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Australian 代寫Courts System and Systems for ADR

    The Australian Courts System and Systems for ADR
    The Federal Judicature
    Chapter III of the Constitution (sections 71–80), called ‘The Judicature’, provides for the judicial branch of the Commonwealth. It establishes the High Court of Australia and empowers the Commonwealth Parliament to create other federal courts and to vest federal judicial power in State and Territory courts. ‘Federal judicial power’ is the power to decide a dispute of the kind set out in sections 75 and 76 of the Constitution.
    There are four principal federal courts:
    1.      the High Court
    2.      the Federal Court of Australia
    3.      the Family Court of Australia, and
    4.      the Federal Magistrates Court of Australia.
    Federal judges and magistrates are appointed by the government of the day.
    The Australian Constitution does not set out specific qualifications required by federal judges and magistrates. However, laws made by the Commonwealth Parliament provide that, to be appointed as a federal judge, a person must have been a legal practitioner for at least five years or be a judge of another court. To be appointed as a federal magistrate, a person must have been a legal practitioner for at least five years. To be appointed as a judge of the Family Court of Australia, a person must also be suitable to deal with family law matters by reason of training, experience and personality.
    All federal judges and magistrates are appointed to the age of 70. The Australian Constitution provides that a federal judge or magistrate can only be removed from office on the ground of proved misbehaviour or incapacity, on an address from both the House of Representatives and the Senate in the same session. The Australian Constitution provides that the remuneration of a federal judge or magistrate cannot be reduced while the person holds office. These guarantees of tenure and remuneration assist in securing judicial independence.
    The independence of the courts, and their separation from the legislative and executive arms of government, is regarded as of great importance in Australia and it is taken for granted that judges, in interpreting and applying the law, act independently of the Government.
    The State and Territory Court Systems
    Australian state and territory courts have jurisdiction in all matters brought under state or territory laws. They also handle some matters arising under federal laws, where jurisdiction has been conferred by the federal parliament. State and territory courts deal with most criminal matters, whether arising under federal, state or territory law.
    Each state and territory court system operates independently. All states have supreme courts and some also have Courts of Appeal, which are the highest appellate courts at the state level. Courts known as ‘district’ or ‘county’ courts hear the more serious cases, with a judge presiding over the court to interpret and determine the law. For more serious charges it is usual for a jury (usually of 12 people) to determine the guilt or innocence of defendants. Serious offences such as murder, rape and armed robbery are usually tried in a higher court.
    Lesser offences are dealt with in lower courts, known as local or magistrates courts (or courts of petty sessions), where magistrates determine the guilt or innocence of defendants.
    In all cases, defendants are considered to be innocent until proven guilty beyond all reasonable doubt. There is no death penalty in Australia.
    Alternative Dispute Resolution Systems
    Alternative dispute resolution is a term that is used to describe a variety of different processes that can help people to resolve conflicts and disputes.  The word ‘alternative’ is usually understood to mean that these processes are an alternative to going to court and having a decision made by a judge. The National Alternative Dispute Resolution Advisory Council has developed a glossary of ADR terms.  This Glossary can be located at the following URL:

    Advantages of ADR
    ADR processes are generally faster and less expensive than pursuing litigation through the courts.  In addition, ADR processes allow the people in dispute, in consultation with the dispute resolution practitioner, to retain more control and, with the exception of some determinative processes such as arbitration, to determine the outcome.  ADR processes may also be less damaging to personal and professional relationships than the adversarial processes involved in a traditional court hearing.  Even where ADR does not fully resolve a conflict, it may help the participants to see the other person’s point of view and to identify the key issues that are in dispute.  That may mean that even though the dispute is not fully resolved in the ADR process itself, a resolution will be reached sooner than it would have been if ADR had not been used. ADR processes vary quite widely depending upon the skills and qualifications of the practitioner, the organisation that provides them and/or the nature of the dispute that is to be resolved.   As ADR processes differ so widely, anyone who is thinking of using an ADR process should ask the service provider to tell them exactly what the process involves.  In particular, you might ask whether the process is simply intended to assist the parties to reach their own agreement (eg facilitative processes such as many mediation processes) or whether advice will be given about the matters in dispute or the outcome (eg advisory processes such as conciliation) or whether a decision will be made about the outcome (eg determinative processes such as arbitration).
     
     

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