Identify and Apply the Legal Framework Part 1 ConveyancingSe

Identify and Apply the Legal Framework
Part 1
Conveyancing
Semester 1/2019
52
Disclaimer
This subject material is issued by RMIT on the understanding
that:
1. RMIT, it’s directors, author(s), or any other persons involved
in the preparation of this publication expressly disclaim all and
any contractual, tortious, or other form of liability to any person
(purchaser of this publication or not) in respect of the
publication and any consequences arising from its use,
including any omission made, by any person in reliance upon
the whole or any part of the contents of this publication
2. RMIT expressly disclaims all and any liability to any person
in respect of anything and of the consequences of anything done
or omitted to be done by any such person in reliance, whether
whole or partial, upon the whole or any part of the contents of

this subject material.
3. No person should act on the basis of the material contained in
the publication without considering and taking professional
advice.
4. No correspondence will be entered into in relation to this
publication by the distributors, publisher, editor(s) or author(s)
or any other person on their behalf or otherwise.
All details were accurate at the time of printing.
February 2019
© RMIT University 2019
Objectives
At the completion of this course you should be able to:
1. Identify the sources of Australian law
2. Understand the differences between Federal, State and
Territorial laws
3. Differentiate between civil and criminal proceedings
4. Understand the adversary system of trial
5. Understand the elements of precedent
6. Understand the legislative process
Learning Activities
A variety of teaching methods will be used including lectures,
class discussion, case studies, problem-solving and audio-visual
presentations.
Useful Resources

There is no prescribed text for this course as this Manual
contains details of most of the learning materials, however the
following websites will provide you with useful information in
gaining underpinning knowledge.
Victorian Parliament:
www.parliament.vic.gov.au
Victorian Legislation:
www.legislation.vic.gov.au
Victorian Law Institute:
www.liv.asn.au
Australian Law Foundation:
www.alf.
Commonwealth Legislation:
www.austlii.gov.au
Victoria Legal Aid:
www.vla.vic.gov.au
Victorian Courts
www.courts.vic.gov.au
Overview of Assessment
To achieve competency in this course students must
satisfactorily complete all assessment tasks.
BSBLEG413A – IDENTIFY AND APPLY THE LEGAL
FRAMEWORK
Unit Descriptor
This unit describes the performance outcomes, skills and
knowledge required to research legal systems and jurisdictions
within Australia.
Elements and Performance Criteria

ELEMENT
PERFORMANCE CRITERIA
1.Identify sources of law
1. Identify the main institutions of government in Australia.
2. Research sources of Australian law.
3. Assess rules for resolving conflicts of laws.
2.Identify and analyse relationships between the Australian
federal government and the states and territories
1.1 Identify legislative powers of the Australian federal
government and limits on that power.
1.2 Analyse the legislative powers of the states and territories.
1.3 Evaluate the relationship between the legislative powers of
the Australian federal government and the states and territories.
3.Differentiate between civil and criminal proceedings
2.1 Identify and examine the differences in law and procedures
between civil and criminal proceedings.
2.2 Analyse the findings and determine which court hear
particular cases.
4.Examine elements of the adversary system of trial
3.1 Identify main features of the adversary system of trial.
3.2 Evaluate these features and determine how they apply in the
context of the legal environment.
5.Examine elements of precedent
4.1 Identify the main features of the principles of precedent
4.2 Analyse how precedent is applied in the context of a legal
environment.
4.3 Examine and document the outcomes of precedent
6.Examine legislation
5.1 Examine principles for reading and interpreting legislation
5.2 Apply principles for reading and interpreting legislation in
the context of a legal environment.
Part 1
Part 17
Rules and Laws7

The Need For Laws8
Characteristics of Effective Laws8
The Rule of Law9
From a Penal Colony9
Federation10
Post Federation11
The Australian Parliamentary System11
14
Powers of States and Commonwealth14
Changes to the Constitution16
Native Title16
Sources of Australian Law20
Statute Law20
Common Law20
Statute Law21
Process for Enacting Legislation23
1. Proposal for a Change in Law23
2. Consideration of Proposal by Cabinet23
3. Drafting of Bill23
4. Initiation24
5. First Reading24
6. Second Reading24
7. Committee Stage24
8. Third Reading24
9. Review by Other House25
10. Royal Assent25
Delegated Legislation27
Government Departments27
Statutory Authorities27
Local Councils28
Executive Councils28
Common Law29
The Australian Court System31
Reasons for a Court hierarchy32
Jurisdiction34
The Victorian Court Hierarchy35

The County Court38
The Supreme Court39
The Court of Appeal39
The Federal Court Hierarchy40
The Federal CIRCUIT Court40
The Federal Court41
The Family Court41
The High Court42
Tribunals45
adversary system46
Part 249
Criminal and civil law49
Criminal Law49
Civil Law54
Overlap: Civil And Criminal Law59
Criminal Law Procedure61
Civil Law Procedure69
Alternative dispute resolution79
Mediation80
Conciliation81
Arbitration81
Collaborative Law81
Ombudsman83
Industry complaint resolution schemes83
Law making by judges86
PRECEDENT86
Binding Precedent86
Ratio Decidendi87
Persuasive Precedent88
Distinguishing Precedent90
Fact Situation92
STATUTORY INTERPRETATION92
Legislation92
Common Law Approaches94
Bibliography100

Part 1
Rules and Laws
‘What is law?’ This is a question that is an essential starting
point to our study of this unit. It is also not as simple as there is
no universally accepted definition of the term ‘law.’
Simply stated however, a law can be defined as a rule of
conduct reflecting the needs and values of society which must
be followed by individuals within that society and w hich
attracts a recognised punishment or penalty in the event that it
is not obeyed.
Laws can be also referred to a ‘legal rules’ and are to be
distinguished from non-legal rules. Non-legal rules are
frequently referred to as customs, manners or morals and are
created by groups or communities in society to govern the
behaviour of their members. For example, there are school
rules, family rules, social rules and sporting rules. If an
individual breaks any of these rules, he or she will not be dealt
with by the legal system as we know it.
For example, if a student breaks a school rule such as
repeatedly answering a mobile phone in class, an appropriate
punishment will be enforced by the school. This penalty will not
involve a legal sanction. Similarly, if a member of a club breaks
a club rule, they may have their membership suspended or
cancelled.
In contrast legal rules also referred to as laws that are legally

enforceable in the event that they are broken.
For example, if an individual drives his or her car through a red
light, they will be dealt with by the legal system and may be
punished through the courts, as this type of conduct is identified
as breaking a legal rule.
Laws can also be distinguished from rules as they are created by
recognised law-making bodies within society. Rules, however,
are created by particular bodies, be it schools, clubs,
corporations.
In summary, the following points are relevant in determining
the difference between rules and laws.
6.1 The source of the rule/law
6.2 The regulator of the rule/law
6.3 The sanctions that apply in the event that the rule/law is
broken
The Need For Laws
The law is clearly of utmost importance in our society. Without
laws our society would be in chaos.
The law performs the following functions in Australian society:
Protects individuals and society
Provides guidelines for acceptable conduct thus controlling
social relations and behaviour among citizens
Establishes the rights and responsibilities of citizens
Provides mechanisms and procedures for the peaceful resolution
of disputes
Promotes the orderly and harmonious functioning of society
Protects human rights and freedoms
Promotes education

Preserves the existing legal system
Facilitates social change
Characteristics of Effective Laws
For laws to effectively perform the functions outlined above,
they must possess the following characteristics:
Known to the general public
Clear and able to be understood
Acceptable to the community
Stable
Consistent
Able to be enforced
Able to change to reflect the changing morals, values and
demands of the community
Effective laws promote social cohesion and respect for the law
which is essential for the smooth operation of all aspects of
community life.
The Rule of Law
The rule of law is an essential principle within the Australian
legal system. It embodies the following three features:
All persons are equal before the law
Pursuant to law this means that each person is regarded as
having the same rights and responsibilities as all other members
of the community.
The law is supreme
This means there is recognition by all citizens that the law is
the highest level of authority in the state legal system. This is
premised by members of society acknowledging the existence of
basic rights afforded to all citizens and recognition that laws
must be followed.
Individuals have basic human rights
According to law individuals have certain ‘civil liberties.’

Freedom of speech and religious worship are two examples of
human rights recognised within our legal system.
The rule of law provides the legal framework for civilised
society in which we live.
How did Australia’s Legal and Parliamentary System Evolve?
From a Penal Colony
You may recall from history lessons in school that Australia
was colonised by England in 1788. Prior to colonisation
Australia was inhabited by Aboriginal Australians, however
they were not recognised or acknowledged as owners or
occupiers of the land by the English. The British government
deemed Australia “terra nullius”, meaning “a land that belongs
to no one”. The Aboriginals were dispossessed, and no
recognition was given to their customary laws.
Australia was basically established as a penal colony and was
initially governed without any parliament. The statutes and
common laws of England (including equity) were applied to
Australia, under what was known as the Doctrine of Reception.
The Doctrine of Reception, stated that, if the land belonged to
no one, England could then settle the land and apply its own
laws. The governor held all legal and administrative powers
across the colony being ruled by England. The only laws of
England that did not apply were those deemed by the governor
as inappropriate.
Throughout the following years colonies were established and
greater law making powers were also established. In 1823 the
NSW Supreme Court for civil and criminal jurisdictions was
established. A type of parliament, the Legislative Council was
also formed which had powers to make laws that were
consistent with English laws. The members of the Legislative
Council were appointed from England.

Between 1828 and 1900 various constitutions, laws and legal
processes were established throughout the colonies. Of
particular significance the NSW constitution was created, and
this gave NSW the power to establish a Parliament with a
Legislative Assembly and Legislative Council. It also then
allowed NSW to make its own laws provided they were
consistent with English law.
In 1855 Victoria’s constitution was enacted which gave the
colony of Victoria full representative government.
Federation
Reading:House of Representatives – The Constitution
(www.aph.gov.au) refer Link on Canvas – Week 2 materials
On 1 January 1901 the Commonwealth of Australia Constitution
Act (the Commonwealth Constitution) come into force which
transformed the six colonies into States of the Commonwealth
of Australia. This was known as Federation.
Federation created the Commonwealth of Australia with each
state and the Commonwealth having shared and specific powers.
The Act was passed by the English Parliament on 9 July 1900.
This process meant Australian was self-governing however;
through the Colonial Laws Validity Act 1865 (UK) the English
Parliament retained the power to pass laws that would affect the
states. It is important to note that although the English
parliament had the power to do this, they did not actually use

this power.
The Commonwealth of Australia Constitution Act also created
the High Court of Australia. However, a decision from the High
Court or a State Supreme Court could still be appealed to the
Privy Council in England.
Post Federation
The adoption of the Statute of Westminster Act 1931 (UK),
removed the powers of the British Parliament to make laws for
Commonwealth countries unless by request from that country.
Further amendments to this Statute were made in 1942 to allow
Australia power to make decisions particularly in regard to
defence in the World War.
Until 1975, the Australian legal system provided an avenue of
appeal from the High Court of Australian to the Privy Council
in England. The avenue for appeal has now been removed.
Since 1975 the highest court of appeal in the Australian legal
system is the High Court.
It is interesting that not until 1986 did Australian gain full
independence to make its own laws. The Australia Act 1986
(UK) repealed the rule that Australian state laws were invalid if
they were inconsistent with English law. This Act also
abolished the Privy Council as the appeal court from State
Supreme Courts.
The Australian Parliamentary System
Reading:House of Representatives The Australian System of
Government (www.aph.gov.au) refer Link on Canvas – Week 2
materials
House of Representative The House, Government and
Opposition (www.aph.gov.au) refer Link on Canvas – Week 2
materials

The Australian parliamentary system was based on the British
system of government, which is called the Westminster system.
Both the Commonwealth and the states modelled its parliament
and legislation processes on the Westminster system and this is
reflected in the Commonwealth of Australia Constitution.
The Westminster system consists of three elements, the Queen,
the upper house and the lower house. The Federal parliament
and the State parliaments are bi-cameral (two houses) except
Queensland which only has one house. The upper house of the
Federal parliament is the Senate and the lower house is the
House of Representatives. The Queen is represented by the
Governor General.
In State parliaments, the upper house is the Legislative Council
and the lower house is the Legislative Assembly. The Queen is
represented by the Governor.
The figure below outlines the structure of the Australian Federal
and State parliaments.
STATE
FEDERAL

PARLIAMENT
Governor
Governor General
QUEEN’S REPRESENTATIVE
Legislative
Council
Senate
UPPER HOUSE
Legislative
Assembly
House of Representatives
LOWER HOUSE
One of the important features of the Westminster system is the
doctrine of the separation of powers. Separation of powers
refers to the distribution of government powers into three (3)
distinct arms or branches, each of which has a separate
function. Under the doctrine each arm should be independent of
the others to ensure that there are checks and balances on the

people who govern us. The executive power exists to formulate
and administer policy. Executive power vests in the Queen and
is exercisable by the Governor General who will generally act
as advised by the Prime Minister. The Prime Minister appoints
senior ministers to form cabinet. Each minister heads a major
government department for example Defence, Foreign Affairs
and Treasury.
The legislative power is power to make or enact laws. This
power is exercised by the elected members of both houses of
parliament with the approval of the Governor General.
The judicial power is exercised by the various courts which
interpret and enforce the law. Members of the legislature or
executive must not interfere with the way the judges carry out
their duties.
Although there are three (3) distinct functions of government,
there is a blurring of these powers. Executive power rests with
the Prime Minister and Cabinet who are the elected members of
either the House of Representatives or the Senate who are also
involved in the making of the law. However, the exercise of
judicial power is quite separate from the other powers.
The Australian Constitution establishes a system of
representative and responsible government. Every Member of
Parliament represents the people within their electorate. If the
electorate is dissatisfied with their local member, a new person
maybe elected. Each Member of Parliament is responsible to the
Parliament in that they must resign if they mislead the
parliament.
In summary the key features of parliamentary system in
Australia are:
It is sovereign – meaning it is not ruled by others for example
British parliament
Bicameral – meaning there are two houses of Parliament being

the House of Representatives and the Senate
Our head of state is the Queen making us a constitutional
monarchy. The Queen is represented in Australia by the
Governor-General
The judicial system is separate and independent from Parliament
(separation of powers)
The executive arm of government comprises the Prime Minister
and Cabinet Ministers and are answerable to Parliament
The role of the public service is to advise and serve the
government in power and is politically impartial
The Legislature
The Executive
The Judiciary
Queen, represented by Governor General
THE CONSTITUTION
Courts
Minister of the Crown (the ministry) from both the Houses of
representatives and Senate
Ministers head Departments
Federal governments departments
High Court
Other federal Courts and Tribunals (Family Court, Federal
Court
Mann. T:Essential of Business Law (2001 Tertiary Press) p.13
Parliament
Administration

Powers of States and Commonwealth
The Commonwealth Parliament does not have unlimited law -
making power.
The nature of the Australian federation is that, at the time of
federation, the colonies agreed to give up powers to the new
central body. The Constitution sets out the distribution of
powers between the States and Commonwealth parliaments by
determining what areas of law the Commonwealth Parliament
can legislate.
The specific powers in which the Commonwealth Parliament
can make laws are listed in section 51 and were given to the
Commonwealth Parliament to make laws for the ‘peace, order
and good government of Australia’. The powers listed in section
51 are known as the 39 heads of power (refer to appendix 1).
Most of the powers listed in the Constitution are not given
exclusively to the Commonwealth.
When we look at these powers under section 51 they can be
classified into exclusive or concurrent powers.
Exclusive powers are those powers that only the Commonwealth
parliament can exercise or pass laws whereas concurrent powers
are where both the Commonwealth and State Parliaments have
authority to pass laws- they are shared powers.
The specific powers that are exclusive to the Commonwealth
Parliament are:
Sec 90 Customs, excise and bounties
Sec 92 Free-trade between states
Sec 105 Taking over state public debts
Sec 114 Military forces

Sec 115 Currency
Sec 122 Govt. of Federal Territories
These powers were more appropriate for a national Parliament
which governs the whole of Australia, rather than a State
Parliament.
However, the bulk of the Commonwealth powers under section
51 to make laws are concurrently held with the states. This
means that both the Commonwealth and States have the power
to legislate in these areas. For example: Bankruptcy, Taxation
and Marriage.
However, a problem may arise where both the Commonwealth
and States have made laws in the same area which may be
inconsistent. The Constitution deals with this.
Where there is any inconsistency between the laws made under
the specific powers of the Commonwealth Constitution by the
Commonwealth and State, Section 109 of the Constitution
provides that the State law, to the extent of the inconsistency,
shall be invalid.
Any powers not specifically mentioned in the Constitution
remains with the States. These are called residuary powers.
This does not mean that they are exclusive powers of the State,
which the Commonwealth cannot legislate on. In fact, the
Commonwealth legislates in all sorts of areas in which it has no
specific power. For example, crime is not a specific power of
the Commonwealth under section 51, but the commonwealth can
pass laws dealing with crime through its other powers, crimes
on aircraft’s, crimes involving mail, crimes involving the
importation of goods.
Changes to the Constitution

The wording of the Constitution can only be changed by
referendum under section 128 of the Commonwealth
Constitution.
The Constitution can only be changed if:
The proposed amendment is passed by an absolute majority
(over 50% of all elected members) of both houses of parliament.
The proposal is put to a referendum of all Australian voters
(including voters in the territories) within 2-6 months of the
absolute majority vote
The proposal is approved by a double majority, that is:
-more than 50% of all voters; and
-a majority of the six states (NT and ACT are not included)
the Governor General gives royal assent to the amendment
Native Title
Previously in this chapter, reference was made to native title.
The significance and importance of native title is key to our
legal system in regard to Australia’s legal history.
In 1992 after a lengthy and protracted legal challenged the High
Court handed down a decision in Mabo & Ors. V. State of
Queensland (1992) 107 ALR1. The High Court decision
rejected the concept of terra nullius and recognised Aboriginal
claim to land rights, recognising Aboriginals as traditional
owners of the land included in this claim.
The High Court concluded that the application of the doctrine of
terra nullius was in fact an error and recognised that
Aboriginals could make claim to land under native title. It also
determined that common law could accommodate native
customary title.
The decision did not apply to all Australian land but
specifically to vacant Crown land. For a native title claim to be

approved the claimants have to prove they are the descendants
of the original traditional owners and they hold a deep
traditional relationship with the land.
This decision created much discussion in Australia amongst
politicians and every day Australians.
The National Native Title Tribunal was established to assist
people in regard to native title claims. The Tribunal was set up
under the Native Title Act 1993 (Cth) and is a federal
government agency.
Part of the Tribunal’s role is to test and mediate claims,
maintain the Register of Native Title Claims and Register of
Indigenous Land Use Agreements and to negotiate agreements
in regard to indigenous land use.
Test Your Knowledge 1:
Read pages 4-11 of the student learning guide. Log on to
Canvas - Identify and Apply the Legal Framework to record
your answers to the following questions:
· Judicial power is exercised by:
1. courts
2. parliaments
3. subordinate authorities
4. government
· Concurrent powers are given to:
a) Commonwealth parliament only
b) State parliaments only
c) Subordinate authorities
d) Commonwealth and state parliaments

· A referendum is a proposal:
a) given to the electorate to elect a minister
b) put to the electorate to change the meaning of the
constitution
c) put to the electorate to change the wording of the constitution
d) put to the electorate to abolish the constitution
· The Federal parliament and most State parliaments have
bicameral legislatures. This means that:
a) the Upper house has more power than the Lower House.
b) there is only one House of Assembly.
c) most Bills start in the House of Representatives.
d) there are two Houses of Parliament
· Australia’s system of government can be described as a:
a) unitary system
b) republic
c) confederation
d) federal system.
· The founders of the Commonwealth Constitution intended that
the Senate be:
a) the people’s house
b) a House of Review
c) the State’s House and a House of Review
d) a House of lords.
· To form government (according to the Westminster system) a
party, or coalition of parties, must hold a majority in:
a) the Upper house
b) the Lower House
c) the Upper and Lower Houses combined
d) a majority of states.
· Federal parliament consists of:

a) elected members of the political party or parties with a
majority in the House of Representatives and the Queen the
Upper house
b) members of the Government and opposition parties in the
House of Representatives
c) elected members of both the Senate and the House of
representatives and the Queen
d) members of the government in both the Senate and the House
of Representatives.
· Section 109 of the Constitution sets out:
a) that the Federal Parliament has the exclusive right to impose
customs and excise duties
b) that the Federal Parliament has the right to grant financial
assistance to any State on any such terms and conditions as the
parliament thinks fit.
c) that where the Commonwealth and State parliaments pass
laws on the same matter which are inconsistent with one another
then the laws of the State will be invalid to the extent of the
inconsistency
d) none of these
· The Commonwealth constitution allows for a division of
power between the:
a) State Governments and the Commonwealth Government
b) British Government and the Australian government
c) House of Representatives and the Senate
d) Governor-General and Parliament
.
Sources of Australian Law
The two main sources of law in Australia are summarised in the
figure below:

Law made by
judges
Common Law
Law made by parliament
Statute Law
Statute Law
Statute law also known as Acts of parliament, legislation,
enacted law and written law, is law made by either the Federal
Parliament or a State Parliament.
Statute law also includes rules, regulations, by-laws, ordinances
which are made by a delegate of parliament for example local
councils, government bodies and statutory authorities.
Common Law
Common law means law created by the courts through the
reported decisions of judges.
Common law includes:
a) decisions made by judges where no legislation or law applies.
For example, areas of contract law which deal with broken

contracts and negligence which deals with harm or damage
caused by lack of reasonable care for others.
In other words, common law was developed by judges who
followed their own decisions and those of other judges in
similar cases where no guiding law existed before.
b)
judges’ interpretations or discussions about particular laws,
statutes and regulations which may be unclear or ambiguous.
Once parliament passes a law, the judges can’t go back to
parliament to ask what they meant by that particular law that
has been passed. Therefore, it is the responsibility of the courts
to interpret or work out the meaning and application of that
particular law or regulation. It is always open to Parliament, in
the event that it disapproves of a particular interpretation of a
law made by a judge, to enact further legislation to clarify
Parliament’s intention with regard to the particular law in
question.
Common law is also referred to as unenacted law, judge-made
law, case law and precedent.
Equity is a form of common law or ‘judge-made law’ that was
developed to overcome some of the gaps and rigidity in the
common law system.
Statute Law
Reading:House of Representatives- Making Laws
(www.aph.gov.au) refer Link on Canvas – Week 2
materialsHouse of Representatives – The Constitution
(www.aph.gov.au) refer Link on Canvas – Week 2 materials
Refer link below

Statute law is the most dominant source of law in Australia
today. However, until the middle of the nineteenth century,
there were comparatively few statutes and most of the law was
derived from the common law.
Statute law is enacted by either a State or Federal Parliament in
accordance with the legislative process. The legislative process
is that process by which Parliaments make legislation. The
legislative process in the State parliaments is essentially the
same as that of the Federal Parliament.
Exercise 1
There are several questions set out below which are to be
completed before class next week. Students should access the
link on Canvas titled “Making laws” as a starting point but will
need to navigate through several links on the parliamentary
website to complete all responses to these questions.
a) The Australian Parliamentary system is based on the British
system known as the?
b) What is a Bill?
c) Where is legislation initiated?

d) Who made up the Committees of Parliament?
e) What did the committee do?
f) When does the debate of the Bill take place?
g) Who takes over from the speaker on the completion of the
second reading?
h) What happens when there is a division in the house?
i) After the Bill has been passed by the Legislative Assembly
where is it sent?
j) Who formally signs the Act to make it law?

Process for Enacting Legislation
The typical process of enacting legislation is explained below:
1. Proposal for a Change in Law
The need for a change in law could emanate from various
sources. These include but are not limited to the following:
Pressure groups
Cabinet ministers
Political parties
Members of parliament
Government departments
Law reform commissions or committees
Lobbyists
Individuals/citizens
Media
Court decisions
In each of the above cases, the individual or group would
endeavour to have a proposal made into law.
2. Consideration of Proposal by Cabinet
The proposed policy must be submitted to cabinet for
consideration and approval, before it can be considered by
parliament. Cabinet is the body responsible for deciding matters
related to government policy and is comprised of the prime
minister and ministers at federal level. Its role is to determine
the type and content of the legislation to be put before
parliament.
3. Drafting of Bill
Once cabinet decides to adopt the proposed policy, the
parliamentary counsel (legal professional with expertise in
drafting legislation) will write a draft of the proposed
legislation, referred to as a Bill. The Bill is then ready for
introduction into parliament after cabinet is satisfied with its

terms.
4. Initiation
The responsible minister who is wishing to introduce the Bill
will advise the Clerk of the House (known as the house of
origin) that he or she intends to introduce the Bill. The clerk
then ensures that notice is given for the presentation of the Bill
on a subsequent day in parliament.
5. First Reading
The Bill is introduced into parliament (usually the lower) in a
procedure known as the first reading. During this stage, the
Bill’s title is read out and copies of the Bill are distributed
among members of the House. There is no debate on the Bill at
this stage. However, a date for the second reading of the Bill is
determined.
6. Second Reading
The purpose of the Bill is explained by the government minister
responsible for introducing the Bill. General debate on the Bill
and its merits and failings occurs during this stage and involves
members of parliament form all elected political parties within
that house.
7. Committee Stage
During this stage the Bill is debated in close detail, clause by
clause. A more comprehensive examination of each aspect of
the proposed law change is undertaken. Consequently,
amendments to the Bill may be recommended and a vote on the
suggested amendments taken. This stage is concerned with
ensuring that necessary alterations to the Bill are made so that
approval of the majority of the members of the House will be
obtained.
8. Third Reading
The third reading may involve further debate of the Bill. The
House then votes upon the proposal.

9. Review by Other House
If the Bill passes the house of origin, the Bill will then be
transmitted to the other House, where it must go through the
above processes again. If the other House amends the Bill, the
amendments must be referred back to the House from which the
Bill originated for approval of those amendments.
Bills can be introduced by both Houses (unless they are money
Bills) in which case they can only originate in the lower house.
Indeed, the majority of Bills are introduced into the Lower
House of Parliament first (the House of Representatives at
Federal level and the Legislative Assembly at State level)
because the Lower House is that which seats the government
and majority of ministers.
In Federal parliament, if a Bill is not approved by the other
House, a double dissolution may occur. This means that the
Governor General may dissolve both Houses of parliament
simultaneously and an election may be called.
10. Royal Assent
Once the Bill has been passed by both houses of parliament, it
will be referred to the Queen’s representative for royal assent.
The Governor General at Federal level and the governors for
each of the State parliaments will sign the Bill on the Queen’s
behalf signifying approval of the law by the monarch. Once
royal assent is received the Bill becomes an act of Parliament.
The date of commencement of the operation of the new act will
be announced in the Commonwealth of Australia Gazette or
Victorian Government Gazette.
The diagram below summarises the process by which Parliament
initiates legislation.

HOUSE OF REVIEW
· Initiation
· First Reading
· Second Reading
· Committee Stage
· Third Reading
Proposal for change in law
Draft Bill proposed
Consideration of proposal by cabinet
Royal Assent
Act of Parliament
HOUSE OF ORIGIN
· Initiation
· First Reading
· Second Reading
· Committee Stage
· Third Reading

Delegated Legislation
The Federal and State Parliaments delegate their law - making
powers to certain bodies to make laws, as they do not have the
time or expertise to pass all laws essential for the good
governance of the country.
For example, Parliament may delegate the power to regulate
local services such as water supply in a particular city.
The bodies to whom this authority is delegated are known as
subordinate authorities. These bodies include the following:
Government departments
Statutory authorities
Local councils
Executive councils

Government Departments
Governments departments legislate in their particular areas of
expertise.
Examples of government departments include the following:
Department of Defence (national security)
Department of Education, Employment and Workplace Relations
(DEEWR) (education and workplace training, transition to work
and conditions and values in the workplace)
Department of Foreign Affairs and Trade (DFAT) (international
relations and trade)
Department of Human Services (DHS) (social and health-related
services)
Department of Immigration and Citizenship (DIAC) (migration,
citizenship and multicultural affairs)
Department of Veterans’ Affairs (DVA) (policy and programs re
Australia’s obligations to war veterans and their families)
Statutory Authorities
Statutory authorities are given the power to legislate by an act
of parliament (State and/or Federal).
Examples of statutory bodies include the following:
VicRoads in Victoria (road and traffic safety)
WorkSafe Victoria (workplace health and safety)
Australian Competition and Consumer Commission (consumer
affairs)
Australian Securities and Investments Commission (company
law)
Australian Taxation Office (collection of taxes)
Reserve Bank of Australia (monetary policy)
Local Councils
Local councils have the power to make laws relating to their
local area. Local councils are constituted by representatives
elected by the people entitled to vote in their municipality.

Areas in which local councils make laws include animal keeping
and animal noise, building regulations, parking permits and
collection of rubbish.
Executive Councils
The key role of Executive Councils is to grant approval of
regulations made by government departments and statutory
authorities. The Executive Council (also called the Governor in
Council) at state level is comprised of the Governor and
relevant ministers. At federal level the Executive Council (also
referred to as the Governor-General in Council) is constituted of
the Governor General and relevant ministers.
The above bodies are subordinate to Parliament meaning any
laws they make may be scrutinised and ultimately overridden by
parliament, if necessay. As such, legislation made by the above
bodies is also known as subordinate legislation.
The authority to legislate is given to subordinate bodies under
an enabling Act or parent Act which ordinarily establishes
guidelines for the exercise of power by the subordinate or
delegated authorities.
Laws made by subordinate authorities are referred to as
regulations, by-laws, orders and/or rules.
As the elected body of the people, parliament retains ultimate
control over the legislative law - making process. It may
overrule or disallow legislation as easily as it grants the
authority to legislate. It will withdraw this authority if the
subordinate body has exceeded the power conferred to it by the
parliament or has improperly exercised the authority granted.
The subordinate body will have acted ‘ultra vires’ and the law
made will be unenforceable. Committees have also been
established at both federal and State level to review subordinate

legislation and ensure that legislation passed accords with
specific powers granted.
Common Law
The common law developed in England over centuries. It has its
origins as far back as the Norman Conquest of England in 1066.
At the time when William the Conqueror conquered England,
the laws of the local areas were based on customs and known
only to those within communities called shires. The laws lacked
uniformity and a centralised legal system of organisation.
Over time, however, the kings’ justices (judges) were sent on
circuit throughout the country and settled disputes. In effect,
they were able to bring together the disparate laws of the
different regions and make uniform decisions for the land. The
common law courts administered justice throughout England at
this time.
Common law, that is the decisions of judges in legal cases as
opposed to statute law was the primary source of law in
Australia until the late nineteenth century. Decisions of the
courts were recorded in law reports serving as precedents in
subsequent cases.
As previously explained a key function of the courts is to
interpret and apply existing law to cases that come before them.
Where a novel case comes before a court and there is no
relevant statutory or common law principle, the court will
establish a precedent. Similarly, where the law is vague or
uncertain the courts will establish a precedent. This law made
by the courts will be binding and have to be followed by courts
lower in the same court hierarchy. It is the legal principle
established by a case that is binding and not the decision itself.
The legal principle can be located in the ‘ratio decidendi’,
meaning the reason for the decision. The doctrine of precedent

will be examined later in more detail.
The term common law may also refer to the law of equity which
is a distinct branch of judge made law. This system of law
evolved in the Courts of Chancery in England and applied
justice and fairness. It developed to overcome the inadequacies
and inflexibilities of the common law system. As such, it
operated independently of the common law courts and had its
own rules and remedies. For example, remedies available under
the law of equity included specific performance (a court order
that a party does what was agreed or contracted) and an
injunction (a court order restraining someone from doing
something or ordering them to do it). These remedies could be
awarded at the court’s discretion where damages were an
inadequate form of relief under the common law.
The common law system and the law of equity were originally
separate law systems. Each applied its own rules and principles
developed by judges to civil law disputes. Today this system of
law is fused and no longer do the two systems operate
independently. In the event of a dispute between the common
law and equity, the law of equity prevails.
COMMON LAW
(judge-made law)
STATUTE LAW
(legislation)
Common Law
Equity

(justice and fairness)
The Australian Court System
One of the key roles of the courts is to resolve legal disputes. In
Australia in both Federal and State and territory jurisdictions,
the courts are organised in a hierarchy – a ranking order. This
means that there are different levels of courts, each which hear
and determine particular cases. The courts lower in a particular
hierarchy hear and determine less serious cases and those higher
in the hierarchy deal with more serious or complicated cases.
The Australian Court Hierarchy
Full Court of the Federal Court
Federal Circuit Court
MAGISTRATES’ COURT
includes Children’s Court
Coroner’s Court
INFERIOR
COURTS
SUPERIOR
COURTS
INTERMEDIATE
COURTS
COUNTY COURT
SUPREME COURT
COURT OF APPEAL

VICTORIAN STATE
COURT
HIERARCHY
FEDERAL
COURT
HIERARCHY
HIGH COURT
OF AUSTRALIA
Full Court of the Family Court
Federal Court
Family Court

Reasons for a Court hierarchy
The court hierarchy is important for the following reasons:
Specialisation
Expertise
Time and money
Precedent
Appeals
Specialisation
A court hierarchy provides for the workload of courts to be
divided. Different courts within the Australian court system
have a specific jurisdiction and hear particular disputes. For
example, courts higher in the court hierarchy hear more serious
cases. Those lower in the hierarchy determine less serious
cases. Specialisation fosters efficiency and promotes equality as
like cases are decided similarly.
Expertise
The court hierarchy also provides for the more serious,
complicated and technical cases to be heard and determined by
experienced judges who possess expertise in the matters that
come before them. For example, as murder cases are always
heard in the Supreme Court, judges in this court will have
developed specialist skills and be able to understand the legal
technicalities and complexities associated with those cases. As
such, courts develop expertise in resolving the particular cases
within their jurisdiction.
Time and Money

A court hierarchy enables less serious cases to be settled
speedily and inexpensively. The likelihood of delays in hearing
a matter is reduced and the expertise available is allocated to
the appropriate court. The ‘clogging up’ of superior courts in
hearing minor matters is avoided.
Precedent
A court hierarchy is an essential part of the doctrine of
precedent (law making through courts), as courts lower in the
court hierarchy and bound to follow decisions of the more
superior courts. Without the ranking of courts, the doctrine of
precedent would not operate.
Appeals
The court hierarchy enables a party to appeal their decision and
have their matter heard a second time by a higher ranked court.
It would not be possible for an aggrieved party to question a
court’s decision if a hierarchy of courts did not exist. The
system of precedent is dependent on appeals from courts lower
in the hierarchy. Precedents would not be established if there
was no opportunity to appeal against a determination of a lower
court.
Jurisdiction
Each court has its own jurisdiction. The term ‘jurisdiction’
refers to the extent of the power of the various courts to hear
cases. Most courts have jurisdiction to hear either criminal or
civil matters. As previously explained, criminal matters involve
offences against society and involve the State and the accused
person. Civil cases involve disputes between individuals where
one sues another claiming their rights have been violated.
Some courts only have original jurisdiction. This means they

can only hear cases for the first time, and do not hear cases on
appeal. An appeal means a party can take a matter to a higher
court to reconsider the decision of a lower court. More superior
courts in the hierarchy have appellate jurisdiction. This means
they have the authority to hear cases on appeal.
State courts hear cases concerning state law, while the
jurisdiction of Federal courts relates to cases involving federal
law, as determined by the Commonwealth Constitution.
Jurisdiction
The extent of authority a court has to hear and determine
particular disputes
Original jurisdiction
The extent of authority a court has to hear and determine a
matter for the first time
Appellate jurisdiction
The extent of authority a court has to hear and determine a
matter for the second time on appeal
Criminal jurisdiction
The extent of authority a court has to hear and determine a case
brought by the state accusing the defendant of the commission
of a crime
Civil jurisdiction
The extent of authority a court has to hear and determine
noncriminal legal matters
The Victorian Court Hierarchy
The Victorian Court hierarchy comprises of three levels of
courts, extending from the Magistrates’ Court (the lowest court
in the state hierarchy) to the Court of Appeal (the highest court
in the state hierarchy). Appeals can be made from the Victorian
Court of Appeal to the High Court. As such, the High Court can
be considered part of the Victorian court hierarchy.

The Magistrates’ Court
MAGISTRATES’ COURT
Including the following divisions:
COUNTY COURT
SUPREME COURT
COURT OF APPEAL
CORONER’S COURT
INFRINGEMENT
COURT
DRUG
COURT
CHILDREN’S COURT
KOORI
COURT
The Magistrates’ Court is the lowest court (inferior court) in the
state court hierarchy. It has original jurisdiction only and can
hear minor criminal and civil matters. It has no appellate
jurisdiction as it is located at the bottom of the court hierarchy.
A jury is never present in the Magistrates’ court.
Criminal Jurisdiction
In its criminal jurisdiction the Magistrates’ Court hears
summary offences. These are minor criminal offences and
include traffic offences, serving liquor to minors, minor assaults
and vandalism. The Magistrates’ Court also has jurisdiction to
hear and determine some indictable offences summarily. An
example is theft of less than $100,000. This means that the
defendant could choose to have his or her case heard in the
magistrates’ Court instead of the matter being heard in the
County or Supreme Courts before a judge. As previously
explained there are reasons an individual may choose this
option. These reasons include the lower costs, the less severe
penalties and the speedier resolution of the matter.

The Magistrates’ Court in its criminal jurisdiction also conducts
committal proceedings for more serious indictable offences that
must be finally determined in the County or Supreme Courts. A
committal proceeding is a hearing to determine whether there is
sufficient evidence against the defendant to both warrant a trial
and support a conviction in a higher court. (Note, a discussion
has commenced at government level which will investigate
whether committals might be abolished).
Civil Jurisdiction
In its civil jurisdiction, the Magistrates’ Court hears minor civil
disputes involving claims of up to $100,000. Civil cases
involving claims of less than $10,000 are referred to arbitration.
Arbitration involves a third party listening to both parties to a
dispute and making a decision in a more informal setting than a
court room.
Specialist Magistrates Courts
The Children’s Court and the Coroners’ Court are two specialist
branches of the Magistrates’ Court.
The Children’s Court
The Children’s Court hears criminal offences with the exception
of murder against minors (those under the age of 18). This court
also has jurisdiction to hear welfare matters involving minors.
The Coroner’s Court
The Coroner’s Court investigates unexpected deaths, those
deaths that cannot be explained and those of an unnatural or
violent nature. The role of the coroner is to determine the cause
of death. The coroner also investigates unexplained fires that
involve death, serious injury or significant damage to property
and make recommendations.
There are several other specialist Magistrates’ courts which deal

with specific matters. These courts are the Drug Court, the
Koori Court and the Infringement Court.
The Drug Court
The Drug Court which is located in Dandenong, deals with
those offenders who have a drug or alcohol related problem. It
aims to commit such offenders who have pleaded guilty to a
crime which is punishable by imprisonment and which was
committed whilst the offender was under the influence of drugs
or to support a drug habit to supervised rehabilitation programs.
The aim of these programs is to assist in the treatment of the
offender. The court may choose to suspend a sentence imposed
on the defendant to enable appropriate treatment of the
offender. The court may impose particular conditions upon the
offender. Those offenders who are unable to overcome their
drug or alcohol dependency and breach the conditions imposed
by the court may ultimately be required to appear before the
traditional courts for sentencing.
The Koori Court
Established in 2004, the Koori Court of Victoria hears criminal
cases against those of Koori descent aged between 10-17 years.
Persons involved in the court process are of Koori descent and
include a Koori Elder who may inform the court on aboriginal
cultural issues. A justice worker of aboriginal background may
also assist the Magistrate with case management. Hearings are
conducted informally in an attempt to encourage participation
by the aboriginal people in the court process. A Magistrate sits
in this court and has the same sentencing options as those
available in the Magistrates’ Court
The Infringement Court
As the name suggests the function of the Infringements Court is
to handle the processing and enforcement of infringement
notices and penalties. Examples include parking and other ‘on
the spot’ fines. Infringement Registrars sit in these courts and
make decisions on matters before them. Determinations are

made without a hearing being conducted.
The County Court
The County Court is the intermediate court in the state court
hierarchy being positioned above the Magistrates Court. It has
both criminal and civil jurisdiction and can hear criminal
appeals from the Magistrates’ Court.
The County Court hears the majority of serious indictable
offences including rape, culpable driving, drug trafficking and
serious assaults. These offences are ordered to trial in the
County Court by a magistrate upon the conclusion of a
committal hearing and the finding of sufficient weight to
support a conviction as referred to earlier.
Civil Jurisdiction
In its civil jurisdiction, the County Court in Victoria hears
disputes for non-personal injury and personal injury claims of
an unlimited amount.
Appellate Jurisdiction
The County Court can hear appeals in relation to criminal
matters from the Magistrates’ Court against a summary
conviction or sentence. This Court cannot hear civil appeals,
unless stipulated under a specific act.
In criminal cases a jury of 12 is compulsory when the accused
pleads ‘not guilty.’ In civil cases a jury of 6 is optional.
The Supreme Court
The Supreme Court is at the peak of the Victorian state
hierarchy. As such, it is referred to as a superior court.

In its criminal jurisdiction the Supreme Court hears the most
serious indictable offences. These are cases involving treason,
murder, attempted murder, certain conspiracies and corporate
offences.
Civil Jurisdiction
In its original jurisdiction, when hearing civil matters, the
Supreme Court hears claims for an unlimited amount of
damages.
The Supreme Court can hear civil and criminal appeals on
points of law from the Magistrates’ Court.
In criminal matters a jury of 12 will hear and determine the
outcome when the plea is ‘not guilty.’ In civil cases a jury of 6
is optional.
The Court of Appeal
The Court of Appeal hears criminal appeals from the County or
Supreme Courts on a point of law, conviction or severity or
leniency of a sentence. It also hears civil appeals from the
County or Supreme Court on a point of law, question of fact, or
amount of damages awarded.
The Court of Appeal has no original jurisdiction.
Three justices preside over civil cases in the Court of Appeal
and 3-5 justices in criminal matters.
The Federal Court Hierarchy
At the apex of the Federal court hierarchy is the High Court of
Australia. Apart from this court there are three other Federal
courts. These are the Federal Court, the Family Court and the

Federal Magistrates Court.
FEDERAL CIRCUIT COURT
HIGH COURT OF AUSTRALIA
FAMILY
COURT
FEDERAL
COURT
The Federal CIRCUIT Court
Previously known as the Federal Magistrates’ Court, the Federal
Circuit Court was established by the Federal Court of Australia
Act 1999 (Cth), this court was created to provide a simple,
speedier, cheaper and more informal alternative to the Federal
and Family Courts. It was also intended that this court alleviate
the superior Federal courts of their heavy workload.
The Federal Circuit court has jurisdiction to hear less complex
cases which are within the jurisdiction of the Federal Court and
Family Court. These cases include straightforward divorce
applications, matters involving child contact arrangements and
the division of family assets upon the dissolution of marriage. It
also hears and determines applications for bankruptcy and cases
involving unlawful discrimination, consumer protection law,

migration and copyright.
The Federal Circuit Court has no appellate jurisdiction. A single
magistrate hears and determines matters in this court.
The Federal Court
The Federal Court of Australia was established by the passage
of the Federal Court of Australia Act 1976 (Cth).
Original Jurisdiction
In its original jurisdiction the Federal Court hears disputes
relating to Commonwealth law. Such disputes include
bankruptcy matters and matters dealing with income tax,
intellectual property, consumer protection and workplace
relations.
One justice presides over the original jurisdiction of this court.
There is no jury.
The Full Court of the Federal Court hears appeals from the
decisions of single justices of the Federal Court. The court can
also hear appeals on Federal matters from the State Supreme
Courts and Territories and from the Administrative Appeals
Tribunal.
Three justices sit in the appellate jurisdiction of this court.
The Family Court
The Family Court of Australia was created in 1976 with the
passing of the Family Law Act 1975 (Cth).
The Family Court has original jurisdiction to hear family

matters including divorce, residence of children, maintenance
for spouse and children and property disputes.
One justice presides in this court.
The Full Court of the Family Court also has jurisdiction to hear
appeals from its original jurisdiction.
** Students should note that there is a plan to merge the
operations of the Family Court with the Federal Circuit Court,
but no firm date has been fixed as yet for this to occur.
The High Court
The Commonwealth of Australia Constitution Act 1900 (The
Constitution), established the High Court of Australia at the
time of federation.
The High Court has an extensive original jurisdiction. It hears
constitutional matters involving either disputes between the
states, disputes between the Commonwealth and the states as
well as matters dealing with treaties where the Commonwealth
Parliament is a party.
A key role of this court is to hear cases involving interpretation
of the Constitution. In constitutional matters, a Full Bench, that
is seven Justices listen to and reach a determination on the issue
at hand.
The High Court is the ultimate court of appeal in Australia.
In its appellate jurisdiction the High Court can hear cases from
its original jurisdiction and from all State, Territory and Federal

courts.
When hearing appeals from its original jurisdiction one judge
sits in this court. Appeals from the Courts of Appeal are heard
by three to five Justices.
Part V—Powers of the Parliament
51 Legislative powers of the Parliament
The Parliament shall, subject to this Constitution, have power to
make laws for the peace, order, and good government of the
Commonwealth with respect to:
(i)trade and commerce with other countries, and among the
States;
(ii)taxation; but so as not to discriminate between States or
parts of States;
(iii)bounties on the production or export of goods, but so that
such bounties shall be uniform throughout the Commonwealth;
(iv)borrowing money on the public credit of the

Commonwealth;
(v)postal, telegraphic, telephonic, and other like services;
(vi)the naval and military defence of the Commonwealth and of
the several States, and the control of the forces to execute and
maintain the laws of the Commonwealth;
(vii)lighthouses, lightships, beacons and buoys;
(viii)astronomical and meteorological observations;
(ix)quarantine;
(x)fisheries in Australian waters beyond territorial limits;
(xi)census and statistics;
(xii)currency, coinage, and legal tender;
(xiii)banking, other than State banking; also State banking
extending beyond the limits of the State concerned, the
incorporation of banks, and the issue of paper money;
(xiv)insurance, other than State insurance; also State insurance
extending beyond the limits of the State concerned;
(xv)weights and measures;
(xvi)Bills of exchange and promissory notes;
(xvii)bankruptcy and insolvency;
(xviii)copyrights, patents of inventions and designs, and trade
marks;
(xix)naturalization and aliens;
(xx)foreign corporations, and trading or financial corporations
formed within the limits of the Commonwealth;
(xxi)marriage;
(xxii)divorce and matrimonial causes; and in relation thereto,
parental rights, and the custody and guardianship of infants;
(xxiii)invalid and oldage pensions;
(xxiiiA)the provision of maternity allowances, widows’
pensions, child endowment, unemployment, pharmaceutical,
sickness and hospital benefits, medical and dental services (but
not so as to authorize any form of civil conscription), benefits
to students and family allowances;
(xxiv)the service and execution throughout the Commonwealth
of the civil and criminal process and the judgments of the courts
of the States;

(xxv)the recognition throughout the Commonwealth of the laws,
the public Acts and records, and the judicial proceedings of the
States;
(xxvi)the people of any race, other than the aboriginal race in
any State, for whom it is deemed necessary to make special
laws;
(xxvii)immigration and emigration;
(xxviii)the influx of criminals;
(xxix)external affairs;
(xxx)the relations of the Commonwealth with the islands of the
Pacific;
(xxxi)the acquisition of property on just terms from any State or
person for any purpose in respect of which the Parliament has
power to make laws;
(xxxii)the control of railways with respect to transport for the
naval and military purposes of the Commonwealth;
(xxxiii)the acquisition, with the consent of a State, of any
railways of the State on terms arranged between the
Commonwealth and the State;
(xxxiv)railway construction and extension in any State with the
consent of that State;
(xxxv)conciliation and arbitration for the prevention and
settlement of industrial disputes extending beyond the limits of
any one State;
(xxxvi)matters in respect of which this Constitution makes
provision until the Parliament otherwise provides;
(xxxvii)matters referred to the Parliament of the Commonwealth
by the Parliament or Parliaments of any State or States, but so
that the law shall extend only to States by whose Parliaments
the matter is referred, or which afterwards adopt the law;
(xxxviii)the exercise within the Commonwealth, at the request
or with the concurrence of the Parliaments of all the States
directly concerned, of any power which can at the establishment
of this Constitution be exercised only by the Parliament of the
United Kingdom or by the Federal Council of Australasia;
(xxxix)matters incidental to the execution of any power vested

by this Constitution in the Parliament or in either House
thereof, or in the Government of the Commonwealth, or in the
Federal Judicature, or in any department or officer of the
Commonwealth.
Tribunals
In addition to the courts, tribunals play an important role in
resolving civil disputes. Tribunals are specialised bodies which
are established under legislation and are able to hear specific
types of matters.
Tribunals are able to determine how they deal with matters
within their jurisdiction. A number of tribunals prohibit parties
from being represented by lawyers who might otherwise be able
to advocate on behalf of those parties who are involved in a
dispute or claim.
Tribunals tend to operate under the inquisitorial system as
opposed to the adversary system which allows the person who is
hearing the dispute, normally referred to as a “member”, to
directly ask whatever questions he or she might feel is relevant
or appropriate to help determine the claim.
However, the tribunal system relies heavily upon mediation as a

means of resolving many of its disputes. Mediation is one of a
number of forms of “alternative dispute resolution” – also
known as “ADR”. The major types of ADR methods will be
discussed later in this manual.
Both Commonwealth and State governments have created a
number of tribunals to assist the civil courts in resolving the
ever increasing volume of claims and disputes.
Examples of Commonwealth (or Federal) tribunals include:
1. Administrative Appeals Tribunal – known as the “AAT”
2. Australian Competition Tribunal
3. Fair Work Australia
In Victoria, the Victorian Civil and Administrative Tribunal
(known as “VCAT”), contains a number of different divisions
namely Administrative, Civil, Human Rights and Residential
Tenancies divisions. Each of these Divisions include a number
of lists or types of matters which can be heard within that
division. The various lists have been established in a similar
manner to their Commonwealth counterparts. Examples of
Tribunal lists which are included within VCAT are as follows:
1. Domestic Building Works
2. Residential Tenancies
3. Guardianship and Administration
4. Planning and Environment
5. Civil Claims
6. Owners Corporations
7. Equal Opportunity
8. Racial and Religious Vilification
In addition, another tribunal has been established in Victoria,
the Victims of Crime Assistance Tribunal – known as
“VOCAT”, which determines application for compensation

made to it by victims of crime.
adversary system
The adversary system is the method used to administer justice
in Australia in both civil and criminal cases. This system is
based on the English common law system. It provides for two
opposing parties to argue their versions of the dispute before an
independent and impartial third party. The judge rules on
disputed points of procedure and evidence and may ask
questions to clarify the evidence of a witness, but otherwise
does not take an active part. At the conclusion of a trial or
hearing, the judge or the jury delivers a decision. The truth is
expected to emerge from the arguments presented by the parties.
Exercise 3
To gain a better understanding of the Adversary system watch
the DVD Adversary System and answer the following questions:
1. What is the adversary system?
2. Which countries use the adversary system of trial?
3. How did this system of trial develop?
4. What are the key features of the adversary system?
5. What is party control? Give examples of the types of
decisions a party must make.
6. In a civil matter, which party brings the case before a court?
7. What is the role of the judge in the adversary system?
8. Some forms of evidence are _____________while other forms

are ______________.
9. In Doug’s case, what evidence is deemed admissible by the
judge?
10. Give examples of evidence which are inadmissible.
11. The person who holds the burden of proof in civil disputes
is known as the _________________ and in criminal disputes is
the __________________.
12. What is the standard of proof required in a criminal case?
13. What is the standard of proof in a civil dispute?
14. Why is there a need for legal representation?
15. What countries use the inquisitorial system of trial?
LAW5745C [BSBLEG413A]
Identify and Apply the Legal Framework
Part 2
Advanced Diploma of Conveyancing
52
Part 2
Criminal and civil law
Criminal Law
Definition
Criminal Law involves offences against society, and can be

committed against a person, property, morality or the legal
system. Examples of crimes (criminal offences) include murder,
rape (offences against the person); theft, burglary, robbery
(offences against property); incest, bigamy, pornography
(offences against morality); and treason, perjury (offences
against the legal system).
To prove a crime has been committed, two elements must exist.
These elements are the actus reus (the guilty act) and the mens
rea (the guilty mind). At common law, the accused person must
have committed a criminal act and had a guilty mind, at the time
of the act’s commission, before she or he can be convicted.
Legislation
Both the Commonwealth and the States have enacted criminal
laws, which are based on the English common law.
State
Commonwealth
Crimes Act 1958 (Vic)
Criminal Procedure Act 2009 (Vic)
Drugs, Poisons and Controlled Substance Act 1981 (Vic)
Road Safety Act 1958 (Vic)
Sentencing Act 1991 (Vic)
Summary Offences Act 1966 (Vic)
Crimes Act 1915 (Cth)
Victorian state laws are the laws which directly affect most
citizens on a daily basis.
Classification of Crimes
In Victoria, criminal offences are classified by legislation into
the following:

6.4 summary offences
6.5 indictable offences
6.6 indictable offences triable summarily
Summary offences are less serious crimes that are heard before
a magistrate in a Magistrates’ Court. There is no jury present in
the hearing of such matters. Such a matter may also be heard in
the absence of the defendant. Examples of summary offences
include road traffic offences, offensive behaviour, damage to
property and minor assaults.
Indictable offences are serious criminal offences where an
accused person is entitled to have their trial heard in the
presence of a judge and jury. They are heard in either the
County or Supreme Courts. Such offences are brought to trial
only after a Magistrate conducting a committal proceeding in
the Magistrates Court, is satisfied that sufficient evidence exists
to warrant a conviction against the accused at a full trial.
Examples of indictable offences include murder, treason,
manslaughter, rape, kidnapping, culpable driving, and
blackmail.
Indictable offences that fall within section 28 and Schedule 2
Criminal Procedures Act [footnoteRef:1] may also be heard and
determined summarily, that is, by a magistrate in the
Magistrates’ Court, provided that the defendant consents and
the court agrees. The advantages of this process for an accused
person are that a conviction is likely to result in a less severe
penalty, and the case will be disposed of more quickly and
cheaply. [1: Criminal Procedures Act 2009 (Vic)
]
For example, where a defendant is charged with the indictable
offence of ‘without lawful excuse recklessly causes serious
injury’ the maximum period if heard on indictment is level 4

imprisonment (15 years). As the offence is listed in Schedule 2
it is capable of being dealt with summarily. In this event, the
maximum penalty that the defendant may receive is 2 years.
In Victoria a court hierarchy exists where criminal cases are
heard in particular courts according to the seriousness of the
alleged offence.
Magistrates Court
Summary offences and indictable offences triable summarily.
County Court
Indictable offences but of a less serious nature.
Supreme Court
Indictable offences. This is the only court which can conduct
trials for murder and treason.
Parties to the case
The parties, that is, the persons who are involved in legal
proceedings in an indictable criminal case are the State or
Crown (ie. the party representing the Government), and the
alleged criminal or defendant who is accused of the crime.
The lawyer or barrister arguing the Crown’s case is called the
prosecutor. The Director of Public Prosecutions (DPP) is
responsible for prosecuting (instituting and conducting) alleged
indictable offences under Victorian law in the Supreme and
County Courts.
The police prosecutor represents the Crown when prosecuting
the alleged offender in the Magistrates’ Court, ie in summary
proceedings.
Burden of proof
A fundamental principle of our legal system is that an accused

person is considered innocent until proven guilty. Whether the
offence is summary or indictable the onus (burden) of proving
that a crime has been committed rests with the prosecution.
Standard of proof
The standard of proof required in a criminal case is ‘beyond all
reasonable doubt’. Simply stated the prosecutor must try to
persuade or prove to the jury beyond reasonable doubt that the
defendant is guilty. If there is any reasonable doubt as to the
guilt or otherwise of the accused a decision of ‘not guilty’ must
be returned and the accused acquitted.
Jury
As mentioned before, a person who is charged with an
indictable offence is entitled to have their case tried ‘before a
jury of their peers’ that is, members of the community. It is the
jury who determines whether the facts of the case as presented
by the prosecution at the trial have proved beyond all
reasonable doubt that the accused has committed the offence
with which they have been charged.
Verdict
The jury must reach a unanimous verdict in cases involving
murder and treason. In all other cases, a majority verdict of 11
out of 12 is acceptable after 6 hours of deliberation. If either a
unanimous decision or majority verdict cannot be reached, then
a hung jury is declared. This entitles the accused to go free. The
accused will be brought to trial again at a later date as
determined by the Director of Public Prosecutions.
The role of the judge, apart from instructing the jury throughout
the conduct of the trial, is to impose an appropriate sanction
upon the accused if he or she has been convicted.

Where the case is a summary hearing, there is no jury, and
accordingly, the role of the Magistrate is to determine the guilt
or innocence of the accused person as well as to then impose the
appropriate sanction.
Aim
As a crime is an action which is viewed as something that is
harmful to society, the aim of criminal law is therefore to
protect members of society from being harmed. In doing so, this
will also achieve preservation of public law and order. As a
result, a criminal justice system has been created in our society
which includes a number of courts. The function of these courts
includes the power to punish or sanction those who commit
crimes against society, that is, against any member of the
community. These sanctions can take many and varied forms.
Types of criminal sanctions
The primary aim of the criminal law is punishment of the
offender for commission of a crime against society. The
punishment varies according to the crime committed. For
example, a fine may be imposed for a minor offence such as a
parking infringement and a term of imprisonment for the
commission of a serious indictable offence such as murder.
The various options that are available to a judge or magistrate
are set out in the Sentencing Act. They include:
1. Imprisonment. Statutory provisions prescribe the maximum
term of imprisonment that may be imposed in relation to a
particular offence.
2. A hospital security order. This involves the offender being
detained in an approved mental health service. Such an order
would only be appropriate in the case of an offender suffering
from a psychiatric illness.
3. A drug treatment order where the use of drugs has been an
important element in the offender’s criminal conduct. Such an

order can only be imposed by the Drug Court Division of the
Magistrates’ Court.
4. A community correction order. This involves the offender
being released on conditions prescribed by the court. The
conditions that can be imposed include performing unpaid
community work, attending an education program or undergoing
treatment.
5. In the case of a young offender (someone who at the time of
sentence is under 21) an order that he or she be detained in a
youth training centre or youth residential centre.
6. An order that the offender pay a fine.
7. An order for the release of the offender on the adjournment
of the hearing on conditions. The court may adjourn the final
determination of the matter for up to five years. It may impose
conditions on the offender such as that he or she be of good
behaviour in the meantime. If the offender observes the
conditions the charge is usually dismissed at the end of the
adjournment period and no conviction recorded.
8. An order for the discharge of the offender. A conviction is
recorded but no penalty is imposed.
a. An order for the dismissal of the charge for the offence.
Although the court is satisfied that the charge has been proved
it imposes no penalty and does not record a conviction.
A court may sometimes combine two or more types of sentence.
In some cases the court may impose a penalty but without
recording a conviction. An offender may be ordered to make
restitution or compensation to the victim.
In determining the appropriate sanction the judge or magistrate
should take into account a number of considerations. These
include deterrence of any would-be offenders and those
offenders who may otherwise contemplate committing the same
or a similar crime in the future; denunciation, that is
disapproval of the offenders action by imposing a sentence
demonstrating the courts disapproval; rehabilitation and reform
of the offender; and importantly the protection of the

community
Effect on offender
Offenders who are convicted of a crime will have particulars of
their charges and convictions included in their criminal record
which is maintained in Victoria by the Department of Justice.
These persons may suffer other legal consequences such as
disqualification from jury service, loss of right to vote in a
federal election and refusal of entry in a profession if their
conviction means they are not deemed to be a person of good
character.
As well as legal ramifications, conviction for a crime ordinarily
carries a social stigma. Consequences may include loss of
friends and social esteem.
Civil Law
Definition
Civil law is concerned with disputes between two parties. The
parties to a dispute may be private individuals, companies or
governments. The dispute ordinarily involves one party taking
action against another because their rights have been infringed
by the other party and physical, monetary and/or psychological
loss or damage has been suffered.
Common Areas of Civil Law[footnoteRef:2] [2: Law Institute
Victoria What Law is all about?
http://www.careers.liv.asn.au/content.asp?contentid=16 7
September 2010
]
Common areas of the civil law are outlined in the table below.
Administrative law*

Related to appropriateness of decisions made by government
regarding planning, social security and many other matters
Banking and finance
Transactional (financial activities within banks and financial
institutions) and non-transactional (advisory work regarding
banking and finance regulations)
Commercial law
Applies to the rights, relations and conduct of individuals and
businesses involved in commercial trade or transactions
Constitutional law
Related to the interpretation of laws and rights contained in the
Commonwealth and state constitutions.
Construction law
Regulation of construction and engineering activity in terms of
contractual negotiations and management of disputes.
Contract law
Regulation of the roles, relationships and obligations of parties
engaging in the negotiation of a legal agreement.
Corporation law
Governing the law of corporations whether as a business, virtual
or artificial person.
Employment law
[see labour law]
Energy and resources law
Regulating the environmental impact of development, in line
with national and international environmental law.
Family law
Regulation of human relationships and dealings (including
marriage, divorce, adoption).
Film and entertainment law
Dealing with the commercial issues attached to production,
finance and distribution of film/television.
Human rights law
A system of laws, both domestic and international which is
intended to promote human rights. Includes a number of treaties
which are intended to punish some violations of human rights

such as war crimes, crimes against humanity and genocide.
Insolvency litigation
Regulation of bankruptcy and debt recovery issues.
Intellectual property law
Related to patents, trademarks and copyright for intellectual
property.
International law
Governing negotiations, disputes and treaties between countries
Labour law
Regulation of industrial and workplace relations.
Law of succession
[see wills and estates]
Law of torts
Responds to cases of conflict between people and/or legal
entities and governs compensation for wrongful acts
(negligence, nuisance, defamation, trespass).
Native title
Concerns the legal rights and interests of Aboriginals and
Torres Strait Islanders. Involves traditional native l aws and
customs related to land and waters, as recognised by Australian
law.
Personal injury law
Related to workplace health and safety – also transport and
public liability claims.
Property law
Administers property purchases and sales, also leasing
mortgages.
Sports law
Regulations to the structure and management of sports entities
and participants.
Taxation law*
Regulation of the tax obligations for individuals and businesses.
Wills and estates
Concerns the distribution of property following death
(execution of wills, estate planning, etc.)

* Public Law. Criminal law is also included under this
classification.
Common Law
Unlike the majority of crimes in Victoria which are set out in
legislation, the relevant laws governing civil matters are based
primarily on the common law as determined by judges in
previous cases.
Parties to the case
The parties in a civil action are the plaintiff and the defendant.
The plaintiff feels wronged and sues, that is, instigates legal
proceedings against the defendant seeking a civil remedy. The
plaintiff and defendant in a civil matter together are referred to
as the litigants. The process is known as litigation.
Burden of proof
As with the criminal law, the burden of proof in civil matters
rests with the party instituting legal action. In civil cases this is
the plaintiff who must prove that he or she has been wronged by
the defendant.
Standard of proof
The standard of proof in a civil case is ‘on the balance of
probabilities’. This means that to win the case the plainti ff’s
version of the facts must be more likely to be true than not.
Simply stated there must be a greater than 50% chance or
probability that the defendant wronged the plaintiff. This is a
less stringent standard than that which must be proved in a
criminal case.
Jury
A jury is optional in civil cases heard in the Supreme and

County Courts. This means that either party is free to choose to
have a jury hear and determine their case. A civil jury in the
Supreme Court and County Courts ordinarily comprises of six
jurors. There may however, be up to eight jurors empanelled in
lengthy civil cases.
Verdict
When present in civil cases, the role of the jury is to reach a
finding either in favour of the plaintiff or defendant. A civil
jury must also determine the amount of damages to be awarded
when a decision in favour of the plaintiff has been made. A
majority decision of five to one will be accepted if a unanimous
decision cannot be reached.
In the absence of a jury, the judge will grant a remedy to the
successful party and order the unsuccessful party to pay the
other party’s legal costs. This is known as a judgement.
Aim
The civil law aims to regulate relations between parties and
protect the rights of individuals. Importantly, the civil law
provides an injured party with an opportunity to issue legal
proceedings to seek an appropriate remedy with the aim of
restoring the wronged party to his or her original position
before the wrong was comitted.
Civil Remedies
Monetary compensation or damages is the most common remedy
sought in civil cases. It is the payment of money to a wronged
party for loss, injury or suffering. Other remedies available to
an aggrieved party in civil matters include an order for specific
performance and an injunction. An order for specific
performance is a court order that directs a party to do that
which he or she agreed to do under a contract. An injunction is

a court order which generally prohibits certain action by another
person.
Effects on Defendant
In contrast to the criminal law, there is generally no stigma
attached to being a defendant in a civil case. If an action is
resolved in the plaintiff’s favour a final judgment is entered,
which is usually a monetary award. If the defendant fails to pay,
the court has various options for enforcing judgment.
Overlap: Civil And Criminal Law
Sometimes an incident can result in both a civil and criminal
action. For example, car accidents may lead to criminal charges
for dangerous or drink driving, with the aim of punishing the
offender as well as civil actions commenced to obtain
compensation for personal injuries sustained and/or damage to
the vehicle sustained in that same incident.
Read the case study below and answer the following questions:
Exercise 4
Read the following case study and answer the following
questions:
BOGGABILLA BUS BEDLAM
Bernie Brown was a bus driver for the BoggaBilla Bus Co. Pty
Ltd (BoggaBilla Bus Co). He had driven for this company for
many years and on the day in question, he was working an
afternoon /evening shift. He was a very experienced driver, one
of the best employed by BoggaBilla.
However, on this particular day he did two things which he
should not have done:

1. Before going on duty he had a number of alcoholic drinks
(bus drivers are required to have 0 level alcohol reading) – it
was his birthday and he had been out for lunch with family and
friends since he was working later on that day.
2. Victorian Transport regulations lay down that the maximum
number of passengers to be carried as 35. Bernie allowed 40
passengers on his bus that evening. It had started raining and he
felt sorry for some passengers who might have been left
stranded if he hadn’t allowed them on.
Thomas Green was a passenger on the bus. Thomas was sitting
on the bus making last minute amendments to a presentation on
his laptop computer for an important business meeting the next
morning. If the meeting was successful, it could mean a million
dollar contract for Thomas.
The roads were wet and slippery. Bernie Brown did not see a
car which was being driven by Flo Adams until just before
impact when the car and bus collided. This led to a number of
unfortunate and significant consequences.
Firstly, it fractured the radiator of the bus, making it
undriveable. The cost to repair the bus was $30,000.00.
The cost of repairs to Flo Adams’ car was in excess of
$15,000.00. The injuries which Flo sustained were significant,
she was hospitalised for over two (2) weeks and had a number
of operations for her badly broken hip and ankle. She was
forced to go into rehab for another 6 weeks before coming
home. Flo faces ongoing treatment especially intensive
physiotherapy and was off work for 4 months. As a result of the
accident she will have an ongoing impairment of more than 30
per cent. Her lawyers have told her that her claim will exceed
$100,000.00.

When the bus and car collided, the laptop computer that Thomas
Green was working on fell to the floor and was rendered
completely inoperable. Thomas was unable to demonstrate his
new software development at the meeting the next morning. As
a result, the deal which Thomas was intending to clinch fell
through, and he lost the opportunity to finalise his million
dollar contract.
Several other (unhurt) passengers complained bitterly because
the bus should have connected with the last train home and now
they would have to find alternative transport. The rain didn’t
help either!!!
This case study gives rise to a number of different types of
disputes. See how many different types of disputes – civil and
criminal you can find. For each dispute which you have
identified answer the following questions:
1. Is this dispute a civil or criminal dispute?
2. What is the nature of the dispute?
3. What are the names of the parties to each dispute?
4. Identify the party who has the burden of proof in each
dispute?
5. Identify the standard of proof in each dispute?
6. Identify the jurisdiction of the court most likely to hear each
dispute?
Criminal Law Procedure

The steps that must be undertaken in the prosecution of an
indictable offence as opposed to a summary offence are
significantly greater, due to the more serious consequences that
flow for the accused person should he or she be convicted of the
offence with which they have been charged.
It should also be remembered that there is provision in our legal
system for the detention of persons who have been charged with
certain indictable offences such as murder to be held in custody
at the Remand Centre in Melbourne, from the time when they
are charged until the criminal trial takes place.
This can occur in circumstances such as where the accused is
considered to be likely to commit further offences or where he
or she may interfere with witnesses before the trial is to take
place.
In most situations however, a person who has been charged but
has not yet had their case dealt with by the courts is released
from custody either with or without bail, which may be forfeited
in the event of non appearance on the day of the hearing or trial.
The Criminal Procedure Act[footnoteRef:3] has been enacted to
streamline the procedures for bringing both summary and
indictable cases to hearing. The main purpose of this Act is to
ensure that throughout the time between when a person is
charged with an offence or number of offences, there is an
appropriate level of disclosure to the other parties involved in
these proceedings at the earliest possible stage in the
proceedings. [3: Criminal Procedure Act 2009 (Vic)
]
In the past the legal profession has been criticised for;
1. not being properly prepared for cases when the final hearing
takes place, or

2. alternatively ambushing the other party by surprise
documents or disclosures at the hearing.
Frequently this has led to delays or adjournments of cases,
meaning a waste of court time and money or in more serious
cases, an adverse decision against a party involved in the
proceedings
For this reason, case conferences, filing hearings and mention
hearings are convened by the relevant court to ensure that there
is full and appropriate disclosure of all material information and
documentation (except those subject to professional privilege)
at the appropriate time.
It is important therefore to consider in this context the
differences in procedure between indictable and summary cases.
Procedure for dealing with summary offences/indictable
offences triable summarily
The process for dealing with summary offences and indictable
offences triable summarily are detailed in the following
flowchart.
SUMMARY OFFENCES FLOWCHART[footnoteRef:4] [4: The
College of Law, Victorian Practice Papers Vol 2 (Lexis Nexis
Butterworths, 2009) p965
]
Once the accused has been served with the charge sheet or
charge sheet and summons, it is shortly followed by the service
of a ‘preliminary brief’ by the prosecution giving details of the
case against the accused, unless it is served at the same time as
the charge sheet.

The preliminary brief is usually prepared in a standard form.
Section 37 Criminal Procedure Act[footnoteRef:5] sets out what
is required in the preliminary brief and will usually include: [5:
Criminal Procedure Act 2009 (Vic) s37]
A summary of the prosecution case setting out the facts on
which the informant relies
1. List of witnesses
2. Signed or unsigned statements
3. List of exhibits
4. Where relevant, any certificates produced in relation to status
of driver’s licences or vehicle registration
5. Where relevant, any certificate to the testing of drugs,
firearms etc
6. Printout listing any prior convictions
7. Copies of restitution compensation or forfeiture
orders.[footnoteRef:6] [6: The College of Law, Victorian
Practice Papers Vol 2 (Lexis Nexis Butterworths, 2009) p 954
]
The court mention date is the first step in the court process
when the accused will advise the court of either a guilty or not
guilty plea. This is possible because the accused will have been
served with all necessary information about the alleged offences
in the preliminary brief.
A plea of guilty will lead to the early disposal of the case,
possibly on the mention date otherwise at a date in the near
future. It will also most likely lead to a lighter sentence being
imposed.
An adjournment might occur if the accused is seeking to provide
the court with additional material that will be of assistance to
the court at the time of sentence. This could include medical

reports, letters from employers, character evidence. Details of
prior convictions are also made available to the court at the time
of sentencing.
In the event of a not guilty plea, the case will be adjourned from
the mention hearing to a later court hearing date, but not to a
final hearing. Rather, the case, in summary offences, goes to a
summary case conference, not unlike the process that is used at
a committal mention in an indictable offence. If the issues
between the prosecution and the accused are not resolved at the
summary case conference, then the case will proceed to a
summary hearing.
The same enquiries are made of the parties and/or their
representatives as will be seen in indictable offences concerning
the number of witnesses to be called at the final hearing
together with an informed estimate of the time that each might
take to give their evidence. Of special interest to the court is
any information as to whether there might be a change in plea
by the accused.
When all enquiries have been resolved to the satisfaction of the
court, the case is allocated a hearing date. At the hearing, the
accused person will either be found guilty or not guilty by the
presiding Magistrate. There are no juries in a summary hearing
and most cases are dealt in less than one day.
There are fewer steps involved in the summary hearing
procedure than in indictable matters and even with a guilty plea,
some cases can be disposed of in a matter of months, not years,
as is the case with many indictable offence cases.
Procedure for dealing with Indictable Offences
Preliminary Steps
The procedure for prosecuting an indictable offence is by

definition, a more formal process with the criminal trial being
held in either the County or Supreme Court depending upon the
nature of the charges. However, every indictable offence is first
dealt with in the Magistrates Court through the committal
process.
The importance of the committal hearing should never be
underestimated in terms of its role in criminal procedure. The
committal hearing takes place in a Magistrates’ Court where the
accused has the opportunity to test the prosecution case to the
point of cross examination of the prosecution witnesses.
However, it will only be held once the required and now
enhanced preliminary procedures have been concluded to the
satisfaction of the court. There is an obligation on the
prosecution to ensure complete disclosure and exchange of
information with the representatives of the accused.
Filing Hearing
The filing hearing is conducted to set dates for the service upon
the accused of the ‘hand up brief’ by the prosecution. The hand
up brief contains in effect the entire case which is being
prosecuted against the accused. It will include all witness
statements, medical reports and assessments together with the
results of any profiling, including DNA, and blood tests and any
other material to be used in evidence. This is to be served
before the committal mention hearing to enable the lawyers for
the accused to review all evidence against their client before
this next hearing takes place.
At the filing hearing the court will fix a date for the committal
mention hearing.
Committal Mention Hearing

At this hearing, the Magistrate wishes to hear from the legal
representatives about the progress of the case. It is expected the
hand up brief will be served by the prosecution. As an example,
it might question the representatives about the commencement
or progress of negotiations over any changes to the number of
charges to be tried or a possible plea of guilty to some or even
all of the charges.
Occasionally the hand up brief is not complete, and the
Committal mention may need to be adjourned. The Committal
mention could also be adjourned as the accused may have not
engaged legal representation or commenced negotiations as to
the appropriate charges.
The court also has the power to order the parties to attend a
Committal Case Conference, where for instance it feels that
there is scope for some progress in relation to the negotiation of
the charges. The Magistrate plays an active role in the
discussions.
If a matter is resolved a hand up brief committal is conducted
where the accused pleads guilty and is committed to the County
Court or Supreme Court for a plea hearing.
If the matters cannot be resolved the defence is required to file
a Form 32 which will detail the witnesses the defence seeks to
cross examine in the Committal hearing and the reasons why.
The defence also can request copies of documents referenced in
the ‘hand up brief’ which have not been provided.
Contested Committal Hearing
If the matter cannot be resolved at the Committal Mention stage
a contested committal hearing is fixed and witnesses may be
cross examined by the accused’s legal representatives.

Committal proceedings are generally not overly lengthy
proceedings – although they could run for weeks in complicated
cases involving cross examination of a number of witnesses.
The actual finding that a Magistrate, at the conclusion of a
committal, is required to make is “whether the evidence before
the court is of sufficient weight to support a conviction”.
The contested committal proceeding is a vital stage as it enables
both the prosecution and the representatives for the accused to
test how strong the evidence supporting their case might be. The
additional bonus for the accused is that if a Magistrate feels
there is “insufficient weight” in the prosecution evidence
presented to the court to support a conviction, the case against
the accused will be dismissed.
Note: that there are now suggestions that the committal process
may eventually be removed from the Criminal procedure
process.
However, if the case is ordered to proceed to trial, this will be
heard in either the County Court or the Supreme Court
depending upon the severity of the offences which are alleged
to have been committed.
There are again many rules and directions from the court which
are in place to ensure that when the case reaches trial. The
procedures are slightly different in each court & every possible
avenue for negotiation or plea bargain will be explored during
this time.
Further, all documentation and evidence to be led as evidence at
the final hearing by one party is to be served on the other party
and will not come as a surprise at the hearing.
In addition, the prosecution must serve the representatives for
the accused with a document known as an ‘Indictment’,

previously known as a presentment. This document sets out
details of each charge alleged against the accused. The charges
in the indictment may be different to the original charges filed
by the police.
The Supreme Court for instance, will conduct a Post Committal
Directions Hearing within a matter of a few days of a person
having been committed to stand trial in the Magistrates Court.
The Judicial Registrar will conduct this hearing and make
orders that several preliminary steps take place before a
Directions Hearing within 13 weeks of this hearing before a
Judge. There is also a final Directions Hearing to be conducted
to make sure that all orders have been complied with, which
occurs approximately 6 weeks before the trial date.
As part of this final check - up, the court will want information
from the parties about such issues as how many witnesses are to
be called, how long the presentation of their case might take
and whether there has been or is likely to be further
negotiations or discussions between the parties about the
conduct of the trial or the charges to be proceeded with against
the accused.
Throughout this process, the court will encourage discussions
between the parties in the event that a plea bargain might be
arranged to prevent a trial of the alleged offences taking place.
Exercise 5
This is a continuation of the Case Study on page 52 of the
manual. Please read the additional facts and then answer the
following questions:
TERRIBLE DAY FOR BERNIE
Anne Jones was one of the last passengers that squeezed onto

the bus that wet evening. As there were no seats left she stood
in the centre aisle of the bus hanging on to a seat. When the bus
hit Flo’s car, Anne was thrown from the bus and tragically died
at the scene of the accident.
The police had attended the accident and Bernie was given a
preliminary breath test. The preliminary breath test indicated
that Bernie had alcohol in his bloodstream as his blood alcohol
content was in excess of 0.00. Bernie then accompanied the
police to the police station where he undertook a further breath
analysis. Bernie’s alcohol reading (BAC), was recorded at 0.02.
The police have charged Bernie with exceeding 0.0 alcohol limit
and dangerous driving causing death.
· Following these charges being laid against him, Bernie was
granted ‘bail’ until his case was heard in Court. Briefly explai n
what is Bail and what is a surety?
· What is the name of the document which Bernie will receive at
the commencement of this prosecution?
· What does the expression indictable offence mean?
· Bernie must first appear on a mention date at the local
Magistrates court?
What is the purpose of a mention date in criminal proceedings?
· The Magistrates court conduct one further hearing at which
time some of the evidence is tested. Identify the name of these
proceedings and what are the two (2) possible outcomes of these
proceedings – hint- - the answer is not “guilty” or “not guilty”.
· Bernie did a bit of law once – he has heard of the expression,”
indictable offences triable summarily” Tell Bernie what it

Identify and Apply the Legal Framework Part 1 ConveyancingSe

Identify and Apply the Legal Framework Part 1 ConveyancingSe

Empfohlen

Empfohlen

Weitere ähnliche Inhalte

Ähnlich wie Identify and Apply the Legal Framework Part 1 ConveyancingSe

Ähnlich wie Identify and Apply the Legal Framework Part 1 ConveyancingSe (20)

Mehr von LizbethQuinonez813

Mehr von LizbethQuinonez813 (20)

Kürzlich hochgeladen

Kürzlich hochgeladen (20)

Identify and Apply the Legal Framework Part 1 ConveyancingSe