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Australian Legal Foundations Notes

Law Notes > Australian Legal Foundations Notes

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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

PAGE

2


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.

PAGE

3

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.

PAGE

4

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.

PAGE

5

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.

PAGE

6


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.

PAGE

7

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