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10 May 2022

The judiciary is the third and final branch of the Australian government, and so fittingly is found in Chapter III of the Constitution. This is the first in a three-part introduction to the Australian legal system. In this article, we will explore the basics of the legal system, as well as its hierarchy. The next two articles will cover the High Court of Australia and the UK Privy Council, respectively.

The Australian legal system developed out of the British legal system. When Australia was colonised by the British laws were transplanted into the colony. This was affirmed with the Australian Courts Act 1828 9 Geo. 4, c. 83 (Imp), with Section 24 saying that all1 British laws in force by July 25th, 1828, applied in the colonies of New South Wales and Van Diemen’s Land, now Tasmania.2 This law also authorised the British monarch to create circuit courts in Australia. This is, no doubt, a term that many American readers will be familiar with. This is because of their common heritage. As we have seen, British law was applied to Australia. The same happened in New Zealand and Canada. British laws influenced the American system, but the US Founding Fathers were also influenced by mainland European legal traditions.

The inter-related jurisdictions give rise to a hierarchy of common law in Australia. Within Australia, the High Court of Australia is the highest court, in a similar position to the US Supreme Court. The Privy Council used to be the highest, but that is a topic for The Australian Government #15. As we have seen, Australia has a federal system of government, with power split between the States and Commonwealth governments.

Commonwealth jurisdiction:

  • Division 1 of the Federal Circuit and Family Court of Australia: Original jurisdiction (the first time a case is heard) over Family law matters, except those of Western Australia.
  • Division 2 of the Federal Circuit and Family Court of Australia: Original jurisdiction over some civil law matters.
  • Federal Court of Australia: Original jurisdiction over civil and criminal law matters that Division 2 and the High Court do not have original jurisdiction over, as well as appellate jurisdiction (authority to hear appeals) over Division 2 cases. The equivalent of a Supreme Court (Trial Division).
  • Full Court of the Federal Court of Australia: Appeals from the Federal Court are heard by 3 judges, instead of the Federal Court’s 1 judge. This is the equivalent of a Supreme Court (Court of Appeals).
  • High Court of Australia. Appeals from Division 1, the Full Court of the Federal Court, Supreme Courts, and the Family Court of Western Australia. The High Court’s original jurisdiction will be discussed in the next article.

State/territory jurisdiction:

  • Inferior and intermediate courts and their jurisdiction change from jurisdiction to jurisdiction, and some jurisdictions lack intermediate courts.
  • Family Court of Western Australia: Western Australia is the only state or territory to have its own family court.
  • Supreme Court (Trial Division): Also known as the Supreme Court. This court has original jurisdiction over serious criminal and civil law matters. This depends on the monetary amount involved (in civil law cases) or sentence length (criminal law cases).
  • Supreme Court (Court of Appeals): Appellate jurisdiction over all state/territory-level court matters.

Courts must follow ‘precedent’ set by a superior court within their jurisdiction. Therefore, a ruling made in the Queensland Supreme Court (Court of Appeals) about murder will be binding on any future cases in any lower court in the state involving murder. The way to get around this is to ‘distinguish’ the case at hand from the case that set the precedent by demonstrating how the factual situation is different, and therefore the precedent is not applicable. However, that murder case will not set precedent for any future case in the same court, nor in any other jurisdiction (state or territory) in Australia, although it will be highly influential. Similarly, rulings from a lower court in the same jurisdiction will not set precedent. This means that High Court cases set precedent for all relevant jurisdictions, unless that case can be distinguished. UK cases are prima facie (on the face of the matter, until proven otherwise) the next most influential, because Australian law is built on British law. The common origin of Canadian and New Zealand law means that they are the next rung down, in terms of influence. Finally, American cases have less than those jurisdictions already mentioned, but more than those not mentioned, because the US legal system is not entirely based on the British system.

Like Britain, Canada, New Zealand, and the US, Australia has a common law judicial system. The common law system originated in medieval England, whereas mainland Europe, Latin America, and much of Africa use the civil law system, which originated in Rome, and was built upon by the French. Civil law is contained entirely in legislation and constitutions, while common law also uses judicial precedent, or past legal decisions, as a source of law. Common law includes legislation because it originated in England after William the Conqueror, who brought over French law. The Anglo-Norman legal system, the beginnings of common law, began to develop under Henry I, William’s fourth son and second heir. Civil law involves the court merely applying the facts of the case to codified legislation. In contrast, much of the law in common law systems is uncodified, meaning it is found in court cases, not just legislation. Queensland and Western Australia have thoroughly developed criminal law legislation, the Criminal Code Act 1899 (Qld) and Criminal Code Act Compilation Act 1913 (WA) respectively, while the other jurisdictions rely more on judicial precedent. Although the other jurisdictions also have criminal codes, these are less expansive and developed. In common law systems, courts not only apply legislation, they also interpret it, and where the law is ambiguous or silent on a matter the courts can create law. However, statutory law is superior to judicial precedent, meaning that court decisions can be overruled by subsequent legislation. The common law is so strong in Britain that there isn’t a written constitution; rather, there is a ‘Living Constitution’ made from a combination of legislation and judicial precedent. Although Australia possesses a written constitution, there is no constitutional bill of rights, with rights instead found in legislation and judicial precedent. Common law systems like the US and Australia also allow the Supreme Court and High Court, respectively, to declare legislation to be inconsistent with the Constitution. In the US, this is found in Marbury v Madison 5 U.S. 137 (1803), which was then built upon by the Australian constitutional framers to create Section 109 of the Constitution.

The only Commonwealth court mentioned in the Constitution is the High Court, in Section 71. However, that same section allows Parliament to create other federal courts. Section 77(i) and (ii) allow Parliament to determine the scope of the jurisdiction of any federal court, and allows Parliament to determine whether both federal and state/territory courts should both have jurisdiction over a matter, respectively. The latter is important because the Constitution does not take away the jurisdiction of the pre-existing state courts. In fact, because Sections 106-108 establish that the constitutions, parliamentary powers, and laws of the States will not be allowed to continue in force as much as possible under the Constitution, the Constitution demonstrates an intention to respect the existing powers of the States. Therefore, Section 77(ii) deals with whether the States’ courts should continue having jurisdiction over legal matters that Constitution gives to the federal courts. Finally, Section 77(iii) allows Parliament to grant federal jurisdiction to State courts. An example of Section 77 in action is the Family Court of Western Australia, because family law is a federal matter,3 but the federal courts have ceded authority over family law matters in Western Australia to that State, with appeals going straight to the High Court of Australia.

Although Section 80 of the Constitution enshrines the right to trial by jury for any Commonwealth trials for indictable offences. However, this does not mean that there is the right to trial by jury in all offences. Higgins J in R v Archdall and Roskruge; Ex parte Carrigan (1928) 41 CLR 128 said that an offence does not need to be an indictable offence. Therefore, Parliament must decide whether an offence is summary (no trial by jury) or indictable (trial by jury). In addition, most criminal law matters fall under the jurisdiction of the states and territories, rather than the Commonwealth. A few judges have criticised this, but their opinions are in the minority. Barwick CJ has suggested that rulings like Higgins J’s mean that “[w]hat might have been thought to be a great constitutional guarantee has been discovered to be a mere procedural provision.”4 Dixon and Evatt JJ said that the stance of their fellow High Court judges on Section 80 means that the Constitution can be opened up to “mockery.”5 More recently, Kirby J delivered a scathing criticism of Section 80 and its interpretation, claiming that it is “of no substantive use to those facing trial for federal offences in Australian courts. It might just as well not have been included in the Constitution.”6 In typical Kirby J fashion, this was a dissenting opinion against the majority judgment of the court; after all, he isn’t called ‘The Great Dissenter’ for nothing. Dissenting is so fundamental to who Michael Kirby is that his dissenting also took place outside of the courtroom; he was Australia’s first openly gay High Court judge.

The Australian judicial system is ultimately a combination of the US and British judicial systems, with the hierarchy and jurisdiction of courts styled after the British system, and the division of jurisdiction between the federal courts, and state and territory courts, being based on the US federalist system. However, the influence of British legal traditions means that the legal rights granted in the Constitution, especially relating to judicial process and procedure, are lackluster at best. I would like to leave you with a final statement from Dixon and Evatt JJ,7 which demonstrates the struggle between the British and American legal traditions in Australia,

The Commonwealth Constitution contains no guarantee against deprivation of life, liberty or property without due process of law, like the fifth and fourteenth amendments of the United States Constitution. To establish personal liberty by constitutional restrictions upoon the exercise of governmental power was not a guiding purpose in framing the Australian instrument, which in this respect departs widely from its American model.


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Stuart Jeffery, aka LibertyDownUnder, is the founder of the Australian Liberty Network. He is also the host of the Gumtree of Liberty and Gumtree of Liberty Live podcasts, and is editor of the Liberty Review. Stuart is currently studying a Bachelor of Laws and Bachelor of Arts, majoring in international relations, at the University of Southern Queensland.

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