Constitutional Reform Essay, Research Paper
Explain and evaluate both the limits placed on Commonwealth power under the Constitution and the extension of that power through international law and elements of the Constitution.
In the year 2001, The Australian nation will celebrate the reaching of a significant milestone one hundred years of government under our present constitution. As the anniversary approaches, it is important for all Australians to reflect on the present arrangements, and consider whether the limits placed on the Commonwealth government are going to restrict Australia s ability to transform with the new millennium. Will the extension of the Federal government s power affect the stability of one hundred years of Australian government?
In the nineteenth century, Australia was made up of different British colonies, with each colony able to make laws on its own behalf. As the end of the nineteenth century approached the Australian colonies started to recognise the advantages of having a federal council that could impose uniform systems of defence, immigration, banking, and currency. However, the colonies were concerned about giving up too much power; in particular the small less populated colonies did not want the more populated states to be in complete control. This problem was solved with the suggestion that each state have the same number of representatives in the upper house and on 1st of January 1900 the Commonwealth of Australia came into existence.
The rationale behind federating was to achieve national unity and regional diversity; hence it was essential to have a division between state and federal of powers. Therefore, the Commonwealth Parliament was only given special and limited powers under the Commonwealth of Australia Constitution Act. These powers are listed in section 51 of the Australian Constitution and are known as the thirty nine heads of power . Items mentioned in this section include; trade and commerce, taxation, defence, communications and immigration. The powers not listed in section 51 are known as the residual powers and remain the exclusive domain of the States; they include areas such as criminal law, education and public transport.
Unfortunately, the division between federal and State powers is not always clear. For example in the matters of bankruptcy there is an overlapping jurisdiction in two sets of courts, the federal and the State. Another aspect of the Constitution that affects the clarity of the division of powers is section 109, which provides that in areas where State and Federal law is inconsistent the Commonwealth law prevails over the State law, making the State law invalid. This means that if the Commonwealth make an Act through one of its exclusive powers, such as external affairs, that act overrides any state act that is inconsistent. The ambiguous nature of the division of powers Federal Government gain sovereignty in areas that were originally controlled by the States.
Under the external affairs power of the Constitution the Commonwealth government has the ability to sign international conventions and treaties. For Example the Federal government has signed the Convention for the Protection of the World Cultural and Natural Heritage. Under this convention, Australia has the duty of ensuring the identification, protection, conservation and presentation of world heritage areas. To achieve these duties the Commonwealth passed the World Heritage Properties Conservation Act. Therefore, due to section 122 of the Constitution the Commonwealth now had sovereignty over all World heritage areas in Australia. The High Court has upheld the Commonwealth s power to impose its treaty responsibilities through external affairs in rulings such as the Franklin Dams case and the Tasmanian Forests case.
Chapter three of the Constitution institutes the High Court of Australia as the body, which holds the ultimate responsibility of interpreting Constitution. When the Constitution was passed in the United Kingdom, the need to keep it relevant to ever-changing global and national politics was recognised. The High Court is unable to change the words of the Constitution and yet its interpretation has begun to shift the balance of power away from the States and toward the Federal government. The High Court usually rules in favour of the Federal government and its general trend is to expand the meaning and scope of the Constitution.
Globalisation is a supporting factor of the expansion of federal power. Over the last hundred years countries have become more reliant on international trade and produce, with many countries specialising in certain areas. For this reason it is necessary for the Federal Government to be in control of areas that are important on a global level. An example of this is the Government s need to be able to easily conform to environmental treaties such as Kyoto (CO2 reduction) agreement. The Federal Government must also recognise that the state Governments are better equipped to deal with local issues because they are able to focus on areas that are important to local social and economic needs.