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Australian Legal System

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Introduction to Australian Legal System

The legal system of in context to the nation Australia is called as the common law system which is subjected on the model which was inherited by those nations whose growth was influenced by British Colonialism in particular the commonwealth countries. In context to the legal system of Australia, all people are subjected equally before law and it safeguards to make sure there is no unfair judgment. The courts of Australia work on an "adversarial" system which innate within the legal system of the English. The common law system of the nation operates in context to a constitutional monarchy. Under this particular concept of law, the powers are subjected amid the six states and thee national government.

Discussion on Australian Legal System

The contextual legal system of Australia's is large as well as complex, principally based on the doctrines such as separation in regard to powers, procedural fairness, and that of case law. This legal system firmly believes in as well as has supported the independence in regard to the judiciary system. Alongside it is also supportive in guaranteeing justice and that of fairness in all forms of judicial matters. The rule of law is a key element in regard to the legal system of Australia where each and every individual, Australians as well as non-Australians will be treated equally before the law[1].

The powers are defined by a ceremonial head which is known as the constitution. The constitution in regard to the Australian Commonwealth is the product of a referendum approved in between the year of 1898 to 1900 by the inhabitants of the Australian colony. It was promulgated by an Act of the United Kingdom Parliament in 1900 also known as the Commonwealth of Australia Constitutional Act. At that time Queen Victoria approved it in a form, in regard to her Royal Assent as required by the demands of conventional Constitution. The proclamation of the Australian Constitution has since been made through the Australian Parliament. It is by dissolving the power to amend the Australian Constitution from the United Kingdom making Australia capable of amending its Constitution. The Australian Constitution has successfully transformed its position as a fully independent country from six separate colonies in the colonial era. With the endorsement associated with Australian Act of 1986, the ultimate power transition from a colonial power to the present day has been marked. It has let Australia finally able to put into effect its full legal powers after this Act. Since then, the Australian legal power is not in the British Parliament’s hands[2].

There are 8 legal systems in Australia; 1 federal system and that of 8 state as well as regional systems of law, with their own court along with parliament. These 9 legal systems has 3 branches: the legislative power of government, which promotes and creates the law, the executive power that enforces the law, and that of the judicial power, which interprets as well as the law[3].

The law making powers that are not affirmed in the constitution as belonging to the commonwealth remains with the state. A federation in Australia implies a division in regard to power between the elements of the constitution that exist between the States along with federal agencies, the Commonwealth of Australia. The constitution’s important role is the division of powers between the federal and that of state legislatures. The constitution provides support to inadequate number of special powers, such as defense, foreign trade, as well as immigration. There is a long and that of the distinguished heritage of rights, freedoms, as well as opportunities described in the Terms of Reference. For centuries Australia, England in addition to other common law countries has been recognized manifold. These are the part of history associated with common law, instrumental in embodying key moments in context to constitutional history. It includes the likes of sealing related to the Magna Carta in the year 1215, the settlement of parliamentary supremacy after the Glorious Revolution in the year 1688, and that of the ratification of 1688's Bill of Rights Act. All the mentioned ones were well recognized as well as developed through the courts along with the other. Some of them were declared as well as affirmed by a historic status, developed through modern legislation[4].

The Chief Justice of the High Court, the Honorable Robert French AC, was instrumental in stating that ‘many of what we consider to be fundamental rights and that of freedoms come from the common law as well as the way in which the common law is used to explain Acts of Parliament.’ Alongside it, the laws that are made under them were meant to reduce the intrusion into these rights and that of freedoms.

To the extent that Australian law protects as well as defends rights along with freedoms, it has long been the law statutes as well as refers to the laws made by the judges. In a 2013 speech, the Honorable John Dyson Hayden (AC QC), former Australian High Court judge, discussed some of the benefits of advocacy through statutes as well as common law. He said that rules along with general law often protect rights with detailed and those of high precision rules. It directly as well as specifically attests to human rights: Universal laws along with statutory rules continue to expand. They are generally applicable and that of specially adapted to solve specific problems. Their creators managed to reconcile them with each other as well as with a larger legal system[5].

The Constitution protects few rights has additionally implied other rights. The rights protected by means of the Constitution include:

  • the jury trial right on condemnation on behalf of a Commonwealth law—s 80 offense;
  • Contained by Commonwealth—s 92 it grants the trade liberty associated with commercial intercourse;
  • freedom of religious belief—s 116;
  • Lastly, s 117 states that the rights are not discriminated against on the state source in which one lives.

The Commonwealth under Section 51(xxxi), compulsion acquires property; must be according to ‘just terms’—which is conceived as in the form of a right[6].

Enshrined in the Constitution some certain rights or freedoms are to be applied toward the attaining of political communicative freedom as found by High Court[7]. It is not absolute freedom; any law interfering with political communication needs to be reasonably suitable as well as adaptive toward serving at the legitimate end. It is an incompatible manner depends on the representative as well as the government responsible for the maintenance of the constitutional system[8]. The High Court is instrumental in stating that freedom cannot be considered as an individual right, it is best understood as in the form of a restriction that is constitutionally imposed upon legislative power[9].

The question of suffrage is also enshrined in the Constitution. The law restricting adult suffrage can be subjected if the law is properly adapted. Besides, it provides a result reliable with the protection of the judicial system prescribed by the Representative of the government’s Constitution[10].

The High Court can uphold procedural impartiality as a constitutional right of the court. Chapter III of the Constitution confers the judicial powers of the Commonwealth on the High Courts and those of other courts constitute or invest in the Parliament of federal competence[11]. In the case of Leeth v. Commonwealth, Dane and that of Toohey JJ subjected that investing in the judiciary "in court" means that the court demonstrates the necessary features of the court and observes the exercise of that judicial power[12]. That includes the obligation to act judicially. The High Court of Dietrich v. Queen influenced natural justice by the nature of the judiciary. An individual accused of a serious crime could be deprived of a fair trial if he was never represented by a lawyer[13]. In Polyukhovich vs. Commonwealth, Deane J says:

These provisions, as customary knowledge and that of Chapter III, associated with the traditional jurisdiction, remedy, and that of the procedure. It indicates that jurisdiction should be granted only to the courts designated by Chapter III. It emphasizes the purpose and meaning of the courts be adjudicated. All the jurisdictional powers will be exercised where all ideas will serve as a necessary notion. It was accepted in Polyukhovich, the separation of the constitutional powers violates attainder’s bills restricting the legislatures to take over the court’s judicial power of determining criminal guilt[14].

An essential court’s characteristics associated with procedural fairness were considered in the writings of Williams and Hume. Besides, it has potential, amongst other things. In criminal proceedings constitutional zing the innocence presumption beyond reasonable doubt’s standard is based on proof. The limitations on using secret evidence, privilege in opposition to self-incrimination, ex parte proceeding limitations, unrepresented party limitations based on the continuing power proceedings, to adversely find law or fact not been put to party limits on jurisdictional courts, and limiting court’s or judge’s power which may affect the proceedings through an actual or else in an apprehended bias. The Constitution does not protect all rights, freedoms as well as privileges according to ALRC’s Reference Terms. The reason that the Constitution expressly protects civil rights, as written in Professor Helen Irving's writings, was based on direct general reserve that includes Constitutional policy based on subsequent powers toward the enacting of policy[15].

Conclusion on Australian Legal System

Over the years, the approach of legal system regarding Australia has evolved as modern yet sophisticated system. It can be concluded that, Australian judicial system is not lagging behind its European counterparts. Diversity has been encouraged by including women who were prohibited to take on legal profession until the 20th Century, at present forms a huge part of the legal system of Australia. The ethnic minorities also form an integral part in context to the legal system of the nation.

References for Australian Legal System

Cain, Peter. "A history of Australian legal education [Book Review]." Ethos: Official Publication of the Law Society of the Australian Capital Territory246 (2017) 61.

Fisher, Douglas. "Common law and public domain approaches to water governance–an Australian perspective." In Water Resource Management and the Law. Edward Elgar Publishing, 2017.

Davidson, Sinclair. "Research Handbook on Australian Law and Economics." (2018): 335.

Bill of Rights 1688 1 Will & Mar Sess 2 c 2 (Eng). The Bill of Rights remains an important element in the rule of law in Australia, as illustrated by Cadia Holdings Pty Ltd v New South Wales (2010) 242 CLR 195; Port of Portland v Victoria (2010) 242 CLR 348.

Robert French, 'The Common Law and the Protection of Human Rights' (Speech. Anglo Australasian Lawyers Society, Sydney, 4 September 2009).

George Williams and David Hume, Human Rights under the Australian Constitution (Oxford University Press. 2nd ed. 2013) 33.

Bank of NSW v Commonwealth (Bank Nationalization Case) (1948) 76 CLR 1, 349 (Dixon J).

See Australian Capital Television v Commonwealth (1992)177 CLR106: Lange v Australian Broadcasting Corporation (1997) 169 CLR 520: APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322: Unions NSW v State of New South Wales (2013) 88 ALA 227. The High Court has saidd that freedom of association to some degree may be a corollary of the freedom of Communication: Mulholland v Australian ElectoralCommision (2004) 220 CLR 181.181. [148] (Gummow and Hayne JJ).

This is part of the second limb of the Lange test as set Out by French CJ in Hogan v Hinch (2011)243 CLR 506.

McCloy v New South Wales [20151 HCA 34 [30]. See also Unions NSW v New South Wales (2013) 252 CLR 530 of 554 [36] Ratnapala and Crowe question the accuracy and usefulness of this distinction: Suri Ratnapala and Jonathon Crowe, Australian Constitutional Law: Foundations and Theory (Oxford University Press, 3rd ed, 2012) 421.

Roach v Electoral Commissioner (2007)233 CLR 162, [85] (Gummow, Kirby and Crennon JJ). See also, Rowe v Electoral Commisioner (2010) 243 CLR 1.

Williams and Hume, above n 5, 375.

Leeth v Commonwealth (1992)174 CLR 455,486-7.

Dietrich v The Queen (1992)177 CLR 292 315, 337, 362,374

Polyukhovich v Commonwealth (1991) 172 CLR 501, 607.

Williams and Hume, above n 5, 376.

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