Comparison between the Australian System and the Unconstitutional System of the US - Research Paper Example

Name : xxxxxx Tutor : xxxxxxx Title : INTRODUCTION TO AUSTRALIAN LAW Institution : xxxxxxx @2010 Introduction to Australian Law Introduction In order for someone to comprehend the legal system of Australia, it is of necessity for him or her to comprehend the history of that system. Idyllically, prior to the year 1788 the Australian aboriginal individuals were controlled by their own regulations and laws for not less than 40 thousand years. All through the nineteenth century, Queensland, Tasmania, Victoria and Southern Australia separated from Southern Wales so as to be colonized by the British. Nowadays, Australia is deemed to be a parliamentary democracy that is independent and has remained to be a constitutional realm. As a matter of fact, its realm is similar to the United Kingdom’s monarchy that is normally represented by both the Governors of the state and the General-Governor (Cook & Hamer 2004). This paper aims at tackling question 1, whereby it will give a comparison between the Australian system and the unconstitutional system of the United States. In so doing, the paper will scrutinize the key distinctive facets of their legal systems (i.e. both Australia and the United States), but with regards to the constitution of Australia as well as the broad-spectrum facets of the US legal system. Furthermore, in section two, this paper will tackle part three, whereby it will elucidate why it is vital for judges to be not only perceived as being independent but be independent. QUESTION 1: COMPULSORY 1. Comparison between the Australian System and the Unconstitutional System of the United States. a. The Australian Legal System The legal system of Australia is on the basis of a rudimentary faith in the sovereignty of the judiciary, the rule-of-law, and impartiality. All individuals, whether they are Australian citizens or not, are to receive an equal treatment before the Australian law, and safeguards is in existence so as to guarantee that individuals are not arbitrarily treated by government officials. The rudimentary elements of the legal systems of Australia encompass the following: separation of power; procedural justice; and judicial precedent. Ideally, the foundation of Australian-jurisprudence is formed by the common-law system that was build up in the UK (Cook & Hamer 2004). As a matter of fact, the Australian jurisprudence differs from the communal law systems of Japan, Latin America and Europe. This is due to their derivation from the Roman law. These differences of the case law-system are also employed by other nations, such as: India; the US; and Malaysia. The primary facet of the Australian case-law system is that the decisions by judges in cases that are pending are typically informed by the previous decisions of those cases that have already been settled. A federal governmental system was established by the Australian-constitution of 1901, in which power was distributed amid states and federal government. Nevertheless, it defined both contemporaneous and exclusive powers. In the exclusive powers, the government was capable of making laws on aspects, like: residency, commerce and trade; migration; taxation duty; external concerns; and defence (Barker 2005). Conversely, in the contemporaneous powers, the laws were enacted by both governmental tiers. Federal laws are capable of prevailing in circumstances whereby there exists an inconsistency amid territory, or state laws and federal laws. In actual fact, the federal law is applicable to Australia as a whole. As a result, they are nine legal systems in Australia, that is, one federal system, and eight territories, or state systems. Basically, the daily activities of the majority of Australian Citizens are mainly affected by the criminal laws of the state. Three separate governmental branches are integrated by each of the state, or federal systems, encompassing the judicial, the legislative, and the executive. The laws are made by the parliament and then administered by the executive government. These laws are then interpreted by the judiciary prior to applying them (Hinchy 2008). Therefore, as Hughes, Leane, and Clarke (2003) put it, there are three distinctive facets of the legal system of Australia that we ought to understand: The legal system of Australia is on the basis of the case-law that was inherited in the 18th century during the settlement of the British, but was overwhelmingly swayed by an active decree law, and sporadically by the state that is social-democratic. The constitutional order of Australia is based on the constitution that was written and enacted in the year 1900, specifically by the parliament of Britain, which gave effect on an Australian document that was democratically drafted. Superlatively, the primary facets of this constitutional order include: it is parliamentary encompassing the principles of a federal government that is responsible; and it is federal in essence that it has a stronger judicial reassessment of the structural facets encompassing power divisions as well as power separation. Supremely, the major areas of policy are dominated by the federal government of Australia and as such, the states will only have a declining significance as well as have residual powers, but with exception to nationality providers, who sponsored as well as mandated the services. The constitutional order of Australia does not have methodical protections that are broadly-based for human privileges. In fact, the tradition here is the responsibility of either the parliamentary or ministerial ascendancy for the liberties of individuals. For the last thirty years, the anti-discrimination statues have been enacted by the legislatures of Australia. These statues tackle particular discrimination grounds. Actually, the human rights Acts have been enacted by two sub-nationwide legislatures of Australia in an epoch of five years. At this generality level, these key facets are essential in comprehending the Australian legal system’s structure, and it might be of use in providing perceptions. In reality, the British antecedents have strongly shaped the legal system of Australia. Nevertheless, the legal system of the new settler did not recognize the rights of aboriginal Australians to their own lands. This weakness occurred for two successive centuries. The creation of limited constitutional privileges took place in 1970s. However, the High Court only asserted that the case law ought to be recognized as a native title form, i.e. Mabo v Queensland (No 2) (1992) 175 CLR 1.” This decision resulted to fervent public condemnation in relation to its activism, regardless of it not being capable of offering redress for the rights of the native title that have been doused, and despite the recognized fragility rights (Parkinson 2005). In spite of their long-lasting inaction with regards to the position of the aboriginal Australian citizens, the state governments as well as the Australian national have affianced aggressively in steering other economical and societal facets in directions that can either be social-liberal, or social-democratic directions. Idyllically, momentous constitutional alterations of the case law have been effected by them. The legislatures of Australia have widely altered the tacit case law-of-contract in the milieu of the commercial as well as that of the consumer. The foremost legislative provision that is likely to take place in the state and nationwide legislation forbids traders to affiance in conducts that can either be illusory or disingenuous in their activities of trading (Vines 2005). This provision was coupled with a wider power remedial and as such, it became a foundation of the commercial legislation and the consumer litigation. For instance, it is capable of sidestepping the case law demerits on remedies, specifically for a falsification that is innocent. Nonetheless, it is also capable of resulting in liability and subsequently extending that liability for not speaking. In view of the fact that the legislative has been coupled with proscriptions, particularly on the unconscionable demeanour and on contract terms that are unfair, it represents a constitutional intercession that is far-reaching into the case law domain. Typically, the Australia law is interpreted and then applied by the Australia’s High Court. Furthermore, cases of extraordinary federal implication, encompassing challenges with regards to the validity of these laws are decided by the high court. Idyllically, the jurisdiction of Australia’s Federal Court is deemed to be wide as it covers the majority of civil aspects that are likely to arise under the federal law of Australia. As a matter of fact, the High Court has a diverse and momentous appellate control over the decisions that are made by individual judges, as well as a number state court decisions. Actually, the Australia court is useful in resolving family disputes that are complicated (Waugh 1996). In Australia, lesser criminal acts are tackled by lower courts, which are referred to as magistrate courts, or local courts, whereby the defendant’s blamelessness or guilt is determined by the magistrates. In every case, the defendant is usually regarded as being blameless until he or she is proven guilty of the offence beyond any doubt that is reasonable. Nevertheless, death penalty does not exist in Australia. The entrée to lawful representation is typically recognized by the federal government of Australia as a vital facet in guaranteeing that justice prevails for all. For instance, it offers a number of permissible assistance for those individuals who are deemed to be capable of covering the extra costs of appearing in court. Supremely, the legal assistance services, especially for those cases under the state law are funded by the federal government of Australia. In actual fact, the legal assistance commissions that are in existence in Australia are eight in number, with each individual state having one that has a budget of approximately 400 million dollars. In the year 2005 to the year 2006, about 158 thousand individuals were represented in tribunals by the legal assistance commissions all through Australia. Also, another 270 thousand individuals were advised by this commission (Waugh 1996). b. The Unconstitutional System of the United States The unconstitutional system of America comprises of manifold layers than in the majority of other countries. The main reason behind this is the division amid to state law and the federal law. For someone to comprehend this, it is of necessity for him or her to understand that the US did not come about as a single nation, but because of union among thirteen colonies, with each colony asserting that it gained sovereignty from the coronet of the British. In the year 1776 during the affirmation of sovereignty, it talked about, “the good People of these Colonies,” and that “these United Colonies are, and of Right ought to be, Free and Independent States” (Bottomley& Bronitt 2006). In the legal history of America, the perpetual subject was the tension amid manifold states and one people. Ideally, the constitution of the United States was adopted in the year 1787 and then ratified in the year 1788. In actual fact, this constitution gradually commenced during the ardently contested power shifts as well as the legal control towards the US federal government, and far from the American states. Nowadays, the momentous authority is usually retained by individual states. To that effect, in order to comprehend the unconstitutional system of the United States, we also ought to comprehend how the individual states and the Americas federal government apportions jurisdiction amid them. Basically, the majority of the boundaries amid the state law and the federal law are fixed by the constitution. Furthermore, this constitution was responsible for dividing federal power amid the following governmental branches: the judicial; the legislative; and the executive. As such, this created separation-of-power amid every branch as well as enshrined a checks-and-balances system, so as to minimize the possibility of one branch overpowering the other branches. Each of these branches is capable of idiosyncratically contributing to the American unconstitutional system. With regards to this system, the laws that were likely to be passed by the congress were delineated by the Constitution. The laws of the United States are relatively more when compared to the statues that the Congress passed. In a number of American regions, the administrative agencies are authorized by the congress to espouse those rules that are capable of adding detail to the requirements of the statutory. As a result, the entire unconstitutional system of the United States is on the basis of the customary legal standard as per the English case law. In view of the fact that the case law is superseded by both the statutory law and the constitution, the unwritten case law standards are being applied by courts in filling gaps, especially where the legislation has not been made by the Congress, or where the constitution has gone silent. Actually, the distinguishing facets of the unconstitutional legal system of the United States encompass the following: The Constitutional Order The development of the United States has mainly been facilitated by its constitution and fundamentally, the state-of-law is provided by this constitution, that is, a democracy that is capable creating the enforcement and rudimentary for individual rights. However, this essential statutory facet is usually forgotten, especially when someone is giving a comparison between the unconstitutional system of America and the legal system of Australia. As such, someone ought to put in mind the circumstances that are in the majority of nations all over the globe, so as to be capable of remembering that that this structure was not given freely. The separation-of-power system of the United States is particularly useful in distinguishing the customary parliamentary systems from the governmental structure of the United States. Moreover, the constitution of the US was responsible for the development of the federalist system and this played a major role in the nation’s permissible life and thereby, the legal structure of this nation was facilitated by this role (Chisholm & Nettheim 2007). Ideally, the controversy that is active amid American citizens is with regards to the notions that are represented by federalism, encompassing the states laboratory notions as well as the notion that the best way to remedy a problem is being closer to home than being in the nationwide capital. The majority of Americans are proud of their constitution in essence that it guarantees the rights of individuals, which ranges from individual property privileges (that are fundamental to the creation of a contemporary economy), to the majority of negative privileges that opposes the states and thus limiting their power. Conspicuously, the privileges encompassed did not encompass the positivist privileges that are contained in the legal system of Australia. For instance, in the constitution of the United States, it has those privileges that require individual states to participate more actively in shaping the community. The Bequest of the Case Law As Homes asserts, “The life of the law has not been logic, it has been experience,” (Friedman 2006). This perception puts its focus on the incremental bottom-up approach regarding the case law in general, and specifically the law of the United States, which gives an emotional disparity regarding the approach that is taken by the majority of civil-law systems. This is due to the fact that their creation was on the basis of top down permissible structures that had been designed by law experts, who base on divisions that are logical as well as in order. Idyllically, the bequest of the case law is perceived in the manifold regions of the US as well as in the case law of other nations, encompassing Australia. As a matter of fact, the majority of case lawyers have a broader suspicion with regards to the sweeping states that are comprised in the codes as well as the constitutions of the civil law, which highlight on the processes and then put their focus on the details of individual cases. All these are examples of the bequest. Conspicuously, the case law system of the United States often highlights more when compared to both the civil-level system and the historical creation of notions that are legal (MacAdam & Pyke1998). Strikingly, the precedent older cases ought to be first analyzed by lawyers, so as to gauge whether they can still apply to today’s needs of the society, or whether there is need to call for an incremental change. The Participatory Permissible Culture In this milieu, a participatory culture simple refers to the act of groups and/or individual of the United States being ready to seek remedies to their own concerns, as well as seek reactions to their own queries, and against the notion of delegating those concerns to professionals. The culture of the United States is far more than the Australian culture in essence that the citizens of the United States are capable of opening their own institutions that are not dependent on the public system. Nonetheless, they are capable of coming up with their own guides other than depending on corporations for known knowledge (Cook et al 2005). Thus, while comparing the two, there is a noteworthy disparity amid this unconstitutional system of the United States and the legal system of Australia. There are many experts in the continent of Australia who are capable of providing a work that is of high-quality, which is usually united with a legal-monopoly for that kind of work. Nowadays, the majority of Australians seek more for experts than the Americans do particularly for advice in manifold fields. Superlatively, there is no exception in the law field. For instance, in Australia, law is deemed to be a professional field. In most circumstances, a politician ought to have undertaken a political career so as to be capable of making laws. In fact, students are typically prepared by legal education prior to being judges. Also, the majority of professors of law do not have much practical experience because they have put their focus on writing legal research. In Australia, the brightest students of law are likely to become judges. This is in view of the fact that they are regarded as being professionals when making a ruling the moment they finish their law career and as such, will act that way in their entire profession. In general, the experience by the United States in the political or legal fields strongly reflects the trend of their culture to participation. The law school was only able to prepare lawyers after the Second World War. Before then, the majority of individuals were made lawyers by simply reading and comprehending the law. This means that, prior to someone admission as a lawyer, he or she had to work as a lawyer on practise. Contrary to the civil-law associates of Australia, law had been practiced by the majority of law professors of the United States. More so, these law professors even taught in other fields that were past their area of specialization. The main reason behind this was that a particular course was required to be taught by a faculty of law at a given time epoch. Nonetheless, the public also takes part in both the political processes and the legal procedures. Basically, their participation commences with its statutory foundation. In actual fact, the constitution of the United States commences with words, like the people, us, and we. The unconstitutional system of the United States affords a broader range of solutions. Typically, for a given criminal activity the offender’s statutes will list the imprisonment time, or the necessary fine that can be imposed by a court. In a number of jurisdictions, penalties that are stiffer may be permitted by other criminal code sections, particularly for those who normally repeat the criminal offences. With regards to those actions that are civil, the majority of courts in the United States are allowed to select amid the equitable solutions and the legal remedies. Nowadays, this decision has a lesser meaning but it is still of necessity to comprehend it. In fact, courts of the United States are capable of awarding either equitable solutions, or legal remedies as per the requirements of the circumstance (Friedman 2006). In actual fact, the inconsistencies in the United States are usually resolved by the courts of higher-level. Conspicuously, the precedent Supreme-Court will apply to, or authorize the federal courts that are at a lower level. The Supreme Court of the US rule made a ruling that the trepidation of prosecuting foreigners was past the clause of the Self-Incrimination scope. For instance, in 1998, the Supreme Court of the United States made a ruling, which later became law. Likewise, the District Courts were bound by the decisions of the Circuit court (Cook et al 2005). QUESTION TWO: PART THREE 2. Why it is Vital for Judges to not only be perceived as being Independent but be Independent Judges ought to be independent and be given protection from economic pressure, as well as the political pressure. The federal government of Australia has been faced by a challenge of shifting from a system, whereby the regime’s political gains were served by the judges, to the order that is on the basis of the rule-of-law. In view of the fact that there has been progress in most years, a number of nations have still not protected the judges’ independence. This is due to the fact that the courts are still being influenced by both economic pressure and political pressure. This is a serious problem and ought to be addressed immediately as judges need to be independent. Supremely, the law should sanction those individual who attempt to influence judges, particularly through bribery. The entire system can be tarnished the moment a single judge is bribed and as such, those judges that are corrupt ought to be prosecuted. The trustworthiness of the entire justice system is usually undermined by corruption as well as political interventions. To that effect, this will intimidate the privilege to a trial that is fair, as per the definition of the Australian Convention on the rights of privileges. Strikingly, everyone in Australian is entitled to a public hearing that is free fair and within a sensible time period by an unbiased and autonomous tribunal. In actual fact, tackling these flaws should be in a manner that is systematic, and on the basis of priority (Heilbronn et al 2008). It is of necessity for the law to protect veracity and the autonomy of judges. Idyllically, the separation-of-power principle has been inscribed by Australia. This principle is between the following groups in the Australian constitution: the judiciary; the executive; and the legislature. In order to ensure that the judges are independent, a few measures ought to underpin this principle. The measures encompass the following: A system for appointing judges ought to be protected from political parties. This means that for judges to be fully independent, they ought not to be recruited by the government. Judges ought not to fear being dismissed following ill-timed verdicts and as such, they ought to be given a security-of-tenure till they attain a retirement age that is mandatory, or their office of office expirers. Conspicuously, rules that are precise ought to be employed in regulating punitive actions against the judges and ought to be as well controlled by the court system procedures. Certainly, the trustworthiness of the judges is dependent on their conduct. They ought to impartially decide those cases that are before them according to the law and basing on facts. Nevertheless, when judges are regarded as being independent they are likely to be trusted by the society as a whole. This will presuppose a sense of trustworthiness that is strong while adjudicating amid parties. To that effect, both the court and the judge ought not to have actual chauvinism and in circumstances whereby a party is in doubt with regards to the judge’s impartiality, this matter ought to be taken in a manner that is serious. Judges ought not only to be perceived as being independent, but be actually independent in essence that: A case ought not to be pulled out from a particular judge without a convincing reason. The judge’s decisions ought not to be regarded as the theme while revising the procedures of outside appeals. Thus, in order for the judge’s reputation to be protected, it is imperative for the indisputable competence to be also safeguarded. Before someone becomes a judge, he or she should have veracity as well as the capability with apposite qualifications. Logically, a number of problems are faced by the transition nations. However, it is of necessity for those nations to guarantee that the judges are continually being trained. Supremely, if judges are competent then they are likely to be independent. As thus, as Booker, Glass, and Watt (1998) assert, the following factors are fundamental in guaranteeing the competence of the judges: Promotions or appointment of judges ought to be on the basis of purposeful criteria, like: effectiveness; merit; veracity; and qualification. During the appointment of judges, discrimination should not be entailed. It is of necessity for judges to be trained on jurisprudence, so as to guarantee that domestic problems are solved. Basically, “The Independence of the judiciary is the principle that the judiciary should be politically insulated from the legislative and the executive power,” (Bottomley & Bronitt 2006, p. 37). This means that courts ought not to be subjected to any influence that is deemed to be not proper, specifically the governmental branches, or from the interests of partisans. All nations as well as member states ought to address the majority of these suggestions. Due to these problems nature, it relevant further measures that will be capable of safeguarding the independence of judges. This independence will in turn guarantee the effectiveness, trustworthiness, and competence of those of judges. Ideally, politicians ought not to entail themselves in the judiciary processes, but give precedence to not only safeguarding, but also protecting the veracity of the judicial system (Waller 2000). So long as judges sustain their status in a better way, as Chisholm and Nettheim (2007, p. 16) put it, “they remain in post until they wish to retire or until they reach the mandatory retirement age of 70.” Conclusion All individuals living in Australia, whether they are Australian citizens or not, ought to be treated in an equal manner before the Australian law. Idyllically, the legal system of Australia is on the basis of the rule-of-law notion. In Australian cases, the offenders are regarded as being blameless until proof shows that they are guilty beyond any sensible doubt. As a matter of fact, the Australian parliament is responsible for making laws whilst the independent judiciary is responsible for the interpretation and application of those laws. Also, legal assistance is usually given to those Australian individuals who are incapable of affording legal representation. Actually, these individuals will be subjected to certain conditions, such as a test means. And finally, the administrative privileges as well as the legal rights are typically safeguarded by the Australian agencies that are independent. The three vital facets that discern the unconstitutional system of the United States are: the participatory culture; the constitution of the United States; and the case law system. These discern facets of the unconstitutional system of the US have made it easier to compare it with the Australian legal system. Finally, it is of necessity for judges to be independent. This independence will in turn guarantee the effectiveness, trustworthiness, and competence of those of judges. References Barker, D, 2005 Essential Australian Law, Cavendish, Sydney. Booker, K, Glass, A & Watt, R 1998, An Introduction to Federal Constitutional Law, Butterworths, Sydney. Bottomley, S & Bronitt, S 2006, Law in Context, Federation Press, Sydney. Chisholm, R & Nettheim G 2007, Understanding Law, Lexis Nexis, Sydney. Cook, C & Hamer, G 2004, Laying Down the Law, Lexis Nexis, Sydney. Cook, et al 2005, Context: Laying Down the Law, Lexis Nexis, Sydney 2005. Friedman, M 2006, Introduction: The Legal System of the US, University Law Center, Pennsylvania. Heilbronn, et al 2008, Introducing the Law, CCH, Sydney. Hinchy, R, 2008, The Legal System of Australian: Methods, History, and Institutions, Pearson, Sydney. 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