The Australian Legal System


The three principles integral to Australian legal system are procedural fairness, judicial precedent and separation of powers.

Procedural fairness concerns the fairness and the transparency of the processes by which the court reaches a decision. Hearing all parties before a decision is made is one step which would be considered appropriate to be taken in order that a process may then be characterised as procedurally fair resulting in an equitable outcome.
 There are several sources of law and the dominant one is the parliament. Common law (case law or precedent) is law developed by judges through decisions of courts and similar tribunals. . Australian legal system, allows courts to depart from traditional approach of interpreting statues, the literal way and adopt a purposive approach of interpreting the statue in accordance with the intentions of the Parliament. The chief feature of the common law system is that judges’ decisions in pending cases are informed by the decisions of previously settled cases or judicial precedents.
The three branches of the system legislative, executive and judiciary have separate roles to play. This separation of power bestows independence. The legislative makes laws, the executive has power to carry out and enforce the laws and the judiciary interprets.
Australia has a federal system of Government. There is the commonwealth Parliament and separate parliament in each of the states and territories. The Commonwealth Parliament consists of the Queen, represented by the Governor-General, and two Houses—the House of Representatives and the Senate. The Parliament passes legislation. Proposed laws have to be agreed to by both Houses of Parliament to become law. The two Houses have equal powers, except that there are restrictions on the power of the Senate to introduce or directly amend some kinds of financial legislation.
The Governor General is appointed by the Queen on the advice of the Prime Minister and has constitutional and statutory duties defined by the constitution.
The Senate has 76 Senators, out of which 12 are elected for each of the 6 states, and 2 each for the Australian Capital Territory and the Northern Territory. State Senators are elected for 6 year terms and the territory Senators for 3 year terms.
The House of Representatives has 150 Members, representing separate electoral division and elected for 3 years. The majority party or coalition in the house of representative forms the Government.

The Judicial System

Australian court system is hierarchical in structure. Australia has two court system of Judiciary. The federal court system comprises the Federal Magistrates Court, Federal Court, Family Court, and The High court. The state court system consists of Magistrates, County and Supreme Courts.  Apart from that there are a range of tribunals and boards that make decisions about individual disputes, but they do not have the power of courts to make laws. High court of Australia is the ultimate court of appeal for the Australian court system.

State Courts

States and Territories of Australia have court hierarchy of its own, with the jurisdiction of each court varying from state to state and territory to territory. Supreme Court is the highest court in State and Territory. There are three levels of courts in each hierarchy except for Tasmania, Northern Territory and ACT . Those states and Territories have only two levels because of their smaller population.

Local or Magistrates courts

These inferior courts are presided over by a magistrate and deal with civil and criminal trials in states and Territories. The cases are decided without a jury. Magistrate courts hear civil cases involving claims below a specific monetary limit. Magistrates court deals with less serious criminal offences like theft, apprehended violence, traffic and drink driving charges. Magistrates also conduct committal hearing to determine whether there is sufficient evidence to commit someone to face trial for a serious offence in a higher court

District or County courts

County courts are one step higher than the Magistrates court in the hierarchy. These intermediate courts are presided over by a single judge with or without jury and the types of matters dealt are more serious in criminal jurisdiction and involves larger amounts of money in civil. County court has jurisdiction to hear all indictable offences except treason, murder and some other very serious offenses.

State or Territory supreme Courts

There is one Supreme Court in every state or territory. These superior courts deal with civil cases without a monetary limit, appeals from decisions of intermediate courts by a single judge without a jury and capital crimes .
There are other courts in States and Territories with specific function. A few notable examples are The Land and Environmental Court of New South wales, The Drug Courts of New South Wales, Victoria and Queensland, The Koori Court of Victoria.

The Federal Court System

The Federal Magistrates Courts

The jurisdiction of the Federal Magistrates Court has grown since its inception and broadly includes family law and child support, administrative law, admiralty law, bankruptcy, copyright, human rights, industrial law, migration, privacy and trade practices. The court shares those jurisdictions with the Family Court of Australia and the Federal Court of Australia. Some work in those jurisdictions continues to be done in state and territory courts also..

The Family Court

The family Court of Australia has the power under Family law Act 1975 to hear cases involving
Divorce, arrangements for the care of children, division of property worth over $700000 and financial support for a spouse and Federal laws that overlap with any of the above matters. A common example is where someone has become bankrupt and the creditors are disputing the rights of his or her spouse to valuable property. The Family Court takes priority over the Federal Court in such areas:
Appeals from decision of federal magistrates.
All the above cases are heard by single judges. Their decisions can be appealed to the Full family Court (three judges) and appeals from there may go the High Court.

The Federal Court

Federal Court has jurisdiction in areas involving Commonwealth law, relating primarily to trade practises, intellectual property, federal taxation, bankruptcy, native titles and migration cases. They also hear appeals from various tribunals. The full federal Court may also hear appeals from state supreme courts that involve federal laws.

The High Court

The High Court of Australia is the ultimate judicial authority in Australia. The Court has three clearly defined responsibilities and they are: To enforce and interpret the Australian Constitution, To exercise its original jurisdiction under the constitution , and to be the final court of appeal within the Australian Judicial system . The High Court can hear disputes between the states and between the states and the Commonwealth.

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