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Reference Section

How the system works

Governments
Constitution
Parliaments
Functions of parliaments
Representation
Choosing governments
Passing laws
Scrutiny
The arrangement of parliaments
The voting systems for parliaments
Cabinet
Public service
Shadow cabinet
The courts
The head of state

Governments

Australia is a federation with a national government, the Commonwealth, and six State governments. Governing in a federation is always complicated because there are disputes and confusion of responsibility between the two spheres of government. Other federations include the United States, Germany and India.

In a unitary state such as France or New Zealand, there is only one government. It has power over all matters, though it allocates some of its powers to local or regional government. In Australia State governments allocate some of their powers to local government. This is sometimes referred to as a third sphere of government, but unlike the other two it has no guaranteed right to exist.

The Commonwealth possesses two substantial territories on the Australian mainland, the Northern Territory and the Australian Capital Territory. These largely govern themselves, but are still subject to Commonwealth authority.

Constitution

The Commonwealth constitution, which came into operation in 1901, set up the machinery of the central government and allocated powers between the Commonwealth and the States. The powers of the Commonwealth were listed and all other powers remained with the States. The High Court was created to be the interpreter of the constitution. So the Commonwealth and the States can take each other to court if they think the other is trespassing on their law-making territory. If the court upholds the complaint, the law in question is declared unconstitutional and of no effect. The judges of the High Court are appointed by the Commonwealth government.

The constitution is amended by the Commonwealth parliament proposing a change which is then submitted to the electors at a referendum. If a majority of the electors and a majority of the States approve the change, it becomes law.

Much of the Commonwealth constitution was borrowed from the United States constitution, but not its Bill of Rights. Only four rights are guaranteed in the constitution – freedom of religion (but only in the Commonwealth, not the States); just compensation for property acquired by the Commonwealth; trial by jury for serious Commonwealth offences. The fourth right applies only in regard to the States: they are not to discriminate against residents of other States.

Parliaments

There are seven parliaments, one Commonwealth and six State. They are the legislatures, or law-making bodies. Except for Queensland, they are bicameral, which means they consist of two houses (from the Latin ‘bi’ two, and ‘camera’ a chamber). The houses are labelled upper and lower; the more important house, contrary to the implication of the name, is the lower. The names have been taken from the English parliament where the House of Lords was known as the upper house and the House of Commons the lower house. The Lords was made up of the heads of aristocratic families and the bishops of the established church; the Commons was made up of non-noble people who were elected. Beginning as very much the inferior house, the Commons over the centuries became the more important house where governments were made and unmade. The Lords remained as a conservative brake on the Commons.

In the States the upper houses are called Legislative Councils. The lower houses are called the Legislative Assembly or House of Assembly. Originally the Councils were designed to be conservative houses and so fulfil the function of the House of Lords. They were elected by property holders or nominated by the governor. Now the same people vote for them as for the Assembly. Their electorates are larger than Assembly electorates (in South Australia and New South Wales the whole State is one electorate) and the members serve for a longer period (except in Western Australia).

In Queensland there is only one house, the Legislative Assembly. The Legislative Council was abolished in 1922.

In the Commonwealth the lower house is the House of Representatives. The upper house is the Senate. Members of the House of Representatives are allocated to the States according to their population. Hence the majority of the members come from New South Wales and Victoria. The States are divided into electorates and each electorate returns one member. For the Senate each State elects the same number of members (currently 12). The electorate is the whole State. From the beginning in 1901 the same people voted for the Senate as for the House of Representatives. So the Senate was thought of more as a States’ house than a conservative house. Its conservative element is that members serve for six years, twice as long as members of the house.

In the Northern Territory and the Australian Capital Territory there is a single house, the Assembly. The Territories return two members to the Senate. The Northern Territory elects one member to the House of Representatives and the Australian Capital Territory three.

Members of the legislatures are described as holding a seat. Electorates are also called seats – the seat of Casey, for instance.

Functions of parliaments

Representation
The Commonwealth and the States are representative democracies. The people do not rule directly but through elected members of parliament who represent their views and interests. Members of parliament, speaking in the house, are protected by parliamentary privilege which means they cannot be taken to court for anything they say. This enables them to comment freely on public affairs and to make accusations against individuals.

Choosing governments
Parliament determines who will be the government. The party which holds a majority of seats in the lower house of parliament, or the single house where there is only one, will form the government. If a party is short of a majority it might rely on the support of another party or independent members to form a government.

Governments are made up of ministers who are in charge of the various government departments (health, police, education and so on) under the leadership of a prime minister (the Commonwealth), a premier (the States), or a chief minister (the Territories). The group of ministers is known as the ministry. A ministry constitutes a government which is referred to formally as the executive.

Ministers must be members of parliament and the ministry must retain the support of the house which has formed it. This is known as the Westminster system (after the place of meeting of the English parliament which first developed this way of governing) or the system of responsible government (since the ministers are responsible to the parliament).

The best known alternative to this system is the United States constitution under which the president, as head of government, is elected by the people and chooses ministers who are not members of the Congress. The executive and the legislature are firmly separated in the United States; in a Westminster system the executive is formed in the legislature.

Before there were political parties, ministries changed more regularly than they do now and sometimes without there being an election. The members of parliament would withdraw their support from a ministry; it would resign; and a new ministry would be formed. With strong party discipline, once a ministry is formed, it will be supported in office by the members who are of the same party as the ministers.

Governments usually change when a party loses an election and what was formerly the opposition party wins a majority of seats and forms a government.

Members of parliament of the same party (from both houses) meet regularly together in the party room. They elect their leader. If a party wins an election the leader becomes the prime minister. The leader of the largest party in opposition to the government becomes the leader of the opposition. Parties can change their leader at any time. If a prime minister is unpopular the party may replace him or her, with the party itself remaining in government.

In the Liberal Party the leader, on becoming prime minister, has the right to choose who will be the ministers. Usually the Liberal Party governs in coalition with the National Party whose leader will be given an important ministry and the position of deputy prime minister. The National Party leader is consulted by the prime minister on what ministries National Party members are to receive.

In the Labor Party ministers are elected by the Labor members in the party room. The prime minister allocates the ministers to the ministries.

Passing laws
Parliaments make laws which are known as statute law. A proposed law is called ‘a bill’. A bill must be agreed to by both houses in a bicameral parliament before it can become law. A bill which has become law is known as ‘an act’. So a land bill, for instance, becomes, after it is passed, a land act and part of the statute law.

In each house a bill passes through three stages which are called ‘readings’. At the first reading the bill is presented, usually now without explanation. The passing of a motion that the bill be read a first time merely puts it on the agenda. At the second reading the person proposing the bill (usually a minister) explains its purpose and how it will operate. Then a general debate follows. If the bill passes its second reading it is then considered clause by clause in committee. The committee is usually ‘of the whole’ (that is, all the members of the house) or it may be a smaller body. Debate is more informal. There are no set speeches and members can speak more than once. Debate is on the detail of each clause, not the principle of the bill. This is where amendments are introduced. The final stage is the third reading, usually a formality, but members opposed to the bill have a last chance to speak against it and those who don’t like what has happened in committee may now oppose it.

After the second reading a bill may be referred to a select committee specially constituted from the members of the house to examine and take evidence on this one measure. More commonly bills are referred to a standing committee of the house, a body which considers all bills within a particular policy area, say health and community welfare. Committees make their reports to the house and their recommendations can then be considered at the committee stage of the bill.

In a bicameral parliament each house has to agree to the amendments made by the other. If agreement cannot be reached the bill lapses. In the Commonwealth parliament and in some of the States upper houses cannot amend money and taxation bills.

In the Commonwealth parliament if the two houses cannot agree on a bill there is a deadlock provision for resolving the dispute. If the Senate rejects a bill or makes amendments not acceptable to the House of Representatives and does so again after a lapse of three months, the Senate can be dissolved along with the House of Representatives. This is a double dissolution and in the election which follows the membership of both houses is entirely reconstituted. Usually only half the Senate retires at each election. After a double dissolution election, if the Senate still rejects the bill, both houses sit together and the bill can be passed if it is supported by an absolute majority (a majority of the total membership, not simply of those present).

Scrutiny
A parliament is meant to control a government by scrutinising its actions. Its final sanction is to pass a vote of no-confidence in the ministry whereupon it is required to resign. A government which has a majority made up of members of the one party is unlikely to suffer in this way unless enough of its supporters ‘cross the floor’: that is, go over to the opposition. Nevertheless the parliament can put a government under pressure and force it to change policy or administration. The opposition party can, at the daily question time, cross-examine ministers on their performance and bring on debates to criticise the government. These tactics are more effective if they are given media publicity. If the upper house is not controlled by the ministry, it can in its committee reports critically review the government’s proposals and record. In the party room a government’s own supporters have the opportunity to be critical and a government more often changes its plans because of criticism here rather than in parliament proper.

One of parliament’s chief functions is to ‘vote supply’ which means to agree to the government’s spending proposals. It also scrutinises the spending of the money which has been granted. It does this through a public accounts committee and the auditor general, an officer who reports to the parliament, not the government, on whether money has been properly spent.

The arrangement of parliaments

The meetings of the lower house are presided over by the Speaker; the upper house by a president. They are meant to conduct business impartially according to the standing orders of the house, but they are appointed by the governing party and so it is difficult for them to be truly independent.

The seats or benches in the house are arranged in the form of a U, with Speaker or president at the top. On the Speaker’s right sit the ministers and members of the governing party. The ministers are on the front bench; all the other members supporting them are known as government backbenchers. The chief opposition party sits to the Speaker’s left. Again there are frontbenchers (the leading members of the party who will be ministers if the party wins office) and backbenchers. On the cross-benches at the base of the U sit minor parties and independents.

This seating arrangement means that government and opposition, prime minister and leader of the opposition, face each other across the chamber, which encourages an adversarial mode of proceeding. They are separated by a table on which documents of which the house takes official notice are placed or ‘tabled’.

The voting systems for parliaments

Voting is compulsory in Australia, a highly unusual procedure internationally but well accepted here.

Except in Tasmania, for the lower houses each electorate returns one member and the voting system is preferential. With first-past-the-post voting a member may be elected with less than a majority support. Evatt may win 40 votes, Menzies 35 votes and Santamaria 25 votes. Evatt will be elected though he received only 40 votes out of a possible 100. Under a preferential system voters indicate not only their favoured candidate but their second-best candidate and so on right through the list. A number in every square is the instruction. If no candidate wins a majority (more than half the votes cast), preferences are considered. The candidate with the fewest number of votes is eliminated and his or her preferences are distributed to the candidates still in the running. In the above example, Santamaria’s preferences would be distributed. If of these 25 votes, 20 went to Menzies and only 5 to Evatt, then the total votes gained by those two gentlemen would now be: Evatt 40 + 5 = 45; Menzies 35 + 20 = 55. Menzies would be elected though he obtained fewer first preference votes than Evatt. But most of those voting for Santamaria wanted Menzies as second-best, so overall Menzies had more support and deserves his win.

Proportional representation is used for the Senate and some State upper houses. Its basic principle is that the members returned for the different parties and groups should be in proportion to their support in the electorate. So if Liberals win 50 per cent of the vote, Labor 40 per cent and Democrats 10 per cent, Liberals should have 50 per cent of the parliamentary seats, Labor 40 per cent and Democrats 10 per cent. Obviously the system requires that people be voting for a number of members and not just one. In a normal Senate election six members are elected by the whole State voting in a single electorate. The same occurs for the upper houses in New South Wales and South Australia. In Western Australia members are elected from regions, some returning five and others seven members.

In Tasmania the usual pattern for electing the two houses is reversed. Proportional representation, the Hare Clark system, is used to elect its lower house. The electorates are the five electorates for the House of Representatives, returning five members each. The upper house has single-member electorates and preferential voting.

The Australian Capital Territory uses proportional representation for its Assembly election. The Northern Territory Assembly is elected like the State lower houses.

Preferential voting in single electorates usually results in one or other of the major parties winning the seats. Either Labor or Liberal in combination with National secures a majority and so forms a government. With proportional representation it is much harder for one party to secure a majority of the seats. Upper houses elected on this basis contain minor party members and independents who deny a government an automatic majority. This ensures that the upper house will be a true house of review.

Cabinet

Ministers meet together as the cabinet. In the Commonwealth government where there are a large number of ministers, there is an inner and outer ministry. Only the members of the inner group constitute the cabinet. If it is to work effectively it cannot be too large; at more than 13 or 14 members it becomes a meeting rather than a working body. Ministers who are outside the cabinet are called in to meetings when a decision has to be taken in the area of their portfolio (the name of a minister’s responsibility). In the States and Territories all ministers are members of the cabinet.

The meetings of a cabinet are where the decisions of the executive government are taken. ‘To execute’ means simply to carry out, but the executive now does much more than administer the laws passed by parliament.

It decides what bills will be introduced into parliament. Theoretically any member may introduce a bill for a new law, but except in very rare circumstances only those bills introduced and backed by the government have any chance of becoming law. This is the effect of the government having a guaranteed majority in at least the lower house due to the strength of party discipline. This kills off bills coming from any other quarter: the opposition or minor parties. Unless the government controls both houses, it cannot be sure its bills will become law. It can be sure that no one else’s will.

On moral questions sometimes both major parties will agree to give their members a free vote. Then a law on abortion or euthanasia, for example, may be introduced by a backbencher and become law. This is called ‘a private member’s bill’.

Modern laws delegate much power to ministers which is exercised by the issuing of regulations. So ministers individually or meeting together as cabinet can vary laws by issuing new regulations. Sometimes if a government bill has been defeated in the upper house, the minister may announce that some of the changes it was going to make will be done instead by regulation.

Public service

The administration of the law is performed by public servants who work in the various government departments. A department also advises its minister about policy; it may explain that a policy that the minister has advocated cannot be made to work or will cost much more than was expected. It will also advise the minister on how proposals being put forward by other ministers will affect the matters dealt with by his or her department. This will enable the minister to be better informed for a debate in cabinet.

In order that public servants could give impartial advice to ministers, and if necessary speak against their policies, they used to enjoy security in their job. The department remained the same and ministers came and went. Now the public service is run more like a business. Ministers appoint the people to be in charge of their departments and expect them to carry out their wishes. Senior public servants no longer enjoy security in their job.

Shadow cabinet

The leading members of the chief opposition party form a shadow cabinet with individual members being appointed as shadow ministers. They watch or ‘shadow’ the real ministers. A shadow minister must learn about the responsibilities of the real minister and be able to criticise the minister’s actions and show that the opposition party would handle matters better. The shadow ministry is one of the great strengths of the parliamentary system. Electors and the media can watch and assess the alternative government and decide whether it would be better than the ministers who hold office.

The courts

The courts are the third arm of government. The legislature (parliament) passes the laws; the executive (the ministers) carries them out; the judiciary (the judges) assesses whether the laws are being obeyed. If the laws have been broken, the courts may punish the offender or issue orders that the law must be obeyed.

Governments (that is, the ministers) have to obey the law like everyone else. That goes without saying for their private actions; the more important principle is that in their governing they must also obey the law. If they don’t they can be taken to court and the court will order them to obey the law. This is the principle of the rule of law. The government has its own lawyers, the law officers, to advise on the legality of their actions.

The rule of law is a daily miracle. The government is subject to a higher power, the law. The judges, who interpret the law, are appointed by the government, but in order that they may be independent of the ministers they cannot be sacked by the government. They can be dismissed only by a vote of both houses of parliament. It is very rare for a judge to be dismissed.

Our legal system is part of the common law system which originated in England and is followed by many countries colonised by England, including the United States. In this system parts of the law have been developed by the judges, who are constantly adjusting and amending it. This part of the law is called common law and is distinct from statute law which is the law as passed by parliament.

In criminal trials the judges over the centuries have developed the rules to ensure a fair trial. The most important of these is that the accused is innocent until proved guilty. The jury system was also introduced by judges many centuries ago in England as the body which would determine guilt or innocence.

Parliament is the supreme law-making body. That is, statute law prevails over common law. Parliament can alter the common law and remove rights established by it. Some parliaments have changed the law on juries to allow for majority verdicts and to remove the jury from some trials.

The High Court, as its name suggests, is the highest court in the land. As well as interpreting the constitution it is the final court of appeal from other courts.

The head of state

The head of state for the Commonwealth and the States is the Queen of the United Kingdom whose title for these functions is Queen of Australia. The actual duties of the office are carried out for the Commonwealth by the governor-general and for the States by governors. The governor-general is appointed by the Queen on the recommendation of the prime minister. A State governor is appointed by the Queen on the advice of the premier.

The governor-general and the governors are formally the head of the executive government. They appoint the ministers and the prime minister or premier. They meet with ministers in the Executive Council which formalises those decisions of cabinet which need to be put in legal form, as in the issuing of new regulations or the appointment of a judge. The governor-general and the governors here act on the advice of ministers, though they have the right to call for more information and query what the ministers are doing. Their signature is also required on a bill before it can become law. This is called the royal assent. Again, they sign the bill if they are advised to do so by ministers.

The practice of governor-general and governors acting on advice of ministers is a convention, not a law. In strict legal terms their powers are still extensive, and by convention sometimes they can use their powers without the advice of ministers or even against the advice of ministers. These are called the reserve powers. These include the right to dismiss a government which is acting illegally or unconstitutionally, to refuse an early election to a prime minister or premier who has lost majority support in the lower house, and to choose a prime minister where no one party has a clear majority in the house (if the prime minister so chosen could not acquire majority support, he or she would have to resign). In such situations the governor-general and the governors are the stabilisers and protectors of the system.

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