Law Assessment

PART ONE;

Question 1;

The government has the authority to enact laws for the population's protection and welfare, according to NSW Attorney General Anuja Ng. Elections allow the people to exercise this power, and elected officials are in charge of making laws. The truth of this assertion, however, depends on a number of aspects of public policy and legislation. First, the Attorney General's statement affirms that the government has the authority to enact laws, which is often described in a constitution or other legal framework. Second, there are frequently safeguards in place to make sure that the government's authority is not abused or that people's rights are not violated. Last but not least, whether or not these laws are necessary is an issue of public opinion, which can differ across different demographic groups (Levi, 2023).

Question 2 a;

Determining whether this law is constitutional or not is a matter of debate. A number of factors ought to be considered and contested. A law is considered unconstitutional through a constitutional review procedure if it violates the constitution. Specifically, this entails determining whether the statute in question infringes on fundamental freedoms including the right to assembly, free speech, and peaceful protest. To evaluate whether the restriction is appropriate and required for an acceptable government goal, courts may apply a proportionality test[]. They can also look into whether the law was intended to prevent peaceful protest or political dissent. The general interest, such as national security or public safety, may also be taken into account. The court's decision might also be influenced by earlier precedents and decisions on related matters (Gulliver et. al., 2023).

2b;

The Dicey principle of equality before the law opposes arbitrary government power and supports equal laws for all people. He supports legal certainty, the primacy of common law, and precise standards for identifying harmful activities. It is essential that everyone has access to justice, and the law ought to uphold those rights. This notion is aligned with the balancing of freedom of expression, order, and infrastructure protection (Lino, 2018).

2c;

The ideas of Lord Bingham stress the significance of transparent, understandable, and predictable legislation. To ensure that no one is above the law, he emphasised equality before the law. Access to justice is essential because it enables people to contest its implementation and seek legal recourse. Protection of infrastructure should coexist peaceful protest with the right to free speech. Holding government leaders accountable for their deeds and choices through the legal system is crucial (Bingham, 2007).

2d;

Both the rule of justice and parliamentary power are distinct ideas that take different stances on how these ideals should be balanced. In A.V. Dicey's formulation, parliamentary sovereignty is emphasised, where the legislators hold ultimate power and the courts possess a small amount of latitude to overturn them. According to this perspective, adhering to the law, regardless matter how cruel or unfair it may be, promotes the application of law (Lino, 2018). In his formulation, Lord Bingham places special emphasis on the values that sustain the rule of law, including fairness, equality, and access to justice, and admiration for human rights. Finding the ideal compromise amid those values is a never-ending issue that calls for rigorous legal analysis and evaluation of unique instances (Bingham, 2007).

The process of striking a balance between parliamentary sovereignty and the rule of law is complicated and variable because of a number of variables. These include various legal traditions, changing legal standards, intricate legal matters, interpretation by the courts, political dynamics, global and supranational elements, and ongoing discussions among legal experts, advocacy organisations, and the general public. The unwritten constitution and long history of parliamentary sovereignty in the United Kingdom influence how it approaches this balancing. The way in which these principles are interpreted may change as social expectations change, and the way in which these principles are balanced may be affected by international accords and human rights norms (Bingham, 2008).

Part B;

The Australian Constitution is a written legal framework that describes the division of legislative authority between the federal and state governments as well as the structure of the government and the separation of powers. It acts as a foundational legal framework that limits and directs the exercise of governmental power. Judicial review is a feature of the legal system that enables courts to judge whether regulations and governmental actions are constitutional, serving as an inspection on actions that might go beyond what is allowed by the constitution[ Crawford, L. B., Boughey, J., Castan, M., & O'Sullivan, M. (2017). Public Law and statutory interpretation: principles and practice. Federation Press.]. Individual freedoms and rights are also protected by the Constitution, and some territories have their own fundamental rights laws or charters. The Australian legislative system has procedures for reviewing new legislation by parliamentary committees, assuring full consideration before implementation (Carney, 2006).

A constitution's dominance as the primary framework for national governance is emphasised by the political and legal ideology known as constitutionalism. The absolute authority of the constitutions, limited government, the rule of law, the protection of individual rights, and the separation of powers are only a few of the fundamental ideas it upholds. According to constitutionalism, the constitution is the only valid law and must be followed by all other laws and government actions. It also supports a limited government that has definite boundaries on its authority. Constitutionalism also encourages the rule of law by making sure that everyone, even public servants, is subject to the law and held accountable for their actions. To avoid a dominance of power and to provide checks and balances, it also supports the division of powers among the several parts of government (Halmai, 2019).

Different facets of Australia's legal system are characterised by constitutionalism. The Australian Constitution is the country's supreme legislation, establishing the federal and state governments' respective jurisdictions as well as important institutions like the High Court. The judiciary, in particular the High Court, is in charge of determining whether laws and government activities are constitutional and has the power to invalidate laws that are not constitutional. Certain territories have developed their own fundamental rights legislation or charters, and the Constitution additionally safeguards certain rights like religious freedom. The separation of authorities between the national government and the territorial governments, which ensures that the power that the federal government holds is restricted to certain sectors, is a reflection of federalism (Saunders, 2020).

Constitutionalism's core principles are embodied in Australia's constitutional structure, which establishes the division of powers amongst the national and state governments. Parliamentary review of legislation, such as the Visa Cancellation (Designated Offences) Bill 2023, allows for stakeholder participation, public discussion, and committee reviews. An investigation into the Bill's provisions by the House of Representatives Legal and Constitutional Relations Legislation Committee proved that Australia's legislative system has oversight as well as review procedures for proposed legislation, supporting the idea that constitutionalism serves as a check on the power of the executive branch Halmai, 2019)

With the British monarch serving as its figurative head of state, Australia is a democracy governed by parliament and constitutional monarchy. Election-based representatives run the nation's government. The House of Representatives and the Senate make up the Australian Parliament; the House of Representatives is elected by the general public, while the Senate is chosen by the states and territories. A political party or alliance that has the majority of seats in the House of Representatives becomes the government. With the federal government, the states, and the territories having equal power, Australia is governed by a federal system. The Australian Constitution specifies the spheres of authority for various tiers of government, ensuring that some functions are handled by the federal government and others are left to the states (Partlett, 2023).

In order to prevent a single branch from becoming overly strong, Australia's political structure is based on the idea of separation of powers. A key idea is the rule of law, which guarantees that everyone, including public servants, is subject to the law. It is within the purview of courts to assess the legality of government policies and legislation. The Australian Labour Party and the Liberal Party, along with smaller parties and independents, make up Australia's multi-party system. Federal, state, and local elections are open to the public, and eligible citizens are required to cast a ballot. With the help of this system, everyone including public servants is bound by the law and held responsible for their actions (Partlett, 2023).

The Cancellation of the Visa (Character Test) If certain criteria are met, such as suspicions about a person's character, engagement with criminal activity, incarceration sentences, or convictions of specific offences, Bill 2023 gives the Minister for Home Affairs the authority to revoke a visa. The bill sets a character test with standards for criminal behaviour, punishments, and specified offences. In order to meet community expectations, the government wants to make sure that foreign nationals convicted of specific crimes, even without serving a term of 12 months or more in jail, could have their visas revoked.

In democratic governments like Australia's, the connection that exists between the power of the government and the constitution is defined by the underlying concept of constitutionalism. It demonstrates the rule of law, making sure that all government activities and people are governed by the law and held accountable for their actions. The authority of the government and the exercise of its powers must be done in line with recognised legal norms and practises. Constitutionalism also emphasises the necessity to restrict governmental power in order to guard against misuse and safeguard people's freedoms and rights. In Australia, the Constitution establishes the federal and state governments' respective spheres of competence, ensuring that each level of government acts within those confines and prevents an excessive concentration of power (Aroney, 2021).

The division of powers amongst the legislative, executive, and judicial departments is a key aspect of Australian constitutionalism. A check and balance system between each branch's tasks and responsibilities prevents one branch from being predominant over the others. The courts can also evaluate the legality of laws and other government activities through judicial review. In Australia, the High Court has the power to declare laws or government actions to be unconstitutional, ensuring that governmental choices respect the legal framework and do not restrict the rights and liberties of citizens. Constitutions frequently contain clauses defending the liberties and rights of the individual, such as freedom of religion. By doing so, it is ensured that these rights are protected and that governmental acts uphold and defend individual liberties (Saunders, 2020).

In systems of parliamentary government like Australia's, wherein members of parliament pass legislation after public deliberation, committee reviews, and consultations, constitutionalism is a fundamental tenet. By doing this, it is ensured that any proposed legislation follows the rule of law and is in accordance with the constitution. Constitutionalism also encourages transparency and accountability by enabling people to hold their officials subject to accountability through democratic elections, petitions for action, and legal action. Government ministers in Australia are held accountable to Parliament thanks to this notion of responsible government (Aroney, 2021).

The Visa Cancellation Act 2021 adds uncharted territory for termination, including for listed offences, and gives the Minister for Home Affairs a substantial amount of power to revoke visas under particular circumstances. Some critics claim that because government personnel are given such vast freedom, it may not be consistent with constitutionalism. The provisions of the Bill could violate the rights of those with visas, even those who have been convicted of minor offences, which raises questions about constitutional protection. The efficiency of mechanisms for balance in prohibiting such abuses of power has also been questioned. Concerns have been expressed concerning the possible misuse of the authority to cancel visas, such as stopping victims of domestic violence from getting aid (Carney, 2006).

In conclusion, the Australian Constitution is a legal framework that governs the division of legislative authority between federal and state governments, the structure of the government, and the separation of powers. It serves as a foundational legal framework that limits and directs the exercise of governmental power. Judicial review is a feature of the legal system that allows courts to judge whether regulations and governmental actions are constitutional, protecting individual freedoms and rights. Constitutionalism is an ideology that emphasizes the absolute authority of constitutions, limited government, the rule of law, protection of individual rights, and the separation of powers. It supports a limited government with definite boundaries on its authority and encourages the rule of law by holding everyone, including public servants, subject to the law and held accountable for their actions.

Australia's legal system is characterized by constitutionalism's core principles, which establish the division of powers among national and state governments. Parliamentary review of legislation, such as the Visa Cancellation (Designated Offences) Bill 2023, allows for stakeholder participation, public discussion, and committee reviews. An investigation into the Bill's provisions by the House of Representatives Legal and Constitutional Relations Legislation Committee proved that Australia's legislative system has oversight and review procedures for proposed legislation, supporting the idea that constitutionalism serves as a check on the power of the executive branch. Australia is a democracy governed by parliament and constitutional monarchy, with election-based representatives running the nation's government. The Cancellation of the Visa (Character Test) Bill 2023 gives the Minister for Home Affairs the authority to revoke a visa if certain criteria are met. Constitutionalism ensures that all government activities and people are governed by the law and held accountable for their actions.

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