Arguments:
A) The ratio in Shaw should not be overulled because;
a.i) CJ French in Wurridjal V Commonwealth [2009], stated [70] that the courts take a cautionary approach to overruling cases. Such an approach requires examination of factors. These factors include; if the decision is done in isolation, if the decision affirms the stream of authority and if the overruling would disrupt the law.
A.ii) Shaw’s decision was not done in isolation. In Nolan v Minister for Immigration and Ethnic Affairs (1988). The majority held that anyone not a citizen of Australia is an Alien under section 51 (xix). In Re Patterson Ex Parte Taylor (2001) the court held that Taylor was not an alien. Nolan was reaffirmed by Meng Kok Te (2002) and Singh (2001); both stating that aliens were non-citizens. Therefore, the decision in Taylor can be construed as being done in isolation.
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The result of the overruling would create inconsistency within the law.
b) Brett Walsh is an alien, as absorption into community is not a valid method of gaining Australian Citizenship, because;
b.i) He is not a citizen under the Binary approach (Shaw v Minister for Immigration and Multicultural Affairs (2003). The Binary approach states that a person is either an alien (non-citizen) or a non-alien (citizen). Walsh is an alien (non-citizen) as he never applied for citizenship.
B.ii) The idea of absorption is weak law. It was only a dissent in Patterson, with no clear ratio. Furthermore, J Gaudron in Re Patterson ex parte taylor (2001) stated that although Taylor has been absorbed into the Australian Community, he can still be
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.
d by agreement in the court of appeals. By applying principles to the conflicting laws, the judge is able to make the greatest social advancements by both punishing for actions causing harm and also giving hint that his honest intentions did not go unnoticed and such intentions should be upheld in society. Looking at the case R.V.Machekequonabe, it is a prime example of conflicting rules. It is always difficult to decide which rule should be followed and which should be rejected, especially in cases where cultural upbringing plays such a major role.
The milestone judicial decision in Cole v Whitfield pronounced a pivotal moment in Australian jurisprudence in relation to the interpretation of s92 of the Australian constitution. This essay will critically analyse the constitutional interpretation approach utilised in Cole v Whitfield. This method will be compared with the interpretational methods exemplified in Commonwealth v Australian Capital Territory. Although within these two cases there appears to be a preference towards a particular interpretational method, each mode has both strengths and weaknesses. Accordingly, the merit of each should be employed in conjunction with one another, where the court deems fit, complementing each other. This may provide a holistic approach to interpreting the constitution.
... limitation is necessary. In addition, it is being seen as taking account every history and context of the case in making decisions, rather simply judging the case according to the words of provisions. Gleeson CJ in Roach also stated the consideration that the historical context and circumstances in the case is also protected by the sections 7 and 24 of the Constitution. Therefore, the decision of the Rowe is consistent with the Constitution’s implied right and the notion of representative democracy in Australia.
In theory all jury systems (which have existed for almost 800 years) are fair and just.
The Effectiveness of the Law in Achieving Justice for Indigenous People In relation to Australia, the term ‘Indigenous peoples’ refers to two distinct cultures of people who inhabited the land prior to European settlement – The Aboriginals and the Torres Strait Islanders. This population declined dramatically over the 19th and early 20th century due to the introduction of new diseases from European settlement, Government policies of dispersal and dispossession, the era of protection, assimilation and integration causing a cultural disruption and disintegration of the Indigenous peoples. In the 20th century the recognition and protection of Indigenous peoples land rights and human rights have been at the forefront of Global Issues where the International community has sought to address the issues and ratify Human Rights and Land Rights for Indigenous People as a legitimate subject to be implemented into international law and the domestic law of member states such as Australia. To evaluate the effectiveness of the law in achieving justice for Indigenous Australians we must look at the Australian Legal System, and the extent to which it addresses it’s obligations to International Law in relation to Australia’s
Of the 8 successful, the 1967 referendum which proposed the removal of the words in section 51 (xxvi) ‘… other than the aboriginal people in any State’ (National Archives of Australia ND), and the deletion of section 127, both, which were discriminative in their nature toward the Aboriginal race, recorded a 90.77% nationwide vote in favour of change (National Archives of Australia, 2014). As a result, the Constitution was altered; highlighting what was believed to be significant positive political change within Indigenous affairs at the time (National Archives of Australia, 2014). Approaching 50 years on, discussion has resurfa...
In addition to this, the analysis of law was not considered thoroughly during judicial decisions. Therefore, the court uses backward reasoning where it uses the expected results it wants to deduce to make decisions. Such activities in the justice department have a lot of impediments to the impartiality of judicial system. The rights of the criminal in many instances are affected by the use of such methods to deliver justice. According to Marshall, the legal analysis used to determine the outcome of the courts has reduced since the changes in the judicial system. The rights of the individuals have significantly reduced with the changes in the court system because only the nine judges are privy to the outcome of the court proceedings; they are also not liable to the questions that may be raised about the legality of their
On April 10th of 1978, the Immigration Act was passed by Pierre Trudeau of the Liberal Government of Canada. This piece of legislation had three main objectives. It promoted the reunification of families that had been separated by immigration, accepted persecuted people for humanitarian value to the nation, and strengthened a currently strong and viable economy in Canada. The Immigration Act of 1978 outlined three distinguishable classes of immigrants: Independent, Family, and Refugee. In order to be accepted, the Independent Class had to satisfy a new Point System, which enabled immigrants to score marks from each category: Education, Skill, Language, and Resources. The Family Class was mainly for immigrants with close relatives who were already living in Canada as a citizen or as a permanent resident. This unprecedented act primarily allowed a humanitarian category for refugees. The Immigration Act of 1978 impacted Canada as it permitted the nations to strengthen its economy and population, provided ethnic composition of population, and fulfilled Canada’s obligation to refugees.
The Australian Legal System has a rich and detailed history dating from 1066. Law is made in Parliament. We have four sources of law and three courts with different jurisdictions that interpret the law when giving out justice. Important doctrines act as the corner-stones of our legal system. There is a procedure in the courts for making appeals. Separation of powers exists between officials in the courts, the parliament and the Executive. Everyone in Australia is treated equally under the Rule of Law, no matter their office or status. The Law is always changing as society changes, but it can never be perfect and cannot please everyone.
H W R Wade ‘The Basis of Legal Sovereignty’ (1995) 172 Cambridge Law Journal 186.
Introduction This submission will discuss the problems created by the Doctrine of Judicial Precedent and will attempt to find solutions to them. Whereas, English Law has formed over some 900 years it was not until the middle of the 19th Century that the modern Doctrine was ‘reaffirmed’. London Tramways Co. Ltd V London County Council (1898). Law is open to interpretation, all decisions made since the birth of the English Legal System, have had some form of impact whether it is beneficial or not The term ‘Judicial Precedent’ has at least two meanings, one of which is the process where Judges will follow the decisions of previously decided cases, the other is what is known as an ‘Original Precedent’ that is a case that creates and applies a new rule. Precedents are to be found in Law Reports and are divided up into ‘Binding’ and ‘Persuasive’.
1.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 clear way of distinguishing the ratio of a case…
The grounds of judicial review help judges uphold constitutional principles by, ensuring discretionary power of public bodies correspond with inter alia the rule of law. I will discuss the grounds of illegality, irrationality and proportionality in relation to examining what case law reveals about the purpose and effect these grounds.
The judiciary should not only be impartial when dealing with cases but independent too. Whenever cases are being assessed, both impartiality and independence should go hand in hand to avoid