LAWS1052 - Introduction to Law and Justice
Table of Contents
WEEK 1 - Overview of the Australian Legal System............................................................2
Introduction to the Statutory Interpretation and the Courts in Action.............................................................4

WEEK 2 - The Modern Lawyer....................................................................................................8
WEEK 3 - Major Division of Anglo-Australian Law and Lawyers and Precedent.....9
Major Divisions of Anglo-Australian Law: The Rise of Equity and the Civil/Criminal Distinction............9
Scott v Shepard................................................................................................................................................................. 10
Classifying Australian Law............................................................................................................................................ 11
Precedent........................................................................................................................................................................... 12
Judicial Activism and the Death of the Rule of Law - Justice J D Heydon........................................................13
Judicial Activism? A riposte to the Counter-Reformation - Michael Kirby.....................................................13

WEEK 4 - The Rule of Law..........................................................................................................14
WEEK 5 - Precedent and Change in Cases and Legislation............................................15
Class Notes - Statutory Interpretation...................................................................................................................... 16
Impact of Settlement of Australia's Aboriginal People........................................................................................ 17
Malcolm Charles Smith - An Aboriginal Death and Life in Custody.................................................................18

WEEK 8 - Classifying Australian Law.....................................................................................19
Traditional classification.............................................................................................................................................. 19
Adversarial vs inquisitorial classification............................................................................................................... 19
Public vs private law distinction................................................................................................................................. 20
The distinction between law and equity.................................................................................................................. 20

WEEK 9 - Intentional Torts.......................................................................................................21
Battery................................................................................................................................................................................ 21
Assault................................................................................................................................................................................. 22
False Imprisonment - Intentionally depriving liberty......................................................................................... 23
Consent............................................................................................................................................................................... 26
Necessity............................................................................................................................................................................. 28

WEEK 11- NELIGANCE..................................................................................................................29

1 WEEK 1 - Overview of the Australian Legal System
Overview of the Australian Legal System (Vines Chpt 1)
o Basic principle of rule of law
 All people are subject to the law and can rely on the law
 Sets boundaries to how people and governments can operate
 Prevents arbitrary abuse of power

Developed from traditions of English common law
 Liability from maritime law
 Property and possession arguments
 Convicts allowed to sue
 Assumed that Australian law is English law transplanted

A snapshot of the current Australian legal tradition
 Complex web of relationships and methods of dispute resolution
 Characteristics that derive from English heritage:
 A system of representative democracy using parliaments to make laws

People have the opportunity to vote for representatives

Majority party in the lower house of parliament form the government

Based on ideas of individual liberty and limits of government power
 A legal profession divided either formally or informally into solicitors and barristers

Solicitors advise clients and manage affairs

Barristers advocate in court
 A common law system

Means law derived form English legal system

Unlike civil law which is derived from Roman law
 Inquisitorial
 Uses codes rather than judicial

The way law is made
 Judges make laws precedents based on decided cases
 Legal reason for coming to a decision is ratio decidendi

Branches of law
 Differences between laws
 Decision making in court after an adversarial trial

Historical 'trial by battle'
o Battle overtaken by Jury by HenryII after Ashford v Thornton
(1818)
 Court system for dispute resolution
 Distinctiveness of Australian Law - how it is unlike English common law:
 A federal system made up of a Commonwealth and States and Territories 2

A federal system is a way of separating the powers of different bodies of government
 Some (limited) recognition of Indigenous customary law

High court decided from the Mabo v Queensland (1992) case that terra nullius was untrue and Indigenous Australians can hold native title separate to common law

Punishments of crime for customary law

Customary law marriages are recognised
 The Art of reading cases

How to brief a case

1. Read it through without writing

2. Read it again

3. Write the citation

4. Facts of the case a. Merely sketched at this stage

5. Remedy sought a. What did the plaintiff/applicant/appellant want?

6. Prior proceedings a. What happened in the court below

7. Arguments of the parties a. To help establish what the legal issues are

8. Grounds of appeal

9. Issues a. What are the issues the court has to decide on

10. Outcome or decision a. Who won the case b. Was the appeal confirmed or denied

11. Legal reasoning a. Process of reasoning used by the judge to come to their decision b. Trace this through

12. Ratio decidendi a. Princi0ple of law or legal reasoning which was necessary for the court to make its decision

13. Obiter dicta a. Other things the judges said that were of interest but not necessary to the decision made

14. Notes a. The difference this case made to knowledge b. How the case is significant

How to Brief a Case (Video by Vines)
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Write down citation
Read case
Read case again
Think about facts

Relevant facts 3 

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o Material facts

Legally relevant
Remedy sought

What did the plaintiff want
 Damages
 Declaration
 Compensation
Prior proceedings

What happened in a court below

Why is there an appeal

What happened in the intitial trial
Arguments

Do the arguments amount to the ground of appeal
Issues

"The issue/question I have to decide is…"
o What the court has to decide

Central thing
Decision

Who won

What was the outcome
Ratio decidendi - principle of the case

The rule that the decision stands for

What does this judge think this case is the rule

This needs to answer the question of issue

Bases of doctrine of precedence
Obiter dicta

Other information

Doesn't relate directly to issue but is considered by the court
Notes

This case makes the difference of this…
o This case changed this law…
o This case changed nothing

What does this case mean for you

Class notes
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How to read a case

What is the dispute about?
o What is the context?
o Why do judges treat the case like this?

Introduction to the Statutory Interpretation and the Courts in Action 4 

Bills

Bills are the precursors of acts

Can be presented by government department, law reform commission or, private member

Steps:
 The bill is introduced and drafted
 Pass both houses of parliament
 Pass through house of origin

Notice of motion by the minister

Introduction and first reading of the bill
 Establish short title
 Become public document

Second reading of the bill
 Important for later interpretation of the act

Debate on the bill
 Questioning general principles

Committee stage
 The house sits as a committee and examines the bill clause by clause
 Amendments may be proposed and incorporated
 This stage is optional

Third reading
 More debate and final vote
 Pass through second house

First reading

Second reading

Committee of the whole

Third reading
 Given Royal Assent
 Unless Queen is in jurisdiction, Royal Assent is given by the governor or governor-general
 Once royal assent is given, the bill becomes an act
 Commencement
 A bill coming into force
 Usually happens 2 8days after royal assent is given

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Classification of Statutes

Public and Private
 Public acts operate for public at large
 To be a private act, the legislation must include provision establishing it as a private act
 Private acts traditionally intended benefit for the person who introduced it

Subordinate or delegated legislation
 Act contains authority for the governor or some other body to make delegated legislation while small changes are happening to the act post royal assent 5 

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o Codes and consolidated statutes
 If a statue is ammendent several times it may become unwieldy and need a reprint, this is not a consolidation
 Consolidations bring together statutes which apply to the same subject
Structure of an act

Long title: states purpose

Short title: citation

Numbers within the calendar year

Preambles

Word of enactment: words which 'make it happen'
o Parts and divisions

Headings and margin notes
The Modern Approach

Maintains fundamental rule that the court is to give effect to the expressed intention of parliament

Literal strictness has given way to a broader contextual approach

Purposive approach to interpretation is to be used when there is any ambiguity
Jurisdiction: The Courts in Action
Supreme courts

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 Regulates its own procedure
 Regulate the right of audience before it
 Grant bail
 Hears the most serious criminal matters (treason, piracy, murder)
Intermediate courts (District or county)
 Civil domain defined by monetary limits
 Hears indictable offences
Magistrate/local courts
 Where majority of case are heard
 Committal hearings
 Determines whether an offence is indictable
 Summary offences
 Civil matters
 Small debts
 Civil claims
State tribunals and specialist courts
 Relationship between courts and tribunals depends on jurisdictional arrangements made in each statute
Federal courts
 Federal jurisdiction must always be specifically given
The high court
 Limited and defined jurisdiction
 Both appellate and original jurisdiction
 Original jurisdiction established in s75 of the constitution
 Deals with matters of federal importance: treaty, consuls, representative countries
 S76 allows parliament to make laws which furthers jurisdiction
The federal court
 Superior court of report law and equity
 Bankruptcy, trade practices, federal administrative law, admiralty, corporations law, federal tax disputes, native title, intellectual property cases
Federal circuit court of Australia
 Entirely civil
 Family law, child supports, property disputes, parenting orders, determination of parentage
Family court
 Family law act 1975
 Marriage and matrimonial causes with some power in relation to children
Federal tribunals
 Administrative power not judicial
 Each has a stature outlining jurisdiction

Class Notes
 Template for statutory interpretation

Text
 What does statute say? (Literally)
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