HistoryAustralia’s political and legal system originated, and has since been influenced, by a number of different factors. It is easiest to outline them as such:

1. Those who colonised Australia (The English)2. Those who colonised them (Normans[French] and Romans[Latin])

3. Pre and post-colonial Australian social values4. Pre and post-colonial Australian ethical beliefs5. Post-colonial Australian laws

As Australian society continues to expand, bringing in more migrants and becoming more educated, the Australian legal system will change too.

Civil Law Systems and Common Law SystemsLegal systems in countries around the world generally fall into one of two main categories: common law systems and civil law systems. There are roughly 150 countries that have what can be described as primarily civil law systems, whereas there are about 80 common law countries.The main difference between the two systems is that in common law countries, case law — in the form of published judicial opinions — is of primary importance, whereas in civil law systems, codified statutes predominate.

In civil law countries, judges are often described as “investigators.” They generally take the lead in the proceedings by bringing charges, establishing facts through witness examination and applying remedies found in legal codes.Lawyers still represent the interests of their clients in civil proceedings, but have a less central role.

In contrast, in a common law country, lawyers make presentations to the judge (and sometimes the jury) and examine witnesses themselves. The proceedings are then “refereed” by the judge, who has somewhat greater flexibility than in a civil law system to fashion an appropriate remedy at the conclusion of the case. In these cases, lawyers stand before the court and attempt to persuade others on points of law and fact, and maintain a very active role in legal proceedings.

------Criminal and Civil LawCommon law is generally uncodified. This means that there is no comprehensive compilation of legal rules and statutes. While common law does rely on some scattered statutes, which are legislative decisions, it is largely based on precedent, meaning the judicial decisions that have already been made in similar cases.

These precedents are maintained over time through the records of the courts as well as historically documented in collections of case law known as yearbooks and reports. The precedents to be applied in the decision of each new case are determined by the presiding judge. As a result, judges have an enormous role in shaping Australian law.

Common law functions as an adversarial system, a contest between two opposing parties before a judge who moderates. These two parties are called the Prosecution (representing the State or Australia, known as the Crown) and the Defendant (often an individual). The prosecution have the “burden of proof” and have to provide evidence that that the defendant’s guilt “beyond a reasonable doubt”. A jury of ordinary people without legal training decides on the facts of the case. The judge then determines the appropriate sentence based on the jury’s verdict.

Civil Law means non-criminal law. The law relating to civil wrongs and contracts is part of the civil law. The law of property is embraced by civil law. Civil law can, like criminal law, be divided into substantive law and procedural law. The rights and duties of individuals amongst themselves is the primary concern of civil law. It is often suggested that civil proceedings are taken for the purpose of obtaining compensation for injury, and may thus be distinguished from criminal proceedings, whose purpose is to inflict punishment or rehabilitation. However, exemplary or punitive damages may be awarded in civil proceedings. It was also formerly possible for the plaintiff to sue for a penalty in civil proceedings.

The “burden of proof” in civil proceedings is much more general and easier to achieve. This is because the decision is to be made on the balance of probabilities (That it was probable). 

-----The Australian Court System

The Australian Judicial system is based on Common Law and is structured as such…

-----The Australian Court Hierarchy

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Nations, governments and thus people can be ruled in a number of ways. Australia is democratic and has a Constitutional Monarchy.

This means that the head of State is a monarch, or sovereign, who is governed and bound by the Constitution.

In centuries past, the monarch exercised direct political power and governed as a political and administrative figure. Absolute monarchs governed with few restraints on their power. Some monarchs claimed the divine right of kings, asserting that they were chosen by God to rule. Nowadays, the monarch is a rich and protected figurehead who performs ceremonial functions, but does not exercise political power. This power resides in the Parliament.

On a side note, the debate about Australia becoming a republic centres on an argument about whether the system of constitutional monarchy is working adequately, whether its operations need clarification, and whether the monarchy, constitutional or otherwise, is any longer relevant in a modern ‘democracy’.

Types of Government• AnarchyAnarchy refers to a society without a publicly enforced government.• Democracy Democracy is a form of government where citizens choose and replace the government through free and fair elections.• Aristocracy An aristocracy is rule by the aristocrats. Aristocrats are typically wealthy, educated people.• Monarchy A monarchy consists of rule by a king or queen, where decisions are made by them, and them alone.• Tyranny Tyranny refers to cruel and oppressive government or rule.

------The Australian ConstitutionThe Australian Constitution was created in July 1900 to begin 1st January 1901. This was the birth of Australia as a nation – free from English rule. The Australian constitution outlines how Australia is run and changes to it can only be made to it by Referendum – and only when there is a majority of votes, in majority of states.

The Australian Constitution created…

A Separation of Powers

The Australian Constitution is the set of rules by which Australia is run. The first three chapters of the Constitution define and separate three separate groups – the Parliament, the Executive and the Judiciary – and the roles they play in Australian governance.

The Constitution separates the power of who and how federal law is made and managed. This division is based on the principle of the 'separation of powers'.

Under this principle, the power to govern should be distributed between the Legislative (Parliament), the Executive (Government Agencies) and the Judiciary (The Courts) to avoid one group having all the power. Each group should work within a defined area of responsibility so that each keeps a check on the actions of the others.

The Separation of roles

POWER ROLE COMPOSITION

Legislative The Parliament makes and amends the law

Parliament (also referred to as the Legislature) is made up of the Senate and the House of Representatives

Executive The Executive puts the law into action

The Executive is made up of the Queen (represented by the Governor-General), Prime Minister and ministers

Judiciary The Judiciary makes judgements about the law

The Judiciary is made up of the High Court and other federal courts

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The Legislative – Parliament is in Canberra which is divided into the:

The House of Representatives The Senate

The Executive – A Governor-General exists, who replaces the King or Queen of England when they are not in the country and Government Departments to run the country. The Governor General approves Legislation and can dissolve governments – sending Australian back to vote for a new government.

The executive is the administrative arm of government, and is made up of government employees (the public service) working in a number of departments and agencies. The executive is empowered by the laws of Australia to put those laws into operation and uphold those laws once they have begun to operate.

A Minister is a member of the legislature who has been chosen to also work as part of the executive, usually with responsibility for matters on a specific topic (his/her portfolio).

The Public Service is also known as the “bureaucracy”. In Britain, it is commonly called the “civil service”. It comprises the government departments, either federally or in the States, and also includes the members of Government Business Enterprises, Statutory Authorities and other Agencies.

The role of the Public Service is two-fold: To advise the government of the day on policy matters To implement government decisions and parliamentary legislation.

The Judicial – The judiciary is the legal arm of the government –the High Court and other Federal Courts.

Independent of the legislature and the executive, it is the role of the judiciary to enforce Australia's laws. It must also ensure that the other arms of Government do not act beyond the powers granted to them by the Constitution or by parliament. The High Court of Australia is, as its name suggests, Australia's highest court.

Once the Federal system was created… It now could over-rule the State Systems

The Federal Parliament is Bicameral, meaning a bill has two ‘houses’ it must past through in order to become a law

The Bicameral System is seen in both federal and state governments and is made up of the Legislative Assembly (Lower House) and Legislative Council (Upper House)

This is Expect for Queensland, where they are Unicameral, with only a Legislative AssemblyBasic legal concepts

The meaning of law Law is a system of rules which a particular country or community recognises, regulating the actions of its members and which it may enforce by the imposition of penalties.

For a community or society to work, it is believed that it needs to have a level of structure that applies to everyone and is understood by everyone. Laws create that structure and regulate the way in which people, organisations and governments behave.

A law is a rule that comes from a legitimate authority and applies to everyone. Laws are created to make sure that everyone understands what is expected of them as a member of society (their obligations) and what they can expect of others, including government (their rights).

Customs, rules and law Customs are a traditional and widely accepted way of behaving or doing something that is specific to a particular society, place, or time.

Rules are one of a set of explicit or understood regulations or principles governing conduct or procedure within a particular society, community or area of activity.

The Law is a system of rules that are enforced through social institutions to govern behaviour.

All three exist within a nation, society and/or community and a citizen or member can be subject to one or all. Violating or breaking a Custom, Rule or Law will have a different response and/or consequence depending on the context.

Values and EthicsValues are the feelings, principles and attitudes that a society or individual holds as being important.

Ethics are the rules of conduct recognised in respect to various human behaviours or the rules of conduct of a particular group; ethics deal with what is morally right and wrong.

A legal system is a representation of both the values and ethics a society holds and wishes to enforce. However, sometimes the values and ethics may not align or agree, moreover a law may become a bad law as the nation or society changes with time.

The nature of justice: The idea and ‘nature’ of justice has evolved throughout human history. We, as a species, have come to a point where we can identify what justice ‘looks’ like and how it is achieved.The nature of justice is evident through the combination of three things:

Equality: The enforcement of the Law must be equalFairness: Laws don’t have negative effects, and everyone has a right to appealAccess: Everyone has access and is given an opportunity for assistance

Characteristics of just lawsFor a law to be considered just, it must fit a certain criteria. This criteria is;

Equal- It must treat all people equallyEthical- It must be based on generally held religious or ethical preceptsUtilitarian- The greatest possible happiness for the greatest possible number of peopleRedress Inequalities - Aims to redress inequalities and stresses consensus and social cohesion above allResponsive- A just law should deal with a legal problem or dispute as soon as practicable after that problem or dispute arisesNot Invasive- To the extent that people do not break the law, a just law will leave people free

Procedural fairness (principles of natural justice)

Procedural fairness is concerned with the procedures used by a decision-maker (such as a judge), rather than the actual outcome reached. It requires a fair and proper procedure to be used when making a decision or ruling. It is considered highly likely that a decision-maker who follows a fair procedure will reach a fair and correct decision.

Procedural Fairness is based on 5 basic principles.

Fairness - Decisions will be made on the basis of a set of established rules that are known. Transparency - What happens in the legal system can be seen and understood by the general public, that courts and tribunals are open to the public, rather than their decisions being made behind closed doors.Equality before the law - Each person should be treated in the same way by the legal system no matter who they are. It means that everyone has equal access and application before the law and the legal system.Freedom from bias - A decision maker must not have a personal interest in the decision she or he is making and must not prefer one person over another when they are making a decision. The right to be heard – A person who is affected by a decision made by the legal system has a right to present their views and facts that support that view (evidence) to the decision maker before the decision is made. It also means that a person who is accused of doing something wrong has a right to be told what it is they are said to have done wrong and to be shown the evidence against them so that they can defend themselves against the accusation.

The rule of law The rule of law underpins the way a society is governed. Everyone—including citizens and the government—is bound by and entitled to the benefit of laws.

Australia’s system of government is based on the rule of law. This means that everyone has to obey the law; that no-one, no matter how important or powerful, is above the law. This means that the law applies not only to citizens but also to organisations and to people in government including the Prime Minister, the heads of government departments, and members of the armed forces.

So, the same law that makes it a criminal offence to steal someone’s property applies to everyone. Another aspect of the rule of law is that no-one is allowed to exercise powers except those powers given to them by law.

Rule of Law Pyramid