Judicial Conference of Australia Case Study 2022

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Word Count for Part A: 1163
Word Count for Part B: 1054
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Part A
Sir Owen Dixon had acclaimed that ‘there is no other safe guide to judicial decisions in great
conflicts than a strict and complete legalism’ on being avowed as a Chief Justice. According
to the Judicial Conference of Australia1, the judges and magistrates make appropriate
decisions on the cases, which have been appealed in the court by evaluating and applying this
notion. The Australian law mainly comprises of constitutions by the Commonwealth, state, as
well as territory parliaments, along with related regulations, which are completed by the
territory executives with respect to the northern territory legislation. On the other hand,
according to Galligan Judicial activism has a greater influence on the political or
administrative institutions, processes, and outcomes2. In the political context, the recent
judgments of the Australian High Court disclose an institution, which is determining and
defining the liberal democracy’ contours at an exceptional extent3.
Regarding the same statement, it is affirmed by Awawda 4 that democratic regimes have a
rigid division between the powers of the state. This inflexible separation is generally
observed in the judicial authority and the legislative. On the other hand, this partition is not
viable as in the modern state’s constitution the legislature generates widespread regulations,
which governs people’s lives. However, it does not completely rely on the legislature; it is
partially owed to the other branches of the legislation5. According to Foley6, Australian
judicial review is considered as the “strong-form,” because the High Court maintains
“general authority to determine what the Constitution means”. Moreover, its constitutional
1 Judicial Conference of Australia, The Judiciary (Web Page, 20 August 2019) <https://www.jca.asn.au/the-role-
of-judges-and-magistrates/>.
2 Brian Galligan, ‘Judicial Activism in Australia’ Judicial Activism in Comparative Perspective, 70, 70.
3 Haig Patapan, ‘Politics of Interpretation’ Sydney Law Review (2017) 22, 247, 247.
4 Osayd Awawda, ‘Strict Legalism or Judicial Activism Which One is the Dominant?’ (2014) Safeness And
Excessive Legalism, 1, 2-3.
5 Osayd Awawda, ‘Strict Legalism or Judicial Activism Which One is the Dominant?’ (2014) Safeness And
Excessive Legalism, 1, 2-3.
6 Kathleen E. Foley, ‘Australian Judicial Review’ (2007) 6(281) Washington University Global Studies Law
Review, 281, 281, 291.
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interpretations are generally consistent and compulsory on the legislatures and executives at
the federal, state, and as well as in the territory levels. In this legislation, judges and other
judicial persons are appreciative in maintaining equality and justice when the litigants are in
dispute. Judges of the court mainly push the persons in the jurisdiction in terms of legislative
power. It must also be noted that constitutional courts not only exercise negative actions only
but also deals with the unconstitutional legislation7. Besides, the focus of constitutional
legislation is to deals with the current observers, who would associate with individual
liberty8. Hence, it can be said that courts are acting optimistically by enhancing the legislation
to the appropriate limit so that the decisions can be appropriately made thereby complying
with the constitution9.
According to Tina10 Judicial, reconsideration in terms of administrative law was found to
develop in the 17th century when several rights were issued for the Crown. Considering the
common law, the accessibility and possibility of judicial review is an effect of the judicial
solution. Dixon from his statement engaged the common law method with exceptional skills
so that proper reasoning could be given after the verdict of any case is given. This implies
that considering this statement, correct solutions to the legislative problems can also be
derived. He considered the principles of legislation and judicial functions. He also involved
the judicial method through which it was adequate to designate the intention that lay behind
the labours11. On the other hand, according to Dawson, Daryl, and Nicholls, Mark12, the
notion explained the viewpoint, which guided him in doing correct and ethical judgments.
7 Kathleen E. Foley, ‘Australian Judicial Review’ (2007) 6(281) Washington University Global Studies Law
Review, 281, 281, 291.
8 William Rich, ‘Constitutional Law in the United States and Australia: Finding Common Ground’ (2017) 35
Washburn Law Journal, 1, 4.
9 Kathleen E. Foley, ‘Australian Judicial Review’ (2007) 6(281) Washington University Global Studies Law
Review, 281, 281, 291.
10 Tina Obrien, ‘Judicial Review’ (2016) Traditional Rights and Freedoms.
11 Tina Obrien, ‘Judicial Review’ (2016) Traditional Rights and Freedoms.
12 Daryl Dawson and Mark Nicholls, ‘Sir Owen Dixon and Judicial Method’ (2009)15 Melbourne University
Law Review, 543, 543.
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Furthermore, Dixon's judgments were based on the true indication of such an approach.
Dixon’s approach of the judicial method was although considered realistic; it enabled the
adherence of the main values of the method thereby taking a severe and absolute legalism
approach. Dixon also explained that there was 'no other safe guide to judicial decisions’. In
this context, legalism was defined as an approach, which has the ability to adapt to the
changing needs of a developing society. It can be said that particular importance must be
given to the techniques of the common law and it should be applied for further development.
He also described the construction as the rigid constitution, which is dealing with public
confidence.
The role of the judiciary has the greatest importance in international instruments. Regulating
the judiciary is the necessary part of the fight against corruption in order to protect the rule of
law. It can be said that the legislative structure is generally related to corruption and hence,
must be considered as the corrupt conduct. On the other hand, the existing system of the
regulation, which is based on the regulation of the judiciary, has greater importance.
According to the Bhajan and Peter13, the constitution is generally adopted in the year 1901
and it has distributed the legislative power in the public policies among the State
governments and the Commonwealth. Alan14 also agreed on the given fact. He stated that
there are some probable factors, varies from socio-economic features of the federation in
relation to the institutional “safeguards” 15 of the constitutional plan. In the Tasmanian Dam
Case (1983)16, it has been observed that legalism, realism and judicial rhetoric have a greater
influence in the constitutional law. It also gave a broad understanding of the external
relationships and corporations powers alongside upholding the legislation thereby prohibiting
13 Bhajan Grewal, and Peter Sheehan, ‘The Evolution of Constitutional Federalism in Australia: An Incomplete
Contracts Approach’ (2003) Introduction: Australia’s Federal System One Hundred Years On, 1, 2.
14 Alan Fenna, ‘The Centralization of Australian Federalism 1901–2010: Measurement and Interpretation’
(2018) Curtin University, 30, 30-31.
15 Alan Fenna, ‘The Centralization of Australian Federalism 1901–2010: Measurement and Interpretation’
(2018) Curtin University, 30, 30-31.
16 The Tasmanian Dam Case (1983)
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Tasnamia from building the Franklin Dam17. On the other contrary, Australian Capital
Television Pty Ltd v Commonwealth (1992)18 also implicates the freedom of communication
on the political and governmental issues in relation to the constitution. In addition, Wik
Peoples v Queensland (1996)19 deals with the subsistence of a rustic lease under the
Queensland legislation, which was not conflicting with the use of inhabitant label rights.
Besides, Kable v DPP (1997)20 also restricted the state’s authority to organize its courts, if it
is dealing with the federal jurisdiction. Therefore, as per Leslie21, judges are generally
considered as permissive policy makers of the Constitution. This is because consistency,
coherence, and certainty of the law and the legal system have an important role in legal and
social issues, which contributes value to the constitution22. Thus, it can be stated that issues,
which are happening in the Australian constitutional law have also concerned with the
federalism23.
According to the Christopher24, the balance of authority generally favours the view where
section 51 can be applied to the territories and it can subsequently form a general law under s
51 under section 122. On the other hand, according to the Australian Law Reform
Commission Section25, 51 of the Constitution enhance the Commonwealth Parliament power
to build laws for the calm order and superior government of the Commonwealth.
17 The Tasmanian Dam Case (1983)
18 Australian Capital Television Pty Ltd v Commonwealth (1992)
19 Wik Peoples v Queensland (1996)
20 Kable v DPP (1997)
21 Leslie Zines, ‘Legalism, realism and judicial rhetoric in constitutional law’ (2002) 2002 Sir Maurice Byers
Lecture, 13, 19.
22 Leslie Zines, ‘Legalism, realism and judicial rhetoric in constitutional law’ (2002) 2002 Sir Maurice Byers
Lecture, 13, 19.
23 Anthony Mason, ‘The Role of A Constitutional Court In A Federation’ (2017)16 A Comparison Of The
Australian And The United States Experience, 1, 2.
24 Christopher Horan, ‘Section 122 Of The Constitution: A "Disparate And Non-Federal" Power?’ 25 Section
122 and Characterisation, 97, 98.
25 Australian Law Reform Commission, Federal-State Issues (Web Page, 20 August 2019)
<https://www.alrc.gov.au/publications/38.%20Federal-State%20Issues/scope-and-limits-constitutional-
power#>.
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Therefore, it can be concluded that Judges do not hold to the Hon Sir Dixon’s vision because
of the fact of enabling legislative power in non-parliamentary things, with respect to the
various political interests in the state. This can be termed as call judicial regulation. It can be
further stated that legalism nowadays has a greater influence on constitutional law because
judicial ideologies manipulate the understanding of the legislative requirements. These
ideologies are dealing with the authenticity of the conflict. Hence, it can be said that no safe-
conduct is present for making judicial decisions in case of great conflicts.
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Part B
Case Brief
Paul Hindenburg generally lives in the Port Douglas, Queensland. Paul suddenly got into the
blimp business during the 1990s. From 1990, Paul Hindenburg has been operating the
business of blimp flights for tourists around Port Douglas through his company named as
Hindenburg Blimp Tourism Pty Limited (HBT). It has been said in the case study that HBT
holds a BFL and it is not possible for Paul to hold it. It must be noted that safety was
provided to the group of tourists in the floor for leaving the HBT terminal, boarding the
blimp, and waiting on the tarmac. In this case, the tourists were told to stay away from the
uncovered steering propellers on the side of the passenger car because it would be running,
which might harm them to a great extent. It ensures quick departure and maximum time in
the air. James Page, who is an English tourist, disagreed to the direction, which was given on
the terminal by the employee of the company. He claims that the steering propeller should be
nearest to the passenger car so that people can get a closer look. As a result, James camera
strap was stuck by the propeller and was then caught into the spinning blades. Within a few
minutes, the passenger had to face death. This case has been considered in the paper for
further analysis. Hence, this section of the paper aims to advise Paul regarding how the
company can defend itself from the acquisitions arising from section 109 of the constitution.
Considering these aspects, the case and the problem scenario will be critiqued for
understanding its validity through three-tests of inconsistency, which are detailed below.
Test 1
According to the discussion, it can be stated that compliance with the state law offence does
not make it impossible to comply with the Commonwealth duty, which can be justified by a
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case example. In the case of Pirrie v McFarlane26, air force motor vehicle was essential to
hold a Victorian drivers’ licence when it was moving from the Commonwealth regulated area
to another state-regulated location. In this scenario, Commonwealth duties were required to
comply with the state laws so that the court could provide its verdict regarding the case in a
proper manner. However, in Commonwealth v Cigamatic Pty Ltd (in liq)27 case, the court
believed that the state should not bind the Commonwealth duty with laws. Hence, even in the
case of HBT, it can be said that both laws can comply with each other to some extent.
Test 2
Under section 109 of the Australian constitution, if a commonwealth parliament and state
parliament confers a law on a similar subject then the commonwealth law (federal) overtakes
the state law. Additionally, the constitutional law enables the federal Parliament to override a
territory law (State law) at several instances depending on the case. The Australian
constitution provides power especially to the Commonwealth authority to set standards but it
has lacked in formulating such directions regarding blimp flights’ on-ground activities.
Hence, the power to direct and give a verdict on the case of HBT is upon the state authority.
Thus, the Commonwealth law confers a legal right that the state law effectively took away in
this case. The Australian Constitution produces a federal system of the government. In this
federal system, the legislative powers are separated between the six states and
Commonwealth. The section 109 of the Australian constitution states, “When a law of a State
is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall,
to the extent of the inconsistency, be invalid”28. This statement implies that the condition can
be operated in two different ways. One is directly invalid state law wherein it is not possible
26 Pirrie V Mcfarlane
27 Commonwealth v Cigamatic Pty Ltd (in liq)
28Australian Law Reform Commission, Achieving National Consistency (Web page, 20 August, 2019)
<https://www.alrc.gov.au/publications/3.%20Achieving%20National%20Consistency/federal-system>.
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to observe both the federal and state laws and the other is the indirectly one wherein the
Australia Parliament intend to cover the field concerning the specific matter.
It must be noted that the main focus of the Blimp Aviation Act 1995 (Cth) is to ‘establish a
regulatory framework for maintaining, enhancing and promoting the safety of blimp flight in
Australia, with particular emphasis on preventing blimp accidents and incidents’. In addition,
The Blimp Aviation Act 1995 (Cth) offers a widespread set of standards on all BFL holders.
It includes a safety requirement in section 25. Section 25 generally states that the holder of
the BFL should take all the reasonable steps for ensuring everything in the workplace, which
have been done with a reasonable degree of care and skill. Furthermore, there will be no
action for the damages or compensation, concerning the contravention of this section. Hence,
this section will not get affected by the duty that was imposed under any state or territory
regulations.
Test 3
It can be argued that the Commonwealth Blimp Aviation Authority has not set any kind of
standards or directions relating to on-ground activities related to blimp flights, such as the
embarkation or disembarkation of passengers. According to the subsection 45 (1) of the
blimp Aviation act 1995 (Cth), “such standards or directions are not to be taken to be
inconsistent with state or territory law, to the extent that they can operate concurrently”.
There is a contradiction between the State and Commonwealth (i.e. Queensland) laws. Hence,
in this case, state law will be applied, as the Commonwealth law has no standards or
directions regarding the issue of concern. In the given scenario, the Queensland Work Health
Authority (WHA) filed a complaint against Hindenburg Blimp Tourism Pty Limited (HBT)
in the Queensland Magistrates Court to the Work Health and Safety Act 2009 (Qld). This was
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done because HBT had somehow breached its duty as it failed to minimize risks to
embarking passengers, for instance, Mr. Page was stuck in the propellers.
In addition, Workplace Health and Safety of Queensland and the inspectors can take legal
actions for any offense that takes places under the WHS Act. On the other hand, three types
of offences for breaching the health and safety duties are evident for which varied penalties
can be applicable to the offender. Category 1 of the Work Health and Safety Act suggests that
a duty holder engages himself in conducting the irresponsibility, which discloses a person to
a risk of death or illness. This offense is considered a crime, which will be charged in the
District Court. Similarly, category 2 deals with the employee who fails to observe a health
and safety situation, which exposes a person to the risk of death or serious injury. Lastly, in
category 3, a duty holder fails to observe with a health and safety duty29. The section 109 of
the Australian constitution states, “When a law of a State is inconsistent with a law of the
Commonwealth, the latter shall prevail, and the former shall, to the extent of the
inconsistency, be invalid”30. ‘Indirect’ or ‘covering the field’ inconsistency deals with the
subject matter of a Commonwealth law, which in the given case was projected as an absolute
statement of the law. This necessitates immediate attention to set the legal rights or duties
regarding the blimp flights. Similarly, Momcilovic, both Gummow J and Hayne J31 are
considered the case of indirect inconsistency. This case is found to be ambiguous in nature
but the verdict was made considering section 109 of the constitution.
In relation to the given case, the prosecution may argue with all logical inferences from the
evidence in the record. In addition, the prosecution can investigate the crime in order to
decide whether it is initiating the legal proceedings or not as WHA alleges that HBT failed to
comply with the duty imposed by section 7 of the Work Health and Safety Act 2009 (Qld). On
29Note, ‘Guide to the Work Health and Safety Act 2011’ (2015) Office of Industrial Relations, 1, 10-11.
30Australian Law Reform Commission, Achieving National Consistency (Web page, 20 August, 2019)
<https://www.alrc.gov.au/publications/3.%20Achieving%20National%20Consistency/federal-system>.
31 Momcilovic, both Gummow J and Hayne J
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the other hand, the defence may argue that the employee had already warned the visitor
regarding the danger.
In this field, states law regulates the issue as it was mentioned in the study that the
Commonwealth Blimp Aviation Authority has not issued any standards or directions relating
to on-ground activities connected to blimp flight. Thus, in this case, the state law of
Queensland regulated the case. Jet aviation v. City of Cleveland32 is one of the examples for
aviation case law where similar kind of accident has happened due to negligence. Hence, it
can be affirmed that this section is operative because the Commonwealth law does not issue
any standard regarding the blimp flight; hence, state law regulations will be applicable.
Conclusion
Section 109 depends on the state legislative power and it does not deal with the
commonwealth. It has been stated earlier that commonwealth does not issue any kind of
standards. Hence, it can be concluded that the State law (Queensland) has plenary legislative
power. It must also be mentioned that Blimp Aviation Act 1995 (Cth) is considered to be
constitutionally valid and the Work Health and Safety Act 2009 (Qld) is found to be under
the plenary power of the Queensland Parliament. According to section 109 of the
constitutional law, there should be two valid laws i.e. state and commonwealth law and there
will be the presence of inconsistency between the two laws. Therefore, it can be stated that in
this case, the Commonwealth law is invalid, as it does not provide any standards regarding
the case scenario. Moreover, during the briefing, tourists were told to avoid the exposed
steering but Mr. Page disregarded the direction. Hence, the company cannot be charged under
section 109 because the death was because on Mr. Page’s fault and not the fault of the
company. This is how Paul can defend the position of the company against WHA.
32 Jet aviation v. City of cleveland
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References
Australian Capital Television Pty Ltd v Commonwealth (1992)
Australian Law Reform Commission, Federal-State Issues (Web Page, 20 August 2019)
<https://www.alrc.gov.au/publications/38.%20Federal-State%20Issues/scope-and-limits-
constitutional-power#>
Awawda, Osayd, ‘Strict Legalism or Judicial Activism Which One is the Dominant?’ (2014)
Safeness And Excessive Legalism, 1
Commonwealth v Cigamatic Pty Ltd (in Liq)
Dawson, Daryl, and Nicholls, Mark, ‘Sir Owen Dixon and Judicial Method’ (2009)15
Melbourne University Law Review, 543.
Fenna, Alan, ‘The Centralization of Australian Federalism 1901–2010: Measurement and
Interpretation’ (2018) Curtin University, 30
Foley, Kathleen E., ‘Australian Judicial Review’ (2007) 6(281) Washington University
Global Studies Law Review, 281
Galligan, Brian, ‘Judicial Activism in Australia’ Judicial Activism in Comparative
Perspective, 70
Grewal, Bhajan and Sheehan, Peter, ‘The Evolution of Constitutional Federalism in
Australia: An Incomplete Contracts Approach’ (2003) Introduction: Australia’s Federal
System One Hundred Years On, 1
Horan, Christopher, ‘Section 122 Of The Constitution: A "Disparate And Non-Federal"
Power?’ 25 Section 122 and Characterisation, 97
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Jet aviation v. City of cleveland
Judicial Conference of Australia, The Judiciary (Web Page, 20 August 2019)
<https://www.jca.asn.au/the-role-of-judges-and-magistrates/>
Kable v DPP (1997)
Mason, Anthony, ‘The Role of A Constitutional Court In A Federation’ (2017)16 A
Comparison Of The Australian And The United States Experience, 1
Momcilovic, both Gummow J and Hayne J
Note, ‘Guide to the Work Health and Safety Act 2011’ (2015) Office of Industrial Relations,
1
Obrien, Tina, ‘Judicial Review’ (2016) Traditional Rights and Freedoms
Patapan, Haig, ‘Politics of Interpretation’ (2017) 22 Sydney Law Review, 247
Pirrie v Mcfarlane
Rich, William, ‘Constitutional Law in the United States and Australia: Finding Common
Ground’ (2017) 35 Washburn Law Journal, 1
The Tasmanian Dam Case (1983)
Wik Peoples v Queensland (1996)
Zines, Leslie, ‘Legalism, realism and judicial rhetoric in constitutional law’ (2002) 2002 Sir
Maurice Byers Lecture, 13
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