Introduction to Australian Law

1. Introduction to Australian Law Alma Pekmezovic La Trobe University, Australia March 2010

3. Topics Australian Legal History 1.1 Snapshot of Australian Legal History 1.2 Timeline of Australian Legal History Australia�s Legal Institutions 2.1 Parliament 2.2 The Executive 2.3 The Courts 2.4 Australian Federalism 2.5 The Australian Legal Profession

4. Topics (cont.) Sources of Law: Cases 3.1 Reading Cases 3.2 Precedent Cases as a Source of Law Sources of Law: Legislation 4.1 What is Legislation? 4.2 Statutory Interpretation

5. Topics (cont.) Main Branches of Australian Law 5.1 Classifying Law 5.2 Public Law (Constitutional law, Administrative law, Criminal law, Professional Conduct) 5.3 Private Law (Property, Contracts, Torts, Equity, Company law) 5.4 Procedural Law (Criminal procedure, Civil procedure, Evidence)

6. Language of instruction This course will be taught and assessed wholly in English. It is understood that English will not be the first language of students taking this course. This will be taken into account during classes and in assessment.

7. Required Reading There are five items that are required reading for this course and to which all students should have access in order to prepare for the examination. (a) Textbook Cook et al, Laying Down the Law (7th ed, 2009) Study Materials Lecture notes (PDF document, 100 pages) Please bring this document to all classes

8. Reading (cont.) (c) Cases Barnes v R (1997) 96 A Crim R 593 Australian Communications and Media Authority v Clarity1 Pty Ltd and Another (No 2) (2006) 155 FCR 377 Statute Spam Act 2003 (Cth) Please bring the two cases and the statute to class on Days 2 and 3.

9. Assessment a research essay: 3,000 words, worth 60%, due 9 April a reflective essay: 1,500 words, worth 30%, due 9 April four online tests on legal research and citation: worth 10%, due 19 March class presentation on Day 5 � hurdle requirement

10. Lecture Program 5 days of lectures For daily program, see table in Course Guide and Study Materials This course will be taught mostly by means of traditional lectures. Students are encouraged to ask questions during lectures (within reason); and they can expect the lecturer to ask some questions of them

11. Your teacher Alma Pekmezovic La Trobe University School of Law Phone: 0061 3 9479 3688 Email: a.pekmezovic@latrobe.edu.au

12. Topic 1: Australian Legal History 1.1 Snapshot of Australian Legal History 1.2 Timeline of Australian Legal History

13. Topic 2: Australia�s Legal Institutions 2.1 Parliament Separation of powers The nine Australian parliaments The functions of parliament Structure of parliament Membership of parliament Voting for parliament

14. 2.2 The Executive Who or what is the executive? What kind of power is executive power? What are the legal sources of executive power? Review of executive power by parliament: responsible government E. Review of executive power by the courts and tribunals

15. 2.3 The Courts The function of courts in Australia Federal and state court hierarchies The adversarial system Jurisdictions of the different courts Appointment of judges Separation of judicial power G. The tribunals

16. 2.4 Australian Federalism What is federalism? Origins of Australian federation Division of powers in Australian federalism

17. 2.5 The Australian Legal Profession Types of lawyers B. Training and qualification of Australian lawyers C. Legal professionalism and legal ethics D. Regulation of lawyers E. Access to lawyers F. A national profession? G. Significant legal officers H. Role of academic lawyers in Australia

18. Topic 3: Sources of Law: Cases 3.1 Reading Cases What are legal judgments and how are they made? i. Orders and reasons ii. Oral and written reasons iii. Reserved and ex tempore judgments iv. Who is the audience for judgments? v. What is the process for writing reasons?

19. vi. Reasons in single judge and multiple judge cases a. Majority decisions b. Concurring judgments Joint judgments d. Split majorities Publication of judgments viii. Reported and unreported judgments ix. Authorised and unauthorised law reports x. Citation

20. The content and structure of a judgment i. What goes into a judgment? a. Findings of fact b. Identification of the issues c. Identification of the relevant law d. Application of law to facts to reach decision e. Orders f. Obiter dicta and ratio decidendi

21. How are judgments structured? How are reported judgments structured?

22. Analysing a particular case: Barnes v R Case brief model Parties Citation Court and Judge Dates of Hearing and of Judgment Type of Proceeding Material Facts Procedural History Issues Holdings Reasons Additional comments Order(s)

23. Case brief on Barnes v R iii. Case critique or commentary

24. 3.2 Precedent Cases as a Source of Law The doctrine of precedent: how judgments become law i. Cases as precedents a. Precedent binds courts lower in the hierarchy b. The ratio decidendi is what binds c. A case may be a persuasive rather than binding precedent d. Obiter dicta may still be valuable

25. ii. Precedents as a body of law a. Indirect laws? b. Wide coverage of cases Case law as judge-made law Growth of case law a. Case law is not fixed An example of developing precedent (Adams v Bowman, Carney v Doyle, Elroy v Finn, Eccles v Fisher, Grainger v Harris) c. When is a case similar enough to a precedent case?

26. Why is case law called �common law�? v. The declaratory theory of common law a. Common law as declared, not made b. Why did the declaratory theory end? c. Judicial creativity to be limited d. Common law rules are not in fixed verbal form

27. Court hierarchies Appeals and the operation of precedent ii. The court hierarchies in Australia

28. Following and distinguishing precedents Following precedents a. Is there a precedent? b. What does the precedent require? Predicting results

29. Distinguishing precedents Distinguish the case on its facts b. The statement of law is obiter dictum c. The statement of law is too wide d. The case was wrongly decided e. The social conditions in which the precedent applied have changed f. The decision is simply unsatisfactory on policy grounds

30. D. Legal reasoning: induction, deduction and analogy Judicial decision-making and the proper judicial function i. Judicial creativity ii. Judicial conservatism iii. Common ground but perennial disagreement?

31. Topic 4: Sources of Law: Legislation 4.1 What is Legislation? The basic types of legislation i. Who made the legislation? a. Statutes b. Subordinate legislation

32. What does the legislation do? a. Principal Acts b. Amending acts c. Consolidating Acts d. Re-enacting acts Original and �as amended� Acts a. Reprinted Acts b. Versions of Acts

33. How legislation is made The general contents and structure of a statute Spam Act 2003 (Cth) Date and amendments ii. Preamble Short Title Purposes of the Act iv. Commencement of the Act v. Simplified Outline vi. Definitions vii. Structure and elements of the Act

34. 4.2 Statutory Interpretation Introduction to statutory interpretation What is statutory interpretation? ii. What guides statutory interpretation? a. The need for guides to statutory interpretation b. Interpretation legislation

35. Common law approaches to statutory interpretation i. Literal and purposive interpretation a. The literal approach The purposive approach ii. Common law presumptions a. Legislation does not bind the Crown. b. Legislation does not operate retrospectively. c. Parliament does not intend to interfere with fundamental rights.

36. Internal aids to statutory interpretation The Act as a whole Preambles, headings, definitions, etc iii. Clues from the surrounding language a. The meaning of a word is known from is context (noscitur a sociis) b. General words after particular words are limited to the same kind (ejusdem generis) c. Express mention of one thing is exclusion of the other (expressio unius est exclusio alterius) d. General words do not limit special words (generalia specialibus non derogant)

37. External aids to statutory interpretation i. Reports of parliamentary proceedings a. Second reading speech b. Debates ii. Explanatory memoranda iii. Reports of relevant investigative bodies iv. Treaties referred to in the Act

38. Judicial interpretation of legislation The importance of judicial interpretation of legislation An example of judicial interpretation of the Spam Act Australian Communications and Media Authority v Clarity1 Pty Ltd and Another (No 2) (2006) 155 FCR 377

39. 5. Main Branches of Australian Law 5.1 Classifying Law Common law v. civil law Common law v. statute law Substantive law v. procedural law Public law v. private law E. Common law v. equity

40. 5.2 Public Law Constitutional law i. What is constitutional law? ii. The Australian Constitutions iii. Federal legislative powers: judicial review and characterisation of laws iv. Freedom of interstate trade

41. v. Commonwealth grants vi. Inconsistency of Federal and State laws vii. Express rights viii. Implied rights ix. The executive x. The judiciary xi. Constitutional change: republicanism? xii. State constitutions

42. Administrative law i. What is administrative law? a. Judicial review Administrative review What government decisions can be reviewed? Standing iv. Improper exercise of power

43. Procedural fairness a. Hearing rule b. Bias rule Remedies vii. Freedom of information

44. Criminal law What is criminal law? Physical and mental elements of a crime Strict and absolute liability Summary and indictable offences v. Offences against the person

45. Property offences vii. Drug offences viii. Public order offences ix. Terrorism offences Attempt, incitement, conspiracy xi. Defences

46. Professional conduct What is the law of professional conduct? Lawyers� duty to the law Lawyers� duty to the courts Lawyers� duty to clients Lawyers� duty to fellow practitioners vi. Trust accounting

47. 5.3 Private Law Property What is property law? Doctrine of tenure iii. Native title

48. Types of interest in land a. Freehold interests b. Leasehold interests Other interests Torrens system of land registration Adverse possession of land Personal property viii. Succession

49. Contracts What is contract law? Formation: is there a contract? a. Offer and acceptance b. Consideration c. Intention to create legal obligations d. Certainty of terms e. Privity

50. iii. Identification and construction of terms: what is in the contract? a. Express terms Implied terms iv. Excuses: is the contract defective? a. Incapacity b. Misrepresentation c. Mistake d. Duress e. Undue influence f. Unconscionability g. Illegality

51. Termination: is the contract at an end? a. Termination by performance b. Termination by agreement c. Termination for breach d. Termination by frustration Remedies: can the problem be fixed? a. Damages b. Specific performance c. Injunctions

52. Torts What is tort law? Negligence a. Duty of care b. Breach of duty of care c. Causation

53. Defence of contributory negligence Other personal injury torts Defamation Interference with interests in land: trespass and nuisance vii. Vicarious liability

54. Equity What is equity? Historical development of equity Equity as the correction of inflexible legal justice Equity needs common law basis Where does equity apply? Maxims of equity vii. Trusts

55. Company law What is company law? Types of companies Public and proprietary companies Directors and their duties Regulation of corporations vi. Ending a company

56. 5.4 Procedural Law Criminal procedure Initial complaint or suspicion Investigation iii. Prosecution a. Charges b. Bail c. Committal proceedings

57. Pre-trial court hearings Trial Sentencing vii. Appeals viii. Royal prerogative of mercy

58. Civil procedure What is civil procedure? Instituting proceedings Service and appearance Cross-claims and joinder of parties Pleadings Discovery and other means of obtaining evidence

59. Disposition without trial a. Settlement Summary judgment Interlocutory orders Trial, judgment and orders x. Appeal

60. Evidence What is evidence law? Burden and standard of proof Adversarial trial: the parties� dominant role Judge�s power to exclude evidence

61. v. Types of evidence a. Oral evidence b. Documentary evidence Real evidence Relevance vii. Competence and compellability of witnesses viii. Privilege

62. Examination of witnesses Opinion evidence and experts Hearsay xii. Exceptions to the rule against hearsay xiii. Illegally obtained evidence

63. The End