DIPLOMA IN LAWLEGAL PROFESSION ADMISSION BOARD

LAW EXTENSION COMMITTEE

LAW EXTENSION COMMITTEE SUBJECT GUIDE

01 LEGAL INSTITUTIONSWINTER SESSION 2016

This Guide includes the Law Extension Committee’s course information and teaching program and the Legal Profession Admission Board’s syllabus. The syllabus is contained under the heading “Prescribed Topics and Course Outline” and has been prepared in accordance with Rule 27H(a) of the NSW Admission Board Rules 2015.

Course Description and Objectives 1Lecturers 1Assessment 1-2September 2016 Examination 3Lecture Program and Prescribed Topics 3-4LEC Orientation 5Essential Intensive Introductory Classes for all Legal Institutions Students 5Weekend Schools 1 and 2 6Legal Skills Workshops 6Texts and Materials 7Course Materials Reading Summary 8Compulsory Assignments 8Assignment Questions 9Important Notice to Legal Institutions Students 9Legal Institutions Course Outline 10-31

LAW EXTENSION COMMITTEE WINTER 201601 LEGAL INSTITUTIONS

COURSE DESCRIPTION AND OBJECTIVES

This course emphasises the building of a core of legal knowledge to facilitate further study and a strong set of legal skills to assist in the practical application of that knowledge.

The course will introduce students to the origins, history and present operation of the institutions which make up the Australian legal system, to the sources of law, and to the Commonwealth and New South Wales Constitutions. The matters which will be considered include the distribution of legislative powers between the Commonwealth and the States; the executive powers of the Commonwealth and New South Wales governments and the sources of those powers; the system of courts and tribunals operating at Commonwealth and New South Wales levels; the relationship between the various legal institutions; the theory and practice of precedent; the rules of statutory interpretation; the legal profession and arbitration and alternative dispute resolution.

Students are given an opportunity to develop the skills necessary for successful completion of legal studies, including legal essays and answering legal problems. This is done through a study of relevant legislation and cases, class problems and class skills tasks, web tutorials and problems and the completion of assignments.

LECTURERS

Mrs Susan Carter, BA (Hons), LLB (Hons) (Syd)

Susan is an experienced commercial solicitor who has worked in private practice, as in-house counsel, and was seconded for a period of government service. Beginning her professional life with the Federal Court, Susan has used her legal expertise both in practical commercial applications and in wider policy issues. A national and international conference speaker, who has served on a number of boards (including the Family Law Council of Australia), Susan is currently involved in legal education, having taught at the University of Sydney before her current involvement with the LEC.

Professor Anita Stuhmcke, BA, LLB (Hons) (Macq), MJuris (Hons) (Syd), PhD (ANU)

Anita is a Professor who teaches law at the University of Technology, Sydney, Faculty of Law. She holds a BA and LLB (Hons) from Macquarie University, a Master of Jurisprudence (Hons) from the University of Sydney and a PhD from the Australian National University. Anita has published widely in the area of health and administrative law and has a keen interest in the education of future legal practitioners.

ASSESSMENT

To be eligible to sit for the Board’s examinations, all students must complete the LEC teaching and learning program, the first step of which is to ensure that you have registered online with the LEC in each subject for which you have enrolled with the Board. This gives you access to the full range of learning resources offered by the LEC.

To register with the LEC, go to www.sydney.edu.au/lec and click on the WEBCAMPUS link and follow the instructions. Detailed guides to the Webcampus are contained in the material distributed by the LEC, in the Course Information Handbook, and on the Webcampus.

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Eligibility to Sit for Examinations

In accordance with the Legal Profession Admission Rules, the LEC must be satisfied with a student’s performance in a subject in order for the student to be eligible to sit for the examination, conducted by the Legal Profession Admission Board (LPAB). Assignments are used to assess eligibility.

Students are expected to achieve at least a pass mark of 50% in assignments to be eligible to sit for examinations. However, a category of “deemed eligible” has been introduced to offer students whose assignment mark is between 40-49% an opportunity to sit for the examination. In these circumstances students are often advised not to sit. A mark below 40% means a student is not eligible to sit for the examination.

Assignments as part of the Board’s Examinations

Assignment results contribute 20% to the final mark in each subject.

The Law Extension Committee (LEC) administers the setting and marking of assignments. The LEC engages the LPAB’s examiners to assess or supervise the assessment of assignments.

Submission

Assignments must be received by 11:59pm on the due date unless an extension has been granted. Extensions must be requested by email prior to the due date. Specific supporting evidence must be provided. Assignments that are more than ten days late will not be accepted. Late assignments attract a penalty of one mark out of 20, or 5% of the total marks available, per day.

Assessment

Assignments are assessed according to the “Assignment Grading and Assessment Criteria” outlined in the Guide to the Presentation and Submission of Assignments. Prior to the examination, assignments will be returned to students and results posted on students’ individual results pages of the LEC Webcampus. Students are responsible for checking their results screen and ascertaining their eligibility to sit for the examination.

Review

Where a student’s overall mark after the examination is between 40-49%, the student’s assignment in that subject will be included in the Revising Examiner’s review. The final examination mark is determined in accordance with this review. Assignment marks will not otherwise be reviewed.

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SEPTEMBER 2016 EXAMINATION

Please note: all questions in relation to the September examination in Legal Institutions should be directed to the Legal Profession Admission Board, not the Law Extension Committee or LEC teachers. Information regarding permitted materials for the examination will appear on the Legal Profession Admission Board’s website (http://www.lpab.justice.nsw.gov.au) before the exam.

Candidates will be expected to have a detailed knowledge of the following prescribed topics:

Legal institutions: general considerations Legal reasoning English legal and constitutional history from 1066 to 1875 New South Wales and Commonwealth legal and constitutional history from 1788 to the present The Commonwealth Parliament The New South Wales Parliament The Executive Government The court system Non-judicial tribunals Arbitration and alternative dispute resolution The legal profession What is law?

Candidates will be expected to have made a study of the prescribed materials in relation to those topics, and to have analysed the cases and statutory provisions referred to in the Legal Institutions Course Outline. Candidates will also be expected to display an adequate grasp of the legal skills to which they have been introduced in the course Legal Institutions.

Accordingly, candidates should expect a number of questions in legal problem format as well as essay style questions. Candidates are also expected to be aware of the basic principles of grammar, spelling and sentence construction.

LECTURE PROGRAM AND PRESCRIBED TOPICS

Evening lectures will be held on Wednesdays, on the main campus of the University of Sydney, commencing 4 May 2016. All lectures begin at 6.00pm and finish at either 8.30pm or 9.00pm. Additionally, ALL Legal Institutions students will be required to attend the Essential Intensive Introductory Classes (7 May and 8 May 2016) and both Sunday mornings of the First and Second Weekend Schools (Sunday 29 May 2016 and Sunday 24 July 2016). Topics 8 and 9 will be made available as on-line lectures for external students and this material will not be covered at Weekend Schools. External students are encouraged to note the date and times of these lectures and ensure that they are available on these evenings.

The venues for the lectures are set out in the lecture program overleaf. For details as to the location of these venues, refer to page 52 of the Course Information Handbook for a map of the University of Sydney main campus.

Please note that this program is a general guide. It may be varied according to need, including adjustments for longer or shorter sessions. Please refer to the Reading Summary for each topic in the Legal Institutions Course Outline.

Once you have registered online with the LEC, you will have access to all the facilities on the LEC Webcampus including the Legal Institutions Course Outline by topic, plus any other materials that the lecturer may make available to students. These materials can be found in the Course Materials section of the LEC Webcampus.

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WEEK DATE VENUE TOPIC1 Wed.

4 May CLT 157 Topic Three: Australian Legal InstitutionsIntensive

Introductory classes

Sat.7 May New LSLT 101 Topic One: An Introduction to Law and its Sources

Intensive Introductory

Classes

Sat.7 May New LSLT 101 Topic Two: Legal Research

Intensive Introductory

Classes

Sun.8 May New LSLT 101 Topic Five: Introduction to Legal Problem Solving

2 Wed.11 May CLT 157 Topic Five: Legal Problem Solving: further considerations

3 Wed. 18 Mat CLT 157 Topic Four: The Legal Profession

4 Wed.25 May CLT 157 Topic Four continued, and Topic Seven: Statutory

InterpretationFirst

Weekend School

Sun.29 May8am-noon

New LSLT 101 Topic Six: Legal Referencing; Study Skills

5 Wed.1 Jun CLT 157 Topic Seven: Statutory Interpretation; Problem Solving

6 Wed.8 Jun CLT 157

Topic Eight: English Legal and Constitutional Foundations Not covered at weekend school – available to external students as webcast lecture.

7 Wed.15 Jun CLT 157

Topic Nine: New South Wales and Commonwealth Legal and Constitutional HistoryNot covered at weekend school – available to external students as webcast lecture.

Wed22 Jun

Parliament House

Macquarie St

OPTIONAL VISIT TO NSW PARLIAMENT HOUSE. Note this is in the study break as this was the only time we could secure a booking. An email will be sent separately to students outlining arrangements.

Study Break: Saturday 18 June – Sunday 3 July 2016

8 Wed.6 Jul TBA Topic Ten: The Court System

9 Wed.13 Jul TBA Topic Eleven: Tribunals, Arbitration and Alternative Dispute

Resolution

10 Wed.20 Jul TBA Topic Thirteen: Commonwealth Parliament

Second Weekend

School

Sun.24 Jul

8am-noonEAA Topic Twelve: Study/Summary and Exam Preparation Skills

11 Wed.27 Jul TBA Topic Fourteen: New South Wales Parliament

12 Wed.3 Aug TBA Topic Fifteen: Executive Government

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LEC ORIENTATION

An Orientation for new students, including Overseas Qualified Students, will be provided by the LEC from 10am on Friday 6 May 2016 in Carslaw Lecture Theatre 157 (CLT 157) on the main campus of the University. This Orientation will conclude at approximately 4.15pm.

The Orientation will provide you with an opportunity to understand the roles of the Legal Profession Admission Board (LPAB) and the Law Extension Committee; the LEC will guide you through the features of the Webcampus; the LEC Law Librarian will explain library resources; approaches to the course by former and present students will be discussed and you will be able to meet other students. A full program of the day can be accessed on the LEC Webcampus and was included in your Enrolment Package.

ESSENTIAL INTENSIVE INTRODUCTORY CLASSES FOR ALL LEGAL INSTITUTIONS STUDENTS

All students (both evening and external students) in Legal Institutions, whether for the first time or returning, should attend on the weekend of 7 and 8 May 2016 in the New Law School Lecture Theatre 101 (New LSLT 101) on the main campus. No material will be repeated at a later date.

A detailed program of the Essential Intensive Introductory Classes is below and was included in your Enrolment Package. It is also available on the LEC Webcampus. Please make sure you have downloaded the relevant material from the Webcampus, and bring along the cases, questions and problem (from Topic 5) for discussion.

The classes to be held in Legal Institutions will be taught by Susan Carter and the LEC Law Librarian Patrick O’Mara and are as follows:

Saturday 7 May 2016 Legal Institutions

TIME TOPIC9.00am –11.00am Topic One: An Introduction to the Law and its Sources: Susan Carter11.00am – 12noon Topic Two: Legal Research: Patrick O’Mara12noon – 3.00pm Research Workshops; Study Group Formation; Case Reading Tasks

and Lunch Break. During this extended break, students will be helped to form study groups and will

break for lunch. Also, students who have registered with the LEC prior to the Essential Intensive

Introductory Classes will be allocated to one of the three computer research workshops which will be run during this time.

Students will also be allocated to one of the two study skills classes which will be run during this time.

3.00pm – 5.00pm Topic One: An Introduction to the Law and its Sources (continued)

Sunday 8 May 2016 Legal Institutions

TIME TOPIC9.30am – 12.30pm Topic Five: Introduction to Legal Problem Solving: Susan Carter12.30pm – 1.30pm Lunch Break1.30pm – 4.30pm Topic Five: Introduction to Legal Problem Solving (continued)

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WEEKEND SCHOOLS 1 AND 2

Classes in Legal Institutions are held at both Weekend School 1 and 2. The focus of these classes is the external students except for the Sunday morning classes which should be attended by ALL Legal Institutions students. Evening lecture students may attend on the understanding that weekend classes aim to cover the topics covered in weekly lectures and are principally for the benefit of external students. Please note that it may not be possible to cover the entire course at the weekend schools. Remember that topics 8 and 9 will be made available on line as a webcast on the evening of the lecture, and these topics will not be covered separately at the weekend schools.

The weekend schools are designed to deliver the lecture program for external students, and provide them with an opportunity to ask questions and interact with other students. Attendance at the weekend schools is voluntary, but external students are encouraged to attend. It is the best way for external students to receive the LEC’s lecture program and the only way in which the lecture material is available to them. It is envisaged that the following topics will be covered at the weekend schools:

First Weekend School Second Weekend SchoolFriday 27 May 2016: 5.00pm – 9.00pmCarslaw Lecture Theatre 159 (CLT 159)

Friday 22 July 2016: 5.00pm – 9.00pmEastern Avenue Auditorium (EAA)

Saturday 28 May 2016: noon – 4.00pmNew Law School Lecture Theatre 101 (New LSLT 101)

Saturday 23 July 2016: noon – 4.00pmEastern Avenue Auditorium (EAA)

Topics: 3, 4, 7 and refresh Topic 5 Topics: 10, 11, 13, 14, 15

ALL LEGAL INSTITUTIONS STUDENTSSunday 29 May 2016: 8.00am – noonNew Law School Lecture Theatre 101 (New LSLT 101)Topic 6: Legal Referencing; Study Skills

ALL LEGAL INSTITUTIONS STUDENTSSunday 24 July 2016: 8.00am – noonEastern Avenue Auditorium (EAA)Topic 12: Study/Summary and Exam Preparation Skills

The key reading for each topic can be found under the “Reading Summary” in the Legal Institutions Course Outline.

LEGAL SKILLS WORKSHOPS

Success in legal studies requires both the acquisition of knowledge and the development of the necessary skills of problem solving and analysis. Students need to learn how to apply their legal knowledge to a variety of novel factual situations – a proficiency which will be valuable in practice as well as in their studies. Legal knowledge alone – without the skills to apply it – is not a sufficient foundation for success in exams.

To assist students to become proficient in these areas, Legal Institutions has been deliberately structured to introduce students to the necessary skills of legal problem solving. Through lectures, class problems, research tasks and the assignments, students should begin to build the necessary base of proficiencies which they will rely on throughout their studies.

As well, a package of self-guided tutorials is available on the Webcampus for students to work through at their own pace. These tutorials focus on the acquisition of general study and exam skills; on skills addressed in the Legal Institutions course; and on legal problems. Each set of tutorial questions has an answer guide (which is best accessed after students have attempted the question) available to students at any time.

Students with questions about the tutorial material or general questions about the development of legal skills, approach to legal study or preparation for exams are welcome to contact the principal teacher in Legal Institutions, Susan Carter, by email at any time at: s.carter@sydney.edu.au.

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TEXTS AND MATERIALS

For the period from 21 April to 30 May 2016, LexisNexis is offering our students a special discount and free shipping on purchases made through the LexisNexis e-store at www.store.lexisnexis.com.au. Please refer to the complete LEC booklist (via the link on the student message board) for more information and the promotion code. Please note, however, that the three-book pack is only available through the Co-op Bookshop and is not available on the LexisNexis e-store.

Course Materials (Available through LEC)

Law Extension Committee, Legal Institutions Course Outline (from p.10 of this subject guide and also available on the LEC Webcampus for download by topic)

The Course Outline refers you to the Course Materials which may be accessed electronically through the University Library. If you have questions about accessing the case readings and other materials, please contact the LEC Liaison Librarian.

Guide to the Presentation and Submission of Assignments (available on the LEC Webcampus)

Prescribed Text (Required reading for all students)

Cook, Creyke et al, Laying Down the Law, 9th ed. LexisNexis, 2014.

Alexander Reilly, Gabrielle Appleby, Laura Grenfell, Australian Public Law, 2nd ed. Oxford University Press, May 2014

Anita Stuhmcke, Legal Referencing, 4th ed. LexisNexis, Sydney, 2011 Students should also obtain a good Australian Legal Dictionary.

If they wish, students may purchase a three-book pack of Laying Down the Law (9th ed.), Legal Referencing and LexisNexis Concise Australian Legal Dictionary, 5th ed. LexisNexis 2014, through the Co-op Bookshop, Phillip Street Branch, at a special price, but these texts may also be purchased individually.

Reference Materials (Additional reading which students may find useful)

Vines Prue, Law & Justice in Australia, Oxford University Press, 2004 Farrar, Legal Reasoning, 1st ed. Thomson Reuters, 2010 Parkinson, Tradition and Change in Australian Law, 5th ed. Thomson Reuters, 2012 Carvan, Understanding the Australian Legal System, 7th ed. Thomson Reuters, 2014. Macken & Dupuche, Law Essentials: Foundations in Australian Law, 1st ed. Thomson Reuters,

2011 Crawford, Australian Courts of Law, 4th ed. Oxford University Press, 2004 Lumb, Constitutions of the Australian States, 5th ed. University of Queensland Press, 1991 Moens and Trone, The Constitution of the Commonwealth of Australia: Annotated, 8th ed.

LexisNexis, 2011 Ellis, Principles & Practice of Australian Law, 3rd ed. Thomson Reuters, 2012 Gooley & Radan, Principles of Australian Contract Law, 3rd ed. LexisNexis, 2013 Gooley, Radan & Vickovich, Principles of Australian Contract Law, Cases and Materials, 3rd ed.

LexisNexis, 2013 Meehan & Tulloch, Butterworths Guides -Grammar for Lawyers, 3rd ed. LexisNexis, 2013 Bott & Talbot-Stokes, Nemes & Coss' Effective Legal Research, 6th ed. LexisNexis, 2015 Finkelstein & Hamer (eds), Concise Australian Legal Dictionary, 5th ed. LexisNexis, 2014 Hutchinson, Researching and Writing in Law, 3rd ed. Thomson Reuters, 2009 Sanderson & Kelly, A Practical Guide to Legal Research, Thomson Reuters, 2014 Dr Derek Soles, Perfect Grammar, Studymates Ltd, 2008 R L Trask, Penguin Guide to Punctuation, Penguin 1997

LEC Webcampus

Once you have registered online with the LEC, you will have full access to the Webcampus. Regularly check the Course Materials and Legal Workshops sections on the LEC Webcampus for additional materials, notes, assignment questions and for links to the Law Library and other relevant research sites.

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COURSE MATERIALS READING SUMMARY

The prescribed readings for each topic are listed in the Law Extension Committee’s Legal Institutions Course Outline and are available to be accessed electronically through the Library. Additional prescribed readings may be posted in the Legal Institutions Course Materials section on the Webcampus during the course of the session. It is your responsibility to regularly check the Legal Institutions Course Materials section for updates on readings and other relevant issues that arise.

COMPULSORY ASSIGNMENTS

There are two compulsory assignments in Legal Institutions. The first assignment is for practice and feedback. Comments will be provided, but no marks assigned other than “satisfactory” or “unsatisfactory”. The second assignment will be marked. Assignments must be submitted by the due dates. Students who fail to satisfy the compulsory requirement (that is, submit two satisfactory assignments) will be notified through the Results screen on the Webcampus before the examination period of their ineligibility to sit the examination in this subject. The maximum word limit for each assignment is advised on the front page of each assignment and is calculated inclusive of all footnotes but not bibliography. Penalties apply for exceeding the stated limit by 10% or more.

The rules regarding the presentation of assignments and instructions on how to submit assignments are set out in the LEC Guide to the Presentation and Submission of Assignments which can be accessed on the LEC Webcampus. Please read this guide carefully before completing and submitting an assignment.

Completed assignments should be lodged through the LEC Webcampus, arriving by 11:59pm on the following dates:

Assignment 1 – Feedback only Tuesday 14 June 2016

Assignment 2 – 20 Marks Sunday 10 July 2016

To be eligible to sit the examination, you must:a) submit both assignments by the due dates, andb) demonstrate a sufficient command of the lecture material. This will most usually be

demonstrated by achieving satisfactory feedback in the first assignment and a pass mark in the second assignment.

The markers will attempt to mark the assignments as quickly as possible. However, please note that our markers are busy practitioners or academics. Do not wait for the return of one assignment before commencing the next assignment.

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ASSIGNMENT QUESTIONS

To obtain the Legal Institutions assignment questions for the Winter 2016 Semester, please follow the instructions below:

1. Register online with the LEC (see page 26 of the Course Information Handbook for detailed instructions). Once you have registered, you will have full access to all the facilities on the LEC Webcampus.

2. Then go into the Webcampus, select the Course Materials section and click on the link to the assignment questions for this subject.

IMPORTANT NOTICE TO LEGAL INSTITUTIONS STUDENTS

Students enrolled in Legal Institutions for the Winter 2016 Session should attend lectures as follows:

Orientation Day: Friday 6 May 2016: ALL new students should attend.

Essential Intensive Introductory Classes for all Legal Institutions Students: Saturday 7 May and Sunday 8 May 2016: ALL Legal Institutions students should attend. This material will not be covered in evening lectures. As we hope to provide students with research instruction in web-based computer labs, it is vital that Legal Institutions students have registered with the LEC prior to the Essential Intensive Introductory Classes so that they may be placed in a seminar session. Numbers are limited and registrations will NOT be available on the day.

Evening Lectures: ALL evening lecture Legal Institutions students should attend lectures which commence Wednesday 4 May 2016. (Note: ALL Legal Institutions students should also attend the Sunday morning session of each Weekend School scheduled for Sunday 29 May 2016 at 8.00am – noon in New Law School Lecture Theatre New LSLT 101 (New LSLT 101) and Sunday 24 July 2016 at 8.00am – noon in the Eastern Avenue Auditorium (EAA). Refer to pages 3 and 4 in this Subject Guide for the Legal Institutions Evening Lecture Timetable.)

External students should note the details of the two webcast lectures. This material will not be covered at weekend schools.

Once you have registered online with the LEC, you will have access to all the facilities on the LEC Webcampus including the Legal Institutions Course Outline by topic, plus any other materials that the lecturer may make available to students. These materials can be found in the Course Materials section of the LEC Webcampus.

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LEGAL INSTITUTIONS COURSE OUTLINE

TOPIC 1 AN INTRODUCTION TO THE LAW AND ITS SOURCES

An introduction to what we mean by “law” and the building blocks on which the legal system in Australia is based: common law and statute. How do we find and use “the law”?

Materials

Cook, Creyke et al, Chapter 1 Gleeson, “The Role of a Judge in a Representative Democracy” speech given to the

Judiciary of the Commonwealth of the Bahamas, 4 January 2008. This, and other articles referred to in Materials throughout the study guide, is available electronically through the Library. A number of important case extracts are also available electronically through the Library.

Ratnapala, “What is Law?”, in Corkery, A Career in Law, 2nd ed. Federation Press, 1989

Australian Public Law, pp 9-11

Initial Reading

Please download the Topic 1 materials available on the LEC Webcampus and make sure you are familiar with them prior to the introductory weekend. However, in subsequent topics, you will need to use your legal research skills to locate many of the materials yourself.

Pepper Finance Corporation Ltd v Williams [2008] NSWSC 4 Merritt v Merritt [1970] 2 All ER 760 Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163

1.1 Difference between law and policy/law and opinion

Law as a technical exercise, requiring precise knowledge Importance of always substantiating argument with legal sources Distinction between law and policy and law and opinion Pepper Finance Corporation Ltd v Williams [2008] NSWSC 4

1.2 Statute law

Importance of statutes Parts of a statute Reading simple statutes How to cite and use statutes as authority

1.3 Case law

Case law is common law Parts of a case

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How to read a case o Distinguishing fact from law o Distinguishing ratio from obiter o Case reading review o Thornton v Shoe Lane Parking [1971] 2 QB 163 - example of setting aside

previous ratio and development of new ratio o need to generalise ratio o writing case notes

1.4 The scope of jurisprudence - or what is meant by “law”?

A brief introduction to four major theories of law: o Natural law o Positivism o Common law o Legal realism

TOPIC 2 LEGAL RESEARCH

An introduction to legal research skills delivered in conjunction with Patrick O'Mara, the law librarian.

Materials

Library: Legal Research Booklet for LPAB Students (Available via LPAB Webcampus > Legal Skills > Library Legal Research)

Cook, Creyke et al, Part 4 Nemes and Coss’ Effective Legal Research / Bott & Talbot-Stokes. Sydney:

LexisNexis, 2015. 6th ed. Held at Law Library at call number LAW 340.072 17 E

2.1 Review of research skills

Overview of research skills and tools Difference between collaborative learning and plagiarism Importance of footnoting, bibliography etc. and academic conventions with

respect to referencing

2.2 Practical research skills

Introduction to computer-based researching, in small group computer lab sessions

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TOPIC 3 AUSTRALIAN LEGAL INSTITUTIONS

A brief overview of the three major legal institutions or arms of government, both at a Federal level and in the context of New South Wales.

Materials

Australian Public Law, pp 20-25

3.1 Overview of legal institutions in New South Wales

Introduction to concept of separation of powers Parliament

o Upper House, Lower House and Crown o Extent of legislative power

Executive Government o Entities that comprise the executive

Courts o State and Federal hierarchies

3.2 Australia's legal heritage and implications of federation

Derivation of the Australian legal system Legal consequences of federation Division of powers

3.3 The nature and sources of constitutional law

What is a constitution? Nature of the Australian and New South Wales constitutions Comparison with unwritten constitution of the United Kingdom Different focus of different constitutional documents (e.g. why a Bill of Rights in

US Constitution, but not in Australian Constitution)

TOPIC 4 THE LEGAL PROFESSION

This topic provides an introduction to the legal profession. The concept of a profession is central to any understanding of the work and duties of a legal professional.

The legal profession is composed of barristers, solicitors and members of the judiciary.

Materials

Justice Debelle, “Judicial Independence and the Rule of Law” (2001) 75 ALJ 556 The Hon Sir Gerard Brennan, “The State of the Judicature” (1998) 72 ALJ 33 The Hon Sir Gerard Brennan, “Profession or Service Industry: the choice”

Opening address Australian Bar Association Conference San Francisco 18-21 August 1996 

The Hon Sir Gerard Brennan, “Judicial Independence” The Australian Judicial Conference Canberra 2 November 1996

Laying Down the Law, Chapter 5

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4.1 Judiciary

4.2 Legal Practitioners

Obligations of a professional Rule of law and responsibilities of a legal practitioner Requirement of good fame and conduct

TOPIC 5 INTRODUCTION TO LEGAL PROBLEM SOLVING

An introduction to different ways of classifying the law, and solving legal problems.

Materials

Class problem State Government Insurance Commission v Trigwell (1979) 142 CLR 617 (Selected

extracts, available via Library E Reserve)

Further Reading

Radan, Gooley & Vickovich, Principles of Australian Contract Law, 3rd ed. LexisNexis, 2013Radan, Gooley & Vickovich, Principles of Australian Contract Law, Cases and Materials, 3rd ed. LexisNexis, 2014

5.1 Classifications of law: private, public and commercial law

Public law: criminal law, constitutional law, administrative law, evidence, practice and procedure etc.

Private law: tort, contract, real property etc. Commercial law: commercial transactions, law of associations etc. National law and international law The common law

o and civil law o and statute o and equity

5.2 Overview of problem question

Class discussion of types of legal issues raised by problem, and where we may look to find the relevant law to address these problems

Class discussion: determine issues of law and issues of fact to be resolved

5.3 Overview of problem-solving methodology

IRAC Discussion of “issue”, “application” and “advise” Importance of integrated discussion

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Case reading exercise (e.g. Mason J in SGIC v Trigwell) to demonstrate how judges use this methodology when they are answering legal problems in cases

5.4 Using case law: Extended overview of contract law

Private law, based in case law How do we know when a contract exists? How do we know what is in a contract? Introduction to problem solving using case law

5.5 Using Statutes: Introduction to Competition and Consumer Law

Example of public law, heavily based in statute, but with important role of judicial interpretation of statute

Overview of Competition and Consumer Act 2010 (NSW) Consumer Guarantees – ss54, 55 Australian Consumer Law Interaction of statutes with case law ‘Old’ cases and ‘new’ law Example of co-operative solution to constitutional limitations Sources of legal rights – contract (private) and legislation (public)

5.6 Revisit problem question

Isolate all relevant issues Identify relevant law Apply law to the facts Reach a conclusion

INSTRUCTIONS RECEIVED IN CONFERENCE FROMMAVIS STEWART: New client

Mavis Stewart attended our office today with her daughter Kylie Berg and a coffee cake, baked that morning. Ms Stewart is a keen cook and has a number of problems arising from a recent kitchen renovation, in respect of which she seeks our advice.

The kitchen renovation included new flooring. Mavis was particularly interested in flooring as she had difficulties keeping her slate tiles clean. She searched for low maintenance flooring and after extensive shopping decided on single sheet vinyl flooring. She saw just the thing at Discount Lino Barn, close to Kylie's home. Kylie indicated that she didn't share her mother's preference for vinyl flooring as it was cold underfoot and she had suggested kitchen carpet. Kylie and Mavis spoke to Mike at Discount Lino Barn who suggested under-floor heating could address Kylie's temperature issues.

Kylie provided details of the under floor heating options while her mother left the conference room to offer slices of her coffee cake to the other staff. Kylie also advised that her mother was having problems with Whitegoods World from which she had bought her fridge. Kylie advised that her mother required a “French Door” fridge with freezer drawers underneath to accommodate the large baking trays she used for her cakes. She had ordered the fridge she needed from Whitegoods World but had experienced delivery problems.

Mavis returned to the conference room. She advised that she had had to make a large coffee cake that morning, even though her preference would have been to make cup-cakes. In fact, one of her legal problems was her cup-cake oven. Cake Cookers is a specialist retailer which sells products designed for those who like to cook cakes. It retails a number of specialist pans and other baking utensils - many imported from America and not readily

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available in Australia - as well as a special range of cake ovens. They are located in Broome, and Mavis lives in Sydney, but Cake Cookers sells throughout Australia by catalogue. Mavis wanted a special cake oven in her new kitchen. She saw an oven that looked perfect for her in their catalogue - the picture showed 8 slide out patty pan trays instead of oven trays - exactly what she wanted. She rang the store and spoke to Cathy. She told Cathy all about her cupcakes, her favourite recipes, and her interest in the patty pan oven in their catalogue. Cathy told her that the patty pan oven had eight slide out patty pan holders instead of oven racks, and that each patty pan holder would take one dozen patty pans. Even better, they came with self-cleaning silicone inserts. Mavis was delighted about the self-cleaning but concerned that each tray would only take one dozen patty pans. Although after discussion with Cathy, she was convinced that the overall capacity of the oven was appropriate, and so she placed an order.

Her oven purchase was much more successful than her fridge which, on the very day it was due to be delivered - not only did not arrive, but the shop called her to advise that delivery was delayed for one month. Mavis said to the shop keeper: “Well that's no good to me. I ordered that fridge for today. I need that fridge today. I told you when I ordered the fridge that I needed it to be delivered today. The only reason I ordered from you was that you told me I could have it today. If you can't give it to me today, you can just keep your fridge!! I don't want it anymore.” Mavis then rang Quick Fridge and ordered and received another fridge that afternoon, suitable for her requirements. However, one month later, Whitegoods World delivered the fridge originally ordered, and demanded payment. Mavis refused to accept the fridge or to pay, and advised them that the order had been cancelled. Whitegoods World is threatening to sue Mavis for the price of the fridge - $5,500.

As well, Mavis is being threatened with legal action by Chrissie Saranrap. Chrissie was married a month ago and was expecting Mavis to produce her specialty - the “nouveau doveau” - a tiered tower of cupcakes, iced in white and arranged to resemble the wings of doves - as the centrepiece cake for her wedding reception. Mavis loves doing cakes for weddings; in fact she now makes more money from doing wedding cakes than she does from her regular cooking classes.

Chrissie read information about Mavis' cake services in an article in the local paper, and called round to see Mavis, and look at the different cakes she could make. They discussed possibilities and pricing and Chrissie left with a price list. Apparently, Chrissie called and left Mavis a message on the answering machine ordering the “nouveau doveau” for her wedding, to be delivered on 2nd May at the wedding reception, for $2,000 COD. In her message, Chrissie had said: “If I don't hear to the contrary, I'll assume everything is OK. Call me if there is a problem - otherwise I will see you on the 2nd. Looking forward to your lovely creation.”

Unfortunately, because of all the work being done to the kitchen and problems with electrical supply, Mavis had experienced a number of black outs which had interrupted her answering machine. Mavis did not receive the message from Chrissie, and so of course, had not provided the cake. Chrissie is very angry and claims her wedding was ruined without the cake. She has threatened to sue Mavis.

Mavis advised that even if she had known about the cake order she would have had difficulty fulfilling it because of problems with her newly installed cake oven. When the oven arrived she saw that instead of Australian sized delicate patty pan holders, the cake trays were large American size muffin holders. This is not what Mavis wanted at all. Mavis rang Cathy and told her that the oven was not suitable for the cakes in which she specialised. Cathy said that she was sorry that Mavis was disappointed, but advised that there was nothing they could do about it now. Mavis wants to know if she still has to pay the $8,000 for the special cake oven.

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She is also angry about the flooring she has had installed. Despite Kylie's protests she went ahead with the single sheet vinyl, and did not have under floor heating installed. The vinyl, while easier to clean than the slate, is marking and scuffing badly however. She has only had it down 6 months, and already there are a number of wear marks. Her cupcake classes - which she runs 5 times a week and more often in the school holidays - are now so popular that she has at least 20 students per class. Because of her renovations she has room for them all around her lovely new island bench, but the vinyl around the island bench almost looks like a race track. It is as if her students have worn a path around the bench - and in only 6 months. The vinyl was quite expensive - as she had heavy grade domestic installed - so Mavis is very unhappy. She hasn't yet paid the bill for the vinyl as she has been arguing with the company. They are, according to Mavis, now getting nasty, and want their $45,000 immediately. Advise Mavis.

TOPIC 6 LEGAL REFERENCING

Legal referencing is a critical skill. In this topic we will review how to provide adequate references and citations – and revise the difference between referencing and plagiarism.

Materials

Stuhmcke, Chapters 1, 3, 4, 5, 6 and 7.Referencing primary materials: Stuhmcke, Chapters 6 & 7Referencing secondary materials: Stuhmcke, Chapters 8, 9, 10, 11 and 12

6.1 Legal referencing

6.2 Using referencing to communicate effectively

Using referencing to improve legal writing Knowing when to reference material Appreciating your contribution to the discipline of law Ask, check, use …tips for writing well and avoiding plagiarism

6.3 Citation style

Different citation styles Citation of primary and secondary materials

6.4 Citation in legal writing

Citation in essays, problem questions and exams Citation in other forms of legal assessment When do I use case lists, tables of statutes and a bibliography?

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TOPIC 7 STATUTORY INTERPRETATION

Legislation forms an increasingly important source of our law. The rules of statutory interpretation govern how to read and interpret legislation. As Gifford & Gifford have noted, legislation is not something that can be read like a book:

“[This] is because over the years the law has developed special rules that govern the reading of the Act of Parliament. Every Act of Parliament must be read in the light of those rules, and the person who attempts to read an Act of Parliament without a working knowledge of the more important rules of interpretation may fall into error” (Preface pp v-vi)

The courts play an important role in statutory interpretation, and so it is important to understand the doctrine of precedent, which has been described as the accepted intellectual framework within which judges are expected to reason. In its simplest form it means that a question should be decided in a certain way today because a similar question was so decided yesterday. However, there are a number of rules which make up the doctrine of precedent and you need to know these to fully understand how the doctrine is applied.

Materials

Cook, Creyke et al, Chapter 6 and Part 3 – focus on Chapters 10, 11 and 12

Legislation

Acts Interpretation Act 1901 (Cth) ss 15AA, 15AB Interpretation Act 1987 (NSW) ss 33, 34

7.1 Interpretation of legislation

7.1.1 Importance of interpretation of legislation

7.1.2 Approaches to interpretation of legislation

Statutory approacho s 15AA Acts Interpretation Act 1901 (Cth)o s 33 Interpretation Act 1987 (NSW)o Mills v Meeking (1990) 169 CLR 214

Common law approaches:o Literalo Goldeno Purposive

Use of extrinsic materials Common law Statute

o s 15AB Acts Interpretation Act 1901 (Cth)o s 34 Interpretation Act 1987 (NSW)

7.1.3 Specific rules/canons of construction

Maxims of interpretation:

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o Noscitur a sociis – the meaning of a word or phrase is derived from its context o Ejusdem generis – where words of a particular meaning are followed by

words of a general meaning, the general words are limited to the same kind as the particular words

Presumptions of interpretation

7.1.4 Judicial interpretation of statutes

7.2 Doctrine of precedent

7.2.1 Development and purpose of doctrine

Stare decisis Hierarchical structure of courts

7.2.2 Rules of precedent

Each court is bound by the decisions of higher courts in the same judicial hierarchy

The highest court in a judicial hierarchy can overrule its previous decisions A judge does not have to follow the decisions of other judges at the same level in

the same judicial hierarchy A decision of a court in a different hierarchy may be of considerable weight but

will not be binding Only the ratio decidendi (the judge’s decision on the material facts) of a case is

considered binding Obiter dicta, although not binding, may be very persuasive Precedents are not necessarily abrogated by lapse of time – e.g. Pinnel’s case

(1602) 5 Co Rep 117

7.3 Statutory interpretation problems

Problems in text

7.3.1 Long problem question

Early in 1995, Australia participated in an international conference which drew up the Convention on Piracy. The Convention created offences relating to the robbery of ships and boats in national and international waters.

A Prevention of Piracy Bill is introduced into the House of Representatives and, in the course of the second reading speech to the Bill, the Minister states as follows:

“The Prevention of Piracy Bill will apply to pirates who cannot at present be reached by existing law."

The Commonwealth Parliament subsequently enacts the Prevention of Piracy Act 1996 ("Act"), the long title of which is "An Act to deal with robbery of ships and boats in national and international waters." The Act receives the Royal Assent on 1 July 1996.

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The Act includes the following provisions:

Possession of weapons on ships

4. Any person (other than an officer or crew member or a ship protection officer) who possesses on board any ship, boat, ferry or any other transport whatsoever, any firearm, ammunition, weapon or explosive substance, shall be guilty of an offence punishable by 7 years' imprisonment.

Diversion of Ship

5. Any person who causes to be diverted or attempts to cause to be diverted a ship from its scheduled course shall be guilty of an offence punishable by life imprisonment.

Obligation to issue licences

6. If any person applies to become a ship protection officer, the Registrar of Ship Protection Officers, if satisfied that the applicant is a fit and proper person to be a ship protection officer, may issue the applicant with a ship protection officer's licence.

Appointment of Registrar of Ship Protection Officers

7. (1) A Registrar of Ship Protection Officers shall be appointed by the Governor- General.

(2) A person appointed under sub-section (1) shall hold office for such period as is specified in the instrument of appointment.

On 30 July 1996, Howard, who is an amateur spearfisherman, is a passenger on a train which is stopped by Federal Police at Bowral, New South Wales. He is found to have a spear gun in his possession.

On 5 August 1996, a container ship is diverted from its scheduled course between Melbourne and Brisbane by a storm and radio contact with the land is lost. Before the captain can resume radio contact, Patricia, a cabin girl, unsuccessfully attempts to force the captain to steer the ship into Sydney Harbour.

Howard is charged with an offence under s 4 of the Act and Patricia with an offence under s 5.

Assuming the Act is within the constitutional power of the Commonwealth, using the relevant rules of statutory interpretation, advise Howard and Patricia on all the legal issues involved.

Acts Interpretation Act 1901 (Cth)

15AA Regard to be had to purpose or object of Act(1) In the interpretation of a provision of an Act, a construction that would promote the

purpose or object underlying the Act (whether that purpose or object is expressly stated

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in the Act or not) shall be preferred to a construction that would not promote that purpose or object.

15AB Use of extrinsic material in the interpretation of an Act(1) Subject to subsection (3), in the interpretation of a provision of an Act, if any material

not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:

(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or

(b) to determine the meaning of the provision when:(i) the provision is ambiguous or obscure; or

(ii) the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable.

(2) Without limiting the generality of subsection (1), the material that may be considered in accordance with that subsection in the interpretation of a provision of an Act includes:

(a) all matters not forming part of the Act that are set out in the document containing the text of the Act as printed by the Government Printer;

(b) any relevant report of a Royal Commission, Law Reform Commission, committee of inquiry or other similar body that was laid before either House of the Parliament before the time when the provision was enacted;

(c) any relevant report of a committee of the Parliament or of either House of the Parliament that was made to the Parliament or that House of the Parliament before the time when the provision was enacted;

(d) any treaty or other international agreement that is referred to in the Act;(e) any explanatory memorandum relating to the Bill containing the provision, or any

other relevant document, that was laid before, or furnished to the members of, either House of the Parliament by a Minister before the time when the provision was enacted;

(f) the speech made to a House of the Parliament by a Minister on the occasion of the moving by that Minister of a motion that the Bill containing the provision be read a second time in that House;

(g) any document (whether or not a document to which a preceding paragraph applies) that is declared by the Act to be a relevant document for the purposes of this section; and

(h) any relevant material in the Journals of the Senate, in the Votes and Proceedings of the House of Representatives or in any official record of debates in the Parliament or either House of the Parliament.

(3) In determining whether consideration should be given to any material in accordance with subsection (1), or in considering the weight to be given to any such material, regard shall be had, in addition to any other relevant matters, to:

(a) the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; and

(b) the need to avoid prolonging legal or other proceedings without compensating advantage.

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Interpretation Act 1987 (NSW)

33 Regard to be had to purposes or objects of Acts and statutory rulesIn the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.

34 Use of extrinsic material in the interpretation of Acts and statutory rules

(1) In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:(a) to confirm that the meaning of the provision is the ordinary meaning

conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), or

(b) to determine the meaning of the provision:(i) if the provision is ambiguous or obscure, or(ii) if the ordinary meaning conveyed by the text of the

provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or is unreasonable.

(2) Without limiting the effect of subsection (1), the material that may be considered in the interpretation of a provision of an Act, or a statutory rule made under the Act, includes:(a) all matters not forming part of the Act that are set out in the document

containing the text of the Act as printed by the Government Printer,(b) any relevant report of a Royal Commission, Law Reform

Commission, committee of inquiry or other similar body that was laid before either House of Parliament before the provision was enacted or made,

(c) any relevant report of a committee of Parliament or of either House of Parliament before the provision was enacted or made,

(d) any treaty or other international agreement that is referred to in the Act,

(e) any explanatory note or memorandum relating to the Bill for the Act, or any other relevant document, that was laid before, or furnished to the members of, either House of Parliament by a Minister or other member of Parliament introducing the Bill before the provision was enacted or made,

(f) the speech made to a House of Parliament by a Minister or other member of Parliament on the occasion of the moving by that Minister or member of a motion that the Bill for the Act be read a second time

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in that House,(g) any document (whether or not a document to which a preceding

paragraph applies) that is declared by the Act to be a relevant document for the purposes of this section, and

(h) any relevant material in the Minutes of Proceedings or the Votes and Proceedings of either House of Parliament or in any official record of debates in Parliament or either House of Parliament.

(3) In determining whether consideration should be given to any material, or in considering the weight to be given to any material, regard shall be had, in addition to any other relevant matters, to:(a) the desirability of persons being able to rely on the ordinary meaning

conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), and

(b) the need to avoid prolonging legal or other proceedings without compensating advantage.

TOPIC 8 ENGLISH LEGAL AND CONSTITUTIONAL FOUNDATIONS

The Australian legal system derived its legal institutions, as well as much of its substantive law – especially the common law – from England. An understanding of the origins and development of English legal institutions and English law is necessary to properly understand the nature and operation of Australian legal institutions and law.

Materials

Cook, Creyke et al, Chapter 2 Appleby, Reilly et al, pp 38-42 “David Starkey's Magna Carta” available at the following link:

http://www.dailymotion.com/video/x2gd5t0 

8.1 Development of the common law and the three principal common law courts of England

Law in England prior to 1066 Norman conquest and the beginnings of the common law in England Foundation of stare decisis – principle that like cases should be treated alike Formalisation of legal structures – King’s Court or curia regis; Justices in Eyre

and Justices of Assize Development of the common law courts

o Common pleaso The Exchequero King’s Bench

Development of the writ system; The Provisions of Oxford

8.2 Development of Equity and the Court of Chancery

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Growth of deficiencies and inadequacies in the common law courts Complaints of injustice delivered by the common law courts Discretionary power of the Chancellor Equitable maxims Disputes between equity and the common law

8.3 Nineteenth century reforms in England

Common form of writ Simplification of court procedures in common law and equity

o Uniformity of Process Act 1832o Common Law Procedure Act 1852o Chancery Procedure Act 1852

Judicature Acts (1873 and 1875):o Merging of common law courts and Court of Chancery into Supreme

Court of Judicature High Court (five divisions)

Queen’s Bench Common Pleas Exchequer Chancery Probate, Divorce and Admiralty

Court of Appealo Single set of rules and procedures for all courtso Rules of common law and equity able to be applied in all courts

8.4 Implications for New South Wales of English developments

Supreme Court Act 1970 (NSW)

8.5 Origins and development of the United Kingdom Parliament

Foundations of English constitutionalismo Magna Cartao Reformation

Reformation Parliament (1529 – 1536) The Act in Restraint of Appeals to Rome and The Act of

Supremacyo English Civil War

“Divine Right of Kings” Chief Justice Coke The Triennial Act 1641 Act to Continue the Existing Parliament 1641

o Glorious Revolutiono Bill of Rights 1689o Act of Settlement 1701

Parliamentary power “plenary” and “unlimited”

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TOPIC 9 NEW SOUTH WALES AND COMMONWEALTH LEGAL AND CONSTITUTIONAL HISTORY FROM 1788 TO THE PRESENT

In this topic we continue our examination of how the legal institutions in place in Australia today were shaped by historical developments, in England as well as in the developing colony of New South Wales, which was, at Federation, to become a State in the new Commonwealth of Australia.

Materials

Cook, Creyke et al, Chapter 3 Appleby, Reilly et al, pp 32-38; 43-59 Mabo v State of Queensland (No 2) (1992) 175 CLR 14 – highlighted extracts

9.1 Manner of derivation of law from England

Conquest Session Settlement Blackstone’s commentaries Cooper v Stuart [1889] 14 AC 286

9.2 Extent of English law received upon settlement

State Government Insurance Commission v Trigwell (1979) 142 CLR 617 Imperial Acts Application Act (1969) NSW

9.3 Establishment and structure of courts

9.4 Legislative power

New South Wales Act 1823 (Imp) Australian Courts Act 1828 (Imp) Australian Constitutions Act (No 1) 1842 (Imp) Australian Constitutions Act (No 2) 1850 (Imp) NSW Constitution Act 1855 (Imp) NSW Constitution Act 1855 (Imp) Colonial Laws Validity Act 1865 (Imp) Phillips v Eyre [1870] LR 6QB 1

9.5 Effect of Federation

Commonwealth of Australia Constitution Act 1900 (Imp) Constitution Act 1902 (NSW) s5

9.6 Evolving colonial/imperial relationship

Statute of Westminster 1931 (Imp) (as adopted) Australia Act 1986 (Imp)

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9.7 Present status of terra nullius

Mabo v State of Queensland (No 2) (1992) 175 CLR 14

TOPIC 10 THE COURT SYSTEM

The courts have an important role to play in the Australian system of government because they resolve disputes and in the course of resolving disputes they develop the law. In this topic, we examine judicial power and the doctrine of separation of powers, the Commonwealth or Federal Courts and the main courts in New South Wales.

Materials

Reilly et al, Chapters 8 and 9

Legislation

Cth Constitution ss 71-77

Further reading

R v Kirby: ex parte Boilermakers Society of Australia (Boilermakers Case) (1956) 94 CLR 254

10.1 Judicial power and the doctrine of separation of powers

Judicial power of the Commonwealth Separation of powers doctrine

10.2 Commonwealth courts

High Court of Australia Federal Court of Australia Family Court of Australia Federal Magistrates Court of Australia

10.3 New South Wales courts

Supreme Court of New South Wales District Court of New South Wales Local Courts Land and Environment Court Industrial Relations Commission

10.4 Cross-vesting scheme

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TOPIC 11 TRIBUNALS, ARBITRATION AND ADR

There are many Commonwealth and New South Wales bodies which are not necessarily bound by the procedural and evidentiary criteria traditionally associated with courts yet often carry out a function similar to that which is traditionally performed by the courts. In this topic we examine a selection of these non-judicial tribunals.

Arbitration has been an “alternative” to litigation for much longer in our history than the options presented by the alternative dispute resolution movement. We examine each briefly, looking at the reasons for their development, the advantages which they have over traditional court processes and their possible dangers and disadvantages, as well as the overall implications for management of disputes.

Materials

Further reading

Attorney-General’s Department, A Strategic Framework for Access to Justice in the Federal Civil Justice System, September 2009http://www.ag.gov.au/a2j

Collaborative Law in Australia, Collaborative Law in Australiahttp://www.collaborativelaw.asn.au

11.1 Commonwealth non-judicial tribunals

11.2 New South Wales non-judicial tribunals

11.3 Arbitration

TOPIC 12 STUDY/SUMMARY AND EXAM PREPARATION SKILLS

A brief overview of study skills, preparation for open book exams and introduction to summary preparation techniques.

12.1Preparation for open book exams

12.2Preparation of summaries

Class summary preparation exercise

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TOPIC 13 COMMONWEALTH PARLIAMENT

In this topic, we will examine the Commonwealth Parliament which is the National Parliament and one of the parliaments affecting New South Wales. We will look at the structure of the Commonwealth Parliament, the relationship between the Houses constituting the Commonwealth Parliament and the legislative powers given to the Commonwealth Parliament. A number of aspects of the Commonwealth Parliament’s legislative powers will be considered including the Commonwealth Constitution’s division of law-making power between the Commonwealth Parliament and the State Parliaments and the manner in which conflicts between Commonwealth and State legislation are resolved. We will also look at some of the ways (but not all of the ways) in which the Commonwealth Parliament has been able to control States’ areas of power and at some of the so-called Constitutional guarantees (rights and freedoms) contained in the Constitution.

Materials

Reilly et al, Chapters 4 and 5

Legislation

The Commonwealth Constitution

Cases (extracts only)

Western Australia v The Commonwealth (First Territorial Senators Case) (1975) 134 CLR 201Queensland v The Commonwealth (Second Territorial Senators Case) (1977) 139 CLR 585Amalgamated Society of Engineers v Adelaide Steamship Co (Engineers’ Case) (1920) 28 CLR 129Viskauskas v Niland (1983) 153 CLR 280University of Wollongong v Metwally (1984) 158 CLR 447The Commonwealth v Tasmania (Tasmanian Dam Case) (1983) 158 CLR 1

13.1 Description

Constitution s 1

13.2 Structure

13.2.1 Queen and Governor-General

Constitution ss 1, 2, 58, 59, 74

Role and powers of the Queen in the Constitution Discretionary powers of the Governor-General

13.2.2 Senate

Constitution ss 7, 13

Western Australia v The Commonwealth (First Territorial Senators Case) (1975) 134 CLR 201Queensland v The Commonwealth (Second Territorial Senators Case) (1977) 139 CLR 585

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Composition of the Senate and election of senators Terms of office Provision for senators to be elected from the Territories

13.2.3 House of Representatives

Constitution ss 24, 27, 28

Composition of the House of Representatives and election of members The House to be as near as practicable twice the size in number as the

Senate

13.3 Legislative powers

13.3.1 Enumerated specific powers

Constitution ss 51-60

Law-making provisions in the Constitution

13.3.2 Exclusive and concurrent powers

Constitution ss 106-109

Difference between exclusive and concurrent powers Ways in which the Constitution makes powers exclusive to the

Commonwealth Parliament

13.3.3 Inconsistency of Commonwealth and State legislation

Constitution s 109Viskauskas v Niland (1983) 153 CLR 280University of Wollongong v Metwally (1984) 158 CLR 447

The function of s 109o Confirms the legislative supremacy of the Federal Parliament over the State

Parliaments with respect to concurrent powerso Eliminates conflicts of law that may arise between State and Federal laws

operating in the same fieldo Allows the Commonwealth to determine whether it might allow State laws to

operate in areas that might otherwise be the subject of Federal lawso “laws” in s 109 refer to Acts of State or Federal Parliament

Tests of inconsistency applied by the High Court:o “cover the field” – A Federal law evinces an express or implied intention to

provide an exhaustive statement over the relevant subject mattero direct inconsistency:

where it is impossible to simultaneously obey both State and Federal law

where one law takes away a right or privilege conferred by another

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13.3.4 Commonwealth control of States’ areas of powers

Constitution ss 51(xxix), 96, 109Amalgamated Society of Engineers v Adelaide Steamship Co (Engineers’ Case) (1920) 28 CLR 129Victoria v The Commonwealth (Federal Roads Case) (1926) 38 CLR 399A-G (Vic) (ex rel Black) v The Commonwealth (DOGS Case) (1981) 146 CLR 559The Commonwealth v Tasmania (Tasmanian Dam Case) (1983) 158 CLR 1

New South Wales v Commonwealth [2006] HCA 52 Early narrow view of Commonwealth powers in relation to States powers Effect of the Engineers’ Case Use of s 96 & s 109 in widening the scope of Commonwealth power External affairs power (s 51(xxix))

13.3.5 Constitutional amendments

Constitution s 128

TOPIC 14

THE NEW SOUTH WALES PARLIAMENT

In topic 10 we examined the Commonwealth Parliament as one parliament affecting New South Wales. In this topic, we will examine the other parliament affecting New South Wales, the New South Wales Parliament, and, in a similar way to the way in which we looked at the Commonwealth Parliament, we will look at the structure of the New South Wales Parliament, the relationship between its two Houses and its legislative powers.

Materials

Legislation

Constitution Act 1902 (NSW) ss 3, 5,5A,5B, 7,7A,7B, 8A, 9A,17,22B(2),24 Australia Act 1986 (Imp) ss 6-10

Further reading

Lumb

14.1 Description

Constitution Act 1902 (NSW) ss 3, 5

14.2 Structure

Kable v Director of Public Prosecutions (NSW) (1997) 189 CLR 51 Separation of powers in the context of NSW Constitution

14.2.1 Queen and Governor

Constitution Act 1902 (NSW) ss 3, 8A, 9A Australia Act 1986 (Imp) ss 7-10

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14.2.2 Legislative Council

Constitution Act 1902 (NSW) ss 7, 7A, 17, 22B (2) Colonial Laws Validity Act 1865 (Imp) ‘manner and form’ provisions to protect Legislative Council Brief consideration of nature of manner and form provisions Attorney-General for New South Wales v Trethowan [1932] AC 526 Clayton v Heffron (1960)105 CLR 214

14.2.3 Legislative Assembly

Constitution Act 1902 (NSW) ss 7B, 24 ‘manner and form’ provisions to protect Legislative Council

14.2.4 Relationship between Legislative Council and Legislative Assembly

Constitution Act 1902 (NSW) ss 5, 5A, 5B Clayton v Heffron (1960) 105 CLR 214 Deadlock procedures Taylor v Attorney-General (Queensland) (1917) 23 CLR 457

14.3 Legislative powers

14.3.1 Grant of broad plenary power

Constitution Act 1902 (NSW) s 5 Australia Act 1986 (Cth) s 2(1) Clayton v Heffron (1960) 105 CLR 214 Union Steamship Co of Aust PL v King (1988) 82 ALR 43

TOPIC 15 EXECUTIVE GOVERNMENT

In this topic, the executive governments of the Commonwealth and New South Wales will be examined. We will look at the sources of executive power; the roles of the Queen, the Governor-General and the Governor; the executive councils set up to assist the Queen’s representatives in the exercise of some of their executive powers; the Ministry and the Cabinet; and responsible government and the reserve powers.

Materials

Reilly et al, Chapters 6 and 7

Cases (extracts only)

Victoria v The Commonwealth (Petroleum and Minerals Authority Case or PMA Case) (1975) 134 CLR 81Minister for Arts, Heritage and Environment v Peko Wallsend (1987) 75 ALR 218 Ruddock v Vadarlis [2001] FCA 1329

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Legislation

Constitution ss 53, 54, 55, 57, 61-70, 128

Further reading

LumbMorison

15.1 Description and sources of executive power

15.2 Relationship between Senate and House of Representatives

Constitution ss 53, 54, 55, 57, 128 Victoria v The Commonwealth (Petroleum and Minerals Authority Case or PMA

Case) (1975) 134 CLR 81

15.3 Commonwealth executive government

Constitution ss 61-70 Minister for Arts, Heritage and Environment v Peko Wallsend (1987) 75 ALR 218

at 225

15.4 New South Wales executive government

Constitution Act 1902 (NSW) ss 9A, 10, 11A, 35A, 35B, 35C, 35D, 35E, 35F, 47 Australia Act 1986 (Imp) ss 7-10 Interpretation Act 1987 (NSW) ss 14, 15

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