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Australian Constitution - Essay Example

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No other constitution in the world has aroused so much debate within legal circles like the Australian constitution. Whether it is human rights or voting rights for the Aborigines, the Australian constitution appears inadequate in addressing issues if put to the litmus test…
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Australian Constitution
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Download file to see previous pages Justice M.D. Kirby (1997) succinctly highlights the difficulties in this manner: "I have elsewhere tried to point out that the Australian Constitution can be viewed as reflecting a struggle, which is still ongoing, between British and United States elements captured in its text." (The Honourable Justice M D Kirby AC CMG, 1997)
"In 1992 in Australian Capital Television Pty Ltd v Commonwealth the High Court struck down the Political Broadcasts and Political Disclosures Act 1991 (Cth) which restricted political advertising on the electronic media during Federal, State, Territory and local elections. In doing so, it recognized that the Australian Constitution contains an implied freedom to discuss political matters. This freedom was primarily derived from sections 7 and 24 of the Constitution, which respectively provide that the members of the Senate and the House of Representatives 'shall be ... directly chosen by the people'. As federal laws passed under section 51 of the Constitution are passed 'subject to this Constitution', such laws are invalid if they infringe the implied freedom" (William, George (b); 1996-97).
The reason for the High Court decision was clear. The 'implied freedom' took precedence over Political Broadcasts and Political Disclosures Act 1991. Or, the 'implied freedom' was implicitly clear while the written law was irrelevant. The Australian constitution does not guarantee freedom of speech. However, the court ruled in favor of Australian Capital Television Pty Ltd quoting 'implied freedom'. The learned judge ruled on the merits of the case. Had he ruled on the basis of the written constitution, he would have ruled otherwise (William, George (b); 1996-97).
The constitution is a powerful document. It is the overriding and supreme determinant. However, sometimes there are verdicts that appear to have little to do with the constitution. At times, they also appear to run counter to the constitution. Nonetheless, the judges are in better position to provide the ruling.
The ruling reinforces what many believe that the Australian constitution is a little more than a legal document. In other words, the Australian constitution must be taken with a pinch of salt. Does this also mean that this constitution is inconsistent and has inadequacies No responsible judge will be expected to make such sweeping remarks. However, there could be a silent consensus on what the constitution ought to be (Justice and the Rule of Law).
Disputes arise that demand a constitutional resolution. These disputes are handled by legal specialists and settled in the courts. But from time to time, controversies occur, drawing the country's attention to its constitution. These raise major national questions about whether acts of government or parliament, decisions or actions of officials are constitutional, that is, whether they are authorized by the ultimate source of law and power in Australia (Justice and the ...Download file to see next pagesRead More
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