THE AUSTRALIAN LEGAL SYSTEM

Both State (and Territory) and Commonwealth Parliaments make laws.

Commonwealth laws override state laws when they conflict on an issue.

Parliament can delegate some of its power to create laws to other bodies, such as local councils.

Judges make laws by comparing similar situations and following sets of principles to determine outcomes. This is known as the doctrine of precedent and it creates common law.

Judges in lower courts must follow decisions of higher courts. Judges may also take into consideration decisions of lower courts, equal courts and courts from other countries.

The common law also fills in gaps where there is no parliamentary Acts and interprets Acts to apply them to specific cases.

A person can appeal a decision of the court. The High Court is the highest appeal court in Australia.

Parliament can create Acts or amendments to override the common law created by judges.

The Commonwealth Constitution is established under the Commonwealth of Australia Constitution Act 1990. (The Victorian Constitution is established under the Constitution Act 1975.)

It states that the head of State of Australia is the Queen, who is represented by the Governor-General (and Governors in the States). The Governors and Governor-General sign all legislation before they can become enforceable.

The powers of the Commonwealth are listed in s51 of the Constitution. If Parliament makes laws outside these powers, the laws can be contested and found to be unconstitutional.

The High Court hears disputes about the Constitution.

Native title is a communal title which gives indigenous people rights to land where, among other things it can be shown that a continuing connection between the indigenous people and the land exists.

The Mabo Caseof 1992 held that land rights, called native title, exist for indigenous people to land in Australia.

The Native Title Act 1993(Cth) set out a scheme for the native title process.

After the Wik decision of 1996, the Native Title Amendment Act 1998 (Cth) clarified the stance of native title where pastoral lease exist. The amendment limits consideration of claims where there is national parks and reserves and excludes claims where freehold or exclusive leases exist.

Land management and other justice outcomes can also be pursued instead of native title recognition.

In June 2009 the Victorian Government adopted the Victorian Native Title Settlement Framework (‘the Framework’) which is based on a land justice outcome rather than based on recognition of Native Title. The Framework aims to settle claims out of court and recognise traditional owners’ rights and interests and cultural heritage.

Formal review bodies such as the Law Reform Commission, Royal Commissions, and Senate Enquiries give official advice to the government about possible changes to the law.

There are also a variety of community and lobby groups who try to bring about law reform in their particular area of interest.

Your local member of Parliament is the best person to go to initially, if you are concerned about a law.

The diagram on page 4 shows the Australian court hierarchy. The arrows indicate which court an appeal would go to.

It deals with 'less serious' criminal, civil, family and industrial cases.

The Magistrates' Court is less formal than some other courts, although wearing smart clothes (or even a suit) won't hurt!

Showing the Magistrate respect is important, eg: Address the Magistrate "Your Honour"

There are special Magistrates' courts, such as the Koori Court and the Drug Court.

The Court also hears some cases with alternative dispute resolution methods, such as arbitration.

For more specific information:

www.magistratescourt.vic.gov.au, OR

Children's Court: www.childrenscourt.vic.gov.au

Coroner's Court: www.coronerscourt.vic.gov.au

One step higher than the Magistrates’ Court, expect to see wigs, gowns and a more formal atmosphere.

It deals with more serious criminal cases, such as armed robbery and rape.

It also hears civil cases involving large amounts of money.

Most appeal from the Magistrates’ Court will come to the County Court.

The County Court established a Koori Court division in September 2008 which follows the Magistrates’ Court model.

For information on location, court registration times etc: www.countycourt.vic.gov.au or call (03) 9603 6444

The Supreme Court has two divisions: the Trial Division (usually called the Supreme Court) and the Court of Appeal.

The Supreme Court hears the most serious criminal cases (eg murder) and civil cases for unlimited amounts of money.

The Court of Appeal hears a variety of appeal from different courts, including the County Court.

For more information: www.supremecourt.vic.gov.au

Hears cases on federal issues, such as industrial disputes.

For more information: www.fedcourt.gov.au

Hears cases which come under the Family Law Act 1975 (Cth).

For more information: www.familycourt.gov.au

Hears less serious matters that would otherwise go to the Family or Federal Court.

For more information: www.fmc.gov.au

The Federal Magistrates Court is due to be abolished in 2010 and its functions incorporated into the Family Court and the Federal Court.

The highest court in Australia hears complex cases and appeal including constitutional law cases.

For more information: www.hcourt.gov.au

Statutory Declarations are declarations made in the presence of an authorised witness. They are used for verification of insurance claims, proof of age, etc.

Affidavits are sworn, written documents usually used in legal proceedings.

The above documents need to be witnessed by Honorary Justices (formerly Justices of the Peace). To find an Honorary Justice, see: www.justice.vic.gov.au/justices.

Public Notaries certify legal documents for use overseas. For info, call (03) 9607 9311.

For more information on this subject refer to The Law Handbook chapter 1.