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Natural Law Theory (Jurisprudence)
Human nature is said to be constant and not to vary. Attempts to create man-made rules that conform to ideas of goodness, righteousness, and morality
Lex iniusta non est lex (NLT)
Cicero's concept: unjust laws are not laws
Seven Basic Goods (NLT)
Life, knowledge, play, beauty, friendship, reasonableness, religion
Legal Positivism (Jurisprudence)
Law as human creation, separate from morality
Bentham's Requirements of Valid Law (LP)
Wish, sanction, expression of wish, generality. 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
Hans Kelsen's 2 Law Features (LP)
A statement about how people ought to behave in society, based on a 'norm' 2. Backed by the threat of sanction
Command Theory (John Austin) (Jurisprudence) (part of LP)
Law is a wish expressed by a sovereign requiring people to behave in a certain way The wish has to be communicated Sanctions in the form of punishment if the wish is not followed The sovereign is determinate and a common superior that the majority of people are in the habit of giving obedience to Sovereign is not in a habit of giving obedience to someone else
H.L.A Hart (CT)
Law has to be more than a 'command' backed up by the threat of a 'sanction' (Otherwise simple commands and consequence statements can be seen as law, such as a robber demanding you to give them your money (command) backed up by a gun/knife (sanction)) A law can be recognised if it has passed through an established procedure that everyone agrees on e.g. legislation and judiciary
Feminist Jurisprudence
Examines how male dominance is embodied in law Argues that the law is imbued with masculine perspective and privilege Points out male oppression in gender roles Questions assumptions inherent in concepts of universality, equality, and objectivity
Liberal Feminism (FJ)
law sometimes treats men and women differently when it should treat them the same, or vice versa
Sameness Feminism (as opposed to cultural reminism)
The differences between men and women have been used to discriminate against women in the past. We need to discredit false differences which are being used to deny women opportunities.
Cultural Feminism (as opposed to sameness feminism)
Our notions of law are shaped by masculine, individual rights based views of the world. Women are more socially and culturally connected and this needs to be better reflected in the legal system
Catharine MacKinnon (FJ)
Gender inequality is fundamentally political
Law has naturalized a power relationship that is not natural so that men become the norm rather than another set of differences
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 or women are different or the same, what matters is that women have less power than men
Economic Analysis of Law (Jurisprudence)
Used to: explain the effect of laws, assess which legal rules are economically efficient, predict which legal rules will be made
The goodness/badness of law depends on its economic efficiency e.g. murder costs society so punishment costs the offender (lack of liberty when in prison)
Critical Legal Theory (Jurisprudence)
A movement in legal thought that challenges traditional legal doctrines and practices, arguing that law is inherently political and serves to perpetuate power dynamics and social hierarchies. Critiques the notion of objective and neutral legal reasoning, emphasizing the indeterminacy of legal rules and the role of law in reinforcing societal inequalities.
First Strand of CLT
Legal materials do not solely determine legal outcomes
Second Strand of CLT
Law and politics are intertwined, all law is political
Third Strand of CLT
The law tends to serve the wealthy and powerful by protecting them against the demands of the poor and minorities for greater justice What the law says and does are two different things
Fourth Strand of CLT
Challenges the idea of the autonomous individual. People are determined in large part by social and political structures that surround them
Three ways to acquire territory:
conquered
settled
ceded
Australian Courts Act 1828 (UK)
Asserted English law received by colonies, removing any uncertainties around colonisation
Responsible Government
PM + cabinet accountable to elected legislature
Colonial Laws Validity Act 1865 (UK)
Victorian Parliament and courts free to alter received UK law But could not: Enact laws extending beyond boundaries of Victoria Alter or repeal UK statues of 'paramount force'
Statute of Westminster 1931 (UK)
Granted full legislative independence to Commonwealth from UK
Australia Act 1986 (Cth + UK)
Severed legislative ties with the UK
Removed limitations on powers of state Parliaments, which were remnant from the CLVa 1865 Abolished Privy Council appeals
Magna Carta
1215 treaty ensuring rights and limiting King's power
Corpus Juris Civilis
Justinian's collection of Roman legal principles
Civil Law System
Based on codification, codes, and legal scholars' writings
Code Napoleon
Extensive set of laws codified by Napoleon in 19th century
Case of Prohibitions del Roy 1607
King cannot be personally involved in common law courts.
The King in his own person cannot adjudge any case.
The King may sit in the King's Bench, but the Court gives the judgment.
These developments started to provide the government with the ability to regulate human activity, rather than administering central governmental functions
Common Law (as opposed to Statute Law)
Judge-made law based on precedent and interpretation
Separation of Powers
Concept dividing powers into legislative, executive, and judiciary
Public Law
Deals with matters affecting the entire community
Private Law
Concerns specific individuals' legal matters
Constitutional Law
Interprets the constitution's provisions
Statute Law
Laws created by the parliament
International Law
Governs relations between countries
National Law
Regulates relations within a country
Civil Law (as opposed to crim law)
Laws dealing with the enforcement of the rights of individuals e.g. property, contracts, family, or defamation
Criminal Law
Laws dealing with the stability and peacefulness of the wider community e.g. theft and murder
Legislation
Laws created by the parliament
Delegated Legislation
Rules made by the executive under legislative power
Judicial Precedents
Laws established by judges' decisions
Adversarial System
Litigation where parties present evidence
Inquisitorial System
Judge-led questioning for truth in legal proceedings
Principles of Fairness (Equity):
Chancellor afforded claimants hearings and remedies, but this created an alternative to the courts Principles of fairness based on the fact that Chancellors were trained as priests, which created christianity-based rulings
Writ System
A written command from the monarch that something be done
Writs were bought by a plaintiff from a royal official called a Chancellor
Issues with Writs:
Variety of writs which some courts were not aware of 'legal fictions': where fabricated facts were used to enable new types of cases to be brought within the existing writs.
Such as the writ 'quo minus' where private citizens used the Exchequer to recover debts on the basis that they were indebted to the crown, and the funds recovered would repay the debts.
Equity (as opposed to Common Law)
Legal system based on principles of fairness and justice
Common Law System (as opposed to Equity)
Legal system based on judge-made law and precedents
Judicature Acts 1875 (UK)
Merged all pre-existing courts and Court of Chancery together, to produce a new Supreme Court, which consisted of a new High Court (not the same as Aus) and civil Court of Appeal The new singular High Court had one set of rules and a common procedure Fused Common Law and Equity principles, where the judge could apply the laws of each (or both)
Concurrent Powers
Powers that can be exercised by federal and state governments
Victorian Charter of Human Rights and Responsibilities
Requires courts and tribunals to interpret statutory provisions in a way that is compatible with human rights Based on The International Covenant on Civil and Political Rights Does not allow courts to strike out an Act or provision of an Act if it is found to be incompatible with a human right Statutory charter, not constitutionally entrenched Imposes obligation on public authorities to act in a way that is compatible with human rights Requires statements of compatibility with human rights to be prepared for all bills introduced into parliament Enables the scrutiny of an Acts and Regulation committee to report on incompatibilities Confers jurisdiction on the Supreme Court to declare that a statutory provision cannot be interpreted consistently with a human right
Rights (Victorian Charter)
Recognition and equality before the law
Right to life
Protection from torture and cruel, inhuman, or degrading treatment
Freedom from forced work
Freedom of movement
Privacy and reputation
Freedom of thought, conscience, religion, and belief
Freedom of expression
Peaceful assembly and freedom of association
Protection of families and children
Taking part in public life
Cultural rights
Property rights
Right to liberty and security of person
Human treatment when deprived of liberty
Particular rights for children in the criminal process
Fair hearing
Rights in criminal proceedings
Right not to be tried or punished more than once
Rights in relation to retrospective criminal laws
Preamble (Victorian Charter)
Human rights are essential in a democratic and inclusive society that respects the rule of law, human dignity, equality, and freedom
Human rights belong to all people without discrimination, and the diversity of the people of Victoria enhances our community
Human rights come with responsibilities and must be exercised in a way that respects the human right of others
Human rights have a special importance for the Aboriginal people of Victoria, as descendants of Australia's first people, with their diverse spiritual, social, cultural, and economic relationship with their traditional lands and waters
Native Title
Land/water ownership based on traditional customs
Radical Title
placed ultimate ownership rights over land vested in the crown
Terra Nullius
Legal concept of 'land belonging to no one'
Native Title Act 1993
Connection to land and waters for the recognition of native title, including traditional laws and customs,
continuous connection, and
Acknowledgment of Indigenous governance structures. Primary goal of the NTA was to provide a mechanism for the effective and efficient implementation of common law.
NTA also set up the National Native Title Tribunal to assist in the resolution of land claims NTA also makes recommendations to government on related issues NTA requires state govts and other parties to negotiation good faith with native title holders
Extreme claims such as the one by the Noongar People in Western Australia which covered 30,000 and 200,000km2 of land and part of greater metro Perth (#) show the issue of the diversity of land claim
Wik People vs Queensland
High court ruling allowing coexistence of native title with pastoral leases. Response was the Native Title Amendment Act 1998 (Cth)
Native Title Amendment Act 1998
Legislation restricting common law native title
Compensation for extinguishment
Includes economic, interest, and cultural loss components. Economic loss was calculated as a percentage of the value of the freehold estate, Interest on economic loss was not calculated on compound interest, Cultural loss was to be compensated in cash
Extinguishment after the enactment of the Racial Discrimination Act 1975 (Cth)
Prior to the commencement of the RDA (1975), extinguishment only occurred due to inconsistent dealings with native title After the RDA, extinguishment would require validation under the NTA which also provided native title holders with an entitlement to compensation
NT Intervention
Northern Territory National Emergency Response Act 2007 (Cth) imposed a number of restrictions on a number of First Nations communities in the NT: Property rights suspended to allow the govt to step in and improve the standard of housing and infrastructure Welfare payments restricted to a store card that could only be spent on basic necessities Restrictions placed on access to alcohol and porn due to presumed links against women and children
Alienage
Person born out of Australia of parents who were not Australian citizens and who has not been naturalised under Australian law or a person who has ceased to be a citizen by an act of process of denaturalisation.
Concept disproved for First Nations Australians by Love and Thoms. Supported by Mabo [No 2]
Ngarra Law
Aboriginal customary law of the Yolngu people in Arnhem Land
Collectively owned and enforced
Ngarra Law's characteristic involving community-wide ownership and enforcement
Adaptable and evolving
Ngarra Law's characteristic of adapting to changing circumstances
Interconnected with the land
Ngarra Law's emphasis on the Yolngu people's connection to the environment
Judicial terms
Fixed terms for judges with specific removal criteria
Judicial Misbehaviour and Incapacity Act 2012 Cth/Constitution s 72
Legislation addressing federal judges' misbehaviour and incapacity
Appointment of judges occurs via:
Governor general or State Governor acting on advice of state ministers
Retirement age for federal judges
Mandatory retirement at 70 years of age
Qualifications for judges
Requirement for judges to previously have been barristers or solicitors
Seniority
Judges have generally been past QC/SC, and/or magistrates from lower courts
Doctrine of Precedent
Legal systems rely on past decisions to guide current ones.
Stare Decisis
To stand by what has been decided in legal matters.
Binding Precedent
Mandatory precedent that must be followed.
Persuasive Precedent
Non-binding but influential precedent.
Ratio Decidendi
The legal reasoning behind a court's decision.
Obiter Dicta
Non-binding remarks made by a judge.
Hierarchy of Courts
Structure of courts from lower to higher levels.
General Jurisdiction
Court's authority over a specific territory or matter.
Difficulty in identifying Ratio Decidendi
May be difficult to determine whether the principle of law was in contention in the earlier case, a requirement for the principle to form a ratio.
May be possible to state a ratio at a higher of lower level of generality - this can broaden its operation or distinguish it .
May be no majority in favour of a particular ratio
It may be difficult to distinguish the ratio from the obiter dicta
Equally Divided Courts
Chief Justice gets final say
Following the UK Court of Appeal
Using foreign precedents when local laws are lacking. State Supreme Courts should follow old UK Court of Appeal decisions, in the absence of a High Court authority. But State Supreme Courts should not follow new UK decisions (those made post 1986). Persuasive to less persuasive
House of Lords Decisions
No House of Lords decisions whenever made are binding on the High Court. Single judges of State Supreme Court, and lower courts, have in the past treated pre-1986 decisions of the House of Lords as highly persuasive. Now post Farah the High Court has said these pre-1986 HOL decisions are binding, in the absence of contrary authority and if unable to be distinguished.
Relevance of Privy Council decisions
Decisions made after the Australia Act 1986 are not binding on any court in Australia but merely persuasive
Bound (Federal Court of Australia)
State Courts of Appeal and Federal Court should not regard themselves as strictly bound by their own prior decisions
Single Judge of FCA is bound by decision of Full Federal Court
Single Judge is not bound by another single Judge
Full Court of FCA is reluctant to overrule its own decisions
Bound (FCFCA)
Single Judge is bound by decisions of full Court (appeals), but not bound by decisions of other single Judges.
Bound to follow appellate decisions of Federal Court and Family Court, but not bound by a decision of a single judge of the Federal Court sitting at first instance.
Constitution of Australia s 106
All State Constitutions are preserved upon federation
Constitution of Australia s 109
When a law of a state is inconsistent with a law of the commonwealth, the latter shall prevail, and the formal shall, to the extent of the inconsistency, be invalid
Constitution of Australia s 51
Sets out the areas in which the Commonwealth has power to make law.
Include defense, marriage and divorce, taxation, and immigration.
Constitution of Australia s 92
Sets restrictions on the power of the Commonwealth.
“the enactment of any law which restricts the freedom of interstate trade, commerce, travel, and communications is invalid”
Tripartite test
Determines the indigeneity of a person: First nations descent, self-identification, and acceptance by their First Nations community
Cohen v Seller [1926] 1 KB 536
Conditional Gift: An engagement ring is considered a conditional gift, meaning it's given in contemplation of marriage.
Breach of Promise: If the party who gave the ring breaches the promise of marriage without justification, they cannot demand the ring's return.
Recipient's Obligation: Conversely, if the recipient of the ring breaks the engagement, they must return the ring.
The ring holds in place a deposit for the fulfilment of a contract (marriage)
Papathanasopoulos v Vacopoulos [2007] NSWSC 502
VP is the bailee of the ring. She rejected the gift of the engagement ring --> cannot assume that the ring was that of VP to do with as she pleased
Westminster Model of Government
Bicameral legislature, as opposed to dictatorships under a governor
Two strands of Australian law:
The govt cannot exercise power unless it can point to a specific rule which authorizes it to do so
The Rule of Law: no man or woman is above the law
Qualifications for barristers:
Requires the Bar Readers' Course on advocacy, barrister skills, ethics, and rules
Required to serve pupilage under a 10+ years standing barrister
Note
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