What is the role of the Courts in making and enforcing the law?

Judge made law

The Courts make and enforce the law every time they hear a case and are required to clarify the meaning of a law. (see Making the law in Commonwealth Parliament, this chapter).

There is sometimes uncertainty about what a law means. This is because when Parliament drafts a law it cannot anticipate every possible scenario which might call that law into question. For example, if the Park Users Act 2018 bans ‘vehicles’ in parks, it might be assumed that bicycles can be ridden through a park, because ‘vehicles’ relates to cars, motorbikes or trucks. When you do ride your bicycle through the park, and a police officer fines you for breaching the Park Users Act 2018, you might ask: ‘is my bicycle really a ‘vehicle?’. Does the Park Users Act apply to me in this instance?’ Your question might then become, ‘what about wheelchairs, scooters, prams, walking frames or skateboards? As these all ‘vehicles’ too?’.

When the judge decides the answer to the question ‘is a bicycle a ‘vehicle?’, he or she first interprets the Act using, among other things, the first and second reading speeches to ascertain the purpose of the provision). If the Park Users Act remains unclear, the judge will also consider the common law, and secondary resources, such as academic research, to determine whether a bicycle is a ‘vehicle’.

By considering the common law, the judge can consider wider common law principles, public expectations and legal precedent to guide his/her decision. The judge might also consider whether a certain interpretation of the law is practical.

This means the judge considers a range of factors when deciding the outcome of the cyclist’s case. The judge might decide that because the Park Users Act and legal precedent are very clear that bicycles are prohibited ‘vehicles’ and order the cyclist to pay the fine. Alternatively, the judge might decide that a bicycle is not a ‘vehicle’ because common law principles overwhelmingly indicate that civil liberties, such as the freedom to ride a bicycle through a park, should not be unnecessarily curtailed. He or she might also decide that, because so many cyclists must, by necessity, ride their bicycles through parks to arrive at their destinations and, after considering other Acts, which encourage cycling, it is simply absurd that the government would intend to ban bicycles in parks.

This bicycle question is central to the one of the longest-running debates in common law history. It was first posed by Professor H.L.A. Hart in 1951 (See, further resources, this chapter).

Whatever the judge’s decision, it contributes to the common law and should be considered by judges in future cases. To enable this to occur decisions are often published in law reports or on courts’ websites. Most law reports contain the names of the parties, a summary of the facts, the reasons for the judge’s decisions and the order of the court. For example, Commonwealth v Anderson [1960] HCA 85; (1960) 105 CLR 303 means that the proceedings were between the Commonwealth and Anderson and that the High Court’s decision was published in the ‘Commonwealth Law Reports’ in 1960 (report 105, commencing at page 303) (see Learning more about the law, this chapter).

Enforcing the law

The courts have a significant role in enforcing the law because they decide the consequences for those who disobey the law.

In criminal law, judges determine the penalties for breaking the law. For example they might sentence an offender to a gaol term.

Judges are also required to issue a range of permissions to executive agencies to allow them to enforce the law. These permissions include allowing the police to tap someone’s phone, or authorising child protective services to remove children from their homes. For more information about criminal law, see the Criminal Law chapter.

In administrative law matters, the court can enforce the law by finding that the decision in question is void. The court can also quash the decision, restrain the decision-maker from enforcing its decision, order the decision-maker to do something, order the decision-maker to re-make its decision according to law or declare the rights of the parties. For more information about administrative law, see the Challenging or Complaining about Government Decisions, Freedom of Information and Privacy chapters.

In civil law matters, the courts can award damages or order the losing party to do (or not do) something. Most of the handbook chapters cover civil law areas, including Defamation, Bankruptcy Law and Elder Law.

As the final court of appeal in Australia, the High Court of Australia also has a role in enforcing the law. This means that a case cannot be further appealed after a High Court decision. An example of the High Court enforcing a civil law action in negligence is Strong vs Woolworths [2012] HCA 5. In that case the High Court decided that because Woolworths failed to remove a potato chip from its floor, it was required to pay Ms Strong $580,299 in damages because she broke her back when slipping on the chip. Unfortunately for Woolworths, because the case had reached the High Court, they had no further opportunities to dispute the damages awarded to Ms Strong.

Courts and tribunals

Courts and tribunals both exist to resolve legal disputes, however, both do so in different ways.

Courts are staffed by judges and magistrates, who all sit in courtrooms. Judges and magistrates hear legal disputes and determine the outcome. This setting is adversarial and the losing party may be required to pay the opponent’s costs. As a result, taking a dispute to court is often expensive and time-consuming. To ease this financial burden, most courts now require litigants to attempt to resolve their dispute through alternative dispute resolution methods, such as mediation or conciliation, before it goes to a full hearing.

Tribunals are specialist bodies which operate alongside the courts. Their jurisdictions are limited to dealing with certain subject matter. Tribunals are staffed by legal professionals and other subject matter experts.

Tribunals are different from courts in a number of ways:

• Tribunals will have regard to other considerations in addition to the law.
• Tribunals are less formal and less adversarial than courts.
• Legal representation is not always required at tribunal hearings.
• Tribunals are often ‘no cost’ jurisdictions meaning that parties cannot have cost orders made against them except in exceptional circumstances.
• The rules of evidence do not always apply to Tribunal hearings.
• Tribunals complete matters faster than courts.

Courts located in the ACT

ACT Courts

The Magistrate's Court

The Magistrate’s Court hears civil matters involving amounts of up to $250,000 and criminal offences which carry sentences of up to two years’ imprisonment .

The Supreme Court

The Supreme Court hears appeals from the Magistrates Court, the Children’s Court and ACAT. Criminal trials for serious offences are also heard by the Supreme Court, along with civil claims relating to amounts greater than $250,000.

The Coroner’s Court

The Coroner’s Court conducts investigations into deaths which occur, or are suspected to have occurred, in specific circumstances. Such circumstances include a person dying in custody, in unknown circumstances or as a result of medical treatment.

The Children’s Court

The Children’s Court hears criminal cases against people under the age of 18. The court also hears applications and other proceedings made under the Children and Young People Act 2008 (ACT).

The Industrial Court

The Industrial Court was established in 2011 and hears matters related to workplace health and safety. It deals with civil and criminal matters arising from the Work Health and Safety Act 2011(Cth), Workers Compensation Act 1951 (ACT), Scaffolding and Lifts Act 1912 (ACT), Dangerous Substances Act 2004(ACT) and the Machinery Act 1949 (ACT).

Jervis Bay Court

The laws of the ACT apply to the Jervis Bay territory. As a result, the ACT Magistrates court sometimes sits at the Jervis Bay Court.

Galambany Court

The Galambany Court is a specialist court which assists the ACT Magistrates Court with finding culturally effective sentencing options for eligible Aboriginal and Torres Strait Islander people. This court is different from other courts because Aboriginal and Torres Strait Islander elders contribute to the sentencing process.

Family Violence Court

The Family Violence Court hears matters concerning bail determinations for adults charged with domestic violence, breaches of domestic violence offence sentences, and any proceedings against adults in relation to indictable and summary domestic violence offences.

Commonwealth Courts

The Family Court of Australia

The Family Court of Australia helps Australians families resolve their legal issues. It deals with matters involving parenting and property disputes.

The Federal Circuit Court

The Federal Circuit Court was established as a means of providing Australians access to federal jurisdiction. It hears matters related to family law and child support, administrative law, admiralty law, bankruptcy, copyright, human rights, industrial law, migration, and privacy and trade practices. It maintains a regional network of courts, to ease the financial burden on regional and rural litigants.

The Federal Court of Australia

The Federal Court hears disputes which arise because of a federal Act. The Court has a broad range of civil law jurisdiction and maintains a court in every capital city in Australia.

High Court of Australia

The High Court is the superior court in Australia. It is the final court of appeal from the other courts. It also has original jurisdiction to hear Constitutional law matters.

Tribunals located in the ACT

ACT Tribunals

The Australian Capital Territory Civil and Administrative Tribunal (ACAT)

The ACAT hears a range of matters including civil disputes (with the amount in dispute up to $25,000), guardianship matters, neighbourhood disputes, residential tenancy agreement disputes, appeals of some ACT Government administrative decisions and professional/occupational disciplinary matters.

More information about the ACAT is available on its website.

The Australian Capital Territory Remuneration Tribunal

The ACT Remuneration Tribunal handles issues of pay, allowances and entitlements paid to public office holders in the ACT.

Commonwealth Tribunals

The Administrative Appeals Tribunal (AAT)

The AAT reviews decisions made under some federal laws. These include decisions about immigration, the national disability insurance scheme, Centrelink, tax, veteran pensions and freedom of information.

Australian Stock Exchange (ASX) Tribunal

The ASX Tribunal is responsible for reviewing enforcement decisions made by the ASX. It is staffed by industry professionals.

Australian Competition Tribunal

The Australian Competition Tribunal reviews decisions made by the Australian Competition and Consumer Commission.

Classification Review Board

The Classification Review Board re-assesses classification when a decision by the Classification Board is appealed.

The Review Board will re-assess classifications of films, computer games, internet content and publications. It also makes decisions about other things, such as film festivals.

Companies Auditors and Liquidators Disciplinary Board (CADB)

The Companies Auditors and Liquidators Disciplinary Board is an expert disciplinary tribunal. It hears matters relating to the cancellation or suspension of auditors under the Corporations Act 2001 (Cth).

Copyright Tribunal of Australia

The Copyright Tribunal of Australia makes decisions relating to copyright licenses in Australia.

Defence Force Discipline Appeal Tribunal

The Defence Force Discipline Appeal Tribunal hears appeals from decisions made by martial courts and Defence Force magistrates about Australian Defence Force staff service offences. This includes determinations about service offence convictions and acquittals arising from an ‘unsound mind’.

Defence Honours and Awards Appeals Tribunal

The Defence Honours and Awards Appeals Tribunal hears matters relating to awards and honours given to defence personnel. It ensures awards are allocated fairly to recipients.

Fair Work Commission

The Fair Work Commission is the workplace regulator for working Australians. This commission is particularly important if you experience an underpayment of wages, unfair dismissal, bullying and or an injury at work.

National Native Title Tribunal

The National Native Title Tribunal makes decisions, administers reviews and medications and conducts enquires about native title applications and Indigenous land use agreements. It also maintains the National Native Title Register, the Register of Native Title Claims and the Register of Indigenous Land Use Agreements.

Professional Services Review

The key function of the Professional Services Review is to protect the community from inappropriate professional practice. It investigates the conduct of medical professionals, and may apply penalties, as a means of reducing government costs which occur because of inappropriate practice.

Superannuation Complaints Tribunal

This Superannuation Complaints Tribunal deals with unfair or unreasonable conduct or decisions of trustees, insurers and other decision-makers, in relation to superannuation funds, approved deposit funds, annuities, life insurance funds and retirement savings accounts.

Veterans' Review Board

The Veterans’ Review Board reviews Repatriation Commission decisions aboutclaims relating to war-caused or defence-caused injuries or diseases, claims relating to widows’, widowers’ and orphans’ pensions, assessments for pension rate for incapacity and claims for the grant or assessment of attendant allowance.