Australia Constitutional Law - Question 1

Commonwealth which is also known as the Common wealth of Nations, is an association of different countries which the intention of maintaining harmony and peace. The members of the same, consider the British monarch as the head of the association formed. Australia became a member of the commonwealth of Nations in 1931. The organization is different from all treaties and international conventions. every two years meeting in held. The countries are divided inti two classes- independent and dependent territories. Australia is a dependent territory. Australia has formed a structure to protect the power the states, allowing them to be self- governing.[1]

 The Constitution of Australia have made a federal system. Under this mode of system, the power has been exclusively divided between national Government, six states, Australian capital theory and the northern theory.

Common wealth of Australia was formulated in the year 1 Jan 1901. The rules of common wealth have been framed in the Australian Constitution which specifically defines that what are the areas in which commonwealth rules and regulations would be made applicable and where they will not be. The parliamentary System of Australia consists of the queen, and the house of representatives. Keeping the fact that Australia is a part of common wealth nation but still the State Government have their own constitution, structure of parliament, executive and a judiciary system. It is an established fact that the territories are controlled by Australian Government and common nation laws are not made applicable on the same.

Worldwide interest in the federal system is getting increased day by day. The system is much more flexible, providing more advantages to the people who are part of it. More and more countries are converting themselves into a federal State. Australia has always been a federal country but the commonwealth rules are overruling them and occupying a much stronger place in the state. The federal system divides power among different other parties whereas in the commonwealth the whole power remains with the Government only. The concept of federalism can be defined as the system which shares parties to make the system work more effectively and efficiently. Australia always wanted to be a federal Country but the commonwealth system is a much stronger system that is overruling the policies of Federal Structure these days.

Austria is a federal country in which each state having its own constitution, government, and laws. Constitution of the same was enacted when former colonies took part in the same as states in a federation. The constitution of Australia is a federal government which establishes the relationship between the common wealth and states. The federation parliament has only the right to make decisions on certain matters. The matter comprises of international and trade between two states or inter-trade, foreign affairs, defense, immigration between two states, taxing rate, bank interest rates, marriage and divorces. On the matters where the states should have the power, on the contrary they are vested with the federal Government. In these areas common wealth is given the power to make laws. Australian government is trying to change and implement concurrent powers- where the Federal Government and Parliament can equally make laws. Both the common wealth and States must be given the power to legislate.[2]

The State is slowly inclining towards federation system. The Australian constitution made a federal system under which the powers are shared between the common wealth Government and the other six members. The government has done so that the State government also have some power vested them. This imposes a restriction on Commonwealth government enjoying their monopoly power over other States.

Some of the components that have caused Australian federal structure to weaken up are as follows: -

  • More power with the national Government
  • Matters of national importance have been always controlled by National Government
  • Dependency of States on Commonwealth is getting increased on regular basis
  • International conventions and events have always given more power to National Government
  • Judiciary decision have always supported common wealth power
  • Increase in population is also one of the factors responsible for the system losing its control and becoming weak[3].

Australia wants that the power of Federal government should prevail over common Wealth because of the following factors: -

  • A federal system is more friendly and give rights to a person to compare political system, coming to a conclusion that which is more feasible for them.
  • The system always promotes and encourages experimentation in the field of Political, social and economic matters.
  • It is a much more demographic system than any other type of Governing constitutions.
  • It enhances competition in Australia promoting the people and stated to perform more and more effectively and efficiently.
  • It helps in better decision making among the people and the government.

Federal and State Government are making their game strong by stepping up their efforts to avoid scrutiny, reduce the amount of transparency between the people and Government to increase their Government Power. Government is using more of its funding for minorities, vulnerable sectors and for the needy. The Government is allocating its powers in different states and organizations. The judicial system has the right to declare as to where the commonwealth government will prevail and where the Federal Government will.

The Success of the system depends more on the capacity of the people to cast votes on election day. They should know which government is best for them and which is providing them more benefits. There is also need of organizations as well as institutions for the implementation of system which is more beneficial for them. AHRC (Australian Human rights Commission is also keeping an eye on the system and ensuring that the commonwealth Government does not over-rule Federal Government.

Australia Constitutional Law - Question 2

Legal Protection of religious freedom protects legislative power of the commonwealth to make applicable laws that would establish religion equality. Section 116 of the act made for protection of discrimination against religious equality. As per the section the common wealth should not make any law to establish religion or imposing any exercise which prohibits a person from choosing his religion independently.

Freedom of religion was first protected in US constitution, which states that of any law is made against any national religion will implanting rights on people as to what religion they have to choose or follow, it will be considered against the law. Section 116 of Australian Constitutions was specifically framed for the protection of customs and religious freedom. Constitution of a country is framed so that rights of people can be saved and there is a special legal framework for the implementation of rights.

In the past years, the problem of whether a person should be given the right to religious freedom has been a continuous question. As per Section 116 of Commonwealth constitutional forbids, the government has made a law which specifies that a person is free to choose his religion and the decision should not be influenced by anyone. Whenever any law is made in Australia, it is made sure that the law is not against section116 or offensive to Sec.116 of Common wealth Constitutional Forbids. Right to religion is a fundamental right that has been recognized by the laws of different countries also. Article 9(1) of European Convention on Human Rights, protects and promotes right to freedom of religion.

Religious freedom is considered to be one of the basic Human Rights which means that a person is free to worship, believe and follow any faith with no punishment from the government. The decision should be completely upon the person and he is not answerable to anyone. It prevents the concept of cultural majority in the society and promotes equal opportunities to the people to follow any religion they desire to. [4]

Principle of legality creates some protection for freedom of religion. This principle states that at the time of interpretation the parliament or the other person who is interpreting the same should not do in a way which prohibits religious freedom of a person. Australia is also a part of UDHR (Universal Declaration of Human rights). Article 18 of the treaty states that: -

A person has the right of freedom of thought, religion, custom and belief, either alone or in group. Article 18(i) of ICCPR states that everyone who is part of the same shall have the right to freedom of thought. Conscience and religion. Freedom of religion is infringed when a person is restricted from practicing their religion or to conduct which is prohibited by religion or custom.

According to chapter 6.1 of the Australian Constitution, the commonwealth has no right to make laws in regards to the establishment of a religion, or to impose any sort of religious restrictions, or to stop the free practice of any religion in the State. There is no law that specifies that there should be religious test conducted under any type of Government whether it is Federal or commonwealth. The supreme court in the case of Everson V Board of Education[5]held that a large noted that many people transfer from one country to another because they are not given the freedom to choose their religion. In Australia rights that confirms religious freedom have been frame in constitution as well as legislation. The Racial Discrimination Act of 1975(cth) is part of Australian constitution. Section 9 of the Act specifies that no distinction should be done on the grounds of race, color, national or ethnic origin. Section 10 of the act provides that person of a particular caste, religion or gender should not give his right to others. Arguments over the connect of religion discrimination have been done many times over the decade and changes have been implemented accordingly.

Section 116 of the Australian Constitution provides that passing a law which prohibits a person freedom to choose his religion is considered against the law. One of the landmark judgments have been passed in the case of Adelaide Company of Jehovah’s Witnesses Incorporated V Common health [6] where the proceedings were challenged on the grounds of religious beliefs. It was held that religious freedom is protected by section 116 is not absolute. Fundamental issues such as what is the purpose of this section have been defined by many jurists and the section have always remained in a mystery and unresolved.

Many people have made argued that whether Article 116 infringes free exercise to religion. As per Australian proceedings if a law says that wearing something a particular outfit would be considered against the law, the following action would amount to an unconstitutional call. Section 9(1) of act makes it unconstitutional to do an action which involves a person doing an activity which is based on religion discrimination. In the case of King Ansell V Police [7] the court held that a person would not be considered to be justified if he is discriminating the other person on the grounds of religions, customs, beliefs and the tradition that the person is following. If a group of people. Have different social identity on the basis of the religion and the customs that they are following, to discriminate them would be considered against the Law.

 As per the constitution of Australia there are high chances that a ban on something can infringe Racial Discrimination Act in accordance with commonwealth law. Section 116 should be made applicable to places where regional equality of a person has been infringed and in order to protect the regional rights of a person and ensure equality in the society.

Bibliography for Australian Federal System Politics

Case Laws

  • Everson v Board of Education 330 US 1 (1947)
  • Adelaide Company of Jehovah’s Witnesses Incorporated V Common health (1943) 67 CLR 116
  • King Ansell V Police [1979] 2 NZLR 531, 543

Reports and Journals

  • Britannica- Common Wealth association of States
  • Parliament of Australia – Info sheet 13- The Constitution
  • Anthony Gray, Associate Professor, University of Southern Queensland: - Religious Freedom and Section 116 of the Australian Constitution
  • Parliament of Australia – Politics of Australian Federal System. Dec 1,2006.
  • George Williams-The Federal Parliament and the protection of human rights. May 1999.

[1] Britannica- Common Wealth Association of States Ret from https://www.britannica.com/topic/Commonwealth-association-of-states

[2] Parliament of Australia – Info sheet 13- The Constitution Ret from https://www.aph.gov.au/About_Parliament/House_of_Representatives/Powers_practice_and_procedure/00_-_Infosheets/Infosheet_13_-_The_Constitution

[3] Parliament of Australia – Politics of Australian Federal System. Dec 1,2006. NO.4 2006-07. Ret from https://www.aph.gov.au/binaries/library/pubs/rb/2006-07/07rb04.pdf

[4] Anthony Gray, Associate Professor, University of Southern Queensland: - Religious Freedom and Section 116 of the Australian Constitution. Ret from https://files.eric.ed.gov/fulltext/EJ944207.pdf

[5] Everson v Board of Education 330 US 1 (1947)

[6] Adelaide Company of Jehovah’s Witnesses Incorporated V Common health (1943) 67 CLR 116

[7] King Ansell V Police [1979] 2 NZLR 531, 543

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