I enthusiastically react your electronic mail about the issues of Australian legal system. As I know, you make ready to travel and populate in Australia ; nevertheless ; you feel baffled and concerned about the differences of legal system between Vietnam and this state. With the valuable experiences I accumulated in my ain class, I will assist you broaden a general apprehension about Australian legal system, trusting that you may go more confident and optimistic when life in a new environment. In visible radiation of the clip bound, I merely select three typical facets which I suppose that they are good and familiar to your legal cognition, viz. the separation of powers ; the function of high tribunal in Australia and finally
- The separation of powers in Australia ( SOP )
The rules of SOP were established as philosophical concepts in the times of Aristotle and they foremost referred to the thought of intercrossed authorities emanating from a figure of the constitutional signifiers in Ancient Greece’s provinces. Subsequently, John Locke and Barron Montesquieu formulated and developed them as a philosophy during the century of 17Thursdayand 18th. In 2nd treatise of civil authorities, John Locke acknowledged that the corruptness would be where the same people retaining the powers to do jurisprudence every bit good as put to death them. However, Locke’s attitude was simply a portion of the development of English extremist tradition. Until 1748, after sing England, Montesquieu articulated the SOP more explicitly by adverting the cardinal issues of separation in the spirit of Torahs. This sociologist recognized that English autonomy was maintained by virtuousness of its institutional agreements. Furthermore, Montesquieu indicated that there were separations of power between three primary variety meats of English authorities and some relevant affairs such as the division of the sovereign and parliament in the procedure of legislative assembly and the decision-sharing authorization of Judgess with juries. From Montesquieu and Locke’s thoughts, this philosophy s determined that the powers of authorities is divided clearly into three subdivisions, including legislative, executive and bench. Alternatively, SOP is considered as one of basiss of built-in authorities in many states’ fundamental law. It evolves from the hope to curtail the concentration of authorization on any weaponries of authorities for the intents of avoiding tyranny and corruptness stemming from the opportunities unbridled authorization offers.
In fact, the modern “ Westminster-based” systems do non use purely the philosophy of separation of powers. In Australia, the first three chapters of the fundamental law focal point on depicting primary maps and duties associating to three variety meats of authorities. Specifically, Parliament retains the authorization of legislative assembly for doing jurisprudence, executive is established in the signifier of Ministry in administrating jurisprudence and finally tribunals possess judicial power to construe jurisprudence. Notwithstanding an expressed construction, the Australian fundamental law does non wholly adhere to this philosophy because the legislative assembly and the executive are non wholly distinguishable. To explicate more to the full, Australia maintains the system of authorities duties, which comply with the rule that the executive shoulder duties to legislature. First, the legislative assembly can confabulate authorization and depute legislative to executive authorities. InVictorian Stevedoring and General Contracting Co.V.Dignan,it was admitted that legislative power could be delegated to the executive subdivision. The High Court asserted that the executive is a physical portion of the legislative assembly and therefore some of its power may be allocated by the legislative assembly. Particularly, the issue of ordinances under an Act must be enacted by the Parliament. Similarly, the legislative assembly could restrict or reject some governments by the executive by virtuousness of following new Torahs to that consequence. Additionally, inEvan V Chadwick, authorities are accountable for replying to the parliament’s demands. Apparently, the aforesaid instances concede that the separation of both weaponries is non matter-of-fact and reaffirm that the Australian fundamental law permits to confabulate legislative power on the executive under the certain fortunes determined by the legislative assembly. Second, SOP of these subdivisions is losing the curates of authorities must be ranks of elected legislative organ. Section 64 of the Australian fundamental law provinces “after the general election, no curate of province shall keep office for a long period than three months unless he is or becomes a Senator or a member of the House of Representatives” . It is obvious that the demand of the curates to sit in the parliament establishes a close connexion between the executive and legislative assembly in Australian legal system. Despite the fact that both weaponries are tied together, the fundamental law provides a specific case, which shows a physical separation of executive and legislative assembly. Pursuant to subdivision 44, Part ( IV ) is stipulated to unfit the members of the parliament in instance they “hold any office of net income under the Crown or any pension collectible during the pleasance of the Crown out of any of the grosss of the Commonwealth” . InSykes v. Cleary and Others,Independent MP-Phil Cleary was disqualified because of “holding an office of net income under the Crown” . Then, the tribunal highlighted that the purpose of subdivision 44 was to separate executive impacts from the legislative assembly.
In comparing to the relationship between the above-named variety meats, the bench in Australian legal system is wholly independent and separated from the remainder of authorities. As celebrated above, the connexion of the executive and legislative assembly derives from the British construct of responsible authorities. Therefore, both subdivisions do non hold a clear separation. In contrast, there is a important differentiation between the bench and other variety meats on the land that the Australian fundamental law besides draws from the American construct of Federalism. The whole chapter III of the fundamental law and subdivision 71 have recognized this rigorous separation from federal tribunals with the Ministry and the Parliament. InNew South Wales v Commonwealth,the High Court ruled that this portion of fundamental law does concentrate on the separation of judicial powers. More specific, they contain two cardinal rules in relation to the independency of the bench Australian legal system: the tribunals mentioned in chapter III can non enthrone with non-judicial power and federal judicial power can simply be wielded in the tribunal mentioned in chapter III. In regard of the first rule, its intent is to assist the judiciary prevent from transcending their powers and exerting authorization of other weaponries. In kernel, the bench retain the judicial power to settle contentions, ascent the facts for protecting right, autonomy and poorness every bit good as range a concluding determination. In instance the tribunals exercise administrative maps, the independency of the bench will be negated. Consequently, the philosophy of SOP will be violated because the tribunals do non execute their rule function in protecting and implementing the regulation of the jurisprudence. Nevertheless, the fact indicates that some exclusions could originate and let the tribunals to exert non-judicial power, viz. the tribunal exerting the incidental power for the execute of judicial power, superior tribunals ordaining procedural regulations and Judgess of a federal tribunal exerting non-judicial power in their capacity. It is of import to observe that these powers are non performed as an independent map. InQueen Victoria Memorial Hospital and Thornton,the High Court states that these powers are incidental in the executing of judicial power. As respects the 2nd rule, federal legal power shall merely be granted for the chapter III tribunals. This rule aims to divide the
- The jury system in Australia
In Australia, the jury system regularly refers to the “jury trial” or” test by jury” in order to separate with bench test where Judgess make finding. Actually, its origin derives from England when being foremost introduced in the 13Thursdaycentury. Initially, condemnable guilt was determined by irrational methods, including test by ordeals, conflict or compurgation. However, in visible radiation of inhuman and merciless interventions, these adjudications finally faced intense unfavorable judgments and eliminated in 1215. At the same clip, despite looking in the condemnable and civil instances, the jury was seen as a agency of cogent evidence but non established as a test to find the truth. Particularly, based on the consent of parties, a group of 12 work forces was chosen to play functions as informants to the truth and reply a inquiry related to the fact from their ain apprehensions of the difference. Furthermore, the jury was simply considered as a mode of pull outing information alternatively of a agencies to safeguard the autonomy of the topic and hence the accused could choose to seek it without any irresistible impulse. However, by the mid-15th century, there was considerable alteration in its nature as firsthand informants refering the fact. Notwithstanding being summoned from the territory, twelve work forces in the jury were required to non hold the dispute’s cognition in inquiry every bit good as exercising judgement on grounds given under curse. Finally, until half of the seventeenth century, the jury system in England developed strongly and it was in signifier of a tribunal that would find the grounds of facts before the jurisprudence was applicable. The farther important point is that juries were foremost admitted to be independent from the external force per unit areas in the support of finding an accurate finding of fact. With these immense developments, the jury test in England bit by bit established the common criterion and go the rational method in finding serious condemnable guilt of the common jurisprudence states. During the 19Thursdaycentury, this theoretical account of the jury system was recognized in Australian settlements. Specifically, the first jury test in Victoria was established in 1839 and so the jury system was for good organized in 1847. Meanwhile, the procedure of settling jury test in the NSW seemed more drawn-out or painful. Because the NSW was a inmate settlement, it was impossible to represent a jury of disinterested free work forces in the eighteenth century. Until 1807, when the Governor conceded that ‘eligible citizens for jury service were available in sufficient Numberss, the construct of jury test was bit by bit developed in the NSW. In 1839, statute law was adopted to let condemnable affairs of fact determined by a jury of 12 or more. Then, this acknowledgment was consolidated by the Juries Act 1847 ( NSW ) confabulating a right on jury test in condemnable adjudications. Similarly, Queensland, South Australia, Tasmania, and Western Australia adopted the fundamental law of jury test prior to the terminal of the 19Thursdaycentury.
The jury test in Australia can be used for both condemnable and civil instances. In regard of condemnable instances, the categorization of all condemnable offenses against the jurisprudence of provinces or the Commonwealth is dependent on whether they can be heard by a jury or non. Typically, chargeable offenses may be tried on an indictment after a preliminary hearing to find whether the grounds is adequate to put the accused on a test. Therefore, these are often serious offenses, which can be heard by a jury. Section 80 of Australian fundamental law states “the test on indictment of any offense against any jurisprudence of the commonwealth shall be by jury” . In contrast, non-indictable offenses ( or drumhead offenses ) may be prosecuted by a civilian or a police officer and so tried summarily by a magistrate sitting without jury. In fact, the process of jury tests is conducted through the undermentioned stairss. First, an chargeable offense will come before a justness or magistrate before a committal proceeding to find whether grounds is equal to set him on test