Re: Australian law was: Re: Skype access cancelled for Debian versions before 7
On 4/08/2014 9:04 PM, Lisi Reisz wrote:
> On Monday 04 August 2014 09:44:31 Andrew McGlashan wrote:
>> I wonder about Kirby myself. To me, it shouldn't be the court deciding
>> a matter of fact via *their* opinion. If the law says "xa" and the
>> opinion says "xb" ... then it is up to the parliament to correct the
>> situation if it is faulty, not the courts to decide "xb" instead of the
>> letter of the law that is "xa". I could never understand how the courts
>> could get away with that. Judges should not be judge and jury as they
>> often are, they should only rely on the facts, 100% facts of the law,
>> not their opinion to make a judgement against the facts and Kirby seems
>> to be a great offender of my view of what is required here.
>
> Australia uses English Law, i.e. Common Law. This paragraph is therefore, I'm
> afraid, simply wrong. You are recognising Statute Law, and ignoring Common
> Law. Common Law is at least as important, and goes back a lot further. It
> *is* the courts that decide and not Parliament. Even with Statute Law, it is
> the courts which decide what it means and how it is to be applied.
>
> One can argue that there is a lot wrong with English Law. I frequently do.
> But it is, as a matter of fact, much as you or I or anyone else may dislike
> it, the courts that decide the facts and not Parliament. A barrister can
> give an opinion. A judge decides the facts (as they stand in law, which may
> bear very little resemblance to the real world).
>
> "The common law system, as developed in the United Kingdom, forms the basis of
> Australian jurisprudence."
> http://www.dfat.gov.au/facts/legal_system.html
Yes, I do understand what you are saying. If the law is open to
interpretation, then chances are it hasn't been written properly. It
should be black and white ... that's why people get away with loopholes.
A judge should adjudicate according to the facts, not according to /his
or her/ opinion of those facts and how they relate to the actual law.
The judge's opinion should come in to sentencing, rather than guilt or
innocence. If that is not true, then it's just another reason to call
the law an ass.
And sure, if there are natural common law rights that are being trampled
by the statute law, then perhaps then the statute is invalid and it
should be referred back to parliament to fix the law to suit the facts
and/or intention appropriately.
Thanks Lisi.
Cheers
A.
Reply to: