Understanding The Law.... Litigation Law

Q1. What is the legal profession in Australia?

A. After passing a legal course, the legal graduate maybe admitted by any Australian State or Territory Supreme Court to legal practise. This right to practise will be to work as a barrister or as a solicitor, or as a barrister and solicitor depending whether the particular jurisdiction or State / Territory has a divided or fused legal profession. At the top of the legal profession are the Judges, Tribunal Members, Magistrates and Registrars who apply the law to make a judgment or decision. Judges are appointed by the relevant government department or senior judicial officer of a State or Territory. Judges are usually appointed from the senior ranks of practising barristers but are also appointed from the ranks of senior solicitors. Solicitors are often appointed as tribunal members. All lawyers are eligible for judicial appointment including solicitors, law professors, senior public servants and politicians. The independence of the Judiciary is important. However, not all judges are appointed for life which means to their retirement age which normally in 72 years. Members of the specialist tribunals – court such as the Australian Industrial Relations Commission - are appointed for specific terms which may then be renewed or not renewed depending upon the Government of the day. Some lawyers believe this impinges on judicial impartiality. Barristers and solicitors are the working member of the legal profession. Solicitors are legal practitioners’ who have offices to which the public go for legal advise on a whole range of matters. Many solicitors are the general practitioners of the law conducting a wide range of legal services and providing general legal advice. Other solicitors practice in large firms where specialisation is common. Barristers are prohibited from forming partnerships with other barristers or with solicitors. Barristers are usually specialists in court- room work, arguing cases in courts and tribunals, and advising on the more complex legal matters. In NSW and Queensland there is legal separation. A person cannot be both a barrister and a solicitor. In other Australian States and Territories, however, all lawyers are admitted to practise both as barristers and solicitors. If fact, however, some lawyers in these other states choose to practise only as barristers so that an independent bar exists in all States and Territories. This means, in effect, the situation is much the same as in NSW and Queensland where the two groups are legally separate under Act of Parliament. Some barristers and/or solicitors work in house as legal advisors, corporate counsel, compliance officers and as company secretaries.

Q2. How is Australia’s legal profession changing?

A. Over the last thirty years, many areas of work previously monopolised by lawyers have been thrown open to competition. Currently non-lawyers such as accountants, merchant bankers, compliance consultants and conveyances compete with lawyers. The legal profession in Australia is rapidly moving towards one national practise of law extending over State and Territory borders with a “travelling” practising certificate, uniform regulation, uniform laws, and interstate recognition of qualifications. The proportion of women in the profession has also grown dramatically from 0.2% in 1911 to about 30% today. About half of current law students and university legal academics are female. The future challenge for the Australian legal profession is to acclimatise to globalisation in the same way as has Australian business and mining and primary production industries. The near future will see the local admission of foreign legal practitioners and further development of transnational legal practices and transnational multi-disciplinary partnerships made up of, for example, lawyers and accountants.

Q3. What is Australia’s Court system?

A Legal matters and legal disputes are heard in a wide variety of courts and tribunals. Generally, the court structure in Australian States and Territories and Federally provide that the most serious and costly cases (in terms of the seriousness of offence or value of money involved) are handled at the highest level by the “superior” courts while minor offences which can be solved quickly are dealt with in readily accessible “inferior” courts. In between there are “intermediate” courts. For example, in most Australian states you will find a Supreme Court which stands at the pinnacle of the State system of courts. Beneath the Supreme Court you will find an intermediate court called either a District Court or a County Court. Below those intermediate courts you will find the Magistrates’ Courts or the Courts of Petty Sessions. The “inferior” courts such as the Magistrates Courts, Local Courts, Courts of Summary Jurisdiction or Courts of Petty Sessions cover a wide range of civil disputes concerned with small debts and other small matters. Their criminal jurisdiction is of two types. The “inferior” courts hold most preliminary hearings or committal proceedings. These courts also deal with summary offences such as Police prosecutions for failure to pay fines for traffic offences. Some more serious criminal offences knows as “indictable offences” are also capable of being heard and determined in inferior courts. They are known as indictable offences triable summarily. Inferior courts may also function as Coroners Courts to investigate unexplained deaths and fires. Intermediate Courts such as District or County Courts exist in all jurisdictions except Tasmania, the Northern Territory and the ACT. In practise and procedure, there are few differences between these courts and the Supreme Courts of the particular state. These intermediate courts are now capable of hearing most civil cases accept in some areas of Equity, Admiralty and Probate. Their criminal jurisdiction covers most indictable offences where there is a trial by judge and jury except capital offences like murder and other specific matters reserved for Supreme Courts only such as treason and sedition. The State and Territory Supreme Courts have unlimited jurisdiction. Their Civil Jurisdiction usually consists of large and complex cases. Their criminal jurisdiction involves a judge and jury. Because Australia is a federal democracy with both Federal/Commonwealth Laws and State / Territory Laws, a system of courts has been established to hear disputes arising under Federal and Commonwealth Laws. The Federal Court and Family Court of Australia are Superior Courts with similar functions to State Supreme Courts. The Federal Magistrates’ Court is similar in function to State Magistrates Courts and Courts of Petty Sessions. The High Court of Australia sits at the pinnacle of the Australian State or Federal Justice System. Its major function is to serve as the final court of appeal within the Australian legal system and to hear appeals from State Supreme Courts or from the Federal Court of Australia. It has the primary responsibility of interpreting the Australian Constitution.

Q4. Where does the law applied in Australian Courts and Tribunals come from?

A The sources of our law are the Commonwealth and State/Territory Parliaments and the courts, based upon legal principle, legal policy and legal authority. These sources produce respectively enacted and unenacted law. Enacted law is made by Parliament and is known as statute law, legislation or Acts of Parliament. Parliament also enables other bodies to make subordinate laws known as orders, regulations, rules or by-laws. These are all known collectively as delegated legislation. Unenacted law, on the other hand, is the law made by courts without direct parliamentary authority. This law is commonly known as the common law or case law. Common law began in England with the first judges who were all Churchmen of the Royal Court after the Norman Conquest in 1066. The body of rules they built up has been added to since that time by succeeding generations of judges. This body of common law is now applied in Australia since Federation in 1901. Australian courts are also able to view developments on the common law by other English speaking legal systems such as the United States of America, India, Canada and New Zealand. Because of the nature of the hierarchical courts structure in which judges sit in Australian courts, a doctrine has developed that establishes the rule that similar cases will be decided similarly. This doctrine lays down the rule that lower courts must follow the decisions of higher courts where the facts are similar. The doctrine is called precedent is guarantee order and certainty in the decisions of the Australian court system.