LAW2211 written assignment:
Advice pertaining to the unconstitutionality of s15 (1) of the Evidence Act 1977 (Qld)
A client’s lawyer has requested for an advice regarding a successful appeal against the client conviction of a criminal offence in the District Court of Queensland; due to the trial judge’s exercise of s15 (1) of the Evidence Act 1977 (Qld).
Your question, my answer to your question, the background of and the rationality behind my answer are presented below.
Question and Answer:
Q. Due to the developments in relation to Chapter III of the Australian Constitution, would an appeal against a conviction - that was based on the District Court of Queensland trial judge’s exercise of s15 (1) of the Evidence Act 1977 (Qld), be a …show more content…
Therefore, s 15 (1) of the Evidence Act 1977 (Qld) would be unconstitutional, if it has contradicted or violated the law of the Australian political system.
In Victoria v Commonwealth [(the Kakariki) (1937) 58 CLR 618, 630], when s 13 of the Marine Act 1928 (Viet) and s 329 of the Navigation Act 1912-1935 (Cth) were in conflict, Dixon J noted that if a valid state law (a law that the state parliament had power to enact) would modify or undermine the operation of the commonwealth law, then, that state law would be invalid for said reason.
Clause 5, which is the ‘Operation of the Constitution and laws,’ stated as follow:
This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State.
The above statement makes commonwealth laws biding on judges, courts and everybody.
Section 109 of the Australian Constitution is concern with inconsistency of laws, and it stated …show more content…
Let’s assume that the phrase ‘valid law’ means, a law that is clearly stated or written. If this was to be the case, then, s 15 (1) of the Evidence Act 1977 (Qld), which is State law, is valid because it is explicitly articulated in the Queensland Legislation. Whereas, the law pertaining to the argument in question (the infringement on an accused right to silence or privilege against self-crimination), which is a suppose Commonwealth Law, is not clearly or strictly expressed in the Australian Constitution. Based on this assumption, one may argue that there is no inconsistency operating here, meaning, s 15 (1) of the Evidence Act 1977 (Qld) is not in any violation. Consequently, the majority of the High Court decisions made in the past in regards to the application of s109 have entirely centered on the meaning of the word
Advice pertaining to the unconstitutionality of s15 (1) of the Evidence Act 1977 (Qld)
A client’s lawyer has requested for an advice regarding a successful appeal against the client conviction of a criminal offence in the District Court of Queensland; due to the trial judge’s exercise of s15 (1) of the Evidence Act 1977 (Qld).
Your question, my answer to your question, the background of and the rationality behind my answer are presented below.
Question and Answer:
Q. Due to the developments in relation to Chapter III of the Australian Constitution, would an appeal against a conviction - that was based on the District Court of Queensland trial judge’s exercise of s15 (1) of the Evidence Act 1977 (Qld), be a …show more content…
Therefore, s 15 (1) of the Evidence Act 1977 (Qld) would be unconstitutional, if it has contradicted or violated the law of the Australian political system.
In Victoria v Commonwealth [(the Kakariki) (1937) 58 CLR 618, 630], when s 13 of the Marine Act 1928 (Viet) and s 329 of the Navigation Act 1912-1935 (Cth) were in conflict, Dixon J noted that if a valid state law (a law that the state parliament had power to enact) would modify or undermine the operation of the commonwealth law, then, that state law would be invalid for said reason.
Clause 5, which is the ‘Operation of the Constitution and laws,’ stated as follow:
This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State.
The above statement makes commonwealth laws biding on judges, courts and everybody.
Section 109 of the Australian Constitution is concern with inconsistency of laws, and it stated …show more content…
Let’s assume that the phrase ‘valid law’ means, a law that is clearly stated or written. If this was to be the case, then, s 15 (1) of the Evidence Act 1977 (Qld), which is State law, is valid because it is explicitly articulated in the Queensland Legislation. Whereas, the law pertaining to the argument in question (the infringement on an accused right to silence or privilege against self-crimination), which is a suppose Commonwealth Law, is not clearly or strictly expressed in the Australian Constitution. Based on this assumption, one may argue that there is no inconsistency operating here, meaning, s 15 (1) of the Evidence Act 1977 (Qld) is not in any violation. Consequently, the majority of the High Court decisions made in the past in regards to the application of s109 have entirely centered on the meaning of the word