Essay Constitutional Law Australia - Interpretations

Words: 4008
Pages: 17
Open Document
Constitutional Interpretation: Engineers’ Case and criticisms of Callinan J in the Workchoices’ Case.
By Mark Walker
Introduction

In the dissenting judgment made by Callinan J in the landmark New South Wales v Commonwealth (“Workchoices’ Case”), a strong criticism was mounted against constitutional interpretation methods employed in the judicial forum. Explicitly, this conjecture was focused at Isaacs J’s judgement in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (“Engineers’ Case”), where a textualism approach to constitutional interpretation was adopted. Callinan J expressed the Engineers’ Case as “less than satisfactory”, using “detached language” to discredit its literal methodology of interpreting the constitution. …show more content…
In the early years after its creation, the constitution was arguably a political document which was a codification of the distinct features, structure and purpose of governmental control within the Australian federation. Initially, the consideration in the judiciary of the framers’ intention behind constitutional principles was important to set a benchmark for its subsequent application. Furthermore, the early High Court judges were contributors to the constitutions formation and it was “necessary for them to make decisions about the meaning of the instrument they helped to create”. However, as time progressed there was a requirement for the document to be seen less as a political document and more a legal document which lawyers could effectively use. This is why vague inferences were deterred in favour of a more structured approach in the Engineers’ Case.

Consistency of the ‘golden rules’ of interpretation

Textualism through the ‘golden rules’ of statutory interpretation is a structured objective methodology, which can be easily, consistently and predictably applied within the constitution. The ‘golden rule’ of interpretation requires the construction of provisions to be read according to their natural and ordinary meaning, which in layman’s terms would be the way an ordinary person would give meaning to the provisions. Justice Gaudron is considered a strict structuralist, whose approach to “judicial power is that it must be exercised
Show More

Related Documents: Essay Constitutional Law Australia - Interpretations

Introduction To The Australian Legal System Chapter 1 Essay

Business Law Midsem Revision Chapters 1-10 Chapter 1 – Introduction to the Australian Legal System Common Law - When an issue goes to court and there is no statute that covers it, a judge will hear the case and issue a verdict. The record of this verdict becomes a precedent so that when similar cases arise, other judges may take into account the penalty previously issued. Previous judgements therefore form the basis for common law. Law is the body of principles or rules made by parliaments and the…

Words 1667 - Pages 7

Essay Structure

Research Essay 2,000 words: Satisfactory 1 The High Court of Australia has ultimate responsibility for interpreting the Constitution in an independent manner. Given this responsibility, how adequate are the current processes and principles of appointment of High Court judges? It’s good to give your paper a title, one that indicates your position Introduction The Governor-General is given the power to appoint judges to the Australian High Court and other courts by the Australian Constitution.1…

Words 4128 - Pages 17

australian constitution Essay

the Australian constitution still reflects Australia? Taking a general view it can be said that it is sufficient, however, given that it is over one hundred years old it could also benefit from clarification. When first considering the constitution the colonies were largely supportive of the British parliamentary system; however, there was also support for America's constitutional changes had an effect on the way they considered the future of Australia. While they did not wish to break British ties…

Words 472 - Pages 2

The Australian Constitution: Aboriginal And Torres Strait Islander People

Section 51(xxvi) of the Constitution provides that the Commonwealth Parliament has the power ‘to make laws for the peace, order and good government of the Commonwealth with respect to the people of any race for whom it is deemed necessary to make special laws’ . Whilst this provision can relate to any race, this essay will focus primarily on Aboriginal and Torres Strait Islander peoples, as they have been adversely affect by the race power. In considering amendments to ‘the race power’, it may be…

Words 779 - Pages 4

Principles Of The Australian Parliamentary System

the three functions of the legal system. Each function is carried out by a distinct body. The first function is the legislative function. This involves the creation of law, and belongs to parliament (established in Chapter I of the Constitution). The second function is the executive function. It involves the administering of the law (e.g. federal police, customs) – established in Chapter II of the Constitution. Theoretically, it belongs to the Queen's representative (Governor-General). However, in…

Words 6752 - Pages 28

Melbourne Principle - The Defeat of Federalsim Essay

Through the decisions of the High Court, Australia's Federal system has been altered so that the relationship between the Commonwealth of Australia and the State governments today has become deeply imbalanced. The Melbourne Corporation principle marks a small concession towards a more balanced federal system however it has been largely ineffective in protecting the states from continual encroachment into their power by the Commonwealth. This essay will trace the history and the development of the…

Words 2103 - Pages 9

Us And Australian Criminal Procedure

Abstract The United States and Australian laws of criminal procedure show many common features which originate from their common English origin. These include the presumption of innocence, the neutral role of the trial judge, and the use of the jury trial. However, between the jurisdictions there are also significant different approaches especially in relation to the treatment of illegally obtained evidence, improperly obtained confessions and entrapment. The transparency of the jury is also an important…

Words 2080 - Pages 9

Momcilovic Case Analysis

the decision in Momcilovic and the issue of inconsistency between Commonwealth and State Laws Introduction The interpretation of what it means for a State law to be ‘inconsistent’ with a Commonwealth law has drastic consequences on the division of law-making powers in Australia. This is because it has the ability to narrow or eliminate the States’ capacity to legislate on certain matters where a Commonwealth law exists. The notion of inconsistency was recently revisited in Momcilovic v The Queen where…

Words 1208 - Pages 5

Case Study On Law

se(of(the(term(“common(law”?( Common%law%refers%to%the%body%of%laws%developed%by%judges%as%distinct%from%legislation;% None%of%the%above%statements%is%an%incorrect%description%or%use%of%the%term%‘common%law’.% Many%former%British%colonies%share%the%common%law%system%as%a%legacy%of%their%colonial%origin;% Common%law%was%developed%by%successive%Acts%of%the%United%Kingdom%Parliament;% The%rules%of%equity%developed%to%remedy%the%inflexibility%and%inadequacies%of%the%common%law;% % 2. Which,(if(any,(of(the(following(statements(is(correct…

Words 4004 - Pages 17

Legal Unit 3 Notes Essay

abused by one body LEGISLATIVE POWER – The power to create laws is given to the parliament (at state level to state parl.). EXECITIVE POWER – The power to create policies and deal with the administration of laws in theory falls with the Governor General, however in practice, GG elects specific ministers who then become responsible for the executive power. (overlap in power, weakness??) JUDICIAL – The power of interpreting and applying the law falls with the courts. 4. AND 5. STRUCTURE AND ROLE OF…

Words 5832 - Pages 24