TLAW 401: Business Law
Australian Court System: Structures and problems
Ashvinabahen Jitendrakumar Patel
Student ID 20185012
The Australian Constitution.. 3
Sources of Law.. 4
Statute law: 4
Common law: 4
Other Sources. 5
Hierarchy of Australian Legal System… 6
Federal Judicature. 6
State and territory courts. 6
Operation of the Australian legal system… 7
Critical Analysis of the Australian Court System… 7
The legal system of Australia also known as ‘Common Law System’ is established on the model which was inherited by the countries colonised by the British particularly the commonwealth countries and the U.S. Historically, the colonies of England were treated in two ways: local laws were respected in a colony acquired by conquest however, the British parliament were able to make amendments in the local laws. On the other hand, British laws were implemented in a colony acquired by settlement because they were supposed to be desert and uncultivated. The new colony of New South Wales was treated as the latter and the English and British parliaments passed the acts about New South Wales and Australian Court System between 1823 and 1828. (Carvan, 2015, pp. 31 & 32).
The Australian Constitution
The Australian Constitution consists of rules that control the power, authority and operation of the Parliament. Commonwealth Constitution is the first institution of law at the federal level and each state in Australia has its own constitution. The Commonwealth Constitution consists of federal government, the federal parliament, and the federal courts, the territories, and the creation of new states. Thus, in the political and legal system of Australia, the Commonwealth Constitution is the fundamental document of empowerment to an extent that where Commonwealth and State pass conflicting laws, Commonwealth law trumps the State law.
Sources of Law
The source from which the laws are derived and laws are created is discussed here. In the Australian legal system, the two significant sources of law are Statute Law and Common Law that are discussed below:
Statute law: the body of law enacted by the nine parliaments (one Commonwealth, six state and two territory), for example: – state legislation such as the Goods Act 1958 (Vic) and Commonwealth legislation such as the Competition and Consumer Act 2010 (Cth).
Local councils, university councils and other statutory authorities established under relevant legislation can also make laws related to their operations through law making power delegated to them by the parliament. Such regulations, rules, by-laws, guidelines, orders and ordinances produced by these bodies pursuant to the provisions of the relevant acts, are called ‘subordinate’ or ‘delegated’ legislation.
For example, guidelines of the Australian Competition and Consumer Commission (ACCC) and rules of the Australian Securities and Investment Commission (ASIC) have the same force of law as statutes.
Common law: the body of non-legislated laws that derive from the courts at federal, state and territory levels are called common law.
– Decisions of the High Court;
– Decisions of any Australian state and territory Supreme Courts; and
– Decisions of the federal and family courts (The Australian Legal System, n.d.).
Source: (The Australian Legal System, n.d.)
Australian law is gradually influenced by the international law due to globalisation of contract and trade laws because Australia is or will be a signatory to several multinational conventions and treaties, reciprocal and bilateral arrangement and memorandum of understanding with other trading nations. Though Australian legal system gives very little weightage to Customary law but they are a significant source of law because they refer to a body of unwritten rules that are part of daily life of a particular community or group which follows such rules unarguably since generations. Hence these customary laws become of vital importance because Australian population consists of various ethnic groups. The debate continues as to make such customary laws as part of Australian law since Australian Law Reform Commission report of 1986 but till date, very limited recognition is given to indigenous laws but looking at the flow of immigrants, sooner or later these laws will become integral part of Australian legal system.
Hierarchy of Australian Legal System
Source: (Australian Legal System Hierarchy, n.d.)
High Courts and such other courts may be created by the Parliament as and when required as the Constitution of Australia entrusts such power on to the Parliament. The appointment of the judges of the High Court is made by the Governor-General in Council acting on the advice of the Federal Executive Council. The High Court interprets and applies law of Australia, decides matters of federal significance together with challenges to the constitutional validity of laws and hears appeals, by special leave, from Federal, State and Territory courts.
State and territory courts
The jurisdiction of the Australian state and territory courts extends to all the matters brought under state or territory laws. However, where the federal parliament confers jurisdiction, state and territory courts also handle some matters arising under federal laws. Most criminal matters whether arising under federal, state or territory law, are dealt by the state and territory courts. Each state and territory court system operates independently.
Operation of the Australian legal system
Australian legal system treats domestic or international citizens residing in Australia equally before the law and ensures that every person is protected against any unfairly judgement of the government or its officials. Inherent within the British legal system, Australian courts also work on ‘adversarial’ system which comprises of two parties that present their case against one another and the third party called judge or the magistrate presides the case directly but the witness is not handled by the judge directly in the adversarial system. The judge makes the decision after carefully listening to both the parties and after cross-examination of the witnesses by both the parties. However, in other countries like France, ‘inquisitorial’ system of court prevails in which the judge personally examines the evidence and questions the witnesses until the judge is satisfied to make a decision. Depending upon the power entrusted, courts interpret and enforce the law and perform the function of a judiciary in the Australian legal system which consists of hierarchy of courts entertaining cases of different nature at different stages.
Critical Analysis of the Australian Court System
A system is said to be effective when it is easily accessible to every individual without much pain and outdoor assistance. Almost every individual consults legal service provider to get access to justice and this makes it difficult to analyse and criticise the aspects of the legal system that create barriers to the individual in accessing justice. These advocates are used to the obstacles that they regularly face and they very well know how to overcome them and for this they charge hefty fees. This approach also creates a misconception that justice is guaranteed if legal assistance is provided regardless of the merits of the case and an individual is unaware of the many possible forms of injustice that may follow even if the service of an advocate is taken. There are other fundamental and equally critical issues like complexity of rules of courts and court forms that reduce access to justice for litigants, especially those who are unrepresented. The other prominent issue in the Australian legal system is the cost and delay of legal proceedings. However, some courts have taken this issue seriously and have introduced case management system to streamline legal proceedings, imposed a timeline for the proceedings and encouraged early resolution of disputes.
The present issue that the Australian legal system is facing is lack of availability of interpreters due to lack of funds. Tony Rossi from South Australia’s Law Society said “You cannot have justice without the person understanding what is going on. What can sometimes happen is that an interpreter is not available at the time, that’s largely as a result of a shortage. If an interpreter is not available, that means that the matter is delayed, if someone is in custody there is the possibility the person remains in custody longer than is required” (Gage, 2018). Such injustice reveals the failure of the Australian legal system. The emergence and proliferation of tribunals has tackled these issues to a certain extent but a lot more has to be done. Alternative Dispute Resolution (ADR) mechanisms such as mediation, pre-trial conferences and pre-trial conciliation, are availed to the parties by consent at an early stage in the proceedings to avoid disputes from going to hearing to reduce the work load of the courts and it has produced good results.
Diceyan theory of Rule of Law is criticised particularly because of his perception of the sovereignty of the parliament and the supremacy of the Rule of Law. As Australian constitutional law is focused on imposing restrictions on the government, ensuring control on application of extreme and arbitrary power, this criticism becomes significant. The express and implied constitutional restrictions to Commonwealth powers help to balance the Commonwealth constitutional powers. By applying judicial reasoning either through the words of the Constitution or precedent, the High Court must balance these powers and restrictions. Recently, as a response to social or political issues such as terrorism or illegal immigration, the Federal Parliament has sought greater discretionary powers (eg the ASIO Act 2003, and ASIO Amendment Bill, 2004) (Hunter-Schulz, 2005).
Additionally, some common issues with the Australian legal system are like inappropriate division of power, excessive power entrusted to the High court that sometimes create trouble for the government in running the country and no provision for independent appraisal of the performance of the courts in the legal system which affects the quality of judicial orders and opens door for corruption.
The Australia legal system has advanced into more contemporary and sophisticated system over the years. At least, it can be said that when it comes to judicial system, Australia walks shoulder to shoulder with its European counterparts. However, the judicial process should be made simpler that even if a litigant is unrepresented, he gets proper justice. The issue of cost and delay in proceedings is tackled well by introducing case management system and imposing timeline for the proceedings. The lack of funds adversely affects the judicial system and requires coordination between the government and the judiciary. The courts are also overpowered to an extent that they can be a hurdle in running the country by the elected government. However, the Australian legal system is flexible to adapt with international laws which will benefit the country in terms of international trade and economy.
- Australian Legal System Hierarchy. (n.d.). [image] Available at: https://www.hierarchystructure.com//wp-content/uploads/2013/11/Australian-Legal-System-Hierarchy.jpg [Accessed 10 Jun. 2018].
- Carvan, J., 2015. Understanding the Australian Legal System. 7th ed. Pyrmont, NSW: Thomson Reuters (Professional) Australia Limited
- Gage, N. (2018). Lack of Aboriginal interpreters ‘affecting justice’ in SA courts. [online] ABC News. Available at: http://www.abc.net.au/news/2017-03-01/lack-of-indigenous-nterpreters-keeping-aboriginal-people-prison/8313176 [Accessed 1 Mar. 2017].
- Hunter-Schulz, T. (2005). Rule of law, separation of powers and judicial decision making in Australia: Part 1. [online] [email protected] Available at: http://epublications.bond.edu.au/nle/vol11/iss1/5 [Accessed 9 Jun. 2018].
- November 2013. Australia’s legal system. [online]. Available from: https://www.lawteacher.net/free-law-essays/australian-law/australias-legal-system.php?vref=1 [Accessed 5 June 2018].
- The Australian Legal System. (n.d.). [ebook] Oxford University Press ANZ, pp.6-7. Available at: http://lib.oup.com.au/he/samples/ciro_LAB4e_sample.pdf [Accessed 10 Jun. 2018].
- UK Essays. November 2013. The Australian Legal Systems. [online]. Available from: https://www.ukessays.com/essays/australian/australian-legal-systems.php?vref=1 [Accessed 5 June 2018].
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