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Australian Legal Foundations Notes

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This is an extract of our Australian Legal Foundations document, which we sell as part of our Australian Legal Foundations Notes collection written by the top tier of Griffith University students.

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KEY TERMS ................................................................................................................................................................................... 3
COURSE THEMES ......................................................................................................................................................................... 4
NATURE OF LAW ....................................................................................................................................................................... 10
POLITICAL PHILOSOPHY OF LIBERALISM ........................................................................................................................ 12
COMMON LAW SYSTEM: ORIGIN AND SOURCES ............................................................................................................. 16
AUSTRALIAN CONSTITUTIONALISM .................................................................................................................................. 19
PARLIAMENT AND LEGISLATIVE PROCESSES ................................................................................................................. 21
LEGISLATIVE INTERPRETATION I ..................................................................................................................................... 27
LEGISLATIVE INTERPRETATION II ..................................................................................................................................... 36
THE COURT SYSTEM ............................................................................................................................................................... 39
PRECEDENT, LEGAL CHANGE AND JUDICIAL DECISION MAKING ............................................................................. 43
ROLE OF THE LAWYER AND ETHICS .................................................................................................................................. 49
LIMITS OF LIBERALISM .......................................................................................................................................................... 52
























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KEY TERMS Liberalism
Rule of Law
Separation of Powers Egalitarianism
Utilitarianism
Deontological
Teleological
Negative Liberty
Positive Liberty

The rights of the individual come before the rights of
the state/collective. Equality in the legal system.
Courts are bound to follow the decisions made by
courts before them, and must uphold decisions made
by higher courts.
Those who make the law should not be the same as
those who enforce the law. With this in mind, there are
three separate arms of government: executive,
(crown), who are in charge of implementing the law,
judiciary, (courts), who are in charge of applying the
law, and the legislative, (parliament), who are
responsible for making the law.
All humans are fundamentally equal and should have
the same political, economic, social and civil rights. It is
essentially a reflection of the natural state of humanity.
So long as actions are for the benefit of a majority of
people, it is the right option. Greatest good for the
greatest number of people.
Ethical position that judges follow the rule/s as it is
their duty and obligation morally to do so. Libertarian
perspective. INDIVIDUAL COMES FIRST.
The ends justify the means, so long as there is the
greatest good for the greatest number. SOCIETY
COMES FIRST.
Freedom from interference by others, (governmental
power), and encompasses all that is the 'free man.'
Freedom to fulfill ones own potential, uninhibited by
ones self.






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COURSE THEMES

Legal Liberalism:

Legal liberalism is a political and legal theory, which indicates that politics
should be constrained by legal constitutional boundaries, meaning that,
while the law can be changed, courts are bound to follow decisions made by
courts higher in the hierarchy. It is related very strongly to the rule of law.
Judges should base their decisions on the law as it is, and not incorporate
personal political interests and beliefs.

Legal liberalism ensures that decisions by the court are fair and equitable, by
keeping procedures consistent across all cases. All accusations must be backed
up by evidence, and the accused party must have the ability to defend
themselves. With this in mind, there is always the opportunity for them to be
acquitted.

With all this in mind, it means that the rights of the individual are put before
the rights of the state. As liberalism is an ideal, it means that while society may
accept what it stands for, sometimes in practice it falls slightly short of liberal
outcomes.

Thomas Hobbes and John Locke developed two theories regarding liberalism
and the social contract. While they were similar in some respects, both had a
different focus. Thomas Hobbes' theory promoted a life without government, and
used natural law as a backing. We have a right to everything and can do anything
because we are human. A social contract exists that the ascension of natural
rights occur in return for protection. Hobbes encompassed the importance of a
powerful sovereign, in accordance with the pleasure/pain principle - people
want to seek pleasure and avoid suffering pain. We cannot be completely in
control, however it is better to have a powerful sovereign than a governmental
body.

John Locke, however, focused primarily on the rights to land, and the role of the
individual as rational, moral and free beings. Human nature is inherently selfish,
and we fear each other. The government should have a limited role, only to the
extent necessary to preserve the life and property of the individual. There is a
distinct separation of government from monarchy.










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Constitutionalism and the Separation of Powers:

The Australian parliament system means that those who make the law are not
the same people as those who enforce it. There are three separate 'arms' of
government; the executive, the legislature and the judiciary.
Judiciary:
Executive:
Legislative:
Courts. They are in
Crown. They are
Parliament. They are in
charge of administering responsible for the
charge of making the
justice, and applying the implementation of laws law, and ensuring that all
law to cases, through the and regulation. While
other parties abide by
doctrine of precedent. It parliament may make the the law. It is the role of
is their job to interpret
law, it is for the crown to parliament to set the
the laws and uphold the decide whether to pass it, precedent for other
constitution and the rule in order to make it
courts to follow and
of law. They are the ones enforceable.
obey.
who hear evidence and
punish offenders. Courts
are the regulators of the
government. Determine
the power of parliament
and the crown.

The High Court of Australia is essentially the guardian of the Constitution, as well
as the primary interpreter. It is the cornerstone that holds the Australian legal
system together.
Judicial Activism is the nation that in deciding a case, the judges may reform the
law if the existing principles or rules appear to be effective. This goes against the
doctrine of precedent. Merely because judges make the law, does not mean that
they are justified in becoming judicial activists. They can, instead, extend the law
through the development of pre--existing legal principles. This is also to ensure
that the personal opinions of the judges presiding over the case are not
incorporated.

Judicial Restraint, however, is the opposite. It is a theory that encourages judges
to limit the exercise of their own powers. Judges should consult the legislature
and past cases to make a decision, and should hesitate before eliminating laws,
unless they are obviously unconstitutional.

The powers of federal parliament are somewhat limited by both the executive
and the rule of law. While it is the role of federal parliament to regulate state
parliaments, sections of Australian federal policies demonstrate that decisions
made are "subject to the Constitution" and "exclusive to the Commonwealth."

The Australian Constitutional Government is a hybrid system, which
incorporates aspects of the British Colonial system and USA constitutional
system. They act within the rule of law, applying judicial measures and
interpretations in order to dictate the boundaries of State power, as well as in
the development and implementation of laws and procedures.

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Formalism and the Rule of Law

Formalism argues that law is separate from all other rules and principles
implemented by other political and social institutions. This being said, there has
to be some sort of relationship between the law and other facets, such as religion
and economics. Such values are more especially used when establishing whether
the decision is reasonable.

The rule of law, on the other hand, applies the law to every person. It establishes
that no person is above the law, and every citizen is subject to the law. This
comes into some conflict, particularly with religious law. The rule of law
however does, as a whole, separate law from other factions, however
components of it can still be called into question.

Law is not, however, truly neutral. Particularly in terms of Indigenous Australian
laws, as reflected within the Mabo case, law can be manipulated in order to favor
the interests of a particular party. The rights for land and property in particular
are contentious, when both parties can potentially have a partial claim. The
Mabo case was one in which the justices did not agree, particularly regarding
native title.

Formal equality is when two people, with equal status, come into dispute they
must be treated equally. It is the absence of direct discrimination, and is a basic
approach to equality of opportunity. Even though this, in theory, is an
appropriate method to allow for equality in the eyes of the law, it is still possible
for wealthier/well off parties to be favored.

Substantive equality however is a much more broad and expansive concept. It
deals with indirect discrimination, however has been described as being
unstable. It is regarded as being "true justice." If you commit a crime, you are
punished for it. Why you committed an offence is not as important as the fact
that it occurred in the first place.

While both forms of justice are put in place in varying degrees, it can be
established that a form of formal equality is more universal and easily
implemented, as it encompasses all aspects of the case at hand, as well as being
less controversial than substantive equality.












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Sources of Law and Sovereignty

Legislation, also known as statutory law, is created by the legislature,
(parliament). It is then debated upon and amended until all are content with it,
before it is made law. While governments make the law, it is the role of the court
to interpret them. The doctrine of precedent indicates that courts, in the
interpretation of the law, must follow the precedents and decisions made by
courts higher in the hierarchy. The pinnacle of the court pyramid is the High
Court of Australia.

Judicial Reasoning

The role of a judge is to preside over a court and ultimately make the final
decision regarding a case. The Governor--General, who acts on the advice of the
government, appoints judges. A judge can leave office through either resignation
or retiring. They are, however, entitled to remain in their position until they are 70 years old. Judges may also be removed, on the grounds of proved misbehavior
or incapacity.

Judges do 'make law' to a certain extent. Their role is to apply the law, however
in this application, they can widen pre--existing laws in order to encompass the
bounds of the case at hand. The doctrine of precedent is the prevailing constraint
on the role of judges in determining and developing the common law.

The decision made by the judges regarding a case should not incorporate any
personal beliefs or notion. Their role is to apply the law, and the law alone. With
this in mind, community standards and judges own values do not play a large
role in judicial reasoning and the decision making process.




















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