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.

Charter of Human Rights and Responsibilities

An important recent development in relation to the interpretation of law in Victoria is the adoption by Parliament of the Charter of Human Rights and Responsibilities Act 2006 (Vic) ("the Charter"). This parliament-made law seeks to ensure that certain human rights are taken into account when developing, interpreting and applying Victorian law and policy. The Charter came into force on 1 January 2007, although the obligation of public authorities to consider and act consistently with human rights and the courts to interpret and apply legislation in accordance with the Charter became effective on 1 January 2008.

The rights in the Charter come mainly from an international human rights document, the International Covenant on Civil and Political Rights. The rights included in the Charter are:

•    the right to life;

•    freedom of movement;

•    freedom of expression and assembly;

•    the right to liberty; and

•    the right to a fair hearing and protection from retrospective laws.

The Charter requires courts and tribunal, as far as possible, to interpret and apply legislation consistently with these human rights. If this is not possible, the Supreme Court can issue a Declaration of Inconsistent Interpretation. The government must then respond to this Declaration within six months.

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 Case of 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 leases 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.

With the Framework, the State aims to provide finality and certainty for all parties involved in native title matters relatively quickly, and to address the land justice aspirations of Victorian Traditional Owners. It remains to be seen whether the State and Traditional Owners will achieve these aims through the Framework and agreements made under it. It is hoped that the first agreement under the Framework will be reached by the end of 2010.

More information about the Framework can be obtained at www.justice.vic.gov.au (follow the links from "Your Rights: Indigenous Victorians: Native Title") and www.ntsv.com.au.

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”

The Magistrates' Court includes six specialist court divisions: the Koori Court, the Family Violence Division, the Drug Court, the Industrial Division, the Assessment and Referral Court List and the Neighbourhood Justice Division. These divisions are designed to achieve better outcomes for the community and in criminal matters provide more effective access to rehabilitation for offender. The Victims of Crime Assistance Tribunal (VOCAT) also operates within the Magistrates' Court (for further information about the VOCAT, see: Chapter 18*4 Assistance for Victims of Crime).

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

Parallel and support services - therapeutic and preventative justice

In recent years a stronger emphasis has been given to the potential role of the Magistrates' Court in the area of preventative and therapeutic responses to criminal offending. A large number of services are now available to accused persons at court. These include the Criminal Justice Diversion Program, Court Referral for Evaluation of Drug Intervention and Treatment (CREDIT) Program, Court Integrated Services Program, Juvenile Justice Liaison, Disability Service, Mental Health Court Liaison Service, Aboriginal Liaison Officer Program and the Enforcement Review Program.

Details of these services and the requirements for eligibility can be obtained from the local Magistrates' Court, or from the Magistrates' Court website at 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 appeals 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 appeals 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. The Family Court and the Federal Magistrates Court are currently working together to implement a combined courts registry that will simplify the path into the family courts system.  The Court also has jurisdiction in areas such as Human Rights, Administrative Law and Immigration.

For more information: www.fmc.gov.au

The highest court in Australia hears complex cases and appeals 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 1.1 The Legal System