The Constitution of Australia - Coursework Example

An essay regarding Australian constitution BY [Name of the organization] [Author’s name] [Date of fulfilment] AN ESSAY REGARDING AUSTRALIAN CONSTITUTION Introduction The constitution of Australia has always been under severe debates. The basic reason is its arrogant pronouncement of laws and inefficiencies in meeting the need of the modern commonwealth structure. Though there were lots of modifications are done yet there is hardly any point where these modifications were given much of an importance. It is always a matter of discussion in the republic debate and lots of points stand against the format and the structure of the constitution. Republican debate As the substance related to the republican structure forms the constitution of Australia the matter gets more scrutinised and the relevance are more clearly initiated by the learned population. The Federal and all State Governments are very much of concerned regarding this structural set up. The oppositions are all related to the declaration that states that the executive power of the Australian Commonwealth is out and out a domain of the Queen of the United Kingdom of Great Britain and Northern Ireland. This is creating lots of confusions and there were serious opposition to this dominance. Australian Commonwealth Government seems to act powerless under such declarations. As a matter of fact the republic.org states that the constitution of Australia has been declared under the referendums held over 1898 – 1900. John Faulkner notifies that this was witnessed by the people of the Australian colonies and was very much approved. It is here that a section of the Commonwealth of Australia Constitution Act 1900 (Imp), was put under the direct influence of an Act of the Parliament of the United Kingdom. Constitutional conventions As the Australian constitution doesn’t have any declarations regarding the Bill of Rights, some delegated in 1898 Constitutional Convention made a strong opposition to this. They came up with the follow up of Bill of Rights of the United States Constitution. However the judiciary found it very much inappropriate and as a result the proposal was never initiated. The point was that the parliamentary form of Australia very much supports the UK formation and thus US intervention may cause trouble to the whole structure. As a result, there is still no Bill of Rights in Australian Constitution. It is thus very much criticised for its imbalanced state regarding the fragile constitutional structure. The next set of weaknesses is related to Right to trial by jury that is Section 80. it is the foreground of the judiciary that gives space for indictable offences against Commonwealth law in the country. This law is hardly a part of serious follow up. There are some serious limitations to this particular section. The idea that has been followed is that as a Commonwealth structure is free from offences, there cannot be any punishment that can be tried over the offender. In the words of Justice Higgins, R vs Archdall & Roskruge; Ex parte Carrigan and Brown (1928) 41 CLR 128: "if there be an indictment, there must be a jury, but there is nothing to compel procedure by indictment". There is again this follow up of Right to just compensation – Paragraph 51(xxxi) of Australian constitution. It is thoroughly dependable for all those cases that are under the ground of compensation for assets led by the commonwealth functionality. The irrelevance too exists with the law that determines the Right to freedom of religion that is in Section 116. It is again very limited in its functionalities. It is a thorough prohibition to the Commonwealth. Though it never interferes between the matters related to state yet is in evitable obstruction to the commonwealth structurisation of religion. According to this right of Section 116, "making any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion." The footage is over the application that started with the First Amendment of the U.S. Constitution however as a matter of fact, the execution was very slow and irresistible to the social structure. The state has got all the powers and thus sharing it on commonwealth ground was a drawback to the structure. Before federation the colonies were much powerful and that made the discrimination of power grow more in Australia than any other country. Commonwealth is still not very much accepted by the constitution and thus the modernisation has been severely hampered and there is no space for it to grow. The social set up are absolutely colliding with the matters set in the constitution and as such there is lots of Australia. States' powers to legislate on religion are totally indiscriminating. They never affect the governance and there is no Federal legislation on religion. The High Court too clarifies the considerations and there are lots of limitations that persist in a Commonwealth structure of the state. Selected rights The criticisms are also very strong against the Right to freedom from discrimination against out-of-State residents, as has been clarified in Section 117. This section in particular dominates to prohibit disability or discrimination in one state against the resident of another state. Street v Queensland Bar Association is a concrete exemplification to this particular structural discrimination. The limitation lies in the prohibition of states from imposing residential requirements in Australia. It is here that the state State's autonomy gets questioned. It was in 1992 and 1994, the High Court of Australia discovered that the Constitution contained an "implied" right to freedom of political communication. Till then this was very much submerged and the political rights were all under more ambiguous trials. The discovery was that this particular right under any circumstances is not equivalent to a freedom of speech. There is indeed no such provision in the constitution. This is the core reason in the way to the limitations related to the stand point of limiting the characterisation of the right. The purpose is just to protect individuals against the government and is a process for the trying of limiting their political communication. In 2007, there came up an issue related to Roach v Electoral Commissioner the High Court of Australia. This was initiated and trailed under sections 7 and 24 of the Constitution. The provisions were all in the way of providing the members of the House of Representatives and the Senate a choice to be elected by limited right to vote. As declared by Patrick Parkinson (2002), the basic elements were to guarantee of a universal franchise in principle in the state. However the matter was well structured and limited by the Federal Parliament's legislative power. This was an absolute means for the modification of universal franchise. The provisions are there for the legislative amendment that can stand for the disqualification of voting all prisoners. This is absolutely against he structural functionality of Commonwealth state and there is no instance where the right to vote gets so twisted and turned. The constitution of Australia is very weak in making all the declaration related to this basic political right. Matter of preamble The preamble no doubt makes an attempt for the declaration of Imperial Commonwealth of Australia Constitution Act 1900; though till date the Australian Constitution itself does not contain a preamble for itself. There are lots of oppositions faced by the constitution of Australia regarding al these loopholes. Not having a preamble al together adds more to its inaccuracy. It is not correct in format and is getting into a state of confusion amidst the social set up of Australian modern culture and the British follow ups. The proposals for preambles are made very often in the parliament but are indeed never acted on and as such there are lots to be done in its structurisation. conclusion The constitution of Australia is thus rightly said to be a formation of laws that is not in support of any commonwealth structure it is very right to interpret as ‘The Australian constitution is mainly an outdated, imperfect and contrary document which doesn't meet the needs of a modern nation or provide for a balanced division of powers and resources between the Commonwealth and the States’. Tony Blackshield, (2006), systematic analysis states that the common idea that prevails is absolutely in negation to the belief that there is any kind of sacrosanct about Australia's constitution. Being unable to cover most of the demands of the social set up t is rejected by the population of the state. The inconveniences that persist are all related to the essentials of the whole political, social and cultural system. The beliefs related to the parliamentary democracy, is found to be dependable over the age old conventions. This is the reason that the basic civil rights are most often are derived from the common law rather than any constitutional counterpart of it. The follow ups must get all well scrutinised as per the demands and the needs of the social structure. It is very important to have a clear vision regarding the futuristic appeal of Commonwealth in the state. References John Faulkner, Constitution Day Celebrations, n.d., http://www.alp.org.au/media/0708/mssms090.php [retrieved on 24.09.08] Patrick Parkinson, (2002). Tradition and Change in Australian Law. Sydney: LBC Information Services. Tony Blackshield, (2006).Australian Constitutional Law and Theory. Sydney: Federation Press. The Australian Constitution, n.d., http://www.republic.org.au/ARM-2001/q&a/qa_constitutionindex.htm [retrieved on 24.09.08] Read More