宪法赋予的联邦政府权力

悉尼Assignment代写范文:“宪法赋予的联邦政府权力”，这篇论文主要描述的是澳大利亚的宪法赋予了法院执法的权力，这也就意味着在澳大利亚宪法是最高的法律，它能够定义澳大利亚联邦政府及政府部门的权力，制定基本的政治制度和政府结构框架，划分中央政府与地方政府的权力。

QUESTION 1:

a)By definition, a legal fiction means the fact that is created by a court which is used in a way that was not necessarily designed for. The legal fiction upon which that Australia was found would be the constitution. The constitution is the supreme law in Australia, which defines the main function of the commonwealth government of Australia, the relationship between the federal government and other states of Australia, and other legal document which lays out the general outline for Australia legal framework. The making and adoption of the constitution reflected the legal development of Australia. The constitution is the most important legal document of Australia. It founded the basic political institution, the structure of the government, the rights and obligations of the states and the common wealth and the rights and procedures of the commonwealth government. The constitution laid down the basic legal framework for Australia, upon which some of the most basic elements of the government are defined. The constitution of Australia is not static. Quite in the contrary, the constitution remains a living design as the interpretation of it changes according to the changed political and social environment. In addition to the effect the constitution had on the design of the government and the relations among them, other effects and influence upon the thinking pattern and social options, such as human rights, are not to be neglected.

b) The constitution created a federation government; powers are divided between the commonwealth government and state governments. There are three aims of the commonwealth government, the legislature which is to decide on the adopting of new law which according to section 90  of the constitution falls within the powers of the commonwealth government. The legislative powers of the commonwealth parliament are divided into concurrent and exclusive powers. Exclusive powers are shared alone by the commonwealth parliament. According to the section 51 of the constitution, the power to make laws in relation to customs, defence, and excise are exclusive powers. Concurrent powers are the powers to make laws in relation to taxation, baking and insurance which are shared between the commonwealth and the states. According to section 51, the powers not listed in this section are residual powers. Residual powers are rested in the states.

QUESTION 2:

a) Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 decided by the High Court of Australia

London Artists v Littler [1962] 2 QB 375 decided by High Court of Justice

Drinkwater & Ors v Howarth [2006] NSWCA 222 decided by New South Wales Court of Appeal

Gambriell v. Caparelli (1974) Ontario County Court 54 D.L.R decided by the Ontario County Court

Department of Housing and Works v Smith [No 2] [2010] WASCA 25 decided by Washington Supreme Court

b)the case binding on a judge of the District Court of Western Australia is  Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254

c) In court hierarchy, judiciary system is classified into different levels. An intermediate court refers to the court usually in bigger states that enjoys the power to decide an appeal from a trial court. The decision of the intermediate court should be followed by lower courts. And above the intermediate court, there is the Supreme Court which enjoys the power to overrule the decisions of lower courts.

Distinguish means to contrast a precedent with similarity from the facts of the case or the legal view point, the judges in the new case could avoid following precedents or limiting the application of precedents.

Appellate jurisdiction is the power of a higher court to review the decision of lower courts. The appellate court would review the decisions of lower court to see whether any mistakes were made in the application of law. The jurisdiction of appellate court could modify or overrule the decisions of a decided case.

Follow means that in common law system, a precedent which share similarities in facts or legal issues is binding for a court in deciding subsequent cases. The doctrine behind this is that similar cases should have similar holdings. Following precedents put the obligation on courts and judges to stick to the legal principles and rules in the deciding of later cases so that the integrity of law and justice can be preserved.

Obiter dicta are the remarks made by a judge in the reasoning of a case. They are not the decision of the case but just the part the judge applied in reaching that decision.

The advantages of judicial precedent are certainty, that by following the precedents, the outcome of a similar case could easily be reached. And that similar case can get similar results. Precedent can also avoid the mistakes made by judges as it provides guidance. The disadvantages include inflexibility, due to the doctrine of stare decisions, the decisions of a similar case does not change easily. Precedents also bring to complexities to judges as it takes time to find all the similar cases.

Question three

1.0 Introduction

After the Bad Behavior on Aircraft Deterrence Act 2006 was passed, bad behavior which causes distortions to a flying aircraft or other passengers shall be punishable. On 27th, May, 2006, Elizabeth was drunk on a flying plane. She also knocked her food onto other passengers and used offensive languages. In 2008, Sam caused the plane to land because he told other passengers that he would blow up the plane if he was not allowed to watch the entertainment program. In 2008, Carrick was arrested for the complaint that he was sleeping and snoring on the plane. In 2009, William, who was the flight attendant, was panicked by a storm and attempted to force the captain to land the plane in Adelaide. Elizabeth, Sam and Carrick are charged with an offence under section 4 of the Act and William was under section 5.

2.0 Analysis of the case

The Act is intended to deal with passengers who create threat to other passages on plane both in national and internationally airspace. Section 4 states that any person, apart from the officer or crew members, that creates any disturbance, harm or threat to any other passengers in any aircraft or other transport shall be punishable. Section 5 states that any person who causes or attempted to cause an aircraft to divert from its scheduled course shall be punishable.

In this case, Elizabeth caused disturbances to other passengers on the place because she was drunk and knocking food to other passengers and using offensive language. However, Elizabeth’s behaviours do not constitute disturbances under the Bad Behaviour on Aircraft Deterrence Act 2006. The reason lied in the fact that the Act received the Royal Assent on 1th July 2006, which meant that the Act was not effective until that time. However, the incident of Elizabeth happened on 27 May, 2006, which was before the implementation of the Act. Therefore, her actions were not punishable under the Act.

In 2008, Sam threatened other passengers on the coach that he would blow them up if he was not allowed to watch the entertainment system. And the coach was stopped because of his announcement. The coach falls under ‘other transport’ in the Act. Sam was uttering his dissatisfaction for not being allowed to use the entertainment system. And such threatening words should not be said as nobody can tell whether Sam was actually intending to do so or not. So, after this, the plane was stopped. The actions of Sam caused threat to other passengers and he should be punishable under section 4 of the Act.

As for the case of Carrick, he was arrested for snoring very loudly on the plane. According to section 4 of the Act, causing disturbance to other passengers should be punishable. However, in the case of Carrick, he was not deliberately causing disturbance to other passenger. Passengers enjoy the right to sleep on the plane during the journey. For some people, sleep comes with snoring and this cannot be stopped unless the passenger does not sleep. Snoring is quite commonly seen that it had been taken naturally. In this respect, Carrick should plead that snoring was not stoppable, and he did not do this deliberately. He should not be punishable under the Act. From the intention of the Act, it is aimed to eliminate bad behaviours from the plane. Bad behaviours come with an underlying indication that the party involved did this for bad intention. However, Carrick did not do this with bad purpose. Snoring was more like his natural habit or considered a kind of illness. People should not be punishable for the actions that they do not have control on. 

In the case of William, who is the flight attendant, he was panicked when the plane is diverted from its scheduled course. He attempted to force the captain to land. According section 5, any person that attempts to cause the diversion from schedules course shall be guilty of an offence. In consideration this case, ‘any person’ does not exclude flight attendant, and this means that whoever is at plane should be punishable for this offence. Section 5 applies when the action of the party caused or attempted to cause the plane to divert from its scheduled course. However, in this case, as could be seen from the facts the plane has already diverted from its scheduled course before the attempt made by William to force the plane to land. Under the condition that the plane lost radio contact and suffered from a storm, it is natural for a person to lose sense and be panic. Therefore, the action of William does not constitute an offence under the Act.

3.0 Conclusion

In conclusion, William and Elizabeth are not punishable, while Carrick and Sam are punishable under the Act.

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