What is judicial power?

Judicial power in Australia is the authority to decide legal disputes by interpreting and applying the law to specific cases. It is vested by the Constitution (Chapter III, sections 71 to 80) in the High Court of Australia and such other federal courts as Parliament creates, and by state and territory constitutions in their respective court systems.

The federal judicial system comprises the High Court of Australia (the final court of appeal and interpreter of the Constitution), the Federal Court of Australia (handling commercial, intellectual property, competition, immigration, industrial, native title, and many other federal civil matters), the Federal Circuit and Family Court of Australia (handling family law, child support, migration review, fair work, and many summary matters), and a number of specialist tribunals and courts. State and territory courts handle the bulk of criminal cases and civil litigation, organised in hierarchies from magistrates' or local courts at the bottom to supreme courts at the top.

The separation of judicial power is particularly strict in Australia. The High Court has held (in cases including the Boilermakers' Case of 1956) that judicial power can be exercised only by Chapter III courts, not by executive bodies or non-judicial tribunals, and that Chapter III courts cannot exercise non-judicial functions incompatible with their judicial role. Administrative tribunals (such as the Administrative Review Tribunal from late 2024, replacing the Administrative Appeals Tribunal) make merits decisions about administrative matters but are not Chapter III courts and so cannot make binding determinations of criminal guilt or civil liability beyond very narrow limits.

Judges have constitutional security of tenure. Federal judges are appointed by the Governor-General on the Cabinet's advice and hold office until age 70 (set by the 1977 constitutional amendment, before which appointment was for life). They can be removed only by an address of both Houses of Parliament for proven misbehaviour or incapacity (section 72), a protection that has never been exercised. Their salaries cannot be reduced during their term. State and territory judges have similar protections under their state constitutions. The independence of the judiciary is one of the foundational principles of Australian government, supporting the rule of law and the right to a fair hearing by an impartial tribunal. The 2023 to 2024 appointment of Chief Justice Stephen Gageler to lead the High Court continued the long tradition of independent leadership at the apex of the system.