1.1 What is Law? Issues for Consideration... 9

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1 1 Introduction to Law/Australian Legal System What is Law? Legal Terms Foundation for Democratic Law Natural Law Concepts Underlying a Legal System Jurisprudence: a living concept Modern Democracy Issues for Consideration R v Dudley and Stephens What should come first, the horse or the cart? Rights Chronology of United Kingdom Evolution Summary Shift of power, 1066 to now The Inheritance of English Law into Australia Chronology of Australian Constitutional History Commonwealth of Australia Constitution Act Division of powers between State and Federal governments Limits of Federal Parliament Constitution as a living document The Law Making Process Government Organs of Government Montesquieu s Theory of Separation of Powers Other Philosophers on the Separation of Powers Parliament (The Legislature) A-G (NSW) v Trethowan (1932) AC Houses of Parliament Parliamentary Procedure Double Dissolution Delegated Legislation Statutory Interpretation Executive Judiciary The Development of the Common Law The Development of Equity Conflict Between Common Law and Equity Principles of Equity ( Maxims ) An Administrative Conflict of Jurisdictions Common Law and Equity Today Common Law and Equity A biblical analogy The Doctrine of Precedent Elements of a Case The Court System in Australia Local Courts District Court Supreme Court Court of Appeal (including Court of Criminal Appeal) High Court Privy Council The Australia Act

2 2.6.8 The Role of the Courts Law Interpreter or Law Maker? The Legal Rolemakers The Fourth Estate and more Key Government Agencies Australian Securities and Investments Commission (ASIC) Australian Competition and Consumer Commission (ACCC) Australian Prudential Regulation Authority (APRA) Reserve Bank of Australia (RBA) Australian Tax Office (ATO) Property Classification of Property Ownership and Possession of Property Ownership Absolute Title Possession Possessory Title to Personal Property Possessory Title to Land Adverse Possession Co-ownership of Property Unities of Title Joint Tenancy Tenancy in Common Crown Title Legal and Equitable Interests in Property Legal Estates Real Property forms of title Old System Title Torrens Title Company Title Strata Title Community Title What land do we own? What is included as part of the land? Easements Personal Property Intellectual Property Overview of Statutory Protection of IP Torts Traditional Categorisation of Torts Direct or intentional torts Indirect Torts Negligence Duty of Care Standard of Care Damage Defences to negligence Resources available to pay Statutory restrictions Passing Off Proof of passing off Grounds for action

3 4.4 Defamation Jurisdiction for defamation Elements of defamation Defences Commencing action Crime Sources of criminal law Elements of a crime Formal Classifications Presumptions at law Double jeopardy Role of the Jury Contract Law Offer Acceptance The Postal Rule Enquiries Consideration The Doctrine of Promissory Estoppel Alternatives to consideration Intention to Create Legal Relations Capacity Genuine consent Legality of Objects Terms of a Contract Its Construction Terms of the contract Conditions and Warranties Interpreting a contract Statements leading up to a contract Representations that are terms The Parol Evidence Rule Collateral Contracts Implied Terms Ticket Cases Exclusion Clauses Statutory limitations on exclusion clauses At Common law Summary? Will an exclusion clause be valid? Other matters Condition precedent Condition subsequent Options Vitiating Elements of a Contract Mistake Common mistake Mutual Mistake Unilateral Mistake Mistake about the nature of the document signed non est factum Misrepresentation Innocent misrepresentation

4 7.2.2 Negligent misrepresentation Fraudulent misrepresentation Insurance Contracts Illegality Illegality by statute Illegality at common law Void at common law Inequality Duress Undue Influence Unconscionable Conduct Other Contract Issues Privity of contract Exceptions Assignment Formal Requirements of Contracts Discharge/Termination Terminology Performance Agreement Frustration By Operation of Law Breach of Contract Remedies for Breach Mitigation of damage Equity Remedies Legislative Support Consumer Protection and Anti-Competition The Courts and Consumer Protection Parliamentary Intervention Sale of Goods Act Trade Practices Act (CTH) (TPA) and Fair Trading Act (FTA) The Competition and Consumer Act, 2010 (CCA) Impact on the General Law (common/equity) CCA Consumer Protection Anti-Competition Bankruptcy and Insolvency Bankruptcy Debtor s Petition Creditor s Petition Acts of Bankruptcy Features of Bankruptcy Doctrine of Relation Back Discharge Alternatives to Bankruptcy Part X Arrangements: Personal Insolvency Agreements Part IX Corporate Insolvency Schemes of Arrangement Receivership

5 Voluntary Administration Liquidation Pre-Bankruptcy/Liquidation Appendices Constitution Summary Commonwealth of Australia Constitution Act 1900 main sections Changing Borders of Colonies/States Comparison of Federal Systems Constitutional Referendums History Organs of Government Codelfa Constructions Pty Ltd v State Rail Authority of NSW (1982) L Shaddock & Associates Pty Ltd v Parramatta City Council (1981) Smith v Baker & Sons (1891) State of Tasmania v The Commonwealth (Tasmanian Dam Case)

6 1 Introduction to Law/Australian Legal System 1.1 What is Law? Legal Terms A Law: The Law: Jurisprudence: Natural Law: Religious Law: Rationalist Law: A particular legal rule A declaration of behaviour in society; a comprehensive and changing set of rules. The general principles underlying the law: the foundation for the making of the law. The principles of reason and justice which flow from the law of nature (or the law of God) and which form the foundation of our legal system. What is right and wrong? What is reason? Foundation for Democratic Law Natural Law Natural law is based on the notions of the laws of God and reason/common sense ie. A combination of religious and rationalist law. We see direct examples of Christian teachings in our law. A major example is the case of Donoghue v Stevenson which is a major case in the law of tort. Religious Ideas - We are required to do what is right - Conscience indicates right or wrong - Justice is when law accords with right - Unfortunately, free will means we may choose evil, so law is necessary to punish and control. Rationalism - Focus on finding truth, what we all agree is true - Truth is known to be true through reason - Rene Descartes: Cogito ergo sum (I think, therefore I am) first order truth - More than 1000 years before, Archimedes came to a similar view - Second order truth is what we call science, truth that is based on belief in the existence of the universe and is tested by observation, theory and predictability. Relativism 6

7 - Law is not absolute, it is relevant to the agreement of the community, it changes over time, between cultures, religions and traditions. It is constantly in need of being re-considered in line with changes in morality and technology. - Thomas Hobbes Leviathan was influential in convincing people they had a choice. - Law is a social contract - This gives justification for Parliament as representation of the people that can make or unmake any law - Hobbes also argued that the social contract is over if the state seeks to kill us. We have an undeniable right to defend ourselves against anyone, even the State. John Locke explained that natural law involved a fundamental belief that all men are equal and will, therefore, equally respect and not harm each other. His view inspired the core principle of the American Declaration of Independence and, as a result, two of the most impacting speeches: American Declaration of Independence (Thomas Jefferson): We hold these truths to be self evident that all men are created equal, that they are endeavoured by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. Gettysburg Address (Abraham Lincoln): Four score and seven years ago our fathers brought forth on this continent a new nation, conceived in liberty and dedicated to the proposition that all men are created equal that we are highly resolved that these dead shall not have died in vain, that this nation under God shall have a new birth of freedom, and that government of the people, by the people, for the people, shall not perish from the earth. Martin Luther King: I have a dream that one day this nation will rise to live out its creed that all men are created equal Concepts Underlying a Legal System Philosophy: That man is evil by nature - Laws should be made to suppress the evil instincts of humans St Augustine: Drew attention to man s inherent evil nature, i.e., his natural, or original, sin, and the need for positive laws to keep him in check. Thomas Hobbes: Said man was brutish in nature and needed laws to suppress his natural instincts. John Austin: His view was that mere reliance on a sense of morality or justice was not enough; Law is a command of the sovereign, non-compliance with which leads to punishment. 7

8 Philosophy: Legal Positivism - Requiring society to be obedient to a certain superior. David Hume: Drew a distinction between how our society actually is as opposed to what it ought to be. Natural law looks at what ought, positivism looks at what is - the harsh realities of life laws should be made accordingly. Old Testament: Reflects these views in the need for strict rules (the ten commandments) and direct punishment (eye for an eye) Philosophy: That man is inherently good - Humans are fundamentally good beings and their laws should reflect this. Romantics: Man is the most perfect creature and, therefore, left to reason it out, he will automatically perfect his society (foundation of democracy). Anarchists: Their radical view is that laws are the tools of oppression and privilege and man is better served by having no laws at all. Marxists: The views of Karl Marx that society will correct itself through revolution of the common man (proletariat) against the privileged (bourgeoisie). This principle was the foundation of the Russian Revolution of 1917 and the creation of the USSR The Golden Means of Compromise Aristotle: Laws are necessary to provide a balance between compassion and punishment. Bentham: Founded utilitarianism, the notion of laws finding a balance to achieve the greatest good for the greatest number of people. Roscoe Pound: Founded the theory of social engineering, the concept that law is used as a dynamic force to mould and change our society (as opposed to laws merely reacting to society s needs/demands Jurisprudence: a living concept Example: Globalism Australia s sovereignty is, in a sense, at risk by globalism. This has been a challenging consideration in recent times with regard to the extent of Australia s participation in the International Criminal Court, a court based in Europe with power to deal with war criminals. Although, on the face of it, a good idea, there is potential for Australians, serving the Australian armed forces in Afghanistan/Iraq, for example, to be tried by such a court on a judicial basis founded on other countries (perhaps corrupt) criteria. The Government s answer is to join but with the protection that an Australian can only be tried if approved by the Commonwealth Attorney-General. 8

9 In July 2002, the then High Court Chief Justice Murray Gleeson addressed a conference of the Australian Bar Association in Paris. He acknowledged that globalisation and international human rights law had impacted on the High Court s decision making and said that (Mabo) was a notable example of the High Court of Australia developing the common law in response to the forces of globalisation. On the issue of fundamental issues in the way we are governed, he went on to nominate four specific issues: - judicial independence - presumption of innocence - freedom from arbitrary arrest or imprisonment - right to remain silent Modern Democracy - Requires acceptance of the principle that it is the people that have the fundamental right to make law not the King, church or rich and privileged - The Utility Principle: The way to measure the success of governments is to apply the test: - does it provide the greatest good for the greatest number of the people (Jeremy Bentham) OR the greatest happiness for the greatest number of the people (John Stuart Mill) 1.2 Issues for Consideration R v Dudley and Stephens - Dudley and Stevens were cast away in a storm with an English boy between 17 and 18 years of age. - They ran out of food after 8 days. - The defendants suggested that someone should be sacrificed to save the rest. - Another crew member dissented and the boy was not consulted. - The boy was extremely weakened by famine and drinking sea water and was unable to resist. - The boy was killed and the 3 men fed upon his body for 4 days until they were rescued. - Under the circumstances, the defendants had assumed that there was every probability that, unless they had fed upon the boy or one of themselves, they would have died of starvation. - It was held that necessity was not a defence for murder. They were found guilty and sentenced to the statutory penalty of murder. However, it was recommended that clemency be granted and the sentence was later reduced to 6 months in prison What should come first, the horse or the cart? - Many examples of Roscoe Pound s theory of social engineering. - Should the law be proactive or reactive, should it promote change or respond to it. 9

a) The body of law as made by judges through the determination of cases. d) The system of law that emerged following the Norman Conquest in 1066.

a) The body of law as made by judges through the determination of cases. d) The system of law that emerged following the Norman Conquest in 1066. 1. Who of the following was NOT a proponent of natural law? a) Aristotle b) Jeremy Bentham c) St Augustine d) St Thomas Aquinas 2. The term 'common law' has three different meanings. Which of the following