Development of Parliament in History

Parliament - Parliament were used by monarchs as an instrument of government

o Historically, Anglo Saxon kings were assisted by the Witenagemot = were a counsel of the wisest men of the Kingdom to assist the King (as monarch cannot rule a kingdom by himself)

o Witan were a small aristocratic body with greater powers – were not elected, but representative of all parts of the country

- Functions o To give advice to the Crown, as a monarch cannot rule a kingdom

by himself o to provide information on the interpretation of laws

- Function of Parliament primarily established through the Bill of Rights 1689 + Act of Settlement

o Idea of representative government emerged as early as Edward I’s Model parliament in 1295

o BUT Parliamentary democracy was limited in the modern sense up until the 18-19th C. Its composition and powers became a great concern because:

Parliament was represented by a group of elitists They Mainly protected property rights Small minority had a Right to vote And MPs did not represent the population distribution Concerns were emerging due to rapid change in nation:

industrialisation, population growth, new cities and twon development

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Parliament in Australia - is addressed in Chapter I of the Constitution (“The Parliament”) –

comprising of 60 sections - The Law-making powers of Parliament + its composition are outlined in s

1 of the Constitution, where it states that the legislative power of the Clth shall be vested in the federal Parliament consisting of the Queen, Senate and House of Representatives

Legislative Powers of Parliament- Clth Parliament’s legislative powers are specified in s 51 of the

Constitution, relating to a range of subjects and purposes (40 paragraphs) - i.e. areas over which Parliament can make laws

o Clth Parliament has exclusive legislative power specified in s 52, s 90 of Constitution in regards to excise, customs and bounties

- State Parliament have residual legislative powers i.e. powers not assigned to the Clth Parliament are therefore exercised by State declared by s 107 of Constitution

o this follows the model of the US Constitutiono Other jurisdictions in India and Canada, the cenetral legislature

(Clth Parliament) has the residual powers, not stateto Canada – assigns a specific list of powers to the Dominion

Parliament and a sepaarete list of exlusive powers to Provisinces - Concurrent powers there is a general arrangement of concurrent

powers, where State powers have the power to legislate even in areas where the Clth has a clear grant of law-making power

o Results in conflict between State and Clth laws o S 109 of Constitution: in case of conflict, Clth Laws shall prevail

Parliamentary Privilege

Section 49 of the Constitution gives the Federal Parliament the power to declare its own ‘powers, priviledges and immunities’.

The powers, privileges, and immunities of the Senate and of the House of Representatives, and of the members and the committees of each House, shall be such as are declared by the Parliament, and until

declared shall be those of the Commons House of Parliament of the United Kingdom, and of its members and committees, at the establishment of the Commonwealth.

Until such powers are declared, the effect of this provision was to attach privileges and immunities from the House of Commons in the United Kingdom to both houses of Parliament in Australia. Their purpose was it protect the integrity of the Parliamentary process, long regarded as part of the defining equipment of the legislature of a self-governing jurisdiction.Power in s 49 was exercised to codify these principles and enact Parliamentary Privileges Act 1987 (Cth).

What are these privileges, immunities and powers?

These privileges include: - Principal privilege is the right to freedom of speech and proceedings in

Parliament - Which ought not to be questioned or impeached in courts s 16 of the

Parliamentary Privileges Act builds upon this principle outlined in Art 9 of the Bill of Rights 1688 (UK)

o i.e. call into question the integrity or validity of (a practice): there is no

desire to impeach the privileges of the House of Commons.Immunities include:

- Members of Parliament cannot be sued or prosecuted for anything they say in debate in the houses.

Powers given to the houses are for the purposes of protecting the integrity of their processes:

- e.g. to adjudge and punish any person found to be guilty of a contempt of the house.

o The Committee on Privileges gets to make the judgment (not the Courts)

- power to compel the attendance of witnesses, the giving of evidence and the production of documents

Rationale for treating defamation of Members of Parliament as contempt: - to protect the dignity and good name of Parliament and its members, - to prevent published attacks which, by undermining the respect due to

Parliament as an institution and diminishing its authority, tend to obstruct or impede the Houses in the performance of their functions.

Judgment of R v Richards; Ex Parte Fitzpatrick & Browne - Fiztpatrick and Browne were sentenced to 6mnth imprisonment after Browne

wrote a defaming article about local MP, Labour Charles Morgan in a newspaper owned by Fitpatrick.

- Fitzpatrick and Browne applied for a writs of habeus corpus (i.e. an application to say that there has been an unlawful imprisonment)

- this application was not adjudicated by HCA because:

o it was a warrant on general terms therefore, Court could not adjudicate on this

o Court can only adjudicate if the warrant was on specific terms

Impact of Parliamentary Privileges Act: - Prior to Parliamentary Privileges Act, Parliament could issue warrants for

arrest on general terms for contempt of the House, which would not be subject to judicial review, indicating parliamentary sovereignty

- However, Parliamentary Privileges Act removes the obstacle to judicial review that High Court found in examining the writ of habeus corpus in R v Richards; Ex Parte Fitzpatrick & Browne

- Follows that any warrant for arrest made by Parliament for contempt will be subject to judicial review, as the Parliamentary Privileges Act states that the warrant must outline the particular matters that the House thought constituted an offence

- Nevertheless, s 16(3) of the Parliamentary Privileges Act merely clarifies what was always the effect of Art 9 of UK Bill of Rights 1688, which was that freedom of speech and proceedings ought not be impeached in Court

- cases like ∴ Prebble v Television New Zealand Ltd and Lawrence v Katter, emphasise the value of protecting the freedom of speech in Parliament

Eligibility for Election

- Clth legislation specifies who is eligible for election to the Federal Parliament (either HoR or Senate)– s 163 Commonwealth Electoral Act 1918 (Cth)

o Incls: 18+, is an Australian citizen, an elector who can vote at

House of Reps election - Disqualifying categories listed in s 44 of Constitution shall be incapable

of being chosen or sitting as a senator or member of HoRs- High Courts are constituted as a Court of Disputed Returns to hear:

o petitions disputing the validity of election results - s 353 – 354 Commonwealth Electoral Act 1918 (Cth)

o any questions of qualification for election – s 376

Disqualifying categories – conflict of interest Sykes v Clearly (1992)

- Facts: School teacher won the seat for Wills. However, he was still an officer under the eaching Service Act, as he was simply on unpaid leave

o the role of teacher (public servant) and role of HouseofMembers∴ were incompatible

o HIGH Court held that Clearly held an ‘office of profit under the ∴Crown’ within meaning of s 44(iv)

- the exclusion of Clth Public Servants from HofREps is similar to disqualifiying State public servants

- the risk of conflict between their obligations to state and their duties as a members of the House to which they belong incompatible roles

Accountability - Parliament is held accountable to its legislative powers through:

o Judicial Review o Elections

Judicial Review

- the prinicple of Judicial review, as espoused by Justice Marshall in Madbury v Madison is a fundamental means of ensuring the accountability of the Parliament - legality of their actions, safeguarding individual rights and promoting the rule of law.

- Although the Constitution does expressly confer a power on Australian courts to review primary legislation, is accepted as an ‘axiomatic’ part of our system, according to Fullagar J in Australian Communist Party v Commonwealth (Community Party Case).

- Implication: Any court, in particular the High Court, has the power to declare legislation to be unconstitutional and therefore void if the Parliament enacts a statute which is repugnant to the powers expressly or implicitly conferred in the Constitution.

o ∴ provides Courts with the jurisdiction to declare any Parliament enactments as void, if it is repugnant to the Constittution

- It is conferred implicitly in s 75 of the Australian Constitution, and explicitly in s30 of the Judiciary Act 1903 (Cth), providing the High Court of Australia with the jurisdiction to declare an Parliament enactments as void, if it is repugnant to the Constitution.

Elections – representative government

- A System of representative democracy is established in the Constitution - The notion of a representative government (Government chosen by the

people), is directly espoused in s 7 and s 24 of the Constitution, where it states that members of the Senate and the House of Representatives must be ‘directly chosen by the people’

- This requirement of popular franchise has been implemented by Commonwealth Electoral Act 1918 (Cth)

- Entitlement to vote given in s 91 (1)-(2) 18 years, Australian Citizen, appears on the Electoral Roll

- Limitations to vote in s93 (7)-(8) o (7) - holds temporary visa, or is a refugee o (8)- mentally unsound or has been convicted of treason/treachery and

not been pardoned o (8AA) –serving sentence of imprisonment for 3 years or more

- Voting is Compulsory at each election , as it’s a duty of every elector according to s 245(1) of the Commonwealth Electoral Act

o As Gummon and Bell JJ described in Rowe v Electoral Commissioner (2010), ‘compulsory attendance’ would be a more apt term to describe the voting procedure than ‘compulsory voting’, as s 245 does not compel an individual to make a choice and vote. One simply needs to attend the poll booth and deposit the voting paper in the ballot booth, to satisfy s 245.

Implied Right to Vote

Roach v Electoral Commissioner (2007)

Significance:

- - s 93(8AA) was invalid because that was inconcistent with the system of representative democracy established by the Constitution

- The Court held that voting in elections lies at the heart of that system of representative government and disenfranchisement of a group of adult citizens without a substantial reason would not be consistent with it.

Facts

- Vickie Roach, convicted of 5 offences in 2004, was sentenced to 6 years imprisonment

- She challenges the validity of amendment s 93(8AA) to the Elecotral Act which added that:

o A person who is serving a sentence of imprisonment for an offence against het law of the Clth or State or Territory is not entitled to vote at any State election or House of Rep elections

o In other words – ALL prisoners serving a sentence of full time detention were disqualified

Judgment:

- s 93(8AA) was invalid because that was inconcistence with the system of representative democracy established by the Constitution

Gleeson CJ

- the words ‘chosen by the people of the Commonwealth’ depends on the different circumstances at different times

- At this time, universal adult suffrage is a long established fact and anything less, would not be described as a choice of the people as required by ss 7 and 24 of the Constitution

- What, therefore, is a substantial reason to disenfranchise a group of adult citizens?

o An arbitrary exception, with no substantial reason for exclsion, would be inconsistent with the choice of the people

- What is the rationale for the exclusion of prisoners? o Imprisonment itself is not the basis of exclusion because there are

people in jail, who have no been sentenced for a crime (e.g. think bail) o Additional Punishment, by excluding them from a right to vote, is not a

basis for exclusion o Seriousness of the offence warrant temporary suspension of political

rights to vote Underpinning it is the idea of civic responsibility To be a

citizen, means who have reciprocal righst and obligations if you are civicly irresponsibly towards your obligations, your rights will be temporary suspended

- Therefore, the net of disqualification was cast too wide by saying all prisoners and went beyond the rationale for justifying a suspension of one of the fundamental incidents of citizenship.

- By contrast, the three-year criterion in the pre-2006 legislation did sufficiently distinguish between serious lawlessness and less serious but still reprehensible conduct:

o Thereforce disenfranchisement of prisoners in prison for >3 years is valid

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