High Court of Australia
The highest court in Australia is the High Court of Australia. It is the highest court of both the federal court system and the state and territory court systems. The High Court was established under section 71 of the Australian Constitution, as a consequence of the federation of the six Australian colonies into the Commonwealth of Australia. The High Court is based in Canberra, but occasionally sits in state and territory capital cities.
The High Court was established in 1903, originally with three Justices, and held its first sitting in Melbourne. Since 1912, the High Court has consisted of a Chief Justice and six other Justices, who are appointed by the Governor-General on the advice of Cabinet.
As the highest court in Australia, the role of the High Court is to interpret and to enforce the Commonwealth Constitution, to develop a coherent body of common law for application across Australia, and generally to supervise the administration of justice in the courts.
The Judiciary Act 1903 (Cth) gives the High Court original jurisdiction in all matters arising under the Constitution or involving its interpretation, but this jurisdiction is not exclusive. Constitutional questions can be decided in any court, with the High Court being the ultimate court of appeal on constitutional questions and other questions of law.
The Commonwealth Constitution also allows the Commonwealth Parliament to confer original jurisdiction on the High Court in four classes of cases:
- matters arising under the Constitution or involving its interpretation
- matters arising under any laws made by the Commonwealth Parliament
- matters of admiralty and maritime jurisdiction
- matters relating to the same subject-matter claimed under the laws of different states.
The High Court has original jurisdiction as the Court of Disputed Returns for Commonwealth elections, which means any legal challenges involving Commonwealth elections begin in the High Court.
The High Court is the final court of appeal for Australia in state as well as federal matters. Until 1986, parties to a case before the High Court could appeal to the Judicial Committee of the Privy Council in the United Kingdom, a court that hears appeals from courts in a number of Commonwealth countries. Appeals to the Privy Council were abolished by the Australia Act 1986 of the Commonwealth, and there is now no appeal from a decision of the High Court.
The appellate jurisdiction of the High Court is established by section 73 of the Commonwealth Constitution. The High Court’s appellate jurisdiction is comprehensive. Cases appealed to the High Court are usually heard by three or more judges. Appeals to the High Court require special leave of the Court, which means that the Court will only hear the appeal if it agrees to do so. Applications for special leave to appeal are usually heard by two High Court judges.
The High Court will generally only deal with the legal issues raised in an appeal. The High Court generally sends a case to a lower court if it is necessary for any factual issues to be determined, even if the matter will then be returned to the High Court for it to deal with the legal issues. For more detail see Appeals .
The Federal Court was established in 1976 by the Federal Court of Australia Act 1976 as a court exercising jurisdiction under particular Commonwealth laws. It replaced two specialist federal courts (the Federal Court of Bankruptcy and the Australian Industrial Court) and relieved some of the workload of the High Court.
Since it was established, the Federal Court has been given further original jurisdiction relating to areas such as administrative law, taxation and intellectual property, and admiralty. The Federal Court currently deals with over 120 federal Acts of Parliament. The Court operates two divisions – a General Division and a Fair Work Division (Federal Court of Australia Act 1976, section 13): see Fair Work Commission below. The Court is able to hear cases in relation to human rights, bankruptcy, native title, workplace relations, trade practices, intellectual property and consumer protection. It also has the power to review some federal government decisions in areas such as social security, immigration and taxation. The Federal Court does not have a criminal jurisdiction. The Federal Court sits in all capital cities and elsewhere in Australia when necessary.
The Federal Court exercises appellate jurisdiction over decisions of single judges of the Court, decisions of the Supreme Courts of the ACT and Norfolk Island, decisions of the Federal Circuit Court in non-family law matters and certain decisions of state Supreme Courts exercising federal jurisdiction. For further information see Appeals.
Federal Circuit and Family Court of Australia
The Federal Circuit and Family Court of Australia was established by the Federal Circuit and Family Court of Australia Act 2021, and brought together the Family Court of Australia and the Federal Circuit Court of Australia.
These reforms received Royal Assent on 1 March 2021 and commenced on 1 September 2021.
Division 1 - Family law
Division 1 of the Federal Circuit and Family Court of Australia deals with family law matters.
The Court’s family law jurisdiction includes applications for divorce, applications for spousal maintenance, property and financial disputes, parenting orders, enforcement of orders, location and recovery orders, warrants for the apprehension or detention of a child, and determination of parentage.
The original Family Court of Australia was established in 1976 by the Family Law Act 1975 of the Commonwealth. The Family Court has jurisdiction over matters relating to divorce, dividing the property of divorcing couples, and since March 2009, the property of separating de facto couples as well. The Family Court also makes orders for maintenance of a spouse or child, and orders as to the residence of a child, contact by the parents and other persons with a child. The Family Court’s jurisdiction is over all children (whether of a marriage or not), and in making decisions, the Court is required to give priority to the best interests of the child. There are restrictions on publishing the names of parties to proceedings (Family Law Act 1975, section 121).
The function of the Family Court has changed through a series of reforms. The establishment of Family Relationship Centres have meant that the Family Court is now focused on the most complex family law disputes. Alternative dispute resolution and counselling are encouraged by the Family Court. These are services that are accessed outside the Family Court. The dispute resolution provisions of the Family Law Rules 2004 impose requirements for dispute resolution that must be complied with before an application can be made to the Family Court for a parenting order.
The most recent reform was the establishment of the Federal Circuit and Family Court of Australia in 2021. The reforms were designed to help Australian families resolve their disputes faster by improving the efficiency of the family law system, reducing the backlog of matters before the family law courts, and driving faster, cheaper and more consistent dispute resolution. The aims were to:
- establish a single point of entry for federal family law matters
- establish a single set of court rules, forms, practices, and procedures
- enhance judicial appointment criteria
- streamline the family law appeals pathway.
See more about the recent reform.
Western Australia has different arrangements in relation to the operation of the Family Court. Section 41 of the Family Law Act 1975 allows for family law jurisdiction to be vested in state family courts, if an agreement is made between a state government and the Australian government. Western Australia is the only state to have entered into such an agreement so that family law jurisdiction is exercised by the Family Court of Western Australia and the Magistrates Court of Western Australia, rather than the Family Court of Australia or the Federal Circuit Court.
Division 2 - Family law, migration and general federal law
Division 2 of the Federal Circuit and Family Court of Australia deals with family law, migration and general federal law matters.
The Court can review some decisions made under the Migration Act 1958. These include some decisions of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, the Administrative Appeals Tribunal, and the Immigration Assessment Authority.
The Court’s general federal law jurisdiction includes administrative law, admiralty law, bankruptcy, consumer law (formerly trade practices), human rights, industrial, intellectual property and privacy. The Court shares this jurisdiction with the Federal Court and in some cases state courts.
The Federal Circuit Court does not deal with federal criminal matters.
Courts are located or travel on circuit throughout Australia - find court locations.
Fair Work Commission
The Fair Work Commission, Australia’s national workplace relations tribunal, began originally as Fair Work Australia on 1 July 2009, before being renamed in 2012. Specialist Fair Work Divisions were created in both the Federal Court of Australia and the Federal Circuit Court of Australia to handle workplace relations matters. These had previously been handled by the Australian Industrial Relations Commission which operated from 1988 until 2009.
The Fair Work Divisions hear matters that arise under workplace relations laws. The Courts can make any orders considered appropriate to remedy a contravention, including injunctions, rather than just imposing a penalty. State and territory courts have retained their existing jurisdiction and powers.