Australian Politics and Policy - Senior, 2019a

Australian Politics and Policy
• an appeal or judicial review process
• the doctrine of precedent. 17
While providing a general overview, Figure 1 is somewhat of a simplification
for two reasons. First, the division between federal and state courts may give the
impression that state courts only exercise their respective state’s judicial power;
however, they also exercise federal power. Second, while the court system in each
state and territory follows the general structure shown in the figure, in reality each
system is more complex; other, more specialised courts have been created and there
may be slight differences in the appeal processes.
In each state and territory, it is generally accepted that courts lower in the
hierarchy should deal with less important matters (both in monetary value and
seriousness) and that for some types of cases there should be an initial hearing
before a judge with expertise in the particular subject matter before them. In NSW,
for example, the Local Court can hear civil cases with a value of up to $100,000, the
District Court up to $750,000 and the Supreme Court any amount. Similarly, there
are other courts in the state that deal with particular types of matters, and there are
specialist divisions within the Local and Supreme Courts that deal with either civil
or criminal matters. Figure 2 provides an overview of the NSW civil court structure
and Figure 3 provides an overview of the criminal court structure.
Greater integration: the exercise of federal judicial power by state courts
While the US constitution provided much of the inspiration for the drafting of
Chapter III of the Constitution, which deals with the federal court system, there
are two very significant differences that have meant Australia’s court structure is far
more integrated.
The first difference is that in the USA the federal and state court systems are
quite distinct. As the three figures show, in Australia the High Court hears appeals
from federal, state and territory courts. This means that the High Court has been
able to establish ‘one Australian common law’ 18 rather than overseeing a different
common law in each state and territory and at the federal level.
The second difference is that provision was made in sections 71 and 77(iii)
of the Constitution for the Commonwealth parliament not only to create federal
courts but to also allow state courts to exercise federal judicial power. 19
Giving state courts the power to exercise federal jurisdiction generally, rather
than in limited circumstances, was a uniquely Australian development and is
known as the autochthonous expedient. 20 Autochthonous means indigenous or
17 Harvey 2017, 74.
18 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 563.
19 The Commonwealth parliament has invested state courts with the ability to exercise federal
jurisdiction; see in particular section 39 of the Judiciary Act 1903 (Cth).
20 R v Kirby; Ex parte the Boilermakers’ Society of Australia (1956) 94 CLR 254, 268.
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