Judiciary of Australia
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, 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 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 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.[1]
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 and equity are administered by the same courts, in a manner similar to that of the Judicature Acts in the United Kingdom. Legal and equitable remedies may be pursued in the one action in the one court.
Judges[edit]
Judges are appointed by the executive government, without intervention by the existing judiciary.[2] 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.[3] 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.[3] 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,[4] though they can remain as "acting judges" until age 76.[5]
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.'[12] Despite this, Australian courts are frequently characterised as either 'superior' or 'inferior.' The Federal Court[13] and the supreme courts of each State and Territory are generally considered to be superior courts.
The Supreme Court of Victoria includes a specialist list in the Common Law Division known as the Commercial Court.[14] The Supreme Court of Queensland has a similarly specialized docket known as the Commercial List.[15]
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:
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: