The Australian Legal System - Assignment Example

CASE STUDY Student’s name Professor’s name University name City, State 1. What are some of the key ways international law has influenced the Australian legal system? Should Australian courts pay more regard to international law such as human rights in your view? International law refers to the laws that are recognized on an international level. These laws govern the relationship between countries and their citizens and the relationship between a country and other countries. They regulate interaction between countries, especially with areas that require this interaction, such as international trade and transport. International law is often presented as international conventions and treaties. Australian laws reflect international laws. This is vital because Australia actively interacts with other countries for various reasons, among them trade and transport. For instance, Australian environmental laws are in line with international laws on protection of the environment. Environmental conservation and protection is a global area of concern. The making of laws to reflect the stipulations of the treaty follows through treaties signed by Australia to this effect. Laws that were previously in existence are not changed. Their interpretation and application by Australian law courts shifts to reflect the international laws as presented in the signed and ratified treaty. This applies not only to environmental laws, but also to other areas such as international trade, transport systems, human rights, and telecommunications, among others. (Banks 2006, p. 3) I think Australian law should pay more regard to international law, especially with regard to human rights. Human rights are the very basis of any country’s governance, right from the lowest level up to the highest level. The Constitution of Australia does not contain a Bill of Rights. I think this is a very huge omission. The Bill of Rights in many countries spells out the vitals of human interactions among the citizens and non-citizens. Although there are many clauses in the Constitution that deal with Human Rights and a commission that deals with the same, there should be one document that outlines human rights as seen by the Australian government. The government should at least explain to its citizens what it means to be Australian and how we should interrelate with each other, in accordance with the International Covenant on Civil and Political Rights (ICCPR). The Australian government should follow through with implementation of these international laws, including those that do not deal with human rights. 2. What is a conscience vote and when is it permitted? Should a conscience vote be given to MPs in certain circumstances? A conscience vote (at times referred to as a free vote) is a type of vote in which the members of parliament’s votes are not guided by a line set by their respective political parties, but are rather guided by their own conscience. In many democracies, when the legislature is presented with significant legislation, political parties usually set a line for their members to follow in voting for or against that particular legislation. Failure to do this usually has a consequence, either expulsion or censure. However, when it comes to a conscience vote, the parties set no such lines, and the only guideline for the parliamentarians’ votes is their personal conscience. Conscience votes are a scarce occurrence. A conscience vote is permitted when the issue is very controversial. It also happens in instances where members of a political party disagree widely on what should or should not be, such that it is hard for the “party line” to be drawn. These issues are usually mostly or moral, religious or ethical importance. I think conscience votes should be given to MPs when necessary. Moral, religious and ethical right and wrong vary from one individual to the next, so a party cannot dictate to its members how to feel about the issues, and by extension, how to vote. Such issues include prostitution, abortion, legalization of marijuana, same-sex marriages, the death penalty, and euthanasia, among others. For such issues, every individual has a different view, sometimes for very personal reasons. I think the political parties do not have the right to take their opinion on such delicate and controversial matters away from them. 3. Do you think a court should be able to order preventive detention of criminals who have served their sentence time? Consider arguments for and against and give reasons for your answer. I think a court should not be able to order preventive detention of criminals who have already served their sentence time. Most pro-preventive detention parties argue that it is a necessary measure taken to protect the public from a dangerous criminal. Such criminals are termed habitual criminals, or in other instances, career criminals. They argue that such criminals pose real danger to the society and are therefore best kept away. On the other hand, other parties disagree with this measure. They argue that most of these perpetrators are first-time offenders. They say there are not many habitual criminals, and that most of the first-time offenders, once incarcerated, do not usually repeat the offence when released. Preventive detention is therefore not fair to such offenders. I think that the court should not be able to order preventive detention because this shows no faith in the correctional facilities as rehabilitation centers. One of the reasons that criminals are sent to prison is so that they can be rehabilitated by the system. This means that the criminals are expected to leave the prisons as totally reformed people, who can be useful in the society, rather than harmful. How is it then that the same system that sends the criminals to prison to be reformed/ rehabilitated does not trust them to be reformed once they are out? The courts should at least show some faith that the prison system has reformed these criminals and that they are no longer a threat to the society. This, together with the aforementioned statistic that there are not that many habitual offenders, is why I think that preventive detention is double punishment for the original offense that the offender probably wouldn’t have repeated anyway; and why I think the courts should not be able to do this. 4. What is delegated legislation and what are its advantages and disadvantages? How does delegated legislation fit with the principles of democratic government and separation of powers? Delegated legislation is law made by a body or a person, rather than the normal, in which laws are made by the legislature. This individual or body, however, must be given authority by the legislature before they can do this. Delegated legislation is also termed secondary legislation. Such laws are usually in form of regulations. Delegated legislation has a number of advantages. It saves on time spent discussing laws by the legislature. Delegated legislation often deals with issues that can be handled by an individual. This spares the legislature the pain of undergoing the process of pushing through an entire other Act of Parliament. Delegated legislation allows quick response to unexpected events. These may include terror attacks or disease outbreaks. These instances need immediate action that is provided through delegated legislation. It enables individual to make minor changes. There may be some minor details that require clarification, perhaps because of the way a sentence is presented in the statute. Such a change does not require the whole parliament to discuss the change and can therefore be made by the authorized Minister or body. Delegated legislation also has its disadvantages. There being too much delegated legislation, there may arise a problem with keeping track of all the regulations. This could result in confusion and chaos. These regulations are also seldom communicated to the public. The public therefore continues to use the Original Act, leading to further chaos. Because of its time sensitivity, delegated legislation means that such regulations are not scrutinized as intensively as the Original Act by the legislature. There may be details of the regulation that the MPs and the citizens they represent may not agree with. These discrepancies may go unnoticed, causing many future wrangles. Both the legislature and the judiciary control delegated legislation. The judiciary reviews the regulation to ensure that it is within the powers vested through the Act of Parliament that enabled it. If a regulation is not within these powers (termed ultra vires”), the courts have the power to stop it. The regulation is also presented to the legislature and the MPs vote on it. Only after it is successfully passed through both arms of the Government is delegated legislation made. 5. What is “co-operative federalism”? How accurately does this term describe the operation of the current system and how far is this model formally part of our institutional framework? Give examples to support your reasoning. Co-operative federalism is a form of government in which the federal government, the state government, and the local government work hand in hand in governing the citizens. Duties are delegated to every level of government by agreeing among themselves. Cooperative federalism in Australia is the co-operation of the Commonwealth, the State parliament and the Territory parliament (for territories that govern themselves). Co-operative federalism is implemented through a number of mechanisms in Australia. The Commonwealth delegates legislative power and there are intergovernmental agreements that see that the Territory parliaments, the State and the Commonwealth have uniform legislation that they enact separately, and that they interlock legislation. It is also implemented through judicial and executive co-operation. Examples of co-operative federalism in Australia include the enumeration of parliamentary powers rather than state powers. The States are instead allocated residual power, as per Section 108 of the Constitution. Another example is in Section 71, where a Supreme Court has the power to render actions of any of the three levels of government unlawful. Section 7 of the Constitution provides for strong bicameralism by which all the States should be represented equally in the Senate, regardless of their differences in population. 6. What is the doctrine of governmental immunity and why does it exist? Is the idea of governmental immunity justified in the modern age? Governmental immunity is the legal doctrine through which the government cannot be sued unless it allows the plaintiff to sue. By this doctrine, the government cannot commit a legal mistake. Governmental immunity was introduced to prevent lawsuits from interfering with the government’s work. If a lawsuit is likely to interfere with or control the state’s actions, governmental immunity stops the lawsuit. This makes the decision-making process much easier on the government because lawsuits are not a problem. Governmental immunity is however, not justified in the modern community. The government should be able to account for their actions and decisions without having to hide behind governmental immunity. The society today is better educated on human rights and the responsibilities of the government to its citizens. Sometimes the actions taken by the government may infringe upon an individual’s or a community’s rights and freedoms. Disgruntled members of the public should be allowed to seek what they see as justice without being inhibited by governmental immunity. Governmental immunity was a welcome concept back in the days when kings had total authority over their subjects. This doctrine is, therefore, in my opinion, rather dictatorial. Now we have a democracy and instead of waiting for the government to waive its own immunity (something it may not do), the whole doctrine should be negated. Government institutions, just like other citizens, should answer for their negligence and legal wrongs within the legal framework. 7. What is privatization? Are there certain government functions which should not be privatized in your view e.g. Treaty making? Should there be any Constitutional restriction on privatization? Give reasons for your answer. Privatization is the turning over of public assets to the private sector. It could also mean that particular government functions are outsourced to private organizations. I think there are quite a number of government functions that should not be privatized. National security and medical care are good examples of such functions. These functions are meant to serve the public. Their primary motive should be to offer quality services to the society. Privatization of such vital aspects causes a shift in the motive from the provision of quality services to the need to make maximum profit. This is wrong especially for sectors such as those I’ve mentioned because these two are based primarily on service to the nation. Health providers and security personnel get their drive from the idea of helping the public. They believe in saving lives in whichever way they can. Taking these functions and turning them into merely services for profit diminishes the value of human life, making it come second to money, which is not how it should be. Human life must always come first. I think there should be constitutional restrictions on privatization. There should be restrictions on what can and cannot be privatized. As I mentioned earlier, some government functions should strictly not be privatized and as long as there are no restrictions stating as much, there is always the possibility that they could be privatized at any time. Measures have to be taken to ensure that such privatization could never become a reality. 8. Why doesn’t Australia have a constitutionally guaranteed bill of rights? What are some of the arguments for and against? Australia does not have a Bill of Rights. The legislators at the time feared that the laws against discrimination that were in place at the time might be undermined by a bill of rights. The Australian Constitution, however, includes provisions that are similar to, but not the same as, a bill of rights. Many parties have been adamant in rejecting a bill of rights. They argue that introduction of a bill of rights stands to show no faith in our parliamentary democracy. They argue that a bill of rights would bring with it absolute powers to the judiciary, who are a group of unelected officials. This would remove power from the hands of the people and their elected representatives. They also say that a bill of rights serves not to strengthen human rights, but to limit them. Human rights are such a vast entity that it is ludicrous to think that any one document could fully capture all the rights. A bill of rights would, they argue, freeze human rights. This means that it is inflexible, and will be outdated briefly after its introduction. Finally, they argue that the lack of a bill of rights makes Australia unique as a country, and for that reason, we should adhere to the Constitution that has not once failed us for so long. Those that want a bill of rights have managed to counter most of these opposing claims. They say that, if the citizens had total faith in parliamentary democracy, this debate would not exist in the first place. The fact that there is such a discussion shows that there is a problem somewhere and that it should be dealt with. They argue that the courts already make most of the country’s biggest and hardest decisions as they are left to them by the legislature. The elected representatives already leave the hard decisions to the unelected officials anyway. These proponents argue that a bill of rights serves to put rights first, politics second, and not the other way round. Lastly, they argue that while lack of a bill of rights makes us unique, it also leaves us alone. Most other countries that have a bill of rights are participants in conventions on human rights. Difficult cases can be tried in international courts. Australia lacks this yet it is something we need. 9. On the Case study on the HIH Insurance collapse and comment on the following: http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/Publications_Archive/archive/hihinsurance 9.1 Explain how the conduct of the HIH directors was illegal, what laws did they break specifically (i.e. what is the source of those laws)? The conduct of the HIH directors was illegal with respect to stock market manipulation. They deliberately tried to manipulate the operation of the market by giving a false account of the state and price of the company. They therefore broke the laws against market manipulation. Market manipulation is strictly prohibited by Australian laws as stipulated in The Corporations Act 2001, Section 1041A. They are also reported to have engaged in acts of corruption by giving bribes. Corruption is also prohibited in the Australian Constitution. 9.2 Explain how the conduct of the HIH directors was unethical? What ethical principles did they breach? What is the source of those principles in your view? The HIH directors acted unethically by intentionally giving false information. There is a whole string of lies and half-truths that the company’s directors told to reporters and potential investors in a bid to get the investors to believe that the company was not in the woods. The lies by omission are even more than the outright lies. The HIH directors breached the ethical rules against intentionally misleading other people, especially when the venture could be potentially harmful to the recipient. Such principles need not be defines by anybody. They are etched in an individual’s mind as a strict moral code, showing right and wrong. 9.3 Some conduct may be legal but unethical. Can you provide some example scenarios that illustrate this? An example of legal but unethical conduct is the payment of minimum wage by employers to their full-time employees. This is not prohibited by the government, but leaves the employees disgruntled. This makes the employers target in riots and boycotts. Another example of such behavior is widely experienced in the practice of law. Where a lawyer defends a client he truly thinks is guilty of a serious offence is one such example. This is not prohibited by the law, but it is often times frowned upon by the society for being unethical. 9.4 Can you give an example of illegal but ethical conduct? When an individual exposes information he was supposed to keep secret because he believes that it is wrong to keep it secret, this is illegal but ethical conduct. If the individual signed a non-disclosure agreement or was bound by a confidentiality contract, according to the law, he cannot share such information. An example of such is when a high-level government employee exposes government secrets because he thinks he is protecting the public by having them know the secrets. 10. Should the “values” and historical context of the original constitutional founders influence the interpretation of the Constitution by Australia’s high court in your view? Give examples to support your view (consider for example whether the meaning of “marriage” in the marriage power in s51. Has the meaning of that term changed from 1900 and today?). If the High court chooses to be influenced by current social values how does it determine what these values are? I think that the “values” and historical context of the Constitution founders should not influence the interpretation of the Constitution by the High Court. The interpretation of the Constitution should progress as the country progresses. Times have changed and continue to change. The world today has very many new concepts that would be rather strange and unacceptable to the society back in the day when the Constitution was founded. For this reason, I think it would be narrow-minded for the courts to keep interpreting the Constitution with the historical context in mind. While it is true that it is the past that gives us a strong foundation to build on, we cannot bury our heads in the sand and dwell on the past. The Marriage Act of 1961 defines marriage as “a formal, monogamous, and heterosexual union for life”. In the 21st century, however, many Human Rights activist groups contest this meaning of marriage and advocate same-sex marriages. In some states in the world, this definition has been accepted and same-sex marriages are lawful in the Constitution. If the High Court chooses to be influenced by the current social values, it can determine these values with the help of the people. After all, it is a government for the people, to the people and by the people. There are Constitutional provisions that allow the judiciary to seek public opinion. I think this will come in very handy especially in matters where change is inevitable and the result is a bit hazy. 11. What are the consequences of the high court’s interpretation in Commonwealth v Tasmania (1983) 158 CLR 1 for the distribution of powers between State and federal governments as set out in the constitution? Why did Tasmania want to implement its dam scheme? What was the reasoning given by the majority judges for supporting the Commonwealth? What was the reasoning given by dissenting judges for rejecting the Commonwealths case? Which view do you prefer and why? The judgment of the High Court in this case gave rise to the support of Commonwealth environmental laws with the use of external affairs power, to the disadvantage of the regulatory powers of the State. This case caused a lot of tension between the States and the Commonwealth up until the 1990s when co-operative federalism was introduced. Tasmania intended the Gordon-below-Franklin scheme to build a dam that could provide Hydroelectric Power for its south-west area. The majority judges supported the Commonwealth’s move to stop the Gordon-below-Franklin dam from being built. They said this was because Australia had a duty to preserve and conserve the environment as is required of it in the numerous international treaties it has signed. The proposed site of the dam had been nominated to be listed in the World Heritage Convention. Dissenting judges simply argued that by the Commonwealth Constitution, the Commonwealth government had no right to stop the building of the dam. I prefer the view of the majority judges in agreeing with the Commonwealth. The area was to be in the World Heritage Convention. Furthermore, the lower parts of the Franklin River were spectacular and wild. Flooding this area for a dam would have taken away an important area that deserved protection. 12. Consider the role played by each of the key protagonists in the 1975 constitutional crisis: Malcolm Fraser, Sir John Kerr, Gough Whitlam and Sir Garfield Barwick. Can you write a short defence of the position of each of them on legal (constitutional) and ethical grounds. Malcolm Fraser: The incumbent Prime Minister, Gough Whitlam’s government was making a lot of mistakes in governance, characterized by political miscalculations and scandals. It was Constitutional for the Government to be dismissed by the Governor-General. Malcolm Fraser was then appointed constitutionally, and even after the dissolution, Fraser was re-elected to Government, again, constitutionally. Even though he offended Whitlam, Fraser acted as he saw fit for his country. Sir John Kerr: the Constitution of Australia allowed his dissolution of Parliament. He was also allowed to dismiss the Prime Minister if he had reason to believe it was the best thing to do. Following Whitlam’s many mistakes in government, Kerr did the right thing for his country. Even though he was never completely forgiven for the surprise dismissal of Whitlam, he did what was right for Australia, both constitutionally and ethically. Gough Whitlam: Throughout his tenure in Government, he did things constitutionally. Even though he made many mistakes, some grave, he never acted outside the confines of the Constitution. He also felt betrayed by Kerr when the latter dismissed him, seeing as he was the one who had appointed Kerr to power and they had even and an agreement to keep each other in power. Sir Garfield Barwick: Barwick told Kerr that it would be okay to sack Whitlam. The Constitution stated that a Governor-General could sack a Prime Minister who could not obtain supply. Reference Banks, R. 2006, ‘Australian Legal System’, Hot Topics: Legal Issues in Plain Language, State Library of New South Wales. Read More