Australia

1. Composition and structure

Number of members

The Federal Court of Australia Act 1976 provides that the Court consists of a Chief Justice and such other judges as are appointed. There are currently 47 judges, including the Chief Justice.

Recruitment procedure and incompatibilities

Judges of the Court are appointed by the Governor-General on the recommendation of the Government of Australia. Judges are appointed from among judges of State and Territory courts or from among legal practitioners of at least 5 years standing.

A judge is appointed until he or she retires or attains the age of 70 years and under the Australian Constitution may not be removed except by the Governor-General on an address from both Houses of Parliament, in the same session, praying for the judge's removal on the ground of proved misbehaviour or incapacity.

Judges, other than the Chief Justice, may hold more than one judicial office at the one time. Judges may not however be involved in any business, professional or commercial activity or relationship that may threaten their independence or impartiality.

Many of the judges have other commissions and appointments to other courts or tribunals. These include positions as the President or a presidential member of various Commonwealth administrative tribunals such as the Administrative Appeal Tribunal, the National Native Title Tribunal, the Australian Competition Tribunal, the Copyright Tribunal and the Australian Industrial Relations Commission.

Internal organisation

The Federal Court of Australia is a self-administering court. The Chief Justice is responsible for managing the administrative affairs of the Court in accordance with the Federal Court of Australia Act 1976, which is the Act of the Parliament of Australia that created the Court.

The Chief Justice may delegate any of his administrative powers to judges and is also assisted by the Registrar in relation to the Court's administrative affairs. The Registrar is appointed by the Governor-General on the nomination of the Chief Justice.

In practice, the administration of the Court is collegiate and involves a system of judges committees dealing with specific aspects of the court's jurisdiction and management.

In addition, the management of the Court's business is assisted by 368 employees, who are all members of the federal public service.

The Federal Court also provides registry support to the Australian Competition Tribunal, the Copyright Tribunal, the Defence Force Discipline Appeal Tribunal and the Federal Police Disciplinary Tribunal.

Publications 

The Court's important decisions are published in its official reports, the 'Federal Court Reports' and all of its decisions are available online through the Federal Court website.

The daily lists of Court sittings in each State and Territory are made available in each registry, online and through an email subscription service.

The Court publishes an Annual Report detailing the management of the legal, administrative and financial affairs of the Court during the year.

The Court also provides a range of information for the public and community groups, the media and practitioners, an informational booklet entitled 'Delivering Justice', and an educational publication for use in schools entitled 'The Art of Delivering Justice'.

The majority of these publications are available on its website: http://www.fedcourt.gov.au

2. Jurisdictional attributions and advice

2.1. Court functions

Jurisdiction

The Federal Court of Australia is a national superior court of general federal civil jurisdiction.
Its original jurisdiction is conferred by over 150 statutes of the Australian Parliament. These laws cover matters such as judicial review of administrative decisions, competition and consumer protection law, workplace relations, migration law, human rights, taxation, intellectual property, native title, admiralty, corporations law and bankruptcy.

The Court also exercises appellate jurisdiction over decisions of single judges of the Court, decisions of the Supreme Court of Norfolk Island, decisions of the Federal Magistrates Court and certain decisions of Australian State Supreme Courts exercising federal jurisdiction. The appellate jurisdiction is generally exercised by a bench of three judges.

The Federal Court's original and appellate jurisdiction in the judicial review of administrative decision-making is of particular importance. The Court hears appeals on points of law both directly against decisions of Commonwealth officers and from decisions of Commonwealth administrative tribunals, such as the Administrative Appeals Tribunal, the Copyright Tribunal, the Competition Tribunal, the Refugee Review Tribunal and the Migration Review Tribunal.

Some of the points of law which be raised include error of law or excess of jurisdiction (eg misinterpreting legislation, error of jurisdictional fact), abuse of power (eg bad faith, power exercised for an improper purpose, unreasonableness, taking into account irrelevant considerations or failing to take into account relevant considerations) and failure to accord procedural fairness (eg failing to give a proper hearing, actual or apprehended bias).

For practical purposes the Federal Court is the final court of appeal in most administrative law cases. An appeal from the Federal Court to Australia's highest court, the High Court of Australia is possible only by special leave, which is rarely granted.

The Federal Court is also a court in which the Commonwealth government may be sued.

Organisation of the courts system

The High Court of Australia, composed of 7 judges, is the highest court in the Australian judicial system. The functions of the High Court are to interpret and apply the law of Australia, to decide cases of special federal significance including challenges to the constitutional validity of laws and to hear appeals, by special leave, from Federal, State and Territory courts.

In the federal jurisdiction, there are two levels of courts below the High Court. The lowest level is the Federal Magistrates Court, from which appeals lie to the second level, the Federal Court and the Family Court. These courts both exercise original as well as appellate jurisdiction.

As previously stated, an important part of the Federal Court's original jurisdiction includes the hearing of appeals on questions of law from a range of federal administrative tribunals and an important part of the Court's appellate jurisdiction is made up of appeals from administrative law decisions of single Federal Court judges.

As a result of the special leave requirement in the High Court, the Federal Court is, in practice, generally the final avenue of appeal on questions of law against administrative decisions.
The Commonwealth administrative tribunals are set up to review administrative decisions of the Government of Australia made by federal Ministers, departments or authorities, in various fields of activity. The Administrative Appeals Tribunal in particular is the final avenue of appeal on the merits against administrative decisions. It is charged with reaching the correct or preferable decision.

Each State and Territory also has its own judicial system, whose judges are appointed by the State or Territory government. Generally, there are three levels of court. A superior court called the Supreme Court, which has appellate and some original jurisdiction in both civil and criminal state matters. Supreme Courts also have jurisdiction to hear certain federal matters. Below the Supreme Court is an intermediate court, with a similar jurisdiction to the Supreme Court in state matters, except that there are financial limits to the civil matters it can try, and limits to the types of criminal offences it can try. Finally, there is a lower or Magistrates' Court, from which appeals lie to the intermediate court or the Supreme Court.

Many States and Territories also have their own system of administrative tribunals, from which appeals on questions of law lie to the State and Territory courts.

Powers of the judges

When reviewing administrative decisions, a Federal Court judge only has the power to consider the legality of the decision, not its merits.

A judge may:

- affirm, reverse or vary the decision or judgment appealed from; or
- set aside that decision or judgment, in whole or in part, and remit the proceeding to the administrative decision-maker from which the appeal was brought for further hearing and determination, subject to such directions as the Court thinks fit.

In cases where the error of law identified requires a reconsideration of the factual matrix surrounding the administrative decision, a judge will generally remit the proceeding to the administrative decision-maker.

A Federal Court judge also has the power to make an order as to which party shall bear the costs of legal proceedings.

2.2. Advisory functions

Existence and extent of an advisory authority

The Federal Court of Australia does not exercise any formal advisory functions. Under the Australian Constitution, federal courts are not permitted to perform such a role. Their jurisdiction is limited to 'matters' or, in other words, existing legal controversies.

Authority and publicity of advisory opinions

Not applicable

3. Various remarks