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Differences between executive and legislative branches essay
Differences between executive and legislative branches essay
Relationships between executive branch, legislative branch and judicial branch
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The Australian Legal System
The Australian Legal System has a rich and detailed history dating from 1066. Law is made in Parliament. We have four sources of law and three courts with different jurisdictions that interpret the law when giving out justice. Important doctrines act as the corner-stones of our legal system. There is a procedure in the courts for making appeals. Separation of powers exists between officials in the courts, the parliament and the Executive. Everyone in Australia is treated equally under the Rule of Law, no matter their office or status. The Law is always changing as society changes, but it can never be perfect and cannot please everyone.
The Westminster Legal System, upon which the Australian one is based, can be traced back to 1066 when William the Conqueror won the Battle of Hastings. As king, he set out rules and sent judges around the land on horseback to ensure that they were followed and offenders punished. It is from these times that the Doctrine of Precedence originated. A log of crimes and punishments was kept: as a means of convenience, judges could hand out punishments in line with the punishments given for similar cases. In the 19th Century, this doctrine became binding. In 1215, the Magna Carta was signed by King John, putting the first check against all previous monarchs’ ‘rule by Divine Right’. It was significant because the Magna Carta also gave people the right to be judged by one’s peers. In 1689, after the Glorious Revolution, Parliament became the Supreme Law-making body, monarchs no longer reigned over Parliament, but sat in Parliament.
There are four sources of Law in the Australian Legal System. They are Statute Law, which is made in Parliament, Common Law and the Law of E...
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... a very strong separation between Executive and Legislature, and the Judiciary – Members of Parliament and Government ministers cannot sit in the Judiciary and interpret the law. There is not, however, such a strict separation between the Executive and the Legislature, as the Executive sits in Parliament as well.
The Law is always changing and it reflects today’s society. However, the Law is not perfect because it is made by humans. The Law does not always coincide with Justice and Morality, for example, Carroll has lawfully been acquitted, but justice hasn’t been served, because everyone knows that he has been acquitted on a technicality. Also, abortion is legal, but many people feel that it is immoral. Because of laws in need of repealing and the inconsistencies between Law, Justice and Morality, it is not surprising that the Law can often be seen as an ‘ass’.
The roots of Australian laws are similar to traditional Aboriginal laws, dating back to before the Norman Conquest in 1066, where each separate village had their own laws developed to their own customs. This changed however, after a centralized legal system was established after 1066. A common law was formed, that applied to all of England. This was later combined with equity law and mercantile law, which is the basis of Australian law today, known as ‘statute law’.
Australian laws change in various ways on a continuous basis. The federal and State legislatures can change laws when enacting legislation. This law could reflect on improvements or/and new social esteems in contemporary society. Legislation that is new or amended can indicate political choices and can be determined by organisations such as the Australian Law Reform Commission (ALRC) or lobby groups.
As Australia changes its societal values and morals, technology and new concepts of justice means that some laws we once have had in Australia are sometimes unjust and unfair or just don’t fit in with the ever changing societal values, morals and ethics consequently why law reform can play an crucial part in the Australian legal system in maintaining just outcomes for Australians The legal system ensure the law reform maintains current and up to date so that the legal system can continue to stay modern, law reform is the process of changing a law to correct, simplify, make more current or fix an injustice within it. This is essential in Australia, as the law must remain relevant to an ever-changing society.
Hence emphasising that ultimately parliament overrules State laws and therefore, has the power to dictate each States development . Alternatively, this ensures uniformity throughout Australia; thus establishing social cohesion by ensuring a harmonious environment . This facilitates social progress by amending laws to include the morals and values of society at that time . Again, this reinforces the purpose of federation and the formation of the Australia Constitution by the Founding Fathers who had the foresight to protect the sovereignty of the
The English legal system is complex and there are many ways in which it can be influenced, this essay will explore some of the different, more obvious ways the law can be changed and what this shows in relation to the quote above. First the essay will discuss the different ways the law can be created and changed and who enables and controls those changes, with my primary examples being the common law and legislation for the judicracy and Parliament respectively, then the essay will cover to what extent these powers enable the judicracy to change and create law in relation to Parliament and if it could be discribed as "opportunistic and piecemeal".
NSW Government 2014, Courts & Tribunal Services Attorney General & Justice, viewed 30 April 2014, .
The Australian Court Hierarchy is structured through five different types of courts that suit different needs. The Hierarchy categorises the importance of cases by the level of offence or reason. This is then forwarded into the court it categorises under. The employees of the Australian judicial position have roles that vary to the courts they serve in.
The Australian legal system, through the process of law reform, aims to keep the nation a safe which, to a significant extent, is effective in creating a more just society. The Law reform, is the process of introducing changes to existing laws in the legal system. In order to suit contemporary society, laws are improved to in which reflects societal values and thus, accommodate the needs of majority of Australia. However, there are instances where the legal system may not be as effective in these changes. Issue such as the native title, marriage equality and the lock out laws cases can justify whether the law reform is effective.
The Australian court system is structured as a hierarchy, meaning that some courts have more power than others. In this hierarchy there are two sections of courts; the state courts such as the supreme court, county court, court of appeal, magistrates court and specialised courts like children’s court for example and tribunals like VCAT all of these are set up under state legislation. The second section being federal courts such as the High court which comes under commonwealth legislation. So, depending on the crime committed and how serious or not it is, different courts in the hierarchy will deal with different cases.
Australian law is constantly evolving alongside her society, this process of evolving the law is more commonly known as “Law Reform”. Some of the reasons for law reform may involve the changing of social values, the introduction of new concepts of justice and finally technology. This essay will evaluate the role of law reform in addressing emerging technological issues and enforcing rights with reference to one case study.
Aboriginal and Torres Strait Islander people in Australia can be treated un equal from, criminal justice system, and certain a law must be addressed. The customary Law reflects equality amongst indigenous and non-indigenous Australians. This essay will explore the customary law in Australia, and the benefits and critiques that is proposes. First the essay will explore what the customary law in Australia is. Secondly it will explore other countries that have allowed indigenous people to implement their own justice system in practice, it will explore the indigenous right that were recognized in New Zealand. It will then then argue that customary law should be used in Australia and be strengthened in aboriginal communities however there are some
This exercises the idea of independence within ‘different functions of government’; it is represented by the legislature, the executive and the judiciary. Separating the three prevents a dangerous occurrence where power is entirely centralized in one group.... ... middle of paper ... ... Carl F. Stychin and Linda Mulcahy, Legal Methods and Systems, (4th edn, Sweet & Maxwell 2010).
Failure of the Australian Legal System to Provide True Justice The Australian legal system uses the adversary system in solving legal disputes. The adversary system is a judicial process where an independent and impartial judge administers justice in courts and two opposing parties present allegations and counter allegations regarding a legal dispute placed before the court by one or both parties. (B.Bash, 2001, Legal Studies Essentials, pg.164) The adversary system has many basic features and are elaborated in the following. First and foremost, the disputes take place before an independent and impartial judge or judge and jury. (Brown & Bailey, 1997, Legal Studies, pg.173, para 8)
The recognition of aboriginal customary laws under the Australian Criminal justice system is just confined to acknowledgement of just the traditional physical punishments at the stage of sentencing. It all depends upon the interpretation and readings of individuals who play a role in the Criminal justice system in the capacity of judicial officers, officers of the court, lawyers and police officers etc. (Aboriginal Law& criminal justice,Law Reform Commission,W.Australia)
In Australia, there is an overlap of the three branches and it is argued there is not significant distinction between the legislative and executive, consistent with British tradition. In the Constitution it does effectively unite the legislative and executive within the framework of responsible government as reflected in sections 44, 62 and 64. Section 64 specifically states that Ministers (executive) must sit in Parliament which represents a connection between these branches. A High Court decision in Victorian Stevedoring & General. Contracting Co Pty Ltd & Meakes v Dignan 1931 held that a strict division between these two levels was not practical. In contrast, the High Court is more definite in its separation and uphold a strict distinction with its judicial power. R v Kirby; Ex parte Boilermaker...