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Law for Commerce: Short Essay on the Australian Legal System - Law Assessment Answers

November 16, 2017
Author : Julia Miles

Solution Code: 1EIIF

Question:Short Essay on the Australian Legal System

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Essay Question

“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 Legal

System, 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?

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Solution:Law for Commerce

Introduction

The issue of judiciary supremacy versus Parliamentary sovereignty has been a matter of issue for many years. This is because of the statement that Parliament has the legal authority to amend, enact, or repeal any law, and none have the legal authority to restrict it from doing so, holds that the legislative body has total sovereignty and is supreme over every government institution including judicial or executive bodies. However, in relation to the Australian legal system, neither the federal nor the state Parliament has true Parliament sovereignty. There lies a difference in the matter of sovereignty (Williams et. al, 2013). This is the major reason for the battle when it comes to the supremacy of the Parliament. However, the role and the power cannot be ignored altogether.

Parliamentary sovereignty

The formalization of the principle of ‘Parliamentary sovereignty’ was majorly discussed by chief ideologist AV Dicey. Moreover, this quotation cannot be agreed upon because it clearly implies that the law of killing every blue-eyed baby would be lawful in nature. The ideology behind such criticism can be attributed to the fact that such law remains unenacted because of political constitutionalism instead of legal constitutionalism. In simple words, it is political and not a legal factor that is acting as the major restraining force in this scenario. This is the most important part that clearly criticizes the ideology behind such Parliamentary sovereignty that separates its power into legal and political sovereignty (John & Robert, 2002). The statement boasts of the fact that the Parliament is endowed with special powers and is true to the utmost. Parliament in this scenario enjoys legal sovereignty wherein it pursues the ability to make laws without any restriction. This is in tune with the fact that the Parliament had a major role in setting up of laws that can help the common at large (Gough, 2005). It has the sole power to frame laws that go in benefit to the people at large and there is nobody that can override its function. Nevertheless, political sovereignty is majorly enjoyed by the electors who vote in favor of the Parliament to come into power. In relation to this, legal sovereignty cannot be regarded as complete sovereignty because the role of the judiciary is the major player in recognizing the laws framed by the Parliament. Furthermore, even though the idea of Parliamentary sovereignty supports the notion of one single and ultimate law-making power, yet it is not inherently fallacious based on the fact that such sovereign power is clearly against the Parliament’s idea (Slapper, 2006). Furthermore, based on the statements of various researchers, it has been stated that the idea of Parliamentary supremacy or sovereignty in the context of Australian Constitution must be taken into account in the context of rigid boundaries and limits that are imposed by both the Federal as well as State Constitution. The Constitution confers the power in order to frame laws in the Commonwealth Parliament but is, however, restricted to specific subjects (Parkinson, 2012). This indicates that power is conferred to Constitution so that laws are framed in accordance with the general rules and that benefits the society at large. Moreover, considering the overall scenario, it can be said that the role of judiciary is very critical because Parliamentary sovereignty entails the ability of Parliament to unmake or make any law without any prevention and this can compulsorily entail that the Parliament of Australia is not bound by the rule of law, as it can exercise its power arbitrarily (Greg, 2004). This is the reason why in Australia, Parliamentary sovereignty is to be taken into account as operating within the boundaries of the Constitution. Besides, wherein the decision of judiciary is inconsistent with the legislation, the legislation must prevail to the extent of such inconsistency. The inconsistency is addressed by the legislation and is highly effective when it comes to the framing of policies. This does not give absolute or complete power to the Parliament (Leslie, 1997). It indicates that the Parliament consists of the power, however, a complete power remains missing. The Constitution of Australian Legal System offers additional original jurisdiction powers to the high court wherein the Parliament can frame laws about the constitution and its interpretation. This clearly indicates that Parliamentary sovereignty is not complete in Australian Constitution because the judiciary also has power to declare any Cth legislation to be constitutionally invalid, which illustrates the fact that separation of powers in Australia restricts any power abuse by the legislature (Gillespie, 2017). On an overall basis, there is a division when it comes to the scope and definition of power. Any abuse is restricted and hence, this provides a major benefit in terms of planning and administration. The statement quoted by Dicey does not hold true in Australia because the courts or the judiciary even can check on such Cth legislations (state). The legislation cannot function on its own and determine its own power, the same can be put to question and this leads to a strong check (Tony & George, 2002).

The role of Judiciary

The judiciary plays a key role even in upholding the Australian Constitution because they have the final word on the application and interpretation of all applicable Australian laws that includes federal, state, and the common law as a whole. The interpretation of the laws and setting of the law is done by the judiciary. For instance, the high court in Australia is the final court of appeal that is charged with the responsibility of framing Australian laws (Gerangelos, 2013). When such court interprets a provision of the Australian Constitution or considers a common principle, it is clearly engaged in law-making. This is the reason why high courts in Australia are regarded as the guardian of the Australian Constitution and the rule of law as well. In relation to the framing of laws, it must also be observed that the Australian Constitution has inferred power to the legislative branches so that it can assist the judiciary in the creation of laws. Before passing of the bill by the legislative branch, the president has no authority to make it a law (Gerangelos, 2013). Therefore, without the legislative branch, no law can be created inside the Parliament. Nevertheless, this clearly focuses on the role of judiciary system that ensures proper enactment and modification of existing laws for the betterment of the general public. Therefore, the judiciary has a bigger role to play when it comes to the enactment of laws. Overall, the division has a major role to play when it comes to the framing of rules and regulations.

Conclusion

Therefore, the judiciary system of Australia has been very important in this scenario even though it has made decisions that have invalidated the legislation of the present government. Furthermore, many high court decisions of Australia are very close indicating that there is a clear-cut variance in the viewpoints on the bench. Overall, there is a good deal of evidence to portray that the sovereignty of Parliament is in place today in many countries including Australia. However, the power of judicial review cannot be quashed even by the Parliament because it is considered to be a fundamental part of the Constitution. Nevertheless, it is unsurprising that the judiciary does not seek conflict with the Parliament and instead, it confers protection of fundamental values of the constitution by interpreting the legislation.

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