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The Australian constitution
The Australian constitution
The Australian constitution
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The Australian Constitution explicitly enumerates constitutional laws to protect the sovereignty of the States.
Sovereignty is a nation having legitimate power to govern itself independently of foreign powers . The Australian Constitution is often referred to as the ‘people’s document’. It explicitly outlines the strict “structure, powers and procedures” that must be adhered to by Parliament. The Founding Fathers who played a significant role in federating Australia, has the foresight to protect the sovereignty of individual states during the drafting process of the Australian Constitution. The sovereignty of the states was achieved by providing equal representation in the Senate for the six original colonies. The Senate, referred to as
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For example, in SA, the new Royal Adelaide hospital expected to open in 2016, was an initiative by the State Government . This occurred because it is a residual power of the state and as a result, the Federal Government is unable to make laws concerning the health system . This is a key factor that ensures that State priorities are met, as the Federal Government can be ignorant to each States necessities, due to the location of Parliament House. Potentially, the Federal Government could have neglected the construction of a new hospital as a key priority for the state. Hence, the division of powers protects the sovereignty of the States by providing them with legislative power not enumerated in section 51 and section 52 of the Australian …show more content…
Hence emphasising that ultimately parliament overrules State laws and therefore, has the power to dictate each States development . Alternatively, this ensures uniformity throughout Australia; thus establishing social cohesion by ensuring a harmonious environment . This facilitates social progress by amending laws to include the morals and values of society at that time . Again, this reinforces the purpose of federation and the formation of the Australia Constitution by the Founding Fathers who had the foresight to protect the sovereignty of the
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’.
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.
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.
“Give me liberty, or give me death.” We must diminish tyranny among our government. How did the United States accomplish this? After the Revolutionary War, the Founding Fathers decided to construct a government that was of the people, by the people, and for the people. By doing so, they needed to prevent the more than likely possibility of overbearing power falling into the hands of one or a few people, in other words a prevention of tyranny was needed (1769). This structure was stated in the Constitution, a written document that framed our American government, and so the Constitution declared four ways to prevent tyranny: Federalism, Separation of Power, Checks and Balances, and the Great compromise.
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.
Legal system is a comprehensive term that is used to confirm the existence of the law; it also explains the law-making process and how this is enforced on everyone. The Australian legal system regulates all level of governments, organisations, and all people whether they are Australian born or have migrated here, and they must obey Australia’s regulations. The legal system here was developed from the United Kingdom’s legal system, as Australia was a colony of the British. At a glance, the British government granted restricted rights to their colonies, including Australia to set local government system. This was intended to developed laws in local area, also to deal with specific situation at that time. As a result, the legal system in each of the colonies started to develop separately. According to Carvan J (2010) the Australian law is adopted from several sources, including the rules of equity, parliamentary laws, delegated legislations, judge-made laws, and international laws. (Austrlian Legal System, 2007)
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.
Cases on the foundations of a constitutional order, such as parliamentary sovereignty, tend to be rare in any event. But what makes R (Jackson) v. Attorney General [2005] U.K.HL. 56; [2006] 1 A.C. 262 a significant case, is the dicta regarding constitutional issues mentioned by the judges in relation to parliamentary sovereignty. The discussions of the central issues in the case are in many ways constitutionally orthodox, treating the primary concerns as that of statutory interpretation and adopting a literal interpretation of the 1911 Act. By contrast, the discussion of the wider issues suggest that the judiciary may have support for what could be classed as unorthodox opinions on the doctrine of parliamentary sovereignty. The concept of parliamentary sovereignty is to be considered as a mere ideology in the eyes of the legislature, as the modern day practical sovereign parliament is far from that of the theory.
Before federation in 1901, Australia was not a nation. At that time, the Australian continent consisted of six British colonies (Western Australia, New South Wales, Queensland, South Australia, Tasmania and Victoria) that were somewhat self-governing, however still subject to the law-making power of the British Parliament. Each colony had its own government and laws, including its own rules and regulations on trade, transport and defence. This caused a lot of problems and people began to think about the benefits of uniting as one nation, under a federal system of governance. Under this system, powers would be distributed between a national government and the six States where the Constitution defines the boundaries of law-making powers between the Commonwealth and the States/Territories. One reason to federate was to achieve a united defence force which could better protect Australia. In the 1880s, Australian colonies became increasingly concerned with the large
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.
7. A quote by Mr Thompson an Aboriginal Australian Activist last month states "The Government, including the Federal Government, would serve the Aboriginal people a lot better by looking at a treaty rather than constitutional recognition.”He believes, much like many Indigenous Australians that being written within the constitution would not serve much purpose other than being culturally significant.
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.
“The Parliament shall, subject to the Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: (xxi) Marriage: (xxii) Divorce and matrimonial causes; and relation thereto, parental rights and the custody and guardianship of inf...
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.