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Foundations of Law, THESE PRINCIPLES OPERATE IN AUSTRALIA TODAY, QLD…

- - - - Elements of Western law
        
        Law as an essential factor in society
        
        Theories of law
        
        Sources of law
        
        Role of law in society
        
        Social demands
        
        Formal organisation
        
        Doctrinal autonomy
        
        Professional specialisation
        
        Historical tradition
      - Code of Justinian
        
        Impact on Western legal systems
        
        Centrality
        
        Autonomy
        
        Codification of civil law
        
        Providing new model of law
        
        Updating law
        
        Summarising existing law
      - Twelve Tables
        
        Arbitrary use of power
        
        New republic
        
        New constitution
        
        Confusion
    - - What law "ought" to be
        
        Legitimate law = moral standards
      - St Thomas Aquinas
        
        Natural law = eternal law discoverable by reason
      - John Finnis
        
        Universal values
        
        Human Life
        
        Self-Preservation
        
        Basic forms of human good
    - - What the law "is"
        
        Parliamentary sovereignty
      - Jeremy Bentham
        
        Law = Statutes of Parliament
        
        Common law critic
      - John Austin
        
        Common law = legitimate
        
        Authority of political sovereign
      - H L A Hart
        
        Obligation rules
        
        Primary
        
        Thou shalt not kill...
        
        Secondary
        
        Thou shalt not kill or else...
    - - Substantive
        
        Obey the law
      - Procedural
        
        Due process
        
        Procedural
        
        Fair trial
        
        Substantive
        
        Protection from arbitrary use of power
  - - - Customary law in pre-Norman England
        
        Anglo-Saxons and their own customary laws
        
        The Dooms
        
        Failed codification
        
        No centralisation of justice
        
        Celtic customary law vs codified Roman law
        
        Celts used their own customary law
        
        Codified Roman law applied to Romans
        
        Roman Britain
      - Following the Norman Conquest
        
        The Writ System
        
        strict & inflexible Register of Writs
        
        strict & inflexible Common Law
        
        Appeals made to Chancellor
        
        Decisions made on fairness + justice
        
        1 more item...
        
        Central Courts
        
        Jury
        
        Centralisation of government
        
        Centralised system for the administration of justice
        
        unification of laws
        
        Common law?
        
        Continental feudalism
        
        King's courts
        
        Disputes over land
        
        Common law?
        
        Norman land law
        
        Battle of Hastings (1066)
        
        William (first Norman king)
        
        No significant change to Anglo-Saxon law
      - Rise of Constitutional Law in England
        
        Glorious Revolution of 1688
        
        Liberty
        
        Parliamentary supremacy
        
        Common law subject to Parliament
        
        Constitutional monarchy
        
        Crown subject to Parliament
        
        Emergence of Parliament
        
        Model Parliament
        
        Provisions of Oxford
        
        Rule of Law and Due Process
        
        Magna Carta (1215)
    - - Civil vs Criminal
        
        Criminal
        
        Prosecution
        
        Onus of proof
        
        Beyond reasonable doubt
        
        Defendant
        
        Civil
        
        Defendant
        
        Plaintiff
        
        Onus of proof
        
        Balance of probabilities
      - Public vs Private
        
        Private
        
        Individuals - Individuals
        
        Public
        
        Individuals - State
    - - Derived from English legal system
      - Adversarial
        
        Precedent
        
        Active role of litigants
        
        Passive role of judge
  - - - land belonging to no one
      - John Locke
        
        cultivation of land
      - informed
        
        international law
        
        colonisation
    - - law of coloniser?
        
        settled colony
        
        conquered colony
      - law of existing people?
      - treaty?
        
        ceded colony
    - - William Blackstone
        
        Blackstone's proviso
        
        English carried only so much law to other lands as is applicable
        
        uncertainty
        
        how much common law?
        
        equity?
        
        statutes?
        
        Australian Courts Act 1828
        
        attempt to clarify
        
        paramount statute
        
        all laws + statues in England applied (except equity)
        
        date, not a source
        
        recognised that the British Colonial office intended the new colonies to become self-sufficient over time
    - - Australia received English legal culture
        
        way of approaching legal practice
    - - Paramount statutes
        
        local legislature cannot repeal
        
        colonies allowed to pass seperate local law
        
        balance between control + relative independence
    - - Mabo v QLD (1992)
        
        Rejection of Terra Nullius
        
        common law influenced by int. law of terra nullius, int. law has changed, common law can change
- - - - Specify the political + legal institutions (state and commonwealth)
      - Allocate powers of government (state and commonwealth)
      - specify interrelations between commonwealth + state laws and governments
      - amending federal system
    - - Not until July 1900 that colonies had agreed to federation
    - - Commonwealth of Australia Constitution Act 1900 (UK)
      - Royal Commission of Assent 9 July 1900
      - Letters Patent constituting the office of the Governor-General
        
        Inauguration of the Commonwealth of Australia
      - Queen Victoria's Instructions to the Governor-General
  - - - Head of state
      - Governor-General
      - Democratically elected parliament
      - Executive
        
        PM
        
        cabinet ministers
      - Independent public service
      - Opposition
    - - Sovereignty
        
        Parliament = supreme authority in decision-making process of state
      - Responsible government
        
        Executive responsible to legislature
        
        Securing accountability
        
        Ministerial responsibility
        
        Individual
        
        For administration of their portfolio
        
        Collective
        
        All responsible to Parliament for cabinet decisions
      - Representative government
        
        Parliament directly chosen by Australians in periodical elections
        
        Concept of Parliament originates from Constitution
    - - House-initiated bills (typical)
        
        Presentation (initiation)
        
        First reading (formality)
        
        Second reading speech (background + policy objectives) (USED FOR STATUTORY INTERPRETATION
        
        Second reading debate + consideration
        
        Third reading + passing
        
        1 more item...
    - - Delegated/Subordinate
        
        Contains the detail to implement the legal framework contained in the Act of Parliament
      - Primary
        
        Contains the overall framework for a particular policy initiative
        
        Must contain authorising section to allow for delegation
        
        Responsible government
    - - Fundamental legislative principles
        
        Unicameral parliament
        
        Lack of scrutiny
        
        Need for Legislative Standards Act
        
        Fitzgerald Inquiry
        
        Breach of principles
        
        independent OPC necessary
        
        Electoral and Administrative Review Commission (EARC) necessary
        
        investigated need for fundamental legislative principles
  - - - Independent
        
        Fingleton v The Queen
      - Impartial
        
        avoidance of
        
        bias (perceived or otherwise)
        
        conflict of interest
        
        prejudgement
      - Without it there would be
        
        Abuse of power
        
        No rights
        
        no rule of law
        
        law applied unequally
        
        government above law
    - - s71 of Australian Constitutition
        
        HCA
        
        FCA
        
        Federal jurisdiction
        
        Federal law
        
        Superior court
        
        Creates precedent
        
        State courts
      - Judicial power
        
        actual controversy put before court by parties
        
        authoritative decision made
        
        no advisory opinions
        
        controversy must affect existing rights/liberties
        
        court must decide according to (in context of) pre-existing law
        
        not literal
        
        conclusive decision must be reached
      - Kable v Director of Public Prosecution (NSW)
        
        indefinite jail w/o criminal offence
        
        McHugh J
        
        invalid
        
        integrated system
        
        state court has fed. jurisdiction
        
        must act consistently with fed. court
        
        1 more item...
      - Non-judicial power
        
        more administrative in nature
    - - "functional" separation
        
        Executive
        
        appoints judges
        
        must not interfere w/ judicial decisions
        
        ministers are MPs
        
        Legislative
        
        Judiciary
- - - - Characterised by
        
        Analysis
        
        Evaluation
        
        Creation
        
        Use of
        
        logic
        
        deductive reasoning
        
        inductive reasoning
        
        reasoning by analogy
        
        complex problem-solving
        
        Novel circumstances
      - Concept
        
        Basic idea/ideal
      - Conceptions
        
        Different approaches within concept itself
    - - Inductive reasoning
        
        from particular to general
        
        general principle (precedent) from past decisions
      - Deductive reasoning
        
        from general to particular
        
        general principle (precedent) to circumstances
      - Reasoning by analogy
        
        analogous circumstances
      - Syllogistic logic
        
        Major premise
        
        all As are Bs
        
        Minor premise
        
        x is A
        
        Conclusion
        
        x is B
      - Propositional logic
        
        "if", "then", "or", "and"
        
        valid v invalid forms of argument
      - Predicate logic
        
        propositional
        
        adds quantifying expressions
        
        "any", "all", "some"
        
        expresses a conclusion
      - Deontic logic
        
        "must", "should"
        
        what is permitted, prohibited required
        
        duty, optional, that which "ought" to occur
        
        normative considerations
    - - Premise
        
        Provides evidence for truth of conclusion
        
        Raw materials
      - Conclusion
      - Argument
        
        Structured around formal logic
        
        Final product
        
        What happens on the factory floor?
        
        Analysis
        
        Understanding structure
        
        Evaluation
        
        how good?
        
        1 more item...
    - - MacCormick's
        
        "Law is institutional normative order"
        
        Assumed existence of orderliness ("legal order")
        
        Administered through "legal system"
      - Dworkin's
        
        "interpretative" approach
        
        Criticism of MacCormick
        
        "leeways of choice"
        
        barrenness of logic
        
        fertility of language
        
        endemic operation of categories of illusory reference
        
        might better serve as "ex post facto"
      - Similarities
        
        Importance of coherence
        
        Within areas of law
        
        Rationality + Legitimacy
        
        Across areas of law
    - - HCA rejected
      - Court has no power to overrule cases prospectively
  - - - Reason for the decision
        
        concept
      - Must be in respect of legal issue being considered by court
        
        Each legal issue has separate ratio
      - Capable of future independent application?
      - Different conceptions
        
        Judges' views on what ratio is differ
        
        disagreement
        
        views/conceptions on ratio
        
        external considerations (policy)
        
        framing of issue
        
        MacCormick
        
        Ratio = ruling
        
        existing legal rule
        
        new legal rule
        
        judge's interpretation of part of statute in context of circumstances
        
        settles point of law
    - - Not directly answering legal issue
      - Examples
        
        Judge gives examples
        
        Judge evaluates past decisions
        
        Judge: "I make the following comments/observations..."
        
        Reasoning process (getting to ratio)
  - - - court should follow previous decision of higher court
    - - declaratory theory
        
        judgement not law
        
        statute = law
      - positivist
        
        written judgements contain law
        
        or in statutes
      - conventionalist
        
        somewhere in-between
    - - follow decisions above them
      - appellate court follows its own decisions
        
        EXCEPT
        
        error
        
        higher court changed precedent
    - - No discernible ratio
        
        future lower court follows ultimate decision
        
        where circumstances not reasonably distinguishable
    - - appellate courts bound to follow decisions of other Australian intermediate appellate courts
      - unless decisions are plainly wrong
    - - different to passing comment, example, etc
      - respect to legal issue not necessary to outcome
      - not binding on lower courts
- - - - Judge interprets statute
      - applies to circumstances?
      - identifying issue/s from arguments
    - - Textualist (most restrictive)
        
        Emphasis on actual meaning
        
        Meaning of text, not intention of Parliament
        
        Meaning of section same at enactment as in future
        
        does not change
        
        Statutory interpretation = ascertaining plain (ordinary) words of statute
        
        Soft Plain Meaning Theory
        
        Plain (ordinary) meaning of statute's words within historical context
        
        History of provision not context of provision within statute, purpose/object
        
        Hard Plain Meaning Theory
        
        Actual text = only basis for interpretation
      - Intentionist
        
        intention of Parliament
        
        meaning of words they used
        
        Specific Intent Theory
        
        E.g. common law literal approach
        
        Read statute as whole
        
        Plain ordinary meaning
        
        intention of Parliament
        
        Imaginative Reconstruction Theory
        
        E.g. common law mischief approach
        
        identify common law before statute change
        
        mischief/defect of common law prior to statute
        
        remedy enacted by Parliament to cure
        
        true reason for remedy
      - Purposive
        
        Importance of object/purpose of statute
        
        Kirby J
        
        3 interpretive principles
        
        purposive
        
        contextual
        
        access to extrinsic materials
        
        explanatory notes
        
        minister's 2nd reading
      - Dynamic (least restrictive)
        
        Normative perspective
        
        Evolving meaning of statute in changing times
        
        meaning of words change
        
        society changes
        
        Flexible
        
        Best Answer Theories
        
        Interconnection between law + morality
        
        Fuller
        
        Need for coherence
        
        Pragmatic Theory
        
        Multidimensional
        
        Does not focus on a single issue
        
        Critical Theories
        
        Deconstructs statutory texts
        
        ideology underpins statute
        
        Actual words provide only starting point
  - - - whether or not statute applies to issues
    - - vagueness/uncertainty
        
        meaning of particular words
        
        e.g. Hart
        
        park vehicles
        
        planes?
      - to clarify
        
        definitions section
        
        ordinary dictionary used at times
    - - structure of statute itself
        
        between sections
        
        different statutes
    - - ordinary meaning v legal meaning
        
        legal meaning
        
        same as ratio
        
        court's interpretation of way in which part of statute should be interpreted in view of the legal issue
        
        ordinary meaning
        
        plain
      - statutory context
        
        legislative intention
        
        where you can identify (from statute, extrinsic, etc) parliament's intention vis a vis the particular issue being considered by the court
        
        purpose
        
        Effect must be given to whole statute
      - TEXT-CONTEXT-PURPOSE
    - - used at 'TEXT' stage
      - does not apply in QLD context
      - Noscitus a sociis
        
        words interpreted in context of other words
        
        Richardson v Austin - public passages or places
      - Ejusdem generis
        
        section of statute
        
        2+ specific words followed be general word/s
        
        your circumstances fall within general words
      - specific prevails over general
        
        no doubt that it applies in QLD