Seminar Topic Question Student

Aus Legal Systems and Sources of Law

2 The Western Legal What are the distinguishing features of the ‘Western’ Legal tradition? What other Dan
Tradition legal traditions are there?
(2) The Rule of Law What do you understand by the term ‘rule of law’? Is it culturally biased or a neutral Felix
set of principles?
Exporting the Western Do you think that the key elements of the Western rule of law should be exported to Group
Idea of Law legal systems that have traditionally been less familiar with them?
3 Development and change in the Aus Legal System; Aboriginal Customary Law & Native Title
Aboriginal Customary Law What are the differences, if any, between law and custom?
How did English common law displace Indigenous customary law in Australia?
(3) What role does Aboriginal customary law play in the Australian legal system? Georgia
To what extent should the Australian system accommodate Aboriginal law?
In Walden v Hensler, how did Brennan J try to accommodate customary law within the
Anglo-Australian law? How did Toohey and Gaudron JJ try to accommodate
customary law within the Anglo-Australian law? Which view do you prefer and why?
Terra Nullius, Mabo, and Identify and critique the ways in which the ideas of Blackstone were used to justify
the Native Title the acquisition of territory by colonial powers.
Legislation How does Brennan J deal with these issues in Mabo v Queensland (No 2)?
What is ‘native title’? What does it require? What extinguishes native title?
What do you think of Dawson’s argument that it was a matter decided politically at
the time and so should all be left to parliament to resolve now?
What were the principal aims of the Native Title Act 1993 (Cth)? Were these changes
necessary?
Wik and the amendments What were the main issues in Wik?
to the Native Title Act What was the decision of the High Court?
How did the common law decision of the High Court in Mabo and Wik interact with
legislation?
What was the effect of the amendments to the Native Title Act?
Do you think these changes were necessary? Why or why not?
What impact has Mabo had in the long term? What does this tell you about the power
of the courts to effect legal change?
4 Case Law and Precedent
How to read and What are the general rules of precedent? Ethan
(2) understand cases What are the benefits of precedent?
What are the problems with precedent?
Do you think precedent genuinely constrains decision makers?
What factors influence judicial choices?
What does the HCA say about the common law method in PGA v R [2012] HCA 21?
6 Statutory Interpretation 1
Approaches to What is the mischief rule? Morgan
(2) interpretation What is the literal rule?
How do the modern statutory approaches differ, if at all, from common law
approaches?
What are the advantages and disadvantages of each approach to statutory Melissa
interpretation?
7 Statutory Interpretation 2
Presumptions used in the What are the different presumptions that inform statutory interpretation? Robert
(1) Interpretation of Do they seem reasonable to you? Why/why not?
Legislation
8 Law, Narrative, Access to Justice and Ethical Practice
What are the key elements that establish unconscionable conduct?
(3) What were the relevant facts in the dispute reported in Diprose v Louth (No 1) (1990)?
What is a stock story? Why do they have power over us? What is an outsider story? Otis
How is different evidence used in the various arguments by Sarmas’ characters?
Whose view of Diprose did you find most compelling and why?
What did you think of Lisa Sarmas’ way of telling different versions of the case and
presenting the competing narratives?
What are ‘community standards’? Can they, and should they, be taken into account? Leah
If so, how?
What is Patricia Williams’ argument? Bright
9 The Rule of Law and Judicial Legitimacy
The Ideal of Legality What is the rule of law?
(3) Why is it important?
According to Jowell, what values underlie Dicey’s rule of Law?
What principles of law and justice flow from the rule? Grace
What factors undermine the effectiveness of the rule of law in practice?
Judicial legitimacy Why is common law ‘messy’?
In acknowledging that judges ‘make’ law, Justice Davies distinguishes between judicial
law-making and legislation. Make a list of these differences. Why are they important
Is judicial law-making, within the constraints identified by Justice Davies and Gleeson,
an appropriate way of making law?
Judicial independence What does judicial independence require?
How does judicial independence relate to the rule of law?
What is the problem with politicians commenting on judgments? Is there a line
between legitimate and illegitimate criticism by politicians and if so where is that line?
 Judicial selection & What do you see as the advantages and disadvantages of the current system of Merlin
supplementary judicial selection?
references Does the current system of judicial selection have any influence on your view of the
legitimacy of judge-made law?
Are gender, ethnicity, religion, or other personal characteristics of judges important?
How and why should judges be removed from office?
Nuremburg trials and the Did the Nuremburg trials reflect the rule of law? Axel
rule of law
10 Parliamentary Law-Making and the Role of the Executive
Why does the Executive need wide powers in complex modern Parliamentary Jack
(2) democracies?
What are the problems with wide executive power?
What powers do, and should, Courts have to review the exercise of executive action
to ensure that it is lawful?
In what circumstances do you think the Executive should have the power to detain
people? What checks should be provided on such powers?
Case study: The Industrial What role has the legislature played in the regulation of industrial relations in
Relations Power in Australia?
Australia What forced in Australian history have shaped the relationship between legislative
power and industrial law?

11 Representative Democracy and Constitutional Limits on Law

Representative Australia is characterised as a representative democracy. What do you understand
(3) democracy this to mean?
In practice, how ‘representative’ is representative democracy in Australia?
What barriers to representation and participation exist?
Do you think that ‘direct democracy’ is an appropriate or useful way for people to
participate in law making?
What disadvantages might it have?
Constitutional limits on Why does the constitution permit a court to strike down legislation?
law Consider the ways in which HCA review of legislation is both democratic and
undemocratic.
What is an implied right?
Consider the majority and minority views in ACTC v Commonwealth. Which do you
find most convincing and why?
How do these contrasting judgments characterise democracy?
Is there a ‘right to free speech’ in Australia? If not, what exactly is there instead?
Analyse the judgment of Stephen J in Koowarta v Bjelke-Petersen and Others.
 What reasoning was used to determine the validity of The Racial Discrimination Act
1975?
Do you consider Stephen J’s approach a responsible and legitimate exercise of judicial
power?
Does the Australian Constitution provide sufficient protection for individual rights?

12 International Law
Interaction between What is international law? Where does it come from? Who is bound by it? Is it really
(2) international and law?
domestic law Should international law have an influence on domestic law?
What problem does this bring?
What are the formal sources of contemporary international law? How do they
operate? In what ways do they reflect the understanding that consent is the basis of
the authority of international legal order? What problems might this face?
What is the relationship between international law and Australian law? Do different
sources of international law have different effects on domestic law?
Why does the federal government have the power to legislate on such matters?
Is the Australian approach a universal one, or do different states adopt different
models?
What flaws do you see with Australia’s approach to its treaty obligations?
Should international law have an influence on domestic law? What problems does this
bring?
13 Human Rights
Human rights protection What different philosophical foundations for human rights have been proposed? Ollie
(2) in Australia What are the strengths and weaknesses of these? Which do you find most plausible?
Do human rights need a philosophical foundation?
In what ways does these the international human rights regime impact upon human
rights protection in Australia?
Is international oversight of domestic democratic decision-making
necessary/legitimate?
What were the legal obstacles that Toonen had to overcome in order to be successful
in presenting his communication to the Human Rights Committee?
What different models for rights protection in the domestic context are available?
What are the advantages and disadvantages of each?
Do you think the federal government’s 2010 Human Rights Framework provides a
good basis for protecting human rights in Australia?