LAW SYSTEM IN AUSTRALIA

QUESTION

Purpose

This is a significant task that requires forward planning and adequate time for research, reading and reflecting. You should begin researching early to gather information and establish a plan as soon as possible.

The purposes of the assignment are to enable you to:

· develop your independent research skills;

· enhance your understanding of law as a dynamic process;

· learn how to independently research a particular aspect of the law;

· reflect on and consider particular legal issues;

· demonstrate understanding of the legal environment, including relevant laws as well as economic, ethical, social/cultural, international and political issues;

· develop your knowledge about the subject area of your research;

· demonstrate the ability to investigate, synthesise and analyse;

· communicate the findings in a formal price of work and meet a deadline;

· enhance your analytical and written communication skills; and

· apply your legal skills.

Your work must comply with the format outlined in the University’s General Guide to the Presentation of Academic Work publication, available online at: http://HYPERLINK “http://www.ballarat.edu.au/generalguide”www.ballarat.edu.au/generalguide.

Assignments must be accompanied by a signed official cover sheet (‘Plagiarism Declaration Form’), available online at http://HYPERLINK “http://www.ballarat.edu.au/business/resources/student-forms/assign-coversheet.doc”www.ballarat.edu.au/business/resources/student-forms/assign-coversheet.doc

On the cover sheet, please state your name, student numbers the paper name and assignment number also the reference system you choose to use, the word count for your assignment, and a signed honesty statement identifying that you are aware of the University of Ballarat’s policies on plagiarism, and that this submission is entirely your own work free of plagiarism and collaboration.

The length of the assignment must not be more than 2,200 words. Do not include the references or bibliography in the word count. This assignment is worth of 35 marks. Penalties will apply for late submission.

Task:

The assignment has two parts. Part A requires you to write an essay and Part B requires you to solve a problem scenario. Therefore, you should use essay format for Part A and IRAC format for Part B.

If you have any questions, please ask your lecturer or tutor.

Part A:

Write an essay comparing Australian Legal System with the legal system of your country of origin. (If you are a local student, choose any country’s legal system and compare it with the Australian Legal System). (10 marks)

Hints: You should write this essay in the context of information and knowledge you have gained from Topic 1 and then make a comparison with the legal system you have in your country of origin. You should endeavour to find some similarities and dissimilarities, if any. For example, your country of origin’s legal system may be also based on English Legal System like the Australian legal system, or you may have the same extent of separation of power in your country’s constitution. On the other hand, you may have a unitary system of government as opposed to Australia’s federal system of government and consequently there is no issue of power sharing between the State and Federal government.

Part B:

Kathy, based in Brisbane, is a renowned public speaker in the area of Human Rights. She is invited as a key note speaker at a two-day conference at the University of Ballarat’s Mt Helen campus on “Interplay between Human Rights and Economic Development”.Organisers of the conference promised Kathy accommodation and return tickets from Brisbane to Melbourne. Kathy is responsible for her travel to and from Melbourne Airport which is 121 kilo meters away from Mt Helen, Ballarat. It takes about 1 hour and 15 minutes by car but longer by other public transport.

Kathy’s key note paper“Generation Y and Intergenerational Rights” deeply moved the participants and especially Mark and Laura, students of Commercial Law at the University of Ballarat. Mark and Laura joined Kathy during the conference lunch and shared their views. They also offered Kathy a lift to Melbourne Airport on her day of return. Relying on Mark and Laura, Kathy made no other travel arrangements. Subsequently, neither Mark, nor Laura turned up to take Kathy to Airport. Kathy later took an airport shuttle bus from Ballarat to Melbourne Airport but ultimately missed her flight. Kathy had to buy a new ticket to travel back to Brisbane at considerable expense. Mark and Laura had to submit an assignment for Commercial Law on the day of Kathy’s departure and therefore could not keep their promise. Kathy is really upset even though Mark and Laura later sent an email with an apology.

Required: Kathy now seeks compensation from Mark and Laura for the loss she suffered due to non performance of their promise. Advise Kathy and refer to relevant case law and/or legislation if any, in support of your advice. (25 marks)

Hints: Follow the Issues-Rules(Laws)-Application-Conclusion (IR/LAC) model for your answer.

Assignment Assessment Criteria

You will be assessed on the extent to which you have:

· answered the task questions;

· used good English expression, correct spelling, good punctuation and grammar and have proof read your work;

· used a logical structure, with headings. (It is important that you develop the capacity to communicate professional advice clearly. In order to do this you need to carefully structure your answer in such a way that anyone reading your work is made aware of what is going to be talked about, and is led in a logical way through the arguments to a conclusion);

· been able to identify, set out and discuss relevant legal issues, legal principles and cases, as appropriate;

· used statutes and cases to support your arguments, as appropriate. You must rely on cases to explain/support/justify the arguments you are making but these cases can be obtained from textbooks. You are encouraged to use cases which have been discussed in the classes and which can be found in textbooks. The selection of cases, however, is up to you. What is important is how the cases you have selected support your arguments;

· analysed, argued or discussed as required by the task questions; and

· found, read and used other textbooks.

SOLUTION

Part A

Introduction: Australia and Pakistan (prior to the partition) were British colonies and there legal system has adopted the basic concepts of the common law system. In common law system the source of the law are the decisions that have been taken by judges in various cases. Other than the judge made law there are legislation made laws and statutes. Statute sometimes can supersede the judge made law. Statute is made by the ruling government by the power conferred on tem by the constitution. Constitution is the principle law and every law passed by the legislature need to be in conformity with the Constitution. The common law were adopted by the Commonwealth of Nations and wherever British have ruled except in Malta. Though both Australia and Pakistan are common law jurisdictions there comparative study revealed the following facts about the legal system of both the countries.

Common Law system:  the legal system of both Pakistan and Australia are based on Common Law of England and Wales i.e. both of the countries are common law jurisdictions.  The Pakistani law is also greatly influenced by the Islamic Sharia law.

Republic & Constitutional monarchy: Pakistan is a republic that is the government. The president of Pakistan is the Head of the State as well as Commander – in chief of the Army and is an elected head. The leader of the largest party is the prime minister. Republic means the head of the State is elected.(Bank,2007)

Whereas in Australia there is constitutional monarchy that means the head of the state is hereditary and not elected. Queen Elizabeth II is the queen of Australia and she is represented through the Governor-General who reaches to this position through appointment. In a constitutional monarchy the system of government has the power of the monarch as stated in the Constitution and utilizes these powers by the way of the procedure as mentioned in the constitution.

Federalism:  Australia is a federal state as stated by the Australian Constitution of 1901 and is known as the commonwealth of Australia. Under the federal system powers are distributed at two levels the federal and the states. Exclusive powers are vested in the federal government like the legislative power in trade and commerce matters and also in the matters of taxation, defense, citizenship and immigration. There are certain concurrent powers wherein both the state and the federal government can make laws. States and territories have their own separate legislative powers. Federal laws are applicable in all the states of Australia and in case of any dispute or any inconsistency between the laws at the two levels; it is the federal law that prevails over the state of the territory law. There are nine legal systems in Australia out of which eight are the state systems, a territory system and a federal system. At both the federal level as well as the state level there is separation of powers between the legislative, executive and the judiciary. It is the duty and the power of the legislature to make laws, and to execute and administer laws is the duty of the executive whereas judiciary is there to enforce and implement the laws.( www.pakistani.org,2012)

Pakistan is also a federal structure with federal legislature Majlis-i-Shoora that is the Council of Advisors and it consists of the Senate which is the upper house and the National Assembly which is the lower house. It is the power vested in the National Assembly and the Senate to introduce and pass laws except those which are finance bills. President has the final say in the matters of the bills other than finance bills and can prevent them from passing except in case the both the house in their joint sitting overrules the decision of the president by the majority members being present and voting on the bill. At the provincial level there are four provinces and all enjoy huge freedom in their internal matters. There is a governor and a chief minister with his councils of ministers.  The provincial assembly also has the power to make laws mostly in the areas of health, agriculture, and roads etc which are provincial subjects. The federal government can also make laws with respect to the health, agriculture and roads but not the basic law but the national policies or the international ingredients of these areas.

Ombudsman System: Both in the Australia as well as Pakistan there is a provision for the office of an Ombudsman which is known as Wafaqi Maohtasib in Pakistan. The main purpose of the Ombudsman office in Pakistan is to enforce administrative accountability by way of the power to investigate and correct if any injustice has been done to a person by any federal authority. Ombudsman has the power for compensation to be made to any person who has suffered injustice due to any maladministration. It is mainly to fill any gap that exists between the people and the administrator. The matters of international importance, national defense and some more strategic functions are excluded from the jurisdiction of the Ombudsman. In Australia there is an Ombudsman for each and every state because laws in all states are different other than this there is an ombudsman for the commonwealth of Australia that is at the federal level. All the government agencies come within the purview of the jurisdiction of the ombudsman. The common wealth ombudsman has also been rendered the power of defense forces.

Trial by jury: it is permitted in Australia per the Australian Constitution under Article 80. This Article of the Australian Constitution provides that an indictment offence against any of the law of the Commonwealth of Australia can be conducted by jury, and all such matters need to be conducted in that State wherein that offence was committed and in case if the offence was not committed within any of the State then the trial can be conducted at such a place which the Parliament prescribes. The first trial by jury in Australia was conducted in the New South Wales in the year 1841. Initially jury trials were there in Pakistan but in the year 1960’s these were abolished on the ground that these trials can be easily influenced by media and the public opinions. One of the judges in Pakistan has gone to the extent to call such jury trials as amateur justice. That means at present there is no jury trials being conducted in Pakistan though these are prevalent in Australia.

Judicial Precedent:  The concept of judicial precedent has derived its strength from the theory of stare decisis. By stare decisis it is meant that all cases of like nature should be treated in the same way. It is a general rule that lower courts should follow the decisions made by the higher court and should also be bound by their own judgements passed in other matters before them of the like nature.

The precedent can be considered by the judges to decide matters of the same nature. Precedents are of four types the (i) persuasive – worth considering (ii) binding – mandatory for the lower courts to follow it (iii) declaratory – applies the existing precedent and (iv) Original – creates a new rule.

Judicial precedent that is the judge made law is the concept that has been recognized in both the countries.

Separation of Powers:  In Australia there is a clear cut distribution of powers between the executive, legislature and judiciary. The legislative power that is the power to make laws is vested in the Parliament. The power to execute the laws made by legislature is invested in the governor general who represents the constitutional monarch that is the queen. The judiciary has the power to enforce and implement the laws. In Pakistan as well there is clear separation of powers between the legislature, the executive and the judiciary. The legislature at the federal and also at the provincial level makes the laws and the executives execute the laws as passed by the legislature. The judiciary has been rendered with powers to implement and enforce the law in the state. These are there different organs of the government both in Australia and Pakistan.

Court Structure:  Pakistan has several levels of courts. The highest court is the Supreme Court of Pakistan which is can try both legal and constitutional matters. It has also been granted the suo moto power to look into the matters of human rights. The Federal Shariat Court has the power to look into those matters and laws which are against the Islamic values as laid in their holy book Quran. There is a High Court in each province of the Pakistan and also in the federal capital. This is the appellate court.  Each district of Pakistan has a district Court having both civil and criminal jurisdiction. Then there are other lower courts like the Judicial Magistrate Courts, Executive Magistrate Courts and Courts of Civil Judges.( www.dfat.gov.au,2012)

Australia has superior and inferior courts. Superior courts are those courts are highest in court hierarchy and have unlimited jurisdiction and have been established originally. These courts can hear and decide matters of any nature and only a legitimate legislation can limit their power. Superior courts are the Supreme courts which are there in each of the Australian State and the High Court which is the federal court. All these courts are established by the Constitution of Australia and Supreme Courts by the State Constitution of the respective State. Inferior courts derive their power form the legislations and can decide only on issues which they have been permitted to decide by the Parliament. If the parties are not satisfied with the decisions of the inferior courts then an appeal can be made to the superior court.

Conclusion: Pakistan and Australia are both common law countries and are greatly influenced by this law of England and Wales. Still both the countries have many aspects which are different from each other like the jury trial system which is there in Australia is not there in Pakistan. Other points of distinction are that Pakistan is a Republic whereas Australia has a constitutional monarch. (Banks,2007)There is clear distribution of power at the federal and the state level in both the countries and all the organs of the government is the legislature, executive and   judiciary have their powers clearly established by the constitution. Both the countries follow the principle of judicial precedent while deciding the cases of identical nature. Australia and Pakistan both have given place to the ombudsman in their legal system. It can be safely concluded that the legal system of Australia and Pakistan has many commonalities and few differences.

Part B

Issues involved: Intention to create the legal relationship

Rules (Laws): It is required for a valid contract to exist that offer made by one of the party is with an intention to create a legal relationship. Usually in the social relations promises are made without an intention to create a legal relationship and this intention is one of the basic ingredients for the formation of a valid contract. Like for an example if A promises B to go to a restaurant for dinner and A fails to appear in the restaurant at the given time is not a valid contract and cannot be enforceable in the court of law as there is no intention to create a legal relationship. In the matter of Balfour v. Balfour (1919) 2 K.B. 571 the husband could not take his wife to Ceylon as her health was deteriorating and the husband promised that he would send £ 30 to her every month for her maintenance till the time they are away from each other. Husband failed to pay the money and wife brought a case against him. The court held that husband is not liable to pay her as there was no intention to create the legal relationship between the parties. In the matters which are commercial in nature it is usually deemed that there was an intention to create the legal relationship and it need to be proved otherwise. In Rose and Frank Co. v. Crompton & Bros. Ltd. (1925) A.C. 445 it was specifically mentioned in one of the clauses of the agreement that the arrangement between the parties need not be considered as a formal/legal arrangement and the arrangement is dependent upon the trust between the parties. It was held by the court of law that as the term specifically states it to be not a formal agreement there is no intention of the parties to create a legal relationship and hence cannot be enforced.(Lambris,2011)

Application:  The offer made by Mark and Laura to drop Kathy to the Airport is out of the social relation that has been developed between the parties during the course of the paper presentation by Kathy and a subsequent lunch. There was no intention of mark and Laura while making the offer to enter into any legal or formal relation with Kathy that means there was no intention to create the legal relation. Though Kathy could not reach airport on time and missed her flight and had to buy a new ticket for another flight, because of her reliance on the promise/offer made by Mark and Laura, she still cannot claim that money from Mark and Laura as there was no valid contract in the absence of an intention to create a legal relation.

Conclusion: Kathy cannot claim compensation for the loss suffered by her as there was no valid contract between her and Mark and Laura in the absence of an intention to create the legal relationship.

References:

1. 1.     Commonwealth of Australia Constitution Act – AustLII
2. 2.     The Constitution of Pakistan 1962
3. 3.     Australian government, viewed on 17^th feb 2012, www.dfat.gov.au
4. The Web For Pakistanis , viwed on 17^th feb 2012,www.pakistani.org
5. Online Lawyers Source, Verbal Contract Information,(2012),
6. Robin Banks, [2007], ‘Australian Legal System’, Hot Topics, legal issues in plain language
7. Lambiris, M. 2011. First Principles of Business Law. Sydney: CCH Australia

Legislations

1. Commonwealth of Australia Constitution Act – AustLII
2. The Constitution of Pakistan 1962

Cases

1. Balfour v. Balfour (1919) 2 K.B. 571
2. Rose and Frank Co. v. Crompton & Bros. Ltd. (1925) A.C. 445

LD39

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