Courts in action

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This article is a topic within the subject Introducing Law & Justice.


Required Reading

Prue Vines, Law and Justice in Australia: Foundations of the Legal System, (2nd ed, Melbourne, Oxford University Press, 2009), pp. 269–272 (Chapter 11); 295-312; 318-327 (Chapter 12).

Adversarial and inquisitorial procedures

[1] The common law legal system uses an adversarial legal procedure whilst the civil law system uses an inquisitorial procedure. The differences are set out below:

  • Adversarial (common law):
    • Parties in the adversary system are in charge of the action ('lawsuit'). They initiate it, set it up, call the evidence, call witnesses and use the court as a forum.
    • In theory, equal parties prepare and present their case to a neutral tribunal (judge)
    • Advocates have a duty to their party and to the court
    • Court is not entitled to make its own enquiries or otherwise act on its own knowledge in reaching its decision.
    • Thus, the role of the judge is 'adversarial' - he makes rulings about what evidence is admissible, what procedure should be followed, and sometimes asks questions purely to clarify the matters.
    • After the trial, the judge decides on the law and writes a judgment which becomes precedent.
      • Where there is a jury, a judge directs the jury on the law that they should apply to the facts.
  • Inquisitorial (civil law)
    • The judge has a more active role - may direct parties to present witnesses, examine the witnesses personally or collect evidence.
    • This means the judge is more 'in charge' of running the action than the parties.

Dingo story

[2] The Chamberlains' case is a good example of a case that covers all aspects of the legal system. The interaction of courts, experts, media and an unusual event made a tragedy for a family into a nightmare.

  • The Chamberlains were camping near Uluru when their baby, Azaria, disappeared from the tent.
  • Since dingos have been attacking small children around the area, the coroner's inquest concluded that a dingo must have taken the baby and neither parents are at fault.
  • However, there was frenzy in the media about the rituals of the church which the Chamberlains belonged too, and a (false) rumour said that Azaria meant 'sacrificed in the wilderness'.
  • Suspicion of the mum intensified because the interview showed her appearing unnaturally stoic about her son's death. In fact, she cried so often, the network cut out all the break-downs out.
  • A forensic expert was called in, but apparently he was misled about certain facts and eventually he decided that the Chamberlains are suspects and they were put on trial for murder.
  • The jury was completely swayed by the public opinion and the media, and the Chamberlains were convicted for murder. They spent years moving between prisons and trying to appeal the decisions.
  • Six years after the affair, the baby's jacket was found in Uluru. The case was reopened after federal pressure on the Northern Territory government etc.
  • It was discovered that previous findings were wrong, and the Chamberlains were pardoned by the government.
  • However, pardon still technically means they were guilty. They continued to seek an acquittal to clear their names, until it happened in 1988.


[3] Jurisdiction is the scope of a body’s power to hear a matter, determine what the facts are and apply the law to make a judgment.

  • It is the range of power and territory within which that power can be exercised. A court cannot hear a case over which it has no jurisdiction.
  • Generally a statute which establishes a court will also define its jurisdiction.

Supreme courts

[4] The Supreme Courts have a long history and tradition. They are 'Superior courts with a record of general jurisdiction'. This means:

  • A Supreme Court has 'unlimited' jurisdiction, unless a later statute has limited it.
    • Since Supreme Courts have unlimited jurisdiction, federal matters may be heard and determined in them. This is per the doctrine of the 'autochthonous expedient'.
  • A Supreme Court has an inherent power to regulate its own procedures, the right of the audience and to grant bail.
  • A Supreme Court decision cannot be made void, but must be set aside by writ of error or by an appeal.

The Supreme Court deals with very serious matters. In the criminal domain, this usually means serious offence like murder, treason or rape. In the Civil domain, it means matters which are outside the jurisdiction of the lesser courts.

The Supreme Court also hears appeals, either as a single judge or as the Court of Appeal.

Intermediate courts

[5] The intermediate courts are the District or County courts. They are below the Supreme Courts and their jurisdiction is limited by their enabling act. The limits of their jurisdiction varies between states, but is generally defined by monetary limits in civil cases (ie, the court can only hear cases claiming $750,000 or less). In criminal cases, there are usually a number of offences which are expressly outside jurisdiction of the intermediate court (ie murder).

Some intermediate courts have some appellate jurisdiction (can hear appeals).

Magistrates (local) courts

[6] The Magistrate courts, or the Local courts, are the lowest courts on the chain of jurisdiction. Their jurisdiction is limited by statute, and they usually deal with low level matters. However, they are profoundly important because it is in the local courts where the vast majority of cases are heard (usually about 99% of the cases). Local courts deal with:

  • Criminal:
    • The committal process - checking whether there is a case to answer in relation to an indictable offence, and therefore whether the case should go to trial in the district or supreme court.
    • Lesser offences (ie, traffic offences, fines etc).
  • Civil:
    • Small debts and claims.

State tribunals and specialist courts

[7] Each state tribunal will have its own legislation which specifies its jurisdiction and the process of appeal if appeals are allowed. Examples of such courts and tribunals include the Dust Diseases Tribunal, Residential Tenancies Tribunal etc.

A court exercises judicial power, and is headed by a judge or magistrate. Tribunals don’t always exercise judicial power, and have specialist areas.

Federal Courts

[8] Since Australia is a federation wherein there are a number of states, federal courts have been set up to have jurisdiction in matters involving federal or inter-state matters. Federal courts have defined and limited jurisdiction. However, federal courts also have accrued jurisdiction, which means that the federal courts can also decide on matters outside of federal jurisdiction if they are closely related with matters which are in the federal jurisdiction (so, if a case has both federal and non-federal matters closely related, the federal courts may hear it). The federal courts of Australia are detailed below.

The High Court

[9] The High Court is the highest court in Australia. It is a superior court of record with the same power to punish for contempt as the supreme court with the law for all jurisdictions. It deals with matters of federal importance, such as:

  • Matters arising under any treaty.
  • Matters affecting consuls or ambassadors.
  • Matters where the Commonwealth is a party
  • Matters between states or residents living in different states.

The High Court is also the highest point of appeal. There is no 'right' of appeal to the High Court, rather appeals take place only when there is special leave (permission) by the court. Leave is given when there is a question of law which is of public importance or where it is necessary to resolve the differences of opinion between the lower courts.

The Federal Court of Australia

[10] The Federal Court of Australia is a superior court of law with limited jurisdiction. Its jurisdiction extends to matters such as:

  • Bankruptcy.
  • Trade practices.
  • Federal administrative law.
  • Admiralty.
  • Corporations law.
  • Federal tax disputes.
  • Native title.
  • Intellectual property.

Federal Magistrates Court

[11] The Federal Magistrates Court's jurisdiction is entirely civil. It extends to matters such as:

  • Property with value less than $300,000.
  • Shared jurisdiction with the FCoA in regards to administrative law, bankruptcy, human rights, privacy and trade practices.
  • Parenting orders.
  • Determination of parentage.

The Federal Magistrates Court has the power to award damages up to $750,000.

Family Court

[12] The Federal Court of Australia is a superior court of law with limited jurisdiction. Its jurisdiction extends to matters such as:

  • Matrimonial causes.
  • Marriage.
  • Custody of children.
  • Maintenance of spouses and children.

Federal - state court interaction

[13] It often happens that matters overlap between federal and state jurisdictions. Sometimes, it is difficult to determine whether a court has jurisdiction to determine the matter.

  • In a case where federal matters overlap in a state court, the Supreme Court of that state will usually have jurisdiction over the federal matters as well, according to the autochtonous expedient.
  • However, the jurisdiction of the Supreme Courts was limited with the introduction of Trade Practices and family law in the 1970s. Those matters were exclusively under the jurisdiction of the federal courts.
  • Because of the growing power of the federal courts, the Cross Vesting Scheme was introduced.[14] It vested the federal jurisdiction of the federal courts in the state Supreme Court, and also vested the non-federal jurisdiction of the state courts to the federal courts (ie, gave the each court the power of the other).
  • However, Re Wakim; ex parte McNally[15] determined that the federal court cannot be vested with non-federal jurisdiction, and the legislation is invalid to the extent that it purports to do. Thus, the federal courts cannot hear a non-accrued state matter.

Equality and access

[16] Equal access to to justice for all is an important aspect of any legal system. The main barrier to accessing justice include is the cost of legal aid. Another important barrier is the culture and language of the courts. We examine it in detail:

  • The court is a foreign place to all people - the language used in the court is complex even to native speakers.
    • Legal proceedings used to be conducted in a strange dialect of French from the arrival of the Normans in England until 1733.
  • The courtroom is designed to convey the structure of power.
    • the judge is usually elevated above everyone else, sitting under the coat of arms.
    • Accused people are sometimes in a dock, and lawyers are behind a special bench.
    • The jury sits above the rest of the room, but not above the judge.
    • Judges and barristers often wear robes or wigs.

Rights to interpreters

[17] People for whom English is a second language might particularly struggle with the language of the court. There is some recognition of a right to an interpreter in Australia, but generally it is up to the judge to decide:

  • In a criminal case, the judge considers whether the accused gets a fair trial without an interpreter or not.
  • In a civil case, there is no automatic right to an interpreter.
  • The problem is that often a party involved is unaware of how helpful an interpreter will be, and so he does not seek one.

Witnesses have even less of a right to an interpreter. The judge decides entirely on his own whether an interpreter is needed to ensure that evidence is fairly and fully presented before the court.

There is obviously a problem with judges being the ones who determine whether a person gets an interpreter - judges are not proficient in assessing how well someone speaks English, and it can be hard for them to determine whether an interpreter is needed. Research shows that the majority of adult migrants do not possess the level of proficiency needed to properly communicate in a court room, and that judges often overestimate their language abilities. This means that interpreters are needed. However, there are also problems with interpreters:

  • They can be very expensive.
  • There are very few people good enough to be interpreters.
  • Interpreting is a very hard job, and can only be done for short periods of time.
  • The use of an interpreter puts another person between court and the witness, thus stopping the court from forming its own view etc.

Non-verbal communication

[18] Another very important thing in court is non-verbal communication such as eye contact, facial expressions, placement of the body etc. These vary greatly between cultures, which means that migrants or Indigenous people are likely to be misunderstood since their non-verbal communication is different from the Western one.

  • A common example is how it is rude to look someone in the eye for a long period of time in Asian and Aboriginal cultures. People of those cultures thus constantly shift their eyes away. In the court room, shifting your eyes away is likely to be interpreted as a sign of dishonesty or nervousness.

Research also shows that people are generally pretty bad at determining whether others are lying, but think they are quite good. The research also shows that people like judges and policemen think of themselves as 'professionals' at detecting lies, but are actually no better than others. In the court room, where lying can result in a person going to jail, it is very dangerous to rely on non-verbal clues in order to assess whether someone is lying.


Textbook refers to Prue Vines, Law and Justice in Australia: Foundations of the Legal System, (2nd ed, Melbourne, Oxford University Press, 2009).

  1. Textbook, p0. 269-70
  2. Textbook, pp. 295-7
  3. Textbook, pp. 297-9
  4. Textbook, p. 300
  5. Textbook, pp. 300-1
  6. Textbook, pp. 301-3
  7. Textbook, p. 303
  8. Textbook, pp. 304-5
  9. Textbook, pp. 305-6
  10. Textbook, pp. 306-7
  11. Textbook, p. 307
  12. Textbook, p. 308
  13. Textbook, pp. 309-10
  14. Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth)
  15. (1999) 163 ALR 270
  16. Textbook, pp. 318-9
  17. Textbook, pp. 321-3
  18. Textbook, pp. 323-6
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