The Australia Legal System

Although legal formalism is a critical component to the Australian legal system, judicial creativity is essential when the legislation fails to satisfy rule of law ideals. One key example of this is that although abortion is an offence under the Queensland Criminal Code, it was ruled this year by the Supreme Court that a 12 year old was able to proceed with terminating a pregnancy in a Queensland public hospital. This case’s outcome would be viewed as incorrect using reasoning from a strict legal formalism approach, however it is justified as it demonstrates judicial creativity can be employed when legal formality and procedural legality have not been met.

In the U.S. judicial system, a defendant found guilty in a trial court can normally appeal to a higher federal court. These federal courts, or appellate courts, review decisions made by trial courts (Neubauer, 2010). Appellate courts can be on the federal and state level, but do not hold trials or hear new evidence. These courts consist of a judge, or a lawyer, or a group of either one, who read the transcript of the trial and whether the previous decision correctly or incorrectly followed the law (Neubauer, 2010). Similar to trial courts, the federal government and most states have made two different types of appellate courts: intermediate, which hear all cases, and supreme courts, which can pick and choose the cases heard (Neubauer, 2010). Even though there are many different types of courts within the judicial system of the United States, the role of the judge stays constant throughout the majority of branches.

* In the criminal courts a judge and sometimes a jury hears a witnesses testimony and other evidence and decide cases by applying relevant law to the relevant facts. People who are not satisfied with a trial court decision appeal cases to judges in the appellate courts.

Australian law has reflected the status of women in Anglo-Celtic culture. Today there are women in Australia from widely diverse cultural backgrounds and the law has a role in ensuring the safety, freedom, security and equality of opportunity for them all. As the status of women varies from culture to culture and changes over time, the law has had to adapt and evolve in order to fulfill its role.

The Australian legal system follows a formal structure, strict rules of evidence and conduct and utilizes the adversarial system of trial for both criminal and civil proceedings. The procedure relies on the skills of representatives of each party and evidence concerning the case presented to an impartial judge or magistrate (and sometimes a jury). Courts apply fairness to a profound extent through adopting the doctrine of natural justice, parties involved have the right to know accusations made so they are able to collect evidence for defence and cross examination. Fairness was practiced in the case Southan v Costa (2017) NSWLEC 1230 that cited the Trees (Disputes between Neighbours) Act 2006 which instructed the Land and Environment Court NSW on only making an order if the tree concerned had caused harm or posed future threat. Fairness was also demonstrated through the referral to precedents including the Freeman v Dillon (2012) NSWLEC 1057 to assess the degree of damage, necessary action and consistent orders. The previous cases assisted in concluding the orders of the Court ‘requiring periodic removal of dead wood’ to reduce the risk of injury and annoyance of natural shedding past the respondent’s property. Court jurisdiction and high enforceability aid in achieving justice for individuals when ruling sentences and court orders. Enforceability is exemplified when the actor Steve Bisley was ordered to perform 300 hours of community service by the magistrate of Sydney's Downing Centre Local Court for charges of actual bodily harm relating to domestic violence towards his former wife Sally Burleigh in September 2009. This case additionally reflected equality in application regardless political, social and religious standing, gender and racial identity. The effectiveness of courts achieving justice in

In today's Australia the price of handling a substantial litigation matter is unobtainable for the average Australian, justice does indeed go to the highest bidder and “Unless you are a millionaire or a pauper, the cost of going to court to protect your rights is beyond you.” George Brandis, shadow attorney-general. To say that justice is earned and reserved for the population of Australia is a myth and it is true that legal aid community centres are grossly underfunded and explicitly for those in dire need of legal aid and do not represent the common Australian, there is no universal legal safety-net unlike the education and health systems.

Justice is the concept of moral rightness that is based on equality, access and fairness. This means that the law is applied equally, understood by all people and does not have a particularly harsh effect on an individual. In Australia, the adversary system is used as a means to achieve justice by proving the accused, beyond reasonable doubt, committed the crime. The criminal trial process has many features which aim to fulfill the requirements of achieving justice. These elements, though considers equality, fairness and access, are flawed in practice. Flaws such as the handling of evidence, jurors not understanding instructions, inadequate funds for legal

The Australian Constitution is a rich amalgam of various classical political principles. The concepts of the Rule of Law and the doctrine of the Separation of Powers evident in Montesquieu’s Spirit of the Laws are both salient examples of political theses that are central to Australian Constitutional Law. The structure of the Constitution itself and decisions of the High Court of Australia unequivocally validate the entrenchment of the doctrine separation of powers in the Commonwealth Constitution . In particular, the High Court has applied this with relative rigour with respect to the separation of judicial power. The separation of the judicial power is fundamentally critical to upholding the rule of law. The High Court in Wilson v Minister for Aboriginal Affairs noted that “the separation of the judicial function…advances two constitutional objectives: the guarantee of liberty and, to that end, the independence of Chapter III judges” . Kitto J in R v Davidson also identified that the judiciary should be subject to no other authority but the law itself . This is a critical aspect ensuring the concept of legal equality is upheld. Therefore, its role clearly extends to providing checks and balances on the exercise of power by the legislative and executive arms of government . This ensures the liberty of the law and limits the abuse of the judicial system. Judicial Power is defined as “the power which every sovereign must of necessity have to decide between its subjects

The adversarial nature of Australia’s court system deal with facts and legal implications. Here lies the establishment of such principles that make the law

Australia 's Federal System is dynamic and the division of lawmaking power between the Commonwealth and State since 1901 has changed dramatically; Critically discuss, focussing on the major reasons for those changes.

The Oxford Learner’s Dictionary defines fairness to be ‘the quality of treating people equally or in a way that is reasonable’ and justice as ‘the quality of being fair or reasonable’ (Oald8.oxfordlearnersdictionaries.com, 2014). Investigation of the characteristics of the Australian Legal System (ALS) including its adoption, structure and operational rules, reveal that for the most part the system is based on these two attributes. This inference is further evidenced by the legally binding operational framework assigned to the financial services industry and reflected in the codes of practice that also guide it.

It is widely recognised that Australia’s System of decision making in the court is in need of significant reform, if the nation’s present and future need for fair justice is to be met.

Based on the 2012 survey conducted by the New South Whales Law and Justice Foundation, it showed that around 1.7 million Australians can expect to encounter a legal problem each year and 490,000 of those people will not receive legal advice due to financial reasons or lack of knowledge. The prices for legal services have increase by 49% in the last 6 years alone. This dramatic inflation of costs within the justice system leads to increased difficulty within society to be able to afford anything but the most basic of legal representation. When people who can’t afford a lawyer turn to government funded legal assistance, they find that due to chronic funding shortages, ongoing help is often restricted to those on only the lowest incomes and even further, is only for a narrow collection of family and criminal legal

<br>Towards the mid section of the Australian Court Hierarchy System, lies the County of District Court. The cases that this court's jurisdiction covers is very similar to those of the Supreme Court. This particular court hear appeals from the lower courts and a great majority of criminal hearings are heard in these courts. The judges appointed to hear the cases of this court are appointed by the State Parliament. The Country Court's jurisdiction is empowered to hear civil disputes in which one hundred thousand dollars ($100,000) or less is claimed for personal damages.

In the 6th century, the trial or ordeal began, later in the 11th century the common law developed in England and the Normans evaded England. The common law system was brought over to Australia in the year 1788. The courts of Equity were developed due to the common law courts are ‘unjust’. These courts introduced fairness into our common law system.