About this subject
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This subject explores the use and limits of comparative law and practice in public law litigation. The potential of comparative law in judicial-decision making has attracted increasing attention as information about legal developments in other jurisdictions has become more readily available. It raises particular challenges in public law, which this subject will consider.
While the subject takes Australia as the home jurisdiction, the insights that it offers can be adapted to jurisdictions elsewhere. To encourage depth and contextual understanding, the subject is built around case studies drawn from three areas of law of contemporary significance: the movement of refugees, indigenous/state relations, and the environment. Each of these areas gives rise to litigation in Australia and can be expected to continue to do so. Each has also given rise to litigation elsewhere, which may have relevance in Australia despite differences in constitutional and legal frameworks.
Principal topics will include:
- Judicial engagement with comparative and international law
- Australian constitutional and legal framework.
- Case study 1: Movement of refugees
- Case study 2: Indigenous relations with the state
- Case study 3: Environment
- Potential and limits of comparative law in public law litigation.
Intended learning outcomes
A student who has successfully completed this subject should be able to:
- Explain the theoretical framework within which judges refer to external legal sources in Australia,
- Appraise and interpret the comparative techniques that may apply to such practices,
- Analyse the key aspects of the Australian legal and constitutional system that may affect the manner and extent of recourse to external legal sources,
- Recognise the potential for and the limitations of recourse to external legal sources in litigation on selected contemporary issues in Australia. This focusses primarily on the areas of the movement of refugees, Indigenous relations with the state, and the environment,
- Critically apply this knowledge to other areas of law and in relation to other jurisdictions in which courts refer to external legal sources.
- The ability to investigate, evaluate, synthesise and apply the knowledge in relation to other jurisdictions,
- Well-developed problem solving and analytical abilities in this field,
- An advanced competencies in legal research and analysis in matters involving comparative law in public law litigation,
- The capacity to effectively communicate complex legal ideas in this area,
- An appreciation of the design, conduct and reporting of original research in this field,
- An understanding of the significance and value of knowledge about the role of comparative law in litigation.
Last updated: 10 November 2023