Legal Formalism And The Australian Legal System

1965 Words Sep 16th, 2016 8 Pages
Although legal formalism is a critical component to the Australian legal system, judicial creativity is essential when the legislation fails to satisfy rule of law ideals. One key example of this is that although abortion is an offence under the Queensland Criminal Code, it was ruled this year by the Supreme Court that a 12 year old was able to proceed with terminating a pregnancy in a Queensland public hospital. This case’s outcome would be viewed as incorrect using reasoning from a strict legal formalism approach, however it is justified as it demonstrates judicial creativity can be employed when legal formality and procedural legality have not been met.
The case being discussed is Central Queensland Hospital and Health Service v Q [2016] QSC 89. The applicant for this case is the Central Queensland Hospital and Health Service. The first respondent is Q, a 12-year-old girl who is nine weeks pregnant. Q was referred to the Central Queensland Hospital and Health Service after visiting a general practitioner to terminate her pregnancy. The Central Queensland Hospital and Health Service, the applicant for this case, then applied to the court in the parens patriae jurisdiction for authorisation to terminate Q’s pregnancy. The parens patriae jurisidiction refers to the power of the court to impose a decision about a child on the basis it is for the child’s best interest. The second respondent is Q’s Father and the third respondent is Q’s Mother. The amicus curiae Ms…
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