roles + powers of the high court

purpose of chapter 3 (6)

creates federal judiciary

vests JP within the HC

specifies exclusive power of cwth to create new federal courts

entrenches independence of the judiciary

defines judicial powers (i.e. its jurisdictions)

provides cxal protection (trial by jury for indictable offences)

judicial autonomy

judiciary doesn’t have democratic authority but does have power + authority

comes from

• the cx

• Judiciary Act (1903) → sets out legal framework

• common law

• maxims of interpretation

• accountability through appeals

• traditions + heritage

is inferior to legislative power (prlt can override everything except cxal interpretation)

respected + trusted due to its independence + neutrality

functions of s71 (3)

1. creates the HC

2. enables creation of federal court hierarchy

3. permits cross-vesting of judicial power

creation of the HC and other FCs

the HC

• federal power vested in the “Federal Supreme Court”

other FCs

• creates a federal court hierarchy

• AKA C3 courts

• more efficient → lower courts for matters of lower importance

• provides avenue for appeal

• provides a hierarchy in which the doctrine can operate

cross vesting

allows HC to vest federal powers to non-federal courts

lowers cost of operating multiple courts in many jurisdictions + duplications of legal skills + personelle

gives state + territory courts power to hear federal cases

created by Jurisdiction of Courts (Cross Vesting) Act (1987)

commonly used until the 70s before cwth began to create fed court hierarchy

s72

achieves SoP + IoJ by separating powers to appoint (s72i) and remove (s72ii) judges

protects HC judges pay (s72iii)

ensures involvement of 2 other branches of govt in appointment + removal of judges → ensures IoJ

“proved misbehaviour or incapacity” → no political dismissals, vagueness also encourages debate

altered in 1977 to make max judge age 70

roles + powers of the HC

created through jurisdiction

“where the law speaks”

defines the roles + powers of the HC

a court’s power depends on the extent of its jurisdiction

• geographical authority

• legal jurisdiction

• rank in the court hierarchy

HC jurisdiction

geographical → whole of Aus

legal → cx, treaties etc. (ss73, 75, 76)

appeals → final court @ state + federal levels

FC jurisdiction

geographical → whole of Aus

legal → both general + specific

hierarchy →

• bound by HC’s decisions (oversees fed tribunals e.g. Aus Competitions Tribunals)

• federal magistrates court sits below FCs (divides federal civil law disputes of family property)

s73

HC appellate jurisdiction

can hear appeals on all civil/criminal.administrative/other matters from lower courts in fed + state hierarchies

special leave to appeal has many ts + cs

conditions of SLtA

parliamentary role

• Judiciary Act 1903 specifies circumstances of SLtA

• SLtA gives HC power to decide what cases it shall hear → lower case loan, no automatic right to appeal to the HC

HC will only grant SLtA if:

• miscarriage of justice

• ? of the law that creates the possibility to develop the Cx/precedent

• conflict between courts

if HC rejects application, case ends + previous decision stands

HC is the FINAL court of appeal, not general like the WA Court of Appeal

s75

HC original jurisdiction

specifies OJ over

• treaties w other countries + international orgs

• cases w states as parties

• cases between diff govts of the Aus federation (inter se cases)

• writs of mandamus/prohibitions/injunctions (remedies HC can impose to right wrongs of the exec.)

s76

original jurisdiction

permits powers to be expanded by prlt as it sees fit

power to interp cx (as per Judiciary Act 1903)

roles of the HC (2)

determining cxal cases

hearing appeals

determining cxal cases

disputes typically centred on wording + implications of the Cx

decisions can affect the leg scope + exec power as well as the nature of rights + judicial power

cannot adjudicate WCs but can make interps based off of implications inherent in WS (e.g. Williams v Cwth 2012)