Law Notes LAWS1052 - Introduction to Law and Justice (ILJ) Notes
The complete notes for ILJ. These notes tackle all the finer details of concepts like the rule of law and judicial activism (including run-downs of Kirby and Heydon's differing arguments). The notes have subheadings and page numbers for easy access and simplicity. Good Luck in your exams, I hope these help you out. The essay plans include a complete outline of any likely essay topics, including sub-themes, academic opinion, case law and, bonus points to shoot you out above the rest....
The following is a more accessble plain text extract of the PDF sample above, taken from our LAWS1052 - Introduction to Law and Justice (ILJ) Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
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
Overview of the Australian Legal System (Vines Chpt 1)
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’
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
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
Read it through without writing
Read it again
Write the citation
Facts of the case
Merely sketched at this stage
Remedy sought
What did the plaintiff/applicant/appellant want?
Prior proceedings
What happened in the court below
Arguments of the parties
To help establish what the legal issues are
Grounds of appeal
Issues
What are the issues the court has to decide on
Outcome or decision
Who won the case
Was the appeal confirmed or denied
Legal reasoning
Process of reasoning used by the judge to come to their decision
Trace this through
Ratio decidendi
Princi0ple of law or legal reasoning which was necessary for the court to make its decision
Obiter dicta
Other things the judges said that were of interest but not necessary to the decision made
Notes
The difference this case made to knowledge
How the case is significant
How to Brief a Case (Video by Vines)
Write down citation
Read case
Read case again
Think about facts
Relevant facts
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…”
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…
This case changed this law…
This case changed nothing
What does this case mean for you
Class notes
How to read a case
What is the dispute about?
What is the context?
Why do judges treat the case like this?
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
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
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’
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
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)
What is the ‘ordinary meaning’ of the words
Does it really mean what it says?
Context
What presumptions apply – eg non-retrospective, not limiting historic rights
Are they rebutted
Purpose
What was it trying to fix?
What was intended purpose of statute?
What can be taken into account when defining purpose? When and how?
The Modern Lawyer (Vines chpt 16)
The colonial profession
Early lawyers in military tribunals had no legal training
Changing private practice
1960’s: family controlled firms became corporate law firms
Diversity in the profession
1947: women were 2.4%of the legal profession
1991: women were 26.3%
20thC women are majority law students
First female high court judge 1987
Current work patterns
Small firms: conveyancing, wills and estates, business law, family law, criminal law, individuals or families
Medium firms: broader range of matters, businesses/corporations as clients
Large firms: offices overseas, large corporations, complex and specialized cases
Barristers: may work as public prosecutors
Lawyers and the rule of law
Restrains arbitrary use of power
Pakistan case of violence to protect rule of law and be subjected as heroic (pg429 of txtbk)
Lawyers as professionals
Hold themselves out and are accepted as having a special body of knowledge and skills exercised to service others
Strict code of ethics
High level autonomy to exercise skills and knowledge to how they see fit
Regulated by statute
The lost lawyers?
Loss of a sense of law as a profession rather than as a business
Unpopularity of lawyers is a perennial issue
Epidemic of depression in western world in lawyers
What will the future bring for lawyers?
Online communication will replace traditional forms
Keeping of documents will shift to digital
May raise issues for privacy as password systems begin to fail
CLASS NOTES
Judges and juries
Judge using their power
Specialist judges go into their specialization due to a passion for the particular topic, of course they have an opinion but it is more often than not a better one. Would you go into environmental law because you wanted to kill the environment?
The creation of the English state
Centralization of authority after 1066
Offences seen as being against Kings peace, not just against another individual
‘Rational’ decision making replaces ordeal, battle, divine guidance
Courts develop as decision-makers separate from the king
Legal system develops
The jury and implication for procedure: the trail as an event, jury decides rather than proves facts
Emergence of legal specialists, a profession with expert knowledge
1215
The creation of the Magna Carta
Superiority of common law or the kings command? Law as a restraint on royal power
Myth, symbol, belief
Equity
Distinct jurisprudence
Connotes an emphasis of justice different from common law
Separation of common law and equity allows slightly different ideas of justice to be in place within the general legal system
Both areas reinforce the power of the king
Lord Chancellor of England
Was the head of the kings clerks
Now a member of cabinet who makes recommendations for the appointments of many judges
Crime and the Kings Peace
Anglo-Saxon law management
Bot: amount paid by man and family as compensation for damage done
Wer: amount of blood money varied according to the persons status
Wite: a fine for a serious wrong paid to the King rather than the person (like a bot) and price determined by wer
Criminal prosecution
Instigated by the state
Beyond reasonable doubt of guilt by the alleged
Penalty prescribed by state for the purpose of: retribution, deterrence and, reform
Penalty is not intended to benefit any person injured as result for the crime
Civil claim
Litigated between individuals
State acts as neutral arbitrator
Reaching decision based in the balance of probabilities
If the loosing party pays money, it goes to the winner
Kings peace
Led to legal action but not as defined as it is nowadays
For example, trespass was deemed an offence against the Kings peace as well as wrong to the injured plaintiff
Trespass vi et armis
Lawsuit at common law called tort
The cause of action alleged a trespass upon person or property vi et armis (Latin: by force and arms)
Brief
Action of assault
Defendant with force and arms with sticks, staves, clubs and fists made an assault upon the plaintiff
Greatly bruised, wounded and ill treated him so that his life was greatly despaired
Then and there threw, cast and tossed a lighted squib consisting of gunpowder and other combustible materials at and against the plaintiff
This struck the plaintiff on the face, burning the eyes
This resulted in excruciating pain and torment for a long time
Plaintiff lost his eye
The plaintiff was unable to work and lost their sight
Defendant pleaded not guilty
The damage which the plaintiff received was not done immediately but was consequential
If a man throws a stone over a fence and it kills someone, it is manslaughter although he did not aim or see anybody
Therefore throwing squibs in a public place is adjudged a common nuisance
Class Notes
Equity as an example of legal change
Law became formalized, suiting professionals not public
People look elsewhere for remedies
New methods get incorporated into the law
Law became formalized suiting professionals not public
People look elsewhere for remedies
New methods get incorporated into the law
Law became formalized suiting professionals not public
People look elsewhere for remedies
Why equity is important
Discretion vs rigid rules
Significant for economic development of capitalist economy
Trusts as a major focus of equity
Remedies – beyond damages
Specific performance of contract
Equity principles
Equity will not suffer a wrong without a remedy
They who can come to equity must come with clean hands
Factual similarity and reasoning by analogy
Equity: equitable doctrine of unconscionability [extremely unjust or one-sided] used to provide a remedy
Examples of equity in action:
Profyts Case (c.1400)
A man was dying and wanted to give his land to his wife although within the societal context, women could not inherit land
Therefore, the man left it to his three best friends who promised to give it to his wife upon his death
Instead, two sold their shares to the other (Profty), who sold the entirety to someone else
According to common law, there is nothing illegal about this
The wife went to the Chancery, which ordered that it was against consciousness
The court could not cancel Peters gift to Profty and friends but could make them hold land in trust for Peters widow
Amadio v Commonwealth Bank
Two elderly migrant were asked by their son to execute a mortgage in his favor
The son told his parents that the mortgage was limited to $50000 and only for 6 months
As the parents were unfamiliar with the English language they could not check what they were signing and trusted in their son
When his company went into liquidation and owed the bank over $239000, they were expected to pay
Thorne v Kennedy [2017] HCA 49
Thorne: young eastern European women living over seas with limited assets
Kennedy: a 67 y/o divorcee with three adult children, an Australian property developer with over $1 8mil in assets
They met online and Kennedy told Thorne that if they married, she would have to sign paper because his money is for his children
7months after they met, Thorne moved to Australia with the intention of marrying Kennedy
An independent solicitor advised Thorne not to sign the agreement which she interpreted as the solicitor claiming that this is the worst agreement he has ever seen
Despite signing the agreement because she relied on Kennedy for most things so signed the agreement and another one after that
The couple separated less than 4 years later
Later, Thorne went to the Federal Circuit Court seeking orders to put aside both agreement
The primary judge set aside both agreements for duress
Kennedy went appealed to the high court of Family who concluded that the agreements should not be overturned
Thorne then appealed to the high court who concluded that agreements should be set aside for undue influence
Factual similarity and reasoning by analogy
Identification of relevant material facts which provide common ground
Caravan ‘On Precedent’ pp78-93
Binding precedent: must be followed
Persuasive precedent: depends upon the quality and jurisdiction of the court whose decision it was
Terminology
Affirm/approve: if appellate agrees with local court decision
Reverse/overrule: appellate does not agree with lower court case, it will overrule the principle of law
Applied: when a court applies the ratio of a previous case to meet the circumstances of the case before it
Followed: when court uses the principles of a previous case
Distinguished: when a court is bound to follow a previous decision but sees some differences to the circumstances
Not followed: when courts do not follow decisions from courts they are not bound to follow
Rules of precedent
Lower courts must follow the decisions of higher courts in the same judicial hierarchy
Conversely, a higher court can overrule a prior decision of a lower court in the same hierarchy
A judge does not have to follow the same decisions of judges in the same level in the same judicial hierarchy
Despite being highly recommended for consistency
A judge does not have to follow the decision of other judges in a different judicial hierarchy although may be persuasive precedent
Problem: we are Australian citizens first and citizens of our state second so we expect uniformity and consistency in our law
The highest court in a hierarchy can overrule its previous decisions
Ratio decidendi
Literally, the reasons for the decision
The only binding parts to a case is the ratio decidendi – the legal principles that are necessary to decide that particular case
Problems:
Judges speak in technical terms that make it difficult to distinguish the legal principles they are stating
Not all legal principles stated by the judge for the ratio decidendi
These are ‘remarks in passing’ or obiter dicta
Accept a judge like you accept the weather
Part of the law and assumed to be unalterable
The rule of law
Its impossible without explicit parliamentary legislation for important material or personal interests of one citizen to be radically damaged against that citizens wishes by another citizen unless some independent person holds that that is right
The rule of law prevents citizens being exposed to the uncontrolled decisions of others in conflict with them
Without rule of law states are nothing but organised robber bands
Operates as a bar to untrammeled discretionary power
Preserves citizens an area of liberty
Dilutes and diffuses power
All parties are intrinsically important yet unequal in strength
Channels potentially destructive energies into orderly courses
Judicial activism
Meaning using judicial power for a purpose other than that for which it is granted – so beyond solving disputes between parties
‘Strict logic and high technique’
A court faced with the choice of doing justice according to the existing law and seeking to overcome injustice by effecting a significant change in the law should generally apply the existing law and leave it to parliament to make a new and just law if it desires
Judicial law making conflicts with legislative policy and intrudes the true role of arms of government – conflicting the separation of powers
Loyalty to precedent is important because it increases the chance of obtaining certainty – assuming the precedent is made from judgments based on legislative policy
Disloyalty to precedent gives judges uncontrolled discretionary power
Judicial activism places threat on the rule of law
Judicial activism is hardly a persuasive response to an important and universal feature of the judicial role
Judges have a duty to be honest about choices and one they prefer one over another
They are affected by their values, although sometimes unexpressed
Judicial activism
Metaphorical treason against the constitution
Relates back to citizens – it concerns the way “their” law is made
Class Notes
Precedent
For
Equality and consistency treating like alike
Certainty and predictability
Efficiency
Against
Ossification
How does a doctrine which is meant to ensure consistency and predictability allow for change
The role of a judge is to interpret legislation rather than break down the rule of law
Importance of procedure
The substantive common law evolved from the procedures by which cases came to be resolved in the royal courts
Writs and forms of action
Writ system brought central justice to local courts
No new writ after 1258
No writ, no remedy
Eg trespass vi et armis
What restrains judges from arbitrary decision making
Skeleton of principle
Legal culture – tradition, values, ways of thinking
Audiences
Taking legal reasoning seriously
The king and the common law
The Trew Law of Free Monarchies by James I 1598
Only absolute monarchy could avoid confusion and dissolution
Natural law theory: that law is based on reason and on the will of the sovereign
Parliament and common law
Magna Carta as origin of parliament is not correct
The king was forced to accept the view of a group of people outside his advisors
Model parliament called by Edward I in 1295
Edward called the parliament because he needed funds
Felt politically sensible to consult with a range of people throughout the kingdom before increasing taxes
This relationship as remained important in the de elopement of the legal system
Can the kings power be restrained by the common law
‘The royal prerogative’
Class Notes
Use the law to enforce the law and break it
Principles of the rule of law
Everyone is subject to the law
Legal authorization needed for executive action
No source of authority outside law
Prohibitions to be specific rather than general
Law should be prospective not retrospective
Predictability: law is known and accessible
Freedom for arbitrary arrest
Independent and trustworthy
Class Notes
Martin Krieger: a society has the rule of law to the extent that there are institutionalized constraints on power
How do you know you have the rule of law
People resolve disputes by words rather than violence
The police, courts and judges are trusted
Government commits to accepting judicial decision and submitting itself
The Victorian contempt of court
So the rule of law a western/northern post-colonial construct
No inevitable progress
Has to be protect, maintained, restored and renewed
If it happens then its an achievement, it not a natural order
The constriction of rights and liberties by individuals or groups standing up to power
Royal College of Nursing of the Untied Kingdom v Department of Health and Social Security
Notes
The abortion axct 1967 stated that no offence was committed if the abortion was carried out by a registered medical practitioner
Although when the method for terminating changed from surgical to chemical intervention, this could be completed by a nurse
Therefore the department of health and social security stated that no offence was committed if this was carried out by nurses
The royal college of nursing disputed this
Arguments – Lord Wilberforce
When the act was first presented there was only surgical forms of terminating pregnancies available therefore the purpose of the act was to stop unqualified people from attempting these procedures
When interpreting an act, one must consider the state of affairs at the time. The courts must consider whether the facts now fall into parliamentary intention at that time.
Arguments – Lord Diplock
This is an issue subject to strong moral and religious convictions
Consider the state of the law relating to abortion before the act: any woman who stops her pregnancy in any way shall be guilty of felony, possible prison sentence, no difference on whether it is a medical practitioner or back-seat-abortion – all is wrong
The doctor should not have to do everything with his own hands but should oversee
Dugan v Mirror Newspapers
Material facts
Dugan was sentenced to death for the felony of wounding with intent to murder
He committed another felony when on parole andw as sentenced to 14 years of hard labour
While serving his sentences he commenced an action against mirror newspapers who he alleged had defamed him
At trial he was deemed incapable of suing until his term of imprisonment had expired; the court of appeal dismissed dugans appeal; dugan applied for special leave to appeal to the high court
Carr v WA – in Kirby’s “Statutory interpretation”
Facts
Related to the reception of the evidence of police in criminal trials concerning confessions and admissions allegedly made by them by a criminal accused
There was an armed robbery at CBA
Months after the crime, the police went to Mr Carrs home and searched the premises and videoed this, Mr Carr made no admissions
No incriminating evidence was found to suggest Mr Carr was guilty of the bank robbery
Mr Carr was then taken to the police station to be questioned, Mr Carr did not wish to say anything without a lawyer present
At the end of the recorded interview, Mr Carr was taken to
Duty of the court to give the words of a statutory provisions that the legislature is taken to have intended them to have
Ordinarily, the legal meaning will correspond with the grammatical meaning of the provision
The context of the words, the consequences of a literal or grammatical construction, the purpose of the statutes
Template for statutory interpretation EXAM: this is how to interpret statute
Text
What does the statute say
What is the ordinary meaning
Does it really mean what it said
Context
How does it fit with the rest of the statute
What presumptions apply
Are they rebutted
Purpose
What was it truing to achieve
What was the purpose of statute
Terra nullius
Sovereignty and Possession
Cook never obtained their consent before he claimed possession
Injunction from the government to establish friendly relations with the natives
By late 18th century – north America had come to recognise that Indigenous have rights that should be respected
Treaties were used to mend the relationship
Barangaroo and Arthur Phillips
Gave small pox
Pushed aborigines out of their places with no recognition of ownership
Punished them for hunting the cattle
Who were the natives
The aboriginal people
Sovereignty and proprietorship
18th century international law
the law of European nations
Rules about the consequences of one country taking over another
If there weren’t people occupying the land then the people taking over would bring their laws although if there was people then the arriving people must abide by their laws
Captain cook claimed to have ‘discovered’ Australia
Why was Australia regarded as settled
There was no war or conquest because the aborigines put down their spears and were friendly
The British believed their colony had been peacefully settled
The consequences was that neither the sovereignty nor the land rights of the original habitants were recognised
Land and life
Most important issue was the dispossession of land
Integral part of customary law which governs their lives
Removing children: the stolen generation
Indigenous children were removed from their families
Especially if mixed blood to promote the race dying out
The Aboriginals Ordinance 1918 (NT)
S16 the chief protector may cause any aboriginal or half caste to be kept within the boundaries of any reserve or aboriginal institution or to be removed and kept within the boundaries of any reserve or institution
Attempts to get compensation or removal were unsuccessful largely because it was government policy to remove children
The intervention
In 2007 the commonwealth government put in place a plan to reduce domestic violence against indigenous children in the Northern Territory
Northern territory national emergency response act 2007
Federal police as ‘special constables’ to the nt police force
Withholding welfare benefits to those who neglect their children
Malcolm had been stabbed in the eye with a paintbrush in a toilet cubicle which was the cause of his death
European settlement that ‘the progress of the Aboriginal from tribesman to inmate
By the operation of massacre, individual killing, introduced diseases, destruction of food supplies, sexual exploitation, introduction of alcohol and dispossession from the land with which their whole life was entwined, these peoples were reduced to small remnants and many of them herded without regard to tribal affiliations into what were in effect concentration camps, although known as stations or 'missions'
Class Notes
...
Buy the full version of these notes or essay plans and more in our LAWS1052 - Introduction to Law and Justice (ILJ) Notes.