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32093781 Surname Thantirige Given name Mahesh Kavinda Email mkavinda@gmail.com MBS502 Law For Business External 03 June - 2013 1 Assignment 1 Australian Legal System John Murphy

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Australian Legal System Introduction The Australian legal system developed from the legal system of United Kingdom, which was brought to Australia beginning in the 1770s 1. The Australian legal system is based on democratic principles and the protection of fundamental belief in the rule of law, justice and the independence of the judiciary2. Principles such as procedural fairness, judicial precedent and the separation of powers are fundamental to its legal system. The basis of the Australian jurisprudence forms from the common law 3 system was inherited from the United Kingdom at the time of colonization. The Australian Constitution 4 of 1901 established a federal system of government and distributed its powers between federal government and the states. It defined exclusive powers and concurrent powers, where there is any inconsistency between federal and state or territory laws that federal laws prevail and applies to the whole of Australia. Federal and state systems incorporates three separate branches of government which are legislative (Parliament makes the laws), executive (the executive government administers the laws) and judicial (independently interprets and applies the laws). Figure 1

Figure 1 - Structure of Australian Government

History found on - The first British contact with Australia occurred in 1688 & 1699 by William Dampier (Absolute Australia, Discover Australia Our Beginning). 2 The judicial authorities of a country; judges collectively by Federal Court of Australia Law and Practice 3 Case law developed in common courts. This term is sometimes used to describ all case law or judge made law. 4 Constitution: a set of rules or principles according to which a state or other organization is governed. The Australian Constitution is an Act that sets out the structure of federal government and the powers of federal parliament. 2

The Australian Court System The Australian court system is known as a common law system and divided into federal and State jurisdictions. Federal courts have jurisdiction over law made by the Commonwealth Government of Australia (Federal Law). The High court interprets and applies the law of Australia, which is the highest court. Also able to hear appeals from all other courts and those appeals are given on special request to importance or significant cases (Stanford v Stanford [2012] HCA 52). Before the Australia Act (Cth)5 was passed in 1986 the High court was not the end of the journey of cases. upon the unsatisfied decision made by High Court enables to appeal to the Privy Council 6 in the United Kingdom. After 1986 the High Court become the highest court of appeal on all matters and it is decided in the federal or state jurisdiction. Under the constitution, state and territory courts invested with federal jurisdiction and other federal courts are the Federal Court of Australia, the Family Court of Australia and the federal magistrates Court of Australia. The Family Court established in 1975 as a specialist family law court and sits at the same level as the Federal Court. Through its special judges and staff, the court helps to resolve complex family disputes. Also appeals from the Family Court go directly to the High Court. The Federal Magistrates Court sits below the Federal Court, most of the decisions of the single judges and the Full Court of the Federal and Family Courts are binding on Federal Magistrates. Its jurisdiction includes family law, unlawful discrimination, bankruptcy, migration, consumer protection and trade practices, privacy and industrial law. The jurisdictions of each court vary from State to State and each State has its own court hierarchy, where that court system operates independently. The Supreme Court sits at the top of each state court hierarchy. Also it has unlimited civil jurisdiction and handle the most serious criminal matters. Australia have two further levels of courts, District Courts handle most criminal trials for indictable offences. District Court is also the first stop for appeals from the courts below (Bohaul Express v Kirk [2012] WADC 105). Lower Courts dealt with lesser offences and those known as local or magistrates courts. The guilt or innocence of defendants determine by local court magistrates (R.A Robinson v. D.J. Kay [2013] AMC). The Coroners Court is outside the normal hierarchy. The Coroners Court does not settle disputes between parties. It looks into unexplained deaths and other events.

Act No. 142 of 185 as amended, An Act to bring constitutional arrangements affecting the Commonwealth and the States into conformity with the status of the Commonwealth of australlia as a sovereign, independent and federal nation 6 A council of the British sovereign that until the 17th century was the supreme legislative body, that now consists of cabinet ministers ex officio and other appointed for life, and that has no important function except through its Judicial Committee, which in certain cases acts as a supreme appellate court in the Commonwealth. 3

The Alternative Dispute Resolution (ADR) A conflict arises when two or more parties do not agree on a certain issue or behavior. This conflict may be of a commercial nature ( United Group Rail services Ltd v Rail Corporation New South Wales [2009])7 or it may be of any other nature ( Coleman & Anor v Leddy & Anor [2013]8). Certain conflict can be judge in a plain and distinct manner and this conflict can be name as a dispute9, can be examined by a third party (mostly a judge). One party has to litigate in front of the courts in order to resolve a dispute where litigation is just one of the solutions a party to dispute has. Litigation may be crowned with success but not always, depending on how complicate the dispute is litigation will be costly and lengthy. Number of techniques have been developed which provide alternatives to avoid futile litigation. These alternatives are referee to as Alternative Dispute Resolution ADR 10. Tribunal systems and State Courts deal with large numbers of litigated cases compared to federal courts in Australia. Family Court of Australia deals with large number of disputes, local courts throughout Australia deal with a vastly greater and array of civil, family and criminal offences. Most of the States provide for the mandatory referral of proceedings to ADR process. (Figure 2)

Figure 2 - Dispute Resolution Processes

Australian society has increasingly sought more informal mechanism to resolve its disputes, rather than relying on formal resolution of disputes by the Courts. ADR processes aim to provide more flexible options that can be both time and cost effective compared to judicial decision. Growth in ADR in Australia has resulted in its growing use in community organizations, government agencies, tribunals, private commercial organizations. With the increasing cost and formality of litigation, alternative dispute resolutions have become the favored tool of addressing disputes. ADR arrangements have been formalized in Australia and overseas through the creation and
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United Group Rail services Ltd v Rail Corporation New South Wales (2009) 74 NSWLR 618 at 622 [3]; Ipp and Macfarlan JJA agreeing 8 Coleman & Anor v Leddy & Anor [2013] NSWLEC 1094 Land and environment Court New South Wales 9 kind of conflict which manifests in distinct, justiciable issues 10 ADR is an umbrella term for process, other than judicial determination, in which an impartial person assists those in a dispute to resolve the issues between them defined by National Alternative dispute Resolution Advisory Council Australia. 4

growth of professional organizations11. While there are numerous forms of ADR, the most common forms are Mediation, Arbitration and Conciliation12. Mediation According to the definition of NADRAC13, Mediation is a process in which the participants to dispute, with the assistance of a dispute resolution practitioner (the mediator), identify the disputed issues, develop options, consider alternatives and endeavor to reach an agreement. The mediator has no advisory or determinative role in regard to the content of the dispute or the outcome of its resolution, but may advise on or determine the process of mediation whereby resolution is attempted. Mediation may be undertaken voluntarily, under a court order or subject to an existing contractual agreement. Confidentiality is one of the key techniques in mediation process in all ADR techniques 14. The second feature is that mediation is aimed to be a resolution in favor of both parties. In mediation involves a trained mediator facilitating a negotiation, but not making binding decisions. This process is quick, cheap and confidential. Also its conducted under the without prejudice head of privilege. Further discussions in mediation cannot be discussed in litigation or arbitration proceedings. Another key advantage of mediation process is that its focused on the interests of the parties rather than on their legal rights alone, additional factors come into play such as external commercial pressure, personal emotions and other surrounding circumstances. Apart from the above mentioned advantages, there are some negative side of the process such as its not appropriate where a court remedy is necessary (injunctions, specific performance). The mediator has no power to impose a binding decision on the parties and rarely produce a satisfactory resolution unless both parties to a dispute are committed to a resolution. Arbitration The parties present arguments and evidence to an independent third party, the arbitrator, who makes a determination defined by the New South Wales Government15. Arbitration is when the matter in question is determined by a professional arbitrator who is usually given the power to impose a binding decision on both parties. Arbitrator can, in that sense, be seen as a direct replacement for litigation and is usually complex and potentially expensive. Arbitration avoids using the courts and maintains confidentiality. It is advantageous for business institutions wishing to continue a business relationship after the dispute looking to minimise negative impact on its publicity. Compare to legislation, it is faster and more informal, also the exclusionary rules of a hearing do not apply. On the other hand everything comes into evidence so long as it is relevent.

11

Eg: Lawyers Engaged in Alternative Dispute Resolutions (LEADR), the Australian Commercial Dispute Centere (ACDC), Institute of Arbitrators and Mediators Australia. 12 Local Court NSW Australia Alternative Dispute Resolutions 13 National Alternative Dispute Resolution Advisory Council Australia 14 Alternative Dispute Resolution Attorney-Generals Department, Australian Government 15 Tribunal Services Attorney General & Justice NSW 5

Apart form the advantages, there are some disadvatages need to be count, such as mainly consern cost with arbitrations potentially taking a similar amount of time to litigation. Arbitrators award may only be appealed on the limited grounds of manifest error of law on the face of the award, one of the general public importances and the decision of the arbitrator is at least open to serious doubt or misconduct. In Australia, commercial arbitration is governed by uniform legislation in the different States and Territories, Commonwealth Arbitration Act 1984 (NSW). International commercial arbitrations in Australia are regulated by the International Arbitration Act 1974 (Cwlth). Advantages and Disadvantages of ADR One of the great advantages of ADR is that the parties have control over the process, where no waiting lists for courts and long drawn out formal process; instead an informal but faster and cost efficient process designed to achieve solution so that the parties can get on with business. Unlike the court system where everything is on the public record, ADR remains confidential (Welker v Rinehart (No 2) [2011])16. Court system is adversarial, where in the end one party gains and other loses. In contrast through ADR the parties get an opportunity to negotiate and arrive at a solution agreeable to both which is especially useful in situations of social dispute. Another advantage of ADR process is that it allows more flexibility than court process where parties are free to choose their mode of communication and encouraged to have creative discussions about range of options with an agreement which reflects the best possible outcome for all involved. Such agreements tend to last longer than those imposed by courts. One of the biggest disadvantages of ADR is its inability to operate justly in the face of power differences. A good example being a dispute between a reputed company or an organization and an individual, where the size and resources may put the individual at a significant disadvantage. ADR will be of very limited use in a situation where one or both parties are reluctant to mediate. There is no ruling on legal rights in ADR process and compensation awards decided upon tend to be lower than what might have been achieved through a court procession. It is a legally binding decision which cannot be revoked.

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Rinehart case Welker v Rinehart (No2) [2011] NSWSC 1238 , regarding the Rinehart family dispute,the discretion of the court to grant a stay of proceedings to give effect to a pre-dispute agreement for ADR was considered. 6

Works Cited Australia, Absolutely. "Discovery Australia ." About Australia - Our Beginning, 2013. Australia, Federal Court of. "Law and Practice." Federal Court of Australia. 1996 - 2013. http://www.fedcourt.gov.au/law-and-practice/legal-research/glossary-of-legal-terms (accessed May 28, 2013). Australian Government ComLaw. "Australia Act 1986 - C2004C00704." Australia Act 1986. Mar 31, 2003. http://www.comlaw.gov.au/Details/C2004C00704 (accessed May 29, 2013). Australian National University. "The Australian Legal System." Law. May 23, 2013. http://libguides.anu.edu.au/law (accessed May 29, 2013). Banks, Robin. Australian Legal System. Hot Topics: Legal issues in plain language , Sydney: Legal information Access Centre, 2007. Carr & Co. Divorce & Family Lawyers. Successful appeal to the High Court. 2012. http://www.carrco.com.au/high_court_successful_appeal.php (accessed May 29, 2013). Dstrict Court of Western Australia. "Bohaul Express - v- Kirk [ 2012] WADC 105 ." AustLii. July 06, 2012. http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/wa/WADC/2012/105.html (accessed May 30, 2013). Ellis. Principles and Practice of Australian Law. Thomson Reuters, 2009. National Alternative Dispute Resolution Advisory Council. "Glossary of ADR Terms." NADRAC. n.d. http://www.nadrac.gov.au/ (accessed May 30, 2013). R Hughes, G leane & A clarke. Australian legal institutions: Principles, Structure and Organization. Lawbook Company, 2003. Trade, Australian Government - Department of Foreign Affairs and. "Legal System." About Australia. February 2012. http://www.dfat.gov.au/facts/legal_system.html (accessed May 29, 2013). Workbook, Legal Studies. The Australian Legal System. n.d.