The Australia Legal System free essay sample

CongressThe Australian Legal System Introduction All countries are a reflection of their histories and this is very much the case with governmental structures and the associated legal system. The Australian legal system is based on a fundamental belief in the rule of law, justice and the independence of the judiciary. All people—Australians and non-Australians alike—are treated equally before the law and safeguards exist to ensure that people are not treated arbitrarily or unfairly by governments or officials. Principles such as procedural fairness, judicial precedent and the separation of powers are fundamental to Australia’s legal system. The common law system, as developed in the United Kingdom, forms the basis of Australian jurisprudence. It is distinct from the civil law systems that operate in Europe, South America and Japan, which are derived from Roman law. Other countries that employ variations of the common law system are the United States, Canada, New Zealand, Malaysia and India. The chief feature of the common law system is that judges’ decisions in pending cases are informed by the decisions of previously settled cases. Australian law has evolved via many routes: customs of the people, legislation, case law and public opinion. And the major historical sources of law in Australia are the common law, the law of equity, statute based law and the law concerning native title. [i] Australia is a federation with seven constitutions; one for each of the six States and one for the Commonwealth. These constitutions provide for a parliament for each of the States and a parliament for the Commonwealth of Australia. [ii] The Australian Constitution of 1901 established a federal system of government, under which powers are distributed between the federal government and the states. It defined exclusive powers (investing the federal government with the exclusive power to make laws on matters such as trade and commerce, taxation, defence, external affairs, and immigration and citizenship) and concurrent powers (where both tiers of government are able to enact laws). The states and territories have independent legislative power in all matters not specifically assigned to the federal government. Where there is any inconsistency between federal and state or territory laws, federal laws prevail. Federal laws apply to the whole of Australia. In effect, Australia has nine legal systems—the eight state and territory systems and one federal system. However, it is the state and territory criminal laws that mainly affect the day-to-day lives of most Australians. Each of the federal and state systems incorporates three separate branches of government—legislative, executive and judicial. Parliaments make the laws, the executive government administers the laws, and the judiciary independently interprets and applies them. The Parliament of the Commonwealth is the federal legislature of Australia. The Australia Parliament is bicameral, consisting of the King or Queen and the two houses, the Senate (the Upper House) and the House of Representatives (the Lower House). [iii] In Australia, executive authority is vested in the Government General, who is appointed by the British monarch on the advice of the Prime Ministerthe head of the majority party in Parliament. The Government General is His or Her Majestys representative in the Commonwealth. Under the Constitution, the Government General has many important constitutional, official and ceremonial duties to perform. The judiciary is the government branch concerned with the administration of justice. It is absolutely separate from the executive branch and the legislature so as to check the concentration of government power. The Australia judiciary includes the High Court, the Federal Court, and the Family Court, and courts of the six states and two territories. The courts The High Court is the superior court in Australia. It has a Chief Justice and six other judges who can preside either individually or together. Its functions include interpreting and applying the law, deciding cases of special federal significance, including challenges to the constitutional validity of laws, and hearing appeals from the federal, state and territory courts. The Federal Court’s jurisdiction is broad, covering almost all civil matters arising under Australian federal law and some summary criminal matters. The court also has substantial and diverse appellate jurisdiction, including over the decisions of single judges of the Federal Court and the Federal Magistrates Court (in non-family-law matters) and some decisions of the state and territory courts. The Family Court is Australia’s superior court in family law. Through its specialist judges and staff, the court helps to resolve complex family disputes. It also covers specialized areas such as cases relating to the Hague Convention on International Child Abductions (which came into force in Australia in December 1998) and the international relocation of children by parents or guardians. The Federal Magistrates Court was established by the federal parliament in 1999 and conducted its first sittings in July 2000. Its jurisdiction includes family law, bankruptcy, unlawful discrimination, consumer protection and trade practices, privacy, migration, copyright and industrial law. Nearly all of its jurisdiction is shared with the Family Court or the Federal Court. [iv] Australian state and territory courts have jurisdiction in all matters brought under state or territory laws. They also handle some matters arising under federal laws, where jurisdiction has been conferred by the federal parliament. State and territory courts deal with most criminal matters, whether arising under federal, state or territory law. Each state and territory court system operates independently. All states have supreme courts and some also have courts of criminal appeal, which are the highest appellate courts at the state level. Courts known as ‘district’ or ‘county’ courts hear the more serious cases, with a judge presiding over the court to interpret and determine the law. For more serious charges it is usual for a jury (usually of 12 people) to determine the guilt or innocence of defendants. Serious offences such as murder, rape and armed robbery are usually tried in a higher court. Lesser offences are dealt with in lower courts, known as local or magistrates courts (or courts of petty sessions), where magistrates determine the guilt or innocence of defendants. In all cases, defendants are considered to be innocent until proven guilty beyond all reasonable doubt. There is no death penalty in Australia. Legal aid and representation Australian governments recognize that access to legal representation is an important element in ensuring justice for all. They provide some legal aid for people assessed as being least able to afford to cover the costs of a court appearance. The federal Attorney-General’s Department is responsible for administering funding for the provision of legal aid services for federal law matters through legal aid commissions, administering a Community Legal Services Program and managing legal aid services for Indigenous Australians. State and territory governments fund legal aid services for cases being tried under state and territory law. There are eight independent legal aid commissions, one in each of the states and territories, with a total budget of around $400 million. Funding is provided by the federal government and state and territory governments. Other revenue comes from interest earnings, contributions and fees. Human Rights and Equal Opportunity Commission The Human Rights and Equal Opportunity Commission was established in 1986 as an independent statutory organization reporting to the federal parliament through the Attorney-General. Its goals are to foster understanding about, and protection of, human rights in Australia and to address human rights concerns. Its functions include resolving complaints of discrimination or breaches of human rights under federal law and holding public inquiries into human rights issues of national importance. Australian Crime Commission The Australian Crime Commission was established in January 2003 (replacing the National Crime Authority) as an independent statutory body to work nationally with federal, state and territory agencies, principally to counter serious and organized crime. It brings together all arms of Australian intelligence gathering and law enforcement to coordinate the fight against major crime. International legal cooperation and treaties Australia seeks to promote international cooperation in the legal sector. The federal government established the International Legal Services Advisory Council in 1990 to promote the globalization of legal services. The council seeks to promote understanding of different countries’ laws, legal systems and legal institutions, particularly in the areas of trade, business and international law. It also contributes to the development of legal institutions, education and training, and legal interchanges and contacts. [i] David Barker, Essential Australian Law [ii] The Australian System of Government [iii] Donald Gifford, Understanding the Australian Legal System [iv] Federal Magistrates Court of Australia