Australia’s legal system

Australias legal system Disclaimer: This work has been submitted by a student. This is not an example of the work produced by our Law Essay Writing Service . You can view samples of our professional work here . Australia’s legal system Australia’s legal system also known as ‘Common law system’ is based on the model which was inherited by those countries whose development was influenced by British Colonialism in particular the commonwealth countries and the U.S. Under the Australian legal system all people whether domestic or international are treated equally before the law and safeguards to ensure the unfairly judgment by government or officials. Australian courts work on ‘adversarial’ system, which innate within the English legal system. This system comprise of two parties presenting their case against each other, where the third party known as judge or magistrate presides the case directly. Whereas in the adversarial system, witness is not handled by the judge directly. The judge listens to each side’s discussions and after the cross-examination of witnesses by both sides then only the judge makes the decision. But in other countries like France In France, ‘inquisitorial’ system of courts operate, where the judge plays an active role in examining evidence and questioning witnesses. The Australian Constitution Australia operates in a constitutional monarchy. At a federal (Commonwealth) level, the first institution of law in Australia is the Commonwealth Constitution. The Constitution comprise of rules which controls the power, authority and operation of a Parliament. In Australia, each State has its own constitution. The Commonwealth Constitution consists of federal government, the federal parliament, and the federal courts, the territories, and the creation of new states. Thus, the Commonwealth Constitution is the fundamental document of empowerment in the Australian political and legal systems. It establishes that, where the Commonwealth and a State pass conflicting laws, any valid Commonwealth law trumps (overpowers) the State legislation. States can pass laws on any subject matter. The federal govern ment has the power to enact legislation about certain areas given by the Constitution. In activities such as marriage, immigration and taxation the Commonwealth has the power to order the law. But in the buying and selling of property and criminal laws constitutional capacity of the Commonwealth Parliament could not do anything. Division of Powers â€Å"The law making powers which are not stated in the constitution as belonging to the commonwealth remains with the state†. A federation involves a division of powers between the constituent elements in Australia that is between the States and the federal body, the Commonwealth of Australia. One of the most important roles of the constitution is the division of powers between the Federal and state legislatures. The constitution confers a limited number of exclusive powers such as defence, foreign trade and immigration etc but most of the Commonwealth’s powers, granted under s. 51, are concurrent powers. These powers can be exercised by the Commonwealth and the states but, in the event of conflict, the Commonwealth law will prevail (s. 109). Powers which are not expressly mentioned in the Constitution, residual powers remain with the States. Seperation of powers Governing Australia needs lots of power. The Constitution says that this power is divided between three groups of people so they can balance each other. Each group checks the power of the other two. This division of power stops one person or group of people taking over all the power to govern Australia.