Legal system is a comprehensive term that is used to confirm the existence of the law; it also explains the law-making process and how this is enforced on everyone. The Australian legal system regulates all level of governments, organisations, and all people whether they are Australian born or have migrated here, and they must obey Australia’s regulations. The legal system here was developed from the United Kingdom’s legal system, as Australia was a colony of the British. At a glance, the British government granted restricted rights to their colonies, including Australia to set local government system. This was intended to developed laws in local area, also to deal with specific situation at that time. As a result, the legal system in each of the colonies started to develop separately. According to Carvan J (2010) the Australian law is adopted from several sources, including the rules of equity, parliamentary laws, delegated legislations, judge-made laws, and international laws. (Austrlian Legal System, 2007)
The application of these laws in the real world has become a hot debate as to whether the Australian legal system is based on justice and fairness. This is strongly related to the judge-made laws. Judge-made laws or common laws rely on the doctrine of precedent. This means that the decisions made by judges in the courts are based on previous cases that have similarities with other cases. The decisions in the doctrine of precedent are normally based on the higher authority court decision.
Nowadays, the Australian legal system has three powers, which are legislative, executive and judicial. Legislative power is in charge of making the laws; subsequently those laws will be passed to the executive power to administer the laws itself. At the end, the judicial power will interpret those laws. The rule of law guides people to behave lawfully. Laws are applied equally and are fairly enforced to everyone. The laws must be predictable, and allow every person to have access to the judicial systems. This means that laws are not arbitrary.
Fairness is fundamental to the Australian legal system. It is essential for the Australian legal system to assert that fairness is equally provided to all those who are subject to the legal system itself. An example of how fairness is a part of the financial service industry is a case between the Commercial Bank of Australia v Amadio (1983). It is clear from this case that fairness played an essential role in the court decision. The judges’ considerations in making the decision included unconscionable conduct and misrepresentation. This is an example of providing fairness and justice to the plaintiff. This was based on the Trade Practices Act 1974.
Another case based on fairness and justice is Qantas Airways Limited v Cameron, FCA 765, Federal Court of Australia (1996) was about misleading and deceptive conduct in violation of the Trade Practices Act 1974 (Act). The type of litigation was Enforcement Action by a...