australian law

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Student Number 32093781Surname Thantirige

Given name Mahesh KavindaEmail [email protected]

Unit Code MBS502

Unit name Law For BusinessEnrolment mode External

Date 03 – June - 2013

Assignment number 1

Assignment name Assignment 1 Australian Legal SystemTutor John Murphy

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Australian Legal System

Introduction

The Australian legal system developed from the legal system of United Kingdom, which was

brought to Australia beginning in the 1770s1. The Australian legal system is based on

democratic principles and the protection of fundamental belief in the rule of law, justice and

the independence of the judiciary2. Principles such as procedural fairness, judicial precedent

and the separation of powers are fundamental to its legal system.

The basis of the Australian jurisprudence forms from the common law3 system was inherited

from the United Kingdom at the time of colonization. The Australian Constitution 4 of 1901

established a federal system of government and distributed its powers between federal

government and the states. It defined exclusive powers and concurrent powers, where there is

any inconsistency between federal and state or territory laws that federal laws prevail andapplies to the whole of Australia.

Federal and state systems incorporates three separate branches of government which are

legislative (Parliament makes the laws), executive (the executive government administers the

laws) and judicial (independently interprets and applies the laws). Figure 1

Figure 1 - Structure of Australian Government

1 History found on - The first British contact with Australia occurred in 1688 & 1699 by William Dampier

(Absolute Australia, Discover Australia – Our Beginning).2 The judicial authorities of a country; judges collectively by Federal Court of Australia – Law and Practice

3 Case law developed in common courts. This term is sometimes used to describ all case law or judge made law.4 Constitution: a set of rules or principles according to which a state or other organization is governed. The

Australian Constitution is an Act that sets out the structure of federal government and the powers of federal parliament.

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The Australian Court System

The Australian court system is known as a common law system and divided into federal and

State jurisdictions. Federal courts have jurisdiction over law made by the Commonwealth

Government of Australia (Federal Law).

The High court interprets and applies the law of Australia, which is the highest court. Also

able to hear appeals from all other courts and those appeals are given on special request to

importance or significant cases (Stanford v Stanford [2012] HCA 52). Before the Australia

Act (Cth)5 was passed in 1986 the High court was not the end of the journey of case’s. upon

the unsatisfied decision made by High Court enables to appeal to the Privy Council 6 in the

United Kingdom. After 1986 the High Court become the highest court of appeal on all

matters and it is decided in the federal or state jurisdiction.

Under the constitution, state and territory courts invested with federal jurisdiction and other

federal courts are the Federal Court of Australia, the Family Court of Australia and thefederal magistrates Court of Australia.

The Family Court established in 1975 as a specialist family law court and sits at the same

level as the Federal Court. Through its special judges and staff, the court helps to resolve

complex family disputes. Also appeals from the Family Court go directly to the High Court.

The Federal Magistrates Court sits below the Federal Court, most of the decisions of the

single judges and the Full Court of the Federal and Family Courts are binding on Federal

Magistrates. Its jurisdiction includes family law, unlawful discrimination, bankruptcy,

migration, consumer protection and trade practices, privacy and industrial law.

The jurisdictions of each court vary from State to State and each State has its own courthierarchy, where that court system operates independently. The Supreme Court sits at the top

of each state court hierarchy. Also it has unlimited civil jurisdiction and handle the most

serious criminal matters.

Australia have two further levels of courts, District Courts handle most criminal trials for

indictable offences. District Court is also the first stop for appeals from the courts below

( Bohaul Express v Kirk [2012] WADC 105). Lower Courts dealt with lesser offences and

those known as local or magistrates courts. The guilt or innocence of defendants determine

by local court magistrates ( R.A Robinson v. D.J. Kay [2013] AMC). The Coroner’s Court is

outside the normal hierarchy. The Coroner’s Court does not settle disputes between parties. It

looks into unexplained deaths and other events.

5 Act No. 142 of 185 as amended, An Act to bring constitutional arrangements affecting the Commonwealth

and the States into conformity with the status of the Commonwealth of australlia as a sovereign, independent

and federal nation6 A council of the British sovereign that until the 17th century was the supreme legislative body, that now

consists of cabinet ministers ex officio and other appointed for life, and that has no important function exceptthrough its Judicial Committee, which in certain cases acts as a supreme appellate court in the Commonwealth.

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The Alternative Dispute Resolution (ADR)

A conflict arises when two or more parties do not agree on a certain issue or behavior. This

conflict may be of a commercial nature (United Group Rail services Ltd v Rail Corporation

New South Wales [2009])7 or it may be of any other nature (Coleman & Anor v Leddy &

Anor [2013]8). Certain conflict can be judge in a plain and distinct manner and this conflict

can be name as a dispute9, can be examined by a third party (mostly a judge). One party has

to litigate in front of the courts in order to resolve a dispute where litigation is just one of the

solutions a party to dispute has. Litigation may be crowned with success but not always,

depending on how complicate the dispute is litigation will be costly and lengthy.

Number of techniques have been developed which provide alternatives to avoid futile

litigation. These alternatives are referee to as “Alternative Dispute Resolution – ADR” 10.

Tribunal systems and State Courts deal with large numbers of litigated cases compared to

federal courts in Australia. Family Court of Australia deals with large number of disputes,

local courts throughout Australia deal with a vastly greater and array of civil, family andcriminal offences. Most of the States provide for the mandatory referral of proceedings to

ADR process. (Figure 2)

Figure 2 - Dispute Resolution Processes

Australian society has increasingly sought more informal mechanism to resolve its disputes,

rather than relying on formal resolution of disputes by the Courts. ADR processes aim to

provide more flexible options that can be both time and cost effective compared to judicial

decision. Growth in ADR in Australia has resulted in its growing use in community

organizations, government agencies, tribunals, private commercial organizations. With the

increasing cost and formality of litigation, alternative dispute resolutions have become the

favored tool of addressing disputes.

ADR arrangements have been formalized in Australia and overseas through the creation and

7 United Group Rail services Ltd v Rail Corporation New South Wales (2009) 74 NSWLR 618 at 622 [3]; Ipp

and Macfarlan JJA agreeing8 Coleman & Anor v Leddy & Anor [2013] NSWLEC 1094 – Land and environment Court New South Wales

9 “ kind of conflict which manifests in distinct, justiciable issues”10 ADR is an umbrella term for process, other than judicial determination, in which an impartial person assists

those in a dispute to resolve the issues between them – defined by National Alternative dispute ResolutionAdvisory Council – Australia.

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growth of professional organizations11.

While there are numerous forms of ADR, the most common forms are Mediation, Arbitration

and Conciliation12.

Mediation

According to the definition of NADRAC13, Mediation is a process in which the participants

to dispute, with the assistance of a dispute resolution practitioner (the mediator), identify the

disputed issues, develop options, consider alternatives and endeavor to reach an agreement.

The mediator has no advisory or determinative role in regard to the content of the dispute or

the outcome of its resolution, but may advise on or determine the process of mediation

whereby resolution is attempted. Mediation may be undertaken voluntarily, under a court

order or subject to an existing contractual agreement.

Confidentiality is one of the key techniques in mediation process in all ADR techniques 14.

The second feature is that mediation is aimed to be a resolution in favor of both parties. In

mediation involves a trained mediator facilitating a negotiation, but not making bindingdecisions.

This process is quick, cheap and confidential. Also it’s conducted under the without

prejudice head of privilege. Further discussions in mediation cannot be discussed in litigation

or arbitration proceedings. Another key advantage of mediation process is that it’s focused on

the interests of the parties rather than on their legal rights alone, additional factors come into

play such as external commercial pressure, personal emotions and other surrounding

circumstances.

Apart from the above mentioned advantages, there are some negative side of the process such

as its not appropriate where a court remedy is necessary (injunctions, specific performance).The mediator has no power to impose a binding decision on the parties and rarely produce a

satisfactory resolution unless both parties to a dispute are committed to a resolution.

Arbitration

“The parties present arguments and evidence to an independent third party, the arbitrator,

who makes a determination” defined by the New South Wales Government 15. Arbitration is

when the matter in question is determined by a professional arbitrator who is usually given

the power to impose a binding decision on both parties. Arbitrator can, in that sense, be seen

as a direct replacement for litigation and is usually complex and potentially expensive.

Arbitration avoids using the courts and maintains confidentiality. It is advantageous for

business institutions wishing to continue a business relationship after the dispute looking to

minimise negative impact on its publicity. Compare to legislation, it is faster and more

informal, also the exclusionary rules of a hearing do not apply. On the other hand everything

comes into evidence so long as it is relevent.

11 Eg: Lawyers Engaged in Alternative Dispute Resolutions (LEADR), the Australian Commercial Dispute

Centere (ACDC), Institute of Arbitrators and Mediators Australia.

12 Local Court – NSW Australia – Alternative Dispute Resolutions13 National Alternative Dispute Resolution Advisory Council – Australia14 Alternative Dispute Resolution – Attorney-General’s Department, Australian Government15 Tribunal Services – Attorney General & Justice NSW

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Apart form the advantages, there are some disadvatages need to be count, such as mainly

consern cost with arbitrations potentially taking a similar amount of time to litigation.

Arbitrator’s award may only be appealed on the limited grounds of manifest error of law on

the face of the award, one of the general public importances and the decision of the arbitrator

is at least open to serious doubt or misconduct.

In Australia, commercial arbitration is governed by uniform legislation in the different States

and Territories, Commonwealth Arbitration Act 1984 (NSW). International commercial

arbitrations in Australia are regulated by the International Arbitration Act 1974 (Cwlth).

Advantages and Disadvantages of ADR

One of the great advantages of ADR is that the parties have control over the process, where

no waiting lists for courts and long drawn out formal process; instead an informal but faster

and cost efficient process designed to achieve solution so that the parties can get on with

business. Unlike the court system where everything is on the public record, ADR remains

confidential (Welker v Rinehart (No 2) [2011])

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.Court system is adversarial, where in the end one party gains and other loses. In contrast

through ADR the parties get an opportunity to negotiate and arrive at a solution agreeable to

both which is especially useful in situations of social dispute.

Another advantage of ADR process is that it allows more flexibility than court process where

parties are free to choose their mode of communication and encouraged to have creative

discussions about range of options with an agreement which reflects the best possible

outcome for all involved. Such agreements tend to last longer than those imposed by courts.

One of the biggest disadvantages of ADR is its inability to operate justly in the face of power

differences. A good example being a dispute between a reputed company or an organization

and an individual, where the size and resources may put the individual at a significantdisadvantage. ADR will be of very limited use in a situation where one or both parties are

reluctant to mediate. There is no ruling on legal rights in ADR process and compensation

awards decided upon tend to be lower than what might have been achieved through a court

procession. It is a legally binding decision which cannot be revoked.

16 Rinehart case – Welker v Rinehart (No2) [2011] NSWSC 1238 , regarding the Rinehart family dispute,the

discretion of the court to grant a stay of proceedings to give effect to a pre-dispute agreement for ADR wasconsidered.

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Works Cited

Australia, Absolutely. "Discovery Australia ." About Australia - Our Beginning , 2013.

Australia, Federal Court of. "Law and Practice." Federal Court of Australia. 1996 - 2013.http://www.fedcourt.gov.au/law-and-practice/legal-research/glossary-of-legal-terms

(accessed May 28, 2013).

Australian Government ComLaw. "Australia Act 1986 - C2004C00704." Australia Act 1986.

Mar 31, 2003. http://www.comlaw.gov.au/Details/C2004C00704 (accessed May 29, 2013).

Australian National University. "The Australian Legal System." Law. May 23, 2013.

http://libguides.anu.edu.au/law (accessed May 29, 2013).

Banks, Robin. Australian Legal System. Hot Topics: Legal issues in plain language , Sydney:

Legal information Access Centre, 2007.

Carr & Co. Divorce & Family Lawyers. Successful appeal to the High Court. 2012.

http://www.carrco.com.au/high_court_successful_appeal.php (accessed May 29, 2013).

Dstrict Court of Western Australia. "Bohaul Express - v- Kirk [ 2012] WADC 105 ." AustLii.

July 06, 2012. http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/wa/WADC/2012/105.html

(accessed May 30, 2013).

Ellis. Principles and Practice of Australian Law. Thomson Reuters, 2009.

National Alternative Dispute Resolution Advisory Council. "Glossary of ADR Terms."

NADRAC. n.d. http://www.nadrac.gov.au/ (accessed May 30, 2013).

R Hughes, G leane & A clarke. Australian legal institutions: Principles, Structure and

Organization. Lawbook Company, 2003.

Trade, Australian Government - Department of Foreign Affairs and. "Legal System." About

Australia. February 2012. http://www.dfat.gov.au/facts/legal_system.html (accessed May 29,

2013).

Workbook, Legal Studies. The Australian Legal System. n.d.

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