Everything Ilj - LAWS1052 - Introduction to Law and Justice (ILJ)

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

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?

• 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...