Division of Business
School of Law
School of Law
|
Date |
Thursday 8 September 2011 |
|
Time |
5:30pm to 7:30pm, refreshments provided |
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Venue |
Bradley Forum, Level 5, Hawke Building 50-55 North Terrace, Adelaide, UniSA's City West Campus |
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Presented by |
Dr Steven Churches, Senior Lecturer, University of South Australia |
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Commentator |
Professor Horst Lucke, Professor Emeritus, University of Adelaide, and Honorary Professor, University of Queensland |
|
Chair |
The Hon Justice Paul Finn, Federal Court of Australia |
The
infamous judicial comment about policy being an unruly horse, and not
one suited to being judicially ridden, stems from the first half of the
nineteenth century. We are now in the first half of the twenty first
century: times change and with those changes societal perceptions and
needs. How far can the law go in accommodating those needs?
It might be noted immediately that policy as viewed by courts covers everything from community standards to formal expressions of policy as provided for in statutes. Perusal of the law reports shows judges wandering through fields of policy, browsing at judicial discretion. Chief Justice French has even published a paper proclaiming the capacity for judges to digest policy into their decisions without pretence. How far can this process go?
The High Court has recently taken to denouncing a judicial capacity to assess community values, but Parliaments seem to think such assessment increasingly valuable. At the other end of the spectrum, policy produced by governments provides equally subtle traps for judges. All legislation reflects a "policy" but woe betide the court that sets out to apply that policy where the actual words of the legislation do not reach. But courts fall into this error with ease. This paper attempts to navigate through the shoals of the various sorts of policy and how courts might deal with them.
Read Paper by Dr Churches, Presenter (555kb- PDF)
Read Comments by Prof Lucke, Commentator (215kb- PDF).
