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Australian Court System PDF

Added on - 21 Nov 2021

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Australian Court System1
Australian Court
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Australian Court System2
The paper is designed to explore the development of Australian court system. The paper
will cover a number of aspects such as the Doctrine of Precedent and how this doctrine fits with
the hierarchy of the Australian court structure. The paper will also explore the relationship of
Common Law and the Statute Law.
Under the doctrine of precedent, it is argued that no matter how many opinions are
binding on the decision of the court, all of them must be subjected to a give ratio whereby
previous court decisions are given some attention. The old precedents are never canceled, they
exist simultaneously with the new ones, but in case of loss of relevance they gradually cease to
be applied (Lindsay, 2012). At the same time, it is formally considered that the precedent never
loses its authority, no matter what time passes.
The Commonwealth Judiciary (Australian Federation) is based on a Supreme Federal
Court called the High Court of Australia (Constitution, Section 71), reflecting the overall
influence of the American model. Composed of seven irremovable judges, appointed until the
age of 72 among the lawyers and the judges of lower courts, this jurisdiction follows the rules of
the contradictory procedure of Common Law. In particular, each judge may express a separate
opinion and, unlike the United States, the absence of majority / minority discipline further
reinforces the multiplication of these "opinions" in judgments which are often of great length and
of complex interpretation.
The High Court has first-instance jurisdiction and appeal, which may be amended by the
federal Parliament, which may also create "other federal courts". Their judgments, like those of
Australian Court System3
the Supreme Courts of States, are, however, within the High Court's appeal jurisdiction, not
limited to matters of a federal nature.
The Australian system thus separates itself from the American model of Supreme Court,
the High Court appearing, within the framework of a unified legal order, as the highest national
jurisdiction of appeal with general jurisdiction. Like its US counterpart, however, it does not
hold a monopoly on constitutional litigation, although Australian courts generally rely on the
High Court for constitutional interpretation issues (Lindsay, 2012).
It is in this context that the High Court has been able to assert its control over rights and
freedoms, specify its norms of reference and define today, after some activist hints, an
interpretative approach made of "judicial reserve".
If the federal or state courts intervene most often, in the matter of freedoms, as part of an
ordinary control of Common Law, it is the advent of a judicial review of the constitutionality of
the laws which particularly 'Warning (Langton, Mazel and Palmer, 2006). The introduction of
such a control in a Common Law country of British tradition, even historically linked to the
federal character of the State, thus reflects the diffusion in contemporary democracies of a
principle of judicial protection of rights and freedoms based on invocation of the supremacy of
the Constitution (Camarena González, 2016).
The Constitution does not contain any provision explicitly conferring such power on the
High Court or any other tribunal, it is, as in the United States, on an implicit basis that the review
of constitutionality.The need for the resolution of jurisdictional issues within the federation will,
by virtue of the general appellate jurisdiction of the High Court, lead the High Court to decide
questions of constitutional interpretation (see Sections 74 and 74). 76 (i) of the
Constitution).After the first daring of 1906 (FederatedAmalgamated Government Railway) and
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