Understanding Australia's Court Hierarchy and Lawmaking Role

Courts, including tribunals, make and interpret law based on legislation, precedence, and common law, impacting legal decisions beyond individual cases.

### The Role of Courts in the Australian Legal System
* ⚖ The court system in Australia is a major source of law, alongside **legislation enacted by Parliament**.
* ⚖ There are two main types of court cases: **civil cases**, which resolve disputes between individuals or companies, and **criminal cases**, where the state prosecutes individuals for breaking the law.
* ⚖ The court hierarchy in New South Wales includes the **local court, district court, and supreme court**, with the **High Court being the highest appellate court in Australia**.
* ⚖ Tribunals have been established in recent years to handle specific areas of law in a **less formal and expensive manner** than traditional courts.
* ⚖ Courts can make law by **interpreting legislation**, **filling gaps in legislation**, and **developing common law** when no legislation exists.
* ⚖ The High Court's decision in the Tasmanian dams case is an example of interpreting legislation to make **new law**, expanding the external affairs power to protect **World Heritage Areas**.
* ⚖ The courts can also **fill gaps in legislation**, as seen in the development of criteria for **determining separation under the Family Law Act**.
* ⚖ The 1992 Mabo case is an example of the courts changing common law to reflect a "**changing understanding of Australia's history**," recognizing indigenous land ownership and leading to the passage of **Native Title legislation**.

the legislation enacted by Parliament's is a major source of law. Courts are the other source of our law. Courts hear and decide cases. Court cases can be civil or criminal. Civil cases decide disputes between individuals, which can include companies. Criminal cases are the state against an individual who is alleged to have broken a law. In both civil and criminal cases, the courts make decisions on the cases that come before them by deciding the facts and applying the law to those facts. In the higher courts, they can also make new law. In the same way that Parliament's operate on a federal and state basis, so to the courts. We have a federal and a state court hierarchy. At the bottom of the hierarchy in New South Wales, we have the local court where most of the work of the courts takes place. This includes the Children's Court and the coroner's court. Above this are the district court and the supreme court. In the federal area, we have the federal circuit court, the federal court, and the Family Court. Overarching all the courts in Australia is the High Court, the High

Court can make decisions on state territory and federal law. It is the court that you can appeal to from the federal court, the Family Court, and the state and territory Supreme Court's. In recent years, we've seen the development of tribunals designed to be less formal and less expensive than the traditional courts. They are set up to deal with a specific area of the law. New South Wales tribunals deal with state matters such as disputes about renting, home building, guardianship, victims compensation, and review of government decisions. Federal tribunals deal with federal matters such as pensions, child support, migration, and refugees. Each court and tribunal is governed by a specific act that outlines the particular jurisdiction. There is a geographic jurisdiction, for example, New South Wales courts deal with New South Wales law, and a monetary jurisdiction, for example, the Supreme Court can deal with civil cases involving larger sums of money than the local court. The jurisdiction of some courts is limited to particular areas of law, such as the Family Court of Australia and the New

South Wales Land and Environment Court. The court hierarchy allows for decisions from the higher courts to have a flow-on effect down through the system, and for decisions of the lower courts to be appealed to a higher court. Appeals are limited; you can generally only appeal if there's been a mistake of law, a legal error that the court has made. You can't appeal to a higher court just because you don't agree with the decision; that's what the courts are there for, to make a decision. The authority of the courts and their decisions reflects their place in the hierarchy. In the lower courts, the decisions are made according to legislation and any authority or precedent from the higher courts. The decisions are important to the parties in the case but do not have wider legal ramifications. Decisions made in the higher courts, such as the Supreme Court and the High Court, do have ramifications beyond the parties. These courts are deciding matters of principle that establish benchmarks or precedence, which is called the common law. Courts have been making the common law since

before Parliament began. Although most of our laws are now made by Parliament, the common law continues to operate unless and until it is overruled by legislation. We've talked about the courts making law. They do this by interpreting legislation, filling gaps in legislation, and developing the common law when there is no legislation. The court's most important lawmaking role is interpreting legislation. The High Court decision in the Tasmanian dams case, for example, was based on interpreting a phrase from section 51 of the Constitution. The Commonwealth was trying to stop the damming of the Franklin and Gordon rivers in southwestern Tasmania but lacked a direct power under the Constitution. When the area was given world environmental heritage status, the Commonwealth relied on the external affairs power to make a law to stop the dam because it had an obligation to uphold the international treaty which protects World Heritage Areas. The Tasmanian government challenged the Commonwealth's power and the matter went to the High Court. The High Court interpreted the phrase External Affairs widely enough to

include the ability to make a law to give effect to an international treaty. In this case, to stop a dam being built in Tasmania. Another way in which the courts can make law is to fill gaps in the legislation. For example, the Family Law Act states that a couple can be considered to have separated although they still actually live in the same house, but the Act doesn't say what considerations go into deciding whether or not there's a proper separation. The courts have stepped in and filled the gap. They've developed criteria that can be used to decide when a couple living in the same house have actually separated. Although most aspects of our lives are covered by legislation, the courts also make new law by developing common law rules where there is no legislation. Higher courts can also change and develop common law rules according to circumstances. The 1992 Mabo case was an example of the courts changing a common law rule to reflect the times. The High Court found that the common law rule that Australia's indigenous peoples had no existing legal system was wrong.

a changing understanding of Australia's history. The High Court decided that Australia's indigenous peoples did have previous ownership of the land, and that they continue to have a claim to land ownership after the Mabo case. Parliament passed Native Title legislation to deal with the traditional ownership that the High Court had recognized. You won't find new law being made in the local court; it only happens at the highest levels, the High Court and occasionally a state Supreme Court. Other courts that make new law beneath that. Each court follows the authority set by the higher court. That's the strength of the court system, that they're following not just the legislation, but the benchmarks referred to as precedence set by the higher courts. Remember, there is a hierarchy of courts and tribunals. Courts can make law by interpreting legislation, filling in gaps in legislation, and by making new common law.

How laws are made - Courts

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The Hierarchy and Jurisdiction of the Australian Legal System

The Parliament's legislation and the courts are the two main sources of law in Australia, with the power to make and interpret laws.

The court hierarchy in Australia consists of the local court, district court, supreme court, federal circuit court, federal court, Family Court, and High Court, each with its specific jurisdiction.

In addition to the traditional courts, tribunals have been developed to provide a less formal and expensive legal process, focusing on specific areas of state or federal law.

The Role of Hierarchy in the South Wales Land and Environment Court

The court hierarchy allows for decisions to flow from higher courts to lower courts and for appeals based on legal errors.

Lower courts make decisions based on legislation and precedent, while higher courts establish common law and legal principles.

The most important role of the courts is interpreting legislation, as seen in the High Court decision on the Tasmanian dams case.

The Role of Courts in Making and Developing Laws

Courts can make law by implementing international treaties into domestic law, as seen in the case of the proposed dam in Tasmania.

They also fill in legislative gaps, as demonstrated in the development of criteria for separation under the Family Law Act.

Additionally, the courts can create common law rules in the absence of legislation and modify them as needed, as evidenced by the High Court's decision in the 1992 Mabo case.

The Evolution of Australia's Indigenous Land Rights

The High Court's decision acknowledged indigenous land ownership and their ongoing claim to the land.

The Native Title legislation was passed by Parliament in response to the High Court's recognition.

The court system in Australia operates with a hierarchy, where higher courts set the precedent for lower courts to follow in making new laws.