Constitutional Framework of a Nation
Added on 2020-06-04
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Legalframework
Table of ContentsQuestion and answer........................................................................................................................1References .....................................................................................................................................13
Question and answer1.)The law of British came about for the Australian colony at the time when Australia was settledby the British with the arrival of the First Fleet at Botany Bay in 1788. At this time, they need tounderstand that in the new colony what laws can be applied. (Epstein, Segal and Walker, 2015).Laws of an Australia were originated under the doctrine of reception as because power toproclaim legislation is provided by the Governor Philip for applying it to the colony.Reception of English law: All the English laws that were already forced in England were forcedin NSW too after the Australian Courts Act, 1828. 2.) The colonial laws' validity act 1865 related to the current system of government as because thisact accomplished various purposes. Further this act render colonial legislation which can be voidonly if it were repulsive to British laws extending to the colonies (Drew and Rankin, 2015). Onthe other side, the 1901 Constitution relate to current system of government. The colonial laws'validity act of 1865 has given the right to amend the constitution and to enact the legislation. Inthis way, the present system of the constitution was formed. Further according to the 1901legislation, the government gave some of their power to the high courts. 3.)Current parliament is made up of the house of representatives, the senate and the governor. Ratio decidendi: Ratio decidendi means the reason for deciding the case as it is the propositionof law for which case is used as authority. Obiter dicta: It is known as an opinion or a remark which is made by the judge who is notconsidered as the necessary part of the court decision. It can be just passing a comment, opinionwhich is provided by judge. Precedents: Precedents is known as postpone to a superior report of an appeal of court whichform the basis in the future on the same legal questions which is decided on the superiorjudgement. Further it can be stated that precedents' means that the principles which wereannounced by higher court required to be followed in other cases (Silberman, 2011). 1
Law by judges: law is the part of system which is commonly referred to as the legal system as itcomprises different of institution for instance parliament, correctional facilities etc. In order toproduce common law and stature law the court is accountable for it. Ultra vires: Ultra vires is stated as beyond the power. It is basically referred to the acts which istaken by the corporation or officers. This act can be taken outside of the power and this authorityis permitted by law and court.Proof: Proof is important in law as because it is the degree to which a party must prove its cases.It is important to show valid proof in court as because judge make decision in court on the basisof evidence provided by the different party (Hockenberry and Puzzanchera, 2015). Distinguishing: Distinguishing in court will recognise the decision and use it further at the timewhen same type of case come later on (Ponticelliand Alencar, 2016). Distinguishing in court takeplace at the time when the courts holds that the material facts which is precedent in another casewhich is little different from those of the present case.4.) In the case of Donoghue v Stevenson in which Mrs Donoghue drink the bottle of gingerbeer in a cafe and a dead snail was in bottle. After drinking ginger beer Mrs Donoghue fell ill.The result of this case is that there are most of the judges who stated that manufacturer was liablefor negligence due to which consumer bore damages (Ashworth and Horder, 2013). Here theduty of care is existed even if customer had not purchased the product directly from theproducer. Therefore, producer need to pay compensation to Mrs Donoghue for its negligence ofduty of care. According to the judgement of the House of Lords, it was the duty of themanufacture of her care. The breaching of the duty of care is filed against the manufacturer. Thisdecision is appropriate as it was totally the fault of the manufacture and thus, Donoghue receivedthe appropriate legal decisions. 5.) Legislation is law which is basically proposed by a member of legislature and in manycases, it is approved by executive. At the time when bill has been enacted into law then it isstated as act of the legislature (Kadish, Schulhofer and Barkow, 2016). New legislation can beintroduced in the parliament by the opposition party, the government, a private member bill and2
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