Federal Parliament - Essay Example

Will Federal Parliament be able to enact uniform laws related to land and real e s throughout the country for the economic growth of the country Australian law has been based upon adoption of the English statutory and common law. The law of Australia consists of the following : (i) Australian common law (which is based on the English common law), (ii) Federal laws enacted by the Parliament of Australia, (iii) Laws enacted by the Parliaments of the Australian states and territories. The most important law of Australia is the Constitution of Australia. The Parliament of Australia makes Australian federal laws. Section 51 of the Australian Constitution is the principal source of legislative power. It describes the areas which the Parliament has the power to makes laws about, such as defence, trade and commerce, corporations, immigration and customs. Section 109 of the Australian Constitution provides that where federal and state laws are inconsistent with each other, the federal law prevails. All the Australian States have their own governments, Parliaments and court systems. In some areas, the law is very similar between the States, and in others, it is very different. The law made by the courts, using precedent, as opposed to those made by parliament (Statute law), is called the Common Law. The Common Law is case-based and has a hierarchical doctrine of precedent. It is adversarial rather than inquisitorial. The adversarial system of law relies on the skill of the different advocates representing their party's positions and not on some neutral party, usually the judge, trying to ascertain the truth of the case. Judges in an adversarial system tend to be more interested in ensuring the fair play of fundamental justice. The doctrine of precedent governs the case law system. Once a case is decided, subsequent similar cases are to be decided on the principles/rules developed in the earlier decision. The Common Law system of precedent is hierarchical: lower courts are bound to follow the principles decided by higher courts. Once a higher court decides a case, it becomes a binding authority on the lower courts. Under Australia's common law system, the High Court of Australia and the Federal Court of Australia have the authority to interpret constitutional provisions. Judicial power is vested in a "Federal Supreme Court" which is also called the High Court of Australia. The High Court has jurisdiction over matters arising under the Constitution, federal laws, treaties, foreign affairs (Sections 75-78). The High Court is also the top appellate court in Australia, and hears appeals from any other federal court, state Supreme Courts, and the Inter-State Commission only on questions of law. Land, as we all know is a limited resource and plays a vital role in the development of any nation. If a country has to expand its economy, it has to think of changing its land use pattern. The vast countryside holds tremendous potential for growth and industrialisation. A problem peculiar to Australia is the occupation and subsequent ownership of land by the native groups. Previous cases related to land disputes should shed some light on the outcome of change initiatives taken up by the government. Mabo v Queensland (No 2) (commonly known as Mabo) was a landmark Australian court case which was decided by the High Court of Australia on June 3, 1992. The effective result of the judgement was to make irrelevant the declaration of terra nullius, or "land belonging to no-one" which had been taken to occur from the commencement British colonisation in 1788, and to recognise a form of native title. Although Mabo was litigated within the legal context of property law, the decisions clearly had much wider implications which have still to be determined1. 1. http://en.wikipedia.org/wiki/Mabo_v_Queensland_(No_2) The action which brought about the decision had been led by Eddie Mabo, David Passi and James Rice, all from the Meriam people (from the Murray Islands in the Torres Strait). They commenced proceedings in the High Court in 1982, in response to the Queensland Amendment Act 1982 establishing a system of making land grants on trust for Aboriginals and Torres Strait Islanders, which the Murray Islanders refused to accept.' In another case2 , it was upheld that it is not possible for two bodies of law to operate within the one territory and impose conflicting demands or requirements upon the one individual, without a rule which determines what is to happen in the event of conflict. Criminal Law - Cause grievous bodily harm with intent to cause grievous bodily harm - Duress - Whether acts lawful according to customary Aboriginal law constitute duress under general criminal law How are we to understand the legal entity of native title What is the shape of native title doctrine What is its relationship to the common law In order to understand the current formulation of the doctrine of native title, it is necessary to examine the principles and techniques of the common law through which it has been constructed. After all, it is important to remember that native title is not really a descriptor of indigenous relationships to country, but a category of white law, and thus it must in part be understood from within the confines of that law. The particular juristic tradition of the common law has been formed over time through an accretion of principles and techniques. At the level of jurisdiction and technique, in particular, I would contend that the common law's modus operandi is still bound to its origins, and its technique for asserting jurisdiction over another jurisdiction has not fundamentally changed since the 1600s. Following Mabo, however, the parameters of the inconsistency test, as it came to be known, were unclear.[116] Thus, it fell to a series of cases following Mabo for the test to be further defined. The best known of these decisions is undoubtedly Wik Peoples v Queensland.[117] Broadly put, the central issue in Wik was the effect of the grant of a pastoral lease on native title. In general, it was accepted by the Wik and Thayorre peoples that native title is extinguished by the grant of interests by the Crown which are wholly or partially inconsistent with the continued existence of native title, although the exact parameters of 'wholly or partially inconsistent' were unclear, as was the nature of a pastoral lease itself. However, while the Thayorre people, as it was put by Toohey J, 'accepted the language of extinguishment',[118] the meaning of extinguishment was questioned. Does native title simply cease to exist because of a Crown grant of land in the same physical space as is occupied by native title holders Rather than accepting that native title ceased to exist, the Thayorre people argued that extinguishment really concerned restrictions on the enforceability of their laws and customs. In essence, the Thayorre people argued that extinguishment was no more than a removal of common law recognition of native title. The grant of a Crown-derived interest in land had no effect under traditional laws and customs. Thus, according to the Thayorre, no actual extinguishment, in the sense of 'ceasing to exist', occurred on the granting of an interest. Rather, there was simply a failure of the common law to recognize indigenous norms. Considering the fact that the Australian judicial system is based on The Common Law which in turn is case-based and has a hierarchical doctrine of precedent, it would draw support from the above-mentioned cases and make it very difficult to implement any uniform law pertaining to estate agency practice and valuation practice, however important they may be to Australia's economic and financial growth. In my opinion, the Federal Parliament will find it very difficult to enact these laws, unless they gain the support of the native communities in the development process and allocate /demarcate clear land titles fro them, since they are the rightful owners of the land and have been discriminated against, both by the British rulers and now the Law of the country1. 11. http://www.isrcl.org/Papers/2005/Dwyer.pdf 1. R v. Warren, Coombes & Tucker :Supreme Court of South Australia (Court of Criminal Appeal: Doyle CJ, Cox and Debelle JJ) http://www.austlii.edu.au/au/journals/AILR/1996/93.html References: 1. R v. Warren, Coombes & Tucker :Supreme Court of South Australia (Court of Criminal Appeal: Doyle CJ, Cox and Debelle JJ) http://www.austlii.edu.au/au/journals/AILR/1996/93.html Shaunnagh Dorsett: 'Since Time Immemorial': A Story Of Common Law Jurisdiction, Native Title And The Case Of Tanistry http://www.atns.net.au/agreement.aspEntityID=741 http://www.ags.gov.au/publications/agspubs/legalpubs/legalbriefings/br05.htm Pitjantjatjara Land Rights Act 1981 (SA); Maralinga Tjarutja Land Rights Act 1984 (SA); Aboriginal Land Rights Act 1983 (NSW); Land Act (Aboriginal and Islander Land Grants) Amendment Act 1984(Q.). http://www.hcourt.gov.au/speeches/brennanj/brennanj_canada.htm http://www.austlii.edu.au/au/journals/MULR/2002/3.html http://www.isrcl.org/Papers/2005/Dwyer.pdf Read More