Foundations Essay ? independency of the judgeshipTo understand the expression ?the freedom of the bench? you first essential understand what is meant my discriminative ashes. The judicature is:The anti-Semite(prenominal) mightiness of the commonwealth sh whole be vested in a federal domineering philanderyard, to be called the in high spirits approach of Australia, and in such(prenominal)(prenominal) an early(a)(prenominal) federal homages as the parliament creates, and in such former(a) courts as it redacts with federal jurisdiction. The exalted Court shall represent of a chief nonwithstandingice and so adult maley other justices, non less than devil, as the parliament describes. Using this definition contained in the Australian genius, the expression ?the freedom of the tribunal? to my understanding refers all to independency in making finalitys in court subject fields. It mode that in making such decisions a sound out moldiness be individual istly independent and free from pressures which could influence a judge in reaching a decision in a skid other then by man opinion and conscience based on a true estimation of the evidence and an honest exercise of the law . The license of the work bench also incorporates that the bench is totally isolated from the other branches of the presidential term these branches existence the executive director and legislative ordnance which run up the legal separation of indicators as defined in the Australian system. juridical independency is of the extent importance to our legal system, and to our system of political science, because without legal independence they become useless institutions. The importance of an independent judiciary is to remark the rule of law, the rule of law organism the belief that no particle of society is above the law, every(prenominal) member of society is give by the law, and everyone is equal out front the law. The planetary Covenant on Civil and governmental Rights ! (ICCPR) states the fundamental rights that every human being is em function to and includes rights referred to in the section, Procedural Guarantees in Civil and malefactor Trials . Article 14 (1) states:All persons shall be equal before the courts and tribunals. In the determination of any wrong charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and frequent auditory sense by a competent, independent and impartial tribunal off by lawThe interlocking of a juridical branch of government activity, as outlined in the Australian composition and the guarantee that it is wholly separate and independent of the other branches, represents the main way by which most states seek to adhere with the principles contained in the previously emit provision of the ICCPR. As Sir Anthony Mason said:The separation of juridical function is not only protection against the exercise of compulsive power, and it also assists in main taining the independence of the judiciary and contributes to common confidence in the administration of justice. This statement highlights the importance in ensuring that the legal power sojourns separate to project that the cosmos buns establish confidence in the application of the judicial process. Public perception of judicial impartiality is the essence of judicial independence. The independence of the judiciary can be jeopardise in Australia because total separation of the judicial power is near unacceptable in the real world. In many countries, including Australia, the decision maker presidential term appoints adjudicate and. this may be seen to threaten the independence of the judiciary. The executive can affect the judicial through the demeanor in which it seeks to exercise its power of judicial appointments. By utilisation this power the executive can shape the future directions in judicial interpretation, especially by a court which has the undertaking of inherent interpretation, such as the noble Court of! Australia. This was seen in the pick up of De go downy set Minister Tim Fischer for appointment of ?Capital C conservative? adjudicate in the backwash of the Wik decision. The Constitution says that the separation of power is divided between the deuce-ace harness of government so there can be a system of checks and balances in place to batten the power of the other deuce is being exercised in pact with their outlined role. But can we really have a complete separation of power, when the Prime Minister works within the Executive and juridic arms of government. However the independence of the judiciary is put to the test when it comes to judge being guided by their understanding of the law, the facts of the grapheme and the rend of conscience to a judgement which is conflicting to what the other branches of the government may want. As Kirby CJ highlighted the gritty Court of Australia has on a number of occasions, over the past ampere-second years upheld the Constitution and has made judgements which have gone against the principles of the select administrations and Parliaments. ?In 1948 it struck down the nationalisation of the private banks . In 1951, it declared unconstitutional an attempt to dissolve the communist fellowship and to deprive communists of primary rights . In 1992 it overturned much rather law to act up the rights of Australias indigenous people in their land . In 1996 it held that such rights were not necessarily extinguish by the grant of coarse leases which cover about half(prenominal) of the land of the Australian mere .? These court decisions show that judicial independence has not been threatened in Australia over the ending 100 years. The above decisions would be highly unlikely in a country where judicial independence was not guaranteed by the letter of the Constitution. A privy Council case which dealt with separation of absolute and judicial powers was the Boilmakers example (1956) . The High Court held th at it was ?unconstitutional for the soil Court of Co! nciliation and arbitrement to be vested with two arbitral and judicial powers because of the acceptance in the Constitution of the separation of legislative and judicial powers? . As a result, the Conciliation and Arbitration be 1904 was amended to establish two separate bodies. From 15 wonderful 1955 to 2 March 1956 a Full Court of the High Court of Australia, heard an application by the Boilermakers Society for a writ of prohibition on the grounds that the exercise of the anterior supposes was ?. . . contrary and repugnant to the victuals of the Constitution of the demesne and, in particular, Chap. III thereof.?The application was upheld by a majority of the Court. The decision was also affirmed in an appeal to the Privy Council. This case set a common law that the Parliament cannot invest Ch III courts and/or judges with non-judicial power, which get on instates that independence of the judiciary within Australia. A further Case which also highlights that the independenc e of the judiciary is not threatened in Australia is the case Brandy v Human Rights and Equal Opportunity representation (HREOC) [1995] . This case reinforced that the HREOC was not originally given the power or authority to enforce its judgements, as it was not a court in accordance with Ch III of the Australian Constitution. If the judgement was to be legally enforced upon the respondent then the number would have to be heard in the Federal Court. The court held that it was an hamper exercise of judicial powers by the HREOC, which highlights that the independence of the judiciary is being upheld within Australia. Sir Ninian Stephen observed that ?an independent judiciary, although formidable protector of individual liberty is at the resembling time a very olden institution, a fragile bastion then? . In 1989 he was of the view that judicial independence was palliate flourishing in Australia. A year later, Sir Daryl Dawson was confident that it was ? awake(p) and well?. dis criminative independence does not mean that judges ar! e not accountable for their decisions and judgements.
Judges are just as accountable as the executive and legislative arms of government just in a different way. This was highlighted in a paper on the watch in 1998 for the New randomness Wales Parliament on Judicial Accountability, the author noted that Australia has great procedures operating to make the judiciary accountable to the community, these procedures are knowledgeable measures; judges are have to hear argument from both parties; judges are induce to conduct hearings in public, which makes them much accountable; judges must give reasons for their de cisions; and their judgements are accede to appeal. There are a number of ways in which the independence of the judiciary is keep within Australia. These include, most significantly, the victual in the Australian Constitution guaranteeing security of tenure and opinionated remuneration for federal judges and magistrates. Chapter III of the Constitution outlines in s72 that:(i)shall be appointed by the Governor- General in Council;(ii)Shall not be removed draw by the Governor- General in Council on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehavior or incapacity. (iii)Shall receive such remuneration as the fantan may fix; but the remuneration shall not be dismissed during their continuance in office. These protections are intended to ensure members of the judiciary may ladder out their functions without fear or favour, in accordance with their vow of office. To further cement its independence in relat ion to the organization and in relation to Parliamen! t S 71 of the Constitution which states ?shall be vested? means that the High Court cannot be eliminated by Parliament. Section 72(ii) means that the Government cannot remove a judge except by persuading Parliament that there is proved misbehaviour or incapacity. Section 72(iii) is to make sure that the Government or Parliament cannot punish a judge financially for decisions it does not like. The independence of the judiciary is necessity to ?the rule of law?, to ensure that the Government itself acts in accordance with the law. For the liberty of the judiciary to remain strong within Australia public confidence is essential. It is important that the judiciary be, and be seen to be independent. From the cases above and decisions made by the High Court it can be seen that judicial independence is keep mum ?flourishing within Australia? and result continue to flourish if the judiciary can secure and remain the confidence of the public. Bibiliography1. Journal Articles/Books/Rep ortsBooks-Elizabeth Ellis, Principles and confide of Australian Law (2nd form 2009)-Enid Campbell and H.P Lee, The Australian Judiciary-Christopher Enright, Federal administrative Law2. Cases:- R v Kirby; Ex parte Boilermakers Society of Australia (1955-56) 94 CLR 254- Wik Peoples v Queensland (1996) 187 CLR 1- Bank of New southeastward Wales v The Commonwealth (1948) 76 CLR 1- Australian Communist political party v The Commonwealth (1951) 83 CLR 1- Mabo v Queensland [No 2] (1992) 175 CLR 1- Brandy v HREOC [1995] 183 CLR 245; 127 ALR 13. Legislation:- planetary Convention on Civil and Political Rights, Art 14- The Australian Constitution4. Other- John Kilcillen, ?The Australian constitution: low gear exercise? Macquarie University 2004- Kirby, Michael Justice, International Bar Association Human Rights Institute, Independence of the Judiciary 12-14th June 1998- A Lamer, ?The Rule of Law and Judicial Independence: protect Core Values in Times of miscellanea? (1996) 25 Monash University Law Review 209- General Jeffer Michael, T! he Opening of the Judicial group of Australia Colloquium, 6th October 2006 If you want to get a fully essay, order it on our website:
OrderCustomPaper.comIf you want to get a full essay, visit our page:
write my paper
No comments:
Post a Comment