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Our judiciary: 23. Australian courts

23.1 What role do the courts play in Australian governance?

Australia's system of courts is the third arm of Australian governance and is known as the Judiciary.

The role of the Judiciary is to:

  • apply the law as made by the Parliament
  • where necessary, interpret the laws made by Parliament
  • ensure that laws comply with the Australian Constitution
  • review the decisions of the executive arm of governance (ministers, public servants and tribunals).

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23.2 Do the police belong to the Judiciary?

The police and corrective services (jails) are not part of the Judiciary. Both are elements of the Executive because they execute the laws made by Parliament. They are subject to review by the Judiciary.

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23.3 What is the judicial hierarchy?

Australia has a federal judicial system made up of three judicial levels:

  • The High Court of Australia at the apex. It is the final court of appeal from federal and state courts. In certain very important matters, the High Court can also be the court in which a matter is commenced.
  • The Federal Court of Australia (exercising jurisdiction in gerneral federal law) and the Family Court of Australia (exercising jurisdiction in family law).
  • The Federal Magistrates Court (undertaking less complex family and federal law work).

In addition most Australian states and territories have three judicial levels within their hierarchies. The names of these courts vary across Australia , however most states and territories have:

  • a superior court which is the supreme court of the state or territory
  • an intermediate court known as county courts or district courts*. There are no intermediate courts in Tasmania and the Australian Capital Territory.
  • a court of first instance known as courts of summary jurisdiction, local courts, magistrates' courts, and courts of petty sessions*.

* (names vary across Australia).

23.4 Why is a hierarchy important?

The hierarchy of courts is an essential part of our justice system. The court hierarchy allows:

  • lower courts to follow precedents made by higher courts. This ensures consistency while still allowing the law to be modified over time
  • for appeals to higher courts
  • specialisation in the hearing of particular cases and interpretation of particular statutes.

23.5 Who appoints judges and magistrates?

The Governor-General and state governors, as the Queen's representatives appoint judges and magistrates to all Australian courts. This is done on the advice of the respective state and federal governments of the day.

Judges and magistrates are drawn from the body of practising lawyers and appointments last until the judge reaches the age of 70 years.

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