Methods of Judicial Interpretation Legalism and Activism

Legalism Legalism is an approach to judicial decision making that emphasises judicial restraint. In this view judges should strictly adhere to the literal meaning of the words of the law Established legal norms should be followed Based on the principle that the development law should be left as much as possible to the elected parliament Examples: Communist Party Abolition 1951 Second Uniform Tax Case 1957 State Banking 1947

Arguments for Legalism The separation of powers means that parliament makes law and the courts should merely apply the laws parliament has made to individual cases The decisions of judges should be based on pre-existing legal norms Judges should be guided by ‘judicial restraint’ and take no regard in their decisions to change society

Second Uniform Tax Case 1957 This case considered the issue of grants power of the Commonwealth under s.96 and was a challenge to the earlier decision of South Australia v Commonwealth (the First Uniform tax case). The case affirmed the Commonwealth government's ability to impose a scheme of uniform income tax. This was an example of legalism, because it followed previous interpretations of the law that were established in the First Uniform Tax case It did not change or take alternative interpretations to the law

Activism Activism is the view that from time to time it is reasonable for a court judgement to depart from precedent and existing legal principles This should be done to bring the law up to date with existing community values Activist judges may find implied meaning in the constitution Examples: Mabo 1992 Theophanus 1994 Australian Television Case 1992

Arguments for Activism It is a legitimate form of judicial review Creativity of judgement is inevitable as new legal situations arise It solves ambiguities in legislation The appropriate common law precedents may not exist Parliament may fail to resolve legal questions or bring the law up to date Judges can consider policy based on community values

Mabo 1992 Mabo was a landmark case which established native title in Australia The High Court rejected the doctrine of terra nullius, in favour of the common law doctrine of aboriginal title, and overruled Milirrpum v Nabalco Pty Ltd (1971) In overturning the principle of terra nullius, the High Court took an activist approach as they departed from the previous precedent of terra nullius

Functions of the Commonwealth Parliament Theory vs Practise

Legislative Function Parliament should initiate, deliberate and finally pass legislation. This suggests that legislative proposals should be raised by both the government and the ordinary members of parliament However in practise this is rarely the case as the government will ave majority support in the HOR and therefore will be able to decide what legislation can pass through their, therefore non-government members of parliament will be unlikely to initiate legislation in the HOR Bills should also be thoroughly scrutinised by parliament and amended if neccessary

Representative Function The representative function means that parliament should provide a voice for the interests and opinions of electors The representative function can be argued to be carried out in 4 ways: Delegates – act as a voice for the views of their electorate Trustees – MPs have been voted in by their electorate in order to act upon their own judgement Partisan – MPs are there just to represent their party and therefore their role is just to vote along party lines Mirror representation – a representative parliament should mirror the gender, ethnic and general socio-economic patterns of a national population

Responsibility Function Parliament must also check the executive and provide ‘checks and balances’ to their power Done through collective ministerial responsibility and industrial ministerial responsibility

Sections of the Constitution Section 7: Senate members to be directly chosen by the people Equal number of senators from each original state 6 year terms for Senators Section 24: HOR members chosen by the people Twice the members of the Senate Seat numbers to be based on population No original state to have less than 5 seats

Sections of the Constitution Section 51: Sets out concurrent and exclusive powers of federal parliament Divided into 2 subsections: external affairs and corporations Section 53 The senate may no initiate any law that imposes tax or raises revenue Cannot amend any proposed laws to impose tax or raise revenue Apart from money bills, the Senate is equal to the House of Reps