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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 states and territories are federated administrative divisions in Australia, ruled by regional governments that constitute the second level of governance between the federal government and local governments. States are self-governing p ...
. The
High Court of Australia The High Court of Australia is Australia's apex court. It exercises Original jurisdiction, original and appellate jurisdiction on matters specified within Constitution of Australia, Australia's Constitution. The High Court was established fol ...
sits at the apex of the
Australian court hierarchy 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 mat ...
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 Constitution of Australia (or Australian Constitution) is a constitutional document that is supreme law in Australia. It establishes Australia as a federation under a constitutional monarchy and outlines the structure and powers of the ...
, 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 Court of Australia is an Australian superior court of record which has jurisdiction to deal with most civil disputes governed by federal law (with the exception of family law matters), along with some summary (less serious) and indic ...
and the Federal Circuit and 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 Federal Circuit and Family Court and Federal Court are superior courts of record, which means that they have certain inherent procedural and
contempt Contempt is a pattern of attitudes and behaviour, often towards an individual or a group, but sometimes towards an ideology, which has the characteristics of disgust and anger. The word originated in 1393 in Old French contempt, contemps, ...
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. Justice James Allsop.
An Introduction to the Jurisdiction of the Federal Court of Australia
. '' 007Federal Judicial Scholarship 15''.
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 In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
and
equity Equity may refer to: Finance, accounting and ownership * Equity (finance), ownership of assets that have liabilities attached to them ** Stock, equity based on original contributions of cash or other value to a business ** Home equity, the dif ...
are administered by the same courts, in a manner similar to that of the
Judicature Acts In the history of the courts of England and Wales, the Judicature Acts were a series of Acts of Parliament, beginning in the 1870s, which aimed to fuse the hitherto split system of courts of England and Wales. The first two Acts were the Supre ...
in the United Kingdom. Legal and equitable remedies may be pursued in the one action in the one court.


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 misbehaviour.. Judges in Australia are appointed by the Executive government of the relevant jurisdiction, and most judges have previously practised as a
barrister A barrister is a type of lawyer in common law jurisdictions. Barristers mostly specialise in courtroom advocacy and litigation. Their tasks include taking cases in superior courts and tribunals, drafting legal pleadings, researching law and ...
. 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..


Australian court hierarchy

The hierarchy consists of a variety of courts and tribunals at both the
federal Federal or foederal (archaic) may refer to: Politics General *Federal monarchy, a federation of monarchies *Federation, or ''Federal state'' (federal system), a type of government characterized by both a central (federal) government and states or ...
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 In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
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 The Judicial Committee of the Privy Council (JCPC) is the highest court of appeal for the Crown Dependencies, the British Overseas Territories, some Commonwealth countries and a few institutions in the United Kingdom. Established on 14 Augus ...
have been abolished.Although Gibbs CJ, Mason, Wilson and Dawson JJ referred to the 'theoretical possibility' of an appeal to the Privy Council under the in , the following year Court described the grant of a s 74 certificate as 'impossible' in .


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 The judiciary (also known as the judicial system, judicature, judicial branch, judiciative branch, and court or judiciary system) is the system of courts that adjudicates legal disputes/disagreements and interprets, defends, and applies the law ...
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 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 recor ...
'). In many respects Australian superior courts are similar to the
Senior Courts of England and Wales The courts of England and Wales, supported administratively by His Majesty's Courts and Tribunals Service, are the civil and criminal courts responsible for the administration of justice in England and Wales. The United Kingdom does not have a ...
. 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 Judicial review is a process under which executive, legislative and administrative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws, acts and governmental actions that are incompat ...
or appeal to a single judge; * are composed of judges entitled to the style and title
The Honourable ''The Honourable'' (British English) or ''The Honorable'' (American English; see spelling differences) (abbreviation: ''Hon.'', ''Hon'ble'', or variations) is an honorific style that is used as a prefix before the names or titles of certain ...
Justice; and * regularly publish their decisions in written form. 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 and Family Court. Inferior courts are typically characterised by: * jurisdiction conferred by statute and limited as to subject matter or the quantum of relief; and * amenability to
judicial review Judicial review is a process under which executive, legislative and administrative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws, acts and governmental actions that are incompat ...
by a single judge of a superior court where a right of appeal is not available.


Federal courts

These courts among them have
jurisdiction Jurisdiction (from Latin 'law' + 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels. Jur ...
over
Commonwealth A commonwealth is a traditional English term for a political community founded for the common good. Historically, it has been synonymous with "republic". The noun "commonwealth", meaning "public welfare, general good or advantage", dates from the ...
law, that is, law made by the
Federal parliament The Parliament of Australia (officially the Federal Parliament, also called the Commonwealth Parliament) is the legislative branch of the government of Australia. It consists of three elements: the monarch (represented by the governor-gen ...
of Australia.


High Court of Australia

The High Court is the highest court in the Australian judicial hierarchy. It was created by section 71 of the
Constitution A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of Legal entity, entity and commonly determine how that entity is to be governed. When ...
.. It has
appellate In law, an appeal is the process in which cases are reviewed by a higher authority, where parties request a formal change to an official decision. Appeals function both as a process for error correction as well as a process of clarifying and ...
jurisdiction over all other courts. It also has
original jurisdiction In common law legal systems original jurisdiction of a court is the power to hear a case for the first time, as opposed to appellate jurisdiction, when a higher court has the power to review a lower court's decision. India In India, the S ...
in certain matters, including powers of judicial review. The High Court of Australia is paramount to all federal courts. Further, 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 A privy council is a body that advises the head of state of a state, typically, but not always, in the context of a monarchic government. The word "privy" means "private" or "secret"; thus, a privy council was originally a committee of the mon ...
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 The Australia Act 1986 is the short title of each of a pair of separate but related pieces of legislation: one an Act of Parliament, Act of the Commonwealth (i.e. federal) Parliament of Australia, the other an Act of Parliament (UK), Act of ...
'' 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 ''Inter se'' (also styled as ''inter sese'') is a Legal Latin phrase that means " ong or between themselves"., ''Inter se'' 819 (6th Ed.). The phrase is "used to distinguish rights or duties between two or more parties from their rights or duties ...
'' 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.


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 and Family 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 Circuit and Family Court of Australia

The Federal Circuit and Family Court of Australia is an inferior and intermediate court formed from the merger of the
Family Court Family courts were originally created to be a Court of Equity convened to decide matters and make orders in relation to family law, including custody of children, and could disregard certain legal requirements as long as the petitioner/plaintif ...
and the Federal Circuit Court with jurisdiction over matters broadly relating to
family law Family law (also called matrimonial law or the law of domestic relations) is an area of the law that deals with family matters and domestic relations. Overview Subjects that commonly fall under a nation's body of family law include: * Marriage, ...
and
child support Child support (or child maintenance) is an ongoing, periodic payment made by a parent for the financial benefit of a child (or parent, caregiver, guardian) following the end of a marriage or other similar relationship. Child maintenance is paid d ...
,
administrative law Administrative law is the division of law that governs the activities of government agency, executive branch agencies of Forms of government, government. Administrative law concerns executive branch rule making (executive branch rules are gener ...
,
admiralty law Admiralty law or maritime law is a body of law that governs nautical issues and private maritime disputes. Admiralty law consists of both domestic law on maritime activities, and private international law governing the relationships between priva ...
,
bankruptcy Bankruptcy is a legal process through which people or other entities who cannot repay debts to creditors may seek relief from some or all of their debts. In most jurisdictions, bankruptcy is imposed by a court order, often initiated by the debtor ...
,
copyright A copyright is a type of intellectual property that gives its owner the exclusive right to copy, distribute, adapt, display, and perform a creative work, usually for a limited time. The creative work may be in a literary, artistic, education ...
,
human rights Human rights are Morality, moral principles or Social norm, normsJames Nickel, with assistance from Thomas Pogge, M.B.E. Smith, and Leif Wenar, 13 December 2013, Stanford Encyclopedia of PhilosophyHuman Rights Retrieved 14 August 2014 for ce ...
,
industrial law Labour laws (also known as labor laws or employment laws) are those that mediate the relationship between workers, employing entities, trade unions, and the government. Collective labour law relates to the tripartite relationship between employee, ...
,
migration Migration, migratory, or migrate may refer to: Human migration * Human migration, physical movement by humans from one region to another ** International migration, when peoples cross state boundaries and stay in the host state for some minimum le ...
,
privacy Privacy (, ) is the ability of an individual or group to seclude themselves or information about themselves, and thereby express themselves selectively. The domain of privacy partially overlaps with security, which can include the concepts of a ...
and trade practices. The Federal Circuit and Family Court is spilt into two divisions: * Division 1 is the former Family Court of Australia and is a superior court of record for dealing with family law matters. It contains 35 judges. * Division 2 is the former Federal Circuit Court of Australia, and deals with the bulk of family law matters prior to the establishment of the Court, as well as general federal law matters such as migration, bankruptcy and admiralty. It contains 76 judges, 55 of which are specialists in family law and the remainder experts in various areas of general federal law and migration. The Court operate under the leadership of one Chief Justice, supported by one Deputy
Chief Judge A chief judge (also known as presiding judge, president judge or principal judge) is the highest-ranking or most senior member of a lower court or circuit court with more than one judge. According to the Federal judiciary of the United States, th ...
who hold a dual commission to both Divisions of the Court. A second Deputy Chief Judge assists in the management of the general federal law and Fair Work jurisdictions of Division 2.


State and territory courts and tribunals

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 A full court (less formally, full bench) is a court of law sitting with a greater than normal number of judges. For a court which is usually presided over by one judge, a full court has three or more judges; for a court which, like many appellate ...
, 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 ''Re Wakim; Ex parte McNally''. was a significant case decided in the High Court of Australia on 17 June 1999. The case concerned the constitutional validity of cross-vesting of jurisdiction, in particular, the vesting of state companies law jur ...
'',. 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 Victoria most commonly refers to: * Victoria (Australia), a state of the Commonwealth of Australia * Victoria, British Columbia, provincial capital of British Columbia, Canada * Victoria (mythology), Roman goddess of Victory * Victoria, Seychelle ...
) 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 may refer to: * Abstract (summary), shortening a passage or a write-up without changing its meaning but by using different words and sentences * Epitome, a summary or miniature form * Abridgement, the act of reducing a written work into a sho ...
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 three external territories (
Norfolk Island Norfolk Island (, ; Norfuk: ''Norf'k Ailen'') is an external territory of Australia located in the Pacific Ocean between New Zealand and New Caledonia, directly east of Australia's Evans Head and about from Lord Howe Island. Together with ...
,
Christmas Island Christmas Island, officially the Territory of Christmas Island, is an Australian external territory comprising the island of the same name. It is located in the Indian Ocean, around south of Java and Sumatra and around north-west of the ...
, and
Cocos (Keeling) Islands ) , anthem = "''Advance Australia Fair''" , song_type = , song = , image_map = Australia on the globe (Cocos (Keeling) Islands special) (Southeast Asia centered).svg , map_alt = Location of the Cocos (Keeling) Islands , map_caption = ...
) 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 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:


See also

* Drug courts in Australia *
Law enforcement in Australia Law enforcement in Australia is one of the three major components of the country's justice system, along with courts and corrections. Law enforcement officers are employed by all three levels of government – federal, state/territory, and l ...
*
List of Commonwealth courts and tribunals The following is a list of courts and tribunals of the Commonwealth of Australia: List of boards, commissions, courts, and tribunals Sitting boards, commissions, courts, and tribunals Sitting boards * Australian Accounting Standards Board *A ...
* Victoria Bar Association


References


Further reading

* {{Judiciaries of Oceania Government of Australia