澳大利亚的权力分立原则--悉尼Essay代写

悉尼Essay代写范文:“澳大利亚的权力分立原则”，这篇论文主要描述的是三权分立是目前世界上许多国家保证权力平衡的主要方法，最早在古希腊古罗马时期便已经初具雏形，国家需要将行政、立法、司法的权利一分为三，并使这三个部门相互制衡，这样能够让三个部门都具有一定的权力，但有相互的监督和制衡，但在澳大利亚的权力分立方面却有学者怀疑到澳大利亚政府结构的设置并不符合权利分立的原则，本文对此展开而来研究。

l  Doctrine of the separation of powers and how it operates in Australia

The separation of powers is one of mode in the governance of a state. The model derived from ancient Greece and Rome. In this model, the state is divided into three branches that each holds separate and independent powers so that the powers of one branch have functions of balancing and restricting the state. Doctrine of the separation of powers in Australia divides the institutions of government into three branches: legislative, executive and judicial. The essential point of the doctrine is that the judiciary be completely separate from the executive and from the legislature. All the branches under the Separation of powers do not overlap which means there is little ‘common ground’ between all three levels. The laws are made in the legislature makes; the executive put the laws into operation; and the judiciary interprets the laws. The doctrine of the separation of powers is regarded as one of the cornerstones and foundation of fair government (Gerangelos, 2009).

The issue of separation of powers in Australia shows a contentious one and continues to raise questions about where power stands in the Australian political system. The separation of powers doctrine requires that each functional department of government should be separate and not exercise the powers or functions of the others. As the Australian government does not strictly comply with the separation of powers doctrine, the legislature and the executive have not been completely separated in practically. In Australia, state maintains a system of responsible government so that the principle of the executive is responsible to the legislature. Government Ministers are members of both the legislature and the executive. In Australia, the legislature has right to confer power and delegate legislation to the executive government. The principle of ‘Judicial Independence’ states that judiciary independence exercising cannot be interfered by administrative functions (Carolan, 2009).

The independence of both federal and state courts regarded as one integral part to protect and implement the rule of law. Judicial power is exercised to determine rights, liberty or property, which defined by a number of sources as a number of different functions and it can reach a conclusive decision. The states do not have an explicit separation of powers in their respective Constitutions.

l  Judicial independency in Australia

As part of an integrated system, the High Court decided to hold that state courts are vested with federal judicial power which is not able to be given non-judicial power by the State Parliament. So, in most cases, High Court has determined an incompatibility between the state vesting power and a courts exercise of federal judicial power. For example, High Court upheld s which the Federal Court of Bankruptcy can be empowered an application for an order or discharge to charge a bankrupt with an offence against the Act in terms of the separation doctrine. It seems that the Court has no power on validly judicial conferred on a federal court. ‘Constitutes an attempt to invest a court with a non-judicial function inconsistent with its judicial function' in the Boilermakers' case. Based on statutory provision armed at conferring such a power or duty, the creation of the judicial tribunal of a person to act as a member of it cannot stand (Wheeler, 1997). The Doctrine of Separation of Powers and Constitutionally Entrenched Due Process in Australia FIONA WHEELER'

The significant principle of judicial independence was permanently guaranteed. The Justices would continue to establish the foundations of the High Court so that they can attain ‘high standards of integrity, learning, ability and industry’ (Priest, 1905).For these reasons, the High Court’s decision to suspend its sittings refers to ‘which no Government and no country could endure[1].

In Australia, The High Court's jurisdiction consists of two parts: the right to trial and appellate jurisdiction. Based on the items of 75 in constitution, the Supreme Court has the right of trial to all of the following cases: 1, any cases of dispute in treaty and agreement; 2, any case affected the negotiations with other countries; 3, one party involved in the commonwealth of litigation or the federal involved; 4, disputes cases between states, or residents between different states; 5, a writ issued for federal officials. In addition, any cases authorized by the federal parliament. In practical, the significance of the High Court of Australia has become the ultimate appellate court. Like India and the United States Supreme Court, the High Court has right of judicial examination power (Shetreet & Forsyth, 2012).

l  Different of the separation of powers between United State of American and Australia

The different of Doctrine of the separation of powers between United State of American and Australia is that American people are concerned about “the separation of powers” political system while Australian people emphasize on judicial independence. There is one special point of American “the separation of powers”, which the vice president of the US has another position “speaker of the Senate”.

What is named as “speaker of the House of Lords” is the key point of overlapping in separation of powers in USA, aimed at ensuring the Check and Balance in power system. Thus, unlike Australia, the most important part of separation of powers is judicial independence, which can largely represent its separation of powers. In Australia, the Governor-General of Australia is same as The Queen of England so as to represent that Australia is an independent state. But the Head of State is a foreigner. Australia is a constitutional monarchy country. Because The Governor-General of Australia is appointed by the quee, he or she exercises powers on behalf of the Queen of England. Each of the three branches of Legislative, Executive, and Judicial have right to define powers and, on the other hand, to check the powers of the other branches to prevent abuse of power. This is the main idea resulted in separation of powers.

Actually, some U.S. states do not have strict separation of powers. For example, the governor can function as a member of the state's highest court In New Jersey as well as the presiding officer in the New Jersey Legislature. Congress has power for the legislative and they are elected directly by the voters. They are responsible to the voters. They are not interfered by the administrative .In order to ensure congress independent, President of USA has no right to dismissal Congress and as well has no right to concern about parliament payment. In congress, the further distribution of the Congress power is that congress consist the senate and the House of Representatives. The powers of the congress is embodied in formulate legal power, the right to amend the constitution, impeachment power for the President and vice President. Administrative power is executed by the President and responsible to the voters rather than congress. Congress has no right to increase or decrease the President payment. The main power of The President of USA includes the head of the army and navy, foreign treaties, the probation and amnesty announcement, appointing ambassador, minister, consul, the Supreme Court judges and other officials, etc. The judicial Jurisdiction is executed by the federal Supreme Court. As long as a judge is loyal to their duties, he can be a life appointment. He cannot be impeached unless congress agrees. In order to ensure the independence of the three power, the United States constitution stipulates that the officials in three branches has no right to take up another position in another branch when he is on duty so as to keep power independence (Masterman, 2010).

It will not be essential for the abruption of its practice and efficiencies of the doctrine to be the same objectives and it is easily observed that the intention behind the doctrine is implanted in democracies. In the Westminster system, debate of the doctrine is abundant with abnormities and changes, just as practiced in Australia. Surely, there is only partially at best existing here which is in its classical condition. However, there are is practice mechanisms which aim at avoiding the high-centralized of power existing in lots of ways by constitutions and customary rules; the bicameral system; multiply political parties; elections; the media; courts and tribunals; federal system itself; and the suggestions, continual participation of Freemans. One part of a simultaneously robust is the doctrine and plays a prominent role in the every department of government. There always exists a tension between separation and focus of influence, and executive agent will always be the most dangerous rather that judges or legislatures -because the greatest potential and practice are regarded as its power and decadence in the realm of executive. Stopping this in our system depends largely as much on customary rules as constitutions and the warning bells ought to ring loudly just as government torchbearers disband or declare ignorance of the idea.

In fact, there is much overlap between separation between executive and legislative In Australia. The high court held strict division between these two levels. In Australian Constitution, "The Parliament", "The Executive Government", and "The Judicature" are the relevant "power of the Commonwealth". On the other hand, the Constitution incorporates are responsible to the government. During this procedure, the legislature and the executive are worked together effectively. The Australian Constitution functions for the Parliament, Executive and Judiciary, but it does not mean that a separation of powers is formed. Executive power represents the Governor-General which nominally allocated to the Monarch. There is big different between Westminster model in separate of power and American-style separate executive (Ginsburg & Dixon, 2011).

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