In Australia two basic types of law exist, statute law and common law.
Statute law (also called legislation) is made by the Commonwealth Parliament or by the Parliament of a state or territory.
Common law is law from the customs of a community and is developed by the decisions of judges in particular cases.
The way that a statute affects the common law depends on the intention of Parliament in enacting that statute. Statute law will override and replace the common law, if that is the intention of Parliament. The power of Parliament to make law is limited only by the Constitution that sets out the powers and limitations of the Parliament.
It is not always Parliament's intention to override the common law. In many cases, it is intended that statute law and common law will co-exist, with the statute law filling in a gap in the common law or modifying the common law in some way, but leaving the majority of the government subject matter to be governed by the common law. In other cases, Parliament intends to completely replace the common law on a subject matter with a statutory scheme. When Parliament wants to create a new set of laws in an area where there is no common law (for example, to impose taxes), legislation is necessary, because there is no common law requirement to pay taxes to the government.
Although Parliament can override common law by passing legislation, this does not mean that Parliament is dominant over judges and the courts.
In Australia, neither the government nor Parliament can decide or affect the decision of any case before any court. Judges can therefore act impartially and make their own determination about each matter. This is called judicial independence.
The Australasian Legal Information Institute website explains some further features of the court and legal system operating in Australia as outlined below.
In practice an adversarial approach to resolving legal disputes means that each party to the proceedings presents their case to the court (generally via a legal advocate), and the court then makes a determination of the matter, by considering the evidence presented, the legal submissions made and applying the relevant law. The court will only decide what the parties ask the court to decide, and decides only on the basis of the evidence and information presented to the court by the parties. The court does not conduct its own investigation, or construct its own version of events. This system is in contrast to an inquisitorial system where the court may assume responsibility for determining how the competing claims of the parties are presented by their legal representatives.
Criminal cases involve a person being prosecuted by the police or the Office of Public Prosecutions on behalf of the state for an offence against the law. If the court finds the person guilty, it has the power to punish the offender by imposing a sentence, such as a fine, a community service order or a bond. The law sets a maximum penalty for the offence, and the judge selects a penalty that is within the scope of the maximum penalty and that is appropriate to the criminality involved.
There are two types of criminal offences:
- summary offences are generally less serious offences that are usually dealt with by a magistrate of the local court
- indictable offences are generally more serious offences that are usually dealt with by a judge and jury.
Criminal matters are generally brought to a court by a government prosecuting agency such as the Office of Public Prosecutions. They can also be commenced by the police, the Attorney General, local councils and others. In criminal law, anyone charged with a criminal offence is presumed to be innocent until proven guilty by the prosecution. Guilt must be proven beyond reasonable doubt.
A civil case involves a dispute between people (or between a person and the government) about the rights or liabilities of the people or organisations involved. A civil case usually involves one person seeking a remedy of some kind from another person to resolve a dispute between them. For example, a person who has bought a faulty product may sue the manufacturer of the product to recover the money paid for the product, or other loss caused by the faulty product. The manufacturer has not committed a crime, because it is not a criminal offence to manufacture a faulty product, but the manufacturer's incompetence has caused loss to the purchaser of the product. The court's role is to decide which party is in the right, and, if the court finds in favour of the plaintiff (the party bringing the matter to court), to determine what is the appropriate remedy for the plaintiff's claim.
There are different standards of proof for civil and criminal cases. In criminal cases, the prosecution must prove that the defendant is guilty 'beyond reasonable doubt'. The onus of proof in criminal cases lies with the state. Criminal cases have a higher standard of proof because of the severe impact of penalties such as imprisonment.
In civil cases, the plaintiff must prove that the defendant is liable 'on the balance on probabilities'. In civil cases, the onus of proof lies with the plaintiff. The plaintiff needs to be able to demonstrate by a 'preponderance of evidence' or 'weight of evidence' that all the facts necessary to win a judgement are probably true.
The Commonwealth and each state and territory has its own Parliament and can make its own laws. There is a dual system of courts to match the dual system of government: federal courts exercise jurisdiction arising under Commonwealth laws (including the Commonwealth Constitution) and state and territory courts exercise jurisdiction for all other matters. State courts may also in some circumstances exercise jurisdiction under Commonwealth laws, if Commonwealth and state legislation provides for this. However, the Commonwealth Constitution prevents federal courts from exercising jurisdiction under state laws.
Within the state and federal court systems there are a number of different courts. Each court has a particular jurisdiction. Jurisdiction is the scope of a court's authority to decide matters, and may be limited by geographical area, type of parties who appear, what kind of remedy can be given and the point to be decided. A court's jurisdiction can come from a number of sources, such as the Constitution, statute and common law.
There are two basic types of jurisdiction: original jurisdiction, and appellate jurisdiction. A court that has original jurisdiction in a particular matter will be the court where the proceedings in that matter are first brought. If a court has appellate jurisdiction for that matter, the court will hear an appeal against the decision of the court that had original jurisdiction for that matter.
The Doctrine of Precedent is the rule that a legal principle that has been established by a superior court should be followed in other similar cases by that court and other courts. The doctrine of precedent was developed to promote consistency in decision making by judges, on the basis that like cases should be determined in a like manner. There are two kinds of precedent:
- Binding, which means that the precedent must be followed if the precedent is relevant and the circumstances of the cases are sufficiently similar. A precedent is binding on a court if made by a superior court that is higher in the hierarchy of courts (for example, decisions of the High Court are binding on all courts in Australia, but a decision of the Supreme Court is not binding on the High Court).
- Persuasive, which means that the precedent should be seriously considered, but is not required to be followed. A precedent is persuasive if it was established by a superior court that is not higher in the hierarchy of courts. For example, a precedent established by the Supreme Court of New South Wales is persuasive but not binding on the Supreme Court of Victoria. Decisions of superior overseas courts, particularly from the United Kingdom, are persuasive precedents in Australia.
One of the fundamental principles of the common law system is that justice should be administered in public. This means that court proceedings are usually open to the public and that generally nothing should be done to discourage the publication of reports of court proceedings. However, courts have an inherent power to exclude members of the public where necessary to secure the orderly administration of justice, although that power is rarely used.
Parliament can also legislate to allow or require courts to exclude members of the public in certain circumstances, and to limit disclosure about the parties or the proceedings. This is the case, for example, in the Children's Court, where the names of people appearing before the court are not publicly disclosed to protect the identity of minors involved in criminal proceedings or protection proceedings.
See advice Closed court.
The common law requires all courts and tribunals to comply with the rules of natural justice (also called procedural fairness). These are principles developed to ensure that a person receives a fair hearing. The rules include:
- Each party should be given an opportunity to present their case.
- The decision maker should be unbiased and disinterested (that is, should not stand to receive any benefit from the outcome of the decision).
- The decision maker should take into account all relevant considerations, and should not take into account any irrelevant considerations.
- The decision should be based on the evidence presented to the decision maker.
Victoria's body of law reflects community values, balancing the rights of the individual with the need to protect other members of the community, and in the case of child protection, children and young people. The legislative trends in Victoria are consistent with national and international legislative trends.
Courts play an important role in regulating social behaviour and ensuring community safety by punishing those people who come before the criminal justice system accused of committing an offence. Although Parliament decides what the laws will be, it is the courts' role to decide how these laws will be applied to particular cases.
The jurisdiction of each federal and Victorian court is described briefly below. For more information visit the legal organisations section on the Law Institute of Victoria website.
Federal Court of Australia
The Federal Court has both original and appellate jurisdiction. The court hears civil cases relating to federal matters such as:
- environmental law
- sexual and racial discrimination.
It is quite common to find the Federal Court is given exclusive jurisdiction in these areas.
- The Full Federal Court (three Federal Court judges) hears appeals from a single judge of the Federal Court.
- Decisions of the Full Federal Court may be appealed to the High Court if the High Court gives leave to appeal in the particular case.
The Federal Court is able to hear class actions.
Class actions are actions involving seven or more people who have claims against the one defendant arising out of similar circumstances. Class actions enable a group of people to combine their resources to take action against a party that may be larger and possess more financial resources than any one individual.
Family Court of Australia
The Family Court administers Australia's family laws. In Victoria a Family Court is located in Melbourne and Dandenong, and circuit sittings are held periodically in major country centres.
The court deals with:
- divorce, although all applications are filed in the Federal Magistrates' Court
- division of property and maintenance
- child-related matters
- determining parenting orders and plans.
- The Full Family Court (three Family Court judges) hears appeals from the Family Court.
- From the Full Family Court a party may appeal to the High Court if given leave to appeal.
Federal Circuit Court
The Federal Circuit Court deals with a range of less complex federal disputes.
- The court provides a quicker, cheaper option for litigants and eases the workload of both the Federal and Family Court.
- The court hears less complex areas of law but its jurisdiction is concurrent with the Family and Federal Court.
An example of matters able to be initiated in the Federal Circuit Court include:
- family law property matters
- spousal maintenance
- parenting orders.
The Federal Circuit Court also has jurisdiction over:
- consumer protection
- review of administrative decisions
- bankruptcy matters
- anti-discrimination complaints not satisfactorily resolved by the Australian Human Rights Commission.
High Court of Australia
The High Court is at the top of the Australian legal hierarchy. It has a civil and a criminal jurisdiction and is Australia's ultimate court of appeal.
- It can hear criminal and civil appeals from the Federal Court, the State Supreme Courts and the Family Court.
- It also decides Federal matters such as constitutional and interstate disputes.
- The primary function of the High Court is to interpret and determine cases involving Australia's Constitution.
Magistrates' Court of Victoria
The Magistrates' Court is the lowest level of the Victorian court hierarchy in terms of jurisdiction. It incorporates:
- the State Coroner's Office
- Victims of Crimes Assistance Tribunal
- PERIN Courts (Penalty Enforcement by Registration of Infringement Notices)
- the Children's Court.
There are over fifty Magistrates' Courts operating in Victoria. The Magistrates' Court deals with over 90 per cent of the criminal and civil matters that proceed to court.
The Crimes Act 1958 and the Magistrates' Court Act 1989 outline those matters that can be heard by the Magistrates' Court.
The Magistrates' Court hears and determines all summary offences and many indictable offences.
Summary offences: offences created by legislation that are generally considered to be of a less serious nature and heard in the Magistrates' Court.
Examples: drunk and disorderly, traffic offences, wilful damage and resisting arrest.
Indictable offences triable summarily: are more serious offences (for example, assaults) in which the defendant has a right to trial by a jury in a higher court but can elect to have the matter dealt with summarily in the Magistrates' Court. Robbery, rape and murder must be heard in the County or Supreme Court by a judge and jury.
Before more serious indictable offences proceed to the higher courts, the magistrate conducts committal proceedings to establish whether there is sufficient evidence to support a conviction. Committal hearings determine the strength of the evidence in a case prior to going before a judge and/or jury in a higher court.
The Magistrates' Court is able to determine civil disputes for matters up to $100,000, including personal injuries.
If all parties agree, cases involving higher amounts may be heard. Examples of civil disputes include:
- contractual disputes
- negligence claims
- motor vehicle repairs
- land and neighbourhood disputes.
Other powers of the court
- Family law, such as issuing interim orders in matters concerning parenting orders.
- Crimes involving family violence, in applications for intervention orders.
- Work injuries (worker's compensation).
See service description Magistrates court.
The main Children's Court is situated at 477 Little Lonsdale Street, Melbourne, and most matters occurring in the inner suburbs are dealt with here. Children's Courts also sit regularly at major suburban Magistrates' Court courthouses and country Magistrates' Courts.
- The Children's Court hears matters concerning children under the age of 18 years.
- There is a President of the Children's Court who is a County Court Judge and magistrates who hear cases.
- Appeals from decisions of the President of the Children's Court are made to the Supreme Court.
- The Court is divided into two divisions.
- Criminal Division - which deals with cases of alleged offenders aged between 10 and 18 years.
- Family Division - which hears applications relating to children's care and protection.
See service description Children's Court.
Unpaid traffic, parking and other 'on the spot' fines are dealt with under the Penalty Enforcement by Registration of Infringement Notice (PERIN) system, established under the Magistrates' Court Act.
The Governor in Council appoints the State Coroner under the Coroner's Act 2008. The Coroners' Court has jurisdiction to:
- investigate reportable deaths and fires
- advise how such deaths or fires can be avoided in the future
- inform the community of its findings.
See service description Victorian Coroners Court.
County Court of Victoria
The County Court is situated at 250 William Street, Melbourne, and forms the middle tier of Victoria's court hierarchy. It has an original (cases appearing before the court for the first time) and an appellant (cases on appeal from the Magistrates' Court) jurisdiction. The County Court is the principal trial court in Victoria.
The County Court has concurrent jurisdiction with the Supreme Court to hear all indictable criminal matters with the exception of treason, murder and murder-related offences.
In practice, the County Court deals with virtually all criminal matters in which both the County Court and Supreme Court have jurisdiction. The County Court also hears appeals against any sentencing order made by the Magistrates' Courts in criminal matters. This includes appeals by the Director of Public Prosecutions.
The County Court has original jurisdiction in all civil matters. Cases heard in this jurisdiction include commercial matters, building disputes and damages arising from a wide range of incidents including medical negligence, serious injury and defamation. The Court is also able to hear Workcover matters.
As well as damages, the County Court has power to order equitable remedies such as injunctions.
A person can appeal to the County Court in relation to any sentencing order of the Magistrates' Court and the matter is reheard.
No appeals can be made to the County Court from a civil order of the Magistrates' Court. Appeals are made to Supreme Court.
See service description Victorian County Court.
Supreme Court of Victoria
The Supreme Court is the highest court in the Victorian hierarchy and is situated at 210 William Street, Melbourne. The Supreme Court is divided into two divisions: a Court of Appeal and a trial division.
The court has jurisdiction in all matters civil and criminal not excluded by statute. In practice, the Supreme Court generally only hears matters that cannot be heard in lower courts.
The following are some examples of the types of cases the Supreme Court might hear:
- criminal trials for the most serious indictable offences
- attempted murder
- building disputes
- actions involving personal injuries and commercial disputes where the claim exceeds $200,000
- disputes over trusts, wills and probate.
Cases can be heard by a judge or by a judge and jury.
The Supreme Court hears appeals of civil orders and criminal convictions made in the Magistrates' Court. The Court of Appeal may hear appeals from a decision of a single judge of either the trial division of the Supreme Court or the County Court.
Appeals from decisions of the Court of Appeal are heard by the High Court of Australia, but only after that court has granted leave to appeal.
See service description Supreme Court of Victoria.
In addition to the courts, there are also several tribunals operating in Victoria. Proceedings in a tribunal are generally less formal than those of a court. A tribunal's primary role is to interpret law, make a decision about who is right or wrong in a dispute and deliver penalties to those who have broken the law (whether an organisation or an individual). The disputes heard range from disagreements between consumers and social security to consumers and businesses.
Tribunals that operate in Victoria include:
Victorian Civil and Administrative Tribunal
The VCAT hears a variety of different disputes once handled by lots of smaller tribunals (for example, Small Claims Tribunal, Residential Tenancies Tribunal). VCAT has three divisions:
- The Civil Division
- The Human Rights Division
- The Administrative Division.
Each division has a number of lists that specialise in particular types of cases.
VCAT and tribunals generally, operate differently to courts in that the hearing processes are usually less formal, less rigid rules apply in relation to evidence, and people with specialist expertise in a particular area, for example, town planners, often make up the members of the tribunal in a particular list.
See service description Victorian Civil and Administrative Tribunal (VCAT).
Victims of Crime Assistance Tribunal
Established by the Victims of Crime Assistance Act 1996, VOCAT provides access to a variety of counselling, referral and information services to victims of crime. The tribunal operates out of most Magistrates' Courts. VOCAT considers applications for financial compensation and assistance for victims of crime. Victims include:
- primary victims
- secondary victims, for example, witnesses who may need counselling
- related victims, for example, dependants of a person who has died as a result of a criminal act.
Applications to the tribunal must be made in writing within two years of the occurrence of the criminal act.
In Victoria there are additional specialised courts including:
The Family Drug Treatment Court
A program in the Children’s Court of Victoria assisting parents to stop using drugs and alcohol, and promote family reunification, based at Broadmeadows Children's Court and Shepparton Children's Court.
The Drug Court
Sentences and supervises the treatment of serious offenders with drug and alcohol dependence who have committed offences under the influence of drugs, or to support a drug or alcohol habit.
The Koori Court
Sentences indigenous offenders who plead guilty.
The Family Violence Court Division
Specialises in hearing family violence cases and provides additional support services for victims of family violence.
The Drug Court, the Koori Court and the Family Violence Court Division are all part of the Magistrates' Court.
- Closed court
- Children's Court
- Family Court and Federal Circuit Court
- Magistrates' Court
- Victorian Coroners Court
- Victorian County Court
- Supreme Court of Victoria
- Victorian Civil and Administrative Tribunal
- Services for victims of crime including VOCAT
- Commonwealth Constitution website
- Children's court website
- Family court website
- Federal Circuit court website
- Magistrates' court website
- County Court website
- Federal Court website
- High Court website