Australian Legal System: Courts and Laws

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Table of Contents

The courts
Statutory assistance and representation
Corporate Law
Negligence
Common Law Duty of Care
Business Law
Contract law and elements
Capacity of organizations to Contract
Principles of law of agency
References

The Australian justice structure is centered on an elementary belief in the canon of law, justice and the autonomy of the judges. All individuals- Australians and non-Australians similarly are treated equally before the law and securities exist to guarantee that individuals are not treated subjectively or wrongly by administrations or bureaucrats. Ethical standards that entail technical impartiality, judicial precedent as well as separation of powers are essential to Australia’s legal structure (VanDuzer, 2003). The common legal system, as formulated in the UK, creates the basis of Australian jurisprudence. It is divergent from the civil legal structure that functions in Europe, Latin and Japan, which are resultant from Roman law (Fodden, 1999). Diverse countries that have integrated common law statutes include the United States, Canada and New Zealand and so forth. The integral aspect of the common law structure is that juries’ verdicts in awaiting cases are conversant by the resolutions of formerly settled cases. The Australian charter of 1901 established a federal structure of government, under which authorities are disseminated between the federal authority and the states. It defined limited powers and synchronized powers. The states and territories have independent law-making power in all matters not particularly designated to the federal authority. In reality, Australia has about nine legitimate structures mainly; eight state and provincial structures and a federal structure. Nevertheless, it is the country and provincial felony laws that mainly impact the daily existence of the majority of Australians. (VanDuzer, 2003). Lawmakers create statutes; the executive manages the statutes while the law enforcers interpret laws independently.

The courts

The Supreme Court of Australia construes and employs the law of Australia, making decisions concerning cases of special federal importance, including challenges to the constitutional legitimacy of laws, and hearing of petitions from the federal, state and provincial courts. The Supreme Court is (Roach, 2001) headed by the chief justice and six other judges who can supervise either personally or jointly. Under the charter, state and provincial courts might be invested with federal authority. The Federal Court deals with all civil cases emerging from Australian federal law, while the Family Court is instrumental in (Fridman, 1999) resolving family disputes. On the other hand, The Federal Magistrates Court was entrenched to deal with family law, bankruptcy, unlawful discrimination, clientele security and business dealings, and privacy, immigration, patent and industrial statutes. Australian territories and national courts have power in all domains put under the auspice of state and provincial statutes. (Hansell, 1999).

They nevertheless deal with issues emerging under federal laws, where authority has (Stuart, 2001) been conferred by the centralized legislative body. State and provincial courts are concerned with most criminal issues, whether coming under a federal, national, or provincial statute.

Statutory assistance and representation

With regards to statutory representations, the Australian system is informed of the fact that legal representation is an important aspect in assuring fairness to all. They present some lawful assistance for persons reviewed as being with the minimum competence to afford to take care of the (Stuart, 2001) expenses of a court proceeding. Cases tried by way of a national and provincial legal structure are funded courtesy of the fund statutory aide. Independent provinces have private and lawful fund commissions. (Francies et al. 1995). The central regime funds a configuration of about nine companies across Australia that presents legal assistance services mainly to aboriginal Australians. (Hansell, 1999).

Corporate Law

The law of tort, in common law jurisdictions, is illegitimate that entails a flouting of a civil duty owed to someone as well. It is distinguished from a crime, which entails a breach of a duty owed to the community holistically. Though varied practices are normally of tort and felonies, prosecutions for felonies are mainly the responsibility of the state; independent prosecutions being sporadic (Waldman, 1992) employed; whereas any party that is harmed may advance claims with a charge for tort.

It is nevertheless separated from equity, in which an activist grumble of a violation of some right. An individual that suffers tortuous harm is entitled to get damages, especially financial recompense, from an individual or persons responsible- or responsible- for those damages. Tort law describes what lawful harm is (Stuart, 2001) and whether an individual might be held responsible for the harm they have created. Lawful injuries are not restricted to corporeal harm. Tort laws as such constitute such varied themes as auto accidents, fictitious imprisonment, libel, product liability, patent infringement and ecological disintegration, and so forth. (Buckley, et al, 1995)

Negligence

Negligence is the common tort liability under common law. If the hurt faction can confirm that the individual believed to have been the genesis of the injury owing to negligent acts- that is, without considering reasonable concern to preclude hurting other persons- tort law will permit recompense. Nevertheless, tort law nevertheless recognizes intentional torts, where an individual has deliberately acted in a manner that hurts another, and strict liability or quasi-tort, permits recovery under meticulous conditions without the demand to demonstrate laxity (Waldman, 1992). By and large, negligence is a tort that is anchored on the continuation of a contravention of the responsibilities of care owed by one individual to the other. (Hansell, 1999).

This puts into consideration the association between the defendant as well as the claimant, which should be the case that there is a responsibility upon the defendant to assume fitting care to preclude causing hurt to the plaintiff in all conditions of the case. (Hansell, 1999). Two forms through which duty of care might be established are visible: The defendant and claimant are within one of the special links; or on the periphery of these similarities, with respect to the ethics created by the case law.

However, there exist scenarios where the courts recognize the subsistence of a duty of care. These normally emerge as (Hansell, 1999) an outcome of some kind of special links between warring factions. For illustration purposes, these include; workers to workers, processors to clients, caregivers and solicitor to customers.

Common Law Duty of Care

It requires assuming full responsibility and care to preclude acts of exclusions that one can practically foresee would likely hurt your neighbor. The core principle is reasonable to foresee capability. The test is termed too broad as highlighted in the statement as it would imply that every careless act would be actionable. Nevertheless, it is employed in our modern world with respect to reasonable foreseeability and is the basis of a general concept of negligence which is an action in its own right and not simply a consequence of encroachment. In making verdicts, judges have employed the ethics and restricted its usage over a period of years. In Dorset Yacht Co v The Home Office (1970) the policy was approved although Lord Diplock asserted that foreseeability alone was not the ultimate criteria but it was nevertheless ideal to term previous pronouncements, public procedures and closeness. (Hansell, 1999).

Business Law

Commercial law takes care of business dealings and business dealings. It is normally termed to be a branch of civil law and entails with matters entailing with private and public law. Business law constitutes (Fodden, 1999) within its scope such designations as primary and representative; consignment by land and water; merchant haulage; insurance, aquatic, fire, life and accident indemnity, bills of exchange and alliance. It also controls the corporate dealings, hiring operations and the processing and sale of client merchandise. Myriad nations have incorporated civil standards that contain comprehensive statements of their business law.

Contract law and elements

A contract is an agreement between two or many parties with an objective of developing a legal responsibility, with or without elements. Consequently, they can also be created orally. Contracts are as well mutually binding agreements. To form a contract there has to be a mutual understanding including valid offer as well as acceptance among the participating parties. These parties should have a legal ability to enter (Stuart, 2001) into an agreement, and the subject aspect must be legally binding. The common principle is that minor or insane people should not enter an agreement and in some cases, intoxicated individuals are not allowed to enter deals. Any breach of contracts is usually compensation in form of money. (Hansell, 1999).

The initial step in contracts individuals have to understand that contracts truly exist. And for it to be binding elements must be present; An offer: expression of compliance to contract on particular set rules created by the offeror with the purpose that, in the event that the offer is acknowledged they will be bound by the agreement.

Acceptance; an expression of unlimited as well as unconditional agreement to all set rules in the offer. Accepting the contract can either be oral or written. Nevertheless, acknowledgement must exactly reflect the original offer developed. Counter-offer is not similar to an acceptance. Counter-offer puts out the initial offer: one cannot make a counter offer and settle for initial offer. However, persons can request for data.

A request for data is not counter-offer. Requesting for clarification from the offeror with regard to the offer does not imply putting off the offer, though one if free to accept it (McGuiness and William, 1999)

Capacity of organizations to Contract

The power to understand the regulations of a contract is called capacity. For a contract to be applicable, all the participating parties must have capacity. Organizations have the capacity. For corporations to have the ability to enter into an agreement there must mutual agreement. (Hogg, 1977). When two actors have a deal and agreement is said to have been created. Moreover, all the parties must comprehend the agreement, bearing that no misunderstanding or errors are present. Such a scenario, generally, happens after can offer has been created by offeror and then acknowledged by offeree. A legitimate offer is made in the event that another party or multiple parties is requested to enter a defined contractual deal. This means, an offeror makes a pledge to offeree, asking the offeree a control of an act that that the offeree has a duty to carry out or even returns the pledge. Moreover, the offer must be clear as well as specific and must be obvious to the offeree. A request or statement may be created that seems to be the offer, albeit it is not. Offers are not considered legitimate if they are social request or created in a jest. For instance, a social request contains no contractual intention. Subsequently, offers can be made available to corporations through ads. From there bargaining begins between offeror and offeree, carried out personally or via an agent. (Hainsworth, 1994).

Principles of law of agency

Law of agency is a discipline in business law that entails contractual or non-contractual set of associations when an individual known as an agent is certified to act in place of others referred to the as the principal to develop a (Hainsworth, 1994) lawful association with a third party. In other words, it may be called an association connecting the agent and the principal, whereby the principal explicitly or impliedly, permits an agent to work under his supervision and behalf. Hence, the agent is required to bargain in place of the principal or bring in third players into contracts. These field of law regulations the connection between:

Agent and principals
Agents and third parties to work to work with on behalf of the principal
Principal and third party in the vent that agents allege to transact in their place widely used principles of agency law include;
Global agents wide power to act in place of the principal such as they can hold the power of the counsel or mandate in the jurisdiction of civil law or have a professional association like a notary and client

General agents have the ability to hold a more restricted power to carry out numerous transactions or specific deals over a long period and special agents are authorized to carry out one transaction or a chain of transaction over a stipulated time frame. Consideration: this is a requirement in the Australian legal system prior to enforcement of a contract. An individual wishing to impose agreements has the responsibility of showing that they have something worth negotiating for and is lawful by bestowing benefit to another individual or incurring damage at their request. Practically, this implies not things conducted previously or pre-existing tasks (Linden, 2001) unless performance takes place for third party. Metaphorically, consideration is the cost for which a pledge is procured. It is a contentious in the manner that it culminates to a degree of complexity that legal structure. When creating a contract, good consideration is require, because gratitude pledge is not binding. Whereas, consideration must be of adequate significant in legal views, it requires not mirroring a satisfactory price. Estoppel: the principle of estoppels holds that in the event than an individual (Linden, 2001) provides a guarantee to another, the other depends on it and it will be unfair going back on the pledge, that the individual will be stopped from acting so. Nevertheless, estoppels has been considered to be inept of raising an autonomous strategy so that one party can plead an another is stopped from imposing their stern lawfully rights as a ‘guard’ though cannot bring a strategy out of stopped as a sword.

References

Hogg, Peter W. (1977) Constitutional Law of Australia. 4th ed. Scarborough, Queb: Carswell.

Fridman, G.H.L. (1999). The Law of Contract. 4th ed. Quebec, Que: Carswell.

Buckley, Francis H et al. (1995). Corporations: Principles and policies. 3rd ed. Quebec: E. Aborigine.

Hansell, Carol. (1999). Directors and officers in Australia: Law and practice. Quebec: Carswell, 1999.

McGuiness, Kevin P., and William J. (1999). The Law and practice of Australian business corporations. Toronto: Butterworths.

VanDuzer, Anthony J. (2003). The Law of partnerships and corporations. 2nd ed. Australia: Irwin Law, 2003. LexisNexis Quicklaw.

Roach, K. (2001). Criminal law. 2nd ed. Queensland: Irwin Law. LexisNexis Quicklaw

Stuart, D. (2001). Australian criminal law: A treatise. 4th ed. Quebec: Carswell.

Fodden, S. (1999). Family law. Quebec: Irwin law. LexisNexis: Quicklaw

Hainsworth, Terry W. (1994). Divorce Act Manual. Aurora, Canb: Australian Law Book.

Waldman, Lo. (1992). Immigration law and practice. Canberra, Butterworths.

Linden, Allen M. (2001). Australian tort law. 7th ed. Sydney: Kangaroo.

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