5 Parliaments of Australia

Australia’s new national Parliament House opened in 1988.^[1] It is one of the most recognisable and routinely scrutinised workplaces in Australia. Parliament House is much more than an impressive building. It is a symbol and a link to history, a meeting place and a debating chamber. It is the building where our laws are made, where governments rise and fall, where leaders are made and broken and where the theatre of Australian politics is played out. It is where compromise and consensus sit, sometimes uncomfortably, alongside partisanship and power. Parliament is a place of ideas, ideology, debate and deliberation. It is also a place that provides checks and balances on political power, including the power to impose taxes and the power to decide who can become a citizen. Parliament makes policies that affect all our lives.

The Australian parliament has been the setting for some of the most memorable political events in the nation’s history. It is where the will of the people can triumph, such as in the 2017 same-sex marriage laws, and where historical wrongs are officially recognised, as exemplified by the apology to the Stolen Generations. In short, parliament is an important democratic institution. Yet despite its central role, many Australians now have a diminished view of parliament. In part, this is due to the 24-hour media cycle and the rise of social media that focuses on conflict and intrigue, emphasising the ‘theatre’ of politics and minimising the substantive. For some, the parliament is seen as nothing more than a ‘rubber stamp’ for a powerful executive. Others believe parliaments are in decline, no longer relevant in the modern era.^[2] While this chapter’s focus is on the federal parliament, the state parliaments share many similarities, so much of the discussion is also applicable to state institutions.

This chapter proceeds with a description and summary of the parliament’s origins, and then moves to discuss the analytical themes that inform the Westminster tradition. It explores the role and functions of parliament and provides an overview of the sources of laws, procedures and practices that at times seem archaic, but that are fundamental to its workings and need to be understood by its elected members. After reading the chapter you should have an appreciation of the parliament’s important role in our democracy and of other institutions’ – electoral systems, political parties and the media – impact on the parliament in practice.

Parliaments in context

There are nine governments in Australia: one national and eight subnational.^[3] Each government has its own parliament – namely the national parliament, the six state parliaments and two territory legislative assemblies. Most state parliaments have two houses (the lower and upper houses) and are termed bicameral. Queensland, the Australian Capital Territory (ACT) and the Northern Territory governments^[4] have one house and are termed unicameral. In a practical sense, the houses of parliament are the supreme law-making bodies; they combine to oversee governments and to provide checks on power. The territory legislatures can make laws but can also have their laws overturned or restricted by the Commonwealth parliament.^[5] In the absence of a second chamber, such as in Queensland, the scrutiny of government falls to the opposition and to parliamentary committees (see below).

The Australian parliament is representative in so far as its members are chosen through the electoral process by citizens living across Australia’s 150 federal electorates (House of Representatives) and 76 Senate positions (12 from each state and two from each territory). The influence of the electoral system on the composition of parliaments is immense. Single-member preferential voting in the lower house has ensured that major parties (Labor, Liberal and National) dominate.^[6] This is why ‘hung’ parliaments or minority governments are historically rare events. Nonetheless, there is a high level of bicameralism evident in the Australian parliament. The Senate is rarely dominated by the government of the day because of the electoral system used. The proportional voting system provides a greater likelihood of independents and minor parties being elected.^[7] For details on the different systems operating across Australia, refer to Table 1.

The origins of the Australian parliament

The parliamentary system in Australia was modelled on the ‘mother of Parliaments’, located at the Palace of Westminster in England. This enduring legacy contributes to its traditions, practices and conventions. Independence from Britain began in the Australian colonies in the mid-19th century. Each colony’s parliament was established on Westminster principles, characterised by governments formed from those elected to the lower house. Ministers are appointed from the government side and are responsible to parliament for their actions. Because the operation of the Westminster parliamentary system was well understood, there was little in the way of written constitutions and significant reliance on tradition or convention. While all Westminster jurisdictions share similar traditions, each has adapted their system of government to suit their own unique circumstances.

Compromise and pragmatism were needed in order to get each of the colonies in the 1890s (which later became the states) to overcome their parochialism and deep-seated suspicion to join together as one nation in 1901. The Australian parliament met in Melbourne until 1927, when its original building, now called ‘Old Parliament House’ and operating as a museum, was built in Canberra.

While remaining rooted in the British tradition, Australia’s system of government also reveals influences from other places. Government in Australia combines Westminster principles of responsible government with a federal structure, consisting of the six states, with federal responsibilities set out in the Commonwealth Constitution. The Constitution limits the areas in which the Commonwealth parliament has exclusive jurisdiction and concurrent jurisdiction with the states.^[8] The Senate was envisaged by the drafters of the Constitution as a state house, providing each state with an equal number of elected members, rather than a proportion based on population size. This was to ensure every state had an equal say in decisions and could block laws that disadvantaged them. The Senate has rarely acted in this way, largely because of the dominance of political parties. Its powers, which include the ability to block finance, have led some scholars to argue that it moves Australia away from the British notion of responsible government. The term ‘Washminster’ refers to the way Australia has combined elements of the UK and USA systems of government.^[9]

Parliament – the Australian adaptation

In practice, our system of government has distinct elements that form part of the Westminster ‘chain of responsibility’. At the top, formally, is the head of state – the monarch – represented by the governor-general or, for the states, the governor – offices that largely play no role in politics or policy making. Parliament in the UK was formed as a way to control the powerful monarch in the Middle Ages by allowing other opinions and views to be represented.

In Australia, parliament gradually became more representative as those elected were chosen from a broader base and the electoral franchise was extended to include more people (women, Indigenous peoples). In keeping with British tradition, the prime minister, who is constitutionally lower-ranked than the head of state, leads the government. The three branches that form what is called a ‘chain of responsibility’ are the legislature (parliament as a whole), the executive (ministry) and the judiciary (High Court). As the executive, which is formed by the political party that wins the majority of seats in the House of Representatives, is both part of the parliament and accountable to the parliament – the separation of powers that you might hear mentioned does not fully exist in Westminster systems. The only distinct and important operational separation of powers is between the judiciary and the other two branches. So while we have an elected Senate like the USA, our prime minister (unlike the USA president) is not separate from the parliament and is answerable to it.

While the Senate is established in the Constitution, other legacies, such as the notion of responsible government, are conventions handed down from Britain. In theory, responsible government means accountable government. Ministers are responsible individually for the departments they manage and collectively for what the government does as a whole. During question time in parliament, they ‘must meet other members face to face, answer their questions, and explain, defend or excuse their own policies and the actions of the public servants under them’.^[10] In practice, ministers almost never resign for departmental blunders or for decisions they make. The increasing complexity of government makes it almost impossible for a minister to be held accountable for the actions of their department. Likewise, as an increasing number of policy and other decisions are made by Cabinet, ministers shelter behind collective responsibility. While collective responsibility may be a longstanding convention, it could also be seen as a pragmatic realisation that ‘if we do not hang together, we will surely hang separately’.^[11]

Functions of parliament

There is no exhaustive list of the functions of each parliament. While one of their most important functions is to make laws, the parliaments are not just legislatures. Their chief functions are representation, forming government, making laws, authorising budgets, confidence, raising grievances and scrutiny.

Representation

Members of parliament in the lower house have competing interests. They are charged with representing the people from the electorate that voted them into parliament, while at the same time considering the national (or state) interest. As most belong to a political party, they usually remain loyal to the policies, objectives and goals of that party. There are a variety of interests and many different types of people that a member of parliament hears from. These groups often have different perspectives on what needs to be done about a particular issue, producing tensions that sit uneasily at times.

Uhr and Wanna describe parliament as a ‘theatre of action … involving a wide variety of actors who interact around political issues’.^[12] While a degree of bipartisanship usually exists around national interest policies, the parties often have differing views on how these policies are best achieved. One of the most famous speeches regarding representation comes from Edmund Burke who told his electors in Bristol in 1774 that:

Forming government

After an election, the political party that secures the most votes in the House of Representatives is asked to form government. An essential characteristic of the Westminster system is that the government must be able to maintain the support of parliament (particularly the House of Representatives) on issues of money and confidence. The requirement for governments to retain the support of the parliament explains why very close elections that result in a hung parliament or minority government are particularly problematic. In that case, it is incumbent upon the government to advise the governor-general that they have the support of the parliament – which effectively means that they would survive votes of no confidence and would be able to get their budget passed.

Historically, at the federal level, Australia has had very few hung parliaments or minority governments. The first occurred in 1940 and the second happened 70 years later, when Julia Gillard’s Labor managed to win government on the back of the support of three independents and the Greens Party.^[14] In 2018, the Liberal–National Party (LNP) lost the Wentworth by-election. Until the 2019 federal election, the Morrison-led federal government held only 75 of the 151 seat House of Representatives. This made its relationship with the crossbench (the independents and minor party members) crucial, as every piece of legislation the government wanted passed had to be negotiated. Smaller parliaments with fewer members are more likely to have minority governments, as are parliaments where the lower house has multi-member seats.

The 2015 Queensland election result brought into focus the workings of the largely dormant constitutional mechanisms for forming government, as outlined below. It is significant to note the calm approach of the governor in awaiting the declaration of seats before inviting anyone to become the new premier.

Law making (legislation)

One of the principal functions of parliament is making laws. Laws are the guide for what we can and cannot do in our day-to-day lives. While the process of making new laws is technical, it is also often acrimonious and heated. For example, in 2017 the Victorian parliament passed laws to allow assisted dying, but not before more than 100 hours of debate occurred over various clauses of the Bill.^[16] The process of making laws begins when Bills are introduced, debated, amended and passed by each house or chamber or, in unicameral parliaments, by the single chamber. If the Bill is passed, it is given assent by the sovereign’s representative (the governor-general or governor) and, at that time, converted to an Act – a new law or an amendment to an existing law.

The legislative power of parliament extends to delegating legislative power to other bodies, such as the Governor-General in Council, so that those bodies can make laws called subordinate or delegated legislation. Regulations, by-laws and ordinances are all examples of subordinate legislation. The parliament, as a precondition to the delegation of legislative power, provides mechanisms by which subordinate legislation is monitored and, if a house decides, ‘disallowed’.

Financial appropriation

Just as we have to juggle to pay our bills, so too do governments. But, unlike us, governments need to seek authorisation from parliament first. They need to pass their budget in order to continue to pay for the services they are expected to deliver in areas such as health, education, police, defence and the upkeep of roads, for programs like the National Disability Insurance Scheme, or to provide drought relief or disaster assistance to suffering communities. Much of this money is collected through our ongoing taxes. To ensure it will be spent wisely, all governments need to inform and seek general approval from the parliament first.

One of the most essential constitutional legacies inherited from Westminster is the lower house’s control of public finances. The laws and controls can generally be summarised as follows:

• Tax cannot be levied without the consent of parliament through legislation.
• The executive cannot borrow money upon the public credit without legislative authority.
• While money raised by taxation and other revenue vests in the executive (usually the Crown), no money can be paid from the money collected without a distinct authorisation of parliament.
• Revenues collected are deposited in a single fund usually called the Consolidated Revenue Fund.

A Bill approving expenditure to be deducted from the Consolidated Revenue Fund is called an Appropriation Bill. There are usually also laws providing for the audit and account of public expenditure, including a requirement that at the end of each financial year the treasurer must forward a statement of all transactions of the Consolidated Revenue Fund and details of appropriation paid to each department to the auditor-general for certification.

If the parliament decides to block a government’s budget (this can be played out for an extended period of time as budget Bills bounce back and forth between the two chambers), the government will fall or a double dissolution trigger will be pulled. The most famous example of this process occurred during the Whitlam government’s term of office in the 1970s.^[17]

Confidence

A successful vote of no confidence means that the parliament no longer has confidence in the government. It is the parliament’s ultimate expression of power to withdraw its support for the government. Once support is withdrawn the government usually falls or an election is triggered.

Inquisitorial

Each house is able to inquire into all instances of alleged abuse or misconduct and institute inquiries with coercive powers in order to perform any of its functions and bring about reform. In practice, the inquisitorial function of each house is usually exercised through its parliamentary committees. Committees are made up of a specified number of members delegated a responsibility by the house and provided powers and immunities to conduct inquiries and report back to the house. In modern parliaments, committees are increasingly used to review legislative proposals, scrutinise the budget and conduct inquiries into areas that may need law reform.

Debate and grievances

An extremely important function of each house of parliament is to act as a forum to enable members to represent their constituents and allow the views and grievances of their constituents to be aired. The tabling of petitions is an example of this function, as is the time allowed for individual members’ statements at adjournment or other debates.

Scrutiny or accountability

Another important function of the parliament is scrutinising the policies and actions of the government of the day. This role is largely facilitated through an adversarial process whereby the lower house recognises an official opposition that puts counterproposals to the government and questions the government’s policies and administration. Procedures such as questions with or without notice to ministers and institutions such as the parliamentary committee system assist the parliament in its scrutiny role. The great paradox of the Westminster system of government is that because government is formed in the lower house based on it usually having a majority in that house, the lower house becomes less effective in making government accountable.

Procedures of parliament

Politics is a high stakes game. It is about power, and parliament is the foundation of that power. While a government needs to maintain support, part of the rules of the game, well understood by those in the parliament but less obvious to outsiders, is the adversarial nature of politics. Effectively, this means a key objective is to make life as difficult as possible for the other side. The other side, be that the government or the opposition, is after the same thing – to remain or become the government at the next election. The opposition enjoys formal status and power as the alternative government. It has equal time in parliamentary debates and in question time, it can seek meetings with the public service at certain times, and it receives public funding to resource offices and generally perform in its role.^[20] Thus the parliament is where government members stick together in a show of solidarity while opposition members do their best to highlight the government’s flaws.

The procedures are rules and customs that control how business is conducted and govern the behaviour of members. News reports on parliament tend to focus on question time which is where the theatre of politics is on display. The important thing to remember as you read through the various functions discussed in this chapter is that politics is about the fight and the procedures are about keeping the fight fair.

There are many procedures that set out the rules for how members should act towards one another. In each house the presiding officer (speaker or president), judges whether the rules have been broken. The speaker or president is assisted by a clerk, who is a permanent, non-partisan officer with a deep understanding of the rules and how they should be applied.

There are five sources of laws and rules that govern how the parliament goes about its work:

• Statutes, which determine the powers and composition of each house, and its rights and immunities.
• Standing Orders, which lay down the most important source of procedures – although they can be dispensed with by granting ‘leave’ or permission for the house to deal with something in an informal way, or to set them aside through a motion to ‘suspend’.
• Sessional Orders enable the House to do certain things that are not covered by Standing Orders. For example, Sessional Orders are passed on the first day of business of each session, setting out matters such as the days and hours of sitting, the order of business and time limits for debates and speeches.
• Rulings are made by the chairs of each house (the speaker in the House of Representatives or the president in the Senate). They are often interpretations of the Standing or Sessional Orders.
• Custom and practice provide the rules the house applies when there are no rules set down; for example, the rights of the opposition to ask first questions, address in reply and respond to a government’s budget (budget reply).

Privilege

Each house of parliament has certain powers, rights and immunities that are essential for it to operate effectively. These are often referred to as ‘parliamentary privilege’. The powers, rights and immunities include:

• the power to regulate the house’s proceedings through standing rules and orders, which have the force of law
• the right of free speech in parliament without liability to action or impeachment for anything spoken therein, including immunity of members from legal proceedings for anything they say in the course of parliamentary debates
• the power to call for persons, papers and things and to delegate such powers to committees of the house
• immunity of parliamentary witnesses from being questioned or impeached for evidence given before the house or its committees
• the power to punish for contempt those that improperly intrude on its privileges or fail to follow its orders
• the power to regulate the conduct of its members, including the power to suspend or expel them for misconduct.

Conclusions

The national and eight subnational parliaments in Australia have all adopted and adapted the Westminster system of government. Some Australian parliaments are unicameral. All are much smaller than the UK parliament, some having less than 25 members. All have different procedures for common mechanisms such as questions to ministers, petitions and the passage of legislation.

Despite their variations, the two most fundamental characteristics of Westminster government – responsible government and the ability of each house to ensure responsible government – remain at their core. Ministers are members of parliament and are responsible to the parliament for the matters that they administer. Cabinet, comprising the prime minster, premier or chief minister and other ministers, is also collectively responsible to the parliament. Each house of parliament has the power necessary to ensure that the executive remains accountable and employs devices such as estimates examinations, questions to ministers, orders for documents and general committee inquiries to achieve that accountability.

Parliament sits at the apex of our system of government. It is where the collective will of the people, expressed through elections, decides who governs us. It is where laws are made and the pros and cons of public policies are debated. While parliament is steeped in tradition, it is also an evolving institution, a reflection of who we are and what we wish Australia to be at a given point in time.

References

About the authors

Dr Tracey Arklay is a senior lecturer in the School of Government and International Relations and the program director of the Graduate Certificate in Policy Analysis at Griffith University. Her research interests include public policy, federal and state politics, parliamentary history and disaster management. She is the author of Arthur Fadden: a political silhouette (2014) and The ayes have it: history of the Queensland parliament 1957–1989 (2010, with John Wanna). She is a co-editor of A people’s federation (2017).

Neil John Laurie LLB LLM (Hons) MBA is the clerk of the Queensland parliament (Queensland) and was the deputy clerk and clerk of committees and research director of the Members’ Ethics and Parliamentary Privileges Committee from 1996 to 2003. He was admitted to the Queensland Supreme Court as a barrister-at-law in 1992. He has published extensively on parliamentary practice in the Australasian Parliamentary Review and The Table. His most recent publications include ‘Parliament, executive and the courts: laws of separation, conventions of mutual respect and outstanding flashpoints’ (2015), ‘Integrity and Accountability Review in Queensland’ (2010) and ‘Responsible government without an upper house’ (2009).