Overview of the Australian Legal System

History

The six Australian States are former British colonies that joined together in 1901 to form a nation. At the time that the nation was forming, our legal system was developed. The system was largely based on the British legal system. As a consequence, Australia mirrored a number of elements from the British legal system, including the parliamentary system and the adversarial (two sided) court system. An adversarial court system involves trial by jury and the principle of innocent until proven guilty.

The foundation of our legal system is the Australian Constitution. The Constitution was developed by the people of Australia who voted for its implementation. This document sets out the original laws of the nation. These laws can only be changed by Referendum.

There are two other types of law in Australia:

 

Statutory Law

Statutory Law is law made by parliament. This may be the Federal parliament or the parliament of a State or Territory. These laws start as bills and are passed by two houses of parliament (except in Queensland where there is only one house). If the bills are approved in these houses, they become Acts. The Governor-General (or State Governor for State Acts) signs these Acts on behalf of our Head of State, the Queen. As a consequence, the Act becomes legislation.

The Federal Parliament has the authority or jurisdiction to make laws about a limited number of issues, for example taxation, defence, interstate and international trade, marriage and divorce, immigration, bankruptcy, and interstate Industrial arbitration. The States and Territories have jurisdiction over the remaining issues, for example health, education and transport. However, the Federal Parliament has the most power as they control most of the countryís finances.

For practical reasons, the Federal courts have granted the States and Territories jurisdiction over most Federal laws. The Federal courts maintain jurisdiction over bankruptcy, taxation, Industrial Relations, marriage and divorce, and Constitution law. The State and Territory court systems also have jurisdiction over their own laws.

 

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Common Law

The other type of law is Common Law. This mirrors British Common Law and is the law developed in the courts based on precedents. Courts where the decisions may be used as precedents are referred to as courts of records.

Statutory Law can override Common Law. Where an Act of Parliament is passed that contradicts Common Law, the Common Law will no longer be valid and the courts must follow the Act. Judges may not rule against Statutory Law to develop new precedents either; however they do have the power to interpret Statutory Law, and these interpretations may become precedents.

 

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Federal and State courts and tribunals

The Australian Court system is hierarchical and is described in the diagram below.

Federal

   

State and Territory

* Name of court varies depending on State.

 


 

Federal courts

High Court of Australia

The High Court of Australia is the highest court in the country. The High Court of Australia deals with matters related to the Constitution and appeals from lower Federal or State Courts.

Between one and seven Justices can sit on a case at the High Court depending on the significance of the case. If more than one Justice sits, the court is referred to as the Full Court of the High Court.

 

Federal Court of Australia

The Federal Court of Australia has an appellate division and two divisions with original jurisdiction (the ability to hear cases in the first instance). The appellate division hears appeals from the divisions of the court with original jurisdiction and some appeals from State and Territory courts where Federal jurisdiction has been exercised. Cases in the Appellate Division of the Federal Court are heard by three judges.

The two divisions of original jurisdiction in the Federal Court are the General Division, which primarily deals with bankruptcy and taxation cases, and the Industrial Division, which deals with Federal Industrial Relations issues.

 

Family Court of Australia

The Family Court of Australia deals with divorce, child and spouse maintenance and child custody cases (although some jurisdiction for maintenance and custody has been given to State and Territory Courts). Many Family Court matters are settled through counselling and mediation services offered by the Court. The Full Court of the Family Court deals with appeals. Three Judges sit on the Full Court.

 

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State and Territory courts

There are three main levels of courts in most States and Territories. The names of each of these courts are listed in the table below.

 

* There are no intermediate courts in the Australian Capital Territory, Northern Territory and Tasmania. The role of the intermediate court is shared between the lower and superior courts in these Territories and State.

* At the same level of the State Court hierarchy as lower courts are the Children's Court and the Coroner's Court.

 

Lower Courts

Intermediate Courts

Superior Courts

Criminal

Civil

Australian Capital Territory

Magistratesí Court

*

Supreme Court

New South Wales

Court of Petty Sessions

Local Court

District Court

Supreme Court

Northern Territory

Court of Petty Sessions

Local Court

*

Supreme Court

Queensland

Magistratesí Court

District Court

Supreme Court

South Australia

Magistratesí Court

District Court

Supreme Court

Tasmania

Court of Petty Sessions

Court of Requests

*

Supreme Court

Victoria

Magistratesí Court

County Court

Supreme Court

Western Australia

Court of Petty Sessions

Local Court

District Court

Supreme Court

 

Lower Courts

The lower or inferior court in Victoria, Queensland, South Australia and the Australian Capital Territory deals with both civil and criminal matters. In the other States and Territory, there are two courts at this level to deal separately with criminal and civil matters. A Magistrate presides over lower courts and rules on matters without the assistance of a Jury.

 

Criminal

The lower courts have jurisdiction over less serious crimes (summary offences). These may include minor traffic offences, shoplifting or possession of drugs. Some more serious crimes (indictable offences) are heard summarily in the lower courts by agreement. Preliminary hearings (Committal hearings) for more indictable offences are also heard in these courts.

 

Civil

Civil matters generally involve legal proceedings not related to crimes. The civil jurisdiction of the lower courts is limited by a dollar value. This value varies depending on the State or Territory.

 

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Childrenís Court

The Childrenís Court has jurisdiction for all cases involving children except the most serious indictable criminal cases. In criminal cases, a person is considered to be a child if they are aged over ten and under 17 at the time of the alleged offence and under 18 when they appear in court. In other cases, a person is considered a child if they are aged under 17. The range of cases to appear before this court may include children accused of car theft and child protection orders.

These courts are also presided over by Magistrates.

 

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Coronerís Court

The Coronerís Court deals with unexplained deaths and fires. The Coroner can order an inquest to determine the cause of death or fire and can commit a suspect to trial for murder, manslaughter or arson.

 

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Intermediate Courts

The intermediate state courts are presided over by judges. These courts have original jurisdiction over all but the most serious indictable criminal cases and civil cases for a limited range of dollar values. Juries will sit on most criminal cases unless the defendant has pleaded guilty at a committal hearing. The defendant will then appear at the intermediate court for sentencing by a judge sitting alone.

Civil trials can include a six person jury at the agreement of all parties, otherwise the judge decides alone.

 

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Superior Courts

The State superior courts are Supreme Courts. These courts are presided over by a judge and a jury for all criminal cases, apart from those where the defendant appears for sentencing only. Civil trials are presided over by a judge alone or a judge and jury as agreed by the parties.

The original jurisdiction of the Supreme Court includes the most serious criminal cases such as murder or treason and civil cases that have an unlimited dollar value.

Supreme Courts are courts of record, which means that decisions from these courts can be used as precedents in future cases.

The Court of Appeal deals with appeals from original cases in the Supreme Court and lower courts.

 

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State Court Civil Jurisdiction

 

Click here to access the State Court Civil Jurisdiction Activity.

 

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Australian Legal System Crossword

Click here to access the Australian Legal System Crossword and test yourself on terminology.

 

 

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