Standard Legislative Procedures Both Cth & states. Legislative procedures = how Parliament go about enacting information.

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1 TOPIC 4 LEGISLATIVE PROCEDURES Restrictive procedures: for laws that seek to amend the constitution (eg. s128). Alternative procedures: designed to break legislative deadlocks that can occur when the government does not control both houses. Special procedures: eg. financial must start in lower house. A Standard Legislative Procedures Both Cth & states Legislative procedures = how Parliament go about enacting information. Modelled on UK Parliament ( standing orders ) but tension between: o Traditional non justiciability of parliamentary procedures ( intra mural ) e.g. British Rail v Picken (UK) = Parliament not responsibility of courts; and Strong UK theory that parliamentary business = not the responsibility of the courts and Parliament should sort out their own blunders. o Judicial review re constitutionality & written constitution (US). UK don t have written constitution, but Au do which sets out limits of Parliament, thus if unconstitutional (beyond their limits) = should be reviewed by courts. Initiation o Either house o Any member e.g. private member s bill 1 st, 2 nd and 3 rd readings of bill. o 2 nd reading = main deliberative phase and main sections are discussed. Standard procedure requires majority of members present when vote taken. Rules about voting by President (Senate)/Speaker (House of Representative). Quorum requirement (minimum number of people who must be present in the chamber to vote) (there must be 50% + 1 votes to win): o Section 22 re Senate quorum & s 39 re House of Representatives quorum (⅓) o Constitution Act 1975 (Vic) ss 32 (1/3 re Legislative Assembly), s 40 (20 re Legislative Council) Must achieve simple majority from both houses to pass bill. Governor, G-G = assent. B COMMONWEALTH ALTERNATIVE PROCEDURES (s 57) Problem = deadlock = majority in a house cannot agree. o Because uncommon for a party to have power / a majority in both houses. o Deadlocks were expected.

2 In constitutional debates when they were drafted, people thought the real problem would be between the large and small states. Thus to break the deadlock, Vic and NSW people wanted the House of Reps to have power over the Senate (because these 2 states had majority in HOR) and smaller states wanted it the other way. Came up with compromise = s 57. Half way between what smaller colonies wanted to protect themselves and what the larger colonies would accept. See Skye Mykyta s 10 Step Diagram. Product of a compromise between NSW & Vic and smaller colonies * Step 5 = double dissolution (of both houses). o Both houses fully go up for election. o Must be within 6 months.

3 * Step 9 need absolute majority (50% + 1) for the bill to pass. o Twice as many HOR s thus they usually win. Political dimension re s 57 e.g. o Advice to Governor -General re double dissolution of PM ( Step 5 ) cf 1975; ; PM will only advise G-G to doubly dissolve if it is in the interest of Parliament to have an election. o Outcome of election at Step 5. o Abandonment of Australia Card legislation post 1987 double dissolution election. Only ever 1 joint sitting in Dominance of Lower House e.g. o House of Representative initiation; S57 only applies when HOR initiate the Bill (dominance of liwer house) o joint sitting (absolute majority & remember nexus [there must be twice as many HOR s than senators]). Joint sitting as one off : o Joint sitting can only consider those bills which have passed through steps 1 to 7. o Parliament reverts to bicameral chamber pre and post joint sitting. The joint sitting only occurs for the bills in dispute. fails to pass, double dissolution election; joint sitting (6 & 7 August 1974) & absolute majority Cumbersome and inutility re money bills (cf 1900). o Cannot use s57 process for money bills (how to use money / the provision of money to the Gov) because would run out of money before conclusion Joint Sitting: (i) Cormack v Cope re refusal to issue injunction to prevent joint sitting. PMA CASE (HC, 1975) Facts: - Case started by 3 different cases. - Case bought after 1974 double dissolution election, but before joint sitting. - person argued that joint sitting is illegal and HCA should grant an injunction to stop it. - Petroleum and Minerals Authority Act 1973; see chronology; calculation of 3 month interval between Steps 2 & 3 - Need to have a 3 month interval between steps 2 and 3.

4 - 3 months had not passed. * Adjourned for Christmas * Prorogation = session ends. * Senate said would defer debate for 6 months because not controlled by Whitlam and hated Whitlam Government. * Whitlam calls for double dissolution. - HCA said not justiciable the Parliament sought it out themselves. - Won t interfere with legality of joint sitting, but if the joint sitting passes a bill, the court indicated that they can consider the legality of the Bill (PMA). - When PMA passed, minority states call for the HCA to say it is unconstitutional. Argued (by Cth): (i) non justiciable [doesn t succeed]; (ii) Senate adjournment on 13/12/73 fails to pass [argued adjournment was a failure to pass and thus there was a 3 month period]; (iii) calculate interval from Step 1 [claimed the 3 month period starts when the HOR first passes the bill]. Held: (i) ( justiciability ): (Jacobs and McTiernan JJ dissenting) Barwick CJ: High Court as guardian of Constitution and constitutional restraints on lawmaking (Barwick said that a key to the constitution is that the HCA has the power to judge legislation unlawful / invalid); - argument failed.

5 (ii) ( fails to pass ) Senate = co equal chamber, not mere house of review ; definition thus it can take it on time to pass the Bill should not be held to the agenda of HOR as to when must pass the bill (see p 303); - How do you work out when Senate much make up mind? - Not allowed to look at the debates cannot look at the Senate s opinion on the Bill to work out whether the Senate has passed the Bill. - eg. can t consider that they opposed the Bill, can onlylook at the formalities they only adjourned it after 1 day. - Argument failed. (iii) plain English & role of Senate (cf Jacobs J); - If Senate only given 3 months they are under the control of the HOR and are not treated equally Also against the plain test of s57 that says the 3 month period is between steps 2 and 3 not 1 and - Argument failed. Bill = unconstitutional = set aside. - But double dissolution election and joint sitting not void (otherwise would have a situation where there is no Parliament). Other Issues: Lawfulness of Double Dissolution; Barwick CJ ( although not void, not lawful ) cf ss 12, 32 operate independently. Territory Senators (No.1): o 1 st passed (Step 1) 30/5/73 Rejected (Step 2) 7/6/73 Passed 2 nd time (Step 3) 27/8/73 Rejected by Senate 2 nd time (Step 4) 14/11/73 Double dissolution 11 th April 1974 (Step 5) [gap of 6 months between 4&5] o Argued too great interval between steps 4 & 5 ( stockpiling ); Argue that the Government have to advise G-G have to dissolve Parliament quickly. o Majority: no time limit cf Barwick; The Constitution makes no reference to the time that the G-G must dissolve Parliament in. o Political effect? Allows Government to stockpile bills pass a bill that the Senate won t pass and then sit on the bill after it is rejected a second time, it can then be used as power over the Senates HOR can say that if Senate doesn t co=operate, they will advise G- G and request a double dissolution where many senators will lose their seat. C COMMONWEALTH RESTRICTIVE PROCEDURES (s 128) Section 128 re amending Constitution = the only Cth restrictive procedure.

6 o frozen continent (Sawyer) & Not many changes o Popular sovereignty. Our constitution, not the British. Commonwealth Parliament cannot enact restrictive procedures because: o No specific restrictive procedure head of power. o Incompatible with plenary grants of legislative powers under, e.g. s 51, and s 128. Parliament cannot restrict its own powers granted by the constitution. o With exception of s 51(xxxviii) e.g. Australia Act 1986 (Cth) s 15. S15 Aus Acts Aus Acts are entrenched. Can t be amended by Cth Parliament unless where states request amendment, or put to referendum. s 51(xxxviii) Cth Const Features include: o Parliamentary initiation; Commonwealth Parliament must initiate the Bill. When constitution made this was not a problem for the states because senate was going to be a states house didn t turn out this way though. o Absolute majority; 50% + 1. Of both houses. o Passage by one House; Can have a referendum after Bill only being passed by 1 house. Where house passes bill and rejected by other house twice can be put to a referendum. o Referendum & double majority; Majority of electors (in States and Territories) and a majority of electors in the majority of states (4/6) o Role of Territories (1977 referendum); 1977 s128 amended by referendum. Territories included in majority of electors, but still only need a majority of states. o State boundaries or representation e.g. s 24. Where referendum proposal affects particular states individually (eg. removing the minimum Senate representation s24 would affect Tasmania individually), the referendum has to be agreed by a majority in that particular state too (just carry in that state). History of only 8/44 succeeding including 3 out of 4 in 1977:

7 o Double majority; Difficult to achieve. o Apathy (why fix if not broken) & negative argument (easier to appeal to people s fear of change than to convince them of a positive change) & need for bipartisanship (e.g republic referendum) (although can go to referendum if only 1 house passes); Preamble re aboriginal people (successful); republic; local government; repeal of race power (current issues). D COMMONWEALTH SPECIAL PROCEDURES (FINANCIAL) 1. INTRODUCTION Money bills include: o Tax bills i.e. raising $ o Appropriation bills i.e. authorising expenditure of money. If governments don t raise money, they can t spend money, then they don t exist. Authorisation of Parliament required o Bill of Rights (1688) UK re tax Parliament Act must authorised levying of tax executive cannot deicide independently. Now an entrenched right of Parliament. o Section 83 Constitution re appropriation ( by law ) Parliament Act must authorise the Executive taking money from the treasury. Importance of $ to governments: o Underpinning conventions of responsible government To do with responsible government Government must have the confidence of Parliament otherwise they will not be granted money and will be forced to resign. o Dominance of Lower House (and Senate obstructionism?). Only lower house can initiate money bills (thus they drive money bills) Senate as States House (s 13) cf House of Representatives as popular chamber (s 24); power of Senate & compromise re large and small states. 2. SECTIONS 53 TO 55

8 i. Introduction Section 53: o Co equal power of Senate (except for exception in this section); o Exceptions: Initiation of money bills = only by lower house (HOR) (i.e. appropriation & tax bills); Amendment of tax bills and appropriation bills for ordinary annual services of government but subject to right of Senate to return bill (also deferral) (e.g. blocking supply (1975)) Section 54 re appropriation bills cf s 55 re taxation bills ( anti tacking ). o Smaller states were prepares to deal with the limited power (accept cannot amend appropriation bills (s53)), but wanted some kind of protection. o S 54 disallows HOR to attach a matter to do with the appropriation that doesn t relate to appropriation of the ordinary and annual services of Government. Ie. The HOR cannot tack a non-tax matter onto a tax Bill to exploit their power because the Senate cannot amend tax bills (and thus would also not be able to amend the other issue). o S 55 tax bills can only include 1 tax at a time. Thus the Senate can decide on each individual tax rather than there be conflict between providing the government with money and assessing each individual tax. Justiciability? ii. Justiciability? o Proposed laws (ss 53, 54) cf Laws o HCA have said that ss53&54 are non-justiciable, therefore if a law does not comply with these sections it is up to Parliament, not the Courts to deal with. Eg. if Senate amend a money bill, it is up to the HOR to deal with it (eg. either ignore it or may waive their privileges decide it is a good amendment and deliberate themselves on it). o This is because s52 and 54 deal with proposed laws - this happens completely in Parliament, thus they should deal with it. BUT s55 refer to laws thus is justiciable and can be invalidated (nonconstitutional) by the HCA Proposed laws (ss 53, 54) cf Laws Sections 53, 54 non justiciable cf s 55 justiciable. No legal authority re appropriation bill for ordinary annual services of government o Because s52and54 = non-justiciable, there is no HCA interpretation on what it means. o Conventional view is that it involves government expenditure on matters of settled policy where no new development or capital expenditure involved (see ) [cf Constitution Act 1975 (Vic) s 65(2)]

9 iii. Judicial Interpretation of s 55 Not new policies, but settled policy, eg. paying public servants. (a) Operation of the Two Limbs AIR CALEDONIE (High Court, 1988) Facts: - Migration Amendment Act 1987 (Cth) ( the Amending Act ) s 7 inserts s 34A in Migration Act 1958 (Cth); imposes an arrival tax ; collected by airlines and airlines owe debt to Commonwealth. - everyone arriving to Australia on plane must pay money ($10) (to fund processing people when they arrived). - airlines didn t like the legislation because they had to collect the money and give it to the Cth, and they had to pay even if they didn t collect it. - they were acting like tax collectors. Issue Migration Act was not a tax act, but included provisions regarding taxation. - Airlines went to HCA and said the provision was unconstitutional inserting tax provision in a nontax act. Argued: Cth argued (i) Section 34A of Migration Act = does not impose tax it is a fee for a service; (because you have a right to come into Australia = not a tax). (ii) Amending Act only deals with the imposition of taxation no problem of tacking s 55 not violated (the fact that it ultimately amended the Migration Act (which was not only a tax act) is irrelevant). Held: - Held in favour of the airlines. Re (i) Section 34A does impose tax at least re Australian citizens Re (ii) 1st paragraph of s 55 has two limbs; Re 1 st limb: Reference to laws in s 55. In s 55 laws refers to laws as exist on statute book Once amending act commences it is exhausted and only principal act (as amended by amending act) exists Section 55