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Law Notes LAWS1052 - Introduction to Law and Justice (ILJ) Notes

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LAWS1052 - Introduction to Law and Justice (ILJ) Notes

LAWS1052 - Introduction to Law and Justice (ILJ)

Approximately 47 pages

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 1 – Overview of the Australian Legal System

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

  1. Read it through without writing

  2. Read it again

  3. Write the citation

  4. Facts of the case

    1. Merely sketched at this stage

  5. Remedy sought

    1. What did the plaintiff/applicant/appellant want?

  6. Prior proceedings

    1. What happened in the court below

  7. Arguments of the parties

    1. To help establish what the legal issues are

  8. Grounds of appeal

  9. Issues

    1. What are the issues the court has to decide on

  10. Outcome or decision

    1. Who won the case

    2. Was the appeal confirmed or denied

  11. Legal reasoning

    1. Process of reasoning used by the judge to come to their decision

    2. Trace this through

  12. Ratio decidendi

    1. Princi0ple of law or legal reasoning which was necessary for the court to make its decision

  13. Obiter dicta

    1. Other things the judges said that were of interest but not necessary to the decision made

  14. Notes

    1. The difference this case made to knowledge

    2. 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?

Introduction to the Statutory Interpretation and the Courts in Action

  • 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?

WEEK 2 – The Modern Lawyer

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


  • 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

WEEK 3 – Major Division of Anglo-Australian Law and Lawyers and Precedent

Major Divisions of Anglo-Australian Law: The Rise of Equity and the Civil/Criminal Distinction

  • 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

Scott v Shepard

  • 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

Classifying Australian Law

  • 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

Judicial Activism and the Death of the Rule of Law - Justice J D Heydon

  • 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? A riposte to the Counter-Reformation - Michael Kirby

  • 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

WEEK 4 – The Rule of Law

  • 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

WEEK 5 – Precedent and Change in Cases and Legislation

  • 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

Class Notes – Statutory Interpretation

  • 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

Impact of Settlement of Australia’s Aboriginal People

  • 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 Charles Smith – An Aboriginal Death and Life in Custody

  • 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

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