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Cases and Legislation
Australia’s legal system is based on the democratic principles and is there for protecting the commonly held fundamental values and beliefs of the society.
The system of laws in Australia has developed over a long time from the followings:
- Religious beliefs or Creeds
- Common law
- Customary law
- Received law (that means the Acts of Parliament)
Rules can are either be called as legal or non-legal.
The Courts do not have the authority to enforce the non-legal rules which are generally of social nature. For example, the rules followed by a club.
Legal rules are either in the form of Acts of Parliament (called as statutes) or can be in the form of regulations (called as bylaws) or can also be in the form of case laws made by the judges. Courts have the authority to enforce legal rules.
Conduct of a group that is socially acceptable is called as ‘Customs.'
Religious beliefs are generally reflected in terms of creeds. For example- like the Ten Commandments.
The laws of society, in a written form, are called as ‘codes.' Besides the laws, the rules regarding breach of these codes are also written therein.
It is based on the traditions of behavior which are established long ago, which are considered to be the basis of what is called as ‘acceptable behavior' in society. These laws include the religious beliefs.
Common law /case law is basically the judgments made by the judges in the courts over a period of time. These decisions can differ from received laws used in the early colonies in Australia which included the statutes/Acts of Parliament.
Legal systems are different in every country. Australia's legal system is called as Constitutional Monarchy as it has the Queen of England as the Head of State, who is being represented in Australia by a Governor-General. Australia works as a parliamentary democracy where the people of the country elect their representative to formulate laws on their behalf and this way they decide on their lawmakers.
Functions of Law
The main two functions of law are:
- Establishing and maintaining social cohesion
- Facilitate social progress in a culturally diverse society
Through this, we can provide for the social progress of the future generations and which can be done only if we formulate laws to uphold the rights and values and also provides a means to ensure those rights and values.
How do we achieve social cohesion?
- By providing laws to identify and enforce the social, economic, moral, religious, and political values of the society which are subject to change.
- By establishing the standards of what is called as the acceptable conduct and setting the sanctions for the unacceptable conduct. Opportunity legislation sets out all types of unlawful discrimination.
- By establishing the dispute settling mechanisms in order to resolve the disputes between the individuals themselves, or for the disputes between the State and individuals.
- By realizing the need for changing the laws with respect to the changing society. Over the time, the values of the society changes and the new standards of conduct are then set, which gives rise to new rights and new disputes. The Federal and State Legislature, from time to time, have passed laws to resolve these changes.
- By formulating laws to uphold the rights of individuals as well as groups in order to promote the welfare of society.
The acronym “VADER” is used to remember the ways through which we can achieve social cohesion.
The laws that we need must uphold and maintain the following:
- V Values of the society
- A Acceptable conduct by the society
- D Dispute resolution mechanisms
- E Evolving society requiring changing laws
- R Rights of the individuals and the groups
The institutions that are available with the law in order to carry out these functions are as follows:
|The Legislature L
|Parliament – which is the principal lawmaker
|The Executive E Cabinet
|there to administer and enforcing the laws
|The Judiciary J
|Judges in the courts who resolve disputes
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How can we achieve social progress?
We can achieve social progress through following ways;
- By establishing and enforcing the laws to maintain social cohesion.
- By changing the laws when there is a need for change
- By facilitating progress over one generation to the next generation.
Examples as to how social cohesion may be achieved.
- The Legislature had passed a law which made road rage as illegal thereby setting a standard of behavior which reflects the values of the society.
- A bond for good behavior or passing a Community Service Order is an example of an appropriate sanction of the breach.
- Such a dispute would be resolved in the Magistrates Court.
- The new legislation became necessary due to the concern of community over the increasing number of incidents of the road rage.
- The rights of an accused person need to include their right to be presumed as innocent until they are proven guilty and also the right to a fair trial with an impartial judge shall also be provided.
Types of Law
Laws are contained either in the statutes (Acts of Parliament), or in the regulations, or sometime in case laws. Laws can be sub divided into two categories: PUBLIC LAW or PRIVATE LAW.
Those disputes which are among the individuals and the State fall under the domain of Public laws. These disputes can be as follows:
Between governments and is called as ‘inter se disputes.' For example The dispute between Tasmania and the Commonwealth- (Tasmanian Dam case).
Between the State and the individual.
Disputes regarding awarding of wages or regarding the working conditions.
Between the individual and the government which can ultimately affect others. For example, disputes with the Taxation Department.
These generally involve war crimes, extradition
The law that considers the disputes between the individuals and also regulates the dealings between those individuals is called to be as private law. The private law covers following disputes.
Disputes over civil wrongs.For example- nuisance, defamation of character, and negligence.
Disputes with regard to personal contracts and business contracts.
Disputes over property, contact orders, parenting orders, disputes over property subsequent upon dissolution of marriage.
Disputes with regard to the ownership or the payment of property.
Disputes with respect to wills, trusts, estates, and property.
Summary Offences for which there is an imprisonment of up to two years or fines of up to $120,000 or both. (e.g., common assault).
Minor indictable offenses for which there is an imprisonment of maximum five years or a fine of up to $120,000 or both. (e.g., indecent assault and breaking and entering).
Indictable offenses for which there is an imprisonment of more than five years and includes more serious offenses. (e.g., assault with serious bodily harm, murder).
Criminal offenses are punishable by the State only in the case where the individual is found guilty, whereas offenses like drug smuggling are considered as a Federal offense.
These includes the cases where the drug users and the prostitutes (who participate willingly in an illegal activity) are involved as they are not considered as victims.
Victims of Crime
The Victims of Crime organization (VOCS) is there to support the victims in the court and Victims Compensation that has been levied is then made payable by all the offenders. Only in the Family Conference for youth offenses, the right has been given to the victim to participate in our legal system.
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Citation of cases
For civil cases
Plaintiff v Defendant e.g. Bowman v Wilson
If Wilson further appeals the case, then it could be cited as:
Wilson (appellant) v Bowman (respondent) or the reverse if it is Bowman who appeals.
If there is more than one party
Generally, the name of the first party is listed, and then we use ‘et al' which mean ‘and the rest' or ‘and ors' which mean ‘others.'
Bannister et al v Christie OR Bannister ors v Christie.
If the State is involved in the case
If the case is involved, then the case would cite as:
State of South Australia v Coe or simply South Australia v Coe.
If the Crown is a party to the litigation
In the case where the crown is in the litigation, the case would be cited as:
The Queen v Samuelson
If the State challenges the Commonwealth
If state challenges the commonwealth then the case would be cited as;
South Australia v Commonwealth.
For criminal cases
Sometimes in the Magistrates' Court, the prosecution may be from the police. Such case is cited as police v the accused. For example- Constable Roe v White
But in some cases in higher courts, the crown prosecutes the accused. For example- R v Simpson.
(R represent Rex for King or Regina for Queen)
In the case of civil appellate citations, say if Mr. Lawson stands convicted of a murder and has appealed the severity of the sentence, then this the appeal would cite as:
Lawson v R.
Suppose if the crown had appealed a very light sentence in a very serious matter, then this case would be cited as:
R v Lawson.
Reception of English Law into Australia
During the early years of Britain's colonial expansion, some constitutional principles evolved, which laid English laws as the foundation for the Australian legal system. These principles provided for the transfer of most of the English laws to each Australian State and these principles also ensured that the heritage of the English law would also be shared with the Britain's Australian possessions. The basic sources of law in both these countries was almost the same.
With the start of the eighteenth century, English law developed rules for determining the laws that applied to the territories that were acquired newly. These territories were either:
- Conquered by force of arms, or
- Were ceded to Britain by some other power, or
- Became British possessions through peaceful colonization.
The courts made a distinction between these colonies as:
- "Conquered" or "ceded, and
- Settled by peaceful colonization
The general rule that applied to the "conquered" or "ceded" territories was that if there was a well-established civilized law prevailing in that territory, then that law would continue to prevail unless the conquering power makes a change to it. For example, the Roman-Dutch law continued to prevail in the Boer Republics of the Orange Free State and was changed after their conquest during the Boer War.
The courts have defined a "settled colony” as a territory, which during the time of its conquest by the British, was either uninhabited or inhabited by the primitive people whose customs and laws were believed to be as inapplicable to a civilized society. In such types of colonies, the British settlers applied the general rules of the English law as "birthright."
AUSTRALASIAN SETTLED COLONIES
In every Australian State, the English law was laid as the legal foundation of these colonies. This was because these colonies were initially considered to be "settled colonies."
In South Australia as well as Western Australia, English laws were applicable as these colonies though not initially but later became a part of the law of these States as on the date of their original settlement.
In the case of other Australian States, there were a few doubts that needed to be resolved before considering that these colonies were also supposed to be treated the same way as the other settled colonies. Even after the settlement, for few years it was not clear as to whether New South Wales was supposed to be considered as a "settled colony" or not and whether the English law is applicable to it or not. New South Wales was conquered as a penal settlement. Thus, many people were of the view that it could not be considered as a settled colony under the English law.
During the first settlement, under Letters Patent issued in 1787, the English criminal law was also imported which raised doubts with regards to the application of other English laws in the colony. English laws were applied in the colony, other than those which were related to criminal cases. This doubt was cleared with the passing of "an Act” by the British Parliament which provided for the Administration of Justice during 1828 in New South Wales and Van Diemen's Land. Section 24 of this act finally made it clear that New South Wales and Tasmania which, earlier in the year 1825, were separated from the "mother colony," were now to be treated same as settled colonies.
December 28, 1836, The English law was made applicable to South Australia. This day is legislatively termed as the State's date of settlement.
It is given by The Interpretation Act of Western Australia that June 1, 1829, shall be considered to be the date on which the State "shall be deemed to be established” while determining the applicability of English statutory law.
Blackstone raised the question with regards to the difficulty in applying the English Laws to these colonies completely as there was no wholesale transfer of English law to these "settled colonies." Thus, courts used to be called upon in order to determine the English laws that were considered to be suitable to the prevailing situation of the colony.
The principles summarized by Blackstone
These principles provided by Blackstone gave the foundation for the reception of English law in each Australian State.
In South Australia and Western Australia, these principles were considered as authority for most of the English laws that were applicable in those States. In other remaining States, these principles operated as per the enactment of July 25, 1828.
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