Victorian Legal System

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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.

Where do the laws come from?

The law is made by parliament and is interpreted and defined by the courts. The different types of law are called statute law (or legislation), and common law (or judge-made law).
  • The Australian Constitution is Australia’s supreme law, providing a framework for the development of all other laws in Australia, by establishing the division of power between the federal and state parliaments. 
  • Statute law (legislation) is law made by state and Commonwealth parliaments. Proposed new laws are introduced into parliament as bills, and go through certain steps before they become law. They are then known as statutes, or Acts of Parliament. The Victorian parliament makes law in certain areas for the people of Victoria. The federal parliament has powers in other areas to make laws for all Australians.
  • Common law (judge made law) can also be called case law. It refers to law made by the courts, through handing down decisions in various cases, and applying the doctrine of precedent (rules set by courts in the past, so that the law builds on each previous decision). Examples of common law are the rules relating to defences for murder and negligence. 

About Australian Laws

Australian laws are classified as either criminal or civil laws.
  • Criminal law is the law relating to crime or criminal acts. Where it appears a person has committed an offence or wrongdoing against society’s rules, the police can take action against that person (the accused), on behalf of society. If the person is found guilty of the crime, a sanction, or punishment, can be set – e.g. a fine, a community based order (for treatment or community work), or a prison sentence.
Criminal cases are referred to as, for example, R v Brown, where Brown is the accused – represented in court by a defence lawyer – and R is the prosecution – the police, acting on behalf of the Crown, or the people.
  • Civil law is law that involves the enforcing of a person’s rights; it is concerned with behaviour between one person and another, and a remedy or compensation may be awarded if it is found that a person’s rights have been infringed, or breached. One common remedy asked for is damages (payment of money as compensation for financial loss or for suffering some other wrong). 
Civil cases are referred to as, for example, Smith v Brown, where Smith is the plaintiff – the person who is bringing the case to court; Brown is the defendant – the person who is disputing the claims brought by Smith.

How the Australian system works

The legal system used in Australia is called an adversary system. This means there are two opposing sides, each trying to prove the other wrong. Features of the adversary system are:
  • cases in court are presided over by a judge or magistrate who acts as an impartial and independent “umpire”;
  • in criminal cases, the accused is innocent until proven guilty by the prosecution;
  • individuals are responsible for the conduct of their own matters and are represented by legal practitioners;
  • rules of evidence and procedure are set down and both parties have equal footing.
Serious criminal cases are determined by a judge and jury. The role of the judge is to direct the jury, give rulings on points of law, summarise the facts of the case and answer queries from the jury. 
In civil cases without a jury, the judge decides the outcome of the case, and the remedy.

About juries

Juries are an important part of Victoria’s civil and criminal law system. They comprise of citizens randomly chosen from the electoral register, and enable non-legal members of our community to participate in the administration of justice.
  • Juries are required for serious criminal trials and some civil trials in the County and Supreme Courts. 
  • 12 jury members sit in a criminal trial. 
  • The jury must decide if the accused person is guilty as charged. 
  • For civil trials (private disputes between parties) there are six jury members. In these cases, the jury must decide which party is at fault.
  • Most trials take five to ten days, but they can take longer. 
  • Jury duty is compulsory, unless a person has a genuine and valid reason to be excused.

Primary or appropriate dispute resolution (ADR)

This means using different ways of resolving legal disputes other than going to court. Such methods include mediation, negotiation, conciliation and arbitration. A more recent form of ADR is collaborative law, used particularly in family law disputes.
Advantages of using ADR: 
  • it is generally confidential, flexible and usually cheaper than going to court; and
  • it is suitable for people who may need to keep some form of ongoing contact with each other, such as parents who, even though divorced, still have a continuing relationship through their children.

About Lawyers

Lawyers are generally called legal practitioners and can be either solicitors or barristers. Both have to complete a law degree (Bachelor of Laws or Juris Doctor) and undertake either further studies or work placements before they can work as a legal practitioner – this is a formal requirement called being admitted to practice.
  • Solicitors
    They are usually the first point of contact for a person seeking help with a legal problem. They provide advice on topics ranging from business procedures or making a will to real estate transactions and criminal matters. Solicitors practise in various areas of law and can work in a variety of employment situations – sole practitioners, small partnerships, medium and large firms and other areas such as corporate law (working for a particular business or company) and in government.
  • Barristers
    They represent, or speak on behalf of, people in court. They generally receive work (known as a “brief”) by referral from a solicitor. Their offices are called chambers; unlike solicitors they do not work in firms but are self-employed; and they wear wigs and gowns when appearing in the higher courts. After a number of years-experience at ‘the Bar’, a barrister may apply to be appointed to the higher rank of Senior.

Jurisdiction of the courts

There are various levels of courts, from state courts, which only affect the people of Victoria, to federal courts affecting all Australians. There are also tribunals which operate like courts, but generally have simpler procedures and decide matters in limited areas of law, such as native title or compensation for victims of crime.

Courts and tribunals

The Supreme Court of Victoria is the highest court in Victoria and deals with serious criminal cases and complex civil cases. 
It has two divisions:
  • Trial Division hears only the most serious criminal matters like murder, attempted murder and treason, civil cases involving major sums of money or complex legal matters.
  • Court of Appeal hears appeals from the Trial Division of the Supreme Court and other Victorian courts and tribunals.
County Court of Victoria
  • Sits in the middle of the court hierarchy – above the Magistrates’ Court and below the Supreme Court.
  • Hears civil, criminal and criminal appeals matters.
  • Hears more serious criminal cases than the Magistrates’ Court, including matters involving drugs, robbery, dangerous driving and sex offences. 
Magistrates’ Court of Victoria
  • Headed by the Chief Magistrate, the Magistrates’ Court is the lowest court in the Victorian hierarchy and determines about 90% of all cases.
  • Handles both criminal and civil matters.
  • There are no juries in the Magistrates’ Court – each case is determined by a single magistrate.
Children’s Court
  • Handles criminal offences and welfare matters involving children and young people under the age of 18.
  • It has two divisions - the Family Division and the Criminal Division.
  • The Family Division hears protection applications, breaches of welfare orders, irreconcilable differences applications and permanent care orders for young people aged under 17 who are in need of care and protection.
  • The Criminal Division deals with children and young people aged between 10 and 18 accused of committing a crime.
Coroners Court
  • Responsible for investigating reportable deaths (deaths which are sudden, violent or unusual) and fires.
  • It is investigative rather than adversarial.
  • A coroner cannot make findings as to guilt, innocence or criminal liability. Their primary purpose is to make recommendations to help prevent similar deaths or fires in the future. Not every death in Victoria is investigated by a coroner.

Tribunals

Tribunals are created by both federal and state legislation. The advantages of tribunals over courts are that they are generally less expensive, less time consuming and use less formal methods of resolving disputes, particularly mediation.
 
The Victorian Civil and Administrative Tribunal (VCAT) 
  • Seals with a wide range of everyday legal disputes such as discrimination, building debt, guardianship, health, privacy, legal practice, mental health, owners corporations, tenants and landlords, and the purchase and supply of goods and services.
  • Encourages people to settle disputes before the matter reaches a hearing. This can be done by attending a hearing, by attending mediation or a compulsory conference. 
The Victims of Crimes Assistance Tribunal
  • Provides financial assistance to Victorians who have been injured by an act of violent crime. 

Federal courts

These courts operate under federal law and are the same in all states.
 
The High Court of Australia 
  • Is a federal court and is Australia’s ultimate appeal court. 
  • Interprets and applies the law of Australia
  • Decides cases of special deferral significance 
  • Hears appeals, by special leave, from federal, state and territory courts, including the Supreme Court of Victoria.  
Federal Court of Australia
  • Deals with complex matters of federal law including shipping law, bankruptcy, corporations law, competition law, constitutional law, native title and some criminal  matters.
The Family Court of Australia 
  • A specialist court that deals exclusively with matters relating to family and de facto law. Its main function is to deal with divorce, child-related matters, maintenance (financial support) and property settlements and determining parental orders and plans.
Federal Magistrates Court of Australia
  • Also deals with matters relating to family and de facto law. Deals with over 80% of all family law cases in Australia (except Western Australia).

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Please note the above information is not intended to, and does not encompass all aspects of the law on this subject matter. Further professional advice should be sought before action is taken based on matters outlined on this page.

- January 2013

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