Relationship between the Act and the Government - Term Paper Example

National Education Standard Act LAW 2211; EDUCATION Client Advice Letter: Dear Kearneys Spring School I appreciate you for entrusting us with the provision of legal counsel over the current passed Education Act, National Education Standard Act 2015. Essentially, various legal issues associate with the Act. Consequently, it is prudent to acquire the due interpretation and understanding of the Act before its full implementation. The primary concern is the introduction of commonwealth Education Proctor to all the education institution throughout our federal state. Your basic concern is how exactly the Act is supported by the external affairs power, relates to Melbourne Corporation principle, or whether to adopt it. Overview of National Education Standard Act 2015 It is significant to appreciate that the lawfulness of the Education Act and its inherent relations to external affairs power. The federal state of Australia, as you are aware, is a member of Commonwealth parliament. Adoption of the Act by the federal government comes a week after passage of the same act by the Commonwealth assembly. The principal controversy follows inherent rejection of the Act by members of the opposition in our federal parliament. Just to recap the content of National Education Act 2015, it has a collection of relevant legislation to our current educational needs. The current National Education Acts clearly expounds details of an education institution and its role in the society. It identifies an education institution as any organization with a primary goal of providing instruction to pupils within the age of 5 years to 18 years in the relevant subjects such as mathematics and science literacy. It also encompasses the National Education Standards and defines it as the body of principles pertaining to the primary or secondary education. Ministry of Education must promulgate this body of principle to enable it take effect on any states education system (Zines, 2008). The inherent discussion centers on section 1(c) of the promulgated Act. This sub-section introduces the cause of disagreement in the past Act. It introduces the Commonwealth Education Proctor, as a representative of the Commonwealth to our education institutions including Kearneys Spring State School. The Commonwealth Educational Proctor does an oversight role on behalf of the Commonwealth on our education system and quality. It is mandatory, according to the Act, to have such an official in every Australian school (Zines, 2008). The Minister of Education has the power according to the Act of organizing for the appointment of Commonwealth Education Proctor in any member State of Commonwealth within all the respective territories and institutions. After the appointment, The Commonwealth Education Proctor has a particular role to oversee in the institution of assignment by Minister of Education. As the school is aware from content of the Act, the Commonwealth Education Proctor should specifically carry out the following roles in the ensuring quality of education in our state. First, the appointed Proctor has a primary responsibility and full right of physical access to the institution. They have unlimited access also to its management, its employee and all the students in the institution. The Education Proctor should also be permitted to attend and speak at all the meetings in the institutions, including the staff meetings, student assemblies and any other activity taking place within or from without the education institution. This Commonwealth representative also has legal permission to review each single record maintained by the respective education institution of appointment. In addition, the Commonwealth Education Proctor is permitted to access and review all the records maintained by the very institution it’s posted to, both the physical and the digital school. From the regular review of such records, the Proctor can the make an informed decision on the capacity and the potential of a given institution. Every institution is required to permit the proctor in attending and reviewing all the lesson plans. He as well attends classroom activities, and reviews materials used or intended for student support activities. The Commonwealth Proctor is mandated to report regularly to the Minister of Education at least once in two months’ time. The critical area of the report includes the current ability and potential of the educational institution’s compliance with the National Education Standards. Finally, the proctor is mandated by the National Education Standard Act 2015 to make recommendations to the respective Minister of Education at the closure of every academic year. He recommends on to whether or not the concerned institution is worth of any given remedial actions in accordance with the legislation permits. The most important aspect from a legal perspective is the section five of the Act. Failure to comply with the content of the Act can result in the attraction of a massive fine from the institution. Every institution under the Act has a legal duty to comply with all the provisions of the Act. Therefore, it is a statutory directive that any school, staff, student and all the institution fraternity should not interfere with the Commonwealth Education Proctor. The breach of this provision in any way whatsoever shall lead to attraction of a huge fine of 500 dollars. Dear esteemed client, it was a necessity that I take you through the Act due to its significance from legal standpoint. The Act comes with massive changes in the oversight system of our education system. After a comprehensive understanding of the Act, it is therefore a solid foundation to appreciating the impact of the same Act and its significance if any to our education system. External Affairs Power The concern that you were inquiring is whether the External Affairs Power supports the Act. This is a critical issue owing to the political turmoil and disagreements in regards to the external affair power (Parliament of Australia, 2015). It is understandable and vivid that the federal Parliament derives its authority and power to transact its business on the floor from two significant sources. The legislature derives its power from the Federal Constitution and the external affair power. Precisely analyzing the external affair power, it comes from the external agreements between the federal government and the Commonwealth. Actually, Australia is a key member of the Commonwealth community. Commonwealth has a degree of control over the federal state’s functions and in particular, the areas related or affecting human rights directly or indirectly. The state also ratified the United Nations legal provisions in Article 28 and 29 of the United Nation’s Convention of the Child that protects the children right. In particular regard, the right to quality, relevant, timely and flexible education. The education aim is to develop the talents and skills of children in an enabling environment. From this, you can try to comprehend the sources of external affair power that empowers the Act and give it a degree of control over the education system. The ratification of various human rights provision and as a key member of the Commonwealth, the federal has the mandate to comply and uphold various legal provisions inform such external agreement. Political Goodwill of the Act There is a high degree of excellent political goodwill to the Act. The Federal Government of Australia, as you are aware, is committed to respecting the constitutionality of the nation. The embracement of the Act is not in any way, a political antic by the government to betray the Constitution. It comes in line with the current government manifesto to skyrocket the quality and the dignity of our education system. In that regard, the National Education Standard Act 2015 therefore is an epitome of the bold step towards the realization of this dream. From the current research on the quality of our ongoing education, our state is not comparing favorably with its peers globally. There is evidently compromise on the quality of education from our system. Noting keenly the government through Craig Pelton, the Minister of Education, remarks on introduction of the bill on 10 March this year. Consequently, the government has exhaustively carried out the due legal consultations in regards to this Act. As the principal legal counselor to the government, Attorney General confirms that the Act does not violate the constitution of federal state. This may be a stage-managed political shenanigan. The underlain concern is the enhancement of the quality of education in our state and is in no way an ill intention government project to hand over the education control of t education system to the Commonwealth (Lacey and Commonwealth Secretariat, 2012). The sole source of clamor to the Act as I am wholly aware is the sentiment of opposition about the real intention of the Act. As you are aware, the opposition MP Richard Snyder laid down the controversy in regards to the Act. He notes that the bill may appear coercive but may carry detrimental effect on future legislation about the external affair power (Parliament of Australia, 2015). The understanding of concerns by the legislator is that there is fear of granting more authority to the external affair power to the systems of our government and the various institutions within. From a legal prospect, the adoption and integration of the Act into the education system does not lead to any compromise on the current and the future legislation in the country. The federal government is working with utmost goodwill to obey its commitments in different international agreements. The parliament so far is governed by the Constitution to the extent of enjoying the external affair power in transacting its daily business. The essence of the current legislation on the external affair power is that it is in full regards to the education that is a sensitive essential need to our children. The federal government has several commitments and ratifications with both the United Nations and Commonwealth. These commitments grant the parliament a particular external affair power to pass the bill that allows for a given degree of control of the state institutions by such external organizations. A good illustration is that the National Education Standard Act 2015, from the preceding fact-based discussion, has legal support by the external affair power. Consequently, Kearneys State Spring School has the legal obligations to comply with the Act implementation program as it is in full regards to our education constitution. So far, several factors support its implementation. Melbourne Corporation Principle of Intergovernmental Immunity The Melbourne Corporation principle of the inter-governmental immunity can also be the underlying factor in interpretation and enactment of the National Education Standard Act 2015 by the parliament. At this point, it is prudent to have a concise glimpse of the Melbourne Corporation principle and its sphere of influence on legal interpretation. Melbourne Corporation principle states that the constitution must control the legal relationship that exists between the central federal power, constitutive provincial and various regional power that exist in the federal state. The legal immunity of the Commonwealth, as a legal issue, was compounded and extensively discussed in the in the D’ Emden v. Pedder. From the discussion, it was established that Commonwealth had to be implied immune from any associated legislation of the state. The reverse of the ruling subsequently occurs in the case of Amalgamated Federal Railway and the Tramway Service v NSW Traffic Employee Union. The extent of the coverage of the immunity specifically after the Melbourne Corporation v Commonwealth ruling consisted of two very distinctive limbs. The first limb constituted illegalization against State discrimination to imply that the Commonwealth had no power to place any given burden or any particular disabilities in the federal state. The second limb of Melbourne entails the illegalization of the formulation of laws that had the following effects and implications. The laws present restrictions deterring the State from executing functions. The relevance of the contents of the Melbourne Corporation principle of the intergovernmental immunity in this case of the Education Act is the determination of whether there was a violence of its content or not. From the perspective of the debate of the same Act in the Parliament, the first limb of Melbourne Corporative Principle may protect the arguments that reject the Act. Noting the implication of the Act, however, there is no particular outlined burden whatsoever that comes with the Act. According to the second limb of the corporation principle, it explicitly state that that the state can only illegalize only the creation of particular laws that hinders the state from performing certain function or preventing it entirely from engaging in a particular activity. The State therefore automatically becomes immune to such laws created by Commonwealth. Critical analysis of the provision and applying it in your case can critically unravel and discern the present and the future implication of the Act. The legal impact of the Act lies in its provisions. From the analysis of the content of National Education Standard Act, the following are evidently clear. One, the provisions in that is not in any way imposing the federal government to any form of burden. This Act is just a sound mind strategy by the Commonwealth Parliament to step up the quality of education in its member state, like our federal state. The Act does not therefore qualify have any immunity from the federal government (Lee and Gerangelos, 2009). The provisions of the Education Act are also not in any way, legally imposing a law that impedes the federal government from delivering its mandate of the provision of education to its citizens. The act by the application of the second limb of Melbourne Corporation principle on the, not deserve a legal immunity. Noting carefully the kinds of legal impacts that potentiate application of immunity to particular laws of Commonwealth, it is noteworthy that the Act is legally feasible and carries no future complication. This of course is based on the assumption that future amendments to the Act, both in the federal parliament will remain conscious of the context of its application (Harris, 2013). Ideally looking at the Act, the main source of concern was the appointment of The Commonwealth Education Proctor as a legal representative of Commonwealth to all the institution. The main issue that may rise in due concern is implication of the powers granted to this representative. A legal perspective view similar to that of the opposition may be that the Commonwealth Education Proctor may deter the management autonomy of our institution. This may indirectly hinder the federal government from delivering its mandate to the people as legally required by the law. Basing the legal argument from such a perspective, the Act may appear as a persuasive act of stealthily transferring the government control to Commonwealth authority. This in the end can lead to the government inability to deliver its mandates appropriately in future (Penhallurick, 2001). The contradictory argument by the members of the parliament has such a basis. Under such circumstances, the Act can be subjected to the immunity as stipulated by the law. The Act will be imposing changes and processes that are not within its extent of jurisdiction and power. According to legal interpretation of the implementation process of the Act, the Federal government plays a crucial role in the process that gives it some degree of control over the Act. Section 3 of the same Act gives the Minister of Education an oversight authority of appointing the Commonwealth Education Proctor. The Federal government therefore retains an exclusive responsibility of appointing the very best to such a critical position and influences their operations. Relationship between the Act and the Government Further still, the Commonwealth Education Proctor remains answerable to the Minister of Education. In accordance with Section 4(e) of the Act, the Education Proctor has a responsibility of reporting to federal government through the Ministry of Education. To this extent, the Act has the meaning of cooperating with the federal government in enhancing quality of education to its citizens. There is evidently no legal crushed between the constitutional provision and the statutory provisions of the Act. Subsequently, the Act does not in any way result into breach of the Melbourne Corporation Principle on the intergovernmental immunity. It is legally formulated Act whose principal objective is enhancing the quality of education by achieving more strict oversight role by an external education partner. It is therefore a pleasure to us as Toowoomba law firm to reaffirm the faith of Kearneys Spring State School in the newly passed National Education Act 2015. Indeed the Act is an excellent elaboration of the federal government bold initiative to achieve a better Australia through quality education services. Moreover, the Act is under full support of the external affair power and does not violate Melbourne Corporation principles in any legal way. Yours Sincerely Solicitor Lawyer References Harris, Bede. (2013). A New Constitution for Australia. London: Routledge Lacey, G., & Commonwealth Secretariat. (2012). Guidebook to education in the Commonwealth. London: Commonwealth Secretariat Lee, H. P., & Gerangelos, P. A. (2009). Constitutional advancement in a frozen continent: Essays in honour of George Winterton. Annandale, N.S.W: Federation Press. Parliament of Australia. 2015. Federal Parliaments Changing Role in Treaty Making and External Affairs. Web. April 25, 2015. Retrieved from http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp9900/2000RP15#TheExt Parliament of Australia. 2015. ‘The Executive Power of the commonwealth: its scope and limits’. Web. April 25, 2015. Retrieved from Penhallurick, C. (2001). Commonwealth Immunity as a Constitutional Implication. Fed. L. Rev., 29, 151-176 Zines, L. (2008). The High Court and the Constitution. Sydney: The Federation Press. Read More