Law1111 hd 87 moodle quiz notes1 PDF

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TOPIC 1 – THE AUSTRALIAN LEGAL SYSTEM International legal systems - Common law: basis of legal systems mostly colonised by England. - Civil law: basis of legal systems mostly colonised by Spain and Portugal. - Sharia law: basis of legal systems in the Middle East. - Customary law: earliest sources of law originating from Indigenous people. Theories of law – Jurisprudence - Jurisprudence: concerned with how we recognise certain rules as law and its impact on society. - Answers the questions: o What is the law? o Why is the law the way it is? o What should the law be? Strands of jurisprudence - Natural law theory - Legal positivism - Feminist jurisprudence - Law and economics - Critical legal theory. Natural law theory - Flows from the characteristics of human nature. - Human nature is constant à does not vary. - Attempts to create man-made rules that conform to ideas of goodness, righteousness and morality. - Rules that do not abide by just and moral standards are not law, so we are not obliged to follow them. - “Universal justice and law guide human nature to act justly and be of service to others” – Cicero. - “An unjust law is not a law” – Cicero. - “Natural laws are moral principles that are absolute, universal, unconditional, binding on everyone, and unknown or available to be known by everyone through right reason” – St Thomas Aquinas.

Where are natural laws derived from? - The eternal order of the universe - Divine will - The natural conditions of human life, which ensure our survival as a species - Self-evident values and practical reason.

2 John Finnis – Seven basic goods - 1. Life - 2. Knowledge - 3. Play - 4. Beauty - 5. Friendship - 6. Practical reasonableness - 7. Religion - A law is moral if it doesn’t harm these goods. Legal positivism (Bentham) - Law is merely a human creation. - Law can be understood as just a set of declarations of the will of the sovereign. - Law is a general declaration of the will of a sovereign supported by the threat of a penalty or a promise of reward. - A view of the law as it is, not as it ought to be. - Opposite spectrum to natural law theory. Requirements of valid law - Wish - Sanction - Expression of Wish - Generality.

Hans Kelsen - The distinctive feature of law is that it is: o A. A statement about how people ought to behave in society à norms. o B. Backed up by the threat of sanction. John Austin - Created the ‘Command Theory’ of law - Law is a wish expressed by a sovereign requiring people to behave in a certain way. - The wish has to be communicated. - There must be sanctions in the form of punishment, which are imposed if the wish is not followed. - The sovereign is a determinate and common superior that the majority of people are in the habit of giving obedience to. H.L.A Hart - Refines their ideas. - Law has to be more than a command backed up by the threat of a sanction. - A law can be recognised if it has passed through an established procedure that everyone agrees on. o E.g. made through legislation. Feminist jurisprudence - Examines how male dominance is embodied in law. - Argues that the law is imbued with masculine perspective and privilege.

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Points out male oppression in gender roles. Questions assumptions inherent in concepts of universality, equality and objectivity.

Liberal feminism - Law sometimes treats men and women differently; should treat them the same. - Law sometimes treats men and women the same; should treat them differently. - Sameness feminism: o Differences between men and women used to discriminate women. o ‘False differences’ which are used to deny women opportunities. - Cultural feminism: o Emphasises differences between men and women. o Law shaped by masculine, individual rights-based views of the world. o Women are more socially and culturally connected à needs to be better reflected in legal system. Catharine MacKinnon - Gender inequality is fundamentally a political question. - The law has naturalised a power relationship that is not natural so that men become the norm rather than another set of differences. - Women’s qualities should be part of the standard by which humanity is measured. - Women’s subordination results from a denial of power. - By seeing the world in terms of power hierarchy, one can address the needs of women who are the greatest victims of sexism. - It is irrelevant whether men and women are different or the same. Economic analysis of law - Economic concepts are used to: o Explain the effect of laws o Assess which legal rules are economically efficient o Predict which legal rules will be made. - Is a law good or bad? o This depends on its economic efficiency. o Murder costs society so punishment costs the offender. Critical legal theory - How do we think about law? o Is the law detached from its social, political economic, cultural and historical context or embedded in its context? - What difference does this make? o Is the law neutral or does it reflect power relations within a particular society? Strands of critical legal theory - First strand: o Legal materials do not completely determine the outcome of legal disputes. o There are constraints and influences on those in power, which will influence. - Second strand: o Law = politics. o Law and politics are mutually intertwined – no pure form of each. - Third strand: o Law serves the wealthy and powerful by protecting them against the demands of the poor and minorities for greater justice.

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o What the law says it does and what is actually does are two different things. Fourth strand: o Critical legal theory questions the notion of the autonomous individual. o People are determined by social/political structures that surrounds them.

Categories of law - Public vs private: public law governs relations between individuals and the state, whereas private law governs relations between individuals. - Civil vs criminal: civil law is concerned with private disputes, whereas criminal law is concerned with the punishment of offenders by the state. - Common vs statute: common law is law made by judges during court cases, whereas statute law is made by parliament and assented to by the Head of State. Roots of English law - Norman Conquest of 1066 started events that led to legal systems of common law. - Given name ‘common law’ because it unified the political entity of England and made the laws of all localities common. - Feudalism: hierarchical system of political and social organisation; land ownership. o Feudal system formed the basis of English property law until 1921. - Birth of common law: Extension the king’s jurisdiction o Stare decisis et non quieta movere: ‘to stand by decisions and not disturb the undisturbed’ - Formalisation of legal structures o Curia Regis (King’s court): general advisory body – provided king with counsel and advice before making decisions. o King appointed ‘justiciars’ – acted in king’s place when away. o Justices in Eyre: appointed in 12th century, travelling justices that held King’s commission. § Commission: document certifying the appointment to a position of authority by the sovereign. - Writ system highlighted the beginning of the legal process. o Writ: command from king to sheriff (King’s rep in the country) that plaintiff must be brought to court. o Legal fictions: use of fabricated facts to enable new types of cases to be brought within the existing writs. § Used to accommodate demand for court hearings where new forms of writ weren’t available. o Writ system highlights common law’s focus on set procedure. Sources of law Magna Carta (1215 AD) - Peace treaty that King John was forced to sign with the barons (a group of nobles). - Restricted his power. - Forced him to consult with the King’s Council. o KC was not elected and could not make statutes. - Established a basis of modern relationship between King and subjects. - Simon de Montfort à assembly of first ‘Parliament’ in 1265. - ‘Model Parliament’ (summoned by King Edward I; resembles today’s British Parliament) in 1295 acted as an advisory body, however king was not obliged to summon it on regular basis.

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Case of Prohibitions del Roy (1607) ensured King could not be personally involved in common law courts.

Roman Law - Romans created a legal code that spread with the conquest of the Roman empire. - Some influence from Greek principles of law and later by the early Christian understanding of law. - Emperor Justinian collected and organised the sources and principles of law, this became known as the Corpus Luris Civilis or the Justinian Code. - The written code became lost with the fall of the Roman Empire. - Around the 11th century AD the Justinian Code was rediscovered and formed the basis of European legal systems, which is known as the Civil Law. Civil Law - In the 19th century, Napoleon drew up an extensive set of written laws known as the Civil Code. - The Civil Code was applied to all of France. - By 1810 in France, there were several legal codes including; the Civil Code, the Code of Criminal Procedure, the Penal Code and the Commercial Code. o Together they were known as the Code Napoleon. - The principles that formed the Code Napoleon are still part of the Civil law of Europe today. - The Civil Law is based on Codification or Code of Law. Codes of Law - Intended to be complete and coherent - Limited role of the judge than role in common law countries - Strong theoretical emphasis - Deductive style of reasoning. How was English law received into Australia? Captain Cook - Given secret instructions: o If inhabited, he should: § Chart its coasts § Obtain info about its people, cultivate friendship and alliance § Take territory he could of the convenient situations in the name of the King of Britain o If uninhabited, take possession for His majesty and set up proper marks and inscriptions. Three ways to acquire territory (as recognised by international law) - Conquered: o Gained by conquest, it is taken. o Existing law of Indigenous sovereign remained in force until subject to modification or replaced by crown. - Cession: o Ceded by Indigenous sovereign through treaty or agreement. o Legally treated the same as conquered land. o Existing law of Indigenous sovereign remained in force until subject to modification or replaced by crown/British parliament.

6 Settled: o No pre-existing Indigenous legal system. o If uninhabited, all English laws are immediately in force. Terra nullius - Australia was an empty land before English settlement: it was terra nullius. o People were considered civilised if they had a recognised legal system which included principles of land ownership. o Reason why Australia initially deemed to be settled rather than conquered. - Basis Governor Phillip declared English law, the law of the land. -

Indigenous Australians and the law - 1967 Referendum o S 51 (xxvi) AC altered “other than the aboriginal race” o Deleted s 127 AC – “in reckoning the numbers of the people of the Commonwealth… aboriginal natives shall not be countered” - Mabo v Queensland (1992) 175 CLR 1 o Eddie Mabo began battle to have traditional land ownership recognised. o HC recognised that Australia was not terra nullius. o Crown’s radical title coexisted with a beneficial native title - Native Title Act 1993 (Cth) o Established a simplified process for claiming and recognising native title lands and waters in Australia. o Set up the National Native Title Tribunal to mediate native title disputes, assist resolution of land claims & make recommendations to government. § Provides mediation to parties in native title cases. - Wik Peoples v Queensland (1996) o Native title could coexist over land covered by pastoral leases. - Native Title Amendment Act 1998 (Cth) o Modified and restricted common law native title, strengthening position of pastoralists and mining companies who wished to exploit land over which native title may be held. How did the Australian legal system develop? - British law became Australian law (1788) – received. - Common law and equity weren’t really applicable to the conditions in Australia when it was first colonised. - Australian Courts Act 1828 (UK): o English law was received by the colonies. § Date of reception – the date a colony/state/territory is considered to have acquired English law. o Established criminal matters be tried by jury. o Increased size of Legislative Council to 10-15 members. - Colonial Laws Validity Act 1865 (UK): o Vic Parliament and courts free to alter received UK law. o But could not: § Enact laws extending beyond boundaries of Victoria. § Alter or repeal UK statutes of ‘paramount force’. - Statute of Westminster 1931 (UK): o Cth parliament granted full legislative independence from the UK. o Restrictions on Commonwealth Parliament removed.

7 Steps towards federation and legal independence from the UK - Australia Act (Cth + UK) 1986: o Severed Australia’s legislative links with UK. o Removed limitations on powers on State o Abolished Privy Council appeals. o Decisions made after are not binding. § Unclear whether state courts are bound by Privy Council decisions before Australia Act. - Commonwealth of Australia Constitution Act 1990 (UK): o Created, by statute, the Commonwealth of Australia. Fundamentals of the Australian legal system What is government? - Ruling party in Parliament from which the Cabinet is formed and from which the leader of the government is chosen. - Each minister is given responsibility to run one or more government portfolios/departments. o Staffed by legal public servants. The Crown - Formal head of State. - Queen represented by the Governor-General (federal) and Governors (states). - By convention, exercises power in accordance with the wishes of the Government. - Roles: o Giving of consent of passing of Acts of parliament o Making of regulations. Concepts that underlie the Australian legal system The Rule of Law - Two strands: o The government cannot exercise power unless it can point to a specific rule of which authorises it to do so. o No one is above the law. - Legality: governments must find lawful authority for every action they take. Parliamentary Sovereignty (UK) - Parliament has ultimate power over the content of the law. - Three aspects: o Parliament can legislate on ANY subject matter. o No parliament can bind a previous parliament. o No court or other person can override legislation. - Somewhat different in Australia as we have a written constitution: o No Australian parliament can legislate on any subject matter without limit. o Legislation prevails over case law. o The HC can set aside legislation if unconstitutional à beyond the powers laid out in AC. The separation of powers - Assumes main branches of parliament should not mix their functions o Parliament: makes the laws.

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Executive: administers those laws in individual cases. § Functions mixed w/ parliament à Minsters drawn from Govt and Crown. o Judiciary: resolves disputes about the meaning or application of a law. Prevents abuses of power. French philosopher Charles-Louis de Secondat, Baron de La Brede et de Montesquieu (16891755). o He sought two types of powers: the sovereign and the administrative. o The administrative powers were the legislative, the executive and the judiciary. o These powers are divided up among three classes (Estates) so that each would have a power over the other. o This eliminated the clergy from the estates and erased feudalistic structure.

Three main sources of law - Legislation – acts (statutes) of parliament. - Subordinated/delegated legislation – rules/regulation made under authority delegated by parliament to the executive (administrative arm of government). - Judicial precedents – judge made law. The Australian system of government - Westminster system (UK): constitutional monarchy, with the government made up of the Parliament, the Executive, and the Crown. - Washington system (US): Presidential republic, with strict separation between the roles of the President, the Congress and the Administration. - Wash-minster system (unofficial): describes hybrid system in Australia – a constitutional monarchy combined with a modified doctrine of Separation of Powers. Common Law, equity and the adversarial system Common Law system - Incorporates Judge made law - Uses adversarial procedures - Has one continuous hearing - Places emphasis on rights of accused in criminal matters - Values particularity - Based on doctrine of precedent. Civil law system (vs. adversarial/common law system) - Based on codification of the law o Law can be gathered together in one code vs the Common (adversarial) system where law is found in judgements and legislation. - Uses inquisitorial system o Judges have power to gather evidence of themselves, call witnesses and how legal proceedings will be conducted. - Enhances accessibility of the law - Gives judges the bureaucratic function of merely applying the law - Values universality - Has hearings at various stages. - Strives to find justice, rather than settle a dispute. Equity (vs. common law)

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Petitions of injustice faced at the hands of common law courts dealt with by Chancellors (Royal official, trained priests). Principles of fairness. Principles modifying the early Common Law. Common law became more procedurally complex and rigid, so: o Chancellor decided the matter on the basis of fairness and even-handedness, rather than compliance with the forms and procedures. Many legal remedies owe their origins to equity – such as injunction, rescission and specific performance.

Inductive reasoning - Used to develop the common law. - Reasoning in individual cases leads to general rules.

What is the adversarial system? - Five main features: o 1. Litigation left in the hands of the parties. o 2. Each party in turn calls witnesses whom it questions. o 3. The role of the judge is to preside and to act as a form of umpire. o 4. Concentrated into on continuous hearing. o 5. Compliance with the rules of court is, in general, enforced only at the request of one of the parties. Rationale for the adversarial system - Each party will do its best to present all the facts and legal arguments. - Effective method to bring all relevant facts and issues before the judge à gives an impartial verdict. - However: o Works well only where there is a genuine equality between parties. o Works to the disadvantage of minorities. o Lengthy and expensive cases. The Australian Constitution - Establishes a federal system of government. o Federal system comprises of the Commonwealth parliament and the state parliaments. - Confers power on three separate bodies o Legislative power on Parliament o Executive power on executive o Judicial power on judiciary (judicial independence, ensures impartiality of judges/court). - Underpins fundamental principles of Responsible Government. o Executive power à (accountable to) House of Reps à the people.

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What is NOT in the Australian Constitution? - Doesn’t create the position of Prime Minister - No reference to Cabinet - No bill of rights. What is in the Australian Constitution? - Victoria Constitution Act 1975 o S 16 – Victorian parliament can enact laws in and for Victoria - s. 106 o Division of powers between State and Commonwealth Parliament. o All state constitutions are preserved. - s. 109 o Commonwealth law prevails over State laws when state law is inconsistent with federal law. - s. 51 o Sets out the areas in which the Commonwealth has power to make law. o Exclusive powers – only the Cth could pass laws. o Concurrent powers – both states and Cth could pass laws (majority) § Defence, marriage/divorce, taxation, immigration. § S. 109 created to stop conflicting laws. - s. 92 o Outlines restrictions on Cth and State parliaments. o The enactment of any law which restricts the freedom of interstate trade, commerce, travel and communications is invalid. What is the Victorian charter? - Victorian Charter of Human Rights and Responsibilities o Requires courts and tribunals to interpret statutory provisions in a way that is compatible with human rights. o Does not allow courts to strike ...