The Australian courts

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I declare I have kept a copy of this assignment. TASK 1 Part A: Footnotes 1. Richard Edney, Mirko Bagaric, Australian Sentencing: Principles and Practice (Cambridge University Press, 2007). 2. Dietrich v Regina (1992) 177 CLR 292. 3. Jethro K Lieberman, 'Bad Writing: Some Thoughts on the Abuse of Scholarly Rhetoric' (2008) 49 The Australian Legal System: History, Institutions and Method cited in Russell Hinchy, New York Law School Review (Pearson Education Australia, 2004) 475-476, 7. 4.

Human Rights and Equal Opportunity Commission, Bringing them Home: National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families [1997] 257-286. 5. Dr Julie Cassidy, 'The Impact of the Conquered/Settled Distinction regarding the Acquisition of Sovereignty in Australia' (2004) 8 Southern Cross University Law Review 1-50. 6. Children (Protection and Parental Responsibility) Act 2004 (NSW). 7. Peace and Non-Violence Commission Bill 2007 (Cth). 8. Convention on the Elimination of All Forms of Discrimination Against Women, opened for signature 18 December 1979 (entered into force 3 September 1981).

9. AnthonyAlbanese, MP (Grayndler), 'National Broadband Network Bill' (Speech delivered by at the House of Representatives, Canberra, 25 November 2010). 10. LexisNexis Defamation (2010) Halsbury's Law of Australia <http://www. lexisnexis. com. au> at 28 November 2010. Part B: Bibliography 1. Edney, Richard, Mirko Bagaric, Australian Sentencing: Principles and Practice (Cambridge University P ress, 2007) 2. Dietrich v Regina (1992) 177 CLR 292 3. Hinchey, Russell, New York Law School Review (Pearson Education Australia, 2004).

Human Rights and Equal Opportunity Commission, Bringing them Home: National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families [1997] 257-286 5. Cassidy, Julie Dr, 'The Impact of the Conquered/Settled Distinction regarding the Acquisition of Sovereignty in Australia' (2004) 8 Southern Cross University Law Review 1-50 6. Children (Protection and Parental Responsibility) Act 2004 (NSW) 7. Peace and Non-Violence Commission Bill 2007 (Cth) 8. Convention on the Elimination of All Forms of Discrimination Against Women (1981).

Anthony Albanese, MP (Grayndler), 'National Broadband Network Bill' (Speech delivered by at the House of Representatives, Canberra, 25 November 2010) 10. Lexisnexis, Halsbury's Law of Australia (28 November 2010) <http://www. lexisnexis. com. au> TASK 2 The Hon Justice Michael Kirby reviews the current operation of the doctrine of precedent in Australia. According to the Australian Bar Review (1988) the doctrine of precedent is referred to as ''the hallmark of the common law''1 of the Australian legal system that constructs a resolution for legal issues in which Australian lawyers use.

The review claims that they are a number of certain factors that have affected the operation of the doctrine of precedent in Australia which includes the abolition of all avenues of appeals to the Privy Council, the Mabo v Queensland case, the constant tension between continuity and the change of law and the shift towards statute law. One of the most significant changes to the doctrine of precedent that applies to the Australian courts derives from the changing status of the English judicial decisions.

2 The operation of the Judicial Committee of the Privy Council during the 1970s and 1980s were being enforced as a final court of appeal. 3 The Privy Council and the Judicial Committee in respect to any legal principle essential to a case, used the rules to establish decisions that were binding in all courts which included the federal, State and Territory throughout the nation. However the doctrine of precedent did change once the Privy Council and the Australian legal and constitution severed all ties with each other. 4

Presently, the High Court is now given the position as a final court of appeal in Australia. The High Court has always departed from precedent and has been much more inclined to re-examine its past decisions. This factor can be seen on the Mabo v Queensland case where it declared the status of Terra Nullius to Australia. This shows that when judges show their discretion and flexibility in the common law system by departing the doctrine of precedence and accepting and acknowledging community values and policy choices it does affect the doctrine of precedence.

The constant tension between continuity and the change of law is another factor that affects the doctrine of precedence, as reflected in a debate seen in the 2003 Hamlyn Lectures. 6 Hon. Justice Kirby states in the lecture that ''Somewhere between the spectre of a judge pursuing political ideas of his or her own from the judicial seat irrespective of the letter of the law, and the unrealistic mechanic deified by the strict formalists, lies a place in which real judges perform their duties: neither wholly mechanical nor excessively creative''.

It also shows that society changes and the law needs to change along with it in order to work effectively. Finally, another factor that affects the doctrine of precedence in Australia is the shift towards statute law. The common law today operates in orbit of statute law. 7 The statutory provisions which the judicial interprets is said to have bind the courts below in order to have the same meaning to the words in question, however, if the same type of expression is seen in a different statute then the courts are bound by precedence and will ordinarily seek to apply similar principles to the new setting. 8 TASK 3

Part A: Paraphrasing There is an Australian debate concerning the application of the doctrine of precedence to which the discussed subject is about the judicial method. The debate looks through two different types of view between the merits of ''strict and complete legalism and judicial restraint'' and the ''judicial activism and judicial creativity''. 9 Sir Owen Dixon expresses his view on the doctrine of strict legalism in his swearing in as Chief Justice of Australia by disclosing his opinion which he stated as the doctrine of strict legalism helps maintain the confidence of all parties in Federal conflicts.

10 He also states that the courts may be extremely legalistic, though he looks at his as more of a pro rather than a con. Sir Owen Dixon also reinforces this argument by stating that though the court may be rather excessive in legalism, it does provide a safe guide when there is a conflict in judicial decisions there is always a strict and complete legalism. Nonetheless, the ''judicial activist or judicial realist'' (both refers to the same thing) is said to have a wider prospective in law-making judges.

The debate discusses that the 'judicial activist/realist' applies discretion and flexibility in the Australian common law system by taking into account the community values and policy issues that the judges use when formulating a rule. The debate doesn't also looks at just 'judicial activists' as a definition, the debate also criticises the notion in decisions that have been applied in Australia.

These criticism includes the reversal of the accepted of terra nullius, the freedom of political communication as a constitutional right and the right to legal representation for an indigent individual for the most heinous crimes as an essential element for the right to a fair trial. Part B In relation to the debate about judicial method between the ''strict and complete legalism'' and ''judicial restraint'' as against what critics call ''judicial activism'' and defenders describe as proper ''judicial creativity'', the ''strict and complete legalism'' should be the clear winner in this debate.

Strict and complete legalism is a matter for the courts, it needs to be professional and conductive even though it can be excessively legalistic. Furthermore, the Chief Justice of Australia in his own words states 'there is no safer guide to judicial decisions in great conflict than a strict and complete legalism'. This ensures that both parties of each side maintain full confidence in the courts when there is a federal conflict.