The Australian legal system is based on a cardinal belief in the regulation oflaw, justness and the independency of the bench. All people ofAustralians and non Aussies are treated every bit before the jurisprudence and precautions exist to guarantee that people are non treated randomly or below the belt by authoritiess or officials.Principles such as procedural equity, judicial case in point and the separation of powers are cardinal to Australia ‘s legal system.
The common jurisprudence system, as developed in the United Kingdom, forms the footing of Australian law. It is distinguishable from the civil jurisprudence systems that operate in Europe, South America and Japan, which are derived from Roman jurisprudence. Other states that employ fluctuations of the common jurisprudence system are the United States, Canada, New Zealand, Malaysia and India.
The main characteristic of the common jurisprudence system is that justice ‘s determinations in pending instances are informed by the determinations of antecedently settled instances.
Consitution of Australia
The United Kingdom passed the Commonwealth of Australian Constitution Act 1900. The important of the Act was that it created a federal Commonwealth compraising the Commonwealth of Australia and the provinces. It besides incorporated the fundamental law which came in to consequence on January 1901. The Australian Fundamental law of 1901 established a federal system of authorities, under which powers are distributed between the federal authorities and the provinces Itdefined sole powers ( puting the federal authorities with the sole power to do Torahs on affairs such as trade and commercialism, revenue enhancement, defense mechanism, external personal businesss, and in-migration and citizenship ) and coincident powers ( where both grades of authorities are able to ordain Torahs ) . Thestates and districts have independent legislative power in all affairs non specifically assigned to the federal authorities. Where there is any incompatibility between federal and province or district Torahs, federal Torahs prevail. Federal Torahs apply to the whole of Australia.
Seperation of powers
Regulating Australia needs tonss of power. The Constitution says that this power is divided between three groups of people so they can equilibrate each other. Each group checks the power of the other two. This division of power Michigans one individual or group of people taking over all the power to regulate Australia.
Legislative power means the power to do Torahs and is concentrated in the Parliament. Executive power means the power to implement Torahs and is given to the authorities. Judicial power gives the High Court power to make up one’s mind whether Torahs are legal harmonizing to the Constitution.
Division of Powers
The jurisprudence devising powers which are non stated in the fundamental law as belonging to the commonwealth remains with the province.The powers are divided between the State Parliament and the Commonwealth parliament.There are some countries where both the commonwealth and the provinces have power to do Torahs these are coincident powers, for illustration, the revenue enhancement power. The province can nevertheless be excluded from these countries if their jurisprudence are in consistant with those of the commonwealth. Some powers are stated to be sole to common wealth. These includes defense mechanism powers, the power to enforce exercising and imposts dudies, the currency, coin age and legal stamp power and devising of jurisprudence for the authorities of a district.
The commonwealth is irestricted on countries for which it can do Torahs, the province can do Torahs on the commonwealth countries every bit long as they are with in the juristiction of the province, where a commonwealth has non been specifically given a power to pass, so those staying powers are sole to the provinces, for case motor jurisprudence, Criminal jurisprudence and contract jurisprudence. Most concern jurisprudence are made as province Torahs
The Commonwealth Parliament
The Parliament is at the very bosom of the Australian national authorities. The Parliament consists of the Queen, represented by theGovernor Generaland two Houses ( theSenateand theHouse of Representatives) . These three elements make Australia a constitutional monarchy and parliamentary democracy.
There are five of import maps of parliament:
- to supply for the formation of a authorities ;
- to pass ;
- to supply the financess needed for authorities ;
- to supply a forum for popular representation ; and
- to size up the actions of authorities.
TheGovernor-Generalis appointed by the Queen on the advice of thePrime Minister.The Governor-General performs a big figure of maps which are defined by the Constitution, but autumn approximately into three classs: constitutional and statutory responsibilities, formal ceremonial responsibilities, and non-ceremonial societal responsibilities. On virtually all affairs, nevertheless, the Governor-General Acts of the Apostless on the advice of the Ministry.
The Senatehas 76Senators– 12 are elected for each of the 6 provinces, and 2 each for the Australian Capital Territory and the Northern Territory. State Senators are elected for 6 twelvemonth footings, district Senators for 3 twelvemonth footings.
Historically, the Senate has been regarded as a State ‘s House: the States enjoy equal representation in the Senate, irrespective of their population, and State affairs are still of import to Senators.
The modern Senate is a really powerful Chamber. Bills can non go jurisprudence unless they are agreed to in the same footings by each House, except in the rare fortunes of a dual disintegration followed by a joint posing of both the houses
The Senate has a extremely developedcommission systemand Senators spend much of their clip on commission work.
The House of Representatives
The House of Representativeshas 150Members– each stand foring a separate electoral division. Members are elected for footings of up to 3 old ages.
The most typical characteristic of the House is that the party or group with bulk support in the House forms the Government. The answerability of the Government is illustrated every sitting twenty-four hours, particularly duringQuestion Time.
Members have many other maps. They are involved injurisprudence devising,commission workand instand foring their voters.
ThePrime Ministeris appointed by theGovernor-General,who by convention under theFundamental law,must name the parliamentary leader of the party, or alliance of parties, which has a bulk of seats in theHouse of Representatives.This bulk party becomes the authorities and provides the curates, all of whom must be members of Parliament.
The Federal Executive Council, referred to in theFundamental law,comprises all curates, with theGovernor-Generalpresiding. Its chief maps are to have ministerial advice and O.K. the sign language of formal paperss such as announcements, ordinances, regulations and statutory assignments.
TheFundamental lawprovides for the constitution of theHigh Court of Australiaand such other tribunals as Parliament may make. The Judgess of the High Court are appointed by the Governor-General in Council ( moving on advice of the Federal Executive Council ) .
The maps of the High Court are to construe and use the jurisprudence of Australia ; to make up one’s mind instances of particular federal significance including challenges to the constitutional cogency of Torahs ; and to hear entreaties, by particular leave, from Federal, State and Territory tribunals
State and district tribunals.
Australian province and district tribunals have legal power in all affairs brought under province or district Torahs. They besides handle some affairs originating under federal Torahs, where legal power has been conferred by the federal parliament. State and district tribunals trade with most condemnable affairs, whether originating under federal, province or district law.Each province and district tribunal system operates independently.