Part I Foundations, Ch.2 Settlement

2018 ◽  
Author(s):  
Waugh John
Keyword(s):  
Indigenous Peoples ◽  
Common Law ◽  
Legal Framework ◽  
Land Ownership ◽  
High Court ◽  
Native Title ◽  
The Status ◽  
The Common ◽  
The Law ◽  
Indigenous Land

This chapter explores the law of Australian colonization and its relationship with the laws of Australia's Indigenous peoples. A line of legal continuity links the Australian Constitution to the imposition of British law made during the colonization of Australia and to the decisions of colonial courts that treated the Australian colonies as colonies of settlement. Those decisions, after some initial doubts, displaced the diverse and intricate laws of Australia’s Indigenous peoples, who have occupied the continent for tens of thousands of years. Only in relation to native title to land have later courts made a major reassessment of the status of Indigenous laws. There, the High Court has challenged the factual assumptions of earlier decisions and found accommodation for Indigenous land ownership within the common law, but left the legal framework of colonization otherwise intact.

Priests of the Law

2019 ◽  
Author(s):  
Thomas J. McSweeney
Keyword(s):  
Common Law ◽  
Roman Law ◽  
Full Time ◽  
Legal Professionals ◽  
The Status ◽  
Royal Courts ◽  
History Of ◽  
The Common ◽  
The Law ◽  
New Interpretation

Priests of the Law tells the story of the first people in the history of the common law to think of themselves as legal professionals: the group of justices who wrote the celebrated treatise known as Bracton. It offers a new interpretation of Bracton and its authors. Bracton was not so much an attempt to explain or reform the early common law as it was an attempt to establish the status and authority of the king’s justices. The justices who wrote it were some of the first people to work full-time in England’s royal courts, at a time when they had no obvious model for the legal professional. They found one in an unexpected place: the Roman-law tradition that was sweeping across Europe in the thirteenth century. They modeled themselves on the jurists of Roman law who were teaching in Italy and France. In Bracton and other texts they produced, the justices of the royal courts worked hard to establish that the nascent common-law tradition was just one constituent part of the Roman-law tradition. Through their writing, this small group of people, working in the courts of an island realm, imagined themselves to be part of a broader European legal culture. They made the case that they were not merely servants of the king. They were priests of the law.

Contempt: In the Common Law, but not the Civil Law

1997 ◽  
Vol 46 (3) ◽  
pp. 521-560
Author(s):  
Michael Chesterman
Keyword(s):  
Common Law ◽  
Civil Law ◽  
High Court ◽  
The Road ◽  
Administration Of Justice ◽  
Canadian Broadcasting Corporation ◽  
The Common ◽  
The Law ◽  
Court Orders

To allow Court orders to be disobeyed would be to tread the road towards anarchy. If the orders of the Court can be treated with disrespect, the whole administration of justice is brought into scorn. Daily, thousands of Canadians resort to our Courts for relief against the wrongful acts of others. If the remedies that Courts grant to correct those wrongs can be ignored, then there will be nothing left but for each person to take the law into his own hands. Loss of respect for the Courts will quickly result in the destruction of our society. [O'Leary J, in Canada Metal Co. Ltd v. Canadian Broadcasting Corporation (1975) 48 DLR 3d 641, 669 (High Court of Ontario)]

The erosion of the implied term of mutual trust and confidence in Australian employment law

2016 ◽  
Vol 45 (4) ◽  
pp. 275-297
Author(s):  
Vanitha Sundra-Karean
Keyword(s):  
Common Law ◽  
Legal Framework ◽  
Mutual Trust ◽  
Policy Reforms ◽  
Political Climate ◽  
Employment Contracts ◽  
High Court ◽  
The Common ◽  
Interpretive Method ◽  
Employment Rights

Although the implied duty of mutual trust and confidence has long been established as an implied term in employment contracts under English common law, the Australian High Court has recently ruled that it is not part of the common law regulating employment contracts in Australia because the implication of such a term was better regulated under statute. While it is acknowledged that legislation is most effective in regulating substantive employment rights and obligations, a political climate which lends itself to ideologically divergent policy reforms often robs the discipline of its stability. However, if there exists a legal framework apart from legislation, which coheres with it and has the ability to initiate juridical development in the law, as is the role of the common law, the result will be an enrichment of the discipline overall. This paper traces selected English and Australian judicial approaches towards the implication of the duty of mutual trust and confidence in the context of terminations of employment within a statutory regime, culminating with an analysis of the recent Australian High Court decision in Commonwealth Bank of Australia v Barker (Barker), which has diminished common law’s interpretive role in this regard. Consequently, this paper aims to revitalize common law reasoning by utilizing Dworkin’s judicial interpretive method as the necessary theoretical framework.

Reforming the Law of Unfitness to Plead in England and Wales

2018 ◽  
Author(s):  
Miranda Bevan ◽  
David Ormerod
Keyword(s):  
Common Law ◽  
Legal Framework ◽  
Criminal Trial ◽  
Law Reform ◽  
Criminal Trials ◽  
Significant Development ◽  
England And Wales ◽  
The Common ◽  
The Law ◽  
Draft Bill

This chapter reviews the legal framework in England and Wales for dealing with defendants in criminal trials who are ‘unfit to plead’, and considers efforts to reform the legal test and procedures. The chapter offers a critique of the present law governing fitness to plead and its failure to reflect modern-day trial processes and psychiatric understanding. It examines law reform proposals made over recent decades and how these have failed to produce significant development in the common law. It focuses in particular on the Law Commission’s recent report and draft Bill in 2016. That report seeks to provide a fair and effective process for those who are unable to participate effectively in their criminal trial and to ensure that defendants’ rights are respected.

13. Occupiers’ liability

2019 ◽  
pp. 154-166
Author(s):  
Carol Brennan
Keyword(s):  
Common Law ◽  
Main Criterion ◽  
The Status ◽  
The Common ◽  
The Law

This chapter discusses the law on occupiers’ liability, a form of negligence liability which was governed previously by the common law and now by statute law. The key statutes are the Occupiers’ Liability Act 1957 which governs duty to lawful visitors and the Occupiers’ Liability Act 1984, regarding non-visitors, or trespassers. In determining to whom the duty is owed, it is necessary to identify the status of the entrant onto land. To determine who owes the duty as occupier, the main criterion is control of the land. Exclusion of liability and defences are included.

13. Occupiers’ liability

2017 ◽  
Author(s):  
Carol Brennan
Keyword(s):  
Common Law ◽  
Main Criterion ◽  
The Status ◽  
The Common ◽  
The Law

This chapter discusses the law on occupiers’ liability, a form of negligence liability which was governed previously by the common law and now by statute law. The key statutes are the Occupiers’ Liability Act 1957 which governs duty to lawful visitors and the Occupiers’ Liability Act 1984, regarding non-visitors, or trespassers. In determining to whom the duty is owed, it is necessary to identify the status of the entrant onto land. To determine who owes the duty as occupier, the main criterion is control of the land. Exclusion of liability and defences are included.

13. Occupiers’ liability

2021 ◽  
pp. 157-168
Author(s):  
Carol Brennan
Keyword(s):  
Common Law ◽  
Main Criterion ◽  
The Status ◽  
The Common ◽  
The Law

This chapter discusses the law on occupiers’ liability, a form of negligence liability which was governed previously by the common law and now by statute law. The key statutes are the Occupiers’ Liability Act 1957 which governs duty to lawful visitors and the Occupiers’ Liability Act 1984, regarding non-visitors, or trespassers. In determining to whom the duty is owed, it is necessary to identify the status of the entrant onto land. To determine who owes the duty as occupier, the main criterion is control of the land. Exclusion of liability and defences are included.

Communal Native Title and the Common Law: Further Thoughts on the Gove Land Rights Case

1974 ◽  
Vol 6 (1) ◽  
pp. 150-173
Author(s):  
L. J. Priestley
Keyword(s):  
18Th Century ◽  
Common Law ◽  
Land Rights ◽  
Limited Extent ◽  
Native Title ◽  
The Common ◽  
The Law

Mr Priestley disagrees with the view expressed by Dr Hookey in his article “The Gove Land Rights Case”, that to a limited extent the common law recognized native communal title to land. Instead he suggests that the decision in Johnson v. M'Intosh which Dr Hookey regards as an exposition of this common law position, was an exposition of the law of Virginia as it had developed to the end of the 18th century. As such it may give guidance in the development of Australian law but similar conclusions should be drawn only in circumstances of sufficiently similar commencement and development. Mr Priestley concludes that in Milirrpum v. Nabalco Pty Ltd there was not evidence of such similarity before the court.

Seeking Redress in the Courts: Indigenous Land Rights and Judicial Decisions in Malaysia

2010 ◽  
Vol 45 (4) ◽  
pp. 825-875 ◽  
Author(s):  
S. ROBERT AIKEN ◽  
COLIN H. LEIGH
Keyword(s):  
Common Law ◽  
Land Rights ◽  
Federal Court ◽  
State Governments ◽  
High Court ◽  
Native Title ◽  
Development Policies ◽  
Indigenous Land Rights ◽  
Number Of Individuals ◽  
Indigenous Land

AbstractMalaysia's indigenous peoples continue to suffer numerous grievous injustices, including appropriation of their ancestral lands and socio-economic deprivation. In large part because their voices of resistance to development policies have gone unheard by the authorities, a growing number of individuals and communities have taken their grievances to the nation's courts. In particular, they have pleaded for judicial intervention to address alleged breaches of statutory land and other rights by governments and their contractors, and for recognition of native title at common law. In the landmark 1996Adongcase, the High Court ruled that Malaysian jurisprudence recognizes native title, thus bringing Malaysia into line with a number of other countries that share an English-derived legal system. The concept has been upheld in subsequent High Court, Court of Appeal, and Federal Court judgments. In spite of the rulings in favour of indigenous parties, the federal government, along with certain of the state governments, has continued to adopt an adversarial approach to indigenous land issues. An encouraging development is the reported willingness of governments in Perak and Selangor to tackle indigenous land rights issues through mediation rather than litigation. This paper summarizes seven court cases concerning alleged breaches of statutory rights and four cases dealing with native title at common law; it also looks at certain issues arising from the cases, as well as the responses of communities and governments to the various court judgments.

Aboriginal I Claims to Seas in Australia

2002 ◽  
Vol 17 (1) ◽  
pp. 1-31
Author(s):  
Victor Prescott ◽  
Stephen Davis
Keyword(s):  
Western Australia ◽  
Common Law ◽  
High Court ◽  
Native Title ◽  
Sea Bed ◽  
The Common ◽  
High Court Of Australia

AbstractIn 1992 the famous judgment in the Mabo (No.2 case), in the High Court of Australia, determined that the common law of Australia recognised and protected native title claims in accordance with traditional laws and customs. Within six years nearly 800 claims had been lodged with the Native Title Tribunal and 70 per cent of them were in Queensland and Western Australia. Nearly one-third of those claims included areas of sea. Before 1992 scholars had demonstrated that clan estates included marine sections along tropical coasts. Only two claims to seas or sea-bed have been tested in the courts. This paper reviews five questions that will recur in future similar cases. They deal with the location of claims, their possible extent, the evidence that will justify them, the delimitation of successful claims and accommodations regarding the use of claimed seas between indigenous and other peoples.

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