Australia, Legal system of. In a strict sense, Australia has several legal systems, rather than one. Each state has its own system of state courts and has laws that apply only within the state. In addition, Australia has a system of federal courts and federal laws that apply throughout the country. In general, the legal system of Australia is based to a large extent on the legal system of the United Kingdom. Many of Australia’s current laws derive from British laws that settlers brought with them.
Basis of Australian law
The legal system of Australia, like that of the United Kingdom, is based on a political and philosophical ideal called the rule of law. Under the rule of law, a person’s relations with other people and with the state are governed by law, and not by force or a ruler’s own wishes. Officers who administer the law are responsible to the people through Parliament.
Another principle of the rule of law is that no person should be deprived of life, liberty, or property, except by due process of law. Due process of law includes a group of legal requirements that must be met before a person accused of a crime can be punished. For example, the accused must receive a fair trial in open court presided over by impartial judges.
Still another principle of the rule of law is that all people are equal under the law. To a great extent, people are free to think, believe, or do what they like. The law limits their freedom only to protect the rights of other people or to safeguard society as a whole.
The principles embodied in the rule of law may not always be fully achieved in practice. But the people who make and enforce laws know the principles and try to observe them.
Australia has two sources of law, case law and statutes (acts of Parliament). Case law is also called common law. It consists of rules and principles derived from the decisions of the law courts. When a case comes before the courts, the judges generally base their decisions on earlier court rulings in similar cases. Case law in Australia includes the rules of law that the Australian colonies adopted from England at the time the colonies were formed, as well as the decisions of the Australian courts since that time. Lower courts follow the decisions of higher courts, and Australian courts often follow the decisions of higher courts in the United Kingdom. See Common law.
Today, Australian law is based mainly on statutes rather than on case law. A statute can alter the rules of case law as well as previous statute law. But the decisions of the courts cannot override statutes, except if a court decides that Parliament had no constitutional power to pass a particular statute. The courts can, however, interpret statutes if the meaning of the legislation is not clear.
The federal and state parliaments make Australia’s statutes. The federal Parliament has power to pass laws only on topics listed in the federal Constitution. Such topics include defense, external affairs, interstate trade and commerce, industrial disputes extending beyond one state, bankruptcy, taxation, and marriage and divorce. Both the federal and state parliaments have the power to make laws on other topics. If a state law conflicts with a valid federal law, the federal law prevails. Only the states can make laws on matters not specifically listed in the Constitution as under the control of the federal government. Sometimes, states cooperate with one another and with the federal government to make uniform laws on specific topics.
The federal and state parliaments can pass statutes giving power to the governor general, the governor of a state, a minister, or some other authority to make rules of law. Such rules, called subordinate or delegated legislation, are an important part of the law. But subordinate legislation is invalid if it exceeds the limits of power established in the statute under which it was made.
Federal courts
The High Court of Australia
decides constitutional questions. It also serves as the ultimate court of appeal in Australia. The High Court can hear cases at first instance—that is, cases coming before the courts for the first time—relating to certain topics listed in the Constitution. The High Court can also hear appeals from decisions of state supreme courts, other federal courts, or other courts exercising federal authority. It can hear appeals from its own decisions in cases at first instance.
Other federal courts
include the Federal Court of Australia, the Family Court of Australia, and other courts created from time to time by the federal Parliament. The federal government can also delegate federal authority to state courts and has power to establish courts for the Australian territories.
The Federal Court of Australia was created by the Federal Court of Australia Act of 1976. The Federal Court of Australia hears cases involving trade practices, bankruptcy, industrial disputes, and administrative law, the field of law that centers on the operations of government agencies.
The Family Court of Australia was created by the Family Law Act of 1975. The court hears cases involving family law disputes, including such matters as marriage, divorce, adoption, and child support.
Federal tribunals
investigate and make decisions on a wide variety of subjects. They include such bodies as the Australian Industrial Relations Commission, which settles labor disputes, and the Administrative Appeals Tribunal, which reviews decisions made by officials of the federal government. The composition, powers, and procedures of these bodies vary greatly.
State courts
The state court system consists of supreme courts, intermediate courts, and inferior courts. All of these courts hear criminal and civil cases. In criminal cases, the government charges someone with committing an act that violates the law. In civil cases, one person accuses another of violating his or her personal rights—by not paying a debt, for example. Intermediate and supreme courts can also try cases in equity. Equity consists of a set of rules based on broad principles of reason and justice. The principles of equity have the force of law, but they are separate from the ordinary rules of law. Equity actions include those concerning trusts and mortgages.
Supreme courts
are the highest state courts. Each state has a supreme court consisting of a chief justice and a number of other justices, called puisne judges.
Supreme courts can hear cases at first instance—that is, cases coming before the courts for the first time. They also hear appeals from the decisions of lower courts. Only serious criminal cases and major civil disputes come before the supreme courts at first instance.
Intermediate courts
rank between magistrates’ courts and the supreme court in some states. They relieve the supreme courts of much routine business and can deal with cases more quickly than the supreme court could. One judge presides over each intermediate court.
Intermediate courts hearing criminal cases are known as county courts in Victoria and district courts in Queensland and in New South Wales. They are also called district courts in Western Australia whenever a judge presides over them. These courts try cases with the help of a jury of 12 people. But, as a rule, a supreme court judge and a jury try the most serious offenses.
Intermediate courts also hear appeals from the lower courts. A person convicted of a crime has the right to appeal a conviction or sentence, but the prosecution may not appeal an acquittal.
Intermediate courts hearing civil cases are known as district courts in New South Wales, Queensland, Western Australia, and South Australia, and county courts in Victoria. These courts try cases in which the amount of money or the value of the property involved does not exceed a certain limit. The limit is higher in these courts than it is in lower courts.
Inferior courts
are Australia’s lowest courts. They include magistrates’ courts, children’s courts, and coroners’ courts. These courts make final decisions on minor disputes. Proceedings are usually quick and informal. In many cases, the parties cannot appeal the decision to a higher court.
Magistrates’ courts
try minor criminal and civil cases. They sit in various country and metropolitan areas and have jurisdiction (legal authority) only in their own areas. In civil cases, they have power to deal only with disputes in which the value of the property or the sum of money involved is below a specified amount. The names, powers, and procedures of these courts vary from state to state.
Children’s courts
try people under a certain age charged with minor offenses, but they do not try cases involving serious crimes, such as murder. The courts may send young people accused of committing serious crimes to trial in a higher court. Children’s courts also hear charges of certain offenses committed against children and teenagers, and they hold proceedings involving the welfare of young people.
Coroners’ courts
hold inquests (inquiries) into unexplained deaths, violent or unnatural deaths, or deaths that have taken place in unusual or suspicious circumstances. A coroner’s court is primarily a fact-finding proceeding. But a person may be charged with an offense on the basis of the facts discovered at an inquest.
Special courts
help to administer particular functions of government. The federal and state governments set up these courts, many of which are called tribunals, and give them power to decide certain kinds of disputes.
Sentences and orders
Criminal penalties
are imposed by the courts on people convicted of criminal offenses. Most criminal laws specify the longest and shortest prison term to which an offender may be sentenced for each offense. But a judge or magistrate imposing a sentence can vary the penalty according to the circumstances of the crime.
There are many prisons in Australia, all of which are run by state authorities. There are no federal prisons. People convicted of federal offenses and sentenced to prison serve the sentences in state institutions.
Civil orders
are made by law courts giving judgments in civil actions. The judge or jury determines who is at fault and issues a court order specifying what must be done. Such orders might require the party who loses the lawsuit to restore property, such as land or buildings, to the other party, or to pay a specified sum of money as debt or damages. The courts can force the unsuccessful party to comply with such orders.
Officials
Judges
preside over state and federal courts. State and federal laws make a number of provisions to ensure that judges have enough independence to decide cases free of pressure from the government and without bias for or against either party. Judges are appointed during good behavior—that is, they hold their posts for life or until they reach retirement age. Judges can be dismissed only for misconduct or inability to perform their duties.
Federal judges
preside over the High Court and other federal courts. The governor general appoints federal judges in the sovereign’s name. The governor general acts on the advice of the federal Cabinet, but there is a strong tradition against appointments made on political grounds.
State judges
sit in state supreme courts, intermediate courts, and special courts, such as state industrial courts. In each state, the governor appoints state judges on the advice of the state’s Executive Council, an advisory group made up of the heads of executive departments. The governor may appoint only registered lawyers to be judges.
Magistrates
preside over magistrates’ courts. Professionally trained magistrates, who are full-time judicial officers, have almost completely replaced judges called justices of the peace in the lower courts, especially in densely populated areas. The state governor appoints most magistrates from among people in public service, though appointees increasingly come from the ranks of barristers (lawyers who have the right to argue cases in higher courts) and solicitors (lawyers who represent clients in lower courts).
Magistrates can hear both civil and criminal cases. Magistrates preside over coroners’ courts, children’s courts, fair rent courts, licensing courts, and the Commonwealth Court of Petty Sessions.
Justices of the peace are individuals outside the legal profession who are appointed to perform minor judicial work, such as witnessing affidavits (sworn statements). Technically, a justice of the peace can sit as a magistrate, but few actually do so.
Juries
give verdicts in both criminal and civil actions. A criminal jury consists of 12 members. A civil jury varies in size from state to state.
In all states, a court trying a person accused of an offense consists of a judge sitting with a jury, except when the trial is a summary trial in a magistrate’s court. A summary trial omits certain formalities usually required by law. In all other trials, the judge presides and rules on whether evidence is admissible or not. The judge also directs the jury on points of law. The jury evaluates the evidence and tries to discover the facts. It then decides whether, based on the facts, the accused person is guilty or not guilty. If the jury finds the person guilty, the judge imposes the sentence.
Lawyers.
The legal profession in Australia is organized and regulated on a state basis. State lawyers may practice in federal courts if they enter their names on the practitioners’ roll of the High Court.
In New South Wales and Queensland, as in England, lawyers are divided into two classes: barristers and solicitors. But they can transfer from one class to another. In the other states, no formal division exists.
Solicitors
mainly advise and assist clients in conducting their private and business affairs. Solicitors prepare deeds for transferring ownership of property, draft wills, and administer the estates of deceased people. Solicitors may also conduct cases in court, but they usually brief barristers to take cases in the higher courts.
Barristers,
also called counsel, mainly argue cases in court. They also give advice on legal problems, draft pleadings for court cases, and prepare the more complex legal documents. It is considered improper for a client to directly instruct (engage the services of) a barrister. A barrister may act only on the instructions of a solicitor, who engages him or her on behalf of the client.
An eminent barrister can apply to take silk—that is, to be appointed as king’s counsel (KC). King’s counsel, called queen’s counsel when the monarch is a queen, are a group of distinguished barristers who serve as legal advisers to the Crown. They have certain honorary privileges, including the right to wear a silk gown.
The attorney general
is an elected member of Parliament and a minister of the Crown. The attorney general is the legal adviser to the government. The attorney general shares with government lawyers called Crown prosecutors the power to bring people to court for serious crimes. The attorney general seldom prosecutes but must give consent before the prosecution of certain offenses may proceed.
History
The British settled Australia as a prison colony in 1788. When the first group of convicts and settlers arrived, they brought British law with them. From the beginning, the British viewed their occupation of Australia as settlement and not conquest. Australian law was formed on the idea that no one yet owned any part of Australia, and white settlers did not recognize Aboriginal legal rights.
At first, the settlement’s legal system was confined to maintaining discipline among convicts and military guards. The penal system was extremely harsh. Military courts handled most criminal matters. Whipping and hanging were common penalties.
In 1814, the Supreme Court of New South Wales was established to hear civil cases but not criminal matters. Its establishment helped to increase the use of English law in the colony. Reforms in 1828 allowed the Supreme Court to hear criminal cases, and expanded and regulated the legal system in New South Wales. The Australian Courts Act of 1828 further accelerated reform.
As the Australian colonies were established during the mid-1800’s, they adopted the same laws and system of administration as the United Kingdom. Later, the United Kingdom allowed the colonies to make laws on matters affecting themselves. Decisions of Australian courts became part of the body of law operating in the colonies. The Colonial Laws Validity Act of 1865 invalidated any laws enacted by colonial legislatures that conflicted with laws made by the British Parliament.
In 1901, the six colonies became states of a new nation, the Commonwealth of Australia. The states kept their separate parliaments, courts, and laws. The new nation’s Constitution established a federal Parliament with power to make laws regarding specific topics for the whole of Australia. The Constitution also set up federal courts, including the High Court of Australia.
Until the late 1900’s, parties in a lawsuit could appeal the decisions of Australian courts to the Judicial Committee of the Privy Council in London, England. The committee, which consisted chiefly of judges from the United Kingdom’s highest courts, served as Australia’s ultimate court of appeal. But in the 1970’s, legislation drastically reduced the ability of parties in a lawsuit to appeal to the Privy Council. The Australia Act of 1986 finally abolished appeals to the Privy Council. The High Court became the highest court of appeal in Australia.
Until 1986, the British Parliament had the power to make statutes affecting Australia. But the Australia Act of 1986 formally ended that power.
