How to use this book Acknowledgements xi xiii CHAPTER 1 Skills for Legal Studies 1 Language skills 2 1. Planning to write, and writing 2 Writing paragraphs (for explanations or summaries), and extended responses 2 Writing for particular purposes and a variety of audiences 3 Newspaper items news stories, feature stories, editorials and letters to the editor 4 Writing in report format 4 Written submissions/research assignments 5 2. Be familiar with legal terminology, formats and procedure 14 Understanding and using case citations 14 Reading and understanding law reports 15 Reading and understanding statute law 17 Reading and analysing fictitious fact situations or real cases 17 Participating in mini-moots and moots (mock trials) 17 3. Understand the requirements of the Senior Legal Studies course 19 Tasks to assess Legal Studies criteria 20 Research skills 25 1. Where legal information is available and how it can be accessed 25 Print resources and audio and visual media 25 The different types of legal information available and how to approach them 26 Electronic media, particularly the Internet 26 Other sources of legal information 28 2. How to be an efficient and effective researcher 28 Reading and using resources available in print or electronically 28 Making notes as you research summarising and paraphrasing 29 Annotating 30 Choosing from available resources and selecting what is relevant to your task 31 Acknowledging your sources of legal information 31 3. How to plan, organise and conduct research in the community 31 The interview 32 Surveys and questionnaires 32 Bibliography 33
vi SECTION A The Legal System 35 CHAPTER 2 The law 37 What is law? 37 Why we need laws 40 Sources of law 44 Parliament 44 The law and society 58 Drafting laws 63 CHAPTER 3 The courts 67 The court system 67 The relationship between Parliament and the courts 68 Conflict between Parliament and the courts 69 How do the courts give meaning to legislation? 70 Hierarchy of courts 72 Court structure 78 The role of judges 81 The court system and the doctrine of precedent 84 The Constitution 102 CHAPTER 4 The process of resolving conflict 106 Your options 106 1. Talking with the person 107 2. Mediation procedures 107 3. Government agencies and tribunals 109 4. Legal action in court 110 The court process 112 Court personnel and the jury 116 The jury system 118 Court report excursion 122 The Magistrates Court 122 District or Supreme Courts 123 Practice evaluation topics 124 SECTION B Crime and Society 125 CHAPTER 5 Criminal law 127 What is criminal law? 127 What is crime? 128 Sources of criminal law 134 Offences 136 Offences against the person 137 Offences against property 166 Driving offences 173 Drug offences 183 Other offences 192
vii Parties to offences 194 Attempting to commit an offence 195 CHAPTER 6 Defences 198 Provocation 199 Limits to the defence 199 Self-defence 202 Unprovoked assault situation 202 Self-defence against provoked assault situation 204 Defence of premises 205 Intoxication 207 Where intent is relevant 208 Involuntary intoxication 208 Insanity 209 Diminished responsibility 210 Involuntary act 211 Accident 211 CHAPTER 7 Sentencing, criminal procedure and court proceedings 215 Crime rates 215 Problems associated with crime 217 Why do people commit crime? 218 Theories of punishment 221 How the theories of punishment are reflected in the law 223 Sentencing options 224 Recording of convictions 234 Parole 237 Victims rights 237 Sentencing of young offenders 239 Criminal procedure 245 Powers of questioning 246 Powers of search 246 Power of arrest 247 Questioning at the police station 248 Bail applications 249 Court proceedings 250 Trial process 251 How the trial proceeds 255 Practice evaluation topics 260 SECTION C Civil Wrongs 261 CHAPTER 8 Introduction to torts 263 What is a tort? 263 Development of the law of tort 268 Policy issues 268
viii Who is the defendant in an action in tort? 271 Exception 1: Vicarious liability 271 Exception 2: More than one person at fault 274 CHAPTER 9 Negligence and duty of care 277 Duty of care 279 Exceptional cases 283 Breach of duty 291 Damage 303 Establishing the chain of causation 304 The chain of causation and policy issues 307 Forms of compensation 315 Trends in negligence in the early twenty-first century 318 Medical negligence 320 Taking responsibility for your own actions 321 CHAPTER 10 Defences 325 Contributory negligence 325 Volenti 327 CHAPTER 11 Specific negligence situations 334 Statutory regulation 334 Motor vehicle accidents 335 Workers compensation 337 Occupiers liability 341 Contractual entrant 341 Invitee 343 Licensee 343 Trespasser 343 Product liability 347 Liability for animals 352 General principles 352 Specific principles 353 CHAPTER 12 Trespass, defamation nuisance and trends in tort law 354 Trespass 354 Trespass to the person 355 Trespass to land 356 Trespass to goods 357 Defamation 359 Defamatory material 360 Published defamatory material 363 Defences to a defamation action 364 Nuisance 369 Elements of the tort of nuisance 370 Defences 374
ix Remedies for nuisance 375 Invasion of privacy 377 Trends in tort law 379 Personal injury 379 SECTION D Agreements 385 CHAPTER 13 Elements of an agreement 387 Elements of a legal agreement 391 Agreement between the parties 391 Intention to create legal relations 407 Consideration 410 Promissory estoppel 415 CHAPTER 14 The terms of the agreement 418 Different kinds of terms 421 Misrepresentation 425 Defective goods 430 Exclusion clauses 435 Focus on credit contracts 439 Why people use credit 440 Sources of credit 440 Problems with credit 443 Credit contracts 444 Main requirements of the legislation 446 Credit contracts and mortgages 450 Credit contracts and guarantees 451 Consumer leases 452 Completing credit contracts 454 Paying off the loan early 454 What to do if you can t meet repayments 455 Bankruptcy 459 Technology and contracts 460 Factors affecting whether an agreement will be enforceable 462 Unconscionable conduct 464 Misleading conduct 467 Misleading and deceptive conduct 470 Duress 472 Undue influence 473 Illegality 474 Capacity to make an agreement 475 Exceptions regarding minors 476 Enforcing agreements 479 Appendix 1: Case list 487 Appendix 2: The Constitution 491 Index 493