A subject’s legal history says a lot about their integrity and suitability
Performing any sort of counterparty due diligence requires an understanding of the “whole person” (this applies to both individuals and legal entities). In financial sector or service delivery organisations, this is referred to as a “single view of customer” and is used to manage fraud risk, credit risk and regulatory compliance.
A subject’s legal history is an important element of the ‘whole person’; without it, managers may make decisions based on incomplete or inaccurate information only to regret it later. Performing legal checks requires an understanding of Australia’s courts to develop an informed search strategy.
Australia’s court structure
In Australia, legal matters can be brought under State / Territory or Commonwealth law, as well as other mechanisms (such as professional standards schemes which are expected to regulate their members). Some dispute mechanisms are industry based.
State or Territory courts:
- Local Court, County Court, Magistrates Court – hears most criminal and summary prosecutions and minor civil matters (e.g. <100,000). 95% of criminal cases commence at this level.
- District Court (excluding TAS, NT and the ACT) – hears appeals from Local Court, serious criminal cases (excluding murder, treason), civil matters typically <$750,000.
- Supreme Court – hears serious civil cases >$750,000 and serious criminal cases (including murder, treason and piracy).
Commonwealth (federal) courts:
- Federal Court – has jurisdiction over 120 plus federal Acts of Parliament.
- Family Court – jurisdiction over all divorces and maintainence over children and spouses.
- High Court – primary role is to interpret and enforce the Constitution, amongst functions.
The State Library of NSW provides a useful overview of Australia’s courts and tribunals.
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Where to search court records
Most Australian jurisdictions have consolidated their legal records, making the task of searching for a record relatively easy once you know what you are looking for:
| Jurisdiction | Civil or Criminal | Source | Comments | |
| NSW | Both | CaseLaw | Generally within 24 hours | |
| ACT | Both | Judgements | – | |
| QLD | Both | CaseLaw | Generally within 24 hours | |
| VIC | Both | Multiple Websites | Varies | |
| SA | Both | Judgements | – | |
| TAS | Both | Decisions | Published on AustLII* | |
| WA | Both | Decisions | – | |
| NT | Both | Multiple Websites | – | |
| Federal Court Family Court Federal Circuit | Both | Federal Law Search | – | |
| Federal Court | Both | Judgements | Released within 24 hours |
* The Australian Legal Information Institute (AustLII) is jointly operated by the UTS and UNSW law faculties and aims to pubish public legal information, including primary and secondary legal materials. AustLII is not a primary source.
Criminal Records are considered ‘sensitive information’ under the Privacy Act
Note that searching court records is different to a National Police Check (‘criminal history check’). Under the Privacy Act 1988 (Cth), an individual’s criminal record is considered a category of sensitive information.
A National Police Check is the appropriate mechanism to understand whether an individual has a criminal record (such as for workforce screening purposes or before contracting with the management team of a prospective business partner). The National Police Check process considers important factors such as Spent Convictions.
Importantly, performing a National Police Check in Australia requires the individual’s informed consent.
How do you search court records?
Public Record checks are typically performed at the early stages of any due diligence or vetting process, once you have a clear understanding of the scope and parties involved. A typical process for searching court records is as follows:
1. Identify the full legal name of all entities and individuals, including close associates and related parties.
2. Determine which databases to query and over what timeframe. The scope and your professional judgement will set the timeframe, whilst jurisdiction is dependent on what you know (or need to know) about the subject. In some cases, a negative search result (i.e. no results returned for a party name) may be all need to know. If you have no idea where they have lived or operated, search every database (you may also need to search overseas).
3. Perform the search(es) and review the results. On the first pass, I use a spreadsheet to manage my searches and put all results in one of three categories: no match, possible match, match. Matches mean there is a record involving your subject (i.e. not another party with the same name). Possible match means you need to spend more time working out whether it’s your subject or not.
4. Assess the implications of your results
Vetting or due diligence is not simply about database checks – anyone can do this. Done properly, background investigations involve identifying potential risks based on what is and is not present (but should be), before determining the implications and what to do about them.
Paul Curwell (2022). REfer Chapter 8 in ‘Terrorist Diversion’
This is where diligence becomes an art. There is nothing in a database to tell you what is missing – this comes down to professional experience, judgement and skill.
5. Identify any other leads which need to be followed up.
6. Update your working papers or case notes, including what you did, when, where and the outcome. Databases and the internet change all the time, so a record that was there five minutes ago may be different when the same search is re-performed.
Primary versus Secondary Sources
Wherever possible, primary (original) sources should be used. Secondary source vendors are often more expensive, yet serve two main purposes:
- For companies that are willing to accept the risk of a record being inaccurate, incomplete, missing or out of date, secondary sources may offer an efficient alternative which enables multiple types of searches to be performed from a single location (e.g. court records, credit ratings, company ownership, land titles) as well as the ability to automating record search and retrieval to your case management system via API.
- For investigators, secondary sources provide a handy way of quickly identifying potential relationships, transactions or other records which can the be verified via the primary source. Some vendors offer the ability to search all fields in a record, unlike the limited search functionality often offered by primary vendors.
When it comes to secondary, sources, Caveat Emptor: (1) they are not a primary source (hence they could be incomplete or out of date), and (2) they are often a ‘black box’ in terms of search parameters, so you may not actually know what is or is not being searched (some vendors have a nasty habit of changing search functionality without informing their customers, so what worked when you undertook your diligence one week may be completely different the next).
Court Lists
Court lists are published online in most Australian jurisdictions to inform parties to a case when and where they need to be. Often, court lists are published temporarily and subsequently removed. They are not an authoritative source.
Further reading
- Australian Capital Territory Courts
- Australian Legal Information Institute (2022). About, https://www.austlii.edu.au/about.html
- Courts Administration Authority of South Australia
- Courts and Tribunals Tasmania
- Court Services Victoria
- eCourts Portal of Western Australia
- May, O., and Curwell, P. (2021). Chapter 8 Due Diligence in Terrorist Diversion: A Guide to Prevention and Detection for NGOs
- New South Wales CaseLaw
- Office of the Australian Information Commissioner (2022). What is personal information?, www.oaic.gov.au
- State Library of NSW (2022). Courts and Tribunals in Hot Topics, legalanswers.sl.nsw.gov.au
- Supreme Court Library Queensland
- Professional Standards Council (2022). Professional Standards Schemes.
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