Legal Foundations B - Exam Notes PDF

LFB QUICK LOOK  Moderate Formalism: Considers Legal Foundations B – Exam Notes context/purpose alongside rules (realistic approach). 1. Legal History...

LFB QUICK LOOK  Moderate Formalism: Considers Legal Foundations B – Exam Notes context/purpose alongside rules (realistic approach). 1. Legal History  HLA Hart: Law = primary rules (obligations)  Origins of Australian Law: + secondary rules (recognition). o Derived from English common law and equity.  Lon Fuller: Law’s "inner morality"—clarity, consistency, prospectivity. o Reception of English law in Australia (1788).  Ronald Dworkin: Law includes rules + o Statutory law developed alongside common principles; judges interpret law in its best law. moral light.  Key Milestones:  Realism: o Federation (1901): Creation of the o Focus on how law operates in practice ("law Commonwealth of Australia. in action"). o High Court Establishment (1903): Final o Judges influenced by social, political, and appellate court for Australian cases. personal factors. o Statutory Law Growth: Increasing importance of 3. Legal Problem Solving legislation over common law. 1. Identify the Facts: Extract relevant 2. Legal Theory (Jurisprudence) details from the scenario. Legal Concepts 2. Identify Legal Issues: What legal  Positivism: questions arise? o Law = rules created by recognized 3. Apply the Law: Use statutes, case law, and principles to analyse issues. authority. 4. Argue Both Sides: Consider o Validity ≠ morality (e.g., "law is law"). narrow/broad interpretations of the law. o Focus: certainty, predictability, and order. 5. Reach a Conclusion: Justify your  Natural Law Theory: position with legal reasoning. o Law should reflect universal moral 4. Statutory Interpretation principles. Approaches: o Unjust laws lack legitimacy.  Literal Rule: Focus on the plain meaning of words in the statute. o Connection between law and morality.  Golden Rule: Modify literal meaning to  Other Concepts: avoid absurd/unintended outcomes. o Liberalism: Emphasis on individual rights,  Mischief Rule: Identify the problem freedoms, equality. ("mischief") the statute aims to solve. o Human Rights: Universal entitlements (e.g.,  Purposive Approach: Consider fair trial, freedom from discrimination). legislative intent and purpose. o Ethics: Moral principles guiding legal Impact of Legal Theory: behavior.  Positivism/Formalism → Literal approach o Equality: Equal treatment before the law.  Natural Law/Realism → Purposive approach o Private Property: Right to own/use property  Moderate Formalism → Balance literal protected by law. meaning with context/purpose Legal Theories 5. Rule of Law & Democracy  Formalism: Rule of Law: o Law = system of rules; judges apply rules  Everyone is subject to the law; no one is mechanically. above it.  Strict Formalism: Literal application of rules;  Laws must be: minimal discretion. o Clear, public, stable, and fairly enforced. o Created by proper authority following due profit-driven but still guilty under broad process. interpretation. Democracy: Conclusion:  Laws made by elected representatives in  Likely guilty under both approaches; Parliament. purposive arguments may mitigate penalty but not guilt.  Public participation in law-making process. Summary Table: Key Concepts/Theories Responsible Government: Exam Tips:  Executive government accountable to Parliament and public. 1. Use IRAC Structure: Constitutional law o Issue → Rule → Application → Conclusion Constitution & Separation of Powers: PUBLIC Administrative law  Legislative, executive, judicial branches are 2. Cite Authority:LAW Criminal law distinct but interdependent: Taxation law o LAW Reference cases/statutes/legal principles Tort law o Prevents abuse of power; ensures checks clearly. PRIVATE Contract law and balances. LAW Property law 3. Time Management: 6. Access to Justice Company law o Allocate time per question; don’t overthink Barriers: one part.  Cost, complexity, location, language 4. Structure Answers: barriers. o Use headings/subheadings for clarity and Solutions: organization.  Legal aid services for disadvantaged LFB EXAM NOTES groups.  Pro bono work by legal professionals.  Simplified court procedures (e.g., ADR). 7. Theoretical Application Exercise Scenario: El-Chapo supplies Soma Heaven tablets to friends in exchange for dinner/movie. Is he Law: is a system of rules made by the guilty under s10 of the Banned Recreational state and enforceable by prosecution or Drugs Act? litigation. IT is justice, ethics and politics. Relevant Law:  Definition: 1. Section 10: Offense to "supply" listed Law is a system of rules created and drug (Soma Heaven). recognized by the state, designed to regulate the conduct of individuals and o "Supply" = sell, offer for sale, or otherwise groups within society. These rules are distribute. enforceable by state institutions through Analysis: mechanisms such as prosecution (in criminal matters) or litigation (in civil matters). 1. Literal Approach (Positivism/Formalism):  Key Features: o "Supply" includes "otherwise distribute." o System of Rules: Law consists of general rules that prescribe o Dinner/movie = consideration → distribution what people can, must, or must not do. occurred → guilty under s10. These rules are intended to be clear, public, and stable. 2. Purposive Approach (Natural Law/Realism): o State Authority: o Purpose: Protect health/prevent commercial Laws are made by legitimate authorities (e.g., parliaments, courts) and are backed drug dealing. by the coercive power of the state. o El-Chapo not a commercial dealer; social o Enforceability: sharing context → may argue intent was not Laws are not merely suggestions; they are enforceable through courts and legal  processes. Breaches can result in penalties,  Resolves disputes such as fines, imprisonment, or other Change sanctions.  Correcting errors  Law and Justice:  Changing values Law aspires to achieve justice by providing a  Lobby groups framework for resolving disputes, protecting  Changing technology rights, and ensuring fairness. However, what  Political change is considered "just" can vary between societies and over time. Jurisprudence is the branch of philosophy concerned with the nature of law.  Law and Ethics: Law is closely related to ethics, as many Natural law theory: the law should be laws are based on moral values (e.g., administered and interpreted by the prohibitions on theft or violence). However, government in correspondence of fair and not all ethical principles are codified in law, goodness. Insist that if a law made by and not all laws are necessarily ethical (e.g., government positive law is consistent with historically unjust laws). natural law theory, the positive law does not have to be obeyed. Plays importance in  Law and Politics: development of common law and the Law is shaped by political processes and emergence of liberal democracy. Informs the reflects the values, priorities, and power content of various bills of rights. structures of society. Law-making is a political act, involving debate, compromise, Legal positives the law should be what the law and the balancing of competing interests. says. The validity relies on its legal resource.  Functions of Law: Liberalism: ideology emphasizing the importance and freedom of the individual and o Order and Stability: Maintains social order views certain values such as reason, rights, by setting standards of behaviour. equality and private property as of paramount o Dispute Resolution: Provides mechanisms importance. for resolving conflicts peacefully. Liberty, or freedom, is central to liberal o Protection of Rights: Safeguards ideology. individual and collective rights and  Negative liberty is freedom from freedoms. interference by the state. o Social Change: Can be used as a tool to  Positive liberty is liberty that is enabled through interference by the state promote social justice and reform.  Domestic liberty refers to freedom to say  Types of Law: and do as you please in your privacy. o Criminal Law: Prohibits and punishes Reason: is the capacity to understand conduct considered harmful to society. something using an ordered cognitive process such as logic rather than simply know. Outcome o Civil Law: Governs disputes between of sound logical reasoning (case law) or rational individuals or organizations. objective in logical manner (statue). Legal rules o Public Law: Regulates relationships must be far as possible, internally consistent between individuals and the state. and logically ordered. o Private Law: Regulates relationships Utilitarianism is a form of rational moral reasoning, enabling people to calculate the between private individuals. difference between right and wrong based on Categories of law reason and logic. 1. Substantive law and procedural law  judgment based off their utility. 2. Civil law and criminal law  Importance and protection of human rights. 3. Domestic law and international law Rights: privilege; claim; power; immunity. 4. Public and private law Extrinsic standards Purposes of Law Property: bundle of rights relating to the  Maintains social order possession, use and distribution of a wide range  Reinforces community values of possible things including land, natural  Helps the disadvantaged resources cars etc.  Stabilizes the economy  Prevents the misuse of. Power Private property: one possible form of Liberal democracy is one of the possible forms property. Owned by individual rather than state. of a representative democracy. The notion of equality is central to liberal democracies. The  The notion that everyone is entitled to own law safeguards citizens against human right private property, and that the state is abuses in assures minorities are afforded obliged to protect the private property of its adequate protection. citizens from interference by others, is a fundamental principle of liberalism. Democracy  There are four common justifications for the democracy is a form of government in which institution of property: citizens must stay in the decisions that affect their lives including participation and proposal 1. The first person to find something should be development and passing off legislation entitled to own it. representative democracy 2. A person should be entitled to own the result of their labour. representative democracy is one of the possible forms of democracy, which citizens vote for 3. Private ownership of property is more officials who represent them. Direct democracy efficient. is where the citizens participate directly in the 4. Private property is necessary for human process of government, including lawmaking, fulfilment. changing the constitution and overriding the decisions of the government officials Equality: Equal fundamental legal rights and obligations with no discrimination. common law is made by judges it is recognized in Australia as one of the two  Formal equality/ Procedural equality: sources of law the other being legislation. equal treatment of individuals before the The body of judicial decisions is called law. The wording of the law should not common law because the rules established distinguish between individuals. by judges are consistent across the Substantive equality: equality of relevant jurisdiction. opportunity rather than mere formal Constitutional monarchy equality. liberty reason rights the Australian monarch is described as a LIBERALISM constitutional monarch because they hold their position not by force of arms but according to equality private the will of the Australian people as expressed in property the Australian constitution. They are represented in Australia by Governor General the Australian legal system aspires to the rule the state governors Ana territory administrator of law refer briefly to the rule of law in the a federation chapter on fundamental legal concepts, it is the principle that government authority must be Australia is a federation. In Australia the federal exercised only in accordance with written parliament is expressed granted certain publicly disclosed laws that are made and exclusive and concurrent powers under the enforced in accordance with established Australian constitution and the residential procedures powers remain vested in the state parliaments. according to dicey there's three important Separation of powers characteristics according to this doctrine a distinction is 1. the laws applied equally to everyone made between the power to make law the power to administer law and the power to regardless of their social status culture interpret law religion or politics political beliefs 2. the courts uphold the legal rights of citizens Legislative power is to make law including the right to personal freedom executive power is the power to administer 3. no person may be punished other than for law conduct that is expressedly made illegal judicial power is to interpret the law. liberal democracy The doctrine of separation of powers is the Australia is a liberal democracy in which laws notion that three arms of government the are made by the executive government. legislator the executive and the judiciary should as far as possible remain functionally separate this means that: 1. Th The same person should not form part of Residual powers. more than one of the three arms of Anything not expressively identified as an government exclusive power or concurrent power in the 2. one arm of government should not control Australian Constitution is. The residual power. or interfere with the functioning of another Such as? arm and  Education. 3. one arm should not exercise the function of  Health. another arm  Criminal law. it is important to distinguish the separation of powers from the division of powers. Regulating territories. Division of powers refers to the division of law The Australian Constitution empowers the making between the federal government and federal Parliament to make laws in relation to various state governments. The separation of territories that have been surrendered by the power refers to the separation of legislative states or have otherwise been acquired by the executive and judicial power between various Commonwealth. bodies within each level of government. Similar provisions in the constitutions of the Responsible government territories provide that an event of inconsistency between a federal law. Territorial the executive branch of government is law, the federal logo prevail. The other external responsible to the legislator rather than to the territories are directly regulated by the federal monarch. government usually through it administrator 1. Each minister must report to the parliament Rights and freedoms. about their executive decisions and about The Australian Constitution does not include a the performance of their department Bill of Rights. Westminster system and. The 2. ministers are officially appointed by the doctrines of separation of powers and monarch they hold their position only while responsible government that informed the they have the confidence of the lower House drafting of the Constitution would be sufficient of the parliament to protect the rights and freedoms of 3. monarch is a head of state and officially in Australians. control of the executive government they Press rights and freedoms.-The Australian can act only through the ministers who are Constitution.-Right to just compensation to any as we have seen members of the legislature. person whose property is acquired by the The Australian constitution Commonwealth. constitutional conventions Rights and freedoms granted by the Australian Constitution by implication.-Lange v Australian the express term of the Australian constitution Broadcasting Corporation.(1997) are supplemented by Constitutional conventions. Roach v Electoral Commissioner (2007) A universal right to vote. A supply bill is a bill authorizing the exponential of funds on government activities for period. Changing the Constitution. Federal and state relations. The Constitution can be amended. The proposed amendment must. The Federal Parliament make laws. These are referred to as exclusive powers. 1. Be passed by an absolute majority of both Houses of Parliament. The state parliament may make laws. These are 2. Be put on the Australian voters in the form referred to as residual powers. of a referendum and passed by a majority of Federal and state parliaments make laws. These voters and most states. are referred to as concurrent powers. 3. Received royal assent. Concurrent powers. Executive Government. Refers to ministers The Commonwealth Parliament's legislative responsible. The ministers are also known as powers expand. The state parliaments Cabinet. legislation of power necessarily decreases. And The Governor General. And the state governors this process is referred to as centralization of do not participate in political process. There are the legislative power or shifting of the federal pointed and removed by the monarch on the balance in favour of the Commonwealth. advice of the Prime Minister of relevant premier. The Crown has two roles. First roles ceremonial. objective and impartial rather than subjective The second role is legal. They grant royal assent impartial. Judges must decide the case to all new legislation. according to the law, not according to political considerations of their personal values. Formal powers. Of the governor, state governors are those explicitly granted by the Strict formalism. relevant constitutional legislation, such as Formal reasoning is a method of reasoning that power to call elections, appointment testers and emphasizes the reasoning process over what It judges, summon and dissolve parliament and is that is being reasoned about. Example Iraq pardon criminals, and so on. method. The reserved powers of the Governor General Moderate formalism. and state governors can be exercised independently of the advice of the Executive 1. Harts. Uncertainty of the term Council. Such as premises.  the power to appointed Prime Minister,  core clear meaning. - home, shop  to dismiss a Prime Minister,  Penumbra of uncertainty – motor vehicle,  and to refuse to dissolve the parliament airplane when advised to do so by the Prime Minister.  Clear exclusions -marshmallow, phone, puppy Page 130 Federal Government department table. Pictures. Are members of the majority According to heart, when a legal rules clearly political party who are not allocated a ministeral applicable, judges should apply it formally an position. without regard on their personal views. Is what the laws ought to be. Challenging the executive. 2. LON Fuller Insisted that legal rules do not Ubudsman - Agent or representative of the have a core clear meaning an that can be people. It's the link between the citizen and the worked out from the language in which they bureaucracy of the government. are written. Freedom of Information Act. 3. Ronald Dworkin. The correct answer is not found by applying legal rules, but by The Administrative Appeals Tribunal.-This is not a court. It's a part of the executive government identifying and applying the underlying and exercises administrative authority rather principles. Even where there's no clear legal than judicial authority. rule dictating the answer to a legal question, there is a legal principle. Judicial Review. The process of challenging an administrative decision in the course is referred Legal Realism. to a judicial review.. Legal realists see the law is one of the many Prerogative writ are court ordered. Requiring an methods of social control. They favor an administrative officer or tribunal to act or refrain empirical approach to understanding the law of from acting in a particular manner. Types of preferring practical studies of other legal prerogative writs: system operates in what judges do, rather than more. Physiological musings about the sway of 1. Mandamus. Where the court orders the relationship between law and justice. someone to perform their administrative duties. Judicial Activism. 2. Certiorari - Where the court orders that Is a term used to describe, usually in a negative unlawful administrative decision to be set sense, the practice of judges reforming the law aside. overruling legal presidents on the ground that 3. Prohibition.-Where the court Prohibits an the existing rule appeared to them to be just. administrative officer tribunal from Unjust, defective, or absolute. exceeding its powers. Law and Power. Judicial reasoning is important. Respects Marxist Legal Theory constrained, whereas political reasoning legitimately considers a wide range of political In any society, the means of production. considerations. Judicial reasoning involves -The labor power, the materials, then the application by the judge of pre-existing law instruments and tools used in the process of rather than the creation of a new law. Judicial production. And the relations of production. reasoning must be consistent with past decisions of legislatures and courts. Must be -The Exploitation of the workers by the ruling o Prepare for legal practice and contributes to class. employability -Our fundamental importance in explaining Collaborative Lawyering everything else about that society, including its legal system. Practice group – in a firm Base.-Relations of product. A means of Effective Groups production. Group contracts – allocating toles and Superstructure.-Long politics. Education and culture. responsibilitys Critical legal studies.  Group leader Traditional understandings of the law and legal  Group recorder reasoning assumed that the law consists of stable and consistent body of rules and  Group worker principles that can be applied logically and  Group checker objectively. Postmodernism. What are the hallmarks of a successful group? 1. No universal truth 2. No objectivity o Similar goals 3. The right to be different 4. Deconstruction o Different strengths Page 392 o Varied Backgrounds Feminism. o Similar expectations 1. Liberal. It focuses on the recognition of Nature of Conflict women's rights, paralleling of the rights of men. -Equality. And rights. Conflict – Form of interaction between two 2. Difference Feminism. or more people who perceive their interests 3. Radical. See’s the political dominance by or values to be incompatible or opposed men over women. 4. Postmodern feminism examines a way in Terminology – which language and reasoning construct  Conflict- (general) and dispute- (specific) gender and sexual inequality.  Resolution - (solving problem) and Benefits of group work settlement - (end of conflict) o Communication skills  Alternative dispute resolution (ADR) – steps to resolve o Leadership Common Disputes o Decision-making o Family o Project and time management o Neighbourhood o Planning, prioritising and goal setting o Community o Negotiation and conflict management o Tenancy Educational Benefits o Workplace o Active rather than passive approach to learning o Consumer o Promotes education autonomy o Commercial o Provides an opportunity to develop o Governmental academic and social relationships Causes of Conflict  Interest: Substantive (things you can see) –  May take place with or without the procedural – (+) - phycological (values) assistance of a third party.  Values: Beliefs or principles  Intentional process, you enter strategically linked to ethics and professionalism. Early  Genuine and perceived Difference: resolution is priority. Relationship and structure problems  Can be transactional Addressing Conflict (If something comes up that is relevant. USE Benefits PROFESSIONAL LANGUAGE. You can say  Parties control the content – relevant you can present to client in next matters meeting if it aligns with your clients needs.)  Parties control the outcome – address all issues for concern 1. Do the parties have different interests  Parties maintain control over the process – 2. Do the parties have different values? can be simple, informal, inexpensive 3. Are the relevant interests and values  Parties choose the third party incompatible?  Takes place 4. How are the parties placed relative to each other? Disadvantages Dispute Resolution Process  Not prepared Negotiation  Might agree to unfair agreement (power/coercion) Mediation Approach’s  Independent third party. 1. Positional (distributive, solution,  They don’t advocate competitive) Negotiation –(orange analogy)  Don’t make decisions One party gets 2/3, the other gets 1/3 of the orange  Involve power imbalance you may want mediation  Extreme positions Adjudication  Incremental bargaining to new positions  Litigation  Competitive tactics  Private adjudication is arbitration 9lots of  Power-based tactics flexibility)  Concealed information  May be public or private  Interests of parties may be overlooked  An independent third person to impose a 2. Interest-based (integrative, principled, decision upon the parties to dispute collaborative, constructive) Negotiation - Facultative – Examples: Negotiation and One party wants the peel, one wants the mediation juice of the orange Advisory – conciliation – common neutral - Limitations party play an advisory role, can intervene to  Bargaining power is more appropriate help decision  May not be prepared to share relevant Determination – binding on two parties information Negotiation Models A process whereby the parties confer with 1. Adversarial each other for the purpose of reaching an agreement that satisfies their respective 2. Distributive interest. 3. Integrative BATNAS– best alternative to negotiated agreement (what can they afford?) 4. Principled WATNAS– Worst case scenario 5. Constructive Critical race theory. - Critical Race Theory In common facts – The positions for both essence is that it is. Racial discrimination and parties (What both parties want?) the dominance of white culture that gives rise to most forms’ injustice and oppression. Confidential facts – Potential interests (What your party needs?) Objectives of legal communication. Positions: specific proposals that a party  Understand. adopts to meet their interests. What a party  Persuade. wants  Explain and advice. Interests: needs that a party wants to have  Advocate. satisfied (substantive, procedural or phycological). Why a party wants something.  Negotiate. Blocking behaviours. Be strategic on how to use the information. Leave room for negotiation.  Providing advice too quickly. Constructive  Treating your client’s distress as none of your concern. 1. Prep  Switching the topic away from difficult or 2. Opening emotional issues.  Humouring or Jolene the client along. 3. Sending signals about relationship and priority (build trust) Explaining and advising. 4. Gathering information  Plain English.  What the client wants to know as well as 5. Agenda setting what the client needs to know. 6. Exploring Interests  Clients understanding. 7. Generating Options  Reactions to the advice and identify the main concerns 8. Problem-solving and bargaining  Focus upon the areas of advice where the 9. Outcome and documentation clients expectations do not match their legal position 10.Reflective debrief  Talk through a range of possible and Prep realistic options. Identify – interests / position  Identify for the client other useful sources of information. Complete - Negotiation planner Interest based approach. Requires a focus Prepare – agenda – issue you work on the mutual needs and interests of the through, What would be priority for parties to win. Win outcome. client Constructive approach. Achieves an Consider -trade offs outcome where:  Parties walk away with an agreement they Prepare – risk analysis feel like. They can live with. Research – Objective criteria  Parties feel that the process was fair, and their voice was heard. Create – possible solutions  Parties feel prepared to negotiate again in Consider – Tactics the future of if necessary. Allocate – Team responsibility’s  The parties relationship survives the negotiation. Obtain – Written authority Achieving a constructive approach to Briefs to Council. -A brief to Council usually negotiation. summarises a legal matter and contains information and the material relevant to it. 1. Prepare for the negotiation. When an expert opinion relating to the probable 2. Open the negotiations with the problem- outcome of a legal dispute is required, or when solving focus. a legal matter goes to court, it is usual for the solicitor who has been dealing with the matter 3. Build trust relationships in the process to up to that point to brief a barrister by preparing identify key information. a document called a Brief to Council. 4. Gather information. Writing well. 5. Set agenda.  Use plain English. 6. Explore each party's interests.  Pay attention to grammar. 7. Generate options.  Plan the document. 8. Solve problems and bargain.  Scope and purpose. 9. State the outcome and document it.  Target audience. 10. Engage in reflective debriefing.  Consequences that follow. Advocate.  Precedent And sure. That they throat Lee, understand the  Use headings. relevant facts of the dispute and the applicable substantive law. Most also thoroughly Oral Communication. understand the procedural rules of a particular  Empathy. court in which they are appearing in and relevant rules of evidence.  Active listening. Skills.  Active body language.  Research.  Clarifying questions.  Legal reasoning in  Time out  Analysis Skills.  Inquiries.  Ability to find, evaluate, select, and use  Verbal followers. information.  Empathy.  The capacity to identify, define and analyse  Summarising. legal issues  Questioning and summarising.  the ability to argue persuasively, Benefits.  skills to manage ethical dilemmas as they arise and  Opportunity to develop teamwork, leadership, decision making, time  reflective practical skills. management, planning priority, goal setting, Legal Writing. negotiation, conflict management and communication skills. Legal drafting. Is a specific type ( sub category) of legal writing.  Promotes a deep approach to learning rather than a surface approach. File notes. Notes you take with client record with a client in person or telephone.  Promotes active learning rather than passive learning. Memorandum of advice- Internal document setting out your legal reasoning in relation to a  Promotes educational autonomy by particular legal issue or problem. encouraging you to have a say in how a task is to be approached and completed. Letters and emails  Opportunity to develop academic and social Contracts relationships and networks. Witness statements  Prepare for legal practise. Affidavits And statutory declarations - Are Understanding Justice sworn (Or affirmed) statements of evidence. Individual vs Community  Relationships between law and justice may under conditions of fair equality of not be necessary, it is at least desirable opportunity.  Legal rules and legal decisions should be  When is distribution fair? just - Egalitarianism  If justice is the ‘first virtue of social  Resources should be distributed equally institutions’ (Rawls), it then provides a within the group or community standard against which particular laws (and the legal system as a whole) ca nbe - Desert Theory measured... but what is it?  Resources should be distributed according Defining Justice to what each member of the group deserves 1. Divine Command - Utilitarianism  This theory posits that actions are right or  Resources should be distributed so as to wrong based on whether they are maximise the total or average happiness or commanded or forbidden by God. It relies on welfare across al members of the group or the belief in a rational and willful deity that community provides ethical guidance through divine 2. Procedural Justice commands  Right to a fair trial 2. Natural law  Safeguards  A philosophical and legal theory asserting that certain moral principles and rights are - Detainment upon reasonable suspicion of inherent in nature and can be understood offence universally through reason, independent of - Defendant informed of changes human-made laws - Opportunity to test evidence of prosecution 3. Positive law - Right to silence  Human-made laws that are enacted by proper authority to govern society, - Juries distinguishable from natural law by being - Burden of proof and standards of proof based on human decisions rather than inherent moral principles 3. Retributive Justice 4. Mutual Agreement  Is the proper response by the state to a wrongful act. These are the possible  A consensus reached between two or more approaches: parties without coercion, following a formal decision-making process. It is often used in - Desert theory legal contracts to ensure that all parties - Utilitarianism agree to the terms  Contrast retributive justice with restorative 5. Consequentialism justice  A moral philosophy that judges actions as - Where retributive justice is concerned with right or wrong based solely on their how best to punish a person who has consequences. It emphasizes that the engaged in wrongdoing, morality of an action is determined by its outcome - Restorative is concerned with storing or healing the victim and reintegrating the Types of Justice offender into the community 1. Distributive Justice  ‘Proper’ response by the state to a wrongful  Fair and proper distribution within a group of act things such as wealth, resources and power - When is punishment justified?  Rawls – ‘Veil of ignorance’ (liberties and - What type of punishment is appropriate? social/ economic goods Accessing Justice - Each person should be basically free to do as they choose without infringing upon the Contributors basic freedoms of others Inability to access justice - To benefit of the least advantaged and 1. Ignorance of the law attached to offices and positions open to all - Factors contributing to public difficulty in  Is a movement to clarify legal writing and to accessing and understanding information remove blocks to understanding legal about law: information, advice and documents. - Obscurity: complexity – ‘language = power’  The movement seeks to address many of the traditional problems associated with - Instability: change – ‘keeping up’ legal writing. - Quantity: explosive growth – ‘over  Lawyers and parliamentary draftspersons regulation’ are encouraged to use language that is - Portrayal in Media: distorted and inaccurate clear, direct and simple, so that lay readers – ‘misunderstood’ are able to understand the document quickly and easily. 2. Cost of legal service Interpreters and translation services - Exorbitant fees  Often available in urban centres to assist - The cost of legal services is a deterrent to those who cannot speak or read English to those without the means to pay for them. understand legal documents and interact - An inability to pay for access to justice has with lawyers and court personnel. significant consequences Community Legal Centres - In civil matter, high legal costs have the  Non-profit that provides discounted or free potential to lead to an inability to prosecute legal services to members of the public. or defend a civil claim or to protect some right.  The emphasis is usually upon assisting disadvantaged people and people with - In criminal matters, it may mean an inability special needs, such as Aboriginal and Torres to pay for adequate defence to criminal Strait Islander people, children and young charges and thus to the punishment of people, women, older people, refugees, possibly innocent people. prisoners and homeless people. 3. Disadvantage/discrimination Legal Aid - Equality before the law?  Administered by State and Territory legal - Women. aid commissions - Indigenous Australians; and  Government sponsored system for the - Persons from non-English speaking provision of legal services and legal backgrounds representation to those who cannot afford to pay for them Promoting Justice  Demand is high and availability of funding is 1. Advertising limited. Legal aid commissions use strict - Once regarded as unethical. 1980s it was criteria when deciding whether an applicant recognised that advertising could have is eligible for assistance. benefits not only for the profession, but also Pro-bono in providing information for the consumers of legal services. Eventually all solicitors  Without payment or reduced rate, advises or were permitted to advertise, subject to represents a client in cases where the client various statutory consumer protection has no other access to the courts a=or the provisions. client’s case raises a wider issue of public interest. 2. Interpreters & Translators  The lawyer is involved in free community 3. Community Legal Centres legal education or law reform, or in the 4. Legal Aid giving of free legal advice or representation to charitable and community organizations. 5. Pro bono service  Pro-bono legal work seemed as a 6. Conditional costs fundamental element of working as a legal 7. Litigation Lending professional. 8. Self-representation Conditional costs agreements 9. Alternative dispute resolution  Is a cost agreement between a lawyer and a client that states that payment of the Plain English movement  lawyers’ fees is conditional upon the clients Like meditation, any agreement reached is not matter being resolved successfully, legally binding.  No win, No fee agreement Arbitration – like going to court. The parties appear before an independent third person  Only in relation to called an arbitrator who considers the merits of - Personal injuries each case and then makes a decision that is binding on both parties. Often used in industrial - Workers’ compensation litigation relations and building disputes. Law exist in all  The law firm assesses the likely success of states and territories to regulate commercial the legal action before agreeing to a arbitration. conditional cost’s agreement. Being Ethical Litigation lending Lawyers are constantly confronted by ethical  Companies fund more risky cases and questions in day- typically operate on the basis that they are to-day practice paid an agreed proportion (usually between Some of the reasons why ethical dilemmas arise one third and two thirds) of any award of are: damages or settlement monies in return for  Lawyers’ duties (and the values they taking on the risk of ligations. reflect) sometimes conflict  Most often the rules governing the  cost litigation lenders fund only commercial conduct of lawyers provide a clear litigation answer as to which duty is to prevail, but Self-representation at other times they do not  Sometimes the relevant rules are stated  the inability to afford a lawyer, together with in very general terms and an inability to qualify for legal aid lawyers are permitted a great deal of  The proliferation of administrative tribunals discretion where no legal representation is permitted, and 1. Your client admits to you that he killed the victim but wants to plead ‘not guilty’?  The introduction of user-friendly forms and - You can choose but must plead guilty ‘do-it-yourself’ information in some courts 2. In the middle of a trial, you learn of an  Most cases at a disadvantage important recent High Court decision which  Lack procedural and legal knowledge that undermines may be required, especially when opposing your client’s legal position but the opposing an experienced barrister. lawyer is obviously unaware of it? - You can pretend you don’t know but ADR (Alternative Dispute Resolution) you shouldn’t  Refers to a range of techniques that seek to 3. Your client, in breach of a child custody and resolve disputes without the need to resort access order, disappears with the child and to litigation, including: only you know where they are? Negotiation- the parties or their legal - Must disclose for child’s well being representatives engage directly to find some 4. You represent a defendant in a criminal form of mutually acceptable solution to their matter dispute. Negotiation normally requires that concerning driving under the influence of some compromises be made by both parties. alcohol. The Crown Prosecutor tells the court that your client has no prior convictions, but Mediation- independent third party to help them you arrive at an agreement acceptable to all parties. know that he has two prior convictions for Such agreements are not legally binding. Role is the not to impose a solution but to help the parties same offence? explore possible options available to them. - You don’t have to disclose because you’re Normally family or neighbourhood disputes not setting a precedence and won’t harm anyone Conciliation – the parties meet before a neutral third person called a conciliator. Unlike a A consequentialist approach to ethics focuses mediator this person is normally skilled in the not upon compliance with ethical rules but upon specific area of the dispute. There are also more the consequences of actions and choices active than a mediator inn that they can express an opinion about the relative positions The most frequently referred to and widely of the parties and suggest possible solutions. accepted version of consequentialism is utilitarianism: the ‘right’ thing to do is the The terms ‘ethics’ and ‘morals’ are often used option that maximizes the public good, i.e. that interchangeably, however, there is a difference results in the most amount of pleasure and the between them least amount of pain for all concerned.  Morals – the rules or principles for Virtue ethics places emphasis upon character distinguishing between right and rather than compliance with rules or the wrong consequences of actions.  Ethics – the philosophy of morality i.e. the study of morals An ethic of care is concerned primarily with the responsibility to maintain relationships and Ethics is the branch of philosophy that seeks to communities and to respond caringly to others answer questions about: in particular situations. Anthropocentrism literally means ‘human-  the fundamental nature of moral values centeredness’. It refers to those ethical theories (meta-ethics) or frameworks that grant moral status only to  how moral values should be determined human beings. Non-human entities, including (normative ethics) animals, do not qualify for moral consideration.  the content of particular moral values (descriptive ethics) Defining Ethics Defining Professionalism  how moral values can be applied in particular situations (applied ethics) Ethics  how a person can be or become a ‘moral Ethics is the study of the principles that guide person’ (moral psychology) people in choosing Greek Ethics – Aristotle etc between what is right and what is wrong, in Religious Ethics deciding upon the best course of action and in judging the actions of Modern Ethics themselves and others Modern ethics is characterized by the debate  The term ‘ethics’ is also used to refer to between those who insist that an ethical choice the principles themselves, and an is one that is consistent with ethical values that ‘ethical’ choice is one that is consistent are objective and universal (the deontologists) with these principles and those who insist that an ethical choice is  There are many sources of ethical one that has the best possible consequences principles, including religion, spirituality, (the consequentialists) philosophy, tradition and custom, and The are also other positions, such as virtue professional practice rules ethics and the ethics of care  It is ethical principles to which you refer A deontological approach to ethics is one that when you critically evaluate your insists that an ethical act is one that is lifestyle and decide whether you are consistent with ethical rules – a deontologist living a ‘good’ life considers the act itself rather than the consequences of the act or the intentions of the Professionalism actor Professionalism is the skill, good judgment, and exemplary behaviour One deontological approach is divine that is expected of a professional command theory: a person does the right thing when they comply with ethical rules based In the context of law, professionalism requires: upon the word of God A secular (rather than  Dedication to serving clients before self religious) deontological theory is that of Swiss philosopher Immanuel Kant, and his notions of  Dedication to serving the public interest, the categorical imperative and the practical improving the law, and improving the imperative profession A consequentialist approach to ethics focuses  Devotion to honesty, integrity, and good not upon compliance with character ethical rules but upon the consequences of  Practice in context (understanding the ‘big actions and choices picture’)  Maintenance of competence in a specialised The most frequently referred to and widely body of knowledge and skills accepted version of consequentialism is  Independence and self-regulation utilitarianism – the ‘right’ thing to do is the option that maximises the public good i.e. that Ethics and Morals results in the most amount of pleasure and the least amount of pain for all concerned - they’re already dead so you don’t have to say anything and there is no further conspiracy and saying something may affect Virtue ethics places emphasis upon moral your safety. Use your own judgement, is it character rather than compliance possible that he would do more of that? with rules or the consequences of actions (confidentiality agreement, you don’t have  If a person focuses upon developing a to disclose, public interest is more people virtuous character, they will know what to going to get killed?) but if you want to do when confronted by an ethical dilemma disclose to the authority is how you justify  Debate as to which ‘virtues’ one should your action. develop An ethic of care is concerned primarily with the responsibility to maintain According to the relevant rules of ethics, you relationships and communities and to respond should not disclose the caringly to others in information. However, would you feel a sense of situations moral responsibility  Feminist ethics is an example of an ethic of to do so? Are we ‘Sworn to Silence’? care As this previous example illustrates, the debate Extending Moral Status about the meaning of ethics is more than a matter of What is it? semantics Whether we need to extend to the animals?? There are several important questions that arise: To the nature and trees and forest? Do we focus too much on humans?  Can (and should) lawyers draw a distinction between acting ‘morally’ and acting Law and Ethics ‘ethically’? something that you think in your Laws and ethics are both rules of conduct – both heart and where the rules say something regulate human behavior and guide human else. choices  To what extent, if at all, should lawyers let their personal moral standards influence  Laws are rules of conduct made by the their professional activities? The duty to ur state and enforced by client come before your ethics. But if there prosecution or litigation is a clash, how are you going to address  Ethics are rules of conduct that either exist that. objectively or are  What kind of lawyers do you want to be: a constructed by humans and that are moral lawyer, an ethical lawyer, or both? enforced by the judgement of God, Look after your safety. the universe, the community or one’s peers  Under what circumstances is ‘a lawyer with Legal rules and ethical rules usually coincide, a conscience’ justified in refusing to act for a however, there are client whom he or she judges to be morally times when legal rules and ethical rules are in unworthy? conflict Lawyers Duty to the Law Professional Ethics A duty to the ‘administration of justice’ (comes Assume that several young women in the local before the duty to the client) area have gone missing, their fate unknown. Your client admits  Predominantly fulfilled by discharging one’s to you that he has duty to the court, clients murdered the women in question and has told and colleagues you where the bodies  Applications of this duty in the context of are. criminal Can you tell the authorities where the bodies prosecution, criminal defence and family law are so that the families of the victims at least know what happened to them? Includes duty to obey and uphold law  Arguably includes duty to promote access to  A solicitor is required to exercise justice and undertake pro ‘reasonable care and skill’ in carrying out his bono service or her obligations under the retainer Lawyers Duty to the Court Breach of the retainer can lead to civil action by A legal practitioner is regarded as an ‘officer of the client the court’ – (the duty to the court overrides all other duties)  General rules relating to the validity, A lawyer must, for example: interpretation and enforcement of  act with due courtesy to the court contractual provisions apply in the context  not knowingly mislead or deceive the court of a retainer agreement  advise the court of all relevant law TORTS  ensure proper and responsible use of court There is also a duty in tort (negligence). If for process and privilege example, a solicitor negligently advises how a  use best endeavors to avoid unnecessary will is to be witnessed and causes the gift to fail, expense and time he or she will be liable for the loss Lawyers’ duty to colleagues  In general terms, the question is whether the lawyer has departed not merely from an The duties owed to other practitioners are accepted practice in the profession but from divided into: standards of competence which the  Communications (including those made for profession would accept as appropriate to the matter in question the purpose of negotiation)  NB: Barrister immunity (discussed later)  Undertakings  Taking over matters from another practitioner EQUITY  Communication with another practitioner’s Special nature of relationship is recognized by client the law of equity – the relationship is considered to be a ‘fiduciary relationship’ Examples include:  A fiduciary is obliged to give undivided  Must not knowingly false statements – loyalty to the client, to avoid a conflict of Communications made ‘without interest, to account for any benefit or gain prejudice’ – Must not communicate directly obtained by the fiduciary, and to protect the confidentiality of information with other lawyer’s client confided by the client Lawyers Duty to client  Lawyers often receive money from clients (such as payment of anticipated costs and  the duty of representation disbursements) or on behalf of clients (such  the duty to inform and advise as settlement monies from the sale of a  the duty to act on instructions property). These funds are held on ‘trust’ for  the duty to consider settlement their clients (a species of equity) and the lawyers have resulting obligations  the duty to continue to act  the duty of competence and diligence  the duty of loyalty Lawyers Duties  the duty of confidence Legislation The relationship between a lawyer and his or  Substantial uniformity now exists across the her client is States and Territories governed by:  Model Provisions for the Legal Profession  the general law (particularly the law of (2004) contract, torts, and equity)  The Model Provisions (commonly referred to  legislation (some dealing specifically with the legal profession) as the Model Bill) do not  professional practice rules require conformity in every respect Most States and Territories have all passed legislation to adopt the Model Bill CONTRACT The relevant legislation in Queensland is the The relationship between a solicitor and client is Legal Profession Act 2007 (Qld) contractual. The contract of service is referred to as a ‘retainer’ Profession Practice Rules  The professional bodies in each state (that good work, and it would be a better is, the Law Societies and Bar organisation to leave a legacy to. Associations) have established rules of NO conduct for their members. A client goes to a lawyer in a state of distress.  The rules provide guidance to lawyers on a Her estranged partner came to the house and range of ethical issues, but broke a window last night, and she wants to take out an apprehended violence order (AVO) they do not provide an exhaustive code of against him. She says that she is incredibly conduct for practitioners scared and is having difficultysleeping. The lawyer tells the client she can stay overnight.  Applicable in Queensland Solicitors – Australian Solicitors NO Conduct Rules 2012 Administered by the Legal Services Commission  The Solicitors’ Rules in each jurisdiction generally consist of 5 majors categories: o Rules governing relations with clients o Advocacy and litigation rules o Relations with other lawyers o Relations with third parties o Miscellaneous rules relevant to legal practice  A solicitor’s duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty: Rule 3.1 Ethical Dilemma  Subject to this paramount duty, a solicitor Conflict between your professional and personal must act in the best interests of their client; ethics? be honest and courteous in all dealings in the course of legal practice; deliver legal The traditional view is that the lawyer’s duty to services competently, diligently and as the client overrides all promptly as reasonably possible; avoid any other duties and considerations: compromise to their integrity and professional independence; and comply with  ‘An advocate, by the sacred duty which he the Rules and the law: Rule 4.1 owes his client, knows in the discharge of  Each State and Territory also has that office but one person in the world, that professional rules dedicated to barristers client and no other. To save that client by all expedient means, to protect that client at all Substantial uniformity has been achieved hazards and costs, to all others, and among across jurisdictions others to himself, is the highest and most ⎼ In 1993, the Australian Bar Association unquestioned of his duties; and he must not published a Code of Conduct as a regard the alarm, the suffering, the torment, framework for national uniformity – revised in the destruction which he will bring upon any 2010 other’ (Lord Brougham) Applicable in Queensland: ⎼ Barristers – 2011 Barristers’ Rule Justifications for the traditional view: ⎼ Administered by the Bar Association of  Essential for successful operation of the Queensland adversarial system of trial It is more likely to lead to access to the law for all Know your Boundaries A client wants to do their will and approaches a Criticisms of the traditional view: lawyer to draw it up. The client says they want  Likely to lead to development of undesirable to leave all their assets to the Salvation Army, personality traits and the lawyer says that the Guide Dogs do  The adversarial system is far from perfect, someone to lie to the court, forged a and it is not certain that it is document or suppressed material evidence, the best way to achieve the fairest result the solicitor must seek authority from the client to disclose this to the court and may Alternative view: otherwise refuse to continue to act (Rule 20)  Responsible lawyering emphasises the  A solicitor must not claim privilege unless it lawyer’s role as an officer of the is reasonably justified, or allege a fact court and a trustee of the legal system. This is an approach to without a proper basis (Rule 21) professional ethics that places more  A solicitor must not lead questions which emphasis upon the lawyer’s intend to mislead, confuse, harass or responsibility to facilitate the public humiliate a witness (Rule 21.8) administration of justice  A solicitor must not lie to an opponent or  The ‘traditional’ approach and ‘responsible contact the opponent directly except in lawyering’ approach certain circumstances (Rule 22) are the approaches most likely to be  A solicitor must not coach a witness on encountered in public what they should say or that they should statements about lawyers’ ethics give false or misleading evidence (Rule 24),  or confer with more than one lay witness at Other views: a time (Rule 25)  A moral activist approach to professional  A solicitor must not make public comments ethics emphasizes the lawyer’s role as an on current proceedings (Rule 28) agent for justice through law reform, public  Prosecutors must act impartially, put the interest lawyering and client counselling – evidence before the court and not seek to contrary to the traditional view, moral bias the court against the accused (Rule 29) activists see’s themselves as morally responsible for their actions as lawyers Barristers share many of the same duties as solicitors with respect to  An ethic of care approach (discussed advocacy earlier) is like moral activism in that it does not oblige a lawyer to separate their Barristers adhere to the ‘cab rank rule’ (unique personal values from their professional to barristers) ** Access to justice responsibilities, and in fact insists that a lawyer remains morally responsible for their This is a duty to accept whatever brief comes to actions as a lawyer even when carrying out them, provided that: their client’s instructions.  the brief is within their capacity, skill and experience  they are available to do the work  Where moral activism emphasizes a  the fee is acceptable lawyer’s responsibility to achieve social and  there is no relevant conflict of interest political justice, the ethic of care is more concerned with personal and relational The rule is justified on the basis that it promotes ethics. Instead of focusing upon individual access to justice rights and entitlements, a lawyer should focus on relationships and social obligations Discipline of Lawyers Advocacy and Ethics The Legal Services Commission (LSC) is the sole The ASCRs include a significant number of rules body empowered under the Legal that relate specifically to advocacy Profession Act 2007 (Qld) to initiate and and litigation, including: prosecute disciplinary proceedings against lawyers and law practice employees – the LSC  A solicitor is not merely a mouthpiece for makes decisions to initiate a discipline the client and can exercise judgment as to application subject to the Discipline Application presenting the client’s case quickly and Guidelines: https://www.lsc.qld.gov.au/discipline/discipline- simply, and informing the court of any application-guidelines persuasive authority against the client’s case (Rule 17) Tribunal is more serious matters  A solicitor must avoid informality with the  The Act authorises the LSC to make court (Rule 18), and must speak frankly and discipline applications in either of two without knowingly or recklessly misleading disciplinary bodies – the Queensland Civil the court (Rule 19) and Administrative Tribunal in relation to  If, between hearing and judgment, a serious matters and the Legal Practice solicitor learns that their client lied or Committee in relation to less serious procured  matters  The judge is helped by a barrister or solicitor member (as the case may be) of a  The Act requires the LSC to publish a practitioner panel comprising barristers and register (the Discipline Register) of solicitors who have held a practicing disciplinary action taken under the Act (that certificate for at least five years and a is, every order of a disciplinary body or court member of a lay panel comprising non- lawyers who have ‘high level experience and finding a lawyer guilty of professional knowledge of consumer protection, misconduct business, public administration or another relevant area’ Most disciplinary matters against legal  The members of the lay and practitioner practitioners involve allegations of panels are appointed by the Governor in professional misconduct Council The legal Professions Act 2007 defines Public hearings (unless otherwise directed by professional misconduct to include: the QCAT) (a) unsatisfactory professional conduct involving a substantial or consistent failure to reach or keep a reasonable standard of Example QCAT orders: competence and diligence; and  removed from the roll (i.e. ‘struck off’) (b) conduct, whether happening in connection  suspended from practice or allowed to with the practice of law or otherwise, practice only subject to certain conditions that justifies a finding that the practitioner is  financial penalty of up to $100,000 not a fit and proper person to engage in  public (or in special circumstances, private) legal practice reprimand  completion of a course of further legal education or ‘do or refrain from doing Legal Services Commission LSC something in connection with engaging in Public hearings (unless otherwise directed by legal practice’ the LSC) Costs (unless ‘exceptional circumstances’) Appeals to the Court of Appeal Example LSC orders: Barristers’ immunity  public (or in special circumstances, private) Reasons for upholding barrister immunity: reprimand  Allowing advocates to be sued would  financial penalty of up to $10,000 remove any sense of finality  do or refrain from doing something in about a judgment, because every case could connection with their legal practice, be potentially be further managed in a stated way for a stated appealed on the basis that a party was period, or be subject to inspection by unhappy with their counsel’s someone performance nominated by his or her professional body  The fear of being sued would affect the way Costs (unless ‘exceptional circumstances’) counsel conduct a case, Appeals to the QCAT with the possibility that counsel would take QCAT many potentially unnecessary steps to protect themselves  The Legal Profession Act 2007 (Qld) defines that would add cost and time ‘Professional Misconduct’ to to every case include: (a) unsatisfactory professional conduct  Clients could make vexatious claims against involving a substantial or consistent failure counsel to reach or keep a reasonable standard of competence and diligence; and Reasons for abolishing barrister immunity: (b) conduct, whether happening in  There are other remedies already available connection with the practice of law or for breaches of counsel’s otherwise, that justifies a finding that the duties of care (for example, courts can practitioner is not a fit and proper person to engage in legal practice award damages against counsel for unnecessary delays in the conduct of trials) The QCAT is constituted for purposes of hearing  No other country retains such an immunity discipline applications by a Supreme Court judge  No other profession enjoys such immunity 3. Long- Term Consequences and maintaining a special 1. Nation Library of medicine - Surgical immunity for counsel, while expanding the castration reportedly produces definitive scope of liability of every results, even in repeat cases, by reducing other profession, breeds contempt for our sex crime rates to 2% to 5% compared with legal system expected rates of 50%. A study of sex  Basis of immunity is out of date offenders found that those taking the  The argument that a barrister’s loyalty to testosterone-suppressing medication for an the court and to their client average of 6 years had 28% less rate of would become problematic is unrealistic as committing crime compared with 52% for it is hard to see how a those not taking the drugs. The castration or person could succeed in proving negligence sterilization of paedophiles is protecting the where a barrister was