Judiciary of Australia

1. Judiciary of Australia

2. Introduction

• 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, 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.
• 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.
Introduction

3. 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.

4. Judges

• 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 misbehavior.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
Judges

5. Seven figures in black (High Court judges) with papers in front of them sit at this long desk

6. 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.' Despite this, Australian courts
are frequently characterized 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:
have unlimited jurisdiction in law and equity, or at least are not subject to
jurisdictional limits as to the remedies they may grant;
determine appeals, at least as part of their jurisdiction;
are composed of judges whose individual decisions are not subject to judicial
review or appeal to a single judge;
are composed of judges entitled to the style and title The Honourable Justice; and
regularly publish their decisions in written form.
Superior and inferior courts

7. Superior and inferior courts

• 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
characterized by:
jurisdiction conferred by statute and limited as to subject matter or the quantum
of relief; and
amenability to judicial review by a single judge of a superior court where a
right of appeal is not available.
Superior and inferior courts

8. Federal courts. High Court of Australia

• The High Court is the highest court in Australia. It was created by section 71 of
the Constitution. 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.
• 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, and the
Privy Council (Appeals from the High Court) Act 1975 closed almost all routes
of appeal from the High Court.
Federal courts. High Court of Australia

9.

10. Federal courts. Federal Court of Australia

• 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
Federal courts. Federal Court of Australia

11.

12. Federal courts. Family Court of Australia

• 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 courts. Family Court of Australia

13.

14. Federal courts. Federal Circuit Court of Australia

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.
Federal courts. Federal Circuit Court of Australia

15. 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.
• 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.
State and territory courts and
tribunals

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