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https://www.parliament.vic.gov.au/assembly/publications-a-research/fact-sheets/2474-fact-sheet-c1#charter

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Charter of human rights

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The Victorian Charter of Human Rights and Responsibilities contains twenty basic rights that promote and protect the values of freedom, respect, equality and dignity.

The Victorian Government, local councils and other public authorities must not knowingly be in breach of these rights, and must always consider them when they create laws, develop policies and deliver their services.

Your right to recognition and equality before the law (section 8)

Everyone is entitled to equal and effective protection against discrimination, and to enjoy their human rights without discrimination.

Your right to life (section 9)

Every person has the right to life and to not have their life taken. The right to life includes a duty on government to take appropriate steps to protect the right to life.

Your right to protection from torture and cruel, inhuman or degrading treatment (section 10)

People must not be tortured. People must also not be treated or punished in a cruel, inhuman or degrading way. This includes protection from treatment that humiliates a person. People must not be subjected to medical treatment or experiments without their full and informed consent.

Your right to freedom from forced work (section 11)

A person must not be forced to work or be made a slave. A person is a slave when someone else has complete control over them.

Your right to freedom of movement (section 12)

People can stay in or leave Victoria whenever they want to as long as they are here lawfully. They can move around freely within Victoria and choose where they live.

Your right to privacy and reputation (section 13)

Everyone has the right to keep their lives private. Your family, home or personal information cannot be interfered with, unless the law allows it.

Your right to freedom of thought, conscience, religion and belief (section 14)

People have the freedom to think and believe what they want, for example, religion. They can do this in public or private, as part of a group or alone.

Your right to freedom of expression (section 15)

People are free to say what they think and want to say. They have the right to find, receive and share information and ideas. In general, this right might be limited to respect the rights and reputation of other people, or for the protection of public safety and order.

Your right to peaceful assembly and freedom of association (section 16)

People have the right to join groups or unions and to meet peacefully.

Your right to protection of families and children (section 17)

Families are entitled to protection. Children have the same rights as adults with added protection according to their best interests.

Your right to taking part in public life (section 18)

Every person has the right to take part in public life, such as the right to vote or run for public office.

Cultural rights (section 19)

People can have different family, religious or cultural backgrounds. They can enjoy their culture, declare and practice their religion and use their languages. Aboriginal persons hold distinct cultural rights.

Property rights (section 20)

People are protected from having their property taken, unless the law says it can be taken.

Your right to liberty and security of person (section 21)

Everyone has the right to freedom and safety. The right to liberty includes the right to not be arrested or detained except in accordance with the law. The right to security means that reasonable steps must be taken to ensure the physical safety of people who are in danger of physical harm.

Your right to humane treatment when deprived of liberty (section 22)

People have the right to be treated with humanity if they are accused of breaking the law and are detained.

Rights of children in the criminal process (section 23)

A child charged with committing a crime or who has been detained without charge must not be held with adults. They must also be brought to trial as quickly as possible and treated in a way that is appropriate for their age. Children are entitled to opportunities for education and rehabilitation in detention.

Your right to a fair hearing (section 24)

A person has a right to a fair hearing. This means the right to have criminal charges or civil proceedings decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

Rights in criminal proceedings (section 25)

There are a number of minimum guarantees that you have when you have been charged with a criminal offence. These include the right to be told the charges against you in a language you understand; the right to an interpreter if you need one; the right to have time and the facilities (such as a computer) to prepare your own case or to talk to your lawyer; the right to have your trial heard without too much delay; the right to be told about Victoria Legal Aid if you don't already have a lawyer; you are presumed innocent until proven guilty; and you don't have to testify against yourself or confess your guilt unless you choose to do so.

Right not to be tried or punished more than once (section 26)

A person will only go to court and be tried once for a crime. This means if the person is found guilty they will only be punished once. If they are found to be innocent they will not be punished.

Retrospective criminal laws (section 27)

A person has the right not to be prosecuted or punished for things that were not criminal offences at the time they were committed.

Download more information: Charter fact sheets.

For more information about the Charter, call the Commission's Enquiry Line.

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The Victorian Charter of Human Rights and Responsibilities contains twenty basic rights that promote and protect the values of freedom, respect, equality and dignity. The Victorian Government, local councils and other public authorities must not knowingly be in breach of these rights, and must always consider them when they create laws, develop policies and deliver their services.

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Parliament of Victoria - Parliament Explains

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Hoddle st massacre

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Parliament of Victoria - Legislation & Bills

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Corrections Amendment (parole) Bill 2014

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Corrections Amendment (parole) Bill 2014

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Bill pertaining to Julian Knight

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The primary source for Victorian legislation. Find Bills considered by Parliament, Acts of Parliament and statutory rules.

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FormerJustice of the high court

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There are many people involved in the court system. Below is a list of some of the people you might meet if you are required to attend court:

Accused
The person against whom a criminal case is brought. Sometimes referred to as the defendant.

Associate Judge (Supreme Court)
The person who generally carries out the judicial function of hearing and determining issues which arise before and after trial in civil cases. Associate Judges do not hear trials.

Barrister
A legal advocate who is briefed by a solicitor to present the defence or prosecution case in court.

Bench clerk (Magistrates', Coroners and Children's Court)
Sits near the magistrate or coroner, and announces the cases and calls people into court. The bench clerk will direct people where to stand, read the charges out in a criminal proceeding and administer the oath or affirmation to witnesses.

Defence Solicitor or Duty Solicitor
The person who represents the accused in court. If the accused does not have a solicitor, they may be entitled to representation by a duty solicitor.

Informant
In criminal cases, this is the police officer who charged the defendant. In coronial inquests, this is the police officer who investigated on behalf of the coroner. In some cases, the informant is a council officer or other government official.

Judge
The person who hears cases and makes decisions in the County Court and Supreme Court. If a judge and a jury hear the case, the judge will be responsible for directing the jury about the law. If the accused is found guilty, the judge will impose the sentence.

In Victoria, the State Coroner is also a judge. When you speak to a judge, you should address them as 'Your Honour'.

Judge's Associate (Supreme, County and Coroners Courts)
Performs various administrative and court duties to assist the judge. These duties may include completing paperwork, liaising with parties, keeping a record of court proceedings, and taking verdicts or findings in coronial hearings.

Magistrate
The person who hears cases and makes decisions in the Magistrates' Court and Children's Court. They decide what happens to a case, whether a case will have to go to another court or be put off until another day, whether the defendant is guilty or not guilty, and any penalty that will be given to the defendant. Some coroners are also magistrates.

When you speak to a magistrate or coroner, you should address them as 'Your Honour'.

Plaintiff, complainant or applicant
The person who initiates the case in a non-criminal (civil) matter.

Prosecutor
The person who appears in court to present the case against the defendant in a criminal hearing. Cases in the Magistrates' Court and Children's Court are usually prosecuted by a police officer. Cases in the higher courts are usually prosecuted by the Office of Public Prosecutions.

Registrar
The manager/administrator of the court. It will be a registrar or deputy registrar (or member of the registry staff) who will assist you at a court counter.

Respondent
The person against whom a civil case is brought.

Tipstaff (Supreme and County Courts)
Announces that the court is in session and administers oaths or affirmations to witnesses. An important duty of the tipstaff is to look after the jury. He or she escorts jury members into the courtroom and into the jury room, and deals with any practical matters for the jury.

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There are many people involved in the court system. Below is a list of some of the people you might meet if you are required to attend court: Accused The person against whom a criminal case is brought. Sometimes referred to as the defendant.

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Role of the High Court - High Court of Australia

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The High Court is the highest court in the Australian judicial system. It was established in 1901 by Section 71 of the Constitution. The functions of...

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Role of the Court | Children's Court of Victoria

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The Children's Court of Victoria is a specialist court with two divisions dealing with cases involving children and young people.The Family Division hears:applications relating to the protection and care of children and young persons at risk, andapplications for intervention ordersThe Criminal Division hears:

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The Decomposing Snail in Ginger Beer: Strangest Cases in Law

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Precedent: Precedent, in law, a judgment or decision of a court that is cited in a subsequent dispute as an example or analogy to justify deciding a similar case or point of law in the same manner.

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By clicking on the "I have read and understood the C.O.L.D. Terms and Conditions" checkbox when proposing a new Dictionary term or suggesting a revised Dictionary definition, you authorize Irwin Law to edit, copy and distribute your submission in any medium, either commercially or non-commercially.

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absolutism, the political doctrine and practice of unlimited centralized authority and absolute sovereignty, as vested especially in a monarch or dictator. The essence of an absolutist system is that the ruling power is not subject to regularized challenge or check by any other agency, be it judicial, legislative, religious, economic, or electoral. King Louis XIV (1643-1715) of France furnished the most familiar assertion of absolutism when he said, "L'état, c'est moi" ("I am the state"). Absolutism has existed in various forms in all parts of the world, including in Nazi Germany under Adolf Hitler and in the Soviet Union under Joseph Stalin.

A brief treatment of absolutism follows. For full treatment, see European History and Culture: Absolutism.

The most commonly studied form of absolutism is absolute monarchy, which originated in early modern Europe and was based on the strong individual leaders of the new nation-states that were created at the breakup of the medieval order. The power of these states was closely associated with the power of their rulers; to strengthen both, it was necessary to curtail the restraints on centralized government that had been exercised by the church, feudal lords, and medieval customary law. By claiming the absolute authority of the state against such former restraints, the monarch as head of state claimed his own absolute authority.

By the 16th century monarchical absolutism prevailed in much of western Europe, and it was widespread in the 17th and 18th centuries. Besides France, whose absolutism was epitomized by Louis XIV, absolutism existed in a variety of other European countries, including Spain, Prussia, and Austria.

The most common defense of monarchical absolutism, known as "the divine right of kings" theory, asserted that kings derived their authority from God. This view could justify even tyrannical rule as divinely ordained punishment, administered by rulers, for human sinfulness. In its origins, the divine-right theory may be traced to the medieval conception of God's award of temporal power to the political ruler, while spiritual power was given to the head of the Roman Catholic Church. However, the new national monarchs asserted their authority in all matters and tended to become heads of church as well as of state, as did King Henry VIII when he became head of the newly created Church of England in the 16th century. Their power was absolute in a way that was impossible to achieve for medieval monarchs, who were confronted by a church that was essentially a rival centre of authority.

More pragmatic arguments than that of divine right were also advanced in support of absolutism. According to some political theorists, complete obedience to a single will is necessary to maintain order and security. The most elaborate statement of this view was made by the English philosopher Thomas Hobbes in Leviathan (1651). A monopoly of power also has been justified on the basis of a presumed knowledge of absolute truth. Neither the sharing of power nor limits on its exercise appear valid to those who believe that they know-and know absolutely-what is right. This argument was advanced by Vladimir Ilich Lenin to defend the absolute authority of the Communist Party in Russia after the Bolshevik Revolution in 1917.

Absolutist rulers who emerged later in the 20th century, in addition to Hitler and Stalin, included Benito Mussolini of Italy, Mao Zedong of China, and Kim Il-Sung of North Korea, whose son ( Kim Jong Il) and grandson ( Kim Jong-Un) continued the pattern of absolutist rule in the country into the 21st century.

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Absolutism | Definition, History, & Examples

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Absolutism, the political doctrine and practice of unlimited centralized authority and absolute sovereignty, as vested especially in a monarch or dictator. The essence of an absolutist system is that the ruling power is not subject to regularized challenge or check by any other agency or institution.

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Magna Carta and the emergence of Parliament

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TimeBase - What is the difference between statute and common law?

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Federation
Fact Sheet - Federation [PDF 148kb, 1 page]

Before 1901, Australia was not a nation. At that time, the continent consisted of six British colonies which were partly self-governing, but subject to the law-making power of the British Parliament. Each colony had its own government and laws, including its own railway system, postage stamps and tariffs (taxes). This caused a lot of problems and people began to think about the benefits of uniting as one nation, under a federal system of governance.

National Library of Australia, an13117280-22

The path to federation

During the 1890s, each colony sent representatives to special meetings, called conventions, to try to agree about how to form a new federation. Eventually the delegates agreed on the rules for a federal system and a draft constitution. The people of the colonies voted in a series of referendums to accept this new Australian Constitution. It was then passed as a British Act of Parliament in 1900, called the Commonwealth of Australia Constitution Act, which came into effect on 1 January 1901. The Constitution established a federal Parliament which could make laws on behalf of the new Australian nation (see Australian Constitution).

The colonies of New South Wales, Victoria, Queensland, South Australia and Tasmania united and became states of Australia, known as the Commonwealth of Australia. Western Australia was not a party to the initial agreement but also agreed to join the federation before 1 January 1901.

The territories

In 1901, the two territories did not exist. The Constitution provided for the establishment of a national capital, to be located in New South Wales but at least 100 miles from Sydney. In 1911, the Australian Government created the Australian Capital Territory for this purpose. In the same year, the Northern Territory was also created. Until then, this area had been part of South Australia.

Although part of the Commonwealth, the territories do not have the same legal status as states.

A new nation and a new Parliament

When the Commonwealth of Australia was declared on 1 January 1901, a ceremony was held in Centennial Park in Sydney. The first Governor-General, Lord Hopetoun, was sworn in and the first Prime Minister, Sir Edmund Barton, and federal ministers took the oath of office. Australians celebrated their nationhood, participating in parades, processions, sporting events and school pageants.

The first federal elections for the new Parliament were held on 29 and 30 March 1901. The first Parliament was held in Melbourne on 9 May 1901. It was officially opened by the Duke of Cornwall and York (later King George V). The opening ceremony was large and elaborate and further celebrations were held.

Australia's federal system

Under the Australian Constitution, the new states united within the Commonwealth. Power was to be shared between the federal Parliament and state parliaments. The federal Parliament would make laws about national matters, such as defence, immigration, trade and the environment.

The power to make and manage federal law would be divided between the Parliament (who would make the law), the Executive (who would put the law into action) and the Judiciary (who would make judgements about the law).

The federal Parliament would be made up of the Queen (represented by the Governor-General), the Senate and the House of Representatives. Laws could only be passed or changed if agreed to by both houses.

The Australian federal system took some of its features from the British Parliament and some from the United States system of governance.

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Fact Sheet - Federation [PDF 148kb, 1 page] Before 1901, Australia was not a nation. At that time, the continent consisted of six British colonies which were partly self-governing, but subject to the law-making power of the British Parliament. Each colony had its own government and laws, including its own railway system, postage stamps and tariffs (taxes).

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Australia is a federation of six states which, together with two self-governing territories, have their own constitutions, parliaments, governments and laws. This infosheet is about the national or central government, usually called the Federal Government, Commonwealth Government or Australian Government. However, state and territory governments are also based on the same principle of parliamentary government.

It is recommended that this infosheet be read with Infosheet No. 13 The Constitution and Infosheet No. 19 The House, government and opposition.

The Australian Coat of Arms signifies the national unity of Australia and is a sign of its identity and authority
Parliamentary government
The Constitution of Australia establishes the Federal Government by providing for the Parliament, the Executive Government and the Judicature (more usually called the Judiciary)-sometimes referred to as the 'three arms of government'. However, some of the central features of Australia's system of government (described as parliamentary, or responsible government) are not set down in the Constitution but are based on custom and convention.

Parliamentary government means that the Executive Government comes from within the Parliament; responsible government means that the Executive Government is responsible to the Parliament. This is the central feature of a Westminster-style government following the United Kingdom model-in contrast to other systems of government where the Executive is quite separate and not directly answerable to the Legislature-for example, in the United States of America.

The separation of powers

Political theory recognises three powers of government-the legislative power to make laws; the executive power to carry out and enforce the laws; and the judicial power to interpret laws and to judge whether they apply in individual cases.

The principle of the separation of powers is that, in order to prevent oppressive government, the three powers of government should be held by separate bodies-the Legislature, Executive and Judiciary-which can act as checks and balances on each other.

With parliamentary government the legislative and executive functions overlap, as the members of the Executive Government-the Ministers-are drawn from the Parliament. However, in the Australian system there are still checks and balances between the Executive and Legislature-Ministers are subject to the scrutiny of other Members of the Parliament led by an officially recognised opposition. In addition, the Executive does not necessarily control both Houses of the Parliament (see below).

Infosheet No. 19 The House, government and opposition gives more detail on the relationship between the Parliament and the Executive Government.
The Parliament
The Constitution gives the legislative power of the Commonwealth-the power to make laws-to the Parliament.

The Parliament consists of the King, represented by the Governor-General, and two Houses-the House of Representatives and the Senate. The Parliament passes legislation. Proposed laws have to be agreed to by both Houses of Parliament to become law. The two Houses have equal powers, except that there are restrictions on the power of the Senate to introduce or directly amend some kinds of financial legislation. Infosheet No. 7 Making laws describes the parliamentary processes for the passage of legislation. The Governor-General has a role in the legislative process by assenting to Acts. See later in this infosheet for more information about the role of the Governor-General.

The Parliament also authorises the Executive Government (often simply called the government or the Executive) to spend public money by agreeing to government proposals for expenditure and taxation, scrutinises the administrative actions of the government and serves as a forum for the debate of public policy.

Another function of the Parliament under the Australian system is to provide from its membership the members of the Executive Government. After a general election the political party (or coalition of parties) with the support of a majority of members in the House of Representatives becomes the governing party and its leader becomes the Prime Minister.

The composition of the House also determines who will form the official opposition. The party (or coalition of parties) which has the most non-government Members in the House of Representatives becomes the opposition party and its leader becomes the Leader of the Opposition. The opposition has the officially recognised function, established by convention, of opposing the government. The opposition is an essential part of Australia's democratic system of government. This subject is discussed in more detail in Infosheet No. 19 The House, government and opposition.

While the government has, by definition, the support of a majority of Members in the House of Representatives, the system of voting used for Senate elections gives greater opportunity to minority parties and independents, and the government often does not have majority support in the Senate.
The Executive Government
Constitutional provisions

The Constitution states that the executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative. However, a realistic understanding of Australia's Executive Government cannot be obtained from the Constitution alone, and in fact a literal reading of the Constitution can be misleading.

The Executive Government in practice

In reality, the executive power is possessed by the Prime Minister and Cabinet (senior Ministers). Their power derives:

constitutionally from their membership of the Federal Executive Council-see below-and status as 'advisers' to the Governor-General

politically, from the people at elections for the House of Representatives

from convention-that is, custom and tradition.

Neither the Prime Minister nor the Cabinet are mentioned in the Constitution-the framers of the Constitution took their existence for granted, as they did the various conventions of the Westminster system of government inherited from the United Kingdom.

Table 1 below gives a comparison of the constitutional provisions and the actual practice according to the conventions which have operated in Australia.

Composition of the Ministry

The Prime Minister is the head of the government. They achieve this position by being the elected leader of the party in government (in the case of a coalition government, the major party).

The Cabinet, consisting of senior Ministers presided over by the Prime Minister, is the government's pre-eminent policy-making body. Major policy and legislative proposals are decided by the Cabinet. The Prime Minister selects Ministers for Cabinet positions.

Ministers are selected by the Prime Minister. Legislation currently allows for up to 30 Ministers. About 20 or so senior Ministers administer the major departments and are, usually, members of Cabinet. Other Ministers are responsible for particular areas of administration within a major department, or may be in charge of a small department. Ministers are appointed from both Houses of Parliament, although most (about two thirds) are Members of the House of Representatives.
Parliamentary Secretaries
Up to 12 Members and Senators are appointed by the Prime Minister as Parliamentary Secretaries (also referred to as Assistant Ministers) to assist or represent Ministers in their administrative responsibilities.

The role of the Governor-General

The Governor-General performs the ceremonial functions of head of state on behalf of the Queen. While Executive Government powers are exercised by the Governor-General or in the Governor-General's name, such actions are carried out as advised by the Prime Minister and Ministers.

Under the Constitution the Governor-General:

appoints and dismisses Executive Councillors

appoints and dismisses Ministers to administer the public service departments and agencies

appoints judges (the dismissal of judges can only be initiated by the Parliament)

is the commander in chief of the defence forces

decides when the Parliament meets (subject to some constitutional requirements), and may prorogue (suspend) or dissolve it

issues writs for general elections

initiates government expenditure by recommending appropriations to the Parliament

converts proposed laws to Acts of Parliament by assenting to legislation that has been passed by both Houses

may block or propose amendments to any law passed by the two Houses of Parliament.

The Governor-General also has executive powers under many Acts of Parliament-for example, the power to proclaim legislation (that is, bring it into effect) and to make regulations and other kinds of delegated legislation (that is, legislative powers that the Parliament has delegated to the Executive Government). Most of the executive actions taken by the Governor-General are of this kind.

In practice, except when reserve powers are involved-see below-these functions are exercised as advised by the Prime Minister and Ministers.
The Governor-General's reserve powers
In some matters the Constitution gives the Governor-General powers to act independently. These include the power to dissolve the House of Representatives and, in certain situations, both Houses (see Infosheet No. 18 Double dissolution). However, in other than exceptional circumstances, the Governor-General will follow the advice of a Prime Minister who retains the confidence of the House.

The powers that the Governor-General has to act without advice are referred to as 'prerogative' or 'reserve' powers and are not clearly defined in the Constitution. Constitutional experts do not agree on their precise extent or on the nature of the exceptional circumstances in which they may be exercised.

The Federal Executive Council

The Federal Executive Council is the constitutional mechanism for providing ministerial advice to the Governor-General. It is not a forum for policy debate or deliberation and its proceedings are entirely formal. All Ministers and Parliamentary Secretaries become members of the Executive Council. They receive the title 'Honourable'. The Council's full membership never meets. In practice the minimum number of Ministers or Parliamentary Secretaries (that is, two in addition to the person presiding) are rostered to attend. Meetings of the Council are presided over by the Governor-General or a deputy appointed by the Governor-General (usually the Minister with the title Vice President of the Executive Council). The matters dealt with at each meeting are recommendations by Ministers, for the approval of the Governor-General in Council, that something be done-for example, that a regulation be made, a treaty be ratified, or a person be appointed to a position.

While the Executive Council may seem no more than a rubber stamp, the processes involved in bringing matters before the Council ensure that Ministers' actions are properly documented, are legally and constitutionally valid, and are in accordance with government policy.

Opening of the 3rd Session of the 20th Parliament by Her Majesty Queen Elizabeth II on 15 February 1954

The role of the King

Australia is a constitutional monarchy. A monarchy is a country where the position of head of state is inherited. A constitutional monarchy is one where the powers of the monarch or sovereign-the King or Queen-are limited by law or convention, and generally exercised only according to the advice of an elected government.

The head of state is a formal, symbolic and ceremonial position, as opposed to the position of head of government, which has the administrative power to govern the country. In some systems of government the head of state and head of government are the same person-for example, in the United States the President has both functions.

Australia's head of state is King Charles III. King Charles is also King of the United Kingdom and several other countries which used to be part of the former British Empire. The King's role as King of Australia is quite separate from his role as King of the United Kingdom. The United Kingdom Government plays no part in the King's role as King of Australia.

In Australia the powers of the King have been delegated by the Australian Constitution to his representative in Australia, the Governor-General. That is, while Australia's head of state is the King, the functions of head of state are performed by the Governor-General. The King's only necessary constitutional function is to appoint the Governor-General, and in doing this the King acts as advised by the Australian Prime Minister. The Constitution gives the King the power to disallow an Australian Act of Parliament, but this has never been done and it is extremely unlikely that it would ever be done.
The Judiciary
The Constitution vests the judicial power of the Commonwealth-the power to interpret laws and to judge whether they apply in individual cases-in the High Court and other federal courts. The High Court is established by the Constitution. Other federal courts are created by legislation of the Parliament. Judges are appointed by the Governor-General acting on the advice of the Prime Minister and Cabinet. Judges can only be removed from office by the Governor-General following a request for the removal from both Houses of Parliament on the ground of proved misbehaviour or incapacity.

One of the major functions of the High Court is to interpret the Constitution. The High Court may rule a law to be unconstitutional-that is, beyond the power of the Parliament to make-and therefore of no effect. While the Parliament may override a court's interpretation of any ordinary law by passing or amending an Act of Parliament, the Parliament is subject to the Constitution. The Constitution cannot be changed by an Act of Parliament alone-a referendum of the people is necessary.

The High Court of Australia

1 Covering clause 2 of the Commonwealth of Australia Constitution Act (the Constitution) provides that references to 'the Queen' shall include references to Queen Victoria's heirs and successors.
For more information
, 7th edn, Department of the House of Representatives, Canberra, 2018, House of Representatives Practice
pp. 1-41, 43-83.

Images courtesy of AUSPIC.
Table 1 - The Executive Government of Australia

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Infosheet 20 - The Australian system of government

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Infosheet 20 - The Australian system of government

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View the Constitution as a single document (PDF 92KB)
Commonwealth of Australia Constitution Act

Requests and inquiries concerning reproduction and rights should be addressed to ComLaw, which is managed by the Office of Parliamentary Counsel. ComLaw produces official versions of Australian legislation, including the Constitution, and would be best placed to deal with your request. You can contact them using a web contact form available at http://www.comlaw.gov.au/feedback. For further information, you may wish to consider the content at http://www.comlaw.gov.au/Content/Copyright.

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View the Constitution as a single document (PDF 92KB) Requests and inquiries concerning reproduction and rights should be addressed to ComLaw, which is managed by the Office of Parliamentary Counsel. ComLaw produces official versions of Australian legislation, including the Constitution, and would be best placed to deal with your request.

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Before a referendum is held, members of parliament prepare arguments for or against the proposed change. The Australian Electoral Commission is in charge of running federal elections and referendums. It arranges for the 'Yes' and 'No' cases, along with a statement of the proposed change, to be posted to every Australian on the electoral roll.

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Home > Learning > Fact Sheets > Separation of Powers: Parliament, Executive and Judiciary

Separation of Powers: Parliament, Executive and Judiciary
Fact Sheet - Separation of Powers: Parliament, Executive and Judiciary [PDF 380kb, 2 pages]

The Australian Constitution is the set of rules by which Australia is run. The first three chapters of the Constitution define three largely separate groups - the Parliament, the Executive and the Judiciary - and the roles they play in Australian governance. The power to make and manage federal law is divided between these three groups. This division is based on the principle of the 'separation of powers'.

Under this principle, the power to govern should be distributed between the Parliament, the Executive and the Judiciary to avoid one group having all the power. Each group should work within defined areas of responsibility so that each keeps a check on the actions of the others.

Separation of roles

Parliament

The Parliament makes and amends the law

Parliament (also referred to as the Legislature) is made up of the Queen (represented by the Governor-General), the Senate and the House of Representatives

Executive

The Executive puts the law into action

The Executive is made up of the Queen (represented by the Governor-General), Prime Minister and ministers

Judiciary

The Judiciary makes judgements about the law

The Judiciary is made up of the High Court and other federal courts

Exceptions to the principle

Australia does not have a complete separation of powers because some of the roles of the Parliament, the Executive and the Judiciary overlap. For example, the Prime Minister and ministers are part of the Executive and the Parliament. High Court judges, the Prime Minister and ministers are officially appointed by the Governor-General, who is part of the Parliament and the Executive.

The role of the Governor-General

Section 61 of the Constitution states that 'the executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative'. This means that the Governor-General has been given certain powers to act on behalf of the Queen. However, the role of the Governor-General is not just defined by the Constitution, but also by custom and tradition.
While executive power is exercised by the Governor-General, in reality this is normally done on the advice of the Prime Minister and ministers, who have day-to-day responsibility for governing Australia. The Governor-General does not have the authority to make decisions on behalf of the government, but has a role in both the government and the Parliament (see Governor-General).
Responsible government

The separation of powers works together with another principle known as responsible government, to guide the way law is made and managed. Responsible government means that a party, or coalition of parties, must maintain the support of the majority of members of the House of Representatives in order to remain in government. This provides another check on the Executive, ensuring they remain accountable to the Parliament and do not abuse their power.

History

The origins of the principle of the separation of powers can be traced back as far as ancient Greece. It was made popular much later by French philosopher Charles de Montesquieu in 1748 in his work L'Esprit des Lois (the Spirit of the Laws). He wrote that a nation's freedom depended on the three powers of governance-legislative, executive and judicial-each having their own separate institution. This principle has been widely used in the development of many democracies since that time.

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Home > Learning > Fact Sheets > Separation of Powers: Parliament, Executive and Judiciary Fact Sheet - Separation of Powers: Parliament, Executive and Judiciary [PDF 380kb, 2 pages] The Australian Constitution is the set of rules by which Australia is run.

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Home > Learning > Closer Look > The Australian Constitution > The Constitution and the High Court

The Constitution and the High Court
Closer Look - The Australian Constitution [PDF 1.58Mb, 9 pages]
The Australian Constitution does not include a Bill of Rights. However, some human rights are mentioned, including the right to compensation if the government acquires your property (s 51(xxxi)), guaranteed trial by jury for federal offences (s 80) and freedom of religion (s 116).

People are allowed to test the meaning and application of the Australian Constitution. It is the principal function of the High Court of Australia to interpret the Constitution and to settle disputes about its meaning. The High Court, established in 1903, has the power to consider Commonwealth or state legislation and determine whether such legislation is within the powers granted in the Constitution to the relevant tier of government. The High Court can invalidate any legislation or parts of legislation that it finds to be unconstitutional.

Sometimes the High Court is asked to decide whether it is the Commonwealth Government or a state government which has the authority and responsibility to deal with a matter. At other times, because the Constitution provides specific limits to what the Commonwealth Government is empowered to do, the High Court may be asked to decide whether a law made by the Commonwealth Government is within that power.

Evolving interpretations of the Constitution by the High Court have resulted in stronger law-making powers for the Commonwealth, without any changes to the words of the Constitution. Important court cases have included the Engineers Case (The Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129), the Tasmanian Dam Case (Commonwealth v Tasmania (1983) 158 CLR1) and Work Choices Case ( New South Wales v Commonwealth (2006) 231 ALR 1).

Work Choices Case

The 'Work Choices' legislation, which came into effect in March 2006, made substantial changes to the regulation of employment conditions and industrial relations. The legislation used the 'corporations power' granted by s 51(xx) of the Constitution, rather than the conciliation and arbitration power in s 51(xxxv) that has historically been the foundation of Australia's industrial legislation, to make the changes.

The Commonwealth's use of the corporations power was challenged by the states and territories in the High Court, along with other aspects of the Work Choices reforms. However, the challenge was rejected by a majority of the Court and the legislation was upheld.

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Home > Learning > Closer Look > The Australian Constitution > The Constitution and the High Court Closer Look - The Australian Constitution [PDF 1.58Mb, 9 pages] The Australian Constitution does not include a Bill of Rights.

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The trials of Gordon Wood (2012): 60 Minutes Timeless, Short Video

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Reporter: Liz Hayes
Producer: Steven Burling It was a case that had it all, a flamboyant stockbroker, a beautiful model, murky business dealings and a deadly mystery. And at the centre of it all was chauffeur Gordon Wood. Everyone believed Gordon Wood had murdered his girlfriend, Caroline Byrne,…

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Tips on how to behave in and for the courtroom  in Australia

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(American example)

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Watch the judge sentence Jodi Arias to life

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(Raw) 1995: O.J. Simpson verdict is not guilty

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Dumb and dumber

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Updated September 14, 2017 09:50:31

Magazine publisher Bauer Media has been ordered to pay Hollywood actress Rebel Wilson more than $4.5 million in damages for defaming her in a series of stories in 2015.

It is the largest defamation damages payout ever ordered by an Australian court.

"Today's verdict is a significant record - it's about four times the highest previous verdict in a defamation case in Australia," Wilson's lawyer Richard Leder said outside the Supreme Court in Melbourne.

"I think she's going to be absolutely stoked and she'll probably say she crushed it."

Wilson, who is in London, later tweeted she was grateful for the payout and promised to donate the money, as she had said she would do in June.

"Justice Dixon has awarded me a record sum and I'm extremely grateful for that," she said.

"To me though, this case wasn't about the money.

"I'm looking forward to helping out some great Australian charities and supporting the Oz film industry with the damages I've received."

Wilson was seeking $7 million after she successfully sued the Woman's Day publisher over eight articles, which she described in court earlier this year as a "malicious, deliberate take-down" of her.

The court today heard Wilson had offered to settle before trial for $200,000.

But in awarding the damages, Justice John Dixon described the extent of the defamation as "unprecedented in this country" because of the articles' global reach.

"At trial and in the full media glare, Bauer Media tried to characterise its articles as true, or as trivial, or as not likely to be taken seriously," he said.

"Substantial vindication can only be achieved by an award of damages that underscores that Ms Wilson's reputation as an actress of integrity was wrongly damaged in a manner that affected her marketability in a huge worldwide marketplace."

The actress had sought $5.89 million in special damages and $1.2 million in general damages.

"The decision by Justice Dixon clearly provides her with enormous vindication, which comes on top of the tremendous vindication that the jury verdict delivered to her. She's going to be absolutely thrilled," Mr Leder said.

The damages awarded included $650,000 in general damages and $3,917,472 in special damages for opportunities lost. Bauer will also have to pay the court costs.

Mr Leder said Wilson would also be seeking the full costs she incurred in running the case.

'A message to the tabloid media'

Justice Dixon strongly criticised Bauer Media for failing to properly investigate the claims about Wilson, and for publishing them despite knowing they were false.

"The information was based on a source who required payment and anonymity and whom the editor considered had an axe to grind," he said.

"They repeated the offending allegations when they knew or foresaw that their defamatory slurs would be repeated in the entertainment and celebrity media."

He said the continued publication of articles on Ms Wilson's past was motivated by the pursuit of profit.

"Their conduct was orchestrated, it was a campaign designed to cast a slur on Ms Wilson, that would attract interest," he said.

"Bauer Media published to advance it own corporate interests, to improve its circulation, or increase views, hits, in the expectation of high profits.

"It kept the story alive for days. Bauer Media appreciated the risk of reputational damage to the plaintiff and did not care whether Ms Wilson suffered it as it pursued its own corporate objective."

Bauer Media said in a statement that it was "considering the judgement".

"Bauer Media has a long history of delivering great stories to our readers and we have a reputation for developing some of the best editorial teams in the country," general counsel Adrian Goss said on behalf of the company.

"This is what we are focused on."

Mr Leder said Justice Dixon's words and the significant payment would serve as a "message to the tabloid media" not to operate in the same manner.

Damages payments for non-economic losses in Victorian defamation cases, such as for emotional suffering, are capped at $389,500. But "special damages", including loss of earnings, are uncapped.

The actress returned to Melbourne in May to give evidence over six days during the three-week trial.

At the time, she told the court she decided to sue to "stand up" for herself and her family, after the articles claimed she had lied publicly about her age, real name and upbringing.

"Even though it's going to be harrowing to come into the court ... I felt like I have to ... I'm the one to do it," she said.

"I have enough money, I have the courage to come and do it and this magazine company gets away with so much and not everyone has the strength to stand up for themselves."

'Shocked and blindsided'

In evidence which ranged from emotional to comedic, the 37-year-old actress told stories about her upbringing as a Sydney "bogan", including as a junior dog handler and the family's belief that they were related to Walt Disney.

"It's just something I've always known, like knowing who your parents are," she told the court under cross examination.

"My Nana had a family tree done.

"I believe the purpose of why she did it was to see whether us, her grandchildren, were entitled to any royalties."

During the trial, she became upset as she spoke about the impact the articles had on her personal and professional career.

She told the court the articles caused her to be fired from the movies Trolls and Kung Fu Panda 3 because she was "too divisive".

"I was just absolutely shocked and blindsided ... I didn't even know what to say, I was just extremely embarrassed," she said.

"The director and producers had said they'd loved my improvisation so much that it reminded them of when Robin Williams recorded.

"I believe Mr Katzenberg was referring to the negative press - that's the only thing I can think of."

Another of Wilson's lawyers, Matthew Collins QC, told the trial that Wilson could have made up to $18 million from a number of film roles if the articles had not damaged her career, and the amount sought was "conservative".

Topics: courts-and-trials, law-crime-and-justice, information-and-communication, print-media, melbourne-3000, vic

First posted September 13, 2017 10:39:16

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'She crushed it': Rebel Wilson wins Australia's largest defamation payout

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Updated September 14, 2017 09:50:31 Magazine publisher Bauer Media has been ordered to pay Hollywood actress Rebel Wilson more than $4.5 million in damages for defaming her in a series of stories in 2015. It is the largest defamation damages payout ever ordered by an Australian court.

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Indigenous Australians not counted in the constitution

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Indigenous Australians not counted in the constitution

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Everything you need to know about the role, function, structure and people of the Australian Parliament. From the Australian Constitution to bills and laws, and how you can get involved, this section will help you understand how our Parliament works, as well as its history.

About us

The Parliamentary Education Office (PEO) educates Australians about, and inspires their enthusiasm for, Australia's parliamentary democracy.

Through our accessible, immersive, experiential programs and resources, the PEO fosters informed, engaged and active citizens of all ages.

Let us help you...

The PEO acknowledges the traditional owners of country throughout Australia and their continuing connection to land, culture and community. We pay our respects to elders past and present.

© Commonwealth of Australia | Page last reviewed 22 May 2019

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Understand our Parliament - Parliamentary Education Office

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Everything you need to know about the role, function, structure and people of the Australian Parliament. From the Australian Constitution to bills and laws, and how you can get involved, this section will help you understand how our Parliament works, as well as its history.

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Quick Facts
"Sport is not about being the best, but it's about giving your best.""I found myself smiling on the starting blocks, which is very rare.""When you wake up in the middle of the night-and crime is so endemic in South Africa-what do you do if somebody is in the house? Do you think it is one of your family? Of course you don't.""To tell you the truth, I don't think of myself as disabled. I have limits, but we all have limits and like anyone else I also have many talents.""At the end of the day, you've got to learn for yourself your limits and boundaries. That's when you end up exceeding expectations, really.""I didn't want to run if I was a cheat. I didn't want to have the slightest doubts in my mind.""I believe in the purity of sport. I don't like people who take short cuts.""All I want is not to spend my career discussing my legs. I've trained as much as anyone. I have sacrificed as much as anyone.""Losing isn't the one that gets involved and comes last, it's the person that doesn't get involved in the first place.""I can't bear the idea of looking back and thinking I could have done better.""Anyone can train hard for a short period. Winners give their best every hour of every day for months on end.""I'm no different. I happen to have no legs."

Name

Oscar Pistorius

Birth Date

November 22, 1986 (age 34)

Did You Know?

Born with missing fibula in both legs, Oscar Pistorius had his legs amputated below the knees before his first birthday. He went on to become the first amputee to compete in track events at the Olympics.

Place of Birth

Johannesburg, South Africa

AKA

Fastest Man on No Legs

Nickname

"Blade Runner"

Full Name

Oscar Leonard Carl Pistorius

Zodiac Sign

Sagittarius

Who Is Oscar Pistorius?

Oscar Pistorius is a South African sprinter, nicknamed the "Blade Runner," who endured the amputation of both legs as an infant but still became highly active in sports. He took up running at age 16, and within a few months, he had captured gold at the 2004 Athens Paralympics. Pistorius began competing against able-bodied athletes, and in 2012, made history as the first amputee to compete in track events at the Olympics. The following year, Pistorius was arrested for killing his girlfriend, Reeva Steenkamp, at his home.

Amputee to Track Champion

Oscar Leonard Carl Pistorius, the first amputee athlete to compete in the Olympics, was born on November 22, 1986, in Johannesburg, South Africa. The son of Henk and Sheila Pistorius, Oscar Pistorius was the middle child of three. His family, while prominent in South Africa, lived a largely middle-class lifestyle.

Pistorius' childhood was shaped partly by tragedy. His parents divorced when he was six, a fact that largely contributed to a strained relationship between Pistorius and his father, a businessman. His mother died when he was 15, the result of drug complications following a hysterectomy. Pistorius's own physical health was marred at birth. Born without a fibula in either of his legs, his parents made the difficult decision to have their son's legs amputated below his knees just before his first birthday.

Within six months, Pistorius was walking successfully with a pair of prosthetic legs. His handicap hardly slowed his involvement in sports, which spanned from cricket to wrestling to boxing.

It wasn't until he was 16 and in need of a sport that could help him rehab a knee injury sustained in a rugby match, that Pistorius was introduced to track. His rise in the sport came quickly. In January 2004, he competed in his first 100-meter race; nearly eight months later, Pistorius, wearing a pair of Flex-Foot Cheetahs, a lightweight carbon fiber foot, captured the gold medal in the 200-meter race at the 2004 Athens Paralympics.

Olympic Milestone

Following his win in Athens, Pistorius competed in several races in South Africa against able-bodied athletes. Success begat greater attention, and European race organizers were soon inviting Pistorius to their events.

However, the runner's artificial legs became a source of controversy. In 2007, the International Association of Athletic Foundations (IAAF) banned Pistorius from competing, stating that his artificial legs gave him an unfair advantage over able-bodied athletes. Pistorius immediately appealed the ruling, and in May 2008 the Court of Arbitration for Sport overturned the IAAF decision.

After missing the cut for the 2008 Summer Olympics in Beijing, a determined Pistorius focused his training on making the 2012 Summer Olympic Games in London. Along the way, Pistorius, nicknamed "Blade Runner" and also called the "fastest man on no legs," captured three gold medals at the 2011 IPC Athletic World Championships. Two more titles followed, in the 400-meter and 100-meter events at the BT Paralympics World Cup.

In spring 2012, Pistorius realized his ultimate dream when he qualified for the 400-meter race at the London Olympics. While he was eventually eliminated in the semifinal round, he secured his place in history by becoming the first amputee athlete to compete in track events at the Olympics. To mark the occasion, Pistorius flew out his 89-year-old grandmother to watch him race. "It's just an unbelievable experience," Pistorius said shortly after his first Olympic race. "I found myself smiling on the starting blocks, which is very rare."

Reeva Steenkamp's Death and Murder Charge

The track star made headlines of a different kind in February 2013, after his girlfriend, South African model Reeva Steenkamp, was found dead at his home in Pretoria, South Africa. According to police, Steenkamp was shot and killed on the morning of February 14, 2013, with bullet wounds to the head and one arm. Pistorius was soon named a suspect in the case.

Five days after Steenkamp's death, on February 19, 2013, during a hearing at the Magistrate Court in Pretoria, Pistorius admitted to unintentionally shooting Steenkamp at his home on Valentine's Day. He went on to state that he had mistaken his girlfriend for an intruder and shot her through a locked bathroom door. Consequently, Pistorius faced a charge of premeditated murder that would result in a mandatory life sentence in the event of a guilty verdict.

Trial and Culpable Homicide Sentence

On March 3, 2014, the trial for Pistorius began. In addition to being charged with premeditated murder, Pistorius also faced two separate gun indictments from incidents unrelated to the death of his girlfriend. He pleaded not guilty to all charges. Pistorius claimed that he was frightened in his home at the noise of an unknown intruder, which caused him to shoot at the bathroom door when coupled with his vulnerable state of mind without his prosthetic legs.

Pistorius's neighbor Michelle Burger testified that she heard a "blood-curdling" scream from a woman on the night of the murder, followed by a man yelling for help three times. Burger also claimed to have heard gunshots. Prosecutors within the trial accused Pistorius of having argued with Steenkamp on the night of the murder, resulting in her locking herself in the toilet.

As the trial progressed, Pistorius took the stand to defend himself. He first offered his apologies to Steenkamp's family before continuing to claim that he shot her by accident. During his testimony, Pistorius broke down into tears. Some observers were not swayed by this show of emotion. Reports later surfaced that he had taken acting lessons before his court appearance, but Pistorius denied these claims.

After a recess of a few weeks, the trial resumed in May. Pistorius's lawyers called a psychiatrist to testify that Pistorius suffered from a "generalized anxiety disorder," according to the Los Angeles Times. This condition was introduced as a possible influence on Pistorius and his deadly actions. Judge Thokozile Masipa then called for another delay in the trial for Pistorius to undergo a full mental health examination by a team of psychiatrists.

Pistorius was determined to not have an anxiety disorder, according to the psychological report released in late June. His trial soon resumed and carried on for several more weeks before both sides presented their closing arguments. On September 11, Judge Masipa declared that Pistorius was not guilty of premeditated murder. However, Pistorius was later found guilty of culpable homicide, and in October, he was sentenced to five years in prison.

On October 19, 2015, Pistorius was released from prison and placed under house arrest and correctional supervision for four years. In a speech given at Steenkamp's former school in Port Elizabeth, her mother, June, said she had to forgive to move on with her own life: "I didn't want him to be thrown in jail and be suffering because I don't wish suffering on anyone, and that's not going to bring Reeva back."

Appeals and New Sentences

On December 3, 2015, the top appeals court in South Africa ruled that Pistorius was guilty of first-degree murder of Steenkamp. The court believed that a misinterpretation of laws combined with a dismissal of circumstantial evidence had caused prosecutors to offer the lesser charge of culpable homicide in 2014.

On the charge of first-degree murder, Judge Eric Leach said: "I have no doubt that, in firing the fatal shots, the accused must have foreseen, and therefore did foresee, that whoever was behind the toilet door might die, but reconciled himself to that event occurring and gambled with that person's life. ... The identity of his victim is irrelevant to his guilt."

On July 6, 2016, Judge Masipa sentenced Pistorius to six years in prison for Steenkamp's murder. However, this sentence was condemned by the South African National Prosecuting Authority, on the grounds that it was far too lenient and "disproportionate to the crime." In September 2017, it was announced that the Supreme Court of Appeal would hear the state's argument against the six-year murder sentence, with a court date scheduled for November 3.

On November 24, 2017, shortly after Lifetime aired its original movie Oscar Pistorius: Blade Runner Killer, starring Andreas Damm and Toni Garrn, South Africa's Supreme Court of Appeal handed down a new sentence of 13 years and five months to the fallen sporting hero. Upon delivering the verdict, Supreme Court Justice Willie Seriti noted that Pistorius failed to explain in multiple court hearings why he fired the fatal shots and did not seem genuinely remorseful. "The sentence of six years' imprisonment is shockingly lenient to a point where it has the effect of trivializing this serious offense," he said.

In response, the Steenkamp family lawyer said her clients "feel there has been justice for Reeva. She can now rest in peace." At the time, it was unclear whether Pistorius planned to appeal the sentence to the South Africa Constitutional Court.

Fact Check

We strive for accuracy and fairness. If you see something that doesn't look right, contact us!

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"Sport is not about being the best, but it's about giving your best." "I found myself smiling on the starting blocks, which is very rare." "When you wake up in the middle of the night-and crime is so endemic in South Africa-what do you do if somebody is in the house?

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Graphic pictures of Reeva Steenkamp's dead body after she was killed by her boyfriend Oscar Pistorius have been released to the public following a request from her family that they wanted "the world to see" the images as a warning to anyone thinking of using firearms.

Judge Thokozile Masipa approved the release of the images on Wednesday following a request from Chief Prosecutor Gerrie Nel on behalf of Ms Steenkamp's family.

The decision came during the former Olympic athlete's murder sentencing after his initial manslaughter conviction - for which he served 10 months of a five-year sentence - was upgraded to murder upon appeal.
WARNING: Below are images of Reeva Steenkamp that some readers may find distressing
Pistorius walked around North Gauteng High Court without his prosthetic legs on Wednesday as his lawyer Barry Roux attempted to show the double-amputee Olympic athlete is a vulnerable man who deserves leniency when sentenced, arguing he had no intent to kill his girlfriend and believed she was an intruder when he shot her through a door on Valentine's Day 2013.

The pictures showing Ms Steenkamp's fatal wounds, including a severe head injury, had previously been withheld from the public in order to "protect the integrity of the deceased".

However, her father, Barry Steenkamp, asked for the pictures to be released to the public on Tuesday when he broke down in the witness box to tell the court how he and his wife have struggled to cope since his daughter's murder.

Mr Steenkamp said he had seen "only one photo" of his daughter's murdered body, which was produced in court when Mr Steenkamp was present two years ago, but wanted "the world to see" the others, as a warning about the dangers of firearms.

Repeating the request at Pistorius' sentencing hearing on Wednesday, Chief Prosecutor Gerrie Nel said: "The court should have access to these photographs. The court itself should revisit certain things in sentencing.

"Four bullets tore through her body. The court should take that into account as an aggravating factor... It's part of sentencing.

"We think it's time that people should see what those bullets did; what the accused did."

Defence lawyer Mr Roux had suggested the application to release the images was inappropriate at this stage of the proceedings. He asked the court: "Must children look at it?.. What is going to be achieved?"

The defendant's brother, Carl Pistorius, who was in court, said over twitter that the application to release the photos was "distasteful".

Judge Masipa has the power to reduce South Africa's minimum 15-year prison term for murder after listening to evidence from the prosecution and defence. She will announce Pistorius' sentence for the murder of Ms Steenkamp on 6 July.

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Pictures of Reeva Steenkamp's dead body have been made public

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Graphic pictures of Reeva Steenkamp's dead body after she was killed by her boyfriend Oscar Pistorius have been released to the public following a request from her family that they wanted "the world to see" the images as a warning to anyone thinking of using firearms.

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Summary: Oscar Pistorius was arrested after the fatal shooting of his girlfriend, Reeva Steenkamp, at his Pretoria home on 14 February 2013. The Paralympic star was released on R1m bail. His 43-day trial started on 3 March 2014. On 12 September, Judge Thokozile Masipa found him not guilty of murder, but guilty of culpable homicide. He was also found guilty of firing a pistol in a restaurant. On 21 October 2014, Pistorius was sentenced to five years in prison.

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Oscar Pistorius - Reeva Steenkamp - Murder Case | News24

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Summary: Oscar Pistorius was arrested after the fatal shooting of his girlfriend, Reeva Steenkamp, at his Pretoria home on 14 February 2013. The Paralympic star was released on R1m bail. His 43-day trial started on 3 March 2014. On 12 September, Judge Thokozile Masipa found him not guilty of murder, but guilty of culpable homicide.

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The amount and nature of financial assistance that may be awarded to a victim of crime is limited by the Victims of Crime Assistance Act 1996, and differs between primary, secondary and related victims. The amount of financial assistance awarded to a victim of crime to assist in their recovery must be reasonable, and the expenses claimed must directly arise from the crime.

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The amount and nature of financial assistance that may be awarded to a victim of crime is limited by the Victims of Crime Assistance Act 1996, and differs between primary, secondary and related victims. The amount of financial assistance awarded to a victim of crime to assist in their recovery must be reasonable, and the expenses claimed must directly arise from the crime.

# data[].attributes.attachment_link.readable_text
The amount and nature of financial assistance that may be awarded to a victim of crime is limited by the Victims of Crime Assistance Act 1996, and differs between primary, secondary and related victims. The amount of financial assistance awarded to a victim of crime to assist in their recovery must be reasonable, and the expenses claimed must directly arise from the crime.

# data[].attributes.attachment_link.description
The amount and nature of financial assistance that may be awarded to a victim of crime is limited by the Victims of Crime Assistance Act 1996, and differs between primary, secondary and related victims. The amount of financial assistance awarded to a victim of crime to assist in their recovery must be reasonable, and the expenses claimed must directly arise from the crime.

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Review applicants may argue their agency did not give them procedural fairness or 'natural justice'.Usually this means they think they did not have sufficient opportunity to state their case before an employment decision was made.

Procedural fairness is a legal principle that ensures fair decision making. It has developed over time as a result of decisions by the courts in administrative law cases. Some decision making processes, such as Code of Conduct decisions, have codified procedural fairness obligations, meaning that the legislation expressly provides for procedural fairness.

Generally, procedural fairness requires decisions to be consistent with:

the bias rule- free from bias or apprehension of bias by the decision-maker.

the evidence rule-rational or based on evidence that is logically capable of supporting the facts.

the hearing rule-providing people likely to be adversely affected by decisions an opportunity to:

present their case and

have their response taken into consideration before the decision is made.

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Review applicants may argue their agency did not give them procedural fairness or 'natural justice'.Usually this means they think they did not have sufficient opportunity to state their case before an employment decision was made. Procedural fairness is a legal principle that ensures fair decision making.

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14.11'Procedural fairness' means acting fairly in administrative decision making. It relates to the fairness of the procedure by which a decision is made, and not the fairness in a substantive sense of that decision. A person may seek judicial review of an administrative decision on the basis that procedural fairness has not been observed. In Re Refugee Tribunal; Ex parte Aala, the High Court held that the denial of procedural fairness by an officer of the Commonwealth, where the duty to observe it has not been validly limited or extinguished by statute, will result in a decision made in excess of jurisdiction and thus attract the issue of prohibition under s 75(v) of the Constitution.

14.12In considering whether there has been a denial of procedural fairness, courts will examine two issues:

Is there a duty?

14.13In 2015, the High Court succinctly stated that, in 'the absence of a clear, contrary legislative intention, administrative decision-makers must accord procedural fairness to those affected by their decisions'.

14.14The manner in which a person's interests are affected is relevant to whether a duty to afford procedural fairness exists. There is less likely to be a duty to afford procedural fairness where a decision affects a person as a member of the public or a class, rather than in their individual capacity. Procedural fairness may not apply where a decision 'affects so many people that it is really a legislative act; or where the range of public policy considerations that the deciding body can legitimately take into account is very wide'.

14.15A duty to afford procedural fairness may be excluded by legislation. This is a matter of statutory construction, the key question being whether legislation, 'properly construed, limits or extinguishes the obligation to accord natural justice'. Professors Mark Aronson and Matthew Groves have suggested that courts increasingly construe legislation so as to imply that a duty to afford procedural fairness exists, particularly since the statement by the High Court in Saeed v Minister for Immigration and Citizenship ( Saeed) that procedural fairness is protected by the principle of legality. This has made legislative exclusion 'very difficult in practice'.

14.16Courts have found that a duty to afford procedural fairness may be impliedly excluded where it would be inconsistent with the proper operation of the relevant statutory provisions.

14.17Express statutory provisions that set out procedural requirements to be followed in the making of a decision may not establish with the requisite clearness an intention to exclude natural justice. Groves has observed that the 'weight of more recent cases suggests that the courts are very reluctant to accept that a legislative code is exhaustive and therefore intended to exclude the implication of further common law hearing rights'. This may be the case even where the provisions are described as a 'procedural code'. In Saeed, the High Court accepted that provisions stating that procedures contained in the Migration Act were 'exhaustive' statements of the natural justice hearing rule were effective to exclude the implication of natural justice, but only in relation to the matters to which the provisions referred.

Content of procedural fairness

14.18There is no fixed content to the duty to afford procedural fairness. The fairness of the procedure depends on the nature of the matters in issue, and what would be a reasonable opportunity for parties to present their cases in the relevant circumstances. Mason J stated in Kioa v West that 'the expression "procedural fairness" ... conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case'. In Re Minister for Immigration and Multicultural Affairs; Ex parte Lam, Gleeson CJ emphasised that 'fairness is not an abstract concept' and that the 'concern of the law is to avoid practical injustice'.

14.19Aronson and Groves have noted that the willingness on the part of the courts to imply a duty to afford procedural fairness, and reluctance to find that it has been excluded by statute, has meant that the crucial question will usually be the content of procedural fairness rather than whether the duty exists.

14.20Procedural fairness traditionally involves two requirements: the fair hearing rule and the rule against bias. The hearing rule requires a decision maker to afford a person an opportunity to be heard before making a decision affecting their interests. In Kioa v West, Gibbs CJ said that the 'fundamental rule is that a statutory authority having power to affect the rights of a person is bound to hear him before exercising the power'. The rule against bias ensures that the decision maker can be objectively considered to be impartial and not to have pre-judged a decision.

14.21The content of the rule against bias is flexible, and determined by reference to the standards of the hypothetical observer who is fair minded and informed of the circumstances.

14.22The specific content of the hearing rule will vary according to statutory context. However, a fair hearing will generally require the following:

Prior notice that a decision that may affect a person's interests will be made. This has been referred to as a 'fundamental' or 'cardinal' aspect of procedural fairness.

Disclosure of the 'critical issues' to be addressed, and of information that is credible, relevant and significant to the issues.

A substantive hearing-oral or written-with a reasonable opportunity to present a case. Whether an oral hearing should be provided will depend on the circumstances. The 'crucial question is whether the issues can be presented and decided fairly by written submissions alone'. In some circumstances, there may be a duty to allow a person to be legally represented at a hearing.

14.23The balancing of issues to determine what fairness requires in a particular case may have the result that the content of procedural fairness is greatly reduced. This may be the case, for example, where issues related to national security arise. In Leghaei v Director-General of Security, the Federal Court considered the duty to afford procedural fairness in the making of an 'adverse security assessment' by the Australian Security Intelligence Organisation (ASIO).

14.24Adverse security assessments are relevant to administrative decisions related to visa status. In Leghaei, the receipt of an adverse security assessment resulted in the cancellation of the plaintiff's residency visa.

14.25The primary judge found that there existed 'a duty to afford such degree of procedural fairness in the making of an adverse security assessment as the circumstances could bear, consistent with a lack of prejudice to national security'. However, upon considering the balance to be struck between the public interest in national security and a duty to disclose the critical issues on which an administrative decision is likely to turn, the primary judge held that the content of procedural fairness was 'reduced, in practical terms, to nothingness'.

14.26On the other hand, it may be that, where a decision 'would have especially serious consequences upon a person affected, the hearing rule would require detailed procedural requirements'.

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Procedural fairness: the duty and its content | ALRC

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14.11 'Procedural fairness' means acting fairly in administrative decision making. It relates to the fairness of the procedure by which a decision is made, and not the fairness in a substantive sense of that decision.[12] A person may seek judicial review of an administrative decision on the basis that procedural fairness has not been observed.[13] ...

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Make sure you are at the venue at least 30 minutes early to pass through security and locate your hearing room. If you arrive late there may be orders made against you.

VCAT is a tribunal so we are less formal than a court, but there are still some rules to follow and things to do when you attend a hearing.

Our cases are heard by members. Some cases are heard by judicial members - our president or vice presidents - who are also judges.

What you can and cannot bring to a hearing

Bring all documents that support your case, including any evidence, expert reports and submissions you may have.

For safety reasons, you cannot bring into our venues:

weapons and any other items that could be used as a weapon

any sharp items (e.g. manicure sets, table knives, forks and scissors)

harmful substances and chemicals

glass bottles and any other glass objects

tools (e.g. stanley knives, box cutters)

You will be searched and scanned by security when you enter.

Your right to a fair hearing

Both sides have a right to a fair hearing and it is the 's job to make sure that happens. The member explains what to do as the case goes along. If you are not sure what to do, ask the member. To learn more about our fair hearing obligation, see Practice Note PNVCAT3 - Fair Hearing Obligation.

Hearings are open to the public

All our hearings are open to the public except if the member orders them closed. We only arrange for a hearing to be private in exceptional circumstances.

If you want your hearing to be held in private, or your name or the name of a witness suppressed, you must make that request in writing before the hearing or at the beginning of the hearing. Find out more about how to apply for confidentiality.

When to enter the hearing room

When your case is called move into the hearing room and make sure you are ready to present your case.

Make sure your mobile devices are on silent or switched off. For more about use of mobile devices in hearing rooms, see Photography, recording, mobile phones and electronic devices.

When the hearing starts

Stand when the VCAT member enters the room. Remain standing until invited by the member to sit.

We encourage people to resolve their disputes before reaching a final hearing. Even at the final hearing, the member may spend some time seeing if the parties can agree to resolve the matter before formally starting the proceeding.

If the parties cannot agree, the member starts the hearing.

In most hearings, the member sits at the front of the hearing room facing the parties. The long table is where the parties sit facing the member. Other people may sit at the back of the room.

Be polite

Everyone must be polite. We expect everybody in the hearing to treat others in the hearing with courtesy and respect.

How to address the member

You can call a member 'Sir' or 'Madam'. If their name appears on the table in front of them you may also call them 'Ms' or 'Mr' and their family name.

The president is 'Your Honour'.

A vice president is 'Judge'.

Oath or affirmation

You and your witnesses may be asked to make a formal promise to tell the truth in the hearing by making an or . The member or a bench clerk will show you how to complete the oath or affirmation.

Order of proceedings

Usually a hearing proceeds in a structured way. The order in which parties present their case can be different according to the case type. In many cases, the is the first to state their case, provide evidence and call witnesses.

The member may ask you and your witnesses questions especially where there is no . The respondent may also ask you and your witnesses questions. This is called cross examination. The respondent will then give evidence as will the witnesses for the respondent and you may ask them questions.

Choose the relevant case type to see if the order of proceedings at your hearing is different to what is described here.

If you can't attend a hearing in person

If you cannot attend a hearing in person, you may be able to join by telephone or video conference. Please apply as early as possible so we can consider your request and make arrangements.

We are only able to grant requests when there is sufficient reason and if the member considering the request considers that the case is suitable for telephone or video conference.

Read about hearing room technology options available at VCAT before completing the Application to use technology form.

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Make sure you are at the hearing at least 15 minutes early. If you arrive late there may be orders made against you. VCAT is a tribunal so we are less formal than a court, but there are still some rules to follow and things to do when you attend a hearing.

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There are many different people and organisations that make up Victoria's legal sector, working together to provide a fair and accessible justice system for all Victorians.

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ON MARCH 30, 2006, at 11.58pm, 15-year-old Patrick Waring was in bed in his Perth home when the door to his room was pushed open. He might have been expecting it to be his parents - but they were 400 kilometres away on holiday. Assuming it to be his older brother, Michael, Patrick looked up to find instead several plain-clothes policemen standing in the doorway.

Ordered from bed, Patrick was advised that he was being arrested for the rape of a teenage girl that had occurred earlier that day. Though he denied ever having met the girl, Patrick, accompanied by Michael, was taken to a nearby police station. Frantic calls were made to the boys' parents, who immediately started driving back to Perth.

By the time they arrived at the station, it was all over. Patrick had been charged with rape and remanded, with a bail hearing set for the following Monday.

Falsely accused of rape, Patrick Waring's terrible tale is told in Every Family's Nightmare .

Falsely accused of rape, Patrick Waring's terrible tale is told in Every Family's Nightmare .

''We were disappointed that Patrick wasn't able to be released to us over the weekend,'' father Terry Waring says in Every Family's Nightmare. ''[But] we felt that it was just a process and that we would be able to get him back on the Monday.''

But Terry Waring was wrong. Patrick would not be released for another year and only after a long and painful journey through the West Australian criminal justice system.

''What happened to Patrick could happen to any of us,'' says filmmaker Ed Punchard. ''As our film shows, if the police ever get a hold of you, you can find yourself on an express train that is very hard to get off.''

Punchard first heard of Patrick Waring after he had been on remand for a couple of months. ''We deconstructed every component and it became pretty clear that a miscarriage of justice was taking place,'' Punchard says. ''And so we started shooting, with the family's approval, and followed them right up to the moment Patrick was acquitted.''

Despite Patrick insisting that he had never met the girl, the police case seemed strong. Patrick's number was on the girl's mobile phone and the call log showed that he had called her at the time of the alleged attack. In a photo line-up, the girl had positively identified Patrick as her attacker. There was also CCTV footage of the girl walking along a nearby train platform, followed closely by a man who clearly fitted Patrick's description. But still Patrick maintained he had never met her, a denial that, in the eyes of the police, only seemed to reinforce his guilt.

Because of the violence of the attack - the allegation was that the girl had been raped anally at knifepoint - the judge dismissed the bail application, leaving Patrick awaiting trial in jail, where he was beaten up and routinely strip-searched. After three months of this, the family turned for help to Robin Napper, an independent forensic investigator and former British detective superintendent.

''I told the family I was not a gun for hire,'' says Napper, a 30-year veteran of sexual investigations. ''If I thought Patrick had done this I would tell them.''

But Napper quickly discovered a litany of basic policing errors, starting with the night of Patrick's arrest. ''The police had broken every forensic rule in the book,'' Napper says. ''They took the girl in the clothes she said she had been attacked in, put her in the back of a general-purpose police vehicle and drove her to where she said the crime actually happened. That is a complete no-no.''

Police cars are so full of contamination as to render the girl's clothes worthless as forensic evidence. The police then did the same with Patrick: rather than remove the clothes he said he'd been wearing, they drove him to the station in a general-purpose vehicle.

The police also conducted the first forensic examination of the crime scene at night. ''The only way to examine a crime scene properly is in daylight,'' Napper says. ''But they never did that.''

Transcripts of the interviews also showed that the girl had repeatedly changed her story, something police never bothered to question. The DNA evidence was also damning: there was no sign of Patrick's DNA in the intimate swabs from the girl and no sign of the girl in the intimate swabs of Patrick. But still the case went ahead.

While Patrick had initially denied ever meeting the girl, this was a lie. He had met her, on the day of the attack, when he had briefly chatted to her outside the cinema. Patrick and the girl exchanged phone numbers, and Patrick had attempted to call her, but that was as far as it went. Swept up in a crime he did not commit, Patrick panicked, and denied ever having met the girl.

As Punchard explains: ''It could have been brought to a halt on several occasions but it wasn't. And one of the reasons it wasn't is that the police just assumed they had their man.''

It's a problem of mentality, he says, of modern eliminative policing versus old nominative policing. ''Unfortunately,'' Punchard sighs. ''It's a problem we're still struggling with in this country.''

Every Family's Nightmare airs on Wednesday at 8.30pm on SBS One.

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ON MARCH 30, 2006, at 11.58pm, 15-year-old Patrick Waring was in bed in his Perth home when the door to his room was pushed open. He might have been expecting it to be his parents - but they were 400 kilometres away on holiday.

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It's been described as a travesty of justice. A circus. An important battle for the American people. A monumental non-event. Whatever conclusion you come to by the end of this lecture, few events better exemplify the conflict...

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It's been described as a travesty of justice. A circus. An important battle for the American people. A monumental non-event. Whatever conclusion you come to by the end of this lecture, few events better exemplify the conflict...

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Every family's worst nightmare - Patrick Waring

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Every family's worst nightmare - Patrick Waring

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This is the shocking inside story of a family's fight to free their 15-year-old son after he is wrongly accused of rape. A horrifying tale of lies, deception and the high cost of justice, Every Family's Nightmare raises...

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national film and sound archive of australia

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This is the shocking inside story of a family's fight to free their 15-year-old son after he is wrongly accused of rape. A horrifying tale of lies, deception and the high cost of justice, Every Family's Nightmare raises...

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Law, Justice and Society: The Changing Nature of the Law

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Law, Justice and Society: The Changing Nature of the Law

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All laws are rules, but not all rules are law. This program looks at how the legal rules accepted by our society allow us to live in relative peace. Laws perform many roles, one being to reduce and resolve conflict in our community. Laws reflect the way in which we live, by supporting our political, economic and social systems. And laws also allow for our society to change. This program will help students examine the concepts of law and justice and how these concepts are shaped by the nature of our society.

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justice and society: the changing nature of the law

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Law, Justice and Society: The Changing Nature of the Law

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All laws are rules, but not all rules are law. This program looks at how the legal rules accepted by our society allow us to live in relative peace. Laws perform many roles, one being to reduce and resolve conflict in our community.

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Court Procedures in Criminal and Civil Law

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Court Procedures in Criminal and Civil Law

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This engaging and informative program discusses the differences between criminal and civil procedures, focussing on the role of the Magistrates Court in dealing with summary and indictable offences, and the trial procedure in the County Court. It looks at the purpose of pre-trial civil procedures in exposing all evidence in order to reach an out-of-court settlement, how civil disputes are resolved and how this differs from a criminal trial. A comprehensive explanation of a complex area.

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court procedures in criminal and civil law

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Court Procedures in Criminal and Civil Law

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This engaging and informative program discusses the differences between criminal and civil procedures, focussing on the role of the Magistrates Court in dealing with summary and indictable offences, and the trial procedure in the County Court.

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ibac victoria corruption integrity "public sector"

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Welcome to the official IBAC YouTube channel.

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This program explores a range of aspects and issues relating to justice and social responsibility within Australia and around the world. It features two very high profile Australian experts in this area - Reverend Tim Costello and Julian Burnside QC - who paint a picture of where the Australian society is placed in relation to its principles of justice and social responsibility. We also hear firsthand accounts from an Iraqi refugee, who was detained in Woomera Detention Centre, and a member of the stolen generation, Christine Feijoa King, outlining their perspectives on Australian justice and social responsibility. The program also defines social justice and human rights, explores Australian society, access to resources and services such as health care, education and employment, and looks to a better future in both our own nation, and globally. 1. What is Social Justice? 2. Human Rights 3. A Just Australia 4. Towards Social Justice and Responsibility 5. A Better World

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This program explores a range of aspects and issues relating to justice and social responsibility within Australia and around the world. It features two very high profile Australian experts in this area - Reverend Tim Costello and Julian Burnside QC - who paint a picture of where the Australian society is placed in relation to its principles of justice and social responsibility.

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Administrative Notices
See Practice Notes. Administrative notices are no longer used by the Court.

Alternative procedure agreement
A type of Indigenous land use agreement.

Appeal
An application to a higher court to review a decision of a lower court or tribunal. For example, an appeal from a decision of a Federal Circuit Court judge may be made to the Federal Court, and a decision of a single judge of the Federal Court may be the subject of an appeal to the Full Court of the Federal Court.

Appellate jurisdiction
The power given to a court to hear appeals in certain matters.

Applicant
The individual, organisation or corporation who/which applies to the Court to start legal proceedings against another person or persons. Also known as 'plaintiff' in admiralty and corporations matters and in some other courts. In the National Native Title Tribunal the applicant is the person or persons who make an application for a determination of native title or a future act determination.

Application
The document that starts most proceedings in the Federal Court.

Area agreement
A type of Indigenous land use agreement.

Body corporate agreement
A type of Indigenous land use agreement.

Cause of action
A technical term used in the Federal Court's electronic case management system to classify proceedings commenced with the Court. There are sixteen main causes of action and five supplementary causes of action. These classifications are different from the way in which the Court organises and manages its work, which is done through nine National Practice Areas (NPAs). See National Practice Area.

Compensation application
An application made by Indigenous Australians seeking compensation for loss or impairment of their native title.

Cross appeal
An application by a respondent in an appeal also seeking a review of the lower court or tribunal decision and made in response to the appeal. A cross appeal is not required if the respondent is simply seeking that the decision of the lower court or tribunal be upheld.

Cross claim
A claim made in a proceeding by one party against a co-party, such as the first respondent (or defendant) against the second respondent (or defendant). However, if the claim in the proceeding is by one party against an opposing party, such as the respondent (or defendant) against the applicant (plaintiff), it is called a counter claim. A cross claim has to be closely connected to what is in dispute in the original claim or a counter claim.

Directions
Orders made by the Court or a judge in relation to the conduct of a proceeding. Before the trial or hearing of a matter a judge may give directions so that the parties involved will be properly ready. The directions usually set down a list of steps to be taken by the parties and the deadline for those steps. The steps usually involve filing of material and defining the issues that require a decision by the Court.

Discovery
A process by which the parties involved in a legal proceeding must inform each other of documents they have in their possession and which relate to the matters in dispute between the parties.

Docket system
A system by which each case is allocated to a particular judge who will then see the case through to completion. In the Federal Court the system is called the Individual Docket System (IDS).

Electronic Court File
An electronic court file is a digital version of the Court file including all documents filed with the Court or created by the Court.

Exhibit
A document or item produced in court for the purpose of becoming part of the evidence in a proceeding.

F iling of documents
The process of the Court accepting a document or documents lodged by a party to a proceeding.

F irst instance
A proceeding heard in the Court's original jurisdiction.

Full Court
Three or more judges sitting together to hear a proceeding.

Future act
A proposed activity on land and/or waters that may affect native title.

Future act determination application
An application requesting the National Native Title Tribunal (NNTT) to determine whether a future act can be done (with or without conditions).

Future act determination
A decision by the NNTT either that a future act cannot be done, or can be done with or without conditions. In making the determination, the Tribunal takes into account (among other things) the effect of the future act on the enjoyment by the native title party of their registered rights and interests and the economic or other significant impacts of the future act and any public interest in the act being done.

Good faith negotiations (native title)
All negotiation parties must negotiate in good faith in relation to the doing of future acts to which the right to negotiate applies (Native Title Act 1993 s 31(1)(b)). See the list of indicia put forward by the NNTT of what may constitute good faith in its Guide to future act decisions made under the Right to negotiate scheme at www.nntt.gov.au. Each party and each person representing a party must act in good faith in relation to the conduct of the mediation of a native title application (s 136B(4)).

Hearing
That part of a proceeding where the parties present evidence and submissions to the Court.

ILUA
Indigenous land use agreement, a voluntary, legally binding agreement about the use and management of land or waters, made between one or more native title groups and others (such as miners, pastoralists, governments).

Interlocutory application
Interlocutory proceedings are for dealing with a specific issue in a matter - usually between the filing of the application and the giving of the final hearing and decision. An interlocutory application may be for interim relief (such as an injunction) or in relation to a procedural step (such as discovery).

Judgment
The final order or set of orders made by the Court after a hearing, often accompanied by reasons which set out the facts and law applied in the case. A judgment is said to be 'reserved' when the Court postpones the delivery of the judgment to a later date to allow time to consider the evidence and submissions. A judgment is said to be 'ex tempore' when the Court gives the judgment orally at the hearing or soon after.

Jurisdiction
The extent of legal authority or power of the Court to apply the law.

Litigants
Individuals, organisations or companies who/which are the parties to a proceeding before the Court.

Mediation (or Assisted Dispute Resolution)
A process in which an impartial third party (the mediator) assists the parties in an attempt to bring about an agreed settlement or compromise, without requiring a decision of the Court.

Milestone agreement
An agreement on issues, such as a process or framework agreement, that leads towards the resolution of a native title matter but does not fully resolve it.

National Court Framework
The National Court Framework is a number of reforms to the Court's case management approach.

National Native Title Register
The record of native title determinations.

National Native Title Tribunal Member
A person who has been appointed by the Governor-General as a member of the Tribunal under the Native Title Act. Members are classified as presidential and non-presidential. Some members are full-time and others are part-time appointees.

National Practice Area
A subject matter areas in which the Court's work is organised and managed.

Native Title determination
A decision by an Australian court or other recognised body that native title does or does not exist. A determination is made either when parties have reached an agreement after mediation (consent determination) or following a trial process (litigated determination).

Native title claimant application/claim
An application made for the legal recognition of native title rights and interests held by Indigenous Australians.

Native title representative body
Representative Aboriginal/Torres Strait Islander Body also known as native title representative bodies are recognised and funded by the Australian Government to provide a variety of functions under the Native Title Act 1993. These functions include assisting and facilitating native title holders to access and exercise their rights under the Act, certifying applications for determinations of native title and area agreements (ILUA), resolving intra- indigenous disputes, agreement-making and ensuring that notices given under the NTA are brought to the attention of the relevant people.

Non-claimant application
An application made by a person who does not claim to have native title but who seeks a determination that native title does or does not exist.

Notification
The process by which people, organisations and/or the general public are advised by the relevant government of their intention to do certain acts or by the NNTT that certain applications under the Act have been made.

On country
Description applied to activities that take place on the relevant area of land, for example mediation conferences or Federal Court hearings taking place on or near the area covered by a native title application.

Original jurisdiction
The authority or legal power of the Court to hear a case in the first instance.

P People involved in a court case. Applicants, appellants, respondents, defendants, are generally called 'parties'.

PBC
Prescribed body corporate, a body nominated by native title holders which will represent them and manage their native title rights and interests once a determination that native title exists has been made.
Practice Notes

The Court publishes National Practice Notes. Practice Notes are issued by the Chief Justice on advice of the judges of the Court. They are used to provide information to parties and their lawyers involved in proceedings in the Court on particular aspects of the Court's practice and procedure. (Administrative Notices, which were registry-specific practice notices, are no longer used by the Court).

Proceeding
The regular and orderly progression of a lawsuit, including all acts and events between the time of commencement and the judgment.

Register of Indigenous Land Use Agreements
A record of all indigenous land use agreements that have been registered. An ILUA can only be registered when there are no obstacles to registration or when those obstacles have been resolved.

Register of Native Title Claims
The record of native title claimant applications that have been filed with the Federal Court, referred to the Judicial Registrar - Native Title and generally have met the requirements of the registration test.

Registered native title claimant
A person or persons whose names(s) appear as 'the applicant' in relation to a claim that has met the conditions of the registration test and is on the Register of Native Title Claims.

Registration test
A set of conditions under the Native Title Act 1993 that is applied to native title claimant applications. If an application meets all the conditions, it is included in the Register of Native Title Claims, and the claimants then gain the right to negotiate, together with certain other rights, while their application is under way.

Regulation
The Federal Court and Federal Circuit Court Regulation 2012 which set the filing and other fees that must be paid in relation to proceedings in the Federal Court.

Respondent
The individual, organisation or corporation against whom/which legal proceedings are commenced. Also known as a 'defendant' in admiralty and corporations matters and in some courts. In an appeal it is the party who/ which did not commence the appeal.

Rules
Rules made by the judges which set out the procedures for conducting a proceeding. The current rules of the Federal Court are the Federal Court Rules 2011, Federal Court (Corporations) Rules 2000 (for proceedings under the Corporations Act 2001 and, for a debtor other than an individual, Cross-Border Insolvency Act 2008 ), Federal Court (Bankruptcy) Rules 2016 (for proceedings under the Bankruptcy Act 1966 and, for a debtor who is an individual, Cross-Border Insolvency Act 2008) and Federal Court (Criminal Proceedings) Rules 2016.

Self Represented Litigant
A party to a proceeding who does not have legal representation and who is conducting the proceeding on his or her own behalf.

Setting Down Fee
A fee that must be paid when a date is set for hearing a matter. It includes the first day's hearing fee and, usually, has to be paid at least 28 days before the hearing.

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Administrative Notices See Practice Notes . Administrative notices are no longer used by the Court. Alternative procedure agreement A type of Indigenous land use agreement. Appeal An application to a higher court to review a decision of a lower court or tribunal.

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Learn about some common legal words you may find on our website or in court.

A

accused - person charged with charged with committing an offence

adjourn - to ask the court to delay your court case until a later date. If the court allows this, the delay is called an adjournment

administrator - a person appointed by the Guardianship List to make financial and legal decisions on behalf of someone with a disability who is unable to make those decisions for themselves. The Victorian Civil and Administrative Tribunal (VCAT) hears matters under the Guardianship List

administrator (of a Will) - person appointed by the court to deal with a deceased estate where there is no Will or where the Will does not name a suitable executor

affected family member - a person who needs protecting from family violence

affected person - a person who needs protecting from stalking

affidavit - a written document containing evidence for the court. An affidavit is signed in front of an authorised person (such as a lawyer or Justice of the Peace) and sworn or affirmed to be true

affirm - a declaration or promise that something is true that is made if you do not want to swear on the Bible, Koran or other religious book

alcohol interlock - a device that is fitted to your vehicle's ignition to measure your breath for alcohol. If the alcohol interlock detects alcohol, the car will not start

allegation - when someone accuses another person of having done something

appeal - a procedure that allows a party to challenge the decision made by a court, tribunal or government department

applicant - the person applying for a court order

arrest - when the police hold a person in custody because they think they have broken the law

assets - things you own, such as property, land, shares, bank deposits, jewellery, clothes, and so on

associate of the respondent - a person the respondent can influence to act for them, such as a friend or relative

award - a document that sets out wage rates and conditions of employment for groups of employees

B

bail - a promise that you will go to court to face charges on a certain day. You may have to agree to conditions like reporting to the police, living at a certain place or having someone act as a surety for you

bail justice - a person who can give or refuse to give you bail while you are in police custody

balance of probabilities - level of proof needed in civil law cases to decide which version of events is more likely to have happened. This is easier to prove than 'beyond reasonable doubt'

barrister - a lawyer who specialises in appearing at court

beneficiary - a person who is given something in a Will

beyond reasonable doubt - level of proof needed in criminal cases for a magistrate or jury to decide whether a person is guilty

blood alcohol concentration (BAC) - the amount of alcohol in your blood

breach - to break a law or court order

brief of evidence - the things that make up the police's case against you if you have been charged with a crime. This can include the charge sheet, the informant's statement, your criminal record and other documents the police have about your matter

C

case - your legal issues in the court system

caveat - a formal notice that certain actions may not happen without first telling the person who gave the notice. For example if someone puts a caveat on your house, you cannot transfer ownership of your house until the caveat is removed

certified copy - copy of a document on which an authorised person has certified: 'This is a true and complete copy of the original.'

charge - this term is used two ways. Firstly, it is an action the police can take. When the police charge you with an offence, this means they believe you have broken the law and are taking you to court. Secondly, once the police have charged you with committing an offence, the offence is also referred to as the charge. For example, if you have come to court for a driving charge. Note: agencies like your local council or the Department of Economic Development, Jobs, Transport and Resources can also charge you

charge and summons - when the police charge you, this can also be referred to as charge and summons. The 'summons' part of this means that the court is ordering you to come to court to answer the police charges

charge sheet - a document that lists all the offences the police or the prosecuting agency have charged you with. The charge sheet can have more than one offence if the police or prosecuting agency believe that what you did broke more than one law

codicil - legal document used to change a Will

community corrections order - a penalty the court can give you if you have been found guilty of committing a serious offence. You serve this penalty in the community. You must agree to this order. You will usually do unpaid community work, as well as being supervised by a corrections worker, undergoing treatment or rehabilitation, or having bans on where you can go, who you can see and how long you can stay out

committal - the first part of a court case where a magistrate decides if there is enough evidence for the case to go to trial. The magistrate does not decide if you are guilty or not guilty

confidentiality - a rule that says what you say to someone will not be told to others unless you agree

consent - when you agree to something

consent orders - an agreement between you and the other party which is approved by the court and then made into a court order

contest - a court hearing in which the parties disagree or where an accused person pleads not guilty

contested hearing - if you plead not guilty at the mention hearing (the first hearing), the magistrate adjourns your case to a contested hearing. At this hearing, the magistrate decides if you are guilty or not guilty.

c ontested hearing (intervention orders) - if you do not agree to the making of an intervention order, the magistrate can adjourn your case to a contested hearing. At this hearing, the magistrate decides if there are grounds to make the intervention order.

contest mention - a court date if you are pleading not guilty where the magistrate finds out from you and the police what the main points of disagreement are and the number of witnesses

contravention - when a court decides a party has broken the rules of a court order

convict/conviction - if a judge or magistrate finds you guilty, they can give you a penalty with or without conviction. This depends on how serious the offence is and whether you have any prior convictions.

costs - money for legal or other costs which a party may be ordered to pay in a court case

court list - a list at court that shows the cases to be dealt with that day

court order - a document from the court that says you must do something. It is also a document that sets out your penalty if you are found guilty of breaking the law

criminal record - a formal record that shows your findings of guilt and convictions for previous offences

custodial sentence - a sentence that is served in jail or custody

custody - when you have been arrested and are not free to leave

D

de facto spouse - a person who is living with another as if they were a married couple although they are not

deed - a document that is signed, officially sealed and delivered

defence - a legal reason why you believe you are not guilty of the offence you have been charged with

defendant - a person or organisation that has been charged with breaking the law

deponent - a person making an affidavit

discretion - when the magistrate has a choice to do or not do something

diversion - a way to deal with your criminal matter out of the court system and to give you a chance to avoid a criminal record

diversion hearing - a hearing where the magistrate decides whether or not to grant you diversion

diversion notice - a form the police can fill out to indicate they agree to you being granted diversion

diversion recommendation - when the informant agrees to recommend you for diversion

divorce order - an order made by a court that ends a marriage

domestic partner - an unmarried person who has registered their relationship with the Relationships Register. Also a person who has a personal and financial commitment to another person and provides domestic support

driver disqualification - the court cancels your licence and orders you not to drive

drug impairment assessment - a test that police can tell you to do if they suspect that you are driving while you are affected by drugs

duty lawyer - a lawyer who helps people who do not have their own lawyer on the day of their court hearing. They can give free legal advice and may be able to represent people in court

E

enduring power of attorney - a document that allows a person to make financial, personal and legal decisions for you, even after you cannot make decisions for yourself

enforcement order - a written document made by a court that says you must follow an order

estate - the assets of a person who has died

evidence - information (documents, witnesses or exhibits) used in court to prove something

ex parte - a court hearing that goes ahead and makes a decision even though one of the parties is not at court

ex-nuptial - child born to parents who are not married to each other

exclusion order - an order from the court that stops a person from going to a specific area or place. The order could ban a person from going to a public place or from going near the family home after an intervention order has been made against them

executor - person named in a Will to deal with the estate

exhibit - an object shown in court to help prove something, for example jewellery, drugs or weaponry found in the defendant's possession

F

family consultant - a psychologist or social worker who helps the court and the parties in children's cases

family dispute resolution - when a family dispute resolution practitioner helps people to sort out their disagreements with each other after separation

family law registry - a public area at a Family Law Court where people can get information about the court and its processes, and file documents for their court case

family report - a report about a family written by a family consultant. The report helps the court make a decision about the children

family violence - harmful behaviour that is used to control, threaten, force or dominate a family member through fear. It includes emotional and financial abuse, as well as physical violence and sexual abuse. It also includes exposing children to the effects of these behaviours.

family violence intervention order - an order made under Victorian law to protect a family member from family violence

family violence order - an order made under Commonwealth, state or territory law to protect a person, including a child, from violence

Family Violence Panel - Legal firms who are members of this panel deal with matters involving legally assisted family violence (and personal safety) intervention order matters that are heard and determined in the Magistrates' Court or Children's Court (Family Division) or are County Court appeals

family violence safety notice - a notice issued by the police to protect an adult from a family member who is using family violence

federal circuit court judge - a person who makes sure the court case follows the rules and makes the decisions in the Federal Circuit Court

file/filing - to give documents to the court. The court stamps the documents and gives you back a copy

final hearing - the last hearing in a case where the court listens to witnesses and any other evidence

final order - the last order that the court makes to finish a court case

forensic medical examination - an examination of your body to find evidence and assess if you need further treatment. This may involve taking body samples like blood, pubic hair, anal, genital or breast swabs, saliva, and mouth or dental impressions and taking notes about recent injuries. A specially trained doctor, nurse or dentist must do these procedures

G

giving instructions - telling your lawyer what you would like them to do

grant of probate - court order that allows the executor of a Will to deal with and distribute the estate

guarantee - a promise given by a person to pay your debt if you do not pay it

guardian - a person appointed by the Victorian Civil Administrative Tribunal (VCAT) to make lifestyle decisions for someone who is unable to make those decisions themselves

Guardianship List - protects people aged 18 years or over who, as result of a disability, are unable to make reasonable decisions for themselves. The Victorian Civil and Administrative Tribunal (VCAT) hears matters under the Guardianship List

guilty - what you say when you admit to breaking the law. Also a decision made by the court

H

hearing - the presentation of a case at court

I

illicit drug - illegal drugs including methylamphetamine (speed), MDMA (ecstasy) or THC (cannabis)

immobilise - to stop a vehicle being driven by using a wheel-clamp or a steering wheel lock

impound - to store a car in a secure lock-up for a set amount of time

independent children's lawyer - a lawyer appointed by the court to represent the best interests of the child

independent person - an adult who must be with you during police questioning when you are under 18 and your parents or guardian cannot be there

Independent Third Person - a trained person who is with you during police questioning if you are mentally impaired to help you understand each other

indictable offence - a serious offence where you may have to go before a judge and jury in the higher courts. Many indictable offences can be heard in the Magistrates' Court if you and the magistrate agree

informant - the police officer or government official (for example, a ticket inspector) who charged you and who may give evidence against you in court

informant's statement - the informant's description of how they believe you broke the law

infringement notice - a notice stating that money you have to pay for minor offences, such as littering, parking or traffic offences (also known as an 'on the spot' fine). You have the option of going to court instead

infringement warrant - a court document that allows a sheriff to take certain actions such as coming to your address and demanding payment, wheel clamping your vehicle or giving a notice saying they plan to suspend your license

interim hearing - a hearing that looks at the issues that need to be decided in the short term, such as where the children will live

interim order - an order made by a court until another order or a final order is made

intervention order - a court order to protect you from family violence or stalking

intestate - a person who dies without a valid Will is said to have died intestate

J

jointly appointed - when two people are appointed as attorneys and both must agree on a decision for that decision to be valid

jointly and severally appointed - when two or more people are appointed as attorneys and either one or all can make a valid decision

judge - a person who controls what happens in higher courts and deals with legal issues

judgment - a decision by a court

judicial officer - a person who the law says can hear and decide cases, such as a judge, federal magistrate or magistrate

jurisdiction - the legal power of a court or the area that a court's legal power covers (such as the state of Victoria)

jury - a group of twelve people who decide if you are guilty or not guilty based on evidence given in court

L

lawyer - a person who can advise you about the law and represent you in court

legal capacity - having the ability to understand and think things out

lien - a right to hold another person's property until they meet an obligation or pay a debt to do with that property. For example, if you ask a mechanic to repair your car they can claim a lien over the car until the work is paid for

M

magistrate - an officer of the Magistrates' Court who is responsible for deciding what order to make

mental impairment - a disability, including intellectual disabilities, acquired brain injury, mental illness and dementia

mention date - a court date when the magistrate will ask you or your lawyer about your case. The magistrate will also speak with the other lawyer (or with police, if they are involved). If your case is not sorted out, a date may be set for a hearing

mention hearing - the first hearing for a case in the Magistrates' Court where the person is asked if they are pleading guilty or not guilty. If the defendant pleads guilty the matter may be heard and decided at this hearing

N

no comment - what you say when you do not want to say anything to police

notice to appear - a document you may get when the police suspect you of breaking the law. The document tells you to go to court on a certain date. The police will usually give the notice to appear to you rather than sending it to you

not guilty - what you say when you deny breaking the law. Also a decision made by the court

O

oath - where you swear in the name of your religious beliefs to tell the truth

offence - an offence is something the law says is wrong

offender - person who has committed a crime

P

parenting plan - a written agreement between parties setting out parenting arrangements for children

party - a person or legal entity (for example, a bank) involved in a case

penalty - a punishment for breaking the law

penalty units - are used to calculate the amount of a fine. The amount of one penalty unit is indexed and increases each year on 1 July. For the current amount see Penalty units.

perpetrator - a person who breaks the law

plea/plead - a plea is your response in the courtroom to the charge. You can plead guilty or not guilty

police brief - a document that contains evidence the police use to prove their case

police case - what the police say about what happened and why they charged you

police summary - what the police say happened

precedent - a court decision that is used as an example or reason for later decisions

preliminary brief - this is a shorter version of the brief of evidence, which you will get earlier on in the process. The preliminary brief will give you details of the prosecution's case but does not need to include any evidence

priors - your criminal record

privilege - a legal rule that says confidential information that you have given to or received from your lawyer cannot be used in court

prosecution authority - a person from an agency who has the authority to present the agency's case in court. For example it could be an authorised officer from a local council, the Department of Economic Development, Jobs Transport and Resources, the Australian Taxation Office or a fisheries officer from the Department of Environment, Land Water and Planning

prosecutor - the police officer who gives the police's case in the courtroom, also referred to as the police prosecutor. The prosecutor can also be a government official (for example, a corrections worker) or someone working for an agency that issued you with an infringement notice

proven - when the magistrate has found you guilty of committing the offence

R

registrar - a person who works for the court and who has been given power to do different things

respondent - a party named by an applicant as the other party in a court case

revoke - to cancel something, such as a court order or power of attorney

S

sentence - this term is used two ways. Firstly, if the magistrate finds you guilty, they will 'sentence' you according to the offence you committed. That means the magistrate gives you a penalty and, if your offence was serious, the magistrate may also give you a conviction. Secondly, the conviction and the penalty is referred to as the 'sentence'

sentencing indication - the magistrate can give you an idea of what sentence they would give you if they find you guilty. This may help you to decide if you want to keep pleading not guilty or to plead guilty

serve - this term is used two ways. Firstly, it is the legal delivery of a document. Secondly, it is when you follow orders from a court or VicRoads. For example, if you serve a licence suspension, you do not drive when the court has ordered you not to

sheriff - a person who carries out sanctions if you do not do what it says in a court order. For example, if they have a warrant they can take possession of your property

solicitor - a lawyer who can advise you about the law and represent you in court

stalking - when someone repeatedly contacts another person or behaves in a way that makes them feel scared, distressed or fear for their safety

statement - a written document of what you say about events. A statement can be used as evidence in court

statement of alleged facts - this is the informant's statement of what the offence was and how it happened. The statement of alleged facts can contain evidence from witnesses, if there were any

statutory declaration - a document where a person makes a statement and acknowledges that it is made in the belief that, if the statement is false, the person is liable to penalties for perjury

stay/stayed - to stay means the court puts a court order on hold until after a rehearing or an appeal. When the court orders are on hold they are stayed

stood down - your case is put on hold briefly and usually called back on that same day for completion

subpoena - a document that says you must appear in court or give certain documents to the court at the request of the party

summary case conference - a meeting between you (or your lawyer) and the police prosecutor where you talk about your charges and exactly what you disagree with. You have this meeting before you go into the courtroom and plead not guilty

summary offence - an offence that is less serious and can be heard in the Magistrates' Court or Children's Court. With the exception of offences under the Crimes Act, all offences are summary offences unless the law says they are indictable (more serious) offences

summons - a court document that tells you when you must go to court

supervised access - when a parent spends time with a child while another adult is there to make sure the child is safe

surety - a person who promises money or property if you do not meet your bail conditions

surrender notice - a notice that police may serve on the owner of a vehicle if they believe it was used for hoon driving

swear - when you swear on a Bible, Koran or other religious book that something is true

T

traffic offence - an offence is when you break the law when driving a motor vehicle or using the road

transcript - a record of the spoken evidence in a court case

triable summarily - when an indictable offence can be dealt with by a magistrate in the Magistrates' Court instead of a judge and jury in a higher court

trial - a court case in front of a jury

trustee - a person who manages property held in trust for the benefit of another person

U

undertaking - a promise to the court to do or not to do certain things

V

Victorian Civil and Administrative Tribunal (VCAT) - deals with disputes, including residential tenancy and guardianship and administration matters

W

warrant - a court document that says what the police or sheriff can do, such as arrest you or search your house

Will - a legal document setting out who gets part or all of a person's estate when they die

witness - a person who gives evidence in writing or in person at court. Also a person who is present when someone signs a document who confirms that the signature is genuine by adding their own signature

witness summons - a document used to summon a witness to come to court to give evidence or to give in documents as evidence

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Learn about some common legal words you may find on our website or in court. accused - person charged with charged with committing an offence adjourn - to ask the court to delay your court case until a later date.

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Three levels of government in Australia.

Parliamentary Education Office (peo.gov.au)

Australia has three levels of government that work together to provide us with the services we need.

The three levels are:

federal Parliament-makes laws for the whole of Australia

6 state and 2 mainland territory parliaments-make laws for their state or territory

over 500 local councils-make local laws (by-laws) for their region or district.

How the federal and state parliaments work together is sometimes referred to as the division of powers.

Each level of government has its own responsibilities, although in some cases these responsibilities are shared.

Australians aged 18 years and over vote to elect representatives to federal, state and territory parliaments, and local councils to make decisions on their behalf. This means Australians have someone to represent them at each level of government.

History

The establishment of the three levels of Australian government was an outcome of Federation in 1901, when the 6 British colonies - New South Wales, Western Australia, Queensland, Victoria, South Australia and Tasmania - united to form the Commonwealth of Australia. Up until the 1850s each colony was run by a non-elected governor appointed by the British Parliament.

By 1860 all the colonies, apart from Western Australia, had been granted partial self-government by Britain (Western Australia became self-governing in 1890). Each had its own written constitution, parliament and laws, although the British Parliament retained the power to make laws for the colonies and could over-rule laws passed by the colonial parliaments. By the end of the 19th century, many colonists felt a national government was needed to deal with issues such as defence, immigration and trade.

For Federation to happen, it was necessary to find a way to unite the colonies as a nation with a central or national government, while allowing the colonial parliaments to maintain their authority. The Australian Constitution, which sets out the legal framework by which Australia is governed, resolved this issue by giving Australia a federal system of government. This means power is shared between the federal - Australian - government and state governments.

Under the Constitution the states kept their own parliaments and most of their existing powers but the federal Parliament was given responsibility for areas that affected the whole nation. State parliaments in turn gave local councils the task of looking after the particular needs of their local communities.

Making laws

Federal Parliament

The Constitution established an Australian - federal - Parliament. The 227 members of the Australian Parliament - 76 in the Senate and 151 in the House of Representatives - are responsible for making federal laws.

Sections 51 and of the Constitution describe the law-making powers of the federal Parliament. Section 51 lists 39 areas over which the federal Parliament has legislative - law-making - power. These include:

international and Australian trade and commerce

defence

postal and telecommunications services

banking and insurance

foreign policy

citizenship

taxation

pensions

census and statistics

welfare payments

currency

Medicare

national employment conditions

marriage and divorce

immigration

Under section 51 of the Constitution, state parliaments can refer matters to the federal Parliament. That is, they can ask the federal Parliament to make laws about an issue that is otherwise a state responsibility. Any federal law then made about the issue only applies in the state or states who referred the matter to federal Parliament or who decide to adopt the law.

Some of the powers listed in section 51 are exclusive powers of the federal Parliament; that is, only the federal Parliament can make laws in these areas. Some powers are shared with the state and territory parliaments. These powers are said to be concurrent. Exclusive powers of the federal Parliament are also included in sections 52, 86, 90, 114, 115 and 122.

Examples of exclusive and concurrent powers

EXCLUSIVE POWERS

of the federal Parliament

CONCURRENT POWERS

powers shared by the federal Parliament, and the state and territory parliaments

Section 51

defence

payments to Australians, including pensions and Medicare

foreign policy

national census

currency

lighthouses, lightships, beacons and bouys

copyright

citizenship

Section 52

the national capital

federal public service

Sections 86 and 90
collection of customs - taxes - on imported goods
Sections 114 and 115
defence and currency exclusive powers of the federal parliament
Section 122
federal Parliament can make laws for territories, including their representation to the federal Parliament

Education

federal parliament-universities

state and territory parliaments-schools and teachers, vocational education

Environment

federal Parliament-responsible for obligations under international treaties (for example world heritage areas)

state and territory parliaments-protection of the natural environment, approvals for new developments, waste disposal etc

Health

federal Parliament-payments to doctors and for pharmaceuticals

state and territory parliaments-hospitals

Marriage and divorce

federal Parliament-decides who can get married

state and territory parliaments-decide how marriages are registered

Overseas trade

federal Parliament - ratifies - makes Australian law - international trade agreements for the whole of Australia

state and territory parliaments-ratifies international trade agreements for that state or territory

Taxation

federal Parliament-collects taxes on income and company profits

state and territory parliaments-collects stamp duty, payroll tax and other smaller taxes

Because the federal Parliament and the state parliaments can make laws in the same areas, sometimes these laws conflict. Section 109 of the Constitution states that if the federal Parliament and a state parliament pass conflicting laws on the same subject, then the federal law overrides the state law or the part of the state law that is inconsistent with it.

The law-making powers of the federal Parliament.

Parliamentary Education Office (peo.gov.au)

State and territory parliaments

Australia has 6 state parliaments. It also has 2 territory parliaments known as legislative assemblies. These parliaments are located in Australia's 8 capital cities.

Each state, apart from Queensland, has a parliament that consists of 2 houses. The Queensland Parliament has only 1 house - the Legislative Assembly making it unicameral - single-house.

The Northern Territory and the Australian Capital Territory parliaments are also unicameral-both have one house called the Legislative Assembly. The Australian Capital Territory is unique in Australia because its parliament combines the responsibilities of both a local and state government.

Section 122 of the Constitution gives the federal Parliament the power to make laws for the territories. Until they were granted self-government, the Northern Territory and Australian Capital Territory were administered - managed - by the federal government. Federal Parliament gave the territories self-government by passing the Northern Territory (Self-Government) Act 1978 and the Australian Capital Territory (Self-Government) Act 1988.

Other territories

There are 8 Australian territories in addition to the Australian Capital Territory (ACT) and Northern Territory (NT):

Ashmore and Cartier Islands

Australian Antarctic Territory

Christmas Island

Cocos (Keeling) Islands

Coral Sea Islands

Jervis Bay Territory

Norfolk Island

Territory of Heard Island and McDonald Islands.

These territories are governed according to Australian - federal - law and the laws of a state, the ACT or NT. Most have an appointed Administrator.

State and territory parliaments make laws that are enforced within their state or territory. By defining federal powers, the Australian Constitution reserved - left - most other law-making powers to the states. These are called residual powers. As a rule, if it is not listed in sections 51 and 52 of the Constitution, it is an area of state responsibility. State laws relate to matters that are primarily of state interest such as:

schools

hospitals

roads and railways

public transport

utilities such as electricity and water supply

mining

agriculture

forests

community services

consumer affairs

police

prisons

ambulance services

Section 122 of the Constitution allows the Parliament to override a territory law at any time. The federal Parliament has only used its power under section 122 a few times and only in cases where the territory law has created much debate or controversy within the Australian community.

Up until 2011 the self-government Acts covering the Northern Territory and the Australian Capital Territory gave federal ministers the right to veto or change territory laws without approval of federal Parliament. This veto power was used by Prime Minister John Howard in 2006 to disallow the Australian Capital Territory's civil union laws. Federal Parliament has now amended the self-government Acts so the federal Parliament must vote to veto a territory law.

The law-making powers of state parliaments.

Parliamentary Education Office (peo.gov.au)

1997

In 1997 federal Parliament passed a law to overturn the Rights of the Terminally Ill Act 1995 (NT), which made euthanasia legal in the Northern Territory. The territory law allowed terminally ill patients to decide when to die. After a free vote the federal Parliament passed the Euthanasia Laws Act 1997. As a result of this law, the self-government Acts of the territories were changed to stop the territory parliaments making laws about euthanasia.

Councils

There are over 500 local government bodies across Australia. They are often called councils, municipalities or shires. Local governments consist of 2 groups who serve the needs of local communities:

elected members, who normally have 4-year terms

staff who work for the council.

On average each council has 9 elected members who are usually called councillors or aldermen, while the chair or head of the council is usually called the mayor or president. These smaller legislative bodies make by-laws about local matters and provide services. For example, councils are responsible for:

local roads, footpaths, cycle ways, street signage and lighting

waste management, including rubbish collection and recycling

parking

recreational facilities such as parks, sports fields and swimming pools

cultural facilities, including libraries, art galleries and museums

services such as childcare and aged care

sewerage

town planning

building approvals and inspections

land and coast care programs

pet control.

One of the main tasks of local government is to regulate - manage - services and activities. For example, councils are responsible for traffic lights, and dog and cat registration. These tasks would be difficult for a state government to manage because they are local issues.

Councils can deliver services adapted to the needs of the community they serve. For instance, the needs of residents in inner-city Brisbane might be different to those of people living in rural Queensland. By providing these services and facilities, councils make sure local communities work well from day-to-day.

From the 1840s colonial parliaments began to hand over responsibility for local issues to local councils. The first council was established in Adelaide in 1840, followed in 1842 by the City of Sydney and Town of Melbourne councils. From the 1850s onwards, the number of elected councils grew rapidly.

Today, local authorities include city councils in urban centres, and regional and shire councils in rural areas. On average each council looks after about 28 400 people. The largest council by population is Brisbane City Council which is responsible for a population of nearly 1.2 million. The Shire of East Pilbara in Western Australia is the largest local authority area.

Local councils are not mentioned in the Australian Constitution, although each state has a local government Act - law - that provides the rules for the creation and operation of councils.

While these Acts vary from state to state, in general they cover how councils are elected and their power to make and enforce local laws, known as by-laws. A by-law is a form of delegated legislation because the state government delegates - gives - to councils the authority to make laws on specific matters. As councils derive their powers from state parliaments, council by-laws may be overruled by state laws.

The law-making powers of local government.

Parliamentary Education Office (peo.gov.au)

Putting laws into action

Each of the three levels of government has its own executive that puts laws into action.

How governments in Australia raise and spend money.

Parliamentary Education Office (peo.gov.au)

Federal executive government

The federal executive - the Prime Minister and ministers - is the main decision-making body of the Australian Government and is responsible for putting federal laws into action. It also makes sure laws provide Australians with the services they need.

If a minister needs to introduce a new law or change an existing one, they must first get the approval of the federal executive. The minister then works with their government department to prepare the bill - proposed law - before it is considered by the Parliament.

The executive government needs money to put laws into action. It raises money by collecting taxes on incomes and company profits, and through other charges such as fuel excise and customs duties.

The federal government raises money to run the country by collecting taxes on incomes, goods and services, and company profits, and spends it on national matters: for example, trade, defence and immigration.

State and territory governments also raise money from taxes but receive more than half their money from the federal government and spend it on state and territory matters: for example, schools, housing, hospitals, roads and railways, police and ambulance services.

Local councils collect taxes - rates - from all local property owners and receive grants from federal, state and territory governments, and spend this on local matters: for example, town planning, rubbish collection, water and sewerage, local roads and pet control.

Once a year the Treasurer delivers the Budget to Parliament, which explains how the government will raise and spend this money. The government must gain approval for its Budget from Parliament. It does this by asking Parliament to pass a series of bills called Appropriation Bills.

Ministers manage the share of the Budget that has been given to the department they are responsible for. They use this money to administer the laws and programs that fall within their portfolio. The executive government also gives revenue - money - collected through the tax on goods and services (GST) to the states and territories to help fund their delivery of services.

State and territory executives

States and territories also have executive governments; there are 6 state and 2 territory executive governments. State executive governments are made up of a premier and state ministers. Territory executive governments are made up of a chief minister and territory ministers. These ministers are elected members of the state or territory parliament, and come from the party or coalition of parties that forms government in the lower house. State and territory executives decide on policy and new laws, including how to put state or territory laws into action.

State and territory executive governments get about half their money, including their share of the goods and services tax (GST), from the federal executive government. They also raise money from taxes and charges such as:

stamp duty-a tax on legal documents

payroll tax-a tax on the total amount of salaries paid by an employer

motor vehicle registration

land tax-a tax paid by certain land owners on the unimproved value of their property, including holiday homes, investment properties and vacant land

gambling licenses.

The states and territories spend this money to manage laws and to provide goods and services to the people of their state or territory. State and territory ministers, like federal ministers, manage the budget given to the government department they are responsible for.

The local executive

Elected councillors decide on policy and make by-laws for their community at council meetings. These decisions are then administered - put in place - by the chief executive officer and other non-elected employees of the council.

Local governments receive part of their income in grants from federal, state and territory executive governments. Councils also raise their own money from local taxes such as rates - tax on the value of property - sewerage and water charges, dog licences and user fees for sporting facilities and libraries.

Changes in the federal and state relationship

Since federation some rulings made by the High Court of Australia have strengthened the law-making powers of the federal Parliament. The High Court can resolve disagreements between the federal and state governments over their law-making powers. If a law is contested - challenged - it is up to the High Court to determine whether the Constitution gives the relevant parliament the power to make this law. A law judged by the High Court to be unconstitutional is then invalid - over-ruled.

The states' reliance on federal government funding to pay for activities such as schools and hospitals has also shifted the federal-state balance. Federal funding grants make up about half of the states' total revenue. Under section 96 of the Constitution, the federal Parliament can 'grant financial assistance to any State on such terms and conditions as Parliament thinks fit'. This allows the federal government to give 'tied' grants to state governments, directing the state government on how to spend the money. The federal government can then influence the way things are done in areas such as education, health, housing and transport, which are primarily state responsibilities.

The law-making powers of the federal Parliament have also grown to deal with the huge social and technological advances that have occurred since federation. As Australian society has changed, so too have the issues facing federal Parliament. For instance, the drafters of the Constitution could not have foreseen how the digital revolution has impacted the way we live, work and communicate. In 1901 there were only 33 000 telephones in Australia and no radio, television, computers or internet. Today the federal Parliament makes laws about all of these services. It is able to do this under section 51(v) of the Constitution, which gives Parliament responsibility for 'postal, telegraphic, telephonic and other like services'.

Cooperation

Members of the federal, state and local executives are required to work together in order to solve complex problems.

The National Cabinet, which includes the Prime Minister, premiers, and chief ministers, meets regularly to discuss intergovernmental matters.

Ministers from the various levels of government also work together on matters of common concern. For example, the Australian Health Ministers' Advisory Council meets regularly to negotiate a coordinated national approach to health policy.

As a result of intergovernmental discussions, uniform national laws have been made to tackle issues such as road transport, food standards and consumer rights. By introducing uniform national laws, the three levels of government can operate together with a greater level of efficiency.

Case study 1

Radio Licence Case 1935

Until 1974 the federal government charged households a fee or listener's licence for each radio set they owned. The fees were used to pay for radio stations. In 1934 Dulcie Williams from Surry Hills in Sydney refused to pay the listener's licence on the grounds wireless radio is not mentioned in the Constitution. In doing so she challenged the federal Parliament's right to make laws about broadcasting.

The case went to the High Court, who found in favour of the government based on section 51(v) of the Constitution. This section gives federal Parliament responsibility for 'postal, telegraphic, telephonic and other like services'. The Court decided wireless radio could be defined as being like a telegraphic or telephonic service because it involved sending communications.

The High Court's interpretation of section 51(v) means that today the federal Parliament can make laws about all forms of communication, including television and the internet. For example, it has passed laws to regulate the use of the internet, tackle cyber crime and invest in infrastructure such as the National Broadband Network.

Case study 2

Tasmanian Dam Case 1983

In 1978 the state-owned Tasmanian Hydro-Electric Commission announced plans to dam the Franklin River and flood a large wilderness area in south-west Tasmania. Four years later the area was declared a World Heritage site under the World Heritage Convention, to which the federal government is a signatory-Australia has agreed to the convention.

The federal Parliament then passed laws to stop clearing and excavation within the newly listed Tasmanian Wilderness World Heritage area. The Tasmanian government challenged the laws in the High Court of Australia, arguing the federal Parliament did not have the power to stop the construction of the dam.

In 1983 the High Court ruled that, under its external affairs power, the federal Parliament could make laws relating to international treaties which Australia had signed. The external affairs power, listed in section 51(xxix) of the Constitution, allows the federal Parliament to enter into international treaties and agreements on behalf of Australia.

Although the federal Parliament has no law-making powers over Tasmania's rivers, dams or environment, the court decided the federal legislation was valid because it allowed the government to meet its commitments under an international treaty-the World Heritage Convention.

When the Constitution was written, treaties mainly related to peace and trade but today they also deal with matters that are defined as state responsibilities-for example, human rights, environmental protection and discrimination. As a result of the High Court ruling, the federal government can now make laws in these and other areas in order to honour treaty agreements.

Case study 3

The Great Barrier Reef Marine Park

In the 1960s and 1970s the Queensland government sought to commercialise the natural resources of the Great Barrier Reef. In response, the growing environmental movement organised protests against the expansion of mining and oil drilling in this sensitive environment.

In 1969 the federal and Queensland governments jointly established an inquiry into the 'possibility' of oil drilling causing damage to the reef. This inquiry was upgraded to the federal Royal Commission into Exploratory and Production Drilling for Petroleum in the Area of the Great Barrier Reef, which recommended the creation of a marine park to protect the Reef.

In response the federal and Queensland governments agreed to ban oil drilling in the territorial waters they controlled and the federal Parliament passed the Great Barrier Reef Marine Park Act 1975. This created a federal agency to grow and administer the new park in conjunction with the Queensland government.

The Queensland Government manages the day-to-day operations of the Park, including undertaking state responsibilities such as issuing fishing and tourism operator licenses. The federal and Queensland governments work with local councils along the Queensland coast to protect and preserve the marine park. For example, local councils are responsible for stormwater treatment, ensuring water running into the reef is free from pollutants.

From policy to law.

Parliamentary Education Office (peo.gov.au)

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Three levels of government: governing Australia - Parliamentary Education Office

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In Australia the three levels of government work together to provide us with the services we need. This in-depth paper explores the roles and responsibilities of each level, how they raise money and how they work together. Case studies show how the powers of the Australian Parliament have expanded.

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Sentencing in Victoria is governed by a combination of legislation (laws made by parliament) and common law (laws made by the courts). Three arms of government are involved in sentencing:

the legislature (parliament)

the judiciary (courts)

the executive (ministers and administrative entities).

Parliament makes the legislation that defines what an offence is and the maximum penalty that can be imposed on someone convicted of the offence.

Courts are independent of parliament. However, courts must interpret and apply laws within the framework that parliament sets.

The executive arm of government includes agencies that run correctional services, such as prisons and youth detention centres. Correctional services also supervise offenders who have been sentenced to community correction orders.

The adult and youth parole boards are also part of the executive arm of government. Parole boards decide whether a person should be released on parole and supervise people who are granted parole. Parole boards are independent of parliament and the courts.

Legislation Relating to Sentencing

The most important piece of legislation affecting sentencing in Victoria is the Sentencing Act 1991 (Vic). It sets out:

Most indictable offences (serious offences) in Victoria are set out in the Crimes Act 1958 (Vic). Most summary offences (less serious offences) are set out in the Summary Offences Act 1966 (Vic). Some offences are set out in other legislation, such as the Drugs, Poisons and Controlled Substances Act 1981 (Vic) and the Road Safety Act 1986 (Vic).

People in Victoria can be charged and tried under both Victorian and Commonwealth laws. Victorian courts can sentence both Victorian and Commonwealth offences.

When sentencing an offender for a Victorian offence, Victorian courts apply the powers they have under:

the Sentencing Act 1991 (Vic) when sentencing an adult

the Children, Youth and Families Act 2005 (Vic) when sentencing a child.

When sentencing an offender for a Commonwealth offence, Victorian courts generally apply the powers they have under the Commonwealth Crimes Act 1914 (Cth).

Victorian Legislation

Victorian Acts and other legislation are found on the Victorian Legislation website.

Some key Victorian Acts relating to sentencing matters are:

Information about Commonwealth legislation can be found on the Federal Register of Legislation.

The information on this page (except all logos and any third-party content linked to from this page) is licensed under a Creative Commons Attribution 4.0 International License.

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Sentencing in Victoria is governed by a combination of legislation (laws made by parliament) and common law (laws made by the courts). Three arms of government are involved in sentencing: the legislature (parliament) the judiciary (courts) the executive (ministers and administrative entities).

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week 3: argument and precedent: 2.2.1  ratio decidendi

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This free course, Legal skills and debates in Scotland, considers how laws are interpreted and applied. It looks at legislation, court judgments, argument, judicial reasoning and rights. It also...

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VCE Legal Studies: Criminal case scenario (part 1)

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VCE Legal Studies: Criminal case scenario (part 2)

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VCE Legal Studies: Criminal case scenario (part 3)

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VCE Legal Studies: Civil case scenario (part 1)

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VCE Legal Studies: Civil case scenario (part 2)

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VCE Legal Studies: Civil case scenario (part 3)

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Court Sheet - Dianna, Daniel, Wei and Evie