SCWK90055 Chap.7 The Australian Legal System and Access to Justice
The Australian Legal System and Access to Justice
Social workers need a working map of the legal system because it shapes both their clients' lives and their own obligations. This chapter explains how Australian law is made, through legislation passed by parliaments and case law made by courts, and how the Constitution divides subjects between the Commonwealth and the states. It contrasts criminal and civil law by purpose, outcome and typical matters.
It sets out the Victorian court hierarchy from VCAT to the Supreme Court, the federal ladder, the High Court at the top and the path of appeal, and the adversarial nature of Australian courts.
It compares the duties and practice of lawyers with those of social workers, and it closes with access to justice: the barriers faced by disadvantaged groups and the safeguards meant to reduce them, from Legal Aid to problem-solving courts and health justice partnerships.
Throughout, the focus is on what a practitioner needs to know to support a client through a legal process, including which body hears a matter and what help is available on the day.
What this chapter covers
- 01
Legislation and case law
- 02
Commonwealth and state powers
- 03
Criminal and civil law
- 04
The Victorian and federal court hierarchies
- 05
Lawyers' duties and social work practice
- 06
Access to justice and its safeguards
Worked example · free
Which court, and could it be appealed?
- 1VCAT is a tribunal at the base of the Victorian hierarchy that hears guardianship and administration matters.
- 1Hearings there are relatively informal, and parties often appear without a lawyer.
- 1A VCAT decision in this area can be taken on appeal to Victoria's Supreme Court, higher in the hierarchy.
- 1At the Supreme Court lawyers are central, so he should seek advice, for example from Legal Aid or a community legal centre.
Key terms
- Legislation
- Legislation is law made by a parliament, applying within that parliament's jurisdiction.
- Precedent
- Precedent is an earlier court ruling that later judges follow, which builds case law over time.
- Adversarial system
- An adversarial system is a court process in which the parties present evidence and argument and the judge decides between them.
- Legal professional privilege
- Legal professional privilege is the legal protection that keeps a lawyer's advice to a client confidential, even from a court.
- Problem-solving court
- A problem-solving court is a specialist court that addresses the underlying causes of offending through case management and support.
The Australian Legal System and Access to Justice FAQ
What is the difference between criminal and civil law?
Criminal law is the State regulating behaviour, with penalties that can include custody. Civil law regulates dealings between individuals, such as tenancy, small claims, guardianship and negligence, and its remedies are compensation or orders to act rather than imprisonment.
Where does VCAT sit in the court hierarchy?
At the base of the Victorian ladder, below the Magistrates', County and Supreme Courts. It hears matters such as guardianship orders and small claims in a less formal setting, often without lawyers, and higher courts can hear appeals from it.
Why do lawyers and social workers sometimes clash?
Lawyers owe their first duty to the court and then to individual clients, act on instructions and argue adversarially. Social workers may treat a family as the client, pursue assessed best interests and seek consensus, which can create friction in shared cases.
What safeguards improve access to justice?
Legal Aid Commissions give information to everyone and representation to eligible people, problem-solving courts such as the Koori Court address underlying issues, courts fund interpreters in criminal and family violence matters, and the Court Network offers volunteer support at court.
Is the Australian court system adversarial or inquisitorial?
Adversarial. The parties, usually through lawyers, present evidence and argument, and the judge or jury decides between them. In an inquisitorial system, such as France's, judges take a more active role and question witnesses or call for evidence themselves.
Assessment move
Draw the court hierarchy from memory, state on the left and federal on the right, with one type of matter beside each level and arrows showing appeals. Make a two-column table of criminal and civil law and add two examples to each column. Learn the Constitution's split of powers with one example each for the Commonwealth and the states.
For interdisciplinary practice, list the lawyer's two duties in order and the four practice differences. Finally, memorise the access to justice safeguards with what each does, since short answers often ask for three of them.
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