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Question: Australian Legal System – Law of Commerce

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Essay Question

“The principle of Parliamentary sovereignty means neither more nor less than this, namely, that Parliament thus defined has, under the Australian constitution, the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of Australia as having a right to override or set aside the legislation of Parliament.”

Critically analyse this statement/quotation in the context of the Australian Legal

System, focusing on the role of the judiciary. Do you agree or disagree with this statement? Explain why.

In answering the question you may wish to consider the following sub-questions or issues:

  • What role does the judiciary play in relation to upholding the Australian Constitution?
  • What role does the legislative branch play in relation to creating the law?

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Solution:

Introduction

Parliamentary sovereignty is tagged as the main part of the Australian constitution. This was coined during the term of William and Mary that came to the throne with a condition to provide parliament power and put the right under parliament. As per the view of the Dicey, three details principal aspect can be framed. Firstly, parliament is the main lawmaking body and enacts laws relating to the different matter. Secondly, no parliament can be said to be a predecessor or bind a successor. Thirdly, no person or body (court of law) can question the legal validity. Going by the quote of A.V. Dicey it can be commented that the parliament has the sole authority to make or run any law. It is in conjunction with the rules and regulations that state the power lies with the Parliament and this is done through the divisions that are present in the system (Constand, 2014). This statement is totally correct that the Parliament has the right to make or run any law and that it is not accountable to any third party. Hence, the parliament is the supreme decision-making body and the performance of the constitution is done with the help of the judiciary and executive.

Parliamentary sovereignty & Power

As per Dicey, the most noteworthy feature of the parliamentary sovereignty is that it is not restricted by the predecessors or by the successors. The method through which the judges of the Australia give effect to the rule is defined as the Doctrine of Implied Repeal. As per the doctrine, the judges should provide an effect to the latest update of sovereign will and they are not at any liberty to apply the statute that was earlier. It was held in the case of Vauxhall estates Ltd v Liverpool Corporation and Ellen Street Estate Ltd v Minister of Health highlighted the doctrine in their operation (Constand, 2014). Every case requires same facts and observations. In the case of Vauxhall Estate, the divisional court was of the opinion that the Housing Act 1925 repealed the provisions that were of conflicting in nature in the Acquisition of Land Act 1919. In the case Ellen Street case, the court of Appeal provided a rule that the Act of 1919 must provide for the 1925 legislation. The parliament sovereignty provided that no one can challenge the validity of an act of parliament. The act is binding in nature and prevails over any other law or acts (Slapper, 2006). The judgment or decision gives a strong indication that the Parliamentary sovereignty is the most binding element that needs to be adhered to for the smooth conduction of the legislative operations.

Hence, the principle of Parliamentary sovereignty has exclusively provided that the law set by the Parliament is above all and cannot be surpassed in any scenario. The legislation of Parliament has the sole authority and that the rules and regulation are defined by the constitution. This is being done by the three chapters of the constitution.

As a matter of fact, the Australian Constitution can be defined as the set of rules that governs Australia. The initial three chapters of the constitution explain the three separate groups that are the Parliament, the Executive, and the Judiciary and further the roles they play in the governance of Australia. The potent to make and to manage the federal law is segregated between the three groups and it dwells on the power separation. As per this principle, the governing power must be distributed between the Parliament, the Executive, and the Judiciary so that one group is not contained with all the power (PEO, 2017). Every group should function within the prescribed area of responsibility so that each can keep a check on the other.

The judiciary can be stated as the branch of the government that controls the justice as per the law. This term is utilized to pertain to the court, the judges, magistrates, and other personnel who guide to operate the system. The rule is applied by the court, and disputes are settled and punish the ones who break the law. The judicial system upholds the Australian constitution and this can be clearly observed by the role that is played by it. It maintains the order, peace and the process of good government (Lenkin, 2009). The judiciary performs without any fear and the government looks to the court so that laws can be interpreted. The manner of the court to give justice rests on the power to enforce the ruling. It is only a court of appeal can overturn the ruling of a lower court. The judiciary is the body that makes a judgment regarding the law. It comprises of the High court and the federal court (Hamer, 2004).

There are two protections available that can safeguard the independence of the judges and the magistrates that coins the fact that the judiciary is endowed with power and helps in safeguarding the constitution. The appointment, as well as the tenure, is a major reflection of the power of the judiciary. The judges, as well as magistrates, are appointed by the Attorney General and have a determined tenure. This provides that the judges will continue to be in office until the age of 70 and magistrates till 65 unless they choose to retire (Fullerton et. al, 2017).

The legislative branch can be said to be that division of government that operates in conjunction with the executive, as well as judicial branches. The main role is that of the creation of the law. The Australian Constitution defines the power of the legislative branch. The segregation of power works in tandem with another principle called as a responsible government that will guide the way law is operated. Responsible government ensures that a party or coalition should ensure the back up of the member’s majority so that they remain in government (Gillespie, 2017). It leads to a proper check on the Executive that ensures accountability can be maintained to the Parliament so that the power is not abused.

Conclusion

Overall the Constitution provides certain limits to what the Commonwealth Government is asked to do, the High court might be asked to ascertain whether the law made by the Commonwealth in within that power. The interpretation of the Constitution has led to stronger law-making power for the Commonwealth. Important court cases in this scenario include that of the Tasmanian Dam Case, Work Choices Case, etc. From the above discussion, it is crystal clear that the mode of operation of the constitution is different and being a decision making body it has the power to make a decision and implement that cannot be done by any other body. In short, it is tagged as the supreme body and discharge the function with the aid of the executive and the judiciary. The utility of the rule of law lies mainly in the power. The statement ensures that the rule of law should be respected and by the judiciary. The Parliament has a strong discretion in the manner of resolving of issues and the jurisdictions give way to an innumerable solution. This confirms to the Constitution and is a glaring example that the Parliament operates in a manner that guides the rules and regulations and ensures a healthy lawmaking environment.

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