Introduction to Common Wealth Government
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Added on 2019-10-12
Introduction to Common Wealth Government
Added on 2019-10-12
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IntroductionThe Commonwealth Government felt an imperative need to look into the matter as theInstitutional responses to Child Sex Abuse were appalling. The Royal Commission1 refer to aform of public enquiry which are temporary bodies being appointed by the executive governmentin order to the proper investigation of the issues that come up in the societies. The Queen enjoys the sole executive powers2 of the Commonwealth but it is exercised by theGovernor-General by being Queen’s representative. This arrangement is meant for the executionand maintenance of the constitution and therefore safeguarding the laws of the Commonwealth.The present scenario talks about the evidence given by the Royal Commission on the basis ofwhich the Commonwealth Government formed a view that the cover up of child sex abuse is amatter of national crisis and shame on the part of certain institutions. These institutions3 includeschools, churches, charities, orphanages, sporting associations and other government bodies. The Australian High Court felt a need that it was imperative to insulate the Judicial power4(Commonwealth) and made it a fundamental principle of the Constitution. This principle is notlimited to courts but is made to be applied to the tribunals and commissions as well. As a resultof this, the High Court recognize it to ensure that the political branches will never interfere withthe judiciary also the judiciary will have to monitor the politicians and administrators also. One1 C. Smart, "A History Of Ambivalence And Conflict In The Discursive Construction Of The 'Child Victim' Of Sexual Abuse" (1999) 8 Social & Legal Studies.2 Chapter II. The Executive Government. – Parliament Of Australia (2016) Aph.gov.au <http://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/~/link.aspx?_id=1A1B66A3736843429A99D8F6D0F67FDB&_z=z#chapter-02_61>.3 Hayley Boxall, Adam M Tomison and Shann Hulme, Historical Review Of Sexual Offence And Child Sexual Abuse Legislation In Australia (Australian Institute of Criminology, 2014).4 Haig Patapan, "Separation Of Powers In Australia" (1999) 34 Australian Journal of Political Science.
important corollary of this is courts cannot substitute the executive decision, but it can commenton its correctness5.This in turn is negatively impacting the Australian economy. The estimated loss of economiccost to Australian economy comes out to be a whopping $100 million a year. Which is why, theCommonwealth Government believes that this emotional and psychological trauma experiencedby the victims could be assuaged if these institutions are made to face the harsh punishments.Consequently, this will effectively reduce losses in workforce productivity. 1.Constitutional validity of Child Sex Abuse (Justice for Survivors) Act 20166The law enacted by The Commonwealth Parliament for the survivors of child sex abuse is one ofthe important milestones as it was a growing demand on the part of Government and generalpublic at large - that this menace of prevalent cover up of child sex abuse by certainaforementioned institutions should be seriously looked into. The Commonwealth constitution7 isthe supreme constitution in Commonwealth Australia and it is interpreted by a body of doctrinecalled Constitution law. 1890 was the year when negotiations on Australian Constitutions werestarted and was finally passed by the British Parliament in 1900 under Clause 9 of theCommonwealth of Australia Constitution Act. The main features of Constitution Law are:constitutional monarchy, federalism, parliamentary government and the ability with which theAustralian High Courts declare legislation as invalid.5 Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330o Momcilovic v The Queen (2011) 245 CLR 1o R v Trade Practices Tribunal, Ex parte Tasmanian Breweries Pty Ltd (1970) 123CLR 3616 Shurlee Swain, History Of Child Protection Legislation ([Royal Commission into Institutional Responses to Child Sexual Abuse], 2014).7 George S. Knowles, "The Commonwealth Of Australia Constitution Act And The Acts Altering The Constitution" (1937) 50 Harvard Law Review.
In the event of a child abuse, there may or may not be the appearances of physical assaults andsometimes the physical marks are not consistent with the perpetrated assaults. The DNAevidences are seldom presented as well. In addition to that, the child with a particular age,probably does not fully use the proper context so that he could effectively report what actuallyhappened with him or her. But most important of all, the situation becomes extremelycomplicated for the child when the response he/she gets by the above mentioned institutions thatare otherwise meant for their well-being get involve in the shameful cover up exercise.The recommendations of Royal Commission can go a long way in forming the legislationregarding the justice for the survivors in child sex abuse. When a child undergoes violent sexualphysical assault especially on a continuous basis particularly in an institutional context, where aconcerned authority has a deep influence in the child’s life, then the situation becomes grave ifthe child’s concern remains unheard. The legislative powers8 under which the parliament works are to make laws regarding peace, lawand order as well as the good governance of the Commonwealth. These laws are made in relationto trade and commerce, taxation, export of goods, borrowing of money, communication, militaryand defense, fisheries, bankruptcy & insolvency, copyrights & patents etc. All of these subjectsare to legislate are listed under section 51 of the Constitution9. The power of the Senate of amenda law being proposed has no effect on the feature of the power of legislation.It is also a fact which was understood by lawmakers that the Parliament was not restricted by theTerms of Reference applied by the findings of Royal Commission to all the victims of the child8 Part V - Powers Of The Parliament – Parliament Of Australia (2016) Aph.gov.au <http://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/~/link.aspx?_id=AFF6CA564BC3465AA325E73053DED4AA&_z=z#chapter-01_part-05_51>.9 Durham Holdings Pty Ltd v New South Wales (2001) 205 CLR 399 R v Public Vehicles Licensing Appeal Tribunal (Tas); Ex parte AustralianNational Airways Pty Ltd (1964) 113 CLR 207 o Thomas v Mowbray (2007) CLR 307
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