assignment of commercial law
.... Introduction Australia is a federal country. A feature of a federal legal system is that there is usually a written constitution. In Australia, constitution creates 3 bodies or arms of government: first, the legislature; second, the judiciary; third, the executive. Then, the doctrine of separation of powers is the basis of the relationship between three arms of government under the commonwealth constitution. Above all, the assignment will discuss the functions of legislature and judiciary. Roles of legislature Legislative arm of government is parliaments have rights to make laws. The power that the constitution gave to the commonwealth parliament defined legislative powers. And the importance is the commonwealth parliament is the only one who has such power as the constitution conferred on it. Legislative powers of the commonwealth parliament can be divided into two types, the concurrent powers and the exclusive powers. Most of legislative powers of the commonwealth parliament are concurrent powers. That is, the commonwealth and the states both can make laws on the same subject matters, “such as external and interstate trade, post and telecommunications” , etc. But, the commonwealth law would be the standard when the state law is inconsistent with the commonwealth law. Territory parliaments only can use the powers that the commonwealth gave to them; therefore, the commonwealth parliament can dominate all of their laws. The commonwealth parliament also has a little number of exclusive powers. The commonwealth parliament can legislate in respect of some matters which are the exclusion of the state parliaments by itself, such as imposing customs, excising duties, granting bounties on the production and export of goods, etc. Federal and state powers both be shown in a chart below: Following contents we talk about just now. Parliament still has a power, which is relevant to courts. “The justices of the high court and of other courts created by the parliament.“ That means appointing a justice of a court should be by Parliament. The commonwealth parliament has the right to set up a new law, repeal old law and codify the law. Parliament passes Bills that are called statutes and known as statute law. Then the parliament how to pass the bills? By the time they pass each House, bills will have been read three times: First Reading--- When a bill was introduced and agreed to by the originating House, the bill is formally read a first time. There is usually no debate on the bill's first or introductory reading; Second Reading--- Speech & debate. It occurs before a bill is read a second time represents the major policy debate on the bill; Third Reading--- Following the send reading, or agreement to the bill in principle, each House considers the bill in detail. This stage is called committee of the whole; The process is then repeated in the upper house, with appropriate changes. In addition, when parliament does not have the time to debate and pass every rule that may affect our lives; or, much of the legislation is specific or has some local natures. Parliament can delegate much of the rule making to other authorities. This is the delegated legislation. Thus, local councils have been given the power to pass rules affecting their local communities. However, the power of the local councils and other statutory authorities comes from parliament may be withdrawn by parliament. And, the power that the parliament gives to these local bodies cannot be exceeded. If the statutory authority exceeds its power, it will be consider invalid. Role of judiciary Another arm of government is judiciary. This arm of government is that courts and judges have powers to interpret and enforce the law. The High Court, Federal Court, Family Court and Federal Magistrates Court are the four types of federal courts. In so many courts, the high court was regarded as the court that has the largest influences in Australian court system and holds a unique position of constitutional importance. High court was created under the constitution when Australia became a federation. The high court shall consist of a chief justice, and so many other justices, not less than two, as the parliament prescribes. The high court is responsible to the constitution’s interpreting. It not only has substantial original jurisdiction to decide major issues dealing with the constitution of laws but has general appellate jurisdiction in all matters to hear appeals from other federal, state and territory courts as well. By using its original or appellate jurisdiction, high courts shape the law itself. There is a good example, which is the Mabo case (1992) 175 CLR 1. The high court overturned the previous law of ‘terra nullius’ in this case that Australia was nobody’s land before British settlement in this case and established native title. In addition, the high court has the power to maintenance the unification of Australian common law. Therefore, it is clear that decision of high courts is final, not only in matters of federal jurisdiction but also the application of common law in Australia. Effectiveness of their relationship One of the characteristics of many legal systems is the doctrine of separation of powers, which provides that the functions of the three arms of government should be carried out by separate bodies of people. This doctrine also restricts the relationship of legislature, judiciary and executive. Of course, this separation is stronger between legislature and judiciary than between legislature and executive. Legislative power, judicial power and executive power are allocated to these three arms of government respectively: Legislative power means federal, state and territory parliaments have powers to make laws. In Australian legal system, the executive is drawn from the majority group within Parliament. The judicial power means the courts are responsible for interpreting and enforcing the law. The executive power is the power to administer the laws of government. We normally call it ‘government’. These three powers also can be shown with a chart: Government is responsible to parliament Legislative power Executive power Judicial power Parliament make...