12/09/2023·1 min to read

Are we entrenched in our Parliamentary ways?

Regardless of who wins, it’s still accurate to say we’re in the final days of this government. Recently, Parliament amended its rules to alter how laws are made, how government should be scrutinised and other functions of Parliament. One of the amendments is to prevent future governments from entrenching policy decisions into law without appropriate safeguards.

On the last day of Parliament, the House of Representatives (House) agreed to make amendments to its Standing Orders (Parliament’s rules), which make some significant constitutional changes to Parliament's ability to make law.

The Standing Orders are the rules that govern how the House operates. Every Parliament, a selected group of members of Parliament (known as the Standing Orders Committee) looks at the Standing Orders and considers what changes and improvements may be made.[1]

This Parliament, one of the major changes was the proposal for entrenching legislation. Normally, legislation requires a simple majority to create, amend or replace any legislation. Entrenchment means that if legislation enacted with an 'entrenchment provision', it would place limits on how Parliament may amend or repeal that legislation. This is reserved for significant constitutional legislation, like electoral law matters.

In December 2022, entrenchment of legislation became an issue for Parliament. The Greens put in an amendment to the Water Services Bill into the Committee of the Whole House stage suggesting that a 60 percent majority would be required to make an amendment to a provision in the Bill. The House voted, by majority, in favour for that entrenchment “by mistake” and under urgency. It sparked public outrage. It required the Bill to go back to the Committee of the Whole House to fix that provision before it became into law.

The amendments to the Standing Orders means that, for a proposal for entrenchment to be considered before enactment, the proposal must have been considered by a select committee, which has called for submissions and reported on the proposal. The House also cannot consider the entrenchment provisions under urgency.

Our view is that this could help provide an important safeguard in Parliament to ensure that the current Parliament does not bind a future Parliament on policy matters. It also enables the public to comment on whether any entrenchment provision is a matter of constitutional importance and whether it should have restrictions for its amendment and repeal.

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Special thanks to Sarah Gwynn (Senior Solicitor) and Amarind Eng (Solicitor) for their assistance preparing this article.



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