is to administer and enforce the laws enacted by Parliament
• however, the range and detail of legal regulation in modern society makes it impracticable for parliament to do that
• accordingly, a range of legislative power is delegated by the parliament to the Executive
• parliament passes an “Enabling Act” which gives the subordinate authority the power to make more detailed rules, regulations and by-laws within the powers of the Act

Question 14

delegated/subordinate legislation before example

Answer 14

• function of the executive branch of government is to administer and enforce the laws enacted by Parliament
• however, the range and detail of legal regulation in modern society makes it impracticable for parliament to do that
• accordingly, a range of legislative power is delegated by the parliament to the Executive
• parliament passes an “Enabling Act” which gives the subordinate authority the power to make more detailed rules, regulations and by-laws within the powers of the Act

Question 15

Examples of organisations given authority ti make detailed riles, regulationa and by-laws

Answer 15

• Local Councils,
• Shires,
• Municipalities.
• Statutory Authorities such as
  
  • Transperth,
  • Western Power,
  • Alinta Gas and
  • Water Corporation.
  • Executive Council (the GG/Governor and some government ministers)

Question 16

delegated/subordinate legislation after example

Answer 16

• any attempts of these bodies to pass rules and regulations which are outside the powers given to them by the Act would be ruled as being ultra vires (beyond power) and, therefore, not legal
• laws made by councils, shires and municipalities are called by-laws
• authority to make these by-laws is given to various bodies by the Local Government Act
• new by-laws are to be published in the Government Gazette
• official notice to the public of the new by-law
• all by-laws must be approved by the Governor (in the Executive Council) after being recommended by the Minister for Local government
• Statutory Authorities create regulations and rules
• regulations are general laws made by the minister in charge of the authority (through the departmental head)
• rule deals with the administrative procedures of the authority.

Question 17

current process

Answer 17

• regulation is drafted by a public servant and submitted to the Executive Council
• then signed by the Governor-General and notified in the Government Notices Gazette
• laid before each House of Parliament, but this is a passive process – if no objection is raised, the regulation is passed

Question 18

checks on delegated legislation

Answer 18

• Parliament is ultimately responsible for delegated legislation.
• Parliament controls delegated legislation by ensuring that it is published in the Government Gazette and by establishing committees to examine most of the rules and regulations made.
• Parliament may disallow legislation.
• The Joint Standing Committee on Delegated Legislation (WA Parliament) examines the legislation to ensure:
  
  • It is in accordance with the Empowering Act
  • It does not unduly trespass on rights, freedoms or liberties
  • It does not contain matters which are more properly dealt with by an Act of Parliament
• Apart from the parliamentary checks, the Parliamentary Commissioner for Administrative Investigations, better known as the Ombudsman, can investigate complaints made by citizens about the actions of a government authority.
• The Ombudsman can then make recommendations to that body.
• Should the body choose not to remedy the situation they will be reported to parliament and the minister concerned.
• Another check on delegated legislation is in the courts.
• Should a person feel that the authority has acted beyond its powers (ultra vires), the action can be challenged in the courts.
• The Act granting the power will be interpreted by the court and the action of the authority considered in lights of this interpretation.

Question 19

reforming the process

Answer 19

• The process can be improved through the use of:
  
  • sunset clauses which provide a fixed life for a law
  • regulatory impact statements: agencies must first list a proposed regulation’s costs, benefits and alternatives available to the public
  • mandatory consultation with affected businesses
  • more effective parliamentary scrutiny
  • better public access to laws.

Question 20

parliamentary committees

Answer 20

• Bills scrutinised by Parliamentary Committees at both Federal and State levels
• Refers to a small group of members of Parliament, usually drawn from all parties in one or both of the houses, which examines, reports on, and makes recommendations about a particular issue or bill
• Parliament establishes a committee of inquiry and outlines its specific purpose
• Committees take place at Parliament House, but also travel all over Australia to discuss issues with many different people.
• Committee advertises in newspapers and invites written submissions from the community, experts and interest groups regarding the issue
• Committee members read submissions, may invite selected people/groups to appear before the committee to provide further evidence or answer questions from committee members.
• Once committee hearings finishes, committee writes a report and presents to Parliament.
• Members of Parliament often use evidence from a committee report to propose/amend bills or make amendments to existing laws.

Question 21

membership to parliamentary committees

Answer 21

• Most Members of Parliament, except Ministers serve on committees—even the Speaker is a member of certain committees.
• Government ministers whose duty is to propose laws, are not allowed to sit on PC
• Committees vary in size and may have as few as 6 or as many as 34 members.
• Normally composed of Members from various parties or independent Members in proportion to the numerical strength of each group in the House (backbenchers and cross benchers). Thus government members are generally in a majority on each committee.
• In practice most committees are chaired by a government member and have an opposition member as deputy chair.
• The members of each committee are selected or elected within the political parties and their names are then put forward by the respective party whip.
• Independent Members may be nominated by the opposition whip or, in some cases, may nominate themselves to the Speaker.
• Committee work is an important part of the duties of a Member of Parliament and generally makes considerable demands on a Member’s time, both when Parliament is meeting and at other times.
• When the House is not sitting you would expect to find committees holding public hearings, meetings, inspections and other activities around Australia.

Question 22

types of parliamentary committees

Answer 22

standing
select
joint

Question 23

standing parliamentary committee

Answer 23

• ongoing, permanent committees
  
  • Often associated with public money and government expenditures
  • Also mirror the portfolio activities of government
  • Currently,
    
    • 15 Standing Committees in the House and
    • 16 Standing Committees in the Senate
• Example: On 27 March 2013, the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs has released its advisory report on the Native Title Amendment Bill 2012. The Committee has recommended that the bill be passed and says an inquiry into the present Native Title system should also be set up at the beginning of the next parliament.

Question 24

select parliamentary committee

Answer 24

• short term, temporary committees
• used to investigate a specific matter, often current controversial issues
• may be set up by minister or parliament
• ceases to exist when it had made its final report to the house
• Select committees extensively used by Senate
• EXAMPLE: Current Select Committee on Austism What is this committee looking into?

Question 25

joint parliamentary committee

Answer 25

- *Can be Standing or Select* - **when members from both houses of parliament are in the committee** - **Example**: On the 30 September 2010 the Australian Parliament agreed to set up a Joint Select Committee on Gambling Reform - One of the most important Joint Committee is the **Joint Standing Committee** on Foreign Affairs, Defence and Trade

Question 26

**ESTIMATES -** PARLIAMENTARY COMMITTEES

Answer 26

- Also known as **Senate estimates** - Usually meet three times a year. around May, November and following February - Allow senators to scrutinise how executive government is spending taxpayers' money - Senators focus on how government has spent this money and on the government's future spending plans - Hearings are called 'estimates' because they examine what the government estimates it will collect and spend in the financial year (1 July to 30 June) - Through estimates hearings, Parliament ensures that it knows, in detail, how the government plans to collect and spend money. On this basis, the Parliament may approve government spending across many areas. - Only witnesses who appear before an estimates committee are ministers. - Estimates committees consist of eight senators – four from the government, three from the opposition and one minor party or Independent senator, and senior public servants in government departments. - A government senator runs the meetings of each committee.

Question 27

how do senate estimates work

Answer 27

- In May, Treasurer explains spending plans in each minister's portfolio (area of responsibility) in the annual Budget speech to Parliament. - Following this, the estimates committees scrutinise the Budget statements which contain details of all the main income and spending for the financial year - After the committees have scrutinised the Budget statements, committee hearings begin. - Estimates hearings last for up to two weeks - Ministers and top-level officials from government departments and authorities must explain government spending and how government programs are run. - Only ministers who are senators are required to attend and answer questions. Senate ministers speak on behalf of ministers who work in the House of Representatives. - In this case, Senate ministers representing ministers from the House may rely on the departmental officials to know the details of the department's budget. - After May estimates hearings, each committee presents a report to the Senate on its findings, including any recommendations or issues of concern. - Extra estimates hearings later in the year and early in the following year allow senators to check and further question government spending and the actions of government departments or authorities.