Factors THAT Affect THE Ability OF Parliament TO MAKE LAW PDF

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FACTORS THAT AFFECT THE ABILITY OF PARLIAMENT TO MAKE LAW The roles of the houses of parliament The following factors can affect the ability of parliament to make law: •

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Effectiveness of the lower house – if the government holds the majority of seats, as is usually the case, bills will typically pass to the upper house, thus allowing gov to fulfil its election promises. If gov is hung and thus forms minority gov through seeking support from small pol parties and independents; law-making can be more difficult due to constant need for negotiation, though it does ensure adequate debate and scrutiny of bills to ensure in the interest of the people. Effectiveness of the upper house – if gov holds majority in upper, Senate can act as a rubber stump, thus compromising its role as a house of review. Bills are unlikely to undergo rigorous scrutiny and debate, with the UH simply confirming decisions of the HoR. Conversely, if the Senate is hostile, this can lead to adequate scrutiny and debate of bills before implementation, ensuring that they’re in the interest of the people. Whilst this can be beneficial, it can cause delays in implementation of legislation, particularly undesirable when concerning an area in dire need of reform. The law-making system – the incredible long and arduous process can be advantageous as it ensures proper consideration of bills before implementation as legislation to ensure it’s in the interest of the public. However, this can also mean that law reform may take much longer to be addressed, thus changes in societal values may not necessarily be reflected in legislation at all times. The committee system – allows members of HoR and Senate to examine and evaluate need for law reform, providing an outlet for members of the community to have their input during the investigation process. Whilst they can ensure law reform appropriately reflects the values of contemporary society, investigations are long processes which are expensive to fund.

The representative nature of parliament •

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Representative government, as established by sections 7 and 24 of the Constitution, forms the basis of democracy, ensuring that MPs are chosen directly by the people to make laws that reflect contemporary societal views of the majority. Affects the ability of parliament to make law as the representative nature (in that MPs are chosen directly by the people in regular elections) means that parliament typically aims to legislate in such a manner as to appease the majority and their needs to retain constituent support. However, this also means that MPs may refrain from legislating, particularly in areas of controversy or where societal views are conflicting (such as safe injecting rooms) for fear of voter backlash. Whilst such actions may be made to ensure their position after the next election, voters may harbour resentment due to dissatisfaction as a result of their reluctance to make law. This may also lead to MPs losing support. Thus, the representative nature significantly affects the ability of parliament to make law.

Political pressures •

Political pressures – any pressures placed on the legislature to act or refrain from acting in cases of law reform/creation – are one of the main factors which hinders the ability of parliament to make law. Internal pressures; includes other political

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parties or members. Domestic pressures; state parliaments, constituents and the people as a whole (petitions, demonstrations, etc.) International pressures; international parliaments, legal bodies, declarations/covenants and treaties such as UNESCO. Such pressures may lead to premature decisions that are uninformed, not in the interest of the nation to do so or come with grave repercussions and they may be a response to pressures from businesses or organisations like EPA.

Restrictions on the law-making powers of parliament There are many restrictions on both CommP and state parliaments that limit them in their powers of law-making. •

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Jurisdictional limits – CommP cannot legislate in areas of residual power, just as the states cannot legislate in areas of exclusive power – ensuring that parliament only makes laws in which they are vested the power. HCA is vested with the power to declare law ultra vires, and thus invalidate any in breach of the above principles. In addition, s109 comes into force when laws of the state and the Comm are conflicting. The aforementioned restrict the ability of parliaments to make law. Specific prohibitions – the five express rights are areas in which both the Comm and state cannot legislate under any means due to their entrenchment, unless a change to the Constitution occurs via process of referendum.

Q: How do restrictions on the law-making powers of parliament affect its ability to make law? (4 marks) The Commonwealth Parliament’s ability to make law is limited by specific prohibitions in accordance with the Constitution. The five express rights – as protected by sections 51, 80, 92, 116 and 117 – strictly prevent parliament from creating statute in these areas. Legislative change can only be made to these sections via s128’s referendum process, in which parliament plays only a very small role. In addition, jurisdictional constraints can hinder parliament’s law-making ability. The division of powers and its allocation of legislative ability means that the Commonwealth cannot create law in an area of residual power, and the states cannot legislate in areas of exclusive power. If this occurs, the validity of the law may be challenged by a party with standing in the High Court, whom is vested with the power to invalidate law made ultra vires. Q: Explain the extent to which the High Court is a restriction on the Commonwealth Parliament’s law-making ability. (4 marks) Despite the Commonwealth Parliament’s role as the supreme law-making body, the High Court acts as a restriction on its legislative ability to a certain extent. The High Court’s role as the guardian of the Constitution means that it can interpret its wording and also invalidate legislation that breaches the document or is made ultra vires. This means that if the parliament creates law beyond its powers, it will be deemed void if challenged. Parliament also cannot overrule a decision of the High Court. However, this restriction is only effective if offending legislation is challenged by a party with standing in the High Court. Not only can standing be difficult to establish, the

incredible costs and time of litigation may deter parties from initiating action. Thus, the High Court limits the law-making ability of the Commonwealth to a limited extent....