Judiciary of Australia

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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.

States and territories of Australia first-level subdivision of Australia

The states and territories are the first-level administrative divisions of the Commonwealth of Australia. They are the second level of government in Australia, located between the federal and local government tiers.

High Court of Australia supreme court

The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. 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 the ability to interpret the Constitution of Australia and thereby shape the development of federalism in Australia.

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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, federal judicial power 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.

Constitution of Australia the supreme law of Australia

The Constitution of Australia is the supreme law under which the government of the Commonwealth of Australia operates, including its relationship to the States of Australia. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia, which is referred to as the "Constitution" in the remainder of this article. The Constitution was approved in a series of referendums held over 1898–1900 by the people of the Australian colonies, and the approved draft was enacted as a section of the Commonwealth of Australia Constitution Act 1900 (Imp), an Act of the Parliament of the United Kingdom.

The Supreme Courts of the states and territories are superior courts of record with general and unlimited jurisdiction within their own state or territory. They can try any justiciable dispute, whether it be for money or not, and whether it be for $1 or $1 billion.

A court of record is a trial court or appellate court in which a record of the proceedings is captured and preserved, for the possibility of appeal. A court clerk or a court reporter takes down a record of oral proceedings that written record is preserved at least long enough for all appeals to be exhausted, or for some further period of time provided by law.

Like the Supreme Courts, 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 Supreme Court counterparts, their subject matter jurisdiction must be granted 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 matter that the court does have jurisdiction over. [1]

Family Court of Australia Australian federal court dealing with with family law matters

The Family Court of Australia is a superior Australian federal court of record which deals with family law matters, such as divorce applications, parenting disputes, and the division of wealth when a couple separate. Together with the Federal Circuit Court of Australia, it covers family law matters in all states and territories of Australia except for Western Australia. Its core function is to determine cases with the most complex law, facts and parties, to cover specialised areas in family law, and to provide national coverage as the national appellate court for family law matters.

Federal Court of Australia Australian superior court

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.

Contempt of court, often referred to simply as "contempt", is the offense of being disobedient to or disrespectful toward a court of law and its officers in the form of behavior that opposes or defies the authority, justice and dignity of the court. A very similar attitude towards a legislative body is termed contempt of Parliament or contempt of Congress.

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 Supreme Court of Judicature Act 1873 (United Kingdom). Legal and equitable remedies may be pursued in the one action in the one court.

Common law Law developed by judges

In law, common law is that body of law derived from judicial decisions of courts and similar tribunals. The defining characteristic of “common law” is that it arises as precedent. In cases where the parties disagree on what the law is, a common law court looks to past precedential decisions of relevant courts, and synthesizes the principles of those past cases as applicable to the current facts. If a similar dispute has been resolved in the past, the court is usually bound to follow the reasoning used in the prior decision. If, however, the court finds that the current dispute is fundamentally distinct from all previous cases, and legislative statutes are either silent or ambiguous on the question, judges have the authority and duty to resolve the issue. The court states an opinion that gives reasons for the decision, and those reasons agglomerate with past decisions as precedent to bind future judges and litigants. Common law, as the body of law made by judges, stands in contrast to and on equal footing with statutes which are adopted through the legislative process, and regulations which are promulgated by the executive branch. Stare decisis, the principle that cases should be decided according to consistent principled rules so that similar facts will yield similar results, lies at the heart of all common law systems.

Equity (law) set of legal principles that supplement the strict rules of law

In jurisdictions following the English common law system, equity is the body of law which was developed in the English Court of Chancery and which is now administered concurrently with the common law.

Supreme Court of Judicature Act 1873

The Supreme Court of Judicature Act 1873 was an act of the Parliament of the United Kingdom in 1873. It reorganised the English court system to establish the High Court and the Court of Appeal, and also originally provided for the abolition of the judicial functions of the House of Lords with respect to England. It would have retained those functions in relation to Scotland and Ireland for the time being. However, the Gladstone Liberal government fell in 1874 before the act entered into force, and the succeeding Disraeli Conservative government suspended the entry into force of the act by means of further acts passed in 1874 and 1875.

Judges

Judges are appointed by the executive government, without intervention by the existing judiciary. [2] 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 misbehavior. [3] 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. [3] 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, [4] though they can remain as "acting judges" until age 76. [5]

Australian court hierarchy

General federal lawFamily lawEmployment lawGeneral 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
State/territory
Various
All matters
Court of Appeal (ACT - Qld - Vic - WA); Full Court of the Federal Court of Australia (NI)

Civil matters
Court of Appeal (NSW - NT); Full Court (SA - Tas)
Criminal matters
Court of Criminal Appeal (NSW - NT - SA - Tas)

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
Other states
Various
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
Other states
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 courtsMagistrates' Court (ACT - Qld - SA - Tas - Vic - WA);

Local Court (NSW); Court of Petty Sessions (NI)
Various courts depending on jurisdiction (NT)

Quasi-judicial tribunals for e.g. small claims and/or administrative review Administrative review Administrative Appeals Tribunal
Other tribunals
Child support
Social Services and Child Support Division of the Administrative Appeals Tribunal
Federal/Victoria/Territories
Fair Work Commission
Other states
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)

Minor claims division in Magistrates Court (SA - Tas - WA)
Other tribunals (ACT - NSW - NT - Qld - SA - Tas - Vic - WA)

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. [6] A single body [7] 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. [8] [9] [10]

Superior and inferior courts

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.' [11] Despite this, Australian courts are frequently characterised as either 'superior' or 'inferior.' The Federal Court [12] 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:

Federal courts

These courts among them have jurisdiction over Commonwealth law, that is, law made by the Federal parliament of Australia.

High Court of Australia

Courtroom 1 in the High Court in Canberra. Court 1 at the High Court of Australia.jpg
Courtroom 1 in the High Court in Canberra.

The High Court is the highest court in Australia. It was created by section 71 of the Constitution. [15] It has appellate jurisdiction over all other courts. It also has some original jurisdiction, and has the power of constitutional review. The High Court of Australia is the superior court to all federal courts, and is also the final route of appeal from all state superior courts. [16]

Appeals to the High Court are by special leave only, which is rarely granted. Therefore, for most cases, the appellate divisions of the Supreme Courts of each state and territory and the Federal Court are the ultimate appellate courts. The Full Court of the High Court is the ultimate appeal court for Australia.

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, [8] and the Privy Council (Appeals from the High Court) Act 1975 closed almost all routes of appeal from the High Court. [9] The Australia Act 1986 eliminated appeals from state Supreme Courts to the Privy Council. [17] 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. [10]

Federal Court of Australia

In Melbourne, the Federal Courts are housed in the Commonwealth Law Courts Building on the corner of La Trobe Street and William Street. Melbourne Federal Court.JPG
In Melbourne, the Federal Courts are housed in the Commonwealth Law Courts Building on the corner of La Trobe Street and William Street.

The Federal Court primarily hears matters relating to corporations, trade practices, industrial relations, bankruptcy, customs, immigration and other areas of federal law. [1] 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.) [18]

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. [19]

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. [20]

Family Court of Australia

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.

Federal Circuit Court of Australia

The Federal Circuit Court of Australia (formerly known as the Federal Magistrates Court of Australia) [21] 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.

State and territory courts and tribunals

Each state and territory has a court hierarchy of its own, with the jurisdictions of each court varying from state to state and territory to territory. 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 as the Full Court or Court of Appeal of the Supreme Court (in civil matters), or the Court of Criminal Appeal (in criminal matters.)

Decisions of the High Court are binding on all Australian courts, including state and territory Supreme Courts.

The state and territory courts can sometimes exercise federal jurisdiction (i.e. rule on matters subject to federal legislation.) 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, [22] 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.

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:

Flag of New South Wales.svg
New South Wales
Flag of Victoria (Australia).svg
Victoria
Flag of Queensland.svg
Queensland
Flag of South Australia.svg
South Australia
Flag of Western Australia.svg
Western Australia
Flag of Tasmania.svg
Tasmania
Flag of the Northern Territory.svg
Northern Territory
Flag of the Australian Capital Territory.svg
Australian Capital Territory
Flag of Norfolk Island.svg
Norfolk Island

See also

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References

  1. 1 2 Justice James Allsop. "An Introduction to the Jurisdiction of the Federal Court of Australia". [2007] Federal Judicial Scholarship 15.
  2. Attorney-General (NSW) v Quin [1990] HCA 21 , (1990) 170 CLR 1 at 33.
  3. 1 2 Constitution (Cth) s 72.
  4. Judicial Officers Act 1986 (NSW) s 44.
  5. Supreme Court Act 1970 (NSW) s 37.
  6. Australian Bureau of Statistics, 1301.0 – Year Book Australia, 2012, Courts.
  7. Kirk v Industrial Court of NSW [2010] HCA 1 , (2010) 239 CLR 531 at [99].
  8. 1 2 Privy Council (Limitation of Appeals) Act 1968 (Cth).
  9. 1 2 Privy Council (Appeals from the High Court) Act 1975 (Cth).
  10. 1 2 Although Gibbs CJ, Mason, Wilson and Dawson JJ referred to the 'theoretical possibility' of an appeal to the Privy Council under the Constitution (Cth) s 74 in Attorney-General v Finch [1984] HCA 40 , (1984) 155 CLR 107, the following year Court described the grant of a s 74 certificate as 'impossible' in Kirmani v Captain Cook Cruises Pty Ltd (No 2) [1985] HCA 27 , (1985) 159 CLR 461.
  11. Re McJannet; Ex Parte Minister for Employment Training & Industrial Relations (Qld) [1995] HCA 31 , (1995) 184 CLR 620 at p. 653 (Toohey, McHugh and Gummow JJ).
  12. Federal Court of Australia Act 1976 (Cth) s 5.
  13. See for example Supreme Court Act 1970 (NSW) s 23; Constitution of Queensland 2001 (Qld) s 58; Supreme Court Act 1935 (SA) s 17; Constitution Act 1975 (Vic) s 85; Supreme Court Act 1935 (WA) s 16.
  14. Although designation as a 'superior court of record' does not necessarily exclude the possibility of judicial review: Kirk v Industrial Court of NSW [2010] HCA 1 , (2010) 239 CLR 531 at [107].
  15. Constitution (Cth) s 71.
  16. Constitution (Cth) s 73.
  17. Australia Act 1986 (Imp) and Australia Act 1986 (Cth).
  18. Federal Court of Australia Act 1976 (Cth) s 24.
  19. Federal Court of Australia Act 1976 (Cth).
  20. Federal Court of Australia Act 1976 (Cth) s 14.
  21. Federal Circuit Court of Australia Act (Cth) s 8.
  22. Re Wakim; Ex parte McNally [1999] HCA 27 , (1999) 27 CLR 511.

Further reading