The High Court in Australia - Essay Example

Australian Constitutional law Name Institution Date Course Australian Constitutional law Introduction The High Court in Australia has the powers to invalidate commonwealth legislation in the cases where the legislative powers have been exceeded. Commonwealth parliament should therefore ensure that the legislations that it passes are within the constitution and that they are in accordance with Acts Interpretation Act 1901 (Cth). According to section 15A of the Act, all the Acts shall be read and instructed subject to the constitution so as to ensure that the legislation does not exceed the legislative powers of the commonwealth1. The commonwealth parliament has enacted two laws; one on shipping navigation which prescribes the safety measures for shipping and navigation. The other law is on Air navigation and it has detailed safety measures for Air navigation. However, both laws do not provide definitions or any meaning concerning air navigation or shipping navigation. According to section 98 of the Commonwealth of Australia Constitution Act, the issues are under trade and commerce. The laws are related to trade and commerce. This is because trade and commerce extends to all the commercial arrangements where transport is necessary and has a direct result on the business. The paper critically discusses which law is most likely to survive the constitutional review by the High Court. Discussion The law on Air traffic contains detailed descriptions of the safety measures but it does not provide any meaning or definition of what Air traffic means. The lack of definition and meaning can cause a legal problem which could lead to difficulties in the process of implementing the law. In the case of Australian National Airways Pty Ltd v Commonwealth definitions played an important role in the process of clearly defining what trade and commerce is2. Detailed safety measures have a positive effect in the industry as it will contribute towards the reduction in Accidents. The parliament acted in accordance with section 15A of the Acts, interpretation Act 1901 (Cth). The legislative powers were not exceeded during the process. The High Court in Australia has the mandate of ensuring that the commonwealth parliament does not exceed its powers during the process of coming up with legislations. This was highlighted in the case of Australian Communist Party v Commonwealth3. According to the Commonwealth of Australia constitution Act, the High Court has the powers to strike down the legislations that are unconstitutional. According to section 98 of the Commonwealth of Australia constitution Act, parliament has the powers to make laws with respect to trade and commerce and it also extends to navigation and shipping. Air navigation is about trade and commerce and hence the importance of section 98. According to the Administrative Decisions (Judicial Review) Act 1977, the law makers are supposed to observe certain standards and procedures during the law making process4. The Air navigation law that has been enacted by the common wealth parliament was carried out in a fair and procedural manner in relation to trade and commerce as required by section 98. However, it is important to note that some of the policies are not clear due to the lack of definitions. Trade and commerce may therefore be affected as a result of lack of clear definitions in air navigation. The detailed nature of the Act is however important as it may play an essential role in ensuring that it survives the constitutional review. The lack of definition of what air policy is may however affect the process of implementation. Promoting the public law values is an important aspect that should be considered during the law making process. According to section 51(i) of the Commonwealth of Australia Constitution Act, parliament has the powers to make laws for the peace, order and government of the Commonwealth with respect to trade and commerce with other countries and states5. However, the definitions may still be required in order for the Act to be effective during the process of implementation. Different sections have different meanings with regards to the law and contradictions may easily occur when there is lack of definitions and meanings. However, it is also important to note that some of the words are common words that are used on a daily basis and may not lead to contradictions. In the Air navigation, some of the words may require definitions as they may be complex. The interpretations Act 1984 is also an important legislation that may be used by the High Court when dealing with the legislation6. This is because the law does not have definitions and meaning which are useful during the process of interpretations. According to section 44 of the Act, the legislations require meanings and definitions. It also emphasizes that the meanings and definitions are useful in terms of excluding some of the meanings that it may ordinary have. This is an indication that the contradictions may occur when the meaning in the Air traffic control is defined in a certain manner. Some words in the air navigation may not be interpreted correctly depending on different people or institutions. This is an indication that the lack of proper interpretations may mislead different stakeholders. It is also important to note that the air navigation safety law is detailed and this may be useful in ensuring that the public safety is maintained. The law on air navigation is likely to survive the constitutional review due to its detailed nature and its ability to promote public safety. The High Court constitutional review is usually a complex process and all the laws have to be in accordance with requirements and it should also promote good governance. The air navigation laws meet most of the standards that have been set and hence its likelihood of surviving the constitutions review. The nature of interaction with the other laws will also be useful in ensuring that it survives the constitutional review by the High Court. The law on shipping navigation will not survive the constitutional review by the High Court. This is because it doe not have any definition and meaning and it also lacks a detailed safety measures for the shipping navigation. The lack of adequate details may also impact negatively on the safety of the people in the shipping navigation. Any law that is likely to have negative impacts on the members of the public cannot survive the constitutional review by the High Court7. On the other hand, it is also important to note that the High Court is usually keen on the details of the law. The definitions play an essential role in providing a specific meaning and closing off what the word does not mean. This is therefore useful in ensuring that the law is applied effectively. When dealing with definitions and meanings, the ordinary meaning of the words is usually used. The meaning of the words in accordance to the dictionary is also used as the lawyers use the same dictionary just like the other people. However, during the constitutional review by the High Court, case laws may be used for the purposes of establishing the definition of certain words. The shipping navigation laws may also be considered ineffective as it may not be able to address some of the issues in the shipping industry. This is mainly due to the lack of details. The High Court of Australia has the powers of declaring any law invalid if it does not meet the constitutional requirements. This will force the legislature to prepare the laws again and ensure that it meets the constitutional requirements. Section 11A of the Acts interpretation Act 1901 allows for insertion of definitions but it should be carried out in an alphabetic manner. Although all the procedures have been followed in the preparation of the law, it does not qualify for the procedural fairness which is also required by the constitution. The powers of the High Court of Australia to declare any legislation invalid may be applied in the shipping navigation laws on the grounds that it will not adequately address the issues of safety in the shipping navigation. It is also important to note that the commonwealth parliament will be required to ensure full compliance with all the provisions of the constitution once the law has been declared invalid8. The High Court of Australia also has the powers of striking down any law that is likely to be misinterpreted. This is mainly for the benefits of the members of the public and the stakeholders in the particular industry or sector. Conclusion In conclusion, it is evident that the air navigation laws and the shipping navigation laws have not met some of the constitutional requirements. However, the air navigation law is likely to survive the constitutional review by the High Court. The air navigation law is detailed which is useful in ensuring that it is not misinterpreted. It is evident that the shipping navigation law is not likely to survive the constitutional requirements. The shipping navigation law does not have adequate details which can cause legal challenges during the process of interpretation. It is also apparent that the High Court of Australia has the powered to declare any law invalid if it is unconstitutional or is likely to cause misinterpretations by the members of the public. List of References Acts Interpretation Act 1901 (Cth) Australian Communist Party v The Commonwealth (1951) 83 CLR 1, [1951] HCA 5 Interpretations Act 1984 Administrative Decisions (Judicial Review) Act 1977 Clarke, J, et al, 2013, "Hanks Australian Constitutional Law: Materials and Commentary," epubulications Blackshield, A, & Williams, G, 2010, Australian Constitutional Law and Theory: Commentary and Materials, Federation Pr. Commonwealth of Australia Constitution Act Commonwealth (No1) (1945) 71 CLR 29 and the Bank Nationalization Read More