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Introduction: Case Study Research Exercise
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Lawmaking is the procedure through which a concept of law is transformed into a statute that is implemented by the government. Legislative acts are known as legislation, while executive acts go by several different instructions, names, orders, and others. Finally, the canon of legal power is rounded out by judicial precedents and legal conventions. The aim of this essay is to analyse the lawmaking process in the parliament and courts of Australia. On the other hand, the effectiveness of decision-making in both parliament and courts along with the importance of having a court hierarchy in Australia also elaborated in this essay.
Task 1:
Making of laws by parliament and court decisions
Laws enacted by parliament are referred to variously as acts, statutes, and legislation. First, legislators discuss a Bill, which is a proposed version of an Act. If it wins approval from both parliament chambers' members, it will be submitted to the governor for ultimate endorsement. The legislation will become law once it has been passed. The term "royal assent" is used to describe this seal of approval (Au Gov, 2022). The citizens of Victoria and the courts within the state are required to comply with any laws made by the Victorian government. All federal courts in Australia must follow laws approved by the Commonwealth, as must federally judges.
For certain Acts, general rules or concepts may be established, but the particular ones may be left to be defined in subsequent rules, regulations, or local legislation. Delegated law is legislation that can be implemented by agencies, public authorities, local councils, or public employees who have been given the authority to do so. Common law, often known as judge-made law, is the body of law that has developed as a result of previous judicial decisions. Most choices are made with it when there is no applicable law on the table. Precedents are the decisions that judges have already made in cases that are identical to the one at hand, and are used by those who apply a common law to make decisions (Au Gov, 2022). In cases where parties differ as to the meaning or application of a statute, it is the judge's responsibility to interpret the law. After that, these adjudications become part of the common law itself.
Effectiveness of lawmaking by the Australian parliament
The "Senate and king as well as the House of Representatives" are the two houses that makeup Parliament. Presenting a bill in parliament is beneficial and effective as the members of both chambers debate the pros and cons of a bill that might affect society and the country. This opens a way to implement amendments in those bills in order to enhance the positive aspects of that bill and discard the actions that are not appropriate for society and the country. While making a law the interests and views of the Australian people are discussed by the parliament members which makes the law much more effective for acceptance in society (Au Gov, 2022). The assent of the governor of Australia is also important to examine if the proposed law is affecting the modern democracy of this country or not. Lastly, the king of this country examines if the bill that is passed from both the parliament houses is against or in favour of that country's constitution before making it an act. Thus, the law-making process of the parliament house of Australia is effective to examine the reliability and efficiency of a bill.
Effectiveness of law-making by court decision
Judges sometimes base their decisions on those they made in similar instances in the past known as "precedents". The court must provide a strong statement of constitutional concepts and incorporate those principles into its judgments when applying certain law provisions to specific cases. The interpretation of the principles may sometimes be not that effective and may have a wrong impact. Judicially enacted statutes tend to be less thoroughly considered than those crafted by legislators. They are always developing and changing which makes this process less effective (Au Gov, 2022). Because of this, they are flexible and receptive to change. Every precedent for judge-made legislation lays out in detail the facts of the dispute and the procedure the court employed to reach its decision. It is worth noting that different judges may have different opinions on different aspects of a case. This is an important factor to take into account while weighing the merits of a case.
Task 2:
Importance of court hierarchy
The Supreme Court's established order serves as a pillar for the appeal system and the notion of precedent in law. This court in the hierarchy is important as most of the complex drug cases, manslaughter, and murder cases are solved in this court under the decisions of experts (Libguides, 2022). The statutes define the jurisdictional scope of each court and tribunal, including whether they can hear both criminal and civil cases. It is possible for courts to have either original jurisdiction or appellate jurisdiction.
The High Court of Australia has three main roles: to interpret and apply Australian law, to hear appeals from the State Courts, Federal Court, and the Territory Courts (with special leave), and to decide cases of "special federal significance," such as challenges to the constitutionality of laws. The High Court also rules on constitutional challenges to laws and other matters of exceptional federal importance. This court is important to gain justice if any wrong decisions are taken in the lower level of the court. Moreover, these higher levels of courts are also needed in the hierarchy to reduce the pressure of several cases on the lower level of courts. In the case of Chen shi hai v Mima, it was seen that the High Court reversed the lower court's verdict because it determined that Chen did, in fact, belong to a "particular social group" as the phrase is commonly used (Informit, 2022). This is clearly indicating that wrong decisions can be taken by lower courts and the appellant has the power to go for proper adjustment just because of the presence of high courts.
The Supreme Court of Australia is the state's highest court, and it hears appeals from subordinate Australian courts and tribunals, as well as some of the state's most complex and important civil and criminal cases. Since the Supreme Court is the highest court, only the High Court of Australia can review its rulings. In the case of Commercial Bank of Australia Ltd v Amadio it has been seen that in Australia, this ruling has far-reaching implications for contract law and equity under “contract review act 1980” (Hcourt, 2022). The Supreme Court reversed a lower court's decision, holding that one party's lack of knowledge or education could lead to unconscionable dealing, and, as a result, the transaction could be nullified due to an unfair power differential. Thus, the decision of the supreme court was important to provide actual justice to the appellant.
The Federal Court presents as the important court in the United States and serves as a superior court of record, the court of law, and the court of equity. All of Australia's major cities, and many smaller ones, see it on a regular basis. As its jurisdiction encompasses virtually all civil disputes arising under Australian federal statute, as well as some preliminary and potentially criminal cases, the court has broad authority. "Directed Electronics OE Pty Ltd v OE Solutions Pty Ltd (No 8) [2022] FCA 1404" is an example of a case resolved in the federal court which falls under the Corporations Act 2001 dealt with Copyright infringement, contract breach, exclusive distribution agreements, breach of fiduciary duty, disclosure of secret information without authorization, breach of former employee's fiduciary and contractual duties, and violations of sections 182 and 183 of this act (Barristers, 2022).
Warrants for the detention or apprehension of a child, as well as the determination of parentage, fall under the court's family law jurisdiction, as do applications for divorce, proof of divorce, property disputes, spousal maintenance, and financial disputes, as well as parenting orders, orders enforcement, recovery and location orders, and warrants for the detention or apprehension of a child (Nsw, 2022). Each territory and state have its own set of laws and judicial system that are not the same as the rest of the country. Each state and territory's judicial system is under the direction of the state's or territory's Attorney-General or Minister of Justice.
Conclusion
Based on the above discussion it can be concluded that both parliament and the court of Australia play important roles in making legislation and acts in Australia the process of parliament decision-making is more effective than the court. This is because the decision-making process of parliament totally depends on analytical and logical methods as the decision-making process of the court is dependent on previous jurisdiction and verdicts in the same cases. Lastly, it has been found that court hierarchy in Australia is important to keep a door open for fair justice and mitigate the issue of immense sureness of several types of cases in a particular court.
References
Au Gov. (2022). Australian Democracy and Executive Law-making: Practice and Principle (Part I). https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/pops/Papers_on_Parliament_66/Australian_Democracy_and_Executive_Law-making_-_Practice_and_Principle_-_Part_I
Au Gov. (2022). Federal Register of Legislation. https://www.legislation.gov.au/Details/C2019C00216
Au Gov. (2022). How laws are made. https://www.legalaid.vic.gov.au/how-laws-are-made
Au Gov. (2022). Making a law in the Australian Parliament. https://peo.gov.au/understand-our-parliament/how-parliament-works/bills-and-laws/making-a-law-in-the-australian-parliament/
Au Gov. (2022). The effect of legislation on case law. https://lawhandbook.sa.gov.au/ch27s02s03.php
Barristers. (2021). Directed Electronics OE Pty Ltd v OE Solutions Pty Ltd (No 6) [2020] FCA 64. http://www.barristers.com.au/cases/directed-electronics-oe-pty-ltd-v-oe-solutions-pty-ltd-no-6-2020-fca-64/
Hcourt. (2022). HIGH COURT OF AUSTRALIA. https://staging.hcourt.gov.au/assets/publications/judgments/1983/006--COMMERCIAL_BANK_OF_AUSTRALIA_LTD._v._AMADIO--(1983)_151_CLR_447.html
Informit. (2022). Chen Shi Hai : the High Court's decision on China's one child policy. https://search.informit.org/doi/10.3316/agispt.20003470
Libguides. (2022). Court hierarchy. https://libguides.library.qut.edu.au/c.php?g=458197&p=6695060
Nsw. (2022). Contracts Review Act 1980 No 16. https://legislation.nsw.gov.au/view/whole/html/inforce/current/act-1980-016
