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OUr parliament: 11. laws and bills

11.1 What is a law?

A law is a rule made by a parliament.

In Australia, different types of laws take effect across different areas:

  • Federal laws have effect across Australia and its territorial waters and must be obeyed by all people living in Australia.
  • State and territory laws have effect in the state or territory of their making and must be obeyed by people living in that state or territory.
  • By-laws have effect in the council area of their making and must be obeyed by the people living in that locality.

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11.2 What power does the federal Parliament have to make law?

The Australian federal Parliament makes laws for all of Australia according to the Australian Constitution, especially section 51.

Section 51 of the Australian Constitution lists the matters in which the Parliament of Australia can make laws. These include, but are not limited to:

EXAMPLES OF FEDERAL LAW-MAKING POWER
international and inter-state trade foreign affairs
taxation immigration
defence banking
insurance marriage and divorce
currency and weights and measures post and telecommunications
invalid and old age pensions

The Australian Constitution prohibits laws which give advantage to individual states (section 99) and which would create a national religion (section 116).

On some matters the Parliament of Australia is given exclusive powers—that is, state parliaments are prohibited from legislating in these areas.

On other matters the Parliament of Australia and the state parliaments have concurrent powers. This means that both the Parliament of Australia and the state parliaments may make laws about the same thing. If, however, a state law conflicts with a federal law then the federal law prevails (section 109 Australian Constitution).

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11.3 What power do state and territory parliaments have to make law?

Each Australian state and territory has its own parliament. Members of state and territory parliaments are elected to represent the people of that state or territory and to make laws about state and territory matters.

State and territory parliaments can make laws on matters that are listed in their respective constitutions including, but not limited to:

EXAMPLES OF STATE/TERRITORY LAW-MAKING POWER
hospitals schools
public transport police
wildlife protection emergency services
tourism roads and motor registration

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11.4 What power do local representative bodies have to make law?

There are over 650 divisions of local representation across Australia. These governing bodies go by many names including councils, shires, boroughs, cities and municipalities. Each division has its own council which is made up of councillors (also known as aldermen) elected to represent the people of that area and to make by-laws about local, town or city matters including, but not limited to:

EXAMPLES OF SHIRE COUNCIL LAW-MAKING POWER
sports grounds animal control
rubbish collection libraries
street signs traffic control
building permits footpaths and drains

The powers of local representative bodies are delegated to them through Acts of state parliament.

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11.5 What is a bill?

A bill is a plan for a new or altered law that is put before a parliament. Every year the Parliament of Australia considers and passes between 150 and 220 bills.

A bill does not become a law unless it is:

A bill passed by the Parliament and signed by the Governor-General is called an Act of Parliament. The Parliament can change, amend or even delete (repeal) an Act of Parliament.

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11.6 How are bills drafted?

Most bills are introduced to the Parliament by ministers who have responsibility for portfolios which relate to the bill. For example, the Minister for the Environment may introduce a bill about pollution, endangered species, preservation of habitats and the like, but may not introduce a bill about health matters.

Most bills are planned by public servants under the instruction of the minister responsible and with the help of a special group of lawyers who work in the Office of Parliamentary Counsel (OPC). The actual writing is done by the OPC using a brief from the minister’s department.

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11.7 What is the first reading of the bill?

The first reading of a bill occurs when the Clerk of the House of Representatives or the Clerk of the Senate reads the title of the bill aloud for the first time in that chamber.

The first reading is a formal stage in the passage of a bill through both chambers. The first reading immediately follows the introduction of the bill to the chamber either by the minister or a representative of the minister. At this point the bill becomes public and a copy of the bill is given to the Clerk to read aloud (the short and long titles of the bill).

The tradition of reading the (short and long) title of the bill aloud is based on English history, when most people were unable to read. The Clerk read for the benefit of those who could not.

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11.8 What is the second reading debate?

The second reading debate is the most substantial debate on a bill. The second reading debate is a formal stage in the passage of a bill through both chambers that usually occurs immediately after the first reading with the minister in charge of the bill making a speech which explains the purpose and benefits of the proposed legislation.

The debate is then adjourned after the minister has outlined the purpose and content of the bill. During the second reading debate members of the government and opposition (in both chambers) debate the bill over several days sitting of Parliament. The opposition may support the bill or may oppose it.

At the conclusion of the second reading debate, senators or members (depending on which chamber the bill is in) are asked to vote on the bill in principle; that is to vote in favour of or against the bill. If a majority of members or senators vote in favour of the bill, the bill moves to the next stage. If a majority of members or senators vote against the bill, the bill is defeated.

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11.9 What is a division?

A division is the separation of members or senators to either side of the chamber to vote for or against a bill, amendment or motion. A division enables a vote to be counted and recorded.

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11.10 What is the second reading of the bill?

The second reading of a bill is the point at which the Clerk of the House of Representatives or the Clerk of the Senate is called on to read the title of a bill aloud for the second time in that chamber.

The second reading of the title of the bill immediately follows a vote in the chamber for the bill to be read a second time and signals the agreement of a majority of members or senators in that chamber for the bill in principle. It signals the end of the second reading stage.

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11.11 What is consideration in detail and committee of the whole?

Consideration in detail and committee of the whole is the point at which members and senators (depending on the chamber that the bill is in) may examine each part (or clause) of a bill in detail. At this stage members or senators may propose, debate and vote on changes to the bill. They can also question the minister and seek clarification on specific details. An alteration to the wording of a bill is called an amendment.

Consideration in detail is an optional stage in the passage of a bill through the House of Representatives. Committee of the whole is a similar and optional stage in the passage of a bill through the Senate.

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11.12 What is the third reading of the bill?

The third reading of a bill is the point at which the Clerk of the House of Representatives or the Clerk of the Senate (depending on which chamber the bill is in) is called on to read the title of a bill aloud for the third time in that chamber.

The third reading is a brief but formal stage in the passage of a bill through both chambers. It follows the second reading stage and is triggered by a vote in the chamber for the bill to proceed. This vote is rarely opposed.

The third reading signals the agreement of a majority of members or senators in that chamber for the bill including amendments. The bill is then sent to the Senate if begun in the House of Representatives or to the House if begun in the Senate. Any amendments to the bill are incorporated in a reprint of the bill. If the bill has already passed the other chamber it is prepared for signing and passage into law by the Governor-General. The new Act includes a date on which the new Australian law is to start operating.

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11.13 How do the chambers differ in their law-making roles?

To make an Australian law, a bill (proposed law) must be passed by a majority of members in the House of Representatives and senators in the Senate and agreed in writing by the Governor-General. From this point the bill is an Act of Parliament. Although the House of Representatives and Senate share the law-making process, their roles vary.

The Australian House of Representatives is also known as the people’s house. It is characterised by:

  • government dominance:
    • the government is in the majority
    • the government introduces the majority of bills
    • the majority of bills begin in the House of Representatives
    • few bills are defeated but some are laid aside
  • debate on proposed legislation
  • committees that investigate issues as determined by terms of reference, or by negotiation with the government minister who has responsibility for that area of governance
  • attention to government policy led by the Prime Minister and alternate policy led by the Leader of the Opposition
  • money bills and bills which impose taxation which may not commence in the Senate
  • electoral representation
  • two major parties.

The Australian Senate is also known as the house of review. It is characterised by:

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