Constitutional Interpretive Methods And Legal Doctrine

After looking at other example of Bills of Rights around the world, with America having theirs for 224 years, Canada having implemented theirs for 30 years and the UK for 17 years, Australia needs to consider each nation’s Bill of Rights’ respective strengths and weaknesses when considering our own Bill of Rights in order for it to best suit the current and future society. Canada adopts something of the middle ground between the strongly entrenched rights in the United State’s constitution and the United Kingdom where the British parliament remains supreme with a weak level of right entrenchment, making it perfect for the situation in Australia.

Political thinkers Rousseau, Locke and Montesqieu claimed that the powers of government should be limited, divided and checked. The principle is that there should be a division of government executive, legislative and judiciary powers into three separate arms or institutions that act separately and are independent of one another (members of one branch cannot be members of either of the other two). Australia’s constitution separated powers by delegating the legislative power to Federal parliament (s.1), executive power to the Governor General (s.61) and the Judiciary to the High Court (s.71). However due to Westminster conventions (adopted from the British system of parliament) commonly practiced by the Australia government, the members of the executive (cabinet) are selected from the legislative by the Prime Minister (going against the concept of having no cross-branched members). The PM (also Westminster convention) is not mentioned in the constitution and yet exercised executive power; for example in 2003 PM John Howard exercises (s.68) by sending troops to Iraq. The constitution also provides the executive with the power to appoint the High Court Judge (s.72) and thus is could be argued that the executive has power over the Judiciary in that sense; However the constitution actively safeguards the position of the Judiciary by stating the High Court Judge “Shall not be removed except by the Governor-General in Council, on an address from both Houses of the

The Australian Criminal Justice system has an intricate and diverse structure that makes it one of the most unique systems in the world. The Commonwealth of Australia was approved by the British Parliament in 1900 and came into existence on January 1, 1901. The federal constitution combined British and American practices, with a parliamentary government, but with two houses - the popularly elected House of Representatives and Senate representing the former colonies. This began the start of a new era of policing. (Findlay, Odgers, Yeo). The Commonwealth of Australia is a federalist government composed of a national government and six State governments. There are nine different criminal justice systems in Australia - six states, two territories, and one federal. The eight States and Territories have powers to enact their own criminal law, while the Commonwealth has powers to enact laws. Criminal law is administered principally through the federal, State and Territory police. (Chappell, Wilson, Heaton). In this essay an in depth analysis of the Australian criminal justice system will be given, along with a comparison to the United States criminal justice system throughout the essay. As well as an evaluation of the effectiveness of the system and finally a brief summary of how the Australian criminal justice system structure could be improved to better suit the evolving society. Australia has a complex and very intuitive system of policing that

I don’t believe that the Australian constitution stacks up against the US constitution. It is extremely wordy and not as well planned out in my opinion, but it’s working and they’re aren’t too many complaints

A referendum is the only formal process that can be used to change the written words of the Constitution but it isn’t the only way Commonwealth Parliament can gain powers. States can refer or give their power to Commonwealth Parliament by passing an act.

This has come from the Australian community and international human rights monitors who have stated that “There are still areas in which the domestic legal system does not provide an effective remedy to persons whose rights under the [International Covenant on Civil and Political Rights] have been violated … [Australia] should take measures to give effect to all Covenant rights and freedoms.” There hasn’t only been a recent push for a Bill of Rights, Former Chief Justice Sir Anthony Mason wrote in 1997 that “Australia's adoption of a Bill of Rights would bring Australia in from the cold, so to speak, and make directly applicable the human rights jurisprudence which has developed internationally and elsewhere. That is an important consideration in that our isolation from that jurisprudence means that we do not have what is a vital component of other constitutional and legal systems, a component which has a significant impact on culture and thought, and is an important ingredient in the emerging world order that is reducing the effective choices open to the nation state”. Brian Galligan who is an academic expert on citizenship stated that “the old confidence in the effectiveness of parliamentary responsible government and the common law for protecting human rights has been undermined by more realistic accounts of the weakness of parliament and the increasingly residual domain of common law compared with the plethora of statutory laws.” The answer to whether Australia needs to adopt a Bill of Rights in order to protect Australian citizens is simple… yes and

Vickie Lee Roach was a prisoner whose ability to vote had been taken away by Commonwealth legislation. She argued that the legislation breached her constitutional rights and argued her case in the High Court. Roach’s disqualification from voting violated both the Australian Constitution’s requirement that parliament be “directly chosen by the people” (s7 and s24) and the Constitution’s implied freedom of political communication. The constitutional phrase ‘the people’ was intended to be as broad

Critically assess the applicability of this statement as an analysis of the current approach of the judiciary to statutory interpretation in Australia.

Section 51 (xxix) of the Constitution of Australia grants exclusive power to the Commonwealth to legislate with regard to external affairs. Since its inception, through the development of case law, the external affairs power has been found to consist of three limbs:

Now I shall talk about how the Australian Constitution. It’s common knowledge to know that a constitution is pretty much the law of the land and a foundation of the laws that rule there. Constitutions are very important for countries to have. Helen Irving explains in The Oxford Companion of Australian Politics that, “Its Preamble records the agreement of the six Australian colonies to federate in 1901 and to remain together as ‘one indissoluble federal Commonwealth’.” The Australian Constitution was written as a bill when the colonies met in 1890. The constitution has a full draft by the end of 1891 but colonial parliaments failed to pass it (Irving).

In this referendum, 54.87% of the population voted in the negative to Australia becoming a republic. The result obtained through this nationwide ballot show that the overwhelming majority of Australian’s have chosen to not become a republic when presented the opportunity. Additionally, they contest that the current system of governance has effectively worked since the days of conception to now. So a system which has been functional and a major source of stability for over 116 years, doesn’t require any restructuring or overhaul. Another argument held by the right wing conservatives is that in being constitutional monarchy under the monarch of Great Britain we have gained many advantages such as important relations with the UK and other Commonwealth countries, these relations have allowed us to become the functional, strong and independent country we are today. Another argument held by the monarchists is that the cost of changing to a republic would be astronomically high. The previous expenses spent to run the 1999 referendums which was $87.5 million as well as the estimated costs of changing references to the monarchy in government stationary, letter-headers, logos, etc are estimated to go into the billions of dollars. Expenditure of this magnitude is currently not viable considering the

The adversarial nature of Australia’s court system deal with facts and legal implications. Here lies the establishment of such principles that make the law

Australia 's Federal System is dynamic and the division of lawmaking power between the Commonwealth and State since 1901 has changed dramatically; Critically discuss, focussing on the major reasons for those changes.

     Australia’s form of government has been described as a constitutional monarchy, in which the queen of England is the nominal head of state. In the federal government, power rests with the elected political party that holds the majority in the House of Representatives. The leader is the prime minister. The Senate consists of 76 members who are elected every six years. The House of Representatives has 147 members and they face elections every three years. Any laws that involve changes to the Constitution must be decided by a referendum in which the country’s citizens are called to vote on whether or not they want such changes to take place.

The piece Advance Australia … within reason, was conveyed on the 5th of January by Amy Mackintosh, at the annual “University of Students for Youth Political Activism’ meeting held at The University of Melbourne. Mackintosh steadily argues the reasons why Australia should not have become a republic, and how the country should stay as a monarchy. The tone of the speech is very colloquial and even sarcastic, with the middle part being more analytical and serious. The speaker gives the impression that the argument for Australia to stay as a Monarchy is unbiased and logical.