How federal courts fit into the system

The short answer

How federal courts fit into the system

Federal courts in Australia exercise the judicial power of the Commonwealth, which is the power to decide disputes according to law. The Constitution creates a High Court of Australia and authorises Parliament to create other federal courts. The High Court is both the ultimate appellate court for all Australian jurisdictions and the court of constitutional interpretation. Parliament has also established the Federal Court of Australia, the Federal Circuit and Family Court of Australia, and other specialist courts. Federal courts are independent of the Parliament and the Executive. Their judges are appointed by the Governor-General on the advice of the government but cannot be removed except by Parliament on grounds of proved misbehaviour or incapacity. Federal courts do not make policy, provide political advice or review the merits of government decisions. They apply the law to the facts of each case and determine whether government action is lawful.

This is a federal system guide. State constitutions, parliaments and local-government laws can allocate comparable functions differently.

The useful question is not only “what is the rule?” but also “who administers it, which document controls it, and when might it change?” That distinction prevents an accurate general explanation from becoming wrong advice in a particular election, chamber or policy setting.

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The constitutional foundation of federal judicial power

Chapter III of the Constitution, which comprises sections 71 to 80, establishes the judicial branch of the Commonwealth. Section 71 vests the judicial power of the Commonwealth in the High Court, in other federal courts created by Parliament, and in state courts invested with federal jurisdiction. The High Court was created directly by the Constitution and began sitting in 1903. Section 72 provides that federal judges are appointed by the Governor-General in Council and hold office until the age of 70. They can be removed only by the Governor-General on an address from both houses of Parliament on the ground of proved misbehaviour or incapacity. This safeguard protects judicial independence. Section 75 defines the High Court's original jurisdiction, including matters arising under any treaty, matters affecting consuls or representatives of other countries, matters in which the Commonwealth is a party, matters between states or between residents of different states, and matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth.

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The High Court of Australia

The High Court is the highest court in the Australian judicial system. It consists of a Chief Justice and six other justices. Its primary functions are to interpret and apply the law of Australia, to decide cases of special leave application that raise questions of general public importance, and to hear appeals from the Federal Court, the Federal Circuit and Family Court, and state and territory supreme courts. The High Court also has original jurisdiction in matters concerning the interpretation of the Constitution, disputes between the Commonwealth and the states, and certain matters involving treaties and international law. Special leave to appeal is required for most appeals. The Court grants leave only when a case raises an important question of law or where the interests of the administration of justice require the Court's consideration. The High Court sits in Canberra and, when exercising its appellate jurisdiction, generally sits as a full bench of five or seven justices.

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Other federal courts

Parliament has created several other federal courts under section 71 of the Constitution. The Federal Court of Australia has broad jurisdiction under more than 200 federal Acts and hears matters including administrative law, bankruptcy, corporations law, industrial law, intellectual property, native title, taxation and trade practices. The Federal Circuit and Family Court of Australia handles family law matters and a range of general federal law matters of lower complexity. The court was created in 2021 by merging the former Family Court of Australia and the former Federal Circuit Court. There are also specialist tribunals that exercise quasi-judicial powers, including the Administrative Appeals Tribunal, although tribunals are not Chapter III courts and their members do not have the same security of tenure as federal judges.

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What federal courts can and cannot do

Federal courts can hear and determine legal disputes within their jurisdiction, interpret legislation, declare the legal meaning and effect of government actions, and strike down legislation that is unconstitutional or executive action that is unlawful. They can award remedies including damages, injunctions and declarations. However, federal courts cannot give advisory opinions because there must be a real legal controversy between parties. They cannot initiate investigations or inquiries on their own motion. They cannot make policy or rewrite legislation. Their role is to apply the law as enacted by Parliament. They cannot review the political merits of a government decision. The separation of judicial power means courts review lawfulness but not the policy wisdom of executive action. The High Court has consistently held that judicial power cannot be vested in bodies that are not courts under Chapter III.

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The separation of powers and the courts

Australia's Constitution establishes a separation of powers between the legislature, the executive and the judiciary, though it is not as strict as the separation in the United States Constitution because Australia's is a Westminster-style system where ministers sit in Parliament. The key structural protection for judicial independence is the tenure and remuneration guarantee in section 72. Judges are appointed until age 70 and their remuneration cannot be reduced during their term. This protects them from political pressure when deciding cases against the government of the day. The High Court has developed a robust body of case law on the separation of judicial power, including the principle that the Parliament cannot direct a court as to the result of a case and cannot vest non-judicial bodies with the power to make binding determinations of criminal guilt.

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State courts and federal jurisdiction

The Constitution allows the Commonwealth Parliament to invest state courts with federal jurisdiction under section 77. This means that state and territory supreme courts, district and county courts, and magistrates and local courts can exercise federal judicial power and apply Commonwealth law. In practice, most federal criminal prosecutions are heard in state courts exercising federal jurisdiction. The High Court can hear appeals from state supreme courts, creating a single integrated judicial hierarchy for Australia. State courts exercising federal jurisdiction are subject to the same Chapter III constraints as federal courts when dealing with Commonwealth matters. State judges are appointed under state law and their tenure is protected by state legislation rather than section 72 of the Constitution.

Common questions

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