In understanding the role of the Australian constitution it can be disputed that the Australian constitution is highly significant in the operation of government. The Australian constitution is a set of rules by which Australia is run. It came into effect on the 1 January 1901. This document has been important in the shaping of Australian society. The Australian constitution describes the structure, role and powers of the federal government. It informs how the federal and state governments share the power to make laws. It also points out the important role of the executive government and how the high court depicts certain rights of Australian citizens. There has been significance case of breaches to the constitution which in turn have been …show more content…
rectified by its undeniable check and balance. In the first 3 chapters of the Australian constitution it explains the three largely separate groups in parliament , the executive and the judiciary. They play an manager role in Australian government. The power to make and administrate the federal law which is divided evenly between these three groups. The division is based on the doctrine of the 'separation of powers'. Under this Concept , the power to govern should be distributed evenly between the parliament executive and judiciary to avoid one of the groups having all the power. Each group should work within their areas of responsibilities so that each can keep a check on the actions of the others. Australia does not have to complete the separation of powers because some of the roles of the parliament, the executive and the judiciary all overlap. With example to the prime minister and the ministers are part of the executive and the parliament. High court judges, the prime minister and the ministers are appointed by the Governor General who is part of the parliament and the executive, to separation of powers works together with another concept known as responsible government to guide the way law is made and managed. A responsible government means that a party must maintain the support of the majority of members in the House of Representatives in order to remain in government. This gives another check on ensuring they remain accountable to the Parliament and do not abuse their power. The division of powers refers to the separation or allocation of law making powers to commonwealth and the state determined at the time of federation the division of powers incorporates 4 sections specific powers, exclusive powers, concurrent powers and residual powers.
Specific powers are the law making powers that are given to the commonwealth to make laws. They are identified under section 51 and 52 of the constitution. These law making powers are given to the commonwealth to makes laws for peace, order and good government of Australia. The exclusive powers are the ones specific to set laws, the exclusives powers are the only ones commonwealth can make laws for and the states cannot. These include areas of national concern such as immigration , defence and money. These law making powers are part of specific powers but they are considered and termed differently because the states are not apart of the legislation of them. The concurrent powers are set of law making powers given to the commonwealth, a number of these law making powers are also non exclusive as they share with the states, these are known as concurrent powers because both the commonwealth and the states have the authority to pass laws in those areas, these areas are marriage, divorce and bankruptcy. It is important to understand that if states made a law that conflicted with commonwealths law within the constitution states that commonwealth laws will always overrule that of the states. The residual powers are …show more content…
the law making powers which are not going within the Australian constitution. At the time of federation, colonies want to retain some of their law making and the power to not completely give up their legislative authority to the commonwealth. As such they retain a set of law making powers that each state can legislate based on the need of the states. These areas of law include Education, criminal law. People are allowed to test the significance and application of the Australian constitution.
It is their principal responsibility of the Hight Court of Australia to interpret the constitution and to settle disputes about its meaning. The High Court was established in 1903 and has the power to consider commonwealth or state legislation to determine whether such legislation is within the powers granted in the constitution to the relevant tier of government. The high court can make statement to legislation or parts of legislation that it finds it to be unconstitutional. Sometimes the high court is asked to decide whether it is the commonwealth government or state government which has the authority and responsibility to deal with a matter. At other times because the constitution provides specific limits to what the commonwealth government is delegated to do, the high court may be asked to decide whether a law made by the commonwealth government is within that power. Evolving interpretations of the constitution by the high court has resulted in a stronger law-making powers of the commonwealth without any changes to the worlds of the construction. Some important court cases have included the engineers case ( the amalgamated society of engineers v Adelaide steamship co Ltd (1920) 28 CLR 129) the Tasmanian dam case ( commonwealth v Tasmania
). On November 11 1875 the Governor General sir John Kerr dismissed Gough Whitlam, as prime minister and appointed Malcolm Fraser as a caretaker prime minister. This occurred be used a number of events resulted in the denial by the senate to pass the government budget bills in October 1973. Following the discharge a double dissolution election was held on the 13th of December 1975 at which Gough Whitlam was defeated. This was referred to as the 1975 constitutional crisis and it is one of the most significant domestic political events in Australia's history. This was an important case as it shows how the consequences of both governments and opposition having taking matters to extremes then letting the conflicts be settled with a course of an election. The evidence clearly states that the Australian constitution is the most beneficial system in place for our Australian government as it shows how the foundation effectively dictates the federal and state government and how it should should operate. Even though it has limit law making powers to the constitution the high court is very restricted and means it prevents states from infringing people rights and the inability for the Hight court to imply Rights it has great aspects to it which also allows the high court to ensure that the constitution is always up to date and with our democratic society it remains flexible. It also with the existence of the bicameral structure of parliament it help protects our rights. In the understanding of the doctrines of the D.O.P and the S.O.P it can clearly be argued that the checks and balances in place just outcomes in all legal producers in Australia with the high court to help reciting constitutional
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 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.
Concurrent powers-powers shared by the federal government and state government an example would be both the federal government and the state government are able to tax citizens
Nowadays, the Australian legal system has three powers, which are legislative, executive and judicial. Legislative power is in charge of making the laws; subsequently those laws will be passed to the executive power to administer the laws it...
Many would state that the constitution is not a living document and therefore, it does not change to meet the needs of the nation. One purpose behind this contention would be the constitution comprising no Bill of Rights. A Bill of rights is the arrangement of the most essential rights to the natives of a nation. Australia is the main Western popularity based nation with not a protected or elected administrative bill of rights to ensure its natives (Mchugh 2007). According to Lowitja O'donoghue, previous ATSIC Chair It says very little about what it is to be Australian. It says practically nothing about how we find ourselves here - save being an amalgamation of former colonies. It says nothing of how we should behave towards each other as human beings and as Australians. This in itself obviously depicts the incapacity of the constitution as a political rule of the country. A sample would be the situation law of Gradidge v Grace Bros Pty Limited (1988). There, a hard of hearing quiet in the Compensation Court of New South Wales obliged manual/visual dialect translation. The translator kept on translaing trades between the judge and the advodates throughout lawful submissions. She persevered in doing so notwithstanding the direction of the judge that the trades did not have to be deciphered. Her emphasis after deciphering everything that happened in the general population ...
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.
The Bill of Rights was first originated from England, where it asserts for constitutional protection for individuals, and lists different types of prohibitions on government power (Bill of rights institute, 2016). The action of how Australia became a Federation, it involved complicated constitutional conventions, and how the constitutional founders addressed the complications of enacting a Bill of Rights, they decided not to enact it. McClelland (2002, pg. 138) describes how there were proposals that were rejected to incorporate fundamental rights in Australia’s constitution. Australians basic right were protected by common law, however instead, it was a mixture of
Since the dawn of time for a society to work it needs to have a level of structure that applies to everyone and is understood by everyone. Australian legal system is broad and complex. It is the nature of the encompassing laws and regulations which reflect how people, organisations and governments behave on the many different levels of operation and these are created to make sure that everyone understands their rights and obligations. There are two sources of Law in Australia: Statute Law regulated by Parliament and comprise of legislations and acts; and Judge-made Law or Common Law where decisions made by judges are based on previous cases.
The United States Constitution was written up by delegates at the Constitutional Convention in Philadelphia, when many of the country 's leaders realized that the Articles of Confederation, the set of laws that the country had been following up until that point, were creating more problems than solutions. Once it was written, and approved and signed by delegates in 1787, it was sent to the 13 states for ratification. But many of the states saw flaws in the document, and refused to agree to it until changes were made. Both the writers of the Constitution and it 's critics were invaluable to the shaping of the final document. A few of the major flaws pointed out by critics were the lack of a Bill of Rights, the unlikelihood of one government ruling over such a widespread nation while remaining democratic, and doubt that such varied people would be able to exist under the same government without constant turmoil. The supporters of
The Australian Legal System has a rich and detailed history dating from 1066. Law is made in Parliament. We have four sources of law and three courts with different jurisdictions that interpret the law when giving out justice. Important doctrines act as the corner-stones of our legal system. There is a procedure in the courts for making appeals. Separation of powers exists between officials in the courts, the parliament and the Executive. Everyone in Australia is treated equally under the Rule of Law, no matter their office or status. The Law is always changing as society changes, but it can never be perfect and cannot please everyone.
The legislative, executive, and judicial branches represent the constitutional infrastructure foreseen by the Founding Fathers for our nation 's governing body. Together, they work to maintain a system of lawmaking and administration based on checks and balances, and separation of powers intended to make certain that no individual or embodiment of government ever becomes too controlling. America is governed by a democratic government or a democracy which is a government by the people, in which the power is established in the people themselves. The people then elect representatives who carry out their power in a free electoral system. The United States government’s basic claim is to serve the people and only through a combined effort can we
Unlike many other foundational documents written by other counties, the US Constitution has held strong from the start. The Constitution is at the center of our everyday lives and is the reason we are able to live with the freedom and security that we do. As the Constitutions author, contents, and effect on the US are evaluated it is very clear why America holds so strongly to the foundation the Constitution set in place.
One of the features of the Australian constitution is that is it structured in a way that in theory reflects the rule of law. This doctrine, the separation of powers, doctrine is assumed to be a fair structure of government as its principles suggest that power does not lie with one branch, but is spread out amongst the three (legislative, executive and judicial.
Under the current New Zealand legal system, there is no written constitution. Various elements including the Constitution Act 1986, the New Zealand Bill of Rights Act 1990 and the Treaty of Waitangi help to build our constitution. It is not in one supreme law document but instead is formed by a range of constitutional conventions, acts and documents . The three branches that make up New Zealand’s constitution are the legislature, the executive and the judiciary which are examined heavily within New Zealand’s Constitution Act 1986. By concentrating on New Zealand’s current constitution in comparison with the United States constitution, we can see how the power of the judiciary would compare in terms of its ability to act as a check on the other branches of the government under a supreme law constitution.