Lexi Webster
Australia's judiciary is independent of other arms of government, with the power to make laws divided between the executive, parliament, and judiciary. This is known as the separation of powers doctrine. The High Court of Australia is the apex of the Australian court hierarchy, with the ultimate power to interpret and apply the law without interference from parliament or the executive. This power extends to matters of federal and state law, with decisions binding on all Australian courts, including state and territory supreme courts. Federal judges are appointed by the government and may serve until the age of 70, while state court judges typically have a retirement age determined by state law. The question arises: do judges make laws in Australia, and if so, what are the limits of their legislative power?
| Characteristics | Values |
|---|---|
| Power to make laws | Divided between the executive, the parliament and the judiciary |
| Judiciary | Independent from other arms of government |
| Judicial officers | Act independently and without interference from the parliament or the executive |
| Judicial officers' tenure and remuneration | Secured by the Constitution |
| Judicial officers' removal from office | Only on grounds of proved misbehaviour or incapacity |
| Judicial officers' remuneration | Cannot be reduced while in office |
| Federal Court | Can rule on issues outside its explicit jurisdiction, if part of a larger controversy that the court has jurisdiction over |
| High Court | Limited trial powers, but can transfer cases to another court |
| Common law and equity | Administered by the same courts |
| Legal and equitable remedies | Can be pursued in one action in one court |
| Judges' appointment | By the executive government, without intervention by the existing judiciary |
| Judges' tenure | Guaranteed |
| Judges' removal | Restricted |
| Federal judges' retirement | Age 70 |
| State court judges' retirement | Varies by state, e.g. age 72 in New South Wales |
| Superior courts | Have unlimited jurisdiction in law and equity; determine appeals; composed of judges whose individual decisions are not subject to appeal to a single judge |
| State and territory courts | Can sometimes exercise federal jurisdiction |
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What You'll Learn
Separation of powers
In Australia, the power to make laws is divided between the executive, the parliament, and the judiciary. This is known as the separation of powers doctrine, a key feature of the Australian system of government. The Australian Constitution establishes the independence of the judiciary from the other arms of government.
The separation of powers in Australia involves the division of government institutions into legislative, executive, and judicial branches. The legislature makes the laws, the executive puts them into operation, and the judiciary interprets them, all independently of one another. However, due to the conventions of the Westminster system, a strict separation of powers is not always evident in the Australian political system, with little distinction between the executive and the legislature. In the Westminster system, ministers (executive) are required to be a part of the Parliament (legislative) to uphold the concept of Responsible Government, as outlined in Section 64 of the Constitution.
The Australian Constitution's first three chapters, "The Parliament", "The Executive Government", and "The Judicature", vest the relevant "power of the Commonwealth" in the appropriate persons or bodies. The Constitution also incorporates responsible government, uniting the legislature and executive. This is reflected in Sections 44, 62, and 64 of the Constitution.
The High Court of Australia, the apex of the Australian court hierarchy, has emphasised the importance of a distinct separation of "judicial power". In the case of Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan, the High Court acknowledged the possibility of legislative power delegation to the executive, upholding the validity of delegated legislation. In contrast, the Kable v Director of Public Prosecutions (NSW) case highlighted the role of the courts, where a NSW statute was invalidated as it attempted to confer non-judicial functions on the court.
The Senate has played a role in restraining executive power by querying, amending, and blocking government legislation. The Federal Parliament has the rare privilege of acting as a court in specific circumstances, such as when regarding a non-member as acting "in contempt" of parliament.
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Federal Court jurisdiction
In Australia, the power to make laws is divided between the executive, the parliament, and the judiciary. The judiciary is independent of the other arms of the government and judicial officers act independently without interference from the parliament or the executive. Federal judges are appointed by the government and can only be removed from office on the grounds of proved misbehaviour or incapacity.
The Federal Court of Australia is a superior court of record and a court of law and equity. It was established in 1976 by the Federal Court of Australia Act and sits in all capital cities and elsewhere in Australia when necessary. The Court's jurisdiction is broad, covering almost all civil matters arising under Australian federal law and some summary and indictable criminal matters. It deals with cases relating to admiralty, bankruptcy, competition, consumer protection, corporations, defamation, human rights and anti-discrimination, industrial and employment, intellectual property, taxation, and native title.
The Federal Court also has jurisdiction over matters previously handled by three former federal courts: the Federal Court of Bankruptcy, the Commonwealth Industrial Court, and the Industrial Relations Court of Australia. It hears appeals on questions of law from the Administrative Review Tribunal, including complaints about unlawful discrimination and matters concerning the Australian Constitution. The Court shares jurisdiction with the Supreme Courts of the states and territories in the area of intellectual property.
Under the doctrine of "accrued jurisdiction", the Federal Court can rule on issues outside its explicit jurisdiction, provided that they are part of a larger controversy that the court has jurisdiction over. The Court also has appellate jurisdiction, hearing appeals from decisions of single judges, the Federal Circuit and Family Court in non-family law matters, and other courts exercising certain federal jurisdiction.
In the Australian court hierarchy, the Federal Court is equivalent to the supreme courts of each of the states and territories and is superior to the Federal Circuit and Family Court of Australia. It is below the High Court of Australia, which is the ultimate court of appeal on matters of both federal and state law.
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State and territory courts
The judiciary of Australia comprises judges who sit in federal courts and the courts of the States and Territories of Australia. The High Court of Australia is the highest court in the Australian judicial hierarchy. It was created by Section 71 of the Constitution and has appellate jurisdiction over all other courts. It also has original jurisdiction in certain matters, including powers of judicial review. The High Court is the ultimate court of appeal on matters of both federal and state law.
Each state and territory has its own court hierarchy, with varying jurisdiction for each court. 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 by various names, including the full court, court of appeal, and court of criminal appeal.
The first level of courts in Australia's states and territories are Magistrates' Courts and Local Courts. These courts are where most civil and criminal cases first enter the judiciary, including personal injury matters, before some cases are referred to higher courts. Cases are heard by a magistrate sitting alone (without a jury). The types of cases include civil disputes for claims up to a set financial amount and criminal matters including driving offences, shoplifting, burglary, and assault.
The next level of courts in the hierarchy is the District Court, followed by the County Court. In the District Court, civil matters are heard by a judge, whereas criminal trials can be heard by a judge sitting alone or by a judge and jury.
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Appointment and tenure
The appointment and tenure of judges in Australia are governed by the country's Constitution, which establishes the independence of the judiciary from other arms of government. The power to appoint judges to federal courts rests with the executive government of the relevant jurisdiction, specifically the Governor-General, who acts on the advice of the Australian Government. The Attorney-General, as the nation's first law officer, plays a crucial role in recommending judicial appointments.
The process of appointing judges aims to ensure transparency, consultation, and meritocracy. Advisory panels composed of eminent individuals assess candidates and provide recommendations to the Attorney-General for consideration. For High Court appointments, the government must consult with the Attorneys-General of the states. Additionally, specific statutory criteria, as outlined in legislation, must be met for appointments to federal courts.
To be eligible for appointment as a Federal Court judge, candidates must have been enrolled as a legal practitioner of the High Court or the Supreme Court of a State or Territory for at least five years. They must also possess the necessary knowledge, skills, and experience to handle the types of matters that come before the Court. Similar requirements apply for appointments to the Federal Circuit and Family Court of Australia (FCFCOA), with additional considerations for family law matters.
Once appointed, judges in Australia enjoy tenure and security of tenure, which helps maintain judicial independence. Federal judges can only be removed from office on specific grounds, such as proved misbehaviour or incapacity, and their remuneration cannot be reduced during their tenure. The retirement age for federal judges is typically 70 years, while state court judges' retirement ages vary according to state laws. For instance, in New South Wales, the retirement age is 72, but judges can continue as "acting judges" until the age of 76.
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High Court of Australia
The High Court of Australia is the highest court in the Australian judicial system. It was established following the Judiciary Act 1903 (Cth) and its authority is derived from Chapter III of the Australian Constitution, which grants it judicial power over the Commonwealth. The High Court exercises original and appellate jurisdiction on matters specified in the Constitution of Australia and supplementary legislation. It is the ultimate court of appeal on matters of federal and state law.
The High Court has limited trial powers and rarely exercises them. It can transfer cases to other, more appropriate courts, conserving its energy for its appellate functions. The court consists of seven justices, including a chief justice, currently Stephen Gageler. Justices are appointed by the governor-general on the advice of the attorney-general and with the approval of the prime minister and cabinet. They serve until their mandatory retirement at 70 years old.
The High Court's broad jurisdiction means it plays an important role in Australia's legal system. It receives applications for appeal from parties in a process called special leave. If an application is accepted, the court proceeds to a full hearing with oral and written submissions from both parties. The High Court has described the concept of a superior court as having 'no ready application in Australia to federal courts'.
The decisions of the High Court are binding on all Australian courts, including state and territory supreme courts. The court has resided in Canberra since 1980, following the construction of a purpose-built High Court building.
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Frequently asked questions
Judges in Australia interpret and apply the law, acting independently without interference from parliament or the executive.
Federal judges are appointed by the executive government without intervention from the existing judiciary.
While judges don't make laws in Australia, they play a crucial role in interpreting and applying the law. The power to make laws lies with the executive, parliament, and the judiciary, upholding the separation of powers doctrine.
The High Court of Australia is the apex court in the country's judicial hierarchy, serving as the ultimate court of appeal for federal and state law matters.
Federal judges in Australia typically serve until the age of 70 and enjoy tenure protections. They can only be removed from office in exceptional circumstances, such as proved misbehavior or incapacity.
