The Analysis of the USA and Australian Constitution - Essay Example

Comparing and Contrasting USA and Australian Constitution Comparing and Contrasting USA and Australian Constitution Introduction The paper compares and contrasts the Constitution of Australia with that of United States of America. The analysis is based on the methods of limitation of state power as provided for in the two constitutions of the two countries. The paper makes a critical examination of Federalism, separation of powers and parliamentary sovereignty in the two countries. Moreover, the contrast and comparison focus on the Bicameralism, bills of rights and heads of power as reflected in the each country’s Constitution. Also, the paper critical examine the Constitutional provision with respect to the control of finances, power of the electorate in respect of amendment of the constitution as well as the role of the prime minister and president in both Australia and USA. Finally, the paper presents the person who established the Constitution for the respective countries and discuss the importance of such an individuals or entity. Limitation of State Powers The powers of the state in both countries are limited by the legislature and judiciary. The High Court of Australia and the legislature check on the powers of the state. The Australian Constitution Section 61 Federalism The first sight examination of Australia and USA reveals similar systems of government. The two nations have federated nations. The power to govern is therefore shared between national and state governments. Separation of Powers and Parliamentary Sovereignty Australian Constitution explicates the legislative, the executive, and the judicial arms of the Australian governance. However, Australia has a limited separation of powers. The members of Australian Executive are drawn from the legislature or parliament. On the other hand, the members of the Judiciary such as the High Court Judges are Governor General Appointees while being advised by the Executive (Saunders, 2008). On the other hand, the Constitution of United States illustrates the separate legislative, executive and judicial arms of the governance. Unlike, Australia the US Constitution prohibits the members of Congress including the House of Representatives and the Senate from being appointed to executives offices. Moreover, the United States’ cabinet members can never be members of legislature, unlike Australia and hence the US President and Secretaries are prohibited from being members of the Congress. The parliamentary sovereignty in both countries arises from their role of law making process as all the bills must be passed and approved by the parliament. However, in the United States the Supreme Courts can trim the laws made based on their wisdom, constitutionality, and workability. Therefore, the doctrine of parliamentary supremacy in USA rest on the decision of the Supreme Court and Constitutional Courts that have powers to strike down some of the Acts passed the Parliament deemed unconstitutional, unworkable and unwise. Indeed, the Constitution of United States itself entails clauses limiting the legislator’s power to enact certain laws. Particularly, the laws that conflicts federal principles or constitutionally safeguarded human rights as well as the independence of the judiciary until then when the text of the Constitution is amended in compliance with special procedures like two-thirds majorities in the parliament and assent by three-quarters of the states. The Bicameralism The two countries have a bicameral parliament that encompasses two chambers. The chambers have an elected House Representatives and Senate. The laws are made in the bicameral parliament Australia being a Constitutional Monarchy while United State is a Republic. Bills of Rights and Heads of Power The Australian Constitution entails expressly protected rights together with one implied right. The Constitution provides for freedom of religion in Australia in Section 116. Moreover, the non-believers are also protected under Section 116 recognizing the right of one to have no religion. However, section 116 of the Australian Constitution only prohibits the Commonwealth laws and thus do not extend to state laws. Moreover, the Australian Constitution provides for interstate trade and commerce in section 92 permitting free trade. Such a right is central as it helps Australian economy eliminated the parochial restriction hence more of structural than democratic or human fundamental right. Further, the Australian Constitution fosters a non-discriminative nation as provided for in section 117. The section prohibits both state and Commonwealth governments from discriminating based on individuals’ resident. The Constitution of Australia provides for fair and just terms during the acquisition of property. There must be just terms by the Commonwealth as reflected in Section 51(xxxi). However, this section is only applicable to Commonwealth and not state government. Moreover, Section 80 of the Australian Constitution provides for a jury trial. On the other hand, the USA Constitution provides for the protection of democratic and human rights, freedom guaranteed by the Bill of Rights that is subjected to a series of Amendments. The USA’s Constitution Bill of Rights encompasses a comprehensive list of rights. The Constitution presents these rights as fully enforceable and hence prohibits any legislation infringing any of such rights are thus declared invalid by the US Supreme Courts or Constitutional Courts (United States at al. 2012). Therefore, the USA Constitution has entrenched rights and hence can only abolish by amending the Constitution. Therefore, this is a more complicated process, unlike the Australia case where separate referenda are held per state. Further, the USA Bill of Rights can be added to the Constitution by amending as was reflected in the slavery that was abolished following the Civil War with the vote ushered for 18 years olds in 1971. In addition, the US Bill of rights incorporates implied rights such as the right to privacy. The right to privacy was extended to incorporate the linkage between doctor and patient in Rev v. Wade (1973). Therefore, it is unlawful to interfere in issues related to the relationship between patient and doctor like abortion. The Control of Finances The Australian Constitution vests the power to control the finances in Parliament in two ways. The taxes imposed are legislation-based and has to be approved by the parliament. In addition and the most essential, expenditure from the government must be approved by legislation. The Australian Constitution clearly dictates boundaries of the government expenditure, regardless of the technique employed in raising the funds whether by the sale of government properties or through taxes. No money is spent from the Commonwealth unless under special circumstances such as appropriation by law. Normally such act is referred to as “supply”. Subsequently, only the government is authorized or can appeal that an appropriation be made and in other cases increased. Power of the Electorate in Respect of amendment Unlike the United States where a proposed amendment to the Constitution may be passed with the electorate’s involvement, the Australian proposed Amendment must be taken to the electorates in a referendum. In Australia after the proposed Amendment has been approved by the parliament, it goes to the electorates for voting. The electorates are given sovereign power in Australia with respect to any Amendment as agreement must be a double majority. The double majority implies that electorates in a majority of states and majority of all voters in the nation musty consent to the proposal. However, in the United States, Amendment to the Constitution has to be agreed to by two-thirds of both houses of Congress or two-thirds of the state legislatures that holds a convention to consider the amendment. However, the Amendment is subsequently approved by three-quarters of the state legislatures or three-quarters of the states during a state convention without holding a referendum to indulge the electorates (French, 2003). Prime Minister and President The United State president is the head of state and government while the Queen heads the state with the prime minister heading the government in Australia as the top leading executives. They share roles and responsibilities with members of cabinets. In Australia, the Prime Minister is the head of government. Creation of the Constitutions The Constitution of Australia was created by the moves leading to the federation in the nineteenth century. This resulted in the federation of the Australian colonies that formed the Commonwealth of Australia in 1901. On the other hand, the US Constitution was created between 1786 and 1787 following the delegates from five states that convened at Annapolis Convention to deliberate on the revision of the Articles of Confederation. Moreover, in 1787 saw the convention of Delegates from twelve states at Constitutional Convention in Philadelphia. Key individuals included George Washington, who was the chairman of the Constitutional Convention. The Constitutional creations have been fundamental as they have outlined the separation of powers and the rights guiding every activity in the two nations. Conclusion The two nations’ Constitutions have a number of similarities and difference as discussed. The two nations have bicameral parliament and federated. Moreover, the laws that govern the respective countries are made by the parliament. Australia is a monarchical country and led by the Queen while United States is headed by the government. Further, the control of finance in both countries an oversight role of the legislature right from the budget making. Therefore, the creation of the Constitution in USA and Australia is importance in terms of Bill of Rights and separation of powers. References French, R. (2003). Reflections on the Australian Constitution. Annandale, NSW: Federation. Saunders, C. (2008). The constitution of Australia: A contextual analysis. Oxford: Hart United States., Jordan, T. L., United States., United States., & United States. (2012). The U.S. Constitution and fascinating facts about it. Naperville, IL: Oak Hill Pub. Read More