current method of appointment of Justices to the High Court should be reformed to better serve the fundamental principles of the Rule of Law and Separation of Powers. This will be argued in accordance with the assertion that the ideal method of reform is informed by what is
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
be summed up in two points: (1) that the people (including, one should add, the government) should be ruled by the law and obey it and (2) that the law should be such that people will be able (and, one should add, willing) to be guided by it’. In Australia, there is an overlap of the three branches and it is argued there is not a significant distinction between the legislative and executive, consistent with British tradition. In the Constitution it does effectively unite the legislative and executive
A referendum has been a relatively effective mechanism in facilitating the shift of power from the States to the Commonwealth. The referendum (section 128) is a concept that aimed to change the wording in the Australian Constitution to give the commonwealth more specific powers. This is done through the passing of the constitutional alteration bill through parliament. Since federation, all citizens have the right to vote in referendums with any proposed changes either being accepted or rejected by
outcome. MABO V QUEENSLAND (NO.2) [1992] HCA 23 In 1992, the doctrine of terra nullius was overruled by the High Court in the case Mabo v Queensland (No.2) [1992] HCA 23. After recognising that the Meriam people of Murray Island in the Torres Straits were native title landholders of their traditional land, the court also held that native title existed for all the Indigenous people in Australia prior to European contact. To make the legal position of landholders and the processes that must be followed
Equuscorp Pty Ltd v Cunningham's Warehouse Sales Pty Ltd (2012) 246 CLR 498 I. Parties, Court, and Judges There is one appellant and three respondents involved in these proceedings. Equuscorp Pty Ltd (referred to as “Equuscorp”) is the appellant. Ian Haxton, Robert Bassat and Cunningham’s Warehouse Sales Pty Ltd (referred to as “the respondents”) are the respondents. This matter was heard in the High Court of Australia in front of Chief Justice French and Judges Gummow, Heydon, Crennan, Kiefel and Bell
The Internet is a revolutionary new medium that has provided people the world round a new medium of communication. In "cyberspace" as the Internet has been nicknamed, everyone can have a voice and it is relatively easy for one person to reach a very large audience. In addition to revolutionizing the way messages are broadcasted, cyberspace has also revolutionized peer-to-peer communication. E-mail and instant messaging have become a very convenient method of communication for many people, oftentimes
Question 1: The form of intention required for the creation of an express trust was scrutinized in Byrnes v Kendle (2011) 243 CLR 253. The judgements by French CJ, Gummow and Hayne JJ and Heydon and Crennan JJ, provide insight into the current legal standpoint on the relevant form of intention. Justices Heydon and Crennan found that the intention should be determined by “the words used, not a subjective intention which may have existed but which cannot be extracted from those words.” They went on
The high court has a significant impact on the lives of all Australians. In order to understands how and why the high court affects all Australian lives its necessary for us to know the role of the high court of Australia in the Australian legal system. The high court of Australia was established in 1903, its located at Canberra within the parliamentary triangle. The high court is also known as at the guardian of the constitution and the rule of law. Within the hierarchy of courts, the high court
immigration department deputy secretary said that the Australian government is Some of Australia’s legal responsibilities in regards to asylum seekers come from ratifying the International Covenant on Civil Political Rights (ICCRP). When ever Australia exercises power of effective control
provide equal protection to both sexes. However, in the High Court case of Garcia v National Australia Bank Ltd the principle in Yerkey v Jones was revitalized by expanding the doctrine of unconscionability to include a special disability, suffered by a wife who acted as guarantor upon the circumstances in which the special equity principle applies. To reach their decision, elements of the special equity were applied in Garcia v National Australia Bank Ltd. A Lack of Tangible benefit and understanding
The Australian Constitution is one of the most important documents ever produced in the history of our nation, since Federation. The constitution was established in 1901 and was written by high court judges. Section 51 is the constitution high court judges refer to most commonly today, they use the constitution to interpret laws. The Australian Government has different powers and sectors; these powers have been divided between the states and the Commonwealth government. This is referred to as the
deal with the issue of doctrinal divergence between the English origin of a constructive trust in comparison to the Australian view on the constructive trust. Within Australia, the constructive trust can be created in conditions where there was no intention to produce a trust. After giving an overview of constructive trusts within Australia, an analysis of Australia’s remedial and institutional approach to constructive trusts will be examined. Finally, this essay will consider several inferences between
The term “Court Hierarchy” is a very important word in the law world in modern society. It’s definition gives a very clear and concise meaning to the law industry. The phrase can be split into two words to be easily dealt and understood. The word “court” is from a Greek derivative “cohors” or “cohort” meaning courtyard or retinue. It’s definition from the dictionary certainly portrays the law as a very important and distinguished practice. “a. A person or body of persons whose task is to hear and
front of the High Court of Australia and ten years later the parliament passed the Native Title Act 1993. Eddie Koiki Mabo died in 1993, before the High court of Australia legislated the new act. At Eddies funeral, Bryan Keon-Cohen said “…without Eddie the case would probably never have begun” . In 1992, ten years after the case began, the High Court of Australia ruled
LEPORE [2017] Lucas Sall I Summary In 1999, a case was brought before NSW District Court, to assess the damages of a Mr Kendirjian whom had, as a result of a motor vehicle accident suffered injury, thus claiming damages via the Motor Accidents Compensation Act 1999 from a Mrs Ayoub. (Kendirjian v Ayoub) This claim, resulting in a settlement offer of $600’000 plus costs, was denied by the plaintiff, thus resulting in court proceedings. On assessment by the trial judge, Mr Kendirjian was awarded damages
On the 6th of June 1992 The high court of Australia made the decision to overturn the doctrine of Terra Nullius, Mabo v Queensland (No2) (1992) 175 CRL 1, this decision caused a very significant impact on Australia’s Law and legal History. It was the first time since British settlement in 1770 that native title was recognised in Australia for Indigenous Australians. Native title refers to land title rights indigenous Australians have with land that has cultural significance to them. The decision
settlers arrived, a lot of issues had risen as they ignored the indigenous Australians and regarded them as “not human” who owned land even though they had practiced traditions and customs for hundreds and thousands of years. The British treated Australia as terra Nullius. However due to the doctrine of Terra Nullius it states that Indigenous Australians could not sell or assign any land, nor could any individual person to retain or acquire it, besides from the distribution of royalty. According
source document for this FactCheck. In 1788, England sought to establish itself as sovereign – or the governing body – over Australian territory. There are a number of ways to become sovereign under international law. In considering what happened in Australia in 1788, Justice Brennan – who wrote the leading judgment in Mabo – focused on the three most relevant. They were: conquest – the acquisition of a territory by force, cession – an existing state transfers sovereignty over its territory to another
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