legis.pdf - EMBARGOED TO 6PM THURSDAY 31 JULY VICTORIA LAW...

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EMBARGOED TO 6PM THURSDAY 31 JULY VICTORIA LAW FOUNDATION ORATION MELBOURNE, 31 JULY 2008 THE MEANING OF LEGISLATION: CONTEXT, PURPOSE AND RESPECT FOR FUNDAMENTAL RIGHTS MURRAY GLEESON In deciding civil rights and obligations, or criminal liability, the characteristic function of a judge is to identify the issues for trial, find the facts relevant to those issues, and apply the law to the facts as found. One of the changes making the work of modern judges different from that of their predecessors is that most of the law to be applied is now to be found in Acts of Parliament rather than judge-made principles of common law (in which I include equity). A federal judge devotes almost the whole of his or her judicial time to the application of an Act of the federal Parliament, whether it be about corporations law, or bankruptcy, or family law, or migration. A commercial case before the Supreme ____________________ Chief Justice of Australia.
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2 Court of Victoria almost inevitably will include a claim, or defence, based upon an allegation of misleading or deceptive conduct in breach of a federal or State Act. Claims for damages for personal injuries are heavily regulated by legislation governing awards of damages, and establishing thresholds below which injuries will not be regarded as sufficiently serious to attract a right to sue. Sentencing is still discretionary, but the judicial discretion is guided by extensive legislative directions (some of which simply apply well-settled common law principles). Over the past 30 years, there has been a surge of legislative activity reaching into areas that once were occupied exclusively by lawyers' law. This has been described as an "orgy" of legislation 1 . The imagery is colourful, if disconcerting. There has been a change in what the public expects of parliaments, and this has raised some unresolved questions about what the public expects of judges. The system of parliamentary government that we inherited did not involve, either originally or for most of its history, an expectation that Parliament would be a standing law reform agency constantly turning out detailed rules affecting the rights and obligations of citizens. Its origins lay in the occasional need of the King to assemble representatives of his subjects (or representatives of the most important of them) in order to seek their consent to some measure (typically, the imposition of ____________________ 1 Steyn, "Dynamic Interpretation Amidst an Orgy of Statutes", (2004) 35 Ottawa Law Review 163, citing Calabresi, A Common Law for the Age of Statutes (Cambridge: Harvard University Press, 1982) at 1.
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