Marco Yu

INTRODUCING LAW AND

JUSTICE

MARCO YU

Table of Contents
The Rule of Law .................................................................................................... 2
Access to Justice .................................................................................................. 4
Indigenous People and the Law - Impact of English on Indigenous ............. 5
The Courts In Action .......................................................................................... 10
Precedent vs Judicial Activism ........................................................................ 15
Reception of English Law .................................................................................. 18
Separation of English Law ................................................................................ 21
The Australian Legal System ............................................................................. 23
English History (Civil War And the Glorious Revolution) ............................. 24
Professional Identity .......................................................................................... 28
Equity and Common Law .................................................................................. 31
Equity v Common Law ....................................................................................... 33
Statutory Interpretation ..................................................................................... 36

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The Rule of Law

- The Rule of Law prevents the arbitrary abuse of power. Everyone is subject to the law
and can rely on the law to establish the boundaries in which a society operates.
• No one can be punished except for a breach of law proved in a court
• No one is above the law and everyone is equal before the law
• The rule of law includes the results of judicial decisions determining the rights of
private persons
- Rule of law embodies ideals that have been central to political and constitutional
discourse who contrasted the rule of law with that of any individual
- The Secretary-General of the UN defines the rule of law as:
• A principle of governance in which all persons, institutions and entitles, public and
private, including the State, are accountable to laws that are publicly promulgated,
equally enforced and independently adjudicated, and which are consistence with
human rights norms.
- In Australian Communist Party v Commonwealth, Dixon J stated that the
Constitution was 'framed in accordance with many traditional conceptions,' some of
which are 'simply assumed.' He went on to say "among these I think it may fairly be
said that the rule of law forms an assumption'
• i.e. saying, the rule of law is an implicit but undefined part of the Australian
constitutional framework

Elements to the Rule of Law

- Scope -
• Nobody is exempted and everyone is within the scope of the law, even those that
make the laws (i.e. parliament)
• Political aspect: governments and public officials are subject to existing laws
• Social aspect: citizens are equal before the law.
- Equality before the Law:
• Equal subjection of all citizens to the law, used to prevent the use of law against
specific groups or individuals by making everyone equally liable
- Character - the law should be such that people will be able to be guided by it, and it
must not be contradictory or authoritative.
• In order to do so, laws must exist in the form of general requirements that people
can consult before they act.
• Exercises of public power in ignorance or violation of existing law made
unannounced (I'm going to shoot if you don't comply) or announced in arbitrary
orders, regardless of effect, defy the rule of law.
- Institutions
• The institutions that administer the law must be independent from those who make
the law. They must also be shielded from interference - known as Separation of
Powers

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The Benefits and Value of the Rule of Law
- The rule of law constrains power and is a protector of individual liberty
- Freedom from Fear
• Thomas Hobbes (1600s English Philosopher) said that "What drives people to
agree to abusive political rule is fear. What is then required is an institutional order
which consolidates all powers to prevent arbitrary exercise"
- Coordination and cooperation
• Citizens obtain a clear understanding of their and other's legal obligations and
reasonably have faith that the law will constrain other citizens and official of state in
ways that they can predict
• Facilitates interaction and cooperation among citizens
• Citizens share intersubjective cues as to the rights and responsibilities of people
- Justice
• The rule of law provides certain basic conditions for a society to exist free of certain
fears and informed of certain things
• Joseph Raz: "The Rule of Law is purely a negative value. It is merely designed to
minimise the harms to freedom and dignity which the law may cause in its pursuit
of its goals however laudable (praiseworthy) they may be"
• Ronald Dworkin: "The Rule of Law is the ideal of rule by an accurate public
conception of individual rights"

Characteristics of Just Laws

- Equality, procedural fairness, accessibility to courts
- Everybody is equal under the law
- Innocent until proven guilty
- Separation of powers
- Right to legal representation

General Notes
- No nation perfectly lives up the the ideals of the rule of law - everyone has failings

Essay Notes
- Firstly write some points on what the rule of law means.
- Mainly address how the changes which the essay question refers to (i.e. indigenous
settlement or conflicts during the glorious revolution) connects to improvements in
upholding the rule of law.

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Access to Justice
- It is the task of the legal system to ensure that all citizens have equal access to the law
and that the law provides equality, fairness and justice are central concepts, allowing
us to distinguish good law and bad law.
- However, if not all citizens have full and equal access to the legal system, then
equality, fairness and justice are just empty concepts.
- It is only by combining all of these principles that a legal system will be seen to be
providing justifiable and appropriate outcomes.

Equality
- Equality means that all people in a society are treated in the same way with respect to
political, social and civil rights and opportunities, meaning no one enjoys unfair
advantage or suffers unfair disadvantage.
- Equality: the state of being equal, having the same rights or status

Fairness
- Fairness and justice are usually associated with each other. Fairness often is used to
apply to everyday life, whereas justice has more legal connotations.
- Fairness: freedom from bias, dishonesty, or injustice, it is a concept commonly related
to everyday activities
- There is no single social mechanism for deciding what is fair and ensuring fairness.
- When a rule is translated into law, it is expected that it will be fair to all members of
society.

Access
- Access: the ability to obtain or make use of something
- The concept of justice suggests that everyone who is covered by a legal system and
its laws should have equal access to that system.
- Examples of people who may not have equal access include financially
disadvantaged people and people from non-English speaking backgrounds.

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Indigenous People and the Law - Impact of English on Indigenous
- Upon settlement, even though English attempted to uphold the rule of law by making
everyone subject to the law, they failed to recognise the Aboriginal culture.
- Legal systems are vital to ensuring power is not abused - this is not always successful
• The dispossession and failure to protect the rights and culture of the Indigenous
was a failure in the Australian legal system
- The land was supposedly terra nullius - land belonging to nobody
Government Policy
1788 - 1840s: Ignore/segregate and extermination drives
1840s - 1930s: 'Protection' - half castes and educating them in European ways
1930s - 1970s: Assimilation/Integration; integration half castes.
1970s - 2000s - Self Determination, Gradual increase in rights (voting, land, recognition)
2007: The Intervention
13 February 2008 - An Apology

Key Statistics after Settlement Justice and the Legacies of 1788

Social Statistics
- On all statistical indicators, Indigenous people are the most disadvantaged group of
all Australians
• Indigenous people die at twice the rate of non-indigenous people in Australia
• External causes (accidents, assaults and self-harm) account for 17% of Indigenous
deaths compared to 6% of non-Indigenous
• Mortality rates of Indigenous babies (1.1%) are double non-indigenous rate.

Indigenous people and social security

- Aboriginals were excluded from the social security welfare scheme until 1966
• Rate of unemployment is higher in Aboriginals

Aboriginal Deaths in Custody

- The number of deaths in custody continues to increase
- Indigenous imprisonment rates are higher now than they were in 1991

Sovereignty and Proprietorship

- William Blackstone created three categories of possible events when a foreign power
entered a land.
• Conquest - A forcible invasion of occupied land - pre-existing laws continue until
altered by conqueror
• Cession - Treaty over occupied land, formally giving up rights.
• Settlement - Settlement of land that is "uninhabited," sparsely populated, or
inhabited by 'backwards people' who did not cultivate their land.
- William Blackstone advanced a legal theory in regards to possession of land which
became widely accepted:

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• To become an occupier, one had to manifest a will to possess the land as one's
own
• Aboriginal people were in a state of 'primeval simplicity,' they did not
permanently own the land, but had transient possession
• Aboriginal people did not cultivate the land because they were nomadic hunters
- The rights of the Aboriginal people during settlement and colonisation were not
recognised - English deemed that terra nullius applied and that Australia was settled.
- The natives were diverse Indigenous people that populated Sydney for 20,000 years.
- An element of tension between Indigenous and Settlers was caused as they believed
that land was "discovered" then "settled" rather than "conquered"

Colonial Attitudes
- Colonial beliefs regarding ownership of land was contradictory between the English
• Many thought that the Aborigines should not be regarded as British subjects
• There was little concern for Aboriginals - settlers began the process of assimilation
in the 1930s, which attempted to wipe out Indigenous culture.
• Dispossession of their traditional lands was significant issue for ATSI population
- The Indigenous peoples were deprived of many rights - in SA, they were governed by
the Aborigines Act 1911 (SA) which allowed Indigenous people to be declared
'wards of the state'
• The Aborigines Protection Board was empowered to make a declaration of
exemption based on "character and standard of intelligence and development."
This allowed Indigenous to circumvent the laws that prevented them to carry out
certain actions
- Namatjira v Raabe (1959) 100 CLR 664 - deemed that Aboriginal people as a
whole require special care - equal treatment under rule of law is not upheld.

The Stolen Generation

- The Australian government ad a policy of removing children from their family,
particularly if they were mixed-blood to allow the Aboriginal race to die out.
- The justification for this was that children needed 'protection' from their culture
- This policy of assimilation and integration of half-castes ended in 1970 via
Community Welfare Act 1972 (SA), or Aborigines Act 1969 (NSW)
- Attempts to claim compensation for the removal of children had largely been
unsuccessful
- This was because it was government policy to remove children - huge breach in
regards to equality before the law
- Kruger v Commonwealth (1997) 146 ALR 126 deemed child removal laws at the
time constitutionally valid
- The first case to succeed was Trevorrow v State of South Australia [2007] SASC
285 - it was a rare situation were the State did not act in accordance with statutory
provisions - under normal circumstances cases would not succeed as the removal of
children was a matter of government policy.

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Social Justice Issues
- Assumption that settlers knew what was best for Indigenous
- Inadequate attempts of rehabilitation
- Cycle of Neglect
- Discrimination
- 2% of Australian population, but 27% of prison population are indigenous
- 41% increase of incarceration between 2006-2016
- 31% of female prison population
- Over 40% of those incarcerated were imprisoned for sentences less than 6 months
- Often incarcerated because they are poor and cannot fund themselves
- Indigenous Australians have a life expectancy of around 10 years less than non-
Indigenous Australians

Rehabilitation
Indigenous Development of Attitudes
- R v Ballard (1829) - it is not murder if an aboriginal man kills another aboriginal man
as long as it aligns with native title
- R v Murrell (1841) effectively founded the doctrine of native title, Indigenous people
within the bounds of the colony are held to the laws of that colony, regardless of who
they kills whether its indigenous or European - i.e. English law
- R v Bonjon (1842)
• "There is no express law, that I am aware of, that makes the Aborigines subject to
our colonial code"
• "NSW was not unoccupied at the time it was take possession of by the colonists"
- Millirrupulm v Nabalco (1971)
• Yolngu people sought declarations that they were entitled to occupy the land
without interference and that they had land rights based on a common law
doctrine of Aboriginal title.

Gradual Rights to Land

- Aboriginal and Torres Strait Islanders had a lack of recognition of their right to land.
- There was a continual push for land rights and recognition of their culture.
- Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)
• Significant legislation that allowed claim of title if claimants can provide evidence
of their traditional association with land.
• Significance: first of the Aboriginal Land Rights Acts, allowing for a claim of title if
claimants can provide evidence of their traditional association with land.

Mabo (No.2) (1992) 175 CLR 1

- Mabo v Queensland (No.1) 1986 - High Court declared Queensland Coast Islands
Declaratory Act 1986 invalid in its attempt to acquire sovereignty and extinguish
land rights because it breached the Racial Discrimination Act 1975 (Cth), which
gave the Indigenous land rights
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- Mabo case huge because it indicated a breakthrough in judicial activism -
- Main issues included:
• Whether the Mer people's relationship with the land gave them absolute ownership
and legal possession of all land.
• Was the Crown's mentality of acquisition in regards to terra nullius justified?
• Reception of common law: the settlers brought with the the laws of England, and
became the only laws in the colony because the Indigenous were considered
barbarous and without laws.
- This made Meriam people subject to common law, but Brennan J found that
common law had to be reconsidered as such a policy "has no place in the
contemporary law of this country," and that this justification for refusing to
recognise their rights and interests "can no longer be accepted."
- Mabo Case established that a mere change in sovereignty does not extinguish
native title to land. 

--> Brennan J states that when the Crown acquired sovereignty... it thereby
acquired the absolute beneficial ownership of the land therein, and accepts that the
rights and interests in land possessed by the Indigenous should survive beyond the
change in sovereignty.
- Case Significance: Native title is determined by traditional customary law yet it can
exist along common law. Native Title originates from the traditional laws and
customs of the inhabitants - it is not an institute of the common law and hence is not
alienable by the common law, and can only be extinguished by clear intent from the
Indigenous.
- This case is a lead authority for the progression of greater rights for ATSI people

Native Title After Mabo

- The Keating government passed the Native Title Act 1993 (Cth), establishing a legal
framework for the principles stated in Mabo and set out how future dealings with land
would be managed.
- A huge issue was whether pastoral leases (land to breed cattle and sheep) would
extinguish native title
• Wik Peoples v Queensland (1996) 141 ALR 129: HC held that pastoral leases
could coexist with native title rights and interest, but the rights of pastoralist
displace many native title rights and interests.
- 1997 Howard government reduced the scope of native title and application for it
through the 'ten point plan'
- Nonetheless, S Brennan's Public Law review "Native Title in the HCA a Decade after
Mabo (2003)" questioned what circumstances will Indigenous connection to land
warrant recognition under Western law as native title?
• Although the Mabo case created a perception that Indigenous groups would need
to demonstrate a continuity of traditional identification with the land in which they
claim for native title, the Yorta Yorta case saw rejection of the claim.
- Yorta Yorta case: the trial judge and High Court found that the Indigenous people's
relationship to the area lacked the necessarily 'traditional' character and that the
'interruptions' to traditional life of recent history had severed the necessary
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connection between the original people of the area and the contemporary Yorta Yorta
society.
- This proved that relationship with land "must have continued substantially
uninterrupted since sovereignty."

The Intervention
- In 2007, the Commonwealth government put plan to reduce domestic violence
against Indigenous children in the NT
- This came in the form of the Northern Territory National Emergency Response Act
2007
- The Act is highly controversial - children have little to do with child protection.
- Stronger Future in the Northern Territory Act 2011 - effectively extended a number
of the measures imposed of the NT Intervention.

Native Title Today

- Any native title in relation to the fishing and mining is subject to common law as
established in Commonwealth of Australia v Yarmirr 2001
- Any exclusive right to fish in tidal wave is extinguished and there are no native title
rights to interest in any minerals or petroleum
- Native Title Act 1993 protects hunting, gathering and fishing rights in relation to
land or water, where indigenous peoples are concerned have a connection with the
land or waters by tradition as established in Western Australia v Ward 2002
- Over time, Cape York's Shelbourne Bay was handed back to traditional owners in
native title case
- Traditional owners granted native title, Wuthathi people fought to take possession of
Shelbourne bay which was removed in the 1930s

Essay Notes
- Again, attempt to avoid this topic as much as possible - its kinda shit
- Heaps to talk about in regards to common law and key authorities.
- The rule of law can be referred to, primarily under equality before the law
- Violates character - Indigenous were most certainly not 'guided' by the law, and it
was beyond authoritative and treatment of Indigenous were oppressive.
- Indigenous did not have freedom from fear.

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The Courts in Action

Adversarial and Inquisitorial Procedures
Adversarial
- A type of legal system found in common law jurisdictions that is characterised by
opposing parties arguing their case before a neutral third party
• Complex rules regarding evidence - judges can make rulings on admissibility of
evidence
• Courts cannot make enquiries or use their personal bias
• Where there is a jury, the judge directs them on the law that they should apply to
the facts.
Inquisitorial
- Legal system found in civil law jurisdictions characterised by a judge having the
responsibility for the pre-trial investigations and the conduct of the trial
- Judge has an active role - may direct parties to present witnesses, collect evidence
and question witnesses.
- Minimal rules of evidence used
- Juries are rarely used

Jurisdiction
- Jurisdiction means the scope of a body's power to hear matters, determine facts and
apply the law to make a judgement.
- Concerns the range of power within a certain body
- Harris v Caladine (1991) CLR - "Jurisdiction is the authority which a court has to decide
the range of matters that can be litigated before it"
- Generally, the statute which establishes a court will define its jurisdiction.
- However, supreme courts have general jurisdiction - meaning that their jurisdiction is
unlimited unless a later statute has limited it.

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State Courts
Supreme Courts
- General jurisdiction, continuing the ancient traditions of colonies in the UK
- Supreme Courts may hear appeals either as a single judge or judge/jury
- Judges may also hear appeals from tribunals and lower courts.

Intermediate Courts
- District or County Courts
- Civil Monetary Jurisdictional limit of $750,000 unless both parties consent, in which
case there is no monetary limit.
- NSWDC has unlimited jurisdiction in relation to motor accident matters.
- The criminal jurisdiction of different states is variable is variable - in NSW all indictable
offences aside from murder and treason can be heard.

Magistrate's Courts
- Important; where the vast majority of cases are heard
- Jurisdiction set out by statute with noticeable variation - vital to consult relevant
legislation.
- Magistrate's role is to carry out the committal process, which decides if an indictable
accusation has legit grounds, and if so it is referred to the District/Supreme Court.
- Magistrate also deals with summary offences and indictable child offences.
- Magistrates also deal with a large range of civil matters including small debts
- There is usually a monetary limit - in NSW it is $100,000 unless both parties consent.

Federal Courts

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Aspects of Federal Jurisdiction

- Chapter 3 of Constitution allowed state courts to be provided with federal jurisdiction,
in which case they would be exercising federal judicial power
- Major differentiator of federal and state jurisdiction is that federal jurisdiction must be
specifically given and defined.
- Federal courts are therefore courts of defined jurisdiction instead of unlimited
jurisdiction.

High Court
- Superior Court of power with the same power to punish as the Supreme Courts
- Court of limited and defined jurisdiction - contains original and appellate jurisdiction
- Defines the law for all jurisdictions as the highest court in the Commonwealth
hierarchy, dealing with matters of federal importance.
- Original jurisdiction set out in s75 of the Constitution.
- S 76 of the Constitution allows parliament to make laws to allow original jurisdiction
regarding matters involving and interpreting the constitution.
- Special leave appeal needed to institute a matter in the high court - a meeting where
the facts of your case are presented and evaluated to see if there are legit grounds.
- Under S35 of the Supreme Court Act, special leave to High Court considers the
extent of public importance (so multiple people benefit), or whether the interests to
the administration of justice require consideration by the High Court.

The Federal Court

- Established under S71 of the Constitution
- Has defined jurisdiction through 150 acts of legislation, and also original jurisdiction.
- Primarily deals with civil matters of tax, bankruptcy and intellectual property cases.
- Criminal jurisdiction is only minor and incidental
- Section 32 Federal Court Act states that the Court has associated jurisdiction -
meaning matters overlapping multiple federal jurisdictions (family and civil case) can
be heard in the same court rather than both.

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- Federal Court also has accrued jurisdiction, meaning cases related to a Federal
Court claim despite being categorised under state jurisdiction can come to the court.
- Cross-vesting is the idea that federal power can be handed to state courts but not
vice versa.

The Federal Circuit Court of Australia (FCCA)

- Established by Federal Magistrates Service in 1999.
- Only civil jurisdiction - deals with family law, child support and property dispute
matters less than $300,000 unless parties consent.
- Appeal from the FCCA is not a hearing from the beginning, but when the appeal is to
the Family Court there can be a rehearing by the Full Court when discretion is
exercised.

The Family Court

- Established by Family Law Act 1975
- Limited jurisdiction
- Power to deal with cases related to children, marriage and matrimonial cases
- Family Court also has accrued jurisdiction, meaning cases related to a Federal Court
claim despite being categorised under state jurisdiction come to the court.

Federal Tribunals
- Quasi judicial power - deals with administrative matters.
- Statute outlines jurisdiction
- They are subject to review in the administrative law jurisdiction of the Federal Court
- Tribunals are under the executive - and hence has no judicial power.
- NCAT made in 2014.
- Lawyers usually preside over a tribunal.

Federal-State Court Interaction

- State and Federal Jurisdiction may overlap - difficulties arise when deciding which
court has authority to hear the matter
- Previously, Supreme Courts generally had jurisdiction over the Federal Courts as it
had general jurisdiction - however this has been limited since the introduction of the
TPA 1984, FLA 1975 and CCA 2010, providing federal courts defined jurisdiction.

Travelling Through the Court Hierarchy

Equity and Access
- Large barrier in upholding the ROL is cost
- Those not from ‘mainstream’ culture and language (ie/ migrants and indigenous
people) also disadvantaged- courts language = very unfamiliar
- This has been highly affected by legal history - French has been spoken in the UK
system since the 16th century.

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Rights to Interpreters
- Courts in most jurisdictions recognise the difficulty for migrants in the court system
- Australian Common Law has limited rights - judge has a discretion as to whether or
not an interpreter is used
- In Criminal cases, the right to an interpreter is based on the likelihood of a fair trial
- In civil cases, there is no automatic right to interpreters, and is purely up to discretion
- However, faults in judicial discretion in evaluating language barriers is an issue.
- Cost of professional interpreters and the fact that translations may not be 100%
accurate is an issue.
- Highly difficult in the adversarial system as the interpreter will have to be in control
of the litigation.

Non-Verbal Communication and Cultural Patterns In the Courtroom

- Non-verbal communication includes intonations in speech, tolerance in silence (varies
by culture), verbal utterances, personal space, eye-contact, body movements, etc...
- Non-verbal communication is culturally determined.
• Hence, signs that one culture may present as one emotion may appear different to
another culture
• Affects migrants and Aboriginals in Australia
• example, in Aboriginal culture, looking at someone in the eye is rude - however it is
a sign of respect in Australian culture.
- In an adversarial context this is very important when examination and cross-
examination takes place in a question and answer form as Aboriginals have a different
pattern of asking/answering questions
- Thus it is very important to understand non-verbal communication across cultures.

Essay Notes
- Surprisingly there's actually heaps to talk about on this - essentially anything or any
rule that the court has, i.e. the hierarchy, having different courts (allows judges who
specialise in a certain area of law to ensure that justice and the rule of law is upheld),
rights to interpreters. I TALKED TO U ABOUT THIS ITS ESSENTIALLY YEAR 11 LEGAL
STUDIES HOPEFULLY U BROUGHT UR NOTES IF THEY ASK THIS SHIT

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Precedent v Judicial Activism

- The doctrine of the separation of powers is a means of restricting the power of the
government
- Thus, it is evident that the courts, and specifically judges, have significant power over
the direction of the law
- Precedent needs to be upheld consistently and cohesively in the law, yet there
remains room for interpretation of the law by judges to instigate change

Development of the Doctrine of Precedent

- The Formal rule of precedent holds that a court must apply or follow the ratio
decidendi of a higher court in the same hierarchy where the facts of the case are alike.
- Decisions regarding which parts of a previous case becomes binding is subject to
interpretation.
- Question about extent of similarity is argued via legal reasoning in court.
- Development of law reporting - lawyers were first to report legal reasoning and was a
huge basis in the development of precedent

Elements of Precedent
- Courts are generally bound by the decisions of higher courts in the same hierarchy
- The formal rule of precedent holds that a court must apply or follow the ratio of a
higher court where the facts of the cases are alike.
- Stare decisis: 'to stand by what has been decided and not to disturb settled points.'
- Common law is case-law built on precedent, which has been tested and tried over
years - makes it highly reliable.

Purpose of Precedent
- Greater willingness to re-examine old precedents and to seek common law doctrine
for Australia. Emergence of judges concerned to ensure justice of legal rules
according to contemporary values
- To prevent arbitrary abuse of power
• Ronald Dworkin: each case written as if it were a chapter in a novel. Judges are
constrained to write it by the need to maintain coherence in the novel and best
interpretations of the previous chapters
- Essential to the maintenance of public confidence in the law - need for consistency,
continuity, certainty and predictability

Factors Influencing Use

- Position of deciding court and the level of court from which the precedent came
- Age of precedent and whether the precedent is in line with other authorities
- Changes in community values
- Obiter statements about the precedent which might reinforce it

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Nature of Precedence
- The central paradox of the doctrine of precedent is that while the doctrine means that
like cases are treated alike, and the law follows previous law, the law can also change.
- The High Court's determination is the last word on the interpretation of the law as it
now stands. But it's never been part of our system that the High Court makes the law.
- Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 [135] -
established that appellate courts have to follow other intermediate courts unless they
are plainly wrong
- Ways around Precedence
• Distinguishable on facts
• Case wrongly decided

Issues With Precedence

- Judges with personal characteristics do not come from diversified backgrounds
- What justifies legitimate change --> to what extent should judicial activism hold?
- Publishing judges of dissenting opinions reflects how the system recognises and
stimulates judicial creativity to combat a complex legal environment

Reasons for Judicial Activism

- Kirby J: it is part of an independent judge's duty to express the law to protect
minorities, the weak, and vulnerable
- Kirby J suggests that it is impractical to have a society in which judges are unable to
bring their interpretation. "Giving meaning to uncertain words, phrases, and
principles is the daily work that judges do"
- Kirby J: "Judges are forced to work within constraints"1
• "It is an infantile insistence that judges should only apply, and never make the law"
• "Legal authority must be underpinned by legal reasoning" - limitations to activism
• "The right of judges in collegiate courts to dissent is another feature of the
common law system that recognises and stimulates judicial creativity"
- Brennan J; changes in the Mabo case were legitimate and set out the bounds of
legitimate change"
- Brennan J: "The court cannot adopt new rules of their adoption would fracture the
skeleton of principle"
- Judicial activism connects to artificial reasoning, in the sense that judges can build
and expand the logic of precedent.
- However, the restriction of judicial activism through precedent narrows the mind as
judges are forced to follow precedent.

Reasons Against Judicial Activism

- A problem with judicial activism is that without representation of groups in society
within the judiciary, it can fail to represent the interests in those groups
• Can direct the law to a direction that may not be in the interests of all of society

1 ‘Judicial Activism? A riposte to the counter-reformation’ 2004, Australian Bar Review

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- High Court is yet to have judge appointed from non-Anglo-Australian background
• Most judges describe themselves as English, Irish, Scottish or Australian
• Depending on the meaning of Australian, the diversity which exists in the general
population has not yet made it to the judging panel
• A problem as it indicates lack of representation of perspectives in the law
• Out of touch with contemporary social values
- Heydon's 2003 Quadrant Speech: "judicial activism results in the death of the rule
of law"
• Destroys the separation of powers as the judge's role is to interpret the law - not
make it. Creates complications when applicants aim for change
• The notion of judicial activism pushes judges away from having strong moral
principles (probity) because it destructs the rule of law.
- Heydon J: "It is the role of parliament to make significant changes in the law, not the
judiciary's"
• "Radical legal change is best effected by professional politicians who have a
lifetime's experience of assessing the popular will. They may not be an ideal class,
but they are better fitted than the courts."
• While this remains a core principle, consideration should be given to judicial
activism, as they are most accustomed to the matters they deal with frequently.
• Judicial activism is seen as a threat to the rule of law
- Dyson Heydon: "Rightly or wrongly, many modern judges think they can right every
social wrong and achieve some form of immortality"2
• Saying that modern judges think they can fix everything and become moral heroes
through judicial activism when in fact their logic is illogical and they’re merely
drawing on illegitimate authorities
- Edith Haynes Case: example of conservative agendas in judges
• Indicates that precedent is not always evolving or representing the views of society
• Parker J: "I am not prepared myself to create a precedent by allowing the
admission of a woman... If the legislature desired that a woman should be capable,
they should have said so in express language."
• Burnside J: "When the legislature in its wisdom confers the right on women, then
we shall be pleased to admit them. But we must leave to the legislature to decide
on the desirability or otherwise such legislation. I think the rule ought to be
discharged (changed).
• The comments above indicate people (judges) who have experience, yet afraid to
enact judicial activism based on threat of disturbing rule of law. Thus, accentuates
the notion that precedent is not always evolving - fears of harming the rule of law
compromises access to justice for many. Resultantly, the judiciary leaves the role of
change to the legislature; will they adapt to changing values of society proactively?

Essay Notes
- Judicial activism harms the rule of law - but is essential for adapting to the changing
values of society and accentuating access to justice.

2 'How Judicial Activism Results in the Death of Rule of Law in Australia'

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Reception and Separation of English Law

Chronology of Reception of English Law
- 1788 - first settlers arrive in NSW
• A penal settlement (A settlement used to exile prisoners and separate them from
the population)
• Ruled by proclamation
• Broad powers which had the force of law
• Not until 1800 were records kept of these orders.
- 1823 - NSW Act 1823, Chief Justice needed to verify if laws were different to England
- 1828 - Australian Courts Act, English Law in force on 28/07/1828 applied to colonies
- 1865 - Colonial Laws Validity Act clarified doctrines of repugnancy/paramount force
- 1900 - Cth of Australia Constitution Act (UK)
- 1931 - Statute of Westminster
- 1942 - Statute of Westminster Act (Cth)
- 1978: Viro v The Queen; established HCA can overrule own decisions, therefore not
bound by Privy Council
- 1986 - Australia Acts
• Finally abolished doctrine of repugnancy (inconsistency)
• Clarified that state parliaments can repeal/amend any British legislation still in force
in the state including early statutes establishing the colonial parliamentary structure

The Fight for Trial by Jury

- 1819 - Petition by Emancipists (1300 landholders) to monarch asking for trial by jury
- 1823 - jury in civil case if both parties agreed; however, juries continued to exclude
emancipists on the basis that they were attained until 1830
- 1833 - Battle for jury trial for all criminal cases was won

The Cruelty of Criminal Law

- The English Criminal Law was extremely severe - prisoners could be sentenced to
death for minor crimes.
• Death penalty applied even though prisoners had no right to defence or to give
evidence
- Overly crowded court system - 12 judges dealing with 10000 cases/year; had to use
extreme formality and speed
- In the beginning, the colonies of Australia were under such laws.

General Timeline
- Australian courts regarded themselves as bound by decisions by House of Lords or
English Court of Appeal, even though they weren't part of the Australian hierarchy.
- Kable Case - Kables stored money with the ship's captain but money disappeared -
while they were attaint under English law and couldn't sue, they were allowed to sue
in Australia - Captain Cook adapted the law to give the colony it's best chance of

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survival (since denying convicts civil rights would have made development of colony
impossible). This case began the drive for the rule of law
- 1786: Charter of Justice 1786 established two courts:
• Court of Judicature: criminal cases
- A military court consisting of a typical judge and six officers
- Sentences of death or corporal punishment.
• Court of Civil Jurisdiction: civil cases
- Consisted of a judge and two others appointed by the governor
- Appeal was available to the governor, or if the matter was over $300, to the
Privy Council
• Doctrine of Attainder - an English rule whereby a person convicted of a felony
was regarded as "civilly dead" and could not sue in civil proceedings
- 1788: Charter of Justice 1788 gave the governor practically unlimited powers -
possessed legislative and executive powers and was the final court of appeal
• Connects to the rule of law via separation of powers
• Previously, not everyone was equal under the law.
- 1788-1865: Development of the doctrines of repugnancy and paramount force
• The doctrine of repugnancy applied to laws passed by colonial legislatures. If
they were taken to be repugnant to English law, they were void.
• The doctrine of paramount force applied to determine which new statutes of the
Imperial Parliament applied in the new colonies.
- 1814: Charter of Justice 1814 established a Supreme Court with civil and criminal
jurisdiction
- 1823: Under the New South Wales Act 1823, the Chief Justice needed to verify
whether or not certain laws were repugnant with that of the laws in England
• It was often difficult to determine which parts of English law applied - it had to be
applied but the question was how
- 1828: Common law rule was formalised in the Section 24 Australian Courts Act
1828, clarifying that all English law in force on 28 July 1828 was in force as long as it
was applicable to the new colony.
- 1865: The doctrines were applied so heavily in SA that parliament was non existent.
Reinforced by Boothby J who deemed SA laws repugnant even for minor differences
- 1865: Acts of Justice Boothby led to Colonial Laws Validity Act 1865, which
formalised the doctrines of repugnancy and paramount force:
• All colonial laws which is deemed repugnant will only be repugnant to an extent,
and never be void or absolutely inoperative
• No law will be deemed completely repugnant unless enforced by a provision or act
- 1870: Phillips v Eyre (1870) LB 6 QB 1 held that any English act which was
applicable to a colony by express words or necessary intendment would be in force in
the colony
- 1889: Cooper v Stuart (1889) 14 App Cas 286: Lord Watson held that English laws
applies to colonies insofar as they are relevant to the circumstances of the Colony at a
particular time.

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• As population, wealth and commerce of the Colony increase, many rules and
principles of English law, which were unsuitable to its infancy, will gradually be
attracted to it.
- 1931: British Parliament passed State of Westminster - claimed that no law of
England directly applied unless requested by Australia, established by Statute of
Westminster Adoption Act 1942
- 1978: Viro v The Queen; established HCA can overrule own decisions, therefore not
bound by Privy Council
- 1979: Dugan v Mirror Newspapers Ltd (1979) 142 CLR 583: Reinforced that
English Law still had impact over Australian legal system even in 1979 - held that
Dugan could not bring civil action while attaint remains, a ruling which existed in
England. This English ruling was decided to be applied in the colony of New South
Wales, as it was not explicitly abolished by the Crimes Act 1900

The Governor's Power

- Between 1788-1814, the governor had absolute power as the court of appeal, and
judges were appointed/direct subordinates of the governor
- Charter of Justice 1788 gave the governor practically unlimited powers - possessed
legislative and executive powers and was the final court of appeal
• Connects to the rule of law via separation of powers
- Australian Courts Act 1828 abolished appeals to the governor from the Supreme
Court, and in place was direct appeals to the Privy Council - upholds the rule of law
by separating powers to ensure everyone is equally subject to the rule of law.

Parliamentary Representation
- The constitutional framework of the states was based on British doctrines:
• Doctrine of Parliamentary Sovereignty: Parliament has the right to make or
unmake any law, and that no person or body is allowed to override or set aside the
law of Parliament.
• Doctrine of Responsible Government: individual ministers were to be held
responsible for their personal acts, the general conduct of their departments and
the acts or omissions of their departments.
• Doctrine of Extraterritoriality: colonies could not legislate outside its territories
- 1823: NSW Act 1823 allowed 'representation' consisting of 5-7 unelected members
- 1828: Australian Courts Act 1828 extended this to 15
- 1842: Australian Constitutions Act increased size of the Legislative Council to 36
- 1850: Colonies began to separate from NSW and create their own legislatures -
Australian Constitutions Act 1850 separated Victoria and NSW
- 1852, the Legislative Council was extended to 54 members and bicameral
parliaments were introduced
- 1855: NSW Constitution was approved, and allowed for two houses of parliament
- 1865: Restriction of power through the Colonial Laws Validity Act 1865 (UK), which
made proposed bills go through the British government first.
- 1907: Australian States Constitute Act 1907 (UK) - allowed British parliament to
disallow colonial legislation - gave British parliament ultimate authority.
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- 1926: Increase in parliamentary power; 1926 Belfour Declaration established that
the governor was no longer an agent of the Britain, allowing government to enter
treaties while using Britain as an advisory
- Attorney-General (NSW) v Terthowan (1931) 44 CLR 395 asserted that the
Legislature of NSW has a purely statutory origin, to ensure the separation of powers.
In turn, this would uphold the rule of law.
- Union Steamship Co of Australia Pty v King (1988) 82 ALR 43: established that
parliament had the power to make laws for the peace, welfare and good government
of a territory.

Separation from England

Moving towards Federation
- 1880: Henry Parkes, premier of NSW, put forward the idea for a new federation
- 1889: Parkes' speech for a strong central parliament, prime minister and cabinet
rather than a council. This speech was significant as it led to the Convention of 1891.
- Idea of Federation fuelled by several factors like Germany's annexation of New
Guinea, trade concerns and immigration concerns (China and the Gold Rush)
- 1891: First Convention, sparked by Parkes' Speech
- 1897: First session of the National Australasian Convention --> Draft the Constitution
- 1898: Majority of states except NSW and QLD voted yes, WA did not participate
- 1899: After amending the Constitution, all states voted yes (later WA also decided in
favour)
- 1st Jan 1901: The British/Imperial Parliament passed the Act, Royal Assent for the
federation.
- 1931: British Parliament passed State of Westminster - claimed that no law of
England directly applied unless requested by Australia, established by Statute of
Westminster Adoption Act 1942
- 1968: Appeals from all courts exercising federal jurisdiction was terminated under
the Privy Council (Limitation of Appeals) Act 1968, which was expanded by the
Privy Council (Appeals from the High Court) Act 1975 to include all from the High
Court of Australia
- Final detachment from Britain in the Australia Act 1986

Development of Independent Australian Rights

- The new constitution provided for a franchise to be established by parliament:
• Commonwealth Franchise Act 1902: universal suffrage for elections for people
on the electoral role and nobody else unless entitled under S41 of the Constitution
- S41: People already on a state electoral roll in 1902 could vote in elections and
could not have this right taken away, including women and some Aborigines.
- Women's Right to Vote:
• S16, S34 of Constitution received the right to vote in federal elections and right to
stand for election to Federal Parliament
• Australia was the first country where women had these rights on the federal level

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• The time when women gained the rights to vote in state elections and stand for
state parliament varied. SA in 1894, VIC in 1908 and 1923 respectively.
• Roach v Electoral Commissioner
- Aboriginal People
• Men were not specifically restricted from voting after Commonwealth Franchise
Act 1902 but they were restricted in other ways.
• E.g. Parliamentary Electorates and Elections Act 1912 (NSW) disenfranchised
Aboriginal people who lived on reserves. QLD passed legislation barring
Aboriginal people but allowed ‘half-castes’.
• Commonwealth Electoral Act 1962 removed all disqualifications them the right
to vote but it was not compulsory.
• Voting was made compulsory for Aborigines in 1983.

Powers Under the Australian Constitution

- Australia Constitution established a Federal Executive Council, advising the Governor-
General on the government
- Provides for ministers to sit in parliament
- Separation of powers - main doctrine to prevent abuse of power in Commonwealth
• Emphasis on the separation of judicial powers form the other forms of power

Rights in the Constitution

- Right to vote (s41)
- Right to trial by jury (s80)
- Right to freedom of religion (s116)
- Some rights have been implied in the Constitution, i.e. the implied right of political
free speech/communication: Nationwide News Pty Ltd v Wills (1992) 177 CLR 1
and Lange v ABC (1997) 189 CLR 520
- ACT was the first Australian jurisdiction to enact a Bill of Rights: Human Rights Act

Essay Notes/Quotes
- "Mixing the rule of law, democracy and human rights tends to obscure the essential
reality that government may violate the rule of law." - can refer to the powers of the
governor.
- Long story short, avoid this as much as possible
- If we had to talk about this, we can refer to how the gradual separation from English
allowed the rule of law - previously the exclusivists held all the power but it was
gradually transferred to the emancipists.
- Could also talk about how the previous system, where all English laws were applied in
Australia was representative of the rule of law where everyone is equally subject to
the law, before talking about how power transferred from exclusivists to emancipists.

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The Australian Legal System

- R v Wedge (1976 NSWSC): distinguished that all members of the colony were under
criminal law, as the jurisdiction of NSW extended to all people in the state regardless
of status. This was despite Wedge arguing that Indigenous should have their own
jurisdiction

Traditional Classification
- Public law: constitutional, administrative and criminal law
- Private Law: Common law and equity
• Torts, contract property, family, commercial

Procedural Differences
- Adversarial
• Equal parties prepare and present their case to a neutral tribunal
• In charge of action
- Inquisitorial
• State has access to more resources than most individuals
• Civil proceedings progress by judges with the notion of interrogation
The Role of the Judge
- Adversarial
• Judge sits on the bench and makes rulings about what evidence is admissible
- Civil Proceedings
• Active role and may direct parties to present witnesses or collect evidence

The Public/Private Law Distinction

- Someone can be prosecuted as well as sued
- Public Law Dispute between individuals and the sate
• Legal personality: Attorney General, The Crown, The queen, Regina, R
• Subject matter: state's activity, constitutional, administrative, taxation, criminal and
industrial law
- Private law is about the conflicts between individuals
• Torts (civil wrongs), Contract, Property
• Remedy: compensatory damages

- R v Wright: Wright and Watson persuaded a friend to buy them alcohol. After
consuming alcohol they stole a van. Wright drove off and crashed into the trees
before Watson died afterwards. Wright was convicted and sentence for his death due
to negligent behaviour.

Essay Notes
- Again, avoid this topic with all costs. Barely any essay material here, the only notes
here are for potential comparison purposes but i doubt they'd ask.

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English History (Civil War And the Glorious Revolution)

- The 17th century was characterised by who controlled power, concerned disputes
between Parliament seeking parliamentary sovereignty, the Crown and the Courts.
- Had significant effect on Australian law by establishing doctrines of parliamentary
sovereignty and instilling the separation of powers
• Doctrine of Parliamentary sovereignty: The notion that Parliament is the
supreme legal authority which can create or end any law. Generally, the courts
cannot overrule its legislation and Parliaments are free to change laws.
- Yet, the colonial beginnings of Australia still independently developed unique aspects
• Seen through near unlimited powers of the governor and the current legislative
power of Australian states as prescribed in state constitutions
• Exemplifies development of Australia's legal system as an independent legal
system

Prior to Civil War - The King and Common Law

- James I (1603) set out the theory of the divine rights of kings - King is supreme
- Francis Bacon: According to Natural Law theory (law based on reason and the will of
the sovereign), "only absolute monarchy could avoid confusion and dissolution"
- Natural law theorists claimed the only way to achieve welfare and survival of
community was through an unrestrained absolute monarch. SEPARATION OF
POWERS
- Thomas Hobbes: claimed that law arose not from artificial reason but from universal
and natural reason of monarchal supremacy.
- Restraint of power began through Case of Prohibitions and Case of Proclamations
- Case of Prohibitions: established that the king cannot adjudicate

Artificial Reasoning - Sir Edward Coke

- This notion of natural reasoning was disputed by Edward Coke
- Established the principle of artificial reasoning, where only lawyers possessed the
right to interpret common law
- Artificial reasoning focused on specific discipline, recognised complexity, and
understanding of the law which is constructed by experience and time

Common Law Thinking Before the Civil War

- The essence of common law thinking centred around four principles
- Ideas of Custom:
• Common law was derived from ancient customs
• Common law was unwritten and subject to change
• Precepts of reason was 'drawn out of the Law of Nature,' and became general rules
applicable to the masses in most cases
- Rationality of English Law
• Because the common law was derived from ancient custom, it was supremely
rational
• It is tried reason - reason that has been tested through the years
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 Marco Yu
- Sacrosanctity of Private Law
• Natural law theorists held that the aim of government was welfare, while common
law lawyers held that it was for the protection of property which led to welfare
- Legislative Sovereignty of Parliament
• Parliament's supreme legislative authority overarched all of these ideas
• From the dual view of reason came the idea of the fundamental liberties of very
subject - that they could not judge their own case and that they could not be
bound to a new law without their consent
• Thomas Heldy in 1610 held that Parliament derived its powers from the common
law and therefore could not abolish the common law without abolishing itself
• However, a power of judicial review would end legislative sovereignty

Arguments made for Supremacy

- Arguments for Royal Legal Supremacy
• Divine right (noble ancestry), tried and true tradition - a natural royal succession
advocates the status quo (existing nature of affairs)
- Arguments for Parliamentary Legal Supremacy
• Judges could be appointed but not dismissed
• Judges can be too easily influenced by the king
• Parliament had supreme legislation in land (land meant money and power), it could
reverse the decisions of judges
• It had supreme power to interpret the law
• The King cannot change the common law in parliament
- Arguments for Lawyer's Legal Supremacy
• Artificial reasoning
• Necessary empiricism attached to the legal profession
• Lawyers able to interpret the law (not merely read the words)
• The very idea of sovereignty came from the common law
• The fact that law was customary and had developed over hundreds of years meant
that it was the culmination of a long process of refinement
• Years of study were required to understand the laws and legal processes

These Arguments Led to the Civil War - Broke out during Reign of Charles I
(1625-1649)
Parliament and Civil War
- Argument grew into battle in the reign of Charles I (1625-1649) and escalated into
violence
- Charles I attempted to rule without a parliament but had to recall it when he ran out of
money and was forced to accept many of the demands it placed on him in the Petition
of Right in 1628
- Parliament won the Civil War and put Charles on trial in 1649
• First time European monarch has been tried by his own subjects without first being
deposed
• The King challenged the parliament's jurisdiction then accused of treason and
executed
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 Marco Yu
- Subsequently, England was ruled by the parliament, headed by Oliver Cromwell
• Known as the "Interregnum" - a period when parliament learned to govern
• Parliament had to learn how to handle army, navy, finance and trade which had
previously been dealt with by the king/crown
• Established parliamentary sovereignty by limiting the royal prerogative (powers
exclusive to the king) (notably ended King's right to suspend legislation)

The Restoration and the Glorious Revolution

- When the Rump parliament invited Charles II back to rule (the restoration) in 1660, he
was accepted on a limited basis, which the Crown had to accept in 1641
- Charles ruled with political adeptness, managing not to aggravate legal or religious
tensions
- Did not cause as much trouble as James II (1685-1688) (who ran away), and William of
Orange took over as king, beginning the Glorious Revolution

Glorious Revolution and the Rule of Law

- Important Historical event in developing the common law
- Limited the power of the royal prerogative, and in doing so, established the
supremacy of common law and also the doctrine of parliamentary sovereignty
• Doctrine of Parliamentary sovereignty: The notion that Parliament is the
supreme legal authority which can create or end any law. Generally, the courts
cannot overrule its legislation and Parliaments are free to change laws.
- Hence was important in preventing the arbitrary abuse of power, establishing the
principles of the notion "equality beneath the law"
• Established supremacy of artificial reasoning opposed to natural reasoning
• This decision was based on the logic this delegitimised the supremacy of the
King's prerogative in relation to common law
• Established a balance of power between common law and parliament
• Enabled parliament to learn governance but moreover formulated the infancy of
the doctrine of parliamentary sovereignty from the bill of rights

Glorious Revolution and the Separation of Powers

- Without the Glorious Revolution, it is possible that the separation of powers could
have disappeared
- Parliament developed as the courts did and the Magna Carta was the foundation on
which the period of parliament began and arbitrary power of the King was restrained.
- Parliament derived its power from the common law
• But the conflict stemmed from those who possessed power over the other
- Parliament may find defects in common law and remove them, but cannot abolish the
whole of common law without abolishing itself
- Common law also sought to hold power over parliament
• Bonham's Case: Coke challenged the authority of parliament in favour of lawyers
• "For when an act of the parliament is against the common right or reason, or
repugnant... the common law will control it."
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 Marco Yu
• This idea was later repealed and now statute>common law
- Judiciary could also not control parliamentary acts either for 2 reasons
1. If judges could judicially review acts and set aside statutes which did not agree
with common law, this is an exercise of power without the "people's consent" -
directly at odds with common law
2. Judges were appointed by the royal prerogative and hence judges would be
likely to be under political pressure - rule of law not obeyed as the judiciary
would not be independent
- The final resolution is that neither can control the other.
- This formed the basis of the doctrine of the separation of powers.

Glorious Revolution and the Bill of Rights 1689

- Glorious Revolution deposed James II from the Crown
- Invasion by William of Orange and the solution of Bill of Rights were very important
- Bill of Rights - restricted dispensary powers of the Crown and enabled parliament to
hold power (RULE OF LAW)
• Did not strictly establish parliamentary sovereignty but eroded many of the King's
powers
- Written constitution restrained government powers
- Has had significant implications for modern legal systems
- Fundamental to Australia's legal system and lawyer's ability to assist people against
corrupted officials - parliamentary control and rejection of Monarch's powers
- Led to the rise of parliamentary democracy

Ultimately Impact of the Glorious Revolution on Australia

- 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
- However, the Bill of Rights meant that the internal affairs of colonial affairs could be
managed by the crown without the parliament's input.
• This led the Privy Council (who represented the Crown) to make administrative
decisions, legislation, and exercises of judicial authority in relation to colonies
• This power was then handed to the governor
- The power to make legislation was fought by colonial Australia utilising arguments
from the period leading up to the Glorious Revolution
• The succeeded and developed independent legislatures, and confined the power
of the governor
• However, Privy Council remained the final court of appeal in Australia until 1986.

Essay Notes
- The glorious revolution was essential to upholding the separation of powers
2. The King's power was excessive, and required change to ensure rule of law is upheld
3. The result of the glorious revolution, in that it led to the doctrine of parliamentary
sovereignty, established the basis of the separation of powers which ultimately led to
greater access to justice
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 Marco Yu

Professional Identity
Influences on Professional Identity and Development of Legal Profession
- Coke's conception of artificial reasoning - "Law sharpens the mind by narrowing it"
- Artificial reasoning: based on the notion that a person's time spent in a field allows
them to interpret the law in the best possible way.
- Kirby J: "A lawyer who wishes to serve in the interest of justice must have a sense of
professional and personal independence - this has driven the development of the
legal system.
- Heydon J: "Acquiring and implementing strategies of meta-cognition is an important
aspect of the development of a successful lawyer. Such strategies contribute to the
development of a lawyer's professional identity and personal resilience."

Edward Coke's Artificial Reasoning

- 1607: Coke insisted that the king should not judge cases because he was subject to
law --> RULE OF LAW, SEPARATION OF POWERS
- The King had no sufficient knowledge of the law and thus he should not interpret it.
- Long study and experience is required to attain skills necessary to interpret law
- Coke suggested that James I lacked knowledge of the law and was not familiar with
principles that underpin legal reasoning.
- The King's decision of a case would not be a judicial decision that follows the artificial
reasoning of law
- Development of law reporting - lawyers were first to report legal reasoning and was a
huge basis in the development of precedent

Artificial Reasoning Narrows or Broadens the Mind

- Basis of artificial reasoning is that timeliness in law allow the system to enhance logic
as precedents build on the logic of past judges.
- If a judgement is deemed to be illogical, the judgement can be overruled through
new precedent
- However, this advancement in artificial reasoning that has been developed through
precedent narrows the mind - judges are forced to interpret cases in a particular way
based on how similar cases have been interpreted in the past.

Changs to the Legal Profession

- University education became dominant in 20th century but took time to happen
- In 20th century, majority of legal teaching was done by legal practitioners - allows
consistency in the legal system.

Rise in the Legal Firm -> Less Sense of Community

- Vines: "By the mid 70s, the collective sense of a single, professional identity was
quickly unravelling
- There were an increase in corporations which was underpinned by the Trade Practices
Act 1965 (Cth)

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• This revolutionised the way legal practices operated; many firms became localised
and then became corporate law firms
• These then grew to large companies by 1970, and now hire thousands of lawyers
- As a result, the purpose of firms changed - their rationale is to provide legal services
to specific specialist fields --> furthers access to justice as people are more familiar
with the law.
- "There was merely a number of cumulative developments that pushed the leading
legal firms in one particular direction"3
- Legal system changed in 1980s and created three ranks of lawyers - barristers, large
commercial firms and solicitors
- Reduced the extent to which the legal profession felt like a community; stark
differences in the hierarchy pushed this change.
- This diversity in the profession leads to greater access to justice.

Diversity in the Profession --> Leads to Access to Justice

- Problem with the legal profession is the slowness of admittance of minority groups
- Women
• Made up 2.4% in 1947 --> by 1991 they make up 26.3%
• Woman law students became majority in legal education
• Statutory interpretation in Re Edith Haynes case
- Still an imbalance of gender at highest levels of profession - barristers, partners and
judges
• Issue of making partner - four large law firms in 2005 had 58.2% of women lawyers
but only 15% of women partners on average
• HCA has only 3 female judges, but generally the proportion of women is higher
amongst the rest of the judiciary
- High Court is yet to have a judge appointed from a non-Anglo-Australian background
• All judges describe themselves as English, Irish, Scottish or Australian
• Depending on the meaning of Australian, diversity in the legal world has not
reached the bench
• Problematic as there is a lack of representation of perspectives in law - foreign
perspectives not accounted for in the judging process. If this diversity was
expanded, it would create greater access to justice, and allows further
understanding of a range of contemporary social values
- The number of Indigenous judges and magistrates is vanishingly small - questions if
there is still discrimination, and highlights impact of settlement on indigenous

Lawyers and the Rule of Law

- Lawyers have a special role to play in restraining the abuse of power
- For the majority of people the lawyer is the route to the law - lawyer acts for the client
but always retains a duty to the court
- Duty is reflective of the idea that the lawyer's duty is to protect the rule of law

3Mendelsohn and Lippman ‘The Emergence of the Corporate Law Firm in Australia’ (1979) 3
UNSWLJ 78
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 Marco Yu
- For the rule of law to work, lawyers must maintain it

Lawyers and Professionalism

- Profession - group of people who hold themselves and are accepted as having a
special body of knowledge and skills which they exercise in the service of others
- Professions often have high levels of autonomy (the right to self-governing) to
exercise their skills and knowledge as they see fit - can be self regulated and
regulated by statute
- Legal profession is very old, and has a long tradition of an ethic of service to others
- Being in the profession will impact on a person's personal/professional sense of
identity

Ethics
- Role of the lawyer is consistent with ethical duties
• Representing Client
• Ensuring that you maintain duty to court
• People get in trouble when they forget both of those duties or tend to forget duty
to the court in maintaining the rule of law
- The way in which the ethics of legal practice is regulated in Australia perpetuates a
mismatch between the ethics of public lawyers (responsiveness for the state) and
ethics of legal profession (ethic of autonomy and self-government)
- Lawyer therefore has ultimate role of deciding the client's interests in the context of
adversarial justice and their duties to the court.

Essay Notes
- The professionalism of lawyers and gradual development of this professionalism over
time is essential for upholding the rule of law and increasing access to justice.
- Two key ideas:
4. Artificial reasoning which strengthens the logic of precedents
5. Development of the legal profession which allows specialist courts and law firms
which specialise in an area of law.

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Equity and Common Law

Development of Common Law
- Common law was developed in England by a a series of courts in 1066
• Romans left few traces on the legal system
• Anglo-Saxons left the writ, the sheriff, and the notion that the King and the people
were all subject to law and the King's Peace

Norman Conquest (1066)

- The Norman Conquest had a profound effect on the English Legal system:
- Feudalism
• System of mixed landholding and lordships, so that the landholder owed duties to
the lord whose land he held, and the lord offers protection
• Pyramidal system - ultimately lord was the King as all the land was essentially his,
and the lords hold it off him
• The lords kept control of admin, politics, military, marriage and succession
- Manorial Justice
• Developed as a system in which the lord held court for the peasants
- Baronial Justice
• Developed as a system for tenants higher in the feudal pyramid who owned land
- Only then was royal justice used when these local dispute resolutions failed

Curia Regis
- Curia Regis was the King's Court consisting of a group of advisers like judges/barons

Royal Justice System

- Henry II added to the royal justice system the following:
• Repetitive justice system of sending judges to investigate administration in country
• Examined the sheriff's/coroner's activity, payment of taxes and judicial work
• 5 Judges remained in Westminster to hear matters
• In 1215, there were three royal courts:
- Exchequer - Court of Finance
- Court of Common Pleas - heard matters about land (held a monopoly on all
actions about land), recovery of property and debt
- King's Bench - followed the King and heard matters such as trespass and
felonies (breaches of the King's Peace)

Trial by Jury
- In Medieval England, proof based on religion that God would ensure right prevailed
- Normans (1100) --> trial by battle
- Henry II (1154) - Trial by recognition/jury of 12 knights; only available in royal courts.

Magna Carta (1215)

- Arose after a dispute between King John and his lords - King was forced to sign

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- The document demonstrated that even the king could be restrained
- There are clauses which limit arbitrary abuse of powers relating to the court system
- In summary, the Magna Carta has three main principles:
• Every free man has an inherent right to his life, liberty, property and citizenship
• Individual rights must yield to the necessities of general welfare at will of the state
• The law of the land is the only mode by which the state can so declare its will
- Seen as one of the most significant rights of Englishmen
- Remains part of the law in AUS jurisdictions to limit the arbitrary use of power

- Prisoners A-XX (inclusive) v NSW (1995) 38 NSWLR 622

- 50 prisoners brought actions seeking access to condoms while they were in jail -->
argued this contravened Chapter 29 of the Magna Carta
• However, this did not provide a statutory basis for saying that the denial by prison
authorities of access by prisoners to condoms is unlawful"
• The link between not supplying condoms and denying justice is too far --> the
framers of the Magna Carta did not have this in mind
• Establishes interpretation of statute - must take into account intent when literal
meaning is ambiguous

The Church
- Ecclesiastical courts - courts having jurisdiction in religious/spiritual matters.
• Region heavily embedded in medieval England --> courts were separated into
spiritual (church) and temporal (non-church) courts
• Church/ecclesiastical courts applied canon law --> derived from Roman Law and
was based on the bible/statutes on the church
• Had Jurisdiction in relation marriage, divorce, legitimacy of children, wills and
passing of personal property on death and punishment of mortal sins (e.g.
gluttony, adultery and fornication)
• Henry II wished to assert his supremacy to the Pope by creating the Constitution
of Clarendon 1164 and appointing Thomas Beckett to Archbishop of Canterbury
- Benefit of the Clergy
• If an accused could recite a passage of the psalter (the book of Psalms), they were
registered as clergy and escaped a death sentence - significance of religion
- Sanctuary and Abjuration (Declaration)
• Trial or confessing to coroner and then take an oath to 'abjure the realm'
• If one took an oath, he would be allowed to safely go to a designated port, then
leave within a set time, or be hanged
• Legal effect was the same as execution --> goods were forfeited and wife was
regarded as widow

The Rise of Equity and Civil/Criminal Jurisdiction

- Equity
• Until the 14th century, if justice did not appear to be done, a litigant appealed to
the King in Council (Curia Regis) who referred this to the courts of equity

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• Lord Chancellor's court decoded matters on the basis of conscience rather than
common law - exercised royal power which allowed him to make any judgement
• By the 18th and 19th centuries, equity became a rigid and complex set of rules
which were enforced differently by different courts
• Litigants had to choose whether they seek remedy in the common law or equity
• Created difficulties as many cases involved both common law and equity
- Crime
• A clear distinction occurred between criminal and civil law
- Criminal - action instigated by a state authority with the view of determining
beyond reasonable doubt the guilt of a person
- Civil - action instigated by individuals or groups of individuals --> state acts as
a neutral arbiter
- R v Wacker; R v Wright distinguished the two jurisdictions
• During Henry II (1154-1189), a system of writs, procedures and common law arose
- Writ of trespass --> replaced trial by appeal and allowed litigants to collect
damages and placed the initiation of criminal trials at the hands of the King
• King's Peace
- Extended to everyone
- When a person committed a crime, he was disturbing the King's Peace
- Prosecuted by state
- Serious crimes were no longer considered as torts which only required
compensation, but as a crime against society

Equity v Common Law

- Equity and Common law are complementary
• Equity is based on fairness and principle
• Body of law that address concerns that fall outside the jurisdiction of common law
• Aims to address problems that arise from strict application of the principles of law
- Aspects of Equity include trusts, fiduciary obligations, obligations regarding
confidential information.
• Fiduciary duties are duties that arise when someone "agrees to act on behalf of
another person in the exercise of power which will affect the interests of that
person in a legal or practical sense"4

History of Equity - Lord Chancellor

- Lord Chancellor was an ecclesiastic and was the repository of a monarchical
prerogative of justice and clemency
- Acted explicitly in the name of morality and justice - acted to correct common law
- Courts of Equity = Court of Chancery
• Chancellor administering equity was a churchman and had ties to the Church's
ideas of conscience but also exercised power of the king and could be enforced -
created a more fair and just decision. Diversity extends access to justice

4 Hospital Products Ltd v United States Surgical Corporation (1984) 154 CLR 41 96-97 (Mason J)
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- Where the common law was not achieving justice, Chancellor could step in with the
flexibility of royal power and equity to ensure that justice was done
• Chancellor's intervention was not to contradict common law but to work around it

Equity in Modern Context - Fusion Fallacy

- Fusion fallacy is where equity and common law are merged
- Involves the administration of a remedy, such as common law damages for a breach
of fiduciary duty, not previously available at either law or equity
- The modification of principles in one branch of jurisdiction, importing others.
• e.g. holding that the existence of duty of care in torts may be tested by asking
whether the parties concerned are in fiduciary relations
- Denis Brown, (Ashburner's Principles of Equity (Butterworths, London, 2nd ed,
1933)): "the two streams of jurisdictions run side by side and do not mingle their
waters"
- Some believe fusion fallacy is false as both equity and common law had adequate
power to adopt and adapt concepts from each other.

Role of Equity Alongside Common Law

- Equity is a body of law that arose to correct and modify the harshness and inflexibility
of the common law.
- Equity generally works with the common law to enforce matters such as equitable
interests in property
- Equity has a range of doctrines that can be brought to bear on common law matters
- Equitable remedies will be given where:
• An equitable right is infringed
• Where it is thought that the common law remedy is inadequate
- Equitable remedies include:
• Specific Performance
• Injunction - an authoritative warning/order
• Declaration: declare a contract void.
• Estoppel - forcing someone to go back to what they promised
- Judicature Act (UK) 1873 reformed law so that both law and equity could be done in
the same court. Australian jurisdictions (except NSW and QLD) followed by 1833.
• Tasmania 1934 - Judicature Act 1932 (TAS)
• NSW 1972 - Supreme Court Act 1970 (NSW)
Maxims of Equity
- The maxims of equity give understanding of ideas underlying the equity jurisdiction -
they are not rules and the list is not completely settled
• Equity will not suffer a wrong to be without a remedy
• Equity follows the law
• Where there is equal equity, the law shall prevail
• Where the equities are equal, the first in time prevails
• He who seeks equity must do equity
• He who comes to equity must come with clean hands

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• Equity looks to the intent rather than to the form
• Equity looks on that as done which ought to be done
• Equity imputes an intention to fulfil an obligation
• Equity acts in personam (against a person's obligations and actions)
- There are still stark differences between equity and common law - particularly
whether punitive damages (money paid by defendant in the hope of deterrence) can
be awarded in equity
• Denis Browne, (Principles of Equity (Butterworths, London, 2nd ed, 1933)):
"the two streams of jurisdictions run side by side and do not mingle their waters"
• Aquaculture Corp v NZ Green Mussel Co Ltd [1990] 3 NZLR 299: held that
principles of compensation for common law damages and for breach of equitable
duties are equivalent.

Equity and Precedent

- Equity does not follow strict precedent like common law
- Equity only operates where justice requires it to operate and thus cases are not
binding on the future in the same sense that decisions of cases are in common law
• It may be used as a guide but the court is not bound by previous decisions

Problems Regarding Equity, Precedent and Common Law/Essay Notes

- Judges in ecclesiastical courts had discretion in equity law as they were not bound by
precedent --> Rule of Law
- Problem is that it makes it hard to challenge decisions that are made on discretion as
there is no basis for appeal or challenge - much like back in the day where it was
based on oral pleadings --> Could increase Access to Justice
- Equity is determined according to conscience --> but judicial not personal conscience
• Problematic as conscience does not hold up against a reliable signpost or
framework - makes it difficult to ensure consistency.
- Harris v Digital Pulse Pty Ltd - highlights that there is still confusion as to the
relationship between law and equity, but deemed that it should not overlap
- David Morgan: "Law is developing a single category of civil wrongs, whether arising
in equity or common law" --> highlights there's a natural merge5
- David Morgan: "exemplary damages as a recent development in equity is aprt of the
inevitable mingling that has occurred"

5Harris v Digital Pulse: The Availability of Exemplary Damages in Equity (2003) 29(2) Monash
University Law Review 377
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Statutory Interpretation
- Volumes of statutes have been gradually developed and increased over time,
meaning our society is being more and more regulated by statute.

Parliament in Action: How a bill goes through parliament

1. Idea is developed, drafted into a bill before first/second readings and speech.
2. Debate on bill occurs before Chair of Committees amends, reviews or rejects bill
3. Vote then occurs - if it passes there is a third reading before a final vote happens
4. Progresses to senate - two readings before committee reviews and then vote
5. Third Reading takes place and a final vote is made
6. If bill passes Senate, the Governor General gives Royal Assent before it is an act
Notes:
- If the bill is passed in the Senate with amendments, the Senate and the House of Reps
must reach an agreement on the amendments.
• Failure to agree means the bill is set aside or put to a referendum
- Commencement varies among jurisdictions - in AUS legislation comes into force 28
days after receiving royal assent

Classification of Statutes
Public and Private
- Most statutes are Public Acts are intended to operate on the public at large.
- Private Acts must include a provision establishing it as a private act - very rare.

Subordinate or Delegated Legislation

- Acts which contain authority for another body to make delegated legislation:
- Ordinances: laws made for territories
- By-laws: made by municipal councils
- Rules: dealing with the administration of government departments
- Regulations: General laws made through the Governor-General in Cabinet
- While it is not considered statute, the supreme and High Court have common law
power to review delegated legislation.

Codes and Consolidated Statutes

- Codes: incorporates not only the legislation by also the common law so that the code
now exhaustively states the law for that subject area.
- Consolidated statute brings together a number of statutes that cover the same
subject. This repeals the existing legislation and replaces with law

Structure of an Act
- All statutes in Australia have a similar structure:
- Long Title: states the purpose of an act
- Short Title: the title by which
- Sections: the body of the act which specifies the law (can be divided into parts and
divisions)

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The Relationship Between Common Law and Statute
- Due to parliamentary sovereignty, common law is overwritten by statute when there is
a conflict.
- However, judges interpret statutes according to strict rules of interpretation:

The Traditional Rules of Interpreting Statute

- The fundamental rule of interpretation is that the statute must be considered as a
whole, not just a specific extract. Courts must consider the intent of parliament.
- There are three general rules of interpretation:
1. Literal Rule: Interpretation according to the literal meaning of the words
• "The fundamental rule of interpretation is that a statute is to be expounded
according to the intent of the parliament that made it. "
• "This intent is only found by examining language used in the statute as a whole"
• Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 29
CLR 129, 161-2 (Higgins J)
2. Golden Rule: the court can modify the meaning produced under the literal rule if
the result would be absurd, repugnant, or inconsistent with rest of the legislation.
• Grey v Pearson (1857) 6 HL Case 61, 106 (Lord Wensleydale)
3. Mischief Rule (Purposive Approach): interpretation according to the intention
of parliament. This looks at the 'mischief' that the parliament was intending
prevent.
• Heydon's Case (1584) 3 Co Rep 7a
- There are also three specific rules:
1. Noscitur a sociis: words are limited by the context in which they appear.
2. 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 light of the
specific list
3. Expressio unius est exclusio alterius: an express reference to one matter
indicates that other matters are excluded.
• i.e. when someones salary is mentioned to include higher duty allowances, it
assumes that other allowances are excluded

Presumption of Interpretation
- There are a number of assumptions when interpreting statutes:
• Parliament does not interfere with fundamental rights (principle of legality)
• Parliament does not legislate extraterritorially
• Legislation does not bind the Crown
• Presumption that later laws impliedly repeal earlier laws
- Coco v The Queen (1994) 179 CLR 427
• Established that courts should not agree with mistakes in statutes that could
interfere with fundamental human rights. Any intentions should be clearly
manifested with unmistakeable and unambiguous language
• Brennan J in Re Bolton; Ex parte Beane: "Unless the Parliament makes
unmistakeable clear its intention to abrogate or suspend a fundamental freedom,
the courts will not construe a statute as having that operation"
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- Potter v Minahan (1908) 7 CLR 227
• Established that the legislature does not seek to overthrow fundamental principles,
infringe rights, or depart from the system of law without clearly expressing intent
• Established that while a literal approach should always be used, the purposive
approach could be used to consider the scope of the act; would the facts at hand
be considered within the overall intention of the act?
- Re Edith Haynes:
• Court used the literal approach and quotes "if the legislature desired that women
should be capable of being a practitioner, they should have done so in expressly" \
- Royal College of Nursing of the United Kingdom v Department of Health and
Social Security [1981] 1 All ER 545
• When trying to presume the intention of an act which is ambiguous, the 'mischief
rule' maybe used for a purposive approach to interpreting the act.
• Court must look to the context surrounding enactment of the act when
considering meaning.
• "It is necessary to have regard to the state of affairs existing, and known by
parliament to be existing at the time." (Lord Diplock)
- Teoh Case - established precedent that when there is ambiguity when interpreting
statute, treaties should be considered alongside it to clarify provisions.
- Kingston v Keprose
• First the grammatical meaning should be adopted - when there is ambiguity, the
mischief rule allows the court to use a purpose approach to "give effect to
legislative intention which the legislature cannot always foresee but must have the
intent to deal with."

The Statute of Interpretation: The Modern Approach

- Statute have been created to overrule the common law approaches to interpretation
- Such rules regarding interpretation narrow the notion of artificial reasoning.

Interpretation Act 1987 NSW

- S33: Says that a purposive approach and extrinsic materials should be used to
confirm the ordinary meaning of the text conveyed by the statute
- S34: Says Extrinsic Material can be used to determine the meaning of the provision
when:
• The provision is ambiguous or obscure
• The ordinary meaning conveyed by the text of the provision, taking into account its
context in the Act, and its purpose or underlying object, leads to an absurd result
or is unreasonable

Acts Interpretation Act 1901 (Cth)

- The aim of this act is to give effect to the intention or purpose of the Parliament and
now overrules the traditional approaches of Common Law
- S15AA: In the interpretation of a provision of an Act, a construction that would
promote the purpose or object underlying the Act shall be preferred to a construction
that would not promote that purpose or object

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