Foundation Law and the Commonwealth - Assignment Example

Running Header: Foundation Law Foundation Law Author’s Name Instructor’s Name Course Number Date of Submission Part A 1. The constitution Relationship between state and commonwealth Australia has a federal system of government where powers are divided between the commonwealth federal government and individual states numbering six. In this regard, states operate under the constitution, laws and powers they had before federation unless where modified by Australia constitution. In case of conflict between commonwealth and the states in law making, the commonwealth is given priority hence state law is rendered invalid as far as the inconsistency is concerned. States are also allowed to give territory to the commonwealth although commonwealth is prohibited from making laws that establish any religion as the national religion. Remunerated and residual powers The commonwealth is given precedence in law making and incase of inconsistencies, the commonwealth prevails. Australian constitution does not contain central features of the system of government but these are based on conventions and customs. The constitution also does not contain the bill of rights. These powers ate bestowed on the parliament where the constitution is silent. The Governor-General and Governor Apart from having a federal system of governance, Australia is a constitutional monarchy with the Queen being represented by the Governor General who is appointed by the Queen in consultation with the prime minister. The Governor-General has powers to appoint ministers, judges, give loyal assent to legislations that parliament pass, issue writs for election and give honors. On the other hand, Governors are the Queen’s representatives in the six states and the states chief executives who perform similar functions as the Governor-General at the state level and though they are directly responsible to the Queen, they are under the constitutional authority of the Governor-General. 2. Legislature –Law making system Type of system Australia is a constitutional monarchy with a federal system of government headed (ceremonial) by the Queen as the head of state. Structure of parliament The Australian parliament has two houses including the senate and the House of Representatives as well as the Queen whose representative is the Governor-General ((who has the power to summon and dissolve parliament). It is responsible for making national decisions and laws (aph.gov.au, 2013). The states also have bicameral parliaments just like the federal parliament with the lower house called Legislative assembly and the upper one called the legislative council. They make laws at the state level. Electorates and election procedures Electorates in Australia are the geographical areas represented by a member of parliament (elected) and are called Divisions at the commonwealth level and electoral districts at the state level. The election procedure in Australia starts with voter registration where electoral rolls are made, electors are enrolled and the electoral roll is closed before the election. The parties conduct their nominations before the elections are finally conducted by the commission. Process for passing legislation A bill is introduced into one house either as a government bill or a private member’s bill in what is known as first reading. The second stage is the second reading where the bill is discussed for the first time and amendments can be made on it and if voted for, it moves to the next stage. The third stage is the third reading where members vote on the bill and if passed by the house, it is taken to the other house for consideration. The bill then goes through the three readings in the other house and if amended, it is taken back to the first house for consideration and if passed by both houses, it is taken to state Governor if it is at the state level or to the Governor-General at the federal level who then signs it or gives the Queen’s seal of approval. On the assent, the bill becomes law unless specific timelines have been set in the bill. 3. Judiciary Names of courts and court hierarchy Australian courts are divided into federal courts and state and territory courts and tribunals depending on the level at which they operate. The diagram on the appendix shows the court hierarchy in Australia Court Jurisdictions The highcourt being the highest court has appellate jurisdiction over all other courts and some original jurisdiction and power of constitutional review. The federal court of Australia has original jurisdiction on matters relating to corporations, industrial relations, trade practices, customs, bankruptcy, immigration and other federal law matters. It also has appellate jurisdiction in cases not involving family law and some tribunals. Courts with appellate jurisdiction include the full court of federal court, court of appeal of NT Supreme Court, full court of appeal of state supreme courts and full court of family court. The family court has limited jurisdiction on matters to do with family law (constitution.org, 2017). The federal magistrate court mainly deals with bankruptcy, administrative law, copyright and family law. It also has appellate jurisdiction on such matters as visa and residency refusals. The state high courts have appellate jurisdiction on state and territory supreme courts, constitutionality of any state or territorial legislation. The state courts of appeal have appellate jurisdiction over supreme or county district court matters. The state supreme courts have original jurisdiction over criminal offenses and appellate jurisdiction over criminal and civil disputes. County courts has jurisdiction over serious criminal charges. The magistrate court has jurisdiction over minor criminal offenses. Types of legal personnel The Australian judiciary is served by various legal personnel including the judges and Juries who preside over various types of cases and lawyers who represent the various parties in a case. An explanation of the adversarial process This is a system applied in Australia whereby the parties to a case are represented before an impartial jury or judge who then determine the truth of the case and issue judgement on the basis of the presentations. This allows the judge or jury to ensure impartiality and independence in determining the case by not participating in it. In this case, the hearing becomes the climax of the litigation process and the parties through their advocates control the proceedings and the evidence which is presented including questioning the witnesses. Doctrine of precedent and the creation of common law Also known as stare decisis, the doctrine calls for judges or courts to make use of rulings of previous cases where two cases have similar facts. The court in this case ought to apply such a case if the previous case was determined by a higher court in the hierarchy. This doctrine is applicable in Australia. 4. Executive Prime minister and Ministers The Governor-General performs ceremonial roles as the head of executive. However, the prime minster actually heads the government and one becomes a prime minister on being elected the leader of the government party or the major party in case of a coalition government (peo.gov.au, 2017). The prime minster presides over his/her cabinet which is the government’s policy making body and also decides major legislative and policy proposals. The ministers to the cabinet are selected by the prime minister in accordance to the constitution. The minsters are members of cabinet and administer the government’s major departments. The minsters are appointed from both the houses of parliament with majority coming from the House of Representatives. Role of the executive The executive is responsible for the day to day running of the government. The executive is responsible to Australian parliament regarding the operation of the various government departments as well as the administration of the law. The executive is responsible for administration of the law, making policy decisions and their administration as well as government administration. Government departments and public servants The government is divided into major departments which are responsible for implementation of government policies. In this regard, the government employs civil servants to aid in government policy implementation. The constitution provides for the Governor-General to appoint or dismiss civil servants though in actual sense, this is done by the prime minster. B: Comparison with Oman Constitution 1. The constitution Relationship between state and commonwealth Oman Sultani is a unitary state with a unitary government headed by the Sultan and no states like Australia. However, the country is divided into Wilayah (provinces) mainly for election of members of the consultative assembly (Khalil, 2017). Remunerated and residual powers Unlike in Australia, Oman constitution donates a lot of powers to the Sultan to make laws through decrees. The constitution however, lays down the system of government and includes sections on the rights of citizens. The Governor-General and Governor Unlike Australia, Oman is an absolute monarchy with the Sultan (an equivalent of the queen or the governor-general) as both the head of state and the head of government. The sultan is hereditary and must be a male descendant of Sayyid Turki bin Said bin Sultan. However, his functions are similar to those of the Governor-General including appointment of prime minister, deputy prime minister, cabinet and is the country’s overall ruler. Legislature –Law making system Type of system Unlike Australia, Oman is an absolute monarchy with a unitary system of government headed by Sultan as the head of state and government. Structure of parliament Like Australia, the legislature (The Oman Council) has two houses namely the Shura Council or advisory council and the council of state. The constitution does not define their responsibility or powers but they operate as consultative organs and have powers of proposing and drafting laws. Electorates and election procedures The electoral units are the provinces (Wilayah) with each wilayah with 30,000 people electing one representative to the Shura council. Members of the council of state are however appointed by the Sultan. The electoral procedure is similar to that of Australia although there are no political parties in Oman and hence all members elected are independent members. Process for passing legislation The process is similar to that of Australia. The council of ministers refer draft laws to the assembly (Shura council) and it is required to approve or amend the draft within three months. The law is then referred to the state council to approve or amend and if the two houses disagree, they take a vote to resolve the difference. If both the houses pass the bill, the Sultan must approve and sign it to become law. 3. Judiciary Names of courts and court hierarchy The courts hierarchy is different from that of Australia. The highest court in Oman’s courts hierarchy is the supreme court of Oman. The lower courts in that order include the state security court of Oman, the courts of appeal of Oman, the administrative court of Oman and the courts of first instance. Court Jurisdictions This differs from Australia. The Supreme Court being the highest court has original jurisdiction on constitutional issues and appellate jurisdiction on matters decided by lower courts. The state security court has original jurisdiction on matters on state security (constituteproject.org, 2017). The court of appeal have appellate jurisdiction on rulings passed by courts of first instance. The administrative court of Oman has original jurisdiction on administrative disputes and hears disputes by civil servants. On the other hand, the courts of first instance have original jurisdictions on civil and commercial cases. Types of legal personnel Unlike Australia, the judiciary systems and hence legal personnel are largely based on the sharia law. An explanation of the adversarial process The adversarial process is also applicable in Oman just as in Australia. Doctrine of precedent and the creation of common law The doctrine is applicable in Oman just as in Australia 4. Executive Prime minister and Ministers Unlike in Australia, the Sultan is both the head of state and government. The prime minister is at times appointed by the Sultan who also appoints deputy prime ministers and ministers who form the cabinet and run the government (unibe.ch, 2017). Role of the executive The executive performs the same roles in Oman just like in Australia but are answerable to the Sultan. Government departments and public servants This is similar to that of Australia although the Sultan has the role of appointing and dismissing the civil servants. References: Khalil, M2017, The legal system and research in the Sultanate of Oman, Retrieved on 2st April 2017, from; http://www.nyulawglobal.org/globalex/Oman.html aph.gov.au, 2013, Infosheet 13-The Constitution, Retrieved on 2st April 2017, from; http://www.aph.gov.au/About_Parliament/House_of_Representatives/Powers_practice_a nd_procedure/00_-_Infosheets/Infosheet_13_-_The_Constitution peo.gov.au, 2017, The Australian Constitution, Retrieved on 2st April 2017, from; http://www.peo.gov.au/learning/closer-look/the-australian-constitution.html unibe.ch, 2017, Oman-Constitution, Retrieved on 2st April 2017, from; http://www.servat.unibe.ch/icl/mu00000_.html constitution.org, 2017, Commonwealth of Australia constitution act, Retrieved on 21st April 207, from; http://www.constitution.org/cons/australi.txt constituteproject.org, 2017, Oman’s constitution of 1996 with amendments through 201, Retrieved on 2st April 207, from; https://www.constituteproject.org/constitution/Oman_2011.pdf Appendix Read More