Separation of Judicial Power and Constitutional Validity of Legislations - Coursework Example

Separation of judicial power and Constitutional validty of legislations. (Author’s name) (Institutional Affiliation) Abstract The Constitutional Validity of legislations begins from section 51 of the Constitution of Australia which grants power to Parliament to make laws (Blackshield & Williams, 2010). The process of making laws by the Parliament of Australia is validated by the Constitution from the very beginning. Introduction The separation of powers doctrine as modernized by Montesquieu divides the arms or the institutions of the government of a country into three branches. The executive arm, the legislative arm and the judiciary constitute the branches of government under this doctrine (Blackshield & Williams, 2010).The Commonwealth Constitution outlines the separation of legislative, executive and judicial branches or powers. Each arm has certain defined roles. The executive arm implements the laws or ensures that the laws are in operation (Blackshield & Williams, 2010).The legislative arm is tasked with making laws and the judiciary interprets the laws that have been made. The powers of each arm are carried out independently. The aim of separating authority according to the theorists who advanced this theory was to prevent a situation of absolutism (Blackshield & Williams, 2010).The three arms check the authority and balance the power of the other in order to ensure the rule of law is upheld and to protect the rights of the citizens. Separation of Judicial Power and Constitutional Validity of Legislations Dicey (1959) advanced the constitutional theory that the legislature or the Parliament is the sole authority that makes laws. Dicey’s theory at that time was very correct but the relaity today has called for a slight modification of this rule. Parliament in certain instances have had to delegate this power to other authorities. When Parlaiment delegates this authority they seize to have complete authority. The increase in the use of the power of delegated legislation has facilitated the executive and other bodies to circumvent the control of the legislature or Parliament (Blackshield & Williams, 2010). Delegated legislations or subsidiary legislations are those laws that are made by bodies that the Parliament has delegated the authority to make laws. Ordinarily when Parliament enacts laws, the principal Act of Parliament makes a provision that allows a body to make delegated legislations. The Act sets the body that has the power to do so under the principal Act (Blackshield & Williams, 2010). Interpretation Delegated legislations imply a situation whereby authorities or certain bodies are able to make their own laws and regulations. There are three main forms of subsidiary or delegated legislation they include by-laws and council orders, statutory instruments and regulations and rules that are formulated under different legislations or Acts of Parliament. There are numerous reasons for delegating legislations such as pressure on the time that Parliament has to perform its duties (Doeker-Mach & Ziegert, 2004). The bulk of pending legislations are numerous and hence Parliament cannot fully devote all their time to make laws and for this reason they delegate power to other bodies. Another major reason is technicality. There are certain issues that have a technical subject matter that may be overlooked during discussions in Parliament. A body that has experts in a specific subject is able to get into the details of what is required under a particular subject (Doeker-Mach & Ziegert, 2004). For instance section 2(1) of the Medicinal Cannabis Act 2011 provides that the MCEA will comprise two members with knowledge and experience in the industry, trade and regulations. From the wording of the provision it is evident that the members should be experts so that they can get into the technicalities of the rules and regulations necessary in the trade. In the hypothetical scenario, the Commonwealth enacted the Medical Cannabis Act of 2011. Section one of thus Act established the Medicinal Cannabis Export Authority or the ‘MCEA’ which was to control the medicinal cannabis export industry (Blackshield & Williams, 2010). The facts of this fictitious scenario thus fall within the ambit of constitutional validity of delegated or subsidiary legislations. The MCEA is the authority that has been granted delegated legislative functions. This body is expected to regulate the export industry of medicinal cannabis. The body is also tasked with granting licenses. In summary this body is expected to ensure that the industry is run as envisioned by the Commonwealth. The body or Aunthority will be required to make rules and regulations that are detailed pertaining to the export of cannabis. There is a presumption of Constitutional validty of legislations. This presumption assumes that the legislative organ or Parliament cannot enact legislation that is invalid or void. The presumption that legislation or a statute is Constitutional is indisputable. This presumption that favors Constitutionality only reallocates the burden of proof and places it on the one who alleges otherwise. The person who alleges otherwise is required to demonstrate that there is a vivid transgression of principles of the Constitution of Australia (Singleton, Aitkin, Jinks & Warhurst, 2003). From this presumption it is clear that the Medicinal Cannabis Act of 2011 is Constitutionally valid and any body under it that makes further rules and regulations is prima facie valid under the Constitution (Singleton, Aitkin, Jinks & Warhurst, 2003). The Commonwealth of Australia Constititution Act outlines the legislative powers of Parliament under part V. Section 51 of the same provides that the Parliament has power to make laws for the order, peace and good governanace of the Commonwealth of Australia subject to the same Constitution (Parkinson, 2002). Advise Allan Characterization Allan sought a license from MCEA to transport cannabis from a farm in northern NSW to Brisbane. MCEA however, refused to grant him a license on the grounds that he was not of good character and he had a criminal recors relating to the use of amphetamines when he was a teenager (Zines, 1997). MCEA is supposed to grant or refuse to grant license where it deems fit. The law has granted braod powers to MCEA in relation to this industry. the question concerning Allan’s case is whether MCEA had full capacity to refuse to grant license. Sufficient Connection The MCEA is from the foregoing an authority that has the power to make necessariy regulations and policies that concern the export of medicianl cannabis. The law prescirbes that a susdiaiary or delegated legislation exists by virtues of an enabling Act or the Parent Act. The MCEA’s rules and regualtions concerning the export of medicainal cannabis exist under the parent Act, the Medicinal Cannabis Act 2011 (Singleton, Aitkin, Jinks & Warhurst, 2003). Since the Act is ab initio Constitutionally valid, the MCEA is also valid and has the full backing of the law to regualte the export of medicinal cannabis. The parent Act prescribes the administrative facts that are essential to warrant that the provisons prescribed by the Medicinal Cannabis Act of 2011 will run smoothly. Section 6 states that determinations of the MCEA are subject to review on questions of law by the Full Court of the Federal Court of Australia. This provision is in line with the doctrine of judicial review and power separation (Singleton, Aitkin, Jinks & Warhurst, 2003).The Act through MCEA does not oust the jurisdiction of the court. This further reiterates the Constituional validity of thelegislation. The Parliament by virtue of section 51 has the power to make laws with respect to trade and commerce (Zines, 1997). Advise Belinda Characterization Belinda was fined about $10,000 for spraying pesticide on crops on a farm that was near the cannabis farm. Section 4 of the Act prohibits aerial spraying of pesticides over farms licensed by the MCEA to grow medicinal cannabis or within a 2 kilometre radius of a licensed farm. Section 5 permits the MCEA to impose penalties for breaches of the Act according to the law. The Act prescribed regulations concerning spraying over farms that were near the cannabis farms and MCEA as the body to enforce that provision. The question concerning Belinda’s case is whether MCEA’s penalty towards Belinda was valid under the Constitution. Sufficient Connection Section 3 of the Medicinal Cannabis Act of 2011 provides that it is unlawful to plant and grow, transport or export cannabis for medicianl purposes without a proper licencse granted by the MCEA (Singleton, Aitkin, Jinks & Warhurst, 2003). The MCEA also sets conditions that it deems fit before granting the license or authorising any dealings of medicinal cannabis. Section 4 of the same Act prohits aerial spraying of pestisides over the farms that have been licensed by MCEA to plant and grow medicinal cannabis or within a two kilometre radius over farms that have been licensed (Singleton, Aitkin, Jinks & Warhurst, 2003). Advise CareFree Living Pty Ltd Characterization CareFree Living Pty Ltd has been refused an export licence by the MCEA because it also sells cannabis in Holland for recreational use and the Australian government remains resolutely opposed to the recreational use of cannabis. MCEA was acting on behalf of the government of Austrlaia by refusing to grant CareFree Living an export license. The question concerning the refusal by MCEA to grant CareFree Living Pty Ltd is whether that refusal by MCEA is valid under the Constitution. Sufficient Connection As discussed earlier from the onset, Parliament have carried out their tasks as prescibed under section 51 of the Consitution. The parent Act grants powers to MCEA to regulate this industry. The MCEA carried out its functions within the ambit of the law The power of delegating authority is necessearry and it is recognised as valid because Parliament may not be able to supervise all the activities that the Executive intends to carry out (Parkinson, 2002). Authorities such as the MCEA come in handy as the are able to carry out the grass root details that are necessary for the success of the export of cannabis for medicinal use. Section 6 provides that determinations of the MCEA are subject to review on questions of law by the Full Court of the Federal Court of Australia. In the case of Lamason v Australian Fisheries Management Authority (2009) FCA 245, the Federal Court of Australia made a ruling concerning the challenge as to the Constitutional validity of a legislative instrument of the Commonwealth, the 2005 plan of Eastern Tuna and Billfish Fishery Management. The decision by the Federal Court reveals that the threshold to be reached by an applicant who wants to invalidate a legislation that is delegated is high especially on the grounds of irrationality or unreasonableness. The court subsequently confirmed that, in cases where the validity of a delegated legislation is put to challenge, for the one applying to succeed, the necessary requirement is to demonstrate the lack of an actual connection between the legislation that is delegated and, the intention for which Parliament delegated and conferred authority (Blackshield, and Williams, 2010). Conclusion In my view, MCEA acted appropriately by fining Belinda and by denying licenses to Allan and CareFree Living Pty Ltd. The provision similarly applies under the trade and commerce power of section 51 of the Constitution. The doctrine of power separation is clear. Parliament makes laws and in many instances, this power is delegated to other authorities that are better placed to make the necessary legislations. MCEA is valid under the Constitution to act as it did and it is also in line with the doctrine of judicial power separation. References. Blackshield, T and Williams, G. (2010). Australian Constitutional Law and Theory. (5 Ed.) Annandale, NSW: Federation Press. Doeker-Mach, G. and Ziegert, K. A. (2004). Law and legal culture in comparative perspective. Germany: Franz Steiner Verlag. Parkinson, P. (2002). Tradition and Change in Australian Law. Sydney: LBC Information Services. Singleton, G., Aitkin, D., Jinks, B. and Warhurst, J. (2003) (7th Ed.). Australian Political Institutions. Sydney: Pearson Education Australia. Zines, L. (1997). The High Court and the Constitution. (4th Ed.) Sydney: Butterworths. Read More