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Describe the Australian Court System for Commonwealth Judiciary.

Discussion

The paper is designed to explore the development of Australian court system. The paper will cover a number of aspects such as the Doctrine of Precedent and how this doctrine fits with the hierarchy of the Australian court structure. The paper will also explore the relationship of Common Law and the Statute Law.

Under the doctrine of precedent, it is argued that no matter how many opinions are binding on the decision of the court, all of them must be subjected to a give ratio whereby previous court decisions are given some attention. The old precedents are never canceled, they exist simultaneously with the new ones, but in case of loss of relevance they gradually cease to be applied (Lindsay, 2012). At the same time, it is formally considered that the precedent never loses its authority, no matter what time passes.

The Commonwealth Judiciary (Australian Federation) is based on a Supreme Federal Court called the High Court of Australia (Constitution, Section 71), reflecting the overall influence of the American model. Composed of seven irremovable judges, appointed until the age of 72 among the lawyers and the judges of lower courts, this jurisdiction follows the rules of the contradictory procedure of Common Law. In particular, each judge may express a separate opinion and, unlike the United States, the absence of majority / minority discipline further reinforces the multiplication of these "opinions" in judgments which are often of great length and of complex interpretation.

The High Court has first-instance jurisdiction and appeal, which may be amended by the federal Parliament, which may also create "other federal courts". Their judgments, like those of the Supreme Courts of States, are, however, within the High Court's appeal jurisdiction, not limited to matters of a federal nature.

The Australian system thus separates itself from the American model of Supreme Court, the High Court appearing, within the framework of a unified legal order, as the highest national jurisdiction of appeal with general jurisdiction. Like its US counterpart, however, it does not hold a monopoly on constitutional litigation, although Australian courts generally rely on the High Court for constitutional interpretation issues (Lindsay, 2012).

It is in this context that the High Court has been able to assert its control over rights and freedoms, specify its norms of reference and define today, after some activist hints, an interpretative approach made of "judicial reserve".

If the federal or state courts intervene most often, in the matter of freedoms, as part of an ordinary control of Common Law, it is the advent of a judicial review of the constitutionality of the laws which particularly 'Warning (Langton, Mazel and Palmer, 2006). The introduction of such a control in a Common Law country of British tradition, even historically linked to the federal character of the State, thus reflects the diffusion in contemporary democracies of a principle of judicial protection of rights and freedoms based on invocation of the supremacy of the Constitution (Camarena González, 2016).

Positive aspects of Australian court system

The Constitution does not contain any provision explicitly conferring such power on the High Court or any other tribunal, it is, as in the United States, on an implicit basis that the review of constitutionality. The need for the resolution of jurisdictional issues within the federation will, by virtue of the general appellate jurisdiction of the High Court, lead the High Court to decide questions of constitutional interpretation (see Sections 74 and 74). 76 (i) of the Constitution). After the first daring of 1906 (Federated Amalgamated Government Railway) and 1907 (Baxter), the High Court consolidated in 1951 the principle of the control of constitutionality, in its decision Australian Communist Party. She asserts that, in the Australian system, "the principle of Marbury v. Madison is accepted as axiomatic, "that is to say, widely accepted because it is necessary and obvious in itself. This case, judged at the beginning of the cold war, concerns the constitutionality of a law passed by the Federal Parliament and prohibiting the Communist Party. The High Court declares the legislation unconstitutional because the central government could not demonstrate that the law was connected with the exercise of federal jurisdiction (Nicholson, 2014). This decision appears to be a Marbury judgment, an Australian version, based only on the argument that the written Constitution is superior to the law.

This case law, however, is presented in Australia as a so-called "sovereignty" case law. The Court does not oppose the substance of Parliament's intervention. It recognizes the margin of action of the federal Parliament but only within the limits set by the Constitution (Holloway and Guy, 2016).

It is ultimately from 1988, in a period of judicial activism, that the High Court questions the doctrine of sovereignty and generally devotes its power of judicial review (Yip, and Goh, 2017)

The freedom of the common law judge as well as the existence of constitutional provisions explains the wide variety of potential references to control. But the attachment to the British tradition of parliamentarism significantly limits their scope, whether from constitutional, legislative or common law sources or from references to international law, foreign rights, even history or values of Australia (Ernst, 2016).

Constitutional references to rights and freedoms exist, but in a partial way insofar as the Constitution contains no charter or catalog of rights. Interpreted by the judge, it protects certain rights, either expressly or implicitly (Gageler and Lim, 2014).

The Common Law constitutes a third significant source of rights and freedoms, in accordance with the British tradition which thus makes it possible to value certain rights without undermining parliamentary sovereignty (Tarrant, 2013). Federal or state legislation, in the case of Australia, may in fact always contradict such a right provided that it is clearly done and possibly paid the political price. The more the law is anchored in Australian history and society, the more difficult it will be for political intervention, but never impossible. Thus, freedom of expression, the freedom to come and go, the right to property or many procedural rights, such as the right to a fair trial, the presumption of innocence, are widely recognized (Toth, 2013).

Negative effects of Australian court system

The positive aspects of Australian court system are that it fosters protection of human rights. The protection of the rights and freedoms is ensured by the Australian judge, either in the context of a constitutional litigation, or in that of a litigation of Common Law . Sometimes several bases of constitutional, legislative or common law protection, can be juxtaposed according to the different components of the same right, as, for example, in procedural rights. Such diversity, which particularly marks the specificity of the Australian experience, is explained both by the absence of a general constitutional catalog and therefore the limited nature of the constitutional references available and the desire to safeguard Parliament's place in the function of protecting rights and freedoms. The main categories of protected rights thus often combine written and unwritten rights or constitutional and legislative rights. In addition, unwritten rights may be implicit constitutional rights, sometimes common law rights (Callander, and Clark, 2017).

The negative effects of Australian court system are that it is not compatible with most of the international standards. The question of the integration of international standards of protection in the databases of the Australian judge has been raised since Minister for Immigration v.Teoh of 1995. In it, the High Court extends the scope of human rights treaties, holding that the administrative authorities must take into account, in their decisions, the obligations of ratified treaties to Australia (Smartt, 2018). Based on the application in this case of a child rights treaty, the High Court has established the linkage of international standards of protection to ordinary law (Davies and Neal, 2016). 

Conclusion

The High Court of Australia, responsible primarily for ensuring the respect of federal balances, was inspired, especially in the early years, decisions of the US Supreme Court but could not fulfill, for historical reasons and structural, the same function of political orientation as the latter. The lack of a Bill of Rights in the Australian Constitution of 1901, the commitment to the principles of British parliamentary and seeking legitimacy through the "legal reserve”?are proving to be so many powerful obstacles to the advent of genuine judicial protection of individual rights and minorities. The High Court, however, contributes in a significant proportion, emphasizing both the assertion of its control and the scope of the rights and freedoms protected, the specificity of the Australian system.

List of References 

Callander, S. and Clark, T. S. (2017) ‘Precedent and Doctrine in a Complicated World’, American Political Science Review, 111(1), pp. 184–203. doi: 10.1017/S0003055416000587.

Camarena González, R. (2016) ‘From jurisprudence constante to stare decisis?: the migration of the doctrine of precedent to civil law constitutionalism’, Transnational Legal Theory, 7(2), pp. 257–286. doi: 10.1080/20414005.2016.1205871.

Davies, C. and Neal, L. (2016) ‘Phillips v the Queen: A Doctrine of Precedent Case?’, James Cook University Law Review, 22, pp. 119–127.

Ernst, S. F. (2016) ‘The Lost Precedent of the Reverse Doctrine of Equivalents’, Vanderbilt Journal of Entertainment & Technology Law, 18(3), pp. 467–506. Available at: https://search.ebscohost.com/login.aspx?direct=true&db=a9h&AN=116432145&site=ehost-live (Accessed: 15 November 2018).

Gageler, S. and Lim, B. (2014) ‘Collective Irrationality and the Doctrine of Precedent’, Melbourne University Law Review, 38(2), pp. 525–553.

Holloway, J. E. and Guy, D. C. (2016) ‘Extending Regulatory Takings Theory by Applying Constitutional Doctrine and Elevating Takings Precedents to Justify Higher Standards of Review in Koontz’, Widener Law Review, 22(1), pp. 33–70.

Langton, M., Mazel, O. and Palmer, L. (2006) ‘The “Spirit” of the Thing: The Boundaries of Aboriginal Economic Relations at Australian Common Law’, Australian Journal of Anthropology, 17(3), pp. 307–321

Lindsay, D. (2012) ‘Protection O F Compilations and Databases After Icetv: Authorship, Originality and the Transformation of Australian Copyright Law’, Monash University Law Review, 38(1), pp. 17–59.

Nicholson, A. (2014) ‘Law Making Through the Courts: How It Occurs and Is It an Effective Method of Making Laws?’, Legaldate, 26(1), pp. 2–3.

SMARTT, T. (2018) ‘The Doctrine of Extended Joint Criminal Enterprise: A “Wrong Turn” in Australian Common Law’, Melbourne University Law Review, 41(3), pp. 1324–1359

Tarrant, S. (2013) ‘Building Bridges in Australian Criminal Law: Codification and the Common Law’, Monash University Law Review, 39(3), pp. 838–863

Toth, A. J. W. (2013) ‘Clarifying the Role of Precedent and the Doctrine of Stare Decisis in Trial and Intermediate Appellate Level Charter Analysis’, Dalhousie Journal of Legal Studies, 22, pp. 34–58.

Yip, M. and Goh, Y. (2017) ‘Convergence between Australian common law and English common law’, Common Law World Review, 46(1), pp. 61–68

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