LAWS1052: FOUNDATIONS OF LAW NOTES

Andrew Tsui

Contents
Overview
3

of

Australias

Place of Australia in Global Law

5
Adversarial and inquisitorial procedures
5
Dingo story
6
Jurisdiction
7
Federal courts
8
Federal-state court interaction
9
Equality and access
10
Courts and the development of the common Law
12
The effect of the Norman conquest
13
Court system in early Norman times
13
The development of the royal justice system
14
The church
16
Women
18
Equity
18
Criminal and civil law
20
Lawyers and the development of law reporting
21
Forms of action
21
The rise of the legal profession
22
Law reporting
23
The need for law reform
25
Women lawyers
25

Legal

System

Doctrine of precedent
26
The Ratio decidendi
26
What is binding
27
Hierarchy of authority
27
Precedent and change
27
The rise of the tort of negligence
28
The development of negligence
28
Statutory interpretation
30
Parliamentary sovereignty
30
Statute law
31
How statutes are made
31
Classification of statutes
32
Structure of an act
32
Relationship between common law and statute law
33
Interpretation
33
The civil war and the Glorious Revolution
36
The king vs the common law
36
King, parliament and the common law
40
Parliament and civil war
41
The Restoration and the Glorious Revolution
42
Bill of Rights
42
The Rule of Law
44

The impact of settlement on the indigenous inhabitants

45
Legal theories
45
Colonial attitudes
46
Land and life
47
Social justice
48
The settlement of NSW and the reception of English law
49
The cruelty of criminal law
50
First fleet
50
The early legal system
51
Reception of English law
54
Mabo and Ors v Queensland (No. 2)
56
Torts
57

LAWS1052: Foundations of Law

The purpose of law is to ensure there is justice. A basic principle of justice is the doctrine of the The Rule
of Law. Basically, the rule of law means everyone is subject to the law and no one is exempt from it. In
that way, the rule of law aims to prevent arbitrary use of power.
Australian law has developed from English law, but immediately became distinct from it. The first
distinction was made by Henry and Susannah Kable:

The Kables were prisoners being transported to Australia.

They deposited money with their ship's captain but the money disappeared.

Under English law, the Kables were 'civilly dead' (unable to sue).

However, they were allowed to sue in Australia. This was the first civil case in Australia.

In this way, Australian law first became distinct from English law.

Overview of Australia's Legal System

Features borrowed from English law:

Representative democracy - people vote for representatives who then sit in parliament and
make laws.

Solicitor/barrister division - an (informal) distinction between solicitors, who advise clients

and manage their affairs, and barristers, who appear in court.

Common law system - this term operates on three different levels:

1. As legal system - common law (the English system of law) as opposed to Civil law
(French, German etc) or Islamic, indigenous or other law systems.
2. As a source of law inside the legal system - in the legal system, there are two sources of
law: legislation (law made by the parliament) and common law (law made by the judges
through previous court decisions).

3. As a classification inside the source of law - within the common law 'source', law is
divided into two classifications: common law (the law made by the judges of the normal
courts) and Equity (law made by the judges of Equity).

Court system for dispute resolution - disputes are resolved in courts through juries and
judges.

On the other hand, there are features distinct from the English law:

Federal system - a federation of several states and territories making up the

Commonwealth. This structure divides power between the state and Commonwealth
parliaments.

Recognition of indigenous law - there is a (limited) recognition of Indigenous customary

law in Australia ever since Mabo v Queensland (No 2).
The subject of Indigenous law had a lot of implications on the Australian legal system, and
was discussed in R v Wedge (which was before Mabo):

It has been decided that NSW was a 'settled' colony, and therefore the English law was
immediately transferred to it and to all its inhabitants.

English law is the only law in Australia, and applies to Aboriginals as well.

Place of Australia in Global Law

There are other legal systems which exist in the world besides the common law system. These include:

Civil law (Germany, France, Italy, Japan, China etc):

This is the other dominant legal system in the world. Its main difference from the common
law system is that judges only interpret the law and do not make the law. There is no doctrine
of precedent which means that judge's decisions do not bind future courts.

Usually, almost all of the law is codified - written down in statutes and regulations etc.

Civil law systems use the inquisitorial process rather than the adversarial one used by the
common law systems.

International Law - law between countries or states. Derived from:

Customary international law: practice that should be uniform across many states. States
comply with it out of a sense of legal obligation.

Treaty (convention) law: Agreements made between countries that can be bilateral or
multilateral. Only in force after ratification (and not merely signing).

Note: Australia courts must obey the Australian law, regardless of the breach of
international law. This is a matter of Australian constitutional law.

Customary law (Aboriginal law in Australia, Native American law in America, etc)
This is where an Indigenous population is governed (partially) by their own laws. In most
cases (such as in Australia), customary law is limited and only applies in certain
circumstances.

Talmudic law (personal law which Jewish people abide by in various countries)

Islamic law (different schools are used in different Islamic countries)

Adversarial and inquisitorial procedures

The common law legal system uses an adversarial legal procedure whilst the civil law system uses
an inquisitorial procedure. The differences are set out below:

Adversarial (common law):

Parties in the adversary system are in charge of the action ('lawsuit'). They initiate it, set it
up, call the evidence, call witnesses and use the court as a forum.

In theory, equal parties prepare and present their case to a neutral tribunal (judge)

Advocates have a duty to their party and to the court

Court is not entitled to make its own enquiries or otherwise act on its own knowledge in
reaching its decision.

Thus, the role of the judge is 'adversarial' - he makes rulings about what evidence is
admissible, what procedure should be followed, and sometimes asks questions purely to
clarify the matters.

After the trial, the judge decides on the law and writes a judgment which becomes
precedent.
Where there is a jury, a judge directs the jury on the law that they should apply to

the facts.

Inquisitorial (civil law)

The judge has a more active role - may direct parties to present witnesses, examine the
witnesses personally or collect evidence.

This means the judge is more 'in charge' of running the action than the parties.

Dingo story
The Chamberlains' case is a good example of a case that covers all aspects of the legal system. The
interaction of courts, experts, media and an unusual event made a tragedy for a family into a nightmare.

The Chamberlains were camping near Uluru when their baby, Azaria, disappeared from the
tent.

Since dingoes have been attacking small children around the area, the coroner's inquest
concluded that a dingo must have taken the baby and neither parents are at fault.

However, there was frenzy in the media about the rituals of the church which the
Chamberlains belonged too, and a (false) rumour said that Azaria meant 'sacrificed in the
wilderness'.

Suspicion of the mum intensified because the interview showed her appearing unnaturally
stoic about her son's death. In fact, she cried so often, the network cut out all the breakdowns out.

A forensic expert was called in, but apparently he was misled about certain facts and
eventually he decided that the Chamberlains are suspects and they were put on trial for
murder.

The jury was completely swayed by the public opinion and the media, and the Chamberlains
were convicted for murder. They spent years moving between prisons and trying to appeal
the decisions.

Six years after the affair, the baby's jacket was found in Uluru. The case was reopened after
federal pressure on the Northern Territory government etc.

It was discovered that previous findings were wrong, and the Chamberlains were pardoned
by the government.

However, pardon still technically means they were guilty. They continued to seek an acquittal
to clear their names, until it happened in 1988.

Jurisdiction

Jurisdiction is the scope of a bodys power to hear a matter, determine what the facts are and apply the
law to make a judgment.

It is the range of power and territory within which that power can be exercised. A court cannot
hear a case over which it has no jurisdiction.

Generally a statute which establishes a court will also define its jurisdiction.

Supreme courts
The Supreme Courts have a long history and tradition. They are 'Superior courts with a record of general
jurisdiction'. This means:

A Supreme Court has 'unlimited' jurisdiction, unless a later statute has limited it.
Since Supreme Courts have unlimited jurisdiction, federal matters may be heard and
determined in them. This is per the doctrine of the 'autochthonous expedient'.

A Supreme Court has an inherent power to regulate its own procedures, the right of the
audience and to grant bail.

A Supreme Court decision cannot be made void, but must be set aside by writ of error or by
an appeal.

The Supreme Court deals with very serious matters. In the criminal domain, this usually means serious
offence like murder, treason or rape. In the Civil domain, it means matters which are outside the
jurisdiction of the lesser courts.
The Supreme Court also hears appeals, either as a single judge or as the Court of Appeal.

Intermediate courts
The intermediate courts are the District or County courts. They are below the Supreme Courts and their
jurisdiction is limited by their enabling act. The limits of their jurisdiction varies between states, but is
generally defined by monetary limits in civil cases (ie, the court can only hear cases claiming $750,000
or less). In criminal cases, there are usually a number of offences which are expressly outside jurisdiction
of the intermediate court (ie murder).
Some intermediate courts have some appellate jurisdiction (can hear appeals).

Magistrates (local) courts

The Magistrate courts, or the Local courts, are the lowest courts on the chain of jurisdiction. Their
jurisdiction is limited by statute, and they usually deal with low level matters. However, they are profoundly
important because it is in the local courts where the vast majority of cases are heard (usually about 99%
of the cases). Local courts deal with:

Criminal:
The committal process - checking whether there is a case to answer in relation to an
indictable offence, and therefore whether the case should go to trial in the district or supreme
court.

Lesser offences (ie, traffic offences, fines etc).

Civil:
Small debts and claims.

State tribunals and specialist courts

Each state tribunal will have its own legislation which specifies its jurisdiction and the process of appeal if
appeals are allowed. Examples of such courts and tribunals include the Dust Diseases Tribunal,
Residential Tenancies Tribunal etc.
A court exercises judicial power, and is headed by a judge or magistrate. Tribunals dont always exercise
judicial power, and have specialist areas.

Federal Courts
Since Australia is a federation wherein there are a number of states, federal courts have been set up to
have jurisdiction in matters involving federal or inter-state matters. Federal courts have defined and
limited jurisdiction. However, federal courts also have accrued jurisdiction, which means that the federal
courts can also decide on matters outside of federal jurisdiction if they are closely related with matters
which are in the federal jurisdiction (so, if a case has both federal and non-federal matters closely related,
the federal courts may hear it). The federal courts of Australia are detailed below.

The High Court

The High Court is the highest court in Australia. It is a superior court of record with the same power to
punish for contempt as the supreme court with the law for all jurisdictions. It deals with matters of federal
importance, such as:

Matters arising under any treaty.

Matters affecting consuls or ambassadors.

Matters where the Commonwealth is a party

Matters between states or residents living in different states.

The High Court is also the highest point of appeal. There is no 'right' of appeal to the High Court, rather
appeals take place only when there is special leave (permission) by the court. Leave is given when there
is a question of law which is of public importance or where it is necessary to resolve the differences of
opinion between the lower courts.

The Federal Court of Australia

The Federal Court of Australia is a superior court of law with limited jurisdiction. Its jurisdiction extends to
matters such as:

Bankruptcy.

Trade practices.

Federal administrative law.

Admiralty.

Corporations law.

Federal tax disputes.

Native title.

Intellectual property.

Federal Magistrates Court

The Federal Magistrates Court's jurisdiction is entirely civil. It extends to matters such as:

Property with value less than $300,000.

Shared jurisdiction with the FCoA in regards to administrative law, bankruptcy, human rights,
privacy and trade practices.

Parenting orders.

Determination of parentage.

The Federal Magistrates Court has the power to award damages up to $750,000.

Family Court
The Federal Court of Australia is a superior court of law with limited jurisdiction. Its jurisdiction extends to
matters such as:

Matrimonial causes.

Marriage.

Custody of children.

Maintenance of spouses and children.

Federal - state court interaction

It often happens that matters overlap between federal and state jurisdictions. Sometimes, it is difficult to
determine whether a court has jurisdiction to determine the matter.

In a case where federal matters overlap in a state court, the Supreme Court of that state will
usually have jurisdiction over the federal matters as well, according to the autochthonous
expedient.

However, the jurisdiction of the Supreme Courts was limited with the introduction of Trade
Practices and family law in the 1970s. Those matters were exclusively under the jurisdiction
of the federal courts.

Because of the growing power of the federal courts, the Cross Vesting Scheme was
introduced. It vested the federal jurisdiction of the federal courts in the state Supreme Court,
and also vested the non-federal jurisdiction of the state courts to the federal courts (ie, gave
the each court the power of the other).

However, Re Wakim; ex parte McNally determined that the federal court cannot be vested
with non-federal jurisdiction, and the legislation is invalid to the extent that it purports to do.
Thus, the federal courts cannot hear a non-accrued state matter.

Equality and access

Equal access to justice for all is an important aspect of any legal system. The main barrier to accessing
justice include is the cost of legal aid. Another important barrier is the culture and language of the
courts. We examine it in detail:

The court is a foreign place to all people - the language used in the court is complex even to
native speakers.

Legal proceedings used to be conducted in a strange dialect of French from the arrival of
the Normans in England until 1733.

The courtroom is designed to convey the structure of power.

the judge is usually elevated above everyone else, sitting under the coat of arms.

Accused people are sometimes in a dock, and lawyers are behind a special bench.

The jury sits above the rest of the room, but not above the judge.

Judges and barristers often wear robes or wigs.

Rights to interpreters
People for whom English is a second language might particularly struggle with the language of the court.
There is some recognition of a right to an interpreter in Australia, but generally it is up to the judge to
decide:

In a criminal case, the judge considers whether the accused gets a fair trial without an
interpreter or not.

In a civil case, there is no automatic right to an interpreter.

The problem is that often a party involved is unaware of how helpful an interpreter will be,
and so he does not seek one.

Witnesses have even less of a right to an interpreter. The judge decides entirely on his own whether an
interpreter is needed to ensure that evidence is fairly and fully presented before the court.
There is obviously a problem with judges being the ones who determine whether a person gets an
interpreter - judges are not proficient in assessing how well someone speaks English, and it can be hard

for them to determine whether an interpreter is needed. Research shows that the majority of adult
migrants do not possess the level of proficiency needed to properly communicate in a court room, and
that judges often overestimate their language abilities. This means that interpreters are needed. However,
there are also problems with interpreters:

They can be very expensive.

There are very few people good enough to be interpreters.

Interpreting is a very hard job, and can only be done for short periods of time.

The use of an interpreter puts another person between court and the witness, thus stopping
the court from forming its own view etc.

Non-verbal communication
Another very important thing in court is non-verbal communication such as eye contact, facial
expressions, placement of the body etc. These vary greatly between cultures, which mean that migrants
or Indigenous people are likely to be misunderstood since their non-verbal communication is different
from the Western one.

A common example is how it is rude to look someone in the eye for a long period of time in
Asian and Aboriginal cultures. People of those cultures thus constantly shift their eyes away.
In the court room, shifting your eyes away is likely to be interpreted as a sign of dishonesty or
nervousness.

Research also shows that people are generally pretty bad at determining whether others are lying, but
think they are quite good. The research also shows that people like judges and policemen think of
themselves as 'professionals' at detecting lies, but are actually no better than others. In the court room,
here lying can result in a person going to jail, it is very dangerous to rely on non-verbal clues in order to
assess whether someone is lying.

Courts and the development of the common law

The common law developed in England after the Norman conquest in 1066. Henry II is particularly
credited with developing the common law, and the system in his time was organised as follows:

England was a feudal system, with the King giving land to the lords, who lease it to the
peasants.

The lord solves disputes between his peasants according to his rules and customs. This is
called manorial justice.

When manorial justice fails, one may turn to the royal justice system. It includes:

Itinerant justices - local justices who represent the royal system

Justices of Westminster - a group of administrators who sit at Westminster.

The King's court (curia regis) - the king and his council, who are the ultimate authority.

Older methods of determining whether someone is right or wrong included trial by ordeal,
oath or battle. Those were gradually replaced by 'recognition' (trial by jury).

The Church had its own courts which operated according to canon law and dealt with matters
like marriage, adultery and clerics.

The punishments of the Church courts were less severe and thus people tried to obtain
the benefit of clergy (prove they are a cleric).

Women had little legal power. Their husbands acted for them.

Equity became an alternative system of law which provide remedy when justice and morality
was not achieved by the common law courts. It was headed by the Lord Chancellor.

The concept of disturbing the 'King's Peace' arose - meaning that crimes are committed
against society at large and thus the state prosecutes criminals.

The common law only started developing after the Norman Conquest in 1066. Before that:

The ancient Roman rule left very few traces on the legal system.

The Anglo-Saxons who immediately preceded the Normans left the writ, the sheriff, and the
notion that king and people were all subject to the law and the concept of the Kings Peace.

The system was completely revised when William the Conqueror invaded in 1066. William is
known for being an unusual ruler and organisational genius.

One example of this is his Domesday book - officials would come around and record in a
book everything that everyone owned, so the Crown could collect taxes appropriately.

The effect of the Norman conquest

The effect of the Norman Conquest was profound, and involved a far greater emphasis on, and possible
introduction of, the feudal system.

Feudalism is a system where there is a lord and his peasants. The peasants hold the land
(lease) of the lord and owe him duties. In return the lord offers protection.

With the feudal system comes manorial justice - the lord is the judge in his land and he
determines the legal disputes of the peasants however he sees fit.

The King is the ultimate owner in the feudal pyramid, because all of the land is ultimately his,
and the lords hold it of him.

Because land was held of William he kept control of administration, politics, military, marriage
and succession.

Court system in early Norman times

The court was a curia regis (the kings court) which was basically the group of officials and advisers which
the king had with him at the time (the king used to travel).

The curia regis also operated in the absence of the king but by his authority.

William delegated work to the following officials:

The Justiciar was a regent to act in his absence.

Lord Chancellor was in charge of the secretarial staff (he would eventually grow in
power).

Barons of the Exchequer transacted the king's financial and legal business.

Sheriffs were a sort of local judges.

Williams insistence that he took England lawfully rather than by conquest and that he
inherited Edward the Confessors laws was later used by English common lawyers to argue
that the common law had existed from time immemorial. (Note that this insistence can be
compared to the Australian insistence that New South Wales was a 'settled' colony and not a
'conquered' one).

William did not make major changes to the actual law itself. Rather, Henry I and particularly
Henry II were the main developers of common law.

The development of the royal justice system

Ordinary justice was carried out by manorial courts which decided matters according to custom. Only
when manorial dispute resolution had failed would one turn to the royal courts (this was rare). The system
really developed during the reign of Henry II.

The creation of the Judges in 'Eyre' - traveling judges going around investigating places at
regular intervals. They would examine sheriffs accounts, coroners activities, payment of
taxes etc, as well as judicial work.

Residents dreaded the Eyres, and even hid from them. After the number of complaints,
Henry decided that five judges should stay at Westminster to hear complaints (justices of
Westminster).

The royal justice system was given consistency by the fact that the same judges acted as
itinerant judges/went on Eyre/sat at Westminster. Therefore a consistent set of principles and
procedures such as common Law was able to develop. This gave people a security which
they did not have from manorial courts, which all had different customs.

Later on, in 1215, the royal courts were:

The Exchequer - finance.

The King's bench - followed the king and heard matters like trespass and felonies that
affected the Kings Peace.

The Court of Common Pleas - heard matters such as land disputes (had a monopoly
over this) and trespass and recovery of property/debt. Heard the most cases.

Abbot Henry's story

The royal court system is illustrated by Abbot Henry's story. For a detailed explanation of the story,
see Abbot Henry's Story. Below is a short outline:

An ongoing dispute about a piece of land (particularly a marsh) caused Abbot Robert (and
after his death, Abbot Henry) to undergo a variety of legal processes in the royal justice
system. This included:

An appeal to the local itinerant justice.

An appeal to the justices at Westminster and the Exchequer.

The holding of a grand assize (a trial) which includes a 'recognition' (predecessor to trial
by jury)

An appeal to the King himself (twice).

During the course of these procedures, there was use of a variety of writs and royal charters.

The story highlights some important aspects of the legal system of the time:

Failure to show up to a trial was an extremely serious crime which almost caused the Abbot
to lose his land, despite having an express royal charter from the king. When he said he was
sick, knights were sent to investigate.

Itinerant justices were an important part of the kings control of England, while the justices at
Westminster where more like administrators; they had less ability to decide on cases.

Money was very important in the legal system. Parties had to pay money to have something
tried, and this was a way in which the king raised revenue.

The royal justice option consolidated loyalty to the king rather than to the immediate lord.

Trial by Jury
The forms of proof in England were based on a belief that God would favour the just. Accordingly, it led to
arbitrary methods of dispute resolution:

By oath - a witness would swear an oath that the accused was of good character. If he was
not punished by God, he was considered as telling the truth. An oath was worth more if it was
given be a person of higher rank (nobility).

By ordeal - there are different types of ordeals, but usually involved something like the
accused having to put his hand in boiling water or hold a red-hot iron and then be bandaged.
If there were still blisters three days later, he was guilty. Another type was throwing someone
into water, and if he sinks, he is innocent and fished out, if he floats, he is guilty.

By battle (Normans only) - the parties fight, and the winner is judged to be the right one
because God favoured him in the fight.

By 1215, the Church forbade the clergy to be involved in ordeals, and trial by battle was also observed to
be a pretty arbitrary method of determining justice. Henry II and his councillors chose the recognition or
jury as the preferred method of proof, which has remained one of the hallmarks of common law since
then.

A jury consisted of 12 knights (the grand assize); in a land dispute they could be sent to view
the land, consult neighbours and then give their verdict.

By the 1600s juries were expected to weigh up the evidence and come to a conclusion based
on that evidence.

It should be noted that the use of a jury was instrumental in bringing about the concept of an
organised trial. Because there were now so many parties, it made sense to have an
organised trial at a certain time and date, rather than a series of meetings or communications
as had been done before.

The Magna Carta

The Magna Carta ('Great Charter') is a foundation of the English constitution and remains part of
Australian law. Its purpose is to limit the arbitrary use of power.

The Crown was imposing excessive taxation and offended the barons, the church, traders,
and landowners simultaneously. An uprising began.

King John (ruled after Richard) was forced to sign the document, demonstrating how even
the king could be restrained. A new era began.

The phrase No freeman shall be taken or/and imprisoned... except by the lawful judgment
of his peers was first written in the Magna Carta. Although it is thought now that it didn't
purport to do so, it is now interpreted as a right to trial by jury.

Even in the modern age, people have attempted to rely on certain clauses of the Magna Carta. An
example of this is Prisoners A-XX (Inclusive) v NSW:

Prisoners were demanding that condoms be supplied to them; while they have already been
deprived of their freedom, they are claiming this separate right to condoms. We will sell to no
man, we will not deny or defer any man either justice or right.

However, it was decided that this did not provide a statutory basis for saying that the denial
by prison authorities of access by prisoners to condoms is unlawful, as the applications of
modern standards to ancient practice has resulted in complete misapprehension.

In other words, the link between something like not supplying condoms to prisoners and
"we will not deny... justice or right" is simply too far - the framers of the Magna Carta did not
at all mean that.

The Church
The Church was closely tied to the law back in those days, because the vast majority of the people were
deeply Christian. Since William did not want to be tied down by the Pope, he separated the courts into
the spiritual (church) and temporal (non-church) courts. This established the Ecclesiastical courts
(Church) which were part of the English legal system until 1857.

The ecclesiastical courts used canon law, which was derived partly from Roman/civil law, as
taught at university.

Civil law and canon law used similar methodologies but different sources: Canon law was
based on the Bible and Church statutes.

The ecclesiastical courts had jurisdiction in regards to marriage, divorce, legitimacy, passing
of property to children, and punishment of mortal sin e.g. adultery.

The ecclesiastical courts also tried to claim jurisdiction over any cases which involved clerics,
violation of an oath or church property. This led to friction with the King.

Henry II wished to assert his supremacy with the Pope and did this by issuing the Constitutions of
Clarendon in 1164, and appointing Thomas a'Becket as Archbishop of Canterbury (head of the church in
England) in 1162. This was also aimed to end the jurisdictional issues with the ecclesiastical courts.

However, a'Becket opposed Henrys claims of control over the ecclesiastical courts.

a'Becket was murdered by royalists in a church, and (fearing the wrath of God for the sin),
Henry gave in to the church and renounced the parts of the Constitutions which offended
them (which gave the royal courts the final say over clerics). Eventually it worked out that
clerics would be tried by the canon courts for serious crimes, and royal courts for less
important things.

It should be noted that the procedures of trial in the ecclesiastical courts were quite different:

The church courts looked far more like a modern court of law than other medieval courts.

They involved a single judge investigating the matter by comparing the evidence of
witnesses, and applying rules of law found in a book.

Interestingly, the royal courts were often conducted by clerics with knowledge and experience
of canon law, despite the massive differences between the two systems.

Benefit of clergy: If a convict could recite a passage from the psalter, they were considered
clergy and thus could not be given the sometimes mandatory death sentence it often
became a way for judges to escape implementing a mandatory death sentence. This was
only abolished in 1827 but was used by judges in the later 18th Century to send convicts to
colonies rather than death.

Sanctuary and abjuration: Trial or confession resulted in an oath to abjure the realm (leave
the country, exile).

Women
Women did not have much power in those times; in a society that so valued land, women were normally
only wives/daughters of landowners.

Until the Married Womens Property Acts (UK 1870, Aust 1879), married women were
classed as femes covert. This meant:

Everything she owned becomes her husband's during marriage.

Cannot make a will (bar one that applies to her paraphernalia such as clothing and
personal ornaments).

Cannot sue or be sued.

Cannot enter a contract.

Cannot own property.

Basically, the woman lived only through her husband.

The only protection available to her was dower, which protected a widow by providing her
with a life interest of a third of her husbands land which he died possessing. The husband
could not touch that part.

The only other protection available to married women was equity.

Equity
When justice appeared not to be done by the royal courts of the common law, a litigant could turn to the
courts of equity (or 'the Chancery'. Equity emerged as follows:

When people felt justice was not achieved by the courts (usually because of a legal
technicality), they turned to the curia regis in hope that the king would help them because the
law turned out to be unfair etc.

The curia regis was exercising royal power, and therefore could order pretty much anything.

After some time, the king delegated the function of hearing these appeals to the Lord
Chancellor (therefore, the Chancery).

The Lord Chancellor's court of equity ran on the basis of conscience rather than the
common law. It meant it did not abide by technicalities.

Truthfully, the Chancellor could not contradict the common law. However, the royal power
allowed him flexibility to work around the common law judgment (leaving it intact) but still
ensuring justice. This was done through orders, which, if not followed, resulted in being jailed
for contempt.

This is illustrated in the story of the 'Conscience of Profyt':

A man was dying and wanted to give his land to his wife. However, women could not inherit
land.

He left it to three friends, who promised they will give it to his wife.

Instead, two sold it to the other (Thomas Profyt), and the other sold the entire land to
someone else.

According to common law, there was nothing illegal about what they did, so the wife couldn't
get help.

She turned to the Chancery, which ordered that it was against conscience for Profyt to keep
the profits for his benefit. They must be given to the wife.

Equity in the law by M Chesterman

The Lord Chancellor and the court of Equity acted in the name of morality and justice.

Issue a summons to the adversary requiring him to present his side of the case.

If the court felt that the petitioners claim to be valid, it would make an appropriate
order. :*Such an order was addressed to the adversarys conscience that is it sought to
compel him to do what good conscience (equity) required of him.

This began to evolve into a separate collection of legal principles, as the common Law courts
capacity to devise new laws to keep pace with social change diminished throughout the 13th
century.

The principles of equity thus changed significantly, as instead of ordering specific remedial
measures in certain cases, it became more concerned with general substantiative
rules/remedies to supplement the common law in matters where the latter system was
insufficiently responsive to social change.

For example: the recognition and enforcement of trusts the concept of a trustee
holding land 'in trust' for someone else was not recognised by common law (ie, the trustee
simply owned the land in common law), but was recognised (and enforced) by equity.

Equity took over many aspects of the administrations of wills and deceased estates, and
developed provisions for relieving mortgagors from the total loss of their land which would
occur under common law rules.

One of the greatest advantages of equity was the flexible range of remedies offered by the
fact that it operated under royal authority. The most notable remedy was the 'injunction' whereby a party must do something (or refrain from doing something) on pain of being jailed
for contempt of court.

At the beginning, equity was very flexible and not really based on precedents. Eventually, it
became more inclined to follow previous equity decisions and thus transformed into a system
of laws similar to the common law. Nevertheless, it still aims to provide a corrective
alternative to the rigid and technical rules of the common law, in in the interests of justice and
good conscience.

Since equity was tried in a different court, litigants had to choose whether they will seek a remedy in the
common law courts or the equity courts. Obviously this created great difficulties (especially because a lot
of cases include both issues of equity and issues of common law).

Crime
In Australia there is clear distinction between criminal and civil law.

Criminal: the action is carried by the state authority (usually the police), to determine whether
a person is guilty of breaking the law of the state. Punishment is not intended to benefit the
victim, but deter, reform and bring to justice the offender.

Civil: the action is carried by individuals against others. The state is a neutral arbiter which
orders the wrongful party to compensate the wronged party.

The distinction was not always so clear civil law ultimately still originated from the law of 'trespass'
which was an offence against the Kings Peace as well as the injured plaintiff.

The Development of Crime by C R Jeffery

In the time of Henry II, a system of writs, procedures and Common law arose. A new writ (of trespass)
arose to replace trial by appeal. It allowed a litigant to collect damages, and placed the initiation of
criminal trials in the hands of the King. The concept of the 'King's Peace' arose.

The King's Peace extended to everyone.

When one committed a crime, he was disturbing the King's Peace.

Thus, state replaced the wronged family or the lord as the prosecutor in every criminal case.

This occurred because serious crimes were no lo longer considered simply as regrettable
torts which only required compensation by payment to the family, but as a crime against
society at large to be prosecuted by the community through its chief.

The change of mind-set was largely due to the influences of the crusades and
penetration of Roman (Civil) law into England.

Lawyers and the development of law reporting

Forms of actions
In order to access royal justice, a complainant had to go to Chancery and pay for a writ to authorise the
proceedings. Lawyers referred to these writs as the forms of action.

A correct writ had to be one which the particular court he was seeking action in could
recognise; the facts also had to match the writ. The writ defined the form of action.

The writs were kept track of in the Register of Writs.

The original writs had a tendency to become fixed as the Chancery was reluctant to change a
successful formula.

This was confirmed in 1258 when the Lord Chancellor was sworn to issue no new writs
without consent of Kings Council.

Therefore a person who could not find a writ to suit his problem he was without a remedy.

Competition between the courts

A court's revenue and its employees' salaries depended on how many cases they hear. This meant that
each court wanted to expand its jurisdiction, hear more cases, and thus get more money.

The King's Bench heard relatively few cases because it didn't have jurisdiction over land or
debt recovery (areas of the Court of Common Pleas). It managed to expand its jurisdiction to
include those during the 15th century.

The Kings Bench used a bill procedure to increase its business:

A bill was a petition directly addressed to a court to commence an action if you didnt
have a bill, then you needed a writ, for which you had to go to Chancery to get while bills
were available in jurisdictions where the sheriff was.

Writs were also more expensive.

Kings Bench also improved remedies available to make the court more attractive to litigants.

Forms of action become causes of action

Eventually, parliament abolished writs altogether in the 19th century. This brought the technical games to
an end and shifted the law from focusing on remedies to wrongs. Nevertheless, forms of action have left a
profound legacy on our legal system, both conceptually and technically:

A basic notion of precedent present cases should be treated the same as past cases.

Cause of action though writs no longer exist, a cause of action must fit certain required
elements for it to be heard.

For example, assault or battery may be causes of action.

Alternative causes of action can be raised in a single case.

Trespass and case

'Trespass' was when a person has wronged another. At the time of the writs, trespass mainly referred to
trespass vi et armis (with force and arms), which meant violence against the King's Peace (violent
crimes).
Eventually, the vi et armis was removed, and the requirement of violence was removed. In addition,
another writ named 'trespass on the case' was also created, to provide for when there was indirect harm.
This topic is discussed in more detail in the rise of the tort of negligence

These meant causes like negligence and breach of contract were now allowed in the royal
courts. They were known as 'actions on the case' (or 'case').

The distinction between trespass and case remains however - harm must be proved for an
action on the case, while for trespass one need only to prove the act itself.

The rise of a legal profession

During the time of Henry II, parties in the common law courts appeared themselves or occasionally were
represented by a friend/answerer (a responsalis); during the 13th century, attorneys gradually appeared
to act as agents of the litigants. The time line of the legal profession is as follows:

13th century - early attorney appear. Their role includes:

Brought the writ.

Got access to the court and did the pleadings.

Late 13th Century - attorney's role is split:

Attorney - preparatory work.

Narrator - oral work.

14/15th century - 'serjeants-at-law' and barristers emerge do the pleading.

Serjeants are the only group from which judges could be chosen.

Barristers had the right of audience in the Kings Bench and could call in a serjeant for a
difficult case.

Lawyers learned through sitting in the court and listening, and later, apprenticeships in the Inns of Court.

Apprenticeships in the time of Thomas More (15th century) lasted around one quarter of a
mans life.

They progressed from apprentice of the law -> inner barrister -> outer barrister -> readers ->
benchers -> serjeant-at-law and judges.

Early legal procedure

Procedure and technicalities were very important at the time of the writs, and the penalties for a mistake
so severe that this was the focus of learning for those who wished to become lawyers. The process was
as follows:

Began with a 'count' - had to stick closely to the writ.

The defendant then had to make a denial of the writ, word for word, and offer proof.

The defendant would begin to argue exceptions either to the writ or the facts of the case:
*The plaintiff then got to respond (replication).

If the replication successfully answered the exceptions, the defendant would have to
'traverse' (deny the facts) or 'confess and avoid' (acknowledge some facts and deny others).

If the plaintiff was defeated on one point of law he was 'non-suited'.

The process was designed to bring the parties to a:

A joinder of issue a single fact which could be turned over to the jury; or

A Demurrer a single legal issue which the parties agreed on and would allow the judge to
determine it;

A pleading by one party that the other partys pleading does not show a good cause of action.

Law reporting
Since the common law system employs the Doctrine of Precedent (whereby court decisions become
binding law for future generations), it is very important to report the decisions of the court, so they may
become precedents for future courts.

Early report contained mainly pleadings rather than the results of cases and often did not
report the legal reasons or outcomes of cases.

As oral pleadings were replaced by written pleadings, reports began to emphasise legal
doctrine, similarly to reports to today.

J P Dawson, The Oracles of the Law

The purpose of the early law reports (the Year Books) was to train lawyers, thus reporters concentrated
on the pleadings rather than the results of cases. Nevertheless, some elements of legal reasoning existed
in a basic form:

Judges and lawyers did cite cases from their own memory.

However, there was no formal precedent. The rules were expressed in the standard writs, so
they were the primary source of legal reasoning.

The change from oral pleadings to written pleadings in the 15th and 16th centuries changed
the reporting of Law over time:

Legal issues became more prominent because skills in written draftsmanship displaced
the arts of the oral pleader, and reportable debates in open court were initiated through the
specific challenge of a demurrer or through issues raised by a special verdict.

Authors of law reports such as Plowden, Dyer and Coke took advantage of the shift to
written pleadings, authoring law reports that were more comprehensive than ever before.

It allowed each of them (to various degrees) to reproduce the record of each reported case
from written pleadings. It also meant that they focused more on the arguments of the lawyers
and the opinions of the judges.

The main reporters were:

Edmund Plowden first lawyer in England to publish a set of reports in his own lifetime
and under his own name high standards of care, accuracy etc.

Plowdens cases were written during the shift from oral to written this gave him
opportunity to develop new style.

Plowden chose cases worth preserving, discarded irrelevancies, and was

painstakingly accurate.

Sir James Dyer private notes for personal use, never intended for publication.
Useful, gave good insight into private world of leading judge.
Sir Edward Coke (pronounced 'Cook') brought forth case notes; his reports were very
significant and added to his legacy; followed Plowdens example in first 3 volumes, then
eventually became less consistent.

Cokes cases all concluded with the set of rules the judges adopted; they were
made almost into little legislatures. These proclamations often reached far beyond the
particular case.

Systematic law reporting appeared in the 19th century. In law reporting, there are authorised reports
(ones which are checked by the courts) and unauthorised reports. Law reporting today includes a
comprehensive account of the facts, issues and arguments of law, as well as judges reasoning, their
conclusion on the law and the cases outcome.

The need for law reform

By the 19th century, the rigidity of the forms of action made courts difficult to use. The distinction between
common law and equity brought up similar difficulties (common law cases couldnt be heard in equity
courts, and vice versa). Thus, if someone brought a form of action in both areas, they would have to work
through both courts. This was expensive, time-consuming and often useless. To solve these difficulties,
the following reforms were implemented:

1. Forms of action were abolished by the Uniformity of Process Act 1832, whereby there
was one form of writ in which the plaintiff could insert a form of action.
2. By the Common Law Procedure Act 1852, different causes of action could be joined
together in the one writ, and the same writ could be used in any of the royal courts.
3. The Judicature Act 1873 abolished the central courts and created a single High Court in
England. It also provided that common law courts could administer equity, and vice
versa. It was no longer necessary to go to separate courts in the one matter in which
both issues arose. All the Australian jurisdictions took up the Judicature Act at varying
times, NSW being the last with its Supreme Court Act 1970.
4. Forms of action were replaced by Causes of action. The difference is that today it is
possible to plead an alternative so that if the pleadings in one cause of action fail, the
court can, at the same time, consider whether the facts meet the requirements of the
alternative cause of action.

Women lawyers
Women were only allowed into the legal profession in the 20th century, and after much fighting. Their
struggle is illustrated in the case In Re Edith Haynes:

Being allowed to become a legal practitioner is "not a Common Law right. It is a privilege...
confined to the male sex..."

The Act did not expressly state that women are to be admitted, and therefore they are not
allowed to be.

The feminine struggle to gain a foothold in the legal profession persisted into the 20th century. It was
considered in the speech of Justice Mary Gaudron (the first woman justice of the High Court):

In the early years of the 20th century women sought to be equal to men.

That approach wasnt right- what is required, for the good of the legal profession, is for them
to assert their individuality their individual needs as women lawyers. Hence the Women
Lawyers Association.

Doctrine of Precedent
The Doctrine of Precedent specifies that a court should apply the rulings of previous cases in situations
where the facts are the same. More specifically, a court is bound to do so if the previous case was tried in
a higher court, in the same hierarchy (ie, District Court of NSW must follow rulings of the Supreme Court
of NSW).
Because of the Doctrine of Precedent, judges decisions thus become law which future judges must
follow. That is what is referred to as judge-made law, or common law (as a source of law).
The Doctrine of Precedent refers to the way judges make the law (and decide cases) by referring to
previous decisions (precedents). The justifications of this adherence to precedents are:

Like cases should be treated alike (consistency).

Need for certainty in the law.

Need for predictability

People should know what the law is in order to obey it.

If the facts of a precedent (of a higher court in the same hierarchy) are similar to the facts of a
present case, a court must apply or follow the ratio decidendi (the legal reason behind a ruling).

When there is no reasonable distinction, it is ' followed '.

A precedent is ' applied ' when there is some reasonable distinction between the two cases
but it is not regarded as one which should be acted on.

If the facts are different the case may be ' distinguished ' by the lower court and therefore
not treated as binding at all.

The Ratio decidendi

R Cross & JW Harris, Precedent in English Law

Contemporary English judges almost invariably give reasons for their decision in a civil case.

"It is not everything said by a judge when giving judgment that constitutes a precedent. In the
first place, this status is reserved for his pronouncements of the law, and no disputed point of
the law is involved in the vast majority of cases that are tried in any year."

Even from those 'pronunciations of law, only those which are necessary for his decisions are
considered precedent.

Those pronunciations which are not necessary for his decision are called obiter dictum.
Obiter Dictum are statements made 'by the way'- ones which received less serious
consideration than the central ones (which become the ratio). Often they are 'additional'
reasons why the ratio is supported.

What is binding
In some cases (most appeal cases), several judges sit and decide on the case. The outcome is
determined by the majority opinion. However, there are instances where a majority of judges agree on an
outcome, but through differing legal reasoning. In such a case, it can be difficult for future courts to
determine which is the prevailing ratio of the case.

In such a case, the ratio will be the narrowest version of the legal reasoning which most
judges agreed with and led to the same result.

Hierarchy of authority
Courts are bound by decisions of higher courts within the same hierarchy. Common law courts will be
more persuasive than civil system courts. English and Canadian decisions are frequently highly
persuasive (but not binding), since they are very similar common law systems. Lower court decisions are
also persuasive rather than binding.

Precedent and change

As time passes, laws are meant to change and adapt to the circumstances of modern society. However, it
can be difficult to make these changes to the law in a system which follows the Doctrine of Precedent,
since judges are bound to adhere to previous decisions. Judges therefore have to tread a fine line
between maintaining consistency, but also adapting to new circumstances.
The issue of when it is possible to make changes to the law and also maintain consistency is considered
in Dorset Yacht Co Ltd v Home Office.

The rise of the tort of negligence

The modern law of torts developed two main forms of action:

Writ of trespass - an intentional and direct interference with a person or their goods or land.
It was actionable without proof of damage.
Writ of trespass on the case (case) - an indirect ('consequential') injury in a situation where
the wrong might be the carelessness (as opposed to intention) involved.

With this form of action, the plaintiff had to prove damage.

The modern 'causes of action' which come under the umbrella terms of intentional and unintentional torts
are descendants of these two old forms of action respectively:

Intentional torts - causes of action which are derived from trespass (ie assault, battery, false
imprisonment).

Retaining the tradition of trespass, intent and directness are required. They are also
actionable without proof of damage.

Unintentional torts - causes of action which are derived from 'case' (ie negligence,
nuisance).

Retaining the tradition of 'case', damage must be proven, but harm can be consequential.

This article deals with the tort of negligence, which is an unintentional tort. The set of requirements
which must be proved to support a cause of action in negligence are:

Duty of care

Breach of duty

Damages (with causation and remoteness)

The development of negligence

Before 1932, there was no such thing as a tort of negligence. Third parties who suffered as a result of a
breach of contract had no remedy, because they were not a part to the contract and thus excluded by the
doctrine of privity.
The tort of negligence eventually started to develop from various forms of action on the case. The first
discussion on whether a duty of care could extend to third parties was raised in Langridge v Levy:

The court refused to set a precedent by imposing a duty of care to third parties, because this
might result in indefinite liability ('open the floodgates' and everyone could sue).

However, the court awarded damages to the plaintiff on the basis of fraud - a duty arose that
the gun should be safe because of the defendant's representation that it was.

That duty extended itself to the plaintiff because the defendant knew the plaintiff would be
using it.

The debate continued in Winterbottom v Wright, which was equally reluctant to extend a duty of care
towards third parties:

No contract existed between the injured party and the party which is actually at fault (instead,
there were a series of fragmented contracts), and therefore the plaintiff is excluded from
suing. Allowing him to sue would open the floodgates.

There is no fraud here, and so the Plaintiff has no remedy.

The judge is careful not to introduce what would be 'bad law' just because he is sympathetic
to the injured and remedy-less plaintiff.

And also in George and Wife v Skivington, which was complicated because a defective product was
bought by a husband for a wife (a wife could not be a party to a contract back then):

Applying Langridge v Levy, a duty arose that the product should be safe, and that duty
extended to those who the Defendant knows will be using the product.

The Defendant knew the product was used on behalf of the wife, and therefore the duty
extends to her.

A major breakthrough occurred in Heaven v Pender, where the court finally recognised that a duty of care
can be owed to third parties:

In a scenario where ordinary care or skill is required to prevent injury to the plaintiff, a duty of
care exists even in the absence of a contract.

"Whenever one person is by circumstances placed in such a position with regard to

another... whereby he may cause danger of injury... a duty arises to use ordinary care and
skill to avoid such danger."

This duty exists without an implied contract or fraud like in previous cases.

This paved the way for the landmark case which really created modern negligence, Donoghue v
Stevenson.

Statutory interpretation
Statutory interpretation is the process of determining whether a statute applies to particular circumstances
and if yes, what the consequences are. The court interprets statutes using the following approaches:
1. The literal approach - interpret according to plain, literal meaning of the words. If there is
an ambiguity or an absurdity with this approach, use:

2. The golden rule approach - still according to the plain meaning, but with a slight
modification to avoid the absurdity. If a sensible result is still not reached, use:
3. The purposive approach - interpret according to what interpretation would best achieve
the purpose of the act. If there are still ambiguities/absurdities then:
4. Explore extrinsic materials.
In the legal system, some 50% of cases require judges to interpret a statute (legislation), and in another
25% of cases the courts simply apply a statute, without having to determine its meaning. The ability to
read and interpret statutes is therefore more and more important for lawyers and the community:
Any statute which is passed must be within the power of the parliament (as in, the parliament has the
power to make it). Whether it is beyond the power of the parliament (Ultra Vires) is determined with
reference to the Constitution.

The High Court reviews the statute and determines whether the parliament is entitled to
make it (has the power to make it) according to the Constitution.

This is called judicial review.

However, judicial review only happens when a statute is in dispute. The majority of statutory interpretation
is simply checking whether the statute applies in this case, and what are the consequences.

Parliamentary sovereignty
Parliamentary sovereignty is a concept which developed in England, which places Parliament as the
ultimate legal authority. The principle of parliamentary sovereignty means that parliament has the right to
make or unmake any law whatever, and, further, that no person or body is recognised by the law as
having a right override or set aside the legislation of Parliament.
In Australia, there is no complete parliamentary sovereignty because there is judicial review and thus the
High Court can strike down legislation under certain circumstances. Also, the unlimited ability of
parliament to make laws is divided between the federal parliament and the state parliaments (state
parliaments can make certain laws, commonwealth parliament can make other laws).

Statute law
Statute law is made by parliament and any subordinate bodies to which parliament has delegated
legislative power.

When statute law and common law conflict, statute law prevails to the extent of the conflict.

Statute law is in force until it is changed.

Statute law can be made retrospective.

Statute law now constitutes that part of the law which most dominates our social and
commercial lives. The process of creating statute law is very clear, but the process of
applying it to certain scenarios (statutory interpretation) can be very difficult.

How statutes are made

A statute starts out as a bill. The procedure is as follows:

Bill must be developed, whether form a government department or law reform commission or
a private member (Private members bill).

Bill must be drafted, performed by specialist lawyers in the Parliamentary counsels office.

Houses of parliament (If two exist).

House of Origin:
Notice of motion > First Reading > Second reading > Debate > Committee stage
> Third reading.

If the bill passes, it moves on to the second house.

Second House:

First reading > Second Reading > Committee of the whole > Third reading.

If the bill is passed it is returned to the house of origin, the clerk certifies the bill
and gives it to the governor for Royal assent. If amendments are made in the second house,

the houses must try to reach agreement on the amendments, else it is set aside or put to
referendum or may become a 'double dissolution trigger'.

Royal assent: Governor General gives royal assent unless the Queen is in the jurisdiction. It
then becomes an Act.

Commencement - the act comes into force according to the rules of the particular jurisdiction.
Usually 28 days are receiving royal assent, unless some other provision has been made.

Classifications of statutes
There are a number of classifications, or 'types' of acts:

Private - whilst acts are usually public (ie operating on the public at large), there are some
private acts.

Subordinate or delegated legislation - acts can contain authority for the governor or some
other body to make a delegated legislation. Types of such legislation include:

Ordinance: laws made for the territories

By laws: made by municipal councils

Rules: Dealing with administration of government departments

Regulation: general laws made through the governor-General-in-Council, (the Cabinet).

Consolidated statute - a consolidation statute brings together a number of statutes that

cover the same subject. A consolidation repeals the existing legislation and replaces it with
law which represents the law as it has been amended.

Code - incorporates not only the legislation as it has been changed, but also the common
law. The effect is that the code is exhaustive - ie, it states all of the law for that subject area.

Codes are fairly uncommon in common law systems, they are the hallmarks of the civil
law system.

Structure of an act
Acts all structured similarly (examples are given from the National Handgun Buyback Act 2003):

Long title - states the purpose of the act (An Act to provide for financial assistance for
qualifying payment ...)

Short title - the title by which the act is cited (ie National Handgun Buyback Act 2003).

Sections (may be divided into parts and divisions) - the body of the act which specifies the
law (s 6: Payments to a state under this Act are by way of financial assistance to the State).

Acts frequently contain headings, but those have are not operative (cannot be used for interpretation).
Acts used to include a preamble or words of enactment, but this is not so common today.

Relationship between common law and statute law

In accordance with the principle of parliamentary sovereignty, common law gives way to statute when
there is conflict. However, common law judges are the ones which interpret statutes, and decide how they
apply or what they truly mean. It is unlikely that legislation can ever be drafted with such precision and
clarity that interpretation is not required.

Interpretation
Common law rules of interpretation
The common law rules of interpretation are as follows:

Literal rule - interpret the statute according to the literal meaning of the words.
Higgins J in 'The Engineers Case': "The fundamental rule of interpretation... is that a
statute is to be expounded according to the intent of the Parliament that made it; and that

intention has to be found by an examination of the language used in the statute as a

whole...what does the language mean... in its ordinary and natural sense, it is our duty to
obey that meaning."

Golden rule - the court would modify the meaning under the literal rule if the result would be
absurd, repugnant or inconsistent with the rest of the legislation.

Mischief rule (purposive approach) - interpret according to the intended purpose of the act,
ie examine what mischief Parliament was attempting to prevent by passing the statute. This
would clarify their intent.

There are also other, more specific rules which help analysing the grammatical structure of sentences:

noscitur a sociis words take the meaning of the context in which they appear.

ejusdem generis - of the same kind, where there is a general phrase and specific words of
the same kind, we read the general phrase in the light of the specific list.

expressio unius est exclusion alterius if something is expressly referred to, that will exclude
other matters.

Special and general provisions if an Act provides for something in general terms, and a
later Act makes special provision for the same thing, the later Act will prevail.

A case which deals with statutory interpretation is In Re Edith Haynes:

Court used literal approach to determine whether the act permits women to be legal
practitioners:

"If the Legislature desired that a woman should be capable of being admitted as a
practitioner of this Courtthey should have said so in express language".

Dangers of literal approach

A very literal approach can be very dangerous, as illustrated in the fictional case, Regina v Ojibway:

In this fictional case, a man kills his pony b to relieve it of its pain.

He is prosecuted under the (fictional) Small Birds Act, which prohibits injuring or killing small
birds.

The Act defines a 'small bird' as 'a two legged animal covered with feathers'.

The court, interpreting literally, decided that:

Since the Act doesn't say the animal needs to have only two legs, the two leg
requirement just means a minimum of two legs.

The horse in this instance had feathery pillow on his back, and therefore had feathers.

According to the literal interpretation of the act, the horse is a small bird.

Presumptions
When interpreting, the court assumes a number of presumptions:

Parliament does not interfere with fundamental rights.

No retrospective operation of the statute.

Legislation does not bind the crown.

Parliament does not legislate extra-territorially.

Later laws impliedly repeal earlier laws.

However, these are mere presumptions and not strict principles. Ultimately, the intention of the parliament
is what matters and if there is proof that the parliament intended some of the presumptions not to apply,
they will not.
Presumptions and statutory interpretation were considered in Potter v Minhan:

Facts: the respondent entered Australia from China, and was asked to take a dictation test as
was required of immigrants. He contended that he is not an immigrant - he was born in
Victoria, but moved to China in his fancy 26 years ago.

The question was whether he is an immigrant, and the judge decided (on the facts) that he
wasn't. He was therefore allowed to enter without the dictation test.

With regards to interpretation, the court observed that:

There are certain objects which the legislature is presumed not to intend; and a
construction which would lead to any of them would therefore to be avoided.

For example, it should be presumed that the legislature does not seek to overthrow
fundamental principles, infringe rights, or depart from the general system of the law, without
expressing its intention with irresistible clearness.

Therefore, it should be assumed that the legislation does not intend to deprive Australianborn or members of the Australian community from the right of freely re-entering Australia.

A definition of a common word like 'immigrant' should not be expanded beyond its
ordinary meaning (ie, literal approach). According to a normal definition of an immigrant, the
respondent is not an immigrant.

The issue of presumptions in statutory interpretation also arose in Royal College of Nursing of the UK v
Department of Health and Social Services:

Modern approach to statutory interpretation

The Acts Interpretation Act 1901 (Cth) now governs statutory interpretations, overruling the traditional
approaches. The Act requires that:

s 15AA: the purposive approach should be used where there is an ambiguity.

s 15AB: extrinsic material can be used in interpretation for the purpose of confirming an
interpretation or resolving an ambiguity/absurdity. Extrinsic materials include:

Royal commission or inquiry reports

Parliamentary committee reports

Treaties or intentional agreements referred to in the act

Second reading speech of the minister or person presenting the bill to the house

This means that the court interprets statutes as follows:

1. Literal approach. If there is an ambiguity or an absurdity then:

2. Golden approach. If there is an ambiguity or an absurdity then:
3. Purposive approach. If there is an ambiguity or an absurdity then:
4. Explore extrinsic materials.
The modern approach to statutory interpretation is discussed in Kingston v Keprose.

The civil war and the Glorious Revolution

After Elizabeth I died in 1603, the Tudor dynasty was ended and the Stuarts (Catholic dynasty started by
James I) began to rule.

The Stuarts believed in the 'divine right of kings' - ie, the God ordained that the King is
supreme, and is thus 'above the law'. This plunged England into civil war.

The civil war seen as a 3 way dispute by the lawyers. The Parliament, the King and the
common law were all vying for ultimate power.

Eventually, Charles I lost the struggle and was executed in 1649.

The civil war and the ideas that rose up during it led to constitutional change in England and
development of lots of ideas that influenced the colonies like Australia.

The king versus the common law

In 1598 (before he was King of England), James I wrote The Trew Law of Free Monarchies, setting out
the divine right of Kings.

He was supported in this idea by the attorney-general, Francis Bacon.

Bacon argued that that according to natural law, only absolute monarchy could avoid
'confusion and dissolution'. This theory was based on the natural law theory that law is based
on reason and the will of the Crown.

According to Bacon, the King could govern by prerogative alone parliamentary powers
allowed only by tolerance of the King he could dismiss or convene Parliament as he saw fit.

The power not to be dismissed without its consent was what Parliament really wanted
and only force through the civil war gave them that.

James I: Kings are justly called Gods, for that they exercise a manner or resemblance of
Divine power upon earth; for if you consider the Attributes to God, you shall see how they
agree in the person of a King... [kings have] their wills at that time served by law.

The disputes also had a religious component, as James I and Charles I were both Catholic
rulers of a Protestant nation; the English feared they would reintroduce Catholicism.

Note: supporters of the King's view were called Royalists, or Absolutists (since the King
sought absolute power).

Their main opponent was Sir Edward Coke (pronounced 'cook'). Coke was a massive political and judicial
figure - during his life, he served as Chief Justice of the Common Pleas, Chief Justice of the King's
Bench, and Speaker of the House of Commons.

J P Sommerville, Politics and Ideaology in England, 1603-1640

Lawyers claimed the common law was the best of all legal systems. While formally they recognised the
existence of laws superior like the law of nature, they were really quite sceptical about it.

They had a tendency to reduce these higher laws to terms of such wide generality they
became empty.

Some lawyers argued that the common law gave the King unlimited power, while others like
Coke held that the law imposed rigid restrictions on the monarch.

1608 Coke offended James I by denying that the King had the ultimate right to interpret
laws; he also denied that the King could stop common law proceedings with a royal writ.

Cokes was influenced by Sir John Fortescue, who argued that the purpose of government was the
protection of the persons and property of the governed.

This purpose was best served by a King who could not legislate or levy taxes without
permission of his subjects he argued that the King ruled as a constitutional
monarch(bound by a constitution, rather than having absolute power).

He believed that the English system was a combination of a monarch and his people - a
political and regal government.

He regarded Parliament as the institution through which subjects gave their consent, but with
little real power.

Then there were people like Sir Thomas Smith, who thought that the parliament should be
the ultimate power in England.

The essence of common law thinking centred around three elements, and a contradicting fourth one the
ideas of custom, the rationality of English laws, and the sacrosanctity of private property; and the absolute
legislative sovereignty of parliament.
1. Ancient custom:

The common law was regarded as the best system precisely because it was derived from
ancient custom the distilled knowledge of millennia of Britons. If something was done for
long enough, it must be good. Note how this precluded the development of the doctrine of
precedent.

Yet, its inherent flexibility (due to its being unwritten) made it superior to other laws. While
the Civil Law was bound by an ancient code, the common law evolved with the English
people.

So, like a glove fitted to the hand (Thomas Hedley) it was in a constant state of
development and refinement. The wisdom of several generations bygone was distilled into it;
thus, it could be changed like a house thats so often repaired, (none of the original material
survives), which yet is to be accounted the same still. (Selden)
2. Supremely Rational:

Because the Common Law was derived from ancient custom, it was argued that it was
supremely rational.

Yet, it was only through 'artificial' reason of lawyers that it could be exercised (had to be
acquired through training - lawyers wanted to protect their positions as interpreters of the
law).

Yet, it still possessed an immutable rational core. So, the common law was not just
custom, but rational custom.

Thus, the common law was a combination of reason and custom the term used
was tried reason. It was supremely rational, and had simultaneously survived the test of
time.
3. Sanctity of private property:

While natural law theorists held that the aim of governance was the welfare of the
community as a whole, common lawyers held that it was the protection of private property.
4. Parliament as a supreme legislative authority:

Parliaments supreme legislative authority overarched all of these ideas. From the dual
view of reason and custom came the ideas of the fundamental liberties of every subject
that they could not judge their own case; and that they could not be deprived of their property
or bound to a new law without their consent.

These ideas implied the existence of a Parliament, which represented the interests of the
subjects.

Common law lawyers gave Parliament a status of near-sovereignty. Yet, they insisted that
all statute was subject to unwritten custom.

Thomas Hedley wrote that the parliament derived its authority from the common law, and
not the other way.

Therefore, it could not abolish the common law without abolishing itself as an institution.
However, Parliament could correct deficiencies in the common law.

Eventually, the judiciary (led by Coke in 'Dr. Bonham's Case') intended to give judges definitive power to
interpret and even strike out statutes made by parliament (judicial review). This idea was short-lived and
eventually failed. It failed for two reasons:

1. The common law forbade legislation without consent of subject but if the judges were
supreme interpreters of the law, then by interpreting they might change it and so
legislate without the subjects consent.
2. Secondly judges are appointed by the government, and thus are usually under political
pressure.

Dr. Bonham's case

In Thomas Bonham v College of Physicians (Dr. Bonhams Case), Coke tried to assert the right of the
judges to strike down laws which are repugnant to the common law.

Facts: the plaintiff, Bonham, brought a case of false imprisonment against the College of
Physicians. He had a degree, and, upon seeking a licence, was denied. He continued
practising, and was subsequently fined and imprisoned. The College argued that they have
the power to decide who can practice (and imprison those who disobey) because of a
Charter given by the King.

Coke CJ: The common law has the power to adjudge Acts of Parliament to be void if they are
against common right and reason. Considering Bonham had a degree and he was practising
safely, it would be absurd to fine Bonham for practising. The plaintiff wins.

The implication of this case meant that the common law was above parliament. However, this part of the
decision was overturned shortly afterwards, and judicial review never eventuated in England.

The common law and the royal prerogative

The Stuarts and their supporters believed the kings power derived from God as author of nature, and that
natural law prescribed there be a sovereign in every commonwealth.

Under this, the King possessed extra-legal rights (the royal prerogative) - ie, he could rule
outside or even against the known law. Legal power cannot be defined or circumscribed by
lawyers.

The lawyers, on the other hand, believed the King had no extra legal powers, and that the Kings
prerogative was only those rights he possessed at law (which were given to him by common law). The
most dangerous prerogative was that the King was granted emergency powers at times of crisis (during
which he could pretty much rule as he pleased, openly disregard law etc).

This could be abused, especially given that he could define/declare war.

To prevent this, lawyers insisted it was the law that decided what wars were.

According to the lawyers, the common law was (under God) the ultimate arbiter of justice in England.
Except in Parliament, the King could never abrogate the common law, and nor could he waive anyone
elses obligation to obey. He possessed a prerogative to dispense from statute but not common law.
Through rejecting the idea that royal power arose by consent, Coke and his colleagues imposed stringent
limitations upon the Kings authority:

Allegiance to the King bound the subject only to obey the law, not the Kings extra-legal
commands.

While the King was the 'only supreme governor', he was below God and the law, rather than
any man.

Other prerogatives include:

Right to choose the design of coins.

'The King can do no wrong' - King cannot be prosecuted (although people acting on his
orders can).

King's power to veto legislation.

King, parliament, and common law

As mentioned above, one of the royal prerogatives was the power to override statutes of parliament
(intended to fix defective statutes because parliament convened irregularly). Whilst this was tolerated in
the time of the Tudors, people worried it would be abused under the Stuarts.

The Tudors understood this prerogative as a power defined by the law. The Stuarts saw this
prerogative as the rights bestowed by God.

Coke: common law was determiner of all these things.

The question naturally arose, who decides on what the common law was? And given that the King
appointed judges, could the king judge matters or direct the judges? This question was the topic of the
prolific case, Prohibitions del Roy (Case of Prohibitions);

the King in his own person cannot adjudge any casethis ought it be determined and
adjudged in some Court of Justice

Cases are not determined by natural reason but artificial reason, which is achieved through
much study of the law and experience as a judge. In other words, the King is not qualified to
determine the law.

This meant that the King can no longer sit as a judge in the courts. He was, however, still the 'Chief
Justice' because appeals from the King's Bench went up to the Upper House of Parliament, where the
King sits. There, he can reverse the decision with the approval of the other members.
Coke also made a big ruling in the Case of Proclamations:

the King by his proclamation of other ways cannot change any part of the common law, or
statute law, or the customs of the realmThe king by his proclamation cannot create any
offence that was not an offence before

The King is no longer empowered to make laws without Parliament.

The law of the land is divided into three parts: common law, statute law, and custom. But the
Kings proclamation is none of themthe king hath no prerogative but that which the law of
England allows him.

The Kings power is derived from the common law and Parliament. The King is only
sovereign with Parliament.

Parliament and civil war

Tension escalated during James Is reign (all of the above) but grew into violence under his successor
Charles I, who attempted to reign without parliament from 1629-40, until he ran out of money.

He was forced to accept the Petition of Right, which restricted him from imposing taxes
without the consent of parliament, as well as to ensure the king could not imprison subjects
without cause, compulsorily billet soldiers with civilians, or unilaterally impose martial law.

Parliament won the civil war and put Charles on trial from 20-27 January 1649.
First time a European monarch was tried by own subjects without being deposed first.

King argued that as a lawful King, Parliament had no right to try him and challenged their
jurisdiction.

He was convicted on the 27th, and executed on the 30th.

What followed was the Interregnum England was ruled by Parliament (headed by Oliver Cromwell) for
11 years (1649-60).

England had its only written constitution at this time, and there was much reform that went
on.

Parliament asserted its right to legislate on anything, and attempted to codify the law.

However, this method of government didn't really work, and things really deteriorated
especially with the death of Cromwell.

The Restoration and the Glorious Revolution

The Parliament eventually invited Charles II (successor of Charles I) back to rule in 1660 but on the
limited basis of 1641.

Charles ruled well but his successor James II (his brother) was a failure.

He aggravated both legal and tensions he was very catholic and appointed Catholics to the
Church, army, universities and royal household, and tried to use the dispensing prerogative
power to allow Catholics not to take the Test Act oath which excluded them from many
positions.

All of this (and other events) created tension which was begrudgingly tolerated because
James had no Catholic heir, and 2 Protestant daughters to succeed him.

However, in 1688 James II finally had a son, who was instantly baptised as a Catholic.

The Child represented the continuance of Catholic rule over England and danger to the Protestant power.

Parliament invited Mary (James II's eldest daughter) and her husband William of Orange
(ruler of Orange in the Netherlands) to assume the throne in 1688.

Williams accession to the throne was conditional upon his assent to the Bill of Rights (1688),
which further limited the power of the monarch and effectively placed him below the
Parliament and the common-law.

James II knew he was beaten and fled London. Thus the Glorious (bloodless) revolution.

Bill of Rights
William became king under the restrictions of the Bill of Rights. The right of suspension of legislation was
declared illegal and many royal prerogatives severely trimmed, although it still included the right to
choose/dismiss ministers at will, to summon/dissolve parliament at will (provided it met every three years)
and complete authority over foreign affairs. In detail, the Bill of Rights:

Mentions problems of James II, abdication, assumption of throne by William of Orange.

The King must seek Parliaments consent when suspending/dispensing laws.

Levying taxes without consent of Parliament is illegal.

The right of the subjects to petition the king is illegal (king is no longer a judge).

The king cannot keep a standing army in peacetime.

Election of MPs should be free.

Parliaments mechanism should not be questioned in any court.

Excessive bail/fines/imprisonments/punishments are illegal.

Jurors ought to be freeholders.

Fines/forfeitures before conviction are illegal.

Parliament ought to be held frequently.

The Rule of Law (Foundations of law)

The Rule of Law aims to prevent the exercise of arbitrary or tyrannical power. It became popularised
by AV Dicey, who described it through three main tenets:

1. Law is supreme and above all. A man can only be punished if it was proved in court that
he breached an existing law.

This means that the Sovereign cannot punish people arbitrarily.

2. No man is above the law, and everyone is equal before the law.

This means that the law applies to everyone in the exact same way regardless of
social, economic or political status.

3. The Constitution (the law) is the result of previous judicial decisions determining the
rights of private persons.

This means the constitution is not the source of the law, but the consequence of
inherent rights. We dont derive our rights from the Constitution; the Constitution is
the result of our rights.

Later commentators on the rule of law have added that it is not enough to ensure the state follows the
law, because if the state creates the law it can easily be oppressive it is therefore a very important part
of the rule of law to have rules to control government power.

The rule of law is a concept fundamental to our legal system, and the Bill of Rights was
aimed against the possibility of the king abusing his powers the restraint it placed on his
power came from the power of the rule of law as the parliament conceived it.

The establishment of parliamentary control and rejection of royal control meant that
Parliament was recognised as having the power to legislate over colonial territories as they
arose, while the royal prerogative in relation to foreign affairs meant the colonial territories
day-to-day regulation could be managed by the Crown with little interference.

The Privy Council was the main body in colonial regulation; power to make legislation was
fought by colonials in Australia using the same arguments used in the century leading up to
Glorious Revolution. They eventually succeeded in developing individual parliaments and
confining power of governors.

The impact of settlement on the indigenous inhabitants

The Australian legal system has dispossessed and failed to protect the rights of the indigenous people.
The British failed to recognise Aboriginal culture as a valid system and from this failure followed many
others.
Dispossession of the aboriginals by the British was not a simple matter of the weak giving way to the
strong. It was a matter of international law. In the 17th century, William Blackstone created three
categories of possible events when a foreign power entered a land:
1. Conquest: A forcible invasion of occupied land.

Consequence: Pre-existing laws continue until foreign power abrogates them.

2. Cession: Treaty over occupied land.

Consequence: Pre-existing laws continue until foreign power abrogates them.

3. Settlement: Settlement of land that is (a) 'desert and uninhabited', (b) sparsely
populated, or (c) inhabited by 'backward people' who did not cultivate their land.

Consequence: Settler's laws automatically take hold.

Upon arrival in Australia, the colonists' perception was that the Indigenous Australians were indeed a
'backward people'. Witnessing the mostly nomadic lifestyle of the Indigenous Australians, they surmised
that there could not possibly be a Sovereign power which needed to be conquered. Thus, they held that
English law automatically applied. No heed was given to the complex system of customary law that had
applied for thousands of years in Indigenous Australian culture. Under the common law, Indigenous
Australians had no possession of their land.

Legal theories
Sir William Blackstone advanced a legal theory with regards to the possession of land which became
widely accepted:

To be an occupier, one had to be present and to manifest a will to possess the land as ones
own.

Aboriginal people were in a state of 'primeval simplicity'; they did not permanently own land,
but only had transient possession at any one time.

They also did not cultivate in the sense that the British understand, because they were
nomadic hunters.

This meant that any time one left the land, any person could thus take it and therefore
become permanent owners.

Obviously, this idea of possession of land did not favour the indigenous population in Australian, who did
not consider their possession transient at all. However, the conclusion of the European was that Australia
was a terra nullius (uninhabited land, belonging to no one) and therefore it is 'settled'. In fact, the people
inhabited and had a traditional ownership of the land:

There were defined boundaries and ownership of land through unconventional boundaries for
the colonists.

The Aborigines had means of managing the land through controlled fire.

The people had a spiritual link to the land as well as a physical link to land for both nutrition
and safety.

Colonial attitudes
Many settlers thought the aborigines should not be regarded as British subjects.

John Batman purported to buy the land for the town of Melbourne from its Aboriginal owners,
but the Governor Burke proclaimed such agreement null and void in 1836.

In his view, only the crown had a right to make a land grant - the Aboriginals didn't own the
land and therefore could not sell it.

On the other hand, the Letters Patent for establishing South Australia provided Aboriginals with the right
to occupy and use the lands they possessed. However, the colonists actively undermined the Patent.

They ignored it, and later appointed officials who were sympathetic to them, rather than the
Aboriginals.
The indigenous people were deprived of many rights throughout Australian history
(voting or sitting in juries), and were the target of much oppression. In South
Australia, they were governed by the Aborigines Act 1911 (SA) (which placed
indigenous people as 'wards of the state' and deprived them of many things, ie
alcohol).

Exemptions could be obtained which meant the act doesn't apply to a particular individual.

This act, and the exemptions, was discussed in the prolific case Namatjira v Raabe:

Facts: an exempted aborigine supplied alcohol to a non-exempted aborigine. He was

prosecuted for this and argued that the state can't make aborigines 'wards of the state' in
bulk and must do it individually.

Held: the state can make aborigines wards in bulk and does not need to give individual
notices or investigations. Wards have the right to appeal, at which point an investigation will
be made.

Land and life

Australian law had difficulties understanding and recognising the traditional and spiritual connection which
the indigenous population had to the land. This was more problematic because the land constituted an
integral part of indigenous customary law. These issues were discussed in Milirrpum v Nabalco:

The court recognised that the indigenous people have a special/religious relationship with the
land. However, they determined that this relationship is not of a proprietary nature.

Therefore, they did not have a common law right to their land.
The court also recognised the existence of Aboriginal laws, which challenges the second
criterion for terra nullius.

However, the court was not willing to overturn terra nullius.

Social justice
Statistics
Indigenous people are the most disadvantaged group in Australia

Die twice the rate of non-indigenous people in the Australian population.

External cause (accidents, assault and intentional self-harm) account for 17% of indigenous
deaths compared with only 6% of non-indigenous deaths.

Mortality rates of Indigenous babies are double. This is whilst Australias total population has
one of the lowest infant mortality rates in the world.

Indigenous women were almost twenty times more likely to be imprisoned than were nonindigenous women.

Aboriginals myths disproved:

1. Aboriginal people are either traditional or non-traditional - in fact, they change between
lifestyles etc at different points of their life. The generalisation is false.
2. Aboriginal people are all the same culture - aboriginal culture varies immensely between
tribes and peoples. Over 600 languages, wide diversities.
3. Urban Aboriginals have the same values as non-aboriginals - Aborigines which have
moved into the cities still retain a lot of their tradition and may have completely different
value systems to the rest of the urban population.
4. Aboriginal people don't believe in property or inheritance - the aboriginals do not think of
property as a commodity, but they still believe in ownership in a custodian way.
5. Aboriginal people are defined by blood - a more correct identification would be whether
the person identifies as an aborigine.

Social security
Indigenous people are disadvantaged in terms of social security:

Completely excluded from social security schemes until 1966.

Much higher 'breach' rate (where a person suffers penalties for 'breaching' the rules
regarding its benefit). Several factors contribute to this:

High illiteracy, meaning indigenous don't always understand the rules and letters.

No consultation between Centrelink and indigenous liaison people.

Indigenous less likely to lodge appeals.

Aboriginals in custody
Compared to their small numbers, there are a lot of Aboriginals in jails. In Australia, Aboriginals make up
about 1.46% of the population, and 14.6% of the population in jails.

This is due to a mixture of social and economic pressures combined with 'over' policing.

The 'over-representation' of Aboriginals in jails is even worse with women.

The rate of death in custody is about the same as non-aboriginals, but because there are so many
aboriginals in prison in the first place, it means a lot are dying in custody.

The stolen generations

The Australian governments used to take Aboriginal children away from their parents. This was done
under legislation, as a part of the policy of allowing the Aboriginal race to die out/assimilate. Barbara
Cummings comments:

The justification for this removal was that the children needed 'protection'...from their
mother's culture.

The process was done in a way which meant that when those who were removed had
children, those were also removed.

This ended in 1970s, but there is still more of a chance that Aboriginal people are removed
from their parents by child protection agencies than non-Aboriginal children.

Attempts to claim compensation for the disastrous results of this removal have been usually unsuccessful.

This is because it was government policy to remove the children.

Child removal laws were held to be constitutional in Kruger v Commonwealth.

The first case to succeed was Trevorrow v State of South Australia.

The settlement of NSW and the reception of English

law
This topic deals with the early legal and political system of New South Wales and the other colonies. Main
issues include:

The governor had absolute power in the colony - he could pretty much do anything he
wanted, and was the only legislator and the highest point of appeal.

The governor's lawmaking abilities were curtailed by the Chief Justice, who could block
legislation on grounds of repugnancy to the law of the UK.

The settlers were divided into two main groups:

Emancipists - freed convicts (and their children), or settlers who sympathised with them.
They pushed for more powers including representative government and trial by jury.

Exclusivists - people who came as military officers or settlers. They wished to have
certain institutions remain in their own hands (exclude the emancipists).

(Partial) Trial by jury and representative government were finally introduced with the passing
of the NSW Constitution. From then on they evolved until they became proper
representation/trial by jury.

The courts became entirely independent from the governor with the passing of the Australian
Courts Act 1928 (Imp) which removed the governor from the judicial process.

With the enactment of the Australian Constitutions Act (No 2) 1850 (Imp), the colonies
separated and VIC etc set up their own parliaments.

Reception of English law:

After the Australian Courts Act 1828 (Imp), all English law that was in force in England
became in force in NSW insofar as it was applicable to the new colony.

This means that some principles are not received by the colony when it is at its infant
stages, because they do not yet suit it. As the colony grows, those principles of English law
which were unsuitable before, would gradually be introduced.

The cruelty of criminal law

Criminal law in England was very severe:

Death penalty extremely common about 30% of convicts on first fleet were sentenced to
death originally.

Death penalty applied to prisoners who had no right to have a defence counsel speak for
them, or to give evidence

However, death penalty wasnt carried out that often there was usually a pardon (royal
prerogative of mercy).

Some argued this was a conspiracy so the state looks scary but also merciful.

No professional police.

Prison officials owned offices means inmates had to pay for services and goods such as
food and bedding.

Serious disadvantage, because they cant work but still have to pay for things.
Courts were overcrowded judges used extreme formality and despatched cases hurriedly.

The prevailing opinion today is that most convicts who came to Australia were ordinary working people,
convicted of a first offence.

First fleet
The first fleet was captained by Captain (and governor) Arthur Phillip, carrying 1036 people.

Land grants were made to men on the basis of marriage and children.

After expiration of sentence/pardon, a man was entitled to 30 acres of land if on his own, 50 if
with wife, 10 additional per child.

Women not given land grants incentive to marry.

Ticket of leave a sort of parole, accompanied with conditional pardons which meant you
have to stay in the colony.

The early legal system

The legal system in Australia started with the First Charter of Justice 1786 which set up:

Court of Judicature Criminal cases.

Military court Judge-Advocate who serves as both judge and prosecutor.

Six officers to help.

Sentences of death and corporal punishment (mainly lashes).

Court of Civil Jurisdiction Civil Cases.

Judge-Advocate and 2 others appointed by Governor.

Right to appeal to Governor.

Right to Appeal to Privy Council if more than 300 pounds.

The law of attaint (whereby a felon is 'civilly dead') has not been implemented in the colony yet. This is
reflected in the Kable's case which was discussed earlier, and is expounded upon here:

The Kables (convicts transported to Australia) were allowed to sue one of the Captains for
losing their money.

Henry Kable was declared a labourer and not convict- which indicates he is not civilly dead.

Phillip adapted the laws to give the colony best chance of survival - to deny convicts (the vast
majority of population) any form of civil rights would have made the development of the
colony impossible.

The law of attaint reached the colony in 1801, which determined that convicts only sue or be sued in
Magistrates courts.

In 1820, the court held that 'emancipists' (people who were freed by a pardon from the
governor or a 'ticket of leave') are still attained because pardon is only effective if issued
under the Great Seal (of the UK), rather than that of the Governor (for purposes of removing
attaint).

This applied even though that prior to that judgment emancipists were allowed to sue.

The powers of the governor

In the early days, the governor had pretty much absolute power in the colony he could do pretty much
anything, and was the final point of appeal, and the sole source of executive and legislative power etc.

However, in a parallel way to England, the powers of the Governor gradually diminished. The
same arguments as were used in England to curb the power of the King were used to curb
the power of the governor.

The Second Charter of Justice (in 1814) established the Supreme Court with civil, criminal
and equitable jurisdiction.

Emancipists and exclusivists

Besides the aborigines, the residents of Australia were divided in ideology to the Emancipists and
exclusivists.

Emancipists - mainly people who came as convicts and were freed (and their children), but
also some free settlers who sympathised with their aims felt abused by military dominance.

Wanted to extend power and be allowed to be involved in the organs of power in the
colony.

Fought to change the colony from a penal colony to a free colony, with trial by jury and
representative government.

Dominant figures in business because gentlemen not involved in trade, and because
they got land grants (which would have been impossible back in England).

Exclusivists - mostly people who came as military officers/ free settlers.

Wished to dominate and have certain institutions remain in their own hands.

The struggle between these groups occurred mostly in the courts (since no political forum such as
parliament existed in the colony), and the arguments used were similar to the ones used during the 17th
Century in England (The Rule of Law, the Magna Carta and the Bill of Rights were all used).

Trial by jury
The residents of Australia had to fight to introduce trial by jury to the colony.

1819 petition by landholder emancipists - they wanted to have the political power that usually
came with wealth (like in England).

Criminal cases had a military jury - both colonists and military objected to this (military
personnel did not want to be dragged into civilian's affairs).

1823 New South Wales Act empowered governors pardon to remove 'attaint' (governor's
pardon the same as a 'Great Seal' pardon), instituted legislative council, right to trial by jury
in civil cases, if both sides agree.

Trial by jury unavailable for criminal cases still.

Emancipists were continued to be excluded from serving on a jury until 1830.

1833 trial by jury for all criminal cases.

The governor and the evolution of an independent court

In the beginning, the governor had basically absolute power. The governors were tyrants, who exercised
power arbitrarily.

The courts were just extensions of the governors powers, and were not independent at all

Eventually, after the New South Wales Act, the court became more independent to the
governor.

The Supreme Court could review the actions of the governor and most importantly, laws
could only be passed in the colony if the court certified that they were not repugnant
to the laws of the UK.

'1828 Australian Courts Act (Imp) - the governor can no longer hear appeals - appeals from
the Supreme Court go directly to the Privy Council. The Courts are now separated from the
governor.

Sir Francis Forbes

Forbes was the first Chief Justice in NSW. He acted as a foil to governor Darling, by blocking some of his
legislation and his attempts to control the press.

The governor and the fight for representation

The emancipists were also fighting for representation. Originally, the governor was the legislature of the
colony, although he was kept in check by the Chief Justice.

Indeed, many attempted laws of the governors' were invalidated by the Chief Justice or the
Secretary of State in London.

What the colonists really wanted was a representative parliament, like the one in England.

Battles about power resulted in Bigge Royal Commission.

Led to representative government, which started out as small and not actual
representation ('representatives' were few and elected by the governor rather than the
people), but later grew and became more democratic with the enactment of acts such as
the Australian Courts Act and the NSW Constitution (which provided for actually elected
members).

The requirement that the Chief justice certify the laws was dropped accordingly.

At this point, the other colonies wanted to separate from NSW and be able to then set up legislatures
similar to that NSW.

This occurred with the enactment of the Australian Constitutions Act (No 2) (Imp) in 1850.

The other colonies separated from NSW and were allowed to establish a form of a
parliament.

Soon, bicameral parliaments were introduced, and states were encouraged to draft a
constitution to send for approval in the UK.

NSW constitution was approved in 1855.

W C Wentworth
William Charles Wentworth is one of the biggest names in early Australian history. Here is some basic
information:

He was one of the richest men in the colony, and the head of the emancipists movement. He
led the movements for both trial by jury and representative government.

He owned the first Australian newspaper, which critiqued the governor and pushed for further
rights.

Quarrelled with governor Darling often (accusing Darling of being a tyrant), and hosted a
massive BBQ & party at his mansion to celebrate Darling's departure back to England.

He Drafted the NSW constitution.

Reception of English law

With the enactment of the Australian Courts Act 1828 (Imp), all English law that was in force in England
became in force in NSW insofar as it was applicable to the new colony.

This is known as the date of reception (28 July 1928)

All common law and statute law of England has been 'transported' into Australia.

Meanwhile, the doctrines of 'repugnancy' and 'paramount force' developed:

Repugnancy: laws passed by colonial legislatures which are deemed inconsistent or

contradictory to the laws of the UK are invalid.

Paramount force: determines which new statutes of England will also bind the colonies.

The idea of repugnancy was already discussed earlier, and indeed caused some trouble:

in SA, the CJ kept striking down legislation as being repugnant due to technical or minor
issues - it was impossible to legislate.

Whilst the SA parliament tried to petition England to get him to stop, England rather liked the
repugnancy doctrine and even formalised it in s 2 of the Colonial Laws Validity Act
1865 (Imp).
The act did, however, empower the state legislatures to amend their own constitutions

etc.

Determining which laws were received and apply today

It can sometimes be difficult determining which laws were received into Australia, and which continue to
apply today/are now repealed and no longer apply. This is discussed in Cooper v Stuart:

Some principles are not received by the colony when it is at its infant stages, because they
do not yet suit it. As the colony grows and prospers, those principles of English law which
were unsuitable before, would gradually be introduced.

The court determines whether laws were received by considering whether the laws suited the
colony at the specified stage.

Mabo and Ors v Queensland (No 2) (1992)

terra nullius
universal and crown ownership
concept of radical title/absolute title

Terra nullius

land belongs to no-one

rejected terra nullius by the court because of native title, connection to the land, cultivation, preexisting connection

Universal and Crown ownership

defendants argument absolute ownership of legal possession of title

court rejected this based on idea of indigenous as barbarians unjust
doctrine of tenure applies to every crown grant, but does not apply to things who dont owe
existence to crown grant
crown had radical title can be subject to native title rights if not extinguished
absolute and native title cannot co-exist

Concept of radical title/absolute title

radical title type of doctrine of tenure, sovereign has power to prescribe parcels of land and
interest of those lands, unalienated land full beneficial owner
radical title full beneficial title

Conclusion

acquisition of sovereignty radical title rather than absolute

rights of Indigenous still exist
sovereignty/beneficial ownership separate
native title continues to exist until extinguished abandonment of laws/custom, clear intention to
not continue

Torts
False

imprisonment
movement of person is restrained
force not necessary
detention unlawful
no reasonable means of escape

Battery
voluntary application
direct force to the person
without consent
Assault
defendant creates apprehension
imminent harm/direct offensive conduct
means of carrying out the threat