AUSTRALIAN CONSTITUTION: HEIRARCHY OF COURTS AND JUSTICE SYSTEM

INTRODUCTION

The Australian Constitution was born after an array of conventions in the late 1890s. Precisely On
1 January 1901, the Australian Constitution became law. Its Colonial past has a huge impact on its
political and societal structure, specifically on the framing of the constitution. Similar to the United
Kingdom, Australian courts too operate as per the principles and practices of the adversarial system
of law. However, due to the Federal nature of the Australian state, the court hierarchy differs from
that of the United Kingdom. The Australian Constitution shares power between the legislature,
executive and the judiciary. Australia is divided into six states and two mainland territories. Every
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 formulate laws according to its own
requirements. Since 1901 the federal government has possessed the power to formulate the laws
for the whole of Australia within its powers to do so under the Constitution.
JURISDICTION

Chapter III of the Constitution concerns the judiciary. It commands a judiciary that has no
interference from the political wing of the country. The Constitution only gives birth to the High
Court of Australia. Further the parliament is conferred with the power to create other federal courts
and to bestow state and territory courts with federal power. In Australia, both Federal and State
jurisdictions contain their separate court hierarchies. There exists correspondingly some
distribution and intermitting between the two jurisdictions, with the purpose to make improved use
of the existing resources. At the time of the making of the federation, lawmakers were alarmed for
the protection of the state and territory power vis-a-vis the Commonwealth. For that reason
particularly, the Australian constitution provides only certain, demarcated powers to the federal
government. Such areas were well-thought-out of national importance (for example - defense and
immigration). Unlimited powers (all the rest) continued the province of the states and territories
of the federation of Australia.

Simply put, the basic types of courts in Australia are: Courts set under the state laws called ‘State
Courts’ and the Courts set under the Commonwealth laws called ‘Federal Courts’. In addition to
these two main types of courts, Australia’s judicial system also comprises of supplementary
specialized courts and tribunals. Such courts and tribunals are set up to deal with special and
specific matters.
Three ways in which the jurisdiction of the Courts of Australia can be divided is as follows:

I. Federal Court v. State Court

II. Civil Courts v. Criminal Courts
III. Original Jurisdiction Courts v. Appellate Jurisdiction Courts
HIERARCHY

The court and judiciary arrangement of Australia is organized as a hierarchy. Judiciary is set in the
hierarchy system for effectual and smooth distribution of legal assets. In Australia, there are two
primary jurisdictions: federal and state or territory. In a court hierarchy, the diverse courts have
different responsibilities and duties. The setup of hierarchy of courts aids in differentiating amid
the authorities and the roles of the courts. Every court has their distinguished characteristics and
some courts may contain more powers than the other courts whereas some court might have to
deal with a wholly diverse facet of law.

Lower courts, like the State Magistrates’ Courts, decide upon minor or less significant cases –
while the higher courts, namely State Supreme Courts and the High Court of Australia, judge more
severe cases. Higher courts, are often also called as superior courts, can also hear pleas against
decisions passed by lower courts. Some courts carry a specialized jurisdiction (namely, the
Children’s Court and Family Courts) thereby they deal with cases only in a contracted range of
topics, on the other hand other courts have a more general jurisdiction (for example the state
Supreme Courts) to deal with a wider variation of cases that are put forth. The Supreme Courts of
the states and territories are courts of general jurisdiction in that each matter is within the ambit of
the general jurisdiction of a Supreme Court unless the same is explicitly excluded. This implies
that each court in Australian Judicial System has distinguished jurisdiction. Although distinct, they
intertwine because an appeal is conceivable in some conditions from a state or territory court of
law to a federal court. Correspondingly, some state courts use federal jurisdiction.

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 comprises of four types of 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. However such an appeal is not automatic. A party is required to apply for
leave to argue a legal point before the Court. Before 1986, Australian citizens were able to appeal
beyond the High Court to the Privy Council under certain circumstances. This practice finished
with the enactment of the Australia Acts 1986. At that time, the public supposed that the national
legal tradition was adequately established, and separate such that appeal to a British court was no
longer suitable.
Federal Circuit Court

Before 2013, the Federal Circuit Court was recognized as the Federal Magistrates Court. In the
present time all judicial officers of the Court were addressed as a judge rather than a magistrate. It
is a statutorily created court implying that it has no characteristic powers other than the ones that
parliament confers to it. It is never a superior court of record. Its decisions consequently, do not
develop into precedent in the similar way and with the same encumbrance as decisions of, for
example, the High Court. The Court’s precedents are restricted to other cases with similar factual
scenarios. Typically, the Court hears fewer serious matters within the federal jurisdiction
comprising family law and administrative law. There is a little overlap between this Court and the
Federal Court in that together can hear cases in the similar area of law. It is never a superior court
of record. For example, both courts can do the assessment 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 therefore its precedents have a more limited application than other courts. It
typically overhears more serious matters within the federal jurisdiction in both its original and
appellate jurisdiction. The Court decides over matters in areas such as industrial relations,
corporation’s law, bankruptcy and taxation law. As already stated above, the Federal and Federal
Circuit Courts both can hear substances in the same areas of law. Despite this fact, the conditions
of when you would file in either court are quite different.
Family Court

The federal government formed the Family Court in 1975 as portion of its wider improvements of
family law. It is an expert specialist court that hears family law matters. It also contains the power
to hear petitions from the Federal Circuit Court, also in family matters. The court decides upon in
every state and territory except Western Australia. Particularly in Western Australia, family
matters are heard in a state court.
State and Territory Courts

Pertaining to Australia’s colonial history, the state and territory court hierarchy differs. However,
it is necessary to think of them as an arrangement ended up of a lower, intermediate and superior
courts. Superior Courts. The constituency of Australia is encompassed of states and territories.
Each state has power to alter the law as obligatory by that particular state. The basic structure of
hierarchy is alike.
Intermediate Courts

Intermediate courts possess an original jurisdiction in both a criminal and civil capacity. Their
criminal capacity typically includes less serious offences, and their civil matters have established
monetary values. While jury trials are probable, they tend to be infrequent.
Lower Courts

The lower state courts hear the least serious criminal matters and civil matters of low monetary
value. They are correspondingly the forum for interment hearings for additionally serious criminal
offences often known as chargeable offences.
Children’s Court
This Court decides upon matters relating to children (defendants aged under 18 at the time of
offense). Children are dealt with distinctly from adults because matters of accountability and any
disadvantages administered must take into consideration their age.
CONCLUSION

The Australian Judicial System is proficiently divided. The separation of jurisdictions of Courts
may seem vague and unclear at the start but on a comprehensive study of this hierarchy it can be
perceived that this judicial systems retains the hold of the complete Australia in way of its federal
government and on the other hand it delivers the conditions with much desirable liberty to modify
and reconstruct their own law and a court system.