1. pal can legislate on any subject matter 2. no parliament can bind a later parliament 3. no court or other person can override legislation

week 1 Flashcards by Emily Duffin

theories of law (names)

natural law theory

legal positivism

critical legal theory

feminist jurisprudence

economic jurisprudence

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Natural Law Theory

a theory asserting that the correct law is the one that human ethics, morality and principles of justice

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critical legal theory

First strand: legal materials (such as statutes and case law) do not completely determine the outcome of legal disputes, there are constraints and influences on those in power, which will influence.

Second strand: all law is politics, law and politics are mutually intertwined.

Third strand: the law tends to serve the wealthy and powerful by protecting them against the demands of the poor and minorities for greater justice.

Fourth strand: questions the notion of the autonomous individual as people are determined in large part by social and political structures that surround them

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feminist jurisprudence

examines how laws are encased with a masculine perspective , dominance and privilege questioning if laws truly represent universality and equality

Sometimes the law treats men and women differently when they should be treated the same and sometimes the same when they should be treated differently

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legal positivism eg people

“command theory”

law is human creation set out by those in power (sovereign) supported by the threat of penalty’s or a promise of reward

eg Bentham Austin and Hart

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What did Hart say?

laws are recognized if they have gone through an established procedure

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Economic Jurisprudence

good law reflects good economics

Legislation can improve market conditions not justice or morality

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Utilitarianism

idea that the goal of society should be to bring about the greatest happiness for the greatest number of people

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Virtue Ethics

A theory that focuses on the development of morally good character.

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Rule of Law

No one is above the law

government cannot exercise power unless it can point to a specific rule of law which authorizes it to do so

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Representative Government

a system by which people elect members to act on their behalf

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Responsible Government

cabinet is responsible to the people/ accountable

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Separation of powers

-Parliament creates the law

-judiciary judicates the law then enforces through the police force

-executive administers law

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pal sovereignty

pal can legislate on any subject matter
no parliament can bind a later parliament
no court or other person can override legislation

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Australian courts act

1828 UK

affirmed that English law now prevailed in the colonies of Australia

pal not able to make laws against UK law at all

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Colonial laws validity act

1865 (UK)

states free to alter received UK law

BUT only within the state
not on statutes of “paramount force”

applied when Aust federated.

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federation when? what act? benefits? but?

1901

commonwealth of Australia act 1900 (imp)

central federal government with state pal

free state trade SECTION 92
defense

GOV STILL SUBJECT TO CLVA

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Statute of Westminster

1931 UK

commonwealth pal full legislative freedom

restrictions on pal removed.

BUT still can legislate fore States and appeals to privy council.

Australia acts

1986 BOTH UK AND Cth

severed last links with uk

abolished privy council appeals.

constitution what outlines x6

central federal government with state pal

separation of powers

outlines area of law for each pal
concurrent - sec 51
exclusive - s 52
residual -not in s51

responsible government

no bill of rights

double majority referendum

Victorian Charter of Human Rights and Responsibilities

2006

not consitutionally entrenched can be altered by any gov

lists 20 bascic human rights
eg presumption of innocence

Victorian Charter of Human Rights and Responsibilities s36 (2)

Law is against fundemental human rights then SCV can declare inconsistent interpretation

BUT No teeth cannot strike out legislation totally b/c it infringes rights

Momcilovic v The Queen

2011

drugs poison and controlled substances act
a person has to prove to the court that they were not in possession of drugs

goes agist the presumption of innocence.

SCV
could not find a rights favorable interpretation.
first declaration of inconstant interpretation
BUT could not strike out leg

1967 Referendum

remove 127 —>include Aboriginal people in the census.
alter s51 —>laws for Aboriginal people now concurrent

90.77% of people voted for this change - the highest YES vote ever recorded in its field.

Mabo v Queensland

overturned the doctrine of terra nullius and established the legal doctrine of native title in Australian law. Lead to the creation of the Native Title Act 1993 (Cth).

3 ways to acquire territory

ceded-> given through treaty both legal systems continue with modification conquered-> won as a result of a war settled -> no pre-existing legal system Aust was settled hence English legal system fills void "terra nullius"-Latin term ->empty land ->didn't see framing and land ownership -> therefore English law can prevail and settle an ''empty'' land remained till 1992 in common law until Marbo case

Justinian Code

Roman empire law but law lost rediscovered in 11 century and became basis of European civil legal system A collection of laws that reflected Christian values

Napoleon code

Principles still part of modern day European civil law incorporated the civil French code, the code of criminal procedure, penal code and commercial code

court of equity

its principles developed early common law lord chancellor decided the matter on fairness rather than rules or procedures less formal fixing innate wrongs

court of common law

strict procedures had to have cases involving a particular right eg trial by battle

judicature act 1875

joined Court of common law and court of equity to form supreme court of 2 parts.

Common Law System

judge-made law and legislation. Adversarial procedure incorporates rights of the accused and the victim based on the doctrine of precedent eg Britain us Aust nz India

Adversarial system (common law system)

1. party control over litigation 2.evidence given through witnesses 3.judge acts as umpire 4. one continuous hearing 5.compliance enforced only at request of other party if parties are unequal then this can effectively access justice maintains impartiality

civil law system

based on codification Inquisitorial system judges can ask questions hearings have various stages available to more people eg France Spain Portugal most of Europe

inquisitorial system (civil law system)

judge plays a more active role different hearings more informal only works when both parties are equally represented

Case of Prohibitions del Roy (1607

Preventing the King from being personally involved in Common Law Courts.

when was the magna carta signed

1215

barrister

self-employed not able to be a part of a firm Advocate for client in court Need to be admitted to the bar roll cab rank rule applies

Solicitor

Instructions to a barrister general advice Prepare litigation paperwork resolve disputes mainly gives General legal advice and general conflict resolution Need to hold a practicing certificate and engage in at least 10 hours of professional development activities each year

Legal Profession Act regulates

Borrowing of client’s money Conflicts of interest How a person may be admitted to practice

lawers are...

People who have been admitted to legal practice in Victoria

the bar roll was introduced

in 1902

legal practitioners are...

lawyers Wich hold a current Australian practicing certificate