The Law of Australia: Case Law

Australia is a federal jurisdiction with six states, two Commonwealth Territories (Northern Territory and Australian Capitol Territory) and three external territories (Norfolk Island, Christmas Island, and Cocos (Keeling) Islands.

In general, at the state level there are three levels of courts. At the lowest level is the Magistrates Court, which deals with minor civil disputes and minor criminal cases such as theft and drunk-driving. There are also special Magistrates Courts, such as Children's Court (for offenders under 17), the Minor Debts court, Small Claims Tribunal, etc. There is no jury in the Magistrate's Court.

The District Court (County Court in Victoria) sits at the next level above the Magistrate's Court, exercising appellate jurisdiction from the Magistrate's Court as well as original jurisdiction in more serious civil cases and in some criminal cases, e.g., involving fraud, armed robbery, and rape. There may be a jury at the District level.

The  Supreme Court is the highest state court. It has two divisions, the Trial Division and the Court of Appeal. The Trial Division handles civil cases over $250,000 and serious criminal cases, e.g., involving murder, manslaughter, and serious drug offenses. The Court of Appeals, comprising panels of three or five judges, hears appeals from the lower courts.

In Tasmania and the two mainland territories, there is only a Magistrates Court below the Supreme Court.

In the three external terrritories there is a Supreme Court and a Magistrates Court or Court of Pettty Sessions. The Supreme Courts are mostly staffed by judges of other courts, usually the Federal Court. Appeals from territorial courts lie to the full Federal  Court.

State and  territory courts can sometimes exercise federal jurisdiction. Both state and federal courts can exercise "accrued jurisdiction," which allows them to hear all issues arising from a single set of facts, providing the particular court has jurisdiction to hear the principal cause of action.

There are also three levels of federal courts. The lowest level is the Federal Circuit Court of Australia, created in 1999 as the Federal Magistrates Court. Next in line is the Federal Court. The Federal Court was originally created by the Judiciary Act of 1903. The Federal Court primarily hears matters relating to corporations, trade practices, industrial relations, bankruptcy, customs, immigration and other areas of federal law. The court has both original jurisdiction, and power to hear appeals from a number of other specialized tribunals (and in cases not involving family law, from the Federal Circuit Court of Australia).There is an appeal level of the Federal Court (the "full court"), which consists of several judges, usually three but occasionally five in very significant cases.

The Family Court has jurisdiction over family law matters. It is a superior court of limited jurisdiction and was established in 1975 by the Family Law Act (1975). The Commonwealth has power over marriage and divorce under the Constitution. It deals with parental disputes, matrimonial property, child support, and other family-related laws. Uniquely among states, Western Australia took up the option of establishing its own Family Court in 1975, and in that state all jurisdiction under the Family Law Act 1975 is exercised by the Family Court of Western Australia.

The High Court is the highest court in Australia. It was created by section 71 of the Constitution. It has appellate jurisdiction over all other courts. It also  has some original jurisdiction, and the power of constitutional review. The High Court is superior to all other federal courts and is also the final route of appeal from the state and territory high courts. Appeal to the High Court is by special leave only, which is rarely granted. Therefore, in most instances the appellate divisions of the state Supreme Courts and the Federal Court are the ultimate appellate courts.

It used to be possible to appeal High Court decisions to the Privy Council. However, the Privy Council (Limitation of  Appeals) Act of 1968 closed off all appeals to the Privy Council in matters involving federal legislation. Appeal was further limited by the Privy Council (Appeals from the High Court) Act 1975. The Australia Act 1986 eliminated appeals from state Supreme Courts. Although appeals to the Privy Council are still theoretically possible in inter se matters by leave of the High Court under section 74 of the Constitution, the High Court has indicated it will not grant such leave in the future, so that appeal to the Privy Council is now effectively closed off in all situations.

The various state and territorial courts are listed in the following table: