Comparing Head of States in the United States and Australia - Coursework Example

COMPARING HEAD OF STATES IN UNITED STATES AND AUSTRALIA Both United States and Australia are similar in different aspects. Both countries share a history of British colonialism and their consequential development of political, economical, and social systems has been greatly determined by their history of colonialism with both retaining and integrating feature of British colonialism. Both countries appear to have developed a similar political system. They are both federated and have elected houses of senate and representatives. This similarity is also reflected in other different areas especially in the political systems. However, there are also major differences between both countries. First it is worth noting that the political system in the two countries is different in the sense that Australia has developed a constitutional monarchy while United States is a democratic republic. In development of a monarchial system, Australia has followed a close political system of Britain which stills retains a monarchial system. It is also important to note that Australia has not been shaken off the influence of colonization as the queen of England still retains the monarchial powers in Australia. Although this has been a controversial part of the Australian law, the constitution has not been changed to take away monarchial powers from the Queen of England. The parliamentary and the executive powers entrenched in Australian constitutions have also been heavily borrowed from England. However, Australia has drawn its federacy design from United States which was the first federal nation. Therefore it is clearly evident that Australian has adopted a hybrid constitution that draws from England and United States. According to Parliamentary Education Office (2009) the similarities and differences between the two countries’ executive execution can be identified in: The written constitutional defining powers of head of state The election process and the system of representation The appointment and election of head of state The composition of the executive and the role of head of state in making this composition Operation of the executive led by head of state In order to understand the differences and similarities in the head of state between the two systems, it is important first to look at the constitutional evolution in the two countries. Australian constitution that puts in place the powers of the head of state emerged from a constitutional draft of five conventions held in 1890, 1901, twice in 1897, and 1898 (Parliamentary Education Office, 2009). The constitution was later approved through a popular referendum by Australians and henceforth it was adopted under the British Imperial Parliament Act in the early 1900. The Act was adopted as Commonwealth of Australia Constitutional Act and was later got royal assent on 9th July 1900. However, the constitutional has undergone several amendments which have clearly defined the role of the head of state and the role of monarch, with the recent changes pioneered by the momentum to free Australia from British Monarch. Since the country was still under British rule, the initial constitution draft greatly favored settlers and the consequent changes have been geared giving Australians especially the aboriginal communities a more participatory role in the system of governance. On the other hand, United States constitution has been as a result of prolonged struggle and agreements. The initial draft was written in 1787 by delegates who had gathered in Philadelphia from 55 states (Parliamentary Education Office, 2009). Right from the start, United States constitutions had called for union of different states but this was achieved through a civil war struggle. The written draft was later adopted by a similar convention but only 13 states approved. However, only nine states were needed to make it effective and hence even with few states out of the 55 that had participated in drafting of the constitution giving it an accent, it came to force. The constitution came to force on 30th April 1789, the day when George Washington was inaugurated into office. This was also the day when the congress met for the first session. A close comparison of the constitutions between the two countries shows some similarities. First, the powers of head of state in both countries are defined by written constitutions. This means that the head of state acts according to constitutional provisions. It is also evident that both countries have adopted a system of federation which was defined in the initial constitutional drafts. The constitution in both countries came into being as a result of sovereign states giving a central government some of their powers in order to facilitate union. In any country the head of the state has some executive powers. It is therefore important to look right from the start how the executive powers vested in the head of state were defined in by both constitutions. In Australia the executive power were vested in the Queen since it took after the Britain monarchial system. The power is however exercised by the Governor General of Australia under the Queen mandate. The government is formed by the leader of the party which has majority of members in the House of Representatives. The executive power is executed through ministers who are elected by the parliamentary part they represent or by party leaders depending what has been laid down the individual party constitution. However, the country has partial separation of powers since the constitution stipulate that ministers who carry out executive powers must come from within the parliament. The United States system is very different when it comes to this aspect. The constitution gives president all the executive powers although he or she is under the control of the legislature which must approve most of the laws. In carrying the executive duties, the president nominates ministers who from the cabinet from party branch officials but they must be approved by the House of Senate (Parliamentary Education Office, 2009). In separation of powers, both Australia and United States have similar provisions since power is separated between legislative, executive, and judiciary. However, unlike Australia, United States constitutions has provided for full separation of powers as the constitutional does not allow members of the legislative house to hold any executive office. The head of state in Australia and United States The head of state is the person who represents a nation-state, federation or commonwealth. The head of state assumes the chief public representative of a nation-state, federation or commonwealth in all international matters. The main roles of head of state include personification of the existence, continuity, and legitimacy of the states. The head of state also exercise powers, function and duties that have been granted to the office of the head of state in the constitution. The head of state is supposed to show the spirit of any nation, federation or commonwealth represented not only to its people but to the rest of the world. There are two broad systems of governments that put forth office of head of states. These include the monarchy and the republic. In the monarchy, the monarch is the head of state while in the role of head of states is reserved for the president. In understanding the head of state in Australia and United States, a great distinction emanate from the fact that Australia is a monarch while United States is a federation which means it has adopted a republican constitution providing for presidential system. In Presidential systems like the United States, the head of state is also the head of government. The president as the head of state must rise above party politics and represent the internet of the nation. Although the presidents acting as head of state may be elected using different ways like direct electoral vote, appointment by elder statesman, appointment by legislatures, and many other means, their roles are basically the same and they hold some discretion powers. While the head of state is the head of government in some countries like United States, in some countries the president plays a ceremonial role of head of states without any executive powers in the government. In monarchial systems, the head of state is the monarch who may play different roles as the head of state or head of government. For example the British monarch acts as the head of state and head of commonwealth. The monarch is recognized by different members of the commonwealth states including Australia. The monarch can also be head of state in a number of commonwealth states like Canada, Australia, and New Zealand. Since she is absent in these states, the governor general is mandated to carry out the ceremonial functions on behalf of the monarch. To understand more the comparison of the head of state between United States and Australia, it is important to look at the specific constitutional provision for the head of state. Chapter I of the Australian constitution outlines the legislative authority in the country which is vested in the parliament (Australia Broadcasting Corporation, 1998). Part I – General of the Chapter I provide that the legislative powers of the commonwealth are vested in a federal parliament. The federal parliament is composed of different representatives including the Queen, a house of senate, and a house of representatives. The parliament, with all its different members is henceforth recognized as the parliament of the commonwealth. Australian constitution therefore bestows the legislative powers in a parliament. Although this is a common practice in many federal states, it is the composition of the Commonwealth Parliament in the country that differs from others especially with the authority bestowed on the Queen. Part I-2 of the constitution provides for the exercise of Monarchial powers in the country (Australia Broadcasting Corporation, 1998). It provides for appointment of a governor general who is supposed to act as a representative of the monarch and has the power to exercise the powers of the monarch but only when they have been assigned. This implies that outside the mandate of the monarch, the Governor-General is not supposed to practice any powers as stipulated by the constitution. However, at the pleasure of the queen, the Governor-General can carry out powers and functions assigned to him. Chapter II of the constitution deals with the executive government. Chapter II-61 provides that the executive power of the commonwealth in Australia is vested in the Queen but it is exercised by the Governor-General who acts as the representative of the queen (Australia Broadcasting Corporation, 1998). The main executive powers vested in the Queen including execution and maintenance of the commonwealth constitutions, and the broader laws governing the commonwealth. Chapter II-62 of the Australian constitution provides for formation of Federal Executive Council which is mandated to advice the Governor-General who is the representative of the queen (Australia Broadcasting Corporation, 1998). Member of the Federal Executive Council are chosen by the Governor General. The Governor General also summons and swears them as Executive Councilors and gives them mandate to hold their office. However, they can also be released by the Governor-General. According to the Australian constitution, the Governor-General who acts on behalf of the queen has the following powers (Paul, 2009): a) Exercise the powers and functions of the queen as may be assigned as provided in Section 2 b) Appoint times for holding parliament sessions as deemed fit by the monarch. He or she many prorogue or dissolve the House of Representatives as provided in Section 5 and 29. He or she is also mandated by section 57 to dissolve both legislative houses if there is a disagreement between the houses or when the elections do not resolve an existing deadlock. c) Section 21 empowers Governor General to notify the governor of a particular state of vacancy in Senate d) Section 32 and 33 empowers the Governor General to issue writs mandating elections for House of Representatives e) He or she may recommend appropriation of revenues according to powers granted under Section 56 f) According to section 58, he or she may assent, withhold an assent or reserve for the queen or return to parliament a law that has been passed by both houses. g) Section 61 gives the Governor General to carry out commonwealth executive powers as a queen representative. h) Section 62 gives power to appoint or dismiss members of Federal Executive Council while section 126 grants power to act with queens authority to appoint deputies to help in carrying out powers and functions. i) Section 64 and 65 grants the power to establish state departments, and appoint and dismiss minister. j) Under provisions of Section 68, the Governor General shall also act as commander of armed forces k) Section 103 grants power to appoint Inter-State Commission l) Section 128(3) grants power to submit referendum proposal to all electors for a subject of deadlock between Houses of Parliament From the above constitutional review, it becomes clear that the exercise of executive power in Australia is not direct like in other states. This is because the monarch, who is entrusted with the executive authority is absent from the country most of the time and hence need to appoint a representative to practice the authority on her behalf. However, the Governor-General only acts under the mandate of the queen and is helped by the Executive Counselors in exercising monarchial authority. Let us look at the exercise of the executive authority in the United States to look at similarities and differences. Article II- Section 1 of the United States constitution provides that the executive power is vested in the President (Australia Broadcasting Corporation, 1998). The president of the United States of American shall exercise the executive authority for a term of four years with the help of the Vice-president who is chosen by the President. This section also provides for election of the state representatives and the head of state. It is provided that every state will appoint, as specified by the legislature, electors including senators and representatives according to the numbers provided in the congress. However, the same sections outlines that no senators, representative, or any other individual holding office of trust or profit in the country is eligible to be appointed as an elector. These electors then meet in their states and vote through ballot for two people. One of those elected must be from outside that particular state. Electors then make a full list of the people they have voted for and the number of votes that each got. This list is signed by all electors to certify the originality of the list. The sealed list is then sent to Washington which is the seat of United States government. The sealed envelope is addressed to the President of the Senate who opens all the certificates in the presence of all members of the senate and members of House of Representatives. The individual who have more votes from the lists presented by different states becomes the President of the United States of America. If there is no any one individual who have the majority of votes, the House of Representatives then votes through a ballot to choose the individual who becomes the president. However the process is quite rigorous. In choosing the President of the United States of America the votes are then taken by the States. Representation from every state have the right for one vote and the quorum is made up of members from two thirds of all states. The majority of all states become necessary to make a choice for United States president. After voting, the person with the majority of votes becomes the president while the person with the second largest votes becomes the vice president. However, if two candidate tie for the vice presidency post, the senate is mandated to choose between the candidates through a ballot. The congress has the power to determine the time when electors are chosen and also the day when they vote for their candidates. This day is same throughout the country. To qualify as the President of the United States, and individual must be a natural born citizen or a citizen of the United States. The individual must also have attained an age of thirty five years and has been residing in the United State for more than fourteen years. The president can be removed from office due to his or her inability to discharge presidential mandates as outlined in the constitution. The seat of presidency in the nation can also fell vacant after the death or resignation of the sitting president. Upon removal from office, the vice president assumes the responsibility of the president. The congress can make law pertaining to removal of the president through death, resignation or inability to discharge duties and the law henceforth dictates who will assume the office until election of a new president. The president shall deliver the services as mandated by United States constitution. In return the president receives compensation which is not increased or decreased during the period of his or her service. In the same time, the president does not receive any other emolument from the country. According to the Parliamentary Education Office (2009), the president has the following powers: a) Article 1 grants legislative role of the president. The president has the legislative power of presidential veto as granted by presentment clause. The president sight the legislation from the Houses to become a law, veto the legislation and return it to both houses, or take no action. b) Article II of the constitution grants executive powers to the president. Like the governor General in Australia, the president acts as the commander- in- chief of the armed forces although the congress vests the power to declare war. However, the role of commanding armed forces is carried out in joint with the congress. This article also provides that the president is the chief executive officer of the country which means he heads the executive branch of the government. He or she appoints ambassadors, cabinet and federal offices with the consent of the Senate. This article also grants the president juridical powers to nominate federal judges for court of appeal and supreme court with the approval of the senate Bibliography: Australia Broadcasting Corporation, 1998, Heads of State Compared, Retrieved 23rd August 2009 from http://www.abc.net.au/concon/compare/head/hosau_us.htm Parliamentary Education Office, 2009, A comparison of the Australian and United States Federal legislatures, Retrieved 23rd August 2009 from http://www.peo.gov.au/students/cl/comparison.html Paul, J 2009, The Head of State in Australia, Retrieved 23rd August 2009 from http://www.samuelgriffith.org.au/papers/html/volume%201/chap9.htm Question 2 The Spam Act 2003 was enacted to deal with the rising cases related to unsolicited commercial electronic messages otherwise referred to as spam. Spams have greatly undermined the viability of electronic messaging. It also deals a big blow to consumer confidence and also is a great impediment to legitimate business activities. Spam Act 2003 deal with various areas related to electronic messages and provides penalties for contravention of such acts. It is clearly evident that Sam has acted in contravention to Spam Act 2003. There are different ways in which Sam has clearly acted contrary to the provision of the act. First, the message that Sam sends to harvest email address clearly fits into the definition of the electronic message as provided in the Spam Act 2003. According to Subsection 6(1) and electronic message is identified as any message whose content are aimed at offering supply of goods and services, advertising or promoting goods or services, and others (Spam Act 2009, p. 9). The messages sent by Sam fits into Subsection 6(1)(j) which identifies the purpose of the message as to offer business opportunity or an investment opportunity and Subsection 6 (1)(k) which identifies the purpose of promoting a business opportunity or and investment opportunity (Spam Act 2009, p. 9). Sam’s message informed the potential receivers that there was a business opportunity approved by Australian Securities and Investment Commission where investors would have an opportunity to receive quick returns, fits into the definition of electronic message as identified in the Spam Act. Subsection 7 (b) clarifies and electronic message is considered a violation of Spam Act 2003 if the message link has its origin in Australia. Subsection 7(b)(i) states that the message is considered to have an Australian origin if “an individual who is physically present in Australia when the message is sent” (p. 10), while (c) states that if the computer, server, or the devices that were used in sending the message are located in Australia. These provisions clearly identify that Sam’s acts falls under the Spam Act since he is residing in Australia and the computers used in sending the message are also in Australia. It is also evident that Sam contravened the provision of the Spam Act in Part 2 subsection 16, which provides that unsolicited commercial electronic messages should not be sent without proper authorization. Subsection 16(1) provides that an individual must not send a commercial electronic message which has an Australian link and which is not a designated commercial electronic message (Spam Act 2009, p. 13). However subsection 16(2) provides that the above provision does not apply if the account holder to whom the message was sent to gave consent. In the case of Sam, he just harvested email addresses and sent messages without consent of the receivers in clear contravention with these provisions. According to Subsection 18 of the Spam Act, a commercial electronic message must come with a functional unsubscribe facility. Subsection 18(1) state that in individual is not supposed to send a commercial electronic message with an Australian link unless the recipient may use the electronic address in the message to send and unsubscribe message to the sender (p. 16). A review of Sam’s email contained unsubscribe icon which instead of unsubscribing to Sam’s email, it confirmed that Sam has sent the email and this enable him to send multiple messages. Furthermore, Sam had given a fictitious email address since he relied on the postal services to receive his income. This is another clear contravention of the Spam Act 2003. Sam has also systematically violated Part 3 of the Spam Act 2003 which sets out rule on address harvesting software and the consequential use of harvested email addresses. This section outlines that address harvesting software should not be supplied, acquired, or used. It also outlines that harvested electronic address list should not be supplied, acquired or used. Part 3 Subsection 20(1) states that a person should not supply or offer address harvesting software, the right to use the software, a harvested email address list, or the right to use a harvested list, to any other person if the individual is residents in Australia (p. 19). Subsection 21(1) clearly states that a person must not acquire (a) address harvesting software, (b) right to use the software, (c) a harvested address list, or (c) right to use the harvested list (p. 20 -21). Subsection 22(1) (a) & (b) also prohibit Australians from using address harvesting software of harvested address list (p. 21-22). By the act of acquiring an address harvesting software, Sam has contravened the provisions of Part 3 which subdues him civil penalties. The review of the above provisions from the Spam Act 2003 clearly shows that Sam had contravened a number of provisions in the act and hence liable for civil penalties. First Sam contravened subsection 20 and 21 which prohibits purchase, acquisition, and use of address-harvesting software and the consequent supply, acquisition and use of harvested email address list. Sam acquired the address harvesting software and consequently used the harvested address list to send electronic messages. According to subsection 6 and 7 clearly shows that the electronic messages sent by Sam fits into the description of the Spam Act 2003. Sam also contravened Subsection 16 by sending electronic messages to individuals who had not given their consent. According to the provision of subsection (1) and (6) individuals who contravene to the provision of these subsections are liable to prosecution under civil penalty provisions in Part 4 of the Spam Act 2003. According to provision of Part 4 of Spam Act 2003, it is outlined that pecuniary penalties shall be payable for any conventions of provisions of civil penalty. This part also outlines that any proceeding for recovery of penalties can be instituted in the Australian federal court. In response, the Federal Court can issue ancillary orders which can either direct for payment of compensation to a victim of civil penalty, or direct the payment to commonwealth in an amount that adds up to the financial benefits which can be attributed to contravention of the civil penalty provisions. According to Subsection 24(1) the federal court can direct a person to pay pecuniary penalty to the commonwealth if it is satisfied that particular person contravened provisions of a civil penalty (p. 23). The civil penalty is determined by the Federal court as deemed appropriate. Subsection 24(2) provides that there are a number of factors that must be considered by the federal court in determining the pecuniary penalty including (a) nature and extent of the civil penalty contraventions, (b) nature and extent of loss and damage that has been suffered by a victim due to the contravention, (c) circumstances of contravention, (d) previous offender court record of the same contravention, and (e) if the court deems it to do so (p. 23). As found out earlier, Sam has contravened the provisions of the Act and is therefore liable for civil penalty a case which should be determined by the Federal court. There is clear evidence that he has contravened provisions of the act and must therefore under prosecution. According to Subsection 25(1) the maximum penalty imposed under subsection 24(1) in contravention of civil penalty depends on (a) where the individual has a prior record, (b) where the individual is a body corporate, and (c) where the civil penalty is provided under subsection 16(1), (6), or (9). Since Sam had no prior record of the civil penalty contravention, his case should be determined under (c) above since his actions contravened subsection 16 (p. 24). According to Subsection 25(4) (a) the maximum penalty payable by individuals who don’t have prior record should not be more than 20 penalty units in case the civil penalty is a contravention of subsection 16(1), (6), or (9) (p. 25). However, it should not exceed 10 penalty units if it falls under other case. Reviewing the case of Sam, it will be found out that he had contravened more than one of the civil penalties and therefore his penalty will be determined by the provision of subsection 25(4)(b). Subsection 25(4)(b) states that if the Federal Court confirms that the individual had committed more than one contraventions of the provisions in the civil penalty, the total penalties as outlined in subsection 24(1) for the contraventions should not exceed 400 penalty units for contravention of civil penalty provisions under subsection 16(1), (6), or (9) (p. 25). However it should not exceed 200 penalty units in other cases. According to this provision, Sam should be penalized under Subsection 24(4) (b) since he has contravened more than one civil penalty which should not exceed 400 penalty units. The above review clearly illustrates the subsections of the Spam Act 2003 that Sam contravened. Through acquisition of address harvesting software and consequent use of this harvested email address list to send electronic messages to unsuspecting people contravenes several provisions of the Spam Act. Therefore, Sam should receive penalties not exceeding 400 units for contravening more than one civil penalty. Bibliography: Spam Act 2003, 2005, An act about spam, and for related purposes, Canberra: Attorney-General’s Department, Office of Legislative Drafting and Publishing Read More