Separation of powers and independence of judges
The power to make laws in Australia is divided between the executive, the parliament and the judiciary. This is known as the separation of powers doctrine and is an essential feature of the Australian system of government.
Under Australia’s Constitution, our judiciary is independent from the other arms of government. The separation of powers doctrine means that in interpreting and applying the law, judicial officers act independently and without interference from the parliament or the executive. The constitutional guarantees of tenure and remuneration assist in securing judicial independence.
Federal judicial officers are appointed by the government of the day and cannot be removed from office except on the grounds of proved misbehavior or incapacity. The remuneration of judicial officers cannot be reduced while the judge holds office.
Australia’s federal courts
Chapter III of the Constitution establishes the High Court of Australia and empowers parliament to create other federal courts and to vest federal judicial power in state and territory courts.
There are four principal federal courts:
- High Court of Australia
- is the highest court and the final court of appeal in Australia
- hears matters involving a dispute about the meaning of the Constitution, as well as final appeals in civil and criminal matters from all courts in Australia
- Federal Court of Australia
- hears matters on a range of different subject matter including bankruptcy, corporations, industrial relations, native title, taxation and trade practices laws, and hears appeals from decisions (except family law decisions) of the Federal Magistrates Court
- Family Court of Australia
- is Australia’s specialist court dealing with family disputes, and hears appeals from decisions in family law matters of the Federal Magistrates Court
- sits in each state and territory except Western Australia, where family law matters are heard by a state court, the Family Court of Western Australia
- Federal Circuit Court of Australia
- on 12 April 2013 the Federal Magistrates Court was renamed the Federal Circuit Court of Australia and the titles of ‘Chief Federal Magistrate’ and ‘Federal Magistrate’ changed to ‘Chief Judge’ and ‘Judge’ respectively
- the court hears less complex disputes in matters under family, administrative, bankruptcy, industrial relations, migration and trade practices laws
Each state and territory has their own laws and court system. State and territory courts fall within the responsibilities of the relevant state or territory Attorney‑General or Minister for Justice.
Role of the Attorney-General’s Department
This department provides advice to government on issues about the federal courts, including:
- the conferral of jurisdiction on courts and related issues
- the role, structure and administration of the federal courts
- court operations and resources
- matters arising under legislation relating to federal courts and judiciary
- judicial and other statutory appointments to federal courts
- terms and conditions applying to federal judicial officers.