M3 - Learner Manual

1. State and Territory Courts

At the state and territory level the courts are divided into 3 categories:

1.              Local Courts (lower courts)

2.              District Courts (intermediate courts)

3.              Supreme Courts

 

The complexity of the legal matter or the seriousness of the criminal offence has a bearing on the court in which a case will be heard so that the more complex or serious the case, the higher the court level.  Decisions that are made by courts at the lower levels can be appealed against at a higher level.

The lower courts hear minor civil, criminal and family law cases.  The lower courts can only hear matters of civil disputes where the amount of money they can award does not exceed a certain limit, and in criminal cases, where the size of the penalty such as a jail sentence, will not exceed a certain time period.  For example, in the Small Claims Division of the Local Court in NSW, only claims up to $10,000 can be made in civil cases.   

If the matter is too serious for the lower courts, it is referred up to higher courts.  Therefore serious cases sometimes start in the lower courts for committal hearings and then they are referred to higher courts.  Decisions of the lower courts are made by a single judge.

The intermediate courts deal with more serious criminal offences such as rape for example and with more complex or expensive civil disputes. Civil cases are decided by a judge and jury of six, however parties can waive their right to a jury.  Criminal cases are heard by a judge and a jury of twelve.

The Supreme Courts deal with major civil cases and serious criminal cases like murder. The Supreme Courts have a trial division and an appeal division. The appeal division hears appeals from the lower state courts and the trial divisions of the Supreme Courts.

 

 

 

2. The main Federal Courts are the:

1. Federal Circuit and Family Court of Australia[1]
2. Federal Court of Australia
3. High Court of Australia.

Federal judges and magistrates are appointed by the government of the day.

The Australian Constitution does not set out specific qualifications required by federal judges and magistrates. However, laws made by the Commonwealth Parliament provide that, to be appointed as a federal judge, a person must have been a legal practitioner for at least five years or be a judge of another court. To be appointed as a federal magistrate, a person must have been a legal practitioner for at least five years. To be appointed as a judge of the Family Court of Australia, a person must also be suitable to deal with family law matters by reason of training, experience and personality.

All federal judges and magistrates are appointed to the age of 70. The Australian Constitution provides that a federal judge or magistrate can only be removed from office on the ground of proved misbehaviour or incapacity, on an address from both the House of Representatives and the Senate in the same session. The Australian Constitution provides that the remuneration of a federal judge or magistrate cannot be reduced while the person holds office. These guarantees of tenure and remuneration assist in securing judicial independence.

 

3. The High Court

The High Court is also the final court of appeal within Australia in all other types of cases, including those dealing with purely State matters such as the interpretation of State criminal laws.

The Court has a Chief Justice and six other judges.

One of the High Court’s principal functions is to decide disputes about the meaning of the Constitution. For example, if the validity of an Act passed by the Commonwealth Parliament is challenged, the High Court is responsible for ultimately determining whether the Act is within the legislative powers of the Commonwealth.

The High Court has two types of jurisdiction: original and appellate.

Original jurisdiction is conferred by section 75 of the Constitution in respect of the following matters:

• matters arising under any treaty
• matters affecting consuls or other representatives of other countries
• matters in which the Commonwealth of Australia, or a person suing or being sued on behalf of the Commonwealth of Australia, is a party
• matters between States, or between residents of different States, or between a State and a resident of another State, and matters in which a writ of mandamus or prohibition – or an injunction is sought against an officer of the Commonwealth, including a judge.

If there is a dispute on whether federal elections were held properly or not, the High Court is able to hear these cases.

Section 73 of the Constitution confers appellate jurisdiction on the High Court to hear appeals from decisions of:

• the High Court in its original jurisdiction;
• Federal courts
• other courts exercising federal jurisdiction, and
• State Supreme Courts.

In considering whether to grant an application for leave to appeal from a judgment, the High Court may have regard to any matters that it considers relevant, but it is required to have regard to whether the application before it:

• involves a question of law that is of public importance, or upon which there are differences of opinion within, or among, different courts, or
• should be considered by the High Court in the interests of the administration of justice.

 

 

4. Circuit Courts

In regional and remote regions of Australia a visiting court system operates to provide court services across the continent.  The visiting courts are known as Circuit Courts and they include a range of federal and state and territory courts. For example, the Federal Circuit and Family Court of Australia operates on circuit as do the intermediate or District courts and the Supreme courts.  The Indigenous courts such as the Koori Court in Victoria also operate on circuit.  While the hearing of courts such as the Supreme Court may be infrequent in regional and remote areas, it means that people in these regions have some access to court services in their area.