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AUSTRALIAN ADMINISTRATIVE LAW AND ITS MANY RAMIFICATIONS The framework for law and government in Australia is seen as a system that is comprehensive of administrative law that has evolved through the years. Main elements of this are judicial review by the courts, merit review by administrative tribunals, investigation of administrative action by the Ombudsman and human rights agencies, and the conferral of information and privacy rights under freedom of information and privacy legislation (McMillan, 2000). Administrative Law in Australia examines its implications for the citizen, the Executive or the courts. First theme has to do with the connected with the development of administrative law in Australia. It is from the common law that the origins of administrative law came from.
Today, the public is protected against executive error and abuse has a firm legislative foundation. An example that illustrates how Australian administrative law seeks to adjust conflicting individual and social interest is in the area of the adoption of anti-discrimination laws and their interpretation which occurs in a society where there is struggle for power and resources. Social structures and patterns give both individuals and groups with more resources and power than others. There is a good means of communication that will legitimate and normalize their own interests as the universal interests of society as a whole. In the anti-discrimination set-up, respondents are often governments and large companies, as well as smaller employers, while complainants are usually individuals from the disadvantaged or minority groups where there are problems when it comes to access to social power and resources. (Gaze).
A legislative scheme that requires individuals to run their own cases with little or no support places a very heavy burden on them. The issues in a case usually focus on a manifestation of the complainants disadvantage, and a case may be of enormous emotional and financial significance to the complainant, but of comparatively less importance to the respondent. There are human rights agencies in Australia that only have limited powers to deal with discrimination issues at a systemic level. Thus, this can only be raised through individual and group complaints. If an individual complainant complains against the respondent, they are the ones that bear full responsibility for bringing the case, in most cases with no assistance from the agency. Even if the public interest is for equality and eliminating discrimination, if the respondent does not conciliate and the case goes to adjudication, there is practically no access to legal aid.
There is a big gap when it comes to power, and the potential to take advantage of it in legal process, is remote. If fairness in legal process is of any concern, then courts ought to act to ensure that this disparity does not affect interpretation of the law. (Gaze). The growth of administrative law in Australia has been an ongoing issue at present. The institutions that embody the Commonwealth Government's commitment to administrative law-the Ombudsman, the Administrative Appeals Tribunal, the Federal Court, as well as other review bodies were set up by Parliament in the 1970 s. This happens at a time when there is great concern about the development of big governments in Australia and its impact on the citizen. Administrative law is not, a concept that was unfamiliar in Australia.
There was an idea that there needs to be a legal process in order to constrain unlawful government activity. This became an issue that was well-established in English common law, and disseminated to the new colonies. Its legal foundation was consolidated in 1824 at a time when the Supreme Court of New South Wales was given the Jurisdiction and Authority' of the three English common law courts. An implication here meant that it must spell out the following year by the Chief Justice Sir Francis Forbes in a case which was given by emancipated convicts against court officers who had failed to empanel them in jury lists, was that: every court has of necessity a power to compel [the Executive] to execute its process. This is a power necessarily incident to the creation of courts. (McMillan, 2000).
R v Cunliffe [ 2004 ] QCA 293 The appellants in this case were Thomas Boyd Cunliffe and Michelle Louise Cunliffe. According to the defence of Thomas, their counsel at the trial failed to carry out their instructions to rely on s 22 (2) of the Criminal Code. The appellants appealed on their own behalf. The burden of proof in this case was with the appellants as they were appealing against their convictions for the violations of the Drugs Misuse Act 1986. They have the burden to prove that s 22 (1) applies in their case and make the Court overturn their initial conviction. They were tried with three counts of offences under the Drugs Misuse Act 1986 particularly sections 8, 9 and 10.
Section 8 makes production of dangerous drugs a crime; section 9 prohibits possession of dangerous drugs; and, section 10 (1) makes it a crime to possess anything for use in connection with either of the offenses in sections 8 and 9. Mr. and Mrs. Cunliffe were charged and convicted for three counts of offenses particularly involving the production of a dangerous drug in excess of 500 grams, possession of illegal drugs, and possession of things used in connection with producing dangerous drugs and were consequently sentenced to perform 200 hours of community service. The Queensland case cited in the decision was Ostrowski v Palmer (2004) 206 ALR 422. Justice MacKenzie cites the opinions in Ostrowski v Palmer that if people were allowed to rely on their own belief and violate the law, this would result in the mockery not just of the law but also of the criminal justice system.
The implementation of the law would end up a practice in futility as this would make the laws enacted nugatory and inutile. Ignorance of the law cannot be used as a basis of good faith and as an excuse in not following the law. If this would be allowed, it was as if no laws have been passed since every person would have an excuse in not following them. When one speaks of the different branches of the government, there usually is a reference to the roles of each branch and the interface between and among these branches.
In most countries around the globe, with either presidential or parliamentary form of government, there exist at least two branches of the government, namely the judiciary and the legislature. This is true whether the system of government is unitary or federal. The Constitution of Australia provides separate chapters for the Executive, the Legislature, and the Judiciary. The primary functions of these branches are uniform in almost all countries with democratic states. The Legislature has the power to make laws, the Executive the power to implement them and the Judiciary to adjudicate cases involving interpretation of the laws. The legislative power, or the power to enact legislations, is vested by the Constitution in a Federal Parliament consisting of the Queen, a Senate and a House of Representatives (q.
in McAllister, et al 6). On the other hand, the power to interpret the Constitution is reserved to the High Court (q. in McAllister, et al 7). In consideration of the separate and distinct powers of each of the branches of government, most of the constitutions of these countries provide for the doctrine of the separation of powers that is, one branch cannot encroach upon the powers of the other branches of government. The operation of this doctrine can usually be seen from the legislature and the judiciary. In some countries, the executive branch is distinct and separate from the legislative while in others, these two branches are merged.
The latter situation is best exemplified by branches of government in Australia wherein the Constitution provides that Ministers shall come from the members of the Parliament blurring the distinct separation between the two (Meek)... This case explicitly shows that there is blurring of the strict doctrine of separation of powers wherein each branch must have a distinct and separate set of personnel in order to avoid conflict of interests. In the case of Australia, the doctrine is applicable when the relationship between the Legislature and the Judiciary is under consideration. In the words of Spindler, the Judiciary is traditionally the most separated and independent arm whose independence is clearly established in the Commonwealth.
Spindler further expounded that Chapter III of the Constitution, which provides for the Judicial Power of the Commonwealth, has been used by the courts to claim a strict separation of powers for Federal Courts from the ministry and parliament This, however, is not clearly provided when one scrutinizes the doctrine at the States level where it has little constitutional existence even though it is practiced (Spindler). The doctrine of separation of powers has always been one of the most enduring questions involving constitutional law disputes. According to Thomas, the debate continuous as to whether the Parliament has supreme primacy over the other arms of government without limitations or that courts have the power to review parliamentary legislations, as regards its constitutionality for instance, which in effect limits the power of the parliament. This is a practical application of the doctrine of separation of powers among the Legislature and the Judiciary. However, this doctrine is filled with contentious issues which obscure its application and interpretation. There are enduring questions as to when this can be invoked and in under what conditions.
But in general, Thomas stated that the relationship of Parliament and the courts is in the nature of a fruitful partnership in the law-making business together, but with Parliament the dominant partner working within the limits of the constitution. Thomas elucidated that the question as to when should the court intervene and determine the limits of the parliament be left unanswered until the time it is invoked by a person serves an important constitutional function. The inconclusiveness and indefinite answer to the question provides forbearance between the arms of the government in such a way that this serves as check and balance to the sometimes considered as omnipotent legislature as well as to the inexhaustible power of the Courts to strike down legislations and enactment of the Parliament which they consider contrary to the Constitution (Thomas). As Thomas has aptly described it, [T]he inconclusiveness begets a cautious forbearance, one or the other. The authority of the court to strike down oppressive laws or enactments contrary to the Constitution does not, however, destroy the traditional notion of the supremacy of the Parliament because the Courts, according to Thomas, would likely respect this supremacy in asserting the rights of the people. In declaring the law unconstitutional, the courts do not assert its supremacy over the Parliament, but rather, it only affirms the supremacy of the constitution and the sovereignty of...
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Research essay sample on English Common Law Separation Of Powers
