The Legal System

Contributors: Simon Rice and Nick Kitchin

Currency of information: May 2010

Fundamental Concepts

Introduction

Australia inherited its legal system from England at the time of colonisation. Since then laws have been interpreted, applied and developed by Australian judges, and new laws have been made by Australian parliaments.

This chapter explains the basics of how our legal system works, including:

• how laws are made;
• how courts and tribunals operate; and
• how laws are enforced.

Types of law

Every law in Australia is:

• either common law or statute law, and
• either criminal law or civil law, and
• either Commonwealth law or State law or Territory law.

Every law also has a particular jurisdiction. The jurisdiction of a law includes:

• the geographical area it covers (for example, the ACT, or the whole of Australia)
• its subject matter (for example, family law).

Common Law and Statute Law

Australian law comes from either:

• the common law (judge-made law or case law), or
• an Act of parliament (statute law).

Aboriginal and Torres Strait Islander customary law also has some limited application (see Aboriginal and Torres Strait Islander Law).

Common law

The centuries-old tradition of English law is that judges decide each case as it comes to court, and give reasons for their decisions. These reasons, or judgments, are published in books called law reports (and now also on the Internet - see Finding Out About the Law). The accumulation of judges' decisions over many years is what is called the common law -- law made by judges in deciding common disputes.

The Australian colonies inherited the English common law, and from early in the 19th century judges in Australia have been developing the common law locally.

A. The doctrine of precedent

Judges are bound by a strong tradition to decide cases consistently with earlier decisions based on similar facts. Even if the facts of the earlier cases were not exactly the same, the judge compares the situations and applies an established principle, or develops a new but reasonably similar principle for the new facts. This approach to decision-making is called the doctrine of precedent, and the principles and rules generated form, collectively, the principles and rules of the common law.

The doctrine of precedent in Australia

Some of the rules that make up the doctrine of precedent in Australia are:

• In the hierarchy of the court system, a decision of a higher court is binding on lower courts.
• Most courts are not bound to follow their own previous decisions, although they are expected to do so.
• The highest court in Australia, the High Court, is not bound to follow its own decisions.
• The decisions of courts outside Australia are not binding on Australian courts. However, Australian courts can refer to them for guidance or comparison if, for example, a case is unusual or difficult.
• When a court makes a decision, it gives reasons for its decision. Another case with similar but not identical facts can be decided differently (that is, it can be distinguished). It is often said that 'each case will be decided on its own facts'.

B. Interpreting the law

Judges also have an important role in interpreting legislation. The decisions they make in interpreting Acts of parliament are precedents that other courts can later use.

Judges continue to develop the common law in areas not covered by legislation.

Statute law

A. Acts of Parliament

States

The governors of New South Wales and Van Diemen's Land (Tasmania) had very wide powers to run the colonies. English Acts of parliament applied in the Australian colonies from 1828, and thereafter the British government gradually increased the role of the New South Wales parliament while reducing the power of the governor.

In 1855 the British government gave the colonies clear powers to make their own laws, and Australian parliament-made laws (statutes or Acts) date from that time.

Each Australian State has power to make its own laws.

Commonwealth of Australia

Since 1901 the Commonwealth Government has had power to make laws for the whole of Australia within the powers of the Constitution.

Territories

The Northern Territory and the Australian Capital Territory are self-governing territories and derive their law making powers from Commonwealth statutes:

• the Northern Territory (Self-Government) Act 1978 (Cth) (s 6); and
• the Australian Capital Territory (Self-Government) Act 1988 (Cth) ('ACT Self-Government Act') (s 22).

B. ACT Laws and Self-Government

Before the ACT Self-Government Act created a democratically elected Legislative Assembly in the ACT, laws were sometimes made for the ACT by the Commonwealth Parliament. More often, ACT laws were made by the Governor-General exercising powers delegated to him under the Seat of Government (Administration) Act 1910 (Cth), s 12. The laws made by the Governor-General were known as 'ordinances' and corresponded in subject matter and effect to the Acts now made by the ACT Legislative Assembly. With self-government in the ACT, the Seat of Government (Administration) Act 1910 (Cth) was amended to narrow the scope of s 12.

During a staged period after self-government in the ACT, most ordinances that had applied before self-government were converted into Acts. Since self-government, ordinances may only be made in the ACT on a fairly narrow range of topics including the classification of materials for censorship, land used or intended to be used for Commonwealth purposes (National land), and companies. Ordinances are no longer a major source of law in the ACT, and since self-government very few ordinances have been made. When they are made they continue to be administered by the Commonwealth.

C. Making Acts of Parliament

Bills

While a parliament is considering whether or not to pass an Act, the draft Act is called a Bill. A Bill must pass through parliament and receive royal assent (approval by the governor-general or the relevant State governor) before it becomes an Act. However, because the ACT does not have a State Governor the royal assent has been replaced with other provisions for the enactment of laws.

When does an Act come into effect?

After a Bill becomes an Act, it does not necessarily become operational (commence) immediately. It may commence on a date specified in the Act itself, or by proclamation (publication in the Government Gazette). Different parts of an Act may commence at different times. If no time is specified, an Act commences on the day of notification in the Territory Gazette.

In practice, some Acts or parts of an Act never actually come into operation because, for a range of practical or political reasons, they are never proclaimed to commence.

Once an Act, or part of it, commences, it becomes law.

Names of Acts

An Act is identified by name, date, and jurisdiction; for example, the Family Law Act 1975 (Cth), or the Human Rights Act 2004 (ACT). The name usually indicates its content, the date is the year it passed through parliament (which is not necessarily the date it commenced), and the jurisdiction is the parliament that passed it.

Definition of the terms used in an Act

Most Acts have a definitions section at the beginning (around section 3), or a Dictionary at the end of the Act, to explain what is meant by words and phrases used in it. These definitions are crucial to understanding the Act.

Repeals and amendments

From time to time, a parliament repeals (does away with) or amends (changes) an Act.

It is important always to check the currency of an Act you are reading to make sure that it has not been amended.

D. Subordinate Legislation

There are also laws covering administrative details and other matters not easily dealt with by the more general terms of an Act. These are called Subordinate Laws or subordinate legislation. A subordinate law is a regulation, rule or by-law. Regulations are the most common type of subordinate law in the ACT. Subordinate legislation is also known as delegated legislation, and they always relate to the Act under which they are made.

If a subordinate law is primarily concerned with matters of procedure (especially of a court or tribunal), it is usually be called a rule, for example 'rules of court'. A subordinate law that operates in a particular geographical area (for example a nature reserve) or applies in relation to a particular body will often be called a by-law; by-laws are rare in the ACT. However, that there is no legal requirement that regulations, rules and by-laws operate in this way: it is a matter of usage relating to the way that subordinate law-making powers are commonly expressed. Ordinances in the ACT, which were the principal source of law in the ACT before self-government, are described above at ACT Laws and Self-Government.

Subordinate or delegated legislation such as regulations needs to be considered, along with the Act, in researching and understanding the law.

How is delegated legislation made?

An Act usually empowers some authority (a local council, parliamentary minister, public authority or public servant) to make Regulations from time to time. Regulations must be submitted to parliament before they become law.

E. Publication of Acts and Regulations

Acts and Regulations are printed in statute books for each year. They are reprinted as changes occur, and these reprints are sold to the public in written and electronic formats.

Acts and Regulations are also available for free on the Internet at www.legislation.act.gov.au (ACT laws) and www.comlaw.gov.au (Commonwealth laws). See also:

• www.austlii.edu.au (both Commonwealth and State and Territory Acts and Regulations (as well as court and tribunal cases)). A comprehensive and trusted website.
• www.australia.gov.au (Commonwealth law). This site also provides a great deal of interesting and useful information about government services and policies, not just legislation, and is a useful starting point for links to government agencies of every description.

See also FindingOutAboutTheLaw.

How statute and common law affect each other

A. Interpretation of Acts

Acts and other legislation are sometimes drafted in very broad terms. Courts must often decide their meaning, and the court's interpretation becomes part of the common law in that area. For example, the law on families is found not only in the Commonwealth Family Law Act 1975 (Cth), but also in the decisions courts have made on matters controlled by the Act.

Interpretation Acts

An Act is interpreted according to an Interpretation Act in each jurisdiction, such as the Acts Interpretation Act 1901 (Cth) and the Legislation Act 2001 (ACT).

The purpose rule of interpretation

A very important rule made to assist in the interpretation of Acts is the purpose rule of interpretation, which says that Acts are to be interpreted in a way that promotes the underlying purpose or object of the Act. Acts in the ACT usually have a statement of 'objects' at the beginning, around section 3 or 4.

B. Can a judge overrule an Act?

An Act is binding on all courts and judges. Judges cannot overrule or challenge the validity of an Act, except in the High Court.

C. Which has precedence?

If an Act and a common law rule apply to the same area, and they are inconsistent, the Act overrides the common law. If, for example, the common law creates a new principle, parliament can overrule it or vary it with an Act. The High Court decision in the Mabo case, and the subsequent Native Title Act 1993 (Cth), is an example of this (see Aboriginal and Torres Strait Islander Law for more information on this example).

D. Where the law is unclear

Occasionally, the courts are uncertain about the meaning of an Act, or make unclear or unhelpful decisions about it.

It is particularly important to seek advice from a lawyer when the law is unclear.

E. Unconstitutional Acts

The High Court of Australia, or a State Supreme Court (for a State Act) can declare an Act invalid and of no effect if (and only if) the Act is found to be unconstitutional (that is, the parliament did not actually have the power to make it. The ACT and the Northern Territory do not have constitutions -- the limits of the law-making powers of their legislatures are set out in Commonwealth Acts. See State and Commonwealth constitutions and Territory enabling legislation

Aboriginal and Torres Strait Islander law

The customary laws of Aboriginal and Torres Strait Islander peoples were given little recognition by the legal system until recently. For more information see Aboriginal and Torres Strait Islander Law.

Criminal Law and Civil Law

Criminal law

A crime, or offence, is essentially an action that is contrary to the social expectations of personal conduct reflected in law, such as stealing, assault, fraud, failing to lodge tax returns, and polluting. . For a further explanation of offences, see Summary offences, indictable offences and committal hearings.

The government has the role of prosecuting or enforcing the criminal law against a person or company, usually through the police, the Director of Public Prosecutions or some other government body, such as the Environment Protection Authority (EPA) in the ACT.

A person who is being prosecuted in criminal law is called the defendant or the accused.

A. The burden of proof

In criminal law, the burden (or onus) of proof is on the prosecution. The accused is presumed to be innocent until and unless the prosecution can prove otherwise.

B. The standard of proof

In criminal law, the standard of proof for allegations is 'beyond reasonable doubt'.

C. Penalties

A penalty, such as a fine, a bond or imprisonment, can be imposed on a person or company found to have committed a criminal offence.

It is possible to be found guilty but to have no conviction recorded or penalty imposed.

Criminal law is discussed in detail in CriminalOffencesInfringementsAndPenalties and surrounding chapters.

Civil law

Broadly speaking, civil law is all law that is not criminal law. Examples of matters that come under the heading 'civil law' are the law of negligence, family law and contract law.

Civil cases usually involve individuals or companies taking legal action against other individuals or companies, often for doing something that is alleged to be unfair, harmful, or contrary to an agreement.

A person bringing a case is called a plaintiff or, sometimes, an applicant or complainant. A person against whom an action is taken is called a defendant or respondent.

A. Administrative law

Administrative law is a special form of civil law that usually involves legal action by a person against a government agency, something that has become much more common in the last 30 years. This area of law is discussed in detail in AdministrativeLaw.

B. The standard of proof

In civil law, the standard of proof is 'on the balance of probabilities', meaning that something is more likely than not to have happened.

C. Damages

In a civil case the plaintiff or applicant can seek an order for compensation (damages) from the defendant, or an order that some conduct of the defendant be required, stopped, or altered.

State, Territory and Commonwealth Law

State and Commonwealth constitutions and Territory enabling legislation

A. State and Commonwealth constitutions

Australia and its states all have constitutions. These are the source of the various parliaments' power to make legislation. If a Commonwealth Act goes beyond the power given in the Australian Constitution (or a State Act goes beyond the power given in the relevant State constitution), the Act, or part of it, can be declared by certain courts to be invalid.

B. Territory enabling legislation

The Territories do not have constitutions. They are created by the Commonwealth Government and so, unlike the powers held by State governments, the powers of the Territory governments can be created and limited by Commonwealth legislation. The reason for this is found in s 122 of Australia's Constitution, which allows the Commonwealth government to 'make laws for the government of any territory'.

In the ACT, the source of the ACT Legislative Assembly's law making power is found in the Australian Capital Territory (Self-Government) Act 1988 (Cth) ('ACT Self-Government Act'), which is a Commonwealth Act.

If an ACT Act goes beyond the powers granted to the Legislative Assembly in the ACT Self-Government Act, the Act, or part of it, can be declared by certain courts to be invalid.

What State, Territory and Commonwealth laws cover

The laws of the Commonwealth Parliament apply to all Australians, while ACT law applies to people and things in the ACT or having a connection with the ACT. Generally, Commonwealth and State / Territory legislation deal with different matters.

A. Commonwealth legislation

The Commonwealth Parliament can only make laws about matters listed in s 51 of the Australian Constitution. If a matter is not listed, the power to make laws about it lies with the states.

Matters about which the Commonwealth Parliament can legislate include:

• defence;
• taxation;
• customs;
• migration;
• social security; and
• marriage.

These powers reflect the world as the drafters of the Constitution saw it in the 1890s. For example, the 'marriage' power does not cover the families of de facto couples, which are a State concern. But under s 51 the States can agree to hand over powers to the Commonwealth Parliament, and they have done so in this area to avoid confusion and duplication.

The external affairs power

Section 51 of the Constitution also gives the Commonwealth government the power to make laws in relation to 'external affairs'. It is this power that enables the Commonwealth Parliament to sign international treaties and then make laws giving effect to them.

For example, the Racial Discrimination Act 1975 (Cth) gives effect to Australia's obligations under the United Nations' Convention for the elimination of all forms of racial discrimination.

B. State legislation

Under their own constitutions, State parliaments have the general power to make laws for any matter as long as it is for 'the peace, welfare and good government' of the State -- a very wide power. Under the Australian Constitution States can make laws for any matter as long as it is not inconsistent with a Commonwealth law made under s 51.

Matters dealt with by the states commonly include:

• health;
• education;
• roads and traffic;
• building;
• local government; and
• the environment.

C. Territory legislation

Under the Australian Capital Territory (Self-Government) Act 1988 (Cth) ('ACT Self-Government Act'), the ACT Legislative Assembly has a general power to make laws for any matter as long as it is for 'the peace, welfare and good government' of the Territory -- a very wide power. Exceptions to this general power are listed in s 23 of the ACT Self-Government Act. For example, the Commonwealth government retains control of the Australian Federal Police, the defence force, censorship classification, and corporations and securities. Also, the ACT Legislative Assembly has no power to legalise euthanasia. Under the Australian Constitution, Territories can make laws for any matter as long as it is not inconsistent with a Commonwealth law made under s 51.

Matters dealt with by the territories commonly include:

• health;
• education;
• roads and traffic;
• building;
• local government; and
• the environment.

D. Inconsistent legislation

A State Act and a Commonwealth Act can cover the same matter as long as they are not inconsistent (for example, both Commonwealth and states have anti-discrimination laws). If they are inconsistent, the Commonwealth law prevails to the extent of the inconsistency (Australian Constitution s 109). Similarly, Commonwealth law will prevail over any law made by the ACT government, not on the basis of s 109 of the Australian Constitution, but on the basis of the common law doctrine of repugnancy. The effect of this doctrine is that any Territory law inconsistent with paramount law is rendered invalid. Where the Territories are concerned the paramount law is the law of the Commonwealth because it is Commonwealth law that created the Australian Capital Territory and which grants the ACT government law making powers.

Inequities in the Law

The law works differently for different people. Some groups are consistently disadvantaged in our system; for example:

• the legal system operates in English, which is not the first language of many Australians;
• most judges are not familiar with the day-to-day circumstances of, for instance, women and Aboriginal people, and they may use processes and make decisions that are insensitive to them; and
• legal advice and resources are not readily available to people without the means to pay for them.

To a large extent these inequities have occurred because these groups have not traditionally been included among the law-makers.

Measures to improve access to the legal system include law reform (see LawReform), the ongoing education of judges, the availability of interpreters, the work of community legal centres, and access to legal aid.

Courts and Tribunals

Introduction

This section is current at May 2010.

Many courts, Territory and Commonwealth, operate in the ACT.

A court's decision is binding on the parties to a case, and must be complied with. Further court proceedings can be taken to force compliance.

Summary offences, indictable offences and committal hearings

The laws relating to committal for trial, and the classification of crimes as summary and indictable, are in the Criminal Code 2002 (ACT).

A. Summary offences

Summary offences are common offences such as stealing, assault and possession of drugs that are usually heard in the Magistrate's Court.

B. Indictable offences

Indictable offences are more serious offences, such as assault occasioning actual bodily harm and drug dealing and may be heard in either the Magistrate's Court or Supreme Court. The more serious indictable offences are heard in the Supreme Court.

C. Indictable offences dealt with summarily

Some specified indictable offences can be dealt with as if they were summary offences unless the prosecution (or in some cases the accused) objects. This reduces the length and expense of the hearing, and limits the jail term that can be imposed if there is a conviction.

D. Committal hearings

Indictable offences that are not dealt with by the Magistrate's Court are heard in the Supreme Court, but only after a committal (preliminary) hearing in the Magistrate's Court. At a committal hearing the magistrate decides whether there is enough evidence to send the accused for a trial.

ACT Courts

The two main courts in the ACT are:

• the Magistrate's Court; and
• the Supreme Court.

The Magistrate's Court

Cases in the Magistrate's Court are decided by a magistrate (not a judge), without a jury. The maximum jail sentence a magistrate can impose is five years -- less for some offences.

The Magistrate's Court deals with:

• civil claims where the amount claimed is up to $50,000 or, if a particular law so allows, more than $50,000 can be recovered;
• summary offences;
• indictable offences including theft, burglary and assault; and
• committal hearings for other indictable offences

A. Other courts at the Magistrate's Court level

Other ACT courts at the same level of the hierarchy as the Magistrate's Court are the Coroner's Court and the Children's Court.

The Supreme Court

The Supreme Court hears civil and criminal matters under Territory laws that are outside the jurisdiction of the Magistrate's Court or specialist tribunals.

A. Civil matters

In civil law, the Supreme Court hears most claims over $50,000, commercial disputes, and matters relating to probate (see WillsIntestaciesEstatesAndFunerals), judicial review of administrative decisions (see AdministrativeLaw), and admiralty.

B. Criminal matters

The Supreme Court hears serious indictable offences, including murder, rape, arson and complex drug cases

C. Appeals

The Supreme Court decides appeals from the Magistrate's Court and some tribunals.

Sitting as the Court of Appeal (with a panel of three judges), it decides appeals from single judge decisions in the Supreme Court.

Sitting as the Court of Criminal Appeal (with a panel of three judges) it decides criminal appeals from single judge decisions in the Supreme Court, and from decisions in the Magistrate's Court.

Commonwealth Courts

Commonwealth courts in the ACT deal with Commonwealth laws when the circumstances arise in the ACT or involve ACT people or companies. A law of the ACT can confer on the Federal Court original or appellate jurisdiction in any matter the ACT Supreme Court has jurisdiction to hear (s 48AA Australian Capital Territory (Self-Government) Act 1988 (Cth)). Areas of Commonwealth law include:

• family law;
• discrimination;
• bankruptcy;
• consumer protection;
• privacy;
• actions under the Commonwealth Trade Practices Act 1974 (Cth)
• taxation; and
• review of decisions made by Commonwealth Government officers.

The main Commonwealth courts are:

• the Federal Magistrates Court;
• the Federal Court of Australia;
• the Family Court of Australia; and
• the High Court of Australia.

The Federal Magistrates Court

The Federal Magistrates Court was established to:

• offer a lower level, simpler federal court; and
• ease the workload of the Federal Court and the Family Court.

It shares the jurisdiction of both those courts, but is independent of them.

It deals with a wide range of matters, including:

• family law (a large part of its work);
• consumer protection;
• discrimination;
• employment law;
• bankruptcy;
• copyright;
• migration; and
• privacy.

The Federal Court of Australia

The Federal Court's business includes:

• actions under the Commonwealth Trade Practices Act 1974 (Cth);
• bankruptcy;
• taxation;
• judicial review of government decisions; and
• appeals from Commonwealth tribunals.

The Family Court of Australia

The Family Court is like a specialist arm of the Federal Court. It deals with:

• cases under the Commonwealth Family Law Act 1975 (Cth) (see FamilyLaw);
• applications under the Commonwealth Powers (De Facto Relationships) Act (NSW) if there are associated Family Law Act 1975 (Cth) proceedings concerning children.

The High Court of Australia

The High Court, which sits permanently in Canberra, is established by the Constitution as the highest court in Australia.

Some matters (for example, constitutional matters) go directly to the High Court. The High Court also hears appeals from:

• State and Territory Supreme Courts; and
• the federal courts.

The High Court is the final court of appeal, and its decisions are binding on all courts and tribunals.

Juries

Juries are only used in indictable criminal matters in the ACT Supreme Court (ss 22, 68A, 68B and 68E of the Supreme Court Act 1933 (ACT)). It is considered that jurors, as randomly selected members of the public, will take an independent and commonsense approach to deciding the facts.

What the jury does

The jury decides the facts of a case. In criminal matters the jury listens to the evidence and decides whether criminal guilt has been proved beyond reasonable doubt. The judge decides legal issues that arise in the case, and gives the jury guidance and directions.

The procedures for a jury are described in the Juries Act 1967 (ACT).

A. Criminal juries

In indictable cases in the Supreme Court, a jury consisting of 12 people decides a person's guilt or innocence.

If a juror is unable to continue to trial, then the number can be reduced to ten. If the number of jurors is reduced to less than ten the remaining jurors will be discharged by the Judge and the matter adjourned to a later date. The jury's decision, called a 'verdict', must be unanimous. If, after trying to reach a verdict for at least eight hours, the jury cannot reach a unanimous verdict, then the court can allow a majority verdict of 11 out of 12, or ten out of 11.

Non-jury trials

It used to be mandatory to have juries in serious criminal cases. However, it is now possible to have a Supreme Court trial with a judge sitting alone (without a jury) where the accused requests it.

B. Civil cases

Juries are not used in civil cases in the ACT.

C. Coroner's cases

A hearing for an inquest or inquiry must be conducted without a jury (s 41 Coroners Act 1997 (ACT)).

The jury roll

Under s 9 of the Juries Act 1967 (ACT) ('the Juries Act'), each person whose name is on the roll of electors of the ACT is, unless he or she is a disqualified person or is exempt from serving as a juror, liable to serve as a juror.

Jury rolls are generated randomly by computer from the electoral rolls. Anyone on the roll may be summonsed to court for jury duty. The ACT Sheriff's Office is responsible for arrangements relating to juries

People on the roll are advised by mail. The notice advises the period of inclusion on the roll (generally 12 months).

A person selected is served with a jury summons. The jury summons lists the time, date and location for attendance for jury duty and must be served at least four days before the time specified for jury duty. In practice the first summoning will take place approximately two to four weeks before the scheduled attendance date.

A. I've been called up but I can't go, what do I do?

If you receive a letter about inclusion on the roll, or a summons to attend for jury duty, and you believe you are in one of the categories of people who do not have to serve on a jury, you must still tell the Sheriff this, and the reason why, in order to 'be excused' from jury service (s 13 of the Juries Act). This is important because the Juries Act provides a penalty for a person who fails to attend in accordance with a jury summons.

There is a space on the jury duty summons to fill in if you believe you do not have to serve on a jury. You must also provide appropriate proof when you send the summons back to the Sheriff's Office.

The categories of people who do not have to serve on a jury are explained further below.

B. Who is disqualified?

Under s 10 of the Juries Act, certain people are 'disqualified' from jury service, in particular, anyone who:

"(a) has been convicted, whether within or outside the ACT, of an offence punishable under the law in force at the place where he or she was convicted by imprisonment for 1 year or longer and has not been granted a pardon in relation to the offence; or

(b) is an undischarged bankrupt; or

(c) is unable to read and speak the English language; or

(d) is, because of mental or physical disability, incapable of serving as a juror; or

(e) is of unsound mind".

B. Who is exempt?

The Juries Act exempts people in some categories from jury service (Schedule 2, Part 2.1). These include:

• a judge or master of the ACT Supreme Court; magistrates; coroners; public servants on the staff of the Supreme or Magistrates courts; appointees to ACT royal commissions, boards of inquiry or judicial commissions; and public servants currently testifying before one of those bodies;
• practising lawyers (or their employees); lawyers at the Department of Justice and Community Safety, ACT Legal Aid or the ACT DPP;
• police officers; corrections officers; and employees at certain specified places of detention, confinement and residential care operating under the Children and Young People Act 2008 (ACT);
• members of the ACT Legislative Assembly, or their advisers or private secretary staffers; certain specified employees of the Legislative Assembly; and chief executives in the ACT public service;
• practising doctors, dentists, pharmacists, or veterinary surgeons; full-time emergency service personnel; the emergency services commissioner; and the chief or deputy chief officer of an emergency service;
• foreign government and international organisation employees; persons exempt from serving as a juror under specified Commonwealth legislation; and anyone who lives in the Jervis Bay Territory.

If summonsed to jury duty, a person in one of the above categories can complete the appropriate section of the summons and return it with proof of their right to be exempt.

C. Who can claim exemption?

Some people who are not in an exempt category can nevertheless 'claim exemption' from serving on a jury:

• a minister of religion;
• a practising member of a religious society or order the beliefs or principles of which are incompatible with jury service;
• a professor, lecturer, or school principal or teacher, engaged in full-time teaching of organised classes at a university, college or school;
• an editor of a newspaper;
• a practising nurse, practising enrolled nurse or practising midwife;
• a household officer or member of staff of the Governor-General;
• a person who is 60 years old or older; or
• a person who is totally or partially blind or deaf

(Schedule 2, Part 2.2). To claim exemption, a person completes a statutory declaration (available on the ACT Supreme Court website) and submits it to the ACT Sheriff's Office at least two working days prior to the first day of attendance.

If the application is rejected, the person must attend for jury service as required, although they can then apply to the judge to claim exemption.

D. Who can ask to be excused?

Under s 14 of the Juries Act,

if a judge or the sheriff is satisfied that a person summoned or appointed to attend to serve as a juror ought to be excused from attendance because—

(a) of illness; or

(b) of pregnancy; or

(c) the person has the care of children or of aged or ill persons; or

(d) of circumstances of sufficient importance or urgency;

the judge or the sheriff may, at any time after service of the summons or the appointment, excuse the person from attendance or further attendance on the Supreme Court during the period that the judge or sheriff specifies.

Only very good reasons, such as a medical condition or a threat to the viability of a business, are likely to be accepted. The Sheriff's Office and judges are reluctant to excuse people from carrying out their civic duty. To ask to be excused, you should complete a statutory declaration (available on the ACT Supreme Court website) and submit it to the ACT Sheriff's Office at least two working days prior to the first day of attendance. Anyone dissatisfied with the decision of the Sheriff may apply to the Judge, usually on the day of the trial, to be excused from further attendance. See also C. What will happen when I turn up on the first day?

Serving on a jury

A. Payment of jurors

Jurors are paid a daily fee, as set out in the Juries Fees Regulations 1968 (ACT). The rates current as at May 2010 were as follows:

attendance on the court for 4 hours or less - $44.10

attendance on the court for more than 4 hours:

Jurors are also paid a daily allowance of $15 to cover travel and parking costs.

Payment is normally made at the conclusion of the trial.

Public servants should receive their normal salary whilst on jury duty, but should check with their personnel section to confirm this before attending the court.

B. When do I have to be there?

It is important to understand exactly when you have to be at court and when you are allowed to leave when serving on a jury. You should always ask the Sherriff's permission if you have to leave the court other than at designated break times. This is because under the Juries Act it is an offence for a person who attends in accordance with a jury summons or who is a juror to leave the Court premises before being discharged or excused by a Judge or the Sheriff (unless permitted to do so by the Sheriff).

Attendance times

Initially, a person summonsed for jury service should attend at 9.15 am on the first day of their period of service. They should attend at 9.30 am on the first day of any subsequent trials during this period of service.

Before any attendance persons selected for jury service can ring the jury message line ((02) 6207 1792) to confirm when they are next required to attend.

Once a jury is selected, jurors for that trial are required to attend at 9.50 am for the remainder of the trial unless otherwise directed.

A morning tea break is usually taken at about 11.15 am and lunch from 1 pm to 2 pm. Persons selected as jurors on trials will be provided with a light lunch and will generally be allowed to leave the jury room and court building as long as they return by 2 pm. The Court normally adjourns by 4.15 pm.

Staying overnight (sequestration)

Normally jurors on a trial are permitted to go to their homes each evening. However, sometimes, especially when the jury has retired to consider its verdict and a verdict has not been reached at night, the Judge may order the jury to remain together overnight in suitable accommodation. Arrangements for their accommodation are made by Sheriff's Officers who will also, if necessary, collect jurors' personal effects. Sheriff's Officers will stay with the jurors overnight.

C. What will happen when I turn up on the first day?

When a person summonsed for jury service arrives at Court their attendance and current occupation will be recorded by a Court Officer. They should bring a form of photographic identification (for example a driver's licence) with them.

Anyone wishing to make an application to be excused should advise the Court Officer at this stage. Jurors then assemble in the jury assembly room.

In the courtroom

Jurors are taken into Court by a Sheriff's Officer prior to the commencement of the trial.

The accused is usually arraigned (charged) in the presence of the panel summoned. The accused is present during the jury selection. Potential jurors have the opportunity to state whether they recognise the accused, know any of the witnesses or have any other reason which may make it difficult for them to serve impartially on the jury in that particular trial. The names of significant witnesses are also mentioned to the panel.

The trial Judge will hear applications from those persons who have indicated that they wish to be excused. The accused remains in the court room while the excuses are being heard. Applications are made orally. The person is called to the witness box and sworn or affirmed and then explains to the Judge the reason why he or she seeks to be excused. If a person is excused the card containing his/her name is set aside.

Selection of jurors - and being 'challenged'

Cards containing the names of each of the prospective jurors are placed in a ballot box by the Sheriff. The Associate to the Judge then picks the cards from the box to select people to enter the jury box. As each person moves to the jury box, he or she may be challenged by the accused personally or by his or her legal representative. The Crown also has the right to challenge and also to ask that a person stand aside until all cards have been drawn from the ballot box. A certain number of potential jurors (currently eight for the accused and eight for the Crown) can be challenged without any cause or explanation. If they have not been challenged, the people selected to form the jury are sworn in on oath or affirmation. The remaining persons summoned will be advised by the Judge whether they are required to attend on a later date for another trial.

Twelve-person juries are used in the determination of all criminal matters. In some cases, however, an expanded jury, consisting of from 13 up to 16 jurors may be empanelled. When a jury consisting of more than 12 jurors is about to retire to consider its verdict, the number of jurors will be reduced to 12.

Once a jury is selected jurors for that trial are required to attend at 9.50 am for the remainder of the trial unless otherwise directed.

Can the sheriff pull people off the street to serve as jurors?

In certain circumstances the sheriff has the power to use passers-by to 'make up the numbers' for a jury. Section 31(2) of the Juries Act provides that, for a criminal trial:

If all the jury cards are exhausted, by challenge or otherwise, before 12 persons have entered the jury box at a criminal trial, the judge may order the sheriff to appoint forthwith from persons in or in the vicinity of the Supreme Court who are liable to serve as jurors so many persons to attend to serve as jurors as will enable 12 persons to enter the jury box.

D. Other important information

What if there is an emergency or I become ill?

If you become ill or another emergency arises while you are on jury duty, you should tell the sheriff. The sheriff and the judge both have the power to 'excuse' a person from further jury service (s 14) because of illness, pregnancy, carer responsibilities or other "circumstances of sufficient importance or urgency". See further above at E. Who can ask to be excused?

My employer says I can't have time off, what if I lose my job ?

If you really cannot be spared from work to serve on a jury, you could seek your employer's support in applying to be excused on the grounds of "circumstances of sufficient importance or urgency" Also see further above at E. Who can ask to be excused?.

If this is not successful, and your employer attempts to sack you or otherwise disadvantage you because of jury service, he / she / it may be subject to penalties: under s 44AA of the Juries Act it is an offence for an employer "dismiss or injure an employee, or alter an employee's position to the prejudice of the employee, because the employee is summoned to serve as a juror." The offence carries a maximum penalty of 50 penalty units ($5,500 for a person, $27,500 for a corporation), or imprisonment for six months, or both.

Once I have been called up for jury service, how long before it happens again ?

The 'jury list' is compiled from the electoral roll every two years (s 19). Once you have been summoned to attend for jury duty (whether or not you actually end up serving on a jury on that occasion), your name is required to be excluded from the list until the next one is compiled (s 18A). Depending on when the relevant summons was, this may mean there is less than two years between 'call-ups'. However, if you end up serving on a trial that lasts an extended period, and the judge at the trial decides that a longer period of 'relief' is justified, he / she can order a further period during which the jurors who served at that trial will not be placed on a jury list (s 18A).

Further information

Further information on jury service is available from the ACT Sheriff's Office (contact details at Contacts, Links and Resources). Information on when current jury panels are required is available from the Jury Information Line ((02) 6207 1792) or from the ACT Supreme Court's Jury Duty web page.

Tribunals and Commissions

Many State, Territory and Commonwealth tribunals and commissions operate alongside the court system. Whether they are called tribunals or commissions, they are specialist bodies created by Acts of parliament to deal with particular areas.

Tribunals and commissions are usually intended to be easier to use, cheaper and faster than courts. For example, unlike courts, they are usually not bound by the rules of evidence.

To understand the powers and procedures of a specific tribunal, it is necessary to look at the Act that created it, legislation such as regulations and rules, and practice notes issued by the tribunal.

ACT and Commonwealth Tribunals

Tribunals and commissions in the ACT deal with both Territory and Commonwealth law. Some of them are listed below. Each tribunal and operates differently. For information about a particular tribunal contact it directly.

A. ACT tribunals

The ACT Civil and Administrative Tribunal (ACAT) commenced in February 2009 and consolidated 16 former jurisdictions and tribunals of the ACT including:

• the Administrative Appeals Tribunal;
• the Discrimination Tribunal;
• the Guardianship And Management of Property Tribunal;
• the Mental Health Tribunal;
• the Residential Tenancies Tribunal;
• the Liquor Licensing Board;
• Energy and Water Consumer Council; and
• civil dispute (small claims) matters under $10,000.

Examples of disputes heard by ACAT include:

• arguments over finance agreements;
• disputes between landlord and tenant;
• contractual disputes;
• applications for mental health orders;
• discrimination matters; and
• any decisions made under ACT law.

For further information on ACAT, see AdministrativeLaw.

B. Commonwealth tribunals

There is a large number of tribunals at Commonwealth level. The following is not an exhaustive list, but gives some idea of the breadth of matters dealt with. The main tribunals with large workloads are:

• the Administrative Appeals Tribunal (see AdministrativeLaw);
• the National Native Title Tribunal;
• the Migration Review Tribunal and Refugee Review Tribunal (see ImmigrationRefugeesAndCitizenship);
• the Social Security Appeals Tribunal (see SocialSecurityAndFamilyAssistance);
• the Veteran's Review Board (see VeteransEntitlements); and
• Fair Work Australia (see EmploymentLaw).

There are also a number of smaller volume tribunals dealing with particular areas of Commonwealth responsibility, for example:

• Copyright Tribunal of Australia;
• Australian Competition Tribunal;
• Defence Force Remuneration Tribunal;
• Repatriation Medical Authority and the Specialist Medical Review Council (see VeteransEntitlements); and
• Defence Honours and Awards Tribunal.

How they operate

Tribunals and commissions usually hold hearings to decide cases. In contrast to the situation in courts, non-legal advocates are often able to assist people in hearings before some tribunals.

A Who conducts tribunal cases?

In many tribunals cases are conducted (heard) by two or three tribunal members, at least one of whom has legal training. The other members generally have expertise in the subject area of the case or the tribunal.

In some tribunals, such as the Refugee Review Tribunal, just one member conducts the hearing.

B. Formal and informal hearings

The style of hearing varies between tribunals. In some (such as the Administrative Appeals Tribunal), hearings resemble those of courts -- lawyers represent the parties, witnesses are cross-examined and so on. In others (such as the Social Security Appeals Tribunal), hearings are fairly informal -- the people involved might sit around a table, and legal and other representation may be prohibited unless the tribunal gives permission.

C. Appeal from tribunal decisions

In most cases there is a right, set out in the relevant Act, to appeal to a court against a tribunal decision. Usually appeals are restricted to legal questions -- the court cannot come to new conclusions about the facts that have already been decided.

Even if there is no right of appeal in the Act, a person may be able to go to court to seek judicial review of a tribunal decision. This is possible if the tribunal has acted outside its jurisdiction, or has not complied with the formal requirements of procedural fairness. See AdministrativeLaw.

Commissions of inquiry

Commissions of inquiry are set up by governments for a limited period to investigate particular issues or areas of concern. They gather information in various ways, including by holding hearings and calling witnesses.

They differ from courts and tribunals in that they do not make legally binding decisions, but instead produce reports on their findings with recommendations for future action.

A. ACT Boards of inquiry and Inquiries Act 1991

For matters of general importance to the Territory that do not require a Royal Commission, the Inquiries Act 1991 (ACT) enables the government to appoint one or more persons as a board of inquiry to inquire into the matters specified in the instrument of appointment (s 5). The chairperson, or a member authorised by the chairperson, may summon a person to appear before the board to give evidence and produce documents and other things referred to in the summons (s 26). The Act includes offences for failure to attend or answer questions (s 27). After completing its inquiry, the board is required to prepare a report and submit it to the Chief Minister, who may table it (or part of it) in the Legislative Assembly (s 14). The Chief Minister also may make the report (or part of it) public, irrespective of whether it has been tabled in the Assembly; in which case, the report attracts the same privileges and immunities as if the report or part had been laid before the Assembly (s 14).

The government generally responds to all inquiry reports (in a similar manner as it does to Legislative Assembly committee reports) although there are not necessarily any specific timing requirements.

Boards of inquiry may determine the manner in which they conduct an inquiry. They are not bound by the rules of evidence but may inform themselves of any matter in such manner as they think appropriate. They may do whatever they consider necessary or expedient for the fair and expeditious conduct of the inquiry (s 18). While their hearings should be in public, they can direct that a hearing (or part of a hearing) take place in private or that restrictions be placed on the publication or disclosure of evidence.

B. Administrative inquiries

Inquiries in the ACT can also be conducted on an administrative basis only, according to terms of reference established by the responsible Minister.

Royal commissions

Royal commissions are commissions of inquiry that have particularly strong powers to investigate matters and to call and question witnesses. Also, a Commissioner of a Royal Commission must be, or have been, a judge or legal practitioner.

Recent topics for royal commissions include, at the Commonwealth level, the Inquiry into certain Australian companies in relation to the UN Oil-For-Food Programme ('the AWB inquiry') and the Equine Influenza Inquiry.

A. Terms of reference

The State, Territory or Commonwealth government sets a royal commission's agenda (its terms of reference) (s 13 Royal Commissions Act 1991 (ACT); Royal Commissions Act 1902 (Cth)).

B. Royal commission staff

The government appoints a commissioner (or more than one) -- usually a senior barrister or judge. The commissioner's staff includes lawyers, investigators and administrative personnel.

C. Powers of royal commissions

The State, Territory and Commonwealth Royal Commission Acts confer wide-ranging powers on royal commissions, including the power to summon a person to give evidence and produce documents. It is an offence to fail to comply, and a warrant can be issued for the person's arrest.

It is also an offence not to answer questions or to knowingly give false or misleading testimony. People can be in contempt of a royal commission as if it were a court.

Royal Commission hearings (in both Commonwealth and ACT jurisdictions) are usually held in public, and evidence tendered to a Royal Commission is usually made public. However, a Commissioner may direct that a hearing (or part of a hearing) take place in private or that restrictions be placed on the publication or disclosure of evidence.

D. Who can appear

It is up to the commissioner to decide whether to allow a person to appear or be represented before a commission. This will be authorised if:

• the person, in the opinion of the commission, has a 'sufficient interest' in the inquiry, or
• the person has been subpoenaed to attend or is appearing before the commission as a witness (Royal Commissions Act 1991 (ACT) s 31).

Legal assistance

The government may provide, at its discretion, funding for legal assistance and representation for some people appearing at royal commissions, or as witnesses.

Royal commission reports

At the end of an inquiry, the royal commission produces a report containing conclusions and recommendations; for example:

• suggesting reform to laws or practices
• recommending that criminal or other proceedings be taken against individuals.

A royal commission can also refer evidence to law enforcement agencies.

The ACT Royal Commissions Act 1991 enables the Chair of a Royal Commission or a Commissioner authorised by the Chairperson to summon witnesses to appear and to provide relevant documents. At a hearing, witnesses may be represented by a legal practitioner. Hearings are usually held in public, and evidence tendered to the Commission is usually made public. However, a Commissioner may direct that a hearing (or part of a hearing) take place in private or that restrictions be placed on the publication or disclosure of evidence.

Time limits for legal action

Usually there are time limits (called 'limitation periods') for making a claim in a court or tribunal. For many court actions at ACT level, these are set out in the Limitation Act 1985 (ACT).

It is important to get legal advice about time limits as soon as there is the possibility of making a claim. The discussion that follows only indicates the types of limits that may apply.

Time limits for various matters are also discussed throughout the ACT Law Handbook Online.

Criminal cases

A. ACT

A prosecution must be commenced within six months for summary offences, but there is no time limit for indictable offences.

B. Commonwealth

Section 15B of the Crimes Act 1914 (Cth) sets out limitation periods for prosecution of offences against the Commonwealth:

• For individuals - If the maximum penalty is (or includes) six months imprisonment or more (in the case of a first conviction) - no limitation period applies. Otherwise, 12 months after the commission of the offence.
• For bodies corporate: If the maximum penalty is (or includes) a fine of more than 150 penalty units (in the case of a first conviction) - no limitation period applies. Otherwise, 12 months after the commission of the offence.

Subsection 15B(3) clarifies that any law of the Commonwealth can provide for a longer limitation period for an offence than those periods specified in s 15B.

Civil actions

A. ACT Limitation Act 1985

Under the Limitation Act 1985 (ACT), a civil action must usually be commenced within six years after the date on which it could first have been taken; that is, after the date the incident happened or the damage became apparent.

There are exceptions to this. For example, actions based on a deed, and actions to recover money or other property under a court judgment, have a 12 year limit.

For personal injury the limit is three years, although it can be extended in certain circumstances. Defamation proceedings must generally be brought within one year.

B. Time limits in other Acts

There are also limits set out in other Acts. For example:

• claims made under the Victims of Crime (Financial Assistance) Act 1983 must be filed in the Magistrate's Court within 12 months of the relevant injury or property damage.
• third party motor vehicle accident claims under the Road Transport (Third-Party Insurance) Act 2008 (ACT), where the at-fault vehicle cannot be identified or is not insured for CTP, must be made with the Nominal Defendant (ACTIA) within three months after the day of the accident. For more information see CompulsoryThirdParty Insurance Claims.

Always check the relevant Act for any time limits.

C. Extensions of time

Sometimes -- not always -- the law allows a time limit to be extended if special conditions are satisfied. However, it is not safe to rely on getting an extension. It is important to find out what the relevant time limit is and to take steps to resolve a legal problem without delay.

D. Time limits for claims against the Commonwealth

Civil claims

A person wishing to make a civil claim (for example, for negligence or breach of contract) against the Commonwealth can (briefly) commence action in the High Court or in a State or Territory Court having appropriate jurisdiction (Judiciary Act 1903 (Cth) (s 56)).

However, there is no comprehensive limitations legislation dealing with civil actions commenced in courts of federal jurisdiction - the limitation period will be that of the State or Territory where the action is instituted. Thus, if you commence a civil action against the Commonwealth in the ACT Supreme Court, the limitation periods which apply are likely to be those set out above at A.

This area of law is particularly complex; potential claimants are strongly advised to seek legal advice on their specific circumstances.

Legislation-based claims

If the claim against the Commonwealth is made under a particular Act, the legislation itself is likely to set out the applicable limitation period. Again, it is very important to seek legal advice if you are considering making such a claim.

Appeals

A person who is dissatisfied with the decision of a court or tribunal can sometimes appeal to a higher court for a review, although there are a number of restrictions on the right of appeal.

The decision of the highest court is final.

Appeals in civil matters

Appeals in civil matters must be lodged within a short period, usually 21 or 28 days. Appeals are generally limited to a review of errors of law; a higher court will not usually reconsider findings of fact that have been made.

The higher court can either affirm or overrule the lower court's decision, or send the case back to the lower court ('remit' it) to be decided again.

What courts hear appeals?

A. Appeals from ACT courts and tribunals

• Appeals from the Magistrate's Court and most tribunals are heard by the Supreme Court.
• Appeals from the ACT Civil and Administrative Tribunal (ACAT) are heard by the ACAT Appeals Tribunal.
• An appeal against a decision of a single Supreme Court judge may be made to the Court of Appeal, consisting of three members of the Supreme Court.
• In criminal cases, appeals from the Magistrate's Court go to the Supreme Court and appeals from the Supreme Court go to the Supreme Court of Appeal.
• Appeals from the ACT Court of Appeal and the ACT Court of Criminal Appeal can, in special circumstances, go to the High Court of Australia.
• Appeals from the Family Court go first to a full bench of the Family Court (three judges), then, in special circumstances, to the High Court.
• Appeals from Commonwealth tribunals go to the Administrative Appeals Tribunal and then to the Federal Court.
• Appeals from the Federal Court, where normally one judge decides a case, can be taken first to a full bench of the full Federal Court (three judges), then, in special circumstances, to the High Court.

B. Appeals from Commonwealth courts and tribunals

C. Appeals to the High Court

Appeals to the High Court are only possible if the High Court gives permission. This is called special leave, and is given after a preliminary hearing when two or three judges of the High Court consider whether the issues are sufficiently important in the development of law in Australia to justify the appeal.

Appeals in criminal cases

See CriminalOffencesInfringementsAndPenalties (and surrounding chapters) for information on appeals in criminal cases.

Enforcing the Law

Criminal Law

Law enforcement agencies

ACT Policing and the Director of Public Prosecutions (DPP) prosecute criminal charges on behalf of the Territory. The AFP and the Commonwealth DPP (CDPP) prosecute offences against Commonwealth Laws in the Territory. See also PoliceServices.

The Australian Crime Commission (ACC) is Australia's national criminal intelligence agency. It does not itself have an enforcement role, but works in partnership with other law enforcement agencies to:

• develop a national understanding of serious and organised crime;
• provide target information for action by partner agencies; and
• predict future criminal trends.

A. Anti-corruption bodies

The ACT has not established a Crimes and Misconduct Commission or Independent Commission Against Corruption (even though these are now established in most other States). This work is undertaken by ACT Policing within the Australian Federal Police.

At the Commonwealth Level the main anti-corruption functionary is the Integrity Commissioner, supported by the Australian Commission for Law Enforcement Integrity (ACLEI). The Commissioner is responsible for preventing, detecting and investigating serious and systemic corruption issues in the Australian Federal Police and the Australian Crime Commission. The current Commissioner is Philip Moss.

Government regulatory bodies

A number of bodies created by parliament enforce the legislation they administer; for example:

• the Environment Protection Authority in the ACT is primarily responsible for enforcing the pollution laws;
• the Office of Regulatory Services (ORS) enforces fair trading law in the ACT;
• the Therapeutic Goods Administration regulates the quality and availability of prescription medicine in Australia;
• the Australian Competition and Consumer Commission enforces the Commonwealth Trade Practices Act 1974 (Cth).

A. How government bodies enforce laws

Regulatory bodies use a range of strategies to enforce the law, including:

• pointing out to someone that they are in breach of the law, and requiring something to be done
• issuing an infringement notice (see below)
• requiring someone to answer questions and produce documents for examination
• prosecuting the person in court. Some regulatory bodies do their own prosecutions, while others ask the Director of Public Prosecutions to carry them out.

Infringement notices

Infringement notices are on-the-spot fines. They give the person the option of paying the fine or defending the matter in court. Examples of matters for which an infringement notice might be issued are parking and driving offences, defacing premises, urinating in a public place, littering and failing to file a company's annual return.

Anyone who receives such a notice and is not sure what to do should seek legal advice.

Prosecutions by individuals

Private individuals may prosecute criminal offences. However, this is rare; crimes must be proved beyond reasonable doubt -- very difficult without the resources and powers of law enforcement agencies -- and there is the risk of having to pay the legal costs of an unsuccessful prosecution.

A person should get legal advice before beginning private criminal proceedings.

Civil Law

Civil law is enforced by people and companies who claim they have been harmed, misled, or treated unfairly. If one person's negligence injures another person, for example, it is up to the injured person to sue to obtain compensation.

Generally, only the wronged or injured person is allowed to enforce the law in this situation. If they are unable to do so because, for example, they are under 18 or lacking the intellectual ability to handle their own affairs, the court can agree to someone else taking the action on their behalf.

A. How civil cases are commenced

Civil cases are commenced in a number of different ways, depending on the type of case and the particular court or tribunal that will deal with it. Each has its own forms, rules and procedures.

Court and tribunal staff can usually provide information about what a person needs to do.

B. Paying the other party's costs

A common rule in enforcing a civil claim is that the losing side pays the winning side's legal costs. This is intended to discourage claims that lack merit.

The rule is usually enforced in courts, but often does not apply in tribunals. For example, in the ACAT, costs are awarded only as a penalty where a party has caused unreasonable delay.

Administrative Law

Administrative law governs the processes, powers and decisions of government bodies.

Whether and how government obligations under a law can be enforced is generally discussed in the relevant law. If review of government decisions is available, it is usually through an administrative tribunal, such as the ACT Civil and Administrative Tribunal for Territory law and the Administrative Appeals Tribunal for Commonwealth law, and tribunals that specialise in particular areas of government activity, such as the Commonwealth Social Security Appeals Tribunal (see SocialSecurityAndFamilyAssistance).

Who can take action in administrative law?

Usually a person who is adversely affected by a government decision can take action to have that decision reviewed. There are rules about standing that say who can enforce the law by taking government authorities to court; these are discussed in AdministrativeLaw.

Legal Assistance

Anyone who has to defend themselves in criminal proceedings, make or defend a civil claim, or manage an administrative law matter, should get advice from a qualified lawyer in legal practice.

For information about people and services who can give legal advice and assistance, see AssistanceWithLegalProblems.

Aboriginal and Torres Strait Islander Law

Indigenous people living in Australia and their descendants have, since time immemorial, observed a variety of systems of law, which were not recognised by Australian law until relatively recently.

When Australia was colonised by the English, they ignored Aboriginal ownership of land. This continued until quite recently, assisted by the legal fiction that Australia was terra nullius (land belonging to no-one) at the time of colonisation. The argument was that Australia was 'settled' rather than conquered.

As a result of the High Court decision in Mabo there is now limited recognition of Aboriginal ownership and use of land (native title) - see Native Title. As well, customary law has some limited influence in the sentencing of some Aboriginal offenders, and in areas such as the protection of sacred sites. See Other Aboriginal and Torres Strait Islander Legal Issues in the ACT.

Native Title

In June 1992, the High Court, in the Mabo case (Mabo v Queensland (No. 2) (1992)), held that other systems of law could co-exist with the Australian legal system. In that case, the common law recognised a legal system, dealing with land ownership, that was created before British sovereignty by Murray Islanders in the Torres Strait. The Indigenous legal system was not wiped out or extinguished at or after British sovereignty. Native title, as it is called, therefore survives across Australia. Governments must take it into account in making land use decisions.

Native title is a communal title, comprising a bundle of rights with respect to land or waters. It is recognised if, under traditional laws and customs, the claimants can show a continuing connection with the land. As well, native title must not have been extinguished by any inconsistent government act. For instance, granting a freehold interest wipes out native title.

Native title is different in different circumstances. It may allow people to fish in a river, or to hold a ceremony at a particular place. Two or more indigenous communities may share native title over a particular place. Native title may also amount to the equivalent of absolute possession, including the right to exclude other people. The full range of native title rights across the country may be recognised by agreement or by the courts over time.

Native Title Act

The Native Title Act 1993 (Cth) resulted from intense negotiations between indigenous groups and the Commonwealth Government after the Mabo decision. It provides a scheme for:

• the recognition and protection of native title;
• validating previous grants of title inconsistent with the continued existence of native title;
• validating future acts which may affect native title; and
• achieving court determinations of the existence of native title.

The legislation seeks to clarify the native title process. The Act creates the National Native Title Tribunal, which may attempt to resolve disputes over native title by mediation. The Federal Court is to decide disputed native title matters.

Some issues remained unresolved, including:

• What is the content of particular native title?
• What evidence is needed to substantiate a claim for native title? How does a group show a continuous connection to land?
• Which acts of government have extinguished native title?

The Wik decision

The issue of whether a grant of a pastoral lease by a government extinguishes native title was dealt with in December 1996 by the High Court in the Wik case (Wik Peoples v Queensland (1996). The Court decided that native title could co-exist with pastoral leases in Cape York; their grant does not extinguish all native title rights. If there is a conflict over what activity is allowed between the two co-existing holders of rights, those allowed by the grant of the pastoral lease prevail over those conferred by the underlying native title.

While the pastoral lease is unaffected by traditional rights over land, some native title rights survive. These might include rights to perform ceremony, or to gather foods or medicines.

In Queensland and Western Australia, in particular, some pastoralists claimed that the Wik decision left an unworkable situation that had to be resolved by further Commonwealth legislation. After two years of intense political discussion and the longest debate in its history, the Senate passed the Native Title Amendment Act (1998) (Cth). Among other things, it allows the upgrade of activities that can be undertaken on pastoral leases, without regard to native title issues.

Although the Wik decision has little direct impact on the ACT, the Native Title Amendment Act has major effects on native title in the Territory. Any freehold title or exclusive lease is deemed to have extinguished native title. The Act excludes any consideration of native title from processes and decisions concerning land use in respect of reserves, including national parks, and water, which contain most of the land potentially subject to native title in the ACT. The scope and effect of the right to negotiate is reduced, and the balance of rights set out in the Act is shifted away from protection and recognition of native title.

More recent High Court decisions, such as Western Australia v Ward (2002), have clarified what it takes to extinguish native title. In order to determine whether native title rights have been extinguished it is necessary to identify the native title rights and compare them with the particular rights granted, for example, by a pastoral lease, by a mineral lease, or by the creation of a reserve. Native title is extinguished to the extent of inconsistency between the rights. Thus, native title can be wholly or partially extinguished.

To be recognised by the common law, native title rights must be in relation to land. Thus, maintaining or protecting Aboriginal cultural knowledge cannot be protected as a native title right.

The Yorta Yorta decision

The High Court decision in Yorta Yorta v Victoria (2002) has substantial implications for the recognition of native title in parts of Australia (like the ACT) where non-indigenous settlers have been for a substantial period of time.

In that case, the High Court said that in order to establish native title, claimants must show that:

• as a society they have traditional laws and customs in relation to land that are substantially identical with those that existed at sovereignty, in 1788; and
• the observable activities of the claim group are more than coincidental; that is they must be based on traditional laws and customs that have a "normative" content. This means that the traditional laws and customs must guide the behaviour of the group.

Effectively, if an Aboriginal society ceases to exist as a society, the laws and customs that support native title rights also cease to exist.

This decision means that native title claimants in more settled parts of Australia, such as the ACT, might find it very difficult to establish that they have native title.

However, another option is for government, and other parties, to negotiate towards non-native title outcomes, that is, land justice outcomes not based on recognition of native title. Such outcomes might include a role in management of land and waters, grants of freehold, and compensation for loss of native title rights and interests. See for example Non-native-title arrangements in the ACT.

Native Title in the ACT

Native title legislation in the ACT

The Native Title Act 1994 (ACT) ('ACT Native Title Act') confirms Crown ownership of all natural resources, rights to use, control and regulate the flow of water and existing fishing access rights; as well as existing public access to and enjoyment of waterways, beds, banks and foreshores of waterways and areas that were public places as at 31 December 1993. Section 7 of the ACT Native Title Act validates acts carried out before 1 January 1994 (when the Commonwealth Native Title Act 1993 (Cth) came into effect).

Unlike most other jurisdictions, the ACT has not introduced legislative amendments to validate acts that took place during the period from 1 January 1994 until 23 December 1996 (when the "Wik" decision was handed down). Neither has the ACT enacted any legislation confirming extinguishment of native title by particular types of tenure.

Native title claims in the ACT

As at May 2010, four native title applications had been lodged within the ACT, all of which were claimant applications. None of these applications has been successful: two were discontinued (as part of the deal over the Namadgi Special Aboriginal Lease - see below), one was dismissed, and one was rejected.

The two discontinued claims were filed in 1996 and 1997, both on behalf of the Ngunnawal People (further details are available on the National Native Title Tribunal's website under Federal Court File Numbers ACD6001/98 and ACD6002/98). In 2001 the ACT Government entered into negotiations with the claimants with a view to reaching an agreement for the withdrawal of these native title applications. As part of the agreement, the ACT Government offered (on 1 January 2001) to grant a 99 year Namadgi Special Aboriginal Lease over Namadgi National Park -- on the condition that all native title claims be withdrawn. See Non-native-title arrangements in the ACT. The two claims were subsequently withdrawn (discontinued).

For further information on native title in the ACT, see the online Native Title Resource Guide, provided by the Native Title Resource Unit of the Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS): http://ntru.aiatsis.gov.au/research/resourceguide/statesandterritories/ACT/act01.html

See also the National Native Title Tribunal's website at www.nntt.gov.au/Pages/default.aspx.

Native title representative bodies in the ACT

There is no official native title representative body in the ACT. However NTSCORP Limited (formerly New South Wales Native Title Services) provides native title services to native title applicants within New South Wales and the ACT.

Non-native-title land arrangements in the ACT

A. Proposed Namadgi Special Aboriginal Lease

In 2001, the ACT government signed an agreement with a number of Aboriginal groups, offering these groups a Special Aboriginal Lease over Namadgi National Park ( Agreement Between the Australian Capital Territory and ACT Native Title Claim Groups (2001)). The signing of the agreement was conditional on the withdrawal of two native title claims over the Park (and other areas of the ACT) - see Native title claims in the ACT.

When the agreement was signed, the parties agreed to implement interim arrangements for the involvement of Aboriginal people in the management of Namadgi National Park until the Special Lease commenced. The interim Namadgi Advisory Board was established comprising five Aboriginal members and five non-Aboriginal members. This Board concluded in August 2007.

As at February 2009 the Namadgi Special Aboriginal Lease had not yet been signed.

The terms and conditions of the Namadgi Special Aboriginal Lease will be subject to further negotiation between the Parties. The term will be for 99 years with an option for renewal at the end of that term.

Negotiations have begun between the ACT Government and the Ngunnawal people on the terms and conditions for permanent cooperative management arrangements for Namadgi National Park. The Namadgi National Park Revised Draft Plan of Management 2007 notes that Aboriginal parties to the negotiations have agreed on the matters to be subject to negotiation. These include:

• Cross-cultural awareness training for non-Indigenous people working in cooperative management
• Establishment of sites for Aboriginal cultural camps
• Traditional use of parts of Namadgi for hunting, food gathering and ceremonial purposes
• Employment and training of Aboriginal people at Namadgi
• Commercial and self-employment opportunities (research, art, entertainment and cultural tourism)

The Namadgi Special Aboriginal Lease, when signed, will provide those Aboriginal groups, party to the above agreement, with:

• a right to participate in the management of Namadgi National Park;
• acknowledgment as people with an historical association with the area;
• a right to be consulted on specific regional indigenous cultural issues; and
• a right to be consulted on the development of new legislation or amendments to existing legislation that will impact on Namadgi National Park.

The Namadgi Special Aboriginal Lease will not be a lease or licence over Namadgi National Park as defined in the Planning and Development Act 2007 (ACT) ('the Planning Act'), but an agreement about how Namadgi National Park is to be managed. The park will remain open to the public and the special lease will not alter the conservation values enshrined for the area under the Planning Act.

The ACT government has stated that the Namadgi Special Aboriginal Lease is not an agreement about native title but seeks to show a spirit of reconciliation.

(material on Namadgi National Park adapted from:

• ACT Environmental Law Handbook; and
• "Overview of native title and joint management arrangements for protected and other conservation areas in the Australian Capital Territory" compiled by Nerida Haberkern, Aurora Intern, NTRU, AIATSIS.)

B. Jervis Bay land transfer

Although the Jervis Bay Territory is not part of the ACT, the laws of the ACT apply in the Jervis Bay Territory by virtue of the Jervis Bay Acceptance Act 1915 (Cth) (so far as they are applicable and providing that they are not inconsistent with an Ordinance made for the Jervis Bay Territory). In addition each court of the ACT has jurisdiction in and in relation to the Jervis Bay Territory as if the Territory formed part of the ACT.

Ninety percent of the Jervis Bay Territory has been granted (as inalienable freehold title) to the Wreck Bay Aboriginal Community Council under the Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth). This area includes Booderee National Park. In December 1995 the Wreck Bay Aboriginal Community Council entered into a 99 year lease over the Park with the Director of the Commonwealth National Parks and Wildlife Service.

Other Aboriginal and Torres Strait Islander Legal Issues Affecting the ACT

Representation

A. ACT Indigenous Elected Body

The ACT Indigenous Elected Body (IEB) was established under the Aboriginal and Torres Strait Islander Elected Body Act 2008 (ACT). The first IEB was elected in June 2008. It consists of seven people who are elected to represent the interests and aspirations of the local Indigenous community. The IEB provides direct advice to the ACT Government with the aim of improving the lives of Indigenous Canberrans.

The IEB members elect, by majority vote, one member to be the Body's chair and another to be the deputy chair.

To be eligible to vote or be nominated as a candidate, a person must be an Aboriginal or Torres Strait Islander, be at least 18 years old, and be on, or entitled to be on, the ACT electoral roll.

B. United Ngunnawal Elders Council

in 2002 the United Ngunnawal Elders Council (UNEC) was formed, comprising representatives from Ngunnawal family groups.

UNEC is a significant Aboriginal body providing advice to the ACT Government in relation to heritage and connection to land matters for the Ngunnawal people. UNEC also provides advice to the ACT Indigenous Elected Body in accordance with sections 8(j) and 9 of the Aboriginal and Torres Strait Islander Elected Body (ATSIEB) Act 2008 (ACT).

UNEC is made up of representatives nominated by each of the Ngunnawal family groups. The Council meets up to four times a year in Canberra at various locations, including community-based organisations. It operates according to a charter which members of the public are free to inspect.

C. National Congress of Australia's First Peoples

The National Congress of Australia's First Peoples (a new national Indigenous representative body first announced in November 2009) has now been incorporated and eight founding directors have been appointed. A fully operational body is expected to be in place by January 2011.

The Congress' purpose and role will be as follows:

• formulating policy and advice to ensure that Aboriginal and Torres Strait Islander people contribute to and play a lead role in policy and program development on issues that affect them and that an Aboriginal and Torres Strait Islander perspective is provided on issues across government;
• advocacy and lobbying to act as a national conduit for communication between Aboriginal and Torres Strait Islander people and the government, corporate and non-government sectors; and
• ensuring the presence of, and contributing to, mechanisms to monitor and evaluate government performance to Aboriginal and Torres Strait Islander people.

The Government has also put in place the following principles for the Congress:

• It will not be another ATSIC (former national indigenous body created in November 1990 and abolished in July 2004);
• There will not necessarily be separate elections for it;
• It will have urban, regional and remote representation; and
• It will not have a service delivery role.

For further information see www.hreoc.gov.au/social_justice/repbody, and www.fahcsia.gov.au/sa/indigenous/progserv/engagement/NIRB/Pages.

Government departments responsible for indigenous issues

A. ACT Minister for Aboriginal Affairs

Aboriginal affairs is a separate portfolio in the ACT government, currently held by the Chief Minister. The minister is advised by the ACT Office of Aboriginal and Torres Strait Islander Affairs.

B. ACT Office of Aboriginal and Torres Strait Islander Affairs

The ACT Office of Aboriginal and Torres Strait Islander Affairs within the Department of Disability, Housing and Community Services:

• provides secretariat support for both the ACT Indigenous Elected Body and the United Ngunnawal Elders Council;
• provides strategic advice to the Chief Minister on issues affecting Aboriginal and Torres Strait Islander people living in the ACT; and
• coordinates a whole-of-government approach to issues affecting Aboriginal and Torres Strait Islander ACT residents.

C. Commonwealth Indigenous Affairs agency: FaHCSIA

The agency responsible for Aboriginal and Torres Strait Islander issues at a national level is the Commonwealth Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA). The Hon. Jenny Macklin MP is the current Minister for Indigenous Affairs.

Broadly, FaHCSIA 's aim is to help support Indigenous people, through:

• programs and services for Indigenous people; and
• grants and funding for organisations providing services for Indigenous people.

FaHCSIA has set up a dedicated website - www.indigenous.gov.au - to act as a gateway to information on Australian Government Indigenous initiatives and programs. There is also a wealth of information available on the Indigenous section of the FHCSIA site, at www.fahcsia.gov.au/sa/indigenous.

Heritage protection

A. ACT heritage protection

The Heritage Act 2004 (ACT) puts in place a scheme for the recognition, registration and protection of both places and objects of heritage significance, including those of significance to Aboriginal and Torres Strait Islander people. Objects and places which satisfy the criteria can be placed on the Heritage Register. Once registered, they are afforded special protection in the land planning and development process. In addition the Minister (or in some circumstances a court) can make directions, orders and/or injunctions to protect registered objects and places from being damaged. The Act also contains offences for damaging objects and places on register.

The Heritage Act 2004 (ACT) also provides an added level of protection for objects of Aboriginal heritage significance:

• Special provision is made in Part 8 of the Act for the discovery of unregistered Aboriginal places or objects. A person who discovers a place or object that he or she thinks is an unregistered Aboriginal place or object must report the discovery to the ACT Heritage Council within five working days, unless that person has a traditional Aboriginal affiliation with the land where it was discovered. The Council must arrange consultations with the relevant Aboriginal organisations and decide whether to provisionally register the place or object (s 53)
• In deciding to register or de-register an object or place of Aboriginal heritage significance, the ACT Heritage Council has specific obligations to consult with each representative Aboriginal organisation, declared by the minister under the Heritage Act (s 14).
• there are specific offences relating to the damage of Aboriginal places or objects, irrespective of whether those places or objects have been registered (s 75).

B. Commonwealth heritage protection

Places

At Commonwealth level, the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) is intended to preserve and protect areas and objects that are of particular significance to indigenous Australians. The Minister for the Environment, Heritage and the Arts can make declarations to protect significant Aboriginal areas or objects if they are under threat of injury or desecration (ss 9 and 12). Contravention of such a declaration is an offence (ss 22 and 23).

Places of heritage significance to Indigenous people can also be listed on the National Heritage List, the Commonwealth Heritage List or may previously have been listed on the Register of the National Estate. For example a place that is of outstanding heritage value for its importance as part of Indigenous tradition meets the criteria for the National Heritage List.

Objects

Under the Protection of Moveable Cultural Heritage Act 1986 (Cth) there is a National Cultural Heritage Control List that sets out categories of objects that constitute the moveable cultural heritage of Australia (s 8). Moveable cultural heritage can be of ethnological, archaeological, historical, literary, artistic, scientific or technological significance (s 7). The export of objects on the control list is either prohibited, or can only occur if a permit is granted under the Act (s 9).

The Act gives effect to Australia's international obligations under the United Nations Educational, Scientific and Cultural Organisation's Convention on the Means of Prohibiting the Illicit Import, Export and Transfer of Ownership of Cultural Property. As a consequence, the Act also includes provisions for the return of moveable cultural heritage objects in Australia that have been illegally exported from their country of origin.

For further information on protection of places and objects of heritage significance to indigenous Australians, see the ACT Environmental Law Handbook Online,Chapter 9 Heritage Protection.

Racial discrimination

Anti-discrimination laws exist at both Territory and Commonwealth levels to help Aboriginal and Torres Strait Islander people who believe they may have been discriminated against on the basis of race.

A. The Commonwealth Racial Discrimination Act

Australia's first federal anti-discrimination law, the Racial Discrimination Act 1975 (Cth), protects people across Australia from discrimination on the grounds of race, colour, descent, national or ethnic origin, and immigration status.

The Act also makes racial vilification against the law. This gives additional protection to people who are being publicly and openly offended, insulted, humiliated or intimidated because of their race, colour, or national or ethnic origin.

The Act gives effect to Australia's obligations under the International Convention on the Elimination of All Forms of Racial Discrimination.

Under the Act, it is against the law for people to discriminate against you in:

• employment, such as getting a job or applying for a promotion;
• education, whether at school, university, TAFE or other colleges;
• access to premises such as shops, libraries or hospitals and other buildings used by the public;
• buying goods and using services, such as being served in a restaurant or using taxis, banks and legal services;
• accommodation, such as renting a unit or house or buying and selling land;
• activities of clubs or associations, such as joining a sports club or RSL;
• Commonwealth Government laws and programs, such as voting and information in accessible formats; and
• playing sport, including when enrolling, competing or access to mainstream competitions.

The Racial Discrimination Act is administered by the Australian Human Rights Commission, which has a special Racial Discrimination Commissioner to deal with complaints made under the Act. Contact details for the Australian Human Rights Commission are at Contacts, Links and Resources. For further information see HumanRightsAndDiscrimination and the Racial Discrimination Commissioner's home page.

B. The ACT Discrimination Act

There is also anti-discrimination legislation in the ACT: the Discrimination Act 1991 (ACT).

The ACT Act prohibits racial discrimination in a list of fields very similar to that given above under the Commonwealth Racial Discrimination Act, with some additions. In the area of employment discrimination, the additional activities explicitly covered by the ACT Act include engagement as a commission agent, and engagement or employment as a contract worker. There is also explicit protection in the ACT for people attempting to enter partnerships and for people requesting information.

The Discrimination Act 1991 (ACT) is administered by the ACT Human Rights Commission, which has a Racial Discrimination and Human Rights Commissioner to deal with complaints of unlawful discrimination on the basis of race.

Contact details for the ACT Human Rights Commission are at Contacts, Links and Resources. For further information see HumanRightsAndDiscrimination and the Commission's home page.

Social Justice

A. Commonwealth Aboriginal and Torres Strait Islander Social Justice Commissioner

The position of the Aboriginal and Torres Strait Islander Social Justice Commissioner was created by the Commonwealth Parliament in December 1992 – a response to the findings of the Royal Commission into Aboriginal Deaths in Custody and the National Inquiry into Racist Violence. It was also a response to the extreme social and economic disadvantage faced by Indigenous Australians. The office of the Aboriginal and Torres Strait Islander Social Justice Commissioner is administratively part of the Australian Human Rights Commission.

Social justice is about making sure that every Australian - Indigenous and non-Indigenous - has choices about how they live and the means to make those choices. It also means recognising the distinctive rights that Indigenous Australians hold as the original peoples of this land.

The Commission's role includes reviewing the impact of laws and policies on Indigenous peoples, reporting on Indigenous social justice and native title issues and promoting an Indigenous perspective on issues. In addition, the Aboriginal and Torres Strait Islander Social Justice Commissioner monitors the enjoyment and exercise of human rights for Indigenous Australians. The Australian Human Rights Commission Act and the Native Title Act 1993 (Cth) require that the Aboriginal and Torres Strait Islander Social Justice Commissioner produces an annual Social Justice and a Native Title Report. These reports are tabled in Parliament.

This work is led by Mick Gooda, the Aboriginal and Torres Strait Islander Social Justice Commissioner.

For further information see the ATSI Social Justice part of the Australian Human Rights Commission webpage

Sentencing

A. ACT Magistrates Court - Ngambra Circle Sentencing Court

The Ngambra Circle Sentencing Court (NCS Court) is a specialised court within the ACT Magistrates Court established to sentence Aboriginal and Torres Strait Islander (ATSI) offenders who plead guilty to an offence.

Going before the NCS court is a two-step process: first, the case is referred to the NCS court; second, the NCS court hears the case and sentence is passed.

B. Referring a case to the NCS Court

An ATSI offender who has pleaded guilty to an offence in the ACT Magistrates Court may be referred by the court to be assessed by a panel of ATSI elders or community panel members, for suitability to be sentenced by the NCS court. If assessed as suitable, the offender goes before the NCS Court.

An ATSI offender who intends to plead guilty may request the Magistrate who is dealing with the matter to refer it to the NCS Court. The Magistrate or the prosecution may also request a referral to the NCS Court, but this will only happen if the offender agrees.

C. The NCS Court hearing

Who is there?

Those present include the offender, the magistrate, ATSI elders, community panel members, the prosecutor, the offender's legal representatives, the victim (where appropriate and possible), and other community members.

What happens?

Those present discuss the circumstances of the offence and how it has affected the victim, the offender and the wider community. They also discuss the offender's background and current circumstances in order to decide on the best sentence. Other things they look at are the healing process, moving on from the offence, and helping the offender address unemployment, health, education, housing, rehabilitation and other problems that may be part of why the offence occurred in the first place.

The NCS court has the same sentencing powers as the Magistrates court.

For contact details for the Ngambra Circle Sentencing Court, see Contacts, Links and Resources.

Legal advice for indigenous Australians

The Aboriginal Legal Service (NSW / ACT) Limited is a legal service for indigenous people, with several offices throughout NSW (including at Nowra, Moruya and Wagga Wagga) and one in the ACT. The offices provide:

• legal services to Aboriginal people, including children and young people, in criminal law matters;
• legal assistance (advice and in suitable cases representation) with civil law matters (for example, credit and debt, discrimination, mental health, social security) - provided through an arrangement with the Legal Aid Commission of NSW;
• a Family Law Unit;
• a Children's (Care and Protection) Unit;
• a Telephone Custody Notification Service (24 hrs): If an Aboriginal person is arrested in the ACT, he or she should request the police to telephone the ALS (NSW / ACT) so that the arrested person can speak with us, let us know of their arrest and obtain legal advice; and
• a Prisoner and Family Support Unit: Officers from the Unit regularly visit all adult correctional centres and juvenile detention centres, police stations and corrective services holding cells. The Unit also provides court support for people appearing at court, as well as escorting inmates from prisons to rehabilitation services. The Unit offers a range of supports for inmates and makes contact with families, community organisations and relevant government agencies.

There is also a Family Violence Contact and Referral Service provided by specialist women Victims of Family Violence Contact Officers, based at Grafton and Wagga Wagga, but they will also travel to other offices.

Contact details for the Aboriginal Legal Service (NSW / ACT) are at Contacts, Links and Resources. See also AssistanceWithLegalProblems.

Other sources of support and advocacy in the ACT

The Aboriginal Justice Centre provides support services to Aboriginal and Torres Strait Islander persons in the ACT criminal justice system. These services include assistance, support and advocacy on a range of issues, and prevention and case management programs to support 'at risk' and vulnerable persons. No legal advice is available.

The Aboriginal Justice Advisory Committee advises the ACT Government on justice and related matters of concern to the local indigenous community.

Winnunga Nimmityjah Aboriginal Health Services is a primary health care service initiated and managed by the Aboriginal community of the ACT and surrounding areas.

Gugan Gulwan Youth Aboriginal Corporation provides information, advocacy, individual support and referrals for Aboriginal and Torres Strait Islander young people. Support services and groups include:

• Young Men's Mentor Group;
• Young Women's Mentor Group;
• Young Mum's Group;
• School Holiday Program (at minimal cost);
• Alternate Education Program (including a Numeracy/Literacy class);
• Family Support Service (support, advocacy, Care and Protection support, case management, information and referral); and
• Drug and Alcohol Program (information, support, referral, detoxification / rehabilitation support, dual diagnosis, advocacy, case management and court support for young people aged 12 - 25 years experiencing alcohol and other drug related issues). Aboriginal and Torres Strait Islander young people are given priority. The Program also has a Friday Nite Outreach event.

Law Reform

The reasons why law changes are many. Often the need for change is expressed and defined by law reform organisations, royal commissions and the many other bodies that play an active role in trying to improve society, such as trade unions and political lobby groups.

Law Reform Commissions

The most formal mechanism is through a Law Reform Commission which is given the job of reporting to government about laws that need improving.

• The Commonwealth government has the Australian Law Reform Commission (ALRC -- www.alrc.gov.au), based in Sydney. The Commonwealth Attorney-General refers problem areas to the ALRC for advice. The public cannot directly approach the ALRC but it is committed to a consultative approach to law reform, and opportunities are available for the public to put forward views about its work
• In the ACT, the relevant body is the ACT Law Reform Advisory Council. The ACT LRAC responds to the Attorney General's request to investigate issues and make recommendations. The Council does not have the power to instigate its own inquiries. Neither can members of the public directly approach the Council, but they can often contribute to the process by making submissions on matters being investigated. The evidence of community groups with direct experience of people's problems with the law is particularly valuable.

It is up to the relevant government to decide whether to turn recommendations for reform into law.

Community Activism

However, it would be wrong to think that the only people who can change laws are parliamentarians. Community groups, activists and the business lobby all work for reforms to laws that interest and affect them from time to time. The community legal centre movement (see AssistanceWithLegalProblems) is actively involved in law reform, as are groups such as consumer activists, financial counsellors and the welfare community.

At any time, many activist groups in the community are working to change all sorts of laws, ranging from mandatory detention, abortion laws and the reintroduction of the death penalty through to duck shooting, animal welfare, environmental and planning laws and various civil liberty campaigns. The daily newspapers and the current affairs electronic media will give you an instant sample of what laws are under scrutiny at any given time.

If you are concerned about a particular law, the first person to approach is your local Member of the Legislative Assembly (MLA). A list of ACT MLAs, with links to contact details for each Member, is available on the ACT Legislative Assembly website.

Finding out about the Law

Libraries

The Australian Libraries Gateway provides easy access to contact details, websites and catalogues of all the libraries in your local area as well as around the country.

Local Public Libraries

There are many books on the law for non-lawyers. These may provide all the information required, and are likely to be easier to read than statutes and law reports. You will find many of them in your local public library.

Local libraries do not carry extensive law collections, although the ACT Public Library holds some basic law books (in Civic), as do municipal and shire libraries in New South Wales. If your local public library does not have the resources to help you, they may be able to borrow material from other libraries for you. They also tend to respond well to demand.

Court and specialist legal libraries in the ACT

Supreme Court of the ACT - Russell Fox Library

The Supreme Court of the ACT has a library (the Russell Fox Library) which is open to the public - see contact details at Contacts, Links and Resources. The library collection consists of judgments, legislation, law reports, textbooks and periodicals relevant to ACT court proceedings.

ANU Law Library

The Australian National University has a Law Library, located in the Law Faculty Building (Building 5) in Fellows Road, Acton. It holds statutes and case law from every Australian jurisdiction as well as the UK, USA, New Zealand and Canada. Special emphasis has been given to public and international law within the collection. The entire ANU library catalogue is available for free online (use the Subject Search facility to limit your search to legal topics).

Members of the public may use the ANU Law Library but need to arrange this in advance with the Information Adviser's Desk. Most items held in the Law Library are not for loan - instead there is a special collection, called "Permanent Reserve" (located on the ground floor of the library) to house the material that is used most heavily. Permanent Reserve material may, of course, be photocopied. Questions about borrowing material from the Law Library may be referred to the User Services Coordinator, Law. See contact details at Contacts, Links and Resources.

University of Canberra Library

The University of Canberra (UC) Library is located on the UC Campus in Bruce, ACT. Law is taught as a degree course at UC and the library holds an extensive collection of legal resources. Members of the public can search the online catalogue and may also visit the library in person to read books there. To borrow a book you must apply for "external membership" of the library. At time of writing the cost was $99.00 per year (although students and staff at other academic institutions, and alumni of UC, may be eligible for discounted or free membership).

A specialised online guide to research in law using the UC catalogue and other resources is also available. In addition there is an online ask-a-librarian service.

High Court Library

The High Court of Australia has an extensive library but this is not open to members of the public. Part of this library (the Bar Library collection) is open to the legal profession if they are appearing in a case before the High Court of Australia.

Federal Court Resources

The Federal Court of Australia has an online Library Catalogue and Native Title Infobase. Items included in the catalogues are not available for loan to individuals, nor will photocopies be provided, however the Melbourne library of the Court will take inter-library loan inquiries for material listed. . See contact details at Contacts, Links and Resources.

Australian Institute of Criminology

The Australian Institute of Criminology has a library (The J V Barry Library), with a collection focusing on criminology, the social sciences, policing, corrections, and criminal justice. However, access to the Institute's building is restricted, and requests to visit the library should be directed to the Manager, Information Services. Library visitors are advised to use the online library catalogue before visiting the library. The J V Barry Library is not able to offer in-depth reference services to visitors. . See contact details at Contacts, Links and Resources.

Apart from these, most law courts will have at least basic collections that may, with permission from the court staff, be consulted.

The Legal Tool Kit (NSW Law)

All central public libraries in NSW, including two near Canberra -- Queanbeyan and Goulburn -- have a collection of plain language law books called the Legal Tool Kit. The kit is kept up-to-date by the Legal Information Access Centre (LIAC), located at the State Library in Sydney. There are usually about 20 books in the kit, covering subjects such as family law, tenancy, buying a house, and defending yourself in court. It always includes the latest edition of the NSW Law Handbook.

For more information, contact LIAC or visit its Internet site ( www.legalanswers.sl.nsw.gov.au). LIAC has a range of services to assist the general public in finding legal information. LIAC's services are free and confidential.

Generalist libraries at academic institutions in the ACT

Apart from the specialist law libraries at ANU and UC mentioned above at Court and specialist legal libraries in the ACT, the following academic libraries may also have useful information on legal topics.

Australian Catholic University Library (Signadou Campus) Lewins Library

The Australian Catholic University (ACU) has a campus in Watson, ACT (the Signadou Campus) among many other campuses across Australia. While Law is not taught as an undergraduate course at ACU, the Signadou Campus does offer a Graduate Certificate in Education Law, and the ACU Library at that campus (the Lewins Library) contains many general legal reference works which can be searched using the online catalogue. Books can also be requested from other campuses. There is also an ask-a-librarian service available.

Members of the public wishing to use the Lewins Library should contact the information desk – see contact details below at Contacts, Links and Resources.

Canberra Institute of Technology Library

The Canberra Institute of Technology (CIT) is an educational institution offering diploma and certificate level courses, with campuses across the ACT. The CIT Library and Learning Centre has locations at each CIT campus (Bruce, Fyshwick, Reid, and Southside) as well as a separate Learning Centre Location at Tuggeranong. Each campus' Learning Centre has particular resources related to courses studied on that campus. The extent of the services available, and the opening hours vary from campus to campus. The holdings of all campuses can be searched via the online catalogue. CIT does not offer a Law degree course as such but the library holds some useful general legal reference books.

Students or staff at other Australian educational institutions may be able to join the CIT Library as a courtesy borrower and vice versa. Members of the community may also join the Library for an annual fee of $121 (GST inclusive). Contact the Loans Desk at any Campus Learning Centre for further details - see contact details below at Contacts, Links and Resources. Some restrictions on use may apply.

CIT Library and Learning Centre does have an ask-a-librarian service but use of this is limited to CIT students and staff.

Australian Defence Force Academy Library

The Australian Defence Force Academy, known as the University of New South Wales at ADFA, has a library located at its campus in Canberra, off Fairbairn Avenue. The library has approximately 424,000 volumes and an extensive set of electronic resources. While Law is not taught as an undergraduate course at ADFA, the library holds many legal reference works, which can be searched via the online catalogue.

Defence personnel and students and staff of other academic institutions may be able to access basic borrowing privileges, either free of charge or on payment of a refundable deposit. The Library is also open to members of the public, who are welcome to visit and use its resources onsite. Members of the public may also apply for borrowing privileges. Fees for individual borrowers are $66 per Semester (6 months) or $122 per annum (including GST).

There is also an ask-a-librarian service, although requests from individuals who are not registered borrowers will receive a lower priority. See contact details below at Contacts, Links and Resources.

Internet access

All ACT Public Libraries now offer Internet access, and trained staff can assist even the total novice to find almost anything online. If you need help, it is best to make prior arrangements with library staff to ensure someone is available to assist you.

Online Information

There are now many internet sites offering general or more specific legal information. Firstly, there are the sites mentioned at Statute law at Publication of Acts and Regulations. See also the website of ACT Legal Aid and the publications page of the Law Society of the ACT to access a range of plain English publications on legal issues.

As noted above, the Australian Libraries Gateway provides easy access to contact details, websites and catalogues of all the libraries in your local area as well as around the country.

As noted above, the entire ANU library catalogue is available for free online (use the Subject Search facility to limit your search to legal topics). ANU also provides a page of law internet resources with many useful links.

The University of Canberra has, as noted above, the following online resources available:

• Online catalogue;
• Ask-a-librarian service; and
• Online guide to research in law

The High Court of Australia provides a Legal Links page connecting to Australian and international cases and legislation.

In addition to its online Library Catalogue and Native Title Infobase mentioned above, the Federal Court of Australia maintains a Legal Research Links page that is also subject arranged and specialises in legal subjects.

In addition to its online library catalogue noted above, the Australian Institute of Criminology has links to several local, national and international online criminology databases and resources, as well as its own database (covering Australian material on all aspects of crime, criminal justice and criminology), called CINCH.

The Supreme Court of the ACT maintains a list of ACT Legal Materials as well as other Legal Links to Australian legal sites, courts, tribunals, legislation and Human Rights resources. There is also a linked list of legislation relevant to the work of the court.

The Magistrates Court of the ACT also provides links to relevant legislation and has some information pamphlets available online.

The ACT Public Library catalogue is available online at the ACT Virtual Library Website.

Canberra Institute of Technology Library and Learning Centre has an online library catalogue, as does the Australian Catholic University Library (http://www.acu.edu.au/library/find/catalogue_ebooks/). ACU also has an ask-a-librarian service.

The Australian Defence Force Academy Library also offers an online catalogue and an ask-a-librarian service (however requests from individuals who are not registered borrowers will receive a lower priority).

In New South Wales, the NSW Legal Information Access Centre (LIAC) is a specialist service of the State Library of NSW, providing information about the law for the community in NSW. The service is free and confidential. The State Library of New South Wales also maintains a list of internet links. Here you will find links to subject-arranged reference sites selected by reference staff to assist you in finding quality information sources on the Internet. Another high-quality library-sponsored site is www.weblaw.edu.au/index.phtml, with contributions from a number of specialist law librarians across Australia.

There are also several commercial sites which provide some legal advice and offer advertising for law firms at the same time, such as http://www.law4you.com.au.

New sites are being created all the time -- a search engine such as Google offers literally hundreds of websites. However, as with any information found on the Internet, you need to check that the site you are accessing is a reliable and authoritative source of legal information, and not just a forum for expression of an individual (and perhaps inaccurate) view of the law.

Law Reports

Law reports contain the more important cases decided by the courts. There are many different series of law reports, each one reporting decisions of different courts in different states and countries.

When a reported case is referred to in this book, a traditionally accepted shorthand reference will be used: for example, Commonwealth v Anderson (1960) 105 CLR 303; Commonwealth v Anderson [1961] ALR 354. This case has been reported in two law report series: the Commonwealth Law Reports (CLR) and the Australian Law Reports (ALR). In the above examples, the person commencing the action is the Commonwealth and the person defending the action is Anderson. In the first series of reports, "(1960)" is the year in which the decision was handed down and "105" is the volume reference. In the second, "[1961]" is the volume reference. The final figure in both cases is the page number the judgment starts at in that volume.

Most law reports contain the names of the parties to the dispute, a summary at the front of the case which lists the facts involved and the court's decisions (called the "headnote"), written judgments, word for word, of the judges, including their reasons for deciding as they did, and the order of the court.

If you are looking for cases on a particular topic, as opposed to a particular case, you can use the Australian Legal Monthly Digest or Australian Current Law (available in any law library, or online (for a fee)). These books are arranged under topics and list relevant cases and where to find them. Comprehensive databases (such as the Australasian Legal Information Institute ( Austlii)) are also becoming increasingly available. Most of the courts now also have websites and you are often able to access the judges' decisions. See Contacts, Links and Resources for a list of courts and their websites.

Contacts, Links and Resources

Contacts

ACT Children's Court www.courts.act.gov.au/magistrates/index.html

ACT Coroners Court www.courts.act.gov.au/magistrates/index.html

ACT Human Rights Commission www.hrc.act.gov.au

ACT Indigenous Elected Body www.electedbody.com.au/default.htm

ACT Law Reform Advisory Council www.jcs.act.gov.au/lrac.html

ACT Public Library Service www.library.act.gov.au

ACT Office of Aboriginal and Torres Strait Islander Affairs www.dhcs.act.gov.au/matsia/atsia

ACT Ombudsman www.ombudsman.act.gov.au

ACT Remuneration Tribunal www.cmd.act.gov.au/governance/remtrib

ACT Sheriff's Office (02) 6207 1785; see also the ACT Supreme Court's Jury Duty web page at www.courts.act.gov.au/supreme/content/jury_duty.asp?textonly=no

ACT Supreme Court www.courts.act.gov.au/supreme

Administrative Appeals Tribunal www.aat.gov.au

Administrative Review Council www.ag.gov.au/arc

Attorney General's Department www.ag.gov.au

Australian Human Rights Commission www.hreoc.gov.au

Community Youth Justice www.dhcs.act.gov.au/ocyfs/services/community_youth_justice

Commonwealth Ombudsman www.ombudsman.gov.au

High Court www.hcourt.gov.au

Family Court www.familycourt.gov.au

Federal Court of Australia www.fedcourt.gov.au

Federal Magistrates Court of Australia www.fmc.gov.au

Law Society of the ACT www.actlawsociety.asn.au

Migration Review Tribunal and Refugee Review Tribunal http://mrt-rrt.gov.au

National Congress of Australia's First Peoples http://www.hreoc.gov.au/social_justice/repbody/index.html

National Native Title Tribunal www.nntt.gov.au

Native Title Resource Unit of the Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS) http://ntru.aiatsis.gov.au

NSW Legal Information Access Centre www.legalanswers.sl.nsw.gov.au

NTSCORP Limited www.ntscorp.com.au

Social Security Appeals Tribunal www.ssat.gov.au

United Ngunnawal Elders Council www.dhcs.act.gov.au/matsia/atsia/ngunnawal_issues

Resources

ACT Public Library catalogue: ACT Virtual Library Website.

ACT Legislation Register www.legislation.act.gov.au (ACT Acts, Regulations Instruments and Forms)

Australasian Legal Information Institute (AustLII) www.austlii.edu.au (both Commonwealth and State and Territory Acts and Regulations (as well as court and tribunal cases)).

Australian Catholic University Library:

• http://www.acu.edu.au/library/find/catalogue_ebooks/ (online catalogue)
• http://aculibrary.altarama.com/reft100.aspx?mi=UztpXtOwwEWB8B-DlolNpg (ask-a-librarian service)

Australian Defence Force Academy Library:

• online catalogue;
• ask-a-librarian service (however requests from individuals who are not registered borrowers will receive a lower priority).

Australian Institute of Criminology:

• online library catalogue;
• links to local, national and international online criminology databases and resources;
• CINCH database (Australian material on crime, criminal justice and criminology).

Australian Libraries Gateway

Australian National University:

• ANU library catalogue (use the Subject Search facility to limit your search to legal topics);
• law internet resources

Canberra Institute of Technology online library catalogue

ComLaw www.comlaw.gov.au (Commonwealth Laws)

www.fed.gov.au (Commonwealth law; information about government services and policies).Online Native Title Resource Guide, provided by the Native Title Resource Unit of the Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS): http://ntru.aiatsis.gov.au/research/resourceguide/statesandterritories/ACT/act01.html

Federal Court of Australia:

• Library Catalogue and Native Title Infobase;
• Legal Research Links page.

High Court of Australia Legal Links page

Magistrates Court of the ACT

• links to relevant legislation;
• information pamphlets.

The State Library of New South Wales: list of internet links.

Supreme Court of the ACT:

• list of ACT Legal Materials;
• Legal Links to Australian legal sites, courts, tribunals, legislation and Human Rights resources;
• linked list of legislation relevant to the work of the court.

University of Canberra:

• Online catalogue
• Ask-a-librarian service
• Online guide to research in law

www.law4you.com.au

www.weblaw.edu.au/index.phtml