Federal and State Constitutional Law Assignment
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Added on 2021-06-16
Federal and State Constitutional Law Assignment
Added on 2021-06-16
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Running head: FEDERAL AND STATE CONSTITUTIONAL LAWFederal and State Constitutional LawName of the StudentName of the UniversityAuthor Note
1FEDERAL AND STATE CONSTITUTIONAL LAWThe real political and constitutional power in Australia is vested not in the Prime Minister,Cabinet or Parliament, but in unelected officials, such as judges and the Governor-General.IntroductionAustralia has a written constitution that has derived the concept of separation of powersfrom the UK, which delegates responsibilities between the legislature, judiciary and executive.The Parliament is vested with legislative power and is the supreme source of law, which maydevelop any law it considers as necessary subjected to the restraints conferred upon it by theConstitution. The executive is responsible to implement the laws passed by the Parliament,judiciary is responsible for adjudicating the laws enforced, and to ensure it is consistent with theconstitutional provisions. The executive power of the Commonwealth is vested in the Queen butthe power is exercised by the Governor-General who is required to a act on the advice of thecabinet. Although the executive is required to act as per the law, but the extent to which courtshave become the institutions of the society, construing, recognizing, and even enforcing the law,it can be said that judiciary is playing significant role in exercising the political as well as theconstitutional power. In this research essay, the doctrine of separation of powers shall be explained tounderstand the separate statutory roles delegated to the three branches of the government. Thethree branches of law are obligated to act independently without interfering with the roles playedby one another. However, the research paper aims at explaining that though the constitution hasvested the political powers upon the elected officials comprising the prime minister and cabinet,but in reality, the non-elected officials that is, the judges and the governor general are exercisingthe political and constitutional powers within the country.
2FEDERAL AND STATE CONSTITUTIONAL LAWDiscussionThe fundamental concepts of Australian constitutions include the rule of law,parliamentary sovereignty, and bicameralism, separation of powers, constitutional interpretationand federalism doctrine. The rule of law requires that law must comprise consistent andtransparent rules as well as procedures rather than being an outcome of random decision-making,which usually takes place in a modern dictatorship and monarchy. The concept of separation ofpowers forms a crucial part of the Australian constitution, which safeguards the rule of law andliberties. The rule of law also requires that law is equally applicable to the government as well asto all ensuring independence of the judiciary from sectional and political influence. The rationaleof separating the powers is to ensure that the rights of an individual to a fair and impartial justiceleading to fair administration of justice are secured. The separation of judiciary from the political influence is necessary to preventconcentration of power, which may otherwise be detrimental to liberty. To ensure the checks andbalances, the Constitution has stipulated that the federal judicial power must not exerciseexecutive or federal legislative powers. The constitution sets out that federal judicial power shallbe exercised by the courts (Federal courts, High Court and state courts) who shall only exercisejudicial powers subject to certain exception when it may exercise non-judicial powers as well aswas established in the New south Wales v Commonwealth [1915] (Wheat’s case)1.Since the ‘judicial power’ of the Commonwealth, judiciary has not been definedprecisely but the characteristics can be identified through some case laws. In Huddart Parker vMoorhead [1909]2, the judiciary powers include determining of controversies relating tosubjects, sovereign where such decisions become binding upon the concerned parties. The case1 New south Wales v Commonwealth [1915] 20 CLR 54.2 Huddart Parker v Moorhead [1909] HCA 36 8, CLR 330
3FEDERAL AND STATE CONSTITUTIONAL LAWof Brandy v HREOC [1995]3 and Federal Commissioner of Taxation v Munro [1926] HCA 584established another characteristic of commonwealth judiciary that the decisions are enforceable.The judicial powers of Commonwealth courts also encompass the right to determine casespertaining to rights and duties including those that are of administrative nature as was establishedin Luton v Lessels [2002]5. Judicial functions include powers vested in a deciding body. Some ofthe functions include the right to construe law; to determine and hear complaints; to determineguilt and punish offenders; to enforce compliance and punish for court’s contempt. The Luton’scase states that the characteristics of the courts are merely indicative and not decisively judicial. In regards to the constitutional powers being exercised by the courts, several disputeshave arose where legislation has conferred certain non-judicial powers or functions on the courts.This is evident from the power conferred upon the courts to issue control orders in order todetain a person to prevent a potential terrorist attack in the future as was observed in Thomas vMowbray [2007] HCA 336. The judges are also conferred with the power to issue ‘searchwarrant’ or relevant non-judicial orders against concerned parties which have often given riseto debates whether it amounts to judicial or administrative orders. However, presently theissuance of search warrant and similar order is perceived as judicial order. In Thomas’s case, there have been several debates regarding the issue of control order todetain a person as it was not clear whether such issue of control order amounted to administrativeor judicial function. It was argued that it did not amount to any legal dispute or breach that thecourt had to issue such order, which primarily is a function of the executive. Further, industrialcourts are conferred with powers to exercise their discretion in respect of administrative sectors,3 Brandy v HREOC [1995] HCA 10, 183 CLR 245.4 Federal Commissioner of Taxation v Munro [1926] HCA 58.5Luton v Lessels [2002] 165 CLR 462.6 Thomas v Mowbray [2007] HCA 33.
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