The Key Principles from British Law - Essay Example

What are the Key Principles from British Law That are embedded in the Australian Legal System and Did Australia Totally Adopt the British? By of Student] [Name of Institution] [Word Count] Introduction In the current globalisation trends, a country cannot protect its legal system from regional and international influences of its neighbours, socioeconomic, cultural and political partners. These influences, whether recognised or not, will always be reflected in the substantive and adjectival application of laws in courts. Moreover, these external influences manifest in the structures and statuses of a country’s judiciary and how the judiciary interconnects with the other arms of government (Waugh, 1996). For example, in the case of the Australian legal system, the formative and original influences came from Great Britain under whose colonial powers Australia fell for more than 150 years. Included in the international community that received the Great Britain’s legal system together with Australia were India, Canada, New Zealand, the United States and Ireland (Waugh, 1996). The procedures and the principles of the British common law did a great deal in shaping not only the legal and judiciary professions but also the societies in these countries thus leaving a characteristic stamp on the way of life of these societies. Therefore, the Australian legal system did not only evolve out of the UK legal system but it is also being influenced by the legal systems of other players in the international community. Among the evidences of the influence of the British common law and legal system on the Australian legal system include, the 150 years of colonial rule, the admission of early barristers in the colony of New South Wales to practise in England or Ireland, the enactment of the Australia Act 1986 and the fact that the Judicial Committee of the Privy Council was part of Australias judicial structure for quite a long time (Young & Meek, 1999). In constitutional terms, the English common law provided the basis of Australia’s constitutional arrangements such as judicial independence, legal professional privilege, the presumption of innocence, parliamentary democracy, the open administration of justice, freedom from arbitrary arrest or imprisonment and the right to silence (Young & Meek, 1999). These principles, as entrenched in the Australian Constitution are considered fundamental to governance are part of the country’s English common law inheritance. This paper thus explores the extent to which the Australian legal system has been influenced by the English legal system and the extent to which it has adopted the principles of the British legal system The influence of Britain on the Australian Legal System The Australian legal system, like all the other legal systems in the world is based on certain principles within whose confines the practices and the professionals in the system must operate. For the Australian legal system, these principles include justice, independence, and the rule of law (Parkinson, 2001). In this regard, the Australian law and legal system treats Australians and non-Australians equally, their gender, ethnicity, race, sexual orientation, and socioeconomic status notwithstanding. There are thus judicial safeguards such as procedural fairness, judicial precedent and the separation of powers that ensure everyone is treated not arbitrarily but fairly in the legal system’s officials. The Australian legal system’s basis is the common law system developed in the United Kingdom. The Australian legal system is in fact unlike the civil law system used in certain parts of Europe and South America in which most laws and procedures are derived from the Roman law (Parkinson, 2001). Among the common features of the UK common law adopted by Australia is that judges’ decisions in court cases are informed by decisions used to settle precedent but similar cases or cases with similar facts. The Constitution and the Legal System According to the Australian Constitution, the country has a federal system of government in which federal government and state governments have powers distributed between them. The federal government is given the exclusive power to enact laws on public matters such as trade, taxation, internal/external affairs, citizenship and defense (Ellinghaus et al., 1989). Besides the exclusive powers given to the federal government, the Constitution also grants concurrent powers to federal and state governments to enact laws (Ellinghaus et al., 1989). In other terms, the individual states also have autonomous legislative powers in matters not specifically assigned to federal authorities. However, whenever there is an ambiguity or inconsistencies between state and federal laws, the federal law is paramount, implying the federal laws apply to the whole of Australia. From the Constitutional provisions highlighted above, it is apparent that Australia has nine legal systems; each system for the eight states and the federal legal systems (Ellinghaus et al., 1989). The daily lives of most Australians are however affected by the state or territorial criminal laws with the state parliaments making the laws, the executive administering the laws and the judiciary interpreting the laws. This legal system resembles the UK legal system to some extent, supporting the assertion that the Australian legal system has adopted some of the principles and practices of the British legal system. UK Law Courses Offered in Australia In most colleges and universities in Australia that offer law studies, it is normal to find students taking British law courses or units. The reason these institutions of higher learning require their students to study the laws of the United Kingdom is due to the fact that the Australian laws and legal system evolved from the English common law, which still influences it (Sawer, 1975). Second, for quite a long time, the legal systems of the UK and Australia were considered one and were just recently separated. In fact, the creation of the Australian federation in 1901 did not deter UK courts from deciding issues touching on or related to Australian law. In fact, the Privy Council continued to serve as the highest court of appeal for Australian courts for quite sometime after the creation of the Australian Federation in 1901(Sawer, 1975). Nonetheless, that the powers of the Privy Council to handle cases or issues relating to the Australian laws ended in 1986 did not imply that the UK courts’ decisions were irrelevant to Australian legal systems, more so the jurists. However, the legal precedents of the British legal system are no longer that binding to the Australian legal system and professionals. This is not to say that British law is no longer influential in the Australian legal system. In fact, if hitherto unseen case appears in the Australian legal system, jurists often consider any precedents in the United Kingdom and follow those considered persuasive enough, resulting in a regular citing of UK decisions in the Australian High Court (Kercher, 1995). Autonomous Development and Other Influences Despite the lasting influence of British law, the Australian legal system has recorded considerable level of autonomous development since 1986, particularly in regard to federal and state legislations that have since moved further and further away from the system’s English origins. An example of this autonomy trend is the Australian legal system’s gradual shift from the UK to the United States’ model of corporate law. The extent to which the British law influences the Australian legal system has thus dwindled in recent times (Kercher, 1995). For instance, the European Human Rights law has particularly spread not only in Europe but also in other regions such as Africa, Asia and the United states, further diluting the influence of UK law on the Australian legal systems. Therefore, the British law has lost some of its influences on the Australian and other world legal systems as it also adjusts to respond to the reception of the European human rights laws in other parts of the world. As in other countries, the current Australia legal system reflects international law as a consequence of the increased level and intensity of contact between nations and regions. Nonetheless, some countries have experienced more international legal influences than others have. An example of the legal system in which international laws have influenced the Australian legal system than the UK legal system has is import and export laws, which must comply with international laws and regulations. The British law’s relevance to the Australian legal system has thus diminished in recent times. However, as seen in the common law basis of the Australian legal systems, it is apparent that certain aspects and principles of the British law are still embedded in the Australian legal system (Carvan, 2002). As a matter of fact, the current legal system and government in Australia is historically based on several British statutes, including the Commonwealth of Australia Constitution Act 1900. This power by the United Kingdom to enact such statutes came from British Crown’s acquisition of the Australian continent as a territorial possession (Carvan, 2002). Therefore, although certain elements and principles of the current Australian legal system may differ considerably from that of Britain, the fundamental patterns and principles of thought reflect the Britain common law tradition/origin. Factors that Promoted Reception of British Common Law The British common law origin of the Australian legal system has made the system’s institutions and traditions rather mono-cultural, although recent trends have seen influences from other regions such as the United States. The main driving forces behind the drive by the British colonial power to implement their law in Australia were ideas of international law, private ownership and sophism. In addition, the British considered the Aborigines too primitive to lawfully posses the continent of Australia (Carvan, 2002). They thus treated New Holland as an uninhabited land open for British settlement and rule by the laws of England. There was thus no room for the Aborigines to posses land and title deeds or for the recognition of the Aborigines’ laws. By stating that all the enforceable laws and statutes in England were applicable in New South Wales, Queensland, Victoria and Van Diemen’s Land’s courts, the Australian Courts Act 1828 clarified the reception of the English law in Australia (Carvan, 2002). Despite the adoption of British laws in colonial Australia, the criminal and civil courts used during this period were rather militarily organised, egalitarian, and observed little legality compared to those in Britain. The EU’s Influence and Divergence Through various Acts of the British Parliament, a court system based on the English model had been established in Australia by 1824. For example, the enactment of the New South Wales Act 1823 established a Supreme Court mandated to handle all criminal and civil matters in addition to the inferior courts such as the court of General or Quarter Sessions, and Courts of Requests earlier established. As recent as 1963, the Australian High Court highly regarded decisions made by the Britain’s House of Lands and considered them binding, resulting in considerable uniformity between the English common law and the Australian law (Rosemary, 2007). However, in 1978, the Australian High Court declared that the decisions made in the House of Lords did not legally bind it. In fact, appeals by Australians to the Privy Council were abolished in 1986 by the Australia Acts of 1986. To this end, a lot of points or measures of divergence have featured between the Australian and the British legal systems. In fact, this divergence has been more profound since the formation of the European Union, which currently greatly influences common law developments in the UK through its European laws and conventions (Rosemary, 2007). It should however be appreciated that the Australian legal system still highly regards and regularly cite British High Court and House of Lords decisions in its arguments just like other countries rely on these decisions. It is not only the Australian laws that bear some resemblance and convergence to the British legal system, even the judicial system of Australia borrows considerably from the British legal system. In fact, Australias first system of courts designed on the historical English court system was replaced by new court names and structures. Today, Australia’s court structure is a rather complex mosaic characterised by general or special state and/or federal courts with different types of jurisdictions. Conclusion While every level of the Australian government was influenced by the UK’s, USA’s and Canada’s model of government, each level of its legal system is based on the U.K’s Westminster model. The Australian legal system is in fact a product of certain historical British assumptions predominant during the colonial period. The 150 years during which Australia was under the colonial rule of the Great Britain played a rather crucial role in enforcing the UK legal system and its principles on the Aborigines of Australia. In fact, the British considered the Aborigines too primitive to legally possess Australia. For this reason and other imperialist ideas, the British imposed their common law on the native Aborigines. Unfortunately, the earlier courts instituted to apply the British common law in Australia were more of military than civilian court to handle criminal and civil cases. Although established on British common law, recent times have recorded some level of divergence as Australian government’s arms interact with governments and regions other than the UK. For instance, the creation of the EU and its conventions and laws has really reduced the influence of the UK common law on the Australian legal system. This has been particularly the case given that England itself is struggling to ensure compliance with the EU laws such as the EU Human Rights laws. However, the influential role the UK common law played and continues to play in the Australian legal system should not be lost to readers. References Carvan, J. (2002) Understanding the Australian legal system. Sydney: Lawbook Co. Ellinghaus, M., Bradbrook, A., and Duggan, A. (1989) The emergence of Australian law. Sydney: Butterworths. Kercher, B. (1995) An unruly child: a history of law in Australia. Sydney: Allen & Unwin. Parkinson, P. (2001) Tradition and change in Australian law. Sydney: LBC Information Services. Rosemary, B. (2007) The law handbook. Sydney: Redfern Legal Centre Publishing. Sawer, G. (1975) The western conception of law" international encyclopedia of comparative law, volume 2. The Hague: Tubingen. Schubert, F. A. (2011) Introduction to law and the legal system, tenth edition. Wadsworth Publishing. Waugh, J. (1996) The rules, an Introduction to the Australian constitution. Melbourne: University Press. Young, M. K., and Meek, P. W. (1999) The Australian legal system. Sydney: SLBC Information Services. Read More