Political Structure of Australia
- The Government of Australia is modelled as the major policy-making agency. Legal effect is given to Cabinet decisions by the Executive Council, a formal body presided over by the Governor-General. Queen of the United Kingdom is formally the Queen of Australia. The Governor-General, together with six state Governors, represent the Queen.
- Australia has a three-tier (federal, state and social) system of Government. At the federal level is the Australian Parliament (the legislature) and the Government responsible for all matters of national interest.
- At state level are six governments and their legislatures. In addition, the Northern Territory and the Australian Capital Territory (ACT), are structured similarly. Local Governments comprise about 900 elected city, municipal and shire bodies.
- Federal parliamentary power are defined in the Australian Constitution, which came into force on 1 January 1901. All parliaments, except those of Queensland, the ACT and the a Northern Territory have two chambers.
Parliament of Commonwealth
- Australia's federal legislature or Parliament consists of the Queen, represented by the Governor-General, the Senate (upper house) and the house of Representatives (lower house). The Senate and the House of Representatives are directly elected by the people.
- The Senate has 76 members who are known as Senators. The Senate is also known as the 'State's House' since each State, regardless of population, has equal representation.
House of Representatives
- The House of Representatives consi sts of 148 members. Each representing a single-member electoral Division. Each members of the House of Representatives is elected for a Division under an absolute majority system, where a candidate must receive 50 per cent plus one of the formal votes in a Division for election.
Parliamentary Privileges in U.K. U.S.A & Australia
- As the Parliament of the United Kingdom is considered to be the mother of Parliaments of the world, it will be in the fitness of things that we turn to the United kingdom to trace the genesis and development, through ages, of parliamentary privileges.
Parliamentary Privileges in United kingdom
- The House of Commons, originally the weaker body had a fiercer and more prolonged struggle for the assertion of its own privileged, not only against the Crown and the courts, but also against the Lords. What originate in the special protection of the king began to be claimed by the Commons as Customary rights, and some of these claims in the course of repeated efforts to assert them hardened not legally recognized 'privileges', which could be used by the Commons and against threats to their independence from any direction.
- The Commons, from the beginning of the fifteenth century at the latest, claimed their privileges as prescriptive and according to the 'custom of the realm,' and as based, like those of the Lords, on the law and custom of Parliament.
- In 1543, the Commons relied on their own authority to liberate one of their Members. At the end of the century the principle had been established that a matter concerning either House of Parliament ought to be decided in the House to which it relates and not elsewhere.
- The two Houses are, thus, of equal authority in the administration of a common body of privileges. Each House, as a constituent part of Parliament, exercises its own privileges independently of the other. They are enjoyed,however, not by any separate right peculiar to each, but solely by virtue of the law and custom of Parliament.
- In the United Kingdom, the privileges of Parliament have not been codified so far. There, the privileges of Parliament are based largely upon custom and precedents.No attempt has at any time been made in the United Kingdom to codify the entire law of Privilege. The privileges of Parliament in the United Kingdom consist, in fact, of rights acquired by custom or conferred by statute belonging to the House collectively or to its members as individuals and having for their object the freedom, the security or the dignity of the House of Commons; these privileges are declared and expounded by each House of Parliament and breaches of Privilege are adjudged and censured by each.Although either House may expound the law of Parliament and vindicate its won privileges, it is agreed that no new privileges can be created. In 1704, the Lords communicated a resolution to the Commons at a conference "that neither House of Parliament has power, by any vote or declaration, to create to themselves new privileges not warranted by the known laws and customs of Parliament" which was assented to by the Commons.
- On 5 July, 1966, the House of Commons appointed a Select Committee on Parliamentary Privileges 'to review the law of parliamentary Privilege as it affects this House and the procedures by which cases of privileges are raised and dealt with in this House and to report whether any changes in the law of privilege or practice of the house are desirable.' The Committee was reappointed at the beginning of the following Session and made its Report on 1 December, 1969. q The Report contained recommendations relating to the scope of privilege and the practice of the House with review the law of parliamentary privilege as it affects this House and the procedures by which cases of privileges are raised and dealt with in this House and to report whether any changes in the law of privilege or practice of the House are desirable.' The Committee was reappointed at the beginning of the following Session and made its Report on 1 December, 1969.
- The Report contained recommendations relating to the scope of privilege and the practice of the House with regard to alleged Committee's recommendations but on 27 January, 1977, referred them to the Committee of Privileges.The Committee's Report was debated on 6 February, 1978 when the house adopted the Committee's recommendation.
Parliamentary Privileges in the United States of America
- The United Kingdom and the United States of America have a common historical background. By the time the American Constitution came to be written, the two major privileges viz. freedom from arrest and freedom of speech, enjoyed by the Members of two Houses of Parliament of the United Kingdom, had been established, both by custom and by statue. The same two provisions were made for members of both Houses of American Congress,Senators and Representatives. Article 1(6) of the American Constitution postulates........ "They (the Senator and Representatives) shall, in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses and in going to and returning from the same."This provision corresponds broadly to the position in Britain in the eighteenth century.
- The privilege of freedom of speech, too, is enshrined in the US Constitution. According to the same Article (6): "for any speech or debate in either House, they (Senators and Representatives) shall not be questioned in any other place."
This is substantially the language of section 9 of the Bill of Rights. As in Britain, this privilege is held to cover anything said or done by a member of Congress in the exercise of his parliamentary functions.
- The British Parliament and the US Congress both enjoy broadly the same privileges. But, in Britain, a further power resides in each House of Parliament, namely, the power to arrest a person and punish him for contempt. Even if the order or warrant on which he has been arrested does not state the cause of his arrest, the courts of law will not look behind it nor inquire into the reasons why he was found guilty of the contempt. In such cases, it is presumed that the order of warrant has been duly issued unless the contrary appears on the face of it. In the United States, by contrast each House of Congress is circumscribed by the grant of powers in the Constitution, and such action as it takes has to be within the scope of those powers. The power to punish for contempt is restricted in this sense.
- Yet, the current attitude of each legislature towards its privileges and immunities is probably very much the same.
- At present, in UK Parliament, as in US Congress, there is a growing tendency to lean upon the protection of privileges as little as possible, and to exercise with restraint their considerable powers in the context of public criticism of their activities.
Parliamentary Privileges in Australia
- The Common wealth Parliament of Australia has not as such codified the law relating to privilege and contempt.Nevertheless, the Parliamentary Privileges Act, 1987 has brought about significant statutory concerning the privilege of freedom of speech.
- Australia's Constitution gives the Houses, their Committees and Members, until the Parliament otherwise declares, the powers, privileges and immunities of the United Kingdom's House of Commons and its Committees and Members as the time Federation (1901). This constitutional provision, in way, mirrored the provisions which applied in several other Parliaments in the Westminster tradition. It ensured that the Parliament operated with all the important privileges and protections that decades of Federation, few true privilege problems seem to have arisen- indeed it was not until 1944 that the House found it necessary to appoints a Committee of Privileges, and the Senate did not have such a Committee until 1966.
- In March 1982, a Joint Select Committee was established to review all aspects of the law and practice of parliamentary privileges. The issue of codification was examined in depth. The Committee first considered the question of just what powers, privileged and immunitites were needed by the modern Parliament. It did not recommend that a statutory code be drawn up, and it did not want to displace the basic link with the powers, privileges and immunities of the House of Commons. But it felt some changes were necessary. The Committee considered the area of contempts (or as it described them 'offences against the House') separately. The Committee recommended that each house should retain responsibility for the consideration of complaints of breach of privilege or contempt, although it recommended a number of procedural changes.
There had been extensive deliberations in the legislature over the codification issue. A view was taken that if legislation were to be introduced to reassert Parliament's view in this particular matter, opportunity should also be taken to give effect to those recommendations of the Joint Select Committee which needed to be implemented by statute. Accordingly, a Parliamentary Privileges Bill was prepared and, after consolation with interested Members, was agreed between the President of the Senate and the Speaker of the House. In a very unusual step, but one which signified the importance of the measure in institutional terms, the Bill was presented in the Senate by President, Mr. Mclelland on 4 June, 1986. It was passed by the Senate in October, and sponsored in the House Speaker, Mr. Child.It was finally passed by the House in March, 1987.
Parliamentary Privileges Act, 1987
- The Parliamentary Privileges Act 1987 of Australia includes the following provisions:
- The powers, privileges and immunities enjoyed by the Houses and their Committees and members by virtue of section 49 of the Constitution are to continue in force, except as expressly varied by the Act;
- A requirement that conduct does not constitute a contempt 'unless it amounts' or is intended or likely to amount to improper interference with the free exercise by a House of Committee of its authority or functions or with the free performance by a Member or the Member's duties as a Member-in other words a statutory threshold has been set;
- The traditional category of contempt by defamation is abolished;
- The Houses are given the powers to impose fines of $ 85,000 or 825,000 in the case of natural persons and corporations, respectively, and to imprison persons for up to 6 months;
- A defence of qualified privilege is provided for reports of proceedings;
- Statutory provisions for the protection of witnesses are established, with very substantial penalties;
- The immunities from arrest in civil matters and attendance before the courts as witnesses are reduced to sitting days and 5 days before and after sitting days, etc; and
- Doubts about the application of ordinary laws in Parliament House are removed (section 15).