Legal issues

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Legal issues


The Constitutional system in Australia determines how the law is made. Some issues addressed by this are; The Federal government, division of powers, the separation of powers, amending the constitution, the high court and the constitution and transfer of powers.

The federal System of government has one central government deal with matters involving the whole nation. This system was adopted in Australia on 1 January 1901.In a federal system of Government there must be a division of powers. Powers are divided between the states and federal government. The powers divided are legislative, executive and judicial powers. These are divided by the Australian constitution. The constitution provides for four types of legislative powers; Specific powers: areas of law making specifically mentioned in the constitution as belonging to the Federal government,
Residual powers: powers that the states retained after federation, these are not mentioned in the constitution but became the states powers.

Concurrent powers: areas over which the states and commonwealth have legislative power.

Exclusive powers: areas over which the federal government has exclusive power.

The Separation of powers means that power is distributed between three arms of government. The three arms are; legislature, executive and judiciary. The judiciary is separated from the legislature and the executive, because of this it is independent and can examine their actions without bias. The legislature is separated from the judiciary and executive powers, because of this it is independent, providing for some rights which cannot be taken away by legislation and this allows provides for regular elections. The executive powers, there is no true separation between these two arm, because the British require that members form the executive arm be chosen from the legislature. However the power of the executive is subject to checks and balances in other ways.

Amending the constitution. Section 128 of the constitution provides the procedure by which the constitution may be changed. The constitution can only be changed if a bill stating the question is passed by both houses of parliament and the change is approved by referendum by the majority of people in a majority of states. It is difficult to amend the constitution because it cannot be amended like any other law; if it were then the federal government could make laws on any area it chose by amending the constitution. For example the 6 November 1999 referendum asked the Australian public do you support an act to alter the constitution to establish the commonwealth of Australia as a republic, with the queen and governor general being replaced by a president appointed by two thirds majority of the members of the commonwealth parliament’. This was not passed, if it was this would have altered or amended the Australian constitution.

The high Court and the constitution. The high Court reviews the commonwealth legislation if a constitutional dispute is brought before it. The high court reviews commonwealth legislation which involves interpreting the words of the constitution. For example the Franklin Dam case, a dispute arose between the federal and Tasmanian governments. The high Court agreed with the Federal government’s arguments and the dam (which caused dispute) was not built.

Transfer of powers. Over the years because of High Court decisions in constitutional disputes, there has been a gradual shift in power from the states to the commonwealth. For example the Franklin Dam case is how this occurred, because the high court agreed with the federal government and not the state this transferred power from the state to the federal government. The division of powers have been altered by this also in that high court decisions and other factors have changed this balance in favour of the commonwealth. Referendums have had little effect on the division of powers.

The Constitution allows for a Federal system of government with the division and separation of powers. The High Courts have had a major effect on the constitution not only the high court but also referendums. The division of powers has changed because of High Court decisions and state and federal decisions.