Australia, officially known as the Commonwealth of Australia, was inhabited by Aboriginal and Indigenous peoples for over 60,000 years. Although there is evidence of Dutch exploration dating to 1606, there were no European settlements until 1770 when James Cook led a British expedition and docked at the southeastern shores of Australia. Cook explored the interior and claimed the east coast of the continent for Britain, naming it New South Wales. At the time, Britain was sending convicted criminals to the American colonies to ease overcrowding in its prisons. After the Revolutionary War, Britain needed another option and turned to Australia to be its new penal colony. The first fleet of British convicts arrived in 1788, settling what became the capital city of Sydney. Convicts were employed either with the government or by private employers and many were eventually offered their liberty. With a growing population and the use of land grants, a robust economy developed based on farming, cattle, whaling, and fishing. By the late 19th century, Britain had six independent and self-governing colonies on the continent.
In 1891, delegates from the colonies gathered for the National Australasian Convention to discuss the creation of a united and more autonomous government. The British approved the creation of the Commonwealth of Australia in 1901 as a dominion within the British Empire. In 1931, the British recognized Australia’s de facto independence and in 1986 the Australia Act formalized its legal sovereignty and severed ties to the Privy Council.
Located between the Pacific and Indian Oceans, Australia is both a country and a continent. Though the world’s sixth-largest country by land area, Australia has a relatively small population of about 26 million. With much of the country’s interior uninhabitable desert, most Australians live along the coastlines. Western and Indigenous traditions have shaped the nation’s distinctive cultural identity.
Legal System
Australia has a common law legal system and a federal governmental structure. The Constitution distributes powers between the Commonwealth (federal government) and six sovereign states: New South Wales, Queensland, South Australia, Tasmania, Victoria, and Western Australia. Three self-governing territories - the Australian Capital Territory, Northern Territory, and Norfolk Island - have their own legislative and judicial systems that operate under federal oversight.
Sources of Law
The Constitution provides the foundation for the Australia’s legal framework. Federal and state parliaments have authority to enact legislation; federal law applies in the states and state laws apply within their respective jurisdictions. Government departments and administrative agencies have authority to make regulations, referred to as delegated legislation, that apply to administrative matters including rules addressing the environment, health, and taxes. Delegated legislation is subject to parliamentary review.
Courts in Australia recognize international law obligations set forth in the treaties and agreements to which Australia is a party. Courts may use international law norms when interpreting domestic legislation or resolving legal questions, especially in areas like human rights and environmental law.
Judicial Structure
Australia has federal, state, and territorial courts. Although the state and federal systems operate independently, appeals from the highest state courts can be taken to the High Court in certain circumstances.
Federal Courts
High Court
The High Court of Australia is the apex court; its decisions are binding throughout the country. It has seven justices, including the Chief Justice, and hears appeals from federal, state, and territorial courts. There is no appeal of right to the High Court; justices review petitions and typically accept cases that pose legal questions of national significance or present inconsistent rulings by lower appellate courts. The High Court also has discretion to sit as a court of first instance. Cases involving complex or significant legal issues are heard by all seven justices; appeals from state courts may be heard by a panel of two justices or a single justice. Though based in Canberra, the High Court holds sessions in major cities including Sydney, Melbourne, Brisbane, and Perth to expand public access and national visibility.
Federal Court
The Federal Court of Australia hears first instance civil disputes arising under federal law as well as federal criminal cases such as corporate crimes, white-collar fraud, and organized crime. It also has first-instance jurisdiction over civil and administrative matters including commercial, tax, and intellectual property litigation. The Federal Court takes appeals from certain administrative tribunals, such as the Administrative Appeals Tribunal. Appeals from a first instance decision by a Federal Court judge are reviewed by a different Federal Court judge or, if the judge deems appropriate, a panel of three Federal Court judges.
Family Court
The Family Court of Australia adjudicates family law cases, including divorce, custody, and property disputes, that involve international child abduction, substantial assets, or serious allegations of abuse. State courts hear less complex and uncontested family law matters. The Family Court hears appeals from decisions issued by the state courts and family law magistrates.
State and Territory Courts
Each state and territory has an independent court system with a hierarchy that usually includes supreme, intermediate, and magistrates courts. State courts primarily handle matters arising under state law; however, some laws confer concurrent jurisdiction in both the federal and state courts. If a case raises a significant question of federal law, the parties of the judge may remove the case to a federal court.
Supreme Courts
Although state and territorial supreme courts have unlimited first instance jurisdiction, they usually reserve this authority for high value civil claims, complex commercial disputes, injunctions, and cases involving murder, treason, terrorism, and major drug trafficking. The supreme courts hear appeals from the Intermediate Courts, Magistrates Courts, and administrative bodies.
The Intermediate Courts
The intermediate (District/County Courts) have first instance jurisdiction over felonies except for those heard by the supreme courts such as murder and treason. Civil jurisdiction extends to cases involving sums in excess of $100,000.
Magistrates Courts
The Magistrates Courts hear minor criminal offences, civil disputes of lower value, and committal hearings (preliminary proceedings to assess whether there is enough evidence to proceed to trial). Magistrates Courts also have jurisdiction over domestic violence orders, traffic violations, and small civil claims.
Judicial Selection and Tenure
Federal
Australia’s Attorney General and the Cabinet present nominees for the High Court, Federal Court, and Family Court to the Governor General, the representative of Australia’s monarchy. Before making a recommendation, the Attorney General consults with its state counterparts to vet candidates. The Governor General considers nominees through the Federal Executive Council, an administrative body that ratifies Cabinet decisions. The Council is composed of all ministers and parliamentary secretaries. The Governor General formally appoints accepted candidates.
Appointees must be legal practitioners in Australia with at least five years of legal practice. High Court appointees are typically senior barristers or sitting judges with decades of legal experience.
Federal judges have a mandatory retirement age of 70. Australia eliminated life tenure for federal judges through a constitutional referendum in 1977. The referendum was overwhelmingly approved by voters.
State and Territory
In the states and territories, judges are selected by the national Cabinet on the advice of the Attorney General; they are formally appointed by the state’s Governor. Some states have introduced reforms to improve transparency in the judicial selection process. For example, in Victoria, judicial vacancies are advertised. Candidates are reviewed based upon criteria set forth in the Framework of Judicial Abilities and Qualities for Victorian Judicial Officers developed by the Judicial College of Victoria in 2008. As is the case for federal judicial nominees, candidates are drawn from experienced legal professionals.
Most states and territories also have a mandatory judicial retirement age of 70. However, some, including New South Wales and Victoria, have a mandatory retirement age of 72.
Magistrate/Judge
Australia distinguishes between ‘judges’ and ‘magistrates.’ Magistrates sit in the local, magistrates’ courts. Their authority is more limited than that of a judge. Although the cases magistrates hear are less complex, the number of cases a magistrate typically hears in a day is larger than those heard by judges. Judges sit in the intermediate, supreme, and federal courts and may preside over jury trials. The eligibility requirements and appointment process are the same for magistrates and judges.
Judicial Administration
Although Australia’s Attorney General Department oversees the judicial budget process for all the country’s courts, judicial administration is decentralized. On the federal level, each court is responsible for its own administrative needs including technology, staff, and case distribution. For the Federal Court of Australia, the Chief Justice serves as the head of judicial administration and is assisted by the Principal Registrar. The Commonwealth Courts Corporate Services is part of the Federal Court of Australia and is responsible for shared administrative services in the federal judiciary including IT, human resources, and finances. Some state judiciaries have independent entities to oversee judicial administration such as the South Australia Courts Administration Authority.
Judicial Conduct and Discipline
There are federal and state court mechanisms for reviewing judicial conduct and discipline. At the federal level, the Judicial Council was established in 2017 to serve this function. Any person may submit a formal complaint regarding the conduct or capacity (physical/mental) of a federal judge, including allegations of bias, discourtesy, inappropriate behavior, failure to provide a fair hearing, and incorrect application of the law. The Council consists of the Chief Justice of the Australian Capital Territory (ACT) Supreme Court, the Chief Magistrate of the ACT Magistrates Court, an appointed legal practitioner and an appointed member of the community.
Most states and territories have independent judicial commissions or councils. Once a complaint is filed with the designated body, it may order an investigation, initiate disciplinary proceedings, or dismiss the complaint. Some complaints are sent for mediation, while others will be referred directly to the relevant disciplinary tribunal in that jurisdiction. These state-level commissions typically oversee both judicial discipline and judicial performance evaluation.
Judicial Education
The National Judicial College of Australia provides education for federal and state officers. Individual states and territories also have their own judicial education bodies for programs specifically tailored to the needs of their respective jurisdictions, including the Judicial College of Victoria and the Judicial Commission of New South Wales.
Jury Trials
Australia’s constitution guarantees the right to a jury trial at the federal level for the most serious felonies. There are also a limited number of felony jury trials in state district and supreme courts. Federal cases require a unanimous vote by a jury of twelve; some states permit a conviction on the vote of 10 or 11 members of the jury. The accused can elect to forgo a jury trial and have their case heard by a judge. Juries are used in civil cases for a very narrow category of claims such as defamation. The size of a civil jury varies by state and is typically between 6 and 8 jurors. Prospective jurors for criminal and civil cases are selected from electoral rolls.
Indigenous Rights
In recent decades, Australia has made efforts to address the many years of repression and marginalization of its Indigenous communities. In 1992, the High Court recognized that Indigenous Australians have traditional ownership land interests, rights that preceded the arrival of Europeans. This decision led to legislation that codified a framework for recognizing Indigenous title claims to certain lands and water.
In some regions, particularly in remote communities, local legal systems integrate Indigenous customary law and practices. Courts may consider Indigenous customary law, especially in sentencing or land matters, at the discretion of the judge. The use of customary law varies by jurisdiction and is more prominent in the Northern Territory.
Specialized Courts
Australia has specialized courts and tribunals. With procedures tailored to their subject matter and the populations they serve, these courts are designed to improve judicial outcomes by addressing social, psychological, and cultural factors and adopting a more interdisciplinary approach to delivering justice.
Drug Courts
Operating in several states, Drug Courts have created alternatives to traditional sentencing for offenders with substance abuse disorders. They integrate treatment and rehabilitation services with judicial supervision to reduce recidivism and support long-term recovery. Participation is usually voluntary and contingent on the defendant’s agreement to follow a strict treatment plan.
Administrative Review Tribunal
The Administrative Review Tribunal is a federal tribunal that reviews decisions made by all the federal government’s departments, agencies, and ministers. It considers each case on the merits and can consider new evidence. It has the power to affirm the original decision, change it, or render a new decision.
Children's Courts
These courts handle matters involving juvenile offenders and child protection. Cases are typically closed to the public to protect the privacy of the minors. Judges receive specialized training in child psychology and youth justice.
Environmental Courts
These courts review planning, land use, and environmental protection matters. Cases often involve appeals from local councils against government agencies.
