Our federal system of government means that our states have
quite different laws in some areas and that the courts in different states come
to different conclusions. Discuss the advantages and
disadvantages of this system.
The Australian Federal system of government entitles each
state and territory to have varying laws. This system of governance allows for
courts in different states to come to different conclusions when a court hears a
case. The advantages and disadvantages of this system will be discussed further.
Each state and territory has the explicit ability to create laws that they may
have a vested interest in. Laws within Australia are built upon several
doctrines that are specified in the Australian Constitution one of which is
‘separation of powers.’ The principal of precedent or the authority of
appellate courts, binds all Australian courts, excluding the High Court of
Australia. The Australian system of government allows each jurisdiction to
enforce laws according to their interests.
The ability for states to create laws that they may have an
interest in comes from the Australian Constitution. Section 51 of the
Constitution of Australia specifies the areas, which the Federal Government has
legislative power while powers not included are known as ‘residual powers.’ (AustLII) This system has
advantages for the Federal Government which is able to introduce laws that will
override state legislation if it exists on the matters specified in the
section. This section lists 40 matters that the Federal government may
legislate on. The introduction reads:
"The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth." (Section 51)
Although this may be seen as a disadvantage the matters covered are those that one would expect a "responsible government" to control such as international trade, taxation, postal and immigration. (Wikipedia) Matters not covered by Federal legislation are left for the states to determine. Commonwealth legislation also prevails should state legislation be inconsistent with the law of the commonwealth:
"The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth." (Section 51)
Although this may be seen as a disadvantage the matters covered are those that one would expect a "responsible government" to control such as international trade, taxation, postal and immigration. (Wikipedia) Matters not covered by Federal legislation are left for the states to determine. Commonwealth legislation also prevails should state legislation be inconsistent with the law of the commonwealth:
"When a
law of a State is inconsistent with a law of the Commonwealth, the latter shall
prevail, and the former shall, to the extent of the inconsistency, be
invalid." (Section 109)
Furthermore
the Australian federal system of government is divided up into three
categories; legislative, executive and judicial. (PEO) In Australia there are nine
legal systems, though confusing at first it breaks laws up depending upon the
state you live in, which may be seen as an advantage for most Australians:
"The
eight state and territory systems and one federal system. However, it is the
state and territory criminal laws that mainly affect the day-to-day lives of
most Australians." (DOFAT, paragraph 6)
The ability for states to have different laws means the courts of each state may come to a different conclusion. While many laws vary throughout the states one law of interest to journalists should be the Defamation Act for the state they reside in. Pearson & Polden specify the main variations in the acts are the roles of judges and the jury:
"Juries are not used in civil trials in South Australia, the ACT or the Nothern Territory, so judicial officers perform all roles in those jurisdictions."(Pearson, page 186)
The ability for states to have different laws means the courts of each state may come to a different conclusion. While many laws vary throughout the states one law of interest to journalists should be the Defamation Act for the state they reside in. Pearson & Polden specify the main variations in the acts are the roles of judges and the jury:
"Juries are not used in civil trials in South Australia, the ACT or the Nothern Territory, so judicial officers perform all roles in those jurisdictions."(Pearson, page 186)
The absence
of a jury in the states mentioned could mean matters are not resolved as
"openly" as what they could be if a jury was present. This would
affect the decisions of courts in other states, however the inferior courts
would look to similar cases resolved by higher courts.
Although Australia's system of governance varies between the
states it allows each state to make laws in the best interests of their voters,
those in court are still protected and entitled to a fair trial.
Works
cited:
AustLII. "Commonwealth of Australia Constitution Act." Web
10 May 2013.
URL <http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/>
URL <http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/>
Australian Government, Department of Foreign Affairs and Trade
(DOFAT)."Legal system." Inc February 2012. Web 8 May 2013.
URL <http://www.dfat.gov.au/facts/legal_system.html>
URL <http://www.dfat.gov.au/facts/legal_system.html>
Parliamentary
Education Office (PEO). "Separation of Powers: Parliament, Executive and
Judiciary." Inc. 18 October 2012. Web 8 May 2013.
URL <http://www.peo.gov.au/students/fact_sheets/separation_powers_parliament_executive_judiciary.html>
URL <http://www.peo.gov.au/students/fact_sheets/separation_powers_parliament_executive_judiciary.html>
Pearson,
Mark & Mark Polden." 4th Edition The Jouranlist's Guide to Media Law."
Allen & Unwin, 2011. Print
Wikipedia: The Free Encyclopedia. Wikimedia Foundation, Inc. "Responsible
government." 31 March 2013.
Web 8 May 2013.
URL <http://en.wikipedia.org/wiki/Responsible_government>
URL <http://en.wikipedia.org/wiki/Responsible_government>
URL <http://en.wikipedia.org/wiki/Section_51_of_the_Constitution_of_Australia>
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