The Australian Legal System - Essay Example

The Australian Legal System Introduction The Australian legal system has its foundation on an elemental belief in the rule of law, justice and the judiciary’s independence. Before the law, all people (Australians and non-Australians alike) receive equal treatment and there are safeguards, which ensure that officials or governments do not treat people unjustly or arbitrarily. The basis of Australian jurisprudence is on the common law system developed in the United Kingdom. The chief common law system’s characteristic is that the decisions of judges in previously settled cases inform them on their decisions in pending cases. Australia has a sturdy and healthy liberal democratic tradition. Australia, as a liberal democracy, maintains a high level of individual liberty. The separation of powers, judicial precedent and procedural justice are fundamental principles to the legal system of Australia. There are various regulations on the government’s power through the autonomy of the judiciary, separate Houses of Parliament, a multi-party system and a federal system of government. Australian Constitution The Australian Commonwealth has a federal system of government consisting of two Territory Governments, six State Governments and the Commonwealth Government. The Australian Commonwealth came into being on January 1 1901 after the passing of Australia Constitution as a British Act of Parliament. The Constitution of Australia acknowledges Australian people’s sovereignty, which signifies that Australians must approve any change to the Constitution. Australians delegate power to government via elections as a representative democracy. The Constitution of Australia establishes the Federal Government and defines the relations basis between the States and the Commonwealth. It also makes available the system of separation of powers, through providing for the Parliament, the Executive Government and the Judiciary (the Judicature). Nevertheless, some of the core features of the system of government of Australia, described as responsible or parliamentary government, are not set down in the Australian Constitution, but have their basis on custom and convention (Australian Government, para2&3). The Federal Parliament and Division of Power Under the federal system of government that the 1901’s Australian Constitution established, distribution of powers is between the federal government and the states/ regional governments. That distribution in Australia is between the two Territories, six States and the Commonwealth. As a federation of Territories/States, each Territory/State has its own constitution, laws and government. The Territories/States have powers, with regard to areas that the Constitution does not directly give to the Commonwealth, known as “residual powers”. The Commonwealth has exclusive powers and concurrent powers. In exclusive powers, the federal government has exclusive power to make laws pertaining taxation, external affairs, defence, immigration and citizenship and trade and commerce. In concurrent powers on the other hand, both tiers of government are capable of enacting laws. In all matters not assigned to the federal government in particular, territories and the states have independent legislative power and in case of any discrepancy between federal and territory or state laws, federal laws predominate. In effect, Federal laws apply to Australia entirely. Although Australia has nine legal systems including the eight-territory and state systems plus one federal system, just the territory and state criminal laws that chiefly affect most Australians’ daily lives (Australian Department of Foreign Affairs and Trade, para3). Separation of Powers Each of the state and federal systems integrates three distinct branches of government namely executive, legislative/Parliament and judicial. While Parliaments have the responsibility of making the laws, the executive government is responsible for laws’ administration and independently, the judiciary is responsible for the interpretation and application of the laws (Australian Department of Foreign Affairs and Trade, para3). Parliament The Australian Constitution grants to Parliament the Commonwealth’s legislative power. The federal Parliament of Australia’s comprise the Queen, whom the Governor-General represents, and two houses including a House of Representatives and a Senate, which Australians elect. The two Houses have equal powers, with the exception of some restrictions on the Senate’s powers to introduce or directly amend legislation related to budget. For proposed legislation to become law, both Houses of Parliament must pass it. The role of the Australian Parliament in making legislation is limited to particular heads of power under the Constitution, which include trade and commerce among the States and with other countries, currency, taxation, banking (except state banking), external affairs as well as other matters, for example corporations powers, that the States/Territories refer to the Australian Parliament. A central feature of a Westminster-style government in Australia is Parliamentary or responsible government, following the model of the United Kingdom, which implies that the Executive Government is derived from the Parliament and is responsible to the Parliament. Executive The Parliament approves the Executive Government, which comprises the majority party or alliance in the House of Representatives. Members who are non-government form the opposition. The coalition’s or the majority party’s leader becomes the Prime Minister, chairs the Cabinet that comprise senior Ministers of the coalition or majority party and is in effect the Executive Government’s Head. The role of the Executive Government is administering the law and carrying out government’s business through such bodies as statutory authorities, government departments and the defence forces. Worth to note is the fact that the structure of the Australian Constitution notwithstanding, there is no strict demarcation flanking the Commonwealth’s legislative and executive powers. This is because the Australian’s Westminster system requires the executive ministers and the Prime Minister to be elected Commonwealth Parliament members. Although only Parliament can pass Acts in order to create statute law, these Acts often grant the Commonwealth Executive the authority to make by-laws, rules and regulations concerning matters relevant to the specific Acts. Moreover, the Executive Government must be Parliament members and be accountable to it. Judiciary The Constitution of Australia provides that for a Federal Supreme Court to be referred to as the High Court of Australia, the Australian Commonwealth’s judicial power must be vested in it. There is a strict demarcation between the Judiciary on one hand and the Executive and Parliament the on the other. Only a court may exercise the Commonwealth’s judicial power and analyze the question of whether a person has breached a Commonwealth Parliament’s law. This strengthens Judiciary’s autonomy. Sale of Goods Contracts The Sale of Goods Act 1896 (QLD) is an Act in Queensland codifying the law regarding sale of goods. It is divided into parts, which provide for different aspects of sale of goods contracts formation of the contract, effects of the contract, performance of the contract, rights of unpaid seller against the goods and actions for breach of the contract. This codification brings clearness to some facets of the sale of goods. It eases trade in goods, and is hence pro-competitive, by clarifying specific aspects of the sale of goods with regard to contracts and the rights of buyers and sellers. The Sale of Goods Act implies terms into contracts with the aim of providing consumers with their vital and chief source of consumer protection against non-conformity of goods or defects in title to them. It also provides guidelines for contract standards. I therefore agree with the statement that of all commercial contracts, Sale of Goods contracts are indisputably both the most common and the most important (Office of Fair Trading Queensland Government, para5). In the sale of goods legislation, the term ‘goods’ is defined to include chattels personal save for money and things in action, industrial growing crops, emblements as well as things forming part of or attached to the land, which under the contract of sale or before sale, are agreed to be severed. Also included as part of the subject matter of this contract are personal property such as equipment, chattels and plant, book debts, intellectual property and choses in action. The statutes contain a non-exhaustive definition of goods (Gillies, p313). The definition of a contract, in law, is a binding legal agreement, which is enforceable by binding arbitration or in a court of law. In simpler terms, a contract is an exchange of promises, which have particular remedy for breach. In every sale of goods contract, there are implied terms, which impose statutorily created obligations and take effect through a legal fiction, which is that the parties got into a contract including the relevant obligations. Implied terms are those terms that the law implies into a contract in spite of the fact that the parties have not discussed them or a contract does not refer to them – they may be implied by statute or at common law (Clarke, para4). Business Dictionary defines implied terms as provisions in a contract that are not directly stated in spoken or written words but either a statute such as Sale of Goods Acts or the courts introduce them into the contract as needed to give effect to the obvious contracting parties’ purposes. The Sale of Goods Act 1896 (Qld) outlines five implied terms that the seller must comply with in a sale of goods contract. These include the following: the seller must have the right to sell the goods; the goods must correspond with/match their description and the goods must be of a saleable quality. In addition, if the buyer informs the seller of the purpose for which he or she requires the goods, then the goods must be reasonably fit for the purpose and the goods must match the sample if it is a contract for sale by sample. There is a further discussion of these terms below. The implied terms (in most cases conditions) are part of every contract for sales of goods, albeit whether or not the parties mentioned the matter when making the contract. This signifies that breaching of one of these implied terms is breaching the contract, with the usual remedies in contract, for example, damages for breach of contract. If a situation in sales of goods addresses issues with terms of sale contract, it is vital to put into consideration the probable implied terms. Included in these terms are implied conditions as to title: the transfer of ownership from the seller to the buyer is not possible without title and thus total failure of consideration. The seller therefore must have the right to sell the goods. There are also implied conditions as to the merchantable/sellable quality, that is, the goods are reasonable for the objective described – an obligation on the manufacturer and the seller where in the course of business, the sale was made. This includes merchantable quality of goods bought by description where the description must match the goods. Where goods are sold with sample, it is also obligatory to satisfy a certain criteria – merchantable quality of goods bought by sample, which requires that it is obligatory for most of the goods to match/correspond with the sample, the seller must give the buyer the chance to do a comparison between the sample and the goods and the goods must be devoid of any defect that would fail to be found upon goods’ examination. There are also implied conditions as to fitness for purpose. These conditions require that the buyer is obliged to notify the seller impliedly or expressly of the specific intention for which the goods are to be used. The buyer relies on the advice that the seller gives him or her and therefore the seller must ensure that the goods are realistically fit for the purpose for which the buyer bought them (Harvey, p5). In the Sale of Goods contract, in the event that a contracting party (more often than not, the defendant) breaches a condition, the plaintiff /claimant has the option of terminating the contract by declining to accept goods the goods being delivered and as well sue for damages. In such a scenario, implied warranty quiet possession where the buyer should enjoy an undisturbed and quiet possession of goods. Additionally, implied warranty goods are free from any encumbrances or charge – put differently; there is no unknown-to-the-buyer third party with a financial interest in the goods. If a contracting party on the other hand breaches the warranty (usually the defendant), the claimant does not have the right to terminate the contract, but can only sue for damages (Harvey, p6). However, Unlike in Queensland, Victoria, South Australia, the Australian Capital Territory and New South Wales where contracts for the sale of goods do not necessitate compliance with any formalities, the Northern Territory, Western Australia and Tasmania have a formal requirement. This requirement states that unless the buyer accepts part of the goods sold and in reality receives them, binds the contract by giving something in earnest or in a part payment, or a party to be charged/the agent makes and signs a memorandum or a note in writing of the contract, sale of goods of a specific value contract would not be enforceable by action (Clarke, para5). Code of Ethics Ethics are considered the moral standards that people judge behavior with. Usually, people sum up ethics in what they consider as the ‘golden rule’ of doing unto others as you would like them to do unto you. However, when looking to define business ethics, this is not entirely useful. In business, one is answerable to many different people including clients, shareholders and customers. Determining the best action to take in the event of arising of an ethical dilemma among these different interests may sometimes be really tricky and as a result, as a field, business ethics is complex/multi-faceted. In defining ethics, Velasquez refers to it as two things. First, he defines ethics as referring to well-based standards of right and wrong, which stipulate what humans should do, normally in terms of obligations, fairness, rights, specific virtues or benefits to society. Ethics, for instance, denotes particular standards that impose the reasonable obligations to abstain from vices such as stealing, assault, rape, slander, fraud, murder among others. Also included in ethical standards are those that enjoin virtues of loyalty, compassion and honesty. He views ethical standards as including standards that relate to rights, for example, the right to life, the right to privacy and the right to freedom from injury arguing that such standards are sufficient ethics’ standards since they are consistent and well founded reasons support them. Secondly, Velasquez defines ethics as referring to studying and developing one's ethical standards. In his view, social norms, laws and feelings can deviate from what is ethical and thus it is crucial to examine one's standards continually to ascertain that they are well-founded and reasonable. Accordingly, ethics also means the constant effort of studying our own moral conduct and our moral beliefs in addition to striving to make sure that we, as well as the institutions we assist to shape, live up to reasonable and solidly-based standards (Velasquez, para9). The majority of people learn ethical norms in church, at school, at home or in other social settings. Resnik argue that although majority acquire their sense of wrong and right during childhood, the essential moral development takes place throughout life and humans pass through different growth stages as they mature. He further argues that the ubiquity of ethical norms may tempt one to regard them as simple commonsense and that if morality were nothing more than commonsense, the so many ethical issues and disputes in the society would not be there. Although most societies have legal rules, which govern behavior, ethical norms have a tendency of being broader and more informal compared to laws. It is imperative to keep in mind that law and ethics are not similar, even if legal and ethical rules use similar concepts most societies use laws in enforcing widely-accepted moral standards. An action may be illegal but ethical or legal but unethical. We can therefore use ethical principles and concepts to evaluate, propose, criticize or interpret laws (Resnik, para4). Major ethics’ branches include meta-ethics – about the reference and theoretical meaning of moral propositions and the way to determine their truth-values if any; normative ethics – about the practical means through which to determine a moral course of action; applied ethics – about how to achieve moral outcomes in particular situations; moral psychology – about the true nature of moral agency or moral capacity and how it develops and descriptive ethics – about the moral values by which people actually abide. Spykerman reports of a January 6, 2010 case involving a 37 years old Royal Malaysian Air Force (RMAF) company director Rajandran Prasad together with his 42 years old colleague Sergeant N. Tharmendran, who the Petaling Jaya Sessions Court charged in connection with the two F-5E jet engines theft. Their charge came amidst cynicism that the government had covered up the scandalous theft. While Tharmendran was charged with stealing the engines, Rajandran was charged with disposing of the engines. Earlier on, police had said that four men, three of which were rank-and-file RMAF airmen, were the only ones who participated in the year 2007 theft of two engines of General Electric J85-21A turbojet, which were said to be worth RM100 million in total, much to the mortification of majority who are for the view that the crime scale suggests higher-ups were involved. Although a brigadier-general and 40 others were sacked for incompetence, the RMAF had earlier denied their involvement in the crime. According to the charge sheet, director Tharmendran had conspired with Mohamad Shukri Mohamad Yusop (the RMAF base at Subang-senior airman) at to steal the engines from the Material Processing Shed (at the RMAF base in Sungai Besi) on Dec 2007, yet he is still serving in the air force (Spykerman, para2&3). While being taken to the RMAF godown in Kuala Lumpur in 2007 for a routine maintenance from the 12th Squadron (Scorpion) in Butterworth, the jets engines were found missing. On May 22, 2008, the jet engines were discovered stolen by RMAF and on Aug 4 the same year, police lodged a report. Police said that the engines powering the ageing F-5Es are now in Uruguay after it went to Argentina via a Middle East nation. They have said that Malaysia will seek international cooperation to recover the engines. The sergeant whose charges are stealing the engines will be charged under section 380 of the Penal Code, which is to be read with section 109 of the same code. If convicted, he faces up to ten years imprisonment and a fine. On the other hand, Rajandran, the company director who acted illegally in carrying out his duties and whose charges are intentionally disposing the engines, which he knew were stolen at the Subang Industrial Park on April 30, 2008, will be charged under section 414 of the Penal Code. He faces an imprisonment of seven years (maximum) and a fine if convicted (Spykerman, para4&5). In this case, the company director breached the code of ethics expected by the defense industry when he failed to encourage ethical conduct and honest, including his unfair deals and the unethical handling of conflicts of interest. He also failed to encourage full, fair, timely, accurate and comprehensible disclosure as well as failing to comply with governmental rules and regulations and the applicable laws. He also failed to ensure the protection of legitimate business interests of the Company, particularly company’s assets and confidential information. He also involved himself in wrongdoing instead of deterring it as expected of him. The company director still breached the code of ethics expected of him by the society when he got into a conspiracy that deprived the society its rights of protection. He failed to display honorable conduct and self-control, honesty and integrity and instead became disloyal to his people –the society. He also allowed selfishness to deter him from serving his country/the society thereby lacking the expected humaneness and genuine concern for the society. A company director has an obligation to ensure that the company operates in the owners’ best interests and this includes not allowing development of a culture that could increase the risk of inefficient, arrogant, fraudulent or unethical behavior. A company director must also understand how to influence culture, whether he or she is on the board of charity, corporatized government entity or a publicly listed company, or a small or medium sized business owner. In the above case however, the company director breached the code of ethics of a director expected by Royal Malaysian Air Force when he overlooked the company’s interests and pursued his own. His action of stealing jet engine adversely affected his performance of his responsibilities. He therefore breached the expected code of ethic on conflicts of interest. He also breached the code of ethic that expects him to protect and properly use the company’s assets when he conspired with his with senior airman at the Subang RMAF base to steal the jet engines. Additionally, his action of disposing the stolen jet engines bleached the code of ethics which requires him to maintain the confidentiality of any information that either the company or legal proceedings entrust to them. Although a director may not be close to everyday decisions of the company, he or she must ensure that he builds his or her confidence that the existing culture at any given time is one that will guarantee that the behavior of the organization is sensible from a risk perspective, ethical, safe and favorable to success. He or she must be in a position to guarantee oneself of the culture quality and that the contribution of the board towards the culture is appropriate. Although no culture can absolutely eliminate the presence of an insincere and malicious individual with intention of causing harm in its midst of a rogue, certain cultures considerably lessen the likelihood that such an individual stays for any length of time in employment with the company, even without the company having experienced any unethical or criminal act. The basis for a sound culture in effect is the strength of its values (Taylor p1). Conclusion The separation of powers, judicial precedent and procedural justice are fundamental principles to the legal system of Australia. The Sale of Goods Act eases trade in goods while clarifying specific aspects of the sale of goods with regard to contracts and the rights of buyers and sellers. These terms it implies into contracts provide consumers with their vital and chief source of consumer protection and provides guidelines for contract standards. This makes the most important of all commercial contracts. Ethics shares its action-guiding nature with other human life areas, for instance, religion and law, unlike which it appeals to reasons instead of authority to justify its principles. Works cited Australian Department of Foreign Affairs and Trade, (2008). Legal System. Retrieved 25th January, 2010, from http://www.dfat.gov.au/facts/legal_system.html Australian Government, (n.d). Preconditions for effective financial sector supervision. Retrieved 25th January, 2010, from http://www.treasury.gov.au/documents/1197/HTML/docshell.asp?URL=Preconditions-03.asp Business Dictionary.com (2010). Implied Term. Retrieved 25th January, 2010, from http://www.businessdictionary.com/definition/implied-term.html Clarke, J. (2008). Australian Contract Law. Retrieved 26th January, 2010, from http://www.australiancontractlaw.com/law/scope-terms.html#implied Gillies, P. (1988). Concise contract law. Australia, Federation Press, p313 Harvey, C. (2007). Foundations of Australian Law: Sale of Goods. Retrieved 26th January, 2010, from http://www.tup.net.au/tup/downloads/Law2e_Found/Law2e_AnsGuide_Ch11.pdf Office of Fair Trading Queensland Government, (2000). Sale of Goods Act 1896 and Sale of Goods (Vienna Convention) Act 1986. Retrieved 26th January, 2010, from http://ncp.ncc.gov.au/docs/Qld%20review%20of%20sales%20of%20goods%20act%201896%20and%20sale%20of%20goods%20(vie.pdf Resnik, D.B. (2009). What is Ethics in Research & Why is It Important? Retrieved 26th January, 2010, from http://www.niehs.nih.gov/research/resources/bioethics/whatis.cfm Spykerman, N. (2010). RMAF Sergeant, Company Director Charged With Jet Engines Theft. Retrieved 26th January, 2010, from http://www.themalaysianinsider.com/index.php/malaysia/48602-missing-jet-engines-rmaf-man-company-director-to-be-charged Taylor, C. (n.d). Culture: Asset or Liability? The role of a director. Retrieved 26th January, 2010, from http://www.axialent.com/uploaded/papers_articles/documentos/Culture%20Asset%20or%20Liability.pdf Velasquez, M. Et al, (2008). What is Ethics? Retrieved 25th January, 2010, from http://www.scu.edu/ethics/practicing/decision/whatisethics.html Read More