Courts and Statute Law

Court Hierarchy
Australia has two overlapping jurisdictions of law: state and federal. As a result, there are separate state and federal jurisdictions, each of which has its own court structure.

Family Court of Australia + Federal Court of Australia = Federal Circuit and Family Court of Australia

Lower Courts

The Local Court in New South Wales has jurisdiction to deal with the following areas:

• minor criminal and summary offences 

• civil matters with a monetary value of up to $100 000 • committal hearings

• a limited range of family law matters (e.g. property settlements and residence orders for children); for these matters, the Local Court has federal jurisdiction and is essentially part of the Federal Court hierarchy.

Coroner’s Court 

In New South Wales and the Australian Capital Territory, the role of the Coroner’s Court is to ensure that unexplained or suspicious deaths (or suspected deaths), fires and explosions are properly investigated. If necessary, coronial  inquests are carried out and cases are handed to a higher court for trial if the inquest finds evidence of criminal action/s. For example, in March 2015, a visiting Brazilian student Roberto Laudisio Curti died in Sydney after police fired tasers at him 14 times. The coronial inquest recommended that charges be laid against the police officers for using unnecessary and excessive force in the arrest. The matter proceeded to trial, and one of the four police officers involved was found guilty of assault.

If there is enough evidence, the coroner doesn’t run the trial, just refers the matter to a criminal court

Children’s Court

• The Children’s Court in New South Wales (NSW) and the Australian Capital Territory (ACT) handles civil cases related to child protection and care.

• It also deals with criminal cases involving individuals under 18 at the time of the offence.

• In NSW, it can also handle cases where the accused is under 21 but committed the crime while under 18.

Land and Environment Court

• The Land and Environment Court is a specialist court in New South Wales.

• It interprets and enforces environmental law.

• It has a broad jurisdiction covering:

  • Environmental planning (e.g. zoning of parklands).

  • Environmental offences (e.g. illegal pollution or dumping).

  • Appeals against local council decisions.

Intermediate courts

• The District Court of New South Wales handles serious criminal cases.

• Cases range from larceny to manslaughter, sexual assault, and large-scale drug importation.

A judge, and sometimes a jury, will hear cases tried in a District Court. The District Court deals with criminal offences such as: 

• manslaughter, malicious wounding and dangerous driving 

• sexual, physical, verbal assaults

• offences relating to property, including robbery, breaking and entering, larceny and embezzlement 

• importing, supplying or possessing prohibited drugs 

offences involving fraud, including forgery, obtaining money by deception and passing valueless cheques.

• It cannot handle murder, treason, or piracy—these are dealt with by the Supreme Court.

The District Court’s jurisdiction is unlimited in cases of claims for damages for personal injuries arising out of a motor vehicle accident. It also handles civil cases where the amount claimed is below $750 000, or larger amounts if both parties agree. It also has appellate jurisdiction.

Superior courts - Supreme Court of New South Wales

• The Supreme Court is the highest court in the state or territory hierarchy.

• It handles the most serious criminal cases and high-value civil disputes (no monetary limits).

• It hears appeals from lower courts.

• It has jurisdiction over serious indictable offences like murder, manslaughter, attempted murder, kidnapping, major conspiracies, and drug-related crimes.

• It deals with Commonwealth prosecutions for major breaches of corporations law.

• The Supreme Court has no upper limit on monetary damages in civil cases.

• It hears claims for personal injury, professional negligence, breach of contract, defamation, and land possession.

• Most civil cases are decided by a judge alone, but some involve a jury.

• The Supreme Court hears appeals, with the Court of Appeal being the highest state/territory court for civil and criminal matters.

• In NSW, the Court of Criminal Appeal is separate from the Court of Appeal.

• Appeals are usually heard by three judges, but sometimes by two or more than three.

• Decisions are based on the majority view if judges disagree.

• Appeals to the High Court require special permission.

Federal courts - The federal court system has a hierarchy in much the same way as the state court system does.

Federal Circuit and Family Law Court of Australia

• The Federal Circuit Court of Australia was originally the Federal Magistrates Court, established in 1999 and renamed in 2012.

• The title of ‘federal magistrate’ was changed to ‘judge.’

• It was created to ease the workload of the Federal and Family Courts, reducing cost and time for minor federal matters.

• It has jurisdiction over family law (divorce, parenting orders, property division, child support, spousal maintenance), human rights, copyright, bankruptcy, migration, consumer protection, privacy, administrative law, and industrial law.

• It does not handle criminal matters.

• It shares jurisdiction with the Family Court and Federal Court, with cases transferred based on complexity.

• It plays a key role in trade practices, human rights, copyright, industrial law, privacy, and migration.

• It handles over 90% of migration and bankruptcy applications.

• It has addressed cases related to Fair Work Australia, particularly underpayment of workers.

• Federal Circuit and Family Law Court of Australia is a superior federal court handling complex family law cases.

• It was established by the Australian Parliament in 1975.

• It has appellate jurisdiction to hear appeals from federal magistrates or single Family Court judges.

Federal Court of Australia

• The Federal Court of Australia was established by the Federal Court of Australia Act 1976 (Cth).

• It took over some jurisdiction from the High Court and fully absorbed two courts handling industrial matters and bankruptcy.

• It deals with civil disputes under federal law (excluding family law) and some summary criminal offences.

• It is equivalent to state and territory Supreme Courts in the judicial hierarchy.

• It ranks above the Federal Circuit Court and is equal to the Family Court in the federal hierarchy.

• An example case (Nathanson v Minister for Home Affairs [2019] FCA 1709) involved the court dismissing a migration review application due to procedural fairness concerns.

High Court of Australia

• was established in 1901 under Section 71 of the Australian Constitution.

• is the highest court in the Australian judicial system.

• hears appeals from the Federal Court, Family Court, and state/territory Supreme Courts.

• rules on constitutional interpretation and the validity of laws.

• A notable case (Wilkie v Commonwealth; Australian Marriage Equality Ltd v Cormann [2017] HCA 40) upheld the validity of the Australian Marriage Law Postal Survey.

Legal Links 

• The Legal Access Services website was set up to provide legal advice to ordinary Australians. It provides information on the Australian legal system. 

• The NSW Department of Justice has information on its website about the state and federal courts in New South Wales. 

• The ACT Law Courts and Tribunals website provides information on that territory’s courts and tribunals. 

• The Attorney-General’s website has information about the federal legal system and courts.

Review 2.2

1. Outline the need for courts in society. 

2. Explain what ‘court hierarchy’ means. 

3. Identify the highest court in Australia. 

4. Describe the types of cases that are dealt with in the New South Wales District Court. Identify who decides these cases. 

5. Describe the role of the New South Wales Supreme Court. 

6. Explain the importance of the High Court of Australia. 

7. Identify which court would likely hear the following matters: 

   1. a murder trial

   2. an appeal from the New South Wales Supreme Court

   3. a hearing for the offence of using offensive language in public

   4. an investigation into a suspicious death

   5. an armed robbery trial 

   6. the preliminary hearing for a kidnapping case 

   7. a civil dispute between business partners involving $100 million

   8. a case dealing with an aspect of the Australian Constitution.

2.4 Statute Law

Statute law, aka ‘legislation’ or ‘Acts of Parliament’, is the law made by parliament. In Australia, any parliament has the power to make statute law. This means that state, territory and federal governments all have the right to make laws. The Australian Constitution sets out the powers of the state and federal parliaments with respect to making law.

The role and structure of parliament

The legislative process

Passing legislation

• One of parliament’s key functions is passing laws.

• Most laws are introduced by the governing party, usually by ministers.

• A proposed law is called a Bill; if introduced by a non-minister (backbencher), it is a private member’s Bill.

• The law-making process is time-consuming, open to public scrutiny, and influenced by pressure groups and public opinion.

• In bicameral parliaments (like NSW and federal parliament), the process for passing laws is similar.

• The Australian Capital Territory (ACT) has a unicameral parliament, meaning fewer steps in passing laws and no royal assent from the Governor-General.

• Members of parliament consider public opinion due to elections, leading to discussions and revisions of proposed laws.

• To become federal law, a Bill must pass both Houses of Parliament and receive approval from the Governor-General, then it becomes an Act of Parliament.

Delegated legislation - is legislation made by nonparliamentary bodies. It involves ‘less important’ laws that parliament does not have time to draft, consider and pass, and so delegates (passes on) the responsibility to ‘subordinate’ bodies such as government departments or local councils. The Act that authorises a body to make delegated legislation is called an ‘enabling Act’.

Types of delegated legislation include: 

• Regulations – laws made by the Governor-General, state governors or members of the Executive Council 

• Ordinances – laws made for Australian territories (e.g. Norfolk Island and the Australian Antarctic Territory) 

• Rules – legislation made for government departments, usually by the department involved

• By-laws – laws made by local councils, which are restricted to the area governed by that council.

TABLE 2.1 The advantages and disadvantages of delegated legislation