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Foundation Of The Australian Independence State Law Essay

Australia is an independent state within the British Commonwealth, it is federalism country and it was founded in 1901. So Australia’s legal system is based on the English legal system. By 1788, when the first group of criminals came to Australia, English colonists also brought their law to Australia. As time went on, Australia’s legal system has become more indigenized gradually in the past decades. At nowadays, Australia’s legal system is quite different from English legal system, in the essay will introduce the background and development of Australia’s legal system and discuss some different between Australia’s legal system and English legal system. [1] 

Years ago, England transported many of her criminals to Australia. But through exiles and immigrants’ exploitation, after a hundred years later Australia colonies finally shake off the yoke of England in 1901, and Australia had established its own federal government and become the member of the British Commonwealth. From then on, Australia gained its independence from England gradually. In fact, after World War II, Australia has looking for new partners and estranged England. In legal system, the most influential issue was Australia and the UK were severed with the passing of the Australia Act 1986, ending any British role in the government of the Australian States, and ending judicial appeals to the UK Privy Council. [2] At the 1999 referendum, 54% of Australian voters rejected a proposal to become a republic, with a president appointed by a two-thirds vote in both Houses of the Australian Parliament. [3] Before 1986, Australia’s the power of final adjudication was belongs to The Privy Council. So Australian citizens must be make final appeal to England if they arrest the judgment. But, the power of final adjudication’s came back was terminated the British Parliament and government’s administration of justice in Australia. The history of Australia overthrows the colonial domination of British government also was the history of Australia’s legal system development.

As time goes on, Australia’s legal system has some differences between English legal systems. There are two legislation systems in Australia, one is federal law other is state law. Federal law is means the Federal Council to make laws for the six states and two territories. And state law just for in one specific state. For example, Queensland law just available only in Queensland. But in within the strict confines of the constitution law, Federal law can repudiate state law.

In addition, although Federal and State have separation of the executive, legislative and judicial powers in Australia. As the ministers in Federal and State, they also play role as parliamentarian. Therefore, these people not only as the law’s executive, but also become the law makers.

Due to historical reasons, Australia had followed the British legal system for a long time. But, in the long time development, Australia’s legal system has own their particular conditions. The first of all, Australia have changed common law principles and break away from old English common law style. And in 1994, Australia had codified the law about indigenous peoples a right of ownership was a turning point of Australia’s legal system. On the other hand, United States of America Law also affect on Australia’s legal system. This influence was begun after World War II. Australia maintained close ties with USA since the 1950s. The impact of American literature, arts, education and other aspects had replaced English culture in Australia. In the same time, it also affect on legal system. For instance, when Australia was drawn up the constitution in the late 19th century, it have already consulted American Constitution. So the original constitution of the Australia was drawn up on the lines of the American Constitution.

Finally, from the consequences of reforming Australia's legal in recent years, it is clearly that the enaction of Australian legal is constantly strengthened and the independence of enacting national laws is enhanced. Therefore, not to distinguish the Australia legal and English legal is unrealistic. The influences of English precedents in Australia are weakened since the Australian court is authorized to make decision without considering English case. Generally speaking, although Australia’s legal system is based on the English legal system, it also assimilate the American legal system. So Australia’s legal system have already own they characteristic at present.

Question 2

This essay will discuss both undue influence and unconscionability with regard to contract law. At first, this essay will define the meaning of undue influence and unconscionability and illustrate by examples of these two concepts. At last will statement the difference between two of these concepts

Undue influence is unfair persuasion. Like duress, undue influence involves wrongful pressure exerted on a person during the bargaining process. In undue influence, however, the pressure is exerted through persuasion rather than through coercion. The doctrine of undue influence was developed to give relief to persons who are unfairly persuaded to enter a contract while in a position of weakness that makes them particularly vulnerable to being preyed upon by those trust or fear. Generally speaking, undue influence is inappropriate external pressure made to impact people to act without their original intention and wrongful persuasion. There is an example can explain the act of undue influence. Bill with his grandmother and take care for her, he convinces his grandmother to allow him to manage the grandfather’s heritage to open new business. If his grandmother disagrees, Bill said he will never take care his grandmother anymore. Then, Bill uses his grandmother’s authority to take money from her bank account to purchase illegal drugs. This act is undue influence. Because Bill abuses the influence that he has over the decisions of his grandmother in order to obtain an undue benefit.

Usually, undue influence may arise under two conditions, one is through some relationship of trust and confidence, and other is through coercion or general domination. There are two relationships of trust and confidence, one is special relationship. And other is the relationship with high degree of trust and confidence has developed, such as, parent and child, doctor and patient, guardian and ward and so on. [1] Here is a small case about undue influence can make this legal provision more clear. The evil nieces used undue influence on her elderly uncle to make his give his inheritance to her rather than to his devoted grandson.

Unconscionability means one party has sign a unfair contract under their disability and lack of experience. Unconscionability is the rights and obligations not very unequal of both parties to this agreement; this is not consistent with economics benefits principle. [2] There is an example can explain the act of undue influence. Jill’s business is in difficulties. She wants to borrow some money but the bank refuses to lend it to her unless he gets a guarantor. Jill asks her best friend Lily to guarantee the loan; she tells her that it is needed to expand the business and Lily agrees to help Jill. The bank discovers that Lily does not understand the risk she is taking but still let her sign the guarantee any. One year later, the business fail, the loan is not paid and the bank seeks payment from Lily under the guarantee, but Lily also cannot pay. In this case, Lily is the weaker party. Because she does not know the risk of guarantor, bank still approve her qualification without a detailed explanation. It must have been unfair for the stronger to procure agreement in this situation.

As a result, when a contract is unconscionable and the court will consider this contract is held to be unenforceable. Upon finding unconscionability a court has a great deal of flexibility on how it remedies the situation. It may refuse to enforce the contract, refuse to enforce the offending clause, or take other measures it deems necessary to have a fair outcome. Damages are usually not awarded. Here is an case will talk about this condition, in this case, Giovanni and Cesira Amadio were an elderly Italian couple with little command of written English secured their son's debts arising from his failing business. Their son misled them as to the extent of the guarantee, and the bank did nothing to explain it to the parents. When the son's business failed, the Amadios had the contract set aside due to unconscionable dealing by the bank. Deane J reformulated the Early Test in Blomley v Ryan making it easier for the plaintiff to succeed as they don't have to prove actual exploitation. [1] In this case, the weaker party has some 'special disadvantage', in dealing with the other party without any reasonable degree of equity between them. The relevant weaknesses here were age, limited understanding of written English, inexperience with business at the level being conducted in the relevant transaction such that they relied upon their son's expertise. [2] So, when the son's business failed, the Amadios had the contract set aside due to unconscionable dealing by the bank.

Finally, here are some differences between undue influence and unconscionability in contract law, first of all is unconscionable conduct also deals with transactions between dominant and weaker parties; it therefore overlaps with undue influence. And they have different solutions, for undue influence, the court can do what is needed to restore the parties to their original positions. And for unconscionability, the courts may reduce the weaker party’s liability instead of extinguishing it completely. Because, undue influence is inappropriate external pressure made to impact people to act without their original intention. But unconscionability is one party through use another party’s disability and lack experience then takes unfair and improper benefit. Although this act is under the agreement of weaker party, it just used weaker party’s weak point. Therefore, both undue influence and unconscionability are different in contract law and this essay has provided some evidences to distinguish their differences. [3] 

James, while walking on a footpath is struck by a cricket ball. The footpath where James was hit is adjacent to, but outside, a cricket ground. The cricket ball which struck James was hit by a batsman during a game of cricket and the ball travelled over a grandstand before striking James on the footpath. Cricket had been played at this ground for over 20 years but only one other person other than James had ever been hit on the footpath where James was hit.

Has the cricket authority that controls the cricket ground breached a duty of care to take precautions against a risk of harm from a cricket ball landing on the footpath? Refer in your answer to the principles set out in the Civil Liability Act 2003 (Qld) and the principles established at common law. Discuss any recent cases relevant to this scenario.

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