The Australian Legal System Of Australia

Australia 's Federal System is dynamic and the division of lawmaking power between the Commonwealth and State since 1901 has changed dramatically; Critically discuss, focussing on the major reasons for those changes.

Under the Civil Law system, the laws are written and codified that the judges have to follow verbatium. Whereas, under the common law system that is followed by Australia, India and the United Kingdom, the laws are codified, doctrine of precedents is followed but the higher courts have the power to over-rule old judgements and existing law in cases where the law breaches the basic structure. (Peterson)

An AUSTRAC resource that legal practitioners would find useful is AUSTRAC’s Public Legal Interpretations (PLIs). PLIs

The Australian Legal System was around the 1700’s when Britain brought its own legal system over when they were setting up the colonies in Australia. Over a century or so Britain began granting limited rights to set up a local legal system within the British colonies. They were granted this right, and were able to develop their own laws and legal systems. The passing of the Australian Constitution began an independent legal system that formed part of the governmental system in Australia, which took place in 1901, and while the Constitution of the Commonwealth of Australia was indeed an Act of the British Parliament, Britain's involvement in the Australian Government begun to decrease. However, there was minor propulsion for Australia to procure

Although legal formalism is a critical component to the Australian legal system, judicial creativity is essential when the legislation fails to satisfy rule of law ideals. One key example of this is that although abortion is an offence under the Queensland Criminal Code, it was ruled this year by the Supreme Court that a 12 year old was able to proceed with terminating a pregnancy in a Queensland public hospital. This case’s outcome would be viewed as incorrect using reasoning from a strict legal formalism approach, however it is justified as it demonstrates judicial creativity can be employed when legal formality and procedural legality have not been met.

The Australian Constitution is a rich amalgam of various classical political principles. The concepts of the Rule of Law and the doctrine of the Separation of Powers evident in Montesquieu’s Spirit of the Laws are both salient examples of political theses that are central to Australian Constitutional Law. The structure of the Constitution itself and decisions of the High Court of Australia unequivocally validate the entrenchment of the doctrine separation of powers in the Commonwealth Constitution . In particular, the High Court has applied this with relative rigour with respect to the separation of judicial power. The separation of the judicial power is fundamentally critical to upholding the rule of law. The High Court in Wilson v Minister for Aboriginal Affairs noted that “the separation of the judicial function…advances two constitutional objectives: the guarantee of liberty and, to that end, the independence of Chapter III judges” . Kitto J in R v Davidson also identified that the judiciary should be subject to no other authority but the law itself . This is a critical aspect ensuring the concept of legal equality is upheld. Therefore, its role clearly extends to providing checks and balances on the exercise of power by the legislative and executive arms of government . This ensures the liberty of the law and limits the abuse of the judicial system. Judicial Power is defined as “the power which every sovereign must of necessity have to decide between its subjects

The adversarial nature of the Australian court system is fundamentally implemented to ensure a fair and impartial trial for members of the public, yet this is not always the case. Access to justice, and the courts themselves, are often perceived quite variably depending on an individual’s experience with such institutions. In particular, it is often the disadvantaged in our society, such as those from low socio-economic backgrounds, youth and Indigenous Australians, who are the most neglected and disheartened by fair access to the court systems. However, this is not to say that the system specifically works in favor of educated, white individuals. The systematic approach to court processes, consisting of the apparent impartiality of judges and trials by jury, often impede the natural course of justice and do not allow for a fair and unbiased trial.

When considering why criminal law is important in achieving justice for Indigenous Australians it is pertinent to recognise that Indigenous people are grossly over-represented in the criminal justice system. Recent data suggests that Indigenous Australians aged 10 and over are 7.5 times

The Australian constitution is a set of rules laid down for the governance of the nation. These are rules are afforded special status, in that they can not be over turned in the same manner as other laws. Constitution law is supreme law in that it overrides other laws. Prior to the Australian Constitution Act in 1901, Australia was comprised of a set of territories under the rule of the British Empire.

They aim to regulate relationships between countries and their citizens. These laws may influence Australian laws to be reformed on the basis of contradicting an international law. International laws can overpower Australian law and are still applicable to Australian citizens when overseas.

Having made visits to the Supreme, District and the Local Courts, I was able to obtain a better understanding of the Australian adversarial system. This report will attempt to analyze the distinctions between the different types of courts through primary observations. The report will also assess the models of justice in operation, the triviality of the lower courts compared to the higher courts and assess court procedure in each court.

Based on the 2012 survey conducted by the New South Whales Law and Justice Foundation, it showed that around 1.7 million Australians can expect to encounter a legal problem each year and 490,000 of those people will not receive legal advice due to financial reasons or lack of knowledge. The prices for legal services have increase by 49% in the last 6 years alone. This dramatic inflation of costs within the justice system leads to increased difficulty within society to be able to afford anything but the most basic of legal representation. When people who can’t afford a lawyer turn to government funded legal assistance, they find that due to chronic funding shortages, ongoing help is often restricted to those on only the lowest incomes and even further, is only for a narrow collection of family and criminal legal

In the 6th century, the trial or ordeal began, later in the 11th century the common law developed in England and the Normans evaded England. The common law system was brought over to Australia in the year 1788. The courts of Equity were developed due to the common law courts are ‘unjust’. These courts introduced fairness into our common law system.

Many laws in Western society base their laws and constitutions of the Magna Carta. The Magna Carta stands for trial by jury. It stands for free speech, the rule of law and personal liberty. All constitutions have this written down as it is a necessity today in the 21st century. In the Australian constitution, in chapter 3, page 80, it states that “any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed”.

The adversarial nature of Australia’s court system deal with facts and legal implications. Here lies the establishment of such principles that make the law