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 parliamentExamples:• 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 constitutionExamples:• 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 electorsThe 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 ConstitutionSection 7:• Senate members to be directly chosen by the people• Equal number of senators from each original state• 6 year terms for SenatorsSection 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 ConstitutionSection 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