by Monica Chamness
Staff Writer
Attorney Thomas Bishop, who once practiced law in Australia, outlined the basic differences and similarities between American and Australia courts last week at the Federal Bar Luncheon. FBA members later attended a video-teleconference featuring Chief Justice Black of Australia’s federal court.
“Australia shares our commitment to individual rights but they also temper it with the same pragmatic approach to justice,” said Bishop, who is admitted as a barrister in the territory of Queensland. “Both of our countries started from scratch and carved a civilization out of the wilderness. We both look to the Old World for laws, but at the same time are confident to craft our own way.”
Indirectly, the geography of Australia has shaped its application of the law. With a population of 18 million people dispersed over a land mass comparable to the size of the United States, certain provisions to overcome distance have been established. It is not uncommon for a lawyer to argue a case by video or teleconference technology instead of traveling several hundred miles to appear in person.
A commonwealth country, Australia continues to recognize the Queen of England as head of state. She is represented by the governor general, who acts under the prime minister’s directive. The prime minister is elected by the majority of Parliament.
“They tried to decided whether to keep the queen or boot the old gal out,” said Bishop. “By a very narrow margin, they kept her in.”
Their constitution governs the courts and the branches of government. Most of their citizens’ rights are protected through statute laws. According to Bishop, they are incorporating some United Nations’ law and there have been heated arguments for an actual Bill of Rights similar to America’s.
The hierarchy of their courts is dissimilar, too. Their approximation of federal court, The High Court of Australia, allows justices to pick cases of significant importance from state courts at their discretion. Justices can be easily spotted by their red robes and short wigs.
“You will see mainly commercial cases, civil disputes and constitutional issues tried and litigated in federal court,” said Bishop. “They try almost no criminal cases. The reason being that the Australian Constitution allows what’s called cross-vesting. Under this system, what would be the equivalent of our Circuit Court is vested with the jurisdiction to try cases under federal code, so you will see federal prosecution brought into the state courts. Supreme Court justices try murder cases, serious drug offenses and very serious sex crimes.”
Another difference is that family law matters are considered to fall under federal court’s authority. Additionally, judges are appointed for life and do not have clerks; often they must pen their own written opinions. The process can drag on for years.
Individuals known as litigation solicitors do all the office work, prepare all the pleadings, handle all of the discovery and then hand the file over to the barrister for courtroom advocacy.
Magistrate courts are similar to the American county courts. They handle misdemeanors and small civil cases. Judges are appointed by the governor general and tend to be the most senior practitioners. Almost always, they rise from the rank of barrister.
Noticeably different between the two countries is the amount of paperwork. Briefs are wrapped like packages with ribbon. Very few written documents are submitted and a three to four page outline of the attorney’s argument is standard. Long oral arguments ensue, with the judge often issuing a decision on the spot.
“The idea is the lawyer is to guide the judge to the right result,” said Bishop. “The judge has to rely completely on the advocate to get it right because they’re not going behind them and researching. It requires very high-quality advocacy. It would be harder in our system because when I go to court, occasionally people don’t get things right. You don’t see much of that down there.”