Can a common law judge reverse/devalue a legislation in australia?

I am looking for cases that can prove this, this is just a research, related to my studies but NOT for homework.Can a common law judge reverse/devalue a legislation in australia?They sure can, If a parliament enacts a law that is not authorised by the constitution, that law is declared 鈥榰nconstitutional鈥?and is void.



There are many examples of this occurring:



1) The Australian Military Court was created when the Parliament of Australia passed the Defence Legislation Amendment Bill 2006, adding Section 114 to the Defence Force Discipline Act 1982. The constitutional validity of the Australian Military Court was successfully challenged in the High Court of Australia by a former Royal Australian Navy Leading Seaman, in the case Lane v Morrison commencing on 16 January 2009.



2) Full Court of the SA Supreme Court declared the control orders, made under section 14 of the Serious and Organised Crime (Control) Act 2008, invalid.





Essentially, look at almost any Constitutional law case and you will find cases where invalidity of legislation results.



Hope this helpedCan a common law judge reverse/devalue a legislation in australia?In theory, judges do not create law and only follow established law (common law) and legislation. Whenever a conflict arises between common law and legislation, legislation must always prevail (with the exception of legislation contravening the constitution, as Bob eloquently explained). For example, there is no 'three strikes' law in common law; a person may be convicted of crimes ten times and still avoid prison. But when the Northern Territory government legislated a 'three strikes' law, judges were forced to comply with this law. So judges cannot reverse legislation except in constitutional matters.

In practice, judges can de-value legislation by not implementing it the way it is intended. For example, maximum penalties given in legislation are rarely applied by judges (eg. an offence with a 15 year maximum penalty may only result in a 2 year sentence when the judge uses his discretion).

You'll find most Australian cases on the free service website www.austlii.edu.auCan a common law judge reverse/devalue a legislation in australia?Yes, provided the court is high enough up the chain to do so.



They can only reverse legislation that contradicts the Australian Constitution; otherwise legislation always overrules common law.



A particularly interesting example is the Communist Party Dissolution Bill, which would have banned the Australian Communist Party and anything else the government decided was an attempt to reform the party. The High Court overturned it, saying that the Constitution didn't allow the government to impose punishments on anyone it liked without proving them guilty in a court.