Common Law and the Australian Legal System - Assignment Example

Name Institution Title: Соmmоn Law and the Аustrаliаn Legal System Course Code Date Соmmоn Law and the Аustrаliаn Legal System Question 1 Part A The prosecution will not be successful. This is because 5(b) of the Public Safety Act is qualified by Section 5 of the Summary Offences Act 1966, whereby during a prosecution for footpath or road obstruction under paragraph (e) of section 4; or (b) any local made under section 111 of the Local Government Act 1989 or any equivalent preceding ratification. According to this section, an obstruction involving assembling people and not being a convoy or by any individual or individuals being a part of or allied to such assemblage the court will not convict the defendant unless the court fully establishes that, after considering all circumstance regarding the case and to the level of traffic which essentially was during the instance on the footpath, there was too much obstruction (Rawls 2002). In this case, David was not involved in any demonstration and thus the prosecution cannot prosecute him of obstruction of the road through demonstration which is a common offense under Summary Offences Act 1966. Even though Section 24 offers restricted protection from prosecution regarding anything done or not done by an individual when taking part in a public assembly that is not legal, David was not participating in any illegal public assembly and thus he has unlimited immunity from prosecution (O'Neill 1997). According to the Section 6 of the Summary Offences Act 1966, an individual should not without a reasonable justification willingly prevent, in any way, the free passage of an individual, or a vehicle within a public place. In the case of David, he did not cause the obstruction willingly because he was helping his friend Cindy whose wheelchair had not crossed the road and thus he was only trying to save Cindy by towing her. David can clearly prove this since they are both disabled and using the emergency kit is their way of saving themselves from such unanticipated accidents (O'Neill 1997). In the case Haywood v Mumfold, obstruction was termed as any incessant physical occupation of a part of the road or street which significantly reduces the available space for passing and re-passing or which negatively affects passing or re-passing, regardless of if such obstruction affects any individual or not. Going by this precedent case, David did not cause any obstruction. This is because he did not physically obstruct a part of the road continually because his obstruction was sudden and short-lived because it is the rope that accidentally went right across the road, causing the skidding on the car (O'Neill 1997). Further, according to Section 6 of the Summary Offences Act 1988 (NSW), only wilful obstruction is an offense. In the case Arrowsmith v Jenkins, wilful obstruction was termed as doing something out of freewill causing obstruction. In this case, David did not cause the alleged obstruction willing and thus prosecution cannot be successful. Obstruction also includes carelessness and in this case David was not reckless in any way since he was caught in an emergency and was trying to save Cindy (O'Neill 1997). Offences in Public Places Act (1979) Section 7 stipulates that the act of obstruction should entail deliberate obstruction and also the offender should be having an intent that his act of obstruction will impact the free passage of another person without any legal reason of doing that. Evidently, David’s act was not a deliberate obstruction nor did David have the intention of affecting the free passage of the motorist or any other person. He was merely trying to save his friend and the alleged obstruction was in no way deliberate. Therefore, the prosecution will not be successful in proving that David contravened section 5(b) of the Public Safety Act (O'Neill 1997). Part B Linda can be successfully prosecuted under this section. This is because before she placed the paint containers and the cleaning fluid receptacles having traces of inflammable materials, which is against section 5(a) of the Public Safety Act? Nature strip is a public shed and in addition she left the inflammable matter which is also against the Act. Generally, in case an individual brings in materials likely to cause damage such as fire in Linda’s case, the individual is held responsible for the reasonably foreseeable outcomes of the act. In Linda’s case, the prosecution can also argue that she was negligent and thus she can also be successfully prosecuted of negligence. In her case there is some aspect of fault because the materials she placed in the nature strip were flammable yet she did not take any precautions before placing them there in addition to her not disposing any flammable materials appropriately as per the requirement. As a result, the prosecution is in a position to successfully to prove fault on her part and thus liability in negligence on Linda’s part (Rawls 2002). Moreover, before leaving the flammable materials within an open space, she was supposed to first obtain permission from the respective local authority, which she never did. In addition, her negligent act of leaving flammable materials in a public place resulted to damage to the public where the materials triggered excessive heat which eventually damaged her neighbour’s car which was parked within the street outside her house. The fact that the car was parked in the street clearly shows that Linda left the flammable materials and the waste within a public place, which is against the law (Rawls 2002). For defence, Linda can claim that she was not aware of the flammable materials and that was the reason she did not take the required precautions. Still, her character of being a responsible citizen and a diligent mother can be used in demonstrating her good conduct to the court, which will prove that she did not commit the offence knowingly. The last defence is that she did not do it deliberately because she had been assisting her son and other children and her disposal of the materials in the dustbin was part of her son’s kindergarten final activities and thus the act was not deliberate and also she did not have the intention of causing fire to the public (Robertson 2009). Question 2 Part A Does Australia need a constitutional Bill of Rights? Australia needs a constitution Bill of Rights in order to enhance the protection of human rights as well as freedoms in Australia. Generally, Australia does not have a Bill of Rights within the constitution and thus the human rights are not suitably protected. The constitution that Australia uses has a small number of human right warranties because essentially Australian constitution is a document devised to govern the allotment of legislative power between the Australian States and the Commonwealth. However, the constitution has few individual right which consist of voting right, the right to be tried through jury, freedom of religion in addition to the ban against discriminating people in terms of race or ethnicity(Charlesworth 2006). Additionally, the constitution protects some economic rights. Nonetheless, these rights evidently just protect the right to equality and are prone to legislative overrule through successive incoherent legislation owing to the doctrines of the common law regarding parliamentary control. Even though the Commonwealth has ratified laws that prohibit discrimination basing on race, ethnicity, gender as well as disability, these laws are not well-established and actually cannot without emending the Constitution since the Australian Constitution has the power of preventing the Commonwealth Parliament from instilling restrains, regardless whether it is procedural or substantive power, solely. As a result, s 10(1) of the Racial Discrimination Act 1975 (Cth) that stipulates that all legislation, consisting of ensuing legislation is not valid to a degree that it is not consistent with the Act, is not well-established and express legislation can overrule it. An example of this is an incident where just recent the Commonwealth ratified a legislation that imposed controls on Indigenous people within the Northern Territory (Charlesworth 2006). Accordingly, the Australian constitution does not entirely protect human rights and the closest an Australian jurisdiction has enacted a legislation providing ample protection to human rights are the ones that were ratified by the Australian Capital Territory along with Victoria, whereby the document encompassed the Human Rights Act 2004 (ACT) along with the Charter of Rights and Responsibilities Act 2006 (Vic). Essentially, these documents only assist in interpretation where courts are required to interpret legislation according to the document. Note 20 clearly states that if this is Impossible, the legislation should be applied but Note 21 on the other hand allows the courts to declare any inconsistency. Additionally, even though the documents require public authorities to respect human rights, this requirement is not obliged in case the interpretation of the legislation cannot be done consistently according to the human rights statutes. Still, the right of recovering damages for violations by public authorities in events where the interpretation of the statutes can be done consistently with human rights is in particular exempted (Murphy 2004). Basically, the protection that the current legislation offers cannot be compared to the one that a Bill of Rights can provide. The most significant disparity is that whereas a constitutional Bill of Rights engrains protecting the rights, legislation usually can be revised or repealed. A Bill of Rights expressly protects essential human rights from political interferences which lead to amendments. Another reason why a Bill of Rights should be included with the Australian Constitution is that there are key gaps within the present structure of human rights legislation which a Bill of Rights can cater for. Within Australia, human rights have been given statutory protection and this makes them susceptible to legislation amendments and changes within policies (Murphy 2004). Finally, the current individual rights with the Australian constitution do not protect people against the activities of Australian government. For instance, the in the case R v Pearson; ex parte Sipka, the High Court ruled that the right to vote that Section 41 of the constitution just protects the rights of individuals who were allowed to vote at the State level before the Commonwealth Franchise Act 1902 was ratified. This ruling implies that Section 41 is not basically practical currently. This shows how express protection of human rights under the current Australian constitution is restricted. Therefore, the protection that the Australian constitution provides to human rights is wanting. The constitution only has a small number of constitutional freedoms and numerous basic rights that are not protected. In failing to protect the numerous basic rights within the constitution, the constitution does not guarantee that each and every Australian is has the rights it provides and thus Australia should have a constitutional Bill of Rights. Part B Methods are used by judges in interpreting a statute Judges use statutory interpretations in order to make sense during their rulings. When interpreting a statue, the judge analysis the rationale as well as the history of the legislation. Mostly, there is a written documentation that follows the legislation from the beginning to end and this includes debates regarding the legislation. Accordingly, the judge can utilize the information obtained from the history of the statute to assist in determining what the function of the legislation was and then apply that in interpreting any unclear terms of the legislation (Sinclair 2006). During a statute interpretation, the first thing the judge does is attributing the common and acknowledged implication to the words in the statute. Normally, the judge tries to interpret statutory law in a manner that doesn’t go against other laws or infringe on any other jurisdiction. In addition, a judge can also depend on early construction canons during a statutory law interpretation. The three fundamental classifications of canons that judges use in interpreting the law include deference, textual, in addition to substantive. In every classification are number of principles that normally direct a judge regarding how a law should be interpreted. For instance, a principle of textual canon stipulates that when some of items are in particular stated within a statute, it follows that anything that is not within the list of items should have a preamble like “for instance”. Another illustration is the avoidance principle in the deference classification, where a judge s supposed to choose an interpretation that keeps away from creating constitutional problems if the interpretation of a statute is done in different ways. To discover the true intentions of the Parliament, the judges try determining how a statute is supposed to be implemented. This entails a statutory construction where the judge assumes that legislature is supreme during the creation of a law and that the only purpose of the court is to interpret the law. However, practically, through performing the statutory construction, a court can implement some changes within the law operation (Sinclair 2006). The interpretive process is not essentially value-laden. This is because even though during statute interpretations, substantive principles guide the court in favoring interpretations that encourage specific values and that a statute interpretation should not infringe any basic societal values, this process also requires the judges to construct a statute that does not conflict with international law. An example of a case that illustrates that interpretive process is not inherently value-laden is Murray v. The Charming Betsy, 6 U.S. (2 Cranch) 64 (1804), where it was observed that a Congress Act should not be interpreted to breach the law of countries in any other possible construction is available. The interpretive process in deference rules involves instructing the court to defer to the interpretation of another institution which illustrates that the judiciary is not the sole government arm trusted with constitutional responsibility. The interpretive also involves the rule of lenity where during interpretation of an unclear criminal statute, the judges are expected to resolve the uncertainty in the defendant’s favor (Norman 2000). Part C Precedent A precedent is always supposed to preserve some values and this may be difficult. These values include the fairness, where the judge is supposed to treat similar cases alike to enable courts to have consistency on how they handle parties within a similar situation. This can be a complex for a judge because even though the cases maybe alike, the current social conditions and expectations maybe different. Another value of precedent is predictability where it enables judges to predict the future operation of a law and also validates that courts are supposed to apply the set out law and leave any amendments or changes of the law to the legislature (Llewellyn 2002). Fundamentally, these values of a precedent case bring issues regarding the principle of precedent. For instance, a precedent case may be unjust and thus there would be no justice if all ensuing alike cases are determined in the same manner. As a result, this leads to several significant issues regarding case-as-precedents. One result of the common law within the precedent case laws is that the judges might be reluctant to create new precedents since this is equivalent to creating laws, which is the sole responsibility of the parliament. Generally, the common perception is that some new matters comes up whereby no legislation can be applied and which cannot be indisputably incorporated within the scope of existing precedent and therefore the judges are not just supposed to decide on this nor are they supposed to proclaim the issue “non-justiciable” (Crawford 1993). In case an authentically law is required to tackle the new matter emerging in give cases, this is the responsibility of the parliament to create the new law and not the courts. Consequently, this brings in the issue of if such an issue can be brought within the scope of existing precedent. In general, courts are reluctant in declaring themselves entirely not in a position to handle the issue. Changing a precedent case law by the judges come up basing on the judicial creativity whereby due to the changes within the society, there are expectations that the common law is bound to change and also develop with time. New situations are emerging and require adoption of the existing precedents. If such a law is not adapted, the judges may not be able to resolve all the court cases that will be brought before them. Therefore, it is inevitable that judges, especially those at the higher level ought to be creative and implement such changes (Crawford 1993). However, such creativity due to changing circumstances on the part of the judges should not go too far. This is because judges are not supposed to utilize their own values during law adaptation and should rely on the doctrines and concepts from the law. Nonetheless, even within that limit, judicial creativity is apt to take place. On the contrary, such judges can be perceived as not being conservative because it is the duty of the judiciary to be conservative. The role of the judges is using the existing laws in solving cases but not going off on their own policy explorations and creating new law (Crawford 1993). Generally, the sole recognized and appropriate source on new law which can result from such changes by the judges is the parliament elected by the citizens. The judges do not have the power to create law through creation of new judicial precedent. In contrast, the role of the judges is application of the existing law in a conventional manner. The rule of law stipulates predictability, and in case judges have the freedom of creating new laws to fit what they perceive as new circumstances, but merely following emergence of these circumstances, then this poses a threat to the rule of the law. This is due to the fact that individuals will not be aware of the form of the law, when planning of their conduct (Crawford 1993). The perception has been there for a long time. However, the modern perception of the common law is that it calls for a conservative concept regarding the judicial function. This implies that it should be acknowledged that in the earlier days, judges made the law, even though this does not entail or allow judges to go on making the law (Crawford 1993). What follows is that with the acknowledgement that the declaratory theory of law is no longer applicable, the judges are supposed to stop making or creating law through new precedents and pass over that role to the parliament. Bibliography Crawford, J., 1993, Australian Courts of Law. Oxford University Press, Melbourne. Murphy, L.K., 2004., Why Australia Needs a Bill of Right. AGPS, Canberra. Charlesworth, H., 2004, The Australian reluctance about rights, Alston, Sydney. Norman, J., 2000, Sutherland Statutory Construction, West Group, Austria. Sinclair, M., 2006, Llewellyn's Dueling Canons, One to Seven: A Critique, New York Law School Law Review, Vol. 51. Llewellyn, K., 2002, Remarks on the Theory of Appellate Decision and the Rules of Canons About How Statutes are to be Construed, Federation Press, Melbourne. O'Neill, N., 1997, Retreat from Injustice: Human Rights Law in Australia, Federation Press, Melbourne. Rawls, J., 2002, Offences Relating to the Good Order, Oxford University Press: Oxford. Robertson, G., 2009, Public Order, Vintage Books: North Sydney. Read More