104841154 good-study-notes-foundies

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Heritage of the Australian Legal system
English Heritage
Anglo Legacy & Norman Invasion
Angles and Saxons introduced: p. 35
 The idea that all people ought to be subject to law, thought at the time law was mostly
customary and local.
 Written laws including:
o the writ (the document which brings legal action)
o the shire-reeve (sheriff)
o notion of the King’s Peace (beaching the peace is still a crime)
 e.g. writ of habeas corpus: a prerogative writ which orders a person detaining another to
bring them before a court so the legality of their detention can be determined
Norman Conquest (William the Conqueror):
 Introduced the feudal system. The duty to lords within regions gave rise to ‘manorial
justice’
 Doomsday book: William the Conquer sent his commissioners all over England to
count what people had and to determine the tax they owed to the Crown – it is an
extraordinarily detailed record which covered which people lived where, what they
owned , their income, their animals and so on.
Harold J Berman: Law and Revolution: The Formation of the Western Legal Tradition
(1983) p. 37
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 The kings court included official who “administered affairs of the crown” (which related
to administration, politics, military, marriage & succession)
 Officials included a justicar (to represent king/act in his absence), chancellor (in charge
of king’s secretarial staff), barons of exchequer (to help in king’s legal and business
transactions) and local magnates (who presided over local courts).
Royal Justice
 Abbot Henry’s Story p. 41: involves almost all levels of royal justice – itinerant judges,
king’s judges at Westminster and in the Exchequer, use of writs, possibility of trial by
battle, a jury trial (the ‘recognition’) and eventually the ultimate authority of the king.
 Curia Regis: the kings court/ his group of advisors who carried out his business
(succession to Anglo-Saxon witanegemot), eventually the term came to mean the courts
which operated in the absence of the king.
 Henry II:
o Introduced eyre’s: investigations into whole county at regular intervals, they
investigated sheriffs, coroners, taxes and carried out judicial work.
o Centralised royal justice system: the same judges acted as itinerant judges, went
on Eyre, and sat on the bench at Westminster meaning that a set of consistent
principles was developed.
o Increased permanent public administration including Exchequer (treasury which
managed finances and heard disputes about them), Court of Common Pleas
(disputes about land, trespass etc) and Chancery (department which co-
ordinated other departments). BY 1200’s Exchequer had Exchequer of Pleas.
 Royal courts: Eyre (took over local courts), Court of Common Pleas, King’s Bench,
Exchequer
Trial by jury p. 44
 Forms of proof in medieval England included oath taking, the ordeal (God’s justice
normally by water or hot iron) and trail by battle (for Normans).
 Henry II chose for royal courts as a method of proof the ‘recognition’ which was
essentially an early form of trial by jury. 12 knights called the ‘grand assize’ would
investigate the case and make a finding. Modern jury stems from this.
J H Merryman; The Civil Law Tradition
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 Role of jury affected the form of trials. It was not easy to convene and reconvene
everyone at once and so for practical purposes trials became events. Where all the
parties are brought together at once to perform.
 As proof: in Civil Law systems with no tradition of jury, typical proceedings are “a series
of isolated meetings of and written communications between counsel and judge”
The Magna Carta p. 47
 King John forced to sign in 1215 following his and his brother Richard’s abuse of royal
power.
 The Magna Carta ‘Great Charter’ is a foundation of the English Constitution. It limits the
arbitrary use of power, pertains to the court system (e.g. Court of Common Pleas must
be held fixed place) but most importantly it was the first instance of a restraint on the
King’s powers.
 Signals the beginning of a period in which power is steadily channelled from the Kind
and into institutions such as parliament.
 Some sections of the Magna Carta have been perceive as a call for freedom e.g. this
passage
o “No freeman shall be taken or/and imprisoned or disseised, or exiled, or in any
way destroyed nor will we go upon him nor will we send upon him , except by the
lawful judgement of his peers or/and by the law of the land”
Prisoners A-XX (inclusive) v NSW (1995) p. 48
 Prisoners seeking access to condoms, were concerned about getting STI’s. One
argument was that failure to permit condoms contravened ch 29 of the Magna Carta
 Ch 29 “No freeman shall be taken or imprisoned, or be disseised of his freehold, or
liberties, or free customs, or be outlawed, or exile, or any other wise destroyed; nor will
we pass upon him, nor (condemn him) but by lawful judgement of his peers, or by the
law of the land. We will sell to no man, we will not deny or defer to any man either
justice or right.”
 Court considered ch 29 and decided that “the application of modern standards to
ancient practice has resulted in complete misapprehension” and “it does not … provide
a statutory basis for saying that the denial of prison authorities of access by prisoners to
condoms is unlawful.” p. 50 The prisoners appeal was denied.
The Church
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 Europe was theoretically subject to papal courts, William the Conqueror opposed the
pope’s claim of superiority over the Church of England.
 William the Conqueror separated church and non-church courts.
 Church or Ecclesiastical courts applied canon law (based on the Bible and Church
statutes) and existed as part of the legal system until 1857. Had jurisdiction over
marriage, divorce, legitimacy of children, making of wills, passage of property after
death, punishment of moral sins (adultery, fornication and gluttony).
 Henry II asserted supremacy over the pope via the Constitution of Clarendon in 1164,
dispute followed after which determined that clergy were to be tried in Church not Royal
courts.
 Benefit of Clergy, sanctuary and abjuration p. 53
Milsom: Historical Foundations of the Common Law p. 52
 Christian courts were the earliest courts that would look to us like law courts. Usually a
single judge tyring to ascertain the facts using evidence and witnesses, and then
applying rule of law which were written down and could be looked up (Bible & Church
Statutes)
Women p. 54
 In medieval times women were protected in law only by equity and by dower.
Blackstone: Commentaries on the Laws of England
“By marriage the husband and women are one person in law; that is, the very being or
legal existence of the woman is suspended during the marriage, or at least incorporated
and consolidated into that of the husband; under whose wing, protection and cover she
performs everything”
Origins of Civil/Criminal Law and Equity p. 55
Equity:
 Chancellor was head of king’s clerks or secretariat (the Chancery), and during the time
of Charles II stepped into role of chief advisor to the King.
 If a litigant felt justice had not been done in common law courts, they could appeal to
the King in Council (Curia Regis), if the King referred the petition to the Council it would
go to trial. The Council delegated this role to the Chancellor, who exercised royal power.
From 15th
century, petitions went straight to the Chancellor. The chancellors court was a
court of conscience.
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M Chesterman: ‘Equity in the Law’ (1981) p. 56
 Lord Chancellor “acted explicitly in the name of morality and justice”
 System began to evolve into a separate set of legal principles where the common law
system was insufficiently responsive to social change. E.g. development of trusts, called
‘uses.’
 Equity took over from church courts in many areas of wills & deceased estates
 Equity involved in judicial remedy: could order injunctions to compel or restrain actions.
 By 18th
century had become rigid set of rules distinct from common law
R Atherton & P Vines: Succession: Families Property and Death (2003) p. 58
 If women had equitable interests e.g. a trust, only then could she may be able to seek
remedies in a court of equity. NB this was generally only an option available to wealthy
women.
Criminal/Civil
 Criminal & civil law not always as distinguishable as they are now. Used to be that an
action such as trespass was both a wrong to the injured plaintiff and also an offence
against the King’s peace.
C R Jeffery: ‘The Development of Crime in Early English Society’ (1969) p. 61
 During Henry II’s reign the writ of trespass was introduced: it allowed damages for the
litigant, trial was by jury and initiation of Criminal trials was now by the Crown.
 King’s peace extended all over England, making the King the source of law with total
jurisdiction.
 Notion of criminal responsibility emerged e.g. agreements between killer and victim’s
family to not prosecute no longer stood, offence was to the King. As the crimes were
considered sins, punishment was required – thus concept of crime developed as an
interaction between church and state.
Civil War & Glorious Revolution
 Civil war: dispute about who had the ultimate decision over power: the King, the
Parliament or the Common Law. Charles I was beheaded 1649 without first being
deposed.
 Interregnum: 1649-60 when parliament ruled and learned to govern. During this time
were attempts to codify law, and parliament asserted its right to legislate on anything.
 The restoration: when parliament invited Charles II back to rule in 1660, his brother
James II succeeded him and came into conflict with parliament and the Protestants. An
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Assembly of Peers invited William of Orange (Husband of Mary, James II’s protestant
daughter) to invade. He did and became king on the basis of the Bill of Rights 1689
drawn up by parliamentarians.
 Bill of Rights 1689: p. 107-110 it did not ensure parliamentary sovereignty, but placed
limits on the king’s power e.g. king could no longer suspend legislation but royal
prerogative remained such as ability to call and dissolve parliament, ability to choose
and dismiss minister, and authority over foreign affairs.
King vs. Common Law & Parliament p. 88
 James I: believed in the divine right of kings. (speech to parliament p. 88)
 Common Lawyers disputed this, notable Sir Edward Coke.
J P Sommerville: Politics and Ideology in England (1986) p. 90
 Considers arguments about English common law in elation to the king’s power and the
power of parliament.
 For common law-
o Coke: anti-absolutist, 1608 denied that the ultimate right to interpret laws lay with
the king, denied king could stop common law proceedings. Influence by
Fortescue who believed that the purpose of government was the protection of the
persons and the property of the governed.
o Common Law is the best of all laws because it is ancient custom and it is the
quintessence of reason that had been ‘fined and refined’ by the wisdom of most
excellent men.
o Dodderidge: ‘the Science of Sciences’
 For parliament – Sir Thomas Smith 1565 “the most high and absolute power of the
realm of England consisteth in the Parliament.”
 Common lawyers elevated parliament to almost a level of sovereignty, but still asserted
the superiority of common law – contradiction? P.95
o The higher law from which parliament derived its power to enact statutes was,
according to the lawyers, the common law.
Common law vs. Parliament
 Lawyers alleged that the power to determine what the common law was should lie with
parliament and the judges.
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 However in Bonham’s case, Coke tries to give power to judges to ignore statute (short
lived). Fails for 2 reasons: 1st
would give judges legislative sovereignty, and 2nd
judges
were royal appointments and see as too susceptible to political pressure.
 Dominant opinion that parliament had power to interpret laws.
Bonham’s case (1610) p. 97
 Dr Bonham brought action for false imprisonment against the President and Censors of
the College of Physicians who alleged they had power from the king to decide who
could practice medicine and fine/imprison anyone it did not think should do so.
 “for when an Act of Parliament is against common right and reason, or repugnant, or
impossible to be performed, the common law will controul it and adjudge such an Act be
void.”
Royal Prerogative
J P Sommerville: Politics and Ideology in England (1986) p. 97 and 98
 “just as the common law granted supreme legislative and judicial authority to
Parliament, so, the lawyers held, it guaranteed certain powers to the king… known as
royal prerogatives.”
 Absolutist believed kings power was from God and therefore was unlimited, many
lawyers conversely believe the King was afforded only those rights which he possessed
in law.
 Lawyers: king had prerogative powers which were for the benefit of good government
e.g. during war, did not have prerogative to overrule common law, but could through
parliament overrule judges.
 Coke and his colleagues imposed strict rules on the King’s authority (though admitted
no human superior) and asserted that the king was under the law.
Case of Prohibitions (1607)
 Parliament got its power from common law, parliament & judges can decide what the
common law is, parliament is the king-in-parliament so king is sovereign in parliament
and thus derived from common law.
 “the King hath no prerogative, but that which the law of the land allows him” p.104
Legal Profession
Rise of Legal Profession p 68
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 Time of Henry II litigants began being represented by friends or family, during 13th
century attorney gradually began to act for litigants around this time distinction between
attorney and ‘narrator’ developed. (similar to solicitor vs. barrister)
 No attorneys in court of chancery but in 15th
century solicitors began to act for litigants
In 16th
century solicitors and attorneys began to amalgamate.
 1260: Year Books begun to be written, their purpose to supposedly record the
intellectual aspect of litigation for future study.
 At this time study of the law was essentially study of writs (which ones are for what) and
court procedure e.g. Year book extract on p. 71
 Coke: “the artificial reason and judgement of law, which law is an act which requires
long study and experience before that a man can attain to the cognizance of it”
Women Lawyers p. 80
 Women not allowed into legal profession until 20th
century
Re: Edith Haynes [1904] p. 80
 Haynes sought to be admitted as a legal practitioner under Legal Practitioners Act 1893.
 PARKER J: “if the legislature intended to make women eligible for admission to the
Court, then they should have said so in express language.”
 BURNSIDE J: considers ‘any person’ to mean ‘any man’ as that’s what he said the
writers would have meant.
Mary Gaudron: Speech to launch Australian Women Lawyers p. 82
 Goes through much of the resistance women lawyers faces into the 20th
century.
Development of Common Law Checklist
William the conqueror  organised administration
Writs and modes of proof
Henry II made juries and modes of trial
Doomsday Book (record keeping)
Magna Carta  Settlement Act  Bill of Rights
Role of local and customary law (decreased over time, instead replaced by central principles of
common law)
Canon Law: William the Conqueror decided to split cannon and common law. Christian courts
deal with cannon law, not just matters pertaining to the courts.
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The Doctrine of Precedent
stare decsis et not quieta movera
‘to stand by what has been decided and not to disturb settled points’
RULE: the courts must uphold the ratio decendi (reason for decision) in higher courts. NB not
bound by obiter dictum (material said by the way).
Ratio decendi: any rule of law expressly or impliedly treated by the judge as a necessary step
in reaching his conclusion.
Obiter dictum: means a statement made by the way, often considered judicial opinion – it is not
binding.
R Cross & JW Harris: Precedent in English Law: p. 329
 Decide that the central idea of the doctrine of precedent is that it involves a rule of law
and in particular a rule of law which is used by the court to come to its decision.
 “Not everything in a judgement becomes precedent… this status is reserved for
pronouncements on the law.”
 Judges may not prevent their judgment becoming precedent
 Judges may not deviate from the ratio decendi of higher courts unless they consider the
two cases ‘reasonably distinguishable’
 “even when the ratio decendi of a previous case is merely a persuasive authority, it
must be followed in later cases unless the judge has good reason to disapprove of it”
Early Development of Doctrine of Precedent
Forms of Action p. 63
 The chancery kept precedents of the writs they issued: The Register of Writs. Writs
defined the form of action, litigants had to find a writ that the court could recognise and
that fit the facts of their case.
 Judges would normally decide the writs in the same ways they had in the past.
 Writ’s established some long standing complaints e.g. trespass on the case in tort law
was originally a writ.
Legal Reporting p. 73
John P Dawson: The Oracles of the Law (1968)
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 Judges used precedent in a way, through their memories of cases.
 Year Books: neglected the outcomes of cases, in part because writs contained rules
and the decisions could be wrong.
 Plowden’s Reports: Edward Plowden first lawyer to publish set of reports. Had a high
standard of care an accuracy, and closest to modern law reports for the next 200yrs.
 Dyer’s Reports: Sir James Dyer (CJ of Court of Common Pleas) wrote more in style of
year books, were personal notes with some cases expounded fully others just disjointed
comments. Though considered useful as they described 100s of cases and gave
glimpse into life of leading judge.
 Coke’s Reports: wrote in every conceivable style and method, sometimes modelled
upon Plowden, other times in haphazard style of the Year Books. Reported 467 cases.
Not as meticulous as Plowden, often falsified authorities, misconstrued judgements
 English Council of Law Reportion set up in 1856 (Australian colonies in 1860’s) to report
judgement of superior courts. Reports were checked before publication – authorised.
Law Reform/Legacy of Forms of Action
 Writs and the law/equity division made the system expensive, slow and complicated so
in 1832-33 most forms of action were abolished replaced by a write where litigants
inserted their own form of actions. Diff forms of action could be combined in one writ as
per Common Law Procedure Act 1852.
 Legacy of forms of action in their effect on the conceptual development of law, language
and process still reflected that e.g. some common forms of action need to meet certain
requirements to proceed. E.g. see torts of trespass
 Three Royal Courts were joined into one High Court – distinctions between types of
legal practitioners began to disappear.
Conflicting Judgements
RULE: Decisions made by multiple judges will be determined by the majority of judges.
 If, in a majority, the judges use differing legal reasoning other courts will have to
determine whether a majority reasoning can be determined – if one can then that will
the ratio decendi.
 If no majority reasoning can be found, the rule the case stands for will usually be stated
at the narrowest version of the rule which most judges agreed with and which led to the
same outcome.
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Judiciary Act 1903 (Cth)
S23: High Court needs a majority of at least 3 judges to make determinations as to
constitutional powers of the Commonwealth. In cases of an even divide, the majority will be
considered the group including the Chief Justice (or if CJ is absent, then the Senior Justice).
Hierarchy of the Courts & Authority p. 332
RULE: courts are bound by the decision of higher courts within their own hierarchy.
 In Australia, all states have their own hierarchy with the High Court at the top.
 Decisions outside the hierarchy may be persuasive in similar cases – the level of
persuasiveness varies. Courts from similar jurisdictions (e.g. criminal), similar legal
systems (e.g. common law like UK and Canada) and courts higher up in another
hierarchy are most persuasive.
Precedent and Change
RULE: Change occurs when a court considers a case sufficiently distinguishable so as to not
follow precedent and instead make new legal rules pertaining to the new situation.
Dorset Yacht Co Ltd v Home Office [1970] p. 335
 “The cases which are landmarks in the common law, are instances of cases where the
cumulative experience of judges has led to a restatement in wide general terms of
characteristics of conduct and relationships which give rise to legal liability.”
Donoghue v Stevenson [1932] p. 335
 Warned against making judgments in overly-wide terms
 “it is of particular importance to guard against the danger of stating propositions of law
in wider terms that in necessary, lest essential factors be omitted in the wider survey
and the inherent adaptability of English law be unduly restricted… the actual decision
alone should carry authority, proper weight, of course being given to the dicta of the
judges”
The Rule of Law
AV Dicey: Introduction to the Study of the Law of the Constitution p. 111
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 Rule of Law has 3 main features
1. The absolute supremacy or predominance of regular law as opposed to the
influence or arbitrary power’ (prevent govt from exercising arbitrary power)
2. Equality before the law. All classes of people are equally subject to the law which is
administered for all in the same courts.
3. The “constitution is the result of the ordinary law of the land” (Dicey p. 203)
 Later conceptions of the rule of law have continued to emphasize the prevention of
abuse of arbitrary power.
 Rule of law to have rules to restrain governmental power such as the idea that all
government powers (bar the legislature) shall be distributed and determined by
reasonably precise laws.
 The rule of law draws upon o number of doctrines to create restrains upon the power of
governments including:
o the separation of power,
o doctrine of the independence of the judiciary,
o doctrine of parliamentary sovereignty,
o responsible government
 The struggle for the rule of law can be seen in the English struggle for restraint of the
King’s power and the promotion of parliamentary sovereignty in the Bill of Rights.
 In Australia the power of the Governor to make legislation base on royal prerogative
was fought by colonists using similar arguments to those used in the lead up to the
Glorious revolution e.g. restrictions on royal power, supremacy of the common law etc
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Settlement & Indigenous Population
Colonists & Early Legal System
Vines, Chapter 7
Colonists & Convicts p. 156
 The convicts: The criminal legal system in Britain was cruel and often unfair. The death
penalty applied in cases of what we would now perceive as petty theft and nuisance.
Robert Hughes (The Fatal Shore) found that most convicts transported in the firsts fleet
were working class people mostly convicted of the first time offence of theft, not
hardened criminals like M Clarke and A G L Shaw suggested.
 From 1788 to 1868 – 158 829 convicts were transported to Australia.
 Captain Arthur Phillip of the Royal Navy was appointed the first governor of NSW.
 One the colony began to settle down, land grants were made to men on the basis of
marriage and children. After expiration of his sentence, men were granted land. P. 158
The Early Legal System p. 158
 First Charter of Justice 1786 (royal prerogative) and statue of 1787 established a
Court of Judicature for criminal cases in the colony. Involved judge-advocate
(prosecutor and judge) and 6 officers, similar to military. Charter also established a
Court of Civil Jurisdiction consisting of the judge-advocate and two others. Right to
appeal to the Governor.
 Kable case: the first civil case tried in Australia was tried in the Court of Civil
Jurisdiction. The Judge-advocate David Collins, called the Captain accused of theft and
found for the plaintiffs (Henry and Susannah Kable) p. 159
 Doctrine of Attainder: English law at the time held that a person convicted of a crime
was civilly dead (‘attainted’). In 1820 the Supreme Court held that convicts and even
people who had been pardoned did not have civil rights. Was held in one of the Eager
cases that even those who had pardons in NSW were still subject to attainder as their
pardons had not been issued under the great seal. P. 161
 Second Charter of Justice (1814) (est. by royal prerog) established s Supreme Court
with civil, criminal and equitable jurisdiction with a judge and 2 magistrates. Also est. a
Governors Court headed by judge advocate and 2 other of governor’s choice.
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 The early development of the legal system involved similar argument to those used by
advocated in the Glorious Revolution e.g. representative government, restraint of
arbitrary power, rise of parliament, restrain of government’s power etc.
Emancipists vs. Exclusivists p. 163
Emancipists: people who had come to the colony and had later been freed, and free
settlers sympathetic to their aims. Withed to extend their own power to be allowed to
participate in organs of the colony e.g. acting as jurors able to vote etc.
Exclusivists: those who came to the colony as free settlers or military men. They wished to
dominate have institutions stay in their hands.
Much of the dispute between the two groups was fought in the courts with people using
argument of the rule of law referring to the Magna Carta, the Bill of Rights and GR
arguments.
David Neal: The Rule of Law in a Penal Colony: law and power in early NSW p. 165
Thought that the idea of a rule of law was deeply imbedded in the colonist’s minds. E.g.
Governor of Minorca had successfully been sued for illegal detention.
The courts/law became the means of expressing and contesting the differing conceptions
of social and economic relations
Colonists used the arguments underpinning England’s own government to argue for a
colony government, making it difficult for England to refuse for long.
Use of courts like this vested considerable power in judges.
Fight for Trial By Jury p. 166
1819 petition to monarch made by emancipists asking for trail by jury in civil as well as
criminal matters, even sent a representative to England to argue their case (Ed Eager
and Will Redfern)
New South Wales Act 1823 provided for a Supreme Court, Legislative Council,
Intermediate Courts and juries civil cases where both parties agreed. New Governor
introduced juries into these new courts. Magistrates continued to exclude emancipists
(as they were attainted) until Jury Act 1829 (NSW). Juries for all criminal cases was
finally won in 1833.
Fight for Representation vs. Governor
 Charter of Justice gave the governor extensive powers, until 1823 the governor had
king-like power as it was restricted only by directions from Britain which were slow to
arrive (not even restricted by legislature!). p. 162
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 Governor was the sole source of legislative and executive power and was also the final
court of appeal.
 Following Second Charter of Justice could exercise prerogative of mercy.
 NSW Act 1823 est. Supreme Court that could keep powerful people in check, but
Governor still dealt with appeals AND could make legislation in consultation with new
Legislative Council. P. 168
 Following Australian Courts Act 1828 (Imp) appeal bypassed governor for first time
straight to Privy Council.
 Act of Settlement 1701 meant judges were appointed by Britain making it clear that the
courts were now separate from the governor. E.g. Sir Franges Forbes (1st
CJ of
supreme court) upsetting Governor Darling by refusing to let him control the press
telling him it was inconsistent with English Law. P. 169
From 1815 the courts began to overrule the Governor. 4 eg’s on p. 170-1
 The Australian (Owned by W C Wentworth) and The Monitor were newspapers that
frequently argued against the governors powers, and for representative government p.
171
 Following a commission the NSW Act 1823 was passed, representation was by an
unelected Legislative Council. The governor need a majority to make legislation or just
one if he was convinced it was essential as long as CJ said was lawful (beginnings of
repres govt). The council was expanded to 15 members in 1828.
 The first NSW Constitution est. in 1842: Leg Council up to 36, candidates could stand
for election if they fulfilled certain requirements. For 1st
time the governor was
responsible to the legislature.
 Colonies encouraged to draft new constitutions, all involved 2 houses of parliament VIC
was most progressive p. 173
English Law – What applied? P. 174
 Date of reception: All English law which was in force on 28 July 1828 was in force so far
as it was relevant to the colony following the Australian Courts Act 1828 s24
 Doctrine of Repugnancy: all law repugnant to English law was void. Problem in SA
where Justice Boothby struck down nearly everything making governing impossible. In
response, Imp parliament formalised doctrine of repugnancy and paramount force in the
Colonial Laws Validity Act 1865 (imp)
Cooper v Stuart (1889) p. 175
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 Cooper alleged that a clause in a grant of land made in NSW the rule against
perpetuities. Stuart claimed that it was not part of NSW law in 1828
 Lord Watson “in so far as it is reasonably applicable to the circumstances of the Colony,
the law of England must prevail” rule against perpetuities inappropriate in a young
colony. Appeal dismissed.
Dugan v Mirror Newspapers Ltd (1979) p. 179
 Dugan alleged defamation, but at trial Dugan was considered attainted because he had
been sentenced to death for a felony. Ct of appeal dismissed Dugan’s appeal, he
applied for special leave to appeal to HC.
 Refused: doctrine of attainder still active as was part of law in 1828, death penalty (and
attainder with it) not abolished until 1955 in NSW)
Independent Legal Systems in the States
ch 8
 Authority for new state constitutions came from Britain
 Bicameralism: house of the people and house of restraint, bicameral parliaments were
adopted by 5 of the 6 states (not QLD) p. 187
Powers of State Parliament
From UK the idea of parliamentary sovereignty. The phrase ‘peace, order and good
government’ has been held by the courts to grant plenary power
Union Steamship Co of Australia v King (1988) p. 189
 Seamen for compensation from s48 of Workers Compensation Act 1926 (NSW),
appellant (Union SS) claimed the Act did not operate for the ‘peace, welfare and good
government of NSW’ as it operated extraterritorially.
 The phrase grant plenary power in NSW and the “fact that the ship is registered in New
South Wales is a sufficient connection with the State to enable the Parliament to apply
its laws to the ship.” P. 192
NB. More limits on state power back then than now, s 5 of Colonial Laws Validity Act held that
some laws needed to be approved by Britain. Following the 1926 Balfour Declaration the
colonies were declared autonomous and that the Crown would follow their wishes. P. 192-3
Re: Manner and Form
By which state parliaments can limit the actions of future parliaments.
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Attorney General (NSW) v Trethowan (1931) p. 194
 Jack Lang tried to abolish the Legislative Council and attempted to repeal the manner
and form provision of a referendum.
 Court found that the Bill was unable to be presented for assent as they had not
complied with the manner and form provisions detailed in s 7A of the NSW constitution.
Moving toward Independence (from Privy Council) p. 200
 Statute of Westminster 1931: no Act of UK Parliament would extend to a dominion
unless specifically stated so  Australia adopted this in 1942, but the states never did
and so were still bound by the Colonial Laws Validity Act.
Viro v The Queen (1978) p. 290
 Viro was convicted of murder by pleaded self defence. He appeal on the ground that the
judge directed the jury about self defence with reference to Palmer v The Queen which was
a Privy Council Decision.
 The court found that the High Court was no longer bound by the Privy Council.
It was still theoretically possible to appeal to the Privy Council.
The Australia Act 1986 (Imp) and The Australia Act 1986 (Cth) were passed
simultaneously, they:
 terminated appeal to the Monarch and the PC.
 Terminated legislative restrictions on parliaments of states
Federation
Vines, Chapter 9
 Federation of Australia was decided by referendum of people (2nd
in world)
 Federation was a popular idea that took a long time to get to, many Conventions and
negotiations took place in the lead up – involving NZ at one point, and never WA, only
jumped on at the end.
 Federation came into effect when the newly agreed upon constitution was passed by
British parliament and came into effect Jan 1 1901
Right to Vote p. 210
 The constitutional basis for the right to vote is in sections 5 and 30 where it is states that
“in the choosing of members of parliament each elector shall choose only once”
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 Women and aboriginals were generally disenfranchised
o Women in SA and WA cold vote but in other state could not.
o Aboriginals banned from voting in QLD and WA, NSW banned aboriginals living
on reserves from voting (which effectively mean all), SA had similar restrictions,
but VIC had no barring legislation, and some aboriginal men did vote.
 Commonwealth Franchise Act 1902: provided universal adult suffrage for
Commonwealth elections (over 21yo) for those who had the right to vote in their own
state. So had to wait for states to let them vote.
o NB Women had the right to vote in federal elections and thus the right to stand
for election to from now too (first country in the world to award both). State
eligibility varied (table on p. 212 shows dates)
 Commonwealth Elections Act 1962: gave all indigenous people the right to vote.
Federal Constitution p. 214
 The constitution is concerned particularly with restrictions of power (sep of powers) and
the structure of government (Ch 1-3).
 The separation of powers in one of the main doctrines which attempts to prevent the
abuse of power
o Boilermakers Case (1956) confirms that the constitution “is based on the
separation of the functions of government, and the power which is confers are
divided into three classes – legislative, executive and judicial” p. 215
 The emphasis of sep of powers in the constitution relied heavily on responsible
government – i.e. the separation of judicial power from other forms of power so that the
judiciary can hold the other forms responsible.
 Commonwealth vs. State Powers p. 216
o The constitution confirms the states but shows they are bound by it.
o The specificity of commonwealth power is a result of the states desires to remain
autonomous.
o Power has recently been shifting toward the Commonwealth with the ability to
overrule/resolve inconsistent state legislation and with the advent of things such
as the external affairs power (Tasmanian Dams Case 1983) p. 217
 Rights in the Constitution
o Distinct lack of stated rights in the constitution (beyond right to vote)
o Right to jury had been interpreted away and now comes from statue
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o Protection of religion is in s116 which related to states and so is read narrowly
o S 177 guarantee equal treatment of state residents
o S 51 ‘on just terms’ re: acquisition of property
o Implied right of political free speech held by High Court
o Rights are otherwise imbedded by statute or common law e.g. ACT & VIC have a
Bill of Rights p. 218
 Changing the Constitution: s 128 requires that a referendum of electors must be held
with a majority result in order to change the constitution.
Separation of Powers in Action
Kable v DPP (NSW) (1997) p. 221
FACTS:
o NSW Parliament passed the Community Protection Act 1994 (NSW) which would
oblige the Supreme Court to imprison pre-emptively Gregory Wayne Kable if he was
considered to be dangerous - to protect the community.
o Kable argues Parliament was exercising judicial power
CRUCIAL ISSUE: Is the Community Protection Act 1994 an exercise of judicial power by the
Parliament and thus void for breaching the separation of powers?
JUDGMENT:
 TOOHEY: the act compels the court to act in a certain way which is contrary to the
separation of powers, but no proof the sep of powers exists in NSW. It offends Ch III of
Constitution which provides that persons may have their interest determined by judges
independent of the legislature and exec.
 “offend that aspect because it requires the Supreme Court to participate in the making
of a preventative detention order where no breach of the criminal law is alleged and
where there has been no determination of guilt” p. 222
 Court found Act incompatible with Ch III. Found for Kable.
 NB. BRENNAN CJ, DAWSON, TOOHEY and MCHUGH JJ found that separation of
power doctrine does not operate in NSW
Farden v Attorney-General QLD (2004) p. 223
FACTS: Similar to Kable case above, but involves the Dangerous Prisoners (Sexual
Offenders) Act 2003 (QLD) but the Act was not person specific but referred to people who
would pose an “unacceptable risk” of reoffending.
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CRUCIAL ISSUE: Is the Dangerous Prisoners (Sexual Offenders) Act 2003 (QLD) an
exercise of judicial power by the Parliament and thus void for breaching the separation of
powers?
JUDGMENT
 Act is not incompatible with CH III of the Constitution, it provided court with discretion.
Early Impact on Indigenous Population
Vines, Chapter 6
R v Wedge (1776) p. 9
 Wedge argued that the court had no jurisdiction to try him for murder as both the
accused and the victim were aboriginal.
 Court found that aboriginal people are the subjects of the King p. 11 therefore the court
had jurisdiction.
Colonists failed to recognise Aboriginal culture as a valid system, allowing them to classify the
land as terra nullius.
Colonial Attitudes & Terra Nullius p. 115
 “You are also with the consent of the natives to take possession of convenience
situations in the country” – Instructions given to Captain James Cook before setting sail
in 1786. Why did this not happen? P. 116
 In 18th
Century international law writers & English Law p. 118-9
o De Vattel in The Law of Nations: a nation can take possession of vacant
countries and thereby acquire “empire of sovereignty,” but must use land.
o Hugo Grotius: discovery is only possible if land is vacant
o John Locke: laws of nature provide that labour is needed to establish ownership
of the land.
o Blackstone: differentiated between conquered and settled colonies, but said to be
an occupier one must manifest a will to possess the land as ones own. Classified
Aboriginals as having ‘transient possession’
o 1722 Privy Council held that if a country was uninhabited and settled by the
English then the subjects carried their laws with them and the new land would
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also be covered by English law. NB. If conquered then the conquered law exist
until the conqueror says otherwise.
 Terra Nullius: could refer to a land empty of inhabitants or also a land without
recognisable sovereignty. Europeans did not recognise aboriginal systems and so
Australia was classified as the latter form of terra nullius. Neither sovereignty not land
rights were recognised.
Kevin Gilbert: Because a White Man Will Never Do It (1994) p. 122
 No fences in the European way, but there were markers clear to indigenous eyes that
showed boundaries of territory – mountain ranges, rocks, trees, waterholes.
 Land is a spiritual entity for indigenous people, which is why it was impossible to ‘buy’ or
‘take’ the land, they are tied to it.
 “virtual slavery” following settlement with reliance formed through tobacco, sugar etc.
Attitudes of Colonists
 Varied, some colonists ignored them, others tried to be fair and buy their land from
them.
 A letter patent establishing the colony of SA clearly stated the rights of aboriginal
natives (p. 124), but these were blatantly ignored by the commissioners of the colony.
Similarly the 1889 WA Constitution provided for annual payments to be set aside for
welfare of aboriginals, the sum was never paid. P. 124
 Some colonists favoured an assimilationist approach. In the 1950’s govt policy of
assimilation began including the removal of children from parents. Aboriginals
considered assimilated were excepted from such treatment and were given citizenship
rights. e.g. Albert Namatjira
Namatjira v Raabe [1959] p. 125
 Namatjira was convicted of supplying alcohol to a ward of the state, he appeal his
sentence and also the conviction on the basis that the ‘ward’ was not given notification
of wardship thus voiding the declaration of warship.
 The HC declined special leave to appeal, finding that the appeal process regarding
wardship negated the requirement that ward be given notice and thus that block
determinations were appropriate.
Land & Life: For a long time non-indigenous people struggled to recognise the nature of the
relationship aboriginal people have with the land.
Milirrpum v Nabalco (1971) p. 129
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 Govt. granted mining leases without consulting the native population. The Aboriginal
inhabitants claimed they had a right to occupy the land based on a common law
doctrine of Aboriginal title.
 Court found that there is no propriety interest shown in the sense of owning land as in
property law, but acknowledged that it is more accurate to say “ the clan belongs to the
land than the land belongs to the clan.” (p. 130). Recognised aboriginal customary law.
The Legacy
 Indigenous people are the mos disadvantaged in Australia: p. 131
Die at twice rate of non-indigenous population
Mortality rates of infants are double
Receive less social security that non-indigenous people (p. 135)
Overrepresented in gaols
Overrepresented in deaths in police custody and prisons (because higher no.)
Indigenous women over 20x more likely to go to prison
 Prue Vines: ‘When Cultures Clash: Aborigines and Inheritance in Australia’
Myths about aboriginal people in Australia are rife and damaging
Aboriginal people are either traditional or non-traditional: simplistic divisions don’t
refect the complex tribal systems nor abuses suffered
Traditional Aboriginal people are all part of same culture: this myth is gradually
giving way.
Aboriginal people living urban lifestyles have the same beliefs about family and
culture as other urban people: assumption of ‘losing’ their culture is false, strong
sense of culture.
Aboriginal people are not interested in property of inheritance: often a convenient
misconceptions, the land is vital to aboriginal culture the focus is sometimes not
as much ownership as the inheritance of the sacred and the relationship
Aboriginal people are defined by blood: e.g. half caste. Normally they perceive
themselves as ‘of aboriginal descent’ the proportion does not matter
Indigenous Developments
Chapter 10
Central issue for most indigenous people was the lack of recognition of their right to land – it is
the basis of their customary law, the loss of which led to crippling poverty and destruction.
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Mabo and Ors v Queensland (No 2) (1992) p. 233
 Recognised for the first time the legal fiction that Australia was terra nullius, the HC held
that native title to land could exist separately from the common law and based on
indigenous customary law.
 However BRENNAN J qualified that “this court in not free to adopt rules that accord
with contemporary notions of justice and human rights is their adoption would fracture
the skeleton of principle which give our body of law its shape and internal consistence.
 All judges except DAWSON J agreed that native title could exist at common law, that it
was determined by traditional customary law, required traditional connection to the land,
and could only be extinguished by a clear and plain intention. P. 249
After Mabo
Keating Govt. passed Native Title Act 1993 (Cth) to est. legal framework and restrict
implications of the case.
Next issue was whether pastoral leases extinguish native title…
The Wik Peoples v Queensland (1996) p. 250
TOOHEY J:
“no necessary extinguishment of those [native title] rights by reason of the grant of pastoral
leases under the Acts in question”
“Once the conclusion is reached that there is no necessary extinguishment by reason of the
grants, the possibility of the existence of concurrent rights precludes any further
question arising in the appeals as to the suspension of any native title rights during the
currency of the grants”
Court agreed that the claim of native title should be upheld.
Consequent amendments after Wik, including a 10-pint plan by the Howard govt to amend the
Native Title Act and more case law (Yorta Yorta), made it much more difficult to establish
and easier to extinguish native title. P. 258
S Brennan ‘Native Title in the High Court of Australia a decade after Mabo’ p. 258
 Yorta Yorta set a new benchmark for the establishment of ‘traditional’ character of
native title
 the HC ruled that the traditional law “must have continued substantially interrupted since
sovereignty’ (at 87 Gleeson CJ, Gummow and Hayne JJ) and must be regarded as
authentically traditional.
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Changes?
 1967 referendum, Australians voted to give commonwealth power to make laws with
respect to Aboriginal people i.e. could be included in census and receive citizenship
benefits.
 White Australia Policy ended in 1973
 Australia begins to pride itself on multiculturalism
 Racist influence still present in ‘fear of other’ e.g. popularity of One Nation, children
overboard and response to TAMPA.
 How far will Aboriginal customary law be accepted into common law?
WA Law Reform Commission ‘Recognition of Aboriginal Customary Law’ p. 261
 Existence of customary law in aboriginal communities is “”beyond doubt,” and there is a
huge diversity of laws – “no single system”
 Problem of recognition:
o Could violate principle of equality before the law, special treatment?
o Customary law may violate international law e.g. spearing or child marriage
o Collective rights may conflict with women’s rights
 Therefore blanker recognition is not possible, but recommends “to make space within
Western Australian law for recognition and respect of… customary law” p. 262
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Current Australian Legal System
The Australian System in the World ch 2
Common Law vs. Other
The Australian Legal System is a common law system of law. Other legal systems include:
 Civil Law Systems: private law is codified (marriage, Inheritance etc), statutes and
regulations are the only source of -judges are not. Mostly no juries. e.g. Germany,
France, Italy
 Islamic Law (Muslim Law): based on the Qu’ran p. 19-20
 Talmudic Law: based on the first 5 book of the Bible p. 21
 Customary Law: laws of indigenous people around the world, e.g. Aboriginal Customary
Law, based on customs and traditions p. 22
 International Law: based on customary law and treaty (convention) law
International law in a domestic setting
Dualist vs. Monist approaches: Monists see international law as becoming domestic law after
ratification, Dualists see them as two distinct systems. Australia (like the UK, Canada and NZ)
take a dualist approach. Result is that sometimes domestic law or practice may be in conflict
with international law, and international law does not become part of domestic law until is it
legislated. P. 24
Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) p. 25
FACTS:
 Mr Teoh denied permanent residence on the basis of his criminal record. His mother-in-
law alleged that he was the only one who could keep the family together including 7
children under 10 all of whom were Aus citizens. The decision to deny Mr Teoh
residency was not specifically in the Act by as a result of policy directions, therefore
Minister exercising statutory discretion – executive power)
CRUCIAL ISSUE:
 Are decision makes obliged to conform to international Conventions?
JUDGMENT:
 MASON CJ & DEANE J: international law must be legislated before ti becomes part of
Australian law. Statues ought be interpreted and applies “so that it is in conformity.. with
the established rules of international law” p. 28
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o Distinguishes between a legitimate expectation to act in a certain way and being
bound to act in a particular way. P.29 if not bound, still procedural protections to
address this.
o Found for Mr Teoh
 TOOHEY J & GAUDRON J: Found for Mr Teoh as the Convention was not considered
and he was not notified that this was the case and therefore had no way of arguing
against it.
 MCHUGH J (diss): not legitimate expectation arose to act in accordance with
convention.
Adversarial vs. Inquisitorial
Table of Differences p. 270
Adversarial: parties are in charge of the action (they initiate, collect evidence, call
witnesses). Parties present their case to a neutral tribunal (judge/jury). Judges are mediators
and interpreters of they law, their judgements become law, in cases of juries they direct the
jury. e.g. UK, Australia, Canada, US
Inquisitorial: judges take an active role, directing parties and calling witnesses, judges
questions witnesses, juries are rare. e.g. civil systems France, Germany, Italy
NB. Increasingly each of these systems is adopting parts of the other. E.g. in Australia, the
Family Court has adopted some of an inquisitorial style, no jury, partly judge directed.
The Modern Australian Courts ch 12
Example of a case that travelled through 3 levels of the courts in Civil Jurisdiction: Cheung v
Derrick (1998) p. 312. Also see Chamberlain Case p. 296
Jurisdiction p. 297
“Jurisdiction is the authority which a court had t decide the range of matters that can be
litigated before it”
-TOOHEY J in Harris v Caladine (1991) p. 298
 Jurisdiction can be established geographically by territory (e.g. Local Courts), by subject
(e.g. Constitutional issues dealt with by the High Court, matrimonial issues by the
Family Court) or parties (Children’s Court)
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 Statutes which establish a court will generally define its jurisdiction. E.g. Supreme
Court Act 1935 (SA) restricts the court’s jurisdiction, whereas in NSW and VIC their
Supreme Courts have ‘unlimited’ jurisdiction.
State Courts & Hierarchy
Civil System
High Court
Court of Appeal/Full Court of Supreme Court
Supreme Court
(Tribunals/Specialist Courts) District Court/County Court
Local Court/Petty Sessions/Magistrates Court
Criminal System
High Court
Court of Criminal Appeal/Full Court
Supreme Court
(Tribunals/Specialist Courts) District Court/County Court
Local Court/Petty Sessions/Magistrates Court
Supreme Court p. 300
 The oldest courts – been around since the colonies, they are ‘superior courts of record
with general jurisdiction’ (Supreme Court Act 1970 (NSW))
 Unlimited jurisdiction and therefore does not need legislative authority for its jurisdiction.
 Hear as a single judge or the full court
Intermediate Courts p. 300
 District/County Courts are intermediate courts of record with jurisdiction limited by their
enabling Act e.g. District Court Act 1973 (NSW)
 Jurisdiction in Civil domain usually defined by monetary limits on damages. In Criminal
Domain can hear mostly all indictable (heard by judge and jury) offences, though in
NSW and VIC cannot hear treason and murder – for a higher court.
 Some courts can hear appeals from Local courts e.g. in NSW WA and VIC
Magistrates (Local) Courts
 Also called Court of Petty sessions
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 First level of courts, where most of cases are heard – they hear thousands and
thousands more cases that all the other courts put together.
 Magistrates 2 core role: decide if there is an indictable offence to go to a higher court,
and to deal with lesser offences (civil and criminal) e.g. coronial issues, children’s
issues, traffic matters, residential tenancy matters etc
 Jurisdiction: in civil matter monetary limit, in criminal they hear non-indictable offences.
State Tribunals/Specialist Courts
 Tribunals have their own legislation which determines jurisdiction and process of appeal
e.g. Dust Disease Tribunal in NSW
 Tribunals differ from courts in administrative law as they can review administrative
decision not just legal issues
Federal Courts & Hierarchy
Federal Jurisdiction:
 Chapter III of the Constitution provides that federal court can be established and that
state courts can be vested with federal jurisdiction (called autochthonous expedient).
 Chapter III courts may only exercise judicial – never administrative- power. (see Farden
and Kable cases).
 Federal jurisdiction must always be specifically given, therefore federal courts have
defined and not unlimited jurisdiction.
Civil System
High Court
Federal Court Family Court Supreme Court
(exercising federal jurisdiction)
Tribunals District Court (ex fed juris)
Federal Magistracy Local Court (ex fed juris)
Criminal System
High Court
Federal Court State Supreme Court (ex fed juris)
District Court (ex fed juris)
Local Court (ex fed juris)
The High Court p. 304
 Original jurisdiction is set out in s 75 of the constitution: matters arising under treaty or
consuls, matters where Comm is a party, matter between states, constitutional matters
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 S 76 of the constitution allows parliament to make laws to confer further jurisdiction on
the High Court e.g. maritime law, conflicting state law.
 Appeal to High Court are (following abolition of right to appeal in 1984) only following
special leave. (it is considered if it is a case of public importance e.g. resolving
conflicting law)
Federal Court p. 306
 Refers to law and equity, was established by s 71 of the Constitution.
 Original jurisdiction is conferred by more that 150 acts of legislation e.g. trade practices
and bankruptcy. Criminal jurisdiction is only minor and incidental.
 S 32 of Federal Court Act (Cth) provides associated jurisdiction – matters of federal
jurisdiction which can be heard if related to a claim with in the Courts jurisdiction.
 Accrued Jurisdiction: can hear any case where one of the grounds lay within its
jurisdiction and that ground is not totally distinct from the other grounds which are
outside its jurisdiction.
 Hears appeals from territory Supreme Courts
Federal Magistrates Court p. 307
 Est. 1999, jurisdiction is entirely Civil (damages up to $750,000), and has shared
jurisdiction with Federal Court in administrative law.
 Appeals go to Full Court of Federal of Family Court.
Family Court p. 308
 Est. by Family Law Act 1975 (Cth). Original Jurisdiction relates to matrimonial cases,
custody, adoption in territories.
 Can exercise associated jurisdiction in same way as Federal Court, and has also
exercised accrued jurisdiction at times.
Federal Tribunals p. 308
 Exercise administrative not judicial power & so are subject to review in admin law
jurisdiction of Federal Court
 Have statues outlining jurisdiction e.g. Refugee Review Tribunal, Social Security
Appeals Tribunal, Administrative Appeals Tribunal.
Cross Vesting
Jurisdiction of the Court (Cross-Vesting) Act 1987 (Cth) vested non-federal jurisdiction of
state courts in Federal Court and vested most federal jurisdiction in State Supreme Courts.
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Cross vesting was struck down by High Court in 1999 (Re: Wakim) as cannot vest state power
in federal courts. P. 309
Access to Courts – Problems p. 318
1. Cost: most people cannot afford to go to court over small matters and as a result
problems may exist for quite a while before the courts address the problem.
2. Courts are foreign to most people: the language and process is so complex that most
people do not have anything beyond a very basic knowledge of the law.
3. Interpreter difficulty & discretion: interpreters are at the discretion of judges, but judges
assessment has been found to be lacking – Access to Interpreters Report (1991) p
322
NB. Non-verbal and verbal communication issues p. 323
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Judicial Decision Making & Statutory Interpretation
Process of Bill through Parliament p. 388
In House of Origin
1. Bill
2. Notice of Motion by minister or private member
3. Introduction and First Reading of the bill (bill becomes a public document)
4. Second Reading of the bill (minister makes second reading speech which is later
important in the interpretation of the bill)
5. Debate on the bill
6. Committee Stage (house sits as committee and examines the bill clause by clause and
makes necessary amendments, then it is voted on)
7. Third Reading (third reading is made by the minister, may be more date and final vote is
taken)
In Second House
1. First Reading
2. Second Reading
3. Committee of the Whole
4. Third Reading
If bill is passed in the second house it returns to the house of origin where it is certified and
given to Governor General for assent. Then it becomes an act. NB date of commencement
varies according to state (may be on the day or after assent)
Classification of Statutes p. 390
Public vs. Private
 Most statues are public intended to operate on public at large, there are, however, some
private acts.
 Private acts have to be specially proved, judges are not required to have knowledge of
private acts. They are rare in present time though. Traditionally private acts were
commonly used in cases of divorce when it was not readily available.
Subordinate/Designated legislation
 Sometimes the exact details of an Act have not been finalised, so Acts will often contain
authority for another body to make delegated legislation e.g. Local Government Act
1993 (NSW) allows councils to make by-laws.
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 Judicial Review is available to determine if the designated legislation is within the scope
of the original Act. Can be done by The Supreme Courts, High Court and Federal
Courts.
Codes and Consolidated statutes
 Consolidated statutes: brings together a number of statutes that cover the same
subject. A consolidation repeals the existing legislation and replaced it with law which
represents the law as it has been amended.
 Code: incorporates not only the amended legislation but also the case law so that the
code exhaustively states the law for that subject area e.g. QLD, WA, TAS & NT have
criminal codes. NB codes common in civil law countries.
 Re interpretation of codes: because they are meant to be exhaustive judges can refuse
to examine previous cases.
Rules of Statute Interpretation p. 397
4. Literal Rule: what does the language mean in its ordinary and natural sense
5. Golden Rule: court should modify the meaning under the literal rule if the result would
be absurd, repugnant or inconsistent with the legislation
6. Mischief Rule: look at the mischief the parliament was attempting to prevent
Regina v Ojibway (1956) p. 397 JOKE CASE
 Example of a ridiculously literal approach to statutory interpretation in which the judge
found that a pony was a bird.
 Defendant used a downy pillow instead of a saddle, shot pony after it broke its leg.
 S1 of the Small Birds Act defines a bird as a two legged animal covered in feathers
 “Therefore, a horse with feathers on its back must be deemed for the purposes of this
Act to be a bird”
Other rules
 Noscitur a sociis (words are limited by the context in which they appear)
 Ejusdem generis (‘of the same kind’ – where there is a general phrase and specific
words of same kind, we read the general phrase in terms of that specific list e.g. lions,
tigers, snakes and other animal would not mean sheep, means dangerous animals)
 Expressio unius est exclusio alterius (if something is expressly referred to, that will
exclude other matters)
Presumptions p. 400
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Some presumptions of interpretation of statues e.g. parliament does not interfere with
fundamental rights, statutes are presumed not to be retrospective, presumed not to bind the
Crown, presumed not to be extraterritorial.
Potter v Minahan (1908) p. 401
 Respondent re-entered the Commonwealth from China, was born in Victoria to a British
woman and Chinese father. He failed the dictation test for immigrants. Magistrate found
that the charge of prohibited immigrant failed as he was not an immigrant.
 O’CONNOR J “Ah Sheung v Lindberg[17]: - ‘In its ordinary meaning immigration implies
leaving an old home in one country and settling in a new home in another county, with a
more or less defined intention of staying there permanently or for a considerable time.’
To describe as an ‘immigrant’ a person who is coming back to the country which is his
home is a contradiction in terms.” GRFFITH CJ & BARTONJ agreed. ISSACS and
HIGGINS JJ found similarly but on the basis that the dictation test was improperly
administered.
 Found for respondent. Yes he failed dictation test, but this didn’t matter as he wasn’t an
immigrant and didn’t need to take it.
Royal College of Nursing of the United Kingdom v Department of Health and Social
Security [1981] p. 406
 Abortion not illegal “when a pregnancy is terminated by a registered medical
practitioner” in certain circumstances. If nurses administered the prostaglandin fluid that
induced the termination, were they in breach of The Abortion Act 1967 (UK)?
 Lord WILBERFORCE (diss): if the section is perceived as “by a registered medical
practitioner in accordance with recognised medical practice” that is not interpretation by
rewriting. If the parliament had meant that (and it has put such wording in other Acts)
then they would have written that. Found nurses not able to administer the
prostaglandin
 Lord DIPLOCK: “It is in my view evident that in providing that treatment for termination
of pregnancies should take place in ordinary hospitals, Parliament contemplated that
(conscientious objections apart) like other hospital treatment, it would be undertaken as
a team effort in which, acting on the instruction of the doctor in charge of the
treatment… other members of the hospital staff would each to those things forming part
of the whole treatment” p. 413
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o “what it requires is that a registered medical practitioner… should accept
responsibility for all stages of the treatment” p. 413
o “the doctor need not do everything with his hands” p. 414
The Modern Approach to Statutory Interpretation
 Increasingly taking the common law purposive approach, now legislation to this effect.
 Acts Interpretation Act 1901 (Cth) : requires the courts to take a purposive approach if
there is any ambiguity and allows the use of extrinsic materials to assist in interpretation
e.g. royal commission reports, treaties, parliamentary committee reports, second
reading speeches.
Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) p. 25
 See above (International Law)
 P. 29 MASON CJ & DEANE J reject a narrow interpretation of ‘concerning children,’
deciding that a wide-reaching interpretation is more appropriate.
Kingstone v Keprose (1987) p. 415
MCHUGH JA
 courts don’t follow literal rule anymore “The courts no longer…” p. 418
 modern courts use the purposive approach, grammatical meaning just the starting point
 departing from the literal rule is as MASON and WILSON JJ say in Cooper Brookes that
it “extends to any situation in which for good reason the operation of the stature on a
literal reading does not conform to the legislative intent as ascertained from the
provisions of the statute including the policy which may be discerned from those
provisions” p. 419
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Classification of Australian Law
Vines, Chapter 11
Traditional Classification p. 267
Two of the strongest distinctions in Australian Law are based on Australia’s historical heritage:
private vs. public law and common law vs. equity
Public vs. Private
Public Private
Law   Equity
Constitutional Administrative Criminal Tort Contract Property Family Commercial
Taxation Industrial Succession Intellectual Property Corporate
 The usual way to distinguish between public and private law is that in public law one of
the parties will be a state entity – the legal personality will refect the public nature of the
case e.g. Attorney General v someone. In public law, political theories such as
democracy and representative government are considered.
 Private law is about the relationships between people, the state is not involved and
public policy rarely factors in and as such different reasoning is used.
 NB: this distinction is not always clear cut e.g. suing the government for negligence is a
private action against a public body.
R v Wright (2001) p. 273
FACTS:
 Wright and friend were 17, got drunk, stole a car, Wright crashed it and Watson died.
Pled guilty to theft and not guilty to culpable driving (involves gross negligence). Wright
appealed on basis of judge’s misdirection of jury re: gross negligence.
CRUCIAL ISSUE: Did the judge misdirect the jury?
JUDGMENT:
 CALLINAN J: not he didn’t. He referred to civil law negligence but correctly directed the
jury as to criminal negligence.
 NB: the interaction between the civil (private) law and criminal (public law)
R v Wacker [2003] p. 275
FACTS:
 Wacker drove a lorry with 60 hidden Chinese people aboard sealed in bar one air vent.
He sealed vent before crossing the English Channel to prevent chance of discovery, 58
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people suffocated. Charged with 58 counts of criminally negligent manslaughter and
conspiracy to facility illegal immigration.
 Appeal conviction, using the Civil Law defence that mutual engagement in illegal activity
cannot result in a duty of care (ex turpi causa).
CRUCIAL ISSUE: Can a civil law defence be used response to a criminal law charge?
JUDGMENT: KAY LJ
 The criminal law’s function is to protect citizens, has its own public policy aim which may
require a different approach to the involvement of the law..
 “The duty to take care cannot, as a matter of public policy, be permitted to be affected
by the countervailing demands of the criminal enterprise.” i.e. as it would be repugnant
to the function of criminal law P. 277
 “Whichever way they might have been characterised in a civil claim had no relevance to
the issue that the jury had to decide” p. 278
Common Law vs. Equity
Characteristics of equity: p. 279
 Developed in the Court of Chancery, it supplements and corrects the common law in
instances of unconscionable conduct.
 Equitable Doctrines include conversion, ademption, satisfaction, performance,
marshalling, equitable relief etc.
 Debate over whether equity is based on an underlying principle. Even if it is not, equity
involved a set of established rules- “conscience moulded by rules”
Harris v Digital Pulse Pty Ltd (2003) p. 281
FACTS:
 Harris was under an employment contract with Digital Pulse not to compete with DP, but
started up a company and stole some of DP’s clients while still working for DP.
 Trial judge found they had breached their fiduciary (equitable) and contractual (common
law) duties of loyalty and were ordered to pay equitable compensation and exemplary
damages.
 Appealed against exemplary damages which are a common law remedy. (was allowed)
CRUCIAL ISSUE: Can exemplary damages be awarded in equity?
JUDGMENT:
SPIGELMAN CJ
 “The fact that exemplary damages are awarded in tort is, in my opinion, not a basis for
asking “Why not?” in equity.” p. 282
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 Analogy between tort and equity cannot be drawn as “Each is a distinct body of law with
its own integrity.” P. 283
 prefers analogy to contract p. 284 and find that punitive damages are incompatible with
a contractual relationship of this kind.
MASON P (diss)
 “The principles under which equitable compensation is payable differ in certain aspects
from those governing an award of compensatory damages at common law.” P. 287
 Rejects assertion of fusion fallacy. At 145
HEYDON JA:
 Exemplary damages are punishment that results in the confusion of civil law which is to
compensate, and the criminal law which is to punish
 No power or authority to support awarding exemplary damages for equitable wrongs
NB. Fusion fallacy: the idea that doctrines of different areas of law and be transported into
other areas.
Private International Classifications p. 268
1. the law of the forum, the lex fori
2. the law where the wrong occurred, lex loci deliciti
3. the law of the person concerned, lex domicilli
Adversarial vs. Inquisitorial Classification
Table of Differences p. 270
Adversarial: parties are in charge of the action (they initiate, collect evidence, call witnesses).
Parties present their case to a neutral tribunal (judge/jury). Judges are mediators and
interpreters of they law, their judgements become law, in cases of juries they direct the jury.
e.g. UK, Australia, Canada, US
Inquisitorial: judges take an active role, directing parties and calling witnesses, judges
questions witnesses, juries are rare. e.g. civil systems France, Germany, Italy
 Increasingly each of these systems is adopting parts of the other. E.g. in Australia, the
Family Court has adopted some of an inquisitorial style, no jury, partly judge directed.
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 “Notwithstanding the supposed variation between the adversarial and non adversarial
models there is a significant degree of convergence in the way both common law and
civil code countries no approach civil disputes” at 1.111 The Australian Law Reform
Commission Report no. 89 Managing Justice: Continuity and Change in the
Federal Civil Justice System (2000) p. 271
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Intentional Torts
Vines Chapter 14
Trespass on the person: assault, battery & false imprisonment
Trespass on the case: negligence
Distinction: “took the settled distinction to be that where the injury is immediate, an action of
trespass will lie; where it is only consequential, it must be an action on the case”
BLACKSTONE J in Scott v Shepherd
Assault: when a defendant creates an apprehension of fear in the plaintiff of imminent hard or
direct offensive contact
RULE: Has the defendant created a reasonable apprehension of harm in the plaintiff? Would a
reasonable person observing objectively think so?
Battery: where there is a voluntary application of direct force to the person without consent
RULE: Has the defendant voluntarily applied direct force to the plaintiff without their consent?
Tuberville v Savage (1669)
 Established that gratuitous threats are not assault.
 Tuberville says that he would fight Savage “if it were not assize time” (judges in town),
because he explicitly said he wouldn’t harm Savage there can be no reasonable
apprehension of harm.
Scott v Shepherd (1733)
 Established that assault need not be direct
FATCS:
 Shepherd throws squib into crowded marketplace, shopkeeper Yates sees it and throws
it away, shopkeeper Ryall then sees it and trows it again and in doing so the squib
strikes Scott’s eye and explodes, blinding him in one eye.
 Scott sues for assault, Shepherd argues the action is not maintainable.
JUDGMENT:
 Court finds that the action is maintainable. The injury sustained was sufficiently
immediate to Shepherd’s actions.
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 Court found that though it was not directly by his hand that the injury occurred (in
physical terms) that he ought to have known that a lit squib in a crowded marketplace
would cause mischief, and that this knowledge establishes a form of immediacy. i.e. the
injury was a direct result of his first throw.
Barton v Armstrong (1969)
 Established that telephone threats may constitute assault
FACTS:
 Barton threatened Armstrong over the phone, sued for assault.
JUDGMENT:
 What is key in assault is the creation of an apprehension of imminent harm in the mind
of the plaintiff.
 Telephone threats, by their nature, are sufficiently immediate -the caller could be
outside the door, or in another country, they don’t know – so it is a “matter of the
circumstances” case p. 455
 Distinguished from Tuberville and Savage – in that situation the threat was “just words”
as the judges were in town so he knew he wouldn’t do anything, he said words to this
effect also.
 Therefore to a reasonable observer, a telephone threat may constitute a reasonable
apprehension of imminent harm, and can be found to be assault.
 Found for plaintiff, assault established.
Zanker v Vartzokas (1988) Criminal case
FACTS:
 Young lady accepted lift from young man who asked for sexual favours and told her he
and his mate would ‘fix you up’ when they get to his place. She jumped out of the car
travelling 60kmph and injured herself. Man was charged with assault and appealed on
the basis that the harm was not imminent.
JUDGMENT:
 Applied Barton v Armstrong.
 Idea that “the feared physical harm did not have to e immediate. The threat could
operate immediately on the victims mind but in a continuing way.” Case p. 3
 “her fear was a continuing fear induced by his original words in a situation where he
remained in a position of dominance and in a position to carry out the threatened
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violence at sometime not too remote, thus keeping the apprehension, the gist of assault,
ever present in the victim’s mind.” Case p 6
 Refers back to magistrate to convict for assault.
Rixon v Star City [2001]
FACTS:
 Mr Rixon alleged battery and assault when a security guard at Star City made contact
with his shoulder and asking “Are you Brian Rixon?” to get him to accompany him.
JUDGMENT:
 “the absence of touching in anger or hostile attitude by the persons touching another is
not a satisfactory basis for concluding that the touching was not a battery” case p. 112
 However, as the contact was considered not outside the bound of “ordinary conduct of
daily life” (for which we all give implied consent to) the court found no battery.
 The court also found that the security guards actions lacked the “necessary intention to
create in Mr Rixon an apprehension of imminent harmful or offensive conduct” therefore
found no assault.
 Appeal denied
Defences to Intentional Torts (Intentional Torts Handout)
People may explicitly or impliedly consent to physical contact.
Implied Consent – we all give implied consent for physical contact experienced in the course
of ordinary life. E.g. jostling to get on the bus, a firm handshake.
 Marion’s Case (1992): people may impliedly consent to some everyday physical
contact.
 Collins v Wilcock: implied consent “by all who move in society and so expose
themselves to the risk of bodily contact” that this is “physical contact which is generally
acceptable in the ordinary conduct of life”
Explicit Consent: must be real (i.e. they know what they are consenting to) and freely given
(no coerced). e.g. for consent to surgery, must have full capability to consent, and know what
they are consenting to – cannot consent to everything and anything.
NB Gillick Competent: a child is competent when they “achieve a sufficient understanding and
intelligence to enable him or her to understand fully what is proposed.”
e.g. R v Minor: anorexic 16yo refused treatment, not found to be Gillick competent
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