Melbourne Law School - Theses
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ItemThe history of legal institutions in VictoriaWoinarski, Severin Howard Zichy ( 1942)It has become inveterate in English legal writings to fit all English colonies into a dichotomy – colonies acquired by conquest or cession, and colonies acquired by settlement or occupation. Important constitutional differences attach according to whether a particular colony falls within the one class or the other. To quote the words of Lord Watson in giving the advice of the Privy Council in Copper v Stuart:- “The extent to which English law is introduced into a British Colony and the manner of its introduction must necessarily vary according to circumstances. There is a great difference between the case of a Colony acquired by conquest or cessation. In which case there is an established system of law, and that of a Colony which consisted of a tract of territory practically unoccupied, without settled inhabitants or settled law at the time when it was peacefully annexed to the British dominions. The Colony of New South Wales belongs to the latter class.” The locus classicus dealing with the position of a colony of the former class, that acquired by conquest or cessation, is to be found in the judgment of Lord Mansfield in Campbell v Hall. Its essential feature lies in the fact that the laws there in force continue until they are altered or abrogated, and until that time British subjects are under their control. This feature is necessarily excluded by the circumstances in which a colony is acquired by settlement. In such a colony from the nature of things there can be no lex loci to which the settlers are amenable, no existing laws to contest the superiority, and no power in the settlers to establish laws independently of the mother country to which they still owe allegiance. In such a colony English law prevails as the birthright of the settlers, and the bond of allegiance between the colonial subjects and their sovereign. (From Introduction)
ItemAn analysis of the office of Attorney General in Australia and directions for the futureHANLON, FIONA ( 2007)It is often assumed that the office of Attorney General in Australia carries with it an obligation to act independently of political considerations that does not apply to other ministerial offices. This is the orthodox view. There is, however, another view, the heterodox view, of the office of Attorney General, according to which the ministerial office that bears the title ‘Attorney General’ cannot be distinguished from other ministerial offices in any significant respect. The question which this thesis considers is whether any reliable basis can be found for the orthodox view either in terms of the manner in which the office of Attorney General is constituted in the twenty-first century or at any time since its first establishment in Australia. The thesis identifies possible sources for the existence of an obligation to act independently and tests the accuracy of those sources against the historical and current operation of the office in Australia. Having carried out that analysis the thesis then examines options that could be considered for the future to assist the hopes and aims motivating the orthodox view of the office of Attorney General to be achieved. It is important to assess the legitimacy of the orthodox view because of the faith and trust that it places in the Attorney General in relation to the maintenance of the integrity or Australia's constitutional structures and the manner of the exercise or executive power. If it is unjustified then this belief and trust could result in the inappropriate allocation of important and largely un-reviewable responsibilities to the holder of the office. It may be time to let go of the title "Attorney General and adopt "Minister of Justice" instead. This will raise issues as to the ability of the Parliament to hold the executive to account, the independence of the judiciary both for the adjudication of matters before it and for its administration and how its expenditure of public funds can be authorised and scrutinised by the Parliament. Also raised will be the status and professional responsibilities of lawyers in government in the defence of the integrity of the legal and judicial system.