The Australian legal system can be difficult to navigate if you’re unfamiliar with the terminology. We believe that everyone should know the basics of the law – you never know when that knowledge could come in handy! To avoid getting caught out if you need to deal with our legal system, we’ve put together this handy guide of frequently used Australian legal terms.
This blog covers terms used in criminal and civil law, as well as general terms that are used in all areas of the law. We’ll explain what each of these terms means, as well as the context they are used in:
1. General Australian Legal Terminology
Most cases in the Australian legal system that are resolved in courtrooms are presided over by a judge. When speaking to a judge, you should refer to them as “Your Honour”. Judges are responsible for ensuring that all trials are conducted fairly. They also decide how severe a penalty should be for a person who is found guilty of an offence. In some rare cases, they also determine if an accused person is guilty or not guilty.
When a trial goes to court, it is to resolve a civil or criminal case between two opposing parties. In civil and criminal cases, one party, either an individual, a group, or the Commonwealth, is accusing the other of committing an offence. The party who is accusing the other is referred to as the plaintiff or applicant in civil cases and the prosecution in criminal cases. The party being tried is commonly referred to as the defendant or the accused.
Also present in most courtrooms are lawyers, otherwise known as counsel. Typically, counsel are present to represent both parties involved in a case. The counsel use the term “my learned friend” to address opposing counsel.
2. Criminal Law Terminology
Some of the terminology used in Australian criminal law is unique to criminal cases. For example, only in criminal law can a person be charged with an indictable offense. An indictable offence is one that is severe enough to require a judge and jury. A person who is charged with an indictable offence receives their charges in writing – this is called an indictment.
A person who is charged with a criminal offence and taken to court must enter a plea before their trial begins – either guilty or not guilty. Pleading guilty is an admission that the defendant committed the crime they are accused of, while a defendant who pleads not guilty is denying that they committed the offence. Once a defendant has entered a plea, the counsel, witnesses, and the defendant themselves will present evidence. In Australian law, the defendant is innocent until proven guilty – this is called presumption of innocence.
The burden of proof, which is the responsibility to prove that the defendant is guilty, falls on the prosecution. The prosecution’s goal is to prove beyond reasonable doubt that the defendant is guilty. The term “reasonable doubt” is a complicated one in that it has no clear definition and is up to the interpretation of the judge and jury.
Most of the time, a jury is used in criminal cases, and occasionally in civil law. A jury is comprised of twelve everyday citizens who have been summoned for jury duty via a letter they receive by post. Juries are responsible for listening to the evidence presented by the prosecution and the defense to determine whether a defendant is guilty or not guilty. A jury must reach a majority verdict – that is, 10 or 11 of the jurors, depending on the state, must come to an agreement.
A jury that cannot reach a majority verdict is called a hung jury.
3. Civil Law Terminology
Civil law is a broad area of law that covers disputes between either individuals, companies, or government organisations. An area that is frequently covered in civil proceedings is tort law. A tort is a civil wrongdoing against a person or an organisation that has caused either intentional or unintentional harm. This harm may be caused to property or finances, or a breach of fundamental rights. The person who harms the other is called the tortfeasor.
When a tortfeasor is found by a judge to have committed harm against another party, they are usually required to pay damages as a remedy rather than serve a jail sentence or pay a fine to the state.
Civil law also covers the field of contract law. A contract is a legally binding agreement that is signed by two or more people or organisations. If a person or organisation has breached, or failed to adhere to the terms of, a contract they have signed, they can be sued. If a party successfully sues another, they are paid damages. Only civil cases allow one party to sue another.
The burden of proof is different in civil law to criminal cases. Instead of beyond reasonable doubt, a case must be proven with the balance of probabilities. This means that a judge or a registrar must decide whether the plaintiff or the defendant is more likely to be recounting the correct version of events. Instead of the burden of proof falling on the prosecutor, as it would in a criminal case, it is the responsibility of the plaintiff or applicant to prove that the other party has wronged them.
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