The Federal Judicature
Chapter III of the Constitution (sections 71–80), called ‘The
Judicature’, provides for the judicial branch of the Commonwealth. It
establishes the High Court of Australia and empowers the Commonwealth
Parliament to create other federal courts and to vest federal judicial power in
State and Territory courts. ‘Federal judicial power’ is the power to decide a
dispute of the kind set out in sections 75 and 76 of the Constitution.
There are four principal federal courts:
- the
High Court
- the
Federal Court of Australia
- the
Family Court of Australia, and
- the
Federal Magistrates Court of Australia.
Federal judges and magistrates are appointed by the government of the
day.
The Australian Constitution does not set out specific qualifications
required by federal judges and magistrates. However, laws made by the
Commonwealth Parliament provide that, to be appointed as a federal judge, a
person must have been a legal practitioner for at least five years or be a
judge of another court. To be appointed as a federal magistrate, a person must
have been a legal practitioner for at least five years. To be appointed as a
judge of the Family Court of Australia, a person must also be suitable to deal
with family law matters by reason of training, experience and personality.
All federal judges and magistrates are appointed to the age of 70. The
Australian Constitution provides that a federal judge or magistrate can only be
removed from office on the ground of proved misbehaviour or incapacity, on an
address from both the House of Representatives and the Senate in the same
session. The Australian Constitution provides that the remuneration of a
federal judge or magistrate cannot be reduced while the person holds office.
These guarantees of tenure and remuneration assist in securing judicial
independence.
The independence of the courts, and their separation from the
legislative and executive arms of government, is regarded as of great
importance in Australia and it is taken for granted that judges, in
interpreting and applying the law, act independently of the Government.
The Court system
Commonwealth courts
The High Court of Australia
The High Court of Australia is the final court of appeal in Australia.
The Court has a Chief Justice and six other judges.
One of the High Court’s principal functions is to decide disputes about
the meaning of the Constitution. For example, if the validity of an Act passed
by the Commonwealth Parliament is challenged, the High Court is responsible for
ultimately determining whether the Act is within the legislative powers of the
Commonwealth. The High Court is also the final court of appeal within Australia
in all other types of cases, including those dealing with purely State matters
such as the interpretation of State criminal laws.
The Australian Constitution vests two types of jurisdiction in the High
Court: original and appellate.
Original jurisdiction is conferred by section 75 of the Constitution in
respect of the following matters:
- matters
arising under any treaty
- matters
affecting consuls or other representatives of other countries
- matters
in which the Commonwealth of Australia, or a person suing or being sued on
behalf of the Commonwealth of Australia, is a party
- matters
between States, or between residents of different States, or between a
State and a resident of another State, and
- matters
in which a writ of mandamus or prohibition – or an injunction is sought
against an officer of the Commonwealth, including a judge.
Under section 76 of the Constitution, the Parliament may also make laws
conferring original jurisdiction in other matters, including matters arising
under the Constitution and matters arising under laws made by the Parliament.
The High Court is also the Court of Disputed Returns in relation to disputes
about the validity of federal elections.
Section 73 of the Constitution confers appellate jurisdiction on the
High Court to hear appeals from decisions of:
- the
High Court in its original jurisdiction
- Federal
courts
- other
courts exercising federal jurisdiction, and
- State
Supreme Courts.
In considering whether to grant an application for leave to appeal from
a judgment, the High Court may have regard to any matters that it considers
relevant, but it is required to have regard to whether the application before
it:
- involves
a question of law that is of public importance, or upon which there are
differences of opinion within, or among, different courts, or
- should
be considered by the High Court in the interests of the administration of
justice.
The Federal Court of Australia
The Federal Court of Australia came into existence on 1 February 1977.
It sits in each State and, as necessary, the Australian Capital Territory and
the Northern Territory.
The Court has such original jurisdiction as is invested in it by laws
made by the Commonwealth Parliament including, for example, in relation to
matters in which a writ of mandamus or prohibition or an injunction is sought
against an officer of the Commonwealth Government, and matters arising under
Commonwealth laws, including bankruptcy, corporations, industrial relations,
taxation and trade practices laws.
The Federal Court of Australia hears appeals from the decisions of
single judges of the Court and decisions (except family law decisions) of the
Federal Magistrates Court. It also hears appeals from some decisions of State
and Territory Supreme Courts.
The Family Court of Australia
The Family Court of Australia is a specialist court dealing with family
and child support disputes.
The Family Court exercises original and appellate jurisdiction
throughout Australia except in Western Australia.
In Western Australia, the Family Court of Western Australia decides
family and child support disputes. This Court is a State Court, funded almost
entirely by the Commonwealth Government. The judges of the Family Court of
Western Australia also hold commissions as judges of the Family Court of
Australia.
The Federal Magistrates Court
The Federal Magistrates Court commenced operation in July 2000. It was
established to deal with less complex disputes under Commonwealth laws. Its
jurisdiction includes family law and child support, administrative law,
bankruptcy law, discrimination, workplace relations and consumer protection
law. It shares its jurisdiction with the Family Court of Australia and the
Federal Court of Australia.
Industrial Relations Court of Australia
The Industrial Relations Court of Australia was established in March
1994 to deal with a range of industrial relations matters. Its jurisdiction was
transferred to the Federal Court of Australia in May 1997. The judges of the
Industrial Relations Court are also judges of the Federal Court and work
full-time as judges of the latter Court.
State and Territory Courts
Australian State and Territory courts decide cases brought under State
or Territory laws and, where jurisdiction is conferred on these courts by the
Commonwealth Parliament, they also decide cases arising under federal laws.
Most criminal matters, whether arising under Commonwealth, State or Territory
law, are dealt with by State or Territory courts.
The Supreme Courts of the States, the Australian Capital Territory, the
Northern Territory and Norfolk Island are the highest State and Territory
courts and deal with the most important civil litigation and the most serious
criminal cases. They also hear appeals from decisions made by the lower State
courts or single Judges of the Supreme Court.
State intermediate courts decide the great majority of serious criminal
offences where a jury is required to decide the facts of a case. They also deal
with civil litigation up to certain monetary limits.
State and Territory courts of summary jurisdiction deal with most of the
ordinary (summary) offences, such as traffic infringements and minor assaults.
These courts also deal with civil litigation for debt recovery, smaller claims
by one citizen against another or against companies, and some minor claims
under federal laws.
Magistrates in these courts also conduct committal proceedings in
respect of the more serious offences to determine whether there is a prima
facie case to be determined by a Judge and jury, either in an intermediate
court or a Supreme Court. Juries are not used in courts of summary
jurisdiction.
