Overview of Australian Courts and Primary/Secondary Law Sources

This essay provides a comprehensive overview of the Australian legal system, detailing the structure and jurisdiction of the Supreme Court, District Court, and Magistrate Court within each state. It further elucidates the primary sources of law, including court decisions, legislations, international treaties, agency law, and customs, contrasting them with secondary sources such as law reviews, legal news, books, and articles. The essay emphasizes the importance of understanding both primary and secondary sources for interpreting and applying the law effectively, highlighting the role of secondary sources in clarifying the intent and application of legislation. It concludes by noting the criteria for evaluating the reliability of secondary legal sources.

Running head: LEGAL WRITING AND RESEARCH COMMUNICATION LAW
Legal Writing and Research Communication Law
Name of the Student
Name of the University
Author Note

1
LEGAL WRITING AND RESEARCH COMMUNICATION LAW
Answer 1
The Supreme Court in Australia is the highest courts in the state. Each state has its own supreme
court which has unlimited jurisdiction within the states. For instance the SC in NSW had been
established on 2nd April 1814, the SC of Victoria was founded in 1852 and the SC of Queensland
was found in 7th August 1861. The Supreme Court is mainly divided into two divisions which are
the trial court and the court of appeal. The court of appeal consists of the president and four other
judges who only preside over the court of appeal proceedings which are generally heard by three
judges. A number of trial judges make up the trial division of the Supreme Court and is lead by
the senior judge administrator. Every proceeding in the trial court is heard by one trial judge
only. The judges of the trial courts also work for the court of appeal for a period of three weeks.
Appeals from the district courts are heard by the trial court and appeal from the trial courts are
heard by the court of appeal. A decision of the district court can also be appealed in the court of
appeal. the trial division also hear appeal form the magistrate courts where there is a question of
law and also from civil and administrative tribunal on question of law except where an order is
made against the president or vice president of the tribunal. The trial court hears indictable
offences like treason. The court of appeal is also divided in to a general court of appeal and a
court of criminal appeal. The trial court is divided into two divisions namely the common law
divisions and the equity division. The common law division of the court deals with
administrative, criminal and civil law matters. These matters consist of breach of contract,
professional negligence, defamation, damages claim for personal property and defamation.
Specific cases like professional negligence and defamation are consisted in a specialized list so
that the progress to the trial can be supervised by the judges. Other cases are allocated to the
general case management. The court also deals with criminal matter including man slaughter and

2
LEGAL WRITING AND RESEARCH COMMUNICATION LAW
murder, serious breach of corporation law, attempted law and drug related charges. The
administrative matters which can be brought before the court include decisions form ministers
and administrative tribunals. The equity division of the court consists of seventeen judges along
with a registrar. All matter which arise from the supreme court are dealt with by the High Court
or the Federal Court of Australia.
The district courts are the second tier in the court hierarchy of the states. These courts deal with
criminal offences which are of a serious nature like armed robbery, fraud and rape. Whether the
defendant is guilty or not is decided by the jury. Each of the states has their own district courts.
The civil jurisdiction of the district court extended to cases where the disputed amount is more
than or $150000 or less than or equal to $750,000. Maters which are more than $750000 are
dealt with by the supreme courts whereas those matters which are less than $150000 are dealt by
the administrative tribunals or the magistrate courts. The criminal jurisdictions of the district
courts consist of instances where the defendant has been alleged to committed indictable
offences which are very significant in nature. The district courts are the largest trial courts in
Australia and also have an appellate jurisdiction. The states also have a magistrate court which is
the first court for the citizens. the court deal with nominal matters which are civil and criminal in
nature. These courts also have the right to hear an appeal from the administrative tribunals. The
magistrate courts are also known as local courts. These courts are the lowest judicial platform in
the Australian hierarchy. These courts are divided into various branches across the different
states. There are five divisions in the courts which are namely children courts, coroner’s court,
small claims court, criminal court and family court. The children court deals with matters were
the parties involved in the case are minors and have not completed the age of 18. The court is a
closed for the public to attend. The press is allowed to enter the court however they are not

3
LEGAL WRITING AND RESEARCH COMMUNICATION LAW
allowed to identify the offenders in the proceedings. In the coroner’s court investigation of cases
such as unnatural or violent deaths, suspicious explosions or fire is done. However the court does
not have the right to make orders in relation to such cases. The court passes their findings in
relation to the case and after termination of the proceedings transfer the findings to federal
directors of public prosecution for starting proceedings. Therefore the federal court is the high
court and the states have Supreme Court, district court and magistrate courts in Australia
(Attorney-General's Department, 2017).
Answer 2
The sources of law can be divided into primary sources and secondary sources. According to
Keltner & Lillie (2013) the primary sources of law are those which itself are statement of law set
out by a governmental entity like president or governor, executive bodies and the legislature.
Few examples of primary source of law are court decisions and legislations. Primary sources of
law includes common law, equity, statue law, delegated legislation and international law.
Court decision- According to the doctrine of precedent a decision made by a higher court is
applicable on the lower court. The courts provide may judgments on a daily basis as there are
thousands of cases which are brought before the court. The duty of the judges in the courts is to
ensure that the correct law in applied in every case. When the judges apply a law they do so upon
analyzing the facts of the case. There are various instances where the facts of two different cases
are identical to each other. In such cases where it is clearly established that the facts are identical
the court have to apply the law which has been previously applied on a similar case by a higher
court in the case in hand. Therefore based on the doctrine of precedents the case decisions
provided by the court become a primary source of law (Challenge, 2014).

4
LEGAL WRITING AND RESEARCH COMMUNICATION LAW
Legislations- The parliaments have the responsibility of making law for the court. The law made
by the parliament is the most primary source of law which is applicable in a country. The law
which is made by the parliament can be categorized into policy , procedures and legislation. The
parliament of Australia has the right to make laws in every area which is covered by its
jurisdictions. In the same way the parliaments of the states also have the power to enact
legislations and policies in relation to the area under their jurisdiction. When the parliament
makes laws they have to do so in accordance to the power provided to them by the
commonwealth constitution under Section 51. Any legislation which is made by the parliament if
it is not in compliance with the constitution is considered as invalid by the high court of
Australia (MacCormick, Summers & Goodhart, 2016).
International treaties- International treaties and customs are also a primary source of law. The
parliament may enter in treaties with other country’s parliament and may be therefore under the
obligation to enact laws according to the treaties. The treaties themselves are a primary source of
law governing the relations between the countries who are a party to it.
Agency law- Some government agencies are provided law making power by the parliament
under the principles of delegated legislation. Such powers allow the agency to make laws
according to the need of the hour. The laws made by such agency also act as a primary source of
law and can only be challenged in courts in form of a judicial review.
Customs- customs such as industrial customs which have been in practice for a long time are also
considered as a primary source of law (Rembar, 2015).
Secondary sources of law are those which help to understand the primary sources in a better way.
According to Lupo, Spinosa & Francesconi (2014) materials which interpret, discuss, analyze

5
LEGAL WRITING AND RESEARCH COMMUNICATION LAW
and explain how the law actually works and what the law is or should be are known as secondary
sources of law. Some of the secondary sources of law are Law review, legal news, books about
law, articles about law, ALR annotations, legal newspaper, restatements and encyclopedia.
The laws which are made by the parliament are concise and provide the intention of the
parliament towards making the law. The law which is made by the parliament has to be
interpreted which means that it has to be applied in such a way so as to bring out the real
intention of the parliament towards enacting a law. The provisions of a particular legislation may
be provided by the parliament in one or two lines or in a single paragraph; however they may
have a broad interpretation. The secondary sources of law help to attain the precise meaning of
law which has been set out by the parliaments. For instance the books and articles on particular
provisions of law would help the readers to understand it in a proper way in the light of
researches conducted in the particular area of law. However while using such sources of law
there are certain criteria which needs to be followed such as verifying the credentials of the
author, when was the source published so that how recent is the information can be identified
and whether such information has been reviewed and analyzed properly.

6
LEGAL WRITING AND RESEARCH COMMUNICATION LAW
References
Barkan, S. M., Bintliff, B., & Whisner, M. (2015). Fundamentals of legal research.
CHALLENGE, A. (2014). SOURCES OF LAW. Leading and Managing in Canadian Nursing-
E-Book, 69.
Keltner, N. L., & Lillie, K. (2013). SOURCES OF LAW. Psychiatric Nursing, 33.
Lupo, C., Spinosa, P., & Francesconi, E. (2014). A Uniform Resource Name (URN) Namespace
for Sources of Law (LEX).
MacCormick, D. N., Summers, R. S., & Goodhart, A. L. (Eds.). (2016). Interpreting precedents:
a comparative study. Routledge.
Rembar, C. (2015). The law of the land: The evolution of our legal system. Open Road Media.
The courts | Attorney-General's Department. (2017). Ag.gov.au. Retrieved 5 December 2017,
from https://www.ag.gov.au/LegalSystem/Courts/Pages/default.aspx