Australian court hierarchy

Australian court hierarchy
Courtroom 1 in the High Court in Canberra.

There are two streams within the hierarchy of Australian courts, the federal stream and the state and territory stream.[1] While the federal courts and the court systems in each state and territory are separate, the High Court of Australia remains the ultimate court of appeal for the Australian system.


Superior and Inferior Courts

Superior Courts are those with, originally, unlimited jurisdiction to hear disputes and are the highest courts in their section of the Australia court hierarchy. They hear disputes in most areas of law and are only limited by legitimate legislation. These are the Supreme Courts, in each state and territory, and the High Court of Australia for the country generally. Each is created as part of the Constitution of Australia, or for the Supreme Courts, by the Constitution of that state or the Self Government Acts for the ACT and the Northern Territory. The rule of law is a doctrine stating equality before the law.

Inferior Courts are secondary to Superior Courts. Their existence is from legislation and their powers are the opposite of Superior Courts: they only have the power to decide on matters where parliament grants them the power to do so. Decisions in inferior courts normally (but not always) can be appealed to the Superior Court in that area (e.g., from a District Court to a Supreme Court; or from the Federal Magistrates' Court to the Family Court of Australia or Federal Court of Australia).

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

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. The Australia Act 1986 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 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 Magistrates' 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.

Family 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.

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 a "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 Magistrates Court of Australia. Appeals from the Federal Magistrates 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 Magistrates, as are decisions of these courts on appeal from a Federal Magistrate. In other circumstances, decisions of a single Federal or Family Court judge are not strictly binding; however, these will usually be followed.

State and territory courts

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 [1999] HCA 27 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 (in Antarctica) do not have permanent courts. In the event of a case arising from these territories, the courts of the ACT have jurisdiction.

Flag of New South Wales.svg
New South Wales
Flag of Victoria (Australia).svg
Flag of Queensland.svg
Flag of South Australia.svg
South Australia
Flag of Western Australia.svg
Western Australia
Flag of Tasmania.svg
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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