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July 16, 2019, 12:00:01 pm

Author Topic: Difficulties in gaining access to the law  (Read 4440 times)  Share 

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Pencil

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Difficulties in gaining access to the law
« on: November 06, 2007, 04:01:03 pm »
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Just wondering how much detail are yous learning for this area, as in are you learning changes/suggested changes for all of the problems (financial barriers, delays, cultural differences, social differences) or just a few in good detail? gah I can't be bothered

Also while I'm here, another dotpoint is 'problems in criminal and civil procedure and the purpose of possible solutions' do you reckon we can use some of the same things? I know it's a bit different because it is more about the procedures than access, but I think some, like delays, are common to both?
hm yeah so basically I'm just procrastinating haha

costargh

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« Reply #1 on: November 06, 2007, 06:08:08 pm »
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Its pretty common sense stuff. That kind of stuff. Like financial barriers, difficulties with English etc. Just make sure you know how to explain them in enough level of detail and don't just presume that saying gaining access to the law isn't equitable will give you full marks. Don't worry about learning in heaps of detail though.

For your second thing. Yes. lol

brendan

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« Reply #2 on: November 09, 2007, 08:06:33 pm »
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wow is this part of legal studies, i haven't learnt this before in law

Pencil

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« Reply #3 on: November 11, 2007, 01:04:37 pm »
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hey brendan, I have a question.

In talking about the weaknesses of courts as law-makers, I plan on saying that judges are not elected, and are typically drawn from a narrow socio-economic group (although this is changing) and they therefore may not reflect community values. Cases such as the R v. Johns (1992) 'rape in marriage' case have caused community outrage and raised doubts as to whether judges are in touch with community views.

Now, I'm unsure as to whether the judge in this case actually did set a precedent? and thought you might know. It's just that if they did, I'll be able to say 'this case raised doubts as to whether judges should be involved in law-making' rather than 'this case raised doubts as to the degree that judges are in touch with community views, which may in turn affect their ability to make laws for the community'. Haha I could probably say both, but I was just wondering.

I probably could google it haha

brendan

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« Reply #4 on: November 11, 2007, 02:03:46 pm »
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i have a pretty strong view on judicial activism and i condemn it, in all its forms.

do not ever say that the courts are supposed to be engaged in 'making law' - that is not their function.

As Judge Learned Hand said in his dissenting opinion in United States v Shaughnessy (1952) 195 F 2d 964 at 971 (2nd Cir): ??Think what one may of a statute ... when passed by a society which professes to put its faith in [freedom], a court has no warrant for refusing to enforce it. If that society chooses to flinch when its principles are put to the test, courts are not set up to give it derring-do.??

This is reminiscent of the more remarks of Oliver Wendell Holmes, in advocating judicial restraint, ?If my fellow citizens want to go to hell I will help them. It?s my job? (Letter to Harold Laski; 4/3/1920; M Howe (ed) Holmes-Laski Letters (1953) vol 1, 249)

[b]Chief Justice Murray Gleeson, "Courts and the Rule of Law", The Rule of Law Series, The University of Melbourne, 7 November, 2001[/b]

Quote from: "Gleeson CJ"
It is unfortunate that the process by which judges, usually judges of courts of appeal, develop and refine the common law, is often described as "making law" in a manner that implies that the process is legislative.  The judicial method is, or ought to be, different from the legislative method (See The Hon. M. H. McHugh, The Judicial Method (1999) 73 ALJ 37). In Breen v Williams (1996) 186 CLR 71 at 115, Gaudron and McHugh JJ said:

"Advances in the common law must begin from a baseline of accepted principle and proceed by conventional methods of legal reasoning.  Judges have no authority to invent legal doctrine that distorts or does not extend or modify accepted legal rules and principles."


Here are some exerpts from [b]Justice John Dyson Heydon, "Judicial Activism and the Death of the Rule of Law" [2004] [i]OtaLRev 2[/i] [/b] with a few points i added in as well:

Judicial activism tends to the destruction of the rule of law.
The force of the law depends of the capacity of the legal system to command of the consent of the people.
If judicial opinions are in a constant state of flux, swinging back and forth, one cannot expect the law to remain reasonably stable. Uncertainty in the law will result. What one court may plausibly see as an immediate gain to justice in the particular case may have unintended consequences of a harmful kind, and one of those consequences may be to erode the ability of the public to place confidence in the law and hance capacity of the law to command the people?s obedience.

Meaning of Judicial Activism
The expression ?judicial activism? is here used to mean using judicial power for a purpose other than that for which it was granted, namely doing justice according to law in the particular case. It means serving some function other than what is necessary for the decision of the particular dispute between the parties. Often the illegitimate function is the furthering of some political, moral or social programme: the law is seen not as the touchstone by which the case in hand is to be decided, but as a possible starting point or catalyst for developing a new system to solve a range of other cases. Even more commonly the function is a discursive and indecisive meander through various fields of learning for its own sake.

Courts can change the law
The common law is not frozen and immobile, change in the law is entirely legitimate. When new cases arise, existing principles can be extended to deal with them, or limited if their application to the new cases was unsatisfactory. As business or technical conditions changed, the law could be moulded to meet them. As inconveniences came to light, they could be overcome by modifications. The changes could be effected by analogical reasoning, or incremental growth in existing rules, or a rational extension of existing rules to new instances not foreseen when the existing rule was first developed. Particular rules might be modified by the detection of more general principles underlying them or a more rigorous reformulation of some traditional concept.
Even though courts are free to depart from their earlier decisions or the earlier decisions of lower courts, they should not lightly overturn established precedents. The law in general should only be changed by a process of gradual development, not by violent new advances or retreats or revolutions or ruptures.

The Court is neither a legislature nor a law reform agency
State Government Insurance Commission v Trigwell (1979) 142 CLR 617 at 633, the once cautious, Mason J said: ?I do not doubt that there are some cases in which an ultimate court of appeal can and should vary or modify what has been thought to be a settled rule or principle of the common law on the ground that it is ill-adapted to modern circumstances. If it should emerge that a specific common law rule was based on the existence of particular conditions or circumstances, whether social or economic, and that they have undergone a radical change, then in a simple or clear case the court may be justified in moulding the rule to meet the new conditions and circumstances.
But there are very powerful reasons why the court should be reluctant to engage in such an exercise. The court is neither a legislature nor a law reform agency. Its responsibility is to decide cases by applying the law to the facts as found. The court's facilities, techniques and procedures are adapted to that responsibility; they are not adapted to legislative functions or to law reform activities. The court does not, and cannot, carry out investigations or enquiries with a view to ascertaining whether particular common law rules are working well, whether they are adjusted to the needs of the community and whether they command popular assent. Nor can the court call for, and examine, submissions from groups and individuals who may be vitally interested in the making of changes to the law. In short, the court cannot, and does not, engage in the wide-ranging inquiries and assessments which are made by governments and law reform agencies as a desirable, if not essential, preliminary to the enactment of legislation by an elected legislature.?

Judges not equipped to ?make law?
Leaving aside the legitimate role of appellate courts in changing the law by a process of development and adaptation, the conscious making of new law by radical judicial destruction of the old rests on a confusion of function. Those who staff courts do not have that function. They lack the experience to perform it; they lack the assistance required to perform it; they can only do it retrospectively; it is not easy for them to do it clearly; it is not easy for them to do it decisively; and it is not possible for them to balance the financial and other effects of the changes against other demands.

In Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 262, Fullagar J said: ?If the language of an Act of Parliament is clear, its merits and demerits are alike beside the point. It is the law, and that is all.?

Judges swear to apply the existing laws and usages, not to unsettle them by critical debates about them and speculations about their future, and certainly not to create new laws and usages. It is legislatures which create new laws. Judges are appointed to administer the law, not elected to make it or undermine it.

Community values or judge?s values?
When judges detect particular community values, whether in the Australian community or the ?international community?, as supporting their reasoning, they may sometimes become confused between the values which they think the community actually holds and the values which they think the community should hold. This suggests that the judiciary are in truth applying the values which they hold, and which they think the people ought to hold even though they do not. The trouble is that persons adhering to different values or different perceptions of need or different aspirations tend to be at risk of being ruthlessly waved out of all decent society as enemies of the people.

Politicians job not judge?s job to make law
Radical legal change is best effected by professional politicians who have a lifetime's experience of assessing the will of the people, who have been seasoned by much robust public debate and private haggling, who have all the resources of the executive and the legislature to assist, who can deal with mischiefs on a general and planned basis prospectively, not a sporadic and arbitrary basis retrospectively, and who can ensure that any changes made are consistent with overall public policy and public institutions. Professional politicians may not be an ideal class, but that is their job, and they are better fitted than the courts to make radical legal changes.

brendan

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« Reply #5 on: November 11, 2007, 02:24:05 pm »
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Oh and do not use the argument that judges are from "a narrow socio-economic group (although this is changing)". I do not think of it as a strong argument as one could say that politicians are also drawn from "a narrow socio-economic group (although this is changing)" .

Pencil

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« Reply #6 on: November 11, 2007, 02:31:22 pm »
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Quote from: "brendan"
Oh and do not use the argument that judges are from "a narrow socio-economic group (although this is changing)". I do not think of it as a strong argument as one could say that politicians are also drawn from "a narrow socio-economic group (although this is changing)" .


haha ok that one was from my textbook.

Thanks for all the info, very interesting.
Just to check with the trigwell case, I see it says it was 1979, and I've been saying all along that it was 1978 because that is what my textbook says also. So is it 1979? (just so I don't write it wrong on the exam)

We often get questions along the lines 'There is no need for courts to make the law. Parliament's do that job well enough' I've generally been arguing that whilst parliaments are very effective in their role, judges do make a valuable contribution. I suppose you would agree fully with the question then?

brendan

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« Reply #7 on: November 11, 2007, 02:34:05 pm »
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Because the question talks about "making laws". What laws? Constitutional law? The common law? I would say that judges have a role in changing or developing the common law gradually, not "making laws". Furthermore, if you say that you would have Chief Justice Gleeson, and Justice Heydon on your side.

the hearing for trigwell was in 78 but the judgment has handed down in 79

Pencil

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« Reply #8 on: November 11, 2007, 02:36:11 pm »
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Also I see you've used the Trigwell case as an argument that courts shouldn't be involved in law-making. But don't you think that in this case, because the judge was conservative, this led to an unjust result? And sometimes it's necessary for judges to fill gaps left in legislation to ensure justice for the parties?

Pencil

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« Reply #9 on: November 11, 2007, 02:38:04 pm »
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Quote from: "brendan"
Because the question talks about "making laws". What laws? Constitutional law? The common law? I would say that judges have a role in changing or developing the common law gradually, not "making laws". Furthermore, if you say that you would have Chief Justice Gleeson, and Justice Heydon on your side.


Well that was an examination question. I guess laws in general  :?

brendan

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« Reply #10 on: November 11, 2007, 02:41:17 pm »
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Quote from: "goosefraba"
Also I see you've used the Trigwell case as an argument that courts shouldn't be involved in law-making. But don't you think that in this case, because the judge was conservative, this led to an unjust result? And sometimes it's necessary for judges to fill gaps left in legislation to ensure justice for the parties?


Then that's a problem for the Parliament not for the judiciary.

"Courts inflict great pain and distress on those who lose litigation and on those adversely affected by principles laid down in litigation. The public will put up with pain of that kind which is caused by parliamentary legislation ? not always, but most of the time. The public will also put up with a great deal of the pain caused by litigation if it is seen to be the result of long-established rules which could be, but have not been, changed by parliamentary legislation. It is much less easy for the public to put up with the pain if it is caused by the world view of one judge, or a bare majority of appellate judges; or if the courts are in discord; or if judicial opinions are in a state of constant flux as they swing back and forth or spiral down in sickening fashion. What one court may plausibly see as an immediate gain to justice in the particular case may have unintended consequences of a harmful kind, and one of those consequences may be to erode the ability of the public to place confidence in the law and hence the capacity of the law to command obedience." Justice John Dyson Heydon, "Judicial Activism and the Death of the Rule of Law" [2004] OtaLRev 2

As Judge Learned Hand said in his dissenting opinion in United States v Shaughnessy (1952) 195 F 2d 964 at 971 (2nd Cir): ??Think what one may of a statute ... when passed by a society which professes to put its faith in [freedom], a court has no warrant for refusing to enforce it. If that society chooses to flinch when its principles are put to the test, courts are not set up to give it derring-do.??

Oliver Wendell Holmes, former Justice of the Supreme Court of the United States, in advocating judicial restraint, ?If my fellow citizens want to go to hell I will help them. It?s my job? (Letter to Harold Laski; 4/3/1920; M Howe (ed) Holmes-Laski Letters (1953) vol 1, 249)

brendan

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« Reply #11 on: November 11, 2007, 02:42:50 pm »
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Quote from: "goosefraba"


Well that was an examination question. I guess laws in general  :?


The same fundamental principles apply by former Justice of the High Court, Justice McHugh, said that he was pretty legalistic when it came to statutes and the Constitution, but less so when it came to the common law.

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« Reply #12 on: November 11, 2007, 02:44:19 pm »
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Quote from: "brendan"
Oliver Wendell Holmes, former Justice of the Supreme Court of the United States, in advocating judicial restraint, ?If my fellow citizens want to go to hell I will help them. It?s my job? (Letter to Harold Laski; 4/3/1920; M Howe (ed) Holmes-Laski Letters (1953) vol 1, 249)


Ha that's funny

brendan

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« Reply #13 on: November 11, 2007, 02:48:26 pm »
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In an interview Sir Ronald Wilson undertook in 1997 in the light of Bringing Them Home, he was asked whether he would have taken a different approach to adjudication if he were to return to the High Court today. He responded: "I don't think that I would, but because my dominant feeling on the bench is that I have sworn to 'do justice according to law'. And it's that 'according to law' that makes it so damned difficult... the two decisions that I would not wish to confront again was the Koowarta decision and secondly Mabo #1. I wrestled for ages with Mabo #1 and I still can't read section 10 of the Racial Discrimination Act in such a way as to find that it applies and so I dissented. Mind you, I wasn't alone. It was 4:3. So two other minds of some eminence reasoned along same lines, but I was longing to find with the majority. So you've posed a conundrum and frankly my only defence is that I gave it my best shot in these two cases but was compelled by my legal reasoning the way I did. It was a great honour to serve on the High Court but I can't say it was the highlight of my professional career. It was damned hard work". (From Julian Morrow, "Interview with a Commissioner", Blackacre (1997) 27, 29).

brendan

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« Reply #14 on: November 11, 2007, 02:53:37 pm »
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1 or 2?

I would not disagree to the extent that they were ridding the common law of obvious falsehoods such as terra nullius. However, i would have much rather preferred legal change to be effected through the legislature.