Role of the court

Role of the court

Role of the Court

Role of the Court in the Australian judicial system the High Court is the highest court. In 1901 by section 71 of the constitution the high court established. (s71, the judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction. The High Court shall consist of a Chief Justice, and so many other Justices, not less than two, as the Parliament prescribes.) Some of the functions which are vested in the High Court are interpreting and applying the law of Australia; to reach verdicts of special federal significance including challenges to the constitutional authority of laws and to hear appeals, by special leave, from the Federal, State and Territory courts.

Sources of Commonwealth and State powers

The idea of federalism and the sources of commonwealth and the state powers which stem from that can come from four important starting points first is the Potential for diversity is a central value and secondly diversity requires maximal appropriate local control (subsidiary), thirdly Tasks should be assigned to level of most approximate scale (fiscal equivalence) and lastly Effective local autonomy and accountability requires reasonable degree of fiscal autonomy. This was drafted democratically- elected conventions; and was adopted by referendum in each state Colony; this was first enacted by the UK Parliament in 1900; which operational in the Australian government system in 1 January 1901. This was originally amended via the necessary national referendum process eight times (of 44 proposed). Only 1 amendment was of fiscal relations and only one wide-ranging amendment was put forward to the division of competencies. The makings of the states are comprised of six original states two “large” states which are NSW and Victoria, two resource based states Qld and WA, the two “small” states SA and Tasmania and then two self-governing territories Northern Territory (since 1978) and the ACT (since 1987). Some of the basic qualities which the states include aggregative origins rather than devolutionary which is transference, as of rights or qualities, to a successor. The next point is that First generation federation with the pre-industrial division of powers. There is a legislative division of powers rather than administrative division of functions, there is regionally uniform society with highly symmetrical federal system following the US model of the single list approach to division of powers. Another characteristic is that there will be specific powers of parliament (- s. 51. “The Parliament shall…have power to make laws…with respect to :-”), there will ‘Residual powers' which will be guaranteed to each State - “Every power of the Parliament of a Colony which has become or becomes a State, shall, unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth… continue as at the establishment of the Commonwealth….”

As for the commonwealth assigned to its power has been international as well as inter-state trade, communications, which includes continental communication, currency and guaranteeing the future of financial balance for the country, quarantine; immigration, defense; external affairs. What was left for the states to cover include intra-state trade & commerce, infrastructure & local government, resources; land use; environment, criminal + civil law; police, health care, social policy (except OAP) and education. The constitutional division of fiscal powers of the commonwealth and states include starting with the commonwealth powers

An explicit plenary power to tax Supremacy clause, Defense power, granting power

The Commonwealth's Exclusive income powers regarding taxation this can be noted as being in: s.90: “…the power of the Parliament to impose duties of Customs and of excise…shall become exclusive.” After this section of the constitution was in full flight you could almost instantaneously see that it created substantial Commonwealth surplus in phase of dependence on tariff income, the understanding generally through the High Court as a broad embargo on sales taxes. The Commonwealth's ‘spending power' as addressed in section 96:

- “…the Parliament may grant financial assistance to any State on such terms and conditions as the Parliament thinks fit.”

Some examples of where the Commonwealth takes some action and needs income this can be found through as well as when income tax a concurrent power and the states dominated income tax collection Commonwealth's war time need for revenue states forced to vacate the field or mislay money granted under s.96

Who controls what in the Australian government between the states and the Commonwealth?

Personal Income Tax in its entirety comes under

  • Corporate Income
  • Tax (complete)
  • Sales Tax (complete)
  • Resource rents (offshore)
  • Excise Taxes (complete)
  • Revenue Centralization

States source of income as a profit of Commonwealth and State Own Source revenues seen from time scale.

1901: States lose customs duty and excise

1930: Commonwealth bring in sales tax

1910 to 1916: Commonwealth initiate land tax, death duties, income tax & entertainment tax.

The federal tension which exists in the federalist society

  • Pressure of federalism
  • Arguments for federalism
  • Arguments against federalism
  • Political philosophies and federalism
  • The changing federal balance
  • The extension of commonwealth authority
  • Limited impact of referenda
  • Limited referral of powers in the past
  • Significant examples of referrals
  • Unchallenged legislation and cooperative arrangements
  • Examples of unchallenged legislation
  • COAG and cooperative federalism
  • Examples of COAG agreements

Concurrent powers:

Though some powers which are listed in section 51 of the constitution that can only be used by the Commonwealth Parliament, however the states are not totally excluded from legislating on all of the areas that are listed in this section of the constitution. The state parliaments can make laws about areas set out in section 51 given that they are not excluded from a further section stated in the constitution. This power is known as a concurrent power. The concurrent powers are mostly both the Commonwealth parliament and state parliaments law-making power. The states are sharing in the law-making powers with the Commonwealth Parliaments in many parts which are mentioned in section 51. These sections include bankruptcy, divorce, taxation and marriage.

Tasmanian Dams Case (1983):

The Tasmanian dams case follows the difference of opinion caused by the proposed construction of a dam along the Gordon River, the Tasmanian levees lawsuit follows the difference of opinion caused by the proposed construction of a dam along the Gordon River.

It was first back upped by the commonwealth liberal authorities under Fraser; it was first supported by the country liberal authorities under Fraser. The liberal state Tasmanian authorities were elected, the roles changed and once the hawker labour authorities. While the state favoured it changed, the commonwealth then opposed the dam's proposition.

In this aspect the excessive competition between the two main parties is represented. It is sometimes argued that an increase in political competition may increase human or it is sometimes argued that an increase in political competition may increase individual's rights. The example is embodied by Bob Hawke's government, who earlier to the federal election of 1982, promising to impose a World Heritage Properties Conservation Act. This inhibited the building of the dam.

The Tasmanian government opposed this act, but their argument was rejected in the high court as it found the World Heritage Act to be within the commonwealths ‘external affairs' power under S.51 xxix. This decision allowed this section to not only concern matters of ‘external' affairs but also ‘internal' affairs: giving the commonwealth larger power and weakening the federal system.

Precedent also affected the high court's decision on the basis of the Concrete Pipes (1971) precedent. Section 51 xx outlined the commonwealths' power of legislation to cover any act of private corporations, including the Hydro-Electric Commission. The increase in the legislative power over corporations is said to have an impact on the system of federalism, arguing that centralist legislative decisions reflect centralist views.

Ha Case (1997):

The vertical fiscal Imbalance was established for the Commonwealth government through the sections 96 as the Commonwealth decides where wealth they distribute goes, which gives states no say in financial matters like that then as well as section 89 where the Commonwealth again has control of finances and monopolises on what the states make, and last but not least the uniform tax case of 1942. The case of Ha also had contact upon the finances of the state. This case alarmed section 90: “...The power of the parliament to impose duties of customs and of the parliament to impose duties of customs duty the authoritativeness. So therefore in reprisal the states which is a violation of section 90, had forced alcohol, tobacco, and oil taxes to raise uncertain state revenue. Then in the year of 1997, wholesalers this also being Ha confronted the taxes, which came into leading by the states to the high court. On commodity the commonwealths exclusive power (made apparent by this case) to impose excise duties, the further increases the vertical fiscal imbalance in favour of the commonwealth, and services including tobacco and alcohol. This reason is taxation is a descriptor of receipts if states are to exercise taxation, there main origin of cash in hand would be from the commonwealth under section 89 of the constitution. Quantity of the cash in hand to the state, which decreases state power, and therefore weakens the system of federalism and the commonwealth, may control the direction. The high court that in accordance to section 90 excise duties were constitutionally the exclusively mandated power of the commonwealth authorities, and therefore the descriptor of state revenue enhancement receipts would be invalid.

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