The Legal System in Australia - Assignment Example

Government and law Student name Course name Institution Date of submission Student Number Question 1: Australia uses the international treaties as the basis for State regulations. While the legal system in Australia is dualist, where international laws are not integrated mechanically, the international law influences the legal system in the areas of statutory interpretation, legislation, common law, as well as exercising administrative discretion. For instance, section 51(xxix) of the Australian Constitution gives the parliament the power to enact laws for foreign affairs. The parliament has made laws, specifically in the human rights areas, which have reflections of international perspectives (Charlesworth et al 2012). This became clear after the Human Rights (Sexual Conduct) Act 1994 (Cth) was enacted. Further, the Racial Discrimination Act 1975(Cth) has reflections of the International Convention on the Elimination (IRERD) of 1965, which was signed to be legally binding within the context of Australia although with little regard for Australia having a dualist legal system (Allan & Aroney 2012). The Australian courts should not pay more consideration to the international law, such as the human rights laws since involving international laws or committees, such as the UN committee in domestic legal disputes may eventually undermine Australia’s legal institutions. They also override States and cede foreign power to the external institutions (Allan & Aroney 2012). Question 2: A conscience vote refers to a category of vote where legislators or parliamentarians are permitted to vote based on their individual personal consciences instead of the official line specified by their respect political party. In the Australian legal system, the political party members are required to vote as a block based on party’s instructions. It is applied when there is a need to show crossbench members where confidence and supply lies in order to permit the creation of a minority government although the right to vote on conscience is maintained (Kerry et al 2009). It is often permitted when there is a need to release parliamentarians from the obligation of having to maintain party instructions, and hence have to vote based on their conscience. Conscience vote should be allowed in circumstances when the parliamentarians have to vote for issues that are highly controversial, in respect to morality, religion of ethics. This is since in such matters, each member of the existing political party may have different opinion, which makes it difficult for any party to devise official policies. In fact, in Australia they are permitted when highly contentious ethical policy issues have to be debated, such as abortion, religion, morality, euthanasia, homosexuality, legality of prostitution, or embryo research (Kerry et al 2009). Question 3: Preventive detention refers to a special type of imprisonment that is ostensibly acceptable for non-punitive reasons. Usually, the people held in preventive detention consist of criminal defendants, although the federal and state laws also allow preventive detention for individuals, who are mentally ill (Slobogin 2010). In Australia, it is under Division 105 of the Criminal Code Act 1995. It is also the practice of imprisoning people before trial based on the belief that releasing them would not be in the society’s best interest, and they have a potential to commit additional crimes once released. Based on this background, it could be argued that the court should be provided with the capacity to order preventative detention of criminals who have already served their sentence time when they have strong grounds to believe that releasing them would not be in the best interest of the society. Still, it should be argued that providing the courts with such rights is unjustified, as it would deny the people who have already served their sentence their fundamental freedom rights. Providing such rights to courts would also negate the principle of primacy. It states that preventive detention systems should be separate from criminal justice as well as be limited to individuals whose consequent behaviours are not likely to be affected by a likelihood of serious crime punishment. This is since individuals who have already served their sentences at the corrective institutions are believed to have been corrected as well as completed their punishment (Slobogin 2010). Question 4: Delegated legislation is a set of regulations of laws passed by different bodies other than the principle legislator, or the parliament. Its key advantage is that it allows legislations to be made without the limited Parliamentary time on technical issues. It therefore frees the parliament from discussing issues of wide policy and principle. It also allows those with expert knowledge or specialisation to prepare technical matters. A key disadvantage include the fact that it is not given sufficient time for parliamentary scrutiny, and therefore the government may use it in ways the parliament may not have approved. It may also be perceived as a means of eliminating controversial issues from the remit of the parliament, and placing them under the government’s control since they can be considered as issues of detail (Morris & Malone 2004). Delegated legislation is consistent with the principles of democratic government and separation of powers as it divides the powers of legislation between the executive and the parliament, both of which are dissimilar branches of governance. The principle provides that governmental power have to be divided between various branches, and that each of these branches should take part in the scrutiny of the other to ensure that the powers are checked (Morris & Malone 2004). Question 5: Cooperative federalism consists of a model of federalism where the local, state, and national government interrelate collaboratively to address common issues, instead of just making policies independently and separately, although on unequal levels. It refers to varied mechanisms uses in managing the conflicts, costs, repetition, as well as inefficiencies inherent in the model of federation (French 2006). The term describes how the current system operates. It is a part of Australia’s current institutional framework. In Australia, certain powers and responsibilities are transferred to the central government. Indeed, this is the case of the States and the Commonwealth government. Since it comprises the divided powers, Australia is given by the Constitution no standard gauge railway for good government countrywide and as well as throughout the components of the federation. In order to address the national challenges of federalism, that cannot be addressed by legislative powers of the States or Commonwealth government separately, it requires the collaboration of the local government as well as other levels of the federation. For instances, these levels of federation cooperative in determining the details regarding the levels of government, which should take responsibilities for certain areas, in order to create policies in these areas (French 2006). Question 6: The doctrine of government immunity exempts any governmental body from being sued on condition that it permits it. It applies to the local government entities such as counties, and cities. It protects the local government entities from tort liability. The basis for this argument is that there is no legal right against authority that enacts the law the rights is contingent on. It is intended to place the government above the law as well as ensures that some people who have undergone harms are not able to be remedied for their injuries (Chemerinsky 2007). The doctrine of government immunity is not justified in the modern era where the government institutions face stiff competition from the private sector organisations due to the increased effects of globalisation. Consequently, it can lead to terrible injustices bay giving the governmental organisations unfair advantages, by allowing them to violate the law or being negligent with impunity from judgement. It is also inconsistent with the human rights and civil liberties that today characterise the world. The doctrine undermines the notion of civil liberty, which gives every individual the right for protection of the law in the event that one receives an injury hence no party should be above the law (Chemerinsky 2007). Question 7: Privatization entails renouncing control and ownership of public structures and agencies to the private sector. After privatisation of a public service, the government loses its ability to make decisions that affect its operation. At the same time, the public structures or services are no longer accountable to the government (Resnik 2013). Rather, they become answerable to companies that may have total diverse priorities and goals from that of the public. Since privatisation makes public sector organisations to be profit-oriented than service-oriented, all government functions should not be privatised. An underlying concern is since the constitutional protections of citizens are likely to face impediment as the privatised functions may cease from operating in the public interest. As a result, rather than focus on focus on serving the interest with the public at low cost and in the hope of increasing public utility, it may concern itself with making profits. There is a need for constitutional restriction on privatisation. This is rather straightforward, as privatizing government functions does not provide a blanket solution for issues regarding poor management of public sector organisations. Hence, the effectiveness of a privatisation arrangement depends on how well it is regulated to ensure that public interest is given a priority (Resnik 2013). Question 8: Constitutionally guaranteed bill of rights refers to the human rights, freedoms and protection that all citizens are entitled to, as well as which are given a force by the conventions and covenant incorporated into the Constitution. In which case, they are entrenched in the constitution (Butler 2007). They have several advantages in that they improved the level of governmental accountability to the citizens, as it outlines the rights of individuals relative to the rights and limits of the government and its institutions. Constitutionally guaranteed bill of rights also strengthens and consolidates the protection of human rights protections for all Australian citizens. Without them Australia would only rely on common law provisions and fair practices of the executives, which can be unpredictable. It also encourages social inclusion as it emphasises on fair treatment of all citizens, despite the race, colour, or origin. However, it has some disadvantages. For instance, although the human rights are well protection by the common law, constitutionally guaranteed bill of rights replaces their effectiveness. Additionally, the government is likely to pass laws that violate the common law human rights. Only the criminals and the minorities benefit substantially, as it serves the function of guaranteeing equal and fair treatment (Butler 2007). Question 9: The HIH directors breached their statutory duty of care and diligence as directors under Section 180 of the Corporations Act 2001. During the steady fall of the company, they failed to provide transparent information and disclosure of the company’s situation. They also breached section 182 of the Corporations Act (2001), which requires that directors should not act for improper purpose or make improper use of their positions. They obtained money falsely using misleading statement, which shows they failed to act in good faith as directors under Section 184 (Cheng & Seeger 2012). The HIH directors also acted unethically through lies, deceptions, and manipulation of the system to mismanage the firm. For instance, they made sure they had a weak system in place that would not periodically assess the effectiveness of corporate governance to ensure blatant mismanagement. Legal yet unethical situations include instances where a company engages in business practices that pollute the environment to increase profitability through unwarranted emissions, resulting in environmental degradation. While it may be legal to pollute the environment, it is unethical. An example of ethical yet illegal business practice is where directors violate confidentiality agreements do as to express vital information to the public, or whistle-blowing, while undermining the binding company policies or institutions (Cheng & Seeger 2012). Question 10: The “values” and historical context of the original constitutional founders should not influence the interpretation of the Constitution by Australia’s high court in your view. The founders envisaged what roles the High Court should play under the Australian Constitution. The two key roles include the High Court being the final court of appeal nationally and being the ultimate authority of constitutional interpretation. These two roles were significant. However, the constitutional function is vital to the relevance of the High Court and the Constitution in future (Craven 1997). However, the founders failed to outline that it would revise the meaning of the Constitution and sections within the constitution based on the contemporary Australia. Additionally, it failed to outline the role of the court in changes in the international legislative changes in human rights, such as inserting the Bill of Rights in the Constitution. Both of these progressivism aspects are inconsistent with the founder’s vision of the High Court. An example of progressivism changes include the meaning of “marriage” in the marriage power in section 51, which has changed meanings from 1900 and to date (Craven 1997). If the High court chooses to be influenced by current social values, then it should use the principle of intentionalism, which entails interpreting constitutional interpretation accords based on the basic principle of human relations as instruments for expressing humanity (Craven 1997). Question 11: After the High Court made its ruling in favour of the Commonwealth government based on the premise of the federal government’s foreign affairs and corporation powers, the ruling became a major setback for Australian federalism. It also showed a failure by the High Court to balance the powers between the Commonwealth and the States. It allowed the Commonwealth government broad new powers that potentially violate the power of the States to legislate in many aspects, which distorted the "federal balance.” The Tasmanian government wanted to construct a hydroelectric dam on the Franklin River to generate hydroelectric power generation. The federal government was opposed to construction of the dam, as it would have flooded the River. The majority judges (Justice Murphy) held that the Commonwealth government’s decision to prevent construction of the dam was legitimate, and that the newly enacted World Heritage Act was legitimate under the "external affairs" power and that despite other sections of the Act being invalid, the provision that banned the construction of dams was legitimate. The minority judges (Justice Gibbs) noted that while the Constitution is open to interpretation, "the external affairs power is different from other powers that Section 51 grants in its capacity for nearly unlimited expansion and therefore definition of which affairs are of “international character” is complex task for the court. Question 12 The Australian Constitutional crisis is regarded as the most profound constitutional crisis in the history of Australia. The crisis climaxed on November 11, 1975 after Prime Minister Gough Whitlam was dismissed from office. The dismissal heralded a series of events in which the Senate refused to pass the government's budget bills (Galligan 1995). Several key protagonists played significant roles in the crisis. In the crisis, Governor-General Sir John Kerr played the role of dismissing Whitlam. His other role included appointing Malcolm Fraser, who was the leader of opposition, to replace Whitlam. Whitlam’s role in the crisis was to call a half-Senate election in the hope of breaking the deadlock. Kerr’s role was also in precipitating the crisis as when he was approached by Whitlam for an approval of the election, he dismissed Whitlam as the Prime Minister and instead installed Fraser. Kerr also dissolved the parliament. Fraser also precipitated the crisis as he acted fast to ensure passage of the appropriation bills before the parliamentarians of Whitlam’s party were aware of Whitlam’s dismissal. Chief Justice Barwick also precipitated the crisis by advised Kerr on how to dismiss Whitlam. He provided a written advice informing Kerr that he had a legitimate right to dismiss a non-performing Prime Minister (Galligan 1995). References Allan, J & Aroney, N 2012, “An Uncommon Court: How the High Court of Australia Has Undermined Australian Federalism,” Sydney Law Review vol 30, pp.245-294 Butler, J 2007, "A Bill of Rights for Australia?- Part 1," The National Legal Eagle vol. 13: Iss. 2, pp.1-6 Charlesworth, K, Chiam, M, Hovell, D & Williams, G 2012, "Deep Anxieties: Australia and the International Legal Order," Sydney Law Review vol 25 no 4, pp.424-464 Craven, G 1997, "The High Court and the Founders: an Unfaithful Servant," Papers on Parliament No. 30 Nov 1997 Chemerinsky, E 2007, "Against Sovereign Immunity," Stanford Law Review, vol 53, pp.1201-1205 Cheng, S & Seeger, M 2012, "Lessons Learned from Organizational Crisis: Business Ethics and Corporate Communication," International Journal of Business and Management vol 7 no 12, pp74-86 French, J 2006, "Co-operative federalism in Australia – an intellectual resource for Europe?" Amicus Curiae vol 65, pp.9-17 Galligan, B 1995, A Federal Republic: Australia's Constitutional System of Government, CUP Archive, Melbourne Kerry, R, Susan, D & Ankeny, R 2009, “A matter of conscience? The democratic significance of 'conscience votes' in legislating bioethics in Australia,” Australian Journal of Social Issues, vol 44 no 2, 2009, 121-144 Morris, C & Malone, R 2004, "Regulations Review in the New Zealand Parliament," Macquarie Law Journal vol 4, pp1-31 Resnik, J 2013, "Globalisation, Privatisation, constitutionalisation, and statisation: Icons and experiences of sovereignty in the 21st Century," ICOn vol 11 no 1, pp.162-199 Slobogin, C 2010, Preventive Detention in Europe and the United States, viewed 12 May 2015, Read More