Constitution of the Commonwealth of Australia - Assignment Example

Australian Legal Questions & Answers Part A: Question The constitution of the Commonwealth of Australia came into existence on January 1901. The constitution was framed by many framers among which Mr. Alfred Deakin, the second Prime Minister of Australia played a crucial role as one of the framers of the constitution (Commonwealth of Australia, 2012). During the time of its enforcement, the states predominately held the political and financial rights. Through gradual changes over the years, there has been imperceptible shift which has resulted in Commonwealth Government to be regarded as the central authority. Since the implementation of the constitution, there have not been many amendments brought in the constitution. Notably, only eight formal amendments were made among which three of the amendments were directly related to the distribution of power. It can be identified that it has been more than a century when the constitution was adopted (Williams & Clement, n.d.). Contextually, only eight amendments in the constitution reflect the procedural difficulties to effect such alternations. Despite the lack of formal changes in the constitution, it is now read in different terms than it was actually in its early formation period. Several factors are responsible for such changes. Historically, several powers were exercised by the states. The states predominately were engaged in major activities such as land management, healthcare, education, criminal law and agriculture. However, in the recent times, Commonwealth Government has significantly involved in playing a crucial role in shaping policies and enacting legislations in the various states. The Australian Federation also offers large amount of sovereignty in the executional power of the two spheres. In the commonwealth jurisdiction, the senate is the representative of the different states which emphasizes that equal number of senators is elected from each state. Moreover, during the early period of constitution adoption only six senators were elected, however, with the growth in the population, the number of senators has increased to twelve from six. The Aboriginal population of Australia suffered like any other population of colonial society with the arrival of European. Due to the colonial rule, the constitution that was adopted in 1901 granted significant rights to the migrated population at the cost of the indigenous people. Thus, during the year 1967, constitution’s Section dealing with people and race were amended. However, the primary intention behind the amendment was to secure the rights and the interests of indigenous Australian people. Despite the limited formal amendments in the constitution, several legislations have been brought into the Australian law due to the Australia’s international obligations and the global pressures from international agencies and countries such as the United Nations, the World Trade Organization and the United States of America among others. Precisely stating, it can be argued that Australian constitution has been flexible in its evolution and over the years it has evolved to meet the changing needs of political economic and social circumstances. Question 2. The doctrine of precedent is referred as “the hallmark of the common law.” Additionally, it has been regarded as “cornerstone of a common law judicial system” that is woven into the essential fabric of each common law of country’s constitutional ethos” (Commonwealth of Australia, 2006). In the most general form, deciding of any cases according to the existing legal rules is termed as the doctrine of binding precedent. In other words, doctrine of binding precedent states that if any higher court has made a firm legal judgment in one case, it should be considered as binding in subsequent courts. The statement implies that certain decisions passed by the higher court must be followed by the later courts weather the subsequent court like it or not. The theory of doctrine of binding precedent rigidly proclaims that judicial function is to apply the existing laws and not to make the law (C.H.Spurin, 2004). Notably, the significance of doctrine of binding precedent in Australian law has declined due to the rise in the universal practice of statute law. Nonetheless, it is still practiced in the Australian legal system by many lawyers during the resolution of legal problems in many circumstances. Many lawyers view doctrine of binding precedent to be essential for continuously sustaining public confidence in the law and other aspects of judiciary. On the other hand, some consider it as the risk of stern injustice owing to the severe adherence to the precedent. Moreover, it can be argued that the binding nature of the old decisions often deprive the law of its rationality as well as its intellectual integrity. Apart from its limitations, it has also been claimed that the doctrine of precedent makes law consistent, continuous and predictable. Thus, it significantly aids in promoting justice and rationality. Furthermore, when judges do not wish to follow a precedent, it is commonly required that they either distinguish the precedent with the on-going case or in certain circumstances they can overrule the precedent on the basis of a set of strong reasons and justifications. Contextually, it can be stated that the doctrine of binding precedent in the current dynamic environment deters the transparency of law. Moreover, it provides predictability of law but does not acquire flexibility in its functionality. Thus, the doctrine of binding precedent owes significant limitations which need to be critically considered in order to guarantee highest degree of justice to every individual. Question 3. The socio-economic situation is becoming more and more complex with every passing day. Many factors have surfaced as a crucial element for organization in order to successfully sustain their business operations. Contextually, one of the recent issues currently gaining momentum in the business environment is in the form of the agency problems. It has been argued that agency problems arise as the contracts are not written and addressed carefully. There have been many cases where accountants’ involvements were identified in the agency issues or problems (Fama & Jensen, 2009). Contextually, accountancy professionals can engage in agency issues in various forms. However, in the recent times, their role in agency issues can be identified in two broad practices namely false disclosure of accounting information and embezzlement. False Disclosure of Accounting Information There have been several instances when accountants were found guilty of manipulating accounting information either alone or in a team with organizations’ managers. One of the classic examples of such actions can be associated with the incident of Enron, a US based multinational company. Such act of accountants may falsely reflect the rosy picture of an organization in order to draw more and more investors or to seek financial benefits at the cost of other stakeholders. Such action of accountants is regarded as illegal as well as unethical and seeks legal actions against the accountants involved in the mal-practice. Moreover, the Australian accountancy profession requires that all the members who are responsible for preparation and arrangement as well as functions related with the audit of financial reports must comply with the Australian Accounting Standards. Accordingly, non-compliance may attract penalties and other punitive actions against the accountants involved in such unethical practices (Dunstan, Percy & Walker, 1993). Embezzlement An act of embezzlement can be associated with the practice of retaining money or misuse of organizational assets for attaining self-benefits or for any other purposes. In both the cases, the ultimate victim is the organization. Contextually, an accountant or any other individual involved in such practice is deemed to have stolen the same and further the offender is considered as guilty of felony. Furthermore, the offender shall be liable at the judgment of the court before and may be subjected to servitude for any duration but not more than eight years (in case of a government service holder) or for imprisoned individual, the tenure is not beyond three years (Australasian Legal Information Institute, 2013). Question 4. In Australia, the distribution of legislative power between the Commonwealth Government and the states is immensely different in the present scenario from the original distribution articulated in the Federal constitution which was adopted in 1901 (Grewal & Sheehan, 2003). The most of the powers enshrined were exclusively assigned to states. However, currently the power is shared between the Commonwealth Government and the states with a majority of the law making capacity of the country associated with the Commonwealth Government. Consequently, it can be identified that power of the Commonwealth Government has wisely and significantly expanded over the years and that of the states has considerably declined. Thus, it can be argued that today the power and law making capability is highly centralized at the Commonwealth Government level. Notably, most of the centralization has occurred with less formal alterations of the constitution. This implies that an alteration has occurred without the articulation of the approval of the majority of the voters in the most of states as it was originally required by the constitution. The centralization of power of the Commonwealth Government level can be evidently postulated with respect to the substantial share of government in national taxation revenues and public expenditure. Notably, after the second World War, the share of aggregate tax collected by the State governments had dramatically fallen from 87 percent to 18 percent since the adoption of constitution in 1901 to 2001-02. In addition, there have not been many amendments made in the constitutions of Australia. However, an amendment made in 1946 inserted a new clause i.e. clause xxiii A to the Section 51 empowering parliament to make laws related with certain provisions such as maternity allowances, sickness, unemployment and hospital benefits, child endowment among others. Moreover, some ruling made by the high court of Australia has strengthened the law making power of the Commonwealth Government. Section 51 and 52 of the Australian constitution defines the law making authority of the Commonwealth Government. According to the Section 51 of the Australian constitution, the state parliaments can forward the matters to the Commonwealth Government or the Federal parliament to furnish laws on certain issues. On the other hand, Section 52 restricts state parliaments from making laws in certain specific areas, which include defense and communication. The statement implies that the Commonwealth Government has the special power to make laws in these areas. Moreover, the law making power of the Commonwealth Government has also expanded since the huge advancements in social and technological aspects witnessed over the last century. Thus, it can be viewed that the Constitution of Australia wisely gives the Commonwealth Government the majority of the law making capacity for the country (Parliamentary Education Office, 2012). Question 5. Agency deals with a condition in which one person, ‘the principal’ uses another person ‘the agent’ to act on his behalf. At times, the acts of the agent are attributed legally to the principal and sometimes not. Notably, it can be identified that no business can perform every activity by itself. It must delegate certain activities to agents. Essentially, when a person is appointed as an agent, he/she is able to make decisions or enter into agreements in aid of the principal. When principal makes any appointment of agents, he is deemed to be bound by the acts of the appointed agent. There are primarily three types of agents with which a commercial graduate can be associated with the law of Agency during his/her professional life (Scribd Inc., 2013). Thus, the types of agents and legal issues associated to these are postulated below: Sub-Agent Sub-agency can be associated with the delegation of power by an agent to a person appointed by him as sub-agent. Notably, agent himself is the delegate of his principal. The prime consideration is that a person to whom powers have been delegated cannot delegate them to others. In general, any agent delegate of his principal cannot lawfully employ or delegate another sub-agent to perform certain acts which he has been explicitly mentioned to perform. There are certain legal issues associated with sub-agency. Contextually, the agent is responsible to the principal for the acts of the sub-agent, if the appointment is made within the authority delegated to the agent by his principal. In other words, principal will be bound to the acts of sub-agent during the course of employment. On the other hand, if the sub-agent is appointed by the agent without necessary authorities delegated to the agent, principal shall not be bound to the act of sub-agent even in the course of sub-agent employment (Tulai, 2011). Substituted Agent It is worth mentioning that the substituted agents are different from sub-agent. Substituted agent is in-fact an agent of the principal. In certain circumstances, an agent has the implied authority to assign another individual to act for the principal. In this similar context, in such circumstances, the assigned person is an agent of the principal where principal will be compelled by the act of substitute-agent (Tulai, 2011). General Agent General agent has the broad authority to do everything on behalf of his principal in the course of his agency. A general agent is one who is assigned to perform all acts related to the business. For instance, managers of a firm have implied authority that tend to bind his principal by doing various acts of the business such as business deals, trade bargains and payments for the purchase among others (Tulai, 2011). Part B Question 6. According to the law of contract, there must be something to offer and the offer must be clear. The offer needs to be accepted and communicated to the offerer. The acceptance must come orally, written or implied from conduct. Furthermore, the consideration must be explicitly disclosed to the offeree (Simpsons Solicitors, 2000). Contextually, offer in the form of a football that had been signed by all the players in the 2008 Grand Final has been made by Sporto, an enthusiastic football fan. The offer was made to the club members of AFL Fans Club. Accordingly, it was stated by offerer (Sporto) in terms of the consideration that any member willing to pay $10,000 and is capable to contact him first will be considered as the buyer for the football. Moreover, three e-mails were received by Sporto at different times. Notably, Sam a member of the club was ready to pay $15,000 for the football while another member was ready to pay $10,000. However, the president of the club, Marmaduke send an email stating that the club rules did not allow football to be purchased without the written approval of the club committee. Furthermore, he argued that any such approval has not been approved to either of Sam or Eddie but club itself was prepared to pay $8000 for the football. Since club committee holds the discretionary right towards its members in case of purchase of such football. Thus, Sporto cannot sell the football to any of the club members without the approval provided from the club committee. On the other hand, Sporto has the right to sale or not sale the football to club at $8000 as the consideration for the purchase of the signed football was $ 10000 (Ehsan, 2008). Question 7. Five Cats Breweries made a contract in South Australia in July 2009 with Pronto Promoters, the organizers of the Legends Supercars Race to be run in March 2010. However, the changes in law restrict the advertising and disrupt the terms and conditions entered by both the parties. Notably, neither of the parties was responsible for the restriction (HM Revenue & Customs, n.d.). Thus, it can be firmly suggested that both the parties shall consult with each other in good faith and act reasonably and propose any lawful amendments to the contract entered prior to the enforcement or the change in the law to mitigate the impact of change of law that is acceptable to both the parties. In case, both the parties fail to reach a mutual outcome, either of the parties may terminate this contract by written notice to the other having immediate impact (Public Private Partnership, 2013). Question 8. An inevitable consequence of a breach of contract by a promisor is that promise is entitled to claim damages. Contextually, the right accrues to the promise during the time of the promisor’s breach (Bennett, 2012). Responsively, Buckeye has failed to discharge the role of a promisor which has resulted in the breach of contract to Cheryl. Thus, Cheryl has the right to sue Buckeye for not realizing the promise made to Cheryl. Even though the breach of contract on the part of Buckeye was due to the negligence of Vintage Garages, Cheryl cannot sue Vintage Garages as she had not entered into an agreement with Vintage Garages. Consequently, she has only right to sue Buckeye for his negligence in not complying with his responsibility. Moreover, it has been shown that nature of damages made to Cheryl is no-monetary losses. In other words, it is viewed that the claimant (Cheryl) has not suffered any damages within the conventional meaning of the term. An alternative explanation to this case can be affirmed as; Cheryl is liable for the remedy available for vindicatory damages. Furthermore, vindicatory damages seek that the claimant (Cheryl) has the legal enforceable right to the performance of the contract. Thus, vindicatory damages enable the court to grant an adequate remedy to Cheryl (Pearce & Halson, 2008). Question 9. A misrepresentation is an allegation that does not accord with truth. Notably, when a person enters a contract because of justifiable dependence on a misrepresentation about certain vital facts, it can be argued that the contract is voidable. Contextually, misrepresentation can be either innocent or fraudulent. In this case, Bert enters in a contract with Ambrose in relation to sale of house to Ambrose. Prior to this, Bert had promised to pay $3000 to Con for providing Bert with a written valuation of house above the 25% of the market value. Later, Con supplied Bert with the document which Bert wanted. However, after entering in a contract Ambrose came to know that the valuation of house was faulty (The State of Queensland, 2012). Contextually, it can be argued that Ambrose has the right to cancel the contract as it was induced by misrepresentation or fraud. At the same time, Bert also refused to pay $3000 which he had promised to pay to Con for providing him with a written valuation document of the house. However, there was no such contract between Bert and Con that the agreed amount shall be paid to Con after the sale of house. Thus, Con has the right to seek the agreed amount of $3000 and Ambrose has the right to cancel the contract entered with Bert (Drahos & Parker, 1990). Question 10. The relationship between suppliers and franchisors has long remained a matter of antitrust (American Bar Association, 2013). In the case, Klein, a Sydney potato marketing agent promised to supply 50 tons of second grade potatoes to Max who is a potato buyer in the South Australian market. However, Klein sold all his potatoes and failed to meet the order of Max. Contextually, it can be viewed that Klein failed to fulfill his promise made to Max. In another way, it can also be viewed as the breach of contract between the two parties. Consequently, Max has the right to sue Klein against the unfair termination of the contract. Moreover, it can be ascertained that Klein without providing any notice or any formal information terminated the contract. Consequently, Max can sue Klein for the damages incurred and further Klein is liable to compensate for the possible damages claimed by Max (Department of Justice, 2011). Question 11. According to the case, Harry, an enthusiastic collector of historical items, purchased a brass compass of the historical ship called H.M.C.S Protector. Later, Harry contacted with S.A Museum for the sale of the brass compass. Harry agreed in written document to sell the compass for a valuation of $25,000. However, later Harry refused to sell the compass at $25,000 and stated that he will sell the compass only if he receives $50,000 for the compass (Commonwealth of Australia, 2013). Contextually, it can be viewed that Harry has already entered into a contract relating to the sale of the compass at $25,000. Furthermore, it can be viewed that the contract was made in terms of a fair basis as well as following a mutual negotiation. Thus, if Harry refuses to sell the compass to S. A. Museum, it may lead to breach of contract. In such circumstances, S. A. Museum can sue Harry against the breach of contract and seek justice from the court of law. On the other hand, Harry and the museum has an option to re-enter into the contract after negotiating with each other by considering the interest of both the parties (Penning, 2007). Question 12. It can be viewed that the new agreement claims certain conditions to be fulfilled by the lessees that only Golden Eagle Petroleum Limited’s petroleum products shall be sold from Golden Eagle petrol stations till the expiry of new agreements on March, 2011. On the other hand, it was firmly stated that if any lessee fails to renew his/her lease in 2011, the lessee shall not be allowed to lease any petrol station in the cities of Adelaide, Melbourne or Sydney for a period of two years from the expiry of the original lease (Victoria Legislation and Parliamentary Document, 2003). Thus, it can be argued that those people entering into a contract with Golden Eagle Petroleum Limited has to abide by the terms and conditions of the new agreement. However, it is crucial that the new agreement has been framed mutually after considering the rights of the lessee. Furthermore, it is also important that the company treats its entire lessee equally. Consequently, lessee in all the locations including the upcoming locations should strictly adhere to the new agreements (Government of South Australia, 2012). Question 13. According to the case, it can be ascertained that Fred has illegally obtained the valuation document for his farm from Rex. Additionally, Fred has also illegally obtained a farm valuation of $1.8 million Dollars from Rex in order to claim the drought relief grant for which Fred promised to pay an additional value of $6000 to Rex. Fred consented to pay the proper fees along with an additional figure of $1000 to Rex and remaining amount of $5000 was promised by Fred to be paid to Rex after he receives the drought relief grant from the government. However, later a renowned newspaper exposed Rex for being involved in unfair practices as well as false valuation of farm. Consequently, two other valuers came and valued Fred’s farm to be three million Dollars which was estimated as four million Dollars by Rex. Due to which, insurance particular insurance company cancelled the insurance contract with Fred and further he was also not paid the relief grant. Therefore, it can be argued that Fred has intentionally involved in such practices which resulted in the insurance company to cancel the insurance contract. Such act is considered to be a fraudulent practice within the legal context (Dulux Group Limited, 2012). At the same time, the cancellation of drought relief grant to Fred is also justifiable as he paid bribe to Rex. Thus, the involvement in illegal practices by Fred was a deliberate attempt to take the advantages of the government relief policy. Consequently, Fred has no space or right to seek any justification against the insurance company’s act or towards the cancellation of the relief grant (Michael, 2010). References Australasian Legal Information Institute. (2013). Western Australian Numbered Acts. Retrieved from http://www.austlii.edu.au/au/legis/wa/num_act/cle23vn1315/ American Bar Association. (2013). Constraints against termination of dealers and franchisees. Retrieved from http://www.americanbar.org/content/dam/aba/publishing/antitrust_source/06_Jan05_moloshok.authcheckdam.pdf Bennett, M. (2012). Breach repudiation and terminating a contract. 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