The Court System

The Jury System

The right of ‘trial by jury’ is an important safeguard against the power of the state over people’s lives. The primary role of trial by jury is to enable ordinary people to decide on the guilt or innocence of those charged with crimes against the laws of the land, instead of judges or magistrates appointed by the government. Juries also play a limited role in the enforcement of civil laws as well. But the right to trial by jury has been limited in the interests of the efficient operation of the justice system. All minor offences and the majority of crimes which go to trial are dealt with ‘summarily’ at hearings without juries in the Magistrates Court. Very few civil trials have a jury because of the expense.

The role of the jury varies between civil and criminal cases. In a criminal trial, the role of the jury is to decide ‘questions of fact’ while the judge decides ‘questions of law’. Whether a particular blow killed a person is a question of fact. Whether the killing of that person by means of that blow is murder or manslaughter is a question of law. The jury will decide such questions by considering the evidence presented in the court. The jury will listen to witnesses and view the ‘exhibits’, that is, physical evidence such as weapons, finger-prints, documents or blood-stained clothing. After being ‘addressed’ by the lawyers on both sides of the case and listening to the ‘directions’ from the judge about the law, the jury will then retire to ‘consider the evidence’ and reach a ‘verdict’. In civil cases juries will sometimes decide on the amount of compensation. In defamation trials they may also make findings of fact.

Many aspects of jury duty are regulated by the Juries Act 2003(Tas). Under the Act all people listed on the Electoral Roll between 18 and 70 years of age are liable for service as jurors. Persons who have been sentenced to imprisonment for a period of three months or more (including suspended sentences) in the previous five years, or are on bail, probation or performing community service, are not qualified to serve as jurors. The sheriff of the court can disqualify a person from acting as juror in the case of mental or physical disability or where the juror cannot understand English. A wide range of those who work in the justice system and their spouses, such as judges, magistrates, court officials, police and prison officers and lawyers as well as those working in essential services such as senior public servants, members of parliament, doctors, dentists, opticians, physiotherapists, chemists, vets, nurses, academics, teachers, pilots and air crews, and masters, skippers and crews of merchant ships and fishing vessels are exempted from jury service. The sheriff can also excuse those who have a ‘reasonable excuse’ including a ‘family responsibility’ which involves caring for other persons, or those who have served on a jury in the past three years.

Potential jury members will be summoned to attend the court. Failure to attend is an offence. The process of actually becoming a member of a jury is called ‘impanelling’. Both sides have the power to challenge potential jury members, though in the case of the defence in criminal trials a reason must be given after six challenges. Jury panels in criminal trials consist of 12 people and in civil trials seven people. In both cases a ‘foreman’ is appointed who speaks for the panel. A ‘majority verdict’ of 10 out of 12 jurors can decide a criminal case after two hours of deliberation, except for very serious offences. In civil cases ‘majority verdict’ of five out of seven jurors can decide the case after four hours of deliberation. Where majority verdicts cannot be achieved, in the case of both civil and criminal trials the jury is ‘discharged’ and there may have to be a further trial. Jurors are paid for lost wages and travelling expenses.

The Courts

Just as Australians live with two sets of law, federal and state, these laws are enforced by two separate court systems. Attempts to integrate the two systems have had only limited success. Both federal and state systems have ‘tribunals’, ‘boards’ and ‘commissions’ which deal with specialised areas of law. Another way of saying this is that tribunals, boards, commissions and courts have different jurisdictions. Jurisdiction basically means ‘area of power’. For example, the Family Court of Australia deals with family law. The Family Court’s area of power is family law.

Most courts and tribunals are open to the public, although access is sometimes restricted - the most important example being the State children's courts (now the ‘ Youth Justice Division’ of the Magistrates Court) where only the child, the child's parents and lawyer are allowed into the court.

There is an increasing use of video hook-ups in the courts to avoid the costs and inconvenience of ‘live’ appearances and to protect some witnesses e.g. children, or rape victims.

The Commonwealth Courts

Federal Circuit Court

The Federal Circuit Court was set up in 1999 by the Commonwealth government to deal with several different areas of the law, including family law issues, such as child contact and child support matters, and divorce.

The Court also has jurisdiction over administrative law, admiralty law, bankruptcy, copyright, human rights, industrial law, migration, privacy and trade practices. The purpose of this structure was to take the pressure off the Federal Court, and especially the Family Court, and to provide a more accessible court structure. It has largely succeeded.

The Family Court and the Federal Circuit Court

The Family Court deals with family law issues. It is helped in its work by the Federal Circuit Court. The Federal Circuit Court deals with many of the more straightforward legal problems, such as divorce or separation. The Family Court deals with many of the more complicated or serious matters, such as allegations of child abuse, as well as child abduction cases. For more information see the Family section of this website.

The Federal Circuit Court can grants divorces. Where parents have separated, whether married of unmarried, it deals with disputes about the residence and care of children, and about the contact of children with the other parent and others in their lives such as grandparents. It also resolves property disputes between couples who have been married, and de facto couples.

The payment of maintenance by parents for their children, now generally known as ‘child support’, is usually dealt with by the Child Support Agency, though some cases are still dealt with in the Federal Circuit Court or the Family Court.

The Family Court and the Federal Circuit Court are very busy courts. There is a strong emphasis on the use of counselling facilities and on conciliation conferences to resolve disputes by consent. Mediation with family law issues is compulsory.

The Family Court's registry is in Hobart but it also sits in Devonport and Launceston. Counselling and conferences take place in these and other major centres. Urgent matters are generally dealt with in Hobart. There is increasing use of phone and video conferencing to reduce time-consuming travel for court officers and parties.

Reviews of Federal Circuit Court decisions are dealt with by a Family Court judge. An appeal from a judge's decision goes to a bench of three Family Court judges and from there an appeal goes to the High Court.

The High Court

The High Court is at the apex of both the Commonwealth and state court systems. Its administrative and ceremonial head is the Chief Justice and it has six other judges. Unlike other courts, all seven judges generally sit on High Court cases because of the importance of its decisions. The High Court's decisions must be followed by all other Australian courts and tribunals.

The court's key role is deciding constitutional cases. However, the bulk of its workload consists of appeals from decisions of state and territory Supreme Courts, the Federal and Family Courts. The right of appeal to the High Court in non-constitutional cases is not automatic. ‘Leave to appeal’ must usually be granted and this will only be done where a matter is of sufficient public importance and there is a reasonable chance of success.

Commonwealth Tribunals, Commissions and Boards

The Commonwealth has tribunals, commissions and boards too numerous to mention which are part of the vast web of laws and policies it administers. The most important ones are the Administrative Appeals Tribunal (AAT), Social Security Appeals Tribunal, and Veterans Review Board. The AAT reviews numerous decisions made by Commonwealth public servants, officials and ministers, and also decisions of many tribunals, boards and commissions. It can only review decisions where legislation says that it can. Many other administrative decisions can be reviewed by the Federal Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth).

Commonwealth crimes or offences, created under the Crimes Act 1914 (Cth) are heard and determined in the State Court system (Magistrates or Supreme Court). There is no separate Commonwealth court system to try commonwealth charges. The only difference with a hearing of a commonwealth charge in a state court is that the Commonwealth sentencing penalties will apply rather than the state Sentencing penalties. Examples of Commonwealth crimes are fraud against the cmomonwealth, the importation fo drugs, and offences on planes.

The Federal Court

The Commonwealth court system is much more complex than the State ones. Much more of its work is done by specialised tribunals, boards and commissions, though it does have a high volume of people using the Family Court system.

The Federal Court was established in 1976 in order to relieve the High Court of Australia of its ordinary workload. It has an Industrial Division and a General Division and sits in all State and Territory capital cities in Australia. The Federal Court in Tasmania is on Davey St. It shares premises with the Family Court.

The Industrial Division deals with the enforcement and interpretation of federal awards and agreements and workplace relations matters. The resolution of disputes, making of awards and the mediated settlement of court cases is dealt with by the Industrial Relations Commission.

The General Division of the Federal Court deals with cases relating to bankruptcy, trade practices, federal administrative law, federal taxation disputes, customs, copyright, patents, trademarks, and numerous other federal matters. Cases are dealt with by a single judge, with a right of appeal to the ‘full’ Federal Court (which has three judges), and from there to the High Court of Australia.

The rules under which the Federal Court operate allow judges to take a strong hand in case management to ensure that cases, or as many issues as possible in cases, are quickly resolved before they go to trial. There is increasing use of video connections to get ready for trials and take evidence.

The State Courts of Tasmania

The Supreme Court of Tasmania

Tasmania has a two tier court system made up of the Magistrates Court and the Supreme Court. The Supreme Court acts as an appeals court. Other states have a three tier system due to larger population sizes and greater case loads for courts.

The administrative and ceremonial head of the Supreme Court is the Chief Justice. There are five other judges. Judges are appointed by the Governor on the advice of the Executive Council. This Council is comprised of State Ministers, the Premier, and representatives from the legal profession. Judges are addressed in court as ‘Your Honour’, ‘Madam’ or ‘Sir’.

The Supreme Court deals with civil cases above a money limit of $50,000 and criminal cases which are heard by a jury. The Supreme Court also hears appeals from civil and criminal decisions of the Magistrates Court. The Full Court of the Supreme Court (which consists of three Supreme Court judges) hears appeals from decisions of a single judge in the ordinary Supreme Court. Similarly, the Court of Criminal Appeal (also with three judges) hears appeals from decisions of a single trial judge in criminal cases. Decisions of the Full Court and the Criminal Court of Appeal can be appealed to the High Court of Australia, which usually sits in Canberra. It only hears appeals which concern the Constitution or an important point of law.

The Supreme Court has its ‘Principal Registry’ at Salamanca Place in Hobart and ‘District Registries’ in Launceston and Burnie. Judges sit in these centres for trials but appeals involving three judges only take place in Hobart.

Settlement of civil cases by mediation is gaining ground in the Supreme Court, but mediation is not compulsory. The Associate Judge, previous known as ‘the Master’ helps to manage the civil jurisdiction of the Supreme Court.

In the past, civil cases in the Supreme Court may have taken years to come to trial, or settle. It is not unusual for personal injury cases to take seven to eight years to resolve. The Court has an active case management focus, which means it intervenes to move cases on – diverting dispute into alternative methods of dispute resolution in order to confine the issues that will appear before the court for resolution. Conciliation is compulsory in the SC, it is free, and noncompliance will see the case not being listed for hearing.These case management procedures are also used in the Magistrates Court. There are indications that new case management procedures are making the court process quicker, and more accessible.

The Magistrates Court

The Magistrates Court is the ‘workhorse’ of the legal system. The majority of people who have contact with the courts will do so through the Magistrates Court. The Magistrates Court deals with civil cases up to a money limit of $50,000, with unlimited jurisdiction by consent of the parties, and criminal cases which are not heard by a jury. The money limit changes from time to time by proclamation, to reflect the value of the dollar. Plaintiffs often reduce a claim in order to keep the matter in the Magistrates Court, or to keep the matter in the small claims tribunal division of the Magistrates Court.

The Magistrates Court also hears preliminary proceedings, formerly known as ‘committal proceedings’ which test the evidence on serious criminal offences before they go to the Supreme Court. The Youth Division of the Magistrates Court is part of the Magistrates Court though it operates under its own legislation. Magistrates also act as Coroners.

The Magistrates Court takes its name from the magistrates who are its ‘judges’. Magistrates are appointed by public advertisement. The administrative head of the Magistrates Court is the Chief Magistrate. The Chief Magistrate is assisted by the Deputy Chief Magistrate. Each of the three regions of the State has its resident magistrates who also sit in smaller centres. Magistrates are addressed in court as ‘Your Honour’, or ‘Sir’ or ‘Madam’.

An important part of the Magistrates Court is the ‘Small Claims Division’. This part of the Court deals with civil cases with a money limit of up to $5,000. Its purpose is to deal with cases as cheaply and efficiently as possible by cutting down on formal legal procedures and encouraging negotiated settlements. Lawyers can only represent people in the Small Claims Division in very rare instances.

Under new rules, civil cases proceed quickly through the Magistrates Court. All cases go through compulsory mediation with emphasis put on the parties to settle the case or to settle as many issues in the case as possible by means of aggressive case management procedures and cost penalties.

State Tribunals, Commissions and Boards

The State court system has a number of important specialist courts called ‘tribunals’ or ‘commissions’. The three most important are the Workers Compensation Tribunal, the Resource Management and Planning Appeals Tribunal and the Industrial Commission.

Matters that would otherwise be heard by an Administrative Appeals Tribunal (AAT) in other states, are heard in Tasmania in the Magistrates Court. Under the Magistrates Court (Administrative Appeals Division) Act 2001 (Tas), the court hears appeals against administrative decision. For example, the Magistrates Court will hear appeals from people who were refused a gun license or a driving license, on their initial application. If a person is refused a license by an administrator, the Magistrates Court (Administrative Appeal Division) Act provides for appeal through a magistrate. The same applies with tax assessment, closure of public roads, declaration of dangerous dogs – numerous Acts containing powers for administrative decisions will include a right of appeal to a magistrate. Gun licenses, motor vehicle licenses, security licenses, state taxation matters – these are a few examples. If the Act in which the administrative powers are contained do not include an avenue of appeal, the Magistrates Court (Administrative Appeal Division) Act allows for this review.

Administrative appeals are held de novo. This means that the appeal is heard ‘as of new’ – that means that the appeal is a fresh attempt to be granted an administrative right. The magistrate will consider the matter anew, as if standing in the shoes of the original decision maker.