Owing to its colonial history, Australia has inherited numerous political and social institutions from the British. These include Westminster style parliaments, parliamentary sovereignty, responsible government and an independent judiciary. As in the United Kingdom, Australian courts also operate according to the principles and practices of the adversarial system. Nevertheless, the Australian court hierarchy differs from that of the United Kingdom owing to the Federal nature of the Australian state. This article offers a clear and concise introduction to the Australian court hierarchy, including its structure and notable actors to help assist your understanding of which court can hear your matter.

The Constitution and the Australian Judiciary

All introductions to the Australian court system must necessarily begin with Federation. On 1 January 1901, the Australian Constitution became law. It shares power between the executive, judiciary and the legislature. 

Chapter three of the Constitution concerns the judiciary. It mandates a judiciary free from political interference. The state remunerates judges and guarantees them tenure in the absence of established misbehaviour or incapacity. While the Constitution only creates the High Court of Australia, it gives parliament power to create other federal courts and to vest state and territory courts with federal power.

In Australia, there are two primary jurisdictions: federal and state or territory. At the time of federation, lawmakers were concerned to safeguard state and territory power vis-a-vis the Commonwealth. For that reason, the Australian constitution gives only certain, delineated powers to the federal government. These areas were considered of national importance (e.g.  defence and immigration). Plenary powers (all the rest) remained the province of the states and territories. 

Australian Court Hierarchy

The court hierarchy reflects this history. Within the hierarchy are two distinct yet interrelated spheres: federal and state. Although separate, they intertwine because an appeal is possible in some circumstances from a state or territory court to a federal court. Similarly, some state courts exercise federal jurisdiction.

Federal Courts

The federal court system has four courts:

  • High Court of Australia
  • Federal Court of Australia
  • Federal Circuit Court of Australia
  • Family Court of Australia

High Court of Australia

The High Court is Australia’s supreme judicial body. It has original jurisdiction in all matters concerning the constitution. It is also the court of final appeal from state and territory courts for criminal and civil cases. Of course, an appeal is not automatic. A party must apply for leave to argue a legal point before the Court.

Before 1986, Australians were able to appeal beyond the High Court to the Privy Council in some circumstances. This practice ended with the enactment of the Australia Acts 1986 (Cth). At that time, the community perceived that the national legal tradition was sufficiently mature, and distinct such that appeal to a British court was no longer appropriate.

Federal Circuit Court

Before 2013, the Federal Circuit Court was known as the Federal Magistrates Court. Today all judicial officers of the Court are addressed as a judge rather than a magistrate. 

It is a statutorily created court meaning it has no inherent powers other than those parliament gives to it. It is not a superior court of record. It’s decisions, therefore, do not become precedent in the same way and with the same weight as decisions of, for example, the High Court. The Court’s precedents are limited to other cases with similar factual scenarios.

Typically, the Court hears less serious matters within the federal jurisdiction including family law and administrative law. There is some overlap between this Court and the Federal Court in that both can hear cases in the same area of law. For example, both courts can review migration decisions. Nonetheless, the circumstances in which a litigant would approach either court are distinct.

Federal Court

Like the Federal Circuit Court, the Federal Court is also a creature of statute. It is not a superior court of record, and its precedents have a more limited application than other courts.  

It usually hears more serious matters within the federal jurisdiction in both its original and appellate jurisdiction. The Court hears matters in areas such as industrial relations, taxation, corporations law, bankruptcy and native title.

As mentioned above, the Federal and Federal Circuit Courts can hear matters in the same areas of law. Despite this, the circumstances of when you would file in either court are different. 

Always seek professional legal advice if you are considering action. Every court has its court rules available on their website to guide litigants together with easy-to-read guides.

Family Court

The federal government created the Family Court in 1975 as part of its wider reforms of family law. It is a specialist court and hears family law matters. It also has the power to hear appeals from the Federal Circuit Court, also in family matters. The court sits in every state and territory except Western Australia. In Western Australia, family matters are heard in a state court.

State and Territory Courts

Owing to Australia’s colonial history, the state and territory court hierarchy varies. However, it is useful to think of them as a scheme made up of a lower, intermediate and superior courts. For example, NSW has a Supreme Court, District Court and Local Court (acting in both a civil and criminal capacity). However, this schematic is not always correct. For example, the ACT has no intermediate court. Most states and territories also have a Coroner’s and Children’s Court.

Superior Courts

Superior Courts typically have original jurisdiction for serious criminal offences such as murder as well as for civil cases with an unlimited monetary value. Criminal trials can include a jury or have only a presiding judge. These courts also have an appellate jurisdiction from the various lower state courts. These courts are courts of record, and their decisions tend to form a weighted precedent.

Intermediate Courts

Intermediate courts have original jurisdiction in both a criminal and civil capacity. Their criminal docket usually involves less serious offences, and their civil matters have set monetary values. While jury trials are possible, they tend to be rare.

Lower Courts

The lower state courts hear the least serious criminal matters and civil matters of low monetary value. They are also the forum for committal hearings for more serious criminal offences (known as indictable offences).

Children’s Court

This Court hears matters involving children (defendants aged under 18 at the time of offending). Children are dealt with separately from adults because issues of culpability and any penalties administered must take account of their age.

Coroner’s Court

This court deals with unexplained deaths and fires. It can order an inquest so as to establish the cause of death or fire in any situation. It also has the power to commit a suspect to trial for manslaughter, murder or arson.

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Although the Australian court hierarchy has a heavy British influence, it has evolved into a distinctively Australian system. If you have any questions about which court can hear your matter, get in touch with our disputes team on 1300 544 755. 

Carole Hemingway

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