The Courts System in Australia

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:

1. the High Court
2. the Federal Court of Australia
3. the Family Court of Australia, and
4. 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.