Legal system is a comprehensive term that is used to confirm the existence of the law; it also explains the law-making process and how this is enforced on everyone. The Australian legal system regulates all level of governments, organisations, and all people whether they are Australian born or have migrated here, and they must obey Australia’s regulations. The legal system here was developed from the United Kingdom’s legal system, as Australia was a colony of the British. At a glance, the British government granted restricted rights to their colonies, including Australia to set local government system. This was intended to developed laws in local area, also to deal with specific situation at that time. As a result, the legal system in each of the colonies started to develop separately. According to Carvan J (2010) the Australian law is adopted from several sources, including the rules of equity, parliamentary laws, delegated legislations, judge-made laws, and international laws. (Austrlian Legal System, 2007) The application of these laws in the real world has become a hot debate as to whether the Australian legal system is based on justice and fairness. This is strongly related to the judge-made laws. Judge-made laws or common laws rely on the doctrine of precedent. This means that the decisions made by judges in the courts are based on previous cases that have similarities with other cases. The decisions in the doctrine of precedent are normally based on the higher authority court decision. Nowadays, the Australian legal system has three powers, which are legislative, executive and judicial. Legislative power is in charge of making the laws; subsequently those laws will be passed to the executive power to administer the laws it... ... middle of paper ... ...tp://www.austlii.edu.au/au/cases/cth/HCA/1983/14.html> Australian Contract Law, 2013 [Internet]. viewed 9 March 2014, Australian Legal System, 2007 [Internet]. viewed 11 March 2014, Carvan, J 2010, Understanding The Australian Legal System, 6th edition, Lawbook Co, Pyrmont, NSW. Financial Planning Association of Australia, 2013 [Internet]. viewed 17 March 2014, . Lexis Nexis 2013, Duress, Undue Influence, Breach of Fiduciary Obligation and Unconscionable Conduct [Internet]. viewed 13 March 2014, Sweeney, B, O'Reilly, J & Coleman, A 2013, Law in Commerce, 5th edition, Lexis Nexis, Australia.
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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’.
The decision for Australia to adopt the Federal system was on the principle of which the State’s governments wanted to keep their power. For this reason there was the separation of powers between the newly formed Commonwealth government and the existing State governments. At a constitutional level, there are rulings in which the powers are separated, these rulings due to disputes have slightly changed since 1901. These changes all fell towards the one government, the Commonwealth (Federal) government. However this was not just a landslide event, the Constitution of Australia set up this imbalance of powers between the Commonwealth and State governments. We will explore this further in the points discussed later in this essay.
Washington Law Review, Vol. 86, Issue 4 (December 2011), pp. 841-874 Barnum, Jeffrey C. 86 Wash. L. Rev. 841 (2011)
In theory all jury systems (which have existed for almost 800 years) are fair and just.
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.
...Gale Encyclopedia of Everyday Law. Ed. Shirelle Phelps. Vol. 1. Detroit: Gale, 2003. 265-271. Gale Virtual Reference Library. Gale. Tarrant County College. 2 Mar. 2011 .
Case law/Common law – body of law developed over time by higher courts. Laws are c...
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 powers of these branches are outlined in the first three chapters of the Australian constitution, entitled The Parliament, The Executive Government and The Judicature, respectively. The parliament (or legislative) is responsible for making and amending laws and is made up of the Governor General, Senate and House of Representatives. The parliament’s powers are outlined in section 1 of the constitution. The executive is responsible for putting laws into action and is made up of the Queen, Prime Minister and Ministers. The executive’s powers are addressed in section 61 of the constitution. The judiciary makes judgements about legislation and is made up of the High Court and other federal courts. The powers of the judicial branch are outlined in section 71 of the constitution. It can be concluded that the separation of powers doctrine, if it were completely true in practice, would ensure that the branches of government would only have a certain amount of power, meaning that Australia’s political and legal system operates
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.
Introduction This submission will discuss the problems created by the Doctrine of Judicial Precedent and will attempt to find solutions to them. Whereas, English Law has formed over some 900 years it was not until the middle of the 19th Century that the modern Doctrine was ‘reaffirmed’. London Tramways Co. Ltd V London County Council (1898). Law is open to interpretation, all decisions made since the birth of the English Legal System, have had some form of impact whether it is beneficial or not The term ‘Judicial Precedent’ has at least two meanings, one of which is the process where Judges will follow the decisions of previously decided cases, the other is what is known as an ‘Original Precedent’ that is a case that creates and applies a new rule. Precedents are to be found in Law Reports and are divided up into ‘Binding’ and ‘Persuasive’.
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).
One of the features of the Australian constitution is that is it structured in a way that in theory reflects the rule of law. This doctrine, the separation of powers, doctrine is assumed to be a fair structure of government as its principles suggest that power does not lie with one branch, but is spread out amongst the three (legislative, executive and judicial.
Judicial Precedent "Within the present system of precedent in the English legal system, judges have very little discretion in their decision making." Judges have always been relied upon to interpret and apply the law. Therefore, their decisions should be fair and consistent so as the individuals seeking legal remedies would have more faith in the judicial system of the state. AS the UK has not a very complete and/or codified constitution, this doctrine is very much relied on as contrasted with other countries which seemed to have provisions for virtually any kind of offence, like France or the US where judges had only to refer to legislation.