Executive and Judicial Branch for the Separation of Powers - Essay Example

Number Subject Name Lecturer’s Name Law Due date Date Submitted 1a) Judicial power In any government, there are various branches which exercise distinct functions. Judiciary is an arm government that exists in any democratic setup. In Australia Judiciary power is the authority bestowed in courts, judges and other like officials to decide cases and interpret the law. Judicial power is exercised through court decisions. An example of an exercise of judicial powers is by deciding cases. Another example of an exercise of judicial powers is by interpreting laws. These laws maybe found in the constitution or statutes. The judicial power may also be exercised through court declarations of status of Acts of parliament, whether such is constitutional or not hence pronouncing them as valid or void. Executive power This is the authority that the Executive exercises stemming from the law, especially the constitution. This power is exercised by the head of the government either the president, the prime minister or the king or queen depending on the type of government. In Australia, the executive is vested in the Queen, the Governor General exercising power on her behalf (The commonwealth constitution Act, (1900). s.61). Cabinet also forms part of those that exercise the executive power. An example of an exercise of executive power is implementing the law this was sated in Davis v The Commonwealth (1988). Another example is on making policies to be followed in the commonwealth such as monetary policies and also entering into relations with foreign governments on behalf of the nation. 1. b) The relationship between executive and judicial branch for the separation of powers The judiciary and the executive are supposed to be distinct. However, both arms have to relate for proper performance of the government as a whole. The relationship that exists is that the Judges of the High Court and also other courts are appointed by the Governor-General, who is a member of the executive. On the other hand, the decisions made by the court are implemented by the executive. This would especially be on the matters forwarded to the court for interpretation. The executive will have to follow the interpretation given by the court on constitutional matters and on statutes. 1.c) An example of where the distinction between executive and judiciary appears blurred An example of where the distinction between the executive and the judiciary appears to be blurred is the fact that the judges are to be appointed by the executive. If these two branches are to appear separate, then the appointing authority of one arm should not come from another arm. This brings an issue whereby the two arms seem to have their functions overlapping. The question of how the judiciary would be able to maintain its independence becomes an issue. If the executive is one to appoint judges then there would be an issue arising when the questions for determination before the court touches on the executive. 2. Setting up a foreign business in Australia. Introduction It is possible for a foreign business to be set up in Australia. There are various types of business that may be established in this regard as will be discussed below. The requirements for setting up those forms of businesses will be discussed as well as the regulations that apply to such businesses. The essay will touch on various areas that a foreign business may be established, the laws and regulations that the business may be required to follow including regulations on tax, environment, trading, export, dealing with natives and more importantly, how foreign businesses are protected in Australia. The types of businesses that can be formed in Australia as foreign businesses are many. However, this essay will focus on the most common forms of businesses which include; companies, partnerships and sole proprietorships. Companies are the most common form under which business is conducted. In Australia, companies are governed under the Corporations Act (2001). They can either be proprietary or public in nature. This form of business provides some form of protection since it has limited liability. Foreign businesses may either establish a company in Australia or have a subsidiary. The foreign company will only be allowed to trade in the name that has been registered in Australia. A foreign company that has a place of business in Australia, deals with property and has such activities as to show that it is carrying on a business in Australia, will be required to be registered under Australian Securities & Investments Commission. For the registration to take place, the foreign company must establish that it has a name with which it intends to trade with (King & Wood Mallesons, 2014). There is also a requirement that the company appoints a local agent. The agent must be a resident in Australia or a company incorporated in Australia. The purpose of the agent is to receive notices on behalf of the foreign company. The agent will also ensure that the company complies with required regulations. The foreign company will be required to establish an office in Australia. The office is to be used as a place where communication to the company is to be effected. The company will also be required to lodge will Australian Securities & Investments Commission the company’s constitution, submit a list of the directors and also avail details on the principal office of its country of origin. After registration the company would be required to make annual returns. Any change in address should also be communicated. The company will be under a continued obligation to report annually on its finances. This is done through yearly financial statements. The company is also required to give details of any changes in the directorship of the company or any other material change such as to the registered office. Partnerships can also be formed in Australia. The formation is governed by state laws on partnerships which may vary from state to state. This form of a business however has a disadvantage in terms of the number of persons who can form the partnership. The biggest disadvantage is that a partnership does not enjoy separate legal entity. This means that the individuals who carry on business in a partnership will be held liable for the liabilities of the partnership. The partnership if trading in a different name other than that of the partners will be required to register the business name under the Business Names Registration Act (2011). An individual may choose to operate a business in Australia, either under their own name or under a registered business name. This does not call for many requirements such as the foreign companies. The only issues that the sole trader may be required would comply with would be tax issues and other local requirements in regard to trading some of which will be discussed later in this text. Traders are expected to abide by the set regulations in relation to competition. They are expected to exhibit fair competition practices and not to go against the set standards under the Competition and Consumer Act (2010). Some of the prohibited anti-competitive acts include market collusion or such issues as cartel activities. Most of the targeted activities are those that go against any force that may play against the common market rules and fair competition among businesses. Whenever the law is not complied with, penalties accrue both in civil and criminal nature. Foreign businesses are required to comply with tax requirements. The tax is assessed and paid yearly on taxable income. This comprises of all income of the business in the tax year. For the income of a foreign company to be subjected to a tax payment under the Australian tax laws, the business or the company will be required to be a resident. Residence of a business is determined by whether the business has established a premise where it conducts business or if the company has been incorporated in Australia. Regulations exist as to how businesses engage especially where the projects in which they engage in affect environment. The regulations require impact assessment test on activities that affect the environment or any building on the land. Such activities would call for permits to be issued. The business must also ensure that they are observant of how they dispose their waste materials. Such should be done in a way that does not pollute the environment. The ways of disposal used by the business must be in compliance with the regulations of the country. Besides the foreign companies being required to comply with Australian regulations, they are also given protection under the law. The protection is mostly through the laws that also protect businesses in the country. Cybercrime is one of the areas where businesses are protected. Where there are online transactions are involved in the business, the law, through the Crimes Act (1914). This is not the only way in which the businesses are protected; it is only one of the several that ensure protection of those that venture in electronic and online trading. Conclusion Foreign businesses may be established in Australia following the legal framework set out on the various forms of businesses that may be established. Such businesses will however require more regulations than those incorporated in Australia. After registration, the business continues to fulfil obligations both by virtue of being a business operating in Australia and also by the reason that they are foreign businesses. The businesses will also enjoy the protection like any other business in the country. References Business Names Registration Act 2011 (Cth) Competition and Consumer Act 2010 (Cth). Corporations act 2001 (cth). Crimes Act 1914 (cth) Davis v The Commonwealth (1988) 166 CLR 237 King & Wood Mallesons, Guide to doing Business in Australia, 2014 available at The commonwealth constitution Act, 1900 (Cth) Read More