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LEGAL INSTITUTIONS COURSE OUTLINE

TOPIC 1

/ AN INTRODUCTION TO THE LAW AND ITS SOURCES

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

Essential Preliminary Reading

Please download the Introductory Weekend School Material available on the LEC Webcampus (Home > Course Materials> Legal Institutions > Lecture Notes Materials> Introductory Weekend School Materials) and make sure you are familiar with them PRIOR to the introductory weekend. However, in subsequent topics, you will need to use your legal research skills to locate many of the materials yourself.

Pepper Finance Corporation Ltd v Williams [2008] NSWSC 4

Merritt v Merritt [1970] 2 All ER 760

Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163

Required Readings

·  Laying Down the Law, Chapter 1, Chapter 6 (pp. 135-146) and Chapter 9 (pp. 285 – 291 and 301 – 305)

·  Australian Public Law, pp 9-11

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

Optional Readings

·  Gleeson, “The Role of a Judge in a Representative Democracy” speech given to the Judiciary of the Commonwealth of the Bahamas, 4 January 2008. This, and other articles referred to in Materials throughout the study guide, is available electronically through the Library. A number of important case extracts are also available electronically through the Library.

1.1  Difference between law and policy/law and opinion

·  Law as a technical exercise, requiring precise knowledge

·  Importance of always substantiating argument with legal sources

·  Distinction between law and policy and law and opinion

·  Pepper Finance Corporation Ltd v Williams [2008] NSWSC 4

1.2  Statute law

·  Importance of statutes

·  Parts of a statute

·  Reading simple statutes

·  How to cite and use statutes as authority

1.3  Case law

·  Case law is common law

·  Parts of a case

·  How to read a case

o  Distinguishing fact from law

o  Distinguishing ratio from obiter

o  Case reading review

o  Thornton v Shoe Lane Parking [1971] 2 QB 163 - example of setting aside previous ratio and development of new ratio

o  need to generalise ratio

o  writing case notes

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

·  A brief introduction to four major theories of law:

o  Natural law

o  Positivism

o  Common law

o  Legal realism

TOPIC 2

/ LEGAL RESEARCH

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

Required Readings

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

·  Laying Down the Law, Part 4

·  Nemes and Coss’ Effective Legal Research Held at Law Library at call number LAW 340.072 17 E

2.1  Review of research skills

·  Overview of research skills and tools

·  Difference between collaborative learning and plagiarism

·  Importance of footnoting, bibliography etc. and academic conventions with respect to referencing

2.2  Practical research skills

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

TOPIC 3

/ AUSTRALIAN LEGAL INSTITUTIONS

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

Required Readings

·  Laying Down the Law, pp 30-33 (2.17 – 2.20)

·  Australian Public Law, pp 20-25

3.1  Overview of legal institutions in New South Wales

·  Introduction to concept of separation of powers

·  Parliament

o  Upper House, Lower House and Crown

o  Extent of legislative power

·  Executive Government

o  Entities that comprise the executive

·  Courts

o  State and Federal hierarchies

3.2 Australia's legal heritage and implications of federation

·  Derivation of the Australian legal system

·  Legal consequences of federation

·  Division of powers

3.3 The nature and sources of constitutional law

·  What is a constitution?

·  Nature of the Australian and New South Wales constitutions

·  Comparison with unwritten constitution of the United Kingdom

·  Different focus of different constitutional documents (e.g. why a Bill of Rights in US Constitution, but not in Australian Constitution)

TOPIC 4

/ THE LEGAL PROFESSION

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

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

Required Readings

·  Laying Down the Law, Chapter 5

·  The Hon Sir Gerard Brennan, “The State of the Judicature” (1998) 72 ALJ 33

·  The Hon Sir Gerard Brennan, “Profession or Service Industry: the choice” Opening address Australian Bar Association Conference San Francisco 18-21 August 1996

·  Re Liveri [2006] QCA 152

Optional Readings

·  Susskind, R. Tomorrow’s Lawyers: An Introduction to Your Future (2017) Oxford University Press

·  Law Society of New South Wales – The FLIP (Future of Law and Innovation in the Profession) Report (2017)

·  Justice Debelle, “Judicial Independence and the Rule of Law” (2001) 75 ALJ 556

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

4.1 Brief History of the Legal Profession

4.2 What is a Profession?

·  The ‘Grand Bargain’

·  Admission to the Legal Profession

·  Ongoing obligations of Legal Professions – Regulatory and Ethical

4.3 The Professional Obligations of Solicitors and Barristers

·  Solicitor and Barrister Conduct Rules

·  Requirement of good fame and conduct

4.4 The Judiciary

4.5 The Future of the Legal Profession

·  Disruptors

·  Changes to Workplace

·  New Lawyers

TOPIC 5

/ INTRODUCTION TO LEGAL PROBLEM SOLVING

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

Required Readings

·  Class problem

·  State Government Insurance Commission v Trigwell (1979) 142 CLR 617 (Selected extracts, available via Library E Reserve)

Optional Readings

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

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

5.1  Classifications of law: private, public and commercial law

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

·  Private law: tort, contract, real property etc.

·  Commercial law: commercial transactions, law of associations etc.

·  National law and international law

·  The common law

o  and civil law

o  and statute

o  and equity

5.2  Overview of problem question

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

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

5.3  Overview of problem-solving methodology

·  I.R.A.C.

·  Discussion of “issue”, “application” and “advise”

·  Importance of integrated discussion

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

5.4 Using case law: Extended overview of contract law

·  Private law, based in case law

·  How do we know when a contract exists?

·  How do we know what is in a contract?

·  Introduction to problem solving using case law

5.5  Using Statutes: Introduction to Competition and Consumer Law

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

·  Overview of Competition and Consumer Act 2010 (NSW)

·  Consumer Guarantees – ss54, 55 Australian Consumer Law

·  Interaction of statutes with case law

·  ‘Old’ cases and ‘new’ law

·  Example of co-operative solution to constitutional limitations

·  Sources of legal rights – contract (private) and legislation (public)

5.6 Revisit problem question

·  Isolate all relevant issues

·  Identify relevant law

·  Apply law to the facts

·  Reach a conclusion

TOPIC 6

/ LEGAL REFERENCING

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

Required Readings

Stuhmcke, Legal Referencing Chapters 1, 3, 4, 5, 6 and 7.

Referencing primary materials: Stuhmcke, Legal Referencing Chapters 6 & 7

Referencing secondary materials: Stuhmcke, Legal Referencing Chapters 8, 9, 10, 11 and 12

6.1 Legal referencing

6.2 Using referencing to communicate effectively

·  Using referencing to improve legal writing

·  Knowing when to reference material

·  Appreciating your contribution to the discipline of law

·  Ask, check, use …tips for writing well and avoiding plagiarism

6.3 Citation style

·  Different citation styles

·  Citation of primary and secondary materials

6.4 Citation in legal writing

·  Citation in essays, problem questions and exams

·  Citation in other forms of legal assessment

·  When do I use case lists, tables of statutes and a bibliography?

TOPIC 7

/ STATUTORY INTERPRETATION

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

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

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

Required Readings

·  Laying Down the Law, (Interpretation of Legislation) Chapters 9, 10, 11 and 12

·  Laying Down the Law, (Doctrine of Precedent) – Chapters 6 and 8

Optional Readings

·  Western Australia’s Parliamentary Counsel’s Office “How to read legislation, a beginner’s guide” May 2011

·  Doyle v Maypole Bakery Pty Ltd [1981] 102 Tas.R 376

Legislation

·  Acts Interpretation Act1901 (Cth) ss 15AA, 15AB

·  Interpretation Act1987 (NSW) ss 33, 34

7.1 Interpretation of legislation

7.1.1 Importance of interpretation of legislation

7.1.2  Approaches to interpretation of legislation

·  Statutory approach

o  s 15AA Acts Interpretation Act1901(Cth)

o  s33 Interpretation Act1987(NSW)

o  Mills v Meeking(1990) 169 CLR 214

·  Common law approaches:

o  Literal

o  Golden

o  Purposive

·  Use of extrinsic materials

·  Common law

·  Statute

o  s 15AB Acts Interpretation Act 1901(Cth)

o  s34 Interpretation Act1987(NSW)

7.1.3 Specific rules/canons of construction

·  Maxims of interpretation:

o  Noscitur a sociis – the meaning of a word or phrase is derived from its context

o  Ejusdem generis – where words of a particular meaning are followed by words of a general meaning, the general words are limited to the same kind as the particular words

·  Presumptions of interpretation

7.1.4 Judicial interpretation of statutes

7.2 Doctrine of precedent

7.2.1  Development and purpose of doctrine

·  Stare decisis

·  Hierarchical structure of courts

7.2.2  Rules of precedent

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

·  The highest court in a judicial hierarchy can overrule its previous decisions

·  A judge does not have to follow the decisions of other judges at the same level in the same judicial hierarchy

·  A decision of a court in a different hierarchy may be of considerable weight but will not be binding

·  Only the ratio decidendi (the judge’s decision on the material facts) of a case is considered binding

·  Obiter dicta, although not binding, may be very persuasive

·  Precedents are not necessarily abrogated by lapse of time – e.g.Pinnel’s case(1602) 5 Co Rep 117

7.3  Statutory interpretation problems

Problems in text

7.3.1  Long problem question

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

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

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

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

The Act includes the following provisions:

Possession of weapons on ships

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

Diversion of Ship

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

Obligation to issue licences

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

Appointment of Registrar of Ship Protection Officers

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