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Australian Legal System 1. Discuss the role of the High Court in the Australian system of government. Give examples. The High Court is the highest court in the Australian judicial system. The court was created in the early 1901 in correspondence with the Australian constitution (section 71).
The main role of the high court is to interpret and uphold the Australian law, remain the judge in case of constitutional disputes or over the laws of Australia. Also the court should hear various cases from state, federal or territory courts together with the appeals by special leave (Warhurst, 153). The court physically is located in the city of Canberra, where it is located in its own building within the Parliamentary Triangle. The High Court building houses three courtrooms, Justices' chambers, and the Court's main registry, library, and corporate services facilities.
In addition, there are offices of the Australian High Court Registry in the cities of Sydney and Melbourne, staffed by officers of the High Court. In Brisbane and Perth the High court registry functions are performed by officers of the Federal Court of Australia on behalf of the high court of Australia (Ackerman, 23). According to the section 71 of the Australian constitution the High court has jurisdiction with such exceptions and subject to such regulations as the Parliament prescribes, to hear and determine appeals from all judgments, decrees, orders, and sentences: It can hear the cases of the high court it can interpret the cases of any Australian state of the commonwealth (Inglis, 23). in can interpret the questions of law of the Inter-State Commission.
At the same time no exception or regulation prescribed by the Parliament can High Court from hearing and determining any appeal from the Supreme Court of a State in any matter (Warhurst, 156). The original jurisdictions of the high court were the following (Ackerman, 25): (i) arising under any treaty (Ackerman, 187); (ii) affecting consuls or other representatives of other countries; (iii) in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party; (iv) between States, or between residents of different States, or between a State and a resident of another State; (v) in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth; The High Court of Australia is able to deal with cases which come to it on appeal or which begin in the High Court itself (Warhurst, 157). Cases which involve interpretation of the Constitution, or where the Court may be invited to depart from one of its previous decisions, or where the Court considers the principle of law involved to be one of major public importance, are normally determined by a full bench comprising all seven Justices if they are available to sit (Ackerman, 29). Other cases which come to the High Court for final determination involve appeals against the decisions of the Supreme Courts of the States and Territories, of the Federal Court of Australia and of the Family Court of Australia and these are dealt with by a full court of not less than two Justices. In addition there are certain matters which can be heard and determined by a single Justice (Ackerman, 187). The subject matter of the cases heard by the Court traverses the whole range of Australian law.
It includes, for instance, arbitration, contract, company law, copyright, courts-martial, criminal law and procedure, tax law, insurance, personal injury, property law, family law, trade practices, etc (Inglis, 24). Most of the Court's work relates to the hearing of appeals against decisions of other courts. There is no automatic right to have an appeal heard by the High Court and parties who wish to appeal must persuade the Court in a preliminary hearing that there are special reasons to cause the appeal to be heard. Decisions of the High Court on appeals are final. There are no further appeals once a matter has been decided by the High Court, and the decision is binding on all other courts throughout Australia (Ackerman, 189). Rules of Court, which are made by the Justices, set out the procedural steps that legal practitioners must comply with in preparing a case for hearing, including the preparation of an Appeal Book.
The Appeal Book prepared by the appellant's legal practitioner, contains basic documentation which is necessary background for the Court to consider the issue raised by the appeal (Ackerman, 32). The Court rarely gives its decision (ie. the judgment) at the end of a hearing. Rather, the decision is "reserved" and presented some time after the hearing. Each Justice makes his / her own decision on cases, and where decisions are not unanimous, the decision of the majority prevails. The usual practice is for Justices to prepare written reasons for their decisions which are handed down by the Court at a later sitting.
Printed copies of the judgments are given to the parties involved immediately after the decision is announced by the Court. The decisions are subsequently recorded in law reports and are now also available on computerized legal data bases (Inglis, 24). 2. Set out the elements of the test of foreseeability in negligence. Give examples. It is equally important that any reform of the law of negligence does not curtail the entitlement to seek redress for civil wrongs or diminish access to justice.
In addition to this, the Federal Government must place a greater focus on reducing clinical risk, improving clinical outcomes and emphasis on implementing systems of clinical risk reduction as, despite the fact that isolated claims can always be found in any jurisdiction where awards have been made which may appear excessive, many negligence claims are well based and provide an important social mechanism for compensating individuals for injuries caused by the negligence of other persons. Furthermore, it has been claimed that defendants have fared much better in recent times than plaintiffs in personal injury proceedings and that, with the more restrictive attitude to the scope of negligence in the High Court of Australia under the stewardship of Chief Justice Gleeson, the prospects of success of plaintiffs have diminished (Stretton, 78). Similarly, the Civil Liability Act 2002 caps damages that may be awarded for past and future economic loss at 3 times the average weekly earnings as at the date of the award. Amongst other things, the Civil Liability Act 2002 also provides that a court cannot award exemplary or punitive damages in the nature of aggravated damages in negligence claims and prohibits legal practitioners from commencing or defending proceedings where there is no reasonable prospect of success. The Queensland Government is also taking a similar approach, with Queensland Premier Peter Beattie pledging to introduce a retrospective element to the State's Personal Injuries Proceedings Act 2002 to place limits on claims and cap damages awards. The amendments proposed by the Premier would cover current and future claims and past claims that have not yet been commenced (Dixon, 188).
Similar action amongst the other Australian States and Territories has been slow despite their support of a review of the law of negligence, and urgent consideration should be given by these States and Territories in implementing similar provisions in order to ensure that any reform to tort law has a consistent and national application (Ackerman, 38). The introduction of proportionate liability amongst the Australian States and Territories would ensure that defendants in medical negligence actions may be liable only to the degree of negligence attributed to them. Accordingly, if a problem emerged with the extent of the doctor's insurance cover, the hospital would not be exposed to the full claim alone, as it is potentially the case at present. I should also note that this statement would mean the hospital, as an example, would only be liable for the proportion of negligence attributed to it (Stretton, 42). is of the view that the liability placed on a defendant in tort is too wide and the test of foreseeability in tort should be the same as applied for breach of contract.
This would involve a change to the test of foreseeability in tort so that a defendant is only liable for those injuries that are 'reasonable and probable' to occur. Consequently, a defendant in tort would be absolved from liability for those injuries where there was only a remote risk that the injury would occur (Inglis, 25). 3. Explain the concept of "judicial review" in Australian administrative law. Give examples. The Constitution does not expressly provide for judicial review. What should be made of this fact?
Does it suggest that the framers did not intend to give the courts such a power? Not necessarily, although that is one explanation for its absence. It is also possible that the framers thought the power of judicial review was sufficiently clear from the structure of government that it need not be expressly stated. A third possibility is that the framers didn't think that the issue would ever come up, because Congress would never pass legislation outside of its enumerated powers (Ackerman, 43).
Only 11 of the 55 delegates to the Constitutional Convention, according to Madison's notes, expressed an opinion on the desirability of judicial review. Of those that did so, nine generally supported the idea and two opposed. One delegate, James Wilson, argued that the courts should have the even broader power to strike down any unjust federal or state legislation. It may also be worth noting that over half of the thirteen original states gave their own judges some power of judicial review (Stretton, 64). Applications for judicial review are made under sections 18 to 18. 5 and section 28 of the Act and, except in cases where the Trial Division directs that the application should be proceeded with as an action, Part 5 of the Federal Court Rules is applicable.
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Research essay sample on Australian Legal System Part 1
