The Concept of Constitutional Validity - Research Paper Example

Federal Constitutional Law Name Date Course Table of Contents Table of Contents 2 Abstract 3 Federal Constitutional Law 4 Debate 5 Position 5 Debate 6 Analysis 7 Arguments 9 Summary 11 Conclusion 12 References 13 Abstract The constitution plays an important role in terms of determining whether a program or a project is valid or not. This is because a program has to be supported by legislation for it to be valid in accordance to section 51. However, some sections of the federal constitution law may give powers to institutions or office holders to make certain decisions according to section 53 and section 96. This is directly related to the fortress program which is aimed at securing Australia from any external attack. The proposal for establishing the project was due to the fact that Australia is an Island. This exposes it to external attack from any direction and mainly the north. However, this is only a reason that the prime minister gave. No evidence to support the claims was given. The program has both supporters and opposers. This is because of the debate that the issue has generated. The opposition to the program is base on issues of constitutionality and validity. However the support of the program is based on the national interest and the sections of the constitution that supports the funding of the states. However, from the analysis, it is evident that the program is not valid in terms of the constitution. This therefore gives room for constitutional challenges that may arise incase the program is funded. The challenges may affect the program and hence its failure. On the other hand, it is also important to note that the amendments of section 96 will affect the implementation of the project. Incase of success in a referendum, the program may end up not taking place. However, the program may take place incase the referendum to amend the section fails. Federal Constitutional Law Introduction The security of the Australian people from external attacks is important for the purposes of protecting the people. This requires an active participation of the federal government in terms of financing the measures that are aimed at enhancing the security. However some of the measures that are usually put in place are not effective. This is due to the past experience that the country has had when implementing the security measures1 (Patrick, 2002). The fortress Australia program is one of the measures that are being supported by the government and the prime minister Ruddy Rabbit. Under this program, the federal government is supposed to provide funds for the construction of sea walls and zombie proof bunkers. This is in a bid to prevent the entry of the enemies to the country. The prime minister is convinced that security threats form external forces is inevitable and it is bound to take place at some point if adequate measures are not put in place. The prime minister is supposed to advise the governor general accordingly before the major decisions are made. This is according to the section 57 which deals with the executive powers. Every local council across the country is supposed to receive the funding for the construction project. The project faces opposition and support from different leaders of the country. The lack of legislative framework that guides the program is however missing. The funding for the program is also huge and the funds could be used for other important programs in the country and hence the opposition. The forth coming referendum that seeks to amend section 96 of the constitution is also an issue that affects the program. This raises the constitutionality issues in relation to the program. The paper thus discusses the issues of the program in relation to its constitutionality. Debate The constitutional validity is the major concern for the program. This has raised the debate as to whether the federal government is should invest a huge amount of money in facilitating program. According to those supporting the initiative the debate is based on the fact that it is the responsibility of the government to put in place adequate security measures in order to protect the people. The fortress program seems to be a proper solution to tackling the security threats according to the government and the prime minister. This is also considering that the country may experience a major security threat since it is an island. According to section 96 of the Australian constitution, the Australian parliament has the power to grant money to any of the states2 (Blackshield, 2010). However, various terms and conditions are imposed. The conditions are usually legislative in nature and hence the debate related to the program. Position According to the government, the project is for the sake of the national interest. The national interest, in this case is the matter of national security. The federal laws allow the government to take any measure for the purposes of national security. This can be traced way back when the government took measures to confine the boat people in camps as it was for the purposes of national security3 (Summers, 2006). However, in this case, no threat has been identified and hence the opposition to the program. However, it is evident that some of the local councils are in support of the program. This is because the local council of Romeo in Queensland is eagerly waiting for the funds in order to commence the project. The federal government is also taking advantage of section 96 which permits it to offer grants to the states for the purposes of implementing various projects. The case of Attorney general; Ex Rel Black V common wealth is also a case that sought the interpretation of the courts regarding section 96. It was however upheld that the commonwealth parliament has the powers to approve financial assistance to any state on terms and conditions that it sees fit. However, section 51 of the constitution is also clear in terms of funds being offered to the states4 (Rosemary, 2007). This section limits the power of the state in terms of funding various projects. Since the project lacks the legislative framework, it can also be considered unconstitutional. It is thus important to note that the program is exposed to challenges emanating to its constitutionality. On the other hand, the program has no basis as it does not have the potential of totally dealing with the security threats to the country. Internal threats may also pose a serious challenge to the security of the country. This means that the funding for the program is wasteful to some extent. Debate Although section 96 of the constitution gives parliament the powers to ensure that money is granted to any of the states for different reasons that it see fit5 (Australian constitution, 2013), this particular program is however conflicting. It does not have the legislative condition that is required before the funds are approved. The approval of the grants is usually tied to terms and conditions that have to be fulfilled by the states. In this case, the grant does not have any terms and conditions for the state and hence the debate. This is therefore a constitutional issue that could stop the funding and it raises the debate according to those opposed to the program. On the other hand, it is also important to note that section 96 also gives the states the power to reject the grants. This means that the states have the right to reject the funding for the program which is also within the constitution. The debate is thus focused on the constitutionality issues as the action of the federal government has some support from section 96 of the constitution. Analysis The funding of the project would require a huge sum of money as building the sea wall around Australia will be too expensive. This is due to the vast coastline considering that Australia is an Island. The amount that could be used to carry out such program is enough to address other internal issues facing the country like tackling unemployment among the youth and the poverty facing the indigenous people. On the other hand, the lack of legislature to control the funding as required in section 83 may pose a serious problem to the states and the federal government. This is because releasing the funds is unconstitutional as a project of this nature has to be of great importance to the people6 (Donald, 2004). A project that requires huge sums of money must be relevant and beneficial to the people as the money is from revenue generated from taxation. The ability of the program to solve the security problems that could face the country is also questionable. This is because the sea walls and the zombie proof bunkers do not have the potential of completely solving the security problems. The resistance by some of the states concerning the program may also raise another constitutional issue. According to section 99 of the constitution, the government should fund all the states equally without favoring one state over the other7 (Carvan, 2002). This matter also arose in the case of Deputy federal commissioner of taxation V W R Moran Pty Ltd. This case was for the purposes of determining whether section 96 is limited by section 99. Taxation was the main issue as subsidies were offered to the states regarding their production of wheat while in reality not all states produced wheat. However it was ruled that section 96 does not limit section 99. This means that the government will be favoring states that are in agreement with the proposal by providing the funds. This is also a constitutional issue that may arise in the course of implementing the program. The matter may raise constitutional issues with regards to the validity of the project which can be challenged in court based on sections 96 and 53. However, section 83 gives the commonwealth government the powers to make laws that deal with the appropriation of the funds. This means that the funding can be approved through parliament. This on the other hand allows for legal process in challenging such laws made by parliament. The states may file a case to challenge the move or councilors within the state may also file a case. The validity of the program in terms of the constitution is also questionable as it leads to legal challenges that may see the program stalling. The program may raise questions from the public and also the leaders in some of the states as section 83 requires proper laws with regards to the appropriation of funds. The construction of zombie proof bunkers in each of the local council is not an appropriate method of dealing with the security threats. The constitution empowers the people to check against the misuse of funds. The construction of the bunkers will also be very costly and it will require a lot of funds. The amount of money that should be allocated to a particular program is also subject to the approval of the Commonwealth parliament8 (Parkinson, 2001). This means that the institution may be held liable if it embraces a program that is wasteful in nature. This may lead to the prosecution of the government officer involved in the implementation of the program. The decision of the Commonwealth parliament to fund a program may also be overturned by the courts and hence its failure. The decision to amend section 96 may also have a negative impact on the program. This is because the section currently empowers the Commonwealth parliament to allocate funding where it thinks fit. The amendments will thus ensure that the powers of the commonwealth parliament are limited. It will not have to allocate the funds where it seems fit but has to take various steps before allocating funds to any program. This may include a thorough scrutiny of the program or seeking the public opinions with regards to the program. Arguments The validity of the program is questionable as the prime minister is not basing the claims of inevitable attack on any evidence. This means that the program does not represent the actual solution to the security threats that may occur. According to section 96 of the federal law, any program should have a legislature supporting it in order to ensure validity. However, this program has no valid legislature supporting it and hence the questions surrounding its validity. On the other hand it is also urged that the government should ensure that the funds are spend for a worthy cause (Garran, 2002). Building the bunkers and the sea wall will not guarantee the people security. This is because the country will still be forced to invest heavily on the security personnel. The presence of the sea wall and the bunkers may also be misinterpreted and it may lead to a bad public image of the country as compared to solving the security challenges. This is also a question of validity with regards to funding a program that will negatively impact on the public image of the country. The amendment of section 96 is also an issue that touches on the program. The success of amending the program will also lead to legal challenges on the program by the states or the councilors and the members of the public. This means that the program may be stopped after it has commenced and hence amounting to the misuse of the funds. The role of the Commonwealth parliament in terms of developing legislations with regard to funding of programs in the states is also an issue that is questionable in the situation. The issue of violation of the federal constitutional law is also an issue that may play out during the process of funding the program. The government could be imposing unlawful funding to the states. This is because the states have the power to reject any funding or grant by the federal government 9(Jupp, 2001). A stand off may also be witnessed incase the states rejects the funding for the program. On the other hand, section 109 of the constitution considers the federal laws supreme to those of the states. This also came to play in the case of Clyde Engineering company vs. Cowban10 (Winterton, 2000). The case was about inconsistency between the state laws and the commonwealth laws in terms of labor. However the court ruled that the commonwealth law is supreme and it supersedes the state laws. This may therefore lead to a constitutional crisis that may end up affecting the implementation of the program. It is also important to note that the government has the powers to make decisions for the purposes of national security. However, the lack of any immediate threat to Australia makes the program irrelevant. It is also for this reason that councilor compares the program as preparing for the arrival of the aliens. Although the country may also be faced by security threats, there are no indications that the use of the sea wall and the bunkers will solve the problems. The funding of the program is thus not valid constitutionally. This is despite the powers that section 96 of the federal constitutional laws gives the parliament with regards to funding of the states11 (Craven, 2004). The issues of accountability of the program may also play out as the funds may also be misused incase the program is funded. The arguments therefore indicate that the funding of the program is not constitutional. Summary In summary, the funding of the fortress Australia program has generated a lot of debate as well as arguments in relation to its validity in terms of the constitution. This is as a result of the prime minister proposing the projects as part of national security issue. Section 96 of the federal constitution law has played an important role in the analysis of the situation. This is because it mainly deals with the funding of the government projects. Other sections have also been used to analyze the validity of the project. Through the use of section 53, it is evident that the program raises serious constitutional issues in terms of legislation. The argument raised by the program indicates that the program is not valid under the constitution. It is also evident that the program does not guarantee the security of Australia and hence the serious issues it raises over its funding. However the position of the government and the prime minister is firm in terms of supporting the program. Other local councils are also keen on implementing the program. However, the opposition to the program is also valid as it is more of constitutional issues as opposed to the benefits and outcome of the program. A part from the issues being raised, the program may also have impacts on the national image of the country and hence affecting the relations with other countries. Conclusion In conclusion, it is evident that the program was a wrong priority for the country. This is because of the constitutional validity issues that it raises in relation to section 96. It is also evident that the prime minister did not consult widely on the constitutional implications that the program had for the country. The amendments of section 96 of the federal constitution also have the potential of impacting negatively on the program. This is however dependant on the outcome of the referendum. The financial impacts of the program on the country are also huge. This is because the program is costly and yet it does not have much impact in terms of solving the external security threats. It is also evident that the program may stall if some of the states reject the funding from the federal government. This is because the states also have their own rights that are protected by the constitution under section 96. The outcome of the program is also dependant on the solutions to the constitutional problems that are evident. This involves putting in place legislations to guide the program before the funding. The failure of the program is also likely due to the constitutional challenges. References Patrick, P. (2002). Tradition and Change in Australian Law. Sydney: LBC Information Services. Blackshield, T. (2010). Australian Constitutional Law and Theory (5 ed.). Annandale, NSW: Federation Press. Summers, W. (2006) Government, Politics, Power and Policy in Australia, 8th edition, Pearson Education Australia, pp.141-2. Rosemary, B. (2007). The Law Handbook. Redfern Legal Centre Publishing: Sydney. Carvan, J. (2002). Understanding the Australian Legal System. Lawbook Co.: Sydney, Parkinson, P. (2001). Tradition and Change in Australian Law. Sydney: LBC Information Services. Garran, R. (2002). The Annotated Constitution of the Australian Commonwealth. Butterworths, Sydney, Craven, G. (2004). "Conversations with the Constitution". UNSW Press, Jupp, J. (2001). The Australian people: an encyclopedia of the nation, its people, and their origins. Cambridge University Press. Donald, et al. (2000). A History of Australia, New Zealand, and the Pacific. Oxford: Blackwell. Winterton, G. et al. (2000). Australian federal constitutional law: commentary and materials, 1999. LBC Information Services, Sydney. Australian constitution. (2013). Chapter 4 – Finance and Trade – Sections 81-105. Retrieved on 6th September 2013 from,< http://australianpolitics.com/constitution-aus/text> Read More