Introduction

Since the nature of the State and territory judicial systems is adequately covered elsewhere, this chapter focuses on the constitutional protection afforded their courts both under their own State or Territory Constitution, as well as under Chapter III of the Commonwealth Constitution. It first considers to what extent the plenary legislative power of the States is restricted from interfering with their respective judicial systems, and then examines those restrictions which protect territory judicial systems. Restrictions are obviously needed to preserve the rule of law by ensuring, in particular, judicial independence in the exercise of judicial power. Specifically, these restrictions need to protect or deal with:

• the existence and jurisdiction of the courts;

• the separation of judicial and non-judicial power;

• legislative interference in the exercise of judicial power; and

• security of tenure of judges.

Regrettably, it will become apparent that little if any protection is effectively provided here by State and Territory Constitutions or their own legislation. Fortunately, however, some protection is now available from Chapter III.

State judicial systems

The judicial branch of each State comprises a hierarchy of courts at the apex of which is a Supreme Court. Most State Supreme Courts were established as superior courts of record prior to the attainment of responsible government. They retain unlimited jurisdiction for their respective State, except so far as statutory limitations have been imposed. Other courts below the Supreme Court have been created by statute: usually a District or County Court and a magistrates' court.