Courts and Tribunals

19 Nov 2017 - 19:37 | Version 17 |

Contributed by FriedaEvans and AnneLewis and current to 1 May 2016

Most courts in Australia hear both civil and criminal cases. Tribunals, commissions and other bodies settle disputes in other areas, such as industry, tenancy and motor vehicle accident compensation. Courts and tribunals are usually open to the public, although in certain circumstances access is restricted.

Courts

Diagram 2 provides a brief overview of the court structure. In the hierarchy of the Australian court system, any decision of a higher court is binding on lower courts.

When a decision is made by a court the following applies:
  • a judge's decision in each case is binding on the parties to that case;
  • if an appeal is not made within the time limits, the matter is settled and the case cannot be reopened without permission from the court;
  • if the parties appeal to a higher court, the higher court can affirm or overrule the lower court's decision;
  • the decision of the highest court is final.

Northern Territory courts

The NT has a two tiered court system involved in dispute resolution and law making: the lower courts and the Supreme Court of the Northern Territory.

In criminal matters, the main factors that determine whether a matter is dealt with by the Local Court (Criminal Division) or Supreme Court is the nature and gravity of the offence; in civil matters, the nature of the complaint and the amount of money involved are the determining factors.

The legislation establishing both tiers of the court system in the Northern Territory refers to the presiding judicial officer as a Judge. Both jurisdictions also have one or more Registrars who perform case management functions; however only the Supreme Court has a judicial officer called the Master.

Lower Courts

Lower courts are a group of courts comprised of:
  • the Local Court (Civil Jurisdiction)
  • the Local Court (Criminal Jurisdiction)
  • the Youth Justice Court
There is also the Coroner's Office.

These courts are normally presided over by a Judge.

The Local Court has the power to hear and determine civil and less serious criminal cases.

There are presently 14 Judges of the Local Court appointed in the NT. The Chief Judge and eight Judges are based in Darwin. There is one Judge in Katherine and four in Alice Springs. They travel extensively to many other centres and communities such as Tennant Creek, Borroloola, Yuendumu and Nhulunbuy, to hold court sittings.

The Local Court (Civil Jurisdiction)

The Local Court Civil Jurisdiction is established by the Local Court (Civil Procedure) Act 1989 (NT) . It can sit at any time and place determined by the Attorney-General and the Chief Judge. A Judge decides each case; there are no juries.

The Local Court can hear debt or damages claims that don't exceed $250,000. Cases that involve amounts less than $25,000 are heard in the Small Claims section of the Northern Territory Civil and Administrative Tribunal (NTCAT). The Local Court can also grant adoptions, volatile substance applications and property forfeiture applications.

The Local Court (Criminal Jurisdiction)

The Local Court Criminal Jurisdiction is constituted under the Local Court (Criminal Procedure) Act 1957 (NT). It deals with the most common criminal matters, such as drink driving cases, stealing and assault. More serious charges, such as murder, manslaughter, robbery and sexual assault, start in the Local Court with a preliminary inquiry (called a committal) where a Judge decides whether there is enough evidence to send the accused person to the Supreme Court for trial. An accused can also plead guilty to a crime in the Local Court Criminal Jurisdiction before being sent to the Supreme Court for sentencing. The Local Court Criminal Jurisdiction also hears domestic violence applications and personal violence applications.

The Youth Justice Court

The Youth Justice Court is established by the Youth Justice Act 2005 (NT) and hears charges against people aged under 18 years. If the offence is serious a juvenile may be sent to the Supreme Court for trial. A single Judge hears each case. The Local Court makes orders concerning the welfare or guardianship of children in need of care under the Care and Protection of Children Act 2007 (NT).

In Darwin the Youth Justice Court and Local Court dealing with welfare/guardianship of children sit at the TCG Centre on Monday, Tuesday and Friday for Youth Justice matters and Thursday for Care and Protection matters. Where a matter proceeds to hearing, it will be referred to Nichols Place. In Alice Springs the Courts sit every Monday and Friday at 9:30am and in Katherine it sits whenever necessary. When Judges hold court sittings in communities and other centres they sit as the Youth Justice Court or Family Matters Court when the need arises.

Coroner's Iffice

The Coroner's Office is governed by the Coroners Act 1993 (NT). The NT Coroner oversees and coordinates all coronial services throughout the NT and ensures, on behalf of the community, that all deaths and suspicious deaths over which a Coroner has jurisdiction are thoroughly investigated [CA s.14].

The Coroner inquires into the circumstances surrounding all reportable deaths and determines the identity of the deceased and the time, place, cause and meaning of death, and comments on matters, including public health, safety or the administration of justice connected with the death.

As well as deaths, a Coroner may inquire into disasters where public safety is substantially endangered. Usually a police officer or doctor notifies the Coroner of any death that may be a reportable death; however, every person has a duty to do so if they believe the Coroner may not have been informed.

A death is described as a reportable death [CA s.12] and must be reported to the Coroner where:
  • it appears to have been unexpected, unnatural or violent;
  • it appears to have resulted, directly or indirectly, from an accident or injury;
  • it occurred during an anaesthetic or as a result of an anaesthetic and was not due to natural causes;
  • it occurred when a person was held in, or immediately before death, was held in care or custody;
  • the person's identity is unknown; and
  • in certain other circumstances. Suicides, drowning, deaths due to car accidents or other accidents, are all reportable. A death is also reportable if it has occurred naturally but a doctor has been unable to provide a cause of death because they do not know the person's medical history.

All reportable deaths must be investigated; however, most reportable deaths do not result in the Coroner conducting an inquest. An inquest is a court hearing in which the Coroner hears evidence to assist in determining the manner and cause of a death. The Coroner may summons witnesses to give evidence of what they know about a death. Failure to appear if summonsed may lead to an arrest.

Inquests must be conducted where death has occurred in care or custody [CA s.15]; but the Coroner does not determine issues of criminal liability or civil negligence.

The Supreme Court of the Northern Territory

The Supreme Court, established by the Supreme Court Act 1979 (NT), is the highest NT court. It is made up of seven judicial officers including the Chief Justice, Justices and the Master, each of whom is appointed by the NT's Administrator. The Supreme Court can sit at any time and place but most regularly sits in Darwin and Alice Springs. Decisions about sitting arrangements are made by the Chief Justice.

Both criminal and civil matters are heard, generally, in front of a single Judge, though a criminal trial also includes a jury. In the area of civil law, the Supreme Court deals with large debt and damages claims. It also has some jurisdiction not given to the lower courts, such as in matters relating to the administration of deceased estates.

This power means that these cases can go straight to the Supreme Court, regardless of the amount of money involved. The Supreme Court can also hear appeals against decisions made in the Local Court and the Northern Territory Civil and Administrative Tribunal.

A Supreme Court Judge can refer any matter put before it to the Full Court of the Supreme Court, which is made up of three or more Judges. The Full Court also hears cases about the professional conduct of lawyers.

An appeal from a decision of the Supreme Court is made to the Court of Appeal if it is a civil matter or the Court of Criminal Appeal if it is of a criminal nature. These courts of appeal are usually made up of three or more Supreme Court Judges. An appeal can be heard before a single Judge if the person appealing chooses it or if the case relates to dismissal for want of prosecution, granting leave to appeal, an extension of time to appeal or bail. A decision made by either court of appeal can be appealed to the High Court of Australia, but only in limited circumstances.

Federal courts

The High Court of Australia

The High Court, located in Canberra, is Australia's highest court. In some areas of law, such as constitutional law, a case can be put directly before the High Court without first having to go through a lower court. However, most of the cases that go before the High Court are appeals from other courts.

The High Court's decisions are binding on all State and Territory courts.

The High Court does not automatically hear every appeal made to it. It decides about whether to hear an appeal by holding a short hearing called an Application for Special Leave to Appeal. In this hearing lawyers outline why the appeal should or should not be heard. If the appeal is allowed, it is heard at a later date in civil cases, and sometimes immediately after the hearing in criminal cases.

The Federal Court of Australia

Although the NT Supreme Court can hear certain matters involving Federal law (also known as Commonwealth law) these cases usually go before the Federal Court, which is located in Canberra.

The Federal Court's jurisdiction includes bankruptcy, taxation, industrial disputes, actions under the Trade Practices Act 1974 (Cth), copyright and patent matters and the judicial review of decisions made by Federal government officers. Appeals from the Federal Court are made to the Full Court of the Federal Court and in special circumstances, an appeal can then be made to the High Court.

Federal Circuit Court

The Federal Circuit Court was established in 1999 to relieve the workload of the established Federal courts, and to provide a cheaper, simpler and faster method of dealing with less complex Family Court and Federal Court matters. The Federal Circuit Court sits in Darwin, with the focus of much of its workload on family law. Appeals from the Federal Circuit Court are brought before three Judges of the Family Court.

The Family Court of Australia

The Family Court of Australia, which sits in Darwin, deals with cases under the Family Law Act 1975 (Cth) (see Families ). The court can also hear applications made under the De Facto Relationships Act 1991 (NT) if there are associated proceedings involving children. Appeals from the Family Court are first made to the Full Court of the Family Court and then, in special circumstances, to the High Court.

Tribunals

A number of tribunals operate in tandem with the court system. Tribunals are usually established by legislation, either NT or Federal, to deal with appeals or complaints about a particular subject or applications for licences. They are designed to provide a method for resolving disputes that is easier, cheaper and faster than courts.

Tribunals usually hold hearings to decide cases. The style of a hearing varies from tribunal to tribunal. In some tribunals, hearings resemble court proceedings, with lawyers representing the parties, the cross-examination of witnesses and so on. In others, hearings can be relatively informal, for example the people involved may sit around a table and legal representation may not be allowed.

Many tribunals have three arbiters hearing cases, at least one of whom has legal training. The other members generally have specialist knowledge. Some tribunals, like the Residential Tribunal, have just one arbiter. Arbiters usually take a more active role in the proceedings than would a judge in a court.

People generally have a right to appeal to a court against a tribunal decision. Usually these appeals are restricted to legal questions. The relevant Act will set out the grounds for appeal. Even if there is no right of appeal in the Act, a person may be able to go to court to seek judicial review of a tribunal decision (see Complaints about government administration ).

For more information about a particular tribunal, contact it directly. Tribunals are listed in the White Pages telephone directory. For more detailed information about a tribunal's powers and procedures refer to the Act that created it.

Northern Territory tribunals

The Northern Territory Civil and Administrative Tribunal (NTCAT)

NTCAT commenced operations on 6 October 2014.

NTCAT provides a forum for reviewing a wide range of administrative decisions and for resolving certain civil disputes (such as residential tenancy matters and small claims up to an amount of $25,000).

NTCAT also exercises jurisdiction in relation to the regulation of particular professions and the protection of civil rights, for example by appointing guardians for vulnerable adults.

NTCAT's objectives are listed in section 10 of the Northern Territory Civil and Administrative Tribunal Act.

In all its jurisdictions NTCAT aims to achieve outcomes that are prompt, fair and inexpensive.

NTCAT is much less formal than a court and its procedures are less complicated. Lawyers are permitted in most cases but usually are not necessary. In most matters NTCAT will attempt to assist the parties to reach a negotiated resolution of their dispute at a compulsory conference. Where parties are unable to reach agreement, the matter will proceed as soon as possible to a hearing.

The law that establishes NTCAT is the Northern Territory Civil and Administrative Tribunal Act. That Act does not confer any jurisdiction on NTCAT.

Generally speaking, NTCAT has two types of jurisdiction:

In its original jurisdiction NTCAT will consider and determines disputes and issues that have not been the subject of an earlier adjudication. A wide range of matters may be dealt with in NTCAT's original jurisdiction, including: disputes between landlords and tenants under the Residential Tenancies Act; civil claims for sums up to $25,000; matters where misconduct is alleged against professionals; applications for guardianship orders for people with intellectual disabilities; disputes involving complaints of discrimination; and applications to enable the sale or redevelopment of unit complexes where not all unit title holders agree to that course.

In its review jurisdiction NTCAT will consider and determine applications for review of the merits of decisions made by government officers. It will reach a view as to what is the correct or preferable decision by undertaking a thorough reconsideration of the matter (which may involve consideration of facts and materials that were not considered by the original decision maker).

The sorts of government decisions that may be reviewed by NTCAT include: licensing decisions, planning decisions, decisions about access to government information; and decisions about the payment of compensation to victims of crime.

NTCAT's review jurisdiction also extends to the review of decisions made by NTCAT in its original jurisdiction.

Since commencing operations, NTCAT's jurisdiction has expanded to almost 50 Acts of Parliament. The busiest jurisdictions are residential tenancies, small claims and guardianship of adults.

Federal tribunals

Commissions of inquiry

Commissions of inquiry are set up for a limited period to investigate particular issues or areas of concern. They gather information in various ways, including holding hearings and calling witnesses. They differ from courts and tribunals in several ways. One important difference is that they do not make legally binding decisions, but instead produce reports on their findings with recommendations for future action.

Royal commissions

Royal commissions are commissions of inquiry formally established by a government to investigate particular issues, and make findings and recommendations on those issues. Royal commissions have been held into Aboriginal deaths in custody, the NSW Police Service and the failure of the HIH Insurance Group.

Terms of reference

The State or Federal government sets a royal commission's agenda (its terms of reference).

Royal commission staff

The government appoints a Commissioner (or more than one) - usually a senior barrister or judge.

The Commissioner's staff includes lawyers, investigators and administrative personnel.

Powers of royal commissions

The State and Federal Royal Commission Acts confer similar powers on royal commissions, including the power to summon a person to appear to give evidence and produce documents. It is an offence to fail to comply, and a warrant can be issued for the person's arrest. It is also an offence not to answer questions or to knowingly give false or misleading testimony. People can be in contempt of a royal commission as if it were a court.

Who can appear

It is up to the Commissioner to decide whether to allow a person to appear or be represented before a commission. This will be authorised if:
  • the person is substantially and directly interested in the subject of the inquiry, or
  • their conduct has been challenged to their detriment (Royal Commissions Act 1902 (Cth), s.7).

Both State and Federal governments may provide funding for legal assistance and representation for some people appearing at royal commissions, or as witnesses. This funding is at the discretion of the government, and can be hard to get.

Royal commission reports

At the end of an inquiry, the royal commission produces a report containing conclusions and recommendations; for example:
  • suggesting reform to laws or practices
  • recommending that criminal or other proceedings be taken against individuals.
A royal commission can also refer evidence to law enforcement agencies.

The ICAC and the Police Integrity Commission

The Independent Commissioner Against Corruption Bill 2017 has been introduced into the Northern Territory Legislative Assembly.

The NSW Independent Commission Against Corruption (ICAC) and the Police Integrity Commission have powers of investigation very like those of a royal commission, but they are permanent bodies. In some respects they are like ongoing royal commissions, investigating one matter after another, but setting their own agenda under the general heading of "corruption".

The ICAC and the Police Integrity Commission are discussed in Complaints about government administration .

Law reform commissions

There are law reform commissions at both State and Federal level. They usually investigate questions referred to them by the relevant attorney general.

In NSW, individuals and groups can approach the Law Reform Commission and suggest areas where reform is needed. With the attorney general's approval, the commission can then investigate these areas and make recommendations. Members of the public can also contribute to the process by making submissions on matters being investigated. The evidence of community groups with direct experience of people's problems with the law is particularly valuable.

Once a commission has investigated a matter, it makes recommendations for reform. It is then up to the government to decide whether to turn those recommendations into law.

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