The legal system of Australia is derived from the English legal system and forms a part of the Western Legal tradition. The legal system is based on the Parliamentary legislations and case laws . The authorized legal system in Australia is the Common Law and it is a reliable source of law as it follows the doctrine of stare decisis or precedent. The doctrine states that the judges must follow the previous decisions made by the judges of superior courts. Due to the vast population diversity in Australia, there are legal systems that govern the Indigenous people of the country.
The Australian legal system is a representative form of government. The people of the country elect the members of the Parliament. Since Australia is a parliamentary democratic country, the federal system of the country has delegated the power to the local government and the parliament. The sources of authority include
In Australia, there is a commonwealth Constitution at the national level and each states have separate Constitutions respectively. The Australian Constitutional law is based on the principles that no power shall be exercised arbitrarily; every individual shall be treated equally before the law and the remedies available judicially are more appropriate than the conceptual constitutional rights. The power to regulate the federal law has been delegated to the three branches of the government- Parliament, Executive and Judiciary based on the principle of ‘separation of powers’. The regulating and governing power is divided between the parliament, executive and judiciary in order to ensure that these three branches are working separately and within the specified areas of responsibility and it enables them to keep a check over the actions of the others.
The separation of powers works together following the principle of responsible government, which would provide guidance to the making, and management of the enacted laws. Responsible government means that the parties are required to maintain the support of the majority members of the House of Representatives in order to linger to the government. This would act as a check on the Executive so that they are not able to misuse their power and remain accountable to the Parliament. The constitution of the country gives power to the Commonwealth or the Federal government and the state governments and restricts their powers as well.
The government of the country is a representative form of government where the people have the rights to elect the members of the Parliament. The government participation is indirect through the representatives who exercise the governing authority on behalf of them. The Australian courts provide limited recognition to the customary laws followed by the indigenous community of the country. In Mabo v Queensland [1992] 175 CLR 1, the courts held that the fact that Australia is a ‘terra nullius’ land that is, a land that is held by no one, is not true and the indigenous people had the right to claim their land ownership rights if they are able to establish their claim for the same.
Madayin is a form of ‘Aboriginal Customary law and there is not much elaborated and detailed formal recording or study of the Aboriginal customary law in Australia. It is an ancient law that has been existence for more than thousand years in Australia and governs the indigenous people of the country. the term ‘Madayin’ is describes as the complete system of the religious and customary law for the ‘Yolngu of Amhem Land’ which includes the general law, documents and objects that record the oral law, law, ceremonies, songs and institutions in relation to the law and and the sacred places that are related to the law. Fertility forms the foundation of the Yolngu customary religion and law.
Madayin claims mythical origins, either the existing origins or the ones that have been brought into existence by their ancestral beings (wangarr) at the beginning of the earth. The Madayin authority such as the Aboriginal religion is highly restricted to regional topography shared and owned by the members of the tribe. However, what is considered as sacred in the Madayin authority may not be considered as sacred in the neighboring Aboriginal normative systems. One of the significant Madayin Institution in the Arnhem Land is Ngarra, which is considered as a combined statutory and judicial institution. The observance of the Ngarra law leads to the attainment of magaya, which is described as a state of people living peacefully with each other and in a peaceful environment. The performance of the ceremony of Ngarra is said to bring about peace and harmony among the community. Mgaya is considered to to have laid the basis for the Yolngu governmental and legal system, which aims at providing a just and fair system that is regarded to be above the wants and desires of human being.
The Ngarra ceremony educates and makes the Yolngu aware of the Ngarra law; it penalizes the wrongdoers, including death penalty by sorcery; address disputes and resolve the same and the ceremony served to conduct trade as well. The disputes arising out of any discipline are settled through negotiation, in Ngarra. The Ngarra law does not support any attempt that is made to satisfy or fulfill any outraged principle; it is only concerned about peacemaking, restoring the status quo and the social balance, which is affected as a result of intolerable behavior.
The Ngarra law usually maintains plurastic approach toward the other normative systems and does not claim sole jurisdiction over its supporters. The Ngarra law has been existence from one generation to other, is considered sacred, and claims invocation of spiritual powers within the law. Capital punishment is regarded as one of the lawful punishments in the Mdayin system and any offence committed against the sacred is considered serious offences, which often results in death penalty. However, besides, the significance of the ancestral laws, the Madayin system also gives importance to new laws, old laws or even new decisions are made after Madayin law leaders come to a consensual agreement. Nevertheless, such deliberations and discussions may take days, months or even years and the decisions are never made based on majority.
Jewish law is the legal system for the Jewish people and it has originated during the Biblical times. The two primary sources of Jewish law are the written Torah and the oral Torah. The written Torah includes the first five books of the Old Testament. It also includes a considerable number of statutory rules and principles and various events from the legal principles may be deduced either directly or by using considerable imagination. The oral Torah includes the traditional legal principles followed by the Jewish people. It also contains legal rules but the rules are in verbal form as a result of which there are chances of disagreements among the legal authorities regarding the accuracy of the rules. The rules that were deduced from the written Torah also led to disagreements among the legal authorities throughout the history of Jewish law with respect to the ambiguity of the legal rules or principles. The absence of any authoritative legislature or legal code in order to address and resolve the disagreements, it became very difficult for the legal authorities to provide remedies to avoid disagreements.
Moreover, the Jewish legal system derived legal rules from other additional sources. One of such sources were the legal principles which the legal authorities developed by themselves. The Sanhedrin also acted as a source at the time of its existence and the individual scholars who developed the legal principles, which they considered to be consistent. However, the Torah did not imply such principles. Another source the legal authorities observed as legislation was in the form of interpretation. Further, the King was himself a source of legislation, however, he was substituted by the communal authorities whose authority to legislate was justified by the Torah.
During 200 A.D. the Misnahh was introduced which was regarded as a complete collection of legal rules or halakha. The Mishnah did not provide any definition of law and this led to several debates for several centuries which led to the formation of the Talmuds. The formation of the Talmuds built the Jewish legal system on three levels- the first was Torah followed by Commentary on Torah, concluding in the Mishnah. It was further followed by commentary on the Mishnah, concluding in the Talmud. The disagreements between the Torah, mishnah and Talmud were often resolved by applying the interpretation of the original sources or by developing legal fictions in order to eliminate constraints from Torah or Talmud. The communal legislation contradicted certain legal principles developed by the Torah and to some extent permitted individuals to do certain things that was forbidden by the Torah. Thus, the legislation was combined product of the communal authority and legal expertise, however, in case the legal expertise is unavailable, communal authority was sufficient. It was widely accepted that the communal authorities could easily legislate secular matters like criminal and civil matters but their legislative authority was restricted to religious law, family law related issues such as marriage or divorce. The communal authorities were dissatisfied with the fact as they wished to impose restrictions on marriage. For instance, they wanted ten witnesses to be present in order to validate a marriage. This was clear violation of the religious law as it would allow any woman to marry another person without divorcing her first husband and it would amount to violation of the religious law.
Some of the legal authorities were of the opinion that the communal authorities were entitled to prohibit what was permitted by the religious law but it was not entitled to permit what was forbidden by the religious law. The courts were authorized to award death penalty irrespective of the fact that the defendant has not satisfied the criteria provided in the religious law for punishing with death penalty. The courts were also authorized to punish an individual who has failed to pay his debts with imprisonment irrespective of the fact that such individual was unambiguously forbidden under the religious law.
The Jewish legal authorities faced difficulties in transmitting the law or the legal principles. The legal code that was provided to the judges was merely a statement of the statutory principles, which were construed by the author of the code in a manner, which the author considered correct, thus, not including any arguments for or against such interpretation. The Jewish legal authorities faced the issue relating to disagreement among the legal authorities regarding the application of the legal principles under new circumstances. In a legal system, when a certain authority develops a legislation it is obvious that incase any disagreement arises, it shall be settled by the concerned authority who made it. This was not the case in the Jewish legal system, as the legal principles followed or developed by the legal authorities have been deduced or derived from either divinely inspired sources, oral sources, or any documentary sources. Moreover, burden of proof is a well-known legal issue in a legal system, however, the Jewish law have complicated the same by implementing the oath system.
During 200 A.D. the Misnahh was introduced which was regarded as a complete collection of legal rules or halakha. The Mishnah did not provide any definition of law and this led to several debates for several centuries which led to the formation of the Talmuds. The formation of the Talmuds built the Jewish legal system on three levels- the first was Torah followed by Commentary on Torah, concluding in the Mishnah. It was further followed by commentary on the Mishnah, concluding in the Talmud. The disagreements between the Torah, mishnah and Talmud were often resolved by applying the interpretation of the original sources or by developing legal fictions in order to eliminate constraints from Torah or Talmud. The communal legislation contradicted certain legal principles developed by the Torah and to some extent permitted individuals to do certain things that was forbidden by the Torah. Thus, the legislation was combined product of the communal authority and legal expertise , however, in case the legal expertise is unavailable , communal authority was sufficient.
The purpose of law is to serve justice and promote equality in the society the law seeks to analyze a particular situation and apply the existing provision on them in order to attain a just result for all the parties. Thus the purpose of Australian, Tamudi and Madayin law is also to promote justice and equity. The Australian law has been designed to address the need of the modern society not emphasizing on a particular community or religion whereas Madayin and Tamudi law emphasizes on a particular religion and community. The Australian law is derived from common allow mostly from the English legal system along with statutory provisions made by the parliament where as Madayin and Tamudi law are derived from cultural and customary sources which have been used by the particular community and religion since ages.
Madayin law is regulated by a complete system which includes document and objects which record the law, songs, oral laws, ceremonies along with scared places and instructions related to law. Fertility is the most important thing in this customary religion and law. The people of the community have a belief that the source of their law comes from the most powerful and apex authority of this universe. Unlike Australian law Madayin law is not kept in record of general text but is recorded through paintings and customs. This may subject the interpretation of such law to ambiguity because it is easy to take out many meanings of a painting or a custom. The law also is based on actions of mythical individuals with no scope of amendments with respect to present needs unlike the Australian legal system.
Tamudi law is majorly based in religious customs and belief. The law is regulated by both oral and written provisions similar to that of Australian law where both oral and written provisions are used to analyze a particular issue. The Tamudi law has been derived from imaginations which might occur in the future unlike the Australian law which is interested and amended according to the situations which arise. It also contains legal rules but the rules are in verbal form as a result of which there are chances of disagreements among the legal authorities regarding the accuracy of the rules. Comparing it to Madayin law it can be said that there are less chances of dispute in relation to provisions in Madayin law as there are little if any oral form of law. The King himself is a source of legislation in Madayin law therefore the law was made according to the wish and discretion of the king not ensuring equity all all spheres of the society and supporting a particular religion.
The Tamudi law is based on the fact that sin occurs in the society and there is a need for savior to protect the society from sin. The Australian legal system on the other hand seeks to promote deterrence of crime along with punishing the criminal for their offences. The rules for punishment in all three laws are similar to a huge extent. The Australian legal system punishes through fines and imprisonments whereas the other two legal systems punish the offenders by taking away their rights. Thus the paper can be concluded by stating that there are various similarities between the three legal systems as the main purpose of these laws is same that is to promote equity and justice. As the sources of law are different dissimilarities also arise in the three legal systems with respect to both governance and imposition of law in the society.
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