FOL - Topic 1 and 2 Flashcards
1
Q
Strands of jurisprudence
A
- Natural law theory
- Legal positivism
- Feminist jurisprudence
- Critical legal theory
- Laws and economics
2
Q
Natural law theory
A
- ‘rules that conform to ideas of morality’
- idea that rules that don’t abide are not laws
3
Q
Legal positivism
A
- ‘the view of the law as it is, not as it ought to be’
set of declarations of the will of the sovereign, supported by the threat of penalty, or promise of reward
4
Q
‘Command theory’
A
- relates to legal positivism, proposed by John Austin
- Wish (of a sovereign people habitually obey)
- sanction
- expression of wish
- generality
- criticised as there must be more than a command backed by threat of sanctions
- laws recognised if passed through established procedure everybody agrees upon
5
Q
Feminist juriprudence
A
- law enshrines male dominance
- law filled with masculine perspectives
- points out male oppression in gender roles
6
Q
Ideologies of Catharine A MacKinnon
A
- gender equality is a political question
- law naturalises unjust power dynamics between men and women
- women’s standards should be a universal standard for humanity
- the world is a power hierarchy
- differences between men and women are irrelevant
7
Q
Law and economics/economic analysis
A
- assume through laws, we want to maximise satisfaction
- economic efficiency determines whether a law is good or bad
- eg murder is not bad because it is immoral, but because it costs the offender
8
Q
Critical legal theory
A
- legal materials don’t completely undermine dispute outcomes
- ‘Law is politics’ –> mutually intertwined
- law tends to favour the wealthy by protecting them from demands of the poor and minorities for greater justice
- questions the notion of the autonomous individual
9
Q
Ways to acquire territory
A
Conquer - take control by force
- laws of pre-existing Indigenous sovereign remain in force, with necessary modifications
Settle - implies uninhabited land
- no pre-existing Indigenous legal system
Cede - formally give up control of territory to another
- legally treated the same as conquered land
10
Q
Reception of British law in Australia
A
- Jan 26, 1788, ceremony where the governor affirmed the British Crown was asserting independent right to control NSW
11
Q
Australian Courts Act 1828 (UK)
A
- applied English law
- established courts
12
Q
Colonial Laws Validity Act 1865 (UK)
A
- allowed parliament and courts to alter received UK law, as long they were not repugnant to laws operating by ‘paramount force’
- allowed colonies to amend their constitutions
13
Q
Statute of Westminster 1931 (UK)
A
- granted Cth full legislative independence from the UK
- removed repugnancy restrictions
14
Q
Australia Act 1986
A
- severed all legislative links with the UK
- removed limitations on state parliaments
- abolished Privy Council appeals (from state Supreme Courts)
15
Q
Historical sources of law
A
- religion
- Magna Carta
- Justinian Code (Roman law)
- Code Napoleon
16
Q
Differences between barristers and solicitors
A
Barristers
- often specialise, focus on advocacy in court
- after signing the Bar Roll can only act as a barrister
Solicitors
- general advice, initial client consultations
- transactional work
- some advocacy in lower courts, often after briefing with a barrister
17
Q
Difference between legal practitioners and lawers
A
Legal practitioner
- current Australian practising certificate
Lawyer
- admitted to legal profession in any jurisdiction
18
Q
Features of the common law system
A
- judge made law
- adversarial procedures
- one continuous hearing
- emphasis on rights of the accused
- doctrine of precedent
19
Q
Features of the civil law system
A
- based on codification
- enhances access to the law
- inquisitorial system
- judges merely apply the law
- values universality
- hearings at various stages
20
Q
What countries use Common Law and which use Civil Law?
A
Common Law - countries colonised by Britain
Civil Law - Western Europe
21
Q
Features of the adversarial system
A
- party control
- each party gives best efforts to present all relevant facts and arguments
- judge presides as an umpire
- one continuous hearing
22
Q
Features of the inquisitorial system
A
- judge has more active role
- inquire as the truth, rather
than umpire - hearings at various stages
- impartial verdict
- inquire as the truth, rather
- more informal, role of lawyer
less critical
23
Q
Limitations of the inquisitorial system
A
24
Q
s 92 of the Aus Constitution
A
Trade within the Commonwealth to be free
- ‘On the imposition of uniform duties of customs, trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.’
- restricts laws inhibiting
25
s 106 of the Australian Constitution
Saving of Constitutions
- 'The Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be, until altered in accordance with the Constitution of the State.'
- preserves state constitutions
26
Equity
- principles modifying early common law to deal with growing complexities (writ system)
- originated from the English Court of Chancery
- courts of equity and common law became rivals
- Judicature Act 1875 (UK) allowed Equity and Common Law to be administered together
27
Victorian Charter of Human Rights and Responsibilities 2008
- protect and promote human rights
- ensure interpretation aligns with human rights
- imposes obligations on all public authorities to act in line with human rights
- requires statement of compatibility with human rights for all bills
- allows SC to declare a statutory provision can't be interpreted consistently with human rights
28
R v Momcilovic (2010) 25 VR 436
Summary
- meth found in Ms Momcilovic's apartment
- s 5 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) stipulates that someone on the premises where drugs are found are deemed to have possessed them until proved otherwise
Decision/outcome
- Vic Court of Appeal decided this infringed the presumption of innocence recognised by s 25(1) of the Charter
- 1st 'Decision of Inconsistent Interpretation' under s 36 of the Charter
- the declaration didn't affect the validity of s 5 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic)
29
Examples of rights contained in the charter
- equality before the law
- right to life
- freedom from forced work
- freedom of movement
- freedom of expression
- right to a fair hearing
30
History of barristers
1841 - first Victorian barristers
1900 - Bar formally established
1902 - Bar roll
Present - ~1800 practising barristers in Victoria
31
Writ system
Writ - written command from a monarch that something be done
Legal fiction - use of fabricated facts, enabled new case types to be brought within existing writs and extended court jurisdiction
- ability to bring a case depends on being able to find a 'form of action'
32
Responsible government
- members of government must also be MPs
- because a party/coalition must keep support of the majority of members in the House, the government is responsible to the Australian parliament/legislature
33
Mabo [No 2]
Summary
- in 1982, Mabo battled for traditional land ownership recognition
Decision/outcome
- HC recognised Australia was not terra nullius
- recognised the beneficial native title could coexist with the Crown title
- if First Nations people could prove they had exercised traditional rights over land before colonisation those rights could have survived to present day
Significance
- Native Title Act 1993 (Cth) passed to simplify native title claims
- National Native Title Tribunal formed to mediate these disputes and make recommendations to government
34
The 'Wik' case (1996)
Summary
- claimants successful because they established that they had continued their traditional way of life in QLD with little disruption from pastoral leases
Decision/outcome
- found native title could coexist with pastoral leases, suggesting geographical area open to these claims was far greater than previously thought
- HC found their rights had not been extinguished even with the strict demands to prove continuity
- pastoral lease doesn't always confer rights of exclusive possession onto the pastoralist
if inconsistency exists between NT holders and rights of the pastoralist, NT rights yield
Significance
- led to passing of Native Title Amendment Act 1998 (Cth) for 'certainty'
- reduced First Nations' rights
- favoured pastoralists and mining companies
35
Yorta Yorta case (2002)
Summary
- claim to ~2000 square km next to Murray and Goulburn Rivers, which were more noticeably affected by colonisation (compared to the Wik case)
Decision/outcomes
- no evidence they continued to acknowledge/observe traditional customs/laws of those prior to sovereignty
- HC dismissed by a 5/2 majority
- higher legal thresholds to prove maintenance of a 'traditional' connection with the land
36
Akiba case (2002)
Summary
- NT claim for fishing rights
- Cth argued this right was extinguished by regulatory legislation prohibiting unlicensed fishing
Decision/outcome
- found these rights had survived despite the regulation
- while fishing legislation may have interfered with how NT rights could be exercised, didn't mean the underlying right was extinguished
- unanimous support from HC for more flexible view of continuity of FN traditions
Significance
- Full Court of the Federal Court encouraged broad interpretation
37
Judicature Acts of 1873 and 1875
- merged the 3 common law courts with the Court of Chancery and other specialised courts into the Supreme Court of Judicature, comprising the High Court and the civil Court of Appeal
- concurrent admin of common law and equity
- Aus followed these
38
Components of NTA compensation
- Economic loss
- Interest on economic loss
- Cultural loss
39
Promises contained in the Magna Carta
- Common Pleas heard in a fixed place
- justices and sheriffs must be learned in the law
- guarantee that justice is never delayed nor denied
40
When was the first assembly called a 'Parliament' summoned?
1265
41
ALRC's Connection to Country report (2013)
42
Love and Thoms
- 4/3 majority accepted the claim that FN could not be considered 'aliens' under the Constitution
