104841154 good-study-notes-foundies

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click here for freelancing tutoring sitesHeritage of the Australian Legal system

English Heritage

Anglo Legacy & Norman InvasionAngles and Saxons introduced: p. 35

The idea that all people ought to be subject to law, thought at the time law was mostly

customary and local.

Written laws including:

o the writ (the document which brings legal action)

o the shire-reeve (sheriff)

o notion of the King’s Peace (beaching the peace is still a crime)

e.g. writ of habeas corpus: a prerogative writ which orders a person detaining another to

bring them before a court so the legality of their detention can be determined

Norman Conquest (William the Conqueror):

Introduced the feudal system. The duty to lords within regions gave rise to ‘manorial

justice’

Doomsday book: William the Conquer sent his commissioners all over England to

count what people had and to determine the tax they owed to the Crown – it is an

extraordinarily detailed record which covered which people lived where, what they

owned , their income, their animals and so on.

Harold J Berman: Law and Revolution: The Formation of the Western Legal Tradition

(1983) p. 37

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The kings court included official who “administered affairs of the crown” (which related

to administration, politics, military, marriage & succession)

Officials included a justicar (to represent king/act in his absence), chancellor (in charge

of king’s secretarial staff), barons of exchequer (to help in king’s legal and business

transactions) and local magnates (who presided over local courts).

Royal Justice Abbot Henry’s Story p. 41: involves almost all levels of royal justice – itinerant judges,

king’s judges at Westminster and in the Exchequer, use of writs, possibility of trial by

battle, a jury trial (the ‘recognition’) and eventually the ultimate authority of the king.

Curia Regis: the kings court/ his group of advisors who carried out his business

(succession to Anglo-Saxon witanegemot), eventually the term came to mean the courts

which operated in the absence of the king.

Henry II:

o Introduced eyre’s: investigations into whole county at regular intervals, they

investigated sheriffs, coroners, taxes and carried out judicial work.

o Centralised royal justice system: the same judges acted as itinerant judges, went

on Eyre, and sat on the bench at Westminster meaning that a set of consistent

principles was developed.

o Increased permanent public administration including Exchequer (treasury which

managed finances and heard disputes about them), Court of Common Pleas

(disputes about land, trespass etc) and Chancery (department which co-

ordinated other departments). BY 1200’s Exchequer had Exchequer of Pleas.

Royal courts: Eyre (took over local courts), Court of Common Pleas, King’s Bench,

Exchequer

Trial by jury p. 44

Forms of proof in medieval England included oath taking, the ordeal (God’s justice

normally by water or hot iron) and trail by battle (for Normans).

Henry II chose for royal courts as a method of proof the ‘recognition’ which was

essentially an early form of trial by jury. 12 knights called the ‘grand assize’ would

investigate the case and make a finding. Modern jury stems from this.

J H Merryman; The Civil Law Tradition

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Role of jury affected the form of trials. It was not easy to convene and reconvene

everyone at once and so for practical purposes trials became events. Where all the

parties are brought together at once to perform.

As proof: in Civil Law systems with no tradition of jury, typical proceedings are “a series

of isolated meetings of and written communications between counsel and judge”

The Magna Carta p. 47

King John forced to sign in 1215 following his and his brother Richard’s abuse of royal

power.

The Magna Carta ‘Great Charter’ is a foundation of the English Constitution. It limits the

arbitrary use of power, pertains to the court system (e.g. Court of Common Pleas must

be held fixed place) but most importantly it was the first instance of a restraint on the

King’s powers.

Signals the beginning of a period in which power is steadily channelled from the Kind

and into institutions such as parliament.

Some sections of the Magna Carta have been perceive as a call for freedom e.g. this

passage

o “No freeman shall be taken or/and imprisoned or disseised, or exiled, or in any

way destroyed nor will we go upon him nor will we send upon him , except by the

lawful judgement of his peers or/and by the law of the land”

Prisoners A-XX (inclusive) v NSW (1995) p. 48

Prisoners seeking access to condoms, were concerned about getting STI’s. One

argument was that failure to permit condoms contravened ch 29 of the Magna Carta

Ch 29 “No freeman shall be taken or imprisoned, or be disseised of his freehold, or

liberties, or free customs, or be outlawed, or exile, or any other wise destroyed; nor will

we pass upon him, nor (condemn him) but by lawful judgement of his peers, or by the

law of the land. We will sell to no man, we will not deny or defer to any man either

justice or right.”

Court considered ch 29 and decided that “the application of modern standards to

ancient practice has resulted in complete misapprehension” and “it does not … provide

a statutory basis for saying that the denial of prison authorities of access by prisoners to

condoms is unlawful.” p. 50 The prisoners appeal was denied.

The Church

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Europe was theoretically subject to papal courts, William the Conqueror opposed the

pope’s claim of superiority over the Church of England.

William the Conqueror separated church and non-church courts.

Church or Ecclesiastical courts applied canon law (based on the Bible and Church

statutes) and existed as part of the legal system until 1857. Had jurisdiction over

marriage, divorce, legitimacy of children, making of wills, passage of property after

death, punishment of moral sins (adultery, fornication and gluttony).

Henry II asserted supremacy over the pope via the Constitution of Clarendon in 1164,

dispute followed after which determined that clergy were to be tried in Church not Royal

courts.

Benefit of Clergy, sanctuary and abjuration p. 53

Milsom: Historical Foundations of the Common Law p. 52

Christian courts were the earliest courts that would look to us like law courts. Usually a

single judge tyring to ascertain the facts using evidence and witnesses, and then

applying rule of law which were written down and could be looked up (Bible & Church

Statutes)

Women p. 54

In medieval times women were protected in law only by equity and by dower.

Blackstone: Commentaries on the Laws of England“By marriage the husband and women are one person in law; that is, the very being or

legal existence of the woman is suspended during the marriage, or at least incorporated

and consolidated into that of the husband; under whose wing, protection and cover she

performs everything”

Origins of Civil/Criminal Law and Equity p. 55

Equity:

Chancellor was head of king’s clerks or secretariat (the Chancery), and during the time

of Charles II stepped into role of chief advisor to the King.

If a litigant felt justice had not been done in common law courts, they could appeal to

the King in Council (Curia Regis), if the King referred the petition to the Council it would

go to trial. The Council delegated this role to the Chancellor, who exercised royal power.

From 15th century, petitions went straight to the Chancellor. The chancellors court was a

court of conscience.

M Chesterman: ‘Equity in the Law’ (1981) p. 56

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Lord Chancellor “acted explicitly in the name of morality and justice”

System began to evolve into a separate set of legal principles where the common law

system was insufficiently responsive to social change. E.g. development of trusts, called

‘uses.’

Equity took over from church courts in many areas of wills & deceased estates

Equity involved in judicial remedy: could order injunctions to compel or restrain actions.

By 18th century had become rigid set of rules distinct from common law

R Atherton & P Vines: Succession: Families Property and Death (2003) p. 58

If women had equitable interests e.g. a trust, only then could she may be able to seek

remedies in a court of equity. NB this was generally only an option available to wealthy

women.

Criminal/Civil

Criminal & civil law not always as distinguishable as they are now. Used to be that an

action such as trespass was both a wrong to the injured plaintiff and also an offence

against the King’s peace.

C R Jeffery: ‘The Development of Crime in Early English Society’ (1969) p. 61

During Henry II’s reign the writ of trespass was introduced: it allowed damages for the

litigant, trial was by jury and initiation of Criminal trials was now by the Crown.

King’s peace extended all over England, making the King the source of law with total

jurisdiction.

Notion of criminal responsibility emerged e.g. agreements between killer and victim’s

family to not prosecute no longer stood, offence was to the King. As the crimes were

considered sins, punishment was required – thus concept of crime developed as an

interaction between church and state.

Civil War & Glorious Revolution Civil war: dispute about who had the ultimate decision over power: the King, the

Parliament or the Common Law. Charles I was beheaded 1649 without first being

deposed.

Interregnum: 1649-60 when parliament ruled and learned to govern. During this time

were attempts to codify law, and parliament asserted its right to legislate on anything.

The restoration: when parliament invited Charles II back to rule in 1660, his brother

James II succeeded him and came into conflict with parliament and the Protestants. An

Assembly of Peers invited William of Orange (Husband of Mary, James II’s protestant

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daughter) to invade. He did and became king on the basis of the Bill of Rights 1689

drawn up by parliamentarians.

Bill of Rights 1689: p. 107-110 it did not ensure parliamentary sovereignty, but placed

limits on the king’s power e.g. king could no longer suspend legislation but royal

prerogative remained such as ability to call and dissolve parliament, ability to choose

and dismiss minister, and authority over foreign affairs.

King vs. Common Law & Parliament p. 88

James I: believed in the divine right of kings. (speech to parliament p. 88)

Common Lawyers disputed this, notable Sir Edward Coke.

J P Sommerville: Politics and Ideology in England (1986) p. 90

Considers arguments about English common law in elation to the king’s power and the

power of parliament.

For common law-

o Coke: anti-absolutist, 1608 denied that the ultimate right to interpret laws lay with

the king, denied king could stop common law proceedings. Influence by

Fortescue who believed that the purpose of government was the protection of the

persons and the property of the governed.

o Common Law is the best of all laws because it is ancient custom and it is the

quintessence of reason that had been ‘fined and refined’ by the wisdom of most

excellent men.

o Dodderidge: ‘the Science of Sciences’

For parliament – Sir Thomas Smith 1565 “the most high and absolute power of the

realm of England consisteth in the Parliament.”

Common lawyers elevated parliament to almost a level of sovereignty, but still asserted

the superiority of common law – contradiction? P.95

o The higher law from which parliament derived its power to enact statutes was,

according to the lawyers, the common law.

Common law vs. ParliamentJ P Sommerville: Politics and Ideology in England (1986) p. 96

Lawyers alleged that the power to determine what the common law was should lie with

parliament and the judges.

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However in Bonham’s case, Coke tries to give power to judges to ignore statute (short

lived). Fails for 2 reasons: 1st would give judges legislative sovereignty, and 2nd judges

were royal appointments and see as too susceptible to political pressure.

Dominant opinion that parliament had power to interpret laws.

Bonham’s case (1610) p. 97

Dr Bonham brought action for false imprisonment against the President and Censors of

the College of Physicians who alleged they had power from the king to decide who

could practice medicine and fine/imprison anyone it did not think should do so.

“for when an Act of Parliament is against common right and reason, or repugnant, or

impossible to be performed, the common law will controul it and adjudge such an Act be

void.”

Royal Prerogative J P Sommerville: Politics and Ideology in England (1986) p. 97 and 98

“just as the common law granted supreme legislative and judicial authority to

Parliament, so, the lawyers held, it guaranteed certain powers to the king… known as

royal prerogatives.”

Absolutist believed kings power was from God and therefore was unlimited, many

lawyers conversely believe the King was afforded only those rights which he possessed

in law.

Lawyers: king had prerogative powers which were for the benefit of good government

e.g. during war, did not have prerogative to overrule common law, but could through

parliament overrule judges.

Coke and his colleagues imposed strict rules on the King’s authority (though admitted

no human superior) and asserted that the king was under the law.

Case of Prohibitions (1607)

Parliament got its power from common law, parliament & judges can decide what the

common law is, parliament is the king-in-parliament so king is sovereign in parliament

and thus derived from common law.

“the King hath no prerogative, but that which the law of the land allows him” p.104

Legal ProfessionRise of Legal Profession p 68

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Time of Henry II litigants began being represented by friends or family, during 13 th

century attorney gradually began to act for litigants around this time distinction between

attorney and ‘narrator’ developed. (similar to solicitor vs. barrister)

No attorneys in court of chancery but in 15th century solicitors began to act for litigants

In 16th century solicitors and attorneys began to amalgamate.

1260: Year Books begun to be written, their purpose to supposedly record the

intellectual aspect of litigation for future study.

At this time study of the law was essentially study of writs (which ones are for what) and

court procedure e.g. Year book extract on p. 71

J P Sommerville: Politics and Ideology in England (1986) p. 94

Coke: “the artificial reason and judgement of law, which law is an act which requires

long study and experience before that a man can attain to the cognizance of it”

Women Lawyers p. 80

Women not allowed into legal profession until 20th century

Re: Edith Haynes [1904] p. 80

Haynes sought to be admitted as a legal practitioner under Legal Practitioners Act 1893.

PARKER J: “if the legislature intended to make women eligible for admission to the

Court, then they should have said so in express language.”

BURNSIDE J: considers ‘any person’ to mean ‘any man’ as that’s what he said the

writers would have meant.

Mary Gaudron: Speech to launch Australian Women Lawyers p. 82

Goes through much of the resistance women lawyers faces into the 20 th century.

Development of Common Law ChecklistWilliam the conqueror organised administration

Writs and modes of proof

Henry II made juries and modes of trial

Doomsday Book (record keeping)

Magna Carta Settlement Act Bill of Rights

Role of local and customary law (decreased over time, instead replaced by central principles of

common law)

Canon Law: William the Conqueror decided to split cannon and common law. Christian courts

deal with cannon law, not just matters pertaining to the courts.

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The Doctrine of Precedentstare decsis et not quieta movera

‘to stand by what has been decided and not to disturb settled points’

RULE: the courts must uphold the ratio decendi (reason for decision) in higher courts. NB not

bound by obiter dictum (material said by the way).

Ratio decendi: any rule of law expressly or impliedly treated by the judge as a necessary step

in reaching his conclusion.

Obiter dictum: means a statement made by the way, often considered judicial opinion – it is not

binding.

R Cross & JW Harris: Precedent in English Law: p. 329

Decide that the central idea of the doctrine of precedent is that it involves a rule of law

and in particular a rule of law which is used by the court to come to its decision.

“Not everything in a judgement becomes precedent… this status is reserved for

pronouncements on the law.”

Judges may not prevent their judgment becoming precedent

Judges may not deviate from the ratio decendi of higher courts unless they consider the

two cases ‘reasonably distinguishable’

“even when the ratio decendi of a previous case is merely a persuasive authority, it

must be followed in later cases unless the judge has good reason to disapprove of it”

Early Development of Doctrine of PrecedentForms of Action p. 63

The chancery kept precedents of the writs they issued: The Register of Writs. Writs

defined the form of action, litigants had to find a writ that the court could recognise and

that fit the facts of their case.

Judges would normally decide the writs in the same ways they had in the past.

Writ’s established some long standing complaints e.g. trespass on the case in tort law

was originally a writ.

Legal Reporting p. 73

John P Dawson: The Oracles of the Law (1968) Judges used precedent in a way, through their memories of cases.

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Year Books: neglected the outcomes of cases, in part because writs contained rules

and the decisions could be wrong.

Plowden’s Reports: Edward Plowden first lawyer to publish set of reports. Had a high

standard of care an accuracy, and closest to modern law reports for the next 200yrs.

Dyer’s Reports: Sir James Dyer (CJ of Court of Common Pleas) wrote more in style of

year books, were personal notes with some cases expounded fully others just disjointed

comments. Though considered useful as they described 100s of cases and gave

glimpse into life of leading judge.

Coke’s Reports: wrote in every conceivable style and method, sometimes modelled

upon Plowden, other times in haphazard style of the Year Books. Reported 467 cases.

Not as meticulous as Plowden, often falsified authorities, misconstrued judgements

English Council of Law Reportion set up in 1856 (Australian colonies in 1860’s) to report

judgement of superior courts. Reports were checked before publication – authorised.

Law Reform/Legacy of Forms of Action Writs and the law/equity division made the system expensive, slow and complicated so

in 1832-33 most forms of action were abolished replaced by a write where litigants

inserted their own form of actions. Diff forms of action could be combined in one writ as

per Common Law Procedure Act 1852.

Legacy of forms of action in their effect on the conceptual development of law, language

and process still reflected that e.g. some common forms of action need to meet certain

requirements to proceed. E.g. see torts of trespass

Three Royal Courts were joined into one High Court – distinctions between types of

legal practitioners began to disappear.

Conflicting Judgements

RULE: Decisions made by multiple judges will be determined by the majority of judges.

If, in a majority, the judges use differing legal reasoning other courts will have to

determine whether a majority reasoning can be determined – if one can then that will

the ratio decendi.

If no majority reasoning can be found, the rule the case stands for will usually be stated

at the narrowest version of the rule which most judges agreed with and which led to the

same outcome.

Judiciary Act 1903 (Cth)

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S23: High Court needs a majority of at least 3 judges to make determinations as to

constitutional powers of the Commonwealth. In cases of an even divide, the majority will be

considered the group including the Chief Justice (or if CJ is absent, then the Senior Justice).

Hierarchy of the Courts & Authority p. 332

RULE: courts are bound by the decision of higher courts within their own hierarchy.

In Australia, all states have their own hierarchy with the High Court at the top.

Decisions outside the hierarchy may be persuasive in similar cases – the level of

persuasiveness varies. Courts from similar jurisdictions (e.g. criminal), similar legal

systems (e.g. common law like UK and Canada) and courts higher up in another

hierarchy are most persuasive.

Precedent and Change

RULE: Change occurs when a court considers a case sufficiently distinguishable so as to not

follow precedent and instead make new legal rules pertaining to the new situation.

Dorset Yacht Co Ltd v Home Office [1970] p. 335

“The cases which are landmarks in the common law, are instances of cases where the

cumulative experience of judges has led to a restatement in wide general terms of

characteristics of conduct and relationships which give rise to legal liability.”

Donoghue v Stevenson [1932] p. 335

Warned against making judgments in overly-wide terms

“it is of particular importance to guard against the danger of stating propositions of law

in wider terms that in necessary, lest essential factors be omitted in the wider survey

and the inherent adaptability of English law be unduly restricted… the actual decision

alone should carry authority, proper weight, of course being given to the dicta of the

judges”

The Rule of Law

AV Dicey: Introduction to the Study of the Law of the Constitution p. 111

Rule of Law has 3 main features

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1. The absolute supremacy or predominance of regular law as opposed to the

influence or arbitrary power’ (prevent govt from exercising arbitrary power)

2. Equality before the law. All classes of people are equally subject to the law which is

administered for all in the same courts.

3. The “constitution is the result of the ordinary law of the land” (Dicey p. 203)

Later conceptions of the rule of law have continued to emphasize the prevention of

abuse of arbitrary power.

Rule of law to have rules to restrain governmental power such as the idea that all

government powers (bar the legislature) shall be distributed and determined by

reasonably precise laws.

The rule of law draws upon o number of doctrines to create restrains upon the power of

governments including:

o the separation of power,

o doctrine of the independence of the judiciary,

o doctrine of parliamentary sovereignty,

o responsible government

The struggle for the rule of law can be seen in the English struggle for restraint of the

King’s power and the promotion of parliamentary sovereignty in the Bill of Rights.

In Australia the power of the Governor to make legislation base on royal prerogative

was fought by colonists using similar arguments to those used in the lead up to the

Glorious revolution e.g. restrictions on royal power, supremacy of the common law etc

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Settlement & Indigenous Population

Colonists & Early Legal System

Vines, Chapter 7

Colonists & Convicts p. 156

The convicts: The criminal legal system in Britain was cruel and often unfair. The death

penalty applied in cases of what we would now perceive as petty theft and nuisance.

Robert Hughes (The Fatal Shore) found that most convicts transported in the firsts fleet

were working class people mostly convicted of the first time offence of theft, not

hardened criminals like M Clarke and A G L Shaw suggested.

From 1788 to 1868 – 158 829 convicts were transported to Australia.

Captain Arthur Phillip of the Royal Navy was appointed the first governor of NSW.

One the colony began to settle down, land grants were made to men on the basis of

marriage and children. After expiration of his sentence, men were granted land. P. 158

The Early Legal System p. 158

First Charter of Justice 1786 (royal prerogative) and statue of 1787 established a

Court of Judicature for criminal cases in the colony. Involved judge-advocate

(prosecutor and judge) and 6 officers, similar to military. Charter also established a

Court of Civil Jurisdiction consisting of the judge-advocate and two others. Right to

appeal to the Governor.

Kable case: the first civil case tried in Australia was tried in the Court of Civil

Jurisdiction. The Judge-advocate David Collins, called the Captain accused of theft and

found for the plaintiffs (Henry and Susannah Kable) p. 159

Doctrine of Attainder: English law at the time held that a person convicted of a crime

was civilly dead (‘attainted’). In 1820 the Supreme Court held that convicts and even

people who had been pardoned did not have civil rights. Was held in one of the Eager cases that even those who had pardons in NSW were still subject to attainder as their

pardons had not been issued under the great seal. P. 161

Second Charter of Justice (1814) (est. by royal prerog) established s Supreme Court

with civil, criminal and equitable jurisdiction with a judge and 2 magistrates. Also est. a

Governors Court headed by judge advocate and 2 other of governor’s choice.

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The early development of the legal system involved similar argument to those used by

advocated in the Glorious Revolution e.g. representative government, restraint of

arbitrary power, rise of parliament, restrain of government’s power etc.

Emancipists vs. Exclusivists p. 163

Emancipists: people who had come to the colony and had later been freed, and free

settlers sympathetic to their aims. Withed to extend their own power to be allowed to

participate in organs of the colony e.g. acting as jurors able to vote etc.

Exclusivists: those who came to the colony as free settlers or military men. They wished to

dominate have institutions stay in their hands.

Much of the dispute between the two groups was fought in the courts with people using

argument of the rule of law referring to the Magna Carta, the Bill of Rights and GR

arguments.

David Neal: The Rule of Law in a Penal Colony: law and power in early NSW p. 165

Thought that the idea of a rule of law was deeply imbedded in the colonist’s minds. E.g.

Governor of Minorca had successfully been sued for illegal detention.

The courts/law became the means of expressing and contesting the differing conceptions

of social and economic relations

Colonists used the arguments underpinning England’s own government to argue for a

colony government, making it difficult for England to refuse for long.

Use of courts like this vested considerable power in judges.

Fight for Trial By Jury p. 166

1819 petition to monarch made by emancipists asking for trail by jury in civil as well as

criminal matters, even sent a representative to England to argue their case (Ed Eager

and Will Redfern)

New South Wales Act 1823 provided for a Supreme Court, Legislative Council,

Intermediate Courts and juries civil cases where both parties agreed. New Governor

introduced juries into these new courts. Magistrates continued to exclude emancipists

(as they were attainted) until Jury Act 1829 (NSW). Juries for all criminal cases was

finally won in 1833.

Fight for Representation vs. Governor Charter of Justice gave the governor extensive powers, until 1823 the governor had

king-like power as it was restricted only by directions from Britain which were slow to

arrive (not even restricted by legislature!). p. 162

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Governor was the sole source of legislative and executive power and was also the final

court of appeal.

Following Second Charter of Justice could exercise prerogative of mercy.

NSW Act 1823 est. Supreme Court that could keep powerful people in check, but

Governor still dealt with appeals AND could make legislation in consultation with new

Legislative Council. P. 168

Following Australian Courts Act 1828 (Imp) appeal bypassed governor for first time

straight to Privy Council.

Act of Settlement 1701 meant judges were appointed by Britain making it clear that the

courts were now separate from the governor. E.g. Sir Franges Forbes (1st CJ of

supreme court) upsetting Governor Darling by refusing to let him control the press

telling him it was inconsistent with English Law. P. 169

From 1815 the courts began to overrule the Governor. 4 eg’s on p. 170-1

The Australian (Owned by W C Wentworth) and The Monitor were newspapers that

frequently argued against the governors powers, and for representative government p.

171

Following a commission the NSW Act 1823 was passed, representation was by an

unelected Legislative Council. The governor need a majority to make legislation or just

one if he was convinced it was essential as long as CJ said was lawful (beginnings of

repres govt). The council was expanded to 15 members in 1828.

The first NSW Constitution est. in 1842: Leg Council up to 36, candidates could stand

for election if they fulfilled certain requirements. For 1st time the governor was

responsible to the legislature.

Colonies encouraged to draft new constitutions, all involved 2 houses of parliament VIC

was most progressive p. 173

English Law – What applied? P. 174

Date of reception: All English law which was in force on 28 July 1828 was in force so far

as it was relevant to the colony following the Australian Courts Act 1828 s24

Doctrine of Repugnancy: all law repugnant to English law was void. Problem in SA

where Justice Boothby struck down nearly everything making governing impossible. In

response, Imp parliament formalised doctrine of repugnancy and paramount force in the

Colonial Laws Validity Act 1865 (imp)Cooper v Stuart (1889) p. 175

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Cooper alleged that a clause in a grant of land made in NSW the rule against

perpetuities. Stuart claimed that it was not part of NSW law in 1828

Lord Watson “in so far as it is reasonably applicable to the circumstances of the Colony,

the law of England must prevail” rule against perpetuities inappropriate in a young

colony. Appeal dismissed.

Dugan v Mirror Newspapers Ltd (1979) p. 179

Dugan alleged defamation, but at trial Dugan was considered attainted because he had

been sentenced to death for a felony. Ct of appeal dismissed Dugan’s appeal, he

applied for special leave to appeal to HC.

Refused: doctrine of attainder still active as was part of law in 1828, death penalty (and

attainder with it) not abolished until 1955 in NSW)

Independent Legal Systems in the States ch 8

Authority for new state constitutions came from Britain

Bicameralism : house of the people and house of restraint, bicameral parliaments were

adopted by 5 of the 6 states (not QLD) p. 187

Powers of State ParliamentFrom UK the idea of parliamentary sovereignty. The phrase ‘peace, order and good

government’ has been held by the courts to grant plenary power

Union Steamship Co of Australia v King (1988) p. 189

Seamen for compensation from s48 of Workers Compensation Act 1926 (NSW),

appellant (Union SS) claimed the Act did not operate for the ‘peace, welfare and good

government of NSW’ as it operated extraterritorially.

The phrase grant plenary power in NSW and the “fact that the ship is registered in New

South Wales is a sufficient connection with the State to enable the Parliament to apply

its laws to the ship.” P. 192

NB. More limits on state power back then than now, s 5 of Colonial Laws Validity Act held that

some laws needed to be approved by Britain. Following the 1926 Balfour Declaration the

colonies were declared autonomous and that the Crown would follow their wishes. P. 192-3

Re: Manner and FormBy which state parliaments can limit the actions of future parliaments.

Attorney General (NSW) v Trethowan (1931) p. 194

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Jack Lang tried to abolish the Legislative Council and attempted to repeal the manner

and form provision of a referendum.

Court found that the Bill was unable to be presented for assent as they had not

complied with the manner and form provisions detailed in s 7A of the NSW constitution.

Moving toward Independence (from Privy Council) p. 200

Statute of Westminster 1931: no Act of UK Parliament would extend to a dominion

unless specifically stated so Australia adopted this in 1942, but the states never did

and so were still bound by the Colonial Laws Validity Act. Viro v The Queen (1978) p. 290

Viro was convicted of murder by pleaded self defence. He appeal on the ground that the

judge directed the jury about self defence with reference to Palmer v The Queen which was

a Privy Council Decision.

The court found that the High Court was no longer bound by the Privy Council.

It was still theoretically possible to appeal to the Privy Council.

The Australia Act 1986 (Imp) and The Australia Act 1986 (Cth) were passed

simultaneously, they:

terminated appeal to the Monarch and the PC.

Terminated legislative restrictions on parliaments of states

Federation Vines, Chapter 9

Federation of Australia was decided by referendum of people (2nd in world)

Federation was a popular idea that took a long time to get to, many Conventions and

negotiations took place in the lead up – involving NZ at one point, and never WA, only

jumped on at the end.

Federation came into effect when the newly agreed upon constitution was passed by

British parliament and came into effect Jan 1 1901

Right to Vote p. 210 The constitutional basis for the right to vote is in sections 5 and 30 where it is states that

“in the choosing of members of parliament each elector shall choose only once”

Women and aboriginals were generally disenfranchised

o Women in SA and WA cold vote but in other state could not.

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o Aboriginals banned from voting in QLD and WA, NSW banned aboriginals living

on reserves from voting (which effectively mean all), SA had similar restrictions,

but VIC had no barring legislation, and some aboriginal men did vote.

Commonwealth Franchise Act 1902: provided universal adult suffrage for

Commonwealth elections (over 21yo) for those who had the right to vote in their own

state. So had to wait for states to let them vote.

o NB Women had the right to vote in federal elections and thus the right to stand

for election to from now too (first country in the world to award both). State

eligibility varied (table on p. 212 shows dates)

Commonwealth Elections Act 1962: gave all indigenous people the right to vote.

Federal Constitution p. 214

The constitution is concerned particularly with restrictions of power (sep of powers) and

the structure of government (Ch 1-3).

The separation of powers in one of the main doctrines which attempts to prevent the

abuse of power

o Boilermakers Case (1956) confirms that the constitution “is based on the

separation of the functions of government, and the power which is confers are

divided into three classes – legislative, executive and judicial” p. 215

The emphasis of sep of powers in the constitution relied heavily on responsible

government – i.e. the separation of judicial power from other forms of power so that the

judiciary can hold the other forms responsible.

Commonwealth vs. State Powers p. 216

o The constitution confirms the states but shows they are bound by it.

o The specificity of commonwealth power is a result of the states desires to remain

autonomous.

o Power has recently been shifting toward the Commonwealth with the ability to

overrule/resolve inconsistent state legislation and with the advent of things such

as the external affairs power (Tasmanian Dams Case 1983) p. 217

Rights in the Constitution

o Distinct lack of stated rights in the constitution (beyond right to vote)

o Right to jury had been interpreted away and now comes from statue

o Protection of religion is in s116 which related to states and so is read narrowly

o S 177 guarantee equal treatment of state residents

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o S 51 ‘on just terms’ re: acquisition of property

o Implied right of political free speech held by High Court

o Rights are otherwise imbedded by statute or common law e.g. ACT & VIC have a

Bill of Rights p. 218

Changing the Constitution: s 128 requires that a referendum of electors must be held

with a majority result in order to change the constitution.

Separation of Powers in ActionKable v DPP (NSW) (1997) p. 221

FACTS:

o NSW Parliament passed the Community Protection Act 1994 (NSW) which would

oblige the Supreme Court to imprison pre-emptively Gregory Wayne Kable if he was

considered to be dangerous - to protect the community.

o Kable argues Parliament was exercising judicial power

CRUCIAL ISSUE: Is the Community Protection Act 1994 an exercise of judicial power by the

Parliament and thus void for breaching the separation of powers?

JUDGMENT:

TOOHEY: the act compels the court to act in a certain way which is contrary to the

separation of powers, but no proof the sep of powers exists in NSW. It offends Ch III of

Constitution which provides that persons may have their interest determined by judges

independent of the legislature and exec.

“offend that aspect because it requires the Supreme Court to participate in the making

of a preventative detention order where no breach of the criminal law is alleged and

where there has been no determination of guilt” p. 222

Court found Act incompatible with Ch III. Found for Kable.

NB. BRENNAN CJ, DAWSON, TOOHEY and MCHUGH JJ found that separation of

power doctrine does not operate in NSW

Farden v Attorney-General QLD (2004) p. 223

FACTS: Similar to Kable case above, but involves the Dangerous Prisoners (Sexual Offenders) Act 2003 (QLD) but the Act was not person specific but referred to people who

would pose an “unacceptable risk” of reoffending.

CRUCIAL ISSUE: Is the Dangerous Prisoners (Sexual Offenders) Act 2003 (QLD) an

exercise of judicial power by the Parliament and thus void for breaching the separation of

powers?

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JUDGMENT

Act is not incompatible with CH III of the Constitution, it provided court with discretion.

Early Impact on Indigenous PopulationVines, Chapter 6

R v Wedge (1776) p. 9

Wedge argued that the court had no jurisdiction to try him for murder as both the

accused and the victim were aboriginal.

Court found that aboriginal people are the subjects of the King p. 11 therefore the court

had jurisdiction.

Colonists failed to recognise Aboriginal culture as a valid system, allowing them to classify the

land as terra nullius.

Colonial Attitudes & Terra Nullius p. 115

“You are also with the consent of the natives to take possession of convenience

situations in the country” – Instructions given to Captain James Cook before setting sail

in 1786. Why did this not happen? P. 116

In 18th Century international law writers & English Law p. 118-9

o De Vattel in The Law of Nations: a nation can take possession of vacant

countries and thereby acquire “empire of sovereignty,” but must use land.

o Hugo Grotius: discovery is only possible if land is vacant

o John Locke: laws of nature provide that labour is needed to establish ownership

of the land.

o Blackstone: differentiated between conquered and settled colonies, but said to be

an occupier one must manifest a will to possess the land as ones own. Classified

Aboriginals as having ‘transient possession’

o 1722 Privy Council held that if a country was uninhabited and settled by the

English then the subjects carried their laws with them and the new land would

also be covered by English law. NB. If conquered then the conquered law exist

until the conqueror says otherwise.

Terra Nullius: could refer to a land empty of inhabitants or also a land without

recognisable sovereignty. Europeans did not recognise aboriginal systems and so

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Australia was classified as the latter form of terra nullius. Neither sovereignty not land

rights were recognised.

Kevin Gilbert: Because a White Man Will Never Do It (1994) p. 122

No fences in the European way, but there were markers clear to indigenous eyes that

showed boundaries of territory – mountain ranges, rocks, trees, waterholes.

Land is a spiritual entity for indigenous people, which is why it was impossible to ‘buy’ or

‘take’ the land, they are tied to it.

“virtual slavery” following settlement with reliance formed through tobacco, sugar etc.

Attitudes of Colonists

Varied, some colonists ignored them, others tried to be fair and buy their land from

them.

A letter patent establishing the colony of SA clearly stated the rights of aboriginal

natives (p. 124), but these were blatantly ignored by the commissioners of the colony.

Similarly the 1889 WA Constitution provided for annual payments to be set aside for

welfare of aboriginals, the sum was never paid. P. 124

Some colonists favoured an assimilationist approach. In the 1950’s govt policy of

assimilation began including the removal of children from parents. Aboriginals

considered assimilated were excepted from such treatment and were given citizenship

rights. e.g. Albert Namatjira

Namatjira v Raabe [1959] p. 125

Namatjira was convicted of supplying alcohol to a ward of the state, he appeal his

sentence and also the conviction on the basis that the ‘ward’ was not given notification

of wardship thus voiding the declaration of warship.

The HC declined special leave to appeal, finding that the appeal process regarding

wardship negated the requirement that ward be given notice and thus that block

determinations were appropriate.

Land & Life: For a long time non-indigenous people struggled to recognise the nature of the

relationship aboriginal people have with the land.

Milirrpum v Nabalco (1971) p. 129

Govt. granted mining leases without consulting the native population. The Aboriginal

inhabitants claimed they had a right to occupy the land based on a common law

doctrine of Aboriginal title.

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Court found that there is no propriety interest shown in the sense of owning land as in

property law, but acknowledged that it is more accurate to say “ the clan belongs to the

land than the land belongs to the clan.” (p. 130). Recognised aboriginal customary law.

The Legacy Indigenous people are the mos disadvantaged in Australia: p. 131

Die at twice rate of non-indigenous population

Mortality rates of infants are double

Receive less social security that non-indigenous people (p. 135)

Overrepresented in gaols

Overrepresented in deaths in police custody and prisons (because higher no.)

Indigenous women over 20x more likely to go to prison

Prue Vines: ‘When Cultures Clash: Aborigines and Inheritance in Australia’ Myths about aboriginal people in Australia are rife and damaging

Aboriginal people are either traditional or non-traditional: simplistic divisions don’t

refect the complex tribal systems nor abuses suffered

Traditional Aboriginal people are all part of same culture: this myth is gradually

giving way.

Aboriginal people living urban lifestyles have the same beliefs about family and

culture as other urban people: assumption of ‘losing’ their culture is false, strong

sense of culture.

Aboriginal people are not interested in property of inheritance: often a convenient

misconceptions, the land is vital to aboriginal culture the focus is sometimes not

as much ownership as the inheritance of the sacred and the relationship

Aboriginal people are defined by blood: e.g. half caste. Normally they perceive

themselves as ‘of aboriginal descent’ the proportion does not matter

Indigenous Developments Chapter 10

Central issue for most indigenous people was the lack of recognition of their right to land – it is

the basis of their customary law, the loss of which led to crippling poverty and destruction.

Mabo and Ors v Queensland (No 2) (1992) p. 233

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Recognised for the first time the legal fiction that Australia was terra nullius, the HC held

that native title to land could exist separately from the common law and based on

indigenous customary law.

However BRENNAN J qualified that “this court in not free to adopt rules that accord

with contemporary notions of justice and human rights is their adoption would fracture

the skeleton of principle which give our body of law its shape and internal consistence.

All judges except DAWSON J agreed that native title could exist at common law, that it

was determined by traditional customary law, required traditional connection to the land,

and could only be extinguished by a clear and plain intention. P. 249

After Mabo

Keating Govt. passed Native Title Act 1993 (Cth) to est. legal framework and restrict

implications of the case.

Next issue was whether pastoral leases extinguish native title…

The Wik Peoples v Queensland (1996) p. 250

TOOHEY J:

“no necessary extinguishment of those [native title] rights by reason of the grant of pastoral

leases under the Acts in question”

“Once the conclusion is reached that there is no necessary extinguishment by reason of the

grants, the possibility of the existence of concurrent rights precludes any further

question arising in the appeals as to the suspension of any native title rights during the

currency of the grants”

Court agreed that the claim of native title should be upheld.

Consequent amendments after Wik, including a 10-pint plan by the Howard govt to amend the

Native Title Act and more case law (Yorta Yorta), made it much more difficult to establish

and easier to extinguish native title. P. 258

S Brennan ‘Native Title in the High Court of Australia a decade after Mabo’ p. 258

Yorta Yorta set a new benchmark for the establishment of ‘traditional’ character of

native title

the HC ruled that the traditional law “must have continued substantially interrupted since

sovereignty’ (at 87 Gleeson CJ, Gummow and Hayne JJ) and must be regarded as

authentically traditional.

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Changes?

1967 referendum, Australians voted to give commonwealth power to make laws with

respect to Aboriginal people i.e. could be included in census and receive citizenship

benefits.

White Australia Policy ended in 1973

Australia begins to pride itself on multiculturalism

Racist influence still present in ‘fear of other’ e.g. popularity of One Nation, children

overboard and response to TAMPA.

How far will Aboriginal customary law be accepted into common law?

WA Law Reform Commission ‘Recognition of Aboriginal Customary Law’ p. 261

Existence of customary law in aboriginal communities is “”beyond doubt,” and there is a

huge diversity of laws – “no single system”

Problem of recognition:

o Could violate principle of equality before the law, special treatment?

o Customary law may violate international law e.g. spearing or child marriage

o Collective rights may conflict with women’s rights

Therefore blanker recognition is not possible, but recommends “to make space within

Western Australian law for recognition and respect of… customary law” p. 262

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Current Australian Legal System

The Australian System in the World ch 2

Common Law vs. OtherThe Australian Legal System is a common law system of law. Other legal systems include:

Civil Law Systems: private law is codified (marriage, Inheritance etc), statutes and

regulations are the only source of -judges are not. Mostly no juries. e.g. Germany,

France, Italy

Islamic Law (Muslim Law): based on the Qu’ran p. 19-20

Talmudic Law: based on the first 5 book of the Bible p. 21

Customary Law: laws of indigenous people around the world, e.g. Aboriginal Customary

Law, based on customs and traditions p. 22

International Law: based on customary law and treaty (convention) law

International law in a domestic setting Dualist vs. Monist approaches: Monists see international law as becoming domestic law after

ratification, Dualists see them as two distinct systems. Australia (like the UK, Canada and NZ)

take a dualist approach. Result is that sometimes domestic law or practice may be in conflict

with international law, and international law does not become part of domestic law until is it

legislated. P. 24

Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) p. 25

FACTS:

Mr Teoh denied permanent residence on the basis of his criminal record. His mother-in-

law alleged that he was the only one who could keep the family together including 7

children under 10 all of whom were Aus citizens. The decision to deny Mr Teoh

residency was not specifically in the Act by as a result of policy directions, therefore

Minister exercising statutory discretion – executive power)

CRUCIAL ISSUE:

Are decision makes obliged to conform to international Conventions?

JUDGMENT:

MASON CJ & DEANE J: international law must be legislated before ti becomes part of

Australian law. Statues ought be interpreted and applies “so that it is in conformity.. with

the established rules of international law” p. 28

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o Distinguishes between a legitimate expectation to act in a certain way and being

bound to act in a particular way. P.29 if not bound, still procedural protections to

address this.

o Found for Mr Teoh

TOOHEY J & GAUDRON J: Found for Mr Teoh as the Convention was not considered

and he was not notified that this was the case and therefore had no way of arguing

against it.

MCHUGH J (diss): not legitimate expectation arose to act in accordance with

convention.

Adversarial vs. InquisitorialTable of Differences p. 270

Adversarial: parties are in charge of the action (they initiate, collect evidence, call

witnesses). Parties present their case to a neutral tribunal (judge/jury). Judges are mediators

and interpreters of they law, their judgements become law, in cases of juries they direct the

jury. e.g. UK, Australia, Canada, US

Inquisitorial: judges take an active role, directing parties and calling witnesses, judges

questions witnesses, juries are rare. e.g. civil systems France, Germany, Italy

NB. Increasingly each of these systems is adopting parts of the other. E.g. in Australia, the

Family Court has adopted some of an inquisitorial style, no jury, partly judge directed.

The Modern Australian Courts ch 12

Example of a case that travelled through 3 levels of the courts in Civil Jurisdiction: Cheung v Derrick (1998) p. 312. Also see Chamberlain Case p. 296

Jurisdiction p. 297

“Jurisdiction is the authority which a court had t decide the range of matters that can be

litigated before it”

-TOOHEY J in Harris v Caladine (1991) p. 298

Jurisdiction can be established geographically by territory (e.g. Local Courts), by subject

(e.g. Constitutional issues dealt with by the High Court, matrimonial issues by the

Family Court) or parties (Children’s Court)

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Statutes which establish a court will generally define its jurisdiction. E.g. Supreme Court Act 1935 (SA) restricts the court’s jurisdiction, whereas in NSW and VIC their

Supreme Courts have ‘unlimited’ jurisdiction.

State Courts & HierarchyCivil System

High Court

Court of Appeal/Full Court of Supreme Court

Supreme Court

(Tribunals/Specialist Courts) District Court/County Court

Local Court/Petty Sessions/Magistrates Court

Criminal System

High Court

Court of Criminal Appeal/Full Court

Supreme Court

(Tribunals/Specialist Courts) District Court/County Court

Local Court/Petty Sessions/Magistrates Court

Supreme Court p. 300

The oldest courts – been around since the colonies, they are ‘superior courts of record

with general jurisdiction’ (Supreme Court Act 1970 (NSW)) Unlimited jurisdiction and therefore does not need legislative authority for its jurisdiction.

Hear as a single judge or the full court

Intermediate Courts p. 300

District/County Courts are intermediate courts of record with jurisdiction limited by their

enabling Act e.g. District Court Act 1973 (NSW) Jurisdiction in Civil domain usually defined by monetary limits on damages. In Criminal

Domain can hear mostly all indictable (heard by judge and jury) offences, though in

NSW and VIC cannot hear treason and murder – for a higher court.

Some courts can hear appeals from Local courts e.g. in NSW WA and VIC

Magistrates (Local) Courts

Also called Court of Petty sessions

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First level of courts, where most of cases are heard – they hear thousands and

thousands more cases that all the other courts put together.

Magistrates 2 core role: decide if there is an indictable offence to go to a higher court,

and to deal with lesser offences (civil and criminal) e.g. coronial issues, children’s

issues, traffic matters, residential tenancy matters etc

Jurisdiction: in civil matter monetary limit, in criminal they hear non-indictable offences.

State Tribunals/Specialist Courts

Tribunals have their own legislation which determines jurisdiction and process of appeal

e.g. Dust Disease Tribunal in NSW

Tribunals differ from courts in administrative law as they can review administrative

decision not just legal issues

Federal Courts & Hierarchy Federal Jurisdiction:

Chapter III of the Constitution provides that federal court can be established and that

state courts can be vested with federal jurisdiction (called autochthonous expedient).

Chapter III courts may only exercise judicial – never administrative- power. (see Farden and Kable cases).

Federal jurisdiction must always be specifically given, therefore federal courts have

defined and not unlimited jurisdiction.

Civil System

High Court

Federal Court Family Court Supreme Court

(exercising federal jurisdiction)

Tribunals District Court (ex fed juris)

Federal Magistracy Local Court (ex fed juris)

Criminal System

High Court

Federal Court State Supreme Court (ex fed juris)

District Court (ex fed juris)

Local Court (ex fed juris)

The High Court p. 304

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Original jurisdiction is set out in s 75 of the constitution: matters arising under treaty or

consuls, matters where Comm is a party, matter between states, constitutional matters

S 76 of the constitution allows parliament to make laws to confer further jurisdiction on

the High Court e.g. maritime law, conflicting state law.

Appeal to High Court are (following abolition of right to appeal in 1984) only following

special leave. (it is considered if it is a case of public importance e.g. resolving

conflicting law)

Federal Court p. 306

Refers to law and equity, was established by s 71 of the Constitution.

Original jurisdiction is conferred by more that 150 acts of legislation e.g. trade practices

and bankruptcy. Criminal jurisdiction is only minor and incidental.

S 32 of Federal Court Act (Cth) provides associated jurisdiction – matters of federal

jurisdiction which can be heard if related to a claim with in the Courts jurisdiction.

Accrued Jurisdiction : can hear any case where one of the grounds lay within its

jurisdiction and that ground is not totally distinct from the other grounds which are

outside its jurisdiction.

Hears appeals from territory Supreme Courts

Federal Magistrates Court p. 307

Est. 1999, jurisdiction is entirely Civil (damages up to $750,000), and has shared

jurisdiction with Federal Court in administrative law.

Appeals go to Full Court of Federal of Family Court.

Family Court p. 308

Est. by Family Law Act 1975 (Cth). Original Jurisdiction relates to matrimonial cases,

custody, adoption in territories.

Can exercise associated jurisdiction in same way as Federal Court, and has also

exercised accrued jurisdiction at times.

Federal Tribunals p. 308

Exercise administrative not judicial power & so are subject to review in admin law

jurisdiction of Federal Court

Have statues outlining jurisdiction e.g. Refugee Review Tribunal, Social Security

Appeals Tribunal, Administrative Appeals Tribunal.

Cross VestingJurisdiction of the Court (Cross-Vesting) Act 1987 (Cth) vested non-federal jurisdiction of

state courts in Federal Court and vested most federal jurisdiction in State Supreme Courts.

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Cross vesting was struck down by High Court in 1999 (Re: Wakim) as cannot vest state power

in federal courts. P. 309

Access to Courts – Problems p. 318

1. Cost: most people cannot afford to go to court over small matters and as a result

problems may exist for quite a while before the courts address the problem.

2. Courts are foreign to most people: the language and process is so complex that most

people do not have anything beyond a very basic knowledge of the law.

3. Interpreter difficulty & discretion: interpreters are at the discretion of judges, but judges

assessment has been found to be lacking – Access to Interpreters Report (1991) p

322

NB. Non-verbal and verbal communication issues p. 323

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Judicial Decision Making & Statutory Interpretation

Process of Bill through Parliament p. 388In House of Origin

1. Bill

2. Notice of Motion by minister or private member

3. Introduction and First Reading of the bill (bill becomes a public document)

4. Second Reading of the bill (minister makes second reading speech which is later

important in the interpretation of the bill)

5. Debate on the bill

6. Committee Stage (house sits as committee and examines the bill clause by clause and

makes necessary amendments, then it is voted on)

7. Third Reading (third reading is made by the minister, may be more date and final vote is

taken)

In Second House

1. First Reading

2. Second Reading

3. Committee of the Whole

4. Third Reading

If bill is passed in the second house it returns to the house of origin where it is certified and

given to Governor General for assent. Then it becomes an act. NB date of commencement

varies according to state (may be on the day or after assent)

Classification of Statutes p. 390Public vs. Private

Most statues are public intended to operate on public at large, there are, however, some

private acts.

Private acts have to be specially proved, judges are not required to have knowledge of

private acts. They are rare in present time though. Traditionally private acts were

commonly used in cases of divorce when it was not readily available.

Subordinate/Designated legislation

Sometimes the exact details of an Act have not been finalised, so Acts will often contain

authority for another body to make delegated legislation e.g. Local Government Act

1993 (NSW) allows councils to make by-laws.

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Judicial Review is available to determine if the designated legislation is within the scope

of the original Act. Can be done by The Supreme Courts, High Court and Federal

Courts.

Codes and Consolidated statutes

Consolidated statutes: brings together a number of statutes that cover the same

subject. A consolidation repeals the existing legislation and replaced it with law which

represents the law as it has been amended.

Code: incorporates not only the amended legislation but also the case law so that the

code exhaustively states the law for that subject area e.g. QLD, WA, TAS & NT have

criminal codes. NB codes common in civil law countries.

Re interpretation of codes: because they are meant to be exhaustive judges can refuse

to examine previous cases.

Rules of Statute Interpretation p. 3974. Literal Rule: what does the language mean in its ordinary and natural sense

5. Golden Rule: court should modify the meaning under the literal rule if the result would

be absurd, repugnant or inconsistent with the legislation

6. Mischief Rule: look at the mischief the parliament was attempting to prevent

Regina v Ojibway (1956) p. 397 JOKE CASE

Example of a ridiculously literal approach to statutory interpretation in which the judge

found that a pony was a bird.

Defendant used a downy pillow instead of a saddle, shot pony after it broke its leg.

S1 of the Small Birds Act defines a bird as a two legged animal covered in feathers

“Therefore, a horse with feathers on its back must be deemed for the purposes of this

Act to be a bird”

Other rules

Noscitur a sociis (words are limited by the context in which they appear)

Ejusdem generis (‘of the same kind’ – where there is a general phrase and specific

words of same kind, we read the general phrase in terms of that specific list e.g. lions,

tigers, snakes and other animal would not mean sheep, means dangerous animals)

Expressio unius est exclusio alterius (if something is expressly referred to, that will

exclude other matters)

Presumptions p. 400

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Some presumptions of interpretation of statues e.g. parliament does not interfere with

fundamental rights, statutes are presumed not to be retrospective, presumed not to bind the

Crown, presumed not to be extraterritorial.

Potter v Minahan (1908) p. 401

Respondent re-entered the Commonwealth from China, was born in Victoria to a British

woman and Chinese father. He failed the dictation test for immigrants. Magistrate found

that the charge of prohibited immigrant failed as he was not an immigrant.

O’CONNOR J “Ah Sheung v Lindberg[17]: - ‘In its ordinary meaning immigration implies

leaving an old home in one country and settling in a new home in another county, with a

more or less defined intention of staying there permanently or for a considerable time.’

To describe as an ‘immigrant’ a person who is coming back to the country which is his

home is a contradiction in terms.” GRFFITH CJ & BARTONJ agreed. ISSACS and

HIGGINS JJ found similarly but on the basis that the dictation test was improperly

administered.

Found for respondent. Yes he failed dictation test, but this didn’t matter as he wasn’t an

immigrant and didn’t need to take it.

Royal College of Nursing of the United Kingdom v Department of Health and Social Security [1981] p. 406

Abortion not illegal “when a pregnancy is terminated by a registered medical

practitioner” in certain circumstances. If nurses administered the prostaglandin fluid that

induced the termination, were they in breach of The Abortion Act 1967 (UK)?

Lord WILBERFORCE (diss): if the section is perceived as “by a registered medical

practitioner in accordance with recognised medical practice” that is not interpretation by

rewriting. If the parliament had meant that (and it has put such wording in other Acts)

then they would have written that. Found nurses not able to administer the

prostaglandin

Lord DIPLOCK: “It is in my view evident that in providing that treatment for termination

of pregnancies should take place in ordinary hospitals, Parliament contemplated that

(conscientious objections apart) like other hospital treatment, it would be undertaken as

a team effort in which, acting on the instruction of the doctor in charge of the

treatment… other members of the hospital staff would each to those things forming part

of the whole treatment” p. 413

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o “what it requires is that a registered medical practitioner… should accept

responsibility for all stages of the treatment” p. 413

o “the doctor need not do everything with his hands” p. 414

The Modern Approach to Statutory Interpretation Increasingly taking the common law purposive approach, now legislation to this effect.

Acts Interpretation Act 1901 (Cth) : requires the courts to take a purposive approach if

there is any ambiguity and allows the use of extrinsic materials to assist in interpretation

e.g. royal commission reports, treaties, parliamentary committee reports, second

reading speeches.

Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) p. 25

See above (International Law)

P. 29 MASON CJ & DEANE J reject a narrow interpretation of ‘concerning children,’

deciding that a wide-reaching interpretation is more appropriate.

Kingstone v Keprose (1987) p. 415

MCHUGH JA

courts don’t follow literal rule anymore “The courts no longer…” p. 418

modern courts use the purposive approach, grammatical meaning just the starting point

departing from the literal rule is as MASON and WILSON JJ say in Cooper Brookes that

it “extends to any situation in which for good reason the operation of the stature on a

literal reading does not conform to the legislative intent as ascertained from the

provisions of the statute including the policy which may be discerned from those

provisions” p. 419

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Classification of Australian LawVines, Chapter 11

Traditional Classification p. 267

Two of the strongest distinctions in Australian Law are based on Australia’s historical heritage:

private vs. public law and common law vs. equity

Public vs. Private

Public Private

Law Equity

Constitutional Administrative Criminal Tort Contract Property Family Commercial

Taxation Industrial Succession Intellectual Property Corporate

The usual way to distinguish between public and private law is that in public law one of

the parties will be a state entity – the legal personality will refect the public nature of the

case e.g. Attorney General v someone. In public law, political theories such as

democracy and representative government are considered.

Private law is about the relationships between people, the state is not involved and

public policy rarely factors in and as such different reasoning is used.

NB: this distinction is not always clear cut e.g. suing the government for negligence is a

private action against a public body.

R v Wright (2001) p. 273

FACTS:

Wright and friend were 17, got drunk, stole a car, Wright crashed it and Watson died.

Pled guilty to theft and not guilty to culpable driving (involves gross negligence). Wright

appealed on basis of judge’s misdirection of jury re: gross negligence.

CRUCIAL ISSUE: Did the judge misdirect the jury?

JUDGMENT:

CALLINAN J: not he didn’t. He referred to civil law negligence but correctly directed the

jury as to criminal negligence.

NB: the interaction between the civil (private) law and criminal (public law)

R v Wacker [2003] p. 275

FACTS:

Wacker drove a lorry with 60 hidden Chinese people aboard sealed in bar one air vent.

He sealed vent before crossing the English Channel to prevent chance of discovery, 58

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people suffocated. Charged with 58 counts of criminally negligent manslaughter and

conspiracy to facility illegal immigration.

Appeal conviction, using the Civil Law defence that mutual engagement in illegal activity

cannot result in a duty of care (ex turpi causa).

CRUCIAL ISSUE: Can a civil law defence be used response to a criminal law charge?

JUDGMENT: KAY LJ

The criminal law’s function is to protect citizens, has its own public policy aim which may

require a different approach to the involvement of the law..

“The duty to take care cannot, as a matter of public policy, be permitted to be affected

by the countervailing demands of the criminal enterprise.” i.e. as it would be repugnant

to the function of criminal law P. 277

“Whichever way they might have been characterised in a civil claim had no relevance to

the issue that the jury had to decide” p. 278

Common Law vs. Equity

Characteristics of equity: p. 279

Developed in the Court of Chancery, it supplements and corrects the common law in

instances of unconscionable conduct.

Equitable Doctrines include conversion, ademption, satisfaction, performance,

marshalling, equitable relief etc.

Debate over whether equity is based on an underlying principle. Even if it is not, equity

involved a set of established rules- “conscience moulded by rules”

Harris v Digital Pulse Pty Ltd (2003) p. 281

FACTS:

Harris was under an employment contract with Digital Pulse not to compete with DP, but

started up a company and stole some of DP’s clients while still working for DP.

Trial judge found they had breached their fiduciary (equitable) and contractual (common

law) duties of loyalty and were ordered to pay equitable compensation and exemplary

damages.

Appealed against exemplary damages which are a common law remedy. (was allowed)

CRUCIAL ISSUE: Can exemplary damages be awarded in equity?

JUDGMENT:

SPIGELMAN CJ

“The fact that exemplary damages are awarded in tort is, in my opinion, not a basis for

asking “Why not?” in equity.” p. 282

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Analogy between tort and equity cannot be drawn as “Each is a distinct body of law with

its own integrity.” P. 283

prefers analogy to contract p. 284 and find that punitive damages are incompatible with

a contractual relationship of this kind.

MASON P (diss)

“The principles under which equitable compensation is payable differ in certain aspects

from those governing an award of compensatory damages at common law.” P. 287

Rejects assertion of fusion fallacy. At 145

HEYDON JA:

Exemplary damages are punishment that results in the confusion of civil law which is to

compensate, and the criminal law which is to punish

No power or authority to support awarding exemplary damages for equitable wrongs

NB. Fusion fallacy: the idea that doctrines of different areas of law and be transported into

other areas.

Private International Classifications p. 268

1. the law of the forum, the lex fori

2. the law where the wrong occurred, lex loci deliciti

3. the law of the person concerned, lex domicilli

Adversarial vs. Inquisitorial ClassificationTable of Differences p. 270

Adversarial: parties are in charge of the action (they initiate, collect evidence, call witnesses).

Parties present their case to a neutral tribunal (judge/jury). Judges are mediators and

interpreters of they law, their judgements become law, in cases of juries they direct the jury.

e.g. UK, Australia, Canada, US

Inquisitorial: judges take an active role, directing parties and calling witnesses, judges

questions witnesses, juries are rare. e.g. civil systems France, Germany, Italy

Increasingly each of these systems is adopting parts of the other. E.g. in Australia, the

Family Court has adopted some of an inquisitorial style, no jury, partly judge directed.

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“Notwithstanding the supposed variation between the adversarial and non adversarial

models there is a significant degree of convergence in the way both common law and

civil code countries no approach civil disputes” at 1.111 The Australian Law Reform Commission Report no. 89 Managing Justice: Continuity and Change in the Federal Civil Justice System (2000) p. 271

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Intentional TortsVines Chapter 14

Trespass on the person: assault, battery & false imprisonment

Trespass on the case: negligence

Distinction: “took the settled distinction to be that where the injury is immediate, an action of

trespass will lie; where it is only consequential, it must be an action on the case”

BLACKSTONE J in Scott v Shepherd

Assault: when a defendant creates an apprehension of fear in the plaintiff of imminent hard or

direct offensive contact

RULE: Has the defendant created a reasonable apprehension of harm in the plaintiff? Would a

reasonable person observing objectively think so?

Battery: where there is a voluntary application of direct force to the person without consent

RULE: Has the defendant voluntarily applied direct force to the plaintiff without their consent?

Tuberville v Savage (1669) Established that gratuitous threats are not assault.

Tuberville says that he would fight Savage “if it were not assize time” (judges in town),

because he explicitly said he wouldn’t harm Savage there can be no reasonable

apprehension of harm.

Scott v Shepherd (1733) Established that assault need not be direct

FATCS:

Shepherd throws squib into crowded marketplace, shopkeeper Yates sees it and throws

it away, shopkeeper Ryall then sees it and trows it again and in doing so the squib

strikes Scott’s eye and explodes, blinding him in one eye.

Scott sues for assault, Shepherd argues the action is not maintainable.

JUDGMENT:

Court finds that the action is maintainable. The injury sustained was sufficiently

immediate to Shepherd’s actions.

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Court found that though it was not directly by his hand that the injury occurred (in

physical terms) that he ought to have known that a lit squib in a crowded marketplace

would cause mischief, and that this knowledge establishes a form of immediacy. i.e. the

injury was a direct result of his first throw.

Barton v Armstrong (1969) Established that telephone threats may constitute assault

FACTS:

Barton threatened Armstrong over the phone, sued for assault.

JUDGMENT:

What is key in assault is the creation of an apprehension of imminent harm in the mind

of the plaintiff.

Telephone threats, by their nature, are sufficiently immediate -the caller could be

outside the door, or in another country, they don’t know – so it is a “matter of the

circumstances” case p. 455

Distinguished from Tuberville and Savage – in that situation the threat was “just words”

as the judges were in town so he knew he wouldn’t do anything, he said words to this

effect also.

Therefore to a reasonable observer, a telephone threat may constitute a reasonable

apprehension of imminent harm, and can be found to be assault.

Found for plaintiff, assault established.

Zanker v Vartzokas (1988) Criminal case

FACTS:

Young lady accepted lift from young man who asked for sexual favours and told her he

and his mate would ‘fix you up’ when they get to his place. She jumped out of the car

travelling 60kmph and injured herself. Man was charged with assault and appealed on

the basis that the harm was not imminent.

JUDGMENT:

Applied Barton v Armstrong.

Idea that “the feared physical harm did not have to e immediate. The threat could

operate immediately on the victims mind but in a continuing way.” Case p. 3

“her fear was a continuing fear induced by his original words in a situation where he

remained in a position of dominance and in a position to carry out the threatened

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violence at sometime not too remote, thus keeping the apprehension, the gist of assault,

ever present in the victim’s mind.” Case p 6

Refers back to magistrate to convict for assault.

Rixon v Star City [2001]FACTS:

Mr Rixon alleged battery and assault when a security guard at Star City made contact

with his shoulder and asking “Are you Brian Rixon?” to get him to accompany him.

JUDGMENT:

“the absence of touching in anger or hostile attitude by the persons touching another is

not a satisfactory basis for concluding that the touching was not a battery” case p. 112

However, as the contact was considered not outside the bound of “ordinary conduct of

daily life” (for which we all give implied consent to) the court found no battery.

The court also found that the security guards actions lacked the “necessary intention to

create in Mr Rixon an apprehension of imminent harmful or offensive conduct” therefore

found no assault.

Appeal denied

Defences to Intentional Torts (Intentional Torts Handout)

People may explicitly or impliedly consent to physical contact.

Implied Consent – we all give implied consent for physical contact experienced in the course

of ordinary life. E.g. jostling to get on the bus, a firm handshake.

Marion’s Case (1992): people may impliedly consent to some everyday physical

contact.

Collins v Wilcock: implied consent “by all who move in society and so expose

themselves to the risk of bodily contact” that this is “physical contact which is generally

acceptable in the ordinary conduct of life”

Explicit Consent: must be real (i.e. they know what they are consenting to) and freely given

(no coerced). e.g. for consent to surgery, must have full capability to consent, and know what

they are consenting to – cannot consent to everything and anything.

NB Gillick Competent: a child is competent when they “achieve a sufficient understanding and

intelligence to enable him or her to understand fully what is proposed.”

e.g. R v Minor: anorexic 16yo refused treatment, not found to be Gillick competent

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