Regulatory and Legislative Protections †Free Samples to Students

Question: Discuss about the Regulatory and Legislative Protections. Answer: Introduction: It is noteworthy to mention here that from the period of 1787-1820 was governed by the autocratic rule of the New South Wales by the governors appointed in London[1]. In this regard, it can be observed that the timeline of the development of legal independence of the legislative framework of Australia started from 1787 in which Arthur Phillip was commissioned to initiate the establishment and govern the newly formed British colony of the New South Wales in 1788[2]. The governors of New South Wales were at the obligation to put into effect the statutes and common laws of England. With the advent of five single men and two families who has been recognized as the first free settlers in 1793 there developed signs of changes[3]. As a result of it, the number of free settlers increased considerably and therefore the demand for democratic changes arose. Similarly, with the evolution of future government system, the first court of justice developed in Australia in 1797. The Second Charter of Justice for New South Wales was stabled in 1814 which significantly defined the structure of civil court system. It was argued by jurists that the application of new provisions were required which has to be consistent with the English laws to the extent permitted by the colony[4]. Due to this reason disagreement arose among the settlers. The governors were acting outside their authorities in England and in New South Wales which created conflict with the existing English laws[5]. Therefore, the nature of the legislation can be referred to as colonial. The 1850s was considered to be a golden decade in the history of Australian government. It was observed that in 1850 the Imperial Parliament passed the Australian Colonies Government Act which enhanced the creation of independent self-governing colonies. Such self-governing bodies had their Legislative Councils situated in the model of New South Wales- South Australia, Tasmania and Victoria. In recent era, the three self-governing colonies are not a part of New South Wales. However, this affected the population status of New South Wales with the separation of the three distinct self-governing bodies. The period of 1850-1870s marked the end of the period of representative government under the patronage of the Governor and the Legislative Council. In 1856, the New Parliament and Executive Council developed in New South Wales which comprised of new and qualified legislative assemblies. In addition to this it can be observed that with the establishment of the responsible government in 18 56 it proved to be beneficial for the liberal democratic government however; the right to equal vote and election were not developed. The landowners were only entitled to cast votes which changed with the advent of the Electoral Reform Act the power of right to vote was entrusted to all the individuals of New South Wales. It was observed that in spite the right to vote was vested with the individuals by 1858 few members could afford voting rights as they were not paid until the beginning of 1880s. It is true that the electoral candidates required money for election campaigns however; no such political development took place to meet the expenses of the electoral members. It can be observed that during 1865 the British laws could be amended and repealed by the Colonies of Australia. In this regard, the Colonial Laws Validity Act came into being which were still under the bondage of British statutes and provisions which were efficiently applied to the Australian Colonies. During the period from 1850s to 1890s both the Houses of Parliament expanded over time and thereby new appointments were made for the purpose of meeting the upcoming requirements[6]. However, the Australian Colonies were fast developing and in this regard the economic development marked a turning phase in the history of Australia with the evolution of Gold Rushes[7]. The advent of Gold Rushes significantly changed the economic and social condition of the Australian Colonies. The Legislature addressed effectively to the requirements of the Australian Colonies. From the very beginning New South Wales has been regarded as a Free Trade State which rose to predomination during 1880s and 18 90s[8]. As a result of the existence of Free Trade Policy, goods were easily imported into New South Wales without any obstacles. Therefore, local industries could easily compete with international enterprises within an open market. During the period of 1850s-1890s, the social structure of the Australian Colonies has also undergone major changes[9]. It was expected on the part of the government authorities to focus on public services such as railways, water supplies and custom duties. However, the government authorities were reluctant to assure changes in areas relating to public security and health. With the evolution of liberal legislation in New South Wales the faction system was put to an end[10]. Various attempts were made during 1890s to 1930s regarding the abolition and reconstruction of the Legislative Council. In this regard, the liberal government identified the conservative nature of the Legislative Council. The motive of the Legislative Council was not to act in the best interests of the individuals and the government. Therefore there developed fear and uncertainty on the part of the conservative governments regarding the hostile nature of the Legislative Council which could lead to the pathway of abolition from 1864 to 1934[11]. However, the acts of the Legislative Council were less controversial in nature and the actions were applied in case of monetary matters of the elected Houses. In spite of various reforms several attempts were constantly rejecting for the reconstruction of the Legislative Council by 1900. Therefore Legislative Council during such period performed specific roles in consideration of the Lower House which included the investigation of social and p olitical issues. Much opposition was raised by the members of the Council regarding its abolition as they argued that it was a matter of labor party policy. Therefore the members of the Upper House did not agree with such abolition. Thereafter in 1922, the Upper House was abolished by an action of the Labor Government in Queensland. In the later part of 1929, a new section of 7A was included in the Constitutional Act under the patronage of the Nationalist Party Premier[12]. According to the Section, no bill can be presented to abolish the Legislative Council until a royal assent is received by both the Houses with an approval at a referendum. In New South Wales, if the majority of the electors agree to the proposal then only a referendum is held. During 1930 the return of the Labour Party was marked under the patronage of J.T. Lang. It was observed that Lang made several attempts for the abolition of the Legislative Council. Therefore, a bill was secured by Lang by involving both the Houses for the purpose of abolishing the Council. However, he failed in his attempt in addressing the provisions of Section 7A and therefore his attempt to abolish the Council was held to be illegal by the High Court and the Privy Council. With the dismissal of the proposal of Lang concerns were raised regarding the role of the Legislative Council in the political development of the State. It is worth stating that the nature of the indirect method of the election was supported as they were concerned that there could be rivalry between the Council and the Assembly. Lastly, the reconstruction of the Legislative Council was fulfilled on April 1934 which being independent could not create favourable influence over the monetary policy of the governmen t[13]. The period between 1934 and 1980 it was observed that the elected governments were confronted with the presence of antagonistic Council. In 1977, a Bill was introduced by the Wran Labour Government to reform the Upper House however; such bill was not passed by the Legislative Council[14]. Thereafter, the Bill was again re-introduced after two months. Therefore, proposals were made regarding the amendments to the Bill that was finally passed by both the Houses. After the amended Bill was presented to the public for further approval at e referendum held on June, 1978. Lastly, as a result of the act of the Greiner Liberal-National Party Government at a referendum held in 1991 there was a reduction in the number of the members of both the Houses. During this period, the governor, lieutenant governor and the judge was authorized by the First Charter of Justice with the power to proceed with the establishment of a criminal court. The governor was entrusted with the power of appointing and dismissing magistrates. In this regard, civil and military officers were appointed who possessed similar powers to those of the magistrates. Such civil and military officers were at the authority to imprison individuals regarding minor criminal cases. However, the First Charter of Justice also established the court of civil jurisdiction for the purpose of hearing and deciding cases related to property and contracts[15]. During this period DArcy was declared at the first paid magistrate. Prior to this, the powers and duties of the magistrates were confined to other positions. In 1821, court houses were established exceeding an amount of 300 in New South Wales. After 1830, the payment of the magistrates was commonly practiced. However from the period of 1820 and 1850, the legal system of Australia developed. Previously, it was governed by the principles of common law of England. It was observed that the legal structure of Australia was formulated on the basis of the British legal system as a result of the emergence of the European settlers in Australia. In this regard, the permission of setting up Australian colonies was granted by the British legal system and thereafter the establishment of legal system was initiated in Australia. The creation of central government was initiated by Australia and as a result of it the Constitution of Australia came into being which marked the beginning of an independent legal system in Australia. From the very beginning the legal system of Australia has been considered as the most important common law system of the world. However, the essentials of the Australian legal system are deep rooted in the English Colonial rule. The common law system in Australia proved to be insignificant as a result of the development of adversarial justice system. In the opinion of the Australian Law Reform Commission, 1999, the adversarial system can be referred to as the common law system which has been applied in the court proceedings of different countries[16]. Therefore it was argued that it would have been beneficial for Australia develop a system of civil justice system of its own free from the influence of the English common law. It is evident from the history of Australia that republicanism forms a major part of it. It was observed that with the formation of the convict colony in New South Wales by the British Empire, the Australians could not declare their independence. During this period it was observed that John Dunmore Lang hared his opinion regarding the formation of a new federation in Australia. In his perspective, the new federation shall emerge as a republic and as a result of it the Australians could extend their territories over the neighbouring islands of the South-West Pacific. During the emergence of gold rushes during 1850s the republicanism emerged from time to time in Victoria. In this regard, it was observed that the republic of Victoria was proclaimed when rebellions raised the Southern Cross flag[17]. Until 1950, Republican Party was not formed to contest against the elections of Australia. However, the influence of the British Empire proved to be beneficial for the Australian colonies as a source of defence and investment. The legal system of Australia was adopted from the English Legal system as it was a colony under the British Empire. Due to this reason the laws of Australia are greatly influenced by international laws. It can be stated that the influence of international laws on the Australian legal system has been reflected in multinational conventions and treaties. However, when Australia was under the reign of Great Britain, the colonies of Australia were granted limited self-governance. As a result of this the colonies of Australia initiated the formation of an independent court of their own by formulating their own set of laws. The colonies are vested with a right to amend or repeal any provisions. Therefore with passing years, Australia finally evolved in a new way by building an independent structure of Australian law with separate judiciary and legislature. It can be observed that Australia after its independence from Great Britain emerged as a federal state. During the period of Federation Movement various national conventions were gained by Australia and thereafter the Commonwealth of Australia Constitution Act was passed in 1900 by the government of British[18]. The jurisdiction of Australia comprises of Federal and State, Criminal and Civil, Original and Appellate. However, the Courts established under the state laws are regarded as State Courts. The Courts under the Commonwealth laws in Australia are regarded as Federal Courts. It can be rightly stated that Australia after its independence from United Kingdom has the power to make laws of its own. During this period, attempts were made by the representatives regarding the formulation of a central government for the country. Therefore, representatives of the six colonies which included New South Wales, South Australia, Tasmania, Queensland, Western Australia and Victoria conducted a series of conventions in 1890s. Thereafter, for the purpose of approving the draft constitution a referendum was held in each colony. The Australian Constitution came into force on 1 January 1901 which was passed by the British Parliament[19]. With the formulation of the Australian Constitution in 1901 market the beginning of an independent legal system of Australia which comprises a major part of the Australian government. As a result of the federation of the independent colonies the Commonwealth of Australia came into being. With the establishment of the Commonwealth in Australia the government system of Australia is referred to as the federal system[20]. It is noteworthy to mention here that, und er the federal structure of the government the power is entrusted to both the federal government and the state government. Therefore, in this way power ids divided between two different structures of the government which are depicted in the Commonwealth of Australia Constitution Act 1900. In this regard, it can be stated that the individuals of Australia are subjected to follow both the federal laws and the state or territorial laws. The Colonial Laws Validity Act 28 and 29 Vic c 63 was in the beginning a UK Act termed as the Colonial Laws Validity Act 28 and 29 Vic c 63 (UK). However the Act was thereafter renamed as the Colonial Laws Validity Act 1865 when the Act was first published under the Legislation Act 2001[21]. In this regard, it is worth stating that the Colonial Laws Validity Act 1865 was applied to the individual states of Australia until in 1986 the Australia Act 1986 came into force. The Colonial Laws Validity Act was approved on 29 June 1865. The Colonial Laws Validity Act was passed with an intention to remove existing confusion about the legality of the colonial laws. However, the legality and effect of the existing laws of the Colonies of Australia. In this context, it can be stated that after evaluating the existing complexities in the legislature and the executive it was confirmed by the British Parliament that the existing statutes are valid and efficient. The Act came into effect in New Sou th Wales before 1st January 1911 and continued to apply its force as proposed by the Seat of Government Acceptance Act 1909[22]. In this regard, it is noteworthy to mention here that from the very beginning the purpose of the Colonial Validity Act was excluding any inconsistency existing between the colonial and the British legislation. Therefore, the Act provided importance to the concept of colonial legislation by stating that the purpose of the Act was to have effect within the colonies however; it shall not contradict any Act of the Parliament in relation to the powers extending beyond the boundaries of United Kingdom. It is worth mentioning that the Act has rightly clarified and strengthened the positioning of the colonial legislatures. In this regard, it can be stated that before the Colonial Validity 28 and 29 Vic c 63 came into effect most of the colonial statutes was obstructed by the local judges as they were inconsistent with the English laws[23]. The judges were of the v iew that the English laws passed by the Parliament proved to be inefficient within the colony. It is evident that the government in South Australia has gone through this particular issue where the judges have restrained certain local statutes on various occasions. However, the Colonial Laws Validity Act 28 and 29 Vic c 63 remained in force for a long time and thereby proved to be beneficial in defining the relationship between the Acts of Parliament and the laws passed in autonomous British territories. The Colonial Laws Validity Act 28 and 29 Vic c 63 was also efficient in defining the legitimacy of the decisions given by the territorial legislatures and government authorities. In this regard, it can be mentioned that the Parliament of the United Kingdom was at the authority to amend the Colonial Laws Validity Act 28 and 29 Vic c 63 (UK) however; after the Act was renamed the Parliament lost such authority. The Statute of Westminster was adopted by Australia in 1942 with the establishment of the Statute of Westminster Adoption Act 1942[24]. However, the Statute of Westminster came into force immediately in countries of Canada, South Africa and Irish Free State. It was observed that the Statute of Westminster was adopted by most of the countries however it was not adopted by Newfoundland in spite of financial depreciation as a result of the Great Depression. However, the Colonial Laws Validity Act continued to strive in Newfoundland. Traditionally, the Statute of Westminster Act of 1931 is an act passed by the Parliament of the United Kingdom which has been modified and amended which acts as domestic law within the countries of Australia and Canada[25]. The Statute of Westminster Act was passed on 11th December 1931 which came into force immediately with the establishment of legislative independence of the self-governing territories of the British Empire. It is evident that the territori es of the British Empire need the approval of the Parliament regarding changes to monarchical titles and common lines of succession. Therefore the Statute of Westminster acted as a statutory framework of the principles of equality and common allegiance that has been depicted in the Balfour Declaration of 1926. In this regard, the importance of the Statute of Westminster of 1931 can be emphasized. The Statute of Westminster significantly recognized the evolution of the self-governing Dominions into autonomous states. In this regard, it is noteworthy to mention here that Dominions included countries like Australia, South Africa, Canada, Newfoundland, New Zealand and Irish Free State by the end of 1930s[26]. The importance of the Statute of Westminster arose during the American War of Independence which was a major turning point in the history of British Empire. In this regard, it can be stated that the Statute of Westminster contributed enormously towards the advances of the Dominions. In the perspective of historians, the Statute of Westminster came into force in order to put an end to the chapter of Commonwealth history. It is evident that the Commonwealth has attained the status of self-government and self-determination from the very beginning however; no questions were raised on the vali dity of such attainment till date. Therefore, the Statute of Westminster made the Dominions free from the legal bondage of the British Empire except Australia and New Zealand. In this regard, the British Empire cannot nullify the laws of the Dominions in future and therefore the Dominions are at the authority to formulate extra-territorial laws of their own[27]. Therefore, the British laws are no longer applicable to the Dominions. However, Canada has the authority to formulate legal provisions of its own except the Dominions which amended the British North America Act. In this regard, it is worth noting that since time immemorial, the Statute of Westminster occupies significant position in the histories of Canada, Australia, New Zealand and South Africa[28]. The Statute of Westminster acted as a legal instrument in eliminating the power of the British Empire on the Dominions. Therefore, as a result of it the Dominions were able to establish themselves as autonomous states. References: Albert, Richard. "Constitutional amendment by constitutional desuetude."The American Journal of Comparative Law62.3 (2014): 641-686. Asimow, Michael. 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