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Appendix IV

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  THE WESTERN AUSTRALIAN PARLIAMENT: A LAW MAKING INSTITUTION[26]

The Western Australian Parliament is responsible for making laws for the peace order and good government of the people of Western Australia.  The legitimacy of Parliament as a law making institution derives from the fact that it is democratically elected body of men and women chosen by the people of Western Australia to make laws for the government of the state.  The Western Australian Parliament, like most jurisdictions in Australia, is comprised of two chambers, a lower house referred to as the Legislative Assembly and an upper house, known as the Legislative Council. Although there are slight differences in the expectations and powers afforded to each of the chambers, they are of equal significance to the law making process.

 THE SCOPE OF THE WESTERN AUSTRALIAN PARLIAMENT’S LAW MAKING FUNCTION

 The primacy of the law making function of the Western Australian Parliament is evidenced by the fact that approximately 50 percent of Parliament’s time is expended making, altering or repealing laws.[27]

 There are various rules and restrictions, both formal and informal, associated with the law making process. 

 Bills can be initiated by any of the members of Parliament although are typically introduced by Government Ministers.  Ministers sponsor approximately 80 to 90 percent of all Bills presented to Parliament.[28] This occurs because of the longstanding convention that the party or group of parties with majority support in the Legislative Assembly (i.e. the party in government) has the right to manage the legislative timetable.  As a general rule, all Bills commissioned by the Government must first obtain Cabinet approval before Parliamentary Counsel can commence work on drafting any new legislation or amend provisions within an existing statute. Any Bill that is not introduced by a Government Minister is referred to as Private Member Bill. 

 There are also few formal limitations on the right of either chamber to initiate legislation.  The only exception to this is Money Bills which, according to the terms of the constitution, must originate in the Legislative Assembly.  It is worth noting that although both houses of Parliament enjoy virtual parity in the law making process, the overwhelming majority of Bills are initiated in the Legislative Assembly.  For example, in 1999-2000 approximately 78 percent of new Bills presented to Parliament commenced in the Legislative Assembly.[29]

 There are some restrictions on the range of matters that the Western Australian Parliament can make laws on. The operation of the Federal Constitution imposes limits on the authority of the Parliament such as the prohibition on making laws in relation to the imposition of custom and excise duties.  Similarly, section 51 of the Federal Constitution lists a range of matters on which the Parliaments of the States can only legislate for provided their laws do not conflict with those of the Federal Parliament.  A list of these items is featured in Table 3. 

 Table 3

Concurrent Powers of the Federal and State Parliaments listed in Section 51 of the Federal Constitution

Trade and commerce with other countries, and among the States

Marriage

Taxation; but so as not to discriminate between States or part of States

Divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants

Bounties on the production or exports of goods, but so that such bounties shall be uniform throughout the Commonwealth

Invalid and old age pensions

Borrowing money on the public credit of the Commonwealth

The provision of maternity allowances, widows’ pensions, child endowment, unemployment, pharmaceuticals, sickness and hospital benefits, medical and dental services (but not so as to authorise any form of civil conscription), benefits to students and family allowances

Postal, telegraphic, telephonic, and other like services:

 

The service and execution throughout the Commonwealth of the civil and criminal process and the judgment of the courts of the State

The naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth

The recognition throughout the Commonwealth of the laws of public Acts and records, and the judicial proceedings of the States

Lighthouses, lightships, beacons and buoys

The people of any race for whom it is deemed necessary to make special laws

Astronomical and meterological observations

 

Immigration and emigration

Quarantine

The influx of criminals

Fisheries in Australian waters beyond territorial limits

External affairs

Census and statistics

The relations of the Commonwealth with the islands of the Pacific

Currency, coinage and legal tender

The acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has the power to make laws

Banking, other than State banking; also State banking extending beyond the limits of the State concerned, the incorporation of banks, and the issue of paper money

The control of railways with respect to transport for the naval and military purposes of the Commonwealth

Insurance, other than State insurance; also state insurance extending beyond the limits of the state concerned

The acquisition and consent of a State, of any railways of the State on terms arranged between the Commonwealth and the State

Weights and measures

Railway construction and extension in any State with the consent of that State

Bills of exchange and promissory notes

Conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one state

Bankruptcy and insolvency

Matters in respect of which this Constitution makes provision until the Parliament otherwise provides

Copyrights, patents of inventions and designs, and trade marks

Matters referred to the Parliament by the Commonwealth by the Parliament or Parliament of any State or States, but so that the law shall extend only to States by whose Parliaments that matter is referred, or which afterwards adopt the law

Naturalisation and aliens

The exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the States directly concerned, of any power which can at the establishment of this Constitution be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia

Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth

Matters to the execution of any power vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in the department or officer of the Commonwealth

 

 THE STAGES OF THE LAW MAKING PROCESS

 There are a number of stages associated with the law making process.  The first stage of the process consists of a Bill being introduced in one of the two houses of Parliament and ‘read for the first time.  The Chief Clerk merely reads the title of the proposed legislation and copies of the Bill are distributed to each of the members for their consideration. There is no debate about the contents of the Bill at this time. 

 At a later date, the member or Minister responsible for introducing the Bill outlines its contents in a speech to his or her colleagues.  This is known as the second reading of the Bill and is regarded as one of the most important stages in the passage of a Bill. It is at this point that members are afforded the opportunity to express their views about the merits of the proposed legislation under review and to debate the principles of the Bill.

 At the end of the second reading a vote is taken on the Bill.  If the Bill is passed by more than 50 percent of members the chamber is suspended and formed into a Committee of the Whole.  This process simply involves the Chairman of the Committee replacing the Speaker/President at the centre seat at the Clerk’s table. The transformation of the chamber into a Committee of the Whole is intended to permit discussion on specific amendments of the proposed legislation in detail.  There are, however, occasions where the chamber determines that it is not necessary to subject a Bill to the scrutiny of the Committee of the Whole, particularly if the Bill is non-controversial.

 In some cases, a Bill might be referred to one of a number of specialist Committees for further discussion.[30]  There are a variety of Committees established by Parliament to investigate legislation and any other matter or issue deemed to require special attention.  A committee typically consists of a small body of members who are charged with the task of undertaking a thorough examination of a particular matter and then reporting their findings to the relevant chamber. A list of Committees of the 36th Parliament is found in Box 2.

 Once the Bill has passed through the second reading stage it is followed by a third reading.  This is mostly a formality although it is not entirely unusual that there will be another round of debate in the chamber if the Bill is contentious. 

 When the Bill has passed through all three stages it is then dispatched to the other chamber for consideration.  The procedure for dealing with the Bill is virtually identical to that undertaken in the chamber which was responsible for its introduction.

If the other chamber does not consent to a Bill, or to amendments made by the other house, then the Bill is deemed to have failed.  This is because the approval of both houses is necessary in order for legislation to pass. There are no formal provisions in the constitution to settle disputes between the two houses of Parliament although there are ‘informal’ mechanisms to resolve disagreements between the chambers.   For example, if the two houses agree on the substance of a Bill but disagree over amendments, a conference of managers meeting may be convened.  This is a meeting of representatives from each of the two houses who attempt to resolve their differences via negotiation and compromise.

A Bill that has the approval of both houses of Parliament requires the assent of the Crown.  The Bill is normally presented to the Governor who assents to it in the name of and on behalf of the Crown.  Once this assent has been granted the Bill becomes an Act of Parliament.  For some categories of Acts these do not become operational until they have been officially proclaimed by the Governor and published in the Western Australian Government Gazette.

Table 4

Committees of the 36th Parliament of Western Australia

Name of Committee

Type of Committee

House

Anti-Corruption Commission Joint Committee

Standing 

Joint

Community Development and Justice Committee

Standing 

Legislative Assembly

Delegated Legislation Committee

Standing 

Joint

Economics and Industry Committee

Standing 

Legislative Assembly

Education and Health Committee

Standing

Legislative Assembly 

Environment and Public Affairs Committee

Standing 

Legislative Council

Legislation Committee

Standing 

Legislative Council

Procedure and Privileges Committee

Standing 

Legislative Assembly

Procedure and Privileges Committee (Legislative Council)

Standing 

Legislative Council

Public Accounts Committee

Standing 

Legislative Assembly

Public Administration and Finance Committee

Standing 

Legislative Council

Uniform Legislation and General Purposes Committee

Standing

Legislative Council 

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[26] Appendix 4 has been compiled using information obtained from Phillips, Black, Bott & Fischer (1998) and fact sheets produced by the Parliament of Western Australia.

[27] ibid.

[28] The Parliament of Western Australia Digest, Legislative Assembly, Perth, Volume 27, 1999-2000

[29] ibid.

[30] For more information on Committees of the Western Australian Parliament see the Western Australian Parliamentary website located at http://www.parliament.wa.gov.au