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- Topic 5 – The Commonwealth Parliament
Topic 5 – The Commonwealth Parliament
- By Student at Law
- Published 23/05/2007
- LPAB 2006-07
- Unrated
5.1 Description
The federal movement
· There were a number of pressures that pushed Australians towards a federal system, a system which would graft new, national, political institutions onto the existing and separate colonial structures.
· Few ppl believed that a single, central govt was practicable because Australia was vast, her population was thinly distributed, and communication systems were not well developed.
· Australian constitution needed to be voted for - only 2nd constitution in the world to come into effect on a basis of a referendum of its ppl.
· In 1899 a secret Premiers Conference amended the constitution - all states voted yes, the next year delegates went to London to ask the Imperial Parliament to pass the constitution as an Act for Australia, British parliament passed the Act, Queen Victoria gave Royal Assent and it came to be in 1901.
· According to s 1 of the Commonwealth Constitution, the Parliament of the Commonwealth consists of the Queen, the senate and the House of Reps. The senate is to ‘be composed of senators for each State, directly chosen by the ppl of the state’; while the House of Reps is to ‘be composed of members directly chosen by the ppl of the Commonwealth’.
5.2 Structure
5.2.1 Queen and Governor-General
The Crown
· The powers of the Queen under the Commonwealth Constitution are exercised by the Governor- General for practical purposes.
· Described in s 2 of the constitution as ‘Her majesty’s representative in the Commonwealth’, capable of exercising those powers which the ‘Queen may be pleased to assign to him’ - many powers are expressly vested in the Governor-General by the Commonwealth Constitution:
- S 61: ‘the executive power of the Commonwealth … is exercisable by the Governor–General as the Queen’s representative’.
· Some functions which only the Queen might exercise include:
- The formal appointment of the Governor-General: s 2
- The ‘disallowance’ of legislation passed by the Commonwealth Parliament: s 59
- The withholding of Commonwealth bills or reserving them for assent: s58
- The giving of assent to legislation which must, under the Constitution, be ‘reserved for the Queen’s pleasure’: s 60
· s 74, refers to the only class of legislation which must be so reserved; any legislation which would limit appeals from the High Court of Australia to the Privy Council - though with the passage of the Privy Council (Appeals from the High Court) Act 1975 (Cth), no such appeals may be taken without a certificate of the High Court in which it has indicated that it will not issue such a certificate: Kirmani v Captain Cook Cruises Pty Ltd (1895); this constraint has ceased to have ant practical operation.
· Apart from those exceptions, the governor-general deals with most part routine functions of the Crown -Queen’s official secretary in 1975 indicated that the Queen would not intervene in the constitutional crisis immediately after 11 November 1975.
5.2.2 Senate
* s 7 and 24 of the Commonwealth Constitution (and several associated provisions) appear to assume that senators and members of the House represent the States or the people of the States.
* In 1922 the Parliament legislated to allow the Northern Territory one member of the House of Reps, a member with no right to vote in any of the House’s proceedings.
* That member was given a limited vote in 1936, and a similar representation was allowed to the ACT in 1948.
* The two Territory members voting rights were extended to full voting rights in 1966 (for ACT) and 1968 (for the NT).
* In 1973 the ACT was given a second member, also with full voting rights, and in 1974 legislation was passed through the double dissolution procedure (that is, despite the opposition of the senate) giving each Territory two senators with full voting rights.
* Validity of this legislation was upheld by the High Court in Western Australia v Commonwealth, the First Territorial Senators case, and in Queensland v Commonwealth, the Second Territorial Senators case.
First Territorial Senators case
* It found adequate constitutional support for the legislation in s122 of the Clth Constitution, which authorises the Cmlth Parliament to “allow the representation of [a] Territory in either House of Parliament to the extent and on the terms to which it thinks fit”.
* Mason J found, apart from s 122, ‘overwhelming force’ in the argument that s 7 and associated sections of the Constitution indicated ‘that the Senate is a States’
house and that a senator is necessarily a senator from a State’ - s 24 had similar force in argument indicating that the House of Reps was to consist only of members from the states - s 122 was clear and to read it down so as to preserve the character of the Senate as a States’ house would ‘deprive the s122 power of significant content. Notwithstanding the wide and general words by which it is conferred’.
* Mason J said, the solution to the apparent contradiction between s 122 and ss 7 and 24 was to see ss 7 and 24 as interim provisions, prescribing the composition of the two houses until the Parliament decided to allow representation to a Territory under s 122, a reading which would give authority to ‘the course of constitutional development’.
* Murphy J held that the “fundamental constitutional doctrine” of democracy demanded the result of the case: “ It is contrary to the democratic theme of the Constitution that Parliament should be not be able to allow representation by membership in either House to Territories at the time and on the terms which the Parliament considers appropriate”.
* On the other hand, the minority justices stressed the fundamental character of s 7 of the Cmlth Constitution, and its associated provisions - the senate was intended to be exclusively composed of senators from the states.
* Minority gave s 122 a restricted reading, and would have allowed the Clth Parliament to legislate only for the representation of the Territories in the Senate by non-voting representatives.
* Geoffrey Sawer stated, ‘the practical reality is that the senate is an instrument in the hands of the parties in the Parliament as a whole’.
* The decision in the First Territorial Senators case may have sanctioned no fundamental change in the nature of the Senate; though it did allow, at the elections of 13 December 1975, the size of the senate to grow from 60 to 64 senators; but of the four newly created places, two were won by the new government and two by the opposition.
* Under the single transferable vote system (proportional representation), a party would need to gain two-thirds of the votes cast, plus one vote, to win both Senate places in a Territory - the Senate (Representation of Territories) Act 1973.
* However, the decision might threaten the longer term integrity of the Senate - if the Cmlth Parliament has a complete discretion to add Territory representatives, it could provide more than the modest number of reps specified in current legislation.
* s 57 provides for the passage of legislation despite the opposition of the Senate, that section also provides a political safeguard, in the form of a dissolution of and a general election for both houses.
Second Territorial Senators case
· Territory representation in the Senate (and, as a corollary, in the House of Reps) must now be regarded as entrenched, following the High Court’s decision in Queensland v Commonwealth, the Second Territorial Senators case - majority of court refused to overrule the First Territorial Senators case.
5.2.3 – House of Representatives
· Disagreement between the two houses of the Commonwealth Parliament is designed into the systems for their election - senators are elected for terms of six years (s 7 and 13), members of the House of Reps for a maximum of three years (s 28). Half the members of the Senate are elected every three years (s 13), while elections for the House of Reps may be held at any interval that does not exceed three years from the House’s first meeting following the last election (s 28).
· The original states given equal representation in the Senate (thus devaluing the degree of representation afforded to voters in the large States) (s 7), but the members of the House of Reps returned from the States are “in proportion to the respective numbers of their people”(s 24).
· s 24 also states that each state cannot have fewer than 5 electorates, and therefore elected members, no matter how low its population may fall.
· In the Senate, the representation for the states is equal regardless of population - there are currently 147 members of the Lower House, a figure which has increased periodically owing to the fact that s 24 of the constitution requires that the number of state members be twice that of the Senate.
· The method of election for the house is by the preferential voting system.
· The political composition of the two houses is likely to reflect quite different electorates, with the state reflecting a distribution of political interests several years older than that reflected in the House and skewed towards the political values of the smaller States.
· Prospect of conflict has been heightened by the Parliament’s adoption of different electoral systems: the House is elected on the basis of single member electorates, while the senate is elected on the basis of state-wide proportional representation.
The federal movement
· There were a number of pressures that pushed Australians towards a federal system, a system which would graft new, national, political institutions onto the existing and separate colonial structures.
· Few ppl believed that a single, central govt was practicable because Australia was vast, her population was thinly distributed, and communication systems were not well developed.
· Australian constitution needed to be voted for - only 2nd constitution in the world to come into effect on a basis of a referendum of its ppl.
· In 1899 a secret Premiers Conference amended the constitution - all states voted yes, the next year delegates went to London to ask the Imperial Parliament to pass the constitution as an Act for Australia, British parliament passed the Act, Queen Victoria gave Royal Assent and it came to be in 1901.
· According to s 1 of the Commonwealth Constitution, the Parliament of the Commonwealth consists of the Queen, the senate and the House of Reps. The senate is to ‘be composed of senators for each State, directly chosen by the ppl of the state’; while the House of Reps is to ‘be composed of members directly chosen by the ppl of the Commonwealth’.
5.2 Structure
5.2.1 Queen and Governor-General
The Crown
· The powers of the Queen under the Commonwealth Constitution are exercised by the Governor- General for practical purposes.
· Described in s 2 of the constitution as ‘Her majesty’s representative in the Commonwealth’, capable of exercising those powers which the ‘Queen may be pleased to assign to him’ - many powers are expressly vested in the Governor-General by the Commonwealth Constitution:
- S 61: ‘the executive power of the Commonwealth … is exercisable by the Governor–General as the Queen’s representative’.
· Some functions which only the Queen might exercise include:
- The formal appointment of the Governor-General: s 2
- The ‘disallowance’ of legislation passed by the Commonwealth Parliament: s 59
- The withholding of Commonwealth bills or reserving them for assent: s58
- The giving of assent to legislation which must, under the Constitution, be ‘reserved for the Queen’s pleasure’: s 60
· s 74, refers to the only class of legislation which must be so reserved; any legislation which would limit appeals from the High Court of Australia to the Privy Council - though with the passage of the Privy Council (Appeals from the High Court) Act 1975 (Cth), no such appeals may be taken without a certificate of the High Court in which it has indicated that it will not issue such a certificate: Kirmani v Captain Cook Cruises Pty Ltd (1895); this constraint has ceased to have ant practical operation.
· Apart from those exceptions, the governor-general deals with most part routine functions of the Crown -Queen’s official secretary in 1975 indicated that the Queen would not intervene in the constitutional crisis immediately after 11 November 1975.
5.2.2 Senate
* s 7 and 24 of the Commonwealth Constitution (and several associated provisions) appear to assume that senators and members of the House represent the States or the people of the States.
* In 1922 the Parliament legislated to allow the Northern Territory one member of the House of Reps, a member with no right to vote in any of the House’s proceedings.
* That member was given a limited vote in 1936, and a similar representation was allowed to the ACT in 1948.
* The two Territory members voting rights were extended to full voting rights in 1966 (for ACT) and 1968 (for the NT).
* In 1973 the ACT was given a second member, also with full voting rights, and in 1974 legislation was passed through the double dissolution procedure (that is, despite the opposition of the senate) giving each Territory two senators with full voting rights.
* Validity of this legislation was upheld by the High Court in Western Australia v Commonwealth, the First Territorial Senators case, and in Queensland v Commonwealth, the Second Territorial Senators case.
First Territorial Senators case
* It found adequate constitutional support for the legislation in s122 of the Clth Constitution, which authorises the Cmlth Parliament to “allow the representation of [a] Territory in either House of Parliament to the extent and on the terms to which it thinks fit”.
* Mason J found, apart from s 122, ‘overwhelming force’ in the argument that s 7 and associated sections of the Constitution indicated ‘that the Senate is a States’
* Mason J said, the solution to the apparent contradiction between s 122 and ss 7 and 24 was to see ss 7 and 24 as interim provisions, prescribing the composition of the two houses until the Parliament decided to allow representation to a Territory under s 122, a reading which would give authority to ‘the course of constitutional development’.
* Murphy J held that the “fundamental constitutional doctrine” of democracy demanded the result of the case: “ It is contrary to the democratic theme of the Constitution that Parliament should be not be able to allow representation by membership in either House to Territories at the time and on the terms which the Parliament considers appropriate”.
* On the other hand, the minority justices stressed the fundamental character of s 7 of the Cmlth Constitution, and its associated provisions - the senate was intended to be exclusively composed of senators from the states.
* Minority gave s 122 a restricted reading, and would have allowed the Clth Parliament to legislate only for the representation of the Territories in the Senate by non-voting representatives.
* Geoffrey Sawer stated, ‘the practical reality is that the senate is an instrument in the hands of the parties in the Parliament as a whole’.
* The decision in the First Territorial Senators case may have sanctioned no fundamental change in the nature of the Senate; though it did allow, at the elections of 13 December 1975, the size of the senate to grow from 60 to 64 senators; but of the four newly created places, two were won by the new government and two by the opposition.
* Under the single transferable vote system (proportional representation), a party would need to gain two-thirds of the votes cast, plus one vote, to win both Senate places in a Territory - the Senate (Representation of Territories) Act 1973.
* However, the decision might threaten the longer term integrity of the Senate - if the Cmlth Parliament has a complete discretion to add Territory representatives, it could provide more than the modest number of reps specified in current legislation.
* s 57 provides for the passage of legislation despite the opposition of the Senate, that section also provides a political safeguard, in the form of a dissolution of and a general election for both houses.
Second Territorial Senators case
· Territory representation in the Senate (and, as a corollary, in the House of Reps) must now be regarded as entrenched, following the High Court’s decision in Queensland v Commonwealth, the Second Territorial Senators case - majority of court refused to overrule the First Territorial Senators case.
5.2.3 – House of Representatives
· Disagreement between the two houses of the Commonwealth Parliament is designed into the systems for their election - senators are elected for terms of six years (s 7 and 13), members of the House of Reps for a maximum of three years (s 28). Half the members of the Senate are elected every three years (s 13), while elections for the House of Reps may be held at any interval that does not exceed three years from the House’s first meeting following the last election (s 28).
· The original states given equal representation in the Senate (thus devaluing the degree of representation afforded to voters in the large States) (s 7), but the members of the House of Reps returned from the States are “in proportion to the respective numbers of their people”(s 24).
· s 24 also states that each state cannot have fewer than 5 electorates, and therefore elected members, no matter how low its population may fall.
· In the Senate, the representation for the states is equal regardless of population - there are currently 147 members of the Lower House, a figure which has increased periodically owing to the fact that s 24 of the constitution requires that the number of state members be twice that of the Senate.
· The method of election for the house is by the preferential voting system.
· The political composition of the two houses is likely to reflect quite different electorates, with the state reflecting a distribution of political interests several years older than that reflected in the House and skewed towards the political values of the smaller States.
· Prospect of conflict has been heightened by the Parliament’s adoption of different electoral systems: the House is elected on the basis of single member electorates, while the senate is elected on the basis of state-wide proportional representation.
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