Overview of the Australian Legal System - Term Paper Example

This law is made by parliament, either from the Federal or the State parliament. The laws initially start as bills, and have to be passed by the two houses for approval before they become acts. The acts are then signed by the governor-general on behalf of the Queen, making the act legislation from that time. The federal parliament is tasked with the role of making laws for limited issues such as defence, taxation, international and interstate trade, immigration, marriage and divorce, industrial arbitration between states and bankruptcy (Bailey et al, 2011). On the other hand, the state parliament is given jurisdiction over all other remaining areas such as education, health and transport. Most of the power however rests on the Federal parliament since it is them that control most of the finances of the country. In that connection, Federal courts have jurisdiction over taxation, bankruptcy, marriage and divorce, industrial relations and constitution law, while the State and Territory courts maintain the jurisdiction over their own laws as stated herein (Redlich, 2013).

Common law

The Australian common law mirrors that of the British, and is developed in the courts on the basis of precedents. Such courts which may use precedents are known as courts of records. In case an act of parliament is passed in contradiction to the common law, the statutory law takes precedence and overrides the common law (Boggs, 2017). Again, it is unlawful for judges to rule against statutory law in an attempt to develop common law, but they nevertheless have the power to give an interpretation to the statutory law, leading to the formation of precedents from such interpretations (Finn, 2013).

Overview of the courts system

Federal and state courts and tribunals

The courts system in Australia is hierarchical as described in the diagrams below

Federal court system

State and Territory system

From the federal court system is the high court which is the highest Australian court in the land. It deals with constitutional matters and appeals from the lower state or federal courts. The federal court of Australia has an appellate division for hearing some appeals from state courts which deals with federal jurisdiction (Thwaites, 2017). Its divisions include the general division, dealing with taxation and bankruptcy cases, and the industrial division, dealing with issues related to federal industrial relations. Family court of Australia deals with marriage issues, divorce, maintenance of spouse and child and cases of child custody. The decision from this court requires a three judge bench for it to hold (Parker, 2017).

For the Statutory and Territory Court systems, their hierarchical distributions in different states are as shown in the table below

The lower courts deal with criminal and civil matters in Victoria, South Australia, Queensland, and the Australian Capital Territory. Other territories and states have two courts at this level which separately deal with civil and criminal matters. These courts are presided over by magistrates and rulings made without the help of the jury. Other less serious criminal offences such as drug possession, traffic offences or shoplifting are presided over by the lower courts. Other serious crimes need agreement for the lower courts to hear them. This court also hears preliminary hearings for offences which are more indictable. Civil matters, which are general legal proceedings not related to crimes are heart in the lower courts, but with limit to the dollar value of the matter at hand. The values also vary in relation to the territory or state (Maqbool, 2017).

Children’s Court is charged with the duty of hearing all children’s cases except the crimes which are most serious. In criminal cases, one is considered a child if their age is above 10 but under 17 at the time the alleged crime is committed, and under 18 at the time of their appearance in court. Other cases considered a person a child when under the age of 17 generally. The possible cases that can appear in this court include orders for child protection and children who have been accused of stealing a car among others (Mohammed, 2017).

Coroner’s court handles cases such as fires and unexplained deaths. The coroner thus has the powers to order an inquest for determining the cause of either fire or death and is able to commit s suspect to be subjected to murder trial or arson or manslaughter. Intermediate courts are presided over by judges. They possess original jurisdiction over all the criminal cases, but major on most serious ones in including civil cases whose dollar rage values are limited. Most criminal cases are presided over by juries, unless the defendant has pleaded guilty at the point of committal hearing, in which case, the defendant is expected to appear at the intermediate court where one judge will sentence him/her. For civil trials, all the parties involve can ether choose a six-bench jury or one judge decides the case alone as the law requires.

The superior courts for each state are the supreme courts. Either a jury or a judge is mandated to preside over these courts for all cases of crime, except for cases where the defendant only appears for sentencing. For civil trials, either a judge presides over it or a jury and a judge as the parties involved sees it fit. The jurisdictions of the Supreme Court include criminal offences which are most serious such as treason or murder and the civil cases whose dollar values are unlimited. Supreme courts are also courts of record, in that decisions made from them can be referred to in future cases as precedents. The court of appeal deals with all appeals from the cases originally coming from the Supreme Court and lower courts.

Overview of the types of Australian laws and how they are created

The first and major type of the Australian law is the constitutional law which was provided by the legislative power of the Australian commonwealth, and is vested on the federal parliament which is made up of the queen, a house of representatives and a senate. In relation to the legislative process, the queen has a role of granting the Royal assent for a given legislation to become a law. This power can as well be exercised by the governor-general in her behalf. Appeal relating to constitutional matters can be granted by Australian courts. There no bill of rights granted by the Australian constitution, while the express rights in the constitutions are limited in number. The other type of law is the state law, which is created by the parliamentary counsel. Others include the common law which is precedent laws created by judges and the international laws, which also form part of the Australian legal system.

Australian Contract System

Legal Issues Involved in the Australian Contract

There are 5 elements which are essential for a contract formation to be legally binding in Australia. The first is the agreement between the parties involved. In this case, the law outlines that there cannot be a unilateral contract, thus the contract must involve at least two parties. Secondly is the consideration, in which a bargain requirement must be provided as evidence. This can be in the form of property, money, services, and a promise to undertake or decline a given act in exchange of a valuable thing (Deacons, 2017). Thirdly is the capacity, which is the ability to enter legal agreements such as being financially stable in cases where finance is involved, legal age and being of sound mind. The fourth requirement is the intention, in which the parties involved must state the reason for their contract and what they intend to achieve. The final element is the certainty, where by the contract has is certain to come to successful completion, is clear and binding to all the parties involved. In the absence of these elements, the contract agreement is not legally binding and should not be enforced as a legal contract.

A term of contract may be implied ‘in fact’ in order to give the presumed intentions full effect for the parties under contract. These terms are tailored and are therefore unique to each contract in question. They are thus based on the intentions of the involved parties. Such terms must be equitable and reasonable, must have a business efficacy, thus business contracts can only be operated by those who have shown business competence. The implied contract must also be obvious, clear and consistent. For clarity purposes, the contract should be expressed precisely, while for consistency purposes, it should not contradict any term that has been expressly laid down in the contract (Fox, 2017).

Contract Essentials

There are two terms which are essential to Australian contracts. These include terms implied in law and terms implied in custom. The former deals with terms which are implied automatically in particular contracts of legal principles, instead of the intentions derived from the parties involved in the contract. In order to imply a term in law, it is subjected to a test to see if its omission will diminish the rights of the involved parties to a significant level. This is known as necessity test. On the other hand, the latter, which is terms applied by custom, shows the existence of usage or custom capable of justifying the implication of a given term to become a contract to remain a question that is to be proven by facts (Parker, 2017). Evidence has thus to be provided that the implied custom is a well-known one and acquiesced such that all the participants in such contracts can be presumed to have had an importation of the term from the contract. As such, the custom can only be used as inference in cases where the individual acts are in large numbers, showing a clear understanding of the established course of business. The existing express term can thus not be contradicted by the implied term. A person may however still be bound to a custom even if he had not any knowledge about it (Bell, 2017).

Application Principle

In the newspaper article, there was a breach of contract which was agreed upon between Mrs. Ryder, the person offering the contract and Reeves, the contractor. Mrs. Ryder made several attempts to have her life taken through a contract deal with Reeves, a friendship that began the hospital in the hospital where both were admitted at one point. Due to continued depression in her life, possibly resulting from her sickness and other life’s challenges, she was willing to take her life from this present world. Her willingness to pay off any requested amount proves the fact that her financial status was fine. In an attempt to meet her demands, Reeves promised to contract a hitman to carry out the duty. This is like a sub-contract under the main contract, in which the main contractor in not directly involved in executing the duty in question. While this is acceptable under the contract law, it didn’t work for Mrs. Ryder who waited in vain for the many promises given by the contractor.

Considering the case from the contract angle, there was breach of agreement by Reeves, and the court charged him for being guilty of breaching the contract agreement. While the contact met all the legal issues and the essential elements listed above, its actuation execution did not take place, thus going against the contract law. Again, Reeves was guilty of spending money given to him by Mrs. Ryder for a job not done. The judgment given in relation to the case was thus in like with the contract laws of the land, when viewed from the contracts perspective.

Case Law

The case in the article is similar in its binding nature to that described by Stuart and Butters (2017) in their article “when contract formation puts you in a bind”. They describe a case of MacInnes v Gross in which £11.7m was claimed on the basis of an oral contract which was allegedly made over dinner in a restaurant known as Mayfair. This was then followed up by an email that bore the headline agreement terms (Stuart & Butters, 2017).

This case was however dismissed by the court due to lack of binding terms. The following points were considered by the court in doing so:

• while it is possible to make contracts anywhere, and in any circumstances, the court still has the obligation to closely scrutinize if the parties intended to create legal relations
• In case of express agreement in a context which is commercially ordinary, the burden of disproving an intention is a heavy one when creating legal relations
• In the absence of express agreement, the burden of proof is carried by the party that is claiming the obligations.
• The only available documents as a proof of contract did not testify to the fact that there was an intention to create legal relations (Stuart & Butters, 2017)

With this case law as an example, contracts are only binding to the fact that there is legal relation created in order to legally execute such a case. In the absence of such legal relations, the petitioner bears the responsibility of the loss incurred during and after such contracts.