Features of the Australian Legal System - Essay Example

What are the key distinguishing features of the Australian legal system? Discuss with reference to the Australian Constitution and the general features of overseas legal systems of which you are aware. Every country has a legal system. Legal system describes laws that every country has how those laws are made, and the process of enforcing those laws. The legal system of Australians reflects how they behave, and how they expect other individuals, organizations and governments to conduct themselves towards each other. The Australian legal system grew from Britain’s legal system in the 1770s the period when Britain was setting up colony in Australia. In the 19th century, the representatives of the six sates of Australia which include Queensland, New Southwales, Tasmania, South Australia, Western Australia and Victoria met to work for a new constitution. Through a referendum, a new constitution took effect as an Act of British parliament on January 1, 1901. This marked the foundation of a sovereign Australian legal system. The Australian legal system is based on a fundamental belief on justice, the rule of law and independence of the judiciary. Both citizens and non citizens are treated uniformly before the law and also safeguards the welfare of its people from governments interference A constitution is a set of laws that guides how a country or an organization is governed, how the country or organization decides who will be in authority and how the authority will be exercised. System of government in every country is set up by the constitution. The Australian constitution is referred to as the Common Wealth of Australian Constitution Act 1900. Australians constitution is the ultimate ruling under which Australian common wealth government operates. Other important legislations in Australian constitution include Australian Act 1986 and the Statute of Webmaster which was adopted by Common Wealth in the Statute of Webminster Adoption Act 1942. The powers of the common wealth are listed in section 51 of the constitution. In case the assembly makes laws outside these powers, they can be contested and found to be unlawful. The common wealth of Australia was created by federation /alliance of independent colonies. Under this type of government, there is division of power between state government and federal government. The division of power is set out in common wealth of Australian constitution Act 1900 (UK). AS a result, all Australians have been subject to two legal system laws: laws of the state and federal laws since federation. One distinguishing feature of the Australian legal system is the independent of judiciary. The country respects rule of law. The judiciary is independent and incorruptible and applies the law without favor or fear. In other words it can be termed as a judiciary of highest integrity and quality. In addition; Australian judges are of outstanding quality. This in general does not guarantee efficiency, efficacy or fairness in operation of the legal system but it’s considered to be a good basis. Another characteristic of the Australian legal system is that it is adversarial, which means the opposing claims of the parties to a case are usually put forward by legal representatives awaiting decisions from an independent decision maker usually a tribunal or a court. The responsibility of the decision maker is to listen to both sides of disagreement and apply the law to the disagreement. In this case the decision maker has no role in investigating the matter. This feature is obtained from the British common law system. It differs from’ inquisitorial’ system which operates inmost countries especially those of Western Europe. Under this type of system, the function of the decision maker is wider: for instance they have the responsibility of investigating the matter through questioning the witnesses and also they decide the testimony to be collected and presented. Australian legal system has more and more adopted some features of the inquisitorial system. An independent body carries out investigation especially in antidiscrimination law before the disputing parties are brought together so as to try to resolve the dispute. There is a growing tendency towards internationalization of the Australian legal practice, legal system and legal education. It always looks towards the rest of the world. Australian legal profession is taking the subsequently move toward internationalization following its swing from local to global base. Australian legal services are nowadays being exported to other parts of the globe while their lawyers obtain practice rights in many countries such as the US, UK and Asia. Australian legal education is also becoming more and more internationalized. A negative feature about the Australian legal system is the absence of a Bill of Rights. The country is unique amongst other western countries for not having a bill of rights. Proponents of human rights have abandoned the idea of constitutional Bill of Rights due to the problematic role it gives to the judiciary. Erosion of civil liberties is another not so good feature about Australian legal system. In Australia, the legislative system accommodates control orders which entail restrictions on liberty without detention and criminal convictions. In the legal system of Australia, laws are made in various ways. They include: Acts of parliament such as statute law. Another way that laws are made is development of delegated legislation by the executive which include rules, ordinances and regulations and they are made under the statute law and authority of parliament. Laws are also made through interpretation of laws by the courts referred to as common law. In this scenario, courts decide cases basing them on similar cases which have been decided in the earlier period and they usually apply those past decisions to the conditions of the case they are presently deciding. This is referred to as doctrine of precedent which creates the common law. Judges from lower courts usually follows decisions of higher courts. They can also consider decisions of equal courts, lower courts or courts from other regions. The involvement in the Australian legal system pertains to the whole society as the system controls how the Australians behave: the dos and don’ts of the people as members of the Australian society and those who make the laws are also elected by the people. Common wealth government: This consists of common wealth parliament which is elected by Australian citizens who are eligible to vote. The common wealth parliament passes laws on behalf of the citizens. Territory/state government: It passes laws on behalf of the Australian citizens. It’s elected by Australian citizens living in the state and who are eligible to vote. Local government: Local councilors usually pass the local government by laws. These councilors are elected by those people who own businesses or live in the local government region. In the Australian legal system, there are some organizations and people who are associated with the legal system. They include: courts and tribunals, state, federal and territory parliaments, government ministers, government departments, lawyers and police. Each of these groups plays various roles in the legal system and they differ slightly from each other. The High courts interprets and applies the law. It also decides cases of unique federal significance and hears appeals from the state, federal and territory courts. Australian government provides legal aid and representation to persons who can’t pay for the cost of court appearance. Certain independent agencies exist such as human rights and equal opportunity commissions, migration review tribunal which provides protection to the administrative and legal rights of the people. Australian legal system depends on a set of principles. These principles enable the society and the people to place their faith and trust in the system in promoting and protecting their interests and legal rights. Sometimes they refer to these principles as principles of natural justice. These principles include: Fairness: decisions are made based on known established laws. For instance, if laws were not passed about smoking in public, it would not be fair for an individual got smoking in public to be punished by the legal system. Equality before the law: The legal system should treat all person the same irrespective who they are. This means that the rich, the poor, non citizens should be treated the same by the legal system. Everybody should be able to access the legal system and law equally and that the law applies homogeneously to everybody. Other core principles include transparency, this means that the general public should understand ad see what happens in the legal system. Transparency also means that, tribunals and courts should be open to the public and that their decisions should not be made in the rear closed doors. Right to be heard: Individuals who are affected by legal system decisions maintains a right to present their facts and views and evidence to the decision maker. This also means that individuals accused of doing something invalid maintains a right to be told about it and that they should be provided with essential evidence put against them in order for them to be able to defend themselves against that accusation. Freedom from bias is another principle of the legal system which means decision makers should be free from any personal interest on the decisions she/ he makes. It can also be referred to as impartiality-the parties involved should not be related to the decision maker in any way. Other principles of the Australian legal system include separation of powers and judicial precedent. Australian legal system has also been influenced by other legal systems such as the international law. These are the laws that have grown at an international level and which controls the association between countries and also controls the behavior of countries towards both the noncitizens and citizens. They comprise written documents e.g. convections and international treaties for instance, The United Nations Convectional on the law of the sea, and International Covenant on Civil and Political Rights (ICCPR). Areas of human activity which require cooperation between countries have also been controlled by the international law. These areas include: telecommunications, postal services, international trade and transport. Principles such as prohibition of slavery are also included in the international laws. All countries have signed a treaty to the ICCPR which prohibits slavery in Article 8(1). One of the impacts of the international law to the Australian legal system is that what can’t and can be imported into the country has been greatly influenced by the international trade law. These international trade laws have also affected rules made by the Australian government. For instance, Australian government is prohibited to make laws that give predilection to the purchase of their products. In summary, the above captures various features of the Australian legal system. These features include good and not so good features. The most important features include equality before the law, independence of judiciary and its adaptation of the federal government. All these features have made it able for the government to provide a free and fair legal system to all Australians. REFERENCES Donald J.G. (1997) Understanding the Australian legal system: Routledge publisher, ISBN1876213183, 9781876213183 Russell H. (2008) .The Australian legal system: history, institutions and method: Pearson Education publisher, Australia, ISBN0733976581, 9780733976582 Read More