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AUS Judicial Branch

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The Judicial branch refers to the judiciary body in Australia, outlined in chapter 3 of the Commonwealth Constitution, and resolves disputes between general public, the States/territories, and the Commonwealth government. The Commonwealth Constitution sets up the High Court of Australia, in section 71 of the Commonwealth constitution.

Relevant Constitutional Sections:

Section 71: Judicial power and Courts 

  • “The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates… it invests with federal jurisdiction. The High Court shall consist of a Chief Justice, and so many other Justices, not less than two, as the Parliament prescribes.”

Section 72: Judges' appointment, tenure and remuneration

  • “shall be appointed by the Governor-General in Council; 

  • shall not be removed except by the Governor-General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity; 

  • shall receive such remuneration as the Parliament may fix; but the remuneration shall not be diminished during their continuance in office."

Section 73: Appellate jurisdiction of High Court

  • “The High Court shall have jurisdiction, to hear and determine appeals from all judgments, decrees, orders, and sentences: 

  1. of any Justice or Justices exercising the original jurisdiction of the High Court; 

  2. of any other federal court, or court exercising federal jurisdiction; 

  3. or of the Supreme Court of any State, or of any other court of any State from which at the establishment of the Commonwealth an appeal lies to the Queen in Council; 

  4. of the Inter-State Commission, but as to questions of law only;”

Section 75: Original jurisdiction of High Court 

  • In all matters: 

  1. arising under any treaty; affecting consuls or other representatives of other countries; 

  2. in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party; 

  3. between States, or between residents of different States, or between a State and a resident of another State; 

  4. in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth; 

  • the High Court shall have original jurisdiction

Section 76: Additional original jurisdiction

  • The Parliament may make laws conferring original jurisdiction on the High Court in any matter: 

  1. arising under this Constitution, or involving its interpretation; 

  2. arising under any laws made by the Parliament; 

  3. of Admiralty and maritime jurisdiction; 

  4. relating to the same subject-matter claimed under the laws of different States.

Section 80: Trial by jury 

  • “The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed.”

Composure and Composition:

The Judicial branch consists of a court hierarchy where the High Court presides over all courts and is the final court of all disputes.

The hierarchy also consists of lower courts as the Magistrates court, District court and the Supreme Court.

The Magistrates Court deals with minor crimes involving little monetary amount such as shop lifting and also civil claims such as neighbourly disputes or asset damage. These civil matters are dealt with in the Magistrates if they are below $75,000 in claims.

The District Court deals with serious criminal cases such as assaults, sexual assaults, serious fraud, commercial theft, burglary and drug offences. The District Court also determines civil claims up to the amount of $750,000 and has unlimited jurisdiction in claims for damages for personal injury.

Checks to The Branch:

The executive, specifically the Attorney General and a member of the cabinet, appoints judges without requiring parliament interference as referred in Sec 72

The Legislative branch can impeach High Court justices for improper behaviour whilst serving in position

The legislative branch set a limit on the tenure of the High Court justice, requiring them to retire at the age of 70. This checks the power of the judicial branch as it means that the justices are not appointed for life and can be held accountable to the people through this.

The Governor General, part of both the Legislative and Executive branch, has the final say on the impeachment of high court justices.