Mini Research Essay Assignment Sample
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BUSINESS LAW: COMMONWEALTH CONSTITUTION
Introduction
The world history is the witness of misuse of power. It is evident that when power goes to one hand, others are excessively suppressed by that power holder. The temptation of power turns a man into a power monger person. In the early time of world history, the nations were regulated in the autocrat structure. Moving with the time the constitutions, laws and systems have been changed. In order to maintain the democratic system separation of power was needed to avoid the abuse of power and provide freedom to everyone. The concerned essay is depicting the constitutional aspects of power separation.
There is a set of rules that are maintained by the Australian constitution. It is noteworthy that the starting three chapters of the Australian constitution define the three major separated power groups, namely, Legislative power, Executive power and judicial power. The principle called ‘separation of power’ is worth mentioning in this context. As per the mentioned principle, power of governing needs to divided among theses section or departments for avoiding the power centralisation. Moreover, the separation of power is very important so that each group can keeps a check on the necessary actions of others.
a) Separation of power under the Commonwealth Constitution
Main body
The three major power of Commonwealth constitution plays an important role in controlling the nation. The separation of power is relevant enough for conducting all kind of political, economic and social activities[1]. The set of rules and regulations have been mended by the constitution and the distribution of power in this context is a vital aspect. The distribution of role and actions has been divided along with the power of controlling them. Thus, it can be said that the separation of power is very important for maintaining the rule of law mended by the constitution of Australia[2]. The distinction among these three major power groups is clear enough to get an idea about their actions.
Legislative power
The first important power group is Legislative power. The function of the legislative power is to frame and amend the laws. It is also known as the parliamentary power of the country[3]. The members of this power section are the Governor-General who represents Queen, the House of Representatives and The Senate house. Moreover, the legislative power of Australia has the right to pass the laws with judging its effectiveness. The responsibility of supervising the implementation of new laws is also of the legislative power of the Commonwealth Constitution[4]. There are several conflicts that which power should be assigned under the legislative power of Australia. All the power of legislation has been described in detail in the constitution. The Section 51 of Australian constitution provides the information regarding the field of legislative power[5]. As per the mentioned section, the Parliament or Legislative power is allowed to make laws on the following subjects:
- Defence [as per s 51 (vi)],
- Trade and commerce (both among states within the country and with other countries) [as stated in s 51(i)],
- Taxation [as per s 51(ii)],[6]
- Immigration [as stated in s 51(xxvii)],
- Corporations [as per s 51(xx)], and
- External affairs [as stated in s 51(xxix)].
The section 52 also describe about the rights of parliament. As stated in this section, the parliament of Australia also has the right to frame laws on some specific matters such as, Commonwealth public service and commonwealth places[7]. Among the constitution lists, the section 52 states the right of parliament on the custom and excise duty. As described in the section 122, the legislative power has the right to impose rules on federal territories.
The history of Australian constitution reveals that the Australian Constitution created the federal system. The six colonies in the early period became the six states in Australia[8].
Executive power:
The second major power holder is the Executive power. It is the responsibility of executive power to materialise the mended laws by legislation. In order to explain it more clearly it can be said the executive power put the law into action. The members of executive power are the Governor-General who represents Queen, Prime Minister and other Ministers of the commonwealth[9]. Here, the role of the Governor General is important, as he is the representative of Queen. Mainly the executive power is of queen but the Governor-general in behalf of her does the actions. All the actions and decisions taken by the Governor General of Australia is done with the help of the advices provided by the Prime Minister and other Ministers. The role of Prime Minister and other Ministers is to govern the nation and keep reports on a day-to-day basis. It is noteworthy that in spite of being the member of Government and the Parliament as well, governor-General does not have the power to take any decision. The main responsibility of the executive power is to implement the laws mended by legislative power of Commonwealth Constitution. Moreover, it is made of Federal government, the Federal president and other Federal authorities, such as, police and armed force of the country. It is important to state that the Constitution does not cater much information regarding the executive power, as it is difficult to understand the functions and responsibilities of executive power in the Commonwealth constitution[10]. The second chapter of the Australian constitution reveals that the Governor-General has the right to sweep powers. The Governor-General will exercise the section 61 states that the executive power is fixed within the responsibilities of Queen and it. On the other hand, the section 68 describes that the Governor-General is responsible for the defence section of the country.
It has been discussed earlier that the governor-General exercises his or her duties by following the rules and regulations of the responsible government. Therefore, it can be inferred that the Federal Executive Council and the phrase of ‘Governor-General in Council’ sums up the previous and present Ministers[11]. However, only the present ministers can participate in the business of Executive Council. It has been observed that not more than three Ministers attend the meeting conducted by the council with the Governor-General. Thus, it can be concluded that the major and principal functions of Executive Power is to receive advices from Ministers. Moreover, it can be said that the approval making and signing the formal documents, such as, statutory documents is performed by it.
Judicial power:
The third power section is the Judicial Power. It also performs certain responsibilities as stated by the constitution of Australia. The main role of the judicial power is to provide judgments maintaining the law. This section of power is comprises with High Court and federal courts of Australia. Judges play an important role in order to control the illegal and unethical activities. Moreover, it is noteworthy to mention that without the consent of Judges, they cannot be assigned with any other position[12]. The chapter III provides related information for having a vast idea regarding the role of judicial power. The sections 71-80 present the rules for establishment of High Court in Australia. It is the high Court of Australia, which ultimately decides that whether the Act passed by the Commonwealth constitution comes under the legislative power, or not.
It is also worth mentioning that Commonwealth parliament has the power of formation of the federal courts, such as, The Federal court of Australia and Family Court of Australia[13]. The judiciary power is limited to these courts and the courts of states. The role of the judicial power is to identify the wrong activities as per the amended laws and provide proper justice to people. There may confusion take place under the any law or act. It the responsibility of the Judicial power to take appropriate measure.
Responsible government:
In the concerned essay, the importance of the power separation has defined in brief. In order to explain it more clearly it can be said that the principle of power separation runs parallel with another principle[14]. This principle is known as responsible government. As per this principle, a party or alliance of more than one party has to maintain the support as the majority of parliament members. In the respective aspect, the conflict between the power of Legislative and Executive takes place. Each of this power group has to be aware enough that none is abusing the power.
Exception in the power separation:
After the detailed discussion in this essay, it is also important to state the exceptions of power separation in the Commonwealth Constitution of Australia. It has been found that the separation of power has not taken place completely[15]. It is evident that there are several actions of these three power groups of Commonwealth Constitution. The functions and responsibilities of these groups sometimes overlap with each other. Taking for instance, it can be said that the judges of High Court, Prime Minister, and the ministers who have been officially appointed are member of both legislative and Executive power.
b) Preferable power section for future business or accounting
After making an analysis of the three major power sections of it has become a much easier to decide that which of the above mentioned power section will be preferable for conducting the further business. The judicial power is the most effective power among these three[16]. Taking for example, in the case study of Margaret, she was the owner of an antique store. The specialty of her shop was porcelain dolls. Her business gradually is flourished but after a certain time she decided to retire from her job. However, the conflict rises that the unsold dolls will be given to a charitable trust or her daughter, Emily. Apart from this example, there are more case examples, which come under the laws and regulations of Australian Constitution. In order to choose the preferable power, which will be effective for the future business or accounting, is the judicial power, as the entire business will be conducted as per the rules and laws. Moreover, it can be stated that in any situation if conflict arises, proper justice will be gained through the judgments of Australian courts[17]. It is very important for a business to follow all the business laws amended by the Australian Constitution.
Common Market in Australia:
The chapter IV of the constitution states the laws that regulate the trade and commerce of Australia. The movement by the Australian people towards the federation has been conducted to control the desire to maintain a single arena of trading in Australia[18]. In order to demolish this Australian constitution has to maintain a uniformity in the customs duties.
As per section 88, the Australian constitution also states that the above objectives were achieved by imposing uniform customs duty by Commonwealth legislation. Moreover, the second objective was achieved by the making the trade and commerce free among all the states.
Conclusion
Thus, it can be concluded that the principle of Separation of Power is worth mentioning in the given context. The segregation of power is needed as centralising power in one hand may lead to the abuse of power. The history is witness of the misuse of power in all nations. Here, the concerned essay is depicting the separation of power as per the constitution of Australia. The three major powers are the legislative power, executive power and judicial power. All of the mentioned powers play an important role as per different responsibilities. However, there are several confusions regarding the responsibility of Legislative Power and Executive power, as they overlap sometimes. The role Governor-General of Australia has also a huge responsibility and he takes all the decisions based on the advices provided by the Ministers. In the third position the judicial power comes. The main role of courts is to provide proper justice the victims by maintaining the laws. Therefore, it can be inferred that in order to conduct the future business judicial power is essential. There is further scope of the conducting business freely in Australia is very progressive. The related business laws and legislations have been framed to provide the best services to its citizens.
References
Bradley, Curtis A, and Neil, Siegel, “Historical gloss, constitutional conventions, and the judicial separation of powers.” [2016] Geo. LJ 105
Brownell, “A Constitutional Chameleon: The Vice President’s Place within the American System of Separation of Powers”. [2014]. Kan. JL & Pub. Pol’y.
Chordia, Lynch, Williams,”Williams v. Commonwealth [No 2]-Commonwealth Executive Power and Spending after Williams,” [2015]. Melb. UL Rev
Dixon, Landau.” Transnational constitutionalism and a limited doctrine of unconstitutional constitutional amendment.” [2015]. International Journal of Constitutional Law.
Fitch, Emma, Patricia, Easteal. “Proposed closures of remote Australian Aboriginal communities: dispossession without free and informed consent and legal remedies for appealing government budget decisions.” [2016]. Australian Journal of Human Rights
Friedman, L., 2015. Testing the Limits: Judicial Enforcement of Positive State Constitutional Rights. Browser Download This Paper.
Gageler, Stephen. “Controlling Administrative Power: An Historical Comparison. By Peter Cane [Cambridge University Press, 2016. xxiii+ 583 pp. Hardback£ 59.99. ISBN 978-1-107-14635-8.].” [2017] The Cambridge Law Journal
Gardbaum, “Are strong constitutional courts always a good thing for new democracies.” [2014]. Colum. J. Transnat’l L.,
Gardbaum, “Separation of powers and the growth of judicial review in established democracies (or why has the model of legislative supremacy mostly been withdrawn from sale?).” [2014].The American Journal of Comparative Law
Harel, “Why (constitutional) law matters: A reply to Lorenzo Zucca.” [2015] International Journal of Constitutional Law.
Leckey, Robert. “Remedial Practice Beyond Constitutional Text.” [2016]. The American Journal of Comparative Law
Leyland, “The constitution of the United Kingdom: A contextual analysis”. [2016]. Bloomsbury Publishing.
Michaels, Joshua. “The Comprehensive Anti-Apartheid Act of 1986: Separation of Powers, Foreign Policy, and Economic Sanctions as a Tool of Social Justice.” [2015] Nw. Interdisc. L. Rev
Pozen, David “Self-Help and the Separation of Powers.” [2014].Yale LJ 124
Saunders, Foster. “The Australian Federation: A story of the centralization of power.” [2014]. In Federalism and legal unification , Springer Netherlands.
Weill, Rivka. “The new commonwealth model of constitutionalism notwithstanding: on Judicial review and constitution-making.” [2014]. The American Journal of Comparative Law
Woods, Neal D. “Separation of Powers and the Politics of Administrative Rule Review.” [2015].State Politics & Policy Quarterly
[1] Dixon, Landau.” Transnational constitutionalism and a limited doctrine of unconstitutional constitutional amendment.” [2015]. International Journal of Constitutional Law.
[2] Gageler, Stephen. “Controlling Administrative Power: An Historical Comparison. By Peter Cane [Cambridge University Press, 2016. xxiii+ 583 pp. Hardback£ 59.99. ISBN 978-1-107-14635-8.].” [2017] The Cambridge Law Journal
[3] Harel, “Why (constitutional) law matters: A reply to Lorenzo Zucca.” [2015] International Journal of Constitutional Law.
[4] Gardbaum, “Are strong constitutional courts always a good thing for new democracies.” [2014]. Colum. J. Transnat’l L.,
[5] Leckey, Robert. “Remedial Practice Beyond Constitutional Text.” [2016]. The American Journal of Comparative Law
[6] Michaels, Joshua. “The Comprehensive Anti-Apartheid Act of 1986: Separation of Powers, Foreign Policy, and Economic Sanctions as a Tool of Social Justice.” [2015] Nw. Interdisc. L. Rev
[7] Leyland, “The constitution of the United Kingdom: A contextual analysis”. [2016]. Bloomsbury Publishing.
[8] Gardbaum, “Separation of powers and the growth of judicial review in established democracies (or why has the model of legislative supremacy mostly been withdrawn from sale?).” [2014].The American Journal of Comparative Law
[9] Pozen, David “Self-Help and the Separation of Powers.” [2014].Yale LJ 124
[10] Woods, Neal D. “Separation of Powers and the Politics of Administrative Rule Review.” [2015].State Politics & Policy Quarterly
[11] Gageler, Stephen. “Controlling Administrative Power: An Historical Comparison. By Peter Cane [Cambridge University Press, 2016. xxiii+ 583 pp. Hardback£ 59.99. ISBN 978-1-107-14635-8.].” [2017] The Cambridge Law Journal
[12] Weill, Rivka. “The new commonwealth model of constitutionalism notwithstanding: on Judicial review and constitution-making.” [2014]. The American Journal of Comparative Law
[13] Harel, “Why (constitutional) law matters: A reply to Lorenzo Zucca.” [2015] International Journal of Constitutional Law.
[14] Fitch, Emma, Patricia, Easteal. “Proposed closures of remote Australian Aboriginal communities: dispossession without free and informed consent and legal remedies for appealing government budget decisions.” [2016]. Australian Journal of Human Rights
[15] Saunders, Foster. “The Australian Federation: A story of the centralization of power.” [2014]. In Federalism and legal unification , Springer Netherlands.
[16] Friedman, L., 2015. Testing the Limits: Judicial Enforcement of Positive State Constitutional Rights. Browser Download This Paper.
[17] Denton, David, “The Australian military justice system: History, organisation and disciplinary structure.” [2016]. Victoria University Law and Justice Journal
[18] Bradley, Curtis A, and Neil, Siegel, “Historical gloss, constitutional conventions, and the judicial separation of powers.” [2016] Geo. LJ 105
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