Law and justice in Australia : foundations of the legal system / Prue Vines.
2013
KU120 .V56 2013 (Map It)
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Details
Author
Title
Law and justice in Australia : foundations of the legal system / Prue Vines.
Published
South Melbourne, Victoria, Australia : Oxford University Press, [2013]
Copyright
©2013
Call Number
KU120 .V56 2013
Edition
Third edition.
ISBN
9780195576566 (pbk.)
019557656X (pbk.)
019557656X (pbk.)
Description
xxxi, 456 pages ; 25 cm
System Control No.
(OCoLC)828647586
Bibliography, etc. Note
Includes bibliographical references and index.
Record Appears in
Table of Contents
Table of Cases
ix
Table of Statutes
xvii
Preface
xxvi
Acknowledgments
xxvii
Timeline of Events in this Book
xxix
pt. 1
AUSTRALIA'S LEGAL SYSTEM IN FOCUS
1
1.
The Distinctiveness of Australian Law
3
Introduction
3
English or Australian law?
4
A snapshot of the current Australian legal system
5
The distinctiveness of Australian law
8
The art of reading cases
9
The themes of this book
16
2.
The Place of Australia in Global Law
18
Introduction
18
Legal systems
18
Legal traditions
20
International law
25
Private international law
32
pt. 2
THE ENGLISH HERITAGE
35
3.
The Royal Courts and the Development of the Common Law
37
Introduction
37
The effect of the Norman Conquest
39
Royal justice
41
The royal justice system
45
Major divisions of Anglo-Australian law: The rise of equity and the civil/criminal distinction
58
4.
Lawyers and the Early Development of the Doctrine of Precedent
68
Introduction
68
The forms of action
68
The rise of the legal profession and the doctrine of precedent
73
Law reporting
79
The need for law reform
84
Women lawyers?
88
5.
The Idea of the Law In the Civil War and the Glorious Revolution
95
Introduction
95
The king and common law
96
Parliament and common law
103
King, parliament and common law
110
Parliament and the Civil War
113
The Restoration and the Glorious Revolution
115
pt. 3
THE IMPACT OF THE ENGLISH HERITAGE
123
6.
The Impact on the Indigenous Inhabitants
125
Introduction
125
Terra nullius?
126
Colonial attitudes
133
Social justice and the legacies of 1788
141
Removing children: The stolen generations
148
The `Intervention'
157
7.
Britain and the Colonists: Using the Heritage
160
Introduction
160
Who came to the colony?
161
The early legal system
163
The fight for trial by jury
171
The governor's powers and the evolution of an independent court
172
The governor's powers and the fight for representation
175
Reception of English law
179
Which laws were received and which apply today?
180
pt. 4
MOVING TOWARDS INDEPENDENCE
189
8.
The Nature and Scope of Parliamentary Democracy in the States
191
Introduction
191
The constitutional framework of the states and the relationship with Britain
191
Moving towards independence
205
9.
Federation as the Will of the People
213
Introduction
213
Moving towards Federation
213
The right to vote in Australia
216
The Federal Constitution
221
Federalism in action
226
10.
Independent Attitudes, Race and Justice
231
Introduction
231
Race and justice
232
Native title after Mabo
249
pt. 5
DRAWING ON THE HERITAGE: LEGAL INSTITUTIONS IN ACTION
265
11.
Classifying Australian Law
267
Introduction
267
Traditional classification
267
Adversarial versus inquisitorial classification
269
The public/private law distinction
271
The modern distinction between law and equity
278
12.
The Courts in Action
295
Introduction
295
Jurisdiction
298
Travelling through the court hierarchy
311
Adversarialism and the court experience: Equity and access
319
13.
The Doctrine of Precedent
328
Introduction
328
The classic formulation
329
What is binding?
331
The hierarchy of authority
333
Precedent and change
335
Theories about precedent and law
337
Using legal argument
345
So what does restrain judges from arbitrary decision-making?
359
14.
The Doctrine of Precedent in Action
362
Introduction
362
Forms of action to causes of action
362
Challenging the dominance of contract: The rise of the tort of negligence
365
Conclusion: The dynamism of the doctrine of precedent
387
15.
Interpreting Statutes
388
Introduction
388
Parliament in action: How a bill goes through parliament
389
Classification of statutes
391
Structure of an Act
393
The relationship between common law and statute
398
The traditional rules of interpretation
399
The modern approach
416
16.
The Modern Lawyer
421
Introduction
421
The colonial profession
421
The legal profession into the twentieth century and beyond
423
The lawyer today
427
Meeting the challenges
428
What will the future bring for lawyers?
441
17.
Conclusion: The Importance of Law
443
Index
446