The purpose of laws and the justice system

The law is a set of officially recognised rules that govern how individuals and groups act and interrelate. If these rules are broken, action can be taken to enforce them.

Laws ensure that people and organisations, including the government, are not able to use power, money, or strength to take advantage of others or make things better for themselves.

All societies in the world have a legal system of some kind. Laws allow communities to work effectively because they ensure that everyone understands what is expected of them as a member of the community (their obligations) and what they can expect of others (their rights).

In Australia, First Nations communities were regulated by complex systems of law prior to colonisation. These systems of law established the rights and obligations owed between people and between people and country.

The modern Australian legal system developed from the legal system of Britain, which was imposed in Australia with colonisation. In 1901, the Australian Constitution established the Commonwealth of Australia through the federation of the independent colonies. Many hallmarks of the British legal system are embedded in our modern legal system, such as the separation of powers, the rule of law, and parliamentary sovereignty.

Law courts are an essential component of the justice system. Courts are the place where formal judgments or decisions about the law are made and disputes between parties are resolved. There are two types of laws the courts enforce: criminal laws and civil laws. When judges and magistrates apply these laws, they are both resolving the individual case before them and contributing to the system of laws that apply to everyone in the community.

The community’s understanding of the justice system is shaped by many factors. Individuals may experience legal issues or interact with different elements of the justice system, such as the police or the courts. Members of the community can also be summonsed for jury duty and become part of the panel of jurors who decide the verdict in a criminal trial.

Our understanding of the justice system is also shaped by the media. Journalists observe court proceedings and report on the work of the courts in newspaper articles or news bulletins. This helps the public to better understand the law and what is happening in the courts. It also ensures the courts remain transparent and accountable to the community.

The court hierarchy

Australia has many different courts. Each court has different roles, responsibilities, and levels of authority. The Courts in the ACT and Australia arranged in a hierarchy, or in layers of power.

Which court a case goes to depends on the laws being applied in the case and the severity or complexity of the case. Generally, the more serious cases go to the higher courts. The reasons behind such a hierarchy are that it allows courts to specialise their procedures and staff and because it creates an appeal system.

In the ACT there are two levels of court that apply Territory laws: the Magistrates Court and the Supreme Court. Both courts hear criminal matters and civil matters.

In the ACT Magistrates Court, a magistrate presides over the court. There are no juries in this court. Special Magistrates Courts exist in specific areas such as the Coroner’s Court and the Childrens Court. Appeals from decisions of the Magistrates Court and the specialist courts are heard by a single judge of the ACT Supreme Court.

The ACT Supreme Court also hears more serious criminal cases and decides civil cases where at least $250,000 is sought by the plaintiff. A judge presides over the Supreme Court and juries are often used in criminal cases. Appeals against a decision of a single judge of the Supreme Court might be heard by a panel of three judges sitting as the ACT Court of Appeal. The judge whose decision is being appealed cannot hear the appeal.

The court hierarchy determines how precedent is applied. Lower courts must follow decisions made by higher courts within the same jurisdiction. Decisions of courts in different jurisdictions (for example, different States) can be persuasive but do not need to be followed. Decisions of overseas courts are not binding in Australia but may be looked at for guidance.

The High Court is the highest court in Australia. It does not need to follow its own previous decision, but generally does unless there is good reason not to.

The ACT Courts and the rule of law

At its most basic, the rule of law is the idea that the law applies to everyone equally and fairly. The rule of law also says that laws should be fair and clear, so that people are willing and able to obey them.

The rule of law means that everyone, including individuals, groups, corporations and the government, is bound by the law. That is, even people who make the laws and enforce the laws must follow them. This includes our Prime Minister, our government departments, our judges and our police.

The rule of law also means that laws must be written so that they are clear and so that everyone can understand them. They should be written in a way so that they can be followed and enforced.

There are many key legal principles of our legal system that are essential to upholding the rule of law, which requires that laws are administered justly and fairly. These include the presumption of innocence in criminal cases, the right to a fair trial, and an impartial judge.

Criminal cases

The criminal justice process in the ACT has three stages:  the investigative stage (police and prosecution authorities), the adjudicative stage (the Courts), and the correctional stage (rehabilitation programs, prison, ACT Corrective Services, and probation and parole services).

The police are responsible for investigating conduct that might constitute a crime. The police investigate situations and gather evidence about what occurred. When the police have enough evidence that a crime occurred, they arrest the suspect and charge them with an offence.

The police and the courts can decide whether a person accused of a crime should be granted bail (released to the community) or remanded in custody (kept in prison) until the court case has been decided.

After a person has been charged with an offence, the police hand the case over to the Office of the Director of Public Prosecutions of the ACT (the DPP). The DPP are lawyers who are responsible for prosecuting the crime through the courts. The DPP represent the community of the ACT in the case. That is because criminal offending is considered to be an act that harms the community as a whole and breaches community standards.

All criminal matters start in the ACT Magistrates Court. More serious matters may be transferred to the Supreme Court. Usually these are cases where the maximum penalty for the crime is at least five years’ imprisonment.

The person charged with an offence (known as the accused) can chose whether to plead guilty or not guilty when the matter goes before the court. If the accused pleads guilty, then there is no trial and they will be sentenced. If they plead not guilty, then the matter will continue either to a hearing before a magistrate, or a trial before a judge or judge and jury.

At the hearing or trial, the prosecutor has to present evidence to the magistrate, judge or jury to prove that the accused is guilty of the crime beyond a reasonable doubt. The evidence may be a witness or the victim giving evidence in court, documents or objects collected by police, reports by experts such as an autopsy, and photo and video evidence. The prosecution cannot ‘hide’ evidence and must present everything the investigation has uncovered to the court, even it if harms their case.

The accused is presumed to be innocent and has a right to remain silent throughout the entire case. In most serious criminal cases, the accused will be represented by a defence lawyer. Access to a lawyer is considered very important to ensuring that the accused receives a fair trial.

At the end of the hearing or trial, the verdict is delivered: guilty or not guilty. If the accused is found guilty, then the matter will continue to sentence. If the accused is found not guilty, the matter is finished, and they are free to leave the court.

Sentencing

The judges and magistrates of the ACT Courts are responsible for sentencing offenders – people who have been found guilty of a crime. When sentencing, a court decides the consequence that the offender must face for what they have done.

A sentence can only be imposed when a court finds a person guilty of a criminal offence.

If a person pleads not guilty, the case proceeds to a trial, usually before a judge and jury in the Supreme Court, or summary hearing before a magistrate in the Magistrates Court, to determine whether the person is guilty or not guilty. If the jury or magistrate finds the person guilty, then the matter will go to a sentencing hearing.

If a person pleads guilty at any time (including in the middle of a trial or hearing), the matter will proceed straight to a sentencing hearing.

At the sentencing hearing, the judge or magistrate will hear from the prosecution and the defence about what sentence is appropriate. Sentencing is a complex balancing act and is focused on the criminality of the offender’s actions. It is not about revenge or ‘an eye for an eye’. The judge or magistrate must look at all the features of the case, the circumstances of the offender, and the purposes of sentencing when deciding the sentence.

The type and the seriousness of the offence that a person is charged with determines the court in which the case is heard and then sentenced.

A person guilty of an indictable offence (a serious offence) will be sentenced by a judge in the Supreme Court of the ACT. Some examples of indictable offences are murder, manslaughter, and aggravated burglary.

A person guilty of a summary offence (a less serious offence) will be sentenced by a magistrate in the Magistrates Court of the ACT. Some examples of summary offences are minor theft, drink driving and drug possession.

Civil cases

Civil law is the body of law that sets out the rights and responsibilities of individuals, groups, and organisations. Civil law includes laws relating to duty of care, contracts, accidents, money and property as well as many other issues. Civil law regulates private disputes when someone believes their rights have been infringed.

An individual (which includes a corporation or the government) can make a legal claim under civil law against another person who they believe has infringed their rights. Civil law generally aims to right the wrongs done by compensating, or paying for, the person’s loss. Unlike criminal law, the aim is not to punish the wrongdoer by any more than is needed to repair the damage done to the victim.

The vast majority of civil disputes initiated in the courts are resolved before they reach final hearing and are decided by a judge. Parties can engage in mediation and other alternative dispute resolution processes in order to negotiate a solution to their dispute.

If a civil dispute goes go before a judge, magistrate, or tribunal, it will be decided on the balance of probabilities. That means that the judge will uphold the claim if it is more likely than not that the person caused harm.

There is some overlap between criminal and civil law. Often a single event can result in both a criminal case and a civil case.

For example, if one person assaults another person they can be charged with a crime by the police, as well as being sued for damages by the victim. But success in one case does not necessarily mean there will be success in the other.

This is because different procedures and rules apply to criminal and civil cases. Generally, criminal cases are harder to prove as the case must be proven ‘beyond a reasonable doubt’. Civil cases must be proven ‘on the balance of probabilities’, which is a lower standard. The difference arises due to the more serious consequences of criminal verdicts.

Access to justice

Access to justice is a fundamental principle of a fair and just legal system.

Access to justice means that all people should be able to understand their legal rights and pursue their case. All Australians have, under the law, the right to seek justice. But this right doesn’t count for much it if cannot be exercised. Ensuring that everyone has the support they need to navigate the law and the legal system is essential to a fair and just society.

Some members of the community find it harder to gain access to the justice system than other people, particularly people who are disadvantaged or vulnerable. Canberrans from culturally and linguistically diverse or Aboriginal and Torres Strait Islander backgrounds, or who have a disability, may be particularly at risk of not being able to gain access to legal assistance and support.

Australians who experience disadvantage find it more difficult to get access to justice for a wide range of reasons, such as:

• Language barriers
• Education and literacy levels
• Financial disadvantage
• Lack of access to information and digital technology
• Past traumas and hesitation to engage with lawyers and the legal process
• A lack of knowledge around rights and where to go for help

Access to justice does not necessarily mean that the person seeking access will get the outcome they want. Instead, it means that every person can use the processes and structures of the legal system. Access to justice means people can:

• Get the right information about the law and how it applies to them
• Understand when they have a legal problem and know what to do about it
• Get the right help with a legal problem, including from a lawyer
• Deal with their legal problem and understand the outcome
• Make their voice heard when laws are made