It is the nature of the legal system to interpret law, not merely the letter of the law, but also the spirit of the law. That is why we have different levels of law, from lower courts and tribunals to higher courts. Higher courts DO make law, by their interpretation of what is MEANT by the laws they are enforcing. Justice Kirby, as a High Court justice, was in a position to interpret what he believed was the INTENTION of the law. the preamble of the constitution is much spoken about and is a good example of the meaning of the constitution. the preamble is not law in itself, but is meant to give an idea of what is intended in the constitution. The same is the case in other law. It is then up to the judge to interpret both the letter of the law and what is intended by it. An interpretation of the law can be appealed to a higher court, ultimately the High Court. Previous cases in higher courts are used to interpret what is meant by a particular law. Justice Kirby's decisions, alongside those of his colleagues on the bench, are used as precedents in deciding later cases. Precedents from higher courts are more persuasive than lower courts. That is MAKING law. To claim that courts don't make law is naive and that ONLY the parliament makes law is simply incorrect and a misunderstanding of the Australian legal system. On Thu, Mar 7, 2013 at 8:05 AM, Andrew McGlashan < andrew.mcglashan@affinityvision.com.au> wrote:
On 5/03/2013 12:21 PM, Lev Lafayette wrote:
http://lawyerslawyer.net/2007/10/18/melbourne-barrister-john-walsh-of-branna...
Sadly, that blog post is just an attack on a simple person whom obviously had some trouble properly representing the case.
What to expect from a Lawyer's website post.... :(
There are many failures to bring justice in the legal system, regardless of true facts of the matter. I certainly wouldn't be in any position to argue the case in court myself and getting lawyers or barristers to do so defeats the purpose because they ARE part of the problem that we have today; but perhaps one day it will be argued successfully according the facts of the Australian Constitution
It completely astounded me when I heard an interview with Justice Kirby; he stated that the court had to decide on the "spirit" of the law, rather than the "letter" of the law ... I see that as patently wrong. It is NOT the place of the judicial system to make laws, it is only the place to properly fairly enforce laws as they are written with proper interpretation of the facts (letter) and not the spirit of the law. If the law is wrong, it needs to go back through the parliamentary system for review and revision as necessary. Justice Kirby clearly overstepped his powers in my opinion by not sticking to the letter of the law in his judgement(s) on at least one occasion that he spoke about.
A.
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