Challenges To The Australian Constitution

The Australian Constitution is a rich amalgam of various classical political principles. The concepts of the Rule of Law and the doctrine of the Separation of Powers evident in Montesquieu’s Spirit of the Laws are both salient examples of political theses that are central to Australian Constitutional Law. The structure of the Constitution itself and decisions of the High Court of Australia unequivocally validate the entrenchment of the doctrine separation of powers in the Commonwealth Constitution . In particular, the High Court has applied this with relative rigour with respect to the separation of judicial power. The separation of the judicial power is fundamentally critical to upholding the rule of law. The High Court in Wilson v Minister for Aboriginal Affairs noted that “the separation of the judicial function…advances two constitutional objectives: the guarantee of liberty and, to that end, the independence of Chapter III judges” . Kitto J in R v Davidson also identified that the judiciary should be subject to no other authority but the law itself . This is a critical aspect ensuring the concept of legal equality is upheld. Therefore, its role clearly extends to providing checks and balances on the exercise of power by the legislative and executive arms of government . This ensures the liberty of the law and limits the abuse of the judicial system. Judicial Power is defined as “the power which every sovereign must of necessity have to decide between its subjects

Hollander, R. And H. Patapan. 2007, ‘Pragmatic Federalism: Australian Federalism from Hawke to Howard.’ Australian Journal

In determining the constitutional validity of a law, one must first look at whether or not the Commonwealth has the ability to create the law in the first place. Section 51 of Australia’s Constitution outlines

Based on this classification, Evans argues that apart from its formal headship, all of Australia’s institutions exercising public power are ‘modern republican’. His comment suggests that in addition to following Montesquieu’s doctrine of separation of powers, which seeks to divide the power of the government into three separate institutions, the Australian system also distributes power through a system of checks and balances. However, unlike the American Constitution of 1787, which, as table 1 and figure 3 demonstrates, divides the judicial, the legislative, and the executive into three relatively separate institutions that are “confined to the exercise of its own function”, Australia’s system of “rule from above” has led to what a former Vice

His Honour reasons that if the Commonwealth’s argument was upheld, there would be a drastic encroachment onto many areas of state law making power. Such areas could include healthcare and education, as many of these areas are becoming, if not already incorporated. This contention seems logical. There are very few areas of law that have not been incorporated in some manner already, and with state governments often outsourcing or privatising to fund projects, there would be almost limitless scope to the commonwealth’s law making abilities under the corporations power. Additionally, with the High Court’s broad interpretation to the meaning of “trading corporation” in s.51(xx) by using the “object of command” test , it would be very easy for the federal parliament to further extend its

The Commonwealth of Australia Constitution Act (Constitution) has to support the implementation of the Act and/or its purpose without affecting the rights of the State law, what also needs to be taken into consideration is the "nature of the ri7lghts, duties, powers and privileges which it changes, regulates or abolishes" Fairfax v Federal Commissioner of Taxation (1965) 114 CLR 1.

The federation of Australia was the development by which the six separate British self-governing colonies of New South Wales, Western Australia, South Australia, Victoria, Tasmania and Queensland united together and formed one nation. The constitution of Australia came into force on the 1st of January 1901. There are many pragmatic and ideological reasons as to the cause of federation within Australia, which will be discussed in further detail and depth. The pragmatic causes that will be discussed include trade and transport, defense, and immigration. The trade and transport issues relate to

There are two important questions towards which your attention ought to be directed. You must have heard something of the Federal Council, on which NSW has not yet taken a place. It sat in Tasmania and held sessions which never appeared to interest any one. But if we are to carry out the recommendations of General Edwards on matters military, it will be absolutely necessary for us to have a central authority, which could bring all

The Commonwealth has primarily relied on s 51(xxxv) of the Constitution for its industrial relations laws. However, the they wanted to expand their legislative power by relying on s51(xx), the corporations power, to circumvent the limitations of s51(xxxv).

In Australia, the current legal system built around the British Parliament is one of complexity and order. It regulates the way the population functions, serving as a structure of laws informing what people can and can’t do. Established on the 1st of January, 1901, the Commonwealth of Australia was made with a constitution forming 3 branches of government; the executive, legislature and judiciary. This became the foundation of how the law would be created, enforced and interpreted depicting how society would be controlled. In reference to commercial law which revolves around business activity, the commercial world is concerned strongly with law of contract, law of agency and consumer law. Interacting with this idea is also the role that morals and values play in society and how heavily they influence the way in which disputes are resolved. This prompting

The members of COAG are the Prime Minister, state and territory Premiers and Chief Ministers and the President of the Australian Local Government Association (ALGA). The COAG plays an important role in promoting policy reform which involve Federal and State/Territory governments. The COAG undertake major reforms to Australia’s economy. The Intergovernmental Agreement on Federal Financial Relations (IGAFFR) is the basis for intergovernmental fiscal relationship which was agreed by the COAG. The financial relations framework which was established under the IGAFFR focuses on the achievement of policy objectives that involve all States and Territories (COAG,

The reason of the High Court heard the New South Wales v the Commonwealth case is that in section 76 of the Constitution, it clearly states that: "Parliament may make laws conferring original jurisdiction in the Supreme Court in any matter (i) Based on this Constitution or involving its interpretation. " The High Court had to consider section 51 (xx) of the Constitution in this case. The meaning of section 51 (xx) is the regulation of the activities of companies such as directors of the company, which could be regulated by this too. This section could also be seen as a protection of corporations.

Compared with china, Australian government’s role is limited. As an individualistic regime, observed by O'NEILL (2010), government’s core tasks is to protect property, enforce contracts and keep an open and fair play environment for business competition. It is essentially separate form business and only intervenes when it is required. Therefore, despite Australia government still carries great weight in managing its economy, it is far from a dominant force. Even though over time, the magnitude of its power and influences fluctuates, at most, it has never been in a supremely authoritative position as Chinese government has. Mostly, it is just a player in game, competing and cooperating with private sector. These two players take ascendancy in turn.

The Constitution divides law-making powers between the Sate and Federal governments. Most of the Commonwealth’s powers are set out in Section 51, where it establishes 39 areas where the Federal Parliament are able to create laws. The law making powers are also held by the State Parliaments, meaning they can also make laws. The areas in which they both can create and make laws are taxation, trade, immigration, commerce, emigration and external affairs. However, the Commonwealth Law will prevail if there are any inconsistencies between the two laws created by each body

International treaties are a treaty that is made between at least two countries. When a treaty is signed it doesn’t have to be instantly initiated as law but is expected to be due to the signing of the treaty. The treaty process starts by the Cabinet deciding to enter into a treaty. The minister and department officers negotiate with other parties to the treaty, next the government will sign the treaty with at least one other nation otherwise the treaty will be voided. When the treaty is signed the minister for Foreign Affairs tables an intention to take treaty action per the 1996 reforms in parliament. The JSCOT (Joint Standing Committee on Treaties) conducts an inquiry and submits the