The Australian Federal System - Term Paper Example

An act to constitute the commonwealth of Australia was adopted on 9th July, 1900.The people of new South Wales, Victoria, South Australia, Queensland and Tasmania agreed to unite in one indissoluble federal commonwealth, under the crown of the United Kingdom of Great Britain and Ireland.According to the traditional classification followed by the political scientists, constitutions are either unitary or federal. " By the federal principles ", Prof. Wheare observes," is meant the method of dividing powers, so that the general and regional governments are each within a sphere co-ordinate and independent.Both the federal and the regional governments are co-ordinate and independent in their spheres and not subordinate to one another " ( Pandey 2007, p.16) .The existence of co-ordinate authorities independent of each other is the gist of the federal principle. The essential characteristics of a federal constitution is the supremacy of a written constitution. A natural corollary of a written constitution, is its rigidity. It ensures the authority of courts, appointment of governors and the parliament's power to legislate in matters of national interest. It may, however be clearly understood that the nature of federalism is more of a historical background based on a nation's necessity .The Australian federal system has generally worked satisfactorily even though it had undergone substantial changes in the years following its establishment. The debate today Is about its future .There is a general consensus that the Australian federal system does not work as well as it should, keeping in view the commercial operations, management and administrative environment. The question for the commonwealth and the state government is not only to enhance its performance and reputation but also to secure a better future, independent of the monarchy ."Australia is already a republic by any reasonable test- a state in which sovereignty is derived from the people. The one element in the constitution not consistent with a republic is the crown."( Turnbull m,1993). It is a system of government where the power comes from the people and all offices are accountable to the masses . The genre of contemporary political leaders also wish to see their country transforming into a republic as also said by the labor party candidate - Kevin Rudd. The implications of the republic debate is subtle but important. It implicates that Australia would legally be independent of Britain, which many believe is still a far fetched theory. Even Mr. Rudd has turned his boats back and has now decided that a referendum on a republic would not occur in the first term of a Labor government. Hence, " the theory of republicanism is on comatose and on life support" ( The Australian,2007). The legal issues involved in the process is full of complexes, to be achieved instantaneously .It starts with the Australian constitution itself . Section 1 of the Constitution states that the Legislative power of the Commonwealth is vested in a Federal Parliament which consists of "the Queen, a Senate and a House of Representatives ". ( Pylee 2006 , p.147) Section 2 goes on to provide that the Queen's representative shall be a Governor-General who holds office "during her pleasure" . Also sections 58 & 59 confers extraordinary power over Australian affairs to the Queen. The above sections being only a few declaring the real power of the monarchy over Australia. Hence, it is necessary to amend the Constitution (which of course, requires the agreement of the people in a referendum ) in order to establish a Republic in Australia. Changes to the Constitution for this purpose would involve provisions like, Terminating the Queen's role as Head of State and establishing a new office of Head of State if it is decided to create one, Dealing with the powers of the new Head of State and Making consequential changes, mostly removing the references to the Queen and replacing the references to the Governor-General with references to the new Head of State, and inserting transitional provisions. The important legal issue now arises "whether the method of amending the constitution provided in section 128, can be used to make the changes or Commonwealth of Australia Constitution Act 1900, needs to be amended in order to create a Republic" ( Turnbull,1993) ; also whether that Act be amended through the referendum process. It is very difficult to consider that all the above mentioned changes can take place before 2015 . It is not only a lengthy process but is also one which would create turmoil and unrest if not done perfectly . If Australia does become a republic in the years to follow, the immediate question is what will be the changes in the business world and when The impact should be targeted with changes instituted towards the workplace relationship, including the delegation of authority to others . Changes should also be made in fields of occupational health and safety measures, tax reforms, competitive policies and communication . Also, issues like climatic changes, water and energy will have to be essentially dealt with to bring the country at par with other countries of the world . The prevalence of the common law, the statue laws and the various rules of equity comes to Australia from its legal heritage to Britain . In a common law, several stages of research and analysis are required to determine what the law is in a given situation. The common law is more malleable than statutory law. The distinction between "law" and "equity" was important in categorizing and prioritizing Rights to Property, Issues of what the law is, and in the principles that apply to the grant of equitable remedies by the courts. Common law lays down the foundation for commercial economies and is the contributor to the robust commercial systems . The commercial system works on the law of contract. "The law of contracts differs from other branches of law in a very important respect . It does not lay down the so many precise rights and duties which the law will protect and enforce ; it contains rather a number of limiting principles, subject to which the parties may create rights and duties for themselves, and the law will uphold those rights and duties " ( Kapoor 2004, p.2). Thus we can say that the parties to a contract, in a sense make the law themselves . So as they do not transgress some legal prohibition, they can frame any rules they like in regard to the subject matter of their contract and the law will give effect to their contract. SALMOND has rightly observed- " law of contracts is not the whole law of agreements nor is it the whole law of obligations . It is the law of those agreements which create obligations, and those obligations which have, their source in agreements" ( Gulshan & Kapoor 1998 ) .The motive of a modern state is to uplift the economy, including such aspects of private economic enterprise as the export and import trade, internal and external investment, shipping, agricultural production, and private banking. And the changes in the system of governance in Australia should strive for the same. The need for the new republic of Australia, if it becomes one, should be to carry forward the legal heritage with a degree of modernity added, to not only make the economy boom but to leave its mark of having finally arrived in the global business scenario . The republic debate is doubtless to draw a fair degree of rhetoric from all sides, but in the midst of rhetoric the hope remains that there shall be enough room for a genuine effort to reconsider the traditions of the past, to change the constitution and the system of government for a better future, aiming to improve the overall quality of the democracy . SOURCES : 1. Gulshan , s.s. and Kapoor , g.k. (1998) Business Law & Company Law. 6TH ed. 2. Butterworth & co. (1989) Introduction To International Laws. 3. Wolding , klaas (2006) Australian Republic Or U.S Colony . 4. Shaw, M. (2002) International Law. 4TH ed. London: Cambridge University Press. 5. Pandey , J.N (2007) Constitutional Law. 44TH ed. Central Law Agency. 6. Law, H.J . An Australian Republic : The Options - An Overview. Canberra : CGP. 7. Australia. The Republic Advisory Committee. A Report By The Chairman, Turnbull, M. 8. Australia. Department Of Parliamentary Services. The Politics Of The Australian Federal System. Bennet , S. 9. Kapoor, n.d (2004) Element Of Company Law.20TH ed. . 10. Pylee, M.V (2006) Constitutions Of The World . 3RD ed. Read More