Abstract
This article is a comparative analysis of the legislatures of Germany and Australia to provide a guide-point and approach towards the working these jurisdictions. There is effort to delve into every aspect of the functioning of the legislature through the study of the history and constitutions of both nations. An exhaustive study of the constitution of both nations especially regarding the functions, duties and powers of legislature, owing to the polity of both nations has been compared. There are certain correlations between the powers of the legislatures and distinctions elaborated in this article.
Legislature of Australia
BACKGROUND-
Prior 1901, Australia consisted of six partly self-governed colonies subject to British Parliament, became united on 1st January 1901. Several conventions were held to draft an Australian constitution; referendum was carried in each colony and then agreed by British Parliament. The six colonies became six states, creating a federation with features of both British and American polity i.e., Federal country with Westminster style Parliament where states transferred some law-making powers to the Parliament. Australia has elected members in both the houses of the Parliament i.e., Senate (Upper House) and House of Representative (Lower House).
Parliament of Australia basically has 4 primary roles-
- Making and amending federal laws.
- Keeping a check on the work of the executive.
- Providing a place where government is formed.
- Representing the people of Australia.
1. PARLIAMENT OF AUSTRALIA-
The Australian Parliament or the Parliament of the Commonwealth is vested with legislative powers[1] of the commonwealth consisting of the King represented by Governor-General, The Senate and the House of Representative, making Australia a Parliamentary Constitutional Monarchy. The federal character of Australian Constitution is apparent and also has developed from judicial interpretation. Governor-General appointed by His Majesty with the advice of ministers. Governor-General has and may exercise the commonwealth during the King’s Pleasure2, subjected to constitution and has such power and functions of the King as His Majesty may please to assign him. Governor-General form time-to-time appoints such duration for holding the sessions of the Parliament also by proclamation prorogue the Parliament or likewise dissolve the houses3. Within thirty days of general elections, Governor-General shall summon the Parliament. Governor-General may issue writs for general election or from proclamation of dissolution of the houses.
1.1 THE SENATE-
The Upper House of Australian Parliament has a unique feature amongst all democracies as The Senate consists of directly elected members4 contrary to indirect election as observed in other jurisdictions. It is composed of total 76 members, 6 members from each state and 2 each from National Capital Territory and northern Territory, such number can be changed by Parliament assuring there must equal representation for each state and such number of members shall not be less than 6 members. The method of election of Senator is uniform in all states and it is by a system of proportional representation as provided by constitution. The Half of Senators to retire very three years, after serving a term of six years which is the System of Rotation5. Such seats becoming vacant has to be filled by election one before of such vacancy arising.
1.2 THE HOUSE OF REPRESENTATIVE-
The House of Representatives consists of directly elected members6 by the people of the Commonwealth. The number of such members has to be in proportion to the population of that state. The Members of House of Representatives must be as practicable to be twice of the number of Senators. Currently there are 151 members in The House of Representatives. A Quota Formula is provided in the constitution for determining such members to be chosen from each state. The duration of The House of Representative is for three years7 and also can be dissolved before expiry by Governor-General.
2. POWER OF PARLIAMENT-
A) LEGISLATIVE TASK-
Parliament is entrusted with the legislative task of making laws, taking in to consideration and passing new laws and making changes or to repeal or renew the existing laws. Most the laws are introduced by the government but any member can introduce the law. Mostly, Bill (Proposed Law) must be passed by both the houses. The Parliament has power to make laws w.r.to. Peace, order and good governance8 which consist of 39 subject matters.
The Parliament has exclusive powers regarding the seat of government9a, all properties acquired by the Commonwealth for public purpose9b, concerns regarding public service transferred to the Parliament and other such matters under the constitution. House of Representative has exclusive powers regarding the introduction of bills of appropriation of revenue and taxation10. Money bill is only introduced by the recommendation of Governor-General.
The Senate does not have powers to propose any amendments or increase charges or burden on people, it can only suggest changes which House of Representative may or may not consider. Relating to ordinary bills, Senate has equal powers vis-à-vis House of Representative. Limitation under such proposed money bill is that the proposed law must only contain such matters of appropriation of revenue or taxation and no other provisions, hence, such proposed laws do not have status where only House of Representatives can vote11.
A unique feature in the Australian Constitution is that, when there is dispute between both the houses over a proposed bill, The Governor-General can dissolve both houses simultaneously a process of ‘Double Dissolution’12 prior to the elections of full membership.
B) FINANCE AND TRADE-
Parliament has exclusive powers regarding the imposition of constant rate duties of customs, excise and bounties on exports of goods or production13. State government can provide aid or bounty for manufacturing or export of goods with the expressed consent of Parliament. Parliament also may provide financial assistance to the states on the terms it deems fit. For the smooth functioning of trade and commerce, parliament has powers to make laws relating to transportation (including navigation and shipping) and railways throughout the nation. By enacting any such laws, parliament is not to give preference to any state or any part of it, such promotion and facilities must be uniform as far as practical. Further Parliament, by any laws cannot abridge the right to use water for reasonable purpose like irrigation or conservation of any state or residents. Parliament by law can establish the ‘Inter-State Commission’ for maintenance and execution of trade and commerce. Further The Parliament can take over public debt of states or any portion of it14. The interest payable for such debts wills deductible from the surplus revenue which is to be distributed among the states.
The Parliament can enter into agreement with the states regarding such public debts for taking over of such debts, its management, payment of interest, its consolidation, renewal, conversion, and redemption, indemnification and borrowing from the states.
C) COMMONWEALTH AND STATES-
- States laws when are inconsistent with the Laws of the Commonwealth, the laws of Commonwealth prevails and state laws are invalid only to the extent where they are inconsistent15.
- States, after uniform levying of customs duties, states may levy such charges on import or export, or on goods passing through the state for execution of laws of the states and such net revenue of all charges to be for the use of the Commonwealth. Parliament can annul such laws imposing abovementioned charges by the states16.
- Further the laws of Commonwealth, Public Acts and records and judicial proceedings of any states.
D) FORMATION OF NEW STATES-
The Parliament can establish or admit new states and, on such admissions, or new formation, parliament has power to extent the representation of newly formed states to both houses of Parliament. New states can be formed by separation of territory from existing states or by merging territories of two or more states or any part of states. This can be done only with the consent of the respective states’ legislature and by referendum in the states which are affected.
- In additions, States cannot maintain cannot impose taxes on the properties of the Commonwealth simultaneously, Commonwealth also cannot impose taxes on the properties of the states. States also cannot issue coins except for gold and silvers coins as legal tenders.
- As limitation to the powers of Commonwealth, is that it cannot make laws relating to observation of any religion, or establishing any religion or making any religious a condition as a criterion for public office or pubic trust which Commonwealth maintains. Commonwealth has duty to protect every state from invasion and also against internal disturbance when applied.
E) AMENDMENT TO CONSTITUTION-
Power to constitutional amendments is subjected to certain procedure. The proposed law w.r.to amending the constitution may originate in any house of the Parliament. It has to by absolute majority in both the house. Further it is to be submitted to the electors of each state and territories of Australia. Such proposed law is then subjected to referendum in states. There must be double majority of the electors and also majority in national voting only then such proposed is presented for the assent of Governor-General17.
LEGISLATURE OF GERMANY
BACKGROUND:
Along with other countries in Western and Central Europe, Germany shares borders with Denmark to north, the Czech Republic and Poland to east, Austria and Switzerland to the south. A constitutional, democratic, federal, and social state is the Federal Republic of Germany. The Federal Constitutional Court upholds the fundamental rights as well as the notions of a democratic, federal, and civil constitutional state as the unalterable foundation of the German constitution.
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17. Commonwealth of Australia Constitution Act, 1900, Chapter VIII, S 128.
Germany is a federal state with 16 Länder as its constituent parts. As a result, there are federal laws that apply to the entire territory of the Federation and land laws that are only applicable in the relevant Land. Each Land has its own constitution and the authority to enact laws, statutory instruments, and bylaws within the boundaries of the Basic Law.
The 1949 Constitution that currently rules Germany is a substantially modified rendition of the Constitution for Germany, 1949. The German Basic Law has a uncommon history since it was influenced by occupying foreign countries when it was created following World War II. Although the German government's institutions were totally destroyed, the Reich government technically continued to exist after the Second World War.
3. PARLIAMENT OF GERMANY-
The federal parliament of Germany is called Bundestag. The German people directly elect only one federal representative body.18 It is comparable to a lower house of Parliament like the Lok Sabha in India or the House of Commons in the United Kingdom. The legislative branch of government is the focal point of any parliamentary system. Germany's parliament is bipartisan.
The Bundesrat (Federal Council or upper house) and the Bundestag (Federal Diet or lower house) and are the two houses. Legislation can be started by either chamber, and for most Bills to become law, they need to be passed by both houses as well as the executive branch. The Bundesrat is not required to approve legislation on subjects that fall under the sole purview of the federal government, like in international treaties.19
3.1 BUNDESTAG: -
One of the two legislative bodies that make up the Federal Republic of Germany is the Bundestag. The lower house is known as the Bundestag, which is elected via universal suffrage utilizing a system of combining direct and proportional voting. Members hold office for four years20. It is the lower house of German’s parliament. There are at least 598 members in the German Bundestag. The first of each voter's two votes, which is voted in favor of one of the lists of nominees put forth by the political parties in each of Germany's Lander, or federal states, determines the election of half of them directly in the 299 constituencies, while the other 299 Members are chosen based on the second vote (Section 1 of the Federal Electoral Act).
The results of the second vote determine the parties' relative strength in Parliament, which in turn defines the makeup of the Bundestag. Parties are only taken into account when allocating seats if they received minimum 5% of the total 2nd round votes cast or won at least three electoral unit seats.
The role of the Bundestag is to create a majority that permits an elected government to assume office and rule throughout the electoral cycle. It is in charge of examining what the government and other executive bodies are doing. Additionally, the Bundestag is given a key role in the federal legislative process and in the budget approval process. The German Bundestag is typically recognized as the most significant body in Germany's political opinion-forming and decision-making process because of this exceptional status.
The parliaments of the Federal Republic of Germany are responsible for creating laws. Therefore, the most significant legislative body in Germany is the Bundestag. In a legislative procedure that also involves the Bundesrat, it makes decisions about all laws that fall under the purview of the German Federation21. The German Bundestag's members and parliamentary groupings have the same right as the Bundesrat and the Federal Government to introduce new or amended items of legislation as bills in the Bundestag. Such bills go through a carefully regulated process of debate, consideration, and voting in Parliament.
In addition to serving as a legislative body, the Bundestag has another crucial duty as a directly elected body: scrutinizing the Federal Government. The representatives of the Bundestag must be capable to educate themselves on the activities and goals of the government in order to be able to carry out this oversight responsibility. They can accomplish this by using a variety of rights and tools, including minor and significant interpellations and debates on current events.22
3.2 BUNDESRAT: -
One of the two legislative houses that make up the Federal Republic of Germany is the Bundesrat. The Upper House primarily acts as an advisory body as the popularly elected Bundestag retains political power, although its passage is required for an ordinary laws and regulations also that for changes to the constitution. It is made up of representatives from the Land (Federal unit) governments, with the number of delegates from each Land being based on the population of that Land. The Bundesrat represents the Länder in federal legislation (states).
With the expansion of federal legislation at the expense of state legislation, the influence of the Bundesrat has increased throughout time. In exchange, the number of laws that must have Bundesrat approval was also increased. Members of the Lander governments make up the Bundesrat, or upper house, which represents state interests. Each Lander may cast three to six votes in the Bundestag23, depending on population. Each Lander casts one vote, which is counted as a block. Members must be present to cast a ballot. A bill passed by the Bundestag might need the approval of the Bundesrat24. The Bundesrat may still disagree to a bill even if it does not need its approval; however, the Bundestag may overrule any objections.
The main responsibilities of the Bundesrat are elaborated in the Basic Law i.e. The Länder to have representation through the Bundesrat in the Parliament and administration of the Federation and in matters relating to the European Union.
The Bundesrat serves as a liaison between the Federation and the Lander in addition to acting as a check on the Bundestag and the Federal Government. The 16 constituent federal states (the 16 Länder) and the state as a whole (the Federation) are both represented by the Bundesrat. The Bundesrat is not limited by the Basic Law to just representing the interests of Länder. Instead, the Bundesrat is equally accountable for all federal policy. This is made evident when we take into account the fact that the Bundesrat also considers objection bills, or more specifically, those laws that do not materially harm the interests of the federal states. This idea has been upheld by the Constitutional Court on numerous occasions. In response to parts of this legislation for which the consent of Bundesrat is not expressly required, this means that the Bundesrat may also reject a measure.
The Bundesrat has a broad right to information from the Federal Government, participates in establishing the state of defense25, and serves as a "reserve of legality" in times of legislative emergency. These actions are all examples of how the Bundesrat is responsible for the entire state. By performing these duties, the Bundesrat demonstrates that its responsibilities go far beyond only defending local interests.
4. DISTRIBUTION OF POWERS: -
One of the tenets of German democracy, the division of powers, is enshrined in the Basic Law. Legislative, executive, and judicial branches each have a portion of the state's authority, and together they are meant to check each other and keep the government’s power in check. According to the doctrine of the separation of powers, the Bundestag is Germany's highest legislative body. Standing next to it is the Judiciary represented by the federal and land courts and the Executive, represented by the federal government26.
5. BILLS AND PASSAGE OF LEGISLATIONS: -
The right to introduce legislation for the Bundestag to consider belongs to the Federal Government, or the Bundesrat, the Lander27 through which engages in federation lawmaking and administration, and the members of the Bundestag itself (right of initiative). Bills introduced by Members must have the support of at least 5% of Members or by a parliamentary group. The Federal Government introduces about two thirds of the Bills. The Government and its civil employees should design the laws that this legislative majority wants to pass in a substantive and technical manner. A bill cannot be rejected in parts; it can only be accepted or rejected in full. It is technically permissible for the Bundestag to divide a measure into two independent pieces of legislation: a bill that requires Bundesrat consent and a bill that does not, depending on whether Bundesrat consent is truly only required for a few specific sections. The measure may be subject to an objection from the Bundesrat that does not require consent, albeit the opposition may be overruled by the Bundestag.
The government may then reply with a written counterstatement once the Bundesrat has had six weeks to offer its opinions on the bill. The Chancellor then sends the bill, together with the Bundesrat's remarks, to the Bundestag28. The proposed finance bill, which is sent to the Bundesrat and the Bundestag at the same time, is an exception to this procedure.
A bill must first be sent to the President of the Bundestag before it is registered and printed by the Administration. Only then can it be discussed in the Bundestag. It is then given out to every German Bundestag member, every Bundesrat member, and every federal ministry as a printed Bundestag document. In the Bundestag's plenary, bills are typically discussed three times during these readings. A debate only takes place at the first reading if it has been authorized by the Council of Elders or requested by a parliamentary group. The main objective of the first reading is finding the relevant committee or committees to review the bill and get it ready for the second reading.
Each Member receives a printed copy of the published suggestion for a decision prior to the second reading. They are consequently ready for the discussion. All of the bill's provisions may be individually considered after the general discussion. However, the plenary typically goes right into a vote on the entire bill. Further discourse is only held during the third reading if this is applied by a parliamentary group or by minimum 5% of the representatives of the Bundestag. After the third reading is complete, the final vote is taken. The Representatives of the Bundestag reply by getting up from their seats when the Chair of the Bundestag calls for the votes in support of the measure, votes oppose to it, and to withhold it. The Bundesrat receives a bill as an act once it has passed the Bundestag with the required majority29.
Before a law may become effective, it must pass through a number of further processes after being adopted by the Bundestag and the Bundesrat. The Federal Chancellor and the responsible federal minister get printed copies of adopted acts and countersign them. The act is then delivered to the Federal President for enactment. He or she can verify to see if the proposed law was passed is consistent with the constitution and is free from material Basic Law violations on face. The Federal President then approves the Act and directs that it be published in the Federal Law Gazette after these checks have been completed. The Act is now officially in effect as a result. The Act by procedure elaborated comes into effect on the 14th day after it is published in the Federal Law Gazette if no specific date is mentioned in the act for its coming to effect.
6. Amendments-
Such amendments to the basic can be brought with two-third majority in Houses expect where it affects the division of Federation into Lander, their participation in the legislative actions or affecting the basic rights mentioned from Article 1 to 2030.
COMPARATIVE STUDY OF TWO LEGISLATURES-
Republic and Crown- Polity of both Germany and Australia is that of federation where there is sharing of powers between the Federation and States. Germany is a federal republic having a ceremonial constitutional head i.e., a President. Australia on other and is constitutional monarchy as the King Charles III as its head, represented by Governor-General in Australia. In both countries, the real executive powers lie with the Council of ministers headed by Chancellor and Prime Minister respectively. The federal unit i.e., the Lander (Germany) and the States (Australia) have powers to make laws relating to their subject-matters. In both jurisdictions, where the states’ or the Lander’s law are in conflict which each other, the Federal law persists.
Bundesrat and The Senate- Upper house of German Federal Legislature consists of members elected from the Landers having the lander’s representation, election of those are by indirect means. In the Senate of Australian Parliament, the members are directly elected from the states. Certain members of Upper House in each country retire after serving respective term, but the Senate can be dissolved under certain conditions whereas Bundesrat is a permanent House. The Upper House in both the nations has role of checking the working of Federal government and has equal powers in passing of ordinary laws. In other matters, the Upper House has limited powers. There is provision for joint sitting of both the houses to clear any deadlock. Comparatively, lower house in both the jurisdiction enjoys more powers than the Upper House.
Emergency- Germany has exclusive mention of emergency provisions in its basic law where for instance Federal Government can pass laws relating to matters for which state government can make laws and other such provisions whereas under Australian Constitution, there is a duty of Commonwealth to protect the states from invasion and also from internal disturbance.
Conclusion-
Owing to history and location of the both the nations, where, Australia under British rule has great influence from its legislature, culture and language, having a migrant European population, great difference in geographies, making it a modern state, whereas, Germany has a prolong historical development of its society, culture and language. The Constitution of both the nations thus came to existence owing much to their history, accommodation their respect needs providing some similarities and simultaneous making certain aspects unique. The comparative analysis of both the nation’s constitution, provides deep insights in the working of various organs of the state and provides benefit not only these nations also for the other nations to evaluate their functioning.
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