Case Studies/SA

Question 1

Distinguishing:

Answer 1

Davies vs Waldron was distinguished from Gillard v Wenborn.
In DW case, the driver was found to be at risk of driving and attempted to start a car intoxicated.
In GW case, the driver was found asleep in the drivers seat and at no risk of driving.

Question 2

Implied Right Freedom of Political Communication:

Answer 2

The Political Broadcasting and Disclosures Act restricted political advertising during campaigns.
Australian Capital Television challenged the validity of the Act as if overrode the implied right which was linked to representative government.
Act was found to be invalid as it interfered with the necessary freedom to communicate of political matters.
Lange and Theophanus Case extend IR to any time.

Question 3

Roach Case:

Answer 3

Electoral and Referendum Amendment Act 2006 prohibited all prisoners from voting.
Prior to the act, prisoners serving a sentence under 3 years could vote.
VLR challenged the validity of the Act saying that it overrides rep government.
HC found that 2006 Act was unacceptable due to S7 and 24.
It was therefore unconstitutional due to structural mechanism of rep government.

Question 4

Brislan Case:

Answer 4

S51 gave Cwth power to legislate regarding ‘telephonic,telegraphic, postal and other like services.’
Wireless Telegraphy Act 1905 said owners of wireless sets had to have licence.
Brislan challenged validity of Act.
HC interpreted ‘other like services’.
Shift in DLMP -> Cwth.
Cwth could now legislate regarding ‘telephonic,telegraphic, postal and other like services’, moving into a previous area of residual power.

Question 5

Tasmanian Dam Case:

Answer 5

Australia in 1974 signed a Human Rights Treaty.
Tasmanian Government intended to dam FR (residual power)
World Heritage Properties Conservation Act (Cwth) prevent dam.
Cwth said construction would be unlawful as it breached Act.
HC interpreted ‘external affairs’ in S51.
HC found that Cwth had the power to legislate regarding anything of legitimate international concern.

Question 6

Mcbain Case:

Answer 6

Infertility Treatment Act (Vic) 1995 stated that to receive treatment a women must be in a de-facto relationship, married and living with her husband.
S22 of the Constitution said it was unlawful to deny service on the grounds of marital status.
S109 - Cwth prevailed.

Question 7

DOGS Case:

Answer 7

Defence to Government schools said legislation regarding government funding religious schools contradicted s116.
HC found that it did not contradict s116, as religious schools are not implementing a religion.

Question 8

South Africa process to change words in Constitution:

Answer 8

2/3 of National Assembly and 6/9 provinces in the National Council of Provinces.

Question 9

Kevin and Jennifer Case:

Answer 9

Kevin was born a girl but had gender reassignment before her marriage.
Kevin and Jennifer were married in 1999, to which they applied to the Family Court of Australia to validate their marriage.
The Full Court of the Family Court was called to interpret the word ‘man’ and ‘marriage’, for the purpose of the law of marriage in the Marriage Act.
The Full Court of the Family Court declared the marriage valid.
Said ‘man’ to include a person who was a man at the time and marriage.
‘marriage and man’ should be interpreted according to todays attitudes.

Question 10

Reasons for Statutory Interpretation:

Answer 10

Failure to Foresee ( Parliament may have failed to foresee all future circumstances when drafting the Act and have to fill in the gaps. Kevin and Jennifer)
Broad Wording/Ambiguous Wording: Studded Belt Case.

Question 11

Statutory interpretation is the

Answer 11

process of judges giving a specific meaning to words and phrases in legislation in order to apply the law to the facts of a dispute.

Question 12

Kate Matthews case:

Answer 12

Kate was bullied, abused and sexually harassed by her co-workers. She was awarded $1.3 million in compensation, where the court awarded damages based on calculations on past and future economic loss.

Question 13

Lynette Rowe case:

Answer 13

was born without arms and legs after her mother took the drug thalidomide during pregnancy. Despite receiving $89 million in compensation, Lynette and other victims have a reduced life expectancy, and would severely struggle with day-to-day tasks that would impact on their ability to have a source of income and find employment.

Question 14

The Separation of Powers provides a

Answer 14

system of checks and balances and prevents autocracy through three individual branches including: the judicial arm (High Court and Other Federal Courts), the legislative arm (Parliament) and the executive arm (Government).

Question 15

Strengths of Aus Protection of Rights:

Answer 15

There is not constitutional limitations that can be placed on its rights. Australia’s rights consequently can never be suspended and can not be limited by the Government.

Express rights in Australia can only be changed through a referendum process outlined in s128 of the Constitution.
A referendum is a national vote to decide whether there should be a change in the wording of the Constitution, and involves all citizens. A referendum must pass a double majority provision, meaning that there must be a majority of ‘yes’ voters in Australia as well as a majority of yes voters in a majority of states (4/6) for a successful referendum. This therefore means Australian rights are structurally protected.

Question 16

Strengths of SA Protection of Rights:

Answer 16

South Africa has a more extensive list of rights provided in the South African Bill of Rights, enumerated into their Constitution. These rights are more than political rights, though they can include rights for children, rights to culture and language as well as environmental rights.

Rights in South Africa to be amended must be passed by two-thirds of the National Assembly members and then be supported by at least six of the nine provinces in the National Council of Provinces. Consequently, this a a less rigid structure than a referendum, and may result in the likelihood of a change as the complexity of a proposal or timing of the change should not affect its chances for success.

Question 17

Weakness of Aus Protection of Rights:

Answer 17

Australia’s Constitutional rights are very difficult to locate and understand as there is no Bill of Rights. Instead, Australia’s five express rights are scattered throughout s51-117 of the Constitution. Also, Australia has very few express rights (5) where most a limited in their impact. For instance, s80 Trial by Jury states that there must be a jury for indictable Commonwealth Offences. However, most indictable offences are created under state laws because ‘crime’ is a residual power, where s80 only applies to only Commonwealth offences.

A referendum process outlined in S128 of the Australian Constitution is extremely difficult to achieve. Referendums have a low success rate, with only 8 out of the past 44 referendums have been successful in achieving a double majority. Governments also are reluctant to initiate a proposal to amend rights, due to their high costs and complexity.

Question 18

Weakness of SA Protection of Rights:

Answer 18

However, South Africa’s Bill of Rights has a limitation clause, allowing certain rights to be limited. For this to occur, Parliament can show the infringement is necessary for a greater purpose that is appropriate in a “free and democratic society”. For instance, this was evident in the Prince v. President Case. Prince used marijuana for religious reasons and as the Bill of Rights contains ‘freedom of religion’, Prince believed he should have the right to do so. However, S36 of the Constitution gives the limitations clause and prevented Prince from doing so.

Contrary to this, in South Africa, the people are not asked to vote on a referendum for rights in the Bill of Rights to be changed, and are therefore not involved. This is a decision of the National Assembly although at least six of the nine provinces must agree, where the proposed change to alter rights my not necessarily reflect the views of the majority.

Question 19

Jury Directions Act 2015 (VIC):

Answer 19

• Trial judge can shorten and simply instructions
• Only give directions containing such or the relevant law as the jury is required to know including by giving integrated directions.

Question 20

The Justice Legislation Amendment (Discovery) Act VIC 2014:

Answer 20

• Gives the court power to order parties to prepare a statement of issues which may be used for purposes including discovery.
• Gives the court power to order a party to pay a specified amount to another party in relation to the costs of discovery.

Question 21

Pleadings + or -:

Answer 21

A benefit of pleadings is that it ensures that each party is aware of the specific claims that are being made by the other side, and consequently, will speed up resolution by encouraging agreement on as many issues as possible. This therefore entitles parties to a timely resolution, as parties can then determine whether it is worthwhile proceeding with the case at court, or whether an out-of-court settlement would be the best option with minimal cost, an effective access to the legal system.

In saying this, pleadings often takes a long time to complete and can hinder parties ability to have a timely resolution. This is a result of the several documents that need to be exchanged in the pleadings stage, including a writ and statement of claim.

Question 22

Discovery + or -:

Answer 22

An advantage of using this procedure is that it assists parties to prepare for the trial by allowing them to see the evidence that will be brought against them. By doing so, it avoids trial by ambush, by ensuring that both parties have had access to the same relevant documents. This then allows parties to be able to use these documents and the information they found during discovery as the basis for the evidence they intend to lead at trial, in hopes of achieving a fair and unbiased hearing.

However, the rules relating to discovery including interrogatories are confusing and complex. There are numerous rules about what it is relevant and what is not, and there are complex rules about documents which may hinder the possibility of an effective access to the legal system, as parties may have limited knowledge into the legal mechanisms involved within this procedure. This would require legal rep -> cost Prone to abuse: sheer number of documents can hide the relevant info: time, legal fees,

Question 23

Directions Hearings + or -:

Answer 23

A strength of directions hearings is that the directions in the proceedings are made to ensure an effective, complete, prompt and efficient determination of the case. Directions hearings in addition to other civil pre-trial procedures gives parties multiple opportunities to settle pre-trial, which will be cheaper and faster, reducing court backlog for other cases. Consequently, this may not only result in a timely resolution for parties, but an entitlement to access of the legal system with a reduction of costs where legal representation may not be required as well as minimal filing fees.

Contrary to this, directions hearings may be timely and stressful. They may in fact be a waste of time if the court has ordered the parties the parties to attend the directions hearing but there are no issues to discuss, not achieving a timely resolution. Also, they can be stressful and inconvenient. If a person is unrepresented, it can be very daunting to appear before a judge or an associate judge, not giving parties an entitlement to access of the legal system. In more complex cases, there may be a need for multiple hearings, which can undermine their goal of prompt determination

Question 24

Parliament may abrogate and codify common law principles:

Answer 24

The Parliament may deem it necessary to abolish or repeal common law principles that have been created through the decisions made by court’s (precedents), this is known as abrogation. It may do this for multiple reasons, including the judge’s decision being unrepresentative of the people’s values or the parliament simply disagreeing with the precedent set. For example, it may be argued that John Howard’s 10-point plan is a form of abrogation, as it disagreed with some decisions bade by the judges in the High Court.
In addition to this, the Parliament may decide to codify a common law principle into a piece of Statute law in order to make the decision binding upon everyone in society. For example, the Native Title Act 1993 was passed in order to include the decisions made by the High Courts in the Mabo case and established and protected Native Title for Aboriginal Australians.

Question 25

Courts apply and interpret law:

Answer 25

For legislation to be effective, the courts must be able to apply the statutes to the cases before them, in order to make a decision on a case. For this to happen, the court may have to interpret the wording and meaning of an Act in order to properly apply the piece of legislation to the appropriate case.
Decisions made (ration decidendi) by the meanings of the words in statutes form precedents that become part of the law to be followed in future cases of similar material facts. For example, the interpretation of the words ‘external affairs’ by the High Court in the Tasmanian Dam case set by a precedent to be followed in the future.

Question 26

Judge conservatism/realism and obiter dictum.

Answer 26

Judges may be unwilling and reluctant to interpret statutes and form precedents, as they may believe that it is the Parliament’s role to amend or create legislation in certain areas of law, this was stated by Justice Mason in Trigwell – but they may use their obiter to make comments on the point of law. Through Obiter Dictum, the Parliament may be inspired to create or amend legislation because of the encouragement or criticism by judges in their obiter dicta. The Obiter Dictum in a case creates a form of communication between the Courts and Parliaments, as it allows for a judge to make comments on certain points of law present in an Act of Parliament and on a common law principle.

Question 27

Legislative Process:

Answer 27

1. Introduction and first reading – the bill is first introduced to the house.
2. Second reading – the purpose of the bill is explained, debated and voted on.
3. Third reading – the Bill is voted on the final form as well as being considered in detail.
4. The same procedure occurs in the second house (usually upper, after it has occurred in the lower house).
5. Royal assent – the governor-general or the governor signs the Bill.
6. Proclamation – The act comes into operation.
7. The bill then becomes law.

Question 28

Role of the Crown:

Answer 28

Providing Royal Assent to Bills - Giving royal assent means that the GG or G signs the bill on behalf of the queen to make the Bill become an Act of Parliament.

Executive Council - The GG is a member of the executive council. The GG performs advice on the PM (drafting laws through delegated legislation).

Reserve Powers - Not listed in the Constitution but are convention. Include the power to appoint a PM in the case of a hung parliament, power to dismiss a PM who has lost the confidence of the Parliament and is acting unlawfully.