Debate whether judges make new laws & whether they should have the power to do so.
Judges are able to make new laws thanks to the common law system. The common law is a system of law in which the courts decision forms a binding statement and represents how statutory law is represented. The system is heavily based on the idea of “precedent” or “case law”, that is, judgments from previous cases constitutes a source of legal and therefore binding rules. As time passes and new cases are brought to court, judges are thus in a position to not only interpret the law to suit the situation but also refer to previous similar cases for judgments so as to come to a ruling.
Although this means that courts should base decisions of current cases based on previous decisions of similar cases, there may still be a situation in which no similar case has ever been brought up before (Chisholm and Nettheim, 2002). A judge would then be required to interpret any available statute and then make a judgment. His judgment would then be the precedent for similar cases that might come in future. In effect, his judgment constitutes a new legal rule.
In the case of Mabo and Others v. Queensland (No. 2) (1992) 175 CLR, the judges decided that the Meriam people, who were here before the English settlement in Australia had native title over the disputed land and rejected the notion of terra nullias. The judgment gave the Racial Discrimination Act 1975 a proper standing in the Mabo case. As a result, the Native Title Act of 1993 was passed. In this instance, we can see how the judges threw out a long held legal view that contradicted with the Racial Discrimination Act 1975 and finally culminated in the making new laws.
Should judges be given the power to make new laws in accordance with their rulings? In my opinion, the power of interpreting laws should still be left to the judges. There are many instances where statutory law is so ambiguous that the right interpretation by a learned authority is imperative to solve disputes or effect public and private sanctions. Furthermore, the system of common law allows for situations where the law is ambiguous be met with precedent so that future cases can be resolved in the same manner as previous similar cases.
Judges therefore, do make new laws and we have seen how the system has worked so far and justice served for all. Each case in the court needs to be heard on its own merits. This is where judges are put on the spot and will have to be discerning as every case is different and every outcome should be relevant to the case. More importantly, the ruling on each case constitutes a binding legal rule that is applicable to all future similar cases.
In conclusion, I agree that the role of a judge is to interpret laws, but in the process they make relevant laws and judgement to individual cases heard. This is particularly important to accommodate the constantly evolving common law in regards to the current era.
Reference List
CHISHOLM, R. & NETTHEIM, G. (2002) Understanding Law Australia, LexisNexis.
WARD, I. & STEWART, R. G. (2006) Politics One, Australia, Palgrave Macmillan.
Discuss whether or not there should be uniform criminal laws for all Australian Jurisdictions (i.e. State, Territory and Commonwealth jurisdictions)
Should there be uniform criminal laws for all Australian Jurisdictions as we see much confusion between jurisdictions in Australia’s history of criminal proceedings? The situation which exists now is that there are different criminal laws for each State and Territory. There are nine different systems of criminal law in six states, two territories and the federal jurisdiction; each with its own criminal laws to follow in Australia, and keep in mind Australia is large country consist of a relatively small population of 18 million only. Added to that each state in this country have different set of traffic codes, road rules, different property laws, tax laws, family laws and etc. These different laws lead to inequalities, complications, and unnecessary duplication of time, people, money and other resources. The question in many cross border crime between states that has always been the debate is: whose jurisdiction is it or in which state will the accused be trial?
Police statistics indicate that, on a per capital basis, violent crimes tend to be more prevalent in the Northern Territory while Western Australia had the highest crime rates for property-related offences. The statistics show that most habitual offenders in most cross border crimes between states would pick the less tough sentencing state to commit the crime. For example: the age to consent for any sexual act in different states varies and the penalty for sexual penetration of a young child varies significantly in different states too. A punishment for crime of sexual penetration of a young child (under the age of 10) in Victoria carries a maximum penalty of 25 years imprisonment but in ACT, the same crime only carries a prison term of 17 years. In this case, the intelligent serial rapist will know where to commit the act. The person will definitely choose the lesser punishment between the 2 states in case of being caught.
The Australian Institute of Criminology has collected data on homicides in Australia since 1989. The latest figures indicate that there were 288 incidents and 305 victims of homicide in Australia during 2003-04 {http://www.aic.gov.au/publications/cfi/cfi108.html} , an average of about one a day. A number of homicide incidents in Australia have involved multiple (two or more people are murdered) killings. This multiple killing crimes could be a result of Criminals knows that, every state in Australia has their independence laws. If they are found committing a crime in a different state to where they previously committed a crime in; they will probably not be sent back for prosecution or the state they are currently in won’t be able to prosecute them as the offence did not take place in that state.
Firearm has become a common weapon for arm robbery while robbing financial institute, corporate and shops which contain large amount of cash. Bear in mind that a propelled bullet can travel a long distance to reach a target. It can cross borders too. If bullet can travel across border, shouldn’t there be a uniform criminal law for all state? In another scenario in Ward v The Queen (1980) 142 CLR 308 where the accused was standing on the Victorian bank of the Murray River, shot and killed the victim who as on the opposite bank in New South Wales. In such case, which state will trial the accused and persecute the convicted criminal? With the territorial theory, each states has obligation to not interfere with the affairs of other states but to control crimes taking place within its own borders (McSherry and Naylor, 2004). But, as long as crime involve firearms is concern there is no border.
The ‘Roads Policing Strategy’ to accompany the National Policing Plan clearly stated that road policing is “an important and visible element in the police’s commitment to protect the public” It includes: excessive and inappropriate speeding; drink and drug driving; failure to wear seat belts; and careless, dangerous or threatening driving. However, this plan can never be effective as long as there are still different laws in every state and territories. We see how New South Wales issued traffic infringements for exceeding the speed limit but in Australian Capital Territory’s, Drivers with ‘P’ plates who exceed the speed limit brought to court and the case was thrown out in the ACT magistrate courts. It is confusing for the citizens and residences of Australia to have different laws applied to them in different states while staying in the same country. Knowing the differences of laws in different states, intelligent habitual criminal will choose the state with the least penalty terms to commit their wrong doing. This causes problem for the prosecution at a later stage as the defendant could claim the absence of mens rea where they did not know the laws of New South Wales, as they are residence of the Australian Capital Territory.
In this twentieth century where computer is readily accessible by young and old, cyber crime become a norm for Australia: Internet-initiated Sex Crimes against Minors juveniles became victims of sex crimes committed by people they met through the Internet. Victims in these crimes are usually 13- through 15-year-old teenage girls who met adult offenders in Internet chat rooms. Most victims met and had sex with the offender on more than one occasion. Some of these offenders even use violent to achieve their sexual desires. Another serious cyber crime is fraud, while new technologies allow easier and cheaper access to a much larger pool of prospective victims. In this modern age we see scams of Identity-related Fraud, Internet Fraud, Credit Card Fraud, and Advance Fee Fraud. All these white collar crimes are borderless; all the more we see the need for a uniform criminal law to bring immediate justice without incurring further expenses of legal proceeding pending the jurisdiction of offence committed to decide on the venue of prosecuting the offender. Corporations and businesses are able to move and conceal its activities in different states easily without jeopardize the economy of the country and loosing out foreign investor when large fraud relating to banking institute is concern. But why is the delay and why the hesitation on the implementation of a uniform criminal law?
Some arguments that could be that:
· State government might consider the implementation of a uniform criminal law as a threat to loss their power in governing their own state laws.
· Some states are reluctant to consider new laws as they think the current laws are sufficient.
· It is also probably impossible for the commonwealth government to know exactly what happens in the states and territories to implement laws properly for them.
· The uniform criminal law is still up to interpretation of each state and territory’s law enforcement units.
· In the implementation of a uniform criminal law, the commonwealth government should be making decisions with the states and territories government.
But those arguments shouldn’t stop Australia from implementing a uniform criminal law. One country, one system is much easier and convenient for the citizens and residences of Australia. After the implementation of a uniform criminal law, the governments and law enforcer officers can better educate the people from childhood to adulthood to one single system without confusing them when they travel from state to state while struggling for their living. With this single system the people have no ways to claim that their ignorance of the law.
The political debates and arguments between jurisdictions would come to a halt in criminal law matters and proceed to better serve the communities. Crime justice system will also benefit from it as all large organized cross border activities would be able to run smoothly without any hurdles. The instances where convicted criminal (i.e. child molester or rapist) will know that wherever they commit the offence, the penalty are the same, thus deter them from committing the act. Criminals cross state borders after serving their sentences could be monitored and would assist in providing a better crime justice system.
A Model Criminal Code draft release in July 1992 was the first step to conformity of the criminal laws that is much needed in the country. States and territories have the option of adopting the code or use it as a guideline to form their criminal laws although they do not have to take it into consideration. The model code called for adoption by the states and territories. It is not the intention is not to remove the state and territories’ powers in regards to law making that is given to them by the constitution but to unite this country to the one uniform law to curb crime that would harm the nation, confuse the citizen. Sadly, this model has not been adopted across the country since it was released.
With different laws and penalties in different states and territories that causes the unnecessary waste of time for law enforcement officer. When the police were to detain an offender the police has to laid charges before a criminal court, determines the guilt or innocence of the defendant, hearing of the charges, imposed sentences include imprisonment, community service orders of various kinds, fines or bonds, home detention or work outreach camps that are administered by correctional agencies. But with the implementation of one system, the police will be able to charge the offender in court immediately and with a short spent of time the offender will be sentence or imprison. Thus, shorten the time of prosecuting and save resources.
In a recent article on January 9,2007 spelled by The Sydney Morning Herald: ‘The federal Attorney-General, Phillip Ruddock, said yesterday that there was a need for harmonization but the states seemed reluctant to adopt new rules with any degree of urgency’ (Herald, 9 January 2007). The thought of how harmonization would only occur if something really bad had already happen (i.e. terrorism) is almost absurd. Intermittent focus on the aspect of different laws should cease. Every law in Australia should have some sort of uniformity. The idea of having one commonwealth government over the states and territories is to bring forth the one nation and one identity, this includes believes and practices of the country. Either the call for adoption of the model criminal code to conformity of the criminal laws or the implementing of one uniform criminal law, this has to be done for the benefit of the country and the people.
In conclusion, we see the rapid change of the world that we live in. The modern technology that is advancing daily, crimes involving high thecnology are common nowaday. Cross broder is done within second with modern transportation and electronic equipement. Thecnological developments have changed our lives, and criminal activities. Shocking senerios like the shooting across the state and the credit card fraud by hacking the internet is no way to be seen in the old days. We have to move swiftly to keep up to date with the current crime situations. I believe the implementation of uniform criminal laws for all Australian Jurisdictions is inevidable. Cross border and borderless crime is increasing so as the number of cases of hearing piling up because of the different set of laws and penalty imposed by different state. How long can the court hold on to these cases? How much resouces and time we must waste? What are the authority waiting for? I believe it would be a major advantage for Australia to have a uniform law policy in this present era.
Reference list
MCSHERRY, B. & NAYLOR, B. (2004) Australian Criminal Laws: Critical Perspectives, Melbourne, Oxford University Press.
The Questions:CCJ 13 Essay Question: Did Australia become legally and politically independent on 1 January 1901? If not, why was this the case – what factors continued to tie Australia to Britain, and when was independence actually achieved (or when will it be achieved)? In your answer address any important steps in the process from colonization toward an independent legal system (such as particular legislation or cases, or changes in the application of precedent) affecting this process.
Introduction
The question of whether Australia became legally and politically independent on 1 January 1901 is unclear and requires a close consideration of factors that continued to tie Australia to Britain, and steps in the process of colonization toward what can now be called Australia’s independent political system. In assessing this question, one must turn first to the British arrival on Australia’s shores in 1787. The doctrine of terra nullius was applied almost immediately since the Aboriginals did not have written laws or hierarchy or ruling in their ways of living, and with that, the English law was brought to settle in Australia. This paper argues that the year 1901 ought to be considered the year when Australia started its journey to independence. However, history proves somewhat confusing, and whilst Australia underwent minimal political and legislative changes, it incurred massive side effects in the process of attaining independence. One may even go so far as to suggest that the British seemingly ‘baby-sat’ Australia from its toddler through to teenage years – Britain slowly releasing different areas to the Australian government’s control throughout an extended period – until finally, Australia reached adult-hood.
The Journey
Although it is difficult to pinpoint precisely the time at which independence took place, it is certain that Australia became independent. However, there is not one day or date that anybody could point to. There was no declaration of independence. There was no constitutional amendment that established Australia's independence and national sovereignty.
Many believed Australia achieved independence and sovereignty gradually and not immediately following federation in 1901. From 1901 to 1926 Australia was a self-governing colony within the nation of the British Empire. Britain still had control over Australia's international relations, and Australian parliaments could not make laws repugnant to Britain. Australians at that time considered themselves to be British citizens.
The Governor-General and State Governors were agents of the British government. In respect of Australia, the Queen only acted on the advice of the British government. Neither the Australian Prime Minister, nor State Premiers, could offer direct advice to the Queen.
The following factors contributed to Australia’s legal independence:
Independence for the executive arm of the Commonwealth Government was achieved through the Imperial Conferences of 1926 and 1930 and confirmed by the Imperial Statute of Westminster 1931.
Independence for the Commonwealth Parliament was largely achieved through the Imperial Statute of Westminster 1931; however, it was only adopted formally in Australia in 1942, backdated to 3 September 1939, via the Statute of Westminster Adoption Act 1942.
Although the precise date is unclear, Australia became recognised by the international community as a nation apart from the British Empire some time between the end of World War I and the end of World War II. Independence for the judiciary in respect of Federal matters was largely achieved in 1968 through the Privy Council Act 1968.
In 1975, all appeals from the High Court to the Privy Council were abolished, with one very minor exception, via the Privy Council (Appeals from the High Court) Act 1975. Although appeals to the Privy Council from State Supreme Courts continued until 1986, since 1978 the decisions of the Privy Council in these matters were not binding on the High Court of Australia.
3 March 1986 Independence for the six State governments was achieved with the Australia Act 1986. Ironically, the Australian Federation ceased to be a colony decades before the States as a result of the Statute of Westminster.
Following these events, it could be suggested that Australia has attained complete sovereignty. While there is some argument about the actual date of Australia's complete sovereignty, there can be no doubt that it has been fully achieved since 3 March 1986 when Royal Assent was given to the Australia Acts.
Furthermore, Australia is now recognised by other nations in the international community and is a party to many international treaties. For example, Australia is party to the ‘United Nations Human Rights Council’, ‘Convention on the Rights of the Child’ and many other treaties. This reaffirms Australia’s independent status within the international community and this is important as Australia reign in sovereignty with other nations.
Australia is fully capable of running its own internal affairs through its own governments operating under its own Constitution. In the Constitution, it gives power to the Parliament to make laws for the peace, order and good government of the Commonwealth. This is important as Australia inherit powers for the protection of its own and to control the finances, external and internal affairs, military, trade and commerce, powers of judiciary, immigration and etc. Whereas in another section of the constitution, the High Court of Australia is given the judicial powers.
The Constitution was an important step; symbolically and legally making Australia independent from England. Australia has proven its capability so far in since the legal and political independence achieved in 1986.
Factors continued to tie Australia to Britain
Despite the fundamental changes to the Australian government and legal institutions described above, the fact is that Australia is still subject to the British monarchy. The head of Australia is still the Queen - who is from Britain - and her representative who is appointed in Australia has powers to pull a double dissolution anytime with our parliaments.
Although Australia gained independence from the Britain in 1901, Australia is still a Constitutional Monarchy State. The Queen, Australia’s monarch or sovereign, is also the head of state. In keeping with the Westminster tradition, the Constitution provides that the Queen shall be represented in Australia by the Governor-General of the Commonwealth of Australia and the Governors of the six States, who exercise the constitutional powers of the Sovereign. The Governor-General corresponds to the Governor of a State and the Prime Minister corresponds to the Premier. According to convention amongst the Governors, the Governor-General is treated as the first among equals, but has no duties or powers to control or supervise. Constitutional conventions which evolved for hundred years in England and which are accepted or evolved further in Australia have developed to ensure that, in practice, the system works as a representative democracy which responds to the will of the community as expressed through elections. Due to its nature, the established constitutional conventions are not set out in the Constitution or other acts of Parliament but they are so uniformly followed and expected to be followed that they are binding in practise, even though the courts will not generally enforce them directly.
Independence
Through the enactment of the Australia Act, the commonwealth parliament and Australian law clearly acknowledged that there is no lack of independence. The states were given full power to make laws for their own following the responsible government ways even when those laws had extra- territorial operations.
The Australia Act completed the move of the states from colonies to sovereign independent political entities that were part of a federation, subject only to the commonwealth constitution and to having no international functions or status.
Commonwealth of Australia is technically a creation of the British Imperial Parliament through the Commonwealth of Australia Constitution Act 1900 (IMP) applied by paramount force to Australia even though Federation in 1901 is often assumed as the moment of “independence”. There was uncertainty as to the applicability of British Imperial laws on the Commonwealth of Australia.
In 1865, the Colonial Law Validity Act (CLVA) was passed to eliminate limitations that were placed on the law-making powers of the early governors and Legislative Councils. The purpose of CLVA was to remove inconsistency between the Colonial and Imperial legislation at that time. It was to counter act the issue of repugnancy where any colonial law contradictory to the provisions of imperial statute of the British colony was override. The Act nullified several judgment of a South Australian judge was known for his notorious judgments on repugnancy of South Australian laws against English laws. But instead of having the CLVA to give opportunity to Australia for independence in the legal sense, the CLVA seemed to have proved that the British government more supreme.
The Statute of Westminster which was passed in1931 overrode the Colonial Law Validity Act. This is in result of the Imperial Conference of 1930 pursuing the abolishment of the supremacy of British parliament over the Dominions legislatures. As a recommendation, the Statute of Westminster 1931 repealed the CLVA 1865 in its application to the Dominions. The statute established a legislative equality between Australia and the United Kingdom. It marked the road to independence of Australia and the other Dominions.
The imperial laws continued to be paramount in Australia until the Australian Act 1986 came about. The Act eliminates the remaining ties between the legislature and judiciary of Australia and the United Kingdom. One of the significance of the act was the removal of the Privy Council from the remaining appeals in the Australian legal system. This allows the High Court of Australia to substitute as the highest power in the final court appeal in Australian law. To mark the significance of the Australian Act 1986, Queen Elizabeth II traveled to Australia for the signing of the proclamation for the law.
As a result of these laws, Australia became a fully independent country. The text of the Constitution is considered now as fully separated from the text in the original Act. Even if the United Kingdom Parliament were to repeal the Commonwealth of Australia Constitution Act 1900, it would have no effect on Australia since only the Australian people can amend the Constitution, by referendum.
Conclusion
Clearly, the arrival of British colonies on Australian soil established a fundamental bond between Australian and English law and politics. However, over the passage of time this bond has deteriorated, and following significant events such as Constitutional changes, proclamation of the Australian Act in 1986 and Australia’s Status as an independent State within the international community; it seems now evident that Australia is an independent nation.
Whilst questions still arise as to Australia’s continuing acknowledgement of the monarchy and its status as a Commonwealth country, it can be argued that the bond between British and Australia is almost like a mentor and mentee. This bond should always be maintained as Australia could always use another counterpart in international relations or even just for continual support from Britain. Thus in conclusion, it is clear that Australia can liaise with Britain and any other independent country on the same level of sovereignty.
References
Blackshield T. & Williams G. 2002, Australian Constitutional Law and Theory; commentary and materials, The Federation Press, NSW.
Cook C., Creyke R., Geddes R. & Holloway I. 2001, Laying Down the Law, LexisNexis Butterworths, Australia.
Hudson W.& Sharp M., 1988, Australian Independence Colony to Reluctant Kingdom, Melbourne Univeristy Press, Carlton, Victoria, Australia.
Attorney-General’s Department, http://www.ag.gov.au/ , viewed 6 September 2006
Australia’s Prime Ministers, http://primeministers.naa.gov.au/ , viewed 6 September 2006
Mark Leeming, 'The liabilities of Commonwealth and State governments under the Constitution' (2006) 2 Australian Bar Review 27
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