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Judiciary

Judiciary means ‘justice system’.  It is the way laws are enforced and legal problems are resolved.  Each State in Australia has its own judiciary and is responsible for most of the different types of courts.  The Federal Government has its own courts, such as Magistrates, Family Court and ‘The High Court’,  the highest court in Australia.  This court has the most authority and power.

The state courts have minor differences, but they share common features.  All Australian courts follow the British Legal tradition, and have inherited British legal precedence.  The British system has evolved over centuries, and has for its basis, the Magna Carta, or the Great Charter of King John.  The Magna Carta set a foundation of justice, such as ‘trial by jury by one’s peers’, and ‘an accused is considered innocent, until proven guilty’.  This tradition, ‘The Rule of Law’, forms the basis of America’s judiciary as well (with the exception of Louisiana).  By contrast, the French system states that the accused is guilty until proven innocent.

Most states and territories have courts that are designed to settle petty non-criminal arguments, such as disputes over rent, neighbourhood squabbles and the like.  These are arbitration courts and are headed by an experienced lawyer.  Other courts are designed to try indigenous people, because they have their own tribal laws and religious beliefs.

For more serious problems, such as vandalism, offenders are sent to a Magistrate’s Court.  A magistrate is chosen by the legal system to listen to problems and crimes, and to make a learned decision.  They can issue a fine, (a money cost on an offender), make some one do community service, issue intervention orders, or they can send someone to jail.

If a crime is more serious, such as armed robbery, an accused will have to attend the District Court (In Victoria the equivalent court is called the ‘County Court’.  This court has a judge and jury.  In some cases, if an accused is not happy with the Magistrates Court, they can appeal and have their case heard by a District Court, but this is a very expensive option, and usually only the wealthy can afford it.  (Tasmania, The Northern Territory and the Australian Capital Territory (ACT), only have a Magistrates and Supreme Court.)

The very worst of crimes, such as first degree murder and arson, are sent to the Supreme Court.  The Supreme Court is the highest court in a state or territory and  is usually the final court of appeal.  If someone isn’t happy with the Supreme Court’s findings, then they can appeal to the High Court of Australia, which is a federal court, and the highest court in the nation.  It is headed by a team of seven judges called ‘justices’, and their decisions are final.  Recently a challenge to the Federal Government’s offshore processing of illegal immigrants in Malaysia was judged to be against Australian and International law.  The Gilliard Government wished to challenge this decision, but the government too had to obey the court’s decision, and abandoned the plan.  The High Court can hear complaints made against Australian laws, whether they be state or federal, and can make a ruling on whether  a law is valid or unconstitutional.

The High Court has the responsibility of upholding the constitution and of examining all Australian laws by the standards of the constitution.  In order to change any aspect of the constitution, the Federal Government must have the Australian people decide at a referendum.  All courts try to uphold the laws, both the received (from Britain) and the legislated.  Received law has been handed down through centuries, evolved through trial and error in Britain, most notably England.

Legislated law comes from the parliaments of Australia, both State and Federal.  State and territory courts uphold Federal law, and people can be charged with offences stemming from either a state or federal law.  Local governments have no judiciary, but their ‘by laws‘ are usually upheld by the States courts.  State police are able to enforce Local by laws, and Local By law officials can uphold certain State laws.

Most laws are created in parliaments, but state laws are specific to each state.  The higher state courts and the Federal High Court can create precedents, which then become law, unless challenged by parliament.  If the precedent laws are challenged, a special legislation has to be created and enacted by the parliament to change or alter the law.  Eddie Mabo Case

The most famous series of court cases in Australia’s history, which ended up in the high court, is the case of baby Azaria Chamberlain.

The Family Court is a federal court that hears non criminal cases in relation to settlements resulting from family non violent family conflict and failed relationships.  Western Australia, however, has its own family courts and refuses to allow its authority in this area to be handled by the federal government.

Military Courts.  The Australian military have their own judiciary.  Any serving military personnel can be convicted by the normal courts, just like any other Australian.  However, if their crime is of a military or disciplinary nature, they have to face a military court.  Military courts have no jurisdiction (authority) over civilians.

Industrial Courts.  Australia has developed a system of ‘arbitration’ to settle disputes between workers and employees.  The decision of the courts has helped to settle arguments and prevent industrial unrest.  Recent Qantas strikers were told to go back to work by the Industrial Arbitration court, therefore bringing an end to a situation that could have destroyed Australia’s airline.

Other courts and forums.  Many complaints are handled by government appointed experts called, ‘ombudsmen’.  They have the power to look into various complaints.  If people have complaints about their power provider, they can appeal to the power ombudsman to try to resolve the problem before it goes to court.  Australia has many different types of ombudsmen, but the most powerful one is the is the federal government’s fair trading ombudsman.  He or she can demand access to documents and hand down decisions.

Non government courts.  There are all sorts of courts not related to the government which only affect the communities they are intended for.  For example, several religious denominations have their religious laws and tribunals.  The Catholic Church call their system, Canon Law.

All sporting codes have their own courts called ‘tribunals’.  The AFL and NRL have systems of discipline for unruly behaviour on and off the field of play.  These tribunals operate like an official court, but their jurisdiction is restricted to participants and officials of that sport.  If a matter is of a criminal nature, the police can take control of the case and take the offenders to a criminal court.

Many professional groups, such as doctors and teachers, have disciplinary tribunals that can hear cases of unprofessional behaviour and misconduct.  In Victoria, teachers have to answer to the Victorian Institute of Teaching if they act in a manner unbecoming of a teacher, thereby bringing the profession into disrepute.  This organisation can’t convict someone, but can prevent a teacher from legally teaching anywhere in Australia, and if the behaviour is bad enough to be deemed criminal, the police may be advised to take the matter further.

One Comment
  1. Please feel free to make comments about the accuracy of the above information and the changes will be made if verified. Author

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