lOMoARcPSD|52115769

Lecture Notes

Legal Process and Statutory Interpretation (The University of Notre Dame (Australia))

Scan to open on Studocu

Studocu is not sponsored or endorsed by any college or university

Downloaded by Nancygoodluck Bypatisan (nancygoodluckbypatisan@gmail.com)
 lOMoARcPSD|52115769

WEEK 1

Law requires a broad framework of institutions, processes and rules which participants in
the legal system recognise as binding (even if they don't know all the particular laws!). Those
processes may or may not involve a parliament, and parliament is often only one source of
law. Reference to punishment is not sufficient as there are extra-legal punishments and
many laws do not attach punishments. Finally, while law might require broader social
recognition, citizens do not need to consent to any particular rule for it to be law.

Legal Ethics and Professional Responsibility: The Professional Responsibilities of Lawyers

- Academic discipline plus skills needed to be lawyers and well-rounded, ethical
lawyers
- Lawyers promote justice and serve the community
- “The professional value of the need to ‘promote justice, fairness, and morality’ is an
essential ingredient of the legal profession”
- “Success is not measured by a lawyers financial reward but the commitment to a
just, fair and moral society”

Successful law students….

- Attend Class
- Make notes
- Extra readings
- Reference
- Ask for help
- Plan deadlines and Time manage

- Plagiarism is using people’s words or ideas without proper attribution

- Collusion is another form of plagiarism involving the unauthorised collaboration of
students

WEEK 2
- Social morality over time  law reflects
- Separation of powers – judiciary, executive, legislative

SOAP BOX
What is it?
- Research
- Basic structure
- Combating nerves
- Presenting information
- Leading class discussion

What is the point?

- Demonstrate researched knowledge
1. Original
2. Creative

Downloaded by Nancygoodluck Bypatisan (nancygoodluckbypatisan@gmail.com)

 lOMoARcPSD|52115769

3. Informative
- Generate class discussion/activity
4. Involve class in the topic
5. Giving them something to do makes the topic real
6. Enthusiasm about the topic

Research topic and become the expert

- What are the main issues associated with the topic?
- Text? what opinion/argument/ thesis is the author trying to express?
- Read further! Opposition?
- Express your own conclusions!
- Evaluate the strengths and weaknesses

Timing
- information available - how much you can cover?
- how much detail?
- delete less important topics - rather than hurrying to cover everything
- divide the material into sections, with subject headings
- if you write a 'script', allow roughly 400 words for each five minutes – in your
Soapbox you only have 5-7 minutes!

Structure
- Clear, organized
- introduction, body and conclusion
- Linked clearly
- A poorly structured talk will confuse and frustrate an audience.

Introduction
- Greet the audience
- Introduce yourself
- Capture the audience`s attention
- Signpost what you are going to talk about.
- State:
1. what your topic is
2. what your presentation will cover
3. an outline of the main points
4. any necessary history or definition of terms.

Body
- develop the main points of your talk
- present examples and evidence.
- Organise information:
1. chronological order,
2. theme
3. order of importance.
- use transitional phrases

Downloaded by Nancygoodluck Bypatisan (nancygoodluckbypatisan@gmail.com)

 lOMoARcPSD|52115769

a. Firstly, in addition
b. Secondly, however,
c. Finally
- Emphasise important information.
d. Tell your audience when information is particularly important or
interesting.
e. Tell them why.

Conclusion
- summarise main points
- no new information
- show that you have covered all the points you made in your introduction.
- signal your conclusion
1. ‘In conclusion’ ‘to conclude’ ‘to wrap up’
- Restate the main points
- Re-answer the question

Presenting your information

- Visual aids can enhance a presentation if used well
- Slides, Videos, Handouts, Props ,Whiteboard - Not for this Soapbox
- You can and should seed questions
- When you use visual aids like PowerPoints keep them simple
- Key ideas
- Not too many points
- visualise abstract concepts –like learning the law
- compare information- numbers, graphs, charts

What makes being a lawyer so hard?

- Although this is a first year Course  some of the key skills of lawyering:
1. reading hard cases – both re language and in issues
2. interpreting Statute
3. grappling with challenging issues whilst keeping your emotions in check
4. developing confidence
5. understanding ethics and professional responsibility
- Forming an opinion for yourself
- Making up your own mind – the criteria to use
- Thinking for yourself

The Value of a Law Degree

- Why study law?
1. Career
2. Impacts every area of our life
- Insight into the political, moral and cultural make-up of our society: see The Hon T.F.
Bathurst AC Chief Justice of NSW Opening of Law Term Address ‘Law as a reflection
of the ‘moral conscience “ of society,"

Downloaded by Nancygoodluck Bypatisan (nancygoodluckbypatisan@gmail.com)

 lOMoARcPSD|52115769

http://www.supremecourt.justice.nsw.gov.au/Documents/Publications/Speeches/20
20%20Speeches/Bathurst_20200205.pdf
- Promoting justice and serving the community
- Key tool used in changing a society
- Allows you to help others
- Studying law allows you to develop your
1. Communication skills  The ability to speak clearly and audibly, to write
effectively and appropriately, and to argue convincingly.
- Analytical skills
2. The ability to identify the key elements of an issue and how they relate to each
other.
- Interviewing and counselling skills
- Dispute resolution skills
- Problem solving especially option generating skills.
- Research skills
- Organisation and management skills
- Ability to recognise and discharge ethical responsibilities
- Ability to identify ethical issues
- Ability to respond to ethical issues and exercise professional judgment
- Career Pathways – see Course Reader
1. Solicitor or barrister (sole practitioners/cab rank rule
2. Private - ‘In-house’ solicitor – e.g. hospitals, educational institutions, financial
institutions, businesses, unions.
3. Public or Government – DPP, Foreign Affairs, etc
4. Academic
5. Other legal work – management, journalism, politics, etc.
6. Non-legal work – politics, research etc etc

Advice for studying law

Common experiences of first year students
1. Feeling overwhelmed
 Natural, will quickly settle as the semester progresses
 Think of studying law as learning a new language – there will
be new terminology and a lot of new concepts and ideas
 How much reading is there to do! That is why studying law is
called “reading the law” in the UK
2. Unsure about whether course is appropriate
 Take sufficient time to find out about the course before making a decision
3. Feeling out of place
 Get involved – go to all classes, join clubs, start up clubs, study groups,
visit Student Life office, join the St Thomas More Society, NSW Law
Society Young Lawyers, seek a position in NDSLS etc
4. Lack of Balance
- Need to ensure you have an appropriate balance between:
 Study
 Family

Downloaded by Nancygoodluck Bypatisan (nancygoodluckbypatisan@gmail.com)

 lOMoARcPSD|52115769

 Friends
 Sport
 Work
 Spiritual/religious faith commitments
 Employers do look at marks – they are very important-but they also want
people who can show resilience, versatility, confidence, good people
skills, people they think can succeed and who they would like to work
with
5. When it comes to employment in the profession as a Summer Clerk, paralegal or
graduate:
 Law is a meritocracy (but knowing people does not hurt)
 high grades matter – it is very competitive and for most
firms they are a given i.e. poor grades can rule you out from
some firms before you even get an interview
 high grades are not enough – employers look for people skills, confidence,
reliance, ability to work in a team, lifelong learning skills (Logos can help
here)– the whole person. Work experience, leadership roles in any
organizations (NDSLS, St Thomas More. etc), charitable work can all be
relevant;
 elective choices or work experience which demonstrate interest in the
relevant field e.g. family law, health law, insolvency law etc
6. Regularly review material
7. Study groups but avoid collusion
8. Get involved
 Develop contacts
9. Time Management
 Timetable – weekly and semester
 Plan for assignments – break down into steps, allocate time and date of
completion for each step
10. Important to get practical experience
11. A lawyer is more than simply someone who can find the relevant law and apply it
to a situation
12. Other important skills
 Understanding people and what they want
 Being able to work well with others
 Managing time, people and information.
 Marketing
 Lifelong learning skills
 Reliability, confidence, trustworthiness
 Clear thinking and clarity of written and verbal expression
 Commercial nous – understanding your client’s business

Defining Law and the Legal System

Defining the Law
- Depends on focus
 Examples
™ Statutes

Downloaded by Nancygoodluck Bypatisan (nancygoodluckbypatisan@gmail.com)

 lOMoARcPSD|52115769

™ Judicial interpretations and common law

™ Enforcement (e.g. police refusing to enforce the law)
™ Interpretation
™ Ethics
™ Policy
™ Theory (jurisprudence)
™ Perspectives (i.e. natural law, positivist, Judeo-Christian, Sharia,
feminist, queer theory, critical race theory, Marxist)
™ Media/public
Definition: Law
- Origin of ‘law’
 Old English term ‘lagu’ meaning ‘something laid down or fixed’
- Macquarie Dictionary
 the principles and regulations emanating from a government and applicable
to a people, whether in the form of legislation or of custom and policies
recognised and enforced by judicial decision
- Three key elements:
1. System of rules and principles
2. Enforced by established institutions
3. Recognised as binding by society

Definition: Legal System

- A legal system may be defined as that framework of rules and institutions within a
community or state, recognized by its citizens as regulating the conduct of citizens for
their mutual benefit.

Downloaded by Nancygoodluck Bypatisan (nancygoodluckbypatisan@gmail.com)

 lOMoARcPSD|52115769

WEEK 3
Western Legal Tradition
 Western = originating in Greek, Roman, Judeo Christian tradition in European
nations & former colonies
 Western is no longer geographically confined notion – refers to western
mode of conceptualising the operation of ‘Law’ – i.e. a contextual approach
to definition of law
 Professor Patrick Parkinson identifies three hallmarks of the operation of Law
in societies which have adopted the Western Tradition:
1. Autonomy of Law
2. Centrality of Law
3. Moral Authority of Law

Autonomy of Law
 Law is an autonomous discipline –
 conceptually distinct from custom, morality, religion or politics - reflective of
origins in social values but translates these through a process of legal
reasoning into unique legal norms
 institutionally separate (i.e. law has its own buildings/profession/ scholarship)
 legal rules are distinct from moral norms
 self sustaining organism which asserts its independence from political power
and subjugates political power to its authority (i.e. basis of Dicey’s rule of law)

Centrality of Law
 Law pervades every aspect of society and is the primary means of social control
 Law is also primary agent of social change (i.e. people seek to achieve social change
through the law rather than through a coup/ revolution/ coercion)
 Do changes in the law reflect or affect social change?
 Trends in Australia’s divorce rates
 Trends in South Australia’s abortion rates: South Australian Abortion
Reporting Committee Tenth Annual Report – For the Year 2015 (March 2017)
(tabled in SA House of Assembly 5 Dec 2015) (on Blackboard)

Moral Authority
 Fidelity to Law - commands a high level of respect
 Adherence to law by governments and citizens – in accordance with Rule of Law
 Procedural fairness of judiciary in application of law

Rule of Law
 A V Dicey’s 19th C - Introduction to the Study of the Law of the Constitution
(Macmillan, 10th Ed, 1959) described notion of Rule of Law:

Downloaded by Nancygoodluck Bypatisan (nancygoodluckbypatisan@gmail.com)

 lOMoARcPSD|52115769

1. “No man is punishable or can lawfully be made to suffer in body or goods except
for a distinct breach of law established in the ordinary legal manner before the
ordinary courts of the land” (188)
2. Every man, whatever be his rank or condition is subject to the ordinary law of the
realm and amenable to the jurisdiction of the ordinary tribunals” (193)
3. “The general principles of the constitution … are… the result of judicial decisions
determining the rights of private persons in particular cases brought before the
courts” (195)
 Translation of Dicey’s Principles of the Rule of Law:
1. Supremacy of Law
 Government and people must act according to law (e.g. a person can only
be punished if they have breached a law)

2. Equality before the law

 all people, including government, are equal before the law

3. People empower the Constitution

 The rights of individuals are the basis of the validity of the Constitution

 Practical application – manifests in modern era as a governance issue:

 Government should be through law rather than based on exercise of arbitrary
power
 Rule of Law underpins success of Western Legal Theory in producing a system of
government which fosters social, economic, environmental benefits for society
 When a Court interprets legislation in an unexpected and “new” manner which was
not the legislative intention – what does this mean for the rule of law?
 Rule of Law (supremacy of law principle) enshrined in s5 of the Constitution
 This Act, and all laws made by the Parliament of the Commonwealth under
the Constitution, shall be binding on the courts, judges, and people of every
State and of every part of the Commonwealth, notwithstanding anything in
the laws of any State.
 People empower the Australian Constitution
 Referendum to approve change of Constitution
 Section 128 – Process for amending the Constitution

Origins: Western Legal Tradition

 Greek philosophy
 Aristotelian teleological conception of law and dialectic methodology
 Roman law
 Emperor Justinian’s (527-565AD) Corpus Juris Civilis – codification of law from
authoritative sources: i.e. decisions and decrees of Emperors and writing of
Jurists
 Judeo-Christian Theology
 Widespread adoption of Christianity in Greek and Roman world
 ‘Christianity was to the formation of the Western legal tradition as the womb is to
human life’ (Patrick Parkinson Tradition and Change in Australian Law 5th Ed (2013
Lawbook) [2.70] 29

Downloaded by Nancygoodluck Bypatisan (nancygoodluckbypatisan@gmail.com)

 lOMoARcPSD|52115769

 In 1676 English Lord Chief Justice Sir Matthew Hale in Rex v Taylor (1676) 1 Vent 293
stated that “Christianity is parcel of the laws of England.” (Quoted by Roy Williams,
God Actually (ABC Books,2008))
 On 18 April, 2014 Chief Justice Moore of the Supreme Court of Alabama in his
judgment in Ex parte Sarah Janie Hicks (2014) 1110620 (31):” when it was signed by
our Founding Fathers in 1776, the Declaration returned to first principles of God, His
law, and human rights and government.”
 Not everyone sees these Christian roots as positive  We live in a world, indeed in a
nation [the US] where religious ideas have been taken up by out-of-tune instruments,
and many in the West, especially under the age of thirty, now believe the melody
itself is detestable. (David N Hempton, “Christianity and Human Flourishing: The
Roles of law and Politics,”(2017) 12 Journal of Law & Religion 1, 58)
 26% of Australians have a negative view of Christianity. “
 [T]he Christian tradition has been remarkably intolerant [to homosexual acts].”
Johann Norberg, Progress (OneWorld, 2016) 183.
 Christian morality seems to be out of step with the moral zeitgeist > marriage,
euthanasia, abortion, the treatment of gender dysphoria and many other issues

Origins Timeline
 476AD - fall of Western Roman empire
 800 AD - idea of ‘Roman’ empire / law persisted with coronation of Frankish ruler
Charlemagne & Carolignian dynasty as Holy Roman Emperor
 9th C – Holy Roman Empire (Germanic rulers) continued link to Roman law
 11th C - Medieval rediscovery of Roman Law (post dark ages)
 Corpus Juris Civilis
 Code (Law of Emperors)
 Novels (Justinian’s own Imperial law)
 Digest (writings of jurists)
 Institutes (first legal textbook)
 Development of discipline of law - Medieval society organized the study of law at first
universities in Bologna
 Glossators & Commentators developed law based on Authoritative texts of Corpus
Juris & writings of Aristotle.
 Roman & Greek law used to reinterpret local laws and to fill gaps in customary law of
European territories.
 Medieval church - a theological and political institution with broad transnational
powers (prior to emergence of modern nation state in Peace of Westphalia)
 Canon law governed the Church and operated in parallel with Roman law system –
two systems shared concurrent jurisdiction in certain fields – lead to cross pollination
 English exception to influence of Roman law – common law developed existing
customary law through the practice of hearing cases in the royal courts and travelling
Assizes and transmission of this law in the Inns of Court in London

Legal theory
 Theory – explanation i.e. how?
 Legal Theory – both a definition and explanation of concept of law

Downloaded by Nancygoodluck Bypatisan (nancygoodluckbypatisan@gmail.com)

 lOMoARcPSD|52115769

 Multiple conceptualisations of ‘iustitia’ i.e. justice or nature and operation of law

in human society
 Classified into schools of thought e.g.
 Natural Law
 Positivism

Natural law: Greek philosophy

 Aristotle observed natural order to find the essential nature of a thing from its
purpose or end in order to derive ethical norms (teleological approach).
 Although law was derived from nature - such laws were not self evident and required
discovery using human reason to develop ethical norms.
 Aristotle’s teleological conception of law –
 Human beings exist to fulfil their essential nature (i.e. mankind is created for
a purpose)
 Legitimate to reason from our observations of the nature of mankind to
formulate moral precepts which enable us to realise our true nature and fulfil
our destiny as human beings
 EG: Man is by nature inclined to civic existence – family and the state are both
communities established by nature in order to provide for the needs of life and
continues
 Therefore, reason must develop laws to uphold the creation and operation of the city
state in order to sustain community and needs of mankind.
 ‘In the first place, there must be a union of those who cannot exist without each
other; namely of male and female, that the race may continue (and this is a union
which is formed, not of choice but because, in common with other animals and with
plants, mankind have a natural desire to leave behind an image of themselves).’ 
Aristotle, Book I of The Politics

Natural law: Roman Law

 Ulpian (3rd C) defined natural law as ‘that which all animals have been taught by
nature … From it comes the union of man and woman called by us matrimony, and
therewith the procreation and rearing of children; we find in fact that animals in
general, the very wild beasts, are marked by acquaintance with this law’
 i.e. just as nature follows various physical laws, so there are moral norms
which are observable in the natural order
 Cicero (106-43BC) held that natural law originated from divine will and could be
discerned by the application of human reason.
 Natural law did not depend for its validity and status as law being recorded as ‘law’
by any human authority . Accordingly only laws in harmony with natural law/justice
could truly be called laws.

Natural law: Judeo-Christian Theology

 Natural law is not merely discoverable by reason by is written on people’s hearts by
conscience
 St Thomas Aquinas (13th C) is the most renown proponent of Natural Law and
formulated a more holistic understanding of the operation of Natural law in the
world in his work Summa Theologica.

Downloaded by Nancygoodluck Bypatisan (nancygoodluckbypatisan@gmail.com)

 lOMoARcPSD|52115769

 Reconciled pre-existing dichotomy in natural law between faith & reason i.e.
intertwined rather than disparate concepts
 Conceptualised natural law as subcomponent of a broader interaction between four
types of law.
 St Thomas Aquinas theorised:
1. Eternal Law – exists in mind of God but generally not revealed to human
perception i.e., timeless universal order…of providence perceived as law’
2. Natural Law – the part of eternal law which could be known by intelligent
creatures using the light of natural reason
3. Divine Law – the law revealed by God in the Scriptures to take mankind beyond
the limitations imposed by our own unaided understanding.
4. Human Law – the positive law of the community necessary to give specific content
to the general principles of natural law.

Natural law: Hobbes

 Hobbes’ work Leviathan (1651) presupposed that the state of nature is a fallen
society at war with itself with an instinct toward self-preservation in relation to which
reason dictates existence of natural laws which take humankind out of this state of
war to allow for mutual self-preservation
 Hobbes’ theories justified the existence of an unlimited and absolute ruler in
which people surrendered their natural liberty to a sovereign who would maintain
peace.

Natural Law: Locke

 Locke’s Second Treatise on Civil Government (1690) presupposed the fundamental
tenet of natural law: that God had prescribed rules of conduct which were
discoverable by reason and objectively valid and could be known with certainty.
 Locke’s contribution was in presupposing a different ‘state of nature’ from which
natural law is derived.
 Locke’s state of nature is one in which all people are of equal status and possess
corresponding natural rights: rights to life, liberty and property inhering in each
individual.
 Locke thought government and law existed to protect the natural rights of its citizens
i.e.. rights which existed in the state of nature.
 Civil government was based on consent.
 Locke’s work relied on to justify English Revolution of 1688
 Led to idea of ‘Rights’ as natural and fundamental limits which governments may not
trespass
 an article of faith in the French and American Revolutions.

Positivism
 School of legal theory which emerged as a critique of Natural Law
 Sought to explain ‘gap’ between Natural law and ‘reality’ of civil law regimes in
autonomous nation states.

Montesquieu

Downloaded by Nancygoodluck Bypatisan (nancygoodluckbypatisan@gmail.com)

 lOMoARcPSD|52115769

 Montesquieu undermined idea of a universal natural law, discernible by reason, to

which human laws ought to conform.
 Montesquieu saw regional and national laws differed due to adaption given history,
tradition, and circumstances.
 Montesquieu thought laws should be adapted to the people

Hume
 David Hume argued against deriving a theory of moral obligation from statements of
empirical fact
 He critiqued Natural Law – he said it inferred norms from facts (of nature) i.e. he said
you can’t get an ‘ought’ from an ‘is’.

Bentham
 Bentham criticised subjective nature of notions of ‘nature’ of natural law theorists.
 Bentham proposed a utilitarian conception of law that it should lead to the greatest
happiness of the greatest number

Austin
 Austin reinforced Bentham’s distinction between law and morality i.e. between how
law is actually defined and what law ought to be.
 Austin affirmed that: ‘the existence of law is one thing; it’s merit or demerit another’.
 Accordingly, Austin distinguished the laws of nature (divine law) from ‘positive law’
i.e., law existing not by nature but by position.
 Austin conceptualised each law as a species of command – although only the
commands which proceed from a sovereign could be recognised as law.
 Austin’s ‘command’ has three elements:
 A wish or desire conceived by a rational being, that another rational being
shall do or forbear
 An evil to proceed from the former and to be incurred by the later in case the
latter comply not with the wish
 An expression or intimation of the wish by words or other signs.

Hart
 Professor H L A Hart’s The Concept of Law (1961) is regarded as the peak of Positivist
legal theory.
 Hart suggests that all legal rules (in contrast to general social obligations) share two
features:
1. Obligation (similar to natural law)
2. Systematic quality dependant on Primary rules which set basic obligations and
Secondary rules which supplement the operation of Primary obligations.
 Hart theorised that Laws must include Secondary Rules which comprise:
 Rules of Adjudication
o i.e. powers conferred upon officials to interpret the meaning and the
ambit of the primary obligations to adjudicate on whether the rule has
been breached and to enforce the obligations by punishment or
otherwise.
 Rules of Change

Downloaded by Nancygoodluck Bypatisan (nancygoodluckbypatisan@gmail.com)

 lOMoARcPSD|52115769

o i.e. means of changing the primary obligations so as to eliminate

redundant law and to create new obligations
 Rules of Recognition
o i.e. rules to identify law by reference to certain criteria
o Rules of Recognition confer legitimacy upon a law and often refer to
rules identifying the ultimate rule/law of a legal system e.g. rules
which identify the status of a constitution or supreme governing laws
of a legal system

Natural law vs Positivism

 Interaction between Natural Law and Positivism can be viewed as an ongoing
dialectic over the nature of Law.
 Parkinson suggests that modern Positivist conceptions of law comprise a Natural Law
component of great antiquity.

Legal Reasoning: Methodology

 Legal Reasoning refers to the methodology of deriving law
 Modes of legal reasoning can be observed in various legal theories.
 Aristotle’s teachings suggested that legal theory may be deduced through either
deductive or inductive logic.
 The Scholastic tradition of legal reasoning utilised inductive logic to synthesise
opposing norms (from diverse writings of Roman jurists in the Corpus Juris Civilis)
into general concepts from which a coherent body of rules was created
 i.e. inductive logical allowed for the reconciliation of competing concepts from
authoritative texts into a corpus or coherent body of law based upon an integrated
system or rules and principles which in turn created a coherent legal system.

Classification of Law
 Law can be classified along multiple dimensions / paradigms
 E.g. Source, Subject Area, Relationship
 Comprehensive classification of law by reference to nature of relationship between
parties involved in a legal dispute.

Public v Private
 Public Law comprises the legal relationship between an individual and the State.
 Criminal Law
 Administrative Law
 Constitutional law
 Private law refers to the part of the law regulating interpersonal relationships (i.e.
between individuals)
 Contract
 Tort
 Trusts
 Property
 Succession
 Family Law
 Company law

Downloaded by Nancygoodluck Bypatisan (nancygoodluckbypatisan@gmail.com)

 lOMoARcPSD|52115769

Civil v Criminal
Civil v Criminal’ distinction:
 Nature of dispute
 Civil law - private disputes usually over money or who should bear
responsibility for a loss / injury
 Criminal law - public dispute between the State and the individual
 Purpose
 Civil law – typically compensation
 Criminal law – punitive - person’s behaviour was significantly below
appropriate standards = deserve punishment
 Burden of proof
 Civil law - burden of proof on plaintiff to prove case ‘on the balance of
probabilities’
 Criminal law - burden of proof on Crown to prove case ‘beyond reasonable
doubt’

Substantive v Procedural
 Substantive
 Law related to creation and enforcement of specific rights and duties:
(contract, tort, family law)
 Procedural (Adjectival) law
 Law that creates the framework and procedure through which the
substantive law can be applied: (civil procedure law)

Adversarial v Inquisitorial
 Classification based on methodology of procedural law.
 Countries
o Adversarial
- Cricket playing countries + USA
(e.g. Cth and former Cth countries
- Australia, NZ. Eire, US, England,
Sth Africa, Scotland, Wales etc)
o Judge
™ Adversarial – judiciary expected to be neutral
o Importance of investigation and court hearing
™ Adversarial – court hearing is critical
 Classification based on methodology of procedural law.
 Countries
o Inquisitorial (e.g. Continental Europe - France, Germany etc, Japan)
 Key differences
o Judge
™ Inquisitorial - judiciary plays a more active role
o Importance of investigation and court hearing
™ Inquisitorial – investigation is critical

Downloaded by Nancygoodluck Bypatisan (nancygoodluckbypatisan@gmail.com)

 lOMoARcPSD|52115769

Legal Systems
 A ‘legal system’ refers to the entirety of legal rules and framework of institutions
within which the law operates in an autonomous state.
 Legal systems often comprise different types of law as classified along different
dimensions:
 Common law legal system
 Civil (Roman-Dutch law) legal system
 Customary legal system (i.e. international and indigenous)
 Canon law
 Ecclesiastical law
 Sharia law
 Legal systems in turn are applied to different types of government structures:
 Monarchy (absolute or constitutional)
 Oligarchy
 Republic
 Theocracy

Downloaded by Nancygoodluck Bypatisan (nancygoodluckbypatisan@gmail.com)

 lOMoARcPSD|52115769

WEEK 4
The Rule of Law in Australia
 There must be some minimum capacity for judicial review of administrative action.
 Courts may not grant executive dispensation from criminal law.
 There must be separation between executive and judicial functions.
 Judicial decisions must be made according to legal standards rather than undirected
considerations of fairness.
 Citizens have a right to a fair trial.
 Citizens have a right to privileged communications with legal advisers.
 The law should be accessible to the public.
 Access to the courts should be available to citizens who seek to prevent the law from
being ignored or violated, subject to reasonable requirements as to standing.
 Courts have a duty to exercise a jurisdiction which is regularly invoked;
 Citizens are equal before the law; and
 The criminal law should operate uniformly in circumstances which are not materially
different.

Origins of the Australian Legal System

Timeline:
 1788 – Settlement & Military Rule
 1823 – NSW Act
 1828 – Australian Courts Act
 1842/1850 – Australian Constitutions Acts
 1865 – Colonial Laws Validity Act
 1901 – Federation
 1926 – Balfour Declaration
 1931 – Statute of Westminster (effective from 1939)
 1986 – Australia Acts

Terra Nullius
International Law recognized
1. Conquest (i.e. by Use of Force)
2. Cession (i.e. by Treaty)
3. Discovery & Occupation (i.e. by Settlement)

 Justified by European notion of property: Emmerich Vattel in The Law of Nations

(1758) and John Locke’s “extrapolations” from Genesis 1:28: ‘God blessed them,
saying to them, ‘Be fruitful; multiply, fill the earth and subdue it. Be masters of the
fish of the sea, the birds of heaven and all the living creatures that move on the
earth.’ See Meredith Lake, The Bible in Australia, (Sydney, NewSouth Publishing,
2018) [Blackboard]
 ‘[Aborigines had] no fix’d habitation but move on from place to place…we never saw
one Inch of Cultivated Land in the Whole Country,’ Captain Cook in Castles A C, An
Australian Legal History (Law Book Co, Sydney, 1982) 22
 “Manifestly not consonant with international law or the practice of nations at the
time.” Henry Reynolds, Forgotten War (see review by Raymond Evans on Blackboard)

Downloaded by Nancygoodluck Bypatisan (nancygoodluckbypatisan@gmail.com)

 lOMoARcPSD|52115769

 Native Title recognized in Mabo v Queensland [No 2] (1992) 175 CLR 1. Did Brennan,
Deane and Guerdon JJ apply natural law theory?


Military Rule
 Martial Law (Governors Phillip, Hunter, Bligh, King, Macquarie)
 Terra Nullius ≠ complete import of domestic English law in case of a penal colony
Common law allowed law of imperial jurisdiction to be modified to suit conditions of
colony itself
 New South Wales a military outpost – government by prerogative rule of military
Governor
 Governor needed broad powers to manage what amounted to an ‘open prison’
 Governor’s power not absolute
1. Limited by military commission
2. Limited by rudimentary courts of criminal and civil jurisdiction established by
letters patent in colony
3. Governor’s prerogative power did not include legislative power – scope of
delegated legislation by proclamation unclear
4. Governor’s immunity from suit lapsed after term upon return to England – i.e.
subject to subsequent civil suit

NSW Act
 1823 - NSW Act
 Creation of a Legislative Council to advise the Governor on exercise Legislative
Power. LC could not initiate legislation and was comprised of appointed
officials (not representative institution but instead designed to legitimate
Governor’s power). Subject to emergency powers of Governor to by pass LC.
 Creation of an Executive Council (similar to Privy Council) to advise Governor
on exercise of executive power – Governor required to advise London of
reasons for departure from advice of Executive Council on any occasion.
 Creation of separate court system – Supreme Court with the powers of the
courts at Westminster

Australian Courts Act

 s24 provided that all laws and statutes in force in England at the date of the
enactment of the legislation should be applied in the courts of NSW so far as they
were applicable
 enacted to formalise the reception of English law (both statute law and common law)
into NSW in light of anomalous status of penal colony
 subject to uncertainty of NSW Supreme Court’s jurisdiction to adjudge certain
statutes as not applicable to the colonial conditions of NSW
 Ambiguity
 power of colonial legislature to pass future laws which are repugnant to the
principles of English law
 extent to which future Acts of Westminster parliament overrode colonial laws
through doctrine of paramount force
 Governance Reforms

Downloaded by Nancygoodluck Bypatisan (nancygoodluckbypatisan@gmail.com)

 lOMoARcPSD|52115769

 Expanded membership of Legislative Council (although still not democratic)

 Governor’s powers to bypass LC on legislative power abolished.

Australian Constitutions Acts

 1842 & 1850 – Australian Constitutions Acts No1 and No2
 Created a politically independent Legislative Council (election of 2/3 rds of
Members) (Franchise still limited to men with property qualifications – but no
obstacle to wealthy emancipists hence ending emancipist/exclusives tension)
 Legislative Council fiscal responsibility for disbursement of revenue from
taxation (although no control over revenue from Crown lands)
 1842 & 1850 – Australian Constitutions Acts No1 and No2
 Bicameral legislatures created
 Divergence between formal repository of authority under the Constitution
(Executive Council) and practical repository of power in day to day
management of the affairs of the colony (Ministers of the Crown from
Legislative Council)

Colonial laws Validity Act

 Colonial Laws Validity Act, 1865 (IMP)
 S3 abolished ability to declare colonial laws invalid on basis of ‘repugnancy’
except in to relation to statutes of Westminster Parliament which extended to
colony by paramount force.
 Willes J in Phillips v Eyre (1870) LR 6 QB 1 at 20-21 clarified that laws of
Westminster which ‘extended’ to colony by paramount force were those
which were ‘applicable to the colony by express words or necessary
intendment
 Colonial Laws Validity Act, 1865 (IMP)
 Confirmed broad scope of autonomy conferred upon colonial legislatures –
post 1828 English legislation would only apply to colonies where it was either
voluntarily adopted by colonial legislature or applied by ‘paramount force’.

Federation
 1901 – Federation of Colonies
 Domestic significance re inter colonial relations
 International significance only in creation of Commonwealth Government
 British parliament retained power to legislate for Australian Commonwealth
and State parliaments through paramount force
 Why federation? (Sarah Joseph and Melissa Castan, Federal Constitutional
law: A Contemporary View (Lawbook Co, 3rd,2010) [1.80])

Balfour Declaration
 1926 – Balfour Declaration
 Political clarification of legal status of Dominions resulting from South African
and Canadian pressure on British Government at Imperial Conference

Downloaded by Nancygoodluck Bypatisan (nancygoodluckbypatisan@gmail.com)

 lOMoARcPSD|52115769

 Dominions defined as ‘autonomous communities within the British Empire,

equal in status, in no way subordinate one to another in any aspect of their
domestic or external affairs, though united by a common allegiance to the
Crown, and freely associated as members of the British Commonwealth of
Nations’.
 Clarified the role of the Governor General as only a representative of the
Crown and not an agent of the British Government

Statute of Westminster
 1931 – Statute of Westminster (adopted in Australia with effect from 1942)
 Abolished future operation of doctrine of paramount force (i.e. British
legislation could no longer extend expressly or by necessary implication to
override domestic legislation within Dominions unless the Dominion
expressly requested and consented to this)
 Abolished doctrine of repugnancy under Colonial Laws Validity Act 1865 (i.e.
no domestic law could be struck down on basis of repugnancy to British law)
 applied to Australian Commonwealth not the States

Australian Acts
 Australia Acts 1986
 Completed task of Statute of Westminster by extending independence from
British Parliament to the States
 Abolished possibility for Acts of UK parliament to extend to Australian
governments by consent and request of Australian governments.
 Abolished final judicial appeals to the Privy Council

Institutions of Law
 Parliament/ Legislature
 Executive
 Judiciary

Sources of Law
 Statute/Legislation
 Delegated Legislation / Regulations
 Common Law
 Super statute - Constitution

Definition: Constitution
 The basic law of a nation that sets out how that state will be organized by
 deciding the powers and authorities of government between different
political units, and
 stating the basic principles of that society.
 Typical features of a Constitution
 Superior – superior to other laws and will invalidate conflicting laws
 Stable – rarely changes
 Entrenched – harder to change than standard legislation (e.g. referendum)

Downloaded by Nancygoodluck Bypatisan (nancygoodluckbypatisan@gmail.com)

 lOMoARcPSD|52115769

 Written – written or unwritten (Australia vs UK)

 Justiciable – conduct can be referred to a court for a ruling on its
constitutionality
 Before Federation, each colony had its own Constitution.
 Constitution (Cth) guaranteed the continuing existence of the States and their
Constitutions.
 State Parliaments can pass laws on a wider range of subjects than the
Commonwealth Parliament.
 Commonwealth
 Specific powers under the Constitution
 States power to pass laws for the ‘peace, welfare and good government of
their State’.

Separation of Powers
 Constitution confers legislative, executive and judicial powers on different bodies
 the Legislature – the Queen and the Parliament
 Commonwealth Executive
 Federal Judicature
 Constitution confers legislative, executive and judicial powers on different bodies
 The Legislature – the Queen and the Parliament
 Commonwealth Executive
 Federal Judicature

 Functions of three arms of government

 Legislature  Creates Acts of Parliament
 Executive  Administers laws and carries out the business of government and
Creates delegated legislation
 Judicature  Determines disputes, Interprets laws (including Constitution), Makes
common law

 No strict separation between legislative and executive powers

 PM and Ministers must be members of Parliament
 Only Parliament can pass Acts, but the Executive can pass delegated
legislation under Acts of Parliament
 A made up example to demonstrate:
 Parliament – no person may import a ‘prohibited good’
 Judiciary – provides detailed definition about what constitutes a ‘prohibited
good’
 Parliament can disallow delegated legislation
 Other than on Constitutional matters Parliament can amend legislation to
respond to Court decisions it doesn’t like. It would usually react quickly but
consider the Reproductive Health Care Reform Bill 2019 (NSW)
 Separation between Judicature from other two arms of government is strict
 Only a court may exercise the judicial power of the Commonwealth (e.g. conclusively
determine disputes)

Downloaded by Nancygoodluck Bypatisan (nancygoodluckbypatisan@gmail.com)

 lOMoARcPSD|52115769

Legislature
 Parliament =
 the Queen
 the Senate (house of review); and
 the House of Representatives (house of origin)

 Queen
 Parliamentary Constitutional Monarchy
o the head of State of a country is a monarch whose functions are
regulated by a constitution
o However Queen’s role is mostly symbolic - by convention does not
play a day-to-day role in the Commonwealth Government
 Those few functions that the Queen does perform (for example, appointing
the GG) are done, by convention, in accordance with advice from the Prime
Minister

 Senate/Upper House
 house of review
 represents the States (and Territories) so smaller states are not
disadvantaged; and
 House of Representatives/Lower House
 the “peoples’ house”
 the “house of origin”

Executive
 Governor-General
 PM
 Cabinet

Downloaded by Nancygoodluck Bypatisan (nancygoodluckbypatisan@gmail.com)

 lOMoARcPSD|52115769

 Federal Executive Council

 Government Departments

 Governor-General
 Executive power vested in Queen
exercisable by Governor General
on advice from Federal Executive
Council
 Governor General appointed by the Queen, by convention, on the advice of
PM.

 Governor-General
 Three main functions
o Constitutional and statutory duties
o Formal ceremonial duties
o Non-ceremonial social
 Australia is a Parliamentary Constitutional Monarchy.
 Australia is not a “Crowned republic”
o Head of State is a monarch
o by convention Queen’s role mostly symbolic

 The few functions the Queen performs are done, by convention, in accordance
with advice from the Prime Minister.
 Constitution gives limited information on how Executive functions
 gives impression Governor General has extensive powers  e.g. - Command
of the defence forces (68)
 by convention, Governor General exercises powers on advice from Ministers
 Governor General Reserve Powers
 ‘reserve powers’
 Governor-General is not required to act in accordance with Ministerial
advice
 Two most important - powers to appoint and to dismiss a Prime Minister.
 PM and Cabinet not mentioned in Constitution
 Cabinet
 PM and senior Government Ministers
 Decisions ratified by the Federal Executive Council
Judicial
 Section 71 created High Court and Federal Courts.
 Section 72 (appointment, tenure etc) and s 80 (trial by jury)

The Judicial System Terms and Knowledge:

 What is the difference between a court of first instance and an appellate court?
 Court of first instance – the first court that hears a particular case
 Appellate court – the court that hears an appeal from another court

 When you read a case does it matter if you are reading a decision of a Court of first
instance or an Appellate court? What is the significance?

Downloaded by Nancygoodluck Bypatisan (nancygoodluckbypatisan@gmail.com)

 lOMoARcPSD|52115769

 The ratio of an Appellate Court decision is binding on a Court of first instance

in the same jurisdiction
 A superior court or Appellate Court decision will also be given a lot more
weight in another jurisdiction
 Achieves consistency in the Australian law

 What are the terms used for the parties in a court of first instance and an appellate
court?
 Plaintiff - initiates proceedings
 Defendant – responds in court to plaintiff’s allegations
 Appellant – person who appeals from a court decision
 Respondent – responds in court to appellant’s allegations

 Res judicata
 “The reason for the decision”
 Pronouncements of legal principle necessary for the judge’s decision on the
established facts of the case.
 Binding under the doctrine of precedent

 Ratio decidendi
 Pronouncement of a legal principle that is not strictly relevant to deciding the
case.

 Obiter dicta.
 Not binding, may be persuasive

 Ex parte
 proceedings which are normally urgent where only one party is normally
present e.g. an urgent ex parte injunction application

 Stare decisis
 short for stare decisis et non qieta movere “to stand by decisions and not
disturb the undisturbed” ie the doctrine of precedent
 “[A] judge in certain legal traditions argues from precedent in relation to case
law. A new set of facts arises in relation to a dispute and a legal principle has
to be applied to these facts. How shall this be done to ensure fairness of legal
application and predictability for those in future who wish their actions to be
“according to law”? The answer is that developments must be careful,
gradual and, usually “as little as possible” to accomplish the necessary
development.”

Downloaded by Nancygoodluck Bypatisan (nancygoodluckbypatisan@gmail.com)

 lOMoARcPSD|52115769

WEEK 5

Legislation: General
— Two key forms of legislation
— Statutes (Acts)
— Delegated legislation
— Rules (procedural formalities)
— Regulations (general application i.e., Migration Rules 1994 (Cth))
— Ordinances (territory)
— By-laws (specific geographic area)
— Legislative instruments (legislative and made under power delegated
by parliament)

Downloaded by Nancygoodluck Bypatisan (nancygoodluckbypatisan@gmail.com)

 lOMoARcPSD|52115769

General: developing and changing law

 Case law
 Applied
 Overturned
 Distinguished
 Legislation
 Inconsistency – as between legislation or state/Cth (s109 Australian
Constitution)
 Repeal
 Invalidity (under Constitution or inconsistency) but note doctrine of
parliamentary supremacy

General
 1901 – Division of power at federation between 6 colonies and national Parliament
 Commonwealth given specific powers (e.g. Trade and commerce; tax; immigration)
 States given plenary power for ‘the peace, order and good government’ of the state’

 Some say that legislation is now more significant than case law, while the opposite
was true in the past.
 Legislation can aim to prevent future disputes.
 Need for faster development of law.
 Comprehensive treatment of an area.
 Need for radical change.

Case: 1973 – Roe v Wade

 On the basis of due process and privacy US Supreme Court struck down State
abortion laws throughout the USA
 Under the rules established by this decision states’ power to legislate in relation to
abortion increased at later trimesters

The 3 levels of government

 Commonwealth powers – include s51 of the Australian Constitution and defence,
foreign affairs, trade and immigration.
 State powers - include health, education, transport, agriculture and forests.
 Local government powers - include building regulations, waste management,
recreation spaces and dog control.
 Shared powers over some things such as roads, environmental management and
public health issues.

Creation of Legislation: Bills

— The Introduction and First Reading
— The Second Reading
— Committee of the Whole House
— Referral to Other Committees
— The Third Reading
— Presentation to the Other House

Downloaded by Nancygoodluck Bypatisan (nancygoodluckbypatisan@gmail.com)

 lOMoARcPSD|52115769

— Assent by the Governor

— Proclamation

 The passage of a Bill through both Houses of Parliament (or a single House if
unicameral) involves stages. Each stage results in material which can be used in
interpretation.
 First Reading. Minister seeks permission to introduce the Bill. Copies circulated to
MPs with Explanatory Memorandum. The Explanatory Memorandum describes the
purpose of the Bill in plain language. Explanatory Memoranda can provide evidence
of the purpose of the Act.
 Second Reading: a speech is given by the Minister putting forward the Bill. It gives
additional details of the purpose of the Bill. A date is set for future debate in the
House. The debates are recorded in Hansard, which the courts can consult when
interpreting legislation.
 Second Reading. After debate, a vote is taken to red the Bill “a second time". If the
House agrees, the Bill gives to Committee Stage (if amendments need to be
considered) or to the Third Reading. Select or Joint Committees which consider a Bill
often produce reports. These reports are among the materials which can assist
interpretation of an Act.
 Third Reading. After passing the Second Reading or the Committee stage, a vote is
taken to read the Bill “a third time". The Third Reading is a formality. If the vote is
won, the Bill goes to the next House and the three stages are repeated.
 If a Bill passes both Houses, it goes to the Governor-General or Governor for Royal
Assent and becomes an Act.
 For unicameral parliaments the Bill passes through the three Readings stages only
once.

Different types of Acts

Code
 A statute that combines both statute and what was the common law position on a
topic into one statute
 Not many codes in Australia
 Common law will still be needed (e.g. Interpretation: either start from scratch or look
at earlier common law meanings)
 e.g. Criminal Code for Indictable Offences WA, NT, Qld, Tas
Consolidation
 Combines foundation law and amendments
 Parliament repeals foundation and amending Acts, and re-enacts their provisions in a
single statute.
 Makes it easier to find the law, but consolidation is a big job which is rare. See Jury
Amendment Act 2010 (NSW)

Declaratory Act
 clarifies meaning, scope or validity of a particular law

Omnibus Act
 amends a number of different Acts

Downloaded by Nancygoodluck Bypatisan (nancygoodluckbypatisan@gmail.com)

 lOMoARcPSD|52115769

Cognate Acts
 Subsidiary to a principal Act
 Deals with transitional matters
 e.g. an act establishing a new court – cognate act deals with part heard matters

Reviving Acts
 Statutes may have ‘sunset clauses’ - which say that the Act is to cease operation
after a fixed period
 Reviving Act can bring the Act back into operation

What is the difference between consolidation and reprinted acts?

 Consolidations
 Parliament repeals original Act and all amendments and re-enacts provisions
in one Act
 Purpose – efficiency
 Reprinted Acts
 Act reprinted to incorporate the text of amendments
 Databases such as Austlii call these ‘consolidations’ which is incorrect
 Key difference to consolidation
™ Reprint not passed by Parliament
™ Mistake in reprint – court must look at original Act

Formal Structure of Acts

 Short title  standard name i.e. Jury Act. 1977 (NSW)
 Long title  An Act to amend and consolidate the law relating to juries; to repeal the
Jury Act, 1912, and certain other Acts; and to amend the Mental Health Act, 1958,
the Coroners Act, 1960, and the Supreme Court Act, 1970.
 Date  When act received assent
 Number  No 18, 1977
 Preamble  Reason why statute has been enacted (older statutes only)
 Sections – subsections – paragraphs – subparagraphs – clauses – subclauses
 Parts - Divisions - subdivisions
 Table of contents and indexes
 Interpretation sections
 Heading
 Schedule
 Notes

Legislation: Interpretation Act 1987 (NSW) s35

35 Headings etc
1. Headings to provisions of an Act or instrument, being headings to:
a) Chapters, Parts, Divisions or Subdivisions into which the Act or
instrument is divided, or
b) Schedules to the Act or instrument,
shall be taken to be part of the Act or instrument
2. Except as provided by subsections (3) and (4):

Downloaded by Nancygoodluck Bypatisan (nancygoodluckbypatisan@gmail.com)

 lOMoARcPSD|52115769

a) a heading to a provision of an Act or instrument (not being a

heading referred to in subsection (1)),
b) matter within a provision of an Act or instrument (being matter
in parentheses that merely sets out a heading to or describes the
effect of some other provision of the Act or instrument or of
some other Act or instrument), or
c) a marginal note, footnote or endnote in an Act or instrument,
shall be taken not to be part of the Act or instrument.
3. A heading to a provision of an Act or instrument (not being a heading referred to in
subsection (1)) shall be taken to be part of the Act or instrument if, immediately
before 1 February 1981 (being the date on which section 3 of the Interpretation
(Amendment) Act 1980 commenced), it was part of the Act or instrument.
4. A heading to a provision of an Act or instrument (not being a heading referred to in
subsection (1)), or a marginal note, footnote or endnote in an Act or instrument,
shall be taken to be part of the Act or instrument if:
a) it is referred to expressly, otherwise than by means of matter within
some other provision of the Act or instrument (being matter in
parentheses that merely sets out a heading to or describes the effect
of the first mentioned provision) or by means of a symbol, in some
other part of the Act or instrument, or
b) not being so referred to, it is a heading, marginal note, footnote or
endnote to a table or form in the Act or instrument.
5. The number of a section, subsection, clause or subclause of an Act or instrument is
taken to be part of the Act or instrument even though it appears in a heading to the
section, subsection, clause or subclause.
6. This section does not limit the application of section 34 in relation to the use of any
heading, marginal note, footnote or endnote in the interpretation of the provision to
which the heading, marginal note, footnote or endnote relates.

Commencement of Acts
 Very important!
 Rules differ between jurisdictions.
 Important distinction
 Enactment - when a Bill becomes an Act
 Commencement - when the Act actually begins to operate
 An Act may be enacted but never commence (e.g. Mental Health Act 1981
(WA))
 Different parts of an Act can come into force at different times

 UK – when receives Royal Assent (unless otherwise stated)

 Commonwealth, NSW, Vic, WA
 28 days after the date of the GG’s assent unless another date is specified in
the Act
o Exception - Acts that amend the Commonwealth Constitution
commence on the date of assent
 Tas
 14 days after the date of assent unless another date is specified

Downloaded by Nancygoodluck Bypatisan (nancygoodluckbypatisan@gmail.com)

 lOMoARcPSD|52115769

 Qld, SA, NT
 commences on the day on which it receives assent
 ACT
 commences on the day following notification in the ACT Gazette

 Retrospective statutes
 Parliaments can pass legislation that has retrospective effect.
 Can be oppressive but also beneficial (tax)

Retrospective operation of Acts

 Re Wakim; Ex parte McNally (1999) 27 CLR 511
 A provision of Cth law allowed lower federal courts to hear state law disputes.
Cross-vesting state jurisdiction on federal courts held to be unconstitutional.
All decisions made by Federal courts exercising state jurisdiction in this way
would be invalid!
 Retrospective legislation (Jurisdiction of Courts Legislation Amendment Act
2000 (Cth)) retrospectively validated decisions made in federal court under
cross-vesting provision.

Modifying Statutes
— Amending legislation
— Repeal
— Two types of repeal
— Express repeal
— Implied repeal
— Later Act repeals an earlier Act to the extent of any
inconsistency between the two
— Wholly incompatible
— Operation of both would lead to absurd results
— Courts are cautious about implied repeal – prefers
construction which allows operation of both Acts
— Legislation which causes major change may provide for transitional provisions e.g.
the Personal Properties Securities Act 2009 (Cth) introduced a completely new
system of registering securities
— To work it needed a long lead time and provisions to explain what would happen to
existing securities

Delegated legislation
 Law-making power delegated by Parliament to executive
 People most often delegated to:
 Governor-General/
 Governor
 Government minister
 Secretary
 Local government body

— Also known as Legislative Instruments

Downloaded by Nancygoodluck Bypatisan (nancygoodluckbypatisan@gmail.com)

 lOMoARcPSD|52115769

— Regulations/statutory rules
 apply to the general population
— By laws / ordinances
 apply to the people within the local government area
— Rules
 set out the procedure
— Other general terms for delegated legislation
 subordinate legislation
 Orders
 statutory instruments
 Notices
 proclamations

Statutory Interpretation: General

 Problems with drafting:
 Legal effectiveness
 Converting general policy into legal form
 Procedural legitimacy
 Formal procedures
 Timeliness
 Time constraints dictated by parliamentary timetable
 Certainty
 Interpretation: ordinary v technical meanings; changing meanings; associated
meanings (e.g.: ‘an employee must surrender to his employer any invention
made in the course of his employment’)

Why might statutes be unclear?

 Legislation may fail to cover a specific point:
 e.g. London & North Eastern Railway Co v Berriman [1946] 1 All ER 255 ‘re-
laying or repairing tracks’ is not ‘oiling’ so oiler’s widow got nothing
 Broad words may be used to cover a number of possibilities:
 Brock v DPP, The Independent, 7 July 1993,
http://www.independent.co.uk/news/uk/law-report-dog-type-not-the-same-
as-breed-regina-v-knightsbridge-crown-court-ex-parte-dunne-brock-v-
director-of-public-prosecutions--queens-bench-divisional-court-lord-justice-
glidewell-and-mr-justice-cresswell-2-july-1993-1483339.html
 ‘any dog of the type known as the pit bull terrier’ – broader than breed
 Ambiguity:
o R v Allen (1872) LR 1 CCR 367
o Offense to marry whilst one’s original
spouse still alive but any such
marriage would be invalid so it
would not be a “marriage” – to
“marry” interpreted as 'to go through
a marriage ceremony'
 Comprehensibility
 To members of parliament; lawyers; lay people?

Downloaded by Nancygoodluck Bypatisan (nancygoodluckbypatisan@gmail.com)

 lOMoARcPSD|52115769

 Trustee Act 1925 (NSW)

 s 45 Protective trusts

1. Income may be directed to be held “on protective trusts” for the benefit of any
person (in this section called the principal beneficiary) for the period of the principal
beneficiary’s life or for any less period, and where there is such a direction the
income shall during the period (in this section called the trust period), and without
prejudice to any prior interest, be held upon trust as provided in this section.
2. During the trust period, or until the trust of the income fails or determines during the
subsistence of the trust period, the income shall be held upon trust for the principal
beneficiary.
3. The trust of the income shall fail or determine in any of the following cases, as well as
on the termination of the trust period, whichever first happens, that is to say, if the
principal beneficiary does or attempts to do or suffers any act or thing or if any event
happens whereby if the income were payable to the principal beneficiary absolutely,
the principal beneficiary would be deprived of the right to receive the same or any
part thereof.

Legislation: Insurance Act 1902 (NSW)

 Section 18B Limitation on exclusion clauses:
1. Where by or under the provisions of a contract of insurance entered into,
reinstated or renewed after the commencement of this section:
A) the circumstances in which the insurer is bound to indemnify
the insured are so defined as to exclude or limit the liability
of the insurer to indemnify the insured on the happening of
particular events or on the existence of particular
circumstances, and
[emphasis added]
B) the liability of the insurer has been so defined because the
happening of those events or the existence of those
circumstances was in the view of the insurer likely to increase
the risk of loss occurring, the insured shall not be disentitled
to be indemnified by the insurer by reason only of those
provisions of the contract of insurance if, on the balance of
probability, the loss in respect of which the insured seeks to be
indemnified was not caused or contributed to by the
happening of those events or the existence of those
circumstances, unless in all the circumstances it is not
reasonable for the insurer to be bound to indemnify the
insured. [emphasis added]
2. The onus of proving for the purposes of subsection (1) that, on the balance of
probability, loss in respect of which an insured seeks to be indemnified was not
caused or contributed to by the happening of particular events or the existence
of particular circumstances is on the insured.

 Acceptability
 Conventions in language

Downloaded by Nancygoodluck Bypatisan (nancygoodluckbypatisan@gmail.com)

 lOMoARcPSD|52115769

 Brevity
 Less verbiage (but this does not always equal clarity)
 Legal compatibility
 To fit in with existing law

 The law of statutory interpretation has become the most important single aspect of
legal practice. Significant areas of the law are determined entirely by statute. No area
of the law has escaped modification.”  Spielman CJ Supreme Court of NSW

The Traditional common law approaches

 The literal approach
 The golden rule
 The mischief rules
 “These common law approaches laid the foundation for the modern statutory
approach, which involves finding the ordinary meaning of words (as in the literal
rule) and taking into account the purpose of the legislation (as in the mischief rule) to
ensure, for example, that drafting errors do not prevent Parliament’s intention being
applied as in the golden rule).” Sanson Statutory Interpretation 208
2
Literal approach
 Literal approach
 Provision interpreted according to the “ordinary and natural sense” of the
words used
 So the literal rule is the fundamental rule of interpretation to which all others are
subordinate.
 The rationale for this approach is that it supports the role of the judiciary as an
impartial interpreter leaving policy decisions to Parliament.

The Golden Rule

 “...the grammatical and ordinary sense of the words is to be adhered to, unless that
would lead to some absurdity, or some repugnance or inconsistency with the rest of
the instrument, in which case the grammatical and ordinary sense of the words may
be modified, so as to avoid that absurdity and inconsistency, but no farther.”
Grey v Pearson (1857) 6 HL Cas 61 Lord Wensleydale
 “the grammatical and ordinary sense” means their literal meaning.
 No contemplation that courts would review the policy underlying the Act and modify
the language of the Act if the result were absurd.
 the Golden Rule contemplates a mistake in the wording of the Act.
 Adler v George [1964] s 3 of Official Secrets Act 1920 (UK) provided that it was an
offence for person to obstruct a member of Her Majesty’s forces ‘in the vicinity of
any prohibited place’ was interpreted to ‘in or in the vicinity of any prohibited place’.
Conviction upheld.
 Example (golden rule)
 Wills, Probate and Administration Act 1898 (NSW) s61B(3)provided:
o ‘If the intestate leaves a husband or wife and also leaves issue, then if
the value of the estate…does not exceed the prescribed amount the
whole estate shall be held in trust for the husband and wife

Downloaded by Nancygoodluck Bypatisan (nancygoodluckbypatisan@gmail.com)

 lOMoARcPSD|52115769

 Drafter’s mistake - the section should have read husband or wife.

 A court would have needed to interpret ‘and’ as ‘or’ otherwise the provision would
not have worked

Origins of the Purposive approach: The mischief rule

 Mischief rule provides an examination of the former law to deduce parliament’s
intention. (the rule in Heydon’s Case)
1. What was the common law before the making of the Act?
2. What was the mischief and defect for which the common law did not
provide?
3. What remedy has the Parliament decided on to remedy this defect?
4. The rule then is for the judge to make such construction as suppresses the
mischief and advances the remedy
 “The mischief or purpose rule required an ambiguity or inconsistency before a court
could have regard to purpose.”  Mills v Meeking (1990) 169 CLR 214 Dawson J

Purposive approach
 Determine the purpose of parliament in passing the legislation and adopt an
interpretation that is consistent with that purpose
 Purpose deduced by looking at the statute as a whole
 If the purpose isn’t evident the literal approach is taken - Avel Pty Ltd v Attorney-
General for New South Wales (1987) 11 NSWLR 126
 “a ‘purposive’ approach [to the Gaming and Betting Act 1912 (NSW)] founders in the
shallows of a jumble of ill-matched and poorly integrated enactments. If there is a
common thread through it all, it would seem to be nothing more than revenue
raising.” Kirby P The only safe course was to apply the literal approach.
 Most people apply the purposive approach intuitively:
 An ambiguous comment - use understanding of author’s intent to interpret
comment can be misinterpreted
 Example – ‘26 January 1788 is a day Australia should never forget’

Purposive and Literal Approach

 1970s and 1980s - Australian courts criticised for taking a literal approach to the
interpretation of legislation
 1981 - Parliament enacted the Acts Interpretation Act 1901 (Cth) s 15AA(1)
 In the interpretation of a provision of an Act, a construction that would
promote the purpose or object underlying the Act (whether that purpose or
object is expressly stated in the Act or not) shall be preferred to a
construction that would not promote that purpose or object.
 s33 Interpretation Act (NSW)

Purposive approach
 Act’s purpose must be referred to
 in determining whether a section is open to more than one interpretation

Downloaded by Nancygoodluck Bypatisan (nancygoodluckbypatisan@gmail.com)

 lOMoARcPSD|52115769

 in the case where multiple interpretations exist, decide which interpretation

to favour
 Drafter will have achieved their objective if a literal interpretation matches the s
15AA interpretation
 Unlike mischief rule, there does not need to be an absurdity or inconsistency
 “[T]he requirement that a court look to the purpose or object of the Act is thus more
than an instruction to adopt the traditional mischief or purpose rule in preference to
the literal rule of construction. “ Mills v Meeking (1990) 169 CLR 214
 Section 15AA does not allow courts to ignore the actual words – judge must give
effect to clear statute even if they think it is unfair
 Section 15AA can only have an operation where two or more constructions are
possible

Reading in words in the purposive approach

 Birmingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR
292 McHugh J. (‘term of imprisonment’ meant ‘minimum term sentence of
imprisonment’)
 A court may read words into a legislative provision if by inadvertence
Parliament has failed to deal with an eventuality required to be dealt with if
the purpose of the Act is to be achieved
 At common law, known as ‘Golden rule’

3 conditions must be met:

1. Know the purpose: ‘the court must know the mischief with which the Act is
dealing’
2. Conclude that Parliament’s inadvertence will thwart the Act’s intent
3. Be certain as to what words Parliament would have used

Interpretation of Legislation in Context

 Some statutory interpretation principles which aim to ensure that legislation is
considered in context
 Interpretation with reference to accompanying words
 Interpretation with reference to other parts of Act
 Interpretation using interpretation legislation
 Noscitur a sociis (‘a word is known from the company it keeps’)
 In determining the meaning of a word the surrounding words may be of
assistance

Noscitur a sociis
 51.The parliament shall, subject to this Constitution, have power to make laws for the
peace, order, and good government of the Commonwealth with respect to (xx)
foreign corporations, and trading or financial corporations formed within the limits of
the Commonwealth; (xxiiiA) the provision of maternity allowances, widows'
pensions, child endowment, unemployment, pharmaceutical, sickness and hospital
benefits, medical and dental services (but not so as to authorize any form of civil

Downloaded by Nancygoodluck Bypatisan (nancygoodluckbypatisan@gmail.com)

 lOMoARcPSD|52115769

conscription), benefits to students and family allowances.  Ronald Williams v

Commonwealth of Australia (2014) 252 CLR 416 (Williams (No 2))

 .R v Ann Harris (1836) 7 Car & P 446; 173 ER 198

 Prisoner bit off the end of a woman’s nose
 If a person “Shall unlawfully and maliciously stab, cut, or wound any person,
with intent … to maim, disfigure, or disable such person” = guilty of a felony
 ‘wound’ interpreted in relation to the previous words so wounding needed to
be inflicted with some kind of instrument not teetH!

WEEK 6
Interpretation of Legislation
Context
 Ejusdem generis (‘of the same kind’) if words of a particular meaning are followed by
general words then general words are limited to the same kind as the other words
 E.g. a will may be revoked by “burning, tearing, or otherwise destroying the will”
with an intention to revoke it
 Ejusdem generis - term “otherwise destroying” should be interpreted with “burning”
and “tearing”

Downloaded by Nancygoodluck Bypatisan (nancygoodluckbypatisan@gmail.com)

 lOMoARcPSD|52115769

 Will may be revoked by shredding the will but not by writing cancelled on it or by
drawing lines through the signatures

1. the statute contains an enumeration of specific words.

2. the subjects of enumeration constitute a class or category.
3. that class or category is not exhausted by the enumeration
4. the general terms follow the enumeration; and
5. there is no indication of a different legislative intent. If the legislative purpose
of a statute is such that a statutory series should be read Ejusdem Generis,
then the rule is helpful. But if not, the rule is more likely to defeat than to
fulfill the purpose of the statute and it should not be applied.
i.e. ‘lions and tigers and bears and other animals

Ejusdem generis
— Specific words must have something in common that can be used to interpret
the general word
— Must be more than one word of specific meaning to establish a common
meaning: Deputy Commissioner of Taxation v Clark (2003) 57 NSWLR 113 per
Spigelman CJ

— E.g. – ejusdem generis not applied to exclude a liquid from the phrase “stone or
other missile” – Field v Gent (1996) 67 SASR 123 . Petrol included.

Other parts of the legislation

 Provisions should be interpreted according to all other parts of the legislation
 Interpretations/definition sections
 definition may be displaced by the context in which word appears
 Some definitions sections start with ‘unless the contrary intention appears’ to
indicate this. Implied anyway: Matter of the Fourth South Melbourne Building
Society (1883) 9 VLR (Eq) 54
 Closed definitions (e.g. vehicle means a car) are exclusive, while open
definitions (e.g. vehicle includes a car) are not
 Headings
 Headings to parts and divisions are part of the Act –Acts Interpretation Act
1901 (Cth) s 13(1)
 Headings to sections, marginal notes, footnotes or endnotes are not part of
the Act
 Example
 Examples are sometimes used in Acts
 Inconsistency between a provision and an example, the provision prevails to
the extent of the inconsistency –Acts Interpretation Act 1901 (Cth) s 15AD
 Dictionaries
 If a word or phrase is not defined in an Act it may be helpful to refer to a
dictionary for its ordinary or technical meaning
o One judge referred to 12 dictionaries in interpreting the word “ethnic”
 Words change in meaning over time

Downloaded by Nancygoodluck Bypatisan (nancygoodluckbypatisan@gmail.com)

 lOMoARcPSD|52115769

 General rule – if possible courts will apply the current meaning of the word rather
than the meaning that it had when it was enacted.
 Sometimes statutory language has an obsolescent quality which prevents inclusion of
modern technologies e.g. ‘a motion picture film’ did not to include a videotape:
Wilson v Commissioner of Stamp Duties (1988) 13 NSWLR 77, 78-79 (Kirby P).
 Presumption against surplusage
 All words are assumed to carry meaning.
 “...no clause, sentence, or word shall prove superfluous, void, or insignificant,
if by any other construction they may all be made useful and pertinent.”

 Expressio unius est exclusion alterius

 Latin - ‘an express mention of one thing is the exclusion of the other’
 Arises where it is reasonable to expect that if the legislature had wanted to
include the other thing it would have been mentioned
 Alternative expression - “sometimes an absence is significant”
 Should be used with caution
 Important to consider consequences of maxim and to ask whether they are in
line with Act’s purpose
 Little, if any, weight if there is an alternative explanation for the absence:
Dean v Wiesengrund [1955] 2 QB 120

 Generalia specialibus non dergant

 Latin - ‘general things do not derogate from special things’
 Provisions of general nature do not necessarily impliedly repeal earlier
specific provisions.

Statutory presumptions
 Courts rely on a number of statutory presumptions in interpreting legislation
 can be removed, amended or created by Parliament
 against alteration of the common law
 against deprivation of liberty
 against binding the Crown
 against ousting the jurisdiction of the courts
 against retrospectivity
 property not taken away without compensation (this one is in the Australian
Constitution so the Federal government cannot override it)
 Parliament does not interfere with fundamental rights [but it can do so]
 the presumption against self-incrimination (Crafter v Kelly [1941] SASR 237)
 the right to legal representation (Bell v Australian Securities Commn (1991) 103 ALR
689)
 legal professional privilege (see Laying Down The Law [13.11] and Daniels
Corporation International Pty Ltd v Australian Competition and Consumer
Commission (2002) 213 CLR 54)
 Legislation does not have extra-territorial effects – Acts Interpretation Act 1901 (Cth)
s 21(1)(b)
 Parliament intends to legislate in conformity with international law: Plaintiff
S157/2002 v Commonwealth (2003) 211 CLR 476

Downloaded by Nancygoodluck Bypatisan (nancygoodluckbypatisan@gmail.com)

 lOMoARcPSD|52115769

Use of Extrinsic Materials

 Extrinsic materials  materials that are external to an Act but closely related to it
 Legislation regulates use of extrinsic materials in interpretation in all jurisdictions
except SA.
 1984 – insertion of Acts Interpretation Act 1901 (Cth) s15AB
 reports of parliamentary debates,
 executive documents,
 reports from law reform commission,
 royal commissions,
 parliamentary committees,
 inter-departmental committees,
 international agreements , and
 second reading speeches
 Can’t use extrinsic materials as a replacement for the provision
 Extrinsic materials created after the relevant legislation should not be taken into
account in interpreting legislation: Hunter Resources Ltd v Melville (1998) 164 CLR
234; (1988) 77 ALR 8
 Re Shingles and Director-General of Social Security (1984) 6 ALD 568
 Applicant refused allowance to look after her handicapped child
 Social Security Act 1947 (Cth) s105J allowance to be paid to a person who “provides
in a private home that is the residence of the person and of that child, constant care
and attention in respect of that child
 Re Shingles and Director-general of Social Security
 Application rejected as applicant’s child attended school and therefore it was
not possible for the applicant to provide “constant care”
 The Minister for Social Security in his second reading speech said that
“attendance at a day school … will not affect eligibility for payment”
 Re Shingles and Director-General of Social Security
s 15AB(1)(b)(i) – “ambiguous or obscure” – apparent from conflicting decisions of
tribunal members on this provision s15AB(1)(b)(ii) – ordinary meaning of provision is
“manifestly absurd or is unreasonable” – strict interpretation - mother & child would
be confined in home as if in custody
Therefore extrinsic materials could be used
 In light of the second reading speech - proper interpretation allowed allowance even
though child attended school
The traditional common law approaches
 The literal approach
 The golden rule
 The mischief rule

The literal approach

 Literal approach - interpret legislation according to the “ordinary and natural sense”
of the words used - Higgins J in Engineers’ Case (1920) 28 CLR 129

The golden Rule

Downloaded by Nancygoodluck Bypatisan (nancygoodluckbypatisan@gmail.com)

 lOMoARcPSD|52115769

 “...the grammatical and ordinary sense of the words is to be adhered to, unless that
would lead to some absurdity, or some repugnance or inconsistency with the rest of
the instrument, in which case the grammatical and ordinary sense of the words may
be modified, so as to avoid that absurdity and inconsistency, but no farther.”
Grey v Pearson (1857) 6 HL Cas 61

The mischief rules

 “The mischief or purpose rule required an ambiguity or inconsistency before a court
could have regard to purpose.”  Mills v Meeking (1990) 169 CLR 214

The contemporary relevance of the traditional common law approaches

 “These common law approaches laid the foundation for the modern statutory
approach, which involves finding the ordinary meaning of words (as in the literal
rule) and taking into account the purpose of the legislation (as in the mischief rule) to
ensure, for example, that drafting errors do not prevent Parliament’s intention being
applied as in the golden rule).” Sanson Statutory Interpretation (OUP, 2nd ed, 2016)
208

Outline of statutory interpretation

 Read the legislation – what does it mean?
 Check the definitions and interpretation provisions of the relevant Act – does it have
an express and stated Object?
 Are any words still unclear – check a dictionary – read in context
 Are there helpful extrinsic materials – reading speeches/Explanatory Statements?
 Has the section (or identical or similar sections) been judicially considered? If so
check the cases
 Are there words and phrases which remain unclear – check other cases that have
considered them in other contexts – do they help? Read the section in context
 Have learned authors/lawyers considered the meaning of the section – do they help
 Are there specific rules of statutory interpretation that may apply
 Where is the legislation from – what interpretation legislation applies?

What is International Law?

What is Comparative Law?

The Universal Standard of right conduct

History of International law

Westphalian International Law

International law after WW2

Downloaded by Nancygoodluck Bypatisan (nancygoodluckbypatisan@gmail.com)

 lOMoARcPSD|52115769

WEEK 7 and 8
Key Terms
 sui generis – “of its own kind” or unique
 ultra vires – beyond power, something done beyond authority

 Parliament
 Passes Acts of Parliament
 Executive
 Implements Acts and carries out business of government
 Judiciary
 Decides cases, interprets Acts and develops common law.

Downloaded by Nancygoodluck Bypatisan (nancygoodluckbypatisan@gmail.com)

 lOMoARcPSD|52115769

Federalism: Review
 Prior to 1901 – 6 colonies, managed by Britain
 Federation - amalgamation of colonies into a nation
 Australia is a federal state so constitutional power is shared between the 2 levels of
government
 Creation of the Australian Constitution
 drafted at a series of conventions in the 1890s by representatives of the
colonies
 proposed constitution approved by people of each State in referenda
 passed as part of a British Act of Parliament in 1900
 took effect on 1 January 1901
 Commonwealth came into being and the six colonies became the six States of
Australia
 Australian Constitution is a UK Act
 The Australian Constitution is contained in clause 9 of the British Act
(Commonwealth of Australia Constitution Act 1900) (Imp)
 British Act was necessary
 Australia was a collection of six self-governing British colonies
 ultimate power rested with British Parliament
 In forming the Commonwealth, the states approved a Constitution:
 gave Commonwealth government the right to pass laws on certain subjects,
and
 allowed the states to retain all other law-making rights.

States and territories

 Australia's six states represent the six British colonies that joined together to create
the Commonwealth of Australia.
 States have a constitutional right to convene a state parliament and pass certain
laws.
 Any land within Australia's national border that is not claimed by one of the states is
called a territory. Territories do not have the right to convene their own government
or pass laws as the states do.
 Under the Constitution, the Australian Government makes the laws for the
territories.
 The confusion between state and territory arises because the Northern Territory and
the Australian Capital Territory are often treated like states.
 These two territories, along with Norfolk Island, are self-governing territories.
 In these three cases, the then Commonwealth passed a law allowing each territory to
convene a parliament and make their own laws in a similar manner to the states.
 Unlike the states, whose powers are defined through the Constitution, the powers of
the territories are defined in Australian Government law which grants them the right
of self-government. This also means that the Australian Government can alter or
revoke these powers at will.
 Under Constitution s121 territories can become states with the approval of the
Parliament of Australia.

Downloaded by Nancygoodluck Bypatisan (nancygoodluckbypatisan@gmail.com)

 lOMoARcPSD|52115769

 Federalism divides power between the Commonwealth and the States (division of
powers)

Constitution: Review
 Constitution
 The basic law of a nation that sets out how that state will be organised by
o deciding the powers and authorities of government between different
political units, and
o by stating the basic principles of that society
 What are six typical features of a constitution
1. Superior
2. Entrenched
3. Stable
4. Written
5. Justiciable
6. Constitutive

 Some Commonwealth powers are exclusive powers (e.g., defence – s 114, coinage – s
115)
 General (Plenary) powers to the States (i.e., everything else)
 Territories – some have been granted self-governing power by Commonwealth
legislation, but this is not a Constitutional right and the Commonwealth retains
ability to override laws (s 122)

 Sources of Australian Constitutional Law

 Constitution
 Constitutional Conventions
 Example – Prime Minister is appointed

 Australian Statutes
 Commonwealth Electoral Act 1918 (Cth)

 UK Statutes
 Statute of Westminster 1931 (UK)
 Statute of Westminster Adoption Act 1942 (Cth)
o Repealed repugnancy provision
o Allowed colonies to pass extraterritorial laws
o Concerns re State powers and Constitutional amendments

 Australian Constitution
 Chapter I – The Parliament (Parts I – IV)
 Chapter II – The Executive Government
 Chapter III – The Judicature
 Chapter IV – Finance and Trade
 Chapter V – The States
 Chapter VI – New States
 Chapter VII – Miscellaneous

Downloaded by Nancygoodluck Bypatisan (nancygoodluckbypatisan@gmail.com)

 lOMoARcPSD|52115769

 Chapter VIII – Alteration of the Constitution

 Some key provisions of the Constitution (Cth)

Preamble
 Whereas the people of New South Wales, Victoria, South Australia, Queensland, and
Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in
one indissoluble Federal Commonwealth under the Crown of the United Kingdom of
Great Britain and Ireland, and under the Constitution hereby established...
 Section 51 sets out 39 specific ‘Heads of Power’ to the Commonwealth

Australian Constitution
 51.The Parliament shall, subject to this Constitution, have power to make laws for the
peace, order, and good government of the Commonwealth with respect to
1. taxation; but not so as to discriminate between States or parts of States.
2. copyrights, patents and trademarks
3. marriage
4. divorce and matrimonial causes and in relation thereto parental rights, and the
custody and guardianship of infants
5. the provision of maternity allowances, widows' pensions, child endowment,
unemployment, pharmaceutical, sickness and hospital benefits, medical and
dental services (but not so as to authorize any form of civil conscription), benefits
to students and family allowances
6. external affairs
7. acquisition of property on just terms
8. matters incidental to the execution of any power vested by this Constitution in
the Parliament or in either House thereof, or in the Government of the
Commonwealth, or in the Federal Judicature, or in any department or officer of
the Commonwealth.

 52 Exclusive powers of the Parliament

 The Parliament shall, subject to this Constitution, have exclusive power to make laws
for the peace, order, and good government of the Commonwealth with respect to:
1. the seat of government of the Commonwealth., and all places acquired by the
Commonwealth for public purposes.

55. Laws imposing taxation shall deal only with the imposition of taxation, and any provision
therein dealing with any other matter shall be of no effect.

Laws imposing taxation, except laws imposing duties of customs or of excise, shall deal with
one subject of taxation only; but laws imposing duties of customs shall deal with duties of
customs only, and laws imposing duties of excise shall deal with duties of excise only.

99. The Commonwealth shall not, by any law or regulation of trade, commerce, or revenue,
give preference to one State or any part thereof over another State or any part thereof.

Downloaded by Nancygoodluck Bypatisan (nancygoodluckbypatisan@gmail.com)

 lOMoARcPSD|52115769

109. When a law of a State is inconsistent with a law of the Commonwealth, the latter shall
prevail, and the former shall, to the extent of the inconsistency, be invalid.

116. The Commonwealth shall not make any law for establishing any religion, or for
imposing any religious observance, or for prohibiting the free exercise of any religion, and no
religious test shall be required as a qualification for any office or public trust under the
Commonwealth

Constitution Example
The idea of a Northern Economic Zone:
Judith Ireland, Daniel Hurst, “Tax cuts, economic zone part of Kevin Rudd’s plans to develop
northern Australia” Sydney Morning Herald, 15 August, 2013.

 Any Constitutional Issues?

s 51(ii) by discriminating between states
s 99 legislation with respect to revenue discriminating between states or parts of
States
 Permanent Trustee Australia Ltd v Commissioner of State Revenue
(2004) 211 ALR 18

Marriage Act 1961

 Australian Constitution gives Commonwealth power to legislate re marriage: s 51(xxi)
 Power not used until Marriage Act, 1961 (Cth)
 Prior to 1961 States had dealt with marriage: did not work.
 Marriage Act, 1961 (Cth) passed: one law for marriage in Australia.

46. Certain authorised celebrants to explain nature of marriage relationship

 (1) Subject to subsection (2), before a marriage is solemnised by or in the presence of
an authorised celebrant, not being a minister of religion of a recognised
denomination, the authorised celebrant shall say to the parties, in the presence of
the witnesses, the words:
 “I am duly authorised by law to solemnise marriages according to law.
 “Before you are joined in marriage in my presence and in the presence of these
witnesses, I am to remind you of the solemn and binding nature of the relationship
into which you are now about to enter.
“Marriage, according to law in Australia, is the union of a man and a woman to the
exclusion of all others, voluntarily entered into for life.”; or words to that effect.
 (2) Where, in the case of a person authorised under subsection 39(2) to solemnise
marriages, the Minister is satisfied that the form of ceremony to be used by that
person sufficiently states the nature and obligations of marriage, the Minister may,
either by the instrument by which that person is so authorised or by a subsequent
instrument, exempt that person from compliance with subsection (1) of this section.

Constitutional Issues
 2004 some foreign nations give State recognition as marriages to two persons of the
same sex

Downloaded by Nancygoodluck Bypatisan (nancygoodluckbypatisan@gmail.com)

 lOMoARcPSD|52115769

 Marriage Act, 1961 (Cth) amended to specifically prevent such marriages being
recognised
 In 2004 there was no State marriage: why would the legislation mention any such
marriages?

Marriage Amendment Act 2004

 Subsection 5(1)
Insert:
marriage means the union of a man and a woman to the exclusion of all others,
voluntarily entered into for life.
 At the end of section 88B
Add:
(4) To avoid doubt, in this Part (including section 88E) marriage has the meaning
given by subsection 5(1).
 After section 88E
Insert:
88EA Certain unions are not marriages
A union solemnised in a foreign country between:
(a) a man and another man; or
(b) a woman and another woman;
must not be recognised as a marriage in Australia

Commonwealth rejection of redefinition of marriage (2004 – 2013)

 Same Sex Relationships (Ensuring Equality) Bill 2004
 Same Sex Marriage Bill 2006
 four more bills were rejected or lapsed in Howard and Rudd parliaments
 Marriage Equality Amendment Bill 2009 rejected in the Senate 45 votes to 5.
 House of Representatives voted against the Marriage Equality Amendment Bill 2012
98-42
 Marriage Amendment Bill 2012 rejected in the Senate 41-26.

Marriage in the Constitution

 s51 (xxi) [marriage] and (xxii) [divorce] are the only private or personal rights in the
Constitution.

Why is the state involved in marriage?

 s51 (xxi) and (xxii) are there because:
 (i)”although marriage and the dissolution thereof are in many ways a personal
matter for the parties, social history tells us that the state has always regarded
them as matters of public concern.”
 (ii) “uniformity in legislation on these subject matters throughout the
Commonwealth.”
 Russell v Russell (1976) 134 CLR 495, 546

 “[M]arriage…is primarily an institution of the family.”

 “It…can be regarded as a social relationship for the mutual society, help and comfort
of the spouses but it cannot be simply so regarded. The primary reason for its

Downloaded by Nancygoodluck Bypatisan (nancygoodluckbypatisan@gmail.com)

 lOMoARcPSD|52115769

evolution as a social institution, at east in Western society, is in order that children

begotten of the husband and born of the wife will be recognised by society as the
family of that husband and wife. “
 Russell v Russell (1976) 134 CLR 495, 548 (emphasis added).

Constitutional Issues with State or Territory same sex marriage

 State laws inconsistent with Commonwealth laws are invalid: s109 Australian
Constitution
 Territory laws inconsistent with Commonwealth laws are invalid: e.g. s28 Australian
Capital Territory (Self-Government) Act 1988 (Cth)
 is there direct inconsistency with Marriage Act, 1961 (Cth)?
 does Marriage Act, 1961 (Cth) ‘cover the field’ = indirect inconsistency?

Australian Constitution : Conventions

 Not all political powers explicitly mentioned in Constitution
 e.g. prerogative common law powers of the Crown (e.g. declare war, make
peace, execute treaties, etc)
 Conventions
 Impose obligations
 Arise as a matter of practice
o Not made by a procedure but by observing what people do
 Not enforceable by courts
 Example
 Strict law – Crown could refuse to assent to legislation
 Convention – Crown always assents to legislation
 Violating a convention – unconstitutional but not illegal

Table on Conventions (Bede Harris)

Social Usage Conventions Laws
Not Binding Binding Binding
Not Enforced Not Enforced Enforced

Constitutional Convention: Representative Government

 Representative government
 Government by representatives of the people who are chosen by the people.
 Subject to legislative definition of ‘franchise’
 Requires
 regular elections for House of Reps and Senate
 Parliamentarians directly chosen by the people
 Executive responsible to Legislature
 Executive appointed by Majority Support of Legislature (Lower House)
 Question Time accountability of Executive to all members of Legislature
 Executive must resign upon passing of ‘no confidence’ motion by Legislature
(Lower House)

Constitutional Convention: Parliamentary Sovereignty

Downloaded by Nancygoodluck Bypatisan (nancygoodluckbypatisan@gmail.com)

 lOMoARcPSD|52115769

 Purest form in UK – 1688 English ‘revolution’ – William & Mary founded a Monarchy
(Crown) subject to the will / authority of Parliament.
 Checks & Balances in Australia limit parliamentary sovereignty i.e. subject to other
arms of government
 Parliament ‘unofficial’ legitimacy over other arms

Constitutional Convention: Parliamentary Control of Supply

 Supply (i.e. the budget for the ordinary operation / annual services of government)
must be authorised by Parliament
 No government can govern without money so parliament control of the purse-strings
equates with parliamentary control over the executive
 Politically effective only through Upper House (Senate) – as Lower House by
convention of Representative Government supports Government / Executive
 Historically a convention in UK – but enshrined in Australian Constitution
 ss 81 / 83 of the Constitution

s81 Consolidated Revenue

All revenues or moneys raised or received by the Executive Government of the
Commonwealth shall form one Consolidated Revenue Fund, to be appropriated for the
purpose of the Commonwealth in the manner and subject to the charges and liabilities
imposed by this constitution.
s83 Money to be appropriated by law
No money shall be drawn from the Treasury of the Commonwealth except under
appropriation made by law. But until the expiration of one month after the first meeting of
the Parliament the Governor-General in Council may draw from the Treasury and expend
such moneys as may be necessary for the maintenance of any department transferred to the
Commonwealth and for the holding of the first elections for the Parliament.

Rights in the Australian Constitution

 No comprehensive Bill of Rights in Constitution
 But there are some express rights
 s51(xxxi) - acquisition of property must be ‘on just terms’
 s80 - trial by jury for indictable offences
 s116 – freedom of religion “a wet lettuce leaf”?
 s117 – State Parliament cannot discriminate against resident of other State
 Some implied rights
 Australian Constitution established separation of powers – therefore only a
Chapter III court can exercise judicial power
 Implied freedom of political communication

Amending the Australian Constitution

 Amending Australian Constitution – s 128
 The Australian Constitution can be amended if a bill to change the Australian
Constitution
o is passed by an absolute majority rather than a simple majority in
both houses or twice in one house

Downloaded by Nancygoodluck Bypatisan (nancygoodluckbypatisan@gmail.com)

 lOMoARcPSD|52115769

o is approved in a referendum by a majority of voters and a majority of

voters in a majority of states (i.e. at least four States)
 Only 8 out of 44 attempts to change the Australian Constitution have been successful

 Amendment 1 - Constitution Alteration (Senate Elections) 1906

 altered s13 - Senate term to begin on 1 July – make simultaneous elections
more likely
 Amendment 2 - Constitution Alteration (State Debts) 1909
 altered s105 - Commonwealth allowed to take over State debts whenever
they were incurred
 Amendment 3 - Constitution Alteration (State Debts) 1928
 inserted s 105A – Further powers given in relation to State debt
 Amendment 4 - Constitution Alteration (Social Services) 1946
 inserted s 51(xxiiiA) - Confirmed government’s ability to pay social services
benefits
 Amendment 5 – Constitution Alteration (Aboriginals) 1967
 altered s 51 (xxvi) and deleted s127 – allowed legislation aimed at Aborigines
and included Aborigines in the census
 Amendment 6 - Constitution Alteration (Senate Casual Vacancies) 1977
 altered s15 - replacement Senator would be required to be a member of the
party of which the previous Senator was a member at the time of his or her
election & abolished Senate by-elections
 Amendment 7 - Constitution Alteration (Referendums) 1977
 altered s 128 – citizens in the territories allowed to vote in referenda
 Amendment 8 - Constitution Alteration (Retirement of Judges) 1977
 altered s72 - retirement age of seventy for all federal judges

The Courtroom
 Judges
 Solicitors/Barristers (SCs or QCs)
 Witnesses
 Jury
 Judge’s Associate (Fed)
Confidential assistant to the judge.
SCs or QCs
 Historically in NSW Queen’s Counsel were appointed by the Attorney General
 Attorney Generals had been known to appoint themselves e.g. Frank Walker and
Peter Collins
 20+ years ago NSW abandoned the QC title in favour of the Senior Counsel or SC title
 Over time other States and the Commonwealth also opted for the Senior Counsel
title. Federally this occurred during the first Rudd government.
 The trend is now in the opposite direction
 Supposedly the QC title is better respected in Asia
 In June 2013 Queensland permitted silks to opt for the QC title
 Most Queensland SC’s are now QC’s
 In February 2014 the Victoria allowed SCs to switch – most did.

Downloaded by Nancygoodluck Bypatisan (nancygoodluckbypatisan@gmail.com)

 lOMoARcPSD|52115769

 In 2014 the Commonwealth also reinstituted the practice of appointing

Commonwealth Queen’s Counsel.
 Although some NSW barristers still want change it is hard to see the NSW bar
following the Commonwealth, Queensland and Victoria back to the future and re-
introduce the QC title.

Robes
 High Court of Australia
 barristers wear what is customarily worn in the Court of Appeal of the
Supreme Court in the State in which they ordinarily practice.
 Federal Court of Australia
 The following robing practices apply in the Federal Court, unless a judge otherwise
orders:
 Wigs, full-bottomed or otherwise, are not worn on any occasion.
 Robes, and any related attire, are worn for:
 trials
 appeals
 all other final hearings, including the final hearing of a separate issue and for
delivery of judgment after all such hearings.
 Robes are not worn for any other hearing, including the hearing of an
interlocutory issue and matters before a Federal Court Registrar.
 Family Court of Australia
 All judges and judicial registrars robe for defended hearings. On these
occasions counsel appear robed with wigs.
 In duty matters generally neither the judges or judicial registrars robe, but if
they do (which usually only happens if they take a duty matter whilst running
a defended hearing) general etiquette would require counsel to follow suit.
The wearing of bar jackets by both judges and counsel when dealing with
duty matters is acceptable practice.
 Family Court of Australia (cont)
 In the full court judges robe but do not wear a wig. In NSW, consistent with
the practice during defended hearings, counsel appearing before the full
court are robed and wear wigs.
 Some judges choose not to wear a wig when robed, but the practice (in NSW
Registries) is for counsel, unless invited to the contrary, to wear a wig.
 In some states (W.A. excluded, where it is a state court) the practice varies.
For example, in Brisbane the practice is that judges and counsel wear a wig
into court, but generally, immediately after the court is opened, the judge
removes his wig and counsel are expected to follow suit, but they remained
robed.
 Federal Circuit Court (formerly the Federal Magistrates Court)
 Robes worn except in interlocutory proceedings (unless oral evidence being
adduced)
 No wigs to be worn

Courtroom identites
 Tipstaffs and Associates

Downloaded by Nancygoodluck Bypatisan (nancygoodluckbypatisan@gmail.com)

 lOMoARcPSD|52115769

 Provides support to the judge in procedural and organisational matters in courts and
may provide research and administrative support outside of court. Have a look at the
following link – tipstaff to Chief Justice of Supreme Court

WEEK 9
Jurisdiction of Courts at the Commonwealth Level
 Commonwealth courts have jurisdiction in relation to federal matters
 How do you know what those matters are?
 The Act of Parliament that created the Court;
 Other legislation that confers jurisdiction (i.e. in Federal Court, over 120
different statutes)
 The ‘accrued’ or ‘associated’ jurisdictions - re non-federal matters that are an
inseparable part of the federal matter or are related to the federal matter: Fencott v
Muller (1983) 152 CLR 570.
 “It is settled doctrine in Australia that when a court which can exercise federal
jurisdiction has its jurisdiction attracted in relation to a matter, that jurisdiction
extends to the resolution of the whole matter. This accrued federal jurisdiction is
not limited to matters incidental to that aspect of the matter which has, in the first
place, attracted federal jurisdiction.”
 “[The Federal Jurisdiction] extends, in my opinion, to the resolution of the whole
matter between the parties. ... For this purpose, the court exercising federal
jurisdiction may enforce rights which derive from a non-federal source. This exercise
of this jurisdiction, which for want of a better term I shall call 'accrued' jurisdiction, is

Downloaded by Nancygoodluck Bypatisan (nancygoodluckbypatisan@gmail.com)

 lOMoARcPSD|52115769

discretionary and not mandatory, though it will be obligatory to exercise the federal
jurisdiction which has been attracted in relation to the matter.”

State Courts Exercising Federal Jurisdiction

 Cross-vesting
 The granting or vesting of power in a state court to exercise Commonwealth
judicial power.
 1987 legislation introduced to allow federal courts to hear state matters, and
state courts to hear federal matters
 Cross-vesting legislation unconstitutional but that the Federal Court could still hear
matters under its ‘accrued jurisdiction’: Re Wakim (1999) 198 CLR 511
 Federal courts cannot exercise state jurisdiction, but state can exercise both state and
federal jurisdiction.

Courts in the Federal System

 Connecting with Law 132-143 [Diagram 135] [on Blackboard]
 High Court of Australia
 Federal Court
 Federal Circuit and Family Court of Australia (FCFC)] – formerly the Family Court and
the Federal Circuit Court (itself formerly the Federal Magistrates Court): Federal
Circuit and Family Court of Australia Act 2021 (Cth)
 Commonwealth Administrative Appeals Tribunal

Summary of Jurisdiction of Commonwealth Courts

 High Court
 General appellate jurisdiction
 Original jurisdiction in certain matters: s 75
 6 judges and a Chief Justice
 Federal Court
 Single judges have original and some appellate jurisdiction.
 The Full Court (3) has appellate jurisdiction.
¡ Federal Circuit and Family Court of Australia (FCFC)
The FCFC comprises two divisions: the FCFC (Division 1) which is a continuation of the
Family Court, and the FCFC (Division 2) will be a continuation of the Federal Circuit
Court (formerly the Federal Magistrates Court)

FCFC (Division 1)
 Administers Australia’s family laws
 Matters relating to marriage and child support
 The Full Family Court hears appeals from the Family Court.
FCFC (Division 2)
Deals with a range of less complex federal disputes
 Appeals from Independent Merits Review decisions in refugee cases
Provides a quicker, cheaper option for litigants and eases the workload of both the Federal
and Family Court

Australian Constitution and the Judicature

Downloaded by Nancygoodluck Bypatisan (nancygoodluckbypatisan@gmail.com)

 lOMoARcPSD|52115769

71 Judicial power and Courts

The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be
called the High Court of Australia, and in such other federal courts as the Parliament creates,
and in such other courts as it invests with federal jurisdiction. The High Court shall consist of
a Chief Justice, and so many other Justices, not less than two, as the Parliament prescribes.

Construction and the Judicature

73 Appellate jurisdiction of High Court
The High Court shall have jurisdiction, with such exceptions and subject to such regulations
as the Parliament prescribes, to hear and determine appeals from all judgments, decrees,
orders, and sentences:
(i) of any Justice or Justices exercising the original jurisdiction of the High Court;
(ii) of any other federal court, or court exercising federal jurisdiction; or of the
Supreme Court of any State, or of any other court of any State from which at the
establishment of the Commonwealth an appeal lies to the Queen in Council;
...
and the judgment of the High Court in all such cases shall be final and conclusive.

75 Original jurisdiction of High Court

In all matters:
(i) arising under any treaty;
(ii) affecting consuls or other representatives of other countries;
(iii) in which the Commonwealth, or a person suing or being sued on behalf of the
Commonwealth, is a party;
(iv) between States, or between residents of different States, or between a State
and a resident of another State;
(v) in which a writ of Mandamus or prohibition or an injunction is sought against
an officer of the Commonwealth;
the High Court shall have original jurisdiction.

 Mandamus – ‘Forcing a public official to perform a public duty’

 Prohibition – ‘a court order prohibiting an inferior court or tribunal from proceeding
any further as it is acting outside its jurisdiction’
 Injunction – ‘Injunction is an order or decree made by a court, in its equitable
jurisdiction, requiring a party either to do a particular thing (a mandatory injunction)
or to refrain from doing a particular thing (a prohibitory injunction).

76 Additional original jurisdiction

The Parliament may make laws conferring original jurisdiction on the High Court in any
matter:
(i) arising under this Constitution, or involving its interpretation;
(ii) arising under any laws made by the Parliament;
(iii) of Admiralty and maritime jurisdiction;
(iv) relating to the same subject-matter claimed under the laws of different States.

Special leave of appeal

Downloaded by Nancygoodluck Bypatisan (nancygoodluckbypatisan@gmail.com)

 lOMoARcPSD|52115769

 Judiciary Act 1903 (Cth) s 35A

In considering whether to grant an application for leave to appeal from a judgment,
the High Court may have regard to any matters that it considers relevant, but it is
required to have regard to whether the application before it:
 involves a question of law that is of public importance, or upon which there
are differences of opinion within, or among, different courts, or
 should be considered by the High Court in the interests of the administration
of justice.

Appeals to the privy Council in the UK

 Judicial Committee of the Privy Council
 also known as Privy Council, Queen in Council.
 Based in London
 Previously highest court in Australian court hierarchy
 Appeals abolished in 3 stages
 1968 - Appeals on Federal matters to Privy Council abolished
 1975 – Appeals from High Court on matters of state law abolished
 1986 - Appeals from state courts directly to the Privy Council abolished

The High Court

 Established in 1901 but had to wait for the Judiciary Act 1903 (Cth) before it started
operating.
 First sitting occurred in the Banco Court of the Supreme Court in Melbourne on 6
October 1903
 Began sitting in Canberra in 1980
 What is a banco court?
 “Banco” is derived from the Latin word bancus, which means bench or a seat of high
distinction.
 The Court sitting in banco is the Full Court, with full judicial authority

High Court of Australia

 First Justices of the High Court
 The Chief Justice, Sir Samuel Griffith
o former Premier and former Chief Justice of Queensland
 Sir Edmund Barton
o the first Prime Minister of Australia
 Richard Edward O'Connor
o a former Minister of Justice and Solicitor-General of New South Wales

Who are the current justices of the HC?

 Chief Justice Kiefel AC, 3 September 2007
 Justice Gageler AC, 9 October 2012
 Justice Keane AC, 5th March 2013
 Justice Gordon AC, 9 June 2015
 Justice Edelman, 30 January 2017
 Justice Steward, 1 December 2020
 Justice Gleeson, 1 March 2021

Downloaded by Nancygoodluck Bypatisan (nancygoodluckbypatisan@gmail.com)

 lOMoARcPSD|52115769

Federal Court of Australia

 Started 1 February 1977
 original jurisdiction as invested by the Commonwealth Parliament e.g. mandamus,
prohibition or injunction against an officer of the Commonwealth and matters under
Commonwealth laws e.g. bankruptcy, corporations, industrial relations, taxation and
trade practices laws.
 The Federal Court hears appeals from decisions of single judges of the Court and
decisions (except family law decisions) of the Federal Circuit Court. It also hears
appeals from some decisions of State and Territory Supreme Courts.

Federal and Family Court of Australia

 The Family Court is now Division 1 of the FCFC
 The Family Court was a specialist court for family and child support disputes.
 Division 1 if the FCFC exercises original and appellate jurisdiction throughout
Australia except in Western Australia.
 In WA the Family Court of WA decides family and child support disputes. This Court is
a State Court, mostly funded by the Commonwealth. Judges of the Family Court of
WA are also judges of the FCFC.

FCFC Divison 2
 Until this year the Federal Circuit Court was separate court but it is now Division 2 of
the FCFC. The Federal Circuit Court commenced operation in July 2000 as the Federal
Magistrates Court. Name changed in 2013.
 It was established to deal with less complex disputes under Commonwealth laws.
 Its jurisdiction includes family law and child support, administrative law, bankruptcy
law, discrimination, workplace relations and consumer protection law.
 It shares its jurisdiction with the Family Court of Australia and the Federal Court of
Australia.
 Does not deal with criminal matters

Administrative Appeals Tribunal

 Appeals from tribunals or administrative decision makers

NSW State Court Structure – Supreme Court

 Connecting with Law 137-140 [DIAGRAM 135] [on Blackboard]
 Court of Appeal
 The Court of Appeal is the highest civil court in the
 State. It hears appeals from civil proceedings before:
 the Supreme Court;
 the District Court;
 the Land and Environment Court; and
 some tribunals.
 Court of Criminal Appeal
 the State’s highest court for criminal matters. A person convicted or who
pleaded guilty and has been sentenced by a Supreme Court or District Court
Judge, may appeal to the Court of Criminal Appeal.

Downloaded by Nancygoodluck Bypatisan (nancygoodluckbypatisan@gmail.com)

 lOMoARcPSD|52115769

 Appeals may also be brought from decisions of the Land and Environment
Court in its criminal jurisdiction.

 Distinction between Common Law and equity: (connecting with law 161-162 [on
Blackboard])
 Common Law Division  The Common Law Division deals with civil, criminal and
administrative law matters.
 Civil matters
 These include: claims for damages for personal injury;
 breach of contract;
 professional negligence;
 possession of land; and
 defamation.

Criminal matters
Judges preside over criminal trials for the most serious offences. Criminal matters include:
 murder & manslaughter;
 attempted murder;
 major conspiracy and drug related charges; and
Commonwealth prosecutions for the more serious breaches of the Corporations Law.

Equity Division
The Equity Division hears equity, probate, commercial, admiralty and protective matters.

Equity matters
These include claims for civil relief which does not involve the recovery of debts or damages:
see connecting with law 173-174 [on Blackboard]. Examples include:
 claims for injunctions to restrain wrongful conduct;
 claims to have contracts specifically enforced or set aside;
 claims to have rights to property (including land and intellectual property) declared
and enforced;
 claims relating to the administration of corporations;
 partnerships;
 trusts; and
 applications under the Property Relationships Act (1984), Adoption Act (2000) and
the Succession Act 2006.

NSW Court Structure

 District Court
 Civil and criminal jurisdiction
 Jury trial
 Civil matters not exceeding $750,000
 All motor accidents irrespective of the amount claimed
 Local Court
 first tier in State court hierarchy
 administered by the Attorney General's Department.
 deals with majority of criminal and summary prosecutions

Downloaded by Nancygoodluck Bypatisan (nancygoodluckbypatisan@gmail.com)

 lOMoARcPSD|52115769

 civil matters with a monetary value up to $40,000

 some specialist functions e.g. Children's Court (care proceedings and juvenile
prosecutions), family law and coronial matters.

Specialist Courts and NCAT

 Specialist Courts e.g.
 Land and Environment Court
 Drug Court
 Children's Court
 Tribunals
see Laying Down The Law [8.64]-[8.71]
 NCAT
 Internal appeal to NCATAP

Judges – High Court

 Appointment of High Court Judges
 Judges appointed by Governor-General or Governor on advice from federal
executive council. (s72) (1)
 By convention, the federal executive council consists only of present
government ministers
 High Court Appointments
o Consultation by Commonwealth Attorney’s General with state
Attorney’s General is required – s 6 High Court of Australia Act 1979
(Cth)
o Must be a judge or be enrolled as lawyer at High Court or a Supreme
Court for 5+ years – s 7 High Court of Australia Act 1979 (Cth)

Judges
 Commonwealth
 Originally judges were appointed for life
 1977 – amendment to Constitution – retirement age 70

Appointment of Judges in NSW

 Governor-in-Council appoints judicial officers on recommendation of Attorney
General.
 Vacancies for judges of the District Court and Local Court magistrates are advertised.
 Appointment of judges to higher courts and heads of jurisdiction are made
traditionally following consultation with the head of jurisdiction and relevant legal
professional bodies.
 Appointments will be made on the basis of merit. Subject to this principle, including
relevant professional and personal qualities, there is a commitment to actively
promoting diversity in the judiciary.
 Consideration is to be given to all legal experience, including that outside
mainstream legal practice.

Professional qualities
 Proficiency in the law and its underlying principles

Downloaded by Nancygoodluck Bypatisan (nancygoodluckbypatisan@gmail.com)

 lOMoARcPSD|52115769

 High level of professional expertise and ability in the area(s) of professional

specialisation
 Applied experience (through the practice of law or other branches of legal practice)
 Intellectual and analytical ability
 Capacity to work under pressure
 Effective oral, written and interpersonal communication skills with peers and
members of the public
 Ability to clearly explain procedure and decisions to all parties
 Effective management of workload
 Ability to maintain authority and inspire respect
 Willingness to participate in ongoing judicial education
 Ability to use, or willingness to learn modern information technology

Personal qualities
 Integrity
 Independence and impartiality
 Good character
 Common sense and good judgement
 Courtesy and patience
 Social awareness

Advertised Positions
Where a vacancy for judicial office occurs, advertisements are placed in local and national
newspapers and on the Attorney General’s Lawlink
website calling for expressions of interest (EOI). The Law Society of NSW and NSW Bar
Association are also notified of the vacancy

The Selection Process

A panel, comprising the relevant head of the jurisdiction, the Director General of the
Attorney General’s Department, a leading member of the
legal profession and a prominent community member, is convened from time to time to
review EOIs against the selection criteria.

Expressions of Interest
EOIs provide a pool of candidates from which a list of suitable candidates for judicial office
may be drawn. The Attorney General may draw upon this list as vacancies arise.

Nominations
Eligible persons may also be nominated for appointment to the Magistracy and to other
vacancies for judicial office. Persons interested
in nominating another person for appointment can lodge a submission

Other Statutory Positions

Other statutory appointments in NSW that are advertised are:
Commissioners of the Land and Environment Court Commissioners of the Industrial
Relations Commission

Downloaded by Nancygoodluck Bypatisan (nancygoodluckbypatisan@gmail.com)

 lOMoARcPSD|52115769

Judicial and non-judicial members of the Administrative Decisions Tribunal [Administrative

Decisions Tribunal Act 1997 (NSW)]

Retirement Age of Judges in NSW

 Section 44 of the Judicial Officers Act, 1986 (NSW) provides that judicial officers and
magistrates must retire on reaching the age of 75 years. Increased from 72 to 75 by
the Justice Legislation Amendment Act 2018 (NSW).

Selection Criteria of Judges

 The Attorney General has approved a list of personal and professional criteria to be
considered in selecting candidates for every judicial office in New South Wales.

The statutory requirements for qualification for office are set out in the relevant
legislation establishing the court:
 Supreme Court Act 1970 (NSW)
 Industrial Relations Act 1996 (NSW)
 Land and Environment Court Act 1979 (NSW)
 District Court Act 1973 (NSW)
 Local Court Act 2007 (NSW)

Removal of Judges
 Commonwealth
 Section 72 – Governor General in Council
on address from both houses for misbehaviour or incapacity.
 State
 Governor on address from both houses for misbehaviour or incapacity.

Judicial Independence
 Conditions of judicial independence:
 Security of tenure
 Financial security
 Institutional independence

Downloaded by Nancygoodluck Bypatisan (nancygoodluckbypatisan@gmail.com)

 lOMoARcPSD|52115769

WEEK 10
Lawyers
 Step 1 – Law Degree
 Step 2 – Practical Legal Training
 Step 3 – Admission
 Step 4 – Practicing Certificate
 Step 5 – (for barristers)  reading and bar exam

Law degree
 From approved university or equivalent
 After meeting the academic requirements, the second eligibility requirement
to become a solicitor is the satisfactory completion of approved or
corresponding Practical Legal Training requirements.
 Most universities teach law as an academic discipline and provide a broad theoretical
knowledge of the law.
 Practical Legal Training provides instruction in a wide range of tasks and procedures,
such as:
 legal research
 problem solving
 legal writing and drafting
 interviewing and oral communication
 advising
 Advocacy – MVAs/low range DUI - current Notre Dame exemption College of
Law for Trial Advocacy students
 dispute resolution – current Notre Dame exemption College of Law

Downloaded by Nancygoodluck Bypatisan (nancygoodluckbypatisan@gmail.com)

 lOMoARcPSD|52115769

 Trust accounting
 Conveyancing
 Leasing
 Wills
 The NSW PLT Program leads to direct admission in the following Supreme Courts:
 New South Wales
 Australian Capital Territory
 Northern Territory
 Western Australia
 Queensland, and
 Victoria
 In New South Wales, Victoria and (soon in) Western Australia, a person is admitted to
the Australian legal profession as an Australian Lawyer
 In New South Wales, once admitted, an Australian lawyer may practise as either a
barrister (after completion of the reading course and the Bar Exams obtaining a
practising certificate through the New South Wales Bar Association), or as a solicitor
(obtaining a practising certificate through the Law Society of New South Wales).
 The Supreme Court of New South Wales may admit a person to the Australian legal
profession as an Australian lawyer if the person:
 is aged 18 years or over; and
 is not already admitted to the Australian legal profession; and
 has attained the specified academic qualifications prerequisite, and
 has satisfactorily completed the specified practical legal training prerequisite,
and
 is a fit and proper person to be admitted to the Australian legal profession,
and
 takes an oath of office, or makes an affirmation of office, in the form required
by the Supreme Court.

 Generally speaking, an application for admission as a lawyer requires an applicant to:

 complete the appropriate application form
 provide original evidence of academic qualification in law
 provide original evidence of your completion of practical legal training
 provide your original Australian National Police Certificate
 read the Disclosure Guidelines for Applicants for Admission to the Legal
Profession
 make a statement disclosing any matter which may affect the Board’s
assessment of whether you are a fit and proper person to be admitted to the
Australian legal profession, and attach relevant documentation
 provide two character references which were made by statutory declaration
 sign the statutory declaration on the admission application form in the
presence of an authorised witness
 pay the prescribed application fee (currently $900).
 All Australian Lawyers must be holder of Practicing Certificate to be entitled to
practice law

Ethics and Professional Responsibility

Downloaded by Nancygoodluck Bypatisan (nancygoodluckbypatisan@gmail.com)

 lOMoARcPSD|52115769

Duties to the court, and to uphold the law and to the administration of justice
 Profession relies on integrity
 Duty not to mislead on facts or law
 Duty of candour

Duties to the Client

 Competency – see Hawkins v Clayton (1988) 164 53
 Duty of loyalty. May extend to previous clients
 Confidentiality
 To facilitate settlement
 Fiduciary duties

 Duties to other professionals

 Duties to community

Barristers and solicitors in Australia

 Split profession:
 In New South Wales and Queensland there is a split profession.
 Counsel of each state Bar dress in the traditional English manner (wig, gown
and jabot) before higher courts, although are no longer robed for
appearances in lower jurisdictions.

 Fused professions:
 In Victoria, Western Australia, the Australian Capital Territory and South
Australia, the professions of barristers and solicitors are fused, but
nonetheless an independent bar is in existence, regulated by those States'
Legal Practice Boards.
 A similar arrangement exists in New Zealand.
 In Tasmania the profession is fused although a very small number of
practitioners operate as an independent bar.

Regulation of solicitors
 State based regulation
 NSW Legal Services Commissioner, then to Law Society
 Legal services division of the Administrative Decisions Tribunal

Towards a national profession

 Having joined the “national” regulatory system NSW, Victoria and (soon) Western
Australia admit “Australian Legal Practitioners”.
 One day maybe Australian Legal Practitioners will have the right and opportunity to
engage in the practice of law throughout Australia without restriction and without
the constriction of meeting differing State requirements for registration and
insurance. For now NSW, Victoria and (soon) WA are the “nation.”
 The structure for regulation in this “national profession” includes two new bodies
 the Legal Services Council and a Commissioner for Uniform Legal Services
Regulation;

Downloaded by Nancygoodluck Bypatisan (nancygoodluckbypatisan@gmail.com)

 lOMoARcPSD|52115769

 These bodies set the policy framework under the scheme and monitor its
implementation by:
 making Uniform Rules under the Uniform Law
 issuing guidelines and directions to local regulatory authorities on the
performance of substantive functions, to promote consistent application of
the Uniform Law across jurisdictions, and
 making recommendations to participating Attorneys-General concerning
possible amendments to the Law.
 All substantive regulatory functions (including but not limited to complaints-
handling, trust account investigations and licensing) are conferred directly on State
(and should they join) Territory based regulatory authorities. In New South Wales,
the Law Society continues to carry out existing regulatory functions and to work with
the Office of the Legal Services Commissioner in relation to complaints.
 Purpose to regulate legal practice on a national level.
 Requirements to practice
 Binding rules of professional conduct
 Complaints and discipline
 Powers of investigation into legal practice.
 All substantive regulatory functions (including but not limited to complaints-
handling, trust account investigations and licensing) will be conferred directly on
State and Territory based regulatory authorities.
 In NSW, the Law Society continues to carry out existing regulatory functions and to
work with the Office of the Legal Services Commissioner in relation to complaints.

Silks
 Senior barristers appointed as "silks" are now referred to as "Senior Counsel" in NSW
where they append the letters S.C. to their names or as “Queen’s Counsel” or Q.C. in
some other states and Territories
 "Queen's Counsel" returned at the Commonwealth level in March 2014 and they
have been reintroduced in Queensland and Victoria where those who were
appointed as Q.C. have the choice of either becoming S.C. or retaining the older title.

Qualifying as a barrister in NSW

 Step 1 - Must be a legal practitioner
 Step 2 – Pass bar exams – ethics, evidence and practice and procedure (NSW only)
 Step 3 – Reading programme (Bar Reader’s Course)
 Reading with a tutor for 12 months
 Bar Practice Course – advocacy, mediation and general skills

Ethics and Professional Responsibility

 Barristers role
 Duties (‘cab rank’ rule’)
 Liability: D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 confirmed
immunity from suit for negligent work in court
 arguments for and against: connecting with law 551-553.

Downloaded by Nancygoodluck Bypatisan (nancygoodluckbypatisan@gmail.com)

 lOMoARcPSD|52115769

Why do lawyers sometimes have a bad reputation?

 Media portrayal
 Adversarial system
 Complexity of the law
 Powerlessness of clients
 Professional immunity from being sued re Court work
 High fees and high salaries – at least the perception
 Incompetent, unethical and greedy lawyers – complaints about over-charging
 In the past a number of barristers’ failed to pay their taxes
 High profile lawyer misconduct: see Kate McClymont and Jacqueline Maley, ‘Two
High Court judges 'knew of complaints against Dyson Heydon’ Sydney Morning
Herald 25 June 2020

Law Making Procedures

 3 Alternative Procedures mirror the Separation of Powers – who makes law in each of
these ways?
 Legislation
 Delegated Legislation (i.e. Regulation)
 Precedent / Stare Decisis (i.e. Case Law)

Doctrine of Precedent
 ‘To understand case law…is to understand how it is that particular decisions by
particular judges concerning particular parties to particular cases can be used in the
construction of general rules applying to the actions and transactions of persons at
large
 Case law, or common law… is the law developed by judges, usually those in
superior courts and tribunals.”
 “[A] judge in certain legal traditions argues from precedent in relation to case law. A
new set of facts arises in relation to a dispute and a legal principle has to be applied
to these facts. How shall this be done to ensure fairness of legal application and
predictability for those in future who wish their actions to be “according to law”? The
answer is that developments must be careful, gradual and, usually “as little as
possible” to accomplish the necessary development.”

The arguments raised by the parties can effect the result e.g.
 The Commonwealth v Australian Capital Territory (2013) 250 CLR 441
 Jonathan P Robicheaux et at v James D Caldwell Louisiana Attorney General in the
United States District Court of the Eastern District of Louisiana Civil Action No 13-
5090 C/W, No 14-97 and No 14-327 Section “F”
 Ade Conde-Vidal et al v Alejandro Garcia-Padilla United States District Court District
of Puerto Rico, Civil No. 14-1253 (PG)
 Ex parte State of Alabama ex rel Alabama Policy Institute, Alabama Citizens Action
Program and John E Enslen, Supreme Court of Alabama Oct Term 2014-2015
1140460 Rel:3/3/15a

Downloaded by Nancygoodluck Bypatisan (nancygoodluckbypatisan@gmail.com)

 lOMoARcPSD|52115769

 Contrast this methodology in the formulation of legal rules with that used in the
legislative process (i.e. incremental building blocks vs framework approach).
 “[L]egislation …has greater scope to provide a complete framework of rules to govern
a given area.”

 Concept: Precedent – refers to a mode of decision making that takes into account
previous decisions in relation to similar issues.
 The doctrine of Precedent as applied in the
common law system is no more than a refined
and formalised example of normal decision
making which seeks to avoid arbitrariness and to promote efficiency, certainty and
consistency.
 ‘Precedent’ is the legal term for legal experience. We tend to repeat things we have
done before – and law is essentially no different.
 If one case has decided a point of law then it is logical that that solution will be
looked at in the future. The difficulty of course is that the principles of law have to be
applied to human situations, which is by its nature intricately varied; no two
situations are ever exactly the same, so the job of judges is to apply legal principles
to the ‘appropriate’ situations.

Definition: Precedent
 Also known as ‘stare decisis’ derived from ‘stare decisis et non quieta movere’ [stand
by the thing decided and do not disturb the calm]
 Definition: ‘keep to the rationes decidendi of past cases’
 i.e. in its shorter form, to stand by decided cases
 “The doctrine is that whenever you are faced with a decision, you always follow what
the last person who was faced with the same decision did. It is a doctrine eminently
suitable for a nation overwhelmingly populated by sheep.”

Function : Doctrine of Precedent

 Rules of the common law are found in past cases.
 The doctrine of Precedent determines the weight and authority to be accorded to
various rules and the manner in which they can be used to create a legal framework.

Characteristics of Precedent
 General Rules of Precedent are:
 Each court is bound by decisions of courts higher in its hierarchy;
 A decision of a court in a different hierarchy or lower in the same hierarchy
may be persuasive but will not be binding;
 a court is not bound by its own past decisions but will depart from them only
with reluctance
 Only the ratio decidendi of a past case is binding;
 Obiter dicta (‘remarks in passing’) are not binding but may be persuasive
 Precedents do not lose their force by lapse of time

Definition : Ratio Decidendi

Downloaded by Nancygoodluck Bypatisan (nancygoodluckbypatisan@gmail.com)

 lOMoARcPSD|52115769

 Ratio Decidendi = ‘reason for deciding’

 Ratio Decidendi = Ruling given by the Judiciary on a contentious point of law
essential to derivation of the ultimate decision in a case.
 Ratio Decidendi is a legal concept. Not every Judicial decision contains a Ratio
Decidendi.

Downloaded by Nancygoodluck Bypatisan (nancygoodluckbypatisan@gmail.com)