A series of constitutional conferences operated in the 1890s gave birth to the Australian Constitution. As explained in the Oxford dictionary, a constitution is a body of fundamental principles or authorized precedents according to which a state or other institution is approved to be administered.
Introduction
A series of constitutional conferences operated in the 1890s gave birth to the Australian Constitution. As explained in the Oxford dictionary, a constitution is a body of fundamental principles or authorized precedents according to which a state or other institution is approved to be administered. The Australian constitution became valid on 1st January 1901.
The doctrine of Separation of Powers
Chapter I, II and III of the Australian constitution administers with the Separation of Powers. The fundamental structure of the Australian constitution is split between the executive, the legislative and the judiciary. Australia is a ‘constitutional monarchy’ with a parliamentary system of government. The doctrine of separation of powers is a fundamental piece of the constitution and makes the backbone of the same. Moreover, both political and legal system manages and works on two levels i.e. state and federal.
A constitution presents the separation of powers as a basic structure as such division is necessary for the continuous functioning of the country. It is essential that the powers are carefully and thoroughly divided between the Parliament, the Executive and the Judiciary.
The powers of each category are classified as follows
- The Parliament shall make and improve the laws. The Parliament consists of the Queen designed by the Governor-General, the Senate and the House of Representatives.
- The Executive is capable to execute the law into force. The Executive consists of the Queen designed by the Governor-General, the Prime Minister and ministers.
- The Judiciary seems upon the purpose of such a law. The main strength of the judiciary is to understand the law created by either the parliament or by judges and to apply it in the analysis of particular conflicts. It makes judgments. Judiciary consists of the High Court as the top court and is maintained by other federal courts.
- Such Division benefits in withdrawing a condition wherein one category has all the powers and the other categories have none. Every part has a designated work selected and it is demanded from each group to restrict the exploitation of their designated authority according to its commission. Nevertheless, as in many other countries, Australia is adjustable in such a combination of powers.
Sources of Law in Australia
Australia was a community in Great Britain. Therefore, Australia held its legal system, customs and traditions, laws and statute from the English legal system. Australian law is generally determined by international laws. Great Britain throughout its reign allowed each colony of Australia a limited self-governance. This award led to several colonies during the constituency of Australia to have their personal court and set of laws.
Each colony had a power to revise, omit or add and law to the set of law supported by the English legal system. With the moving time, Australian law developed and developed in its own way, providing birth to an independent body of Australian law which was developed by the judiciary and the legislature of such Australian colonies. International leadership in the Australian legal system and law is highly considered in multinational conventions and treaties, memoranda of understanding, and reciprocal and bilateral arrangements to which Australia is or will be a signatory[1]. Post-independence from Great Britain, Australia developed as a federal state.
A federal system is a political system in which government control is distributed within a central or federal government and regional government[2]. It was while this period of Federation Movement, Australia obtained several national conventions and the Commonwealth of Australia Constitution Act 1900 was passed by the British government. Australian law is governed by the Commonwealth Constitution.
Australian law is composed of either customary laws or statute law.
Customary laws
Custom can be interpreted as “a traditional and broadly believed way of working or doing something that is definite to a particular society, place, or time”[3]. We, as a society have been following various customs from a very long time. Such customs vary according to the strata, ethnicity, and religion of people or geographical separation of land in which they reside. Such customs direct to unspoken rules that a group of people or community support performing it their way of living. Such unwritten rules comprise of ‘Customary Laws’. Though customary laws are well placed as a source of law and have also been included in the English common law, Australia has not provided enough of attention to the customary law in comparison to the statute law.
Statute Law
Australian constitution and laws have broadly developed with the time post the heritage of the English laws. Since then laws are improved, developed and evaluated by the judges of the Australian courts and also by the alterations and implementation performed by the Australian Parliament.
The Judiciary of Australia can be classified into the following chief aspects
- Acts enacted by the parliament are termed as ‘statute law’.
- The evolution of rules, laws, ordinance etc. by the Executive body and obtained under the parliament.
- The understanding the law by the court and transferring judgment on the grounds of how comparable cases (the ratio decidendi[4] and obiter dictum[5] of the case) have been awarded in the past and implementing those judgments to the circumstances of the case they are currently accepting, identified as ‘common law’.
The Doctrine of Precedent
The Judges are united by a vital custom to give judgments and adjudicate cases in accordance with the earlier judgments based on related facts. This decision–making method is termed as the doctrine of precedent, and the principles and rules created by the earlier declarations form, collectively, the principles and rules of the common law.
The rule of precedent is an essentially significant legal system in common law countries; even the single judgment of a higher court talks with a voice of jurisdiction and must be followed by lower courts[6]. This policy is also known as stare decisis[7]. The belief that like cases should be handled same can be followed back to the thirteenth century when Bracton wrote:
“If like matters arise let them be decided by like, since the occasion is a good one for proceeding a similibus ad simili”[8].
In the event where there are no connections or the facts in hand are totally new and are without any expanse of precedents, the court shall receive new and independent origins. However, such beliefs shall be in accordance with related cases.
Some of the practices that make up the doctrine of precedent in Australia are.
In the authority of the court system, a determination of a higher court is forcing on lower courts.
Most courts are not obliged to follow their own prior decisions, although they are required to do so. The most important court in Australia, the High Court, is not obliged to follow its own judgments. The judgments of courts outside Australia are not obligatory on Australian courts. Nevertheless, Australian courts can relate to them, often from the United Kingdom, for administration or example if, for example, a case is important or complex.
When a court makes a determination, it gives grounds for its conclusion. Another case with related but not the same facts can be determined differently (that is, it can be recognized). It is usually said that “each case will be judged on its own facts”.
[1] Australian Legal System, Oxford Press
[2] Butterworths Australian Legal Dictionary
[3] Oxford Dictionary
[4] A precedent, therefore, is a judicial decision which contains in itself a principle. The underlying principle which thus forms its authoritative element is often termed the ratio decidendi. (Salmond, Jurisprudence (7th ed. 1924) 201.)
[5] an obiter dictum is an opinion on some point which is not necessary for the decision of the case (Expressed in the cases Dew v. United British Steamship Co. Ltd., (928) 139 LT 628.)
[6] 1 Salmond, ‘The theory of judicial precedent’ (1900) 16 LQR 376
[7] Dias, Jurisprudence (5th edn 1985) 126.
[8] Thorne (transl), Bracton on the Laws and Customs of England (1968) 21; see also Lewis, ‘The history of judicial precedent’ (1930) 46 LQR 207, 341; (1931) 47 LQR 411; (1932) 48 LQR 230
[9] Cited in ‘The Law Handbook’ , 13th Edition.
