Table of Contents ANALYSING A CASE 4 DEFINITIONS 5 THE FEDERAL HIERARCHY OF AUSTRALIA 6 INTRODUCTION TO LEGISLATION 7 PRINCIPLES IN RELATION TO STATUTES AND SUBORDINATE LAWS 7 MAKING STATUTES: THE PROCESS 8 COMMON LAW APPROACHES 9 ROOTS OF ENGLISH LAW: THE COMMON LAW SYSTEM 10 WRITS 10 TRIAL PROCEDURES IN THE EARLY COMMON LAW 10 EQUITY 10 FOUNDATIONS OF MODERN CONSTITUTIONALISM 10 MAGNA CARTA 11 REFORMATION AND PARLIAMENT 11 RULE OF LAW 12 SEPARATION OF POWERS 12 LEGISLATIVE POWERS OF THE PARLIAMENT 13 CHAPTER 3: THE AUSTRALIAN LEGAL SYSTEM 16 DOCTRINE OF TERRA NULLIUS 16 AUSTRALIA S FIRST STATUTES AND JUDGES 16 THE BALFOUR DECLARATION 17 CHAPTER 4: INDIGENOUS AUSTRALIANS 18 MABO V QUEENSLAND (NO 2) (1992) 18 KRUGER V COMMONWEALTH (1997) 20 HUMAN RIGHTS 20 EUROPEAN CONVENTION ON HUMAN RIGHTS 22 UNIVERSAL DECLARATION OF HUMAN RIGHTS 23 CHAPTER 6: CASE LAW AND PRECEDENT 24 STARE DECISIS 24 RATIO DECIDENDI AND OBITER DICTUM 24 ALTERNATIVE DISPUTE RESOLUTION (ADR) 24 ARBITRATION 25 1
COORDINATE JURISDICTION 25 CHAPTER 7: PRECEDENT IN AUSTRALIAN COURTS 26 THE HIGH COURT OF AUSTRALIA 26 THE FEDERAL COURT 26 THE FAMILY COURT 27 STATE AND TERRITORY SUPREME COURTS 27 INFERIOR COURTS 27 DECISIONS FROM OTHER COMMON LAW JURISDICTIONS 27 THE PRIVY COUNCIL 28 THE HOUSE OF LORDS AND SUPREME COURT OF THE UK 28 EQUALLY DIVIDED COURTS: JUDICIARY ACT 1903 (CTH) S 23 28 PROTECTING HUMAN RIGHTS WITHOUT A BILL OF RIGHTS: FRENCH CJ (CONSTITUTIONAL LAW) 29 CHAPTER 8: JUDICIAL DECISION-MAKING 37 JUDICIAL ACTIVISM AND THE DEATH OF THE RULE OF LAW 40 JUDICIAL ACTIVISM? A RIPOSTE TO THE COUNTER-REFORMATION 41 DO JUDGES MAKE LAW? TOO MUCH? 42 FOUNDATIONS OF JUDICIAL ACTIVISM 43 VOCABULARY ACTIVISM 44 KEY HCA CASES EXERCISING JUDICIAL ACTIVISM 45 CHAMBERLAIN V THE QUEEN 1984 45 EVIDENCE 48 CHAPTER 11: EXTRINSIC AIDS TO INTERPRETATION OF LEGISLATION 49 HCA ON USING PARLIAMENTARY DEBATES 49 INTERNATIONAL AGREEMENTS 49 VIENNA CONVENTION ON THE LAW OF TREATIES 1969 ART 31 50 MODERN APPROACH TO STATUTORY INTERPRETATION 50 CHAPTER 12: INTERPRETATION OF LEGISLATION IN CONTEXT 51 CHAPTER 14: STATUTORY OBLIGATIONS AND DISCRETIONS 53 FINDING EXTRINSIC MATERIAL 54 PRESUMPTIONS IN INTERPRETING LEGISLATION 55 ROYAL COMMISSIONS 56 THE MABO DECISION BARTLETT 57 EARLY LITIGATION 57 THE INDIGENOUS PEOPLES ASSERTION 57 THE CROWN S DEFENCE 57 MABO V STATE OF QUEENSLAND (NO 1) (1988) 58 CASE REMISSION TO QSC (1989) 58 MABO V QUEENSLAND (NO 2) (1992) 59 TERRA NULLIUS V SETTLED TERRITORY 60 CONTINUING CONNECTION WITH THE LAND 61 CONTENT 61 2
ELEMENTS OF PROOF 62 EXTINGUISHMENT 63 INDIGENOUS RIGHT TO COMPENSATION RDA 1975 (CTH) 63 JURISDICTION TO EXTINGUISH ASSERTION BY THE INDIGENOUS PEOPLES 64 COMMONWEALTH LEGISLATION ON NATIVE TITLE NTA 1993 64 TERMS Common Law countries: Australia, New Zealand, England, Ireland, The United States of America, India, etc. Based on the English Legal System. Civil Law countries: Most of Europe, some of South America, some of Asia, such as Japan and Thailand. Laws are contained in documents called codes, derived from Roman Law. Civil law is developed through deduction from the principles in the codes. Common law is emerged through an inductive process, in cases decided by the courts. Together, civil and common law constitute the Western legal tradition. Scotland, Louisiana, and Quebec all have a mix of both legal systems, due to their French heritage. Napoléon came to power after the French Revolution and expanded the French empire. By 1810, The Civil Code, The Civil Code of Procedure, The Commercial Code, The Code of Criminal Procedure, and The Penal Code, together known as the Code Napoléon, had all become law. The Code Napoléon has had a strong influence over Civil Law countries. Public Law: Governs the operation of the state, and the relationships between the state and its citizens. Includes welfare entitlements and taxation disputes. Private Law: Governs the relationship between citizens. Includes commercial matters, claims arising from accidents, wills, and property disputes over a broken down marriage. Civil Law: The law of private disputes, including over sums of money, and which party should bear the cost of a loss or injury. Remedies include compensation and restitution. Criminal Law: Concerned with the standards of conduct that are viewed as having such importance that their breach may result in punishment. Punishments include fines and imprisonment. Criminal actions are brought by a representative of the state. Parties to a criminal hearing are the prosecution (acting on behalf of the Crown) and the accused / defendant. 3
Analysing a Case For class preparation, it is sufficient to note the following: a) Citation; b) Brief statement of material facts; c) Grounds of appeal and/or issues to be decided; d) Reasons for the decision; and e) Decision. For a detailed analysis, it may be necessary to note a wider range of matters: a) Citation; b) Court, including single judge, Full court, or court of appeal; c) Brief statement of material facts; d) Procedural history; e) Grounds for appeal and / or issues to be decided; f) Summary of court s analysis of law; g) Principle of law to be applied; h) Description of how law was applied to the facts; i) Decision; j) Orders made by the court; and k) Any features of the case suggesting that it should be viewed in its social or cultural context (perhaps Obiter Dicta) e, g, h, and i above, correspond with the steps in the IRAC (Issue; Rules; Application; Conclusion). 4
Definitions Indemnity: Security or protection against a loss or other financial burden. Material Facts: Facts crucial to the case, upon which the decision is based. Stare Decisis: Stand on what has been decided ; The Doctrine of Precedents. a) Each court is bound by decisions of courts higher in its hierarchy; b) A decision of a court in a different hierarchy or lower in the same hierarchy may be persuasive but will not be binding; c) A court will not consider itself bound by its own past decision, but will depart from them only with reluctance; d) Only the Ratio Decidendi (the reason for the decision) of a past case is binding; e) Obiter Dicta ( remarks in passing - a judge's expression of opinion uttered in court or in a written judgment, but not essential to the decision and therefore not legally binding as a precedent) are not considered binding but may be persuasive; and f) Precedents do not lose their force by lapse of time Intestate: Someone who passes away without leaving a will. Succession Act 2006 (NSW) Sunset Clause: States that the Act is to cease to operate after a fixed period. If a sunset clause has come into effect before the Act has ceased to be useful, a reviving statute may be needed to continue the statute in operation. Prospective (in relation to an Act): It applies only to events occurring after it comes into operation. Retrospective (in relation to an Act): It also applies to events, which occurred prior to its commencement. Omnibus Legislation: An Act, which amends a number of other Acts. Schedule: Of a certain Act, specifying the dates of occurrence of the history of specified sections of the given Act, which have been repealed. Sunset Legislation / Self-amending Act: Contains a provision that a statute (or particular statutory provisions thereof) is to be in force only for a finite period, at the end of which, seizes to have effect. Repeal by Implication: When there is a clear inconsistency between an earlier and more recent legislation to the point where the two cannot coexist, the earlier legislation is repealed. 5
The Federal Hierarchy of Australia High Court of Australia: Appellate jurisdiction as well as original jurisdiction in certain matters including constitutional cases. (7 justices) [SS 75, 76 Commonwealth of Australia Constitution Act] Federal Court of Australia: Single or full court (at least 3 judges). Single judges have original and some appellate jurisdiction, and the full court has appellate jurisdiction, including jurisdiction to hear appeals from state and territorial appeals on some matters. Family Court of Australia: The appeal division of the family court has appellate jurisdiction, while a single judge has original jurisdiction (and may hear appeals on family matters from the Magistrates Court of the territories and the Federal Circuit Court). Federal Circuit Court of Australia: In 2013, the Federal Magistrates Court was renamed the Federal Circuit Court of Australia. It has limited original and appellate jurisdiction in federal matters including under the Family Law Act 1975 (Cth). Commonwealth Administrative Appeals Tribunal: Has jurisdiction under more than 400 pieces of legislation to review on the merits, on a range of administrative matters across government, from specialist tribunals and similar bodies, or direct from primary decision-makers. NEW SOUTH WALES Supreme Court of NSW: Two divisions - 1. Common Law Division: 2. Equity Division: Within the NSW Supreme Court, there is also the Court of Appeal and the Court of Criminal Appeal (each having at least 3 judges of appeal). District Court of NSW: Intermediate court with extensive civil and criminal jurisdiction. Local Courts: Have limited civil and criminal jurisdiction within a local area. Appeals can be made to the District Court, Supreme Court, or, where appropriate, to the Federal Court. Civil and Administrative Tribunal of NSW: Since 2013, took on jurisdiction of many of the state s tribunals, including the civil and general administrative jurisdiction of the Administrative Decisions Tribunal, and many cases from the Consumer, Trader, and Tenancy Tribunal. Appeals can be made directly to the Supreme Court of NSW. 6
Introduction to Legislation There are two types of legislation: 1. Statutes / Acts (made by Parliament) 2. Delegated / Subordinate / Secondary Legislation (made by office-holders or bodies to whom Parliament has delegated law-making power; Governor- General, Governor, a minister of the Crown, or a statutory body, such as a board, municipal council, or university) Subordinate Laws come in many forms: Rules Regulations Statutory Rules Subordinate Law Legislative Instruments Ordinances By-laws Principles in relation to Statutes and Subordinate Laws 1. A later statute or subordinate law, which is inconsistent with an earlier statute or subordinate law on the same topic, repeals the earlier one. 2. An act or statute takes precedence over that of a subordinate law on the same topic unless expressly stated by the Parliament. The as if enacted in this Act clause, gives subordinate laws equal status to that of statutes. Also the titled Henry VIII clause. Thereby allowing a subordinate law to repeal or supersede a statute. 3. S 109 of the Commonwealth of Australia Constitution Act states that legislation made by the Commonwealth Parliament prevails over inconsistent legislation, on the same topic, made by state Parliaments. 4. Legislation takes precedence over case law. 7
Nine principle legislatures enact statutes in Australia: The Commonwealth Parliament The Parliaments of the six states The Legislative Assemblies of the ACT and NT Norfolk Island also has its own Legislative Assembly, established in 1979. The Parliaments of WA and SA make legislation for other Australian external territories. All Australian states with the exception of QLD, have bicameral Parliaments. The mainland territories of Australia also only have one chamber. Making Statutes: The Process Before a statute is enacted, it is known as a Bill (draft form of a statute), and its provisions are known as clauses. If dissatisfied with some or all of a Bill, the Senate may only return the Bill to the House of Representatives with a request for an amendment. Firstly, a proposal for a Bill is made. Once the minister responsible has approved the proposal, the minister arranges for the Bill to be drafted by Parliamentary Counsel. The Parliament places the Bill on the notice paper or business agenda for the next day sitting. The Bill is introduced by the clerk of the relevant house, on that sitting day. The responsible minister presents a signed copy of the Bill to the clerk together with the explanatory memorandum (sets out the objectives of the bill and outlines its provisions). The second reading of the Bill is done immediately following the first reading, and gives a second reading speech (this explains the purpose or rationale of the Bill rather than the details of each provision). Before the enactment, a week following the introduction of the Bill, the Bill is read and debated before both, the Upper and Lower Houses, or the single chamber in QLD and the two territories. A vote is taken following the debate. The next stage is consideration clause by clause, and any amendments that need to be made. The Bill is then approved. The Bill is then read a third time before having finally passed the house. For bicameral Parliaments, the process is then repeated in the other chamber. If there are disagreements between the two houses as to the terms of the Bill, messages may pass between the houses to seek agreement. If the terms cannot be agreed upon, the Bill may be laid aside (unresolved Bill). Once the Bill is passed by both houses of the Parliament, the Governor-General approves it and the Bill is said to have received Royal Assent, and becomes an Act. Commonwealth statutes come into force 28 days after the date of the Governor- General s Assent, unless otherwise specified in the Act. [ACTS INTERPRETATION ACT 1901 - SECT 3A] 8
Common Law Approaches The literal approach: Words in a statute must be interpreted in the context, in which they appear, according to their plain and ordinary meaning. The purposive approach: Words in a statute may be interpreted so that they promote the purpose they were enacted to address. It is generally accepted that this approach is only used when there is an inconsistency in using the literal approach. Golden Rule: It is permissible to depart from the grammatical and ordinary meaning of words to avoid absurdity or inconsistency within a statute. Seldom used, although it has been applied when a court has been persuaded that the document in question contains an error. Pro Privato Commodo: Any action was for purely private gain. Pro Bono Publico: For the benefit of the public. The Purposive Approach: Four Considerations for the true interpretation of all statutes: 1. What was the common law prior to the making of the act? 2. What was the mischief and defect for which the common law did not provide? 3. What remedy has the Parliament resolved and appointed to cure the Commonwealth. 4. What is the true reason of the remedy? Then the Judges make such a construction as to suppress the mischief and advance the remedy. See case: Maritime Services Board of New South Wales v Posiden Navigation Inc. [1982] 1 NSWLR 72 Finding the original purpose of a statute: Refer to the Explanatory Memorandum Refer to the Second Reading Speech 9