LS100 Lecture Notes Week 1 Lecture 1 Systems of law Common-law system for Australia Civil law system is other

r Australia Civil law system is other Common law system used by English colonies Common law features judge-made law and statute law Civil law system mostly found in continental Europe Civil law system strong link to Roman law Civil law system codifications of law written down mostly. Civil law trials - criminal inquisitorial Common law trials adversarial Civil case plaintiff and defendant Criminal law prosecution and accused Common law statue law acts passed by parliament. 19th 20th century judge made law dominant 21st century statute law dominant Tort law personal wrong against another (judge made law dominant) Other law mostly statute law dominant Some areas of law codified in Australia Statute law prevails over judge made law Much of interpretations of statutes are made by judges Constitution specifies areas in which Federal parliament can make laws. Environment law Cth no specific powers but uses External Affairs powers. High Court interprets Constitution High Court highest Court in Australia 1950 Cth parliament enacted 80 different acts. 2000 Cth parliament enacted 372 different acts. Q4, ex 4. Pg. 263 Licensing Act In a public place Not doing riotous or disorderly behavior In control of a vehicle Carriage method of transport so is a bicycle Carriage not usually self propelled whereas bicycle propelled Interpretation of carriage. Amendment to constitution can be made via referendum Referendum needs majority in most of country and majority in states. Constitution enacted in 1901.

Week 1 Lecture 2 Precedents may have to be followed or can be persuasive Act/Act of Parliament/Statute all interchangeable terms Introduction to English legal history Australia was several British colonies English courts are original common law courts QB law reports Queens Bench CH law reports Chancery division Since 1971 FAM law reports Family division before 1971 PD law reports Probate division PD & AD Probate, Divorce and Admiralty division AC - Appeal Cases mostly Court of Appeal cases reported and also Criminal Appellate cases and House of Lords cases. Kings Council known as Curia Regis organ of central government emerged during Norman period. Composed of King and Barons/Aristocrats. Curia Regis sent out itinerant Justices to administer justice on behalf of the King. Administered a common set or rules/laws. System of government setup by Normans more centralized prior to this it was more local. Emergence of common law courts end of 13th century there were several common law courts sitting (Courts of Common Pleas, Kings Bench and Exchequer) Court of Common Pleas heard pleas of common people (disputes over land) Court of Exchequer dealt with taxation and revenue matters Kings Bench Court dealt with other non-revenue matters concerning King. Composed of a supervisory section overseeing Criminal matters. High Court of Admiralty dealt with matters of shipping and commerce Church had Ecclesiastical Court dealt with matters of Probates Probate Court established in 1857. Divorce Court established in England at the time. High Court of Justice composed of Probate, Divorce and Admiralty divisions Writ system a person with a complaint is a plaintiff. Writ issued commands the defending party to appear and answer a complaint. Many different kinds of writs to suit different facts of different cases problem if unable to find a writ to suit the facts of a particular plaintiffs problem. Discussion remedies available at Common law pgs. 17-18 LDL. Trial procedures trial by ordeal, trial by battle, wager of law pgs. 17-18 LDL text. Lord Chancellor given responsibility to hear petitions on behalf of the King. Lord Chancellor was usually a high-ranking official in the Church. Court established was a Court of Chancery where Lord Chancellor presided. Judges sitting in Court of Chancery were able to make decisions based on a new set of rules established rather than following previous judgments from other Courts. 2

 19th Century England two different sets of Courts common law courts and courts of equity sitting side by side administering two sets of rules. Complex system. 19th Century a very reforming period in England. Judicature Acts (1873 & 1875) abolished Common law and Chancery Courts (Courts of Equity) and replaced with two tier system. First tier High Court of Justice (divisions Queens Bench, Common Pleas, Exchequer, Chancery, Probates and Divorce) enabled Court to settle both common law and equity cases. If rules at common law led to different outcomes from equity rules. Rules of equity prevailed. Second tier - Court of Appeal. 1880 Common Pleas and Exchequer integrated into Queens Bench. Australia as Common Law country International Law principles that govern which set of laws apply when a territory is acquired. 1) If territory was conquered by a conquering nation existing laws applied until changed by conqueror. 2) If territory was not conquered but settled without opposition/war settlers assumed to have brought their own countrys law with them. General assumed Colonies of Van Demons Land and New South Wales were settled although there were indigenous peoples living in these colonies. New South Wales colonies brought statutory law and case law with settlers. Difference of opinion/version of English laws applying in colonies was clarified by Act of British Parliament called Australian Courts Act (1828). Australian Courts Act (1828) s.24 clarifies the date of reception of English laws. English laws apply so far as they can be applied. English laws as at 25 July 1828 Fixes in time, which laws apply in terms of statutory law and case law. British parliament can make laws/amendments as and when necessary. Australian colonies also adopted Judicature system fusing common law and equity law. 1970 System of judicature established in NSW. Colonial legislature was established. 1824 NSW legislative council established 1842 Australian Constitutions Act passed and established a partly elected legislative council in NSW. Middle of 19th Century - Legislation of British parliament and colonial parliament led to bi-cameral parliaments being established. Australian Constitution is contained in an Act of British Parliament.

Week 2 Lecture 1 Tutorial ex 1 LDL Case Law as a source of law Law library quicklinks LS/LLM units (online) Decisions of appellant courts in hierarchy are likely to have some value as precedents. They may contain relevant legal rules/principles to possible legal problems encountered. Judicial pertaining to judges and courts Finding cases hard copies series of law reports in law library need to have case citation. Hard copy Law Reports (Eg. Donoghue v Stevenson [1932] AC 562) 1932 = volume number, AC = Appeal Cases, 562 = page number. District Courts (NSW & QLD) same as County Court (VIC) Eg. Mabo v Queensland No. 2 (1992) 175 CLR 1 CLR = Cth Law Reports, 175 = Volume number, 1 = page number Series editor decides which cases to report on in law report. Generally reported if case sets out rules/rule of law that are different/new and are likely to be treated as precedent by lawyers involved in later cases. Might be reported if it adopts an interpretation of a statute that is important and likely to be of precedential value. Law reports arranged by jurisdiction. Eg. State Reports organized by jurisdiction. Law reports primary sources of law. Finding cases on internet need case citation. Internet Law Report Queen v White {2002} QCA 277 (QCA = QLD Court of Appeal, 277 = Volume. Case in electronic form is known as medium neutral citation pg. 431 LDL Asterisk indicates a medium neutral citation. Official series checked by judge/s who decided the case or staff Non-official series private series not checked Electronic series some are official and some non-official Print reports preferred ahead of electronic reports. All cases decided by higher courts will be in electronic form. Only some of cases in lower courts will be in printed reports. Breakdown of report of case pg. 62-68 LDL Doctrine of precedent pg. 73-74 LDL Court not bound by previous decision but can be highly persuasive Only ratio decidendi is binding Obiter dictum can never be binding Precedents dont lose their force by lapse of time.

Week 2 Lecture 2 Ratio decidendi Basic rules of precedent pg. 73-74 (LDL) Each court is bound by decisions higher in its hierarchy Other decisions will not be bounding Generally, a court will not be bound by its previous decisions but may be highly persuasive Only ratio decidendi (reason for decision) of a past case is binding Obiter dicta (remarks in passing) are not binding but may be persuasive Precedent dont lose their effect by lapse of time LDL pg. 77 - Rationous (plural for ratio) can come only from those legal issues that were in contention, this can be expressed by saying that the doctrine of precedent will view as a ratio only a ruling on a point of law rather than a statement of a rule of law. Unusual for a court to formulate a new rule of law to settle a legal dispute, especially true in lower courts. Many cases only the facts are in dispute. When determined a legal rule is applied. When this occurs it is known as case is turned on its facts. When a case involves an application of a principle of law but the principle itself is not an issue. On that view, a ratio is a rule of law applied by a court in reaching its decision. Different ways of expressing idea of what is a ratio. Ratio decidendi is a rule of law applied by a court in reaching its decision. Legal rules have some utility in the system in that they are or not applied and they produce results/outcomes when applied. Unless the rule is reasonably general it wont be a great degree of use. Many cases today, most rules of law applied by courts today are found in statutes/legislation. Ratio decidendi of appellate decisions there may be a need to find a rule of law that has been identified by the majority judges. LDL pg. 81 McHugh JJ A court bound by previous decision whose ratio is not discernable is bound to apply that decision when the circumstances of the instant case are not reasonably distinguishable from those that give rise to the decision.

 Ratio & Obiter difference is a Ratio is a rule, principle or legal proposition that was relied on by the Court on reaching its decision. Obiter is a statement of a rule that would be applied to hypothetical facts. General in most decisions of the High Court there is no requirement to differentiate the Ratio and Obiter as any decisions, rules, principles handed down in the High Courts decision are important.

Week 3 Lecture 1 LDL Chapter 13 Legal research IRAC Method Issue the legal issue/material fact, Rule relevant rule/law, Application applying the rule to the issue, Conclusion reasons for conclusion. SHARP Method Situation = subject matter of the dispute, Harm suffered = injuries suffered/losses/compensation, Actors = actors involved, Remedy = remedy/relief sought, Policy consideration = impacts/ramifications of any policy. Primary sources of law cases and statutes/legislation. Secondary sources of law writers attempt to describe the law in a well organized and accessible way. Eg. Textbook authors. A means to find the law. Week 3 Lecture 2 LDL Chapters 14 -16. Legal research Electronic searching legal databases (Austlii, Lawlink) Secondary sources of law Textbooks

Week 4 Lecture 1 Ex. 4 LDL pg. 177 LDL pg. 405 410 Legal writing * Clarity is important - Miller v Jackson (1977) QB 966 Lord Denning. * Writing must be directed to intended audience. * Formality generally a formal style is adopted in legal writing. * Always use formal title of judge when writing. * If a testator who makes a will marries, the will is revoked by the marriage.

Week 4 Lecture 2 LDL pg. 411 -445 Legal writing * Supporting references contained within notes either as footnotes or endnotes. * Quotations section, passage, part when there is a particular reason why that passage is needed to bring to attention to the reader. * Try avoid quoting rather use own words or paraphrase. * Underlining in handwriting translates it to italics. * Headings and sub-headings signal the direction headed. * Clarity of analysis and clarity of expression go hand in hand.

Week 5 Lecture 1 LDL - Pg. 96 -112 Australian Courts and Precedent * Full High Court normally 3, 5 or 7 justices. * Chief Justice of High Court organizes the courts business. * Full Court of High Court is not bound by its own precedent. * High Court will only depart from its previous precedents in special circumstances. These include (4 grounds) 1) Isolated precedent 2) Judges agreed to the outcome of the case but had different reasons for their conclusions 3) The earlier decisions had achieved no useful result but on the contrary had led to considerable inconvenience. 4) The earlier decisions had not been independently acted on in a manner which militated against in reconsideration. * Where a court has interpreted a statute incorrectly is more likely to be overruled. * High Court added a 5th ground to depart from previous decision (Imbry v McNeely (2008) 236 CLR 510 whether the departure from precedent is necessary to maintain a better connection with more fundamental doctrines and principles. * Constitutional cases WA v Cth (1975) HC held by majority 4-3 held that legislation that permitted voters in the Territories to have representatives in the Senate was valid. * Non-constitutional cases Esso v FCT Case (1999) & Brodie v Eagle Shire Council Case (2001) (LDL pg. 104-105). * A single judge of Federal Court should follow a decision of another single judge unless a decision is clearly wrong (Udens Case pg. 106 J Healy) * pg. 108 LDL - Transurban Citylink Case * Precedent in Family Court Maseys Case following precedents of higher court unless decision is clearly wrong.

Week 5 Lecture 2 LDL pg. 112-134 Australian Courts and Precedent * Supreme Court single judge is not bound by a decision of another single judge in the same court. But will be reluctant to depart. * A case is treated as being impliedly overruled if its ratio decidendi was inconsistent with the ratio decidendi of the later case (Einfeld Case). * Whilst the reasoning has been overruled, the decision has not. Although there is no binding ratio decidendi in a case in which the material facts were the same the court would be obliged to reach the same result. The decision would be binding but nothing else. * pg. 115 LDL Campbell J Midcity Skin Cancer and Laser Centre Case. * Kellyfair Pty Ltd v Digitech Case pg. 116 State appellate courts are bound by decisions of the Full Court of High Court, but not bound by decisions of single justices of the High Court. * NSWCA ignored the fact that High Court advised that an equity principle from a case should not be followed in an obiter. * A single judge of a Supreme Court will not be bound by a single judges decision of another Supreme Court as they are sitting in courts in a different hierarchy. * Different interpretations of judges from the Supreme Court in different states of the same law/statute may lead to greater confusion amongst fellow judges in other jurisdiction Supreme Courts. * pg 121 LDL - ASIC v Marlborough Gold Mines Ltd Case Uniformity of decisions is an important consideration for judges in the same appellant Courts. * pg. 123 -124 LDL Administrative Tribunals. * Decisions from other common law jurisdictions cannot be strictly binding, however, can be highly persuasive. * Parkers Case (1960s) High Court did not follow previous decision of English House of Lords. Which led to a greater freedom for individuality for Australian legal system.

10

Week 6 Lecture 1 LDL Chapter 7 Legislation * pg. 173 LDL 1956 Cth parliament passed 113 Acts of 867 pages and 135 Cth Statutory rules of 821 pages. In 2006 passed 172 Acts of 8038 pages and 377 Cth Statutory rules of 6000 pages. * tribunals have some characteristics of courts. Tribunal decisions are reported and would have some precedent value. Procedure more informal. Cases would be decided in a more cursory way. Sometimes non-lawyers siting and deciding cases in tribunals. Most arguments are about facts in tribunals. * Federal Court established in 1977-1978 300 matters filed. In 2009-2010 3600 matters filed. * Cth Admin Appeals Tribunal In 1977-1978 300 matters filed. In 2009-2010 6800 matters filed. * Complexity of legislation fuzzy laws sets down broad principles later requiring more interpretation/information by courts and judges. * Complexity of legislation some areas the rigorous pursuit of policy can lead to legislation that is detailed. Eg. Taxation. No common law relating to Taxation, only a collective of laws, CGT, FBT, GST etc. * Complexity of legislation increasingly developing society, economy and world. * Access to legislation has improved. Due mainly to amendments, revisions and reprints. Electronic databases. * Framing legislation litigation arises when legislation is unclear. Legislation can also lead to litigation as it may just be a set of rules eg. Succession Act (NSW). * Drafting of legislation undertaken by Department employees.

11

Week 6 Lecture 2 LDL Ch. 7 * Rules as to commencement of a Statute each jurisdiction has part of its laws as to when a Statute comes into legislation. * Important to know when statute comes into operation as statute applies to events from the date of commencement. * All jurisdictions also have the constitutional authority to be able to make statutes apply retrospectively also. * To know whether a statute applies retrospectively, an earlier section will stipulate if a statute is deemed to be retrospective (ie. Deeming provision). * Act will generally specify the commencement date. * If there is no commencement provision, the ordinary default rule will apply (ie. Each jurisdiction has an Acts Interpretation Act, which will contain a provision to stipulate the commencement date of Acts within that jurisdiction) * para 7.10-7.17 LDL default rules as to commencement in each of the jurisdictions. * There may be a provision within an Act that states that it will come into effective upon proclamation. * Two ways in which a Statute/Act can be repealed (1) Express repeal enacts a statute stating that the whole or part of a statute is repealed. (2) Impliedly repeal if a statute is in existent and the legislature enacts another statute that deals with the same subject matter and deals with that subject matter in a way that is inconsistent with some or all of the provisions in the earlier act, we are obliged to reach the conclusion that parliament must have determined that the new sets of rules should apply and not the old sets of rules. * Formal structure of an Act * Statutes are numbered in all jurisdictions in calendar year. * Short and long titles reference to Acts name. * Chapters organize sections containing common content. * Definitions contain definitions to terms referred to in the Act. * Section, sub-sections, clauses and sub-clauses all parts of an Act containing particular rules. * Schedule/Notes * Delegated legislation/subordinate laws, are made by individuals or bodies authorised to do so by parliament. Methods for making delegated legislation are prescribed by the statutes that authorise the particular form of delegated legislation. Local government Acts may contain provisions for making by-laws by municipal councils. Delegated legislation must be made under the authority of a statute. It cannot exist on its own without a governing statute. 12

Week 7 Lecture 1 LDL Pg. 227 - 234 Interpretation of legislation * Approaches to interpretation - Common law what judges have said in regard to legislation in cases. Nature of language * Deconstructionist there is no such thing as a single interpretation of a text. It was in the nature of language that there were number of ways of interpreting a text. The way a text was interpreted was due to predispositions of the interpreter. Role of Courts * Declaratory theory when courts decide cases they dont make law but they discover and declare and apply preexisting law. Courts merely apply precedents. They dont actually determine what the meaning is. * Doctrine of Separation of powers Legislative power (power to make statutes is given by the constitution to the parliament). Authority to interpret and apply statute is given to courts. Executive (invested executive power). * Literal approach dominant approach of interpretation of legislation by Australian Courts. Refer to Higgin v Oday Case * Purposive approach acknowledged that words might have different meanings and different shades of meaning. In cases of ambiguity or doubt as to meaning it was legitimate to fix meaning by taking account the purpose or object of provisions. * Haydens Case (1584) - For sure or true interpretation of law (1) what was common law before making of Act. (2) what was the mischief or defect for which common law did not provide. (3) what was parliaments chosen way for dealing with the problem. (4) mischief rule what was the problem the parliament dealing with, to ascertain the contextual insight.

13

Week 7 Lecture 2 LDL pgs. 231-234 & 236-242 Interpretation of legislation (cont.) * Golden rule (Literal approach) absurdity that is evident simply from reading the words of the legislation. * Statutory purposive approach purposive approach as spelt out in an Act. * Cth. Acts Interpretation Act s.15AA relates to the purposive approach of interpretation of legislation. Recognition by parliament that language can lead to uncertainty and ambiguity. * How do courts discover the purpose of section/statute? (1) A statute itself may contain a statement of its purpose. (2) Courts may discern the purpose intuitively by looking at the contents of the whole of the statute. (3) Reference may be made to extrinsic materials to learn about purpose of the statute. (eg. Parliamentary debate, speech of minister responsible for the Bill) * Purposive approach and errors in legislation (1) Court must know the mischief with which the Act was dealing. (2) Court must be satisfied that be inadvertence parliament has overlooked an eventuality which must be dealt with if the purpose of the Act is to be achieved. (3) Court must be able to state with certainty what words parliament would have used to overcome the omission if its attention had been drawn to its defect. * Youngs Case (1999) Courts cant read words into a Statute. A court can only interpret the words in a Statute. Process of construction will lead the court to read down words. This means words are interpreted in a narrow way. It is permissible to read down to achieve a result that is consistent with underlying purposes/object. * Impact of the purposive approach after introduction of s.15AA and equivalent provisions, s.15AA was hardly referred to. S.15AA today appears to have a considerable influence. * For practical purposes, the purposive approach is not always used over literal approach. Most lawyers tend to interpret words as to their literal meaning to deal with interpretive problems. * When a provision is drafted, the drafter will try to use words that a clear and unambiguous. Which produce a result that is in line with the purpose/object of the Act. * In almost all occasions, the use or purposive approach when compared to literal approach ultimately lead to the same outcome. 14

Week 8 Lecture 1 LDL Chapter 9 Interpretation of legislation (cont.) * Use of extrinsic material material that is outside the legislation that we have to interpret. * Use of extrinsic material at common law * Domestic material Charles Moore Case (High Court affirmed that reports of parliamentary debates were not admissible to assist in the interpretation of a statute) * Hansard can be looked at however, to discover the mischief the Act was passed to remedy. * International agreement A treaty at common law maybe referred to according to precedent to resolve ambiguities in an Act (Enzed Holdings Ltd Case (1984). * At common law, the mere signing of international agreement on behalf of the Cth, does not create a new law. A new statute can only be created by parliament, hence a Bill must be introduced and enacted to give effect of the international agreement. * s. 15AB Cth Acts Interpretation Act ss.1(b) purports to set out some relevant circumstances in which it is permissible to refer to extrinsic materials. It allows for the exploration of meaning of a provision if (a) we find the provision ambiguous/obscure or (b) the ordinary meaning having regard to purpose/object leads to a result that is clearly absurd or unreasonable. * s.15AB Cth. AIA ss.2 outlines extrinsic materials that can be consulted to ascertain a meaning of a provision once the test in ss.1(b) are met. * Common law principles governing use of extrinsic material * CIC Insurance Ltd Case (1997) modern approach to statutory interpretation (a) insists the context be considered in the first instance, not merely at some later stage when some ambiguity may thought to arise, (b) uses context in its widest sense to include such things as the existing state of the law and the mischief by legitimate means such as those just mentioned one may discern the statute was intended to remedy. * Saeed Case (2010) It is erroneous to consult extrinsic material before exhausting the ordinary rules of the application of statutory interpretation. * Bolton Case (pg. 253) The words of a Minister must not be substituted for the text of the law. Ultimate task of the court is not to construe the speech of a Minister, but to construe and apply the statutory provisions. 15

Week 8 Lecture 2 LDL pg. 260-271 Interpretation of legislation (cont.) * Interpretation with reference to accompanying words It is a mistake to interpret words in isolation divorced from the rest of the words in a section. * pg. 261 Nosciter osocis Anne Harris Case three words of reasonably specific meaning and interpreting one of them in light of the other two. * Ajusdem generis words of more specific meaning followed by a general term or general phrase. *Interpretation with reference to other parts of the Act fundamental principles is that a section in the Act would be interpreted in respect to other sections in the Act. * Interpretation provisions Means definition refers to an exhaustive definition. Includes definition refers to an explanation that helps to aid in the meaning of a specific definition. * Intepretation legislation should be used for the specific jurisdiction in which the Act was enacted and operative. * s.33 NSW Interpretation Act - equivalent to s. 15AA of Cth. Act Interpretation Act. * s.34 NSW Interpretation Act equivalent to permissible extrinsic material section s. 15AB of Cth. Act Interpretation Act. * Terms judicially defined common way to find a definition of a particular term/word may be in a report of a previously reported case. * Dictionaries use of this tool must be used carefully as the term/word must be interpreted in context to the Act. Australian Courts tend to rely on Australian dictionaries.

16

Week 9 Lecture 1 LDL pg. 271 - 279 Interpreting legislation in context Consistent use of words is assumed * Interpretive maxims, approaches to legislative interpretation. * Emphasize interpretation by reference to underlying purpose or object. * Emphasize interpretation in context. * Drafters use language deliberately. They endeavor to use a word in a consistent manner. * Purposive approach nowadays trumps consistent use of words. * Wilson v Commissioner of Stamp Duties (Lee J pg. 271 LDL) although there is no absolute requirement that the same words in the statute must be given the same meaning the need to give different meanings should be clearly apparent and should lead to a result that is consistent with the purpose of the statute. * If a different word is used, a different meaning must have been intended. Difference may have risen because a more modern drafting style may have been used. * s. 15AC Cth. Acts Interpretation Act All words are assumed to carry meaning presumption against surplus age. * No set meanings of words. No rigid approach is adopted. * However, words should be interpreted in context. * Project Blue Sky v ABC. * Plaintiff s1574 v Minister for Immigration (2003)- pg. 271 The duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Words should be given their current meaning * Important in relation to constitutional interpretation. * Clark v DCT pg. 272 A statute may be interpreted on the basis of the connotations of the language remains the same whereas its denotation may differ over time.

17

* Dynamic statutory interpretation meaning of words is not only as capable of changing over time but perhaps must change over time. Express mention of something might draw attention to the absence of something else * We notice whats there in the statue but sometimes we notice whats missing. * pg. 273 Dean v. Visengrund term legal personal representative. Interpretation with reference to other legislation * pg. 276 LDL * Meaning of the word pastry - Herbert Adams Case. Interpretation with reference to prior/existing law * Fisher v Bell (pg. 278 LDL)

18

Week 9 Lecture 2 Pg. 283-290 LDL Presumptions of interpretations * When courts interpret legislation, they do it against a background of presumptions. * Presumptions of interpretation are used because they are accepted as part of the body of principles used in the interpretation of legislation. * pg. 283 LDL look into. Set of presumptions * presumed that statutes do not operate retrospectively. * parliament doesnt interfere with fundamental rights. * penal provisions are strictly construed. * property rights are not to be taken away without compensation. * Presumption likely to be applied unless it can be argued that it should not be applied. * Presumptions described as common law bill of rights. * Statutory bill of rights set out in a statute. * Charter of Human Rights & Responsibilities Act (VIC) 2006 & Human Rights Act (ACT) 2004 courts must interpret statutory provisions in a way that is compatible with human rights. * pg. 283 LDL s.32(1) Charter of Human Rights & Responsibilities Act (VIC) 2006 * Vic. Supreme Court may make a declaration of incompatibility with a human right. Matter than goes to parliament and then it may decide to change the law. * Making of s. 36 declaration was outside the constitutional power of the Vic Supreme Court Momcilovic v R (2011) HCA 34 * Some common law presumptions (self-incrimination) have been preserved in legislation eg. s.170(1) Legislation Act (ACT) pg. 284 LDL

19

* Legal professional privilege presumptions is protected. * presumption against retrospective operation need to distinguish between date of operation and when it is retrospective. * Act comes into operation generally 28 days after assent. * retrospective operation Rodways Case (HC). * HC propositions (Rodway Case) pg. 286-287 LDL look into. * Cocos case pg. 288 LDL look into. * Presumption is limited to fundamental rights - Harrison v Melhem (pg. 290 LDL) when a plaintiff is injured in negligence cases court goes on to assess damages. Done by applying set of principles/common law rules laid down in previous cases. * Civil Liability Act (NSW) 2002 modified common law damages principles, reducing the amounts of damages payable. * Harrison v Melhem Civil Liability Act (NSW) 2002 - S. 15(3) purports to limit previous damage amounts payable. Argued that presumption that parliament respects common law principles when legislating. CA held that it was not relevant. Common law rights to damages are not a fundamental right.

20

Week 10 Lecture 2 Pg. 290 297 LDL Presumptions of interpretation * Presumption - Parliament does not abrogate the privilege against selfincrimination. * Crafter v Kelly (pg. 290 LDL) for the purpose of interpreting statutes all words in a statute, the whole of the provision is assumed to carry some meaning. * Parliament does not deprive people of access to the courts. * Plaintiff S157/2002 pg. 291 LDL HC applied basic rule privative clause clause that purports to deprive particular litigants to access to the courts. * Presumption - Reenactment constitutes approval of an interpretation pg. 292 LDL a presumption useful in statutory interpretation that where a provision of legislation has been passed upon by authoritative decisions of the courts, that is, has been interpreted and explained by appellate courts, and is later reenacted, parliament can be taken in the absence of a clear indication of the contrary to know and accept the interpretations given to the legislation. * Plaintiff S157/2002 Cth. advised that decision could not be appealed against using s. 474 Migration Act 1958. Parliaments intention by enacting the legislation more specifically, words in the section, was to attempt to prevent judicial review. However, they found that jurisdictional error does not prevent s.474 from eliminating judicial review. * Presumption that parliament does not deny people access to the courts is an extremely strong presumption. * Presumption legislation does not bind the Crown. * If a statutory provision was held to have intended to apply to the Crown, the statute should state so explicitly. * Conceptually, the word Crown has been broadened to include the State. * Brofo Case pg. 294 LDL presumption that legislation does not bind the Crown is a much weaker presumption now. * Presumption penal provision should be strictly construed. * Beckworths Case pg. 294 LDL look into.

21

* GIO Case pg. 295 LDL generally speaking purposive approach overrides penal provision assumption and must be adopted. * Presumption parliament intends to legislate in conformity with international law. * Plaintiff s.157/2002 where legislation has been enacted in conflict with international obligations, it should be assumed that parliament when it enacted legislation, intended to enact legislation in a form that complied with Australias obligation with international law.

22

Week 10 Lecture 2 Ch. 12 LDL * How do we determine whether is a provision is obligatory or discretionary? Apply the ordinary principles/approaches of statutory interpretation. Interpret the provision by reference to purpose/object of the provision and by reference to context. * Samad Case pg. 302 LDL court considered the consequences of alternative interpretations. It considered the interpretation, that the consequences of a breach imposed an obligation to suspend/cancel a license. The court concluded that the consequences that a breach imposed a condition to suspend/cancel a license were not consist with the provisions purpose. * Harvey v Harvey - pg. 303 LDL issue whether a judge was obliged to hear a case in his office/chambers rather than an open court. Judge mentioned several factors in determining whether case should be heard in his chambers. Judge mentioned hearing should be held in open court. Judge mentioned clear words would be required that a party had an absolute right to have a case heard in private. Unlike other Acts, no provisions in the Act set out the way in which the judge should precede in hearing a case in private. * Cth. Acts Interpretation Act pg. 301, s.33(2)(A) look into. * NSW Act Interpretation Act s.9 look into. * How to determine whether breach produces invalidity Project Blue Sky Case pg. 306 LDL Breach produces invalidity by 3 things 1) words used in the section 2) objects of the section/Act 3) consequences of holding void acts that have been carried out and are concluded to have been in breach. * Project Blue Sky Case interpretation by reference to consequences. * Pg. 309 checklist/practical guide for legislative interpretation.

23

Week 11 Lecture 1 Pg. 139 148 LDL Judicial process * Criminal v Civil trials differences - Criminal trial takes place if a person has been charged with a criminal offence. Punishable by prison term or fine. - Civil trial occurs when a person believes they have suffered damage/loss decides to take action against a perpetrator to the harm. - The higher courts hear the more serious offences. - Criminal standard of proof beyond reasonable doubt. If prosecution cant prove case beyond reasonable doubt, the defendant must be acquitted. - Civil standard of proof balance of probabilities. * Civil cases judge sitting alone decides questions of fact and questions of law. * Defamation cases juries may be impaneled. Jury will decide questions of fact. Judge will advise on questions of law. * Element of onus of proof of facts Rests with the plaintiff in a civil case. * Appellate courts spend most of their time determining whether the lower courts correctly determined the facts of the case. * Criminal appeals commonly involve arguing whether 1) trial judge wrongly direct the jury. 2) trial judge applied the law incorrectly. 3) evidence was insufficient to obtain a conviction. 4) sentence imposed was too harsh. * Civil appeals are usually based on inferences that can be drawn from facts proved or on legal conclusions drawn on facts. * In civil appeals there is no opportunity to introduce new evidence. * pg. 146 LDL Identify 5 reasons for matters of facts and matters of law 1) decisions on questions of facts generally do not constitute precedents for later interpreters, whereas decisions on questions of law do. 2) in jury trials questions of fact are in general reserved for jurors and questions of law for the judge. 3) decisions on questions of law are generally required to be supported by public justifications but no such general requirement for determination of fact.

24

4) in the case of appeals against findings of criminal liability both the grounds of appeal and the conditions under which appeal may be allowed tend to be more favourable to the convicted person where the appeal involves a question of law than where it involves a question of fact alone or a question of mixed facts and law 5) that appeal courts will not reverse a finding of fact, unless the finding reached by the lower court was not sustainable by the evidence presented to it. * Collector of Customs v Agfa-Gevaert (HC) look into.

25

Week 11 Lecture 2 Pg. 148-165 LDL Judicial decision-making * judges will usually look for ratio decidendi of a higher court in same jurisdiction. * where there is no binding principle, the court will look for 1) strong obiter dictum from a court whose decision is binding but not strictly 2) ratio decidendi of a non-binding court in another jurisdiction 3) ratio decidendi of a lower court in the same hierarchy 4) strong obiter dictum of a non-binding court in another jurisdiction How to avoid precedents Common methods * precedent is distinguishable on its facts * statement of law in the earlier case is too wide and should be confined to its facts * statement in earlier case is obiter dictum than ratio decidendi * precedent should not apply due to changed social conditions * precedent is unsatisfactory * precedent was wrongly decided * precedent is distinguishable on its facts Thornton v Shoe Lane Parking Ltd - appellate court held that given that ticket was dispensed by machine rather than given by a parking attendant that previous precedents were irrelevant, distinguished on its facts. * statement of law in the earlier case is too wide and should be confined to its facts any statement about a case that was capable of leading to an obstruction of justice mounting to a contempt of court. * Mundys Case the rule as laid down in the previous case (Truth & Sportsman Case) was unsatisfactory as it amounted to too much of a limitation on free speech, so the principle was restructured. It would only be a contempt of court if it were a real risk of obstruction of justice. * statement in earlier case is obiter dictum than ratio decidendi Mundys Case. * precedent should not apply due to changed social conditions a court may occasionally not follow precedent based on social conditions having changed. * precedent is unsatisfactory Brodie v Singleton Shire Council Case

26

* precedent was wrongly decided (Proctor v Jetway Aviation Case) a lower court should regard itself as bound to follow the decision of a court above it in the hierarchy, even if the lower court was of the opinion that the precedent was incorrect in law. Per incuriam rule cannot be applied to statutory provisions. * dangers of not following precedent failure to follow precedent creates the risk of greater uncertainty, inequality, inefficiency and the appearance of injustice (Telstra Corporation v Treloar (2000). * Judicial creativity and the appellate courts (Cattanach v Melchior Case) wife underwent sterilization process at hospital. Doctor did not warn wife that process might lead to pregnancy. Couple had baby and sued doctor for failure to undertake proper duty of care in warning of potential consequences of sterilization process. * Cattanach v Melchior Case (2000) where there is no binding authority and general principle being of limited guidance, it is necessary to resort to the usual sources of common law being invoked by the courts in such circumstances. These sources are (1) state of any legal authority that may be developed and applied by analogy to new circumstances. (2) any applicable considerations of relevant legal principle (3) any considerations of legal policy * Principle - Cattanach v Melchior Case (2000) majority of justices decided on a conclusion, which was around a general principle contained in law of negligence liability for failure to exercise reasonable care in relation to a foreseeable loss. * Policy - Cattanach v Melchior Case (2000) Dissenters indicated that for the court to entertain such an award of damages would be to commodify that life. For the court to award damages would be to regard a normal healthy baby as more trouble and expense than it is worth, which is morally offensive. * A number of legislatures responded to Cattanach v Melchior Case (2000) by passing legislation blocking the action. This later denied a disabled child suing for wrongful birth in Harriton v Stephens (2006).

27

Week 12 Lecture 1 Ch. 19 LDL Revision * Make summaries * Tutorial problems & past exam papers Facts designed to raise discussions. * Prep for exams revisiting tutorial questions and previous exam papers. * Exam 2hr and 15 mins (no reading time) * Plan answers for questions in exam. * Use headings in exams. No law reports required. * Exam format 2 parts Part A & B each part contains 2 questions. Part A & B worth 25 marks each. Choose 1 question from each Part. * Part A based on topics from weeks 1-5 & 12. * Part B based on topics from weeks 6-11. * 2 questions on legislation and statutory interpretation (Part B). * Look at exams Sem 1 2011 and Sem 1 2010.

28

Week 12 Lecture 2 Revision PART 1 * Australia is a common law system * Common law judge-made law (case law) & statute law (Acts) * Statute law is dominant law * Statute law prevails over common law * HC can strike down Cth legislation Judge-made law * Doctrine of precedent legal rules handed down in cases * Stare decisis to stand on the things that have been decided * Ratio decidendi reason for decision * Obiter dicta sayings by the way, every statement of law other than Ratio. * Ratio ruling of law * Obiter statement of law. Not binding. * Higher courts bind courts in lower courts. * Same level in hierarchy are only persuasive * Telstra v Treloar Case advantage of doctrine of precedent certainty, efficiency, equality and justice * 9 different hierarchies in Australia * Courts will depart from precedent only when it is clearly wrong ignorance of relevant statute * Ferrer Case HC treats its obiter more or less binding. Judicial decision-making * Precedent & authority. * Depending on criminal or civil case standard of proof * Criminal beyond reasonable doubt * Civil balance of probabilities * Questions of law rulings of law that courts will look into. Questions of law decided by judges. Usually reasons for appeals. * Questions of fact decided by juries. * Juries only in a defamation trial (civil context) * Juries used in serious criminal offences * Facts are usually not appealed in civil cases. * Judges may avoid precedent 1) Judges distinguish on the facts 2) statement of law in earlier case was too wide 3) statement of law is not ratio but obiter 4) refer to changed social conditions (R v L) or (Mabo Case) 5) case is plainly/clearly wrong per incuriam * When making new law courts will rely on 1) legal authority 2) general principles

29

3) legal policy * Activist v Conservative judges * Cattanach & Harriton Cases activist and conservative views. * Think about - what are differences between ration & obiters - when do they matter - what are opportunities for creativities in system of precedent - what extent does precedent operate to constrict - difference between binding and persuasive decisions - role of judges in making law & its limitations PART 2 Refer to Powerpoint slides

30