How Australian Law Has the Distribution of Power between the Commonwealth and the States Changed - Research Paper Example

Name: University: Course: Tutor: Date: Introduction of Australian Law Introduction Back from thousand of years the law concept was derived at, this occurrence was obtained from many sources; the main intention of these mergers was so that there forever is order in the society and the whole world. Every country in the world has their won legal system that is unique and this is tailored to suit the requirement of the citizen protecting their rights, express morality and property. This ranges to set of laws which are adapted and have been generated from different legal writings and codes. In Australia the legal system that acts as the governing body and is featured by this state is commonly referred to as Common Law Legal System. This assignment will examine on the Australian law and how, if at all, has the distribution of power between the commonwealth and the states changed since Federation in 1901. To begin with let first expound on the legal system of this state, in very lay man term Common Law is actually based on hierarchy of law that is developed and upon past decree to make present judicial verdict, this is also referred to as “judge-made law or case law.” These is analyzed by analyst as a set of rules and regulations that are set for judges, to help them to critically examine, evaluate and come to sound conclusion for the outcome of a certain proceeding (Brenton, 121). These makes Common Law as its sound be the law that stands for the rights of all common man because of its important element of statutes, these were mainly developed to dominate, proscribe and institute policies that should be adhered to and pursued by the common people who are under these obligations. In the common law Statute is definite of legislature act from which a law originates, in the Australian legislative, there are many branches which all constitute of the section of the common laws these includes; criminal, traffic, contract, constitutional, consumer and tort laws. Most of these laws were formulated after the constitution of Australia was enforced in the year 1901 which saw the merger of the colony state becoming a member of the commonwealth Australia. History The character which is harbored by the legal institution and tradition, which are fostered by the Australian laws are from long ago considered to be of monoculture temperament, these is basically signaled by its English origin. Private ownership and international law are the contemporary ideologies which have actually influenced these ideas, these was so because of the way that the British were in regard of the Aboriginal peoples being so very primitive to as to have the Australian continent as their possession lawfully. The British colonies used to treat some of these regions as uninhabited land which is fit for settlement regardless of the occupants; they called this kind of evaluations which they termed terra nullius. These inhabited land that was held by Privy Council and was allocated to the English subjects for settlement, was usually governed by the England laws, the aboriginal native who were the people who are the original owners of these land were not allocated titles for the land, these saw their customs and traditional laws abolished and not recognized (Carney, 36). These attributes gave birth to the reception of the English law, these was clarified in the year 1828 by the Australian Court Act, these the English concluded that all laws and statutes be enforced in England to date of the legislative enactment, these was said to be applied by New South Wales and Van Diemen’s Land (Tasmania) as far as they could be applied by these states courts. New South Wales State was formulated to be part of Queensland and Victoria, so for reception of the English law the same date was implied to all these states. The south and west Australia all together each did adopt dissimilar reception dates. The beginning of the colony of the New South Wales which was rudimentary saw the establishment of the earliest civil and criminal courts, these also fostered some other characteristic which were adaptive and military. The law of the colony was in many times egalitarian more than the Britain these also saw the limitation of the powers of the colony and governor, which made legality not to be observed. However the source and origin of the Australian law is considered to be very complicated these is because of the structure of the federal, this is because these structure generates two sources of constitutional law which are written down and namely federal and state, these also see off the two source of stature law generally, in cases where two jurisdiction might conflict the governing body that decides the validity of the state and federal statutes is the federal constitution. Recently in Australia statutes which were passed by the United Kingdom parliament were also applied in the law system of this state. The reformed which are suggested by the attorney general and by the public though these rarely occurs on special occasions and jurisdiction is evaluated and investigated by the Australian Law Reform Commission. The main features of the Australian laws is what differentiates it from other western legal systems, this is because the legal system of this state usually rely on through the precedent doctrines. From time memorial the channels which governs these system have been linked to that laws comes from parliament and this are referred to as legislative and the other directive is the court which theirs laws are referred to as case laws and are commonly termed as common law. This law system is traced back to the Norman period which states that the Australian law originated from the English law on the historical period of Norman. The power system which was initiated on those times basically relied on the mechanism known as Feudalism, this mechanism is where the rule of the king is the superior of the land or state which this king governs, and the power mechanism intercepted through hierarchy, by these the king is the owner of all that is in the land and all ownership is reserved to him, he leases the land out (Carvan, 217). The cycle rotation on from the king to the people who are common ground men and farmers who the land is leased and in return shares the produce and also provides the empire with military support when the need arises. How distribution of power between the commonwealth and the state changed since federation in 1901 Federation of Australia is generally considered as the a progression which brought together the six separate British colonies to for up a federation, this was in the year 1901 1st January when these was enforced as the constitution of Australia and these six colonies merged and formulated the states which was referred to as the Commonwealth of Australia. This was dogged back by the effects which later brought about the federation in the midst of the 19th century due to the popularity support of the movement. This was given in due to the pressure by the numerous numbers of the conventions which were held in the falls of 1890s, the fuelling factor was the increment of the progression in the installation for the commonwealth a constitution. The person who personally spear-headed this process, was the premier of New South Wales Sir Henry Parkes. New Zealand and Fiji both contributed in these processes but later declined to be included and did not join the federation. During these happenings the person who was enacted as the caretaker of the Australia prime ministry Sir Edmund Burton, retained the prime minister-ship after the inaugural federal election in the wake of 1901. From the ten territories only three of these actually conferred conspicuously a form of self government which is consequently different from the others. These are the territory of north (1978), Australian capital (1988) and Norfolk Island (1979) territories, the remaining seven territories lingered in the control of the Commonwealth rule, these however did not later their legal regimes which are drawn from the states or from territories which are self governing. Though, the ten territories would later on still be enlisted under the territories power of the section 122 of the constitution of the commonwealth amendment. In the wake of the 20th century these brought about legal debates which were generally waged over the rightful place of these territories in the federal system, the most particular one being the extent of the territorial powers under restriction to the application of other Commonwealth powers. The only ram of law that has been rectified and clarified on its position in the federal system is the High Court. Though this did develop some changes which developed into two categories of citizens because of the nature of whether they resided in the territory or state, this was brought about due to the constitutional status affecting the territorial residents (Lyall, 217). The roles were basically divided into two which this assignment is going to evaluate the roles of the state and the relationship of constitution harbored by the states of the common wealth. States Roles The states roles which are currently being enforced at the moment are very different from what was envisaged by the majority of the drafter who chaired the Commonwealth constitution these occurrences was anticipated in the year 1890s. The desired roles which were to be enacted to the Federation of the Australian states and commonwealth, each was to be equal partner with considerable working autonomy which would make them each have respective responsibility spheres. These would be formulated so as to have the views of the roles to be in accordance of the federalism coordinate. The senate was the balance which was estimated as the key player, these would include all the senators of each state irrespective of the size of the state or its population. These were selected so as to equalize the bigger and popular states of New South Wales and Victoria from overriding the four smaller states interest. The whole process was left solely on the political process and was its main aspect was to be responsible for maintenance of federal balance appropriately, however due to the current electoral set up, where the senate commenced on electing a party other than the state lines after federation the original plan become undone eventually (Allars, 97). These made the commonwealth to consequently concentrate their focus on national interest primarily and paved way for the loss of protection of political chief. These brought about the value that the Commonwealth had to look up to Commonwealth constitution for the achieving powers so as to accomplish its national duties. The chief justice Sir Samuel Griffith red various head of power down to shield the states directive on customary areas, though this only lasted to his retirement in the year 1919, after that the high court during the engineers case abolished the directives set and formulated the interpretation which concluded that all commonwealth power heads each be issued with natural and ordinary meaning. This initiation facilitated growth in power for the Commonwealth, these was observed to have been experienced without any preserved legal opinion which would had stipulated federal balance on the constitution fostered by the Commonwealth. These were enacted in the section 51 of the Commonwealth powers and the most important key facilitators recognized by many commonwealth nations because of the undue advantage it has are; i.) Other countries and among states trade and commerce ii.) Excise duties iii.) Formation of foreign corporation and financial or trading corporation within Commonwealth limits iv.) Enabled Commonwealth control of significant commercial range activities by the External affairs The introduction of the uniform income tax greatly benefitted the Commonwealth in the year 1942, they viewed these as a form of increment of resources and revenues, these was complimented by the high court prohibiting rigidly on the excise and custom duties on the section of 90, which removed the imposition of goods and services under commonwealth tax (GST) these was enacted in the wake of the year 2000. These were referred to as vertical fiscal imbalance which was viewed by analyst as the greatest financial dominance of the millennium. Also under the same clause in the section 92 these also allowed the commonwealth to have control and regulate over areas of environmental education, health and protection. The expansion of the powers of Commonwealth is basically facilitated by the term commonwealth these happened due to political events or forces, which later fell on the gradual emergence following the end of the Depression, First World War, advances of technology, Australian citizenship recognition, international prolific treaties ratification, multiculturalism, international competitiveness reform, war on terror and globalization, these were considered the sense of Australian nationhood. There were enforced and enacted as the Commonwealth Legislation, the high court up held any challenge that was directed at these political forces and events, this has made the level of the federal-state cooperation enhanced, these has been recorded in the duration of over the last 20 years that has past. This has brought about many changes such as burgeoning bureaucracies in the government, policies increment in key areas such as health, education, transport, security, law and order and conservation of water and environment. However there many political dilemmas that are affecting the population and the citizen of Australia as to whether the expansion of commonwealth is for the best of interest for this nation of if it have no real value. Though this is only contradicting because of the enacting of more laws which are from the British parliamentary which many view as colonial act. Many also view federalism as a stage of transitory that evolves around disunion and union, this is because that many fear the closeness that federation tend to cling so close than its was anticipated and brings about worries to those who have no knowledge of what its entitles and even to the way it was formulated. Analyst considers federation as an approach that reaches for something in equilibrium. The eventuality of the desired outcome is generally resolute by centralist political forces, this makes the relationship between the States and the Commonwealth have the fundamental key of success of the States, these is viewed as the dominance force of these financial relationship. This follows the settling of the Uniform Tax Scheme of 1999 and involvement of more regional government making the states more canvass. The only anticipated changes that are bound to occur because of the absence of seismic shift in the political arena of Australia or economic circumstances, this will be complemented by increase of evolution of federal system, and this comes as in the favor of the Commonwealth (Waugh, 139). The constitutional relationship harbored by the States of the Commonwealth There are many description of the relationship between the States and Commonwealth, to these the assignment is going to expound on so as to find the fundamental propositions; The constitution of Commonwealth guarantees implicitly that there shall be continuity being of polities which formulate the States, these include an executive, parliament and judiciary Under the constitution of the Commonwealth then all States are vested with outstanding power of legislative which falls on the section (107) only small part of the laws are concurrent with Commonwealth supremacy. The other supremacy harbored by Commonwealth is ruled out by the States. Commonwealth law indirect or direct discrepancies provide States laws to be out of order because of the discrepancies this is located at the section (109) of the constitutional of Commonwealth. Commonwealth can only grant financial incentive to the State to suspend certain exercise but cannot compel the States to surrender any of its authority. The State cannot be alienated by the commonwealth to perform as an independent government, also so can the State not interfere with the regulation of Commonwealth capacities though it can regulate the transaction which are formulated under these capacities. The financial relationship between Commonwealth and the States The description of the relationship between these two factors is usually regarded and depicted as vertical fiscal imbalance. The meaning of this being that the commonwealth t5axes are more accumulative than those of the government, these has been depicted that the amount in this expeditions are sometimes more than its requires for its operation, these is the opposite of the state as they hardly raise such amount for their upkeep, and they taxation from the expeditions which the Commonwealth get the large share the government nearly meets its goal for the revenue they need for smooth operation. These is found on the foundation that were enacted after federation, these allows the Commonwealth to impose excise and custom duties in the section (90) which allows this as the benefits of the relationship between the two, after the federation the Commonwealth acquired these powers from the States. The agreement states that after the Commonwealth has authenticated these exercise then the states shall in return get 75% of the revenues from these factor. The original chapter which has these amendments did not limit these enactments to ten years but it was later changed in the year 1899 so as to secure the approval of New South Wales. These also saw the addition of the section (96) which was inputted to add more value to the Commonwealth so as to guarantee financial assistance to any ailing State, these was to be authenticated by the parliament on ways which it would see to be fit to the terms and conditions implied. There were though a few set-backs to these well laid out plan of vertical imbalances which deteriorated because of two financial set-backs by the States. The first setback was due to the impact the World War II had on the Commonwealth’s scheme of Uniform taxation, these was mostly deterred by the fact that the State could no longer impose of own income levy. The Commonwealth used combined package of Acts effectively so as to be able to persuade the States politically, to these they enforced the States to rescind income levy through commanding a new federal income levy which would be equivalent to the one that had been previously levied by both Commonwealth and the States. Later the States was to benefit from the share of the total of the income levy that would be raised in this expedition. The enacting of these projects was tailored to only sustain the States for the duration of the time by end of the Second World War; however this activity has continued been in operational up to the moment. The second set-back was brought about by the case of 1997 where the Ha v New South Wales, these under the section (90) saw the validation of the State licensing bills; these become excise duty and become charged within the powers of Commonwealth. While all these was been transpired the States also solely become dependent on the funding from the Commonwealth so as to formulate and structure their budget. Because of the absence of a proper constitutional mechanism that would have governed, instilled policies and establish funding level, this made the States from 1910 to be at the mercy of Commonwealth. They are later enslaved by the fact that under section (96) of the constitution which gives the Commonwealth authority to add a variety of provisions on the federal funding they were allocating to the States, these provisions due to this implication can even stretch beyond areas that are prescribed by the legislative power heads. The premiers were always at logger heads fighting over the incentives by the Commonwealth; these included the financial assistance in terms of grants and payment of specifics. The sate of affairs permitted Commonwealth to constrict the States the real terms until 1999; they were aggravating the real vertical fiscal imbalance. After this year there were turn of event and these saw the formulation of intergovernmental agreement linked to the transformation of the State Financial Relation to the Commonwealth. However these only worsened the vertical fiscal imbalance, though it also provided for formulation of disbursement of Commonwealth revenues to the territories and States. After these agreements was formulated and enacted the Commonwealth approved the return of the Northern Territory and ACT to the States, these also saw the return of all the revenues from the goods and services levy of the Commonwealth since the imposition on July 1st 2000, for the return of these factors the State abolished their sales levy and all other inefficient levies. The Commonwealth also granted some promises which summarized was to ensure that, within the given transitional period of six years, that the State and the Territories condition would never deteriorate as from the course of this agreement. The Commonwealth Grant Commission (CGC) is the body that sees off the distributions of the revenues which is in accordance with horizontal fiscal equalization (HFE) principles. There has been uproar and critics in the manner which the CGC and how the computation of the distribution are conducted. Even with the introduction of the Special Purpose Payment (SPP) grants by the Commonwealth which was formulated in the agreement of intergovernmental in the year 1999. The main aims for the formulation of this grant were to advance the policies of Commonwealth and were mainly targeted to the local government though they also tied to the traditional States fields. Work cited Allars, Margaret. Introduction to Australian Administrative Law, New York, Lexis Law: 1990. Print. Brenton, Scott. Australian Capital Territory: The Australian Journal of Politics and History, London, Blackwell Ltd: 2009. Print Carney, Gerard. The Constitutional Systems of the Australian States and Territories, Queensland: Cambridge University. 2010. Print Carvan, John. Understanding the Australian Legal System, Sydney, Lawbook Co: 2002. Print Lyall, Hunt. Towards Federation: Why Western Australia joined the Australian Federation in 1901 Nedlands, W.A. Royal Western Australian Historical Society, Australia: Bonds University, 2000. Print Waugh, John. The Rules: An Introduction to the Australian Constitutions, Carlton, Melbourne university: 1997. Print. Read More