Law In Context - Summary - Lecture notes, lectures 1 - 12 PDF

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LAW IN CONTEXT – Summary Week 1: Liberalism  Liberalism concept that underpins Aust legal system:  Preserve the liberty of individuals from encroachment by others.  Concept of rule of law is important  Liberal societies normally based on a market based or capitalist economy structure with political democracy.  Concept of Equality  Formal – equality of treatment  Substantive – equality in outcomes  Tutorial Question:  Liberal, Moral, Utilitarian and Pragmatic Perspectives

Week 2: The Rule of Law  Formal, Procedural and Constitutional Legality  Can use there criteria to critique laws:  Law applying only to one person: generality  Due process – procedural legality issues  Separation of Powers  Define role of three arms: judiciary, executive and legislative and basis why SOP important.  Case law analysis – often looking at blurring of the lines between judicial and executive power. PROCEDURAL LEGALITY Procedures under which laws are applied  Access to courts/dispute resolution processes  ‘due process’, i.e. notice requirements - Method of trial - Fair criminal procedure - Rules of evidence - Natural justice/ procedural fairness - Objectivity - Impartiality - Independent legal profession CONSTITUTIONAL LEGALITY Rules that dictate how the governed are governed (government under laws)  Foundation of government and its systems for ruling and law-making can be found in a Constitution  Independent judiciary  Separation of powers

PROCEDURL LEGALITY Procedures under which laws are applied  Access to courts/dispute resolution processes  ‘due process’, i.e. notice requirements - Method of trial - Fair criminal procedure - Rules of evidence - Natural justice/ procedural fairness - Objectivity - Impartiality - Independent legal profession

Week 3: Race and Australian Legal Doctrine  Concept of race: construction used to distinguish people based on physical difference.  Critical race theory – relationship between race, racism and power.  Enlightenment/Liberalism – idea of equality based on status of humanity.  But rights denied to some peoples because perceived as less rational, morally inferior.  Application in Australia – doctrine of terra nullius  R v Murrell (free and independent people – but not recognised as sovereigns – lack of political organisation and legal structures  Overturned in Mabo (No.2).  Constitution  S25 excluded from voting at Fed level if excluded under state law; s51 race power; s 127 not counted in census.  1967 Referendum: race power could be used to address inequality and s127 repealed.  Currently questions about race power and proposed referendum to recognize first people in Constitution.  Protection Legislation  Aboriginal Protection and Restriction of Sale of Opium Act (Qld) – extensive powers given to protectors (think about how this breaches liberalism, rule of law, and human rights).  Assimilation Policy – integrate Indigenous people into mainstream population to achieve equality.

Week 4: Human Rights in Australia  Different philosophical justifications for human rights

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Natural law (human capacity to reason); Kant (dignity/autonomy); Will theory (rights maintain liberty); Interest theory (best interest met); Socialist (social and economic focus) and Positivist (law creates rights).  ICCPR and ICESCR  civil and political rights (negative rights)  social and economic rights (positive rights)  Difference in standard of obligation  Dualist approach to treaty implementation: look at treaties that Australia has ratified.  How are human rights protected in Australia?  Limited rights in the Constitution (trial by jury, right to vote)  Australian Human Rights Commission – power to conduct inquiries into complaints of alleged breaches of human rights, but not power to enforce a remedy.  ACT and Victoria – human rights legislation. Courts must interpret laws in a manner consistent with HR, but acts do not invalidate any law on grounds of inconsistency.  National Human Rights Consultation (2009)  Human Rights Parliamentary Scrutiny Act 2011 (Cth) – establishes a parliamentary joint committee on HR to scrutinize legislation in compliance with international HR obligations.  Role of judiciary in implementing HR  Little judicial activism in this space: mainly used for statutory interpretation as oppose to extending operation of rights.  HR Criticisms in Australia  Lack Bill of Rights; failure to uphold international commitments; Indigenous rights; refugees rights; terrorism and bikie legislation.  http://www.law.monash.edu.au/castancentre/policywork/hrreports/2014/human-rights-report-2014.pdf

Week 5: Indigenous Human Rights  Human rights instruments apply to all peoples:  UDHR; UNCERD; ICCPR; ICESCR; UNDRIP

 International treaty bodies – critical of Australia’s treatment of Indigenous peoples:  NT Emergency Response, Native Title, Access to justice, criminal justice, indigenous languages, indigenous disadvantage, Constitutional, Treaty, rights to equality, establish representative body, social security quarantining, food security, employment barriers.  Some positive developments  Support for UNDRIP, Apology to Stolen Generations, closing the gap.  UNDRIP  Right of self determination  Freely determine political and legal status  Self government and autonomy  Right of free, prior and informed consent  Cultural rights  Economic and social rights  Rights to traditional lands  HR Case study: Northern Territory National Emergency Response Act 2007 (Cth)  Pt 2 – ban on alcohol in Indigenous communities  Pt 3 – filters on public funded computers  Pt 4 – acquisition of Aboriginal townships for 5 years  Pt 5 – appointment of government business managers in NT Indigenous communities  Pt 6 – customary law cannot be considered in bail or sentencing  Pt 7 – licencing regime for Indigenous stores  RDA suspended or special measures – s132  State/territory anti-discrimination laws suspended.  HR Case Study: Welfare Payment Reform Act 2007 (Cth) – income management.  HR Case Study: Stronger Futures 2012- 2022 HR Case study Alcohol Measures in NT

Week 6 – Access to Justice Theories of Justice:     

Critique – formal and substantive equality Remedial Justice Restorative Justice Distributive Justice Procedural Justice

Implementation:  Access to Justice Considerations  Costs  Vulnerable groups  Institutions promoting access to justice: legal aid, pro-bono, CLCs.

Week 7: Indigenous Cultural Competency  Whiteness Theory – provides a lens to critique values of society (white values perceived as neutral and natural).  Example: Constitution – race power  Example: Immigration Act  Example: Aboriginal Protection and Restriction on Sale of Opium  Example: Assimilation Policy  Implications: Access to Justice  Mainstream Legal System – court access, legal representation and communication issues: Court Up North Video.  Learning Activity 9.1: challenges working on native title claims.  Learning Activity 9.3: example of communication and cultural issues.

Week 9: Politics and the Law  Theories of the association of power with the law  Marxism: Law maintains power of the dominant class.  Foucault: Law is an instrument of power, but power lies in hands of institutions  Law as culture: law shapes the way a society thinks and acts  Models and Power  Consensus models – law is a product of societal values  Conflict models – laws come about through influence of certain groups that have disproportionate power.  Economic Analysis of Politics: Public Choice Theory (who gains, who loses from policy)  Virginia School: Starting point – people promote their own interest. Public officers motivated by own self interest not as benevolent maximisers of social welfare.  Supply of policy – comes from bureaucrats motivated by self interest.  Demand of policy – comes from those lobbying self interest  Chicago School: Government does not correct market failures, rather special interest profit over public interest  Supply of policy – politicians desire to maximise political support  Demand of policy – legal rules outcome of political struggle to redistribute wealth. 

Critics of public choice theory – legislators motivations beyond reelection?

Week 10: Economics and the Law

 Economics – A branch of knowledge concerned with the production, consumption and transfer of wealth    

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Individuals and rational choice: individual maximise own self interest. Law as a system of constraints and rewards – duties, right obligations, penalties shape society’s conduct. Costs: opportunity and transaction costs Efficiency: Allocative efficiency (cumulative effective of resource allocation); Pareto efficiency (not possible to improve welfare of one person without reducing welfare of another); Kaldor-Hicks (those who benefit from policy can compensate others whose welfare is reduced. Marginal effects: consider the measure before and the measure after, what is the difference = marginal effect. Ex ante effects: reactive – when law remedies a problem after the event has occurred.

 Theory: Coase  Applies where there are externalities (cost or benefit that affects a party who did not chose cost or benefit) i.e.: impact of pollution on population.  Economics and Areas of Law  Contract law: Market Based Model (price set by market) and Transaction cost model (price set costs incurred in the transaction)  Tort law: recognises two costs – harm cost and cost of initiating precautionary and preventative measure.  Common Law:  Descriptive claim: Posner (common law promotes economic efficiency – nb critiques of this claim).  Normative claim – common law based on one norm, all laws aim to fulfil this norm. Is this norm – wealth maximisation?

Case Study: Environmental Law and Economics  Concept of externalities (cost or benefit that affects a party who did not chose cost or benefit) i.e.: impact of pollution on population.  Theory: Coase – consider harm of a (polluter) and harm of b (community). Aim to avoid more serious harm.  Theory: Pigouvian- private actors should bear the full costs of their action (i.e. imposition of tax equal to cost of realted damages)

Week 11: Recognition of Indigenous Law  Concept of Self Determination – right to self governance and autonomy.  Mabo: recognition of property rights, not right to SD.  Coe v Cth: Aboriginal people not domestic dependent nations.

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Walker: passage of criminal statute extinguished customary criminal law.

 Recognition of customary law in Australia ? :  Indigenous sentencing courts (restorative justice model)  Criminal Law – see BB text re over representation issues  Bush Law and Bush Courts Videos – alternative approaches  Arguments against recognition  Equality before the law? HR implications? Formal, Constitutional, Procedural Legality?  Is Indigenous law relevant to issues facing society today?

Week 12: Globalisation and Law  Defining Globalisation:  Creation of social networks and multiplication of existing connections that cut across traditional political, economic, cultural and geographical boundaries.  Expansion and stretching of social relations, activities and connections  Intensification and acceleration of social exchanges and activities  Legal Context of Globalization  Globalisation of the law – international law shapes domestic law (i.e UNFCCC shapes Clean Energy Package)  Globalisation by the law – law causes increased globalisation interaction activity (i.e International trade law increases transactions between countries)....