b) Stare Decisis: This principle means to stand by what is decided. This principle is traditionally presented and is not a complete explanation of what occurs in the making of the common law. This principle suggests that common law is static and simple, which is not. The doctrine of stare decisis that the principles would remain unchanged. The principle of stare decisis is not flexible, that is what ever the judge’s decision is, and he has to stand by it. The principle does not allow judges to view the merits and demerits of each case.
- How does the High Court’s decision in The Commercial Bank of Australian Ltd v Amadio (1983) 151 CLR 447 illustrate the operation of the doctrine of precedent? [Illustrate your answer by reference to the relevant cases on unconscionable contracts in Topic 4]
Ans. 3] The Commonwealth Bank of Australia vs. Amadio was an important decision taken in 1983. The case revolved around two migrants, Mr. and Mrs. Amadio who was unfamiliar had to sign a contract relating in favor of a mortgage of their land through a bank for their son. The son had told his parents that the mortgage was limited to $50,000 and was to be for six months. Actually the mortgage held an unlimited liability. The bank was aware of this ‘special disadvantage’ of Mr. and Mrs. Amadio. The couple had lack of knowledge of English because of which, they could not interpret the documents. Although aware of this situation, the bank could have provided professional advice on this matter. The following case was dealt according to the doctrine of unconscionability.
The jurisdiction is long established as extending generally to circumstances in which
- A party to a transaction was under a special disability in dealing with the other party with the consequence that there was an absence of any reasonable degree of equality between them.
- And that disability was sufficiently evident to the stronger party to make it prima facie unfair or “unconscientiously” that he procure, or accept the weaker party’s assent to the transaction in circumstances in which he procured or accepted it.
This case had applied the doctrine of precedent in earlier cases. For example, the judge in the case of Blomley vs. Ryan had listed some examples of special disability, “poverty, or need of any kind, sickness, age, sex, infirmity of body or mind, drunkenness, illiteracy or lack of education, lack of assistance or explanation where assistance or explanation is necessary.” The judge had also reported that the common characteristics of such adverse circumstances seem to be that they have the effect of placing one party at a serious disadvantage of the other.
Another relevant case is the case of Clark vs. Malpas. In this case also, the stronger party took advantage of the weaker party. The transaction of the sale of three cottages was carried out when the weaker party was terribly ill or rather on the verge of death.
Hence, the decision in the case of Commonwealth vs. Amadio was taken in favor of the couple through application of the doctrine of precedent.
Topic 5
- Discuss the Mischief or purpose approach to statutory interpretation making note of the relevant statutory provisions in NSW or the commonwealth;
Ans 1] The approach which the judges consider today is the ‘mischief rule’, in other words the ‘purpose approach’. The purpose approach identifies the main purpose of the law. For example, a person throwing litter. This situation can be seen from two different perspectives. One that a person may have unintentionally kept something useless like a newspaper in a bus, or he must have intentionally thrown some thing. This situation proves that the judges should now discover the main purpose of the ac and then read each word and phrase so as to carry out that purpose, to achieve the results. For example considering the interpretation of the federal tax legislation. In the 1970s, in a number of cases the high court upheld requests against the tax liability by the wealthy tax payers on the basis of the literal interpretation of the law. In the early 1980s the high court moved away from the literal approach, assisted by the new section added in 1981 to the Federal Acts Interpretation Acts 1901. Section 15AA requires courts to prefer an interpretation of federal acts ‘that would promote the purpose underlying the act’ rather than one which would not, and the parliamentary council are now beginning to spell out in laws the underlying purpose or object. The result of this more purposive approach was to make it more difficult for the people to avoid tax by creating fake plans. The Commonwealth and the State Parliament have even gone so far as to enact provisions with direct costs to adopt a purpose approach. These provisions are found in the various interpretation acts. The common law purposive approach to the interpretation of legislation was applied by determining the purpose of parliament in passing the legislation or the particular provision in question and adopting the interpretation of the words that was consistent with that purpose. The purpose approach is applied only when an attempt is made to apply the literal approach, produced by an uncertainty or unpredictability.
a) How does this approach differ from the literal approach.
a) In contrast to the purpose approach, the literal approach states that during the interpretation of the law, the words are to be read in their ordinary and natural meaning, and then mechanically applied to the facts. In other words the literal approach assumes that the meaning and intention of the legislature has been expressed effectively by the actual words used in the instrument to be interpreted and that the court just has to give an effect to those words. Based on this view, the job of the court is not to think about whether the results are fair or not, it is only to apply the statute to the facts. In other words if the parliament does not like the results, it can change the law by amending the statute. The main disadvantage of this approach is that the words do not have a clear meaning that is there is a real doubt about what they mean. But the literal approach has a certain appeal. It allows judges to avoid personal responsibility for their decisions. The judges would only say that any results produced are due to the statute and not human behavior. This is the natural human reaction which is confronted with a difficult choice and some judges like other people would prefer to take the easy way out. In many cases this approach enables the questions presented to the court to be answered confidently and no difficulties would arise. Another reason for the persistence of the literal rule is that the English political system has been influenced much by the idea of the classification of the powers in a state as judicial, executive, or legislative and the unfavorablility of having same body exercise than having one kind of power. If the judges can persuade themselves that they are only applying the legislation, then they are sticking to the judicial powers.
b) What are the advantages of using the mischief / purpose approach to interpret statutes?
b) The Australian courts today use the mischief / purpose approach. The main advantage of this approach is that it helps to specify what the law is and how it is to be applied. Given the case of throwing litter. A person may have thrown it intentionally or unintentionally. This approach helps in clarifying particular doubts in such a case. The section 35 of the Acts Interpretation Acts claims that the purpose approach requires no doubts or contradiction. The purpose approach helps the judges to consider the purpose for which the act is made for determining if there is more than one possible construction. Another advantage of the purpose approach is that, it helps to solve complex situations when the words of the Act yield more than one meaning, like the above example. Thus the purpose approach is more beneficial to use than the literal approach.
2) What approach to statutory interpretation should Australian Courts adopt today? Why is it important that the courts approach statutory interpretation in this way?
Ans 2) The Australian Courts should adopt the mischief / purpose approach today. The courts should adopt this approach because; today the objection here is that the judges are making the law. But this is true only in a limited sense. The judges use the ideas of morality and justice, which are the very foundations of law and they share these ideas with the society they are a part of. They assume that a democratic legislature does not wish to be flagrantly unjust. The purpose approach is used when the judges face difficulty in deciding what a statute means, even after analyzing the language used. Under this rule, the statute is to be interpreted with a view to giving effect to its purpose. The words of a statute are given a meaning that fulfills a statute or a provision. With this approach the judges now set out to discover the purpose of the act and then to read each word and phrase so as to carry out that purpose to the extent they are capable of being read. The judges would not easily presume that the legislation has not intended to change the common law. When in doubt they will give such a construction that would enable the act to operate smoothly rather than to be restricted.
Since courts today are more ready than previously to acknowledge that complex situations can arise in solving in the interpretation of a statute they often look first at the entire Act and then see the words in the light of three considerations:
- The context of the statute
- The purpose of the whole statute
- The audience to whom the particular Act, regulation or section is addressed
. The purposive or mischief approach has become very popular among the Victorian and federal judges, which is directed at advancing the purpose of the statute. This is why courts prefer to interpret the statute using a purposive approach.
3) In case study A, Ms Wolenski is uncertain whether the Sex Discrimination Act 1984 (Cth) would apply to the social function she is planning should any unwelcome sexual conduct occur.
a) What Statutory provisions are relevant to this problem?
Ans 3) a) The statutory provisions that are relevant to this case study is in the Division 3 of the Sex Discrimination Act of 1984. This division is related to Sexual Harassment. The section 28 of this division claims that:
- an individual is sexually harassed if any person makes an unwelcome sexual advance, or an unwelcome request for sexual favors;
- or engages in other undesirable conduct of a sexual nature in relation to the person harassed.
These circumstances would result into an individual being harassed, offended, humiliated or intimidated. Also in this section, ‘conduct of a sexual nature’ would include making a statement of a sexual nature to a person, or in presence of a person, whether the statement is made orally or in writing.
b) What ambiguities do these provisions contain?
b) Though Ms Wolensky’s dilemma can be solved through the section 28b of the Sex Discrimination Act, but this situation could also raise doubts about the meaning of the words in the Act. One of the ambiguities of this provision is that, the word ‘circumstances’ can be looked upon from two different ways or opinions. For example, the defendant can say that the sections of the Sex Discrimination Act do not cover the sexual discrimination occurring in social functions. And when the court decides on such arguments, it is said that the court interpreted the legislation.
c) How do the rules of statutory interpretations help you to resolve these ambiguities?
c) One of the main rule of statutory interpretation which can help to solve this ambiguity is that the words of the act are read in their ordinary meaning, and then these words are mechanically applied to the facts. It can be possible that the judgments passed by the judges may or may not be favorable to Ms. Wolenski, because the judges may follow the literal approach. But the courts may adopt the purpose approach which is more consistent with this case because of the ambiguity discussed. The Section 28b of the Sex Discrimination Act of 1984 also states that the external materials could be given consideration, to confirm the meaning of the words in a case, if it is ambiguous.
TOPIC 6
- In submission of the Senate Legal and Constitutional Legislation Committee, the Australian Law reform Commission identified two possible sources? What doubts were raised about the constitutional validity of this bill?
Ans. 1] There has been two sources of constitutional authority for the Native Title Amendment Bill 1997. These are Race power and External Affairs Power. There is no guarantee as to the validity of the bill under either head of power.
Race power
It is not yet settled under law whether the race power may be used either to the benefit or detriment of the indigenous people or any other designated race or only for their benefit. This created a doubt because it matters whether it is an advantage to the indigenous people.
In the case of Koorwarta vs. Bjelke-Peterson, the majority of the high court decided that it was possible for the power to be utilized in either direction. The prospect that the race power may be interpreted as providing grounds only for legislation that advances rather than retards the rights and interests of indigenous people is bolstered by the fact of Australia’s ratification of international instruments which, in terms of international Law, oblige Australia to ensure that state actions do not discriminate on the grounds of race to the detriment of a particular racial group in society. Whenever the constitution is ambiguous, the court should adopt meaning, which conforms to the principal of fundamental rights rather than an interpretation, which would involve a departure from such rights. Hence, the Universal Declaration of Human Rights plays a significant role in the recognition of equal and inalienable rights of all humans.
External affairs power
This power claims that there is an important link between the Native Title Amendment Act and Racial Discrimination Act. According to section 51(29) of the high court, it may validly support an Act that seeks to implement an international treaty given that the statute is in conformity with the broad intention of the treaty. For instance, in the Tasmanian Dam case, it was noted that the implementary legislation must be appropriate and adapted to achieving what it is said to impress it with the character of law with respect to external affairs. It also follows that the Racial Discrimination Act can be supported by 51(29) as it can reasonably serve the ends of the convention on the elimination of all forms of Racial Discrimination to which Australia is a signatory and upon which the Act is based. Reliance on s(51)(29) for authority for amendments to the NTA will fail in so far as they cannot reasonably be read to promote the objects of CERD.
Proposed legislation extinguishment of Native Title
A new section of the bill had stated that where there is inconsistency between the Native Title and other Land rights, Native Title would be extinguished to the extent of inconsistency. But it was stated the Wik decision that inconsistency in the Land rights would not affect the existence of the Native Title land rights for all the time.
This shows that there is no clear legal basis for the assertion that the high court in Wik and Mabo case contemplated the extinguishment of native title by non-exclusive property rights. The proposed amendments seeking to extinguish permanently native title rights are unjustifiable and cause problems for attempts to characterize the bill as to a special measure. Hence, there appears to be considerable doubt as to the validity of either of the sources of constitutional authority for the bill.
- What is the relevance of international Law to native title legislation in Australia?
Ans. 2] International law includes treaties, conventions and customary international laws. It is basically the system of rules, which govern the conduct and relations between states at an international level. International law has developed recognition of the individual as a subject of human rights. International law is of considerable importance to the Aborigines and Torres Strait Islanders. A major focus of the international legal system has been the right of self-determination. The government has acknowledged that the blanket extinguishment of native title could be argued to be a breach of international obligations. In the Mabo decision, Justice Brennan had stated that the common law does not necessarily conform to the international law, but the international law is a legitimate and important influence on the development of common law, especially when international law declares the existence of universal human rights. The constitution of Australia contains no explicit grants of treat making power. Under section 51 of the constitution, Federal Parliament has the power to make with respect to external affairs.
Australia is a signatory to two international covenants, which are of special relevance.
- International Covenant on Civil and Political Rights (ICCPR)- the article 26 of this covenant states that all people are equal before law and are entitled without any discrimination to the equal protection of law. They provide protection against the denial of the enjoyment or enjoyment of cultural rights. The particular relationship between land use and culture especially in the case of indigenous people has been recognized by the human rights committee.
- Convention of Elimination of all forms of Racial Discrimination- it prohibits discrimination on the ground of race which has the purpose or effect of impairing recognition, enjoyment of human rights and fundamental freedom in any field of life. The amendment bill has provided grounds for individuals from Indigenous and Torres Strait Islander communities to petition either the United Nations Human Rights Committee or the Committee on the elimination of Racial Discrimination.
- How is international law is relevant to legal change in Australia?
Illustrate your answer with reference to case studies A?
Ans. 3] Laws are not fixed in stone and are subject to modification both by legislation and by judges as they seek to apply law. This is also referred to as the dynamic and fluid nature of law. Law reflects and effects the changes in society. International Law is basically the system of rules, which govern the conduct and relations between states at the international level. International Law has now developed recognition of the individual as a subject of human rights. Customary international law finds its way into resolutions and declarations by the UN General Assembly. These rules and principles are binding on states. One example of rules deriving from international customary law can be found in the Universal Declaration of Human Rights. International law can have several possible applications in Australia. Treaties and principles if international law may be relevant in resolving issues of common law and statutory interpretation.
With relevance to case study A, which deals with sexual harassment of Laura, it should be stated firstly that Australia is obligated to many conventions and treaties in the Human Rights area. One such convention is the Convention on the Elimination of all Forms of Discrimination against women. This convention has been signed and ratified by Australia. The federal Sex Discrimination Act gives effect to Australian obligation under CEDAW. The major objectives of the SDA 1984 are:
- Promote equality between men and women
- Eliminate discrimination on the basis of sex, marital status or pregnancy, and with respect to dismissals family responsibilities.
- Eliminate sexual harassment at work, in education, in the provision of goods and services, in the provision of accommodation and the delivery of the Commonwealth Programs.
The Human Rights and Equal Opportunity Commission is the administrative body that is responsible for the implementation of federal human rights and anti-discrimination law in Australia. To avoid the liability employers are required to take all reasonable steps to prevent sexual harassment occurring. To assist the employees, the Human Rights and Equal Opportunity Commission released a code of practice on sexual harassment. Hence Laura could check if the code was followed in the department or if reasonable steps were followed.
PART B
- The true force of the doctrine of separation of powers requires that executive, legislative and judiciary be separate and independent from each other.
- How does this doctrine operate in Australia?
(Illustrate your answer with reference to case study A,B and C)
Ans. 1] The separate constitutional creation of the legislative executive and judicial organs of government within the framework of a federation has led to the frequently expressed notion that the Australian Constitution adopts and enacts the doctrine of separation of power. The true force of that doctrine requires that organs of government separate from and independent of each other should exercise the three powers. The constitution has created arms namely:
Legislative- the essential feature is the recognition that parliament has the absolute right to make or unmake any law. Under the Australian constitution, the legislative function is vested in the federal or common wealth parliament. The crown, represented by the governor general is also part of the legislature and measures passed by both houses of parliament are not law until they by both houses of parliament are not law they receive assent. Since Australia has a federal system, legislative powers must be shared between the Commonwealth and the states.
Executive-it may be defined as the authority within the state, which administers the law, carriers on the business of the government and maintains order within and security from without the state.
The executive powers of the Commonwealth is exercisable by the govern general, represented to the Queen and extends the execution and maintenance of the constitution and of the laws of Commonwealth.
Judicial power- is the power exercised by the courts to resolve disputes arising under the laws.
The judicial power of the Commonwealth shall be vested in the Federal Supreme Court, to be called the high court of Australia and in such other federal courts that the parliament creates. Judges do not make law, they simply declares the law as it exists.
The separation of doctrine of powers can be understood thought the case of Brandy vs. Human Rights and Equal Opportunities Commission. Although this case, had blurred the judicial and non-judicial powers. The high court did not depart from the doctrine.
The Human Rights and Equal Opportunities Commission had observed the cases that were under the SDA 1984, RDA 1975 and DDA 1992. The Commission had recommended that Brandy and his employer pay compensation and apologize to a fellow employee for the pain, humiliation, distress and loss of personal dignity as a result of the racist comments made by Brandy. This arose to the controversy whether the tribunals had judicial powers. Because it was against section 252(2) of the act, which states that a determination of the commission is not binding and conclusive, and therefore the commission has no power to enforce its own decisions.
The judges of the case argued that proceedings must be registered with the court and the court must implement a review procedure. The final jurisdiction on the case must lay with the high court. Hence, according to section 71 the powers to impose penalties and to enforce federal law is purely judicial in nature. The question that laid before the high court was not whether it was valid for a non-judicial body to enforce its own decisions, but rather what procedures constitute enforcement.
Q. 3] In Sydney morning Herald 27 September 1997, Noel Pearson was quoted as saying that ‘Mabo is the most eloquent compromise that could ever have been drafted between the undeniable realities of original ownership and 204 of colonial history,’ Explain why you agree or disagree with this statement.
Ans. 3] I agree with the statement because the Mabo Case no. 2 was a landmark case decided by the High Court, establishing the Native Title rights within the legal system of Australia. This was the first case of the high court to recognize the common law rights of indigenous people. It is considered to be the most eloquent compromise between the original ownership of land and colonial history because the high court had challenged the decision that was made in a background case, ‘the Gove Land Rights Case.’ The two cases, Gove Land Rights Case [Milirrpum vs. Nabalco. Pty Ltd.] and the Mabo Case [Mabo vs. Queensland] provide a different role of the High Court in Australia.
In the first case, the Gove Land Rights Case, the Judge Blackburn had decided against the claims of the aborigines. He had concluded that there was no supporting evidence to prove the aborigines’ links with the land in Gove peninsula. It was also concluded that there was no doctrine of communal native title in the common law of Australia, after observing the native rights in many countries. The judge had looked at the principles, which applied to the acquisition of colonial territory.
In the Mabo Case, the High Court sat to consider a similar question regarding the claim of native rights, but had reached at an opposing conclusion from the Gove Land Rights case. In this case, the High Court had used its power to shape the precedent with the doctrine of Terra Nullies, the growth in importance to international laws of human rights or the changing composition and outlook of the High Court. Terra Nullies meant that the territory inhabited by people who did not have a recognized social or political organization, or simple meant ‘land of no one.’ All members of High Court concluded that Australia, irrespective of the original presence of the aborigines, was a territory acquired by settlement.
The high court had decided that
- The doctrine of terra nullies should not have been applied to Australia
- There is a concept of native title at common law
- Under native title, the Meriam people are entitled to possess occupy, use and enjoy the Murray Islands.
It can be concluded that there is a very complex nature in the role of the high courts. It has been seen that two very different decisions had been made in the two cases, proving that high court is not subjected to a simple role or by just following the doctrine of terra nullies. It has changed over time viewing the circumstances. This also shows that there is a great degree of flexibility in the High Court decisions.