MLC101: Law for Commerce - Australian Legal System - Essay Writing Assessment Answer

Law for Commerce Assignment

Assignment Task

“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 LegalSystem, 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 orissues:

• 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?

Introduction:

Australian parliamentary system and its sovereignty is the issue of discussion in the current report. Parliamentary sovereignty actually mean that neither more or less that the parliament defined so, as per the Australian constitution has the right to make or unmake any law whatever it can be and further no person or body recognized by the law of Australia as has a right to override or set aside the legislation of parliament. There are two issues in the discussion the first is the right of the parliamentary system to formulate the laws and second is the scenario that no one has right to set aside the legislation of parliament. The following part of the discussion will present in detail the system prevailing in the county and finally will justify the authenticity of the statement made in the discussion.

Separation of powers and the role of judiciary system in Australia

In Australia judiciary is also the part of government, which works on to administer justice in accordance to the law. Judiciary of Australia is dutiful in upholding the constitution of the country and it will not be influenced by any type of power biases as well will not be influenced by any sort of political parties while working in accordance with the constitutional regulations. Australian constitution has actually worked on to separate the powers in the country into three different wings. The parliament of the country has the right to make and amend the laws in the country. The Executive wing of the government will be actually working to execute the laws prepared by the parliament of the country. The judiciary system of the country will be actually working for making up the judiciary decisions in the country about the law. Judiciary system functions to make judgements about the law. Eventhough in principle the judiciary system role is confined to make judgements about the law, but practically speaking the judicial system here do have broader system to review the legislative and executive actions. The judiciary system of the country has original jurisdiction in the judicial review matters and this will enable hearing matters concerning judicial review pursuant to the administrative decisions. The courts in the judicial system has right to critically review the laws and actions and if they are compatible with the principles of the constitution, they can be simply classified unconstitutional and the execution of the same can be suspended by order. Judicial review act 1977 and judicial review act 1903, paves way for this authority of courts to take appropriate actions to uphold the constitutionality of the laws prepared in the country. If in case if there is any breach of constitutionality in making the laws, courts can enable the governments to call back the laws or alternatively they may send back the matter to the government for fresh consideration. In all these cases the court will be guided by the constitutional rules to uphold their principles and will work on to protect the interests of the constitutionality. At federal level, courts will also work on to review a broad range of administrative decisions of the government. Administrative appeals tribunal will handle the judiciary evaluation of the government department decisions (Geoffrey, 1988).

Constitutional independency of judicial system in Australia:

The common wealth of Australia constitution Act 1900, and section72, worked out to set express provisions on the manner of appointment, removal and age for retirement of the judges, The legislation has provided the judges and there by the judicial system an immunity from the legislatory and executionery branches of the government. They are provided with independent authority to act as per the constitution and the independence of federal judiciary is protected by legislation.

The inferences for judiciary system:

Judiciary system of the country is provided with all the necessary provisions and capabilities to uphold the constitutionality. Both in the decisions pertaining the administrative decisions, legislatory law making and enactment and in the execution of the laws the judiciary system of the country has capacity to uphold the constitution (Nicholas, 1952)

The role of legislation branch in creating the law:

It is only with the consent or by the act of the parliament; it is possible to make a law in Australia as well it is only possible by the act of parliament to modify a law in Australia. However still there are regulations and limitations about the areas where in the federal parliament can make laws in Australia. It is possible for the Federal parliament of Australia to make laws only in the matters related to the international affairs, interstate trade control, taxation, defence, immigration, banking aspects, currency aspects, marriage and divorce, Also oldage pensions and invalid pensions related laws can be enacted and modified by the federal Australian parliament. Australian states will still retain the power of making laws regarding the hospitals, roads, schools as well as about the local government. The two wings of the parliament, the senate and the House of Representatives are not equally balanced in power in these aspects. The house of representatives is given autonomy to make the laws related with the taxation; as well they will enable the public spending regulations and related regulations for expenditure. In this connection, the senate only has limited authority to enact or modify a law; however it can ask the House of Representatives to make laws in these domains (Finnis, 1968).

Legislatory branch of the government will not make a law spontaneously; constitution has enabled proper practice and procedure to make the laws for the country. At the outset a proposal for the new law or a modification for the existing law is to be made in the form of the bill. The bill need to be passed by the two houses of the parliament and subsequently need to be assented by the governor general. Only then the bill will be passed and will become a law. Before the process of the assent the bill will be checked and certified by the clerk of the house. After the assent, the law can be tested and its validation can be subjected to the judiciary investigation any time by the judiciary divisions of the court.

Before the actual enactment of the bill into a law, there can be more than one debate and consideration for passing the bill. Eventhough the typical time durations for enacting a bill into a law vary from case to case, an urgent bill can be enacted in the parliament in a matter of few days. Hence the legislation executes its exceptional power to propose and approve any particular laws as per the interest of the people of the country. The bills and laws can vary and will take up diverse areas of interest in the country. They can range from defence, security, budgeting to international relations and the stands on international matters like terrorism, globalization of economy etc. Further legislator wing of the government is a wonderful creation of an entity as per constitution and its typical functionalities will be including the safeguarding the interests of Australians to provide security and ensure better life to the people in accordance with the constitutional privileges(Williams,2005).

Conclusion:

The constitution of Australia do have the legislatory wing and the judiciary wings as two main divisions of power and they will work on to enable the objectives of the constitution be materialized. While the legislator division works on to formulate the laws and judiciary system will uphold the constitution and gives judgements about the laws (Mason, 1988).Hence in principle it is to be accepted of the parliamentary sovereignty, there is no any other authority in the country with right and privileges to make the laws, enact and modify them. Apart from legislatory wing, there is no any authority or person in the country recognized by the law, having right to make or amend the laws in the country.