Cases which involve interpretation of the Constitution, or where the Court may be invited to depart from one of its previous decisions, or where the Court considers the principle of law involved to be one of major public importance, are normally determined by a full bench comprising all seven Justices if they are available to sit. Other cases which come to the High Court for final determination involve appeals against the decisions of the Supreme Courts of the States and Territories, of the Federal Court of Australia and of the Family Court of Australia and these are dealt with by a full court of not less than two Justices. In addition there are certain matters which can be heard and determined by a single Justice. Most of the Court's work relates to the hearing of appeals against decisions of other courts. There is no automatic right to have an
Domitus Ulpian said, “Justice is the constant and perpetual will to allot to every man his due.” Justice is what allows a society to operate and function. It is upheld and enforced by a system of rules known simply as the law which are officially recognised and imposed on states to govern behavior. Some form of law has always existed in human history whether it be in an unwritten customary form or in a written format like a constitution (Milgate P, 2013). The law and legal system around the world has developed throughout history to the point that there are many different categories and sub categories of law. In modern day Australia, the legal system has been modelled after the English system.
This process still occurs today, but is now systemised and is controlled by Councils of Legal Education in each jurisdiction (Williams 1998). In the Australian legal system, a system of common law (case law), the doctrine of precedent is stare decisis (to go by what has been said), meaning that courts are strictly bound to follow past decisions of courts higher in the court hierarchy. Decisions from other hierarchies, for example, courts located in international jurisdictions, may be used as a form of persuasive precedent, but cannot be binding in an Australian case. The court of ultimate authority in Australia is the High Court of Australia, formed by the Commonwealth constitution. The High Court may hear appeals from the Federal Court of Australia or from respective Supreme... ... middle of paper ... ...sapproval.
However this was not just a landslide event, the Constitution of Australia set up this imbalance of powers between the Commonwealth and State governments. We will explore this further in the points discussed later in this essay. Australia before 1901 had 6 separate governments, each with their own rules, regulations and territory. There were certain rules and regulations which only further separated each government’s land beyond the distinguished borders of the newly formed state. For example the different widths of the train tracks.
However in the recent past, reason for parliamentary and federal concern has been thrust into the limelight. In addition, there has been a growing need for judicial interpretation and the ever-present reliance on convention. The Australian Constitution has several primary features. Such aspects include the preamble and covering clauses; Chapter one which establishes the Federal Parliament and the respective roles of each house; the Federal Executive Council and provisions for the Governor General are outlined in Chapter 2; Chapter 3 covers the Judiciary and establishes the role of the High Court; in Chapters 4 through 7 other issues of the constitution are founded, particularly those pertaining to the economy; and Constitutional change in outlined in Chapter 8. The preamble is an introductory statement that outlines the sources of authority and the mission, objectives and scope of the constitution.
This is strongly related to the judge-made laws. Judge-made laws or common laws rely on the doctrine of precedent. This means that the decisions made by judges in the courts are based on previous cases that have similarities with other cases. The decisions in the doctrine of precedent are normally based on the higher authority court decision. Nowadays, the Australian legal system has three powers, which are legislative, executive and judicial.
It is based on principles and doctrines such as separation of powers, procedural fairness, and judicial precedent (Akpet, 2011 p73). Judicial precedent is more commonly known as the doctrine of precedent, where judges are bound by to decide each case along the lines of similar earlier cases and decisions. If the facts of the earlier cases were not exactly the same, the judge could still compare the situations and apply a common principle or develop a new, reasonably similar principle for the new facts. In Australia where there is a hierarchy of courts, a decision of a higher court is binding on lower courts (James, Muston & Rice, 2014) Under a common-law system, disputes are settled through an adversarial exchange of arguments and evidence. Both parties and/or their legal representatives, present their cases before a neutral fact gatherer, either a judge (or judge and jury).
There is a procedure in the courts for making appeals. Separation of powers exists between officials in the courts, the parliament and the Executive. Everyone in Australia is treated equally under the Rule of Law, no matter their office or status. The Law is always changing as society changes, but it can never be perfect and cannot please everyone. The Westminster Legal System, upon which the Australian one is based, can be traced back to 1066 when William the Conqueror won the Battle of Hastings.
Accordingly, the implied right is consistent with the definitions of representative democracy and representative government. The following case, Rowe, is considered the both notions, bu... ... middle of paper ... ... limitation is necessary. In addition, it is being seen as taking account every history and context of the case in making decisions, rather simply judging the case according to the words of provisions. Gleeson CJ in Roach also stated the consideration that the historical context and circumstances in the case is also protected by the sections 7 and 24 of the Constitution. Therefore, the decision of the Rowe is consistent with the Constitution’s implied right and the notion of representative democracy in Australia.
The Australian Justice system is bound by certain rules and regulations which are integral to its role on society within Australia and its differences to the rest of the world, except for one other country whereby it follows suit. Though the laws of the Australian colonies fluctuated from the United Kingdom in countless respects from the commencements of settlement, the underlying configurations of thought mirror the common law institution as received from Britain. From those essential patterns we took from the United Kingdom we gained a legal system of which bases itself on the courtroom and the societies who run it. When it comes to the final say though these configurations we have somewhat gained from giving full reign to one individual which is the focal point of any case, he/her is the reviewer, the evaluator and the arbiter or more commonly known as the judge. This essay proposes discussions that judges are unquestionably an integral part of the Australian Justice system and divulge the key concepts and issues relating to a judges role.