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The court system in Australia is what is known as a 'common law' system. In general, a common law system has trial courts, courts in which cases can be heard on appeal, ('appellate courts') and a Supreme or High Court. The lower courts are involved in the day-to-day hearing of cases, such as minor criminal offences like shoplifting, disputes between neighbours, or drug possession. The higher courts generally hear matters of more importance or severity, and the cases that make it all the way to the High Court are ones that have some importance as a matter of law, such as whether Native Title exists in Australia or whether government legislation banning certain political parties is valid under the Commonwealth Constitution.

Courts in Australia are divided into federal and State jurisdictions. Federal courts have jurisdiction over law made by the Commonwealth Government of Australia (federal law).

The Federal Court system

The High Court is the highest court in Australia, and can hear appeals from all other courts. Appeals to the High Court are given on special request to important or significant cases. It can also hear very important matters for the first time, and can review the Australian Constitution. Before the Australia Act (Cth) was passed in 1986 the High Court was not the last stop on a case's journey. If you were unsatisfied with the decision made by the High Court you could appeal to the Privy Council in the United Kingdom. There are seven judges on the High Court, who are appointed by the federal government. Since 1986, the Full Court of the High Court, with (as many as) all seven judges deciding a case, is the ultimate appeal court for Australia.

The Federal Court is bound by decisions of the High Court. It sits in all the capital cities of Australia and occasionally elsewhere in Australia. The Federal Court is made up of several judges and headed by a Chief Justice. It has a substantial and diverse jurisdiction over cases heard directly and on appeal from lower courts. It is also responsible for overseeing several federal tribunals such as the Australian Competition Tribunal and the Federal Police Disciplinary Tribunal. A 'Full Court' of the Federal Court consists of anywhere between three and five judges. The Full Court hears appeals from a single justice of the Federal Court.

The Family Court, which was established in 1975 as a specialist family law court, has jurisdiction over matters such as marriage, divorce and the custody of children. It sits at the same level as the Federal Court, and appeals from the Full Court of the Family Court go directly to the High Court.

In 1999, so as to ease the large burden of cases on the federal and family courts, the Federal Magistrates Court of Australia was established. The Federal Magistrates Court sits below the Federal Court, and most of the decisions of the single judges and the Full Court of the Federal and Family Courts are binding on Federal Magistrates. In some cases, where the Federal or Family Court judges are deciding on a case for the first time (that is, not on appeal), the decision is not strictly binding on the lower courts but will usually be followed.

The (Commonwealth) Administrative Appeals Tribunal (AAT) was established in 1975, and is not in strict terms a court, in that it does not exercise federal judicial power under the Australian Constitution. Rather, it is an 'administrative' method of review, which operates as an informal court. The AAT hears appeals against administrative decisions of the Commonwealth Government and its departments. An example of this might be an appeal brought by an Internet company whose websites have been censored by the Australian Broadcasting Authority. People who wish to appeal decisions made by the AAT go to the Federal Court, or the Federal Magistrates Court.

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State and Territory courts

Each State has its own court hierarchy. The jurisdictions of each court vary from State to State.

At the top of each State hierarchy is a Supreme Court. Supreme courts have unlimited civil jurisdiction and handle the most serious criminal matters. In New South Wales (NSW), the Supreme Court consists of 47 judges and four associate judges. The court is divided into a common law division which hears serious criminal matters, civil disputes and administrative law cases; and an equity division which deals with matters involving claims for more than just monetary compensation (an example of an equity matter might be a claim to have rights to property declared and enforced, such as a declaration that you own the land on which your house is built).

Also included within the NSW Supreme Court is the Court of Appeal, which is the highest civil court in the State. It hears appeals from civil proceedings before the Supreme Court, the District Court, the Land and Environment Court; and some tribunals. Similarly, the Court of Criminal Appeal is the State's highest court for the hearing of criminal matters.

At this level of the NSW hierarchy we also find the Land and Environment Court, a specialist environmental and planning court. There is also the Children's Court, which hears cases involving people under 18. An exception to this is where a child is charged with murder - in this case the main hearing is held in the Supreme Court.

State supreme courts can also sometimes hear matters from the federal jurisdiction under what is known as a 'cross-vesting power'.

Most of the States in Australia have two further levels of courts. District (County) Courts handle most criminal trials for indictable offences, such as assault or robbery, as well as civil matters. A District Court is also the first stop for appeals from the courts below.

The Magistrates Court (or Local Court) handles minor or 'summary' matters, such as drink-driving or shoplifting, as well as smaller civil matters where less than $40000 is at stake. A special court, known as the Drug Court, helps drug-addicted criminals avoid imprisonment as long as they agree to strict conditions (such as staying free of drugs).

The Coroner's Court is outside the normal hierarchy. The Coroner's Court does not settle disputes between parties. It looks into unexplained deaths and other events (such as fires).

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How judges decide: precedents and binding authorities

The court hierarchy has a strong influence on the way a judge decides an individual case. All Australian courts work on a system of 'precedents', which are decisions made in previous cases that the judge must follow. Precedents from cases which have been decided in lower courts can be overturned by judges in higher or 'superior' courts, but cases decided in higher courts are considered 'binding authorities', that is, decisions that must be followed.

The system of precedents is founded on a doctrine called stare decisis. This a Latin phrase which means 'to stand by things decided', and applies to all courts, obliging them to consider decisions made by previous judges as not only precedents but in some cases 'binding authorities'.

The principle stare decisis is crucial in maintaining consistency in the law. For example, a case might come before the Supreme Court of your State where a couple bought a plot of waterfront land based on a real estate brochure which claimed to offer all the details of the land but contained incorrect information on where the high tide mark of the land was located. After buying the land the couple was unable to build a swimming pool where they had planned to build it due to this incorrect information. The Supreme Court judge might decide that the brochure contained adequate disclaimers about the accuracy of its information, and that it was the responsibility of the couple to research all the correct details of the land. The real estate agent, therefore, would not be acting in contravention of s 52 of the Trade Practices Act 1974 (Cth). That section declares that businesses cannot engage in what is called 'misleading and deceptive conduct'.

After the initial process, and appeals, the final appeal is to the High Court. The High Court judges might decide that the disclaimer on the brochure is not enough to excuse the lack of correct information provided by the real estate agent. Therefore, the agent is in fact guilty of misleading and deceptive conduct. A dispute like this one was decided in the case Butcher v Lachlan Elder Realty Pty Limited [2004] HCA 60 (2 December 2004).

This would be an example of the superior court (the High Court) overturning a precedent set by the lower court. As the High Court is the highest legal authority in the land, this case is then considered a binding authority on all lower courts. If any similar cases involving real estate brochures (or, in fact, involving disclaimers of any kind) come before lower courts, they are 'bound' to follow the High Court decision. It should be noted that in many cases the higher courts will follow the reasoning of the lower courts and come to the same decision as the judge in the lower court.

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1. The High Court can hear appeals from:

Federal courts only.

All other courts.

State courts only.

Courts dealing with international and constitutional law only.


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