court system

Australian courts are in a hierarchy, and as successive appeals are made against a lower court decision, a litigant moves up the hierarchy, and in the end may reach the highest court for Australian law; the High Court of Australia.

There are three main reasons for having a hierarchy of courts:

  1. ADMINISTRATIVE EFFICIENCY: The hierarchy system functions as a filter, with a large number of lower level courts dealing with the bulk of minor usually not contested cases. Therefore, only a small number of cases, those raising contentious public policy issues reach the higher courts. However, constitutional cases are heard from the outset by the High Court.

  1. PRECEDENT: The more senior and hopefully more talented judges in the higher courts are better able to decide what principles should become binding precedents. If all the courts were of the same importance, there would be no certainty as to which principles of law should be followed. Inferior courts are bound by the decisions of a higher appeal court. The courts in ACT’s legal system (and in other states and territories) are structured in order of seniority or importance. There is only one superior court in each state, the Supreme Court, where decisions and judgments made are noted and used as precedents (examples) for future cases. All other courts are known as inferior courts.


Blackburn J, a judge of the Federal Court could not overturn the legal fiction of terra nullius (empty land) in Millirpum because he was bound by acceptance in a number of High Curt cases. It was not until Mabo (a High Court case) that the fiction was eventually overturned.

  1. APPEAL SYSTEM: If a party is dissatisfied with a result (arising from a wrong principle of law being applied or an extremely unreasonable finding of fact), then that party may appeal to have the case reconsidered by a higher court. If all courts were of equal standing, and a second court hearing a case on appeal gave a different verdict to the first instance court, there would be no basis to decide which decision is the superior one.

The court system in Australia is divided between the Commonwealth and the States/Territories. To enable a more efficient and flexible system, cross vesting is allowed (Jurisdiction of Courts (Cross Vesting) Act 1987). This enables the major courts of each jurisdiction (Commonwealth, States and Territories) to deal with most Commonwealth matters.

Although the states’ court system are broadly similar, and perform much the same functions they have different names. A number of courts, and tribunals operate independently from the Commonwealth legal system, even though because of the cross vesting legislation they may hear and decide some cases, (eg taxation) that comes under Commonwealth legislation. Most State courts have what is known as a general jurisdiction that means they will hear any case providing it involves some state law.

TRIBUNALS: Tribunals or boards are limited to a special jurisdiction and only hear matters involving a limited and usually specialist area of state/territory law. Tribunals are part of what is known as Alternative Dispute Resolution (ADR) which is the used of non “legal” bodies to try to resolve disputes because it gets into the court system.


The Courts in the ACT dealing with general law are:

Civil Registry

Coroners Court

Juvenile Court

Magistrates Court

Small Claims Court

Supreme Court

High Court

Generally, the Supreme Courts in the various states and the ACT are only bound by decisions of the High Court. However, the Supreme Court of the ACT is not bound for example, by a High Court decision made on appeal from the Supreme Court of Queensland. This is because the law in the two states may be different. However, it would be most unusual for a Supreme Court not to follow a High court precedent, and it would do so only if there was a clear difference between the laws of the state and the ACT.

Single judges of the Supreme Court are bound by decisions of the Full Court and the High Court. The Full Court may overturn its own previous decision, but is bound by previous High Court decisions. The High Court is not bound by any precedents.

Although the High Court is not bound by the Supreme Court, it will usually follow Supreme Court precedents, unless it thinks they are wrong. Similarly, judges in the ACT will usually follow decisions of judges in Victoria or England or even Massachusetts if they are considered to be good and relevant law. The closer the legal systems and laws in the two jurisdictions, the more likely it is that a nonbinding (or persuasive) authority will be followed.

Courts are reluctant to overturn long established precedents, on the basis that people have been regulating their affairs on the basis of such decisions for a long time, and it would be unfair to change the rules in the middle of the game. However, no precedent is too venerable to be overturned if necessary. Again, this is shown by Mabo’s overturning of the concept of Terra Nullius as it applied to Australia.