To save much of the confusion which has resulted from attempts to interpret statutes over the years, the parliaments throughout Australia have enacted their own set of interpretation rules. These are embodied in special Acts by both the federal and state parliaments (The interpretation Acts) the purpose of which if to assist the interpretation and to apply standard rules of interpretation in some circumstances.
The Federal Act – Acts Interpretation Act 1901
The Acts Interpretation Act (1901) )Cth) gives courts some assistance in interpreting federal acts. For example s 15(a)(a) of the Act directs court to prefer an interpretation that gives effect to the purpose and policy of the act. This has formalised the purpose approach mentioned above,
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To some extent, these two provisions (and their state and territory counterparts) simply re_ected changes that were already occurring in judicial doctrine and practice in Australia, England and elsewhere.
However, the provisions enjoyed the legitimacy of parliamentary endorsement for the changes that were happening anyway.81
Such provisions in statute law had a tendency to drive judges back to the statutory text (read in context and with its apparent purposes in mind). e practical problem that sometimes presents to judges is this. e context of contested legislation may appear to point in a particular direction. e purpose of the legislation may arguably point in the same direction. But if the text of the legislation points with sufficient clarity in a contrary direction, the judge, in Australia, will normally give primacy to that language. He or she will override the inclination to which context, purpose (and on one view the text) might otherwise point the judicial decision-maker.
A good illustration of this conclusion may be found in the decision of the
High Court of Australia in Minister for Immigration and Multicultural and
Indigenous Affairs v B (‘B’s Case’).82 at was a case in which proceedings
The role of the judiciary is to interpret and apply the law, not to make it. In some cases an approach that gives slightly more emphasis to the text may be seen to be more in line with the judiciary’s constitutional position. The law is written in the words of the statutes, and Parliament has an obligation to express law correctly. The role of the court courts is not to ensure that Parliament hits the target every time, especially when the legislation does not clearly display those targets.
Australian Legal Case: The Mabo Case The Mabo case commenced in the late 70's about an Aborigine Eddie Mabo who fought for his land on Murray Island, part of the Torres Strait. The issue that started the court case was when Mr Mabo appealed for a permit from the Queensland Government to visit the island. His proposal was declineed so he was unable to return home to visit his homeland.
The roots of Australian laws are similar to traditional Aboriginal laws, dating back to before the Norman Conquest in 1066, where each separate village had their own laws developed to their own customs. This changed however, after a centralized legal system was established after 1066. A common law was formed, that applied to all of England. This was later combined with equity law and mercantile law, which is the basis of Australian law today, known as ‘statute law’.
Nowadays, the Australian legal system has three powers, which are legislative, executive and judicial. Legislative power is in charge of making the laws; subsequently those laws will be passed to the executive power to administer the laws it...
9. Woodgate, R., Black, A., Biggs, J., Owens, D. (2003). Legal Studies for Queensland, Volume 1, ForthEdition, Legal Eagle Publications: Queensland. 10. Woodgate, R., Black, A., Biggs, J., Owens, D. (2003).
The merits of both the adversarial and inquisitorial system will be explored throughout this paper. The Australian rule of law best describes as all law should be applied equally and fairly. The five vital operations of the rule of law includes fairness, rationality, predictability, consistency, and impartially. The adversarial system adopts these operations by having a jury decide on the verdict and the judge being an impartial decision maker. In contrast, the inquisitorial system relies heavily on the judge. This can result in abusive power and bias of the judge when hearing evidence and delivering verdicts. The operations of the rule of law determine why the rule of law is best served by the adversarial system in Australia.
Since the dawn of time for a society to work it needs to have a level of structure that applies to everyone and is understood by everyone. Australian legal system is broad and complex. It is the nature of the encompassing laws and regulations which reflect how people, organisations and governments behave on the many different levels of operation and these are created to make sure that everyone understands their rights and obligations. There are two sources of Law in Australia: Statute Law regulated by Parliament and comprise of legislations and acts; and Judge-made Law or Common Law where decisions made by judges are based on previous cases.
There are four sources of Law in the Australian Legal System. They are Statute Law, which is made in Parliament, Common Law and the Law of E...
To give conventions justiciable entitlement would be taking away from the highly advantageous flexibility that the UK Constitution has attained from remaining uncodified. Further, the large volume of conventions may provide a difficulty in enforcing them within the courts. In contrast, it could be argued that codifying select conventions may bring certainty to many unclear areas, such as defining the Ministerial Code partly did, thus providing an easier structure for conventions to be enforced legally. However, conventions are merely seen as a moral and political obligations, and should not upon breach have legally enforceable consequences. The argument against whether the court should enforce conventions will be supported and discussed in this essay.
Punishment occurs to individuals who break the law. It is also used to maintain the level of crime and to protect community members in Australia. To determine that society is content with maintaining the crime rate, this essay will discuss punishment types given to offenders and how society justifies the use punishment. Additionally, providing a brief overview of the community correction and prions rates to show that communities prefer to incarcerate lawbreakers. Highlighting that crime rates are being maintained by looking at the personal crime rate for assault before concluding that Australian society feel safe enough to allow the criminal justice system to sustain the crime rate.
The first approach is assessing the Law according to its target audience. This is beneficial as it defines the context in which the text is applying itself to. Hays mentions, “Connecting texts to their contexts is a basic tenet of proper interpretive method. The Law is part of a story, and this story thus provides a critical context for interpreting the Law.” This approach can be problematic as meaning of a particular law could be misinterpreted to fit the context in which it is placed in. The Law may be given in a specific instance; however, it could have a general meaning, which could be lost using this approach.
The changes needed for the Australian society to be adequately addressed is not the law itself but the consequences in regarding the law because if they were effective than there would be less violence happening but that is not the case.
Over the years, different jurisdictions had built their specific system of rules of conduct to govern behaviour. These legal systems, influenced by historical and cultural roots, can be distinguished in two families, the Civil law and the Common law legal systems. The distinctions lies in the process in which each decision is make by the judge and on the legal sources that shapes the law. Indeed, by contrast to the Common law system, which is largely based on Precedents, meaning the decisions that have already been made by judges in similar cases, the Civil law system is based on legislator’s decisions and legal codes with which judges have to justify their judgment . Consequently, instead of referencing to concepts and rules
The strict supremacy of statute over judicial decisions and a tradition of literalism in statutory interpretation, 2. Where no legislation exists, the courts are bound by the doctrine of precedent in accordance with a strict hierarchy of judicial authority, 3. In the absence of a relevant precedent, the judges will be guided by legal principle and reasoning by analogy, and 4. There is a clear way of distinguishing the ratio of a case. A key feature of the unwritten constitution is ‘the separation of powers’.
Instead, multiculturalism places a wide range of claims of accommodation such as religion, ethnicity, language, race and nationality (Song, 2010). In the case of Australia, the acceptance of multiculturalism based on such far-flung claims has essentially resulted in the advent of politics of recognition among the minority groups seeking accommodation or integration in Australia. This is shown by Song (2010) who states that key among the claims fronted by Australia’s minority groups is self-government or at least some sort of recognition that affords such communities a form of autonomy. One key comparison is the aboriginal communities of Australia and those of Canada, whereby claims for recognition based on the uniqueness of ethnicity have left a bad taste in the mouth of white