LAWS1205- Australian Public Law Essay Question
Q4.- mark of 83
i)These 2 cases tell us a great deal about the nature of the judicial process. They remind us that there cannot, and is not, a set or strict way of interpreting the constitution and that strict legalism is a thing of the past. They also remind us that the law can change over time in constitutional law as well as common law (CL). We are also told something about the subjective nature of the judicial process regarding constitutional law.
The first thing that Stephens J reminds us of is that there is no set or strict way to decide cases. The Notion of strict legalism, that judges simply looked at the law and, using the “declaratory theory”, declared what the law had always been is archaic, farcical and a logically redundant way of looking at constitutional law. The law, as Kirby J often mentions, can be seen by others in a variety of ways. Denning often used to interpret the law, in his own words, to “find the just result”. Stephen’s declaration, or perhaps admission, reminds us of the changing theories of constitutional interpretation to lean towards more of an emphasis on a subjective approach that is flexible to move with time.
Stephen’s also tells us, in discussing these 2 cases, how flexible constitutional law today has become. The cases were decided on split courts of 4:3 and 5:2 and in the later case, on almost identical issues, 2 judges changed sides, considering themselves to be bound by other factors like “stare decisis”. The flexible nature of constitutional interpretation, and the scope for which judges may change their minds and, or, alter the traditional constitutional view in the legal community is highlighted by this case.
The two cases tell us a great deal about the way the judicial interpretation in this area of the law is subjective (lecturer has circled this word, but that may be good). Though touched on briefly already the cases tell us that in some areas of the law, where there is no certainty in the law, or perhaps even where there is, as section 122 certainly seemed to override sections 7 and 24, interpretation of the law is subjective. But in these cases we also saw how judges, in interpreting the constitution, will often do so conservatively, with Gibbs and Stephens arguing that the balancing of stare decisis, judicial conservatism, respect for the HC and the policy reasons, such as the existence of territory senators, prevented them, in their minds, from overruling the previous decision. (Man, I had some long sentences!)
The two cases further remind us of the judiciaries perception (Murphy, Mason and Deanne excluded) of a need for conservatism. Gibbs and Stephens balanced the factors and supported Whitlam’s law, but Gibbs made it clear that had it been a greater status quo change than an additional two senators, then he would not have supported it.
ii) Other cases that we have considered in APL, such as Theophonus, Trethowan, the other political communications cases and Mabo have all highlighted the evolving nature (these 2 words highlighted, but that may be good based on lots of previous highlighting he did that I haven’t mentioned) of constitutional interpretation and have given us insights into the true nature of sovereignty of the Australian people, the decline of Diceyan theory and the move towards “implied rights” drawn from the constitution and it’s limits.
(Notice how for this essay Q I have once again managed to squirrel the entire topic into another judicial theory of interpretation topic. I am really good at this issue, so I keep doing it, one day it will fail, but it works in a lot of courses… except blasted Legal Theory)
Firstly cases such as Theophonus have told us a great deal about the nature of Australian sovereignty and it’s origins and how they have evolved. The original constitutional interpretation accepted by the legal community was the perpetuation of the Grundnorm and the circular logic of the theory of sovereignty all coming from England and (the source) being indissoluble (The lecturer put a Q mark next to this word, indicating he had no idea what it meant, since it was appropriate here, this is always good- moral… use big words alot). In Theophanus the HC made it clear, especially through Mason CJ, that the sovereignty of the Australian Nation “lies in the people of Australia”, not in some logically absurd line tracing back to England, and through them to the almighty God. Sovereignty, under the old theory, was an archaic notion, suited to fit in with Kingly claims that they were “sovereign” through divine choice. The theory recently developed, and confirmed in Theophanus and other P.C cases, tells us that sovereignty resides in the people, in a similar vein to Hobbes and Johnson’s idea of a social contract between rulers and the people.
(This is another obsession of mine, using the concept of the social contract in essays, don’t feel obliged to use this)
Additionally, cases such as Mabo, though not constitutional in nature, have highlighted a changing trend in interpretation of the law, with an emphasis on rights and justice.
Cases such as the Political Communications (PC) cases have given us an insight into the HC’s willingness to imply rights from within the text of the constitution itself. They completely abolish any notion of “complete and strict legalism” as advocated by Dixon (perhaps Australia’s most eminent judge) and instead take a realistic (lecturer Questioned the use of this word) approach that, despite criticism, is probably more transparent to the people and more practical than searching for the purpose of the founding fathers, who lived in a day and age without electricity or streetlights, let alone computers. The process is more transparent because judges acknowledge that they make the law. Implications in the constitution are not new, they have been steadily developing since 1920 (engineers) and the 1983 Tasmanian Dams case, but now that the true method is acknowledged it opens it up to scrutiny and hopefully improvement.
The political Communications cases also tell use about the extents to which an essentially conservative court will go to find rights drawn from the constitution. McHugh’s view from ACTTV and Nationwide, that implications must be drawn from within the text itself I\highlights that the court is willing to be conservative to help maintain the status quo, gives us an insight into judicial reasoning, rejects the views of over-archingprinciples that have implications that Murphy J supported, and tell us something about balancing determanism and certainty with the need for constitutional flexibility. The limits drawn of F.O.P.C cases ensure, or attempt, to prevent, abuses of PC. The court wishes, insofar as possible, to provide certainty for people about the law. That said, the scope for subjectivism in Constitutional law, an area that people are less concerned and affected by, is greater than in something like contract law.
Finally we see in cases like Trethowan the clear limitations of any sort of strict Diceyan theory applying in Australia today, if indeed it ever applied, here, or in the U.K. The 4 principles of Diceyan theory all have clear and multiple exceptions, Trethowan illustrating but one of these, showing the ways in which state Govts can bind successors in some ways. Further the entire Diceyan theory is based on archaic and impractical notions of Responsible Govt and ministerial responsibility that don’t apply in Australia (clearly this was not the thing to say, instead try simply are not realistic in modern Australian politics). Ministers just don’t resign over scandals or failures ir Reith, Ruddock, Woolford etc, etc Heffernan etc. The Diceyan theory of limited judicial interference does not hold up in Australia given the extent to which courts rule Parliamentary laws or executive actions invalid or unlawful.
The cases we have studied, mentioned above give us clear insights into the ways in which the Constitutional interpretation of … by the judicial functions and hi the…