Comparative law and justice/Australia

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Basic information[edit]

Australia is a large country which is ranked 6th in the world for landmass, which measures at 7,682,300 sq km. [1] Australia is also ranked 54th in the world for population which is 21,262,641 as of July 2009. [2] As a oceanic country, Australia is bordered by two bodies of water, The Indian and The South Pacific Ocean. [3] Australia also includes Tasmania, an island off its southern tip. Its geographical features include large mountain ranges (The snowy mountains are home to Mount Kosciuszko, the highest mountain in Australia); important bodies of water such as the Savannah Gulf which is home to the Great Barrier Reef and Ningaloo; the Outback; and numerous beaches on the 18,000 km coast line. The climate ranges from 70% semi-arid in most of the country, to temperate in south and east Australia, to tropical in the Northern regions.[4]

Map of Australia
Map of Australia

The total population of Australia is 21,262,641 as of July 2009, [5] While its national capital is located in Canberra, the cities with the largest population Sydney, Melbourne, Brisbane, Perth, and Adelaide. Sydney is the most populous of these mainland state capitals [6] The total population has roughly 1 male per 1 female, 18.6% are 14 years old and younger, 67.9% are between 15-64 years of age, and 13.5% are 65 years of age and older. [7]

Australia has a rather small ethnic diversity, with 92% being white, 7% Asian, and the original inhabitants (aborigines)and others making up 1% of the population. [8] There is a large religious diversity, 25.8% are Catholic, 18.7% are Anglican, 5.7% are United Church, 3% are Presbyterian and Reformed, 2.7% are Eastern Orthodox, 1.7% are Muslim, 2.4% other, 11.3% unspecified, and 18.7% have no religion, according to the 2006 Census.[9] English is the most commonly spoken language in Australia, (78.5%) Chinese, Italian, Greek, Arabic, and Vietnamese are also spoken, but only around 1.5% for each of these languages. However, 8.2% were other and 5.7% unspecified. Aboriginal languages were grouped in other. [10]

Economic Development, Health, and Education[edit]

The Australian economy is fairly developed ranking 19th in the world with a Gross Domestic Product is $802.9 billion [11] The GDP per capita is $38,200 (24th in the world)[12] The Australian economy is driven by several industries, mining, industrial and transportation equipment, food processing, chemicals and steel. It is a gross exporter of coal, iron ore, gold, meat, wool, alumina, wheat, machinery and transport equipment. [13] The currency is the Australian dollar.

Australia, although industrialized and developed, only ranks 196th for infant mortality; having 4.75 deaths per 1,000 live births. [14] Males have a life expectancy of 84.14 years of age, this places Australia as 7th in the world.[15]

In Australia it is expected that by age 15 and over 99% of the total male population and 99% of females of the total male population; will be literate. [16] It is expected that males will spend 20 years in school from primary to tertiary education and females will spend one more year, at 21 years of schooling. [17] The country expends 4.5% of GDP towards education which ranks Australia 86th in the world. [18] Children are not allowed under any circumstances to "drop out" of schooling.

Brief History[edit]

The first inhabitants of Australia were the Aborigines, 60,000 years ago. This was before Cook and the Europeans arrived in Australia and began to map the lands. Europeans did however, name the animals, plants, and recorded the history. The British colonies in Australia were produced from mostly criminals sent to Australia from Britain for exile. On January 1, 1901 the nation was born from six Australian colonies that had been built. A constitution was made and proclaimed Australia's loyalty to England and England's monarch. This constitution formed the federal Government in Australia, now know as The Commonwealth of Australia. After WWII Australia became more multicultural and many convicts being brought to the colonies were able to thrive. An example of this thriving life is Gregory David Roberts who was once a criminal turned successful writer of the book Shantaram. In the past 20 years Australia has become a tolerant and cosmopolitan nation in our world.

Governance[edit]

Australia is a common-law country derived from The United Kingdom. Its government is described as a federalist and also as a parliamentary democracy. Australia is rated 8th for corruption in the world.[19].

Australia is governed by one Federal Government organized under the [1] one Federal Parliament in Canberra, six state parliaments in each of the six states (New South Wales, Victoria, Queensland, South Australia, Western Australia, and Tasmania) and two territory parliaments, The Northern Territory and The Australian Capital Territory. [20] The Federal Government is led by the Prime Minister, state Governments have chief ministers.[21] The federal judiciary consists of the High Court of Australia, the federal court of Australia, family courts, and the Federal Magistrates Court of Australia. Federal judges and magistrates are appointed by the government and have to have practiced law for at least five years prior to appointment. State governments vary, but follow and adversarial legal system with a high value on presumption of innocence.

Each local government can pass legislation or by-laws, in conjuction with the constitution. The Territorial and State police enforce these by-laws.

Elections[edit]

Elections are conducted locally and overseen by states for federal and state elections. Voting can be done by any Australian citizen 18 years of age or older, or has lived for at least one month at their current address. Any criminal serving a sentence of 3 years or more is not eligible. An election for the Prime minister is presented in Australia after he is picked by the speaker of the House of Representatives. The current political party is always lead by the Prime Minister at the time with majoritarian representation from the House. The current Prime Minister is Kevin Rudd.[22]

Judicial Review[edit]

The High Court of Australia adds to its common-law history, judicial review is used in cases concerning the Constitution and disputes. It also has the power to dismiss by-laws that do not adhere to the Constitution and produces decisions on matters that can not be handled in other courts.

Courts and Criminal Law[edit]

The court system in Australia is organized in a hierarchical system. Initial matters are handled in state courts first and then can be appealed to The Australian High Court. The only time that this is not the case, is in matters of the Constitution where if an interpenetration has been made, or where the court sees a principle law involved in a case which is publicly important. These cases will go straight to the High Court rather than starting in state or federal courts. These cases will also be heard by the full court which comprises all seven Justices (Judges) if available. The appeals that are heard by the High Court can come from the Supreme courts of states and Federal Courts. Thus, cases are heard by no less than two Justices. The High Court hears cases from arbitration, all the way to family law and trade practices.

Australia has an adversarial legal system. Trials have Justices and barristers (lawyers) who represent the parties present. An appeal book must be present in order for High Court trials, these books provide necessary information for the case, they are formed by the appellant's barrister. Court hearings also involve a counsel (jury) the number of the counsel can deffer depending on the trial and not all cases in court have counsel.

In Australia there is a presumption of innocence, and guilt must be proved. Like The United States the Constitution protects against self-incrimination and voluntary confessions. Voluntary confessions and statements, however, are allowed. A barrister is appointed to all criminals and appeals. Either side can enter an appeal, however once a case is appealed to the High Court, the final decision is binding and may not be appealed any farther. The High Court holds binding decisions over all courts in Australia.

Civil court hearings are used for dispute resolution and damages are often sometimes available to the prosecuting party. Australia has workers compensation, disability benefits, and national health care. The national health care system in Australia is much like the one in Europe and saves many companies from unneeded civil law suits, although there still are some law suits for malpractice.

Punishment[edit]

In Australia most offences even criminal are only punished by large fines. Murder charges have fairly long prison sentences, however there is no capital punishment in Australia. The last reported case of capital punishment in Australia was in 1967 [23] In cases of assault and theft there are much lesser prison terms. In some cases such as with speeding a loss of license or impounding of the car can occur. Some criminal offences are punished by imprisonment, but only in crimes seen as heinous. Australia is very strict with drug and drinking while driving offences. If someone is found with drugs of any kind they are immediately arrested. The same goes for drinking, there are what are called "Booze Buses" which are check points in the form of hospital buses in the cities at night, they will pull everyone out of the car and if the driver is drinking they will be arrested. If any of the passengers have drugs in their system or in their possession, they are also arrested.

As of June 30th in 2003 there were 23,555 prisoners in Australia. According to statistics the imprisonment rate has risen by nearly 50% in the past 10 years.[24] Fifty-five percent of prisoner in 2003 were male ages 20-34 years of age.[25] Between 1993 and 2003, the female prisoner population has increased by 110%, in comparison to a 45% increase in the male prisoner population.[26] Most of the prisoners in prison are incarcerated for drug offences, theft, and assault.

Prison conditions in Australia generally hospitable. However, there is now a push for another "Super max" prison to be built in Australia in the next couple of years. These types of prisons will host the mentally ill prisoners, terrorist suspects, and convicted inmates. There is regimented control in these prisons, especially for the terrorist suspects who do not have any visitation rights at all. Prisoners have health care and can practice their own religions. Punishment in Australia emphasizes treatment and confinement. There is a separate prison for women and men. One of the woman's prisons is located in Perth. Juveniles do not really have prisons, however if the juvenile is the at a certain age (determined by each state and territory court) they will be tried as an adult. If juveniles misbehave in school to where they are kicked out they are sent to special rehabilitation housing.[27]

Legal Personnel[edit]

Federal justices and Magistrates are appointed by the government on any given day. The person who is being appointed for these position must have at least five years of prior legal experience. More often than not they have previously served as a barrister. A Federal court judge can also be appointed if they served as a justice in a different court. Family court justices must be able to deal with family laws and law matters with proper training, experience, and a good personality for family courts. Judges are called Justices in Australia. All Federal Justices and Magistrates are only appointed at age 70.

Barristers in Australia are the equivalent of lawyers in The United States. Barristers are trained in the same manner as lawyers in America. Barristers must be trained in law school for at least three years. Upon graduation of law school the Bar for the area must be passed and then one year of supervised work must be conducted. The aplication for the bar is intensive and requires a full background check and requires the applicant to disclose some personal information in order to decide if the applicant can be considered as a Barrister.

Law Enforcement[edit]

Australia has several different police forces. There is one force for each of the six states and also The Australian Federal Police. Australian police forces are not closely associated with the military forces and military has no responsibility for the maintenance of civil order.

Australian police recruits must complete there secondary education in order to be eligibe for the recruiting process. University training is encouraged for all Australian Federal Police applicants. A extensive medical and psychological test are administered to each recruit. These test measure the physical and mental well-being of a recruit to ensure they are able to handle the day to day stresses of the job. Recruits are also evaluated on their overall suitability, competence, physical fitness, and character.[28]

Crime Rates and Public Opinion[edit]

Crime rates are fairly high in Australia. The most common offences are drug offences, with 86,470 total for the years 1991-1992. This estimates to 494.1 per 100,000 people.[29] Crime data in Australia are collected from the annual reports of Australian police forces for each year. It is likely that there is significant reporting error due to unreported crimes, such as rape and assault.

Public Opinion on crime and criminal Justice[edit]

People in Australia on average do not favor a "tough on crime" perspective. In fact crime has decreased in the past couple of years in Australia.In 2005 the victimization prevalence rate for household crime was 6.2%, compared to 8.9% in 2002. Comparisons with 2002 for all selected types of household crime showed statistically significant decreases in the prevalence rates for: break-in, where the victimization rate in 2005 was 3.3% compared with 4.7% in 2002 attempted break-in, where the victimization rate in 2005 was 2.6% compared with 3.4% in 2002 motor vehicle theft, where the victimization rate in 2005 was 1.0% compared with 1.8% in 2002. For personal crime, the victimization prevalence rate for 2005 remained unchanged from the 2002 figure of 5.3%.[30] Most Australians have faith in the Justice system in Australia.

Rights[edit]

Family Law[edit]

Family law matters are handled by each of the six states individually. There are not many restrictions on the marriage of adult couples, even same sex marriage is allowed in Australia. A special act was put in place for the same sex marriages in 2002, called The Act Amendment (lesbian and gay law reform) Act.[31]Marriages must be conducted by a minister of religion, by a State Registrar, or by other persons authorized by the Attorney-General. Notice of the intended marriage must be given to the official conducting the marriage ceremony at least one month but not more than six months before the marriage.[32] Other paper work must also be completed in order for the marriage to be official, fourteen days after the marriage has taken place. In 1991 an Act was introduced that required minimum ages at marriage of 18 for males and 18 for females. Marriages of minors (for males aged 16 or 17 and for females aged 14 or 15) are allowed only if a judge or magistrate issued an order permitting the marriage or with their parents permission. Under no circumstances may and juvenile under the age of 18 be married.[33]

Divorce is allowed Australia, however certain guidelines must be followed. One can separate without having to file any divorce paperwork. One must be separated for 12 months or more before one can officially file for a divorce. An application is taken by The Federal Magistrates Court, who then decides for or against the divorce. The splitting of properties is decided between the divorcees. This is rarely not taken to court unless absolutely necessary.

Like America, there is no right to child-bearing, and children can be taken from the home if there is suspected abuse or neglect. Adoption rights are obtainable, however they are not set in stone. Adoption of international regions is allowed, however the process is much lengthier. Same sex partners are allowed to adopt as well as male and female partners.

Inheritances are set up privately for the most part. Spouses are legally entitled to most of the spouses' land, buildings, etc. With a will more or less can be given to the spouse and children. There are no probate courts in Australia and any other matters concerning properties will be handled by one of the state courts first if there is any problems with inheritance.

Social Inequality[edit]

Women are unrepresented, although they have full citizenship rights, in some aspects of Australian life. For example women are underrepresented in managerial positions in the work place. They also remain unrepresented in the political era as well. There are a lack of family-friendly exceptions and maternity in the work place contributing to w omens under representation.[34] Women are also earning less than those men that are in top positions at work. This is not much different from other areas of the world, including America.

Minors do not have full citizenship rights. They are considered part of a protected community. Elders are also a protected community, however they do have full citizenship rights and are generally not treated much differently than other adults.

There is a severe discrimination against the Aborigines in Australia. In February 208 the Prime Minister, Kevin Rudd, made a public apology to the Indigenous people for abuses of Indigenous ancestors.[35] The Aborigines do not have access to equal opportunity health care in Australia and because of this the life expectancy is much lower for the Indigenous population. The is a lack of proper living areas, clean water, and healthy foods. Many Aborigines suffer from alcoholism. The Aborigines also have separate schools than most Australians, whom pay for private boarding education, thus the Aborigines may not receive a good education. There have been numerous attempts by amnesty groups to try and rectify this rising problem.

Human Rights[edit]

Rights in Australia range from protection of Free speech, religion, criminal trials, appeals, bail, and not to be denied the right to vote, and travel.Australians also have rights concerning children protection, health care, and marriage. Recently the right to own a firearm in ones own house was revoked and it has become a law that no person in Australia can own a firearm unless allowed by the Government (such as police etc.)There are many more rights, which are all practiced by the Constitution of Australia and reviewed consistently by the High Courts.

Immigrants who have not attained citizenship in Australia are supplied with some rights like health care, however, they are not given all rights. Immigrants also must be on some sort of visa in the country, school, work, spouse, or working vacation related. It is hard to gain citizen ship into Australia. All immigration paper work for permanent citizenship is done on a point system and so many points are given based on whether or not a person is attending school in Australia, has worked in Australia before, has vacationed to Australia, etc. After a persons temporary visa is expired, they must immediately leave the country. Also, while under a work visa one cannot keep the same job for more than six months at a time. Australia,also,does accept refugees and even has separate schools were people can volunteer to teach and help refugee children from the Middle Eastern areas.[36]

Works Cited[edit]

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