Wednesday, June 12, 2019

Australian Legal System Essay Example | Topics and Well Written Essays - 1000 words

Australian Legal System - Essay ExampleWhat constitutes the familiar law is not so much actual decision in a particular case as the principles upon which that decision is based (Gifford & Gifford, 1983 p5).According to Corkery (1999, p105), all(prenominal) law is not judge made law and there is more and more codification in Australia now. The intention of the parliaments is to tidy up the law and put back the common law subsisting before the passing the code. Therefore, the most of new law is likely to reliance on legislation today.Under the Australian State tourist court Hierarchy, the courts can be categorized into three different types the Magistrates Courts, the Distinct/County Courts and the Supreme Courts. The highest judicial tribunal in Australia is the high Court and mainly deal with intact challenges, however one thing should be noted that the High Court can overruled the previous decision. Under the doctrine of source, it does not have to follow the whatever previo us decision made by the lower courts.In order to understand the current common law system, it is essential to know the advantages and disadvantages of doctrine of precedent relied on by the common law. Even if the Common law has described as emasculated form today, compare to the statute law, there must be weaknesses and strengths together rather than only weaknesses.According to Chisholm and Nettheim (1997, p46), common law is still remained as an essential method where nobody is sure what the law is, and where the occurred cases are pacify new. Decision should be made by Judges for these kinds of particular cases such as R v Elizabeth Manley 1933 1 KB 529 (very uncommon case) because no uniform case has ever been watchd. The decisions of courts play a large part in determining and changing laws and this circumstance indicates the importance of common law. In addition, Victoria law foundation (2007) stated that the most of trials nowadays are having precedents and these good pre cedents are making the law more consistent, because earlier judicial decision guided judge in later similar cases. Besides, a judge today must apply the reasoning used in the precedents made in higher courts when they decide a similar case. Both factors reinforce the doctrine of precedent operation as its strength.Another advantage of doctrine of precedent stated by maam (1993, p268), using the system of doctrine of precedent could additionally be good comme il faut to save time and resources. As mentioned above, it provides not only a signpost to narrow the decision against the palm tree justice, but also offer an opportunity to save time and resources.On the contrary, precedent operation of the common law needs to be more flexible to overcome its weaknesses. In modern society, flexibility tends to be one of the most important criteria, because yesterdays solutions might not be good enough to adapt for the rapid social changes. Chisholm and Nettheim (1997, p46) argued that the E nglish or Australian system is sometimes criticised for tying the judges too much to the past. The case of Donoghue v Stevenson 1932 AC 562, by the time the judge made the decision, he has considered the social condition changed, the judge have developed the law of negligence which has benefits every customer, where Grant v Australian Knitting Mills Ltd

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