Commercial Law Essay: Separation of Powers and Power Shift Analysis

This essay explores the separation of powers as outlined in the constitution, focusing on the roles of the Executive, Legislative, and Judiciary. It analyzes the division of powers, including specific, concurrent, exclusive, and residual powers. The essay argues that the balance of power has shifted to fav...Read More

COMMERCIAL LAW
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Institution
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Commercial Law
Constitution is a document containing set of rules by which a country is run. The
Constitution outlines three main separate groups in the first three of its chapters. These three
groups are the arms of government that include the Executive, the Legislative, and the Judiciary.
The constitution also defines the roles of each arm of government. Therefore, this paper intends
to discuss the separation of powers as outlined in the constitution and the reason why the balance
of power has shifted to favor Commonwealth since federation.
Division of Powers under the Constitution
The constitution gives the powers of law making to the Commonwealth Parliament where
it outlines the division of powers. The division of powers is the use of a Constitution to allocate
law making powers between the Commonwealth and State governments. It brings together four
sections, which include authorities such as the specific powers, concurrent powers, exclusive
powers, and residual powers. The specific powers are the authorities awarded to the
Commonwealth to enable it to make laws. The specific powers are sequentially listed under
Sections 51 and 52 of the Constitution. These powers have been provided to the commonwealth
to make laws for good governance, peace, and order. Additionally, exclusive powers are laws
making authorities given specifically to the Commonwealth. These set of laws making powers
only authorizes the Commonwealth to make laws, but prohibits the States (Turner, 2015).
Exclusive powers include areas of the national concern, for example, the department of defense,
immigration, and currency. Consequently, concurrent powers are the non-exclusive law making
powers given to commonwealth and are also shared with the States. They are referred as
concurrent powers because both the States and the Commonwealth have been given powers to
make laws in these areas. The areas include bankruptcy, divorce, and marriage. However, if the
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State makes a law that interferes with the Commonwealth’s laws, the Common law will be
regarded superior to that of States as stated under Section 109 of the Constitution (Turner, 2015).
Lastly, Residual powers are some law making powers that the colonies wanted to retain at the
time of federation. These powers give some nations the authority to make laws based on their
needs.
Balance of Power Shifted to Favor the Commonwealth
The reason why the balance of power shifted to support the Commonwealth from the
time when federation was made is because the High Court that was appointed to protect
federalism has been ruling cases based on the Commonwealth doctrines. Some of the cases
where the High Court has ruled according Commonwealth regulations include the Engineers’
Case, NSW v Commonwealth (2006), and the Tasmanian Dams Case among others. The High
Court decisions in these cases has expanded the scope of the powers of the Commonwealth laws,
and together with Section 109, reduced State regulation powers (Chordia & Lynch, 2014). The
decisions in these cases have been wrong because the Constitution structure does not warranty
the centralization of power. They have also been inappropriate because such decisions abolish
the benefits of federalism. The other reason is the use of referrals schemes by the High Court.
Referral schemes comes into being when the States refers power to the Commonwealth as stated
under Section 51(xxxvii) by the use of text. The States may use referral schemes to enact laws
that allows them to hand matters to the Commonwealth. Moreover, the principles and decisions
made in The Engineers’ Case have enabled the Commonwealth regulations to encroach into
areas that would have been subjected to the State powers (Chordia & Lynch, 2014).
To conclude with the High Court has a role of interpreting the Constitution and to
adjudicate any dispute in relation to the division of power in clear and responsible way. Doing so
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will help in safeguarding States laws from being overridden by the Commonwealth legislation
powers.
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References
Turner, R 2015, ‘The High Court of Australia and political science: A revised historiography and
new research agenda’, Australian Journal of Political Science, vol. 50, no. 2, pp. 347–364.
Chordia, S & Lynch, A 2014, ‘Federalism in Australian Constitutional Interpretation: Signs of
Reinvigoration?’, University of Queensland Law Journal, vol. 33, no. 1, pp. 83–107.
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