The Commonwealth Parliament

Introduction

The Commonwealth Parliament is the legislative branch of the Australian federal government, established by Chapter I of the Constitution (ss 1–60). Section 1 provides that “the legislative power of the Commonwealth shall be vested in a Federal Parliament, which shall consist of the Queen, a Senate, and a House of Representatives.” This bicameral structure reflects the federal compromise of 1901: the Senate (the “upper house”) represents the interests of the States, while the House of Representatives (the “lower house” or “popular chamber”) represents the people of Australia according to population. The Parliament sits at Parliament House in Canberra, the national capital, which was purpose-built to house the federal legislature following the establishment of the Australian Capital Territory in 1911.

The Bicameral Structure

The House of Representatives is the centrepiece of Australia’s system of representative democracy. Its members are elected from single-member electoral divisions on the basis of population, with each State and Territory entitled to a number of members proportionate to its population. Section 24 requires that the number of members in the House of Representatives “shall be, as nearly as practicable, twice the number of Senators.” This is the “nexus” provision, designed to maintain the relative size and influence of the two chambers. The House currently comprises 151 members, each elected for a maximum term of three years. The Prime Minister and other Ministers must be members of Parliament (or become members within three months of appointment), reflecting the Westminster system of responsible government.

The Senate comprises 12 Senators from each of the six original States (72 Senators) and two Senators from each of the mainland Territories (the Australian Capital Territory and the Northern Territory), currently totalling 76 Senators. Senators are elected by a system of proportional representation for a fixed term of six years, with half of the Senate retiring every three years. This arrangement was intended to make the Senate a “states’ house” that would protect the interests of the smaller States against the numerical dominance of the more populous States in the House of Representatives. However, the rise of party discipline has meant that Senators increasingly vote along party lines rather than State interests. Nevertheless, the Senate functions as a powerful legislative review chamber, and governments rarely command a majority in the Senate, necessitating negotiation and compromise.

Representative Democracy

The Constitution guarantees a system of representative democracy, requiring that members of Parliament be “directly chosen by the people.” In Roach v Electoral Commissioner (2007) 233 CLR 162, the High Court held that the constitutional requirement of representative government imposes limits on the Commonwealth’s power to disqualify persons from voting. The case concerned amendments to the Commonwealth Electoral Act 1918 (Cth) that disenfranchised all persons serving sentences of imprisonment. The Court held by a 4–2 majority that the Constitution requires a system of representative government and that the franchise is “the core of representative government.” While the Parliament could impose some limits on the franchise, a provision that disqualifies all prisoners, regardless of the length of their sentence or the nature of their offence, was held to be inconsistent with the constitutional imperative that the Parliament be “chosen by the people.”

The Double Dissolution Procedure

Section 57 provides a mechanism for resolving deadlocks between the two Houses. If the Senate rejects or fails to pass a bill that has been passed by the House of Representatives, and after an interval of three months the same bill is again rejected by the Senate, the Governor-General may dissolve both Houses simultaneously (a “double dissolution”). Following the double dissolution election, if the bill is again passed by the new House of Representatives and again rejected by the new Senate, the Governor-General may convene a joint sitting of both Houses, where the bill can be passed by an absolute majority of the total number of members and Senators. This procedure has been used on seven occasions, most recently in 2016 following the double dissolution over the restoration of the Australian Building and Construction Commission. The joint sitting has been convened only once — in 1974, when six bills were passed including the bill establishing Medibank, the precursor to Medicare.

Powers and Privileges

The Constitution confers on the Parliament the power to make laws with respect to the matters enumerated in ss 51 and 52. These powers are not exclusive — the States retain concurrent legislative power over most subjects, subject to s 109, which provides that Commonwealth law prevails in the event of inconsistency. The Parliament also possesses privileges necessary to its functioning. Section 49 of the Constitution provides that the powers, privileges, and immunities of the Senate and the House of Representatives, and their members and committees, shall be those of the British House of Commons at Federation, as subsequently declared by federal law. The Parliamentary Privileges Act 1987 (Cth) codifies these privileges, including freedom of speech in parliamentary debates (art 9 of the Bill of Rights 1689), the power to summon witnesses and require the production of documents, and the power to punish contempts. The Act also limits the capacity of courts to question proceedings in Parliament, reflecting the principle of parliamentary sovereignty within the federal framework.

Legislative Procedure

The ordinary legislative process involves the passage of a bill through both Houses. A bill may originate in either House (except for money bills, which must originate in the House of Representatives under s 53). The bill proceeds through several stages: first reading (introduction), second reading (debate on the bill’s merits), consideration in detail (clause-by-clause examination), and third reading (final passage). In the Senate, the procedure is similar, though the Senate may not amend proposed laws imposing taxation or proposed laws appropriating revenue (s 53), though it may “request” amendments. Once passed by both Houses, the bill is presented to the Governor-General for royal assent, which is usually granted as a matter of course.

Accountability of the Executive

The Parliament holds the Executive Government accountable through several mechanisms. The responsible government principle requires that Ministers sit in Parliament and answer questions during question time. The Parliament may establish committees to investigate government administration and policy. The Parliament controls the supply of money to the government through the appropriation process. And the House of Representatives may pass a vote of no confidence in the government, which if carried, may compel the Prime Minister to resign or advise a dissolution. The failure of the 1975 Whitlam government to secure supply in the Senate led to the Governor-General’s dismissal of the Prime Minister, demonstrating the critical importance of parliamentary accountability in the Australian constitutional framework.