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The Judiciary (Courts)
Introduction
NSW Courts were established under Charters of Justice early in our colonial history, and later Acts of the British and NSW Parliaments. The Supreme Court is the highest court in NSW, and its judges also rule on state constitutional issues, thereby exercising a degree of judicial review over legislation.
Two years after the Australian states federated into the Commonwealth of Australia in 1901, the Australian High Court and other Federal courts also began to be established so that both state and federal systems of courts now exist. The judicial power of the Commonwealth is vested by Section 71 of the Australian Constitution, and through subsequent Commonwealth legislation, in the High Court, the Federal Court, the Family Court of Australia and the Federal Magistrates Court. Certain state courts such as the NSW Supreme Court have also been given federal jurisdiction by the Federal Parliament.
Since 1986 the final court of appeal for any Australian case has been the High Court of Australia. Prior to that some cases could be considered by the English Privy Council. The High Court also has the important function of interpreting the Australian Constitution as well as the constitutions of each State.
The Sources of Law
There are two main sources of law in NSW:
1. Legislation or Statute Law
Parliaments pass laws (or 'statutes'). These can be Federal or State Parliaments, depending on what the laws are about. The Australian Constitution sets out the powers of the Federal Parliament. The States retain all other (residual) powers and may pass laws in all areas not specifically allocated to the Commonwealth. Laws passed by parliaments often give Ministers the power to make regulations under a particular Act (such as road traffic rules) - thus Ministers can, in effect, make laws, although these can be overridden by a House of Parliament. Generally, where state and Commonwealth laws disagree on a particular subject, the court will find the Commonwealth law to be superior. The highest or basic form of state law is constitutional law, which is that founded on the interpretation of the NSW Constitution.
2. Case Law or Common Law
The courts are the custodians of the rights of citizens; they interpret laws passed by parliament; and, through their decisions, make the common law. The courts usually follow precedent; that is make decisions based on what earlier courts have decided was the law when similar facts were presented in a case. However, judges often have to decide how to apply the law to a completely new situation. If there is no legislation covering the area, the judges have to decide what the law should be in this new situation, so as to settle the dispute before them. Thus the common law is built up over time with the decisions and interpretations of judges. Statute law often has the effect of reducing or eliminating any common law that may have existed in the same area. Common law countries are generally those where the legal system had essentially British origins, such as the USA, Canada, New Zealand, Australia, and Britain itself. Most now also have some form of constitutional or legislative bill of rights to protect individual and property rights but where this does not exist or is very limited (as with Australia) human rights are largely protected through common law.
Courts' Interpretation of Parliament's Laws
Part of the courts' role is to interpret the laws which Parliament has made. The NSW Parliament passes laws covering many different issues. If a person breaks one of these laws they can be taken to court, or a person can go to court to enforce rights given to them by Parliament.
The court decides whether the law has been broken or what rights to uphold by:
1. establishing the facts;
2. applying the law to the facts.
In interpreting the law, the courts, or rather the judge or judges, may decide that the law itself which Parliament has passed is not valid. This can be for a number of reasons, such as being contradicted by another law or not being within the powers of the State Parliament as delegated by the Commonwealth or State Constitutions. The Parliament and the courts are separate: Parliament makes statute laws, the courts interpret the law. The judiciary (courts) can also "make" law through interpretations and application of common law.
Criminal Jurisdiction
Criminal law is concerned with matters in which society as a whole has an interest. Both the government and the police are involved in enforcing criminal law.
In NSW, serious criminal offences are generally dealt with in the District or Supreme Court while less serious offences are usually dealt with in the Local Court.
If an accused person pleads guilty, they proceed to being sentenced by the court. If the accused pleads “not guilty”, they proceed to trial. The accused person is presumed innocent until proven guilty. Most criminal trials for serious crimes are heard before a judge and jury. The purpose of a court trial is to establish whether an accused person who denies guilt is guilty of the crime, and this must be proven by the prosecution "beyond reasonable doubt". If found guilty, the accused is sentenced by a judge.
The NSW Parliament passes laws that affect both criminal law and civil law. Through the Crimes Act and other legislation, Parliament can make certain actions into crimes, and set out maximum and, sometimes, minimum sentences to be given for committing these crimes. In all matters, the courts, through the judge's interpretation of the law, decide how to apply these Acts.
Civil Jurisdiction
Civil law is concerned with disputes between individuals or groups where a person or a group's rights have been affected. It covers areas such as contracts, negligence, family law and employment law. The court case involves one party being able to prove on the balance of probabilities that something has happened or not happened. Civil cases are usually tried by a judge without a jury, although a jury can sit on some cases.
The NSW Parliament passes laws that affect both criminal law and civil law. It also passes legislation dealing with workers' compensation, contracts or other civil matters. In all matters, the courts, through the judge's interpretation of the law, decide how to apply these Acts.
Courts of Appeal
The Court of Appeal in the NSW Supreme Court hears appeals from civil proceedings from the divisions of the Supreme Court, the District Court, the Land and Environment Court, and other bodies. An appeal is heard by one judge and then, if one of the parties is dissatisfied with the decision, by three or even five judges (the full court). The majority view prevails. If either of the parties is dissatisfied with the result after the case is heard by the Full Court of Appeal, the next step is to seek leave to appeal to the High Court.
The Court of Criminal Appeal in the Supreme Court hears appeals from criminal trials in the Supreme Court and the District Court. An appeal is heard by from one to five judges – the number of judges on the bench depends on the complexity or severity of the matter and whether it is an appeal against a sentence of a conviction. The majority view prevails.
Trial by Jury
Statistically, in NSW most criminal offences are dealt with "summarily" (without jury) by a magistrate. For more serious crimes, a jury is generally used. Indeed, if requested, some civil matters may be also heard before a jury. Sometimes – if the prosecution consents – defendants in the District or Supreme Courts elect to be tried before a Judge alone.
No special qualifications are needed to be on a jury beyond being on the electoral roll though some classes of people are exempt from jury services such as Members of Parliament and lawyers. Others can apply for exemption because of ill health or work commitments. People can also be disqualified if their background is likely to make them either strongly in favour or strongly opposed to the accused before the case is heard.
In criminal cases, a jury of 12 is selected and must reach an unanimous verdict. In civil proceedings, the size of the jury depends on the case, and majority verdicts are allowed.
During the selection of the jury, both the defence and the Crown are each allowed to refuse (challenge) up to three prospective jurors without having to give reasons.
Further Information
Additional Information on the courts and legal system for NSW can be found on the following:
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Last modified 21/02/2008 18:11:46 : Update this page