Australian Politics and Policy - Senior, 2019a

Australian Politics and Policy
over time, while the power of a new institution – parliament – grew. Parliament’s
growth, in turn, saw its rules of law (i.e. legislation) replace the common law as the
most ‘significant source of new rules’. 11 Yetparliament’srisearguablychangedthe
initial focus of the courts rather than diminished their significance. Their role is
still to decide controversies brought before them by citizens or governments; but
theywillnowoftenstartwithalegislativeruleratherthanacommonlawone,
examining precedents to determine how the legislative rule has been and should be
interpretedandhowithasbeenappliedbypreviouscourts.
The establishment of courts in Australia
Before the First Fleet left for Australia in 1787, legislation and letters patent allowed
for the creation of a criminal court and civil court respectively in New South Wales
(NSW). These courts were established upon the First Fleet’s arrival but were initially
staffed by military officers. Later, when the first judge was appointed, he was
required to follow any order given by the governor who, for all intents and purposes,
exercised both legislative and executive power. It was not until the passing of the
New South Wales Act 1823 (UK) that the colonial judges obtained the same level of
independence and security of tenure held by their English counterparts. 12
The New South Wales Act 1823 also established separate Supreme Courts in
NSW and Tasmania and provided for the establishment of inferior courts – that is,
courts below the Supreme Courts. Ultimately, a similar court system was established
in each Australian colony and continues, with some modifications, today (today the
inferior courts are generally called District, Local or Magistrate’s courts).
On 1 January 1901 the Constitution came into effect and the Commonwealth
of Australia was born. As Blackshield and Williams observe:
The system of federalism created by the Australian Constitution involves two tiers
of government in which power is divided between the Commonwealth and the
States. Each tier has its own institutions of government, with its own executive,
parliament and judicial system. 13
Consequently, the colonial (now state) court systems continued, but there would
now also be federal courts and, in particular, the High Court of Australia, created
under section 71 of the Constitution. Under sections 75 and 76 of the Constitution,
the High Court could hear and decide certain matters involving Commonwealth
power – that is, it would hear the matters in its original jurisdiction. Under section
73,theHighCourtwouldalsohearappealsfromthestateSupremeCourtsandany
federal courts that would be created.
11 Creyke et al. 2017, 9.
12 Crawford and Opeskin 2004, 23–4; Creyke et al. 2017, 45.
13 Williams, Brennan and Lynch 2018, 264.
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