The Australian law consists of many layers of codified as well as uncodified law (Smyth and Mishra 2014). The layers can includes the constitution of Australia, the legislations codified by the Federal court of Australia, and the house of state level and territorial parliament, regulations and the common laws that are formed from the judge’s decisions. Common wealth is the intergovernmental organization (Lodhia and Jacobs 2013). Australian commonwealth is comprised of Australian mainland, Tasmania and various smaller islands.
The origin of commonwealth of Australia was established on the first day of January 1901. Australia has both representative democracy as well as constitutional monarchy (Rembar 2015). The constitution of Australia has created a system of government that is federal in nature. In Federal governmental system, division of power has been observed. The division is made between the states and central. There are six state governments in Australia.
As there is a combination of democratic as well as monarchial government in the system of Australia, the decision-making powers are divided within the state and the central of Australia (Garling et al. 2015). Queen, who is represented by Governor General, the senate and the House of Representatives, heads parliament of Australia. The parliament laws are imposed on the whole territory of Australia. One of the legislative wings of Australia is judiciary.
The commonwealth of Australia are comprised of six states and they are enjoying separate power making ability. The state governments follow the rules of their own constitution. Even the three structures of the government that is the legislative, executive and judiciary are also different as state wise. The word territories are those areas of Australia that are not the part of those six states. The government of Australia administers the governance of those territories. Australian territories are eight in number (Lecours and Béland 2013). There are some differences has been observed between the state legislature and the territorial legislature. The states power are regulated by the constitution, whereas the territorial power are regulated by the commonwealth law. The commonwealth law has given the territorial government a power of self-governance (Carr 2014). The territory of Australia can become a state if they got approval consent from the parliament. The necessary law regarding this system has been engraved within the section 121 of the constitution of Australia. Besides the state and territorial government, there is local government also that forms part of the Australian government system.
Legal structure: Before the establishment of Federal government, Australia was a colonial nation (Watts 2015). The commonwealth Act formed the federal government of Australia in the year 1901. There is a combination of British legality and traditional democracy of Australia in the constitution. According to section 51 of the Australian constitution, the federal powers of Australia are limited within the enlisted subject matters (Summers and Lowe 2013). The state legislatives have the power to enact laws on the enlisted subject matters. However, if there is any inconsistency arises in between the state legislative and the federal law, the laws of federal will prevail on the states. It is the jurisdictional power of the High Court of Australia to resolve the dispute between the power and constitutional consistency. Chapter III of the constitution of Australia confers power on High Court (Saunders and Foster 2014). In Australia, there are a few number of bill of rights are present that are allowed by the constitution. In Australia, constitutional rights are protected by way of separation of power. One of the most positive sides of separation of power is that the courts can perform its duties independently. The common law of Australia and the statutes are work as a shield for the protection of human rights.
In Australia’s court hierarchy, High court is the ultimate appellate court and it deals with both state law and federal law. In Australia, there are several courts with different nature and different jurisdictional authority. The judicial power relating to the federal system has been conferred on the High court as well as other courts of Australia. Besides High court, there are three types of courts, such as federal court, federal circuit court and family court. Though the high Court in Australia has blessed with certain powers including constitutional as well as appellate power, the Supreme Court is the superior court. The jurisdiction of Supreme Court is unlimited in respect of state and territorial level of Australia. The pecuniary jurisdiction of Supreme Court is also unlimited. There is no obligation towards the adjudicated matter of Supreme Court. The most important part of the Australian judiciary is that the family court and the federal courts are enjoying the same procedural powers like the Supreme Court. However, the territorial jurisdiction of those courts are limited and identified by the Statute.
Though the High Court of Australia has ample power in regards to the power to transfer a case to more appropriate court, but the power regarding the trial is limited. According to section 71 of the constitution, the High Court was established. The route of appeal can be finally achieved its aim through the High Court of Australia. Appeals can be made to the High Court by way of special leave petition. Though the Privy Council Act 1968 has abolished the procedure to make appeal from High court to Privy Council, it can be possible only theoretically. Section 74 of the Australian Constitution provides High Court to infer the appeal to the Privy Council.
One of the most important parts of the judicial structure of the Australia’s state legal authority is the federal courts. Matters relating to the corporation, industrial disputes, bankruptcy, immigrations, customs and trade practice are the main subject matter of the federal courts. The federal courts have both original as well as appellate jurisdiction. The family courts of Australia are mainly deals with the family problems and were established by the Family Law Act 1975. The commonwealth law has widened the power of the family courts by way of including the matters regarding the disputes over the children of non-married couples. The western part of Australia had first time taken up the choice of establishing a family court to deal with the family disputes and uniquely the family courts of Australia are mainly deals with the problems relating to the Western sides of Australia and not the whole part of the country. An aggrieved party has the option to go appeal to the appellate bench of family court. However, the decision of the appellate bench is binding in nature. The subject matter of Federal Circuit Court is a combination of both Federal court and Family court (Douglas, Atkins and Clift 2015). It has the jurisdiction over issues of multiple nature, like family disputes, child protection, administration law, copy rights, human rights and all that are within the scope of other two courts. The Australian Government has given the authority to deal more complicated case to the Federal and Family courts with a view to decrease the burden on the Federal Circuit Court very recently.
The most amazing factor of Australia’s legal structure is that each state has its own jurisdictional court and territory. One of the most unique parts of the judiciary system is that the decision of the High Court is binding upon the Supreme courts of Australia. Any step by the states as well as commonwealth legislation that snatch away the judicial power of the Federal courts are unconstitutional. However, the federal and the state courts can hear all the cases related to the federal nature by way of the doctrine of accrued jurisdiction. It enables the courts virtually deals with the issues that comes to light from the facts extracted from a case. Apart from these three common stanzas of courts, in Australia the presence of tribunal can also be observed. Tribunals are of two types, administrative and civil. The cases deal with these tribunals is less serious in nature.
Ethical base: ethics are those concepts that relates to the systematizing difference between the right behavior and wrong behavior. Almost every religion has its own ethical concepts. Australian Association of social work has the purpose to reform the society from its root. By social work it means to solve the problem, arises between the human relationships and to support people to their liberation towards the society. The fundamental elements of social work are human right and justice that enrooted within the society. The code of ethics of Australian Association of social work reflects the values with an intention to help the social workers so that they can act ethically and can achieve their professional aim. Australian Association of social work has its own constitution where a code relating to ethics has been maintained and the members of this association have to abide by the rules of that ethics. Code of ethics is the key points that provide the guidance regarding ethical practice, which are embedded in the profession based on social work. It emphasizes the sector relating to the social work and deal with it professionally. The rights between the employers and social workers are reciprocal in nature and the code of ethics provides guidance here. A provision regarding revision has been mentioned in the constitution of Australian Association of social work.
It is the work of the code to identify the purpose of the social work and acknowledged the professional obligation need to be followed by the social workers. The rules and obligation mentioned under the code and what the workers have to be followed are strict in nature. The ethical responsibilities of the code are not exhaustive as mentioned under section 5 of the constitution of Australian Association of social work. In any kinds of social work, the idea of responsibility plays an important role that controls the behavior as well as action of the members of the social works. In case of failure any terms of the code, there is a provision regarding this that directs a person to make a complaint against it.
The term legal philosophy depicts the key points of knowledge and a theoretical study on the particular branch of law. Philosophical base are deals with some common complexity regarding the legal system, which are universal in nature. The most general thinking on legal ideology are the criteria for the legal validity, relationship between morality and law, and above all the ultimate definition of law. The legal philosophy is based on some principles that are coined by some prominent scholars. They deal with the system of legal principle and theories that can define the base of law more clearly. Legal philosophies are generally implanted within the legal jurisprudence. There are certain points that can express the ethical and philosophical base of Australian Association of social work. This subject can well be understood by way of discussing some key points regarding social justice, professional integrity and respect for the persons. Sometimes some ethical dilemmas arises, when the workers have to choose any action that is alternative in nature and each of such action has the same moral consideration. Ethical practices are take place for the purpose of avoid those dilemmas. The values that are reflected by the ethical principles are encouraged the social workers and in case of conflict between those ethical values, they have to choose the one that have priority. Ethics and philosophy are the two main part of the legal system and they formed the base as well as the executor part of law. The ethical decisions are based on the context of supervise the power. However, it may sometimes be difficult to make the right decision. Many models have been introduced to tackle those dilemmas. The models are mainly used in critical reflection and judgment. The philosophical and ethical strengthen the base of legal formation and those ethics are very much related with the ethical principle of Australian Association of Social work.
Principle of negligence: the word negligence has derived from the Latin term negligium that means to neglect. Negligence takes place on the failure to take rational care in case of avoiding injury caused to others. It is an inability to foresee the damage, which a prudent man can do. In cases related to negligence, there should be the essential present. The defendant or wrongdoer has owed a duty to the plaintiff or victim and negligence arose when the defendant failed to follow up the duty. The amount of punishment depends upon the damage by the wrongdoer. In negligence cases, the burden of proof is lying on the plaintiff. Plaintiff has to proof that he has suffered from injury by the breach of duty caused by the defendant. Law related to negligence in Australia are discussed through the law of Tort. In Australia, the intention of the wrongdoer for commit trespass is irrelevant. In Williams v. Milotin [1957] HCA 83, the High Court of Australia that it is immaterial whether the defendant had any intention to cause damage to the plaintiff or not. The main thing is that by the negligent act of the wrongdoer, the plaintiff had sustained injuries.
In this case, the plaintiff had brought an action against a truck driver by stating that his bike was struck due to the negligent driving of the defendant. However, the cause of action regarding the case was arose in the year 1952 and the summon was delivered in the year 1955. The defendant took the plea that the case is time barred and attracted the provision of section 36 of the Limitation of Action Act, 1936. The High Court of Australia, however, passed its order against the defendant by set aside their plea.
Section 36 of the Limitation Act has provided some wrongful acts that should not be filed after the period of three years. However, there is an exception that these limitations are applied to certain offences and to all cases. This case is not attracted any of the provisions, thus it is not right to bar the case on the ground provided by section 36 of the Limitation Act. According to the defendant, section 35 of the same said Act has included the trespass and the nature of this case is quite same as against the trespass. Thus, this case should be included within the limit of the provision of section 35 as well as section 36 of the Limitation Act.
The plaintiff brought an action against the defendant on the ground of negligent trespass. The truck of the defendant was rammed the bike of the plaintiff. The ingredient of this case attracted one of the essential of the negligence that is the damage, which is particular in nature. It was the duty of the driver, being a prudent man, to take reasonable care while driving on the public road. The plaintiff has filed the case on the ground of trespass. However, from a detailed analysis of the case, it was revealed that damage and due care are not the essentials of trespass, but are the essentials of negligence. However, the violation towards the protection ensured by the law is covers the essentials of the trespass. Intention plays a key point in the commission of an offence relating to the traffic violation. However, the intention of the driver is not relevant in this case as it is quite enough to proof the fact that the driver or the defendant of this case had failed to perform his duty properly. The plaintiff had able to proof the case and all the evidences adduced by the plaintiff has showed that the defendant was failed to take due c are towards the passerby and to the plaintiff. The particulars of this case have reflected the provision of negligence. Thus, this case is quite competent to be a case of negligence. The Supreme Court of the South Australia had pronounced its judgment against the defendant and the aggrieved party had filed an appeal against the decision. The High Court of Australia also set aside the plea of the defendant and preferring the views of the judges of the Supreme Court.
It is a well known fact in the Australian’s law on negligence that the burden of proof is lying on the plaintiff in regards with the case of negligence. It was observed in the case of Venning v. Chin [1974] 10 SASR 299. In Pingel v. Toowoomba Newspaper Pty Ltd [2010] QCA 175, a newspaper agency had published some defamatory statement as against a person whose name is similar to the name of the plaintiff (Austlii.edu.au 2017), The plaintiff had brought an action against the agency. According to the provision of section 10AA of the Limitation Act the filing period of the defamation case expires after one year (Bartlett III 2015). In this Act, there is a provision has been included for the purpose of extend the time regarding the defamation. As per section 32A of the Limitation Act, if there is sufficient reason to show that there is an extension regarding the limited period is necessary regarding the filing, the court has the option to accept the case. Section 13 of the Defamation Act allows the defendant to make the amendment relating to the defamatory statement. As per the provision of section 15(1) (g) of the Defamation Act, there must be a reasonable correction in that publication. It is a legal offence to say something in the name of any person without having particular evidence. The newspaper agency has failed to show sufficient care towards the persons having same name, by non-mentioning the identification of that particular person they wanted to mean and held liable under the offence of negligence.
The effect of this offence on the society as well as the culture of a state is serious in nature. People should be taken the due diligence regarding their regular life, especially while they are engaging in some public based work. The sociological as well as the cultural overview of a state is partially depends on its rate of crimes. Negligence is such a social disease that infects the whole nation. The above noted cases have shown the consequence if any person failed to perform their duties carefully. Being a citizen, all owe certain duties towards the society as well as to the nation. One should be more careful to this.
The ultimate purpose of social work in Australia is based on the maintenance of human well being (Baldwin 2016). The human potentiality is developed by the social work system. The social problems are very much affected by the problems related to the malfunction and absence of equality among the members of the society. It is the duty of the social workers to develop the seeds of equality among others to bar the obstacles relating to the difference among others. The main key points of the social work are based on the principle of human rights and social justice (Donelley 2013). In order to avoid the structural inequality, amicable assistance towards the every individual is necessary. In Australia, the Australian Association of Social Workers maintains the social inequalities (Harvey 2013.). The Australian Association of Social Workers was established in the year 2008 by the Constitution that is particularly enacted for the well-being of the association.
The Australian Association of Social Workers has its own code of ethics that ensure its professional aims (Hepworth, Rooney,and Strom 2016). An association is made for the benefit of the society and it is the duty of every individual to maintain the social norms so that there shall be an atmosphere of sovereignty. The code of ethics is promoted with a view to reduce the rate of inequality and separation among the people (Rowsell et al. 2015). The ultimate purpose of the code is to ensure the principles of equity, justice and morality. There should be collaboration between the effective practice and the conception of fairness should be established within the sphere of the society. It is a universal notion that in order to maintain the social harmony, there must be a coexistence of family value as well as community value. Any changes that are positive in nature is able enough to bring the growth in the human-based society. Social reform can be done by promoting the idea of human rights too.
The code of ethics expressed its support towards the integral value and responsibilities of the society. In a society, there are so many layers are co-habited with each other. One must maintain a good communication link regarding all of this. If any one of the link got tattered, the chain of social harmony could be diversified. Ethics helps to understand the moral judgment relating to right and wrong (Ugazio, Majdandži? and Lamm 2014). All the members of the association agree the norms mentioned in the code of ethics. The purpose of the code of ethics is to evaluate the values that are embedded on the principles of social ethics. It is the responsibilities of the workers to reflect the motto or the principle of the ethics by way of their working. There should be a mutual understanding among the all steps of the society. In a society, reciprocal rights are being seen among the every individual. If there is any necessity to change any provision of the code of ethics, the same can be done as per the provision of the constitution. If any member of an association is unable to follow up any provision mentioned in the code, punishment can be made against them by way of filing complaint.
For achieving the professional aim, the base of social work is depend on the three pillars that are minimum respect for the person, built up social justice and to achieve professional integrity. It is an international norm that each person hold their respective value that are ensured by the moral principle of law and they have the inherent dignity that is engraved within them. It is the duty of the society to show respect to the persons not only individually but also collectively. Respects does not denoted the self respect, it also mean the respect that should be showed towards the action done by them. Social justice is one of the main themes of social work (Greenberg and Cohen, 2014). It is the responsibility of the society to provide maximum benefit to its members. The motto of the social work can be possible by way of promoting justice and fairness within the society. This helps to reduce the social inequality and disharmony within the society. The principle of professional integrity is based on the values relating to the doctrine of honesty, empathy, reliability and self-awareness. The members of the association should have skilled enough to resist the violation regarding the social malfunction. The members have to show every possible dignity towards the society.
During the social reform, it can be seen that the workers faced some ethical dilemmas. Those dilemmas may arise from the complexity of come to a decision regarding the alternative course of action. Those dilemmas can be resolved by way of a systematic process. The job done by the social workers are influenced the aspects of the social frames like spiritual and societal values.
It is understood from the previous assignment that the society has a huge responsibility towards the nation and the member of this society have enjoyed the reciprocal duties towards everyone. It is a fact that the society has to be faced a number of potential risks that sometimes create serious impact on the image of the society. One of such risk factor is the negligent act by the individual. Negligent act arose from the lack of showing due diligence towards the people (Cassell 2016). If a person alleges to be guilty of the act of negligence, he is get punished for the violation of legal norms as well as the principle. There are plenty of cases that take place in the society of every country. In Australia too, this kind of negligent act can be seen and it becomes a potential threat towards the social reforms. The Australian Association of Social Workers has been established with a view to eradicate the social ill like negligence. It is the duty of the association members to spread the message opposing that social disease.
It is important to identify the potential risks by abide by the principles laid down under the code of ethics and those others documents that are ensure their opposed mentality against the societal risks. There should be transparency regarding the decision-making procedure. The social workers should have to maintain their responsibility while carrying out their duties. The ethical responsibilities are enshrined under the provision of section 3 of the code of ethics.
There is one provision regarding the general responsibility of the social workers. It is the duties of the workers to demonstrate the dignity among the individuals. The workers have their impression over the various sectors of the society. They have created impression upon the cultural grounds or the historical and the societal grounds. The social workers have enlarged the cultural sensitivity by their ethnic identities and help to grow the amicable culture among the society. It is important to retain harmony within the spiritual as well as the religious views of the individual. Even the workers are promoting policies with a view to equity and legal protection ensures to all. However, it can be stated that the Australian society are very much depended on the association and the social disease of the society can be eradicated by the strong step taken by the association for the interest of equity, integrity and justice.
Reference:
(Baldwin, M., 2016. Social work, critical reflection and the learning organization. Routledge.).
(Donnelly, J., 2013. Universal human rights in theory and practice. Cornell University Press.).
(Hepworth, D.H., Rooney, R.H., Rooney, G.D. and Strom-Gottfried, K., 2016. Empowerment Series: Direct Social Work Practice: Theory and Skills. Nelson Education
Austlii.edu.au. (2017). AustLII Results – title(Pingel and . Toowoomba Newspaper Pty Ltd [2010] QCA 175 (11) ). [online] Available at: https://www.austlii.edu.au/cgi-bin/sinosrch.cgi?query=Pingel+v.+Toowoomba+Newspaper+Pty+Ltd+%5B2010%5D+QCA+175+%2811%29+&results=50&submit=Search&mask_world=&mask_path=&callback=on&method=auto&meta=%2Fau [Accessed 17 Jun. 2017].
Bartlett III, R.P., 2015. Do Institutional Investors Value the Rule 10b-5 Private Right of Action? Evidence from Investors’ Trading Behavior following Morrison v. National Australia Bank Ltd. The Journal of Legal Studies, 44(1), pp.183-227.
Carr, A., 2014. Is Australia a middle power? A systemic impact approach. Australian Journal of International Affairs, 68(1), pp.70-84.
Cassel, D., 2016. Outlining the Case for a Common Law Duty of Care of Business to Exercise Human Rights Due Diligence. Business and Human Rights Journal, 1(02), pp.179-202.
Douglas, J., Atkins, E. and Clift, H., 2015. Judicial Rulings with Prospective Effect in Australia. In Comparing the Prospective Effect of Judicial Rulings Across Jurisdictions (pp. 349-358). Springer International Publishing.
Garling, S., Hunt, J., Smith, D. and Sanders, W., 2013. Contested governance: culture, power and institutions in Indigenous Australia (p. 351). ANU Press.
Greenberg, J. and Cohen, R.L. eds., 2014. Equity and justice in social behavior. Academic press.
Harvey, D., Plummer, D., Pighills, A. and Pain, T., 2013. Practitioner research capacity: a survey of social workers in Northern Queensland. Australian Social Work, 66(4), pp.540-554.
Lecours, A. and Béland, D., 2013. The institutional politics of territorial redistribution: Federalism and equalization policy in Australia and Canada. Canadian Journal of Political Science, 46(01), pp.93-113.
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Rowsell, A., Muller, I., Murray, E., Little, P., Byrne, C.D., Ganahl, K., Müller, G., Gibney, S., Lyles, C.R., Lucas, A. and Nutbeam, D., 2015. Views of people with high and low levels of health literacy about a digital intervention to promote physical activity for diabetes: A qualitative study in five countries. Journal of medical Internet research, 17(10).
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