호주 법정 시스템 ( Australia's legal system )

호주 법정은 연방 법원(Federal Court) 과 주 법원(State Court) 체계로 나누어져 있고, 두 법원 사이는 사법권(jurisdiction)이 달라 서로 독립적(independent)입니다.

Federal Courts 에는 Federal Circuit Court, Family Court, Federal court 그리고 High Court 가 있고, State Courts 에는 Local Court (Magistrate Court), District Court 그리고 Supreme Court 가 있습니다.

State Court에서는 민사(Civil) 및 형사(Criminal) 소송을 주로 다루고, Federal Court 의 High Court 는 최상위 법정으로 헌법(constitution)에 관련된 문제들을 다루고, 가정 문제, 행정상의 문제, 파산 그리고 이민과 무역법에 관한 분쟁을 다룹니다. 그래서 Federal Court 산하에는  MRT(Migration Review Tribunal), RRT(Refugee Review Tribunal), Fairwork Commission 및 ACCC(Australian Competition & Consumer Commission :공정거래 위원회)등이 있습니다.

ㅎㅎㅎ 하위법원부터 상위법원까지 도표로 보이면 한 눈에 확 들어올텐데요... ㅎㅎㅎ

오늘은 여기까지... :)

Australia’s federal courts

Chapter III of the Constitution establishes the High Court of Australia and empowers parliament to create other federal courts and to vest federal judicial power in state and territory courts.

There are four principal federal courts:

• High Court of Australia
• is the highest court and the final court of appeal in Australia
• hears matters involving a dispute about the meaning of the Constitution, as well as final appeals in civil and criminal matters from all courts in Australia
• Federal Court of Australia
• hears matters on a range of different subject matter including bankruptcy, corporations, industrial relations, native title, taxation and trade practices laws, and hears appeals from decisions (except family law decisions) of the Federal Magistrates Court
• Family Court of Australia
• is Australia’s specialist court dealing with family disputes, and hears appeals from decisions in family law matters of the Federal Magistrates Court
• sits in each state and territory except Western Australia, where family law matters are heard by a state court, the Family Court of Western Australia
• Federal Circuit Court of Australia
• on 12 April 2013 the Federal Magistrates Court was renamed the Federal Circuit Court of Australia and the titles of ‘Chief Federal Magistrate’ and ‘Federal Magistrate’ changed to ‘Chief Judge’ and ‘Judge’ respectively
• the court hears less complex disputes in matters under family, administrative, bankruptcy, industrial relations, migration and trade practices laws

Each state and territory has their own laws and court system. State and territory courts fall within the responsibilities of the relevant state or territory Attorney‑General or Minister for Justice.

source : https://www.ag.gov.au/LegalSystem/Courts/Pages/default.aspx

State Courts

Magistrates Court ( NSW 주에서는 Local court 라고 부름 )

The Magistrates Court is a state wide court operating from local registries.

The Court is divided into:

• Civil (Minor Claims) Division
• Civil (General Claims) Division
• Civil (Consumer and Business Claims) Division
• Criminal Division
• Petty Sessions Division

Most cases in the Magistrates Court are decided by a Magistrate. Special justices makes decisions in the Petty Sessions Division and in other limited cases. Magistrates are legally qualified, but special justices usually have no formal legal training.

Civil jurisdiction 민사 재판권

The Magistrates Court in its civil jurisdiction is a court of law and equity which means there is a wide range of remedies that the Court can order. In addition to making orders for payment of money, the Court has the power to order people to do certain things, for example, to hand over property.

The Civil (Minor Claims) Division of the Magistrates Court has power to hear:

• monetary claims for $12 000 or less (as of 1 August 2016)
• neighbourhood disputes
• minor statutory proceedings

This division of the Magistrates Court has simplified procedures to allow people to represent themselves. Usually no lawyers are permitted to represent parties. Disputes between parties are dealt with according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.

The Civil (General Claims) Division of the Magistrates Court has power to hear matters up to $100 000.

The Court can also help the parties reach agreement through mediation as an alterative to continuing with litigation.

Criminal jurisdiction 형사 재판 관할권

The Magistrates Court in its criminal jurisdiction deals with less serious criminal cases such as theft (summary and minor indictable offences). There are no juries.

The Magistrates Court does not hear more serious criminal cases such as murder, manslaughter or conspiracy to pervert the course of justice (indictable offences). However, the Magistrate will conduct preliminary examinations (committal hearings) in relation to indictable offences to decide whether or not there is enough evidence to send the accused to trial in a higher court.

The Magistrates Court may determine a sentence following a guilty plea in a major indictable matter (but not murder or treason). Appeals normally go to the Supreme Court, but in these matters, an appeal lies to the full court of the Supreme Court [Magistrates Court Act 1991 s42(2)(ab)].

The Magistrates Court does not have the power to impose:

• a sentence of imprisonment that exceeds 5 years if the penalty is for 1 offence
• a sentence of imprisonment that exceeds 10 years if the penalty is for more than 1 offence
• a fine in a matter under the Occupational Health, Safety and Welfare Act 1986 being heard by an industrial magistrate that exceeds $300 000
• a fine in any other case that exceeds $150 000.

District Court

The District Court is a state wide court and travels to country areas. It has the following four divisions:

• Civil Division
• Criminal Division
• Criminal Injuries Division
• Administrative and Disciplinary Division

The Criminal Division, made up of a judge and jury, hears more serious criminal cases, except treason and murder, where the Magistrates Court has referred the accused for a penalty to be given (if pleading guilty) or for a trial (if pleading not guilty). The Civil Division, consisting of one judge alone, has almost the same powers as the Supreme Court.The Criminal Injuries Division hears claims under the Victims of Crime Act 2001 and the Administrative and Disciplinary Division hears claims under other legislation.

To encourage plaintiffs to make their claim in the correct court, there is a rule that a plaintiff may not recover any legal costs unless more than the following minimum amounts are awarded (unless there are special reasons):

• for injury claims arising from a motor vehicle accident, $30 000
• in defamation cases, $7 500
• any other claim $15 000

Supreme Court

The Supreme Court is the highest State court. It decides both civil and criminal matters and its decisions are binding on the lower courts. It has an original jurisdiction that is exclusive to this Court (i.e. not shared with lower courts). This includes probate (wills), murder, and, although rare, treason and admiralty cases. It also has a Land and Valuation Division.

The Court also has an appellate jurisdiction, hearing appeals from lower courts and specialist tribunals and from single judges of the Supreme Court. Appeals from lower courts are usually heard by one judge. Appeals from decisions of a single Supreme Court judge are heard by a Full Bench of (usually) three Supreme Court Judges sitting together. In civil cases this is called the Full Court and in criminal cases it is called the Court of Criminal Appeal. Appeals from the Supreme Court can be made to the High Court of Australia with the High Court's permission (called 'special leave').

In the Supreme Court the minimum amounts that must be awarded for a plaintiff to be enitlted to an order for costs (unless there are special reasons) are:

• for injury claims arising from a motor vehicle accident, $150 000
• in defamation cases, $25 000
• any other claim $75 000

Apart from the main courts mentioned above there are a number of specialist courts. These include:

• the Youth Court [see Youth Court Act 1993 (SA) s 4];
• the Environment, Resources and Development Court [see Environment, Resources and Development Court Act 1993 (SA)];
• the Coroners Court [Coroners Act 2003 (SA) s 10];
• the Licencing Court [see Liquor Licensing Act 1997 (SA) s 12];
• the Industrial Relations Court [see Fair Work Act 1994 (SA) s 8];
• the Court of Disputed Returns [see Electoral Act 1985 (SA) s103]; and
• the Warden's Court [see Mining Act 1971 (SA) s 64].

Source : www.lawhandbook.sa.gov.au/ch27s06.php