Federal Government and Legislation - Assignment Example

FEDERAL GOVERNMENT AND LEGISTRATION FEDERAL GOVERNMENT AND LEGISTRATION Insert name Insert grade course Insert instructor’s name August 26, 2011. Introduction The government of Australia commonly formulates laws on issues that affect the nation as a whole as well as on the issues where it would be obstructive for the law to be different in every state. According to section 51 of the Australian Constitution, there are forty definite areas that are defined over which the Commonwealth has the power to makes laws. These specified areas are such as the currency, postal and telephone services, immigration, relations with other countries and many more. The Australian Government can as well formulate laws regarding Australian territories. State governments have the ability to formulate laws on any matter that the Australian Government can not. State laws normally cover matters such as education, health, and the environment as well as the operation of emergency services (police, fire and ambulance). It is also possible in a number of cases for the Australian Government and the states to formulate laws on the same matter. In instances where the state law and Commonwealth law do not agree with one another, the Commonwealth law is followed. Not all territories have their own government, and even if they do, the powers of a territory government are not similar to those of state government. Territory governments can only be instituted with the conformity of the Australian Government. The Commonwealth law that institutes a territory government will as well specify the powers of that government. It may be given the right to formulate the same laws that a state can, or they can only be permitted to formulate laws on a small number of matters. Territories that do not have their own government may be instructed by the Australian Government to follow the rules of a neighboring state, or the Australian Government can compose its own bylaws for the territory. Should the Federal Government have powers to pass legislation? There are six states in Australia that correspond to the six British protectorates that united together to produce the ‘Commonwealth of Australia’. When the Commonwealth was formed, the state accepted a charter that offered the then new Commonwealth administration the permission to ratify regulations on various issues, and permitted the states to maintain all other legislative constitutional rights. Therefore, states have a legitimate justification to assemble a state legislature and approve particular regulations. The remaining part of the ground that is inside Australia’s countrywide boundary that is not claimed by one of the states is referred to as a territory. Territories do not have the power to set up their own administration or authorize decrees as ii is the case with states. Under the charter, the Australian administration formulates the decrees for the territories. It is important for the federal government to have such powers to pass legislation since territories have no power to formulate their own laws. Passing the legislation for a territory as in the case of Northern Territory by the Federal Government is important as they were given the right to make their own laws, including laws geared to protect human rights. Therefore, the federal government ought to have such powers as to pass legislation (Tienyee, Isabel & Jenkins, 2011). The Australian Constitution has given the Commonwealth government, under section 122 of the commonwealth constitution, the power to formulate laws for the government of any territory. This is a plenary power, unlimited by subject matter. Section 122 of the commonwealth constitution states that, “Under this section, the commonwealth has a general power of legislation for a Territory. It may do so by means of paramount legislation passed by the Commonwealth Parliament, or by setting up a territorial legislature with its own legislative power, although these will always be subject to the overriding authority of the Commonwealth” (Spooner, 2011). Other than section 122, there is as well judicial authority for the view that if there is conflict between a Commonwealth law and a Territory law, then the Commonwealth law will reign. This is because the Territory law is the law of a subordinate legislature and ought to give way to an inconsistent law passed by a paramount legislature (Tienyee, Isabel & Jenkins, 2011). The federal Government should have the power to pass legislation as it did in Northern Territory so that the territory can have laws that protect the right of its people. This is because, when there are no such laws, the rights of inhabitants are likely to be violated. The other fact is that territories that do not have their own laws follow the laws of their neighboring state, which may be discriminative due to common differences such as race, and status. Thus the Federal government ought to have powers to pass legislation for such territories so that they can make their own laws that best suits their living conditions. The Federal Government has powers over citizenship, together with powers to define the situations under which immigrants may become citizens, in addition to protecting the rights of those persons who have citizenship. Thus it is important for the Federal Government to have the powers to pass legislation so as to propagate the formation of laws that would further enhance the protection of the citizens of the territory as well as immigrants (Tienyee, Isabel & Jenkins, 2011). It is noted that most of these territories are inhabited by the indigenous communities, which are prone to abuse and discrimination in terms of race, sex, color as well as previous servitude conditions. When the Federal government has the powers to pass legislative, it gives the citizens of the territory who are over 18 the power to vote irrespective of color, sex, race as well as servitude conditions. This is because the territory is given the right to form self government which can formulate laws that agrees with those of the federal government. Circumstances in which the legislative powers of Federal Government should be exercised Australia has a federal constitutional structure whereby the legislative, and the executive as well as the judicial powers are shared or distributed among the Federal Government, the six States and two internal self-governing territories. The federal government only has powers to legislate on issues explicitly listed in the Constitution as being federal legislative powers. Most of these powers are listed in section 51 of the Constitution. Thus there is need for the legislative powers of the Federal government to be limited or exercised to some certain levels so as not to breach the rights of the citizens of these territories. Since the Federal Government has power over the foreign affairs and defense, the legislative power of Federal Government should be restricted to defense and foreign affairs only, and leaving all the other issues in the hand of the local government so as to reconcile self-government of territories with the federal power of legislation. In situations where foreign affairs and defense of a certain territory is endangered, then the legislative powers of the Federal Government should be exercised to protect the rights of the citizens. The Australian parliament has enacted more than forty segments of legislation regarding defense and terrorism. The states and territories of Australia referred legislative powers to the Australian Commonwealth government to enact and codify terrorism offences. The legislation also allows for terrorist organizations to be declared illegal and individuals who are members or support a terrorist organization can be charged with an offence. The legislation can use its powers to prevent the disclosure of information that is prone to harm national security (Saunders & Roy). According to the Constitution, the Commonwealth government has limited legislative powers regarding the raising naval and military forces (sections 51 (VI) and 114), currency (sections 51 (XII) and 115), the imposition of duties of customs and excise as well as the grant of bounties (section 90). Another area where federal powers are exercised is its taxation powers together with the exclusive power to tax goods (sections 51 (ii) and 90); the external affairs power which has been expansively interpreted to allow the Commonwealth to legislate to give effect to an international convention; and powers related to social security, immigration and defense. In circumstances where the structures of companies under the corporation law need to be regulated, the Commonwealth has both corporations’ power and the industrial relations power. The Commonwealth also has power over commerce where it controls all trade and commerce apart from the trade conducted on entirely within a specific state. Under section 51(35) of the Commonwealth constitution, the Federal government has the power to formulate laws regarding to the reconciliation and negotiation in order to prevent and settle industrial disputes extending beyond the limits of any single state. Furthermore, the Commonwealth has chosen to regulate labour-related issues by the use of legislative powers in regard to the federal public service, constitutional corporations, inter-state and international trade and commerce, as well as external affairs. As Federal laws in all of these areas has the ability to override inconsistent State laws, the Commonwealth in practice makes use of these powers to presume a substantial regulatory responsibility for the majority of the labour law system (Hodges & Fenwick, 2002). The Commonwealth also has powers in regard to the contract of employment. Under the general law, all workers have a contract of employment with their manager. This contractual service relation co-exists with other statue-based forms of employment regulation, like awards or certified agreements. This implies that workers or managers have the ability to take lawful action to enforce a contract of employment irrespective of the condition of the employment connection under law. In the event that the employment contract has been breached, the commonwealth laws come in and the legislative power is utilized. The general rule remedies for breach of an employment contract are complemented by parallel operating Federal and state statutory schemes for unjust and illegal expulsion. Currently there is legislation that extends the operation of the Federal laws regulating the termination of service of all individuals working in companies. Federal legislation also protects employees who take parental leave against illegal and unjust dismissal or demotion. It as well prohibits discrimination based on pregnancy or potential pregnancy. The federal legislation also forbids the employment of children under 15 in a limited number of industries as well as where the child’s emotional or physical well-being is put at risk. There are instances where a worker can be discriminated such as if s/he was involved with trade union, or for the reasons of the employee’s race, color, sex, sexual preference, age physical or mental disability, marital status, family responsibilities religion, pregnancy social origin, or political opinion. In the instances the legislation at the Federal and State levels prohibits both direct and indirect discrimination (Hodges & Fenwick, 2002). Family is another faculty where the Commonwealth has power of indulgence. In situations where the rights of a family are breached, the federal government comes in protection of family rights. In the family docket, there are several issues that the federal government legislative powers are exercised. Concerning marriage, the federal government passes laws concerning heterosexual and same-sex marriage for territories. Matters relating to the divorce and matrimony, parental rights as well as the custody and guardianship of infants are also solved with the powers of federal government. Therefore, Legislation will be required or chosen for the implementation of a policy if: * Existing rights and obligations are to be modified * The policy is to have long term operation * The policy is of a very high level of importance. Whether the power to pass legislation was exercised correctly in regards to Northern Territory Intervention (NTI) The Northern Territory Intervention (NTI) is a package of legislation, targeted directly at Aboriginal peoples but passed without adequate consultation with those people, and hence it restricted and removed a variety of human rights with the purported aims of enhancing development outcomes and protecting children from abuse. The NTI has a wide discriminatory impact on affected Aboriginal people, limiting their rights to property, social security, adequate living standards, health and education, self-determination, work, child rights as well as remedies. The program brought a shock to the nation, and stimulated an environment of demonization of Aboriginal men and communities as a whole. The sending of military in to the community to spearhead a number of planks of reforms, including the seizure of Aboriginal land for five years, the placing of Aboriginal people under a compulsory income management system where half of their welfare payments were quarantined (irrespective of their past behavior), introducing blanket alcohol and pornography bans over communities as well as giving government the ability to seize Aboriginal controlled assets (BEHRENDT, 2010). The passing of this legislation by the government and the measures that followed had another negative impact where the Racial Discrimination Act was suspended so that the Parliament would legally racially discriminate against Aboriginal people. The power to pass legislation was not exercised correctly since there was no consultation with Aboriginal people in passing or drafting these intervention laws, despite it affecting most of the Aboriginal families in the Territories. This is further evidenced by the fact that even after the outcry; the Aboriginal leaders were offered only one day to make their plea at Parliament house. Rather than protecting children and making communities safe as well as creating a better future for Aboriginal people in the Northern territory, the intervention resulted in discrimination and removing Aboriginal peoples’ rights to make daily decisions in lives. For instance, the controversial income management scheme, where Aboriginal people in prescribed areas have part of their welfare payments quarantined to be used on important items creates a lot of questions (BEHRENDT, 2010). The use of the federal government power to pass legislation was not used correctly in introducing the intervention to the Northern Territories. This is because the Aboriginal people feel that their self worth has deteriorated while the income management is an insulting and degrading experience. Under the intervention, schemes such as welfare quarantines are classified as a ‘special measure’, which is a form of affirmative action meant to be beneficial to those affect but turned to be a nightmare. The most controversial policies that were integrated in the intervention included the compulsory acquisition of Aboriginal land, compulsory acquisition of assets held by Aboriginal communities and the compulsory quarantining of welfare payment. In passing these policies, the federal government used paternalism that said to the Aboriginal communities “we know what is best for you”, “we just care about woman and children” and “we are acting with your best interests at heart”. The intervention did not have anything to do with overcoming Aboriginal poverty or protecting Aboriginal children (McQuire, 2009). The misuse of power in passing the NT intervention has proved over and over again that it is abject failure, and is even harming Aboriginal people instead of helping them. According to the Australian Indigenous Doctors Association, the intervention has resulted in dire psychological damages and the health outcome that was being pursued may not be achieved at all. All the expensive planks of the intervention, like that of housing and infrastructure are doomed to fail, despite the government saying that it is now on track to reach its housing goals. We have seen that despite the fact the intervention was introduced to protect the rights of children and women, it did this at the expense of some other human rights. Thus the commonwealth powers were not properly used when passing legislation to the Northern Territory (McQuire, 2009). How human rights can be protected if the Federal Government does not have power to pass legislation Numerous laws have been passed affecting every aspect of the lives of people. Sometimes it is not possible to understand what our basic rights really are. In the event that the federal Government does not have power to pass legislation, the human Right Act prevails in protecting the rights of people. The Human Rights Act protect the common people from the public authority, such as government department, local authority or the police breaching the convention rights, unless an Act of Parliament meant it couldn’t have acted differently. Australia is the only liberal democracy that does not have a national Human Rights Act. Thus, a Human Rights Act is needed to strengthen the effectiveness and fairness of the Australia’s current system. This human protection methodology has recently been adopted in most countries in the recent decades and has seen great success. Though a great deal of myths has recently been brought forward by activists and humanitarians in a bid to address the negative effects of a human rights act, its positivity will definitely overwhelm this negative perception. One, the act constitutes the sum total of all issues that attack the human race either negatively or positively as well the best ways in which each of them is to be addressed in case it becomes a matter of concern (Bingham, 2008). Secondly, the act is usually put forward in terms of various propositions in regard to distinct issues that affect different realms of human life in an inclusive community. This is usually done in a bid to address all things that are considered crucial as supplements for citizens’ representation in a ruling regime in a governmental set up. Thirdly, the human rights act is normally assigned specific qualified rules that will spell the way in which human governance interacts with the proposed rights. The human Rights Act also provides a fundamental ground in which the citizens of a particular country can base their existence and arguments on. It is also easy to deal with up-coming humanitarian problems and differences by the judges who should be involved in dealing with arising human race differences. In the case where discrimination has been detected by responsible authorities, the act will provide the discriminated with a fundamental standing point. The Act is deemed crucial in its ability to address matters relating to religion, gender equity and inequality, justice ad dignity in addition to resources distribution to all people, since they are considered as the main humanity co-values in all realms of life. It can also be utilized as an instrument for eradication of all societal vices in a bid to strengthen the balance between the existing public authorities and required human welfare and handling strategies. The federal government should therefore stand in the front line in advocating for the enactment and implementation of a Human Rights Act that would help in the protection of human rights in circumstances where it cannot pass any legislation (Behrendt, L. 2006). References: BEHRENDT L. 2010. THE POINTED VIEW: Failing on human rights. Issue 200 - 29 Apr 2010. Viewed on August 26, 2011 from http://www.nit.com.au/Opinion/story.aspx?id=19731 Behrendt, L. 2006. Making Human Rights Matter: How Can Rights Frameworks Help Us Create A Better Community?, Dorothy Pearce Memorial Lecture. Viewed on August 26, 2011 from http://www.tascoss.org.au/Portals/0/Publications/Dorothy%20Pearce%20Address-Larissa%20Behrendt06.pdf Bingham, L. 2008. Dignity, Fairness and Good Government: The Role of a Human Rights Act. Viewed on August 26, 2011 from http://www.hrlrc.org.au/files/MBR9WGGYQF/Dignity__Fairness_and_Good_Government___Speech_by_Lord_Bingham.pdf Hodges J. & Fenwick C. 2002. National Labour Law Profile: Australia. Industrial and employment relations department. Viewed on August 26, 2011 from http://www.ilo.org/public/english/dialogue/ifpdial/info/national/aus.htm McQuire. A. 2009. NORTHERN TERRITORY. Top End legal aid calls for RDA. Issue 189. National Indigenous Times. Viewed on August 26, 2011 from http://www.nit.com.au/News/story.aspx?id=18915 Saunders C. & Roy K. (Not dated) Australia: The allocation of powers in politically decentralized countries: A comparative study. Viewed on August 26, 2011 from http://www.upf.edu/obsei/_pdf/doc_sostres_aust_en.pdf Spooner D. 2011. Australian Capital Territory (Self-Government) Amendment (Disallowance and Amendment Power of the Commonwealth) Bill 2010. Bills Digest Service. Viewed on August 26, 2011 from http://www.aph.gov.au/library/pubs/BD/2010-11/11bd073.htm Tienyee H., Isabel L. & Jenkins G. 2011. In Australia, what is the difference between a 'state' and a 'territory'? Viewed on August 26, 2011 from http://www.quora.com/In-Australia-what-is-the-difference-between-a-state-and-a-territory Read More