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More handpicked essays just for you.
The Australian constitution
The effectiveness of law reform relating to native title
An example of aboriginal land rights
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Recommended: The Australian constitution
Introduction. The Commonwealth of Australia Constitution Act was enacted into force in 1901.
This Constitution fabricates a federal government system for Australia, making it a federation. It sees its political powers partitioned by a central i.e. Federal government and several state ones, with each government containing its own parliament as the ruling body. In addition to the Commonwealth of Australia Constitution Act, which acts as the federal governments set of laws, the six states, what the - Western Australia, South Australia, Queensland, New South Wales, Victoria or Tasmania, must also abide to a state-level body of laws, set upon by a state constitution act, that is separate to that of the Commonwealth Constitution. The states,
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To the individual and for most of modern Australian history, the state parliaments has a wider, more embracive power, for they cover more fundamental aspects of the law, such as health, education, organization of local governments, command transport and traffic networks, as well as managing local law-enforcement. The Federal parliament focuses on Australia as an entity, for it is what the states are comprised of as a whole, and thus focus on fixed subjects that keep the amalgamation of the states in good order, matters such as customs and border control, international affairs, country defense and also interstate trade. Al though the federal parliament has limited powers, and might not influence the individual in a tangible way as much as the state parliament would, the federal parliaments constitution, due to case law and constitutional interpretation …show more content…
For Britain did not have to purchase land nor take over it by conquest - two outcomes that would hold economical penalties to the crown. Also another settlement owned by the empire contributes to the common good of the British Empire, this colony would be of economic advantage to the British empire, having just lost America. Though many years later, a landmark example of case law sees the doctrine of terra nullius in Australia overturned by the High Court, which is the highest court in Australia . The case concerned the late Eddie Mabo, an indigenous Australian commence legal proceedings against the state of Queensland, in order for the law to recognize native title for Aboriginals and their land. The outcome of Mabo v Queensland saw the doctrine of terra nullius rejected by the High Court, who also overruled repealed the Milirrpum v Nabalco Pty Ltd, (1971) 17 FLR 141. The following year, parliament bypassed the native title act 1993, which allows indigenous Australians to apply to the federal court to
The milestone judicial decision in Cole v Whitfield pronounced a pivotal moment in Australian jurisprudence in relation to the interpretation of s92 of the Australian constitution. This essay will critically analyse the constitutional interpretation approach utilised in Cole v Whitfield. This method will be compared with the interpretational methods exemplified in Commonwealth v Australian Capital Territory. Although within these two cases there appears to be a preference towards a particular interpretational method, each mode has both strengths and weaknesses. Accordingly, the merit of each should be employed in conjunction with one another, where the court deems fit, complementing each other. This may provide a holistic approach to interpreting the constitution.
The roots of Australian laws are similar to traditional Aboriginal laws, dating back to before the Norman Conquest in 1066, where each separate village had their own laws developed to their own customs. This changed however, after a centralized legal system was established after 1066. A common law was formed, that applied to all of England. This was later combined with equity law and mercantile law, which is the basis of Australian law today, known as ‘statute law’.
The decision for Australia to adopt the Federal system was on the principle of which the State’s governments wanted to keep their power. For this reason there was the separation of powers between the newly formed Commonwealth government and the existing State governments. At a constitutional level, there are rulings in which the powers are separated, these rulings due to disputes have slightly changed since 1901. These changes all fell towards the one government, the Commonwealth (Federal) government. However this was not just a landslide event, the Constitution of Australia set up this imbalance of powers between the Commonwealth and State governments. We will explore this further in the points discussed later in this essay.
Australia's federation came about through a process of deliberation, consultation and debate. Before 1901 Australia did not exist as a nation. It was six British colonies, which were self-governed, but under the power of the British Parliament. The colonies were almost like six separate countries. In the 1880s there was so much disorganisation within this system, which caused a belief that a national government was, needed to deal with issues such as trade, defence and immigration saw popular support for federation grow.
The decision upheld the claims of five plaintiffs from Murray Island that Australia was occupied by Aboriginal and Torres Strait Islander people who had their own laws and customs, and whose 'native title' to land survived the Crown's invasion. Therefore, the court recognised the presence of native title as part of Australian common law.
The application of these laws in the real world has become a hot debate as to whether the Australian legal system is based on justice and fairness. This is strongly related to the judge-made laws. Judge-made laws or common laws rely on the doctrine of precedent. This means that the decisions made by judges in the courts are based on previous cases that have similarities with other cases. The decisions in the doctrine of precedent are normally based on the higher authority court decision.
For many years, the question of how adaptable and flexible the constitution is in Australia has been widely debated. As of now the atmosphere of verbal confrontation on protected change, has restored enthusiasm toward the issue in exploring whether the constitution is versatile and adaptable in meeting the needs of the nation following 100 years in being embraced.
Under the Native Title Act 1993 Aboriginal people can only claim title to vacant government owned land. They must prove a continuous relationship with this land when making a claim. The process it takes to gain native title is viewed by many as extreme. Should the process in Australia to Native Title claims be streamlined to allow Indigenous Australians the right to use of the land in a timelier manner?
A Constitution is a set of rules put in place to govern a country, by which the parliament, executive and judiciary must abide by in law making and administering justice. In many countries, these laws are easily changed, while in Australia, a referendum process must take place to alter the wording of the Constitution (Commonwealth of Australia, date unknown, South Australian Schools Constitutional Convention Committee 2001). Since the introduction of the Australian Constitution in January 1901, there have been sufficient proposals to alter and insert sections within the body to reflect the societal values of the day, ensuring the Constitution remains relevant to the Australian people. Although Constitutional reform can be made on a arrangement of matters, the latest protests on Indigenous recognition and racial references within the body of the Constitution has called into question the validity of racial inclusion, and whether amendments should be made to allow for recognition. This essay will focus on the necessity of these amendments and evaluate the likelihood of change through the process of referenda.
In 1931, Britain passed the Statue of Westminster which gave independence to the Australian parliament. Australia, however, did not ratify this law until 1942. As this law only applied the federal parliament, Britain passed the Australia Act, which gave independence to the states as well. The High Court of Australia is now the final court in deciding constitutional matters and the final court of appeal. Due to these laws, Australia has become an independent nation. However, it is believed that we are not truly independent due to our link with the British crown.
If those in power do not obey the social contract, the commonwealth has the right to create a new social contract so the state of nature does not prevail. The sovereign is entrusted with unlimited power, but must always act in a way that protects the people. Laws from the sovereign allow the commonwealth to not constantly fear death. Like principalities, sovereignty is allowed ultimate rule. It is similar to a republic in which the ruler has to abide by the will of the people.
An issue facing society is whether the Native Title Act 1993 (Cth), is sufficient in balancing the rights of Indigenous Australians and the rights of current land owners. To determine whether legislation is sufficient and fair, an investigation into the current societal view points needs to be considered by legislators, with an evaluation into the ways in which other societies cater to the needs of Indigenous land owners should be made. This information then allows recommendations and changes to be debated, to therefore to ensure more equitable legislation on land rights within Australia.
Federation is the joining of states to become one nation. The Australian government first considered federation in 1890 when premier Henry Parkes convinced other premiers to discuss federation in the Australasian Federation Convention. Australia finally federated in 1901 after many failed attempts at doing so. Australia finally federated because
The Effectiveness of Native Title The debate about native title issues has tended to see issues from idealistic perspectives ignoring the practical realities that native title poses to governments, industry and indigenous people. The implementation of the Native Title is an appropriate and significant aspect of Australia’s common and statute law, which effectively strives to develop a fair outcome for all Australian citizens. The Native Title Act 1993, like the court Mabo decision in 1992, transforms the ways in, which indigenous ownership of land may be formally recognised and incorporated within Australian legal and property regimes. The process of implementation, however, raises a number of crucial issues of concern to native title claimants and to other interested parties. These issues will need to be settled in court however, despite the many disputes between opposing stakeholders, the Australian Native Title effectively reaches the best and fairest possible outcomes for all Australian citizens.
In 1992, the doctrine of terra nullius was overruled by the High Court in the case Mabo v Queensland (No.2) [1992] HCA 23. After recognising that the Meriam people of Murray Island in the Torres Straits were native title landholders of their traditional land, the court also held that native title existed for all the Indigenous people in Australia prior to European contact. To make the legal position of landholders and the processes that must be followed in claiming native title clear, the federal government passed the Native Title Act 1993 (Cth). The Native Title, which was drafted in 1993, attempted to provide a fair and just method of dealing with land in the future. However one of the fundamental flaws of the native title system is that the concept of native title was based on the prejudiced principle that the Crown had the power to extinguish traditional indigenous ownership of the land. Although the government could have been able to amend the flaws of the Native Title Act following the High Court’s decision in relation to the Wik Case, which laid the rules for co-existence and reconciliation of shared interests in the land, they failed to do so. Amendments to the Native Title Act in 1998 undermined any benefits the Indigenous people could have received, and provided the already-powerful non-Indige...