Legal institutions and people

At a federal (Commonwealth) level, the founding institution of law in Australia is the Commonwealth Constitution. The Constitution is the set of rules which controls the power, authority and operation of a Parliament. Each State of Australia, in addition, has its own constitution. The Commonwealth Constitution covers federal government, the federal parliament, and the federal courts, the territories, and the creation of new states. In this sense, the Commonwealth Constitution is the fundamental document of empowerment in the Australian political and legal systems. It establishes that, where the Commonwealth and a State pass conflicting laws, any valid Commonwealth law trumps (overpowers) the State legislation. States can pass laws on any subject matter.

The Constitution gives the federal government the power to enact legislation about certain areas. Topics not mentioned (such as buying land from another person) are outside the legislative capacity of the Commonwealth Parliament. An exception to that rule is where Australia is party to an international agreement (treaty) about a matter. Marriage, immigration and taxation are subjects on which the Commonwealth has the power to enact laws. Road rules, the buying and selling of property and criminal laws in general are outside the constitutional capacity of the Commonwealth Parliament.

Many laws, mostly criminal laws, are enforced by the police. The police services of each State are given the job of upholding the laws made by the government, primarily those laws to do with the day-to-day operation of society and the protection of safety and freedom for people in society. Police deal with a wide variety of breaches of the law, from noise disputes to drink-driving to murder.

Australia also has a national police force. The Australian Federal Police (AFP) is the federal or Commonwealth police force of Australia. It was established in 1979 and is dedicated to the enforcing of Commonwealth criminal law in order to protect Commonwealth and national interests from crime in Australia and overseas. The AFP is also involved in investigating crimes which cross state borders and acts as a community police force in the ACT and other external territories.

Other laws, which deal with civil and other disputes, are in effect enforced by the court system. The federal and State hierarchies of courts in Australia hear all cases from summary or minor offences up to major criminal cases, such as drug trafficking or murder, as well as major civil cases such as corporate bankruptcies or matters in regard to faulty products.

Australian courts work on what is known as the 'adversarial' system, which is inherited from the English legal system. The adversarial system involves two parties presenting opposing arguments before the court, a process which is presided over by a neutral third party, the judge or magistrate. In France and other countries, courts operate in an 'inquisitorial' system, where the judge takes an active role in examining evidence and questioning witnesses. Under the adversarial system, the judge usually does not examine witnesses directly. The judge listens to each side's arguments and to the cross-examination of witnesses by both sides. The judge will then make a decision. If, however, it is a jury trial, the judge will instruct the jury on the appropriate law. The jury will then deliberate. The result of the deliberation is the verdict. If the accused is found guilty, they may end up in the correctional system, in jails of differing levels of security.

Solicitors and barristers

Many professional people are involved in the running of legal proceedings. Aside from judges and magistrates, there are the two types of lawyers - solicitors and barristers - who research, construct and argue the cases of those who are appearing before the court.

Solicitors, generally, do not appear in court to argue a case. Solicitors work behind the scenes preparing the case and providing legal advice. Solicitors also do non-court related work, from small tasks like drawing up wills and doing the paperwork for the buying and selling of houses (called 'conveyancing'), to major tasks like advising large companies on all types of legal issues and drafting contracts for large corporate deals.

Solicitors either work by themselves or in large or small law firms. Within these firms there is a hierarchy. Senior lawyers (who are often 'partners' in the firm) work on a matter with a junior solicitor. These lawyers are supported by paralegals, non-lawyers or law students whose job it is to research and manage the case files. A similar role is played for judges by a 'Judge's Associate', who assists a judge with administrative work and research, discusses the case with the judge and assists in the production of the judgment. They also appear in court and have several tasks including asking the accused whether they are pleading guilty or not-guilty and taking the verdict.

Solicitors might also work in-house at a company or organisation, where they are known as 'General Counsel', and where they are in charge of overseeing all the legal issues and problems that might arise for the company or organisation. Governments also retain legal counsel. For instance, the New South Wales (NSW) Crown Solicitor provides legal services to the State Government of NSW.

After seeking legal advice from a solicitor, a client is referred on to a barrister if they decide to go to court. The barrister represents the client in court, and barristers (who usually have previous work experience as solicitors) generally develop special expertise in a particular area, such as criminal law or corporate bankruptcy. The role of a barrister is to offer expert advice to the client as to the likely outcome of the case and the best course of action, and to represent the client in court.

Some barristers specialise as plaintiff lawyers, for example, representing a group of shareholders in a 'class action' against the directors of a company. Others might specialise as criminal defence lawyers, defending people charged with murder or with 'white-collar' crimes such as embezzlement. Embezzlement is when one person uses the money that belongs to another person (or corporation) as if it were his/her own money.

Legal institutions and the Government

The government also has its own legal officers and bodies. In Australia, the Attorney-General is the chief law officer of the Crown and a member of the Cabinet. As a government minister, the Attorney-General is responsible for legal affairs, national and public security and the Australian Security Intelligence Organisation (ASIO).

The Minister for Justice and Customs assists the Attorney-General with legal matters. This minister is responsible for issues and actions relating to government criminal investigations, the Australian Federal Police force and the Australian Customs Service. Each State has its own Attorney-General, who has an equivalent role and similar responsibilities to the federal minister.

The State and federal attorneys-general are effectively responsible for selecting people to be nominated to judicial posts, and for authorising prosecutions. The powers of the Attorney-General to prosecute are exercised in practice by the Director of Public Prosecutions (DPP), however the Attorney-General maintains ultimate control, including the power to start and stop public prosecutions.

Other people and organisations that contribute to the legal system would include constitutional lawyers and other legal academics, who consider in depth many questions about the government, the law and judges decisions; legal aid commissions and centres; the federal and State law reform commissions; and bodies that provide alternative dispute resolution services. Other examples of institutions that make up the legal framework in Australia might include the Australian Securities & Investments Commission (ASIC), an independent Australian government body that acts as Australia's corporate regulator. In NSW, the Independent Commission Against Corruption (ICAC) is a well-known institution. One NSW Premier (Nick Greiner) was investigated by ICAC. Eventually, he resigned.