15 May Where do we Draw the line?
The law is there to serve its purpose but not entirely. Hear us out. The law is defined by the State to ensure that all bases are covered, but the State also appoints Judges to enforce the law at their experienced discretion. The word discretion is an important term in not just the Australian Legal system but in all courts around the world. The ability of a judge to understand the nuances of the case and award someone punishment is detrimental to the success of the judiciary. There are instances where a couple of misdemeanour charges in someone’s history that completely overhaul the sentencing and verdict that will incur as a result of the participation in an unlawful activity. But the question arises on how fair the judgement is and whether the literal interpretation of the law is the way to go. Since every judge is different, the judgement given to a particular crime can also be different. So some might argue that literal representation of the law is the way to go but the problem arises when the law is at times too severe for the crime leaving both the judge and the prosecution with only the harshest of sentencing available.
Australia has a fair share of controversial cases, but none more so than Al-Kateb v Godwin who failed to get temporary citizenship in the country and the conundrum of being a stateless person showed the severity of literal representation of the law. By Australian law, a stateless person can be held unconditionally forever since he or she cannot be returned to their place of birth. The literal representation of the law ensured that basic human rights weren’t given to him by Al-Kateb; the literal representation of the law meant that he would indefinitely be put in prison.
Although Al-Kateb was eventually released from prison in 2003 following a similar case in Australia; it should be understood that the literal representation of the law can be a powerful and harmful tool to yield. So the question that needs to arise is whether the literal representation of the law is the right way to go when dealing with judicial matters. In short from the research we have done, literal interpretation cannot be the path that we take. Humanitarian rights can be encroached upon because the laws of one State demands as such. With the world becoming global there are going to be a lot of people moving to other countries; it is time we amended our laws so as to ensure that more people don’t face the end of a barrel like Al-Kateb/