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The judiciary of Australia comprises judges who sit in federal courts and courts of the States and Territories of Australia. The High Court of Australia sits at the apex of the Australian court hierarchy as the ultimate court of appeal on matters of both federal and State law.
The large number of courts in Australia have different procedural powers and characteristics, different jurisdictional limits, different remedial powers and different cost structures.
Under the Australian Constitution, the judicial power of the Commonwealth is vested in the High Court of Australia and such other federal courts as may be created by the federal Parliament. These courts include the Federal Court of Australia, the Federal Circuit Court of Australia, and the Family Court of Australia. Federal jurisdiction can also be vested in State courts.
The Supreme Courts of the States and Territories are superior courts of record with general and unlimited jurisdiction within their own State or Territory.
Like the Supreme Courts of the States, the Family Court and Federal Court are superior courts of record, which means that they have certain inherent procedural and contempt powers. But unlike their State counterparts, their subject-matter jurisdiction must be conferred by statute. Under the doctrine of "accrued jurisdiction", the Federal Court can, however, rule on issues outside its explicit jurisdiction, provided that they are part of a larger controversy that the court does have jurisdiction over.
The High Court has limited trial powers, but very rarely exercises them. It has ample power to transfer cases started there to another, more appropriate court, so that the High Court can conserve its energies for its appellate functions.
Common law and equity are administered by the same courts, in a manner similar to that of the Judicature Acts in the United Kingdom. Legal and equitable remedies may be pursued in the one action in the one court.
Judges are appointed by the executive government, without intervention by the existing judiciary.Once appointed, judges have tenure and there are restrictions on their removal from office. For example, a federal judge may not be removed from office except by the Governor-General upon an address of both Houses of Parliament for proved misbehaviour. Judges in Australia are appointed by the Executive government of the relevant jurisdiction, and most judges have previously practised as a barrister. Federal judges may only serve until age 70. There is no constitutional limit on the length of service of State court judges, but State laws usually fix a retirement age. For example, in New South Wales, judges must retire at age 72, though they can remain as "acting judges" until age 76.
|General federal law||Family law||Employment law||General State/Territory law|
|Apex court||High Court of Australia|
|Superior courts (appellate jurisdiction)||Full Court of the Federal Court of Australia||Full Court of the Family Court of Australia||Federal|
Fair Work Division of the Full Court of the Federal Court of Australia
Court of Appeal (ACT - Qld - Vic - WA); Full Court of the Federal Court of Australia (NI)
|Superior courts (trial jurisdiction)||Federal Court of Australia||Family Court (WA - Rest of Australia)||Federal/Victoria/Territories|
Fair Work Division of the Federal Court of Australia
|Supreme Court (ACT - NI - NSW - NT - Qld - SA - Tas - Vic - WA)|
|Intermediate courts||Federal Circuit Court of Australia (does not hear WA family law matters)||Federal/Victoria/Territories|
Fair Work Division of the Federal Circuit Court of Australia
Industrial Court (Qld); Employment Court (SA) Supreme Court (NSW)
|District Court (NSW - Qld - SA - WA); County Court (Vic)|
No intermediate court (ACT - NI - NT - Tas)
|Inferior courts||Magistrates' Court (ACT - Qld - SA - Tas - Vic - WA);|
|Quasi-judicial tribunals for e.g. small claims and/or administrative review||Administrative review Administrative Appeals Tribunal |
| Child support |
Social Services and Child Support Division of the Administrative Appeals Tribunal
Fair Work Commission
Industrial Relations Commission (NSW - Qld - WA); Employment Tribunal (SA)
|Administrative review and/or small claims ACAT (ACT) - NCAT (NSW) - NTCAT (NT) - QCAT (Qld) - VCAT (Vic) - SACAT (SA) - Various (Tas) - SAT (WA) |
|Australian court hierarchy|
|Federal Law Courts|
|Courts of Australian States and Territories|
The hierarchy consists of a variety of courts and tribunals at both the federal and State and Territory levels, with the High Court being the highest court in the Australian judicial system.A single body of Australian common law is applied in the various Australian courts, and ultimately determined by the High Court now that appeals to the (British) Judicial Committee of the Privy Council have been abolished.
The High Court has described the concept of a superior court (and associated 'notions derived from the position of pre-Judicature common law courts') as having 'no ready application in Australia to federal courts.'Despite this, Australian courts are frequently characterised as either 'superior' or 'inferior.' The Federal Court and the supreme courts of each State and Territory are generally considered to be superior courts.
There is no single definition of the term 'superior court' (or 'superior court of record'). In many respects Australian superior courts are similar to the Senior Courts of England and Wales. In Australia, superior courts generally:
Inferior courts are those beneath superior courts in the appellate hierarchy, and are generally seen to include the magistrates' and district (or county) court of each State as well as the Federal Circuit Court. Inferior courts are typically characterised by:
These courts among them have jurisdiction over Commonwealth law, that is, law made by the Federal parliament of Australia.
The High Court is the highest court in the Australian judicial hierarchy. It was created by section 71 of the Constitution.It has appellate jurisdiction over all other courts. It also has original jurisdiction in certain matters, including powers of judicial review. The High Court of Australia is paramount to all federal courts. Further, unlike the position in the United States, it has an constitutionally entrenched general power of appeal from the Supreme Courts of the States.
Appeals to the High Court are by special leave only, which is generally only granted in cases of public importance, matters involving the interpretation of the Commonwealth Constitution, or where the law has been inconsistently applied across the States and Territories.Therefore, in the vast majority of cases, the appellate divisions of the Supreme Courts of each State and Territory and the Federal Court are the final courts of appeal.
Appeals from Australian courts to the Privy Council were initially possible, however the Privy Council (Limitation of Appeals) Act 1968 closed off all appeals to the Privy Council in matters involving federal legislation,and the Privy Council (Appeals from the High Court) Act 1975 closed almost all routes of appeal from the High Court. The Australia Act 1986 eliminated appeals from State Supreme Courts to the Privy Council. Appeals from the High Court to the Privy Council are now only theoretically possible in inter se matters with leave of the High Court under section 74 of the Constitution; however, the High Court has indicated it will not grant such leave in the future.
The Federal Court primarily hears matters relating to corporations, trade practices, industrial relations, bankruptcy, customs, immigration and other areas of federal law.The court has original jurisdiction in these areas, and also has the power to hear appeals from a number of tribunals and other bodies (and, in cases not involving family law, from the Federal Circuit Court of Australia.)
The court is a superior court of limited jurisdiction, but below the High Court of Australia in the hierarchy of federal courts, and was created by the Federal Court of Australia Act in 1976.
Decisions of the High Court are binding on the Federal Court. There is an appeal level of the Federal Court (the "Full Court" of the Federal Court), which consists of several judges, usually three but occasionally five in very significant cases.
The Family Court has jurisdiction over family law matters. It is a superior court of limited jurisdiction and was established in 1975 by the Family Law Act 1975 by the federal parliament. The Commonwealth has power over marriage and divorce under the Constitution. In the 1990s the states referred many of their powers over children of non-married couples to the Commonwealth, which added this power to the Family Court.
Uniquely among the states, Western Australia took up the option of establishing its own Family Court in 1975, and in that state all jurisdiction under the Family Law Act 1975 is exercised by the Family Court of Western Australia and not the Family Court of Australia.
The Family Court is a specialist family law court, involving parental disputes, matrimonial property, child support and other family-related laws. The principles of stare decisis (binding law from higher courts) are the same as for the Federal Court. Appeals from the Family Court are heard by the "Full Court" of the Family Court (three to five judges). Appeals from the Full Court lie to the High Court of Australia, though special leave is required. A single judge of the Family Court may hear appeals in family law matters from the Federal Circuit Court of Australia. Appeals from the Federal Circuit Court must go to either of these courts (Federal Court or Family Court), dependent on the area of law.
Decisions of the Full Court of the Federal and Family Courts are binding on Federal Circuit Court judges, as are decisions of these courts on appeal from a Federal Circuit Court judge. In other circumstances, decisions of a single Federal or Family Court judge are not strictly binding; however, these will usually be followed by sentencing.
The Federal Circuit Court of Australia (formerly known as the Federal Magistrates Court of Australia)is an Australian court with jurisdiction over matters broadly relating to family law and child support, administrative law, admiralty law, bankruptcy, copyright, human rights, industrial law, migration, privacy and trade practices. There has been a shift recently towards having most cases held in this court, thereby freeing up workload so the Federal Court of Australia and the Family Court of Australia can hear more complicated cases. This court also hears appeals from various federal tribunals.
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Each State and Territory has its own court hierarchy, with varying jurisdiction of each court. However, all States and Territories have a Supreme Court, which is a superior court of record and is the highest court within that State or Territory. These courts also have appeal divisions, known by various names across the country, including the Full Court, Court of Appeal, and Court of Criminal Appeal.
Decisions of the High Court are binding on all Australian courts, including State and Territory Supreme Courts.
State and Territory courts can sometimes exercise federal jurisdiction (that is, decide federal matters). However, an attempt by the states and the Commonwealth to pass legislation that would cross-vest state judicial powers in the federal courts was struck down by the High Court in Re Wakim; Ex parte McNally ,as being unconstitutional. Notwithstanding this failure, however, both State and federal courts can exercise an "accrued jurisdiction," which enables them to hear all legal issues arising from a single set of facts. This enables all courts to deal with virtually all issues arising from the facts of a case, provided that the particular court has jurisdiction to hear the principal cause of action.
Most of the States have two further levels of courts, which are comparable across the country. The District Court (or County Court in Victoria) handles most criminal trials for less serious indictable offences, and most civil matters below a threshold (usually around $1 million). The Magistrates' Court (or Local Court) handles summary matters and smaller civil matters. In jurisdictions without district or county courts, most of those matters are dealt with by the supreme courts. In Tasmania and the two mainland territories, however, there is only a Magistrates Court below the Supreme Court.
In the three external territories (that is, territories not directly forming part of the Commonwealth of Australia but administered by the Commonwealth) there is a supreme court and a magistrates' court or court of petty sessions. The supreme courts are staffed by judges of other courts, usually the Federal Court. Appeals from those courts lie to the full Federal Court. As these territories have very small populations, the courts only sit from time to time as needed. The three external territories are Norfolk Island, Christmas Island and Cocos (Keeling) Islands.
The remaining external territories (including Antarctica) do not have permanent courts. In the event of a case arising from these territories, the courts of the ACT have jurisdiction.[ citation needed ]
All the States and Territories, with the exception of Tasmania, have a civil and administrative tribunal. These hear cases relating to lesser State or Territory administrative disputes (involving some individual, business or government body). These commonly involve actions by persons bound to act pursuant to some form of devolved legislation; such as Environmental Regulations or Rental Tenancy Regulations.
A table of the court hierarchy and civil and administrative tribunals of the Australian States and Territories follows here:
New South Wales
Australian Capital Territory
The High Court of Australia is the highest court in the Australian court hierarchy and the final court of appeal. It has both original and appellate jurisdiction, the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the states and territories, and the ability to interpret the Constitution of Australia and thereby shape the development of federalism in Australia.
The Australia Act 1986 is the short title of each of a pair of separate but related pieces of legislation: one an Act of the Commonwealth Parliament of Australia, the other an Act of the Parliament of the United Kingdom. In Australia they are referred to, respectively, as the Australia Act 1986 (Cth) and the Australia Act 1986 (UK). These nearly identical Acts were passed by the two parliaments, because of uncertainty as to whether the Commonwealth Parliament alone had the ultimate authority to do so. They were enacted using legislative powers conferred by enabling Acts passed by the parliaments of every Australian state. The Acts came into effect simultaneously, on 3 March 1986.
R v Kirby; Ex parte Boilermakers' Society of Australia, known as the Boilermakers' Case, was a 1956 decision of the High Court of Australia which considered the powers of the Commonwealth Court of Conciliation and Arbitration to punish the Boilermakers' Society of Australia, a union which had disobeyed the orders of that court in relation to an industrial dispute between boilermakers and their employer body, the Metal Trades Employers' Association.
The legal system of Australia has multiple forms. It includes a written constitution, unwritten constitutional conventions, statutes, regulations, and the judicially determined common law system. Its legal institutions and traditions are substantially derived from that of the English legal system. Australia is a common-law jurisdiction, its court system having originated in the common law system of English law. The country's common law is enforced uniformly across the states.
The separation of powers in Australia is the division of the institutions of the Australian government into legislative, executive and judicial branches. This concept is where legislature makes the laws, the executive put the laws into operation, and the judiciary interprets the laws; all independently of each other. The term, and its occurrence in Australia, is due to the text and structure of the Australian Constitution, which derives its influences from democratic concepts embedded in the Westminster system, the doctrine of "responsible government" and the United States version of the separation of powers. However, due to the conventions of the Westminster system, a strict separation of powers is not always evident in the Australian political system, with little separation between the executive and the legislature, with the executive required to be drawn from, and maintain the confidence of, the legislature; a fusion.
Australian administrative law defines the extent of the powers and responsibilities held by administrative agencies of Australian governments. It is basically a common law system, with an increasing statutory overlay that has shifted its focus toward codified judicial review and to tribunals with extensive jurisdiction.
In Australian constitutional law, Chapter III Courts are courts of law which are a part of the Australian federal judiciary and thus are able to discharge Commonwealth judicial power. They are so named because the prescribed features of these courts are contained in Chapter III of the Australian Constitution.
The Administrative Appeals Tribunal (AAT) is an Australian tribunal that conducts independent merits review of administrative decisions made under Commonwealth laws of the Australian Government. The AAT review decisions made by Australian Government ministers, departments and agencies, and in limited circumstances, decisions made by state government and non-government bodies. They also review decisions made under Norfolk Island laws. It is not a court and not part of the Australian court hierarchy; however, its decisions are subject to review by the Federal Court of Australia and the Federal Circuit Court of Australia. The AAT was established by the Administrative Appeals Tribunal Act 1975 and started operation in 1976.
The Supreme Court of Norfolk Island is the superior court for the Australian territory of Norfolk Island. It has unlimited jurisdiction within the territory in civil matters and hears the most serious criminal matters. It also has jurisdiction over the Coral Sea Islands Territory. All matters are heard before a single judge, including appeals from the Court of Petty Sessions. In the Australian court hierarchy, it is one of eight state and territory Supreme Courts having unlimited jurisdiction in their respective parts of Australia. Appeal lies to the Federal Court of Australia, from which an appeal by special leave can be made to the High Court of Australia.
The Federal Court of Australia is an Australian superior court of record which has jurisdiction to deal with most civil disputes governed by federal law, along with some summary criminal matters. Cases are heard at first instance by single Judges. The Court includes an appeal division referred to as the Full Court comprising three Judges, the only avenue of appeal from which lies to the High Court of Australia. In the Australian court hierarchy, the Federal Court occupies a position equivalent to the Supreme Courts of each of the states and territories. In relation to the other Courts in the federal stream, it is equal to the Family Court of Australia, and superior to the Federal Circuit Court. It was established in 1976 by the Federal Court of Australia Act.
The supreme court is the highest court within the hierarchy of courts in many legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and highcourt of appeal. Broadly speaking, the decisions of a supreme court are not subject to further review by any other court. Supreme courts typically function primarily as appellate courts, hearing appeals from decisions of lower trial courts, or from intermediate-level appellate courts.
In Kruger v Commonwealth, also known as the Stolen Generation Case, the High Court of Australia rejected a challenge to the validity of legislation applying in the Northern Territory between 1918 and 1957 which authorised the removal of Aboriginal children from their families. The majority of the bench found that the Aboriginals Ordinance 1918 was beneficial in intent and had neither the purpose of genocide nor that of restricting the practice of religion. The High Court unanimously held there was no separate action for a breach of any constitutional right.
The Court of Disputed Returns in Australia is a special jurisdiction of the High Court of Australia. This jurisdiction was initially established by Part XVI of the Commonwealth Electoral Act 1902 and is now contained in Part XXII of the Commonwealth Electoral Act 1918. The High Court sitting as the Court of Disputed Returns hears challenges regarding the validity of federal elections. The jurisdiction is twofold: (1) on a petition to the Court by an individual with a relevant interest or by the Australian Electoral Commission, or (2) on a reference by either house of the Commonwealth Parliament.
Drake v Minister for Immigration & Ethnic Affairs, was a 1979 decision of the Federal Court of Australia dealing with drugs, deportation and judicial roles.
Kirmani v Captain Cook Cruises Pty Ltd , was a decision of the High Court of Australia on 17 April 1985 concerning section 74 of the Constitution of Australia. The Court denied an application by the Attorney-General of Queensland seeking a certificate that would permit the Privy Council to hear an appeal from the High Court's decision in Kirmani v Captain Cook Cruises Pty Ltd .
Colonial Sugar Refining Co Ltd v Attorney-General (Cth), is the only case in which the High Court issued a certificate under section 74 of the Constitution to permit an appeal to the Privy Council on a constitutional question. The Privy Council did not answer the question asked by the High Court, and the court never issued another certificate of appeal.
Deakin v Webb was one of a series of cases concerning whether the States could tax the income of a Commonwealth officer. The High Court of Australia overruled a decision of the Supreme Court of Victoria, holding that the States could not tax the income of a Commonwealth officer. This resulted in conflict with the Privy Council that was ultimately resolved by the passage of Commonwealth law in 1907 to permit the States to tax the income of a Commonwealth officer. The constitutional foundation of the decision was overturned by the subsequent decision of the High Court in the 1920 Engineers' Case.
Baxter v Commissioners of Taxation (NSW), and Flint v Webb, were the last of a series of cases concerning whether the States could tax the income of a Commonwealth officer which had resulted in conflict between the High Court and the Privy Council. The two cases were heard together, however two separate judgments were issued with Baxter v Commissioners of Taxation (NSW) addressing the substantive issues, and Flint v Webb addressing the applications for a certificate to appeal to the Privy Council. The judgement of Griffith CJ in Flint v Webb suggested two ways in which that conflict could be resolved. Both suggestions were adopted by the Commonwealth Parliament by legislation that permitted the States to tax the income of a Commonwealth officer, and gave the High Court exclusive appellate jurisdiction on such constitutional questions. The constitutional foundation of the decision was overturned by the subsequent decision of the High Court in the 1920 Engineers' case.
The Commonwealth Industrial Court, known as the Australian Industrial Court from 1973, was a specialist court to deal with industrial matters, principally the enforcement of awards and orders of the Commonwealth Conciliation and Arbitration Commission. Over time it took on more matters and its judges were allocated a wide range of judicial tasks until it was replaced in 1977 by the Federal Court of Australia which had a more general jurisdiction covering matters arising under Australian federal law.
Judicial independence is regarded as one of the foundation values of the Australian legal system, such that the High Court held in 2004 that a court capable of exercising federal judicial power must be, and must appear to be, an independent and impartial tribunal. Former Chief Justice Gerard Brennan described judicial independence as existing "to serve and protect not the governors but the governed", albeit one that "rests on the calibre and the character of the judges themselves". Despite general agreement as to its importance and common acceptance of some elements, there is no agreement as to each of the elements of judicial independence.
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Australian court hierarchy