LAW101 Law In Context

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LAW101 Law In Context

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LAW101 Law In Context

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Course Code: LAW101
University: University Of New England

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Country: Australia

Question:
What do the differences between the judgments of Latham CJ and Starke J indicate about the values of the rule of law and the values of legal formalism?
 
 
Answer:

Adelaide Co of Jehovah’s Witnesses Inc v Commonwealth [1943] was a landmark case which had to address the issue regarding extent and nature of protection which is provided through section 116 of the constitution of the commonwealth[1].  According to the section the government was not allowed to make a law for the purpose of establishing a religion, imposing a religious observance, prohibiting free exercise of religion, and providing religious tests as a qualification for any public trust or office. Providing plain meaning to the text of the legislation it can be said that the constitution intended to restrict the parliament from making laws which would favor or bring detriment to any religion[2]. The primary question in relation to this case was that does the section prevent the parliament from limiting the activities of a body which exists on the decision of the governor general if such body is a religious entity. Can the subversive activities which are affected through the entity on the religious thinking of its members affect the decision making power of the parliament and prevent it from restricting the entity?[3]
In any case, it has to be considered that s. 116 is an express disqualification of any law which falls within the scope of its provisions which is to protect discriminatory law making against religion. The section manages laws which in some way identify with religion. The Constitution, nonetheless, has no rules which give the Commonwealth Parliament any authority to create laws as for the matter of religion[4]. Section 116 in this way can’t be viewed as recommending the substance of laws made concerning religion upon the premise that the Commonwealth Parliament has some authority of administering as for religion. S 116 is a common preclusion applicable to all laws, under whatever authority those laws might be made. It is a superseding rule. It doesn’t contend with different arrangements of the Constitution so the Court may look to accommodate it with different rules. It beats and constrains all provisions which offer authority to make laws. As needs be, no law can get away from the utilization of s. 116 basically on the grounds that it is a law which can be advocated under ss. 51 or 52, or under any other administrative power. All the administrative authority of the Commonwealth are liable to the condition which s. 116 forces.
 
The phrase which refers to the common notion of the constitutional government is known as the rule of law. There was a long debate in the western culture related to the relationship between law and power especially which is called executive power. As provided by a nation has to be governed by law instead of any other government officials. The object of the rule of law is to install constraint up on the behavior of individuals specially government individual and insure that nothing can be above law. The process implies that all citizens of the nation are subjected to the rule of law which also includes any government official who have the authority to enact laws. The constitution of the country is the highest law which can be referred to an all laws which are made by the Parliament are in reference to the constitution. No Parliament has the authority to make a law the constitution of the nation does not allow. The system of rule of law is against any kind of dictatorship or autocratic system where rules are considered to be more powerful than the law. Both dictatorship and democracy is show the lack of the rule of law in them. For instance because of ignorance on neglect of the legal provisions the rule of law will DK more in case the government has inadequate corrective measures for restoring the law. Governments which are based on the principle of the rule of law are known as nomocracy[5].
A descriptive and positive theory of adjudication which is used by the judges to decide a case is known as legal formalism[6]. Legal Formalism in a descriptive sense states that the decision reached by the judges is through the application of uncontroversial facts. Although a large number of principals is implied by a large number of cases it is believed by legal formalities that there is an underlying science behind these principles which can be readily discovered by legal expert and is straight forward. The primary objective of legal Formalism is to formalize the principles in a detriment and single system which could be applied in a mechanical way. Legal Formalism has also been called to be as the official theory related to judging.
Section 116 of the Commonwealth constitution has been raised in history in only two cases. The section sets an example of what is known as the rule of law. The section prohibits the parliament from enacting any legislation which is not in accordance to the section. However it was seen in the present case the judges found that section 116 was not breached by the Parliament through the enactment of legislation[7]. In the case of the Court emphasized on civil liberties of individuals and Limited the scope of authority exercised by the executive powers. This is a Landmark case which had influence oven many other common law jurisdictions and provided many common law jurisdictions the motivation to establish the rule of law.
In the present case, the association of people known as “Jehovah’s witness” pleaded that certain provisions under the National Securities Act were unconstitutional as they contravenes Section 116 of the constitution. However, it was unanimously decided by the court that the National Securities Act was not in contravention of section 116 of the constitution. It was held that the government has transcended the power that it was conferred with under the national securities Act, regulation 6A. Keeping in mind the unique circumstances of the case, it was decided that in pursuance of the safety and security of the nation these acts by the government was necessary. It can be said that the decision of the court did go above the rule of law in this landmark case as it bypassed the exclusive right provided under section 116 of the constitution. However, they did not outright deny it. They simply stated that the circumstances of the case demanded such drastic measures on the Government’s part. From another point of view, Starke J cited a previous on the same subject and stated that the safety and security of the nation comes first, everything else is secondary. So, we can see that the court cited both the rule of law and legal formalism to reach the unanimous verdict. This landmark verdict still stands as one of the mort referred precedents on the particular subject.
 
The opinions of Judges Latham C.J. and Starke J in the case of [1943] ALR 193; 1943 WL 2749617 ALJ134,Adelaide Company of Jehovah’s Witnesses Incorporated v The Commonwealth throws considerable light into the subject. In this land mark case a group of people known as the “Jehovah’s witness” were the plaintiff and the commonwealth was the defendant. It was observed that this group of people believed in certain ancient religious beliefs with their roots in the Bible. These people were spread thin throughout Australia. These people believed, among many things, that politics or any other systems of control were evils and that Jesus will come again and redeem his true followers. This so called religious group also had possession of a property known as Kingdom Hall where they offered their prayers. The Attorney General was of the opinion that the actions of this group were detrimental to the effort of war and thus ordered dissolution of the group and the confiscation of the property. One of the officers of the Government carried out these orders. Subsequent to this, the religious group pleaded to the court on various elements of law. The gist of which is that the actions carried out by the officer on the orders of the Attorney General was in contravention of S. 116 of the Constitution[8].
Latham C.J. opined that Section 116 of the constitution provides protection to the people in observance of their religion. It not only protects their religious beliefs but also protects those who do not believe in any religion. However, this protection is personal in nature. It essentially means that this section protects every person’s private right to practice any religion. It does not protect a company’s religion as a company is not supposed to have a religion. This is because religion is a personal matter. Hence, it then follows that a group of people or a company, i.e. an artificial person cannot have a religion of its own[9]. Hence, section 116 does not protect the religious rights of a company as it does not have one in the first place. He also further stated that the National Security Regulations do not contravene the provisions of Section 116 of the Constitution. He added that the direction and orders given by the Attorney General do not contravene the provisions of Section 116 of the Constitution. In conclusion, he stated that the powers and the provisions laid down under the National Securities Regulation does extend to the association of persons known as “Jehovah’s witness”.[10]He stated that the specific regulations that are directly in question are the regulations6A, 4 and 3. In his opinion, regulations 3 and 4 are well within the powers or authorities in question. However, regulation 6A was beyond the powers and authorities mentioned.
 
In the same case Stark J. opined that no one is above the constitution which is in accordance to the rule of law as compared to the principles based approach taken by Latham CJ . He also stated that even the Attorney General is not above the Constitution. He further opined that the Attorney General must also not act in a way that transcends the powers conferred upon him which was not the same as compared to Latham CJ who believed that rule of law has to be accompanied by proper interpretation to achieve justice. He observed that the National Security Regulations are to operate to a maximum of 6 months after His Majesty has ceased to be engaged in a war. This essentially means that the delegated legislations made under these regulations also ceases to exist after that period. He observed that the protections of religious practices are not absolute and that there are certain limitations on them. He cited a landmark case where the Chief Justice of the Supreme Court of the United States opined that while there is freedom of religion guaranteed under the constitution, the State is bound to “suppress religious practices that are dangerous to the morals and those that are inimical to public safety, health and good order.”[11]Therefore, it follows that the Attorney general did go above his powers in relation to certain acts. However those acts were deemed necessary under the specific circumstances.
 
It then follows that the Attorney General was acting well within their rights when they carried out the acts of dissolving the association of people known as “Jehovah’s witness” on account of belief that their actions were detrimental to the war effort. The liberty and freedom of religion as guaranteed under the constitution are subject to certain reasonable limitations. He stated that these limitations are a necessity for the protection of the community as a whole and the maintenance of social order. He concluded that in the light of the above arguments it can be well established that laws or regulations that are made by the Commonwealth controlling the activities of religious bodies that are seditious, subversive or prejudicial to the defense of the Commonwealth or the efficient prosecution of the war are not in contravention of the constitution.
According to A. V Dicey the parliament of UK is a totally sovereign legislative body which has the power to construct and abolish any law thus the rule of law and descriptive and constructive theories of legal formulism are related[12]. The comparison between the decisions of the judges related to legal formulism it can be said that CJ Latham was more towards the use of established principles in order to adjudicate the case whereas Stark J was more concerned with the rule of law while coming to the decisions. This benchmark case shows us the values of Legal Formalism as well as the Rule of Law. The process of restricting arbitrary use of power by subordinating it to well-established laws is known as the rule of law. Legal Formalism, on the other hand, is the adjudication of cases using uncontroversial principles to facts. The both of them must go hand in hand for the observation of justice[13]
 
Reference List
Adelaide Company of Jehovah’s Witnesses v. Commonwealth. Unisetca. 2017. Available at: https://www.uniset.ca/other/cs5/67CLR116.html. Accessed August 7, 2017.
Barker, R. (2015). Scientology, the test case religion. Alternative Law Journal, 40(4), 275-279.
Beck, L. (2016). The Case against Improper Purpose as the Touchstone for Invalidity under Section 116 of the Constitution.
Dicey, Albert Venn. The law of the Constitution. Vol. 1. OUP Oxford, 2013.
Dixon, O. (1957). Mr. Justice Frankfurter: A Tribute from Australia. Yale LJ, 67, 179.
Dixon, R. (2016). An Australian (partial) bill of rights. International Journal of Constitutional Law, 14(1), 80-98.
Foster, N. J. (2016). Churches and the Law of Sanctuary in Australia.
Hogan, M. (1981). Separation of church and State: Section 116 of the Australian constitution. The Australian Quarterly, 53(2), 214-228.
Jensen, D. (2011). 1 Classifying church-state arrangements. Law and Religion in Public Life: The Contemporary Debate, 15.
Kirby, M. (2005). Human Rights-Essential for Good Governance. Original L. Rev., 1, 1.
LEE, J. T. T. I. B. of Rights: The Value of a Comparative Approach.(2007). International Journal of Constitutional Law, 5(1), 122-152.
Macken, J. J. (1974). Australian industrial laws: the constitutional basis. LawbookCo..
Williams, G. (1996). The Suppression of Communism by Force of Law: Australia in the Early 1950s. Australian Journal of Politics & History, 42(2), 220-240.
Leiter, B., 1999. Positivism, formalism, realism. Colum. L. Rev., 99, p.1138.
Macken, J. J. (1974). Australian industrial laws: the constitutional basis. LawbookCo..
Hogan, M. (1981). Separation of church and State: Section 116 of the Australian constitution. The Australian Quarterly, 53(2), 214-228.
Williams, G. (1996). The Suppression of Communism by Force of Law: Australia in the Early 1950s. Australian Journal of Politics & History, 42(2), 220-240.
Jensen, D. (2011). 1 Classifying church-state arrangements. Law and Religion in Public Life: The Contemporary Debate, 15.
Dixon, O. (1957). Mr. Justice Frankfurter: A Tribute from Australia. Yale LJ, 67, 179.
Leiter, B., 1999. Positivism, formalism, realism. Colum. L. Rev., 99, p.1138.
Beck, L. (2016). The Case against Improper Purpose as the Touchstone for Invalidity under Section 116 of the Constitution.
Barker, R. (2015). Scientology, the test case religion. Alternative Law Journal, 40(4), 275-279.
Adelaide Company of Jehovah’s Witnesses v. Commonwealth. Unisetca. 2017. Available at: https://www.uniset.ca/other/cs5/67CLR116.html. Accessed August 7, 2017.
Kirby, M. (2005). Human Rights-Essential for Good Governance. Original L. Rev., 1, 1.
Dicey, Albert Venn. The law of the Constitution. Vol. 1. OUP Oxford, 2013.
LEE, J. T. T. I. B. of Rights: The Value of a Comparative Approach.(2007). International Journal of Constitutional Law, 5(1), 122-152.

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