In this blog post, Nidhi Shetty, pursuing M.A. in business law from NUJS, Kolkata, talks about the hierarchy of courts & justice system in Australia.

A series of constitutional conventions held in the 1890’s gave birth to the Australian Constitution. As defined in the Oxford dictionary, a constitution is a body of fundamental principles or established precedents according to which a state or other organization is acknowledged to be governed. The Australian constitution became effective on 1^st January, 1901. 

Doctrine of Separation of Powers

Chapter I, II and III of the Australian constitution deals with the Separation of Powers. The basic structure of the Australian constitution is divided between the executive, the legislative and the judiciary.

Australia is a ‘constitutional monarchy’ with a parliamentary system of government.

The doctrine of separation of powers is an essential feature of the constitution and forms the backbone of the same. Further, both political and legal system works and operates on two levels i.e. state and federal.

A constitution confers the separation of powers as a basic structure as such separation is vital for smooth functioning of country. It is important that the powers are wisely and carefully distributed between the Parliament, the Executive and the Judiciary.

The powers of each branch is divided as follows:

1. The Parliament shall make and amend the laws. The Parliament consists of the Queen represented by the Governor-General, the Senate and the House of Representatives.
2. The Executive is responsible to execute the law into force. The Executive consists of the Queen represented by the Governor General, the Prime Minister and ministers.
3. The Judiciary looks upon application of such law. The main power of the judiciary is to interpret the law made by either the parliament or by judges and to apply it in the resolution of particular disputes. It makes judgments. Judiciary consists of High Court as the apex court and is supported by other federal courts.

Such Distribution helps in avoiding a situation wherein one branch has all the powers and the other branches has none. Every branch has a delegated work assigned and it is expected from each group to limit exploitation of their assigned power according to its delegation. However, like in many other countries, Australia is flexible in such distribution of powers.

Sources of Law in Australia

Australia was a colony to the Great Britain. Hence, Australia received its legal system, customs and traditions, laws and statute from the English legal system.  Australian law is widely influenced by international laws. The Great Britain during its reign granted each colony of Australia a limited self-governance.  This grant led to various colonies throughout the constituency of Australia to have their own court and set of laws.

Each colony had a right to amend, omit or add and law to the set of law received by the English legal system. With the passing time Australian law emerged and evolved in its own way, giving birth to an independent body of Australian law which was built by the judiciary and the legislature of such Australian colonies.

International influence in the Australian legal system and law is highly reflected in multinational conventions and treaties, memoranda of understanding, and reciprocal and bilateral arrangements to which Australia is or will be a signatory.[1] Post-independence from Great Britain, Australia evolved as federal state.

A federal system is a political system in which government power is shared between a central or federal government and regional government.[2] It was during this phase of Federation Movement, Australia gained several national conventions and the Commonwealth of Australia Constitution Act 1900 was passed by the British government. Australian law is regulated by the Commonwealth Constitution.

Australian law is made of either customary laws or statute law.

Customary laws

A custom can be defined as “a traditional and widely accepted way of behaving or doing something that is specific to a particular society, place, or time”[3]. We, as a society have been following different customs from very long time. Such customs vary according to the strata, ethnicity, and religion of people or geographical division of land in which they inhabit. Such customs leads to unwritten rules that a group of people or a community follow making it their way of living. Such unwritten rules comprises of ‘Customary Laws’.

Though customary laws are well established as a source of law and has also been incorporated in the English common law, Australia has not given much of importance to the customary law in comparison to the statute law.

Statute Law

Australian constitution and laws have widely evolved with the time post the inheritance of the English laws. Since then laws are amended, developed and interpreted by the judges of the Australian courts and also by the amendments and enforcement made by Australian Parliament.

The Judiciary of Australia can be divided in the following main aspects:

• Acts passed by the parliament are termed as ‘statute law’.
• The development of rules, laws, ordinance etc. by the Executive body and made under the parliament.
• The interpreting the law by the court and passing a judgment on the basis of how similar cases (the ratio decidendi[4] and obiter dictum[5] of the case) have been decided in the past and applying those decisions to the circumstances of the case they are currently deciding, known as ‘common law’.

The Doctrine of Precedent

The Judges are bound by a vital custom to pass judgments and decide cases in accordance with the earlier judgments based on similar facts. This decision–making approach is termed as the doctrine of precedent, and the principles and rules generated by the earlier decisions form, collectively, the principles and rules of the common law.

The rule of precedent is a fundamentally important legal institution in common law countries; even the single judgment of a higher court speaks with a voice of authority and must be followed by lower courts.[6] This doctrine is also known as stare decisis[7].

The principle that like cases should be treated alike can be traced back to the thirteenth century when Bracton wrote:
“If like matters arise let them be decided by like, since the occasion is a good one for proceeding a similibus ad simili”. [8]

In the event where there are no similarities or the facts in hand are completely new and are without any scope of precedents, the court shall develop new and independent principles. However, such principles shall be in accordance with the similar cases.

Some of the rules that make up the doctrine of precedent in Australia are[9]:

• In the hierarchy of the court system, a decision of a higher court is binding on lower courts.

• Most courts are not bound to follow their own previous decisions, although they are expected to do so.

• The highest court in Australia, the High Court, is not bound to follow its own decisions.

• The decisions of courts outside Australia are not binding on Australian courts. However, Australian courts can refer to them, often from the United Kingdom, for guidance or comparison if, for example, a case is unusual or difficult.

• When a court makes a decision, it gives reasons for its decision. Another case with similar but not identical facts can be decided differently (that is, it can be distinguished). It is often said that “each case will be decided on its own facts”.

An Introduction to Australian Legal and Court System

The court and judiciary system of Australia is structured as a hierarchy. Judiciary is set in the hierarchy system for efficient and smooth allocation of legal resources. A hierarchy of courts helps in distinguishing between the powers and the roles of the courts. Every court shall have their distinguished feature and some courts may have more powers than the other whereas some court may deal with a completely different aspect of law. This means that each court has different jurisdiction[10].

Three important ways the jurisdiction of Australia is divided is as follows:

• Federal v. State
• Civil v. Criminal
• Original v. Appellate

• Australia is divided into six states and two mainland territories.
• Each state and mainland territory has its own court hierarchy and each court in such hierarchy has its own jurisdiction.
• Every Australian state has power to make its own laws.
• Since 1901 the federal government has had the power to make laws for the whole of Australia within its powers under the Constitution.

The two basic and main types of courts in Australia are:

1. Courts set under the state laws called ‘State Courts’
2. Courts set under the Commonwealth laws called ‘Federal Courts’

In addition to these two main types of courts, Australia’s judicial system also consists of other specialized courts and tribunals. Such courts and tribunals are set up to deal with special and specific matters.

For example: A Family court would deal with matters only dealing with marriages, adoption and other issues that are specific to family matters.

The Australian judiciary is comprised on a set of core principles. These set of principles help to connect the judiciary with the citizens or the inhabitant of the country. Without such laws and principles, society would not and could not trust the constitution and the system to protect and promote their legal rights and interests. Such principles are referred to as ‘Natural Justice’.

Doctrine of such Natural Justice shall consist of-

• Fairness
• Transparency
• Equality before law
• ‘Audi alteram partem’
• ‘Nemo iudex in causa sua’

Different Types of Courts in Australia

Federal Courts:

The federal courts deal with matters not covered by state law. The federal court hierarchy is as follows:

• High Court of Australia

It is the apex court in the hierarchy of the federal court hierarchy. High Court is highest court in Australia, irrespective of the court system. There is only one high court in Australia. The High Court of Australia is situated in Canberra. It was established in the year 1903 under the Judiciary Act. The High Court has both original and appellate jurisdiction. The broad array of jurisdiction enables the High Court to take a leading role in Australian law and contributes to a consistency and uniformity among the laws of the different states.[11]

• Original Jurisdiction

The term original jurisdiction in courts refer to the cases or matters that directly or originally heard in that particular court. High Court of Australia has the original jurisdiction. Section 75 and 76 of the Commonwealth of Australia Constitution Act 1900 deals with the working of original jurisdiction of the High Court.

• Appellate Jurisdiction

The High Court has the powers and jurisdiction to deal with the appeal from any of the Supreme Courts or federal court or any other court that falls under the ambit of federal jurisdiction.

• Federal Court of Australia

The federal court of Australia deals with the matters relating to corporations, taxation, trade bankruptcy etc. The federal court also has the appellate jurisdiction. It can hear appeal from decisions of the Federal Magistrate Court. However, it does not hold the jurisdiction to hear appeal from the decisions relating to the family matter.

• Family Court of Australia

The Family Court is a court that was established specially to deal with the matters relating to family disputes. The court has the appellate jurisdiction to hear appeals from Federal Magistrates Court in the disputes involving family matter. Such family court sits in each federal state and the territory of Australia, except for Western Australia. State Court branch, Family Court of Western Australia hears the family matters in the state of Western Australia.

• Federal Circuit Court of Australia

The Federal Magistrate Court was renamed as the Federal Circuit Court on 12^th April, 2013. On the same day the titles of Chief Federal Magistrate’ and ‘Federal Magistrate’ changed to ‘Chief Judge’ and ‘Judge’ were renamed respectively. This court is the lowest in hierarchy of federal courts. It deals with dispute that are less complex in nature. It hears trivial family, trade practices, and administrative disputes. This court does not follow the jury system.

State Courts:

The constituency of Australia is comprised of states and territories. Each state has power to amend the law as required by that particular state. The basic structure of hierarchy is similar. However, the roles of such courts may differ.

• State Courts of Victoria[12]:

• Victorian Civil and Administrative Tribunal (VCAT):

• Children’s Court of Victoria:

• Coroners Court of Victoria:

• Magistrates’ Court of Victoria:

• County Court of Victoria:

• Supreme Court of Victoria:

• State Courts of Queensland:

The state of Queensland has four levels in its court hierarchy. Judiciary of Queensland also consists of tribunals. Such tribunals are set up by state legislation in order to deal with a variety of offences. Following are the courts that come under the state courts of Queensland:

• Queensland Civil and Administrative Tribunal:

• Magistrate Court:

Magistrate court also consists of Children Court and Coroners Court.

• District Court:

• Supreme Court:

• State Courts of New South Wales:

Three main Courts come under New South Wales (NSW)’s judicial system[13]:

• The Local Court:

• The District Court:

• The Supreme Court:

• State Courts of Western Australia:

• Magistrate Court of Western Australia:

• District Court of Western Australia:

• Supreme Court of Western Australia:

The Supreme Court is the highest court in ranking in the state of Western Australia. It has its original as well appellate jurisdiction. Under its original jurisdiction, the Supreme Court can here criminal offences which are punishable by life imprisonment or any other maximum punishment. It has the jurisdiction to deal with the matters having value above $750,000. Under its appellate jurisdiction this court can hear appeals from single judge decisions of the Supreme Court, criminal matters from the Magistrates Court and the District Court, and civil appeals from the District Court.

• State Courts of Tasmania:

Unlike the other States of Australia which have a three tiered court structure, Tasmania has only two levels of courts: the Magistrates Court and the Supreme Court.[14]

• Magistrate Court of Tasmania:

• Supreme Court of Tasmania:

• State Courts of South Australia:

• Magistrate Court of South Australia:

• District Court of South Australia:

• Supreme Court of South Australia:

The Privy Council:

The Australian Court hierarchy may appear incomplete without cognizance of ‘the Privy Council’. As mentioned earlier, the Australian constitution is based on the constitution of the Great Britain. The Judicial Committee of the Privy Council (JCPC) was established under the Judicial Committee Act 1833 by the highest judicial bodies of the United Kingdom.

It is the most senior court of appeal for several independent commonwealth states. The Privy Council was constituted to correct the errors made in the court of justice. However, with time the scope of the Privy Council has diminished.  No appeal to the Privy Council in any matter involving the interpretation of the Constitution or of the Constitution of a State, unless it involved the interests of some other dominion.

Appeals on constitutional matters involving disputes about the limits inter se of Commonwealth or state powers were prohibited under Section 74 of the Australian Constitution, enacted by the Imperial Parliament. Cases where the High Court certified that the case was fit for the appeal to be determined by the Privy Council were considered to be exception to such prohibition.

In the case of ‘Kirmani v Captain Cook Cruises Pty Ltd’ (1985)[17], the court said that it would never again grant a certificate of appeal. Subsequently, in the year 1986, the Australia Act was passed in which the parliament of United Kingdom and the parliament of Australia post the consent of all the Australian States called off the scope of appeals to the Privy Council from state Supreme Courts. This closing off made the High Court as the only avenue of appeal to the Privy Council.

Conclusion:

The Australian Judicial System is efficiently divided. The division of jurisdictions of Courts may appear vague and confusing at the beginning but on a detailed study of such hierarchy it can be noticed that this judicial systems keeps the hold of the entire Australia in way of its federal government and on the other hand it provides the states with much needed liberty to amend and reconstruct their own law and a court system.

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Reference

[1] Australian Legal System, Oxford Press

[2] Butterworths Australian Legal Dictionary

[3] Oxford Dictionary

[4] A precedent, therefore, is a judicial decision which contains in itself a principle. The underlying principle which thus forms its authoritative element is often termed the ratio decidendi. (Salmond, Jurisprudence (7th ed. 1924) 201.)

[5] an obiter dictum is an opinion on some point which is not necessary for the decision of the case (Expressed in the cases Dew v. United British Steamship Co. Ltd., (928) 139 LT 628.)

[6] 1 Salmond, ’The theory of judicial precedent’ (1900) 16 LQR 376

[7] Dias, Jurisprudence (5th edn 1985) 126.

[8] Thorne (transl), Bracton on the Laws and Customs of England (1968) 21; see also Lewis, ’The history of judicial precedent’ (1930) 46 LQR 207, 341; (1931) 47 LQR 411; (1932) 48 LQR 230

[9] Cited in ‘The Law Handbook’ , 13^th Edition.

[10] According to the Butterworths Australian Legal Dictionary, “a jurisdiction is the scope of a court’s power to examine and determine facts, interpret and apply the law, make orders and declare judgment. Jurisdiction may be limited by geographic area, the type of parties who appear, the type of relief that can be sought, and the point to be decided.

[11] Bennett, J.M. (1980). “Foreword by Sir Garfield Barwick”. Keystone of the Federal Arch. Canberra: Australian Government Publishing Service. ISBN 0-642-04866-5

[12] Reference: Victoria Law Foundation, Grants Publication Education.

[13] Reference: The Law Handbook, 13^th Edition.

[14] http://www.courts.tas.gov.au/about_us

[15] Magistrates Court Act 1991 (SA) ss 7 and 7A

[16] [See District Court Act 1991 (SA) s 7].

[17] [1985] HCA 27; (1985) 159 CLR 461, 465.