Law Notes > LAWS1052 - Introduction to Law and Justice (ILJ) Notes
This is an extract of our Everything Ilj document, which we sell as part of our LAWS1052 - Introduction to Law and Justice (ILJ) Notes collection written by the top tier of University Of New South Wales students.
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
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)
Write down citation
Read case
Read case again
Think about facts
Relevant facts 3
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
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
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
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
o
6 o
o
o
o o
o
o
o
o
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)
7
Buy the full version of these notes or essay plans and more in our LAWS1052 - Introduction to Law and Justice (ILJ) Notes.