Laying Down the Law, 11th Edition [11 ed.] 9780409351934

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Laying Down the Law

Copyright © 2020. LexisNexis Butterworths. All rights reserved.

Eleventh edition

Creyke, Robin, et al. Laying down the Law, LexisNexis Butterworths, 2020. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6413182. Created from monash on 2021-02-01 22:26:48.

Contents Preface Table of Cases Table of Statutes Table of Exercises

Part 1: Introduction Chapter 1: Laying the Foundations Introduction Why study law Legal systems The civil law The common law Categories of law Technical language

xiii xvii xxix xliii

1 3 5 6 6 9 10 13 14

Copyright © 2020. LexisNexis Butterworths. All rights reserved.

Chapter 2: The Origins and Historical Development of the Australian Legal System 17 Introduction Roots of English law Reform of court procedure in the 19th century Foundations of modern constitutionalism The foundation of the Australian legal system Evolution of an independent legislature Development of judicial independence Continuing connection with English law The path to constitutional independence

Chapter 3: The Australian Legal System Introduction Origins and institutions Key constitutional principles Australian legal institutions

20 21 28 29 36 40 42 44 46

53 55 55 57 60

Creyke, Robin, et al. Laying down the Law, LexisNexis Butterworths, 2020. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6413182. Created from monash on 2021-02-01 22:27:08.

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LAYING DOWN THE LAW

International law Human rights law in Australia

67 71

Chapter 4: First Nations Australians and the Australian Legal System 81 Introduction Native title First Nations Australians and the criminal justice system Northern Territory Intervention First Nations Australians and the Australian Constitution

Chapter 5: The Legal Profession and Professional Legal Practice and Ethics

83 83 93 105 111

119

Introduction Legal profession Understanding and practising law Professional conduct Ethics Conclusion

Copyright © 2020. LexisNexis Butterworths. All rights reserved.

Chapter 6: Going to Law: Legal Dispute Resolution Processes

122 122 125 131 136 142

145

Introduction Overview of legal process The adversarial trial Finality and appeals Costs, delays and access to justice Distinction between matters of fact and matters of law

147 147 151 156 161 169

Part 2: Sources of Law: Case Law

173

Chapter 7: Case Law and Precedent

175

Introduction Reading and analysing a case Doctrine of precedent or stare decisis Judicial law-making Law reporting

Chapter 8: Precedent in Australian Courts

177 179 193 218 228

233

Introduction The High Court of Australia Other Australian courts Court hierarchies in the federal system

vi

Creyke, Robin, et al. Laying down the Law, LexisNexis Butterworths, 2020. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6413182. Created from monash on 2021-02-01 22:27:08.

235 235 244 251

CONTENTS

Overview of the doctrine of precedent in Australian courts Issues on the margins of the doctrine of precedent

266 266

Part 3: Sources of Law: Legislation

283

Chapter 9: Legislation Introduction Historical development Terminology Differences between legislation and case law Legislation takes precedence over case law Making statutes The legislative process Financial scrutiny of legislation Legislation: frequently asked questions Commencement of statutes Amendment and repeal of statutes Formal structure of a statute Legislative dictionaries — interpretation statutes Drafting statutes Different types of statutes Particular forms of legislation in the Australian territories Delegated legislation

Copyright © 2020. LexisNexis Butterworths. All rights reserved.

Chapter 10: Approaches to Interpretation of Legislation Introduction Summary of principles The goal of interpretation Common law approaches Purposive approach under legislation Context: the modern approach to interpretation

Chapter 11: Extrinsic Aids to Interpretation of Legislation Introduction Summary of principles Use of extrinsic materials at common law Use of extrinsic materials under statute

Chapter 12: Interpretation of Legislation in Context Introduction Summary of principles

285 289 289 290 290 292 293 293 295 296 296 302 305 316 320 322 326 328

337 339 341 342 342 351 356

365 367 367 368 374

385 387 387

Creyke, Robin, et al. Laying down the Law, LexisNexis Butterworths, 2020. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6413182. Created from monash on 2021-02-01 22:27:08.

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LAYING DOWN THE LAW

Interpretation with reference to accompanying words Interpretation with reference to punctuation All words are assumed to carry meaning Interpretation with reference to other parts of the legislation Consistent use of words is assumed Express mention of something may draw attention to the intended absence of something else General provisions do not override specific provisions Interpretation legislation Dictionaries may be consulted Words should be interpreted in accordance with their current meaning Provisions may be interpreted with reference to other legislation Provisions may be interpreted with reference to the audience Provisions may be interpreted with reference to prior or existing law

388 390 391 392 399 399 401 401 402 402 403 405 406

Chapter 13: Presumptions Used in the Interpretation of Legislation 413

Copyright © 2020. LexisNexis Butterworths. All rights reserved.

Introduction Summary of principles Presumptions of interpretation and a common law Bill of Rights Presumption that Parliament does not interfere with common law rights Presumption that statutes do not operate retrospectively Presumption that Parliament does not abrogate the privilege against self-incrimination Presumption that Parliament does not abrogate legal professional privilege Presumption that Parliament does not deprive people of access to the courts Presumption that penal provisions are construed strictly and beneficial provisions construed broadly Presumption that property rights are not taken away without compensation Presumption that re-enactment constitutes approval of previous judicial interpretation Presumption that legislation does not bind the Crown Presumption that legislation does not have extraterritorial effect Presumption that Parliament intends to legislate in conformity with international law

Chapter 14: Statutory Obligations and Discretions

415 415 416 419 424 427 428 429 429 430 432 434 435 436

441

Introduction Summary of principles How to determine whether a provision is obligatory or discretionary How to determine whether breach produces invalidity

Chapter 15: Applying Legislation to Complex Problems

443 443 444 448

455

Introduction

viii

Creyke, Robin, et al. Laying down the Law, LexisNexis Butterworths, 2020. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6413182. Created from monash on 2021-02-01 22:27:08.

457

CONTENTS

Practical guide to interpretation of legislation Interpreting the Wild Dog Destruction Act: question and answer

Part 4: Legal Research Chapter 16: Legal Research — Approaches and Steps Introduction Why legal research skills are important Goals and constraints Strategic approach to legal research Finding sources of legal information Legal research exercises

Chapter 17: Searching for Secondary Sources Introduction Strategies and steps Online legal research Textbooks Legal dictionaries Legal encyclopedias Journal articles Other sources of commentary

Copyright © 2020. LexisNexis Butterworths. All rights reserved.

Chapter 18: Searching for Case Law Introduction Researching case law: key tasks Researching case law: how to perform the key tasks Finding case law on a particular subject: principal research tools Finding case citations Finding full - text judgments Finding judicial consideration of cases Finding cases referring to specific legislation Finding cases defining legal words and phrases Finding case notes Guide to using CaseBase Guide to using FirstPoint

Chapter 19: Searching for Legislation Introduction Acts and delegated legislation Finding known Acts and delegated legislation

457 458

465 467 469 469 470 471 478 479

485 487 487 488 495 495 496 498 501

505 508 508 512 513 517 518 519 520 520 521 521 522

525 527 528 528

Creyke, Robin, et al. Laying down the Law, LexisNexis Butterworths, 2020. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6413182. Created from monash on 2021-02-01 22:27:08.

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LAYING DOWN THE LAW

Tracking the history of Acts and delegated legislation How to use the Federal Register of Legislation Finding legislation by topic Finding judicial consideration of legislation Finding commentary about legislation Finding extrinsic materials How to use the Parliament of Australia: Bills and Legislation website (F)

Part 5: Legal Writing, Study and Exam Skills Chapter 20: Legal Writing

531 531 533 534 535 535 537

541 543

Introduction General principles of good legal writing Specific principles of good legal writing Writing conventions Legal essay writing

Chapter 21: Referencing and Citation

545 547 552 557 560

565

Copyright © 2020. LexisNexis Butterworths. All rights reserved.

Introduction Conventions in legal citation What sources should be referenced and when? Subsequent references Citing cases Citing statutes Citing books Citing legal journals Citing newspapers, magazines and non-legal periodicals Citing material from the internet Citing parliamentary and government material Citing foreign material

Chapter 22: Study and Exam Skills

568 569 569 571 572 578 581 582 583 584 584 585

587

Introduction What are study skills? Organising study time Reading efficiently Taking notes and making the most of lectures Participating in seminars and tutorials Engaging outside of the classroom Finding the right study methods Critical thinking

x

Creyke, Robin, et al. Laying down the Law, LexisNexis Butterworths, 2020. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6413182. Created from monash on 2021-02-01 22:27:08.

589 590 590 591 591 592 593 594 595

CONTENTS

What are exam skills? Exam preparation In the examination

Part 6: The Essential Legal Toolkit A. Court Hierarchies Federal hierarchy State courts and tribunals Territory courts and tribunals British courts and tribunals Canadian courts and tribunals New Zealand courts and tribunals US courts and tribunals

607 609 609 612 616 617 618 619 620

B. Abbreviations of Commonly Used Law Reports

622

C. A Guide to Law Reports of Courts

625

Australian report series English report series Canadian report series New Zealand report series United States report series International report series

Copyright © 2020. LexisNexis Butterworths. All rights reserved.

597 597 601

625 628 629 629 630 630

D. Common Legal Abbreviations

631

E. Commonly Misspelt or Misused Words

635

F. Glossary

636

Index

643

Creyke, Robin, et al. Laying down the Law, LexisNexis Butterworths, 2020. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6413182. Created from monash on 2021-02-01 22:27:08.

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Preface The year 2020 marks the 35th year since the first publication of Laying Down the Law, now in its 11th edition. The longevity of this introductory law text is testament to a number of its features. Primary among these is the understanding its readers gain of the legal system in Australia. The law is a pillar of a civilised society; it shapes and is shaped by the society in which it operates and is, in turn, a product of its history and its institutions. In Australia, that inheritance comprised a common law legal system and a democratic and parliamentary system of government. The inherited law and those political and legal institutions, developed over a millennium, needed adaptation to this land, some 20,000 kilometres from the model of law and government in 18th-century Britain. Laying Down the Law charts the evolution of those changes since European settlement and the gradual reconciliation of that introduced system with the existing legal and cultural systems of Australia’s indigenous peoples. From these beginnings emerged a federal system of parliaments and executive government to make laws, the establishment of a multi-tiered system of courts and tribunals to interpret and apply those laws, and a complex and sophisticated regulatory system to develop standards and maintain a watchful eye over the operations of its institutions. Laying Down the Law provides a succinct account of that history and of those institutions. From its inception, the text has taken account of the need to efficiently introduce students of law to the knowledge and the skills needed to navigate their legal studies.This involves inculcating key substantive and procedural principles of the common law system, such as the doctrine of precedent which ensures consistency within the hierarchy of Australian courts, and to the processes that protect the less advantaged within the criminal justice system. The text also includes exercises to enable students to test their knowledge and to practise the skills they are taught. The law’s edicts are imposed through words. The meanings of words are not immutable and change with context and as societies change. For this reason, Laying Down the Law gives prominence to the principles developed by courts and tribunals for the interpretation of words encountered in legislation and other documents. A student of law needs to understand this background and appreciate that subtlety of language in order to choose an appropriate meaning in the context of the legal problem they face. Elucidating meaning and understanding context entails good research skills. The text is fortunate to have among its authors professional librarians trained to share those skills. In particular, Patrick O’Mara contributed the research chapters which are a feature of the text, with the invaluable assistance of Lesley Adukonu, Law Liaison Librarian at the Australian Catholic University.

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Other features contributing to the value of this text are the continuing support and enthusiasm shown by those involved in its production. That support has been maintained during the decades by its publisher, LexisNexis, from its long-standing and dedicated commissioning editor, Jocelyn Holmes, and the skilful editing and insightful suggestions for improvement by its editor, Linda Nix. Together with the input of the authors, they ensure that Laying Down the Law accurately represents current law, and remains relevant to the law as it applies within Australia. This edition marks another milestone with the departure of Robin Creyke, the only remaining author from those involved in the first and earlier editions. Under the able and enthusiastic input of the authorial team, the text will continue to instil those skills and understandings of the law that will provide guidance to its readers during their law studies and thereafter, whether they join the legal profession or find other callings or occupations. We trust that gaining this knowledge and skills will develop our readers’ judgement, and enable them to become contributing and valued members of the society in which they live.

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Robin Creyke David Hamer Patrick O’Mara Belinda Smith Tristan Taylor

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Introduction

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LAYING DOWN THE LAW

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Table of Cases References are to paragraph numbers

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1412960 (Migration), Re [2016] AATA 4193 …. 8.69 A A v Boulton (2004) 136 FCR 420 …. 13.19 Abdi v Release on Licence Board (1987) 10 NSWLR 294 …. 12.35 Abebe v Commonwealth (1999) 197 CLR 510 …. 2.65 Adler v George [1964] 2 QB 7 …. 10.13 AGS [2015] QCATA 189 …. 8.66 AJ v Western Australia (2007) 177 A Crim R 247 …. 21.19 Akiba v Commonwealth (2013) 250 CLR 209 …. 4.10, 4.12, 4.13, 4.15 Alberts v Pethick (Appeal No 19 of 1976) …. 7.12 Alcan Australia Ltd, Re; Ex parte Federation of Industrial Manufacturing and Engineering Employees (1994) 181 CLR 96 …. 13.28 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 …. 10.6, 10.8, 10.21, 11.17, 11.18, 13.22 Alcoa Portland Aluminium Pty Ltd v Victorian WorkCover Authority (2007) 18 VR 146 …. 11.29 Alfonso v Northern Territory (1999) 13 NTR 8 …. 12.33 Algama v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 253 …. 8.55 Al-Kateb v Godwin (2004) 219 CLR 562 …. 12.39, 13.1, 13.10 Alqudsi v The Queen (2016) 258 CLR 203 …. 8.11, 8.12 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 …. 10.6, 10.8, 12.11, 12.12, 21.22 Amatek Ltd v Googoorewon Pty Ltd (1993) 176 CLR 471 …. 12.14 Anglican Care v NSW Nurses and Midwives Association (2015) 231 FCR 316 …. 10.20 Antico v Heath Fielding Australia Pty Limited (1997) 188 CLR 652 …. 8.25 Anti-Doping Rule Violation Panel v XZTT (2013) 214 FCR 40 …. 12.16 Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 …. 11.10

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Application of Holland [2008] NSWSC 251 …. 6.35 Applications of Shephard, Re [1983] 1 NSWLR 96 …. 9.38 Ashford v Thornton (1819) 1 B & Ald 405; 106 ER 149 …. 2.17 Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436 …. 11.12, 12.15 — v Sillem (1864) 10 HLC 704; 11 ER 1200 …. 13.16 Attorney-General, Ex parte; Truth & Sportsman Ltd, Re [1961] SR (NSW) 484 …. 7.30, 7.31 Attorney-General (NSW) v Brewery Employés Union of New South Wales (1908) 6 CLR 469 …. 12.38 — v Mundey [1972] 2 NSWLR 887 …. 7.30 — v XX (2018) 274 A Crim R 30 …. 6.31 Attorney-General (NT) v Hand (1989) 25 FCR 345 …. 4.49 Attorney General of New South Wales v Melco Resorts & Entertainment Ltd [2020] NSWCA 40 …. 11.18 Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1987) 10 NSWLR 86 …. 5.31 Austin v Keele (1987) 61 ALJR 605 …. 2.75 Australian Capital Television v Commonwealth (1992) 177 CLR 106 …. 3.45 Australian Communist Party v Commonwealth (1951) 83 CLR 1 …. 3.6, 3.47 Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1 …. 10.21, 11.24 — v General Manager of Fair Work Australia (2012) 246 CLR 117 …. 9.31 Australian Federation of Construction Contractors, Re; Ex parte Billing (1986) 68 ALR 416 …. 11.21 Australian Oil Refining Pty Ltd v Caltex Oil (Australia) Pty Ltd (Supreme Court of New South Wales,Yeldham J, 26 September 1986) …. 8.79 Australian Postal Corporation v Sinnaiah (2013) 213 FCR 448 …. 10.21 Australian Prudential Regulation Authority v Holloway (2000) 104 FCR 521 …. 12.18

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Australian Safeway Stores v Zaluzna (1987) 162 CLR 479 …. 7.61 Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 …. 8.43, 8.45, 8.47, 8.50, 9.70, 12.35 Australian Steel Company (Operations) Pty Ltd v Lewis (2000) 109 FCR 33 …. 8.22 Avel Pty Ltd v Attorney-General (NSW) (1987) 11 NSWLR 126 …. 10.15, 10.21 Awada v Linkarf Ltd (in liq) (2002) 55 NSWLR 745 …. 12.18 AZAFX v Federal Circuit Court of Australia (2016) 244 FCR 401 …. 8.19

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B B, Re [1981] 2 NSWLR 372 …. 5.19 Babaniaris v Lutony Fashions Pty Ltd (1987) 163 CLR 1 …. 8.7, 8.56, 8.65 Baini v the Queen (2012) 246 CLR 469 …. 13.27 Baker v The Queen [1975] AC 774 …. 8.55 Banjima People v Western Australia (2015) 231 FCR 456 …. 4.11 Bank Line v Capel [1919] AC 435 …. 7.50 Barclay v Penberthy (2012) 246 CLR 258 …. 8.80 Barker v The Queen (1983) 153 CLR 338 …. 11.6 Barns v Barns (2003) 214 CLR 169 …. 8.77 Barrell, Ex parte (1875) LR 10 Ch 512 …. 7.50 Barry R Liggins Pty Ltd v Comptroller-General of Customs (1991) 32 FCR 112 …. 11.30 Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 …. 12.25 Battaglini v Interfren Pty Ltd (1989) 16 NSWLR 378 …. 13.21 Beaudesert Shire Council v Smith (1966) 120 CLR 145 …. 7.61 Beckwith v The Queen (1976) 135 CLR 569 …. 13.21 Bell Lawyers Pty Ltd v Pentelow (2019) 372 ALR 555 …. 7.25 Bennell v Western Australia (2006) 153 FCR 120; 230 ALR 603 …. 4.19 Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292 …. 10.30, 10.31, 10.32, 10.33 BHP Billiton Iron Ore Pty Ltd v National Competition Council (2009) 162 FCR 234 …. 8.52, 8.56 Binskin v Kangaroo Transport Pty Ltd (Supreme Court of New South Wales, Maxwell J, 22 May 1990) …. 8.62 Birch v Allen (1942) 65 CLR 621 …. 12.13 Bodney v Bennell (2008) 167 FCR 84 …. 4.11, 4.19 Bolton, Re; Ex parte Beane (1987) 162 CLR 514 …. 11.24 Booth v Federal Commissioner of Taxation (1986) 86 ATC 4049 …. 12.27 Bowtell v Goldsbrough, Mort & Co Ltd (1905) 3 CLR 444 …. 12.15

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Bradley v Commonwealth (1973) 128 CLR 557 …. 12.20 Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 …. 9.10 Brennan v Comcare (1994) 50 FCR 555 …. 11.23 Briginshaw v Briginshaw (1938) 60 CLR 336 …. 6.28 Broadbridge v Stammers (1987) 16 FCR 296 …. 14.9 Brodie v Singleton Shire Council (2001) 206 CLR 512 …. 7.61, 8.5 Brooks v Federal Commissioner of Taxation (2000) 100 FCR 117 …. 12.22 Bropho v Western Australia (1990) 171 CLR 1 …. 13.11, 13.32, 13.33 Brunner v Greenslade [1971] Ch 993 …. 7.47, 7.52 Buckle v Bayswater Road Board (1936) 57 CLR 259 …. 7.61, 8.5 Bugmy v The Queen (2013) 249 CLR 571 …. 4.35, 4.50 Building Construction Employees and Builders’ Labourers Federation of New South Wales v Minister for Industrial Relations (1986) 7 NSWLR 372 …. 3.27 Burch v South Australia (1998) 71 SASR 12 …. 8.71, 10.24 Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 …. 7.61 Burns v Corbett (2018) 92 ALJR 423 …. 3.26 C Cakmak v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 135 FCR 183 …. 8.28 CAL No 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 390 …. 8.42, 8.43 Calder v Boyne Smelters Ltd [1991] 1 Qd R 325 …. 8.22 Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256 …. 21.18 Carr v Western Australia (2007) 232 CLR 138 …. 10.21, 10.32 Case of Proclamations (1611) 12 Co Rep 74; 77 ER 1352 …. 2.37 Case of Prohibitions del Roy (1607) 12 Co Rep 63; 77 ER 1342 …. 2.37 Case of Ship Money (1637) 3 How St Tr 825 …. 2.39, 2.41 Casey v Alcock (2009) 165 ACTR 1 …. 10.22 Cattanach v Melchior (2003) 215 CLR 1 …. 7.55, 7.61 Caughey v Spacek [1968] VR 600 …. 7.12 Cavalier v Pope [1906] AC 428 …. 7.34, 8.88 Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130 …. 7.51 Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378 …. 11.19 CES v Super Clinics (Australia) Pty Ltd (1995) 38 NSWLR 47 …. 7.40 B =E I C I

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TABLE OF CASES

Chamberlain v The Queen (1983) 72 FLR 1 …. 8.28 Chandler v Webster [1904] 1 KB 493 …. 7.50 Chester v Council of the Municipality of Waverley (1939) 62 CLR 1 …. 7.44 Chew v The Queen (1992) 173 CLR 626 …. 13.21, 15.3 Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2001) 188 ALR 493 …. 21.15 Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 …. 13.36 Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 …. 10.18 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 …. 10.26, 10.28, 11.12, 11.13, 11.15, 11.16, 11.17, 11.18, 11.19, 12.2, 12.18, 12.39 Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86 …. 8.22 Clyne v East (1967) 68 SR (NSW) 385 …. 3.27 Coco v The Queen (1994) 179 CLR 427 …. 13.11, 13.18, 13.24 Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 …. 6.53 Coffs Harbour and District Local Aboriginal Land Council v Lynwood [2017] NSWCA 317 …. 14.6 Coggs v Barnard (1703) 2 Ld Raym 909; 92 ER 107 …. 7 (n 1) Cohen v Sellar [1926] 1 KB 536 …. 7.50, 16.9, 16.13 Cole v South Tweed Heads Rugby League Football Club Ltd (2002) 55 NSWLR 113 …. 8.42 — v — (2004) 217 CLR 469 …. 8.42, 18.40 — v Whitfield (1988) 165 CLR 360 …. 11.7 Coleman v Power (2004) 220 CLR 1 …. 7.25, 13.36 Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389; [1996] HCA 36 …. 6.56, 6.57, 6.58, 10.32, 12.37 — v Pozzolanic (1993) 43 FCR 280 …. 6.57, 6.58 Collins, Re; Ex parte Hockings (1989) 167 CLR 522 …. 12.9 Colquhoun v Brooks (1888) 21 QBD 52 …. 12.25 Commercial Banking Co of Sydney Ltd v Federal Commissioner of Taxation (1983) 14 ATR 142 …. 8.44 Commissioner for Prices and Consumer Affairs (SA) v Charles Moore (Aust) Pty Ltd (1977) 139 CLR 449 …. 11.5 Commissioner of Australian Federal Police v Curran (1984) 3 FCR 240 …. 11.21 Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234 …. 8.66

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Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719 …. 12.34 Commissioner of State Revenue v EHL Burgess Properties Pty Ltd [2015] VSCA 269 …. 10.28 Commissioner of Taxation (Cth) v Whitfords Beach Pty Ltd (1982) 150 CLR 355 …. 11.5 Commonwealth v Australian Capital Territory (2013) 250 CLR 441 …. 3.20, 9.9 — v Baume (1905) 2 CLR 405 …. 12.10 — v Hospital Contribution Fund (1982) 150 CLR 49 …. 8.3, 8.7 — v Tasmania (1983) 158 CLR 1 …. 3.6, 3.36, 4.60, 21.22 — v Verwayen (1990) 170 CLR 394 …. 5.33 — v Western Australia (1999) 196 CLR 392 …. 21.25 — v Yarmirr (2001) 208 CLR 1 …. 2.1 Commonwealth Bank of Australia v Paola [2005] FCA 855 …. 7.26 Conigrave v Tanner [1978] WAR 225 …. 12.9 Construction, Forestry, Mining and Energy Union v Hodgkiss (2007) 169 FCR 151 …. 12.26 Cook v Cook (1986) 162 CLR 376 …. 7.61, 8.6, 8.80, 8.83, 8.88, 8.89 Cooper v Stuart (1889) 14 App Cas 286 …. 2.57, 4.3 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 …. 10.25, 11.12 Crafter v Kelly [1941] SASR 237 …. 13.18 Crampton v The Queen (2000) 206 CLR 161 …. 6.29, 6.30 CSR Ltd v Eddy (2005) 226 CLR 1 …. 7.25, 8.53 CTM v The Queen (2008) 236 CLR 440 …. 7.48 Culleton, Re [2017] HCA 3 …. 21.25 Curran v Federal Commissioner of Taxation (1974) 131 CLR 409 …. 8.7, 8.8 D D & R Henderson (Mfg) Pty Ltd v Collector of Customs for New South Wales (1974) 48 ALJR 132 …. 11.9 Daly v Thiering (2013) 249 CLR 381 …. 13.13 Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 …. 13.19 Darkinjung Pty Ltd v Darkinjung Local Aboriginal Land Council [2006] NSWSC 1217 …. 7.52 Department of Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 …. 8.21 Deputy Commissioner of Taxation v Clark (2003) 57 NSWLR 113 …. 12.5, 12.7, 12.31, 12.39 — v Dick (2007) 226 FLR 388 …. 12.5 — v Levick (1999) 168 ALR 383 …. 6.40 DG and the Adoption Act 2000, Re (2007) 244 ALR 195 …. 10.31 Dickenson’s Arcade Pty Ltd v Tasmania (1974) 130 CLR 177 …. 7.34 B 0=E I C

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31,

xix

LAYING DOWN THE LAW

Dietrich v The Queen (1992) 177 CLR 292 …. 3.45, 5.9, 6.20, 6.26, 6.39 Director General Department of Land and Water Conservation v Bailey (2003) 136 LGERA 242 …. 6.58 Director of Public Prosecutions v Chatters (2011) 21 Tas R 26 …. 8.49 — v Smith [1961] AC 290 …. 8.86 Director of Public Prosecutions (Cth) v Saxon (1992) 28 NSWLR 263 …. 5.32 Director of Public Prosecutions for Northern Ireland v Lynch [1975] AC 653 …. 8.89 Director of Public Prosecutions (Vic) v Ali (2009) 23 VR 203 …. 10.20 — v Leys (2012) 44 VR 1 …. 10.9, 10.26, 10.30, 10.31, 10.32, 10.33, 10.34 — v Patrick Stevedores Holdings Pty Ltd (2012) 41 VR 81 …. 8.56 Donoghue v Stevenson [1932] AC 562 …. 2.59, 7.4, 7.5, 7.27, 7.61, 8.84, 8.88, 20.37, 21.17 D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 …. 2.59, 8.89 Dr Bonham’s Case (1610) 8 Co Rep 107a; 77 ER 638 …. 2.38 Dugan v Mirror Newspapers Ltd (1979) 142 CLR 583 …. 12.20 Duke v Reliance Systems Ltd [1987] 2 All ER 858 …. 8.53 Dunkerley v Comcare [2020] FCAFC 8 …. 5.36 Dupas v The Queen (2012) 40 VR 182 …. 8.38, 8.58 Durham Holdings Pty Ltd v New South Wales (1999) 47 NSWLR 340 …. 13.7, 13.25 — v — (2001) 205 CLR 399 …. 13.25 Dutton v O’Shane [2002] NSWSC 1086 …. 8.40

0

PIA?

Q

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E Earl of Oxford’s Case, The (1615) 1 Ch Rep 1; 21 ER 485 …. 2.21 East End Real Estate Pty Limited v CE Heath Casualty & General Insurance Limited (1991) 25 NSWLR 400 …. 8.25 Eastman v Director of Public Prosecutions (ACT) [No 2] [2014] ACTSCFC 2 …. 6.33 Einfeld v HIH Casualty and General Insurance Ltd (1999) 152 FLR 211 …. 8.25, 8.34, 8.38, 8.60 El Greco (Australia) Pty Ltd v Mediterranean Shipping Co SA (2004) 140 FCR 296 …. 11.9 Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309 …. 13.13 Elias v The Queen (2013) 248 CLR 483 …. 4.35 Empire Waste Pty Ltd v District Court of New South Wales (2013) 86 NSWLR 142 …. 11.24 Endeavour Foundation v Weaver [2014] QCA 6 …. 21.16 Entick v Carrington (1765) 2 Wils 275 …. 13.11 Enzed Holdings Pty Ltd v Wynthea Pty Ltd (1984) 4 FCR 450 …. 11.9

xx

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Eslea Holdings Ltd v Butts (1986) 6 NSWLR 175 …. 7.47 Esmonds Motors Pty Ltd v Commonwealth (1970) 120 CLR 463 …. 9.80 Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 …. 8.4, 8.74 Evatt v Mutual Life & Citizens Assurance Co Ltd (No 1) (1967) 69 SR (NSW) 50 …. 21.29 Evda Nominees Pty Ltd v Victoria (1984) 154 CLR 311 …. 8.2 F F v R (1983) 33 SASR 189 …. 21.21 F, BV v Magistrates Court of South Australia (2013) 115 SASR 232 …. 10.20 Fagan v New South Wales [2004] NSWCA 182 …. 13.19 FAI General Insurance Company Ltd v Perry (1993) 30 NSWLR 89 …. 8.25 — v Australian Hospital Care Pty Ltd (1999) 153 FLR 448 …. 8.25 Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCAFC 69 …. 10.20 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 …. 7.52, 7.60, 8.35, 8.42, 8.43, 8.45, 8.46, 8.47, 8.50, 8.59 Federal Commissioner of Taxation v Salenger (1988) 19 FCR 378 …. 8.68 Federal Deputy Commissioner of Taxation v Clear Blue Developments Pty Ltd (No 2) (2010) 190 FCR 11 …. 5.36 Fencott v Muller (1983) 152 CLR 570 …. 8.32 Fernando v Commissioner of Police (1995) 36 NSWLR 567 …. 8.41 Field v Gent (1996) 67 SASR 123 …. 12.6 Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106 …. 14.7 Fish v Solution 6 Holdings Ltd (2006) 225 CLR 180 …. 13.20 Fisher v Bell [1961] 1 QB 394 …. 12.38, 12.39, 12.41 Flaherty v Girgis (1987) 162 CLR 574 …. 13.28 Fleming v The Queen (1998) 197 CLR 250 …. 6.29 Folbigg v The Queen [2007] NSWCCA 128 …. 6.30 Footscray City College v Ruzicka (2007) 16 VR 498 …. 10.11 Fordham v Brideson [1986] VR 587 …. 12.29 Foster, Re (1950) 50 SR (NSW) 149 …. 5.28 Frauenfelder v Reid (1963) 109 CLR 42 …. 12.20 G Gamser v Nominal Defendant (1977) 136 CLR 145 …. 6.30 Ganchov and Comcare, Re (1990) 11 AAR 468 …. 8.67 B =E I C I

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31,

TABLE OF CASES

0

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Q

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Gardenal-Williams v The Queen [1989] Tas R 62 …. 8.22 Gaynor v Attorney-General (NSW) [2020] NSWCA 48 …. 3.26, 6.43 Geelong Harbour Trust Commissioners v Gibbs Bright & Co (1974) 129 CLR 576 …. 13.28 General Merchandise and Apparel Group P/L and CEO of Customs and Australian Weaving (Party joined), Re (2009) 114 ALD 289; [2009] AATA 988 …. 5.34 Gerhardy v Brown (1985) 159 CLR 70 …. 4.55 Gett v Tabet (2009) 254 ALR 504 …. 8.56 Geyer v Downs (1977) 138 CLR 91 …. 18.40 Ghaidan v Godin-Mendoza [2004] 2 AC 557 …. 3.58 Giannarelli v Wraith (1988) 165 CLR 543 …. 5.38 Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 …. 13.13 Gilham v The Queen [2012] NSWCCA 131 …. 5.52 Goodwin v Phillips (1908) 7 CLR 1 …. 9.38 Gorringe v Transport Commission (Tas) (1950) 80 CLR 357 …. 7.61, 8.5 Gould v Brown (1998) 193 CLR 346 …. 7.42 Governor, Goulburn Correctional Centre, Re; Ex parte Eastman (1999) 200 CLR 322 …. 8.11 Grant v Downs (1976) 135 CLR 674 …. 8.4 Greentree v FAI General Insurance Co Limited (1998) 44 NSWLR 706 …. 8.25 Grey v Pearson (1857) 6 HL Cas 61; 10 ER 1216 …. 10.11, 10.35 Grigby v Oakes (1801) 2 Bos & Pul 526 …. 19 (n 1) Groenvelt v Burwell (1700) 1 Salk 144; 91 ER 134 …. 21.28 Gumana v Northern Territory (2007) 158 FCR 349 …. 13.13 H Ha v New South Wales (1997) 189 CLR 465 …. 8.16, 9.10 Hagan v Trustees of Toowoomba Sports Ground Trust [2000] FCA 1615 …. 12.18 Halliday v Nevill (1984) 155 CLR 1 …. 13.11 Halvorsen v Baumgartner [2014] WADC 129 …. 15.6 Hamilton Island Enterprises Pty Ltd v Commissioner of Taxation [1982] 1 NSWLR 113 …. 8.43 Harrison v Melhem (2008) 72 NSWLR 380 …. 8.22, 8.48, 10.21, 11.22, 11.24, 12.33, 13.13 — v Schipp (2002) 54 NSWLR 612 …. 6.29 Harriton v Stephens (2006) 226 CLR 52 …. 7.55, 7.61, 18.40 Hart v Rankin [1979] WAR 144 …. 7.8, 7.12, 21.19 Haurelink v Furler (2012) 6 ACTLR 151 …. 10.22 Hawi v The Queen [2014] NSWCCA 83 …. 6.21

0I=PB= 8 :AE = C 4 PAE? 0I= = I D D E E

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2:

Hawkins v Clayton (1986) 5 NSWLR 109 …. 8.79, 8.81 Hayes v Federal Commissioner of Taxation (1956) 96 CLR 47 …. 12.38 Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 …. 7.51 Helljay Investments Pty Ltd v Deputy Commissioner of Taxation (1999) 166 ALR 302 …. 6.40 Herbert Adams Pty Ltd v Federal Commissioner of Taxation (1932) 47 CLR 222 …. 12.37 Heydon’s Case (1584) 3 Co Rep 7a; 76 ER 637 …. 10.14, 10.17 Higgon v O’Dea [1962] WAR 140 …. 10.10, 10.13, 10.35 HIH Casualty and General Insurance Australia Limited v Dellavedova (1999) 10 ANZ Insurance Cases ¶61-431 …. 8.25 Hilton v Wells (1985) 157 CLR 57 …. 3.26 Horne v Chester and Fein Property Developments Pty Ltd [1987] VR 913 …. 8.89 Hospital Employees Pharmacists (State) Award, Re [1979] AR (NSW) 348 …. 7.22 House of Lords, Practice Statement (Judicial Precedent) [1966] 1 WLR 1234 …. 8.20 Howard v Bodington (1877) 2 PD 203 …. 14.9 Howarth v Adey [1996] 2 VR 535 …. 21.15 Howe v Smith (1884) 27 Ch D 89 …. 7.50 Hull v Australian Postal Corporation (2013) 62 AAR 94 …. 8.66 Humphries v Poljak [1992] 2 VR 129 …. 11.29 Hunter Resources Ltd v Melville (1988) 164 CLR 234 …. 11.24 Huon Valley Springs Pty Ltd, Re [1986] Tas R 112 …. 21.20 I IL v The Queen (2017) 262 CLR 268 …. 6.55 Imbree v McNeilly (2008) 236 CLR 510 …. 7.61, 8.6, 8.60 IMM v The Queen (2016) 257 CLR 300 …. 8.38 Imperial Chemical Industries of Australia & New Zealand Ltd v Commissioner of Taxation (Cth) (1971) 46 ALJR 35 …. 12.31 Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1 …. 10.28, 11.13, 11.14, 11.17 Informax International Pty Ltd v Clarius Group Ltd (2012) 207 FCR 298 …. 13.30 Inland Revenue Commissioners v Gittus [1920] 1 KB 563 …. 12.21 Isherwood v Butler Pollnow Pty Ltd (1986) 6 NSWLR 363 …. 10.28, 11.12 Iskra, Re; Ex parte Mercantile Trasnport Co Pty Ltd [1963] SR (NSW) 538 …. 13.34 J Jacobs v Davis [1917] 2 KB 532 …. 7.50 Jacobsen v Rogers (1995) 182 CLR 572 …. 13.32 B 0=E I C

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31,

xxi

LAYING DOWN THE LAW

James v Keogh (2008) 102 SASR 51 …. 10.31 Jeffreys v Lack 153 LT Newspaper 139 …. 7.50 Jemena Gas Networks (NSW) Ltd v Mine Subsidence Board (2011) 243 CLR 558 …. 13.25 John v Federal Commissioner of Taxation (1989) 166 CLR 417 …. 8.3, 8.4, 8.5, 8.6, 8.7, 8.8, 8.14, 8.60 Johnson v Dibbin [2018] NSWCATAP 45 …. 6.43, 8.65 Jones v Bartlett (2000) 205 CLR 166 …. 7.34, 8.88 — v National Coal Board [1957] 2 QB 55 …. 6.25 Joshua v Thomson (1994) 119 FLR 296 …. 4.42 Joyce v Paton (1941) 58 WN (NSW) 88 …. 12.20 JT International SA v Commonwealth (2012) 250 CLR 1 …. 13.26 Judiciary and Navigation Acts, Re (1921) 29 CLR 257 …. 21.22 Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309 …. 13.34

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Q

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I= =I =

K K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 …. 10.27, 11.12, 12.2, 12.14 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 …. 3.15, 3.49 Kalls Enterprises Pty Ltd (In liq) v Baloglow (2006) 58 ACSR 63 …. 7.52 Karpany v Dietman (2013) 252 CLR 507 …. 4.40 Kartinyeri v Commonwealth (1998) 195 CLR 337 …. 4.60, 4.62, 11.8 Katherine Prygodicz v Commonwealth of Australia (Federal Court of Australia, Murphy J, VID1252/2019) …. 5.14 KDSP v Minister for Immigration, Citizenship and Migrant Services [2020] FCAFC 108 …. 12.19 Kelly, Estate of (1983) 34 SASR 370 …. 11.6 Kennedy v The Queen [2010] NSWCCA 260 …. 4.35 Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286 …. 8.71 Kenny v South Australia (1987) 46 SASR 268 …. 5.32 Keramaniakis v Wagstaff [2005] NSWDC 14 …. 8.19 Kernn v Verran (1989) 88 ALR 125 …. 12.33 K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501 …. 11.7 King v Rowlings [1987] VR 20 …. 10.13 King-Ansell v Police [1979] 2 NZLR 531 …. 12.30 Kioa v West (1985) 159 CLR 550 …. 18.40 Kirk v Industrial Relations Commission of NSW (2010) 239 CLR 531 …. 6.43, 13.20 Kirmani v Captain Cook Cruises Pty Ltd [No 2] (1985) 159 CLR 461 …. 8.78 Knight v Raddie [2013] QMC 15 …. 8.63

xxii

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Kontikis v Schreiner (1989) 16 NSWLR 706 …. 7.10, 7.11 Koowarta v Bjelke-Petersen (1982) 153 CLR 168 …. 11.9 Kotsambasis v Singapore Airlines Ltd (1997) 42 NSWLR 110 …. 11.9 KP Welding Construction Ltd v Herbert (1995) 102 NTR 20 …. 10.14 Krell v Henry [1903] 2 KB 740 …. 7.50 Kruger v Commonwealth (1997) 190 CLR 1 …. 3.46, 4.61 Krysiak v Housing Authority [2019] WADC 162 …. 15.6 L Lacey v Attorney-General (Qld) (2011) 242 CLR 573 …. 11.24 Lake Macquarie Shire Council v Aberdare County Council (1970) 123 CLR 327 …. 12.31 Lam v Steve Jarvin Motors Pty Ltd [2016] NSWCATAP 186 …. 8.65 Lane v Morrison (2009) 239 CLR 230 …. 21.15 Lange v Australian Broadcasting Tribunal (1997) 189 CLR 520 …. 3.24 Langley v Langley [1974] 1 NSWLR 46 …. 7.43 Latoudis v Casey (1990) 170 CLR 534 …. 6.13 Lee v NSW Crime Commission (2003) 251 CLR 196 …. 6.19 Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22 …. 7.61 Lembecke v SAS Trustee Corporation (2003) 56 NSWLR 736 …. 11 (n 1) Life Savers (Australia) Ltd v Frigmobile Pty Ltd [1983] 1 NSWLR 431 …. 8.82 Lipohar v The Queen (1999) 200 CLR 485 …. 2.1, 8.35 Lister v Romford Ice and Cold Storage Co Ltd [1957] AC 555 …. 7.62 Littlejohn and Secretary, Department of Social Security, Re (1989) 10 AAR 220 …. 8.67 Lockyer v Simpson Mosely 298 …. 7.50 London Tramways Co v London County Council [1898] AC 375 …. 8.20 Love v Commonwealth; Thoms v Commonwealth (2020) 94 ALJR 198 …. 2.54, 4 (n 1), 4.26, 4.64, 4.68, 4.69 Lowe v The Queen (2015) 48 VR 351 …. 10.33, 10.34, 11.18 Lower and Comcare, Re (2003) 74 ALD 547 …. 7.47 Ludlam v Johnston [2014] HCA 1 …. 21.16 LVR (WA) Pty Ltd v Administrative Appeals Tribunal [2012] FCAFC 90 …. 5.37, 5.38 M Mabo v Queensland [No 2] (1992) 175 CLR 1 …. 3.38, 4.3, 4.4, 4.5, 4.6, 4.7, 4.8, 4.23, 4.24, 4.41, 4.64, 4.69, 7.63, 8.77, 17.15 Mackay v Dick (1881) 6 App Cas 251 …. 7.50 B =E I C I

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0

PIA?

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TABLE OF CASES

MacKinnon v The Iberia Shipping Co Ltd 1955 SC 20 …. 7.54 Magor and St Mellons Rural District Council v Newport Corporation [1952] AC 189 …. 12.39 Maisey, Marriage of (1980) 6 Fam LR 180 …. 8.30 Malika Holdings Pty Ltd v Stretton (2001) 204 CLR 290 …. 13.12, 13.13, 13.17 Mallard v The Queen (2005) 224 CLR 125 …. 5.50, 5.51 Maloney v The Queen (2013) 252 CLR 168 …. 4.47, 4.54, 4.55 Maritime Services Board of New South Wales v Posiden Navigation Inc [1982] 1 NSWLR 72 …. 10.17 Maritime Union of Australia v Minister for Immigration and Border Protection (2016) 259 CLR 431 …. 11.14 Maroondah City Council v Fletcher (2009) 169 LGERA 407 …. 12.10 Marshall v Director-General, Department of Transport (2001) 205 CLR 603 …. 8.48 Masters v McCubbery [1996] 1 VR 635 …. 11.29 Match Projects Pty Ltd and ARCCON (WA) Pty Ltd [2009] WASAT 134 …. 8.70 Matter of The Fourth South Melbourne Building Society (1883) 9 VLR (Eq) 54 …. 12.16 Maxwell v Murphy (1957) 96 CLR 261 …. 13.16 — v — (1959) 101 CLR 629 …. 9.31 McAuliffe v The Queen (1995) 183 CLR 108 …. 6.55 McBride v Monzie Pty Ltd (2007) 164 FCR 559 …. 7.47 McDonald and Secretary, Department of Family and Community Services, Re (2002) 70 ALD 761 …. 21.20 McGlade v Native Title Registrar [2017] FCAFC 10 …. 4.22 McGrath v Cooper [1976] VR 535 …. 7.12 McHale v Watson (1966) 115 CLR 199 …. 18.40 McLeod v The Queen [2017] UKPC 1 …. 2.76 McNamara v Consumer, Trader and Tenancy Tribunal (2005) 221 CLR 646 …. 8.8, 8.57 Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333 …. 5.27, 5.32, 5.50 Members of the Yorta Yorta Aboriginal Community v Victoria [1998] FCA 1606 …. 4.9 — v — (2001) 110 FCR 244 …. 4.9 — v — (2002) 214 CLR 422 …. 4.8, 4.9, 4.11, 4.14 Mid-City Skin Cancer and Laser Centre Pty Ltd v Zahedi-Anarak (2006) 67 NSWLR 569 …. 8.26 Miliangos v George Frank (Textiles) Ltd [1976] AC 443 …. 7.25, 8.53 Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 …. 4.3 Miller v Commonwealth (1904) 1 CLR 668 …. 10.20 — v Minister of Pensions [1947] 2 All ER 372 …. 6.28

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— v The Queen (2016) 259 CLR 380 …. 6.55 Mills v Meeking (1990) 169 CLR 214 …. 10.6, 10.14, 10.20 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 …. 21.23 Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298 …. 11.9, 11.30 Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 …. 6.48 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 …. 12.22, 13.36 Minister for Immigration and Multicultural Affairs, Re (2003) 201 ALR 437 …. 6.48 Minister for Mines (WA)/Taylor on behalf of the Njamal People/Mullan [1996] NNTTA 20 …. 4.19 Mitchell v Bailey (2008) 168 FCR 370 …. 10.21 MLC Assurance Co v Evatt [1971] AC 793 …. 21.29 Momcilovic v The Queen (2011) 245 CLR 1 …. 3.48, 3.59, 13.4 Montreal Street Railway Co v Normandin [1917] AC 170 …. 14.9 Moore v Moore [2008] FamCA 32 …. 8.29 Moorgate Tobacco Co Ltd v Philip Morris Ltd (1982) 64 FLR 387 …. 8.26 Morelle Ltd v Wakeling [1955] 2 QB 379 …. 8.53 Morrison v Peacock (2002) 210 CLR 274 …. 11.9 Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 …. 7.55 (Mowbray, Re) Brambles Holdings Ltd v British American Tobacco Australia Services Ltd (No 6) [2006] NSWDDT 7 …. 7.16 Murphy v Farmer (1988) 165 CLR 19 …. 13.21 Murphy, Davidson & Ward v Watson [1975] WAR 23 …. 7.12 Mustac v Medical Board of Western Australia [2007] WASCA 128 …. 8.57, 8.70 Mutual Life & Citizens Assurance Co Ltd v Evatt (1968) 122 CLR 556 …. 21.29 N NAAT v Minister for Immigration, Multicultural and Indigenous Affairs (2002) 170 FLR 477 …. 8.24 Nagle v Rottnest Island Authority (1993) 223 CLR 486 …. 7.28 NAQF v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 130 FCR 456 …. 11.21, 11.22 NATB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 506 …. 8.28 National Justice Compania Naviera SA v Prudential Assurance Co Ltd (‘The Ikarian Reefer Case’) [1993] 2 Lloyd’s Rep 68 …. 6.34 Nationwide News v Wills (1992) 177 CLR 1 …. 3.45 New South Wales v Commonwealth (1990) 169 CLR 482 …. 11.8 B 0=E I C

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xxiii

LAYING DOWN THE LAW

— v — (2006) 229 CLR 1 …. 3.5, 8.10, 8.12, 21.25 New Zealand Shipping Co v Société des Ateliers et Chantiers de France [1919] AC 1 …. 7.50 Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 …. 11.12, 13.22 Nguyen v Nguyen (1990) 169 CLR 245 …. 7.52, 7.60, 8.20, 8.21, 8.22, 8.28, 8.81 Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 …. 4.69, 8.15 Nolan, Re; Ex parte Young (1991) 172 CLR 460 …. 7.35 Nominal Defendant v GLG Australia Pty Ltd (2006) 228 CLR 529 …. 11.24 — v Ravenscroft [2008] 2 Qd R 32 …. 10.31 Norrie v NSW Registrar of Births Deaths and Marriages (2013) 84 NSWLR 697 …. 12.30 Northbuild Construction Pty Ltd, Re [2000] 2 Qd R 600 …. 13.33 Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 …. 7.34, 7.61, 8.88 Northern Territory v Griffiths (deceased) and Jones on behalf of the Ngaliwurru and Nungali Peoples (2019) 93 ALJR 327 …. 4.15, 4.17, 4.18, 4.22 Northern Territory v Mengel (1995) 185 CLR 307 …. 7.61 — v Sangare (2019) 265 CLR 164 …. 6.13 Nowicka v Superannuation Complaints Tribunal [2008] FCA 939 …. 7.52

.CC IA?

I= =I =

O O’Brien v Tanning Research Laboratories Inc (1988) 14 NSWLR 601 …. 7.40 Oldenburgh’s Case Freeman’s KB 213; 2 Mod 140 …. 7.50 Ombudsman v Commissioner of Police (1987) 11 NSWLR 386 …. 11.21 — v Moroney [1983] 1 NSWLR 317 …. 12.20 Ostrowski v Palmer (2004) 218 CLR 493 …. 19.1 Owen v South Australia (1996) 66 SASR 251 …. 11.7

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PIA?

Q

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P Pacific Film Laboratories Pty Ltd and Collector of Customs, Re (1979) 2 ALD 144 …. 12.37 Palace Gallery Pty Ltd v The Liquor and Gambling Commissioner (2014) 118 SASR 567 …. 11.7, 11.25 Palmer v Parbery (in his capacity as liquidator of Queensland Nickel Pty Ltd (in liq)) (2016) 153 ALD 475 …. 8.19 Pambula District Hospital v Herriman (1988) 14 NSWLR 387 …. 10.15 Papakosmas v The Queen (1999) 196 CLR 297 …. 6.17 Papathanasopoulos v Vacopoulos [2007] NSWSC 502 …. 7.50

xxiv

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B 0=E I C

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Parker v South Australian Housing Trust (1985) 41 SASR 493 …. 8.79, 8.84, 8.85, 8.88, 8.89 — v The Queen (1963) 111 CLR 610 …. 8.86, 8.87, 8.89 Parrett v Secretary, Department of Family and Community Services (2002) 124 FCR 299 …. 11.21, 11.22 Patterson, Re; Ex parte Taylor (2001) 207 CLR 391 …. 8.15 Pell v The Queen (2020) 94 ALJR 394; [2020] HCA 12 …. 5.52, 6.21, 6.30 Peninsula Group Pty Ltd v Registrar-General for the Northern Territory (1996) 136 FLR 8 …. 10.14 Perara-Cathcart v The Queen (2017) 260 CLR 595 …. 7.41, 7.42 Perilya Broken Hill Ltd v Valuer-General (2015) 10 ARLR 235 …. 8.80, 8.81 Permanent Trustee Australia Ltd v Commissioner of State Revenue (Vic) (2004) 220 CLR 388 …. 8.12 Perpetual Executors and Trustees Association of Australia Ltd v Federal Commissioner of Taxation (1949) 77 CLR 493 …. 8.11 Pfennig v The Queen (1995) 182 CLR 461 …. 7.23 PGA v The Queen (2012) 245 CLR 355 …. 7.28, 7.59, 7.64, 7.65 Philip Morris Ltd v Commissioner of Business Franchises (1989) 167 CLR 399 …. 8.16 Phillips v Eyre (1870) LR 6 QB 1 …. 9.32 — v The Queen (2006) 225 CLR 303 …. 7.23, 7.52, 7.60 Piro v W Foster & Co Ltd (1943) 68 CLR 313 …. 8.82, 8.87 Pitcher v H B Brady & Co Ltd [2005] WASCA 159 …. 8.22 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 …. 12.10, 13.20, 13.29, 13.30, 13.36 Plenty v Dillon (1991) 171 CLR 635 …. 13.11 Police v Dunn (Dubbo Local Court, NSW, Heilpern SM, 27 August 1999) …. 4.30 Polyukhovich v The Commonwealth (1991) 172 CLR 501 …. 7.65 Pooraka Holdings Pty Ltd, Re (1989) 52 SASR 1 …. 8.22 Port MacDonnell Professional Fishermen’s Association Inc v South Australia (1989) 168 CLR 340 …. 11.8 Potter v Minahan (1908) 7 CLR 277 …. 13.10, 13.11, 13.13 Povey v Qantas Airways Ltd (2005) 223 CLR 189 …. 11.11 Preston v Commissioner of Fair Trading (2011) 80 NSWLR 359 …. 12.31 Preston Banking Co v William Allsup & Sons [1895] 1 Ch 141 …. 6.29 Prior v Mole (2017) 261 CLR 265 …. 4.31

B =E I C I

L=

D CA: D E

= AC

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31,

TABLE OF CASES

Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166 …. 8.55 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 …. 10.9, 10.34, 11.11, 12.2, 12.10, 14.8, 14.9 Prosecutor v Lubanga (Judgment) (International Criminal Court, Trial Chamber I, Case No ICC-01/04-01/06-2842, 14 March 2012) …. 3.42 Public Service Association and Professional Officers’ Association Amalgamated Union (NSW) v New South Wales [2014] NSWCA 116 …. 9.8 Public Service Association of New South Wales v Industrial Commission of New South Wales (1985) 1 NSWLR 627 …. 13.27 Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 …. 13.18, 13.19

0

PIA?

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4= A

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Q Queensland v The Commonwealth (1977) 139 CLR 585 …. 8.2, 8.8, 8.13, 8.14, 8.57 Quickfind (Australia) Pty Ltd v Airmark Consolidators Pty Ltd (2014) 222 FCR 13 …. 11.18 Quinn v Leathem [1901] AC 459 …. 7.32 R R v A2; R v Magennis; R v Vaziri [2019] HCA 35 …. 10.28, 11.15, 11.17, 12.20 — v Abbrederis [1981] 1 NSWLR 530 …. 8.43 — v Ann Harris (1836) 7 Car & P 446; 173 ER 198 …. 12.5 — v Aubrey (2012) 82 NSWLR 748 …. 13.30 — v Baden-Clay (2016) 258 CLR 308 …. 6.21 — v Ballard (Supreme Court of New South Wales, Forbes CJ and Dowling J, 13 June 1829) …. 4.25 — v Barton (1980) 147 CLR 75 …. 6.20 — v BDX (2009) 24 VR 288 …. 8.23 — v Berchet (1688) 1 Show KB 106; 89 ER 480 …. 12.10 — v Bonjon (Supreme Court of New South Wales, Willis J, 16 September 1841) …. 4.25 — v Boucher [1995] 1 VR 110 …. 10.20 — v Bourchas (2002) 133 A Crim R 413 …. 5.57 — v Byerley (2010) 107 SASR 517 …. 10.31 — v Cain [2010] QCA 373 …. 8.49 — v Carroll (2002) 213 CLR 635 …. 6.31, 18.40 — v Darrington and McGauley [1980] VR 353 …. 8.82, 8.89 — v Davies; Ex parte Delbert-Evans [1945] 1 KB 435 …. 7.30 — v Di Maria (1996) 67 SASR 466 …. 10.30 — v Dookheea (2017) 262 CLR 402 …. 6.20, 6.32 — v Duffy; Ex parte Nash [1960] 2 QB 188 …. 7.30 — v Ellis (2003) 58 NSWLR 700 …. 7.23, 8.22 — v Esposito (1998) 45 NSWLR 442 …. 6.17

0I=PB= 8 :AE = C 4 PAE? 0I= = I D D E E

NE

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— v Farrell, Dingle, and Woodward (1831) 1 Legge 5 …. 2.67 — v Fernando (1992) 76 A Crim R 58 …. 4.34, 4.35, 4.50 — v Goldman (2004) 147 A Crim R 472 …. 8.89 — v — [No 2] [2007] VSCA 25 …. 8.89 — v Gotts [1992] 2 AC 412 …. 8.89 — v Harding [1976] VR 129 …. 8.89 — v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 …. 13.29 — v Hookham (1993) 31 NSWLR 381 …. 8.44 — v Horncastle [2010] 2 AC 373 …. 6.26 — v Independent Broad-based Anti-corruption Commissioner (2016) 256 CLR 459 …. 13.7, 13.9 — v Industrial Commission of South Australia (1986) 41 SASR 471 …. 9.38 — v Jogee [2017] AC 387 …. 6.55 — v JS (2007) 175 A Crim R 108 …. 6.31 — v Judge Bland; Ex parte Director of Public Prosecutions (Vic) [1987] VR 225 …. 8.79 — v Kean & Mills [1985] VR 255 …. 11.29 — v Keogh [No 2] (2014) 121 SASR 307 …. 6.33 — v Kidman (1915) 20 CLR 425 …. 13.15 — v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254 …. 3.25, 3.26, 6.43 — v L (1991) 174 CLR 379 …. 7.64 — v — (1994) 49 FCR 534 …. 10.20 — v Lavender (2005) 222 CLR 67 …. 13.22 — v MacDonagh [1974] 2 WLR 529; [1974] 2 All ER 257 …. 7.12 — v Milat (2005) 157 A Crim R 565 …. 6.35 — v Morrison [1999] 1 Qd R 397 …. 8.22 — v Murrell (Supreme Court of New South Wales, Forbes CJ, Dowling and Burton KJ, 11 April 1836) …. 4.25 — v N (Court of Criminal Appeal, Spigelman CJ, Sully and Ireland JJ, 21 July 1998) …. 8.54 — v O’Keefe [2000] 1 Qd R 564 …. 7.23 — v O’Neill; Ex parte Moran (1985) 58 ACTR 26 …. 10.12 — v Paddy and Wills (1886, EXE/4) …. 4.26 — v PL (2009) 199 A Crim R 199 …. 6.31 — v — [2012] NSWCCA 31 …. 6.31 — v PS [2004] QCA 347 …. 7.23 — v Quick (2004) 148 A Crim R 51 …. 11.29 — v Reynhoudt (1962) 107 CLR 381 …. 13.28 — v Roberts [1965] 1 QB 85 …. 7.12 — v Roussety (2008) 24 VR 253 …. 8.23 — v Scott (1990) 20 NSWLR 72 …. 12.36 — v Shamouil (2006) 66 NSWLR 228 …. 8.58 — v Sharma (2002) 54 NSWLR 300 …. 11.22 — v Shaw [1975] RTR 161 …. 7.12 — v Strawhorn (2008) 19 VR 101 …. 12.31 — v Turner [No 4] (2001) 10 Tas R 81 …. 12.38 — v Vinh Le [2000] NSWCCA 49 …. 7.23 — v W [1998] 2 Qd R 531 …. 7.23

B 0=E I C

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31,

xxv

LAYING DOWN THE LAW

= A /L =IN I

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I= =I =

— v Wanganeen (2010) 108 SASR 463 …. 4.37 — v White (1899) 20 LR (NSW) 12 …. 12.14 — v Wunungmurra (2009) 231 FLR 180 …. 4.42, 4.45, 4.50 — v XY (2013) 84 NSWLR 363 …. 8.38, 8.48, 8.50, 8.57, 8.58, 8.59 — v Young (1999) 46 NSWLR 681 …. 8.54, 10.31, 10.32 — v Zuber (2010) 242 FLR 416 …. 12.26 R & R Fazzolari Pty Ltd v Parramatta City Council (2009) 237 CLR 603 …. 13.24 Reich v Client Server Professionals of Australia Pty Ltd (2000) 49 NSWLR 551 …. 7.22, 7.32 Repatriation Commission v Vietnam Veterans’ Association of New South Wales Branch Inc (2000) 48 NSWLR 548 …. 11.22, 12.2 Republic of Costa Rica v Erlanger (1876) 3 Ch D 62 …. 13.16 Residential Tenancies Tribunal of New South Wales and Henderson, Re; Ex parte the Defence Housing Authority (1997) 190 CLR 410 …. 13.31 Retirements Benefits Fund Board v Elmore [2014] TASFC 1 …. 21.16 Rita McKindley v MJ Campbell Nominees Pty Ltd (Supreme Court of the ACT, Miles CJ, 5 December 1994) …. 21.27 Rizza v Fluor Daniel GTI (Australia) Pty Ltd [1999] 1 VR 405 …. 11.29 Roach v Electoral Commissioner (2007) 233 CLR 166 …. 3.45 Robertson v City of Nunawading [1973] VR 819 …. 13.14 Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550 …. 6.30 Rockwell Graphic Systems Ltd v Fremantle Terminals Ltd (1991) 106 FLR 294 …. 8.80 Rodway v The Queen (1990) 169 CLR 515 …. 9.40, 13.14, 13.16, 13.17 Romeo v Conservation Commission (NT) (1998) 192 CLR 431 …. 7.28 Ruddock v Taylor (2005) 222 CLR 612 …. 6.56, 7.11 Russell v Stephen [2013] WASCA 284 …. 12.34 Ryde Municipal Council v Macquarie University (1978) 139 CLR 633 …. 12.9 Rylands v Fletcher (1868) LR 3 HL 330 …. 7.61

0

PIA?

Q

4= A

S S v White [2005] TASSC 27 …. 13.17 Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 …. 3.49, 11.17, 11.19, 11.24, 12.10 Samad v District Court of New South Wales (2002) 209 CLR 140 …. 14.7, 14.9, 15.3 Saraswati v The Queen (1991) 172 CLR 1 …. 10.9, 10.21, 11.21 Scott v Avery (1856) 10 ER 1121 …. 6.53

xxvi

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2:

B 0=E I C

=:

— v CAL No 14 Pty Ltd (2009) 17 Tas R 331 …. 8.42 Seaman v Silvia (No 2) [2018] FCA 363 …. 5.36 Secretary, Department of Health v Harvey (1990) 21 ALD 393 …. 10 (n 1), 10.4 Selim v Lele (2008) 167 FCR 61 …. 11.8 Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28 …. 8.15 Shingles and Director-General of Social Security, Re (1984) 6 ALD 568 …. 11.26 Shire of Charlton v Ruse (1912) 14 CLR 220 …. 12.8 Skelton v Collins (1966) 115 CLR 94 …. 8.87 Skulander v Willoughby City Council (2007) 73 NSWLR 44 …. 7.39, 7.40 SM v The Queen (2012–15) 46 VR 464 …. 11.18 Smith v Ash [2011] 2 Qd R 175 …. 10.31 — v Corrective Services Commission of New South Wales (1980) 147 CLR 134 …. 13.21 — v New South Wales Bar Association (1992) 176 CLR 256 …. 6.29 — v Papamihail (1998) 88 FCR 80 …. 10.12 — v The Queen (1994) 181 CLR 338 …. 12.27 Snowkowski v Jones (Legal Practice) [2008] VCAT 1943 …. 5.30 Sok v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 144 FCR 170 …. 8.28 Solicitor’s Clerk, Re a [1957] 1 WLR 1219 …. 13.37 South Australia v Lampard-Trevorrow (2010) 106 SASR 331 …. 10.24 — v Tanner (1989) 166 CLR 161 …. 12.27 — v Teachers Appeal Board [2011] SASCFC 3 …. 8.56 South Australian Railways Commissioner v Egan (1973) 130 CLR 506 …. 6.53 Stapleton v The Queen (1952) 86 CLR 358 …. 8.86 State Chamber of Commerce and Industry v Commonwealth (1987) 163 CLR 329 …. 12.30 State Government Insurance Commission v Trigwell (1979) 142 CLR 617 …. 2.59, 8.84 Stubley v Western Australia [2010] HCATrans 269 …. 7.23 Superior IP International v Ahearn Fox Patent and Trade Mark Attorneys [2012] FCA 282 …. 5.36 — v — (No 2) [2012] FCA 977 …. 5.36 Sutton v Bradshaw (1987) 6 MVR 257 …. 9.40 Swain v Waverley Municipal Council (2005) 220 CLR 517 …. 18.40 SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 …. 21.21 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 …. 11.17

B =E I C I

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TABLE OF CASES

T Tabet v Gett (2010) 240 CLR 537 …. 7.26, 7.46 Tasker v Fullwood [1978] 1 NSWLR 20 …. 14.9 Tasmania v Lee (2005) 15 Tas R 213 …. 21.19 — v Victoria (1935) 52 CLR 157 …. 7.42 Taylor v Attorney-General (Cth) [2019] HCA 30 …. 11.31 — v Centennial Newstan Pty Ltd (2009–2010) 76 NSWLR 379 …. 10.31 — v Owners — Strata Plan No 11564 (2013) 83 NSWLR 1 …. 10.32 — v Owners — Strata Plan No 11564 (2014) 253 CLR 531 …. 10.29, 10.30, 10.32, 10.33, 10.34 — v Rudaks (2007) 245 ALR 91 …. 7.26 Telstra Corporation Ltd v Treloar (2000) 102 FCR 595 …. 7.17, 8.2, 8.27, 8.28, 8.57 Teori Tau v Commonwealth (1969) 119 CLR 564 …. 8.14 The Banco [1971] P 137 …. 11.9 The Queen v Millis 10 Cl & F 534 …. 9.32 Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 …. 12 (n 1) Thornton v Newcrest Mining Ltd [2011] WASCA 92 …. 8.49 — v Shoe Lane Parking Ltd [1971] 2 QB 163 …. 7.29 Tillman v Attorney-General (NSW) (2007) 70 NSWLR 448 …. 8.40, 8.41, 8.47, 8.48, 8.49 Tokyo Mart Pty Ltd v Campbell (1988) 15 NSWLR 275 …. 10.30 Toonen v Australia (Human Rights Committee, Views: Communication No 488/1992, 50th sess, UN Doc CCPR/C/50/488/ 1992 (31 March 1994)) …. 3.43 Towney v Minister for Land and Water Conservation for New South Wales (1997) 147 ALR 402 …. 8.45 Tracey, Re; Ex parte Ryan (1989) 166 CLR 518 …. 7.35 Transurban City Link Ltd v Allan (1999) 95 FCR 553 …. 8.21, 8.28 Trevisan v Commissioner of Taxation (1991) 29 FCR 157 …. 10.20 Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107 …. 6.9 TSL v Secretary to the Department of Justice (2006) 14 VR 109 …. 8.47 Tyler v Whatmore [1976] RTR 83 …. 7.12 Tyler, Re; Ex parte Foley (1994) 181 CLR 18 …. 7.35 U Uber BV v Commissioner of Taxation (2017) 247 FCR 462 …. 12.38 Union Shipping New Zealand Ltd v Morgan (2002) 54 NSWLR 690 …. 7.54 United States v Wade 388 US 218 (1967) …. 5.53 Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 …. 18.40

0I=PB= 8 :AE = C 4 PAE? 0I= = I D D E E

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V Vairy v Wyong Shire Council (2005) 223 CLR 422 …. 7.28 Valentine v Eid (1992) 27 NSWLR 615 …. 8.62, 8.66 Van der Feltz v City of Stirling (2009) 167 LGERA 236 …. 12.30 Van der Meer v The Queen (1988) 82 ALR 10 …. 6.32 Velkoski v The Queen (2014) 45 VR 680 …. 7.23 Vella v Minister for Immigration (2015) 230 FCR 61 …. 12.7 Victoria v Commonwealth and Connor (1975) 7 ALR 1 …. 14.9 — v The Commonwealth (1971) 122 CLR 353 …. 8.11 Victorian Workcover Authority v Vitoratos (2005) 12 VR 437 …. 10.31 — v Wilson (2004) 10 VR 298 …. 10.31 Viro v The Queen (1978) 141 CLR 88 …. 7.22, 8.77, 8.79 W Wacal Developments Pty Ltd v Realty Developments Pty Ltd (1978) 140 CLR 503 …. 10.20 Wacando v Commonwealth (1981) 148 CLR 1 …. 11.5, 12.15 Wakim, Re; Ex parte McNally (1999) 198 CLR 511 …. 3.26, 7.42, 7.43, 8.11, 8.32, 8.33, 8.34, 9.32, 13.15 Walden v Hensler (1987) 163 CLR 561 …. 4.40 Walker v New South Wales (1994) 182 CLR 45 …. 4.41 Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 233 CLR 259 …. 8.48, 8.50, 8.59 Wallace v Major [1946] 2 All ER 87 …. 7.12 Waller v James (2006) 226 CLR 136 …. 7.55 Walsh v Tattersall (1996) 188 CLR 77 …. 12.29 Walsh, Ex parte;Yates, Re (1925) 37 CLR 36 …. 3.48 Wang v Farkas (2014) 85 NSWLR 390 …. 6.13 Ward v The Queen (1981) 54 ALJR 271 …. 10.17 — v Williams (1955) 92 CLR 496 …. 14.7 Wardle v Agricultural and Rural Finance Pty Ltd [2012] NSWCA 107 …. 8.26 Warner v Murdoch (1877) 4 Ch D 750 …. 13.16 Warringah Properties Pty Ltd v Babij [2006] NSWSC 702 …. 7.10, 7.11 Waugh v Kippen (1986) 160 CLR 156 …. 13.22 Wentworth Securities Ltd v Jones [1980] AC 74 …. 10.30, 10.31, 10.33 Western Australia v Commonwealth (1975) 134 CLR 201 …. 8.13 — v — (1995) 183 CLR 373 …. 4.60 — v Willis (2015) 239 FCR 175 …. 4.14 Western Bank Ltd v Schindler [1977] Ch 1 …. 10.32 B 0=E I C

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xxvii

LAYING DOWN THE LAW

Woolworths Ltd v Kelly (1991) 22 NSWLR 189 …. 7.40 WorkCover Corporation v Jakas (2003) 86 SASR 20 …. 8.24, 8.71 Wright v Hale (1860) 6 H & N 227; 158 ER 94 …. 13.16 Wurridjal v Commonwealth (2009) 237 CLR 309 …. 8.14 Wynyard Investments Pty Ltd v Commissioner for Railways (NSW) (1955) 93 CLR 376 …. 8.8

Whitehouse v Queensland (1961) 104 CLR 635 …. 8.78 Whitlock and Comcare, Re [2019] AATA 1911 …. 5.34 Whittaker v Comcare (1998) 86 FCR 532 …. 10.21 — v Delmina Py Ltd (1998) 87 IR 268 …. 8.63 Wicks v State Rail Authority of New South Wales; Sheehan v State Rail Authority of New South Wales (2010) 241 CLR 60 …. 11.18 Wik Peoples v Queensland (1996) 187 CLR 1 …. 4.7, 4.8, 4.9, 7.62 Williams v Commonwealth (2012) 248 VLR 156 …. 3.5 Willis (Pilki People) v Western Australia [2014] FCA 714 …. 4.14 Wilson v Anderson (2002) 213 CLR 401 …. 4.20 — v Commissioner of Stamp Duties (1986) 6 NSWLR 410 …. 12.24 — v — (1988) 13 NSWLR 77 …. 12.31 — v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 …. 3.26 Witheyman v Simpson [2011] 1 Qd R 170 …. 10.31 Wood v The Queen (2012) 84 NSWLR 581; [2012] NSWCCA 21 …. 6.34

X X v Amalgamated Television Services Pty Ltd [No 2] (1987) 9 NSWLR 575 …. 7.17, 8.79, 8.83, 8.85 X7 v Australian Crime Commission (2013) 248 CLR 92 …. 13.7

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Y Yew Bon Tew v Kenderaan Bas Mara [1983] 1 AC 553 …. 13.16 Yong Jun Qin v Minister for Immigration and Ethnic Affairs (1997) 75 FCR 155 …. 5.32 Young v Burrell Cary’s Causes in Ch 77; 21 Eng Rep 29 …. 7.50 Yrttiaho v Public Curator (Qld) (1971) 125 CLR 228 …. 9.40, 13.16

xxviii

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Table of Statutes References are to paragraph numbers

1

Q B AL R

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COMMONWEALTH Aboriginal and Torres Strait Islander Heritage Protection Act 1984 …. 4.62 Aboriginal Land Rights (Northern Territory) Act 1976 …. 4.3 Acts Interpretation Act 1901 …. 9.17, 9.51, 9.61, 9.73, 11.20, 12.13, 12.28 s 1A …. 9.60 s 2 …. 9.93, 12.16 s 2(2) …. 12.29 s 2B …. 9.60, 12.28 s 2D …. 12.28 s 2F …. 12.28 s 3A(2) …. 9.20 s 3A(3) …. 9.20 s 7 …. 9.93, 9.97 s 7(2) …. 9.40 ss 7–11 …. 13.17 s 13 …. 12.9, 12.11 s 13(1) …. 9.52, 9.53, 9.57, 12.11, 12.18, 12.19, 12.21, 12.23 s 13(2)(a) …. 12.13 s 13(2)(b) …. 9.48, 12.15 s 13(2)(d) …. 9.48, 12.18 s 15AA … 10.18, 10.20, 10.21, 10.22, 10.23, 10.24, 10.25, 10.26, 11.20, 11.23, 12.14, 12.41, 13.23 s 15AA(1) …. 10.20 s 15AB …. 11.12, 11.16, 11.20, 11.21, 11.22, 11.23, 11.23, 11.25, 11.27, 11.28, 11.31, 19.30 s 15AB(1) …. 11.30 s 15AB(1)(a) …. 11.21 s 15AB(1)(b) …. 11.21, 11.23, 11.28 s 15AB(1)(b)(i) …. 11.22 s 15AB(1)(b)(ii) …. 11.22 s 15AB(2) …. 11.21, 11.27 s 15AB(2)(a) …. 9.51 s 15AB(2)(d) …. 11.30 s 15AB(3) …. 11.25 s 15AC …. 12.24 s 15AD …. 12.23 s 21(1)(b) …. 13.34 s 23 …. 9.60, 12.28

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s 33 …. 14.6 s 33(2A) …. 14.6 s 46 … 10.19 Acts Interpretation Amendment Act 1984 …. 11.20 Administrative Appeals Tribunal Act 1975 …. 6.44, 6.48 Pt IV, Div 3 …. 6.52 s 2A …. 6.48 s 33(1AA) …. 5.34 s 33(1AB) …. 5.34 s 34D …. 6.52 s 34E …. 6.52 s 43(1) …. 6.47 Administrative Decisions (Judicial Review) Act 1977 s 5(1)(b) …. 6.47 s 5(1)(c) …. 6.47 Australia Act 1986 … 2.3, 2.71, 2.75, 8.77, 9.21 s 1 …. 2.88 s 9 …. 9.21 Australia (Request and Consent) Act 1985 …. 2.87 Australian Capital Territory (Self-Government) Act 1988 …. 3.27, 21.36 Pt VA …. 3.27 s 25 …. 3.18, 9.27 s 26 …. 9.12 s 28 …. 9.9, 9.78 s 28(1) …. 3.20, 4.49 s 34 …. 9.77 s 35 …. 9.42 s 36 …. 3.31 s 37 …. 3.31 s 38 …. 3.31 s 38A …. 3.31 Sch 4 …. 3.31 Australian Citizenship Act 1948 …. 8.15 Australian Constitution see Constitution Australian Consumer Law …. 18.36 Australian Human Rights Commission Act 1986 …. 9.37 Australian Organ and Tissue Donation and Transplantation Authority Act 2008 …. 19.37

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xxix

LAYING DOWN THE LAW

s 69 …. 3.30 s 71 …. 3.21, 3.24 s 72 …. 3.23 s 72(ii) …. 2.41, 3.23 s 72(iii) …. 3.23, 8.31, 8.32 s 73 …. 3.25, 8.35 s 74 …. 2.75, 8.78 s 75 …. 3.25 s 75(iv) …. 3.26 s 76 …. 2.39, 3.25 s 77(iii) …. 8.31, 8.32 s 80 …. 3.45, 6.21 s 90 …. 8.16, 9.10 s 92 …. 3.45 s 109 …. 3.5, 3.20, 4.49, 9.9 s 116 …. 3.45, 3.46 s 117 …. 3.45 s 122 …. 3.19, 3.46, 4.65, 8.14 s 125A …. 4.63 s 127 …. 4.61 s 128 …. 3.2, 4.1, 8.11, 9.12 Constitution Alteration (Aboriginals) Act 1967 …. 4.60 Copyright Act 1968 …. 8.40 s 131A …. 8.40 s 131B …. 8.40 Coronavirus Economic Response Package Omnibus (Measures No. 2) Act 2020 …. 19.19, 21.32 Corporations Act 2001 …. 12.7, 19.29 s 588M …. 7.26 Crimes Act 1914 …. 4.49, 9.68 s 13 …. 11.31 s 16A(2)(m) …. 4.44 s 16A(2A) …. 4.44, 4.49, 4.53 s 16AA(1) …. 4.44, 4.45, 4.46, 4.47, 4.49, 4.53 s 73(3) …. 13.11 Criminal Code Act 1995 …. 9.64, 9.68 Div 268 …. 11.31 Div 307 …. 8.43 s 268.121 …. 11.31 s 268.121(2) …. 11.31 s 268.122 …. 11.31 Customs Act 1901 s 233B …. 8.43 Diplomatic Immunities and Privileges Act 1967 s 7 …. 3.37 Director of Public Prosecutions Act 1983 s 9(5) …. 6.8 Disability Discrimination Act 1992 …. 3.53 Environment Protection and Biodiversity Conservation Act 1999 …. 3.36 s 137 …. 3.38 Evidence Act 1995 …. 7.23, 8.45 Dictionary …. 9.56 s 3 …. 9.56 s 143(3) …. 9.67

1

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/DD B AL

N =

Australian Security Intelligence Organisation Act 1979 …. 9.59 Pt 3, Div 3 …. 9.59 s 34ZZ …. 9.59 s 34Y …. 9.30 Australian Security Intelligence Organisation Legislation Amendment Act 2006 …. 9.30 s 34ZZ …. 9.30 Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003 …. 9.30 Broadcasting Services Act 1992 …. 14.9 s 4 …. 14.9 s 158(c) …. 14.9 s 158(e) …. 14.9 s 160 …. 14.9 s 160(d) …. 14.9 s 161 …. 14.9 s 162(2) …. 14.9 Captain’s Flat (Abatement of Pollution) Agreement Act 1975 …. 9.78 Civil Dispute Resolution Act 2011 s 3 …. 5.35 s 4(1A) …. 5.35 Cocos (Keeling) Islands Act 1955 s 15 …. 9.88 Commonwealth Electoral Act 1962 …. 4.61 Competition and Consumer Act 2010 …. 16.19, 18.36 Constitution …. 2.1, 2.3, 2.75, 2.81, 2.82, 3.2, 3.3, 3.4, 3.5, 3.7, 3.15, 3.16, 3.19, 3.23, 3.25, 3.29, 3.45, 3.46, 3.47, 3.48, 3.49, 3.54, 4.1, 4.59, 4.60, 4.61, 4.62, 4.63, 4.64, 4.65, 4.66, 4.67, 4.68, 4.69, 6.43, 8.1, 8.2, 8.10, 8.11, 8.12, 8.32, 8.77, 8.78, 9.9, 9.12, 9.13, 9.20, 10.32, 11.8, 21.36 Ch I …. 3.15 Ch II …. 3.15 Ch III …. 3.15, 3.24, 3.27 Ch V …. 3.46 s 7 …. 3.45 s 24 …. 3.45 s 51 …. 3.4, 3.16 ss 51–52 …. 3.19 s 51(xix) …. 4.68 s 51(xxi) …. 3.20 s 51(xxvi) …. 4.60, 4.62, 4.65 s 51(xix) …. 8.15 s 51(xxxi) …. 3.45, 8.14 s 51(xxxiii) …. 13.26 s 51(xxxix) …. 3.36 s 52 …. 3.4, 3.16 s 53 …. 9.12 s 57 …. 9.13 s 61 …. 2.81, 3.29, 3.31 ss 62–64 …. 3.29 s 64 …. 3.3, 3.29 s 68 …. 3.30

xxx

1 QC 9 B L :D :QB 1 :L = ? E E : A

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7 8

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42-

1

Q B AL R

PB 6 PB 0 LL

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/DD B AL

N =

TABLE OF STATUTES

Euthanasia Laws Act 1997 …. 3.19 Export Control Act 2020 …. 21.30 Extradition Act 1988 …. 8.40 Fair Work Act 2009 …. 6.10 Family Law Act 1975 s 30 …. 7.37 s 60CA …. 8.29 Federal Court of Australia Act 1976 s 16 …. 7.37 Flags Act 1953 …. 9.20 Freedom of Information Act 1982 …. 9.84 High Court of Australia Act 1979 …. 3.22 Hindmarsh Island Bridge Act 1997 …. 4.62 Human Rights and Equal Opportunity Commission Act 1986 …. 9.37 Human Rights and Equal Opportunity Commission (Transitional Provisions and Consequential Amendments) Act 1986 s 4 …. 9.37 Human Rights Commission Act 1981 s 36 …. 9.37 Human Rights (Parliamentary Scrutiny) Act 2011 …. 3.60, 4.57 s 3 …. 3.60 Human Rights (Sexual Conduct) Act 1994 …. 3.43 s 4 …. 3.43 Immigration (Guardianship of Children) Act 1946 …. 9.58, 21.32 s 1 …. 21.32 Income Tax Act 1972 s 25(3) …. 10.35 Income Tax Assessment Act 1936 …. 12.31 s 26AAA …. 8.68 s 46(3) …. 14.7 s 51 …. 8.8 s 51(1) …. 8.7 Income Tax Assessment Act 1997 s 995.1 …. 9.56 Industrial Chemicals Act 2019 … 21.32 Insolvency Law Reform Act 2016 …. 21.31 Insurance Contracts Act 1984 …. 8.25, 8.34, 8.38, 8.90 Judiciary Act 1903 …. 4.67 Pt VIIIC …. 5.32 s 16 …. 8.19 s 17 …. 8.31 s 20 …. 8.19 s 21 …. 8.19 s 23 …. 7.42 s 23(2) …. 7.37 s 23(2)(a) …. 7.42

1 QC 9 B L :D :QB 1 :L = ? E E : A

=

LA

: ,

PB 6 PB 0 LL ,

LA

7 8

L3

s 35A …. 6.30 s 39 …. 8.31 s 39(2) …. 2.38 s 39A …. 8.31 s 39B …. 8.31 s 39B(1A)(b) …. 2.38 s 55ZF …. 5.32 Jurisdiction of Courts (Cross-vesting) Act 1987 …. 8.32 Jurisdiction of Courts Legislation Amendment Act 2000 …. 8.33, 9.32 Legal Services Directions 2017 …. 5.32 Sch 1 cl 14 …. 5.36 Legislation Act 2001 s 7(3) …. 10.22 s 139 …. 10.22 Legislation Act 2003 …. 9.4, 9.81, 9.84, 19.8 Ch 3 …. 9.81 Ch 3, Pt 2 …. 9.88 Ch 3, Pt 3 …. 9.65 Ch 3, Pt 4 …. 9.92 s 12 …. 9.86 s 12(2)–(4) …. 9.86 s 13 …. 10.19 s 45 …. 9.89, 9.93 s 138 …. 10.22 s 139 …. 10.22 s 139(1) …. 10.22 Legislation (Exemptions and Other Matters) Regulation 2015 regs 11–12 …. 9.92 Live-Stock Slaughter Levy Collection Act 1964 s 7 …. 9.61 Marriage Act 1961 …. 9.9 s 5 …. 3.20 Marriage Amendment (Definition and Religious Freedoms) Act 2017 …. 9.9 Meat and Livestock Corporation Act 1991 …. 9.61 s 3(4) …. 9.61 s 34(2) …. 9.61 Medical Indemnity Act 2002 …. 19.37 Migration Act 1958 …. 11.10, 11.14, 13.29 s 4(1) …. 11.10 s 14 …. 13.10 s 134 …. 18.10 s 474 …. 13.20, 13.29 Migration Laws Amendment Act 1993 …. 9.65 Migration Regulations 1994 reg 1.23(2)(b) …. 8.28 Military Rehabilitation and Compensation Act 2004 s 3 …. 9.64

C1

L :D ALL ,

C

L :D

I

L

E DB E

: A = L:BD : LB

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42-

xxxi

LAYING DOWN THE LAW

Personal Property Securities Act 2009 …. 19.37 Privacy Act 1998 …. 3.53 Privy Council (Appeals from the High Court) Act 1975 …. 2.75, 8.76 Privy Council (Limitation of Appeals) Act 1968 …. 2.75, 8.76 Product Grants and Benefits Administration Act 2000 …. 19.37 Public Governance, Performance and Accountability Act 2013 …. 3.28 Racial Discrimination Act 1975 …. 3.53, 4.18, 4.48, 4.49, 4.52 Pt IIA …. 12.18 s 8 …. 4.48, 4.49, 4.53, 4.54, 4.55, 4.56 s 8(1) …. 3.37 s 9(1) …. 3.53 s 10 …. 4.48, 4.49, 4.53, 4.54, 4.55 s 18C …. 3.53 s 18C(1) …. 3.53 s 18C(1)(b) …. 12.18 s 18D …. 3.53 Royal Style and Titles Act 1973 …. 9.20 Safety, Rehabilitation and Compensation Act 1988 …. 18.11 Seat of Government Acceptance Act 1909 s 6 …. 2.58 Service and Execution of Process Act 1901 …. 13.28 Sex Discrimination Act 1984 …. 3.53 Social Security Act 1947 s 105J …. 11.26 s 105JA …. 11.26 Social Security (Administration) Act 1999 Pt 4A …. 6.46 Social Services Laws (Present Value of Unpaid Amount — Interest Rate) Determination 2018 …. 19.19 Statute Law Revision Act 2011 …. 19.19 Statute of Westminster Adoption Act 1942 …. 2.85 Stronger Futures in the Northern Territory Act 2012 …. 4.51, 4.52, 4.57 s 4A …. 4.52 Telecommunications Act 1997 …. 9.50 Territories Self-Government Legislation Amendment (Disallowance and Amendment of Laws) Act 2011 …. 9.42 Tobacco Plain Packaging Act 2011 …. 13.26 Tobacco Plain Packaging Regulations 2011 …. 21.38 Trade Practices Act 1974 s 155(1) …. 13.18 Veterans’ Entitlements Act 1986 …. 9.65

1

Q B AL R

PB 6 PB 0 LL

LA

/DD B AL

N =

Modern Slavery Act 2018 …. 21.33 National Security (Coal Mining Industry Employment) Regulations (Amendment) reg 17 …. 13.29 Native Title Act 1993 …. 4.3, 4.5, 4.6, 4.7, 4.12, 4.13, 4.16, 4.18, 4.20, 4.21, 4.23, 4.60, 4.62 Pt 2, Div 3, Sub-div P …. 4.6 Pt 2, Div 5 …. 4.15 Pt 4 …. 4.21 Pt 4, Div 4 …. 4.6 Pt 8A …. 4.21 s 51A …. 4.16 s 223 …. 4.5 s 225 …. 4.5 Native Title Amendment Act 1998 …. 4.7 Native Title Amendment (Indigenous Land Use Agreements) Act 2017 …. 4.21 Norfolk Island Act 1979 …. 9.80 s 18 …. 9.80 Norfolk Island Legislation Amendment Act 2015 …. 9.80 Northern Territory Acceptance Act 1910 s 7 …. 2.58, 9.79 Northern Territory (Administration) Act 1910 s 5 …. 9.79 s 13 …. 9.79 Northern Territory National Emergency Response Act 2007 …. 4.44, 4.51 s 6 …. 4.51 s 91 …. 4.44 s 132 …. 4.52 s 132(1) …. 4.52 s 132(2) …. 4.52 Northern Territory (Self-Government) Act 1978 …. 3.27, 21.36 s 3 …. 9.79 s 7 …. 3.18 ss 7–8 …. 9.28 s 9 …. 9.42 s 31 …. 3.31 s 51 …. 9.9 Sch 1 …. 9.79 Paid Parental Leave Act 2010 …. 19.19, 19.36 s 2 …. 19.19 s 8 …. 19.37 s 21 …. 19.19 Paid Parental Leave and Other Legislation Amendment (Dad and Partner Pay and Other Measures) Act 2012 … 19.19 Paid Parental Leave Rules 2010 …. 19.19 Parliamentary Service Act 1999 Pt 7 Div 2 …. 9.14 Patents Act 1990 s 3 …. 9.56 Sch 1 …. 9.56

xxxii

1 QC 9 B L :D :QB 1 :L = ? E E : A

=

LA

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LA

7 8

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C1

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42-

TABLE OF STATUTES

War Crimes Act 1945 s 12 …. 11.31 World Heritage Properties Conservation Act 1983 …. 3.36

1

Q B AL R

PB 6 PB 0 LL

LA

/DD B AL

N =

AUSTRALIAN CAPITAL TERRITORY Civil and Administrative Tribunal Act 2009 …. 6.44 Civil Unions Act 2006 …. 9.42 Crimes Act 1900 s 92 …. 4.31 Crimes (Sentencing) Act 2005 …. 4.43 s 33(1) …. 4.43 s 33(3) …. 4.43 Evidence Act 2011 …. 7.23 Human Rights Act 2004 …. 3.59, 13.4 s 30 …. 10.22, 13.4 Interpretation Act 1967 s 11A …. 10.22 s 11B …. 11.27 s 65 … 9.77 Legal Profession Act 2006 …. 5.27 Ch 4 Pt 4.7 …. 5.20 Legislation Act 2001 …. 9.17, 9.60, 12.28 Ch 5 …. 9.65 Chs 5–8 …. 9.81 Ch 8 …. 9.19 ss 5–6 …. 12.16 s 6(2) …. 13.6, 13.15 s 12 …. 9.78 s 19 …. 12.15 s 28 …. 9.27 s 30 …. 9.19 ss 61–62 …. 9.87 s 65 …. 9.88 s 66 …. 9.89 s 73 …. 9.27, 9.45 s 74 …. 9.17 s 75 …. 9.45 ss 75A–76 …. 9.32 s 75B(1) …. 13.15 s 75B(2) …. 13.15 ss 82–96 …. 13.17 s 84 …. 9.40, 9.93 s 86 …. 9.64 s 86(1) …. 9.64 s 122 …. 13.34 s 126(1) …. 9.53, 12.18 s 126(2) …. 9.50, 12.19 s 126(3) …. 9.48 s 126(4) …. 9.52, 12.23 s 126(5) …. 9.57, 12.21 s 126(6) …. 12.9, 12.19 s 127(1) …. 9.50 s 127(3) …. 12.19 ss 130–132 …. 12.17

1 QC 9 B L :D :QB 1 :L = ? E E : A

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LA

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s 132 …. 12.23 s 136 …. 10.19 s 139 …. 10.19 s 140 …. 12.12, 12.22 ss 141–143 …. 11.20, 11.27 s 141(1) …. 11.27 s 142 …. 11.27 s 142(1) …. 9.51, 12.20 s 145 …. 9.60, 12.28 s 146 …. 14.6 s 147 …. 12.24 s 155 …. 12.16 s 170 …. 13.6, 13.15 s 171 …. 13.6, 13.15 Sch 1, Pt 1.1 …. 9.78 Sch 1, Pt 1.2 …. 9.78 Liquor Act 2010 s 258 …. 9.8 Marriage Equality (Same Sex) Act 2013 …. 3.20, 9.9 Self-Government (Citation of Laws) Act 1989 s 5 …. 9.77 Supreme Court Act 1933 s 25 …. 2.28 s 37L(3) …. 7.38 University of Canberra Act 1989 …. 12.17

NEW SOUTH WALES Administrative Decisions Review Act 1997 …. 6.46 Anti-Discrimination Act 1977 …. 6.45 s 90 …. 6.45 Australia Acts (Request) Act 1985 …. 2.87 Births, Deaths and Marriages Registration Act 1995 …. 12.30 Children (Criminal Proceedings) Act 1987 s 15A …. 21.21 Civil and Administrative Tribunal Act 2013 …. 6.44 s 13 …. 6.44 s 30 …. 6.46 s 45 …. 6.48 s 60 …. 6.48 Civil Liability Act 2002 …. 8.47, 10.32, 13.13 s 15 …. 13.13 s 15(3) …. 13.13 s 45 …. 7.61 s 70 …. 7.55 s 71 …. 7.55 Civil Procedure Act 2005 s 26 …. 6.40 s 56(1) …. 6.40 s 56(3) …. 6.40 s 56(5) …. 6.40 s 99 …. 6.40

C1

L :D ALL ,

C

L :D

I

L

E DB E

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42-

xxxiii

LAYING DOWN THE LAW

Criminal Procedure Regulation 2010 …. 4.37 reg 35 …. 4.38 reg 36 …. 4.37 Crown Lands Act 1989 …. 15.3 s 4(2A) …. 15.3 s 4(3) …. 15.3 Dividing Fences Act 1991 …. 7.10, 7.11 s 3 …. 7.10, 7.11 s 7 …. 7.10 s 8 …. 7.10, 7.11 s 13 …. 7.10 s 14(c) …. 7.10 Dust Diseases Tribunal Act 1989 s 25B …. 7.16 s 25B(1) …. 7.16 Encroachment of Buildings Act 1922 …. 12.14 Evidence Act 1898 …. 12.14 Evidence Act 1995 …. 7.23, 8.45 s 84 …. 6.22 s 97 …. 6.22 s 98 …. 6.22 s 101 …. 6.22 s 135 …. 6.22 s 137 …. 6.22, 8.38, 8.58 s 138 …. 6.22 s 139 …. 6.22 s 165(1)(e) …. 6.23 Gaming and Betting Act 1912 …. 10.15 Graffiti Control Act 2008 …. 15.4 s 4 …. 15.4 s 6 …. 15.4 s 9 …. 15.4 Graffiti Control Regulation 2014 …. 15.4 reg 4 …. 15.4 reg 5 …. 15.4 Guardianship Act 1987 s 14 …. 6.44 Home Building Act 1989 s 48K …. 6.45 Impounding Act 1993 …. 15.5 Pt 2, Div 1 …. 15.5 Pt 2, Div 2 …. 15.5 Pt 2, Div 3 …. 15.5 Pt 2, Div 4 …. 15.5 Independent Commission Against Corruption Act 1988 …. 11.13 s 8 …. 11.13 Interpretation Act 1987 …. 9.17, 15.3, 15.5 Pt 6 …. 9.81 s 5 …. 9.93, 14.7 s 6 …. 12.16, 15.3 s 8 …. 9.60, 12.28, 15.3 s 9 …. 14.6, 14.7 s 9(1) …. 15.3 s 9(2) …. 14.6

1

Q B AL R

PB 6 PB 0 LL

LA

/DD B AL

N =

Coal Acquisition Act 1981 …. 13.25 s 5 …. 13.25 s 6 …. 13.25 s 6(3) …. 13.25 Companion Animals Act 1998 …. 8.36 s 14 …. 8.36 Companies (New South Wales) Code 1981 …. 12.36 Constitution Act 1902 …. 2.64 Ch 3, Pt 4 …. 3.31 Pt 2A …. 3.31 Pt 4A …. 3.31 Pt 8 …. 3.14 Pt 9 …. 3.27 s 2 …. 4.63 s 5 …. 3.16 s 7 …. 9.12 s 7A …. 9.12 s 7B …. 9.12 Conveyancing Act 1919 s 66G …. 12.34 Costs in Criminal Cases Act 1967 …. 6.13 Crimes Act 1900 …. 9.78, 12.36 s 18(1)(a) …. 6.23 s 45 …. 11.15, 12.20 s 419 …. 6.23 Crimes (Appeal and Review) Act 2001 …. 6.31 s 107 …. 6.31 Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2006 …. 6.31 Crimes (Local Courts Appeal and Review) Act 2001 Pt 3 …. 8.62 Crimes (Sentencing Procedure) Act 1999 s 25D …. 6.41 Crimes (Serious Sex Offenders) Act 2006 s 17 …. 8.47 Criminal Appeal Act 1912 …. 2.27 s 5 …. 6.30 s 5BA …. 6.58 s 5D …. 6.31 s 5F …. 6.31 s 6 …. 6.30 s 6(1) …. 7.48 s 10(1)(a) …. 6.30 Criminal Procedure Act 1986 Chs 3–5 …. 6.21 Pt 4 …. 6.52 s 29 …. 6.52 s 29(3) …. 6.52 ss 30–31 …. 6.52 s 48 …. 6.7 s 173 …. 6.7 ss 212–214 …. 6.13 s 215 …. 6.13

xxxiv

1 QC 9 B L :D :QB 1 :L = ? E E : A

=

LA

: ,

PB 6 PB 0 LL ,

LA

7 8

L3

C1

L :D ALL ,

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42-

1

Q B AL R

PB 6 PB 0 LL

LA

/DD B AL

N =

TABLE OF STATUTES

s 12 …. 13.34 s 21C …. 12.28 s 23 …. 9.22 s 24 …. 9.17 ss 27–30C …. 13.17 ss 28–30 …. 9.93 s 30 …. 9.40, 9.93 s 33 …. 10.19, 15.3 s 34 …. 11.20, 11.21 s 34(2)(a) …. 9.51, 12.20 s 35(1)(a) …. 9.53, 12.18 s 35(2)(c) …. 12.19 s 35(2)(c) …. 9.50 s 35(4) …. 12.19 s 39 …. 9.87 s 41 …. 9.88 s 41(3) …. 9.89 s 41(4) …. 9.89 s 41(5) …. 9.89 s 64A …. 9.57, 12.21 s 76 …. 15.3 Legal Profession Uniform Conduct (Barristers) Rules 2015 …. 5.26, 5.43, 5.51, 5.52, 5.55, 5.56 r 3 …. 5.26 r 4 …. 5.26 r 17 …. 5.55 r 26 …. 5.57 r 35 …. 5.53 r 49 …. 5.57 r 87 …. 5.51 r 89 …. 5.52 Legal Profession Uniform Law …. 5.25, 5.27 Pt 3.6 …. 5.20 Pt 5.4 …. 5.20 Pt 5.6 …. 5.20 Pt 8.3 …. 5.20 s 34 …. 5.35 s 101 …. 5.20 Sch 2 …. 5.20 Local Government Act 1993 …. 15.4 Mental Health Act 1958 …. 9.37 Native Vegetation Conservation Act 1997 …. 6.58 s 12(f) …. 6.58 Notification of Births Act 1915 …. 9.58 Poisons and Therapeutic Goods Regulation 1994 cl 149(f) …. 14.7 Prevention of Oil Pollution of Navigable Waters Act 1960 …. 10.17 s 7E …. 10.17 s 7E(3) …. 10.17 Professional Standards Act 1994 …. 5.27 Real Property Act 1900 …. 12.34 Road Obstructions (Special Provisions) Act 1979 …. 9.30 Road Obstructions (Special Provisions) Revival and Amendment Act 1979 …. 9.30

1 QC 9 B L :D :QB 1 :L = ? E E : A

=

LA

: ,

PB 6 PB 0 LL ,

LA

7 8

L3

Stamp Duties Act 1920 …. 12.34 s 65 …. 12.34 Subordinate Legislation Act 1989 …. 9.81 Pt 2 …. 9.65 Pt 3 …. 9.92 Summary Offences Act 1988 s 4A …. 4.31 Supreme Court Act 1970 …. 2.28 s 45 …. 7.38 s 45(2) …. 7.39 Supreme Court Rules 1970 Pt 31, r 2 …. 10.17 r 75.3J …. 6.34 Trustee Act 1915 …. 12.34 Uniform Civil Procedure Rules 2005 Pt 6 …. 6.7 r 2 …. 6.34 r 50.3 …. 6.30 Sch 7 …. 6.34 Valuation of Land Act 1916 s 132(1)(d) …. 12.9 Wild Dog Destruction Act 1921 …. 15.3, 22.33 s 2 …. 15.3 s 20(e1) …. 15.3 s 3 …. 15.3 s 6 …. 15.3 s 7 …. 15.3 s 7(a) …. 15.3 s 8 …. 15.3 s 23 …. 15.3 s 26 …. 15.3 Wills, Probate and Administration Act 1898 s 61B(3) …. 10.12 Work Health and Safety Act 2011 s 22(2)(e)(ii) …. 21.30 s 152 …. 6.8

NORTHERN TERRITORY Aboriginals Ordinance 1918 …. 3.46 Crimes (Victims Assistance) Act 1989 …. 12.33 Criminal Code Act 1983 s 189A …. 4.31 Evidence (National Uniform Legislation) Act 2011 …. 7.23 Interpretation Act 1978 …. 9.17 Pt 7 Divs 2–3 …. 9.81 s 4 …. 9.93, 10.19 s 6 …. 9.28 ss 11–12 …. 9.93 ss 11–16 …. 13.17 s 12 …. 9.40, 9.93 s 18 …. 9.79 s 24 …. 9.60, 12.28 s 28 …. 9.41 s 38 …. 13.34 C1

L :D ALL ,

C

L :D

I

L

E DB E

: A = L:BD : LB

.=

42-

xxxv

LAYING DOWN THE LAW

Interpretation Act 1978 (NT) – cont’d s 49 …. 9.79 s 55(1) …. 9.53, 12.18 s 55(2) …. 9.50, 12.19 s 55(4) …. 9.52, 12.19, 12.23 s 55(5) …. 9.57, 12.21 s 55(6) …. 9.50, 12.19 s 62A …. 10.19 s 62B …. 11.20 s 62B(2)(a) …. 9.51, 12.20 s 62C …. 12.24 s 62D …. 12.23 s 62D(c) …. 12.23 s 63 …. 9.87 s 63(8) …. 9.82 s 63(9) …. 9.88 s 63(9)–(10) …. 9.89 Legal Profession Act 2006 …. 5.27 Ch 4 …. 5.20 Liquor Act 1978 s 101U(1) …. 4.31 Northern Territory Civil and Administrative Tribunal Act 2014 …. 6.44 Powers of Attorney Act 1979 …. 9.33 Powers of Attorney Act 1980 …. 9.33 Professional Standards Act 2004 …. 5.27 Rights of the Terminally Ill Act 1995 …. 3.19 Summary Offences Act 1923 s 47 …. 4.31 s 53 …. 4.31 Supreme Court Act 1979 Pt IV …. 2.28 s 23 …. 7.38 Welfare Ordinance 1953 …. 4.61

ss 17A–22C …. 13.17 s 19 …. 9.93 s 20 …. 9.40 ss 32–32AB …. 12.16 s 32B …. 9.60, 12.28 s 32C …. 9.60, 12.28 s 32CA …. 14.6 s 35C(2) …. 12.23 s 36 …. 10.23 s 38 …. 13.34 Anti-discrimination Act 1991 …. 9.53 Civil Liability Act 2003 s 49A(2) …. 7.55 s 49B(2) …. 7.55 Constitution Act 1867 s 53 …. 9.12 Constitution Act Amendment Act 1922 …. 9.11 Constitution of Queensland Act 2001 …. 3.31 Ch 2, Pt 5, Div 2 …. 3.31 Ch 3, Pt 1 …. 3.31 Ch 3, Pt 2 …. 3.31 Ch 3, Pt 4 …. 3.31 Ch 4 …. 3.27 Ch 7 …. 3.14 s 3A …. 4.63 s 4A …. 9.12 s 51 …. 3.31 s 78 …. 9.12 Criminal Code Act 1899 …. 9.57, 9.68 ss 1–753 …. 9.57 s 302(1)(a) …. 6.23 Sch 1 …. 9.57, 12.21 Drugs Misuse Act 1986 …. 9.68 Election Acts Amendment Act 1965 …. 4.61 Evidence Act 1977 s 97 …. 7.23 s 98 …. 7.23 s 101 …. 7.23 Fisheries Regulation Act 1995 …. 9.34 Human Rights Act 2019 …. 3.59 Invasion of Privacy Act 1971 s 43 …. 13.11 s 43(2)(c) …. 13.11 Judicature Act 1876 …. 2.28 Legal Profession Act 2004 …. 5.6 Legal Profession Act 2007 …. 5.27 Pt 7 …. 5.20 Liquor Act 1992 …. 4.54, 4.55 s 168B …. 4.54 Penalties and Sentencing Act 1992 …. 4.43 s 9(2) …. 4.43 s 9(2)(p) …. 4.46 s 9(2)(r) …. 4.43

N =

QUEENSLAND

1

Q B AL R

PB 6 PB 0 LL

LA

/DD B AL

Acts Interpretation Act 1954 …. 9.17 s 11 …. 9.67 ss 12–12A …. 9.67 s 13 …. 13.33 s 14(1) …. 9.53, 12.18 s 14(2) …. 9.50, 12.19 s 14(3) …. 9.52, 12.23 s 14(4) …. 12.19 s 14(5) …. 9.57, 12.21 s 14(6) …. 12.9 s 14(7) …. 9.50, 12.19 s 14A …. 10.19, 10.23, 13.23 s 14A(1) …. 10.23 s 14B …. 11.20 s 14B(3)(a) …. 9.51, 12.20 s 14C …. 12.24 s 14D …. 12.23 s 14D(c) …. 12.23 s 15A …. 9.23

xxxvi

1 QC 9 B L :D :QB 1 :L = ? E E : A

=

LA

: ,

PB 6 PB 0 LL ,

LA

7 8

L3

C1

L :D ALL ,

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L :D

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.=

42-

TABLE OF STATUTES

Professional Standards Act 2004 …. 5.27 Queensland Civil and Administrative Tribunal Act 2009 …. 6.44 Safety in Recreational Water Activities Act 2011 …. 21.33 Statutory Instruments Act 1992 …. 9.81 Pt 7 …. 9.92 s 3 …. 9.93 s 14 …. 9.93, 10.19 s 15 …. 11.20 ss 32–35 …. 9.87 s 50 …. 9.88 s 51 …. 9.89, 9.93 Sch 1 …. 9.93 Summary Offences Act 2005 s 6 …. 4.31 Supreme Court Act 1921 …. 9.96 Supreme Court of Queensland Act 1991 s 42 …. 7.38

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SOUTH AUSTRALIA Acts Interpretation Act 1915 …. 9.17 Pt 3 …. 9.81 Pt 3A …. 9.92 s 3A …. 9.93, 10.19 s 5 …. 9.67 s 7 …. 9.23 s 12 …. 9.89 s 14A …. 9.93 s 16 …. 9.40, 9.93 ss 16–17 …. 13.17 s 17 …. 9.93 s 18 …. 13.28 s 19 …. 9.48, 12.15 s 19(1)(a) …. 9.57, 12.21 s 19(1)(b) …. 9.53, 12.18 s 19(1)(c) …. 9.52, 12.23 s 19(1)(d) …. 12.9 s 19(2) …. 9.50 s 19(2)(a) …. 12.19 s 19A …. 12.23 s 20 …. 13.33 s 21 …. 12.31 s 22 …. 10.14, 10.19, 10.24, 13.23 s 22(1) …. 10.24 s 26 …. 9.60, 12.28 s 34 …. 14.6 s 48 …. 2.58, 8.84 Alice Springs to Darwin Railway Act 1997 …. 9.35 Alice Springs to Darwin Railway (Financial Commitment) Amendment Act 1999 …. 9.35 Civil Liability Act 1936 s 67 …. 7.55 Constitution Act 1934 Pt 2A …. 3.14 Pt 3 …. 3.31

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Pt 4 …. 3.27 s 8 …. 9.12 s 10A …. 9.12 s 64A …. 9.12 s 88 …. 9.12 Criminal Law Consolidation Act 1929 …. 7.64 s 73(3) …. 7.64 s 73(5) …. 7.64 s 349 …. 7.41 s 353 …. 7.41 s 353(1) …. 7.41 Criminal Law Consolidation Act Amendment Act 1976 s 12 … 7.64 Criminal Law Consolidation (Rape) Amendment Act 1992 …. 7.64 Criminal Law (Sentencing) Act 1988 s 9C …. 4.37 Criminal Procedure Act 1921 s 152 …. 7.41 s 158 …. 7.41 s 158(2) …. 7.41, 7.48 s 159 …. 6.33 s 159(1) …. 6.35 Environment Protection (Sea Dumping) Act 1984 …. 9.57 Evidence Act 1929 s 34S …. 7.23 Hairdressers Act 1988 s 1 …. 9.47 Judicature Act 1878 …. 2.28 Legal Practitioners Act 1981 …. 5.27 Pt 6 Div 2 …. 5.20 Planning Act 1982 …. 12.27 Primary Producers Debts Act 1935 s 39(1)(a) …. 13.18 s 39(2)(d) …. 13.18 Professional Standards Act 2004 …. 5.27 Real Property Act 1858 …. 2.70 Sentencing Act 2017 s 22 …. 4.37 South Australian Civil and Administrative Tribunal Act 2013 …. 6.44 Subordinate Legislation Act 1978 …. 9.81 s 10AA …. 9.87 Subordinate Legislation Act 1992 …. 9.81 s 10 …. 9.88 Summary Offences Act 1953 s 7 …. 4.31 Supreme Court Act 1853 …. 2.28 Waterworks Act 1932 …. 12.27 Waterworks Regulations 1974 …. 12.27 C1

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LAYING DOWN THE LAW

Tasmanian Civil and Administrative Tribunal Act 2020 …. 6.44

TASMANIA

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Acts Interpretation Act 1931 …. 9.17 s 4 …. 10.19 s 5 …. 9.93 s 6(2) …. 9.53, 12.18 s 6(3) …. 9.57, 12.21 s 6(4) …. 9.50. 12.19 s 6(6) …. 13.33 s 6(7) …. 9.67 s 8A …. 10.19 s 8B …. 11.20 s 8B(3)(a) …. 9.51, 12.20 s 9 …. 9.24 s 9(5) …. 9.87 s 10A …. 14.6 ss 14–18A …. 13.17 s 16 …. 9.40, 9.93 s 24 …. 9.60, 12.28 s 24A …. 9.60, 12.28 s 27 …. 13.34 s 38A …. 9.87 s 47 …. 9.87 s 47(4) …. 9.88 ss 47(4)–(6) …. 9.89 Animal Welfare Act 1993 s 10 …. 12.4 s 10(2) …. 12.4 Constitution Act 1934 …. 3.15 Pt II …. 3.31 ss 8F–8G …. 3.31 s 41A …. 3.16, 9.12 Criminal Code Act 1924 …. 3.43 s 136 …. 13.16 s 400(2) …. 7.38 s 402(4A) …. 8.49 Evidence Act 2001 …. 7.23 Family Violence Act 2004 …. 13.17 s 12(1) …. 13.17 Guide Dogs and Hearing Dogs Act 1967 s 3 …. 9.49 Legal Procedure Act 1903 …. 2.28 Legal Profession Act 2007 …. 5.27 Ch 4 …. 5.20 Police Offences Act 1935 s 12 …. 4.31 Professional Standards Act 2005 …. 5.27 Statute Law Revision (Penalties) Act 1995 …. 9.35 Subordinate Legislation Act 1992 …. 9.81 Pt 3 …. 9.92 s 3A …. 9.65 s 10 …. 9.65 s 56 …. 9.65 Supreme Court Civil Procedure Act 1932 …. 2.28 s 15(9) …. 7.38

xxxviii

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VICTORIA Charter of Rights and Responsibilities 2006 …. 3.59, 13.4 Constitution Act 1975 Pt II Div 8 …. 3.31 Pt IIA …. 3.14 Pt III …. 3.27 s 1A …. 4.63 s 18 …. 9.12 s 77 …. 3.23 s 85 …. 9.12 Crimes Act 1958 s 7A …. 12.41 s 30F …. 12.41 s 398A …. 7.23 Domestic Animals Act 1994 …. 8.36 Evidence Act 2008 …. 7.23 s 137 …. 8.38 Interpretation of Legislation Act 1984 …. 9.17 s 4 …. 9.93 s 10 …. 9.46 s 11 …. 9.25 s 14 …. 9.40 ss 14–16 …. 13.17 s 28 …. 9.93 ss 28–29 …. 9.89 s 35 …. 11.28, 11.29 s 35(a) …. 10.18, 10.19, 11.29 s 35(b) …. 11.20 s 35(b)(i) …. 9.48, 9.51, 12.9, 12.14, 12.15, 12.20, 12.22 s 36(1)(a) …. 9.53, 12.18 s 36(2) …. 9.57, 12.21 s 36(2A) …. 9.50, 12.19 s 36(3) …. 9.50, 12.19 s 36(3A) …. 9.52, 12.19, 12.23 s 36(3B) …. 12.9 s 36A …. 12.23 s 37 …. 9.60, 12.28 s 37(a) …. 12.29 s 45 …. 14.6 s 48 …. 13.34 Judicature Act 1883 …. 2.28 Jury Directions Act 2013 …. 10.34 Legal Profession Uniform Law Application Act 2014 …. 5.25, 5.27 Pt 2 …. 5.20 Pt 3, Div 2 …. 5.20 Pt 3, Divs 2–4 …. 5.20 s 1 …. 9.55 s 10 …. 5.20 Sch 1 …. 5.20 Sch 1 cl 34 …. 5.35 Sch 1 cl 35 …. 5.35 C

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TABLE OF STATUTES

s 18 …. 10.19 s 19 …. 11.20 s 19(2)(a) …. 9.51, 12.20 s 20 …. 9.22 s 28 …. 9.67 s 31(1) …. 9.48, 12.15 s 31(2) …. 9.57, 12.21 s 32(1) …. 9.53, 12.18 s 32(2) …. 9.50, 12.19 ss 33–39 …. 13.17 s 34 …. 9.93 s 37 …. 9.40, 9.93 s 38 …. 9.92 s 41 …. 9.87 s 42 …. 9.88, 9.89 s 56 …. 14.6 s 73 …. 2.58 Justices Act 1902 …. 10.10 s 197(1)(a) …. 7.12 Legal Profession Act 2008 …. 5.27 Pt 13, Div 10 …. 5.20 Pt 16, Div 2 …. 5.20 s 638 …. 21.30 Mental Health Act 1962 …. 9.18 Mental Health Act 1981 … 9.18 Mental Health Act 1996 …. 9.18 Offenders Probation and Parole Act 1963-1964 s 37(3) …. 7.12 Offshore Minerals Regulations 2010 …. 21.38 Police Act 1892 …. 10.10 s 84 …. 10.10 Police Act 1963 s 3 …. 10.10 Professional Standards Act 1997 …. 5.27 Road Traffic Act 1974 s 5(1) …. 7.12 s 49 …. 12.34 s 49(1) …. 7.12 s 49(1)(a) …. 7.12 s 49(2) …. 7.12 State Administrative Tribunal Act 2004 …. 6.44 Supreme Court Act 1880 …. 2.28 Supreme Court Act 1935 s 62 …. 7.38

Sch 1 cl 174 …. 5.35 Sch 1 cl 470…. 5.35 Presbyterian Synod of Victoria Act 1867 …. 9.74 Professional Standards Act 2003 …. 5.27 Public Prosecutions Act 1994 s 22(1)(b)(ii) …. 6.8 Serious Sex Offenders Monitoring Act 2005 …. 8.47 Social Security Act 1991 …. 9.31 Subordinate Legislation Act 1994 …. 9.81 Pt 2 …. 9.65 Pt 3 …. 9.87 s 5 …. 9.92 s 23 …. 9.88 s 24 …. 9.89 Subordinate Legislation (Revocation) Act 1984 …. 9.90 Summary Offences Act 1966 s 17 …. 4.31 Supreme Court Act 1986 s 12 …. 7.38 Teaching Service Act 1981 s 30(1) …. 12.29 Town and Country Planning (Amendment) Act 1984 …. 9.31 s 2(2) …. 9.31 Victorian Civil and Administrative Tribunal Act 1998 …. 6.44

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WESTERN AUSTRALIA Aboriginal Affairs Planning Authority Act 1972 …. 7.12 s 49 …. 7.12 Australia Acts (Request) Act 1985 …. 2.87, 9.58 Constitution Act 1889 Pt IIIA …. 3.31 Pt IV …. 3.27 Pt V …. 3.27 s 73 …. 9.12 Criminal Code Act Compilation Act 1913 s 41(4) …. 8.49 s 74A …. 4.31 Dividing Fences Act 1961 …. 15.6 Electoral Act Amendment Act 1962 …. 4.61 Evidence Act 1906 s 31A …. 7.23 Fines, Penalties and Infringement Notices Enforcement Act 1994 …. 12.34 Interpretation Act 1984 …. 9.17, 15.6 Pt 6 …. 9.81 s 5 …. 9.93 s 8 …. 12.31 s 10 …. 9.60, 12.28

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IMPERIAL Acts of Parliament (Commencement) Act 1793 (33 Geo III, c 13) …. 9.18 Appeal of Murder, etc. Act 1819 (59 Geo 3, c 46) …. 2.17 Australian Constitutions Act (No 1) 1842 (5 & 6 Vic, c 76) …. 2.63 Australian Constitutions Act (No 2) 1850 (13 & 14 Vict, c 59 …. 2.64 L3

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LAYING DOWN THE LAW

Criminal Justice Act 2003 Pt 10 …. 6.31 Criminal Procedure and Investigations Act 1996 ss 54–57 …. 6.31 Factory Act 1833 …. 2.24 House of Lords Act 1999 …. 2.34 House of Lords Reform Act 2014 …. 2.34 Human Rights Act 1998 …. 3.58, 3.59 s 3(1) …. 3.58 s 4 …. 3.58 s 19 …. 3.58 Judicature Act 1873 …. 2.26, 2.27 Judicature Act 1875 …. 2.26, 2.27 Licensing Act 1872 s 12 …. 10.35 Magna Carta 1215 …. 2.2, 2.10, 2.32, 2.50, 2.67, 3.47 Official Secrets Act 1920 s 3 …. 10.13 s 7 …. 10.35 Patent Law Amendment Act 1852 …. 2.24 Road Traffic (Driving Offences) Act 1936 …. 7.12 Street Offences Act 1989 s 1 …. 10.35 s 2 …. 10.35 Uniformity of Process Act 1832 …. 2.26

Australian Courts Act 1828 (9 Geo 4, c 83) …. 2.58, 2.66, 2.69, 8.84 Colonial Acts Confirmation Act 1863 (26 & 27 Vict, c 84) …. 2.71 Colonial Laws Validity Act 1865 (28 & 29 Vict, c 63) …. 2.3, 2.71, 2.84, 2.87, 21.35 s 1 …. 2.71 s 2 …. 2.74 s 3 …. 2.71, 2.84 s 5 …. 3.16 Commonwealth of Australia Constitution Act 1900 (63 & 64 Vict, c 12) …. 2.80, 3.2 s 9 …. 21.36 Federal Council of Australasia Act 1885 (48 & 49 Vict, c 60) …. 2.78 Judicial Committee Act 1833 (3 & 4 Will 4, c 41) …. 2.73 New South Wales Act 1823 (4 Geo 4, c 96) …. 2.61, 2.62, 2.64, 2.66, 2.67 s 2 …. 2.66 New South Wales Constitution Statute 1855 (18 & 19 Vict, c 54) …. 2.64 Transportation Act 1717 (4 Geo 1, c 11) …. 2.55 Statute of Westminster 1931 (22 & 23 Geo 5, c 4) …. 2.3, 2.84, 2.85, 2.87, 21.35 s 4 …. 2.84 s 10(1) …. 2.85

UNITED STATES OF AMERICA

NEW ZEALAND

Constitution …. 2.49, 2.81, 3.8, 3.45, 3.54

N =

Goods and Services (Price Control) Act 1941 …. 12.39 Prices of Goods Act 1939 …. 12.39 Race Relations Act 1971 s 25(1) …. 12.30 Restriction of Offensive Weapons Act 1959 s 1 …. 12.39

INTERNATIONAL Convention for the Protection of the World Cultural and Natural Heritage 1975 …. 3.36 Convention on International Trade in Endangered Species of Wild Fauna and Flora 1975 …. 3.36 Convention on Wetlands of International Importance especially as Waterfowl Habitat 1975 …. 3.36 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter 1972 …. 9.57 Convention Relating to the Status of Refugees 1951 … 11.10 European Convention for the Protection of Human Rights and Fundamental Freedoms 1953 …. 3.43, 3.58 First Optional Protocol to the ICCPR: Optional Protocol to the International Covenant on Civil and Political Rights 1976 …. 3.43 International Convention on the Elimination of All Forms of Racial Discrimination 1969 …. 3.37,4.48 Art 1 …. 3.37 Art 1(4) …. 4.48

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Act of Settlement 1701 …. 2.2, 2.41, 2.66, 3.47 Air Force Act 1955 …. 2.40 Appeals Act 1972 …. 10.35 Armed Forces Act 2016 s 1 …. 2.40 Army Act 1955 …. 2.40 Australia Act 1986 …. 2.71, 2.75 s 1 …. 2.88 Bill of Rights 1689 …. 2.2, 2.40, 2.66, 3.47, 3.54, 3.55, 3.56, 13.1, 13.2, 13.3, 13.4, 13.8 Chancery Procedure Act 1852 …. 2.26 Common Law Procedure Act 1852 …. 2.26 Constitutional Reform Act 2005 …. 2.49 Criminal Appeal Act 1907 …. 2.27

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TABLE OF STATUTES

Protocol Relating to the Status of Refugee 1967 …. 11.10 Rome Statute of the International Criminal Court 2002 …. 3.42 Vienna Convention on Diplomatic Relations 1964 …. 3.37 Vienna Convention on the Law of Treaties Art 31 …. 11.10, 11.11 Art 32 …. 11.11

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International Covenant on Civil and Political Rights 1976 …. 3.43 Art 17 …. 3.43 Kyoto Protocol to the United Nations Framework Convention on Climate Change 2005 …. 3.35, 3.37 Protocol No 14bis to the Convention for the Protection of Human Rights and Fundamental Freedoms 2009 …. 3.43

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xli

PART

1

Table of Exercises References are to paragraph numbers

Chapter 2 EXERCISE 1: Timelines

2.89

Chapter 3 EXERCISE 2: Bill of Rights and Parliament’s role

3.61

Chapter 4 EXERCISE 3: Extinguishment of native title EXERCISE 4: Sentencing of First Nations offenders EXERCISE 5: First Nations Australians and the law

4.23 4.50 4.70

Chapter 5 EXERCISE 6: Legal professional practice and ethical duties

5.59

Chapter 7 EXERCISE 7: Analysing a case EXERCISE 8: Identifying ratio and obiter

7.12 7.50

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Chapter 8 EXERCISE 9: Precedent in Australian courts

8.90

Chapter 9 EXERCISE 10: Reading and identifying parts of a statute EXERCISE 11: Using interpretation legislation EXERCISE 12: Legislation

9.58 9.61 9.97

Chapter 10

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EXERCISE 13: Approaches to interpretation

10.35

Chapter 11 EXERCISE 14: Use of extrinsic materials

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Chapter 12 EXERCISE 15: Interpretation in context

12.41

Chapter 13 EXERCISE 16: Presumptions of interpretation

13.37

Chapter 14 EXERCISE 17: Statutory obligations and discretions

14.10

Chapter 15 EXERCISE 18: Interpreting the Graffiti Control Act EXERCISE 19: Interpreting the Impounding Act EXERCISE 20: Interpreting the Dividing Fences Act

15.4 15.5 15.6

Chapter 16 EXERCISE 21: Strategy for legal research

16.26

Chapter 17 EXERCISE 22: Searching legal encyclopedias

17.39

Chapter 18 EXERCISE 23: Researching cases by case name EXERCISE 24: Researching cases by topic

18.40 18.42

Chapter 19 19.37

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EXERCISE 25: Researching an Act

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PART

1

Introduction 1 Laying the Foundations

3

2 The Origins and Historical Development of the Australian Legal System

17

3 The Australian Legal System

53

4 First Nations Australians and the Australian Legal System

81 119

6 Going to Law: Legal Dispute Resolution Processes

145

Copyright © 2020. LexisNexis Butterworths. All rights reserved.

5 The Legal Profession and Professional Legal Practice and Ethics

Creyke, Robin, et al. Laying down the Law, LexisNexis Butterworths, 2020. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6413182. Created from monash on 2021-02-01 22:30:06.

CHAPTER

1

Laying the Foundations Wherever law ends, tyranny begins.1

John Locke, ‘On Tyranny’, in Two Treatises of Government (1690) bk 2, s 202.

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Introduction

1.1

Why study law

1.5

Legal systems

1.6 1.11

− Legal theory

1.14

− Legal globalisation and convergence of legal systems

1.18

The civil law

1.19

The common law

1.21

− Sources of law

1.22

− Legal reporting and scholarship

1.23

− Legal research

1.29

− Why rules are not always certain

1.31

Categories of law

1.34

Technical language

1.39

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− The Western legal tradition

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CHAPTER 1

LAYING THE FOUNDATIONS

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Introduction This book offers students an introduction to the foundational knowledge and skills needed for their further study of law, as well as a resource that can be used throughout these studies and beyond. In Part 1, first Chapter 1 explores reasons for studying law; provides an overview of the major legal systems in the world, focusing on common law (Australia’s legal system), and civil law systems; their foundations, including the Western legal tradition; and the convergence of these major systems; and includes a brief introduction to legal theory, ways to categorise laws, and a warning about technical legal language. Second, it outlines the origins of the Australian legal system (Chapter  2), before explaining the key institutions and guiding principles that govern the creation, administration and enforcement of laws in Australia (Chapter  3). To appreciate this history and some of the ongoing privilege and disadvantage that British ‘settlement’2 wrought, Chapter  4 provides an insight into how the Australian legal system has treated and still treats First Nations Australians. To help students understand the roles and responsibilities of lawyers, Chapter 5 outlines the legal profession and the professional and ethical rules that govern this profession. The final section of the book’s introductory part (Chapter 6) endeavours to explain the various ways legal disputes are resolved, with a focus on the actors, steps, safeguards and limits of the criminal trial as a dispute resolution process, but referring also to forms of dispute resolution outside the formal hearing. Considerable attention is then given to the two primary types of law — case law (Part 2) and legislation (Part 3) — explaining how each type of law is created, understood and interpreted.These sections provide an introduction for the student who is new to law, as well as a wealth of detail and insight that makes the text a resource that can be accessed throughout legal studies and into practice. Similarly, Part 4 on legal research provides a comprehensive guide that will be useful for students in their early or later years of study, and even practitioners seeking to update their legal research skills, which are crucial given the speed with which the law evolves. Since the practice of law is essentially about the provision of objective advice and persuasion, written and oral communication skills are equally important.Therefore Part 5 provides guidance on legal writing, referencing, study and exam skills, with practical advice for students navigating the challenging demands of tertiary study. Finally, Part  6 provides an Essential Legal Toolkit that contains a useful array of resources on courts, law reports and key legal terms used in the book. The foundations provided by this book should serve a range of readers. It will equip those students commencing a law degree as well as those about to enter legal practice or embark on other endeavours. It will also prove a useful resource for those in other professional fields who seek to grasp the fundamentals to navigate the law in their particular environment. It is worth making a preliminary point that affects the scope of this book and it concerns the question: what is law? Any group of human beings, large or small, develops rules and expectations to regulate behaviours within the group. Thus families, tribes, schools, societies, religious denominations, municipalities and nations all have rule systems that regulate dealings between their members and aim to prevent anti-social, and encourage desirable, behaviours. It is important to acknowledge such pluralism of 2

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1.1

1.2

1.3

1.4

See 2.56 for the legal meaning given to this term in international law.

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5

LAYING DOWN THE LAW

normative rules, but also to distinguish between them. The focus of this book is not on those informal or unwritten rule systems that govern families, cultures or religions, but the written, state-issued rules that constitute a formal legal system. The formal laws are those produced by public institutions — such as parliaments and courts — that are promulgated and administered publicly, interpreted by the courts, and enforced by power of the state. They might reflect, complement and even rely on social norms and customs, but are distinguishable in their public and formal nature. For further discussion of debates on what is law, see 1.14ff.

Why study law

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1.5

1.6 customary law: rules of conduct, obligatory on those within their scope, established by long usage, eg, First Nations Law

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The study of law is intrinsically rewarding and can equip students for a wide range of different occupations. Relevantly, law in Australia is practised by solicitors, barristers, legally qualified members of tribunals, magistrates and judges, all of whom are professional lawyers. But qualified lawyers also work in many other fields; for example, in government departments and agencies, whether or not in the legal section. Persons with legal qualifications are frequently recruited by banks, investment and publishing houses, and industrial or commercial concerns. Patent officers, police and accountants are among those professionals who need some legal knowledge, while law graduates can also go on to become politicians, academics, journalists, managers, advisers or administrators, among other possibilities. Legal studies can also complement study in many other fields including health, commerce, engineering, social work and creative arts. Studying law is not only about learning the rules; it also trains students to think logically, analytically and critically, and inculcates reading, writing, communication and research skills, in addition to other foundation legal skills discussed in this book. That training provides a broad liberal, as well as a specialist, education which equips the successful student for many different careers. Above all, the study of law leads to an appreciation of law as an important and powerful regulatory tool, but one that needs to be wielded carefully and accountably within the limits of fundamental constitutional principles (see Chapter 3).

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Different legal systems have evolved in different parts of the world, each from a range of sources. Ancient peoples developed principles governing various matters. Nowadays those principles — perhaps the earliest source of law — are called customary law. Similarly, the great religions were fertile ground for the growth of rules governing their adherents. For example, the rules of conduct developed under Islam — known as Shar’ia — still form the basis of the legal systems of a number of countries, including Australia’s near neighbours, Indonesia and, to an extent, Malaysia. In what has become known as the Western legal tradition — see  1.11 — two relatively distinct systems of law have developed and been adopted (or imposed) across the world: common law and civil law. The distribution of these two systems to some extent reflects regional similarities, but largely also colonialism; the common law system developed in England (see Chapter 2) is now seen predominantly in those countries that England colonised, while other European nations spread the civil law model.

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CHAPTER 1

LAYING THE FOUNDATIONS

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Australia, having been colonised by England, has a common law legal system: see Chapters 2 and 3. The essence of a common law system is that the judgments of courts operate not only to resolve the particular dispute of the specific parties before the court, but also stand as precedents for the resolution of future disputes of a similar nature. In this way, these judgments in legal cases are treated as a type of law, known as common law or case law. Other countries whose legal systems are based on the common law include the United States of America, New Zealand, Canada, Ireland, Kenya, India, most territories of the West Indies, Israel and, to some degree, Malaysia. In each of those countries the law has developed differently, reflecting local views of rights and justice and the prevailing social ethos. Most countries, however, use the other system of law in the Western legal tradition: civil law. This includes most of the states of continental Europe and South America, and some in Asia, such as Thailand and Japan. Generally speaking, in a civil law system much of the law is contained in comprehensive documents called ‘codes’ that are heavily influenced by principles derived from Roman law. The Chinese system is based on the civil law model overlaid on a socialist foundation. Important differences exist between the common law and civil law systems. Notably, civil law rules are generally developed by deduction from the principles in the codes, whereas at common law the rules emerge through an inductive process, in cases decided by the courts and tribunals. Both systems rely on precedent, that is, that like cases should be decided alike. But in countries that have a common law system, the doctrine of precedent has a more firm foundation. A number of countries have hybrid legal systems because of their historical relationships with English and Roman legal legacies. For example, Scotland, with its lengthy contacts with France, has a mixed legal system with features of both common and civil law systems. The same is true of Louisiana, which once belonged to France, and of Quebec in Canada.

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THE WESTERN LEGAL TRADITION The Western legal tradition is a name for the two legal systems — common law and civil law – that have evolved over centuries from a common heritage. The Romans created a body of law that they spread as they established their empire.The various parts of Roman law, which was influenced by Greek and Christian legal principles, were collected and organised by the Emperor Justinian into texts that came to be known as the Corpus Juris Civilis. With the disintegration of the Roman Empire and the subsequent disorder in the lands which had once formed that empire, the practice of Roman law ceased and the written records of the law were lost. Those inhabitants of Europe not living in complete lawlessness had only piecemeal local or customary laws with which to exert a civilising influence on their societies. Late in the 11th century in Italy, however, the missing Justinian texts containing the Roman code were found. Along with the Bible and the writings of the Greek philosophers, they became the focus of intensive study by scholars until, over time, the precepts and principles they contained came to form the basis for contemporary civil law, complementing and sometimes replacing the inadequate traditional and customary laws. From that point, the common law and the civil law developed separately — the common E D 8B 38 D = EC CED8I? ED

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1.10 civil law system: a legal system based on Roman law, comprised primarily of legislated ‘codes’ with a lesser role for judge-made precedent

1.11

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law by way of the procedure, methods and decisions of the English courts, and the civil law on the basis of the principles of Roman law combined with custom, canon law, local usages, royal decrees and judicial annotation. This history is relevant to Australia today because of the cultural and legal system superimposed by English colonisation. Although this history is contested, some have argued that it is important to appreciate it because it involves: an integrated understanding of the contribution of the early Romans and Greeks, the framework of what is frequently called the Judaeo-Christian ethic, the growth of the democratic tradition, particularly its British parliamentary iteration, the rule of law, the Enlightenment, and the spread of free and open intellectual inquiry. The Western tradition has further aspects, not least in the fields of literature, music and other art forms.Appreciating it is not an exercise in cultural triumphalism, rather recognition of a complex and enduring historical reality. Durability has been a key feature of that reality.3

natural law: the law of nature; law as the emanation of the Divine Providence, rooted in the nature and reason of humankind

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1.16 jurisprudence: (similar to legal theory) in this context, the science of the study of law; in other contexts, the study of a particular body of law, such as tort law or constitutional law, or simply the case law in any branch of law

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Another point of commonality is that both the common law and the civil law were inf luenced by the theory of natural law which, until the 18th century, was considered by many to be superior to any other theory. While the notion of natural law remains controversial, many of its themes underlie the present-day debate in the West over international human rights. Moreover, belief in the concept of natural law was, in part, the basis of the American and French revolutions — which, in turn, gave rise to much of our current understanding about the nature of democratic government. When the Americans said in their Declaration of Independence in 1776 that they held ‘these truths to be self-evident’, they were asserting a doctrine of natural law. LEGAL THEORY Legal theory is not easy to define. The expression broadly covers the definition, nature and function of law in modern societies, the nature of citizens’ obligations under law, the different theories underpinning legal reasoning, and the interpretation of legal texts. Legal theories have emerged and evolved over time as the following introductory history and discussion indicates. The concept of natural law was reintroduced to Western legal thought by Thomas Aquinas, the profoundly influential 13th-century philosopher and theologian. In his work he combined Aristotelian philosophy with the principles of Christianity. He argued that natural law is universal and informs national laws on the basis that certain values and rights are inherent in, or universally recognised by, human reason. Competing schools of thought, or legal theories and philosophies, have developed since the 14th century.These ideas, which are normally studied in courses on jurisprudence or legal theory, include accounts of the nature of law such as those of HLA Hart, Lon Fuller, Ronald Dworkin, John Austin, Hans Kelsen and Joseph Raz. Among other movements, positivism, legal formalism, utilitarianism, and feminism have all contributed to the understanding of law. Developed over time in response to changes in social, political, economic and ethical understanding, some of these schools of thought have coexisted with others and they have had varying degrees of influence over the evolution of the law in different jurisdictions. The study of the creation and meaning of law, as developed by

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legislatures and courts, is enriched by the study of jurisprudence or legal theory, which better enables an understanding of the factors informing that development. An example of the discourse is the 1958 Harvard Law Review debate between HLA Hart4 and Lon Fuller5 on positivism, morality, and the nature of law. Nearly 60 years later, discussion of their theories remains relevant and continues. Hart took the positivist view in arguing that morality and law are separate — so even ‘bad’ laws are valid. Fuller’s approach, which is consistent with the philosophy of Thomas Aquinas, is that morality is intrinsic to the law and is the source of its binding power or validity. For Hart, it makes no sense to say that laws cease to be laws when they violate certain moral standards — but the natural law tradition does just that. The effect of the opposing views can be seen when applied to the laws promulgated by the totalitarian Nazi regime in Germany. When democracy was restored after the Second World War, the courts had to decide how to deal with legal rules made by the Nazi government. For Hart, although those laws were extremely unjust, they remained valid because the legal system to which they belonged was valid. Nevertheless, because the laws were morally repugnant, they should be disobeyed. Fuller, in contrast, thought that the obligation of fidelity to law arises from the bond of reciprocity between government and citizens. When this bond of reciprocity is ruptured by the government, through its creation of immoral laws, nothing remains on which to ground the citizens’ duty to obey. Similar arguments support civil disobedience and conscientious objection, concepts which clash with the beliefs of those who maintain the need for universal compliance with existing rules, however unfair or unjust: see ‘Rule of law’ at 2.2, 2.48ff and 3.13. LEGAL GLOBALISATION AND CONVERGENCE OF LEGAL SYSTEMS It is not only theories of law that affect its principles. Geo-political forces are also important. Like other aspects of 21st-century life, the law is influenced by the forces of globalisation, leading to a degree of convergence in both the substantive and the procedural law of different jurisdictions. This convergence is occurring formally, through instruments and institutions of international law dealing with matters as diverse as trademarks, travel, climate change and organised crime. It is also occurring informally, as a consequence of increased contact and communication between nations.The convergence is particularly strong in the countries of the European Union. In many respects, the laws of the various European nations continue to operate quite separately. However, all are subject to numerous European treaties, laws passed by the European Parliament, and the decisions of the European Court of Human Rights and the European Court of Justice, bringing an unprecedented degree of uniformity to the laws of countries across continental Europe.

The civil law The above discussions of legal systems and the Western legal tradition have provided some insights into the history and sources of the civil law system. Those foundations have been built on and consolidated, particularly in France, from the 18th century. It was not until 4 5

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1.17 positivism: the theory that law is what humans declare it to be legal formalism: the theory that legal rules are separate from other social and political institutions

utilitarianism: the theory that an action is morally correct if the consequences of adopting it are more favourable to the majority than the consequences of not adopting it

1.18 feminism: the view that while law may provide nominal equality, it has been constructed by men, is under the control of men, and systematically favours the interests of men over women; therefore it should be reconceived to pursue genuine equality

1.19

HLA Hart, ‘Positivism and the Separation of Law and Morals’ (1958) 71(4) Harvard Law Review 593. Lon L Fuller,‘Positivism and Fidelity to Law: A Reply to Professor Hart’ (1958) 71(4) Harvard Law Review 630.

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the 19th century that most countries in continental Europe were in a position to develop wide-reaching and complex legal systems. Napoleon Bonaparte came to power after the French Revolution, which commenced in 1789; as well as expanding the French Empire, he drew up a detailed civil code to apply to the whole of France. By 1810, the Civil Code, the Code of Civil Procedure, the Commercial Code, the Code of Criminal Procedure and the Penal Code, together known as the Code Napoléon, had become law. The use of the Napoleonic Code spread throughout much of Europe and, although most nations have since drafted their own codes, and the French Code itself has been revised, it has had a strong influence on the current legal systems of civil law countries. Precepts from civil law systems have had a significant impact on the legal systems of countries with common law systems, wherever they are located, through trade and other interactions with the European Union by citizens, officials and corporations.This is another example of convergence of legal systems. That influence was experienced in the common law, notably by the United Kingdom during its membership of the European Union. This was due to the adoption, in accordance with the Treaty of Rome, of rules made by the European Parliament and through the findings of institutions such as the European Court of Justice. The decision by the United Kingdom to leave the European Union will inevitably result in a diminution of the effect of the civil law on the common law system as practised across the English channel.

The common law 1.21

legislation: new rules made by Parliament and by those to whom Parliament has delegated authority, generically known as subordinate legislation

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The common law, from its beginnings in the latter part of the 11th century, developed its particular characteristics precisely because it was common — it applied to all of England, Wales and, progressively, Ireland — and because of the relative stability of government in England over the subsequent centuries: see Chapter 2. SOURCES OF LAW A major source of the rules in a common law system is cases — the decisions, and the reasons for those decisions, made by judges in the courts: see  Chapters  7 and  8. Nowadays, however, an even more significant source of new rules is legislation, primarily the statutes enacted by Parliament. Part  3 deals in detail with legislation in Australia, explaining how it is made, the forms it takes and the purposes it serves (Chapter  9), followed by an explanation of the approaches taken by the courts and tribunals to the interpretation of legislation in this country (Chapters  10–14). Other sources are also increasingly important. These include international instruments such as treaties, agreements and conventions; international customary law, particularly in the mercantile area; and recognition of the laws and customs of the country’s First Nations peoples: see Chapter 4. LEGAL REPORTING AND SCHOLARSHIP To develop a body of law derived from court judgments to then apply across the land, there needed to emerge a system of reporting and publishing of those judgments. The evolution of case law principles depended on the existence of records of the previous cases. Today we take for granted our ready access to reports of court judgments, but that

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was not always so. Only in 1865 did the reporting of cases become systematic. The body of legal literature that developed during the early common law period was thin. But, however haphazardly it was applied, the doctrine of precedent, or stare decisis (see 2.8 and 7.13ff) — and thus the need to consult earlier decisions — was important even at that early stage. The few early law books that still exist are concerned with the workings of the courts. Unlike the Continental or Roman tradition, early English lawyers largely eschewed the scholarly treatise in favour of what we might think of today as the practitioner’s guide. Two of the earliest surviving works (dating from the 12th and 13th centuries, respectively), known as Glanvill and Bracton after their supposed authors, consist of the collected writs (see 2.11ff), together with notes on court procedure. These collections of writs — which were indispensable tools for the working lawyer — were followed in succeeding centuries by similar series. Perhaps the best known of the later writ compilations was Sir Edward Coke’s Book of Entries (1614). The earliest reports of cases came in two forms. First are the so-called ‘Rolls’: the court records which contain notes of the disputant parties and the final outcomes of cases, but without any indication of the reasoning used by the judges.6 The other source of information about early cases comes from what are known as the ‘Yearbooks’, of which the first surviving copy dates from the mid-13th century. The actual origin of the Yearbooks is obscure — we do not know whether they were written for practising lawyers or for law students — but, unlike the Rolls, the Yearbooks did make a record of the judges’ reasons for decisions. These Yearbooks were not officially sanctioned but compiled by private individuals. Gradually, the reports were ordered and published more systematically. By the mid-1500s, the Yearbooks were replaced by a more complete and formal (although still entirely private) series of reports. Because these reports were published by each reporter under his own name, they have become known collectively as the ‘Nominate Reports’. The Nominate Reports continued until 1865, when they were replaced by the series of officially sanctioned reports which are still in use in England today. Between 1900 and 1930, as many Nominate Reports as could be found were gathered together and republished in a 176-volume set called the English Reports. In the development of the common law, the writings of two men are worthy of special mention: Sir Edward Coke and Sir William Blackstone. Coke was a prolific author as well as a judge. In addition to his Book of Entries, he published a four-volume work entitled The Institutes of the Laws of England (1628–41). Coke’s Institutes, as they are known, are significant because they represent an early attempt to outline in a systematic way the entire body of English common law. Furthermore, he was one of the busier law reporters (producing 13 volumes of Coke’s Reports, or ‘The Reports’, as they are sometimes known). In the 18th century Sir William Blackstone, who was the first occupant of the Vinerian Professorship of English Law at the University of Oxford (the oldest university chair of common law in the world), followed Coke’s Institutes with his Commentaries on the Laws of England (1765–70). Also consisting of four volumes, Blackstone’s Commentaries, as they are popularly referred to, was a further attempt to canvass the entire field of English 6

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1.24

1.25

1.26

1.27 writ: initially a written command from the monarch that something be done; later developed into a form of written command in the name of a court or other legal authority to act, or abstain from acting, in a particular way

The head of the English Court of Appeal Civil Division today is known as the Master of the Rolls because the office they hold began as one of the official record-keepers.

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law in a systematic form. Blackstone’s Commentaries were very highly regarded both in England and the United States, and remain of occasional use as a research tool even today. Twenty-first century legal scholars in common law countries, whether judges, practising lawyers or academics, publish their writings in encyclopedias, books, monographs and periodical articles, which substitute for those earlier commentaries. So the variety of sources of law has expanded considerably. Mention need only be made of areas such as the law relating to reproductive technology, cyber law, animal law, or regulation of the internet, to illustrate how the law has developed to cover new fields of human endeavour or interest.This expansion has been matched by a comparable increase in the number and size of series of law reports, adding to the vast store of information available for use by the legal profession. LEGAL RESEARCH It might be thought that this explosion of knowledge would make it difficult to be a competent lawyer. There is undoubtedly a need for a legal practitioner or a law student to develop legal research skills. But legal practitioners tend to specialise in their practice, avoiding the need to master an ever-widening body of laws. Furthermore, technological advances have ameliorated some of the difficulties of dealing with the large amount of information now available. Case law and other sources of law are loaded into databases that the researcher can search electronically, thus speeding up the process considerably. So, while there has been an accretion of information and sources to which legal researchers, practising lawyers and others must refer, technology has assisted in making the task manageable. Nonetheless, finding the law — the rules appropriate to a particular case or legal problem — may be difficult. That is partly because there is so much law contained in both legislation and cases (for example, Acts such as the Income Tax Assessment Act and the Corporations Act run to thousands of pages) and partly because, at least in some areas, the law changes so rapidly. Well-developed legal research skills are therefore essential for anyone wishing to find and use the law.Techniques of legal research are outlined in Part 4. Finding relevant cases is only the first step. It is the principles for which the case is authority and what weight it deserves that is the object of the research. How to identify the rules in the cases and their legal status is explored in Chapters 7 and 8. Nowadays, however, an even more significant source of new rules is legislation. Chapter 9 deals in detail with legislation, explaining how it is made, the forms it takes and the purposes it serves. Chapters 10–14 explain the approaches taken by the courts and tribunals to the interpretation of legislation and illustrates the interaction between the courts and the legislatures in the development of legal principles. WHY RULES ARE NOT ALWAYS CERTAIN Glib talk of legal systems and rules might suggest that all the laws in force in Australia today could be listed, and that a lawyer need only search through the list until the rule applying to the client’s case is found. But understanding and practising the law is neither as dull nor as easy as that.The law, particularly legislation, is necessarily expressed in general terms and often permits the exercise of discretion.To apply the law to actual transactions or incidents is rarely mechanical, and generally requires interpretation and judgement. Furthermore,

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even though many rules are written down, there is an engrossing fluidity to the law. Resolution of a dispute may bring two basic, widely accepted, principles into conflict. An incident might raise issues which have never been raised before. What is reasonable, and hence probably lawful, behaviour changes with society’s values and perceptions. Some of the reasons for the lack of certainty in aspects of the law as practised in Australia are explored in Chapters 7 and 8 as to case law, and in Chapters 10–14 as to legislation. The complexity of common law systems is compounded by the richness of the English language. What is a boon to authors, playwrights and poets is often problematic for those wanting certainty of rules for lawful conduct. Many English words have multiple meanings. Choice of the most pertinent of those meanings that applies to a given situation must be determined by parliamentary drafters and those resolving disputes in courts and tribunals. Assistance in identifying meaning from the context of written documents, particularly legislation, is informed by the rules of statutory interpretation: see Chapters 10–14. A result of this uncertainty is that a law will not always be accepted as applicable to a given situation. An individual’s idea of justice in relation to a dispute is subjective — informed by that person’s own moral and social beliefs.The law and those who administer it, however, aim to be objective — to reach the right resolution to a dispute given the legal principles applicable to the case. But when the case raises a difficult issue, even expert lawyers may come to completely different conclusions and experienced judges may disagree as to the correct outcome. In other words, there may not be an objective right answer, let alone one which accords with the individual’s view of justice. Not surprisingly, these inadequacies have led to centuries of serious criticism and rejection of the law by philosophers, members of religious groups, and anarchists. Nevertheless, imperfect though the legal system may be, in our democratic societies it is acknowledged as being the most acceptable way of regulating our dealings with one another.

public law: the law governing relations between individuals and the state

1.32 private law: the law governing relations between non-state entities, including individuals and organisations

1.33 civil law: the law dealing with disputes between individuals, or between organisations, or between both, providing for compensation from the party in breach of an obligation

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Given the increasing complexity of the law, a key strategy for lawyers in researching and analysing a legal problem is to categorise it according to the area of law likely to be applicable.Various systems of categorisation may be employed. A commonly encountered distinction is between public law and private law. Public law governs the operation of the state and the relationship between the state and individuals, while private law is concerned with relations between individuals or entities. Public law matters include those where an individual has been accused of a crime, is questioning an entitlement to a government subsidy or income support, or is disputing a taxation assessment. Private law deals with, for example, commercial matters, claims arising out of accidents, wills, and disputes over property following the breakdown of a marriage. Another common distinction is between civil law and criminal law. (‘Civil law’ in this domestic law context has a different meaning from that used earlier to describe a national system of laws as either a civil law or a common law system: see 1.9.) Civil law is the law of private disputes between individuals — for example, over sums of money or which party should bear the cost of a loss or injury. A successful civil action most often results in the payment of compensation. Criminal law, however, is concerned with standards of conduct that are viewed as having such importance that their breach is of public importance, enforced E D 8B 38 D = EC CED8I? ED

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1.36 criminal law: the system of law concerned with the punishment of offenders by the state

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1.38

by a public agency that needs to satisfy a court to a high standard of proof in establishing wrongdoing, and possibly resulting in punishment (such as a fine or imprisonment). Of course, far more detailed systems of classification can be devised. Private and civil law can be broken down into contract, tort, property, succession, and so on. Each of these classifications is then subject to further divisions. Property law could be divided into personal property, real property, and landlord and tenant law. Although classification is useful, because of the prevalence of competing labels and the overlap between classes, no particular scheme can be said to be the only correct one. For example, in legal practice the terms ‘commercial law’ and ‘personal injury law’ are quite common. ‘Commercial law’ consists largely of contract law but also contains some tort law, while ‘personal injury law’ largely consists of rules of the tort of negligence but also includes some contract law. Further useful distinctions explored in subsequent chapters include the distinction between the two chief sources of law, cases and legislation, and the historical distinction between two types of case law, common law and equity. Another essential area of study for the aspiring lawyer is legal ethics. This consists of the set of rules and principles that govern the lawyer’s practice, including their relationships with other lawyers, clients, parties, and the court. Legal ethics are discussed in Chapter 5.

Technical language

puisne: (pronounced ‘puny’) from Old French meaning ‘born later’; a puisne judge is a judge who is inferior or junior in rank (ie not the chief justice)

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The newcomer to the study of law also has to become confident with its technical language, while always trying to use the clearest forms of expression available. Some legal terms originated in Latin (habeas corpus, ultra vires, mens rea) and others in Old French (chose in action, en ventre sa mere, tort, puisne — pronounced ‘puny’), words which illustrate the historical influences on the development of the common law. Some English words are used in an unusual or archaic sense (determine = bring to an end; touching = concerning; instant = present). When reading legal documents, therefore, a law dictionary (and a standard English dictionary) are often needed. Unfortunately, some lawyers use ‘pseudo-technical’ language or jargon, which tends to obscure meaning. Examples of this are the use of unnecessary words such as ‘aforesaid’; the use of synonyms in pairs, such as ‘fit and proper’; and the use of sentences with qualifications beginning ‘provided that’ or ‘notwithstanding’. Chapter  20 provides some guidelines for plain English which should help those engaged in legal writing to avoid the use of unnecessary, inappropriate and ambiguous language. Essential Legal Toolkit F contains a glossary of legal terms, including some of the more common and important Latin and Old French expressions. At this point, you have been introduced to the world’s major legal systems and their historical origins and developments, with particular emphasis on the common law system inherited by Australia and aspects of its operation. You have been exposed, in brief, to key inf luences on these systems, including legal theories, and geo-political and other forces; you have been provided with pointers to the chapters which examine in detail how to find, evaluate and use these rules. You are now ready to delve into the chapters setting out the foundational principles that underpin the common law system as practised in Australia.

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• Australian Legal Words and Phrases (online) (LexisNexis). An excellent reference tool, this work provides over 100,000 words and phrases defined in legislation or judicially interpreted in the Australian superior courts and selected tribunals. • Lauren Benton, Law and Colonial Cultures: Legal Regimes in World History, 1400–1900 (Cambridge University Press, 2002). • Michael Brogan and David Spencer, Surviving Law School (Oxford University Press, 2nd ed, 2008). • Ray Finkelstein and David Hamer, LexisNexis Concise Australian Legal Dictionary (LexisNexis Butterworths, 5th ed, 2015). This is the best dictionary for early-year law students.

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• Ellen Goodman, The Origins of the Western Legal Tradition from Thales to • • • • • •

the Tudors (Federation Press, 1995). Kathy Laster, Law as Culture (Federation Press, 2nd ed, 2001). A lively book on how to study law and ways of thinking independently about law. Trischa Mann, Oxford Australian Law Dictionary (Oxford University Press, 3rd ed, 2017). Also available online. Patrick Parkinson, Tradition and Change in Australian Law (Lawbook Reuters, 5th ed, 2012). An insightful exposition on the origins of, and influences on, the Australian legal system. Prue Vines, Law and Justice in Australia (Oxford University Press, 3rd ed, 2013). Glanville Williams, Learning the Law, ed ATH  Smith (Sweet & Maxwell, 15th ed, 2013). A new edition of a classic and concise introductory text on the law. Mick Woodley et al (eds), Osborn’s Concise Law Dictionary (Sweet & Maxwell, 12th ed, 2013).

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The Origins and Historical Development of the Australian Legal System

Copyright © 2020. LexisNexis Butterworths. All rights reserved.

[H]istory, in illuminating the past, illuminates the present, and in illuminating the present, illuminates the future.1 1

Benjamin N Cardozo, The Nature of the Judicial Process (Yale University Press, 1921) 53.

Creyke, Robin, et al. Laying down the Law, LexisNexis Butterworths, 2020. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6413182. Created from monash on 2021-02-03 06:32:52.

Copyright © 2020. LexisNexis Butterworths. All rights reserved.

18

Introduction

2.1

Roots of English law

2.5

− Birth of the common law

2.6

− Formalisation of court structures

2.9

− Writ system

2.11

− Trial procedures in the early common law

2.15

− Equity

2.20

Reform of court procedure in the 19th century

2.24

Foundations of modern constitutionalism

2.29

− Magna Carta and the first parliaments

2.32

− Reformation and Parliament

2.35

− English Civil War

2.36

− The Glorious Revolution and the constitutional settlement

2.40

− Emerging role of Parliament

2.42

− Development of an executive arm of government

2.44

− Separation of powers and the rule of law

2.48

The foundation of the Australian legal system

2.53

− Transportation and settlement

2.55

− Doctrine of terra nullius

2.57

− Reception of English law

2.58

Evolution of an independent legislature

2.60

Development of judicial independence

2.65

Continuing connection with English law

2.69

− Repugnancy and the Colonial Laws Validity Act

2.69

− Judicial Committee of the Privy Council

2.72

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CHAPTER 2 THE ORIGINS AND HISTORICAL DEVELOPMENT OF THE AUSTRALIAN LEGAL SYSTEM

2.77

− Federation

2.77

− Statute of Westminster 1931

2.84

− The Australia Acts 1986

2.87

EXERCISE 1: Timelines

2.89

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The path to constitutional independence

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Introduction 2.1

To gain a proper understanding of Australia’s current legal system it helps to understand its origins and historical development.2 As legal scholar Patrick Parkinson explains: In its legal institutions, as in other aspects of its national life, Australia bears indelibly the marks of its birth. The legal and political institutions of Australia find their roots not in the traditions of its native inhabitants, but in the traditions of a colonial power which imported its understanding of law and social organisation with the landing of the first white settlers in 1788.3

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2.2 rule of law: a central constitutional principle imposing principled limits on the government’s power: individuals and government officials are all subject to the law as administered by the courts

2.3

It is worth understanding the evolution of the English legal system because the Australian legal system shares much of this history. Both are systems of Westminster parliamentary democracy, so called because the Parliament of the United Kingdom (which now includes Scotland and Northern Ireland as well as England and Wales) is located in Westminster, a government district in Central London. Westminster has been the seat of England’s government since the 13th century; however, the origins of the English common law legal system can be traced back to the Norman Conquest of England in 1066. While the Australian legal system began its independent development with the arrival of the first British colonists in Sydney Cove in January 1788, English institutions continued to exert an important inf luence. Australian law still shares structures and doctrines with England and other common law countries. This is the case notwithstanding that Australia now has its own legislatures and legislation, and its own common law, that is, its own body of case law developed by Australian courts, informed by its own history, and operating under the Australian Constitution.4 Accordingly, this chapter begins with a discussion of the origins of the English legal system, starting with the birth of the common law system following the Norman Conquest. It outlines some of the key stages in the evolution of the English constitution and system of government. Parliament grew in strength during the Tudor era in the 15th century, in part because of Henry  VIII’s need for nobles’ support in dealing with his personal and political issues. During the Stuart era in the 16th century, conflicts developed between the monarch, the courts, and Parliament which cost many lives, but resulted in a stronger, more independent, legislature and judiciary. Over the centuries, the increasing demands placed on the courts led to a formalisation of its methods, including the writ system, and important procedural reforms such as the Judicature Acts of 1873 and 1875.This chapter also examines other important structural developments in British constitutional history. At key stages, formative legislation was passed, including the Magna Carta in 1215, the Bill of Rights 1689 and the Act of Settlement in 1701. Alongside these documents, unwritten constitutional principles emerged, such as the rule of law and separation of powers, that were subsequently extremely inf luential in both common law and noncommon law countries. Having explored English legal history, the chapter shifts its attention to the development of the Australian legal system. We begin with the arrival of English settlers 2 3 4

20

Paul Finn, Law and Government in Colonial Australia (Oxford University Press, 1987). Patrick Parkinson, Tradition and Change in Australian Law (Lawbook, 5th ed, 2013) 3. See Lipohar v The Queen (1999) 200 CLR 485 [50], [57]; Commonwealth v Yarmirr (2001) 208 CLR 1.

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CHAPTER 2 THE ORIGINS AND HISTORICAL DEVELOPMENT OF THE AUSTRALIAN LEGAL SYSTEM

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who brought English common law with them. As discussed further in Chapter  4, regrettably, at settlement and subsequently, little respect was paid to the significant history and wisdom of First Nations customary law. New South Wales was established as an English penal colony under military rule. Relevant English law was ‘received’ by New South Wales, and other Australian colonies on their establishment. In time, colonial governments acquired the power to develop their own law; however, this was subject to the repugnancy doctrine, which invalidated Australian laws that were inconsistent with English law. Legislatures’ independence grew and the repugnancy doctrine was narrowed in the Colonial Laws Validity Act 1865 (Imp). Australia’s constitutional structures followed a path of evolution similar to that of the corresponding English institutions. A court system developed in New South Wales that asserted its independence from the executive arm of the government. A bicameral legislature emerged that also achieved independence from the Crown. Australia adopted England’s Westminster system of responsible government. However, the Australian colonies grew in confidence and began to assert their independence from Britain. Impetus was provided by the federation movement of the 19th century, culminating in the Australian Constitution which commenced on 1  January 1901. However, it took much of the 20th century for Australia to gain full legal independence from England. Key steps included the Statute of Westminster 1931 and the Australia Acts 1986 (Cth and UK). The common law system is inextricably intertwined with history. This is because a key feature of this legal system is the degree to which it relies on precedent, or courts’ previous decisions. As will be seen in later chapters, this has important implications for the nature of legal reasoning in common law countries.When a common law court decides a case, the court looks to previous judgments for relevant precedents to apply to the facts in the case before it. The court uses the past as the yardstick against which to assess present conduct. Although history and law are very different disciplines, a good lawyer needs an appreciation of the way in which the common law legal system has developed over the past thousand years.

Roots of English law The year 1066 is one of the watershed dates in English legal history. The conquest of England by William, the Duke of Normandy, led to the evolution of the distinctive legal tradition that we now refer to as the common law. The conquest in 1066 did not bring a sudden or dramatic change. William found that England already possessed a quite sophisticated and longstanding system of dispute resolution. One of William’s first acts after slaying King Harold at the Battle of Hastings was to declare that the existing system of Anglo-Saxon laws would continue in force. One of the key problems with the pre-Conquest legal system in England was its variability. Anglo-Saxon law was based on local custom and, because England had been subject to so many invasions in the six centuries since the departure of the Romans, different parts of the kingdom had different customs. So even though a unified political entity called England had existed since the ninth century, there was no single set of rules and norms which applied to society as a whole.

separation of powers: an important constitutional principle which avoids the concentration of government power by dividing it up between the three arms of government: the legislature, the executive and the judiciary bicameral legislature: a legislative body consisting of two Houses of Parliament (a unicameral legislature has one House)

2.4 responsible government: a system of government in which the executive government (eg prime minister and cabinet) is responsible to the (generally, democratically directly elected) members of the legislature

2.5 1066: the year of the Norman Conquest of England, a seminal event in the development of the English common law

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2.6

2.7 feudalism: a strongly hierarchical system of social and political organisation based on land ownership that was dominant in medieval Europe including the British Isles

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2.8

stare decisis: Latin maxim, in full stare decisis et non quieta movere: ‘to stand by decisions and not disturb the undisturbed’

BIRTH OF THE COMMON LAW The Norman Conquest did not impose a new body of substantive law in England. However, it modified England’s economic and social system and this, in turn, allowed a new legal system to develop. Normandy possessed a hierarchical land ownership and social system called feudalism. The Normans introduced feudalism to England, and it was then to play a key role in the development of the ‘common’ law. Feudalism was a system both of land ownership and of governance, ref lecting a formal social hierarchy from the king down to the peasants. (England had male monarchs throughout the feudal period. The first female monarch after the Norman Conquest was Lady Jane Grey in 1553.) The king nominally owned all the land, but effectively leased it out to nobles (known as lords), as tenants-in-chief. Beneath the nobles was a series of descending levels of sub-tenants. Successive levels within the hierarchy were linked by mutual promises. While every subject was expected to be loyal to the king, they also owed allegiance to their landholding lord. Attached to the tenant’s bond of loyalty was an obligation to provide their lord with a share of their crops and, if necessary, to engage in military service on the lord’s behalf. In return, the king and the lords promised to protect and assist their tenants in times of need. The Norman kings employed the feudal system in their governance of England because they did not have sufficient power to exercise personal control over the whole country. The system allowed each feudal lord to govern their own specific territory or fiefdom, and this role included keeping the peace by resolving local disputes between subjects using local courts. In the early days these local courts provided little consistency or predictability; an early book about English law referred to the ‘utterly uncertain dice of pleas’.5 However, all subjects were ultimately answerable to the king, and it was the king’s role in resolving personal disputes that allowed for the emergence of the ‘common law’ system. Three particular aspects of the king’s role are relevant: precedent, impartiality and the force of his decisions. The king would travel the kingdom ‘holding court’, receiving petitions from the people, and hearing and addressing their complaints. Often, the petitioners complained of acts of injustice by local officials, or of general unfairness in local administration. Because they had no real local knowledge, the king or his delegate dealt with these petitions on the basis that like cases should be treated alike, bringing some consistency. That was the foundation of the system of precedent known as stare decisis, a legal principle by which courts are obliged to respect the principles established by prior decisions. This principle is discussed further in Chapter 7. It was this means of avoiding the arbitrariness so often complained of in the local courts that led to the common law’s success. Since the king or his delegate was less likely to be parochial and affected by local prejudice when he resolved disputes, people sought the king’s justice in preference to that of the local lords. Another attraction of the new system was that the king’s decrees were paramount and had force throughout England. In modern terms, for litigants shopping for the most suitable forum, the possibility that a judgment would be recognised, and enforced, throughout England had an understandable appeal.

5

22

Incerta penitus alea placitorum in Leges Henrici Primi (c. 1115), vi, 6, quoted in John H Baker, An Introduction to English Legal History (LexisNexis Butterworths, 4th ed, 2002) 13 n 3.

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Over time, a body of royal rulings built up. What developed as a corollary to the king’s need to establish and maintain peace and order throughout the newly conquered territories contained the seed of the system of private dispute resolution now known as the common law. The term ‘common’ reflected the fact that the king’s rules applied throughout the land to all English people, regardless of the custom in their own county. FORMALISATION OF COURT STRUCTURES The evolution of courts as legal structures operating independently of the individual monarch was gradual. A key first step was for the king to delegate some of his disputeresolution power.While the king’s rulings remained paramount, as a matter of convenience, the king began to allow one of his advisory bodies to determine disputes on its own.This formed a precursor to independent courts. From the earliest times after the Conquest, the kings gathered a body of trusted advisers, the Curia Regis, or ‘King’s Court’. In this context ‘court’ meant the sovereign’s personal retinue rather than a judicial body. The Curia Regis functioned as a general advisory body, providing the king with counsel and advice before he made decisions. Gradually some decisions regarding disputes were left to members of the Curia Regis itself. Some advisers, whose job it was to advise on more general questions of policy, became known as ‘the Council’. There was considerable overlap in the membership of the two bodies, at least initially. The appointment of the Curia Regis marked an important step in transforming the common law from a personal instrument of the king to an apparatus of government. In the early days, to seek the king’s intercession in a dispute required the individual to approach him in person. Seeking royal justice became more feasible when delegates were appointed who could act in the king’s absence, and make decisions in his name. In this respect, a further significant development was the appointment, beginning in the 12th century, of Justices in Eyre (travelling justices, not necessarily members of the Curia Regis), who carried the king’s commission to hear and resolve disputes in all parts of the country. For the purposes of these itinerant commissions, England was divided into a series of regions, or ‘circuits’, which formed a basis of legal administration until the 1970s. The Justices in Eyre were also instrumental in developing a bank of cases or precedents which they applied throughout the land. Eventually, a central standing court emerged. While Justices in Eyre roamed to hear disputes, the Curia Regis continued to deal with matters that were brought to the royal household. As the workload increased, the Curia Regis was divided into two specialised bodies.The first specialist body, made up of professional judges, heard disputes between commoners and became known as the Court of Common Pleas. In 1215 as part of the Magna Carta, King John reluctantly agreed the Court of Common Pleas would not travel with the king, but would remain in a fixed place: see 2.32. This was later designated as Westminster in London, and the Common Pleas were heard there until the court ceased to exist more than 660 years later. A second court, made up of financial advisers, heard disputes involving the royal revenue. Because the table at which this body sat was covered with a chequer-patterned cloth, it came to be known as the Court of Exchequer. (For this reason the modern-day British Treasurer is known as the Chancellor of the Exchequer.)

2.9

commission: a document certifying the appointment to a position of authority by the sovereign

2.10

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A third court emerged from travelling justices. Because this court carried the King’s commission it came to be known as the Coram Rege, or ‘King’s Bench’, (and later ‘Queen’s Bench’ when Elizabeth I took the throne). Unlike the Common Pleas, the King’s Bench had a monopoly on those disputes involving the king himself, or touching upon royal interests. These three dispute-resolving institutions — the Common Pleas, the Exchequer and the King’s Bench — are together known as the common law courts, and it was through their work that the distinctive English system of justice known as the common law flourished.

2.11

writ: a written command from the monarch that something be done

2.12

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plaintiff: a person making a formal legal complaint to the courts seeking redress from another person, the defendant

2.13

legal fiction: the legal acceptance of a fabricated version of facts so as to extend the reach of existing law to cover a novel situation

WRIT SYSTEM The formal division of the Curia Regis into the three common law courts and the Council was an attempt to cope with the demands of centralised government. But it was not enough. The new common law courts still struggled to manage the numbers that flocked to them. In response, the courts’ procedures were made more formal and regular. The chief means of organisation that evolved was a system of writs. Originally, a writ was a written formal command from the king to a sheriff, the king’s representative in each county, that a person, against whom a complaint had been made, must be brought to court to answer the allegation.The person making the complaint, the plaintiff, was required to purchase the appropriate writ from a royal official called the Chancellor, and it was through the royal authority flowing from the writ that the legal process was begun. There were a number of different types of writs; they were what we would think of today as standard forms with a different template for each different type of complaint. The writ system provided a means of organising the diverse types of disputes presented to the courts. The writ system became problematic in part because the lords stifled its development. As the common law continued to expand, the types of writs multiplied and local lords became suspicious about the degree to which the king’s system of justice was supplanting their authority over their feudal tenants. In 1258, the nobles extracted from the king a promise, known as the Provisions of Oxford, that no new types of writ would be issued without the express authorisation of the Council (whose membership included many of the nobles). Such was the popularity of the common law, however, that not long afterwards the nobles were forced to allow some new writs to be created. The courts themselves tried to alleviate some of the problems with the writ system. To accommodate the popular demand for court hearings in cases where new forms of writ were not available, the common law courts began to permit the use of what are known as legal fictions (that is, the use of fabricated facts) to enable new types of cases to be brought within the existing writs. For example, a legal fiction was used to extend the jurisdiction of the Court of Exchequer. As noted above at 2.10, the Exchequer’s original function was the collection of Crown revenue. However, the writ of quo minus enabled private citizens to use the Court of Exchequer to recover debts on the basis that they were indebted to the Crown, and recovering the debts owed to them would in turn enable them to repay the Crown. The first recorded use of this legal fiction is in 1230, and its use continued until writs were abolished in the extensive procedural reforms of the late 19th century: see 2.24ff.6 6

24

Harold Wurzel, ‘The Origin and Development of Quo Minus’ (1939) 49 Yale Law Journal 39.

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The writ system exemplifies an underlying feature of the common law that continues to the present day, namely its emphasis on procedure. The ability to bring a case, a suit, in the king’s courts depended upon being able to find a ‘form of action’ which would accommodate the claim. In 21st-century Australia, in order to sue the defendant, the plaintiff must still find an appropriate cause of action.This means that before a court can deal with the substance and justice of a dispute, the claim must be put into the proper procedural form. TRIAL PROCEDURES IN THE EARLY COMMON LAW Despite its popularity, the early common law system of trials for resolving disputes was not free of systemic deficiencies. In the early days, the king’s representatives sought to resolve some disputes by an appeal to divine intervention. Trials by ordeal and battle reflected an expression of faith that God would identify the wrongdoer. The ordeal was commonly used in criminal cases. There were different forms of ordeal. Two common forms were the scalding of a hand or arm with boiling water or the burning of a hand with a red-hot iron; the healing of the hand or arm within a given period was a sign from God that the person was not guilty. Another was the casting of an accused person in a pool of water; floating — being rejected by the water — was a sign of guilt.7 From a modern viewpoint these methods may appear irrational. However, it has been argued that in their historical context they may have been an effective and efficient way of revealing the truth.8 Parties facing the ordeal, believing that God would intervene, tended to reveal their guilt or innocence. Indeed, many guilty defendants would seek to avoid the ordeal altogether, and the priest administering the ordeal would seek to avoid harming innocent defendants. Trial by ordeal came to an end in 1215 when the Church forbade the participation of priests in the common law process. Trial by battle was used in non-criminal cases, but it was based on a similar premise — that God would not allow a party in the wrong to be victorious. In a battle, the participants were each armed with a long staff and a leather shield, and the fight continued until one party gave up or was knocked unconscious. Infants, women and the elderly could employ champions to fight in their stead. While virtually obsolete by the end of the 13th century, trial by battle was not formally abolished until the early 19th century. To the surprise of many, in Ashford v Thornton,9 one of the parties sought to claim the right to engage in battle in lieu of the ordinary court process. It was only then that a statute10 was (hurriedly) passed to abolish trial by this means. But some commentators still see elements of this approach in the modern adversarial trial: ‘a trial is a battle and the lawyer the client’s champion’.11 The adversarial system is discussed further at 6.16ff. Another, perhaps more modern, method by which a party could persuade the court to accept its version of events was the ‘wager of law’ or ‘compurgation’. The 7

8 9 10 11

2.14

cause of action: the essential facts that must be proven to ground a legal claim for redress

2.15

2.16

2.17 champions: derived from the French word ‘champ’ meaning field; a champion was someone who would take the field on your behalf

2.18

Given that the sign of innocence in the ordeal by water was sinking (being accepted by the deep), the unjustly accused person hoped for a speedy group of judges who would pull him or her up before drowning! Peter Leeson, ‘Ordeals’ (2012) 55 Journal of Law and Economics 691. (1819) 1 B & Ald 405; 106 ER 149. 1819: 59 Geo III, c 46. Elizabeth G Thornburg, ‘Metaphors Matter: How Images of Battle, Sports and Sex Shape the Adversary System’ (1995) 10 Wisconsin Women’s Law Journal 225; see also Jerome Frank, Courts on Trial (Mass, Atheneum Reprint, 1963) 91.

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2.19

2.20

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2.21

equity: a body of law which, in opposition to the more rigid and formal common law, was applied flexibly according to notions of fairness

party would swear an oath as to the truthfulness of their statement before the travelling justice, and then produce local people, ‘oath helpers’, who would swear that they believed the statement. A similar institution for resolving disputes is the assize. It was adopted under King Henry  II (1154–89) for settling property and inheritance disputes. Travelling justices would enlist the services of men from the locality who would determine which party was telling the truth, based on their local knowledge. This process was extended to criminal law as well and these men came to be known as the ‘jury’. Historically, the jury was to act on its own existing local knowledge. The modern jury, by contrast, should have no prior knowledge or connection with the disputed events. The jury should decide the case only on the evidence presented to it in court. In the age of the internet and the mobile phone, this is becoming increasingly difficult to achieve.12 It may be hard for jurors to avoid exposure to media reports about, and they may be tempted to do their own research on, the facts of the case, the applicable law, or the background of the defendant and other parties. EQUITY As the common law became more organised and systematic it also became more rigid. The writ system had been developed in response to the courts’ increasing case load; however, difficulty in negotiating the procedural complexities created the risk of injustice and delays. A plaintiff would fail if, for example, the writ they purchased turned out to be the wrong one.The common law courts’ preference for form over substance extended to the conduct of the trial. If a person had executed a document in the proper form, the common law would say that the person was bound by its terms, even if it could be shown that their actions had been based on a mistake or induced by trickery. ‘[T]he slightest error committed by either party lost him the suit irrecoverably’.13 Beginning in the 15th century, people increasingly approached the monarch with petitions complaining of injustice suffered at the hands of the common law courts. At first the monarch responded to these complaints personally or through the Council. But, as before, the monarch soon began to delegate the responsibility, this time to the royal official called the Chancellor (who already had the job of issuing writs).The Chancellor afforded claimants hearings and remedies, but in a way that created an alternative, complementary system of justice. The fact that the Chancellor was chosen to address these complaints of injustice had an important bearing on the way they came to be handled. For a long time, the Chancellors (or Lord Chancellors, as they later became known) were trained as priests. Importantly, they did not consider themselves confined by judicial precedent or purely formal requirements. Instead, they grounded their judgments on Christian precepts. These Chancellor-made, Christianity-based rulings formed a body of law that sat beside the body of common law rulings, and became known as equity. The institution set up

12

13

26

Roxanne Burd and Jacqueline Horan, ‘Protecting the Right to a Fair Trial in the Twenty-First Century: Has Trial by Jury Been Caught in the World Wide Web?’ (2012) 36 Criminal Law Journal 103. Hock Lai Ho, ‘The Legitimacy of Medieval Proof ’ (2003-2004) 19 Journal of Law and Religion 259, 267, quoting Henry C Lea, Superstition and Force: Torture, Ordeal, and Trial by Combat in Medieval Law (1996, originally published 1870) 69.

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by the Chancellor to hear equitable claims became known as the Court of Chancery. In a famous case, Lord Ellesmere, an early 17th-century Chancellor, held:

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The cause why there is a Chancery is, for that men’s actions are so divers and infinite, that it is impossible to make any general law which may aptly meet with every particular act, and not fail in some circumstances. The office of Chancellor is to correct men’s consciences for frauds, breach of trust, wrongs and oppressions, of whatever nature soever they be, and to soften and mollify the extremity of the law …14

A significant feature of equity is that it is highly discretionary, allowing the court f lexibility to do justice in the particular case. At common law, on proof of designated matters the plaintiff acquired a legal right to relief. In equity, however, the Chancellor retained a discretion not to grant a remedy if the plaintiff was not morally deserving. Equitable maxims developed to capture the essence of this discretion, such as ‘he who seeks equity must do equity’ and ‘he who comes into equity must come with clean hands’. Other equitable maxims include: • equity will not suffer a wrong to be without a remedy; • qui prior est tempore, potior est jure (‘he who is first in time takes precedence’); • equity assists the diligent, not the tardy; • equity is equality; • equity looks to the intent, rather than to form; • equity looks on that as done which ought to be done; • equity imputes an intention to fulfil an obligation; and • equity acts in personam (by making an order directed to a specific person). Equity continues today and is now administered concurrently with the common law (see 2.27), but the pathway to this position was not smooth. Initially, equity and the common law coexisted harmoniously administered by different courts. Equity was a means of tempering the harshness of the law, and the Chancellors and the common law judges cooperated. But eventually the two systems became rivals. In the early 1600s, this rivalry turned into open hostility as a result of personal enmity between the Chancellor of the day, Lord Ellesmere, and the Chief Justice of the King’s Bench, Sir Edward Coke. Their dispute was resolved only after the personal intervention of the king, who called a conference of all the senior judges to discuss the issue. One important outcome of this conference was to decide that, in the case of conf lict between the two, equity should prevail and this remains the rule today. Equity remains an important source of law. As Sir Anthony Mason, a former Chief Justice of the High Court of Australia, observed:

2.22

2.23

The underlying values of equity centred on good conscience will almost certainly continue to be a driving force in the shaping of law unless the underlying values and expectations of society undergo a fairly radical alteration.15 14 15

The Earl of Oxford’s Case (1615) 1 Ch Rep 1, 6; 21 ER 485, 486. Sir Anthony Mason, ‘The Place of Equity and Equitable Doctrines in the Contemporary Common Law World: An Australian Perspective’ in Donovan WM Waters (ed), Equity, Fiduciaries and Trusts (Carswell, 1993) 23.

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Reform of court procedure in the 19th century 2.24

2.25

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2.26

2.27

Social change often brings law reform. The first Industrial Revolution of the 18th and 19th centuries brought considerable social dislocation and growth in commercial interests. This led to pressure for law reform both to facilitate economic development and to deal with its more deleterious aspects. The Factory Act 1833 prohibited the employment of children under nine, and provided that children aged nine to 13 could work no more than nine hours a day.The Patent Law Amendment Act 1852 simplified and systematised the previously very inefficient processes for obtaining and protecting patents. The common law was slower to develop. But over time, the old writ system gradually evolved into what we now know as the private law of property, contract and tort. The substance of the common law slowly became more sophisticated, but also became less accessible for ordinary litigants. Due to the rigidities of the writ system, legal process was costly, slow and full of procedural pitfalls. Moreover, procedures differed in each of the common law courts. Equity was no better. What began as an attempt to mitigate the rigidity of the common law had come instead to imitate it. Indeed, the cumbersome workings of the Court of Chancery may have surpassed those of the common law courts. In Bleak House, Charles Dickens described the fictional Chancery case, Jarndyce v Jarndyce, as ‘so complicated that no man alive knows what it means. The parties to it understand it least, but it has been observed that no two Chancery lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises.’16 The commercial, financial and industrial interests that had burgeoned during the Industrial Revolution were being hampered by the complexity of the law; a single dispute could require simultaneous proceedings in several different courts. To remedy this, and to improve access to justice, in the 19th century Parliament passed a series of statutes that reformed and simplified court procedure. The Uniformity of Process Act 1832 provided that most actions were to be commenced by a common form of writ which, unlike the old writs, had only to state the nature of the claim in general terms. The Common Law Procedure Act 1852 and the Chancery Procedure Act 1852 greatly simplified procedures once an action had been commenced. But by far the most significant reforms came in the 1870s, with the passing of the Judicature Acts of 1873 and 1875. Together, these two statutes had a profound effect on the way justice was administered in England. The Judicature Acts had a twofold purpose. First, they merged the three common law courts with the Court of Chancery and some other, more specialised, courts to form one general court known as the Supreme Court of Judicature. The new Supreme Court consisted of two parts: the High Court, which was a trial-level court (in contrast to the Australian High Court, which is principally an appellate court), and a civil Court of Appeal.17 The High Court was divided into five divisions, such as the Queen’s Bench Division and the Chancery Division, that corresponded closely with the pre-existing

16 17

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Charles Dickens, Bleak House (1852–53) 1. At common law there was no right of appeal against a criminal conviction until the Criminal Appeal Act 1907 (UK) which established the Court of Criminal Appeal. Australian jurisdictions followed suit: eg, Criminal Appeal Act 1912 (NSW) created a right of appeal for criminal defendants and established the New South Wales Court of Criminal Appeal, which still exists today.

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CHAPTER 2 THE ORIGINS AND HISTORICAL DEVELOPMENT OF THE AUSTRALIAN LEGAL SYSTEM

courts. However, the new High Court had one important advantage, namely that there was a single set of rules and a common procedure. The second main accomplishment of the Judicature Acts was to provide for the concurrent administration of common law and equity. This ‘fusion’ of the two systems meant that, regardless of the division of the courts, a judge could apply the rules of common law or equity (or both) as they deemed appropriate to dispose properly of the case. In Australia, Queensland was the first to follow the English reforms, by passing the Judicature Act 1876. The other colonies followed suit, beginning with South Australia with its Judicature Act 1878; South Australia had actually provided for the concurrent administration of law and equity before the English, in its Supreme Court Act 1853.18

2.28

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Foundations of modern constitutionalism Early English kings had a wide range of responsibilities, including the making of law, administering it, and applying it to individual disputes. As the kingdom evolved and grew in complexity, so too did the king’s responsibilities, and institutions were developed to regulate and share the burden of ruling the country, both in terms of developing policy and law, and resolving disputes.While independent of the king, these were still institutions of the Crown. As discussed at 2.9–2.10, a separate system of courts developed, with responsibility for interpreting the law and determining how it operates in individual cases. In this section we explore how, over time, the monarch also lost many law-making powers to an increasingly resilient and independent Parliament. The monarch was left with a diminished and constrained core of executive power. While the development of the judicial and legislative arms of government reduced the monarch’s workload, the monarch did not always welcome the loss of power. Indeed, as discussed below, the conflicts between a succession of kings and Parliament often became violent and bloody, with many fatalities on both sides. These conflicts and battles resulted in the development of a set of principles — constitutional law — that delineate and regulate the relationships between the growing Crown institutions. Key constitutional principles include:‘separation of powers’, the more or less sharp delineations between the executive, the legislature and the judiciary; the ‘rule of law’, which constrains arbitrary power by requiring that it be applied equally and in accordance with the law; ‘parliamentary sovereignty’, which gives the democratically elected Parliament power to develop and change the law; and ‘responsible government’, by which power over the executive is granted to the political party that commands the support of the lower, more representative, House of Parliament. England has no single document entitled ‘the constitution’. For this reason its foundational principles are described as an ‘unwritten constitution’, although England’s constitutional law is made up of Acts and reported judicial decisions as well as conventions developed through custom. Most modern states, including the various jurisdictions of 18

2.29

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2.31

See also Supreme Court Act 1880 (WA); Judicature Act 1883 (Vic); Legal Procedure Act 1903 (Tas); Supreme Court Civil Procedure Act 1932 (Tas). In New South Wales, however, fusion was not completed until 1970 (Supreme Court Act 1970). In the Northern Territory and Australian Capital Territory, judicature systems were set up with their Supreme Courts in 1933 and 1911 respectively: see now Supreme Court Act 1933 (ACT) s 25; Supreme Court Act 1979 (NT) pt IV.

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Australia, have a single written constitution.These modern constitutions embody the key constitutional principles outlined here, which were worked out at the cost of so many English lives.

2.32 Magna Carta: the ‘Great Charter’, which King John was forced by nobles to sign in 1215, restricted the king’s power in numerous respects, making it an early statement of the rule of law

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2.33

2.34

30

MAGNA CARTA AND THE FIRST PARLIAMENTS The first major step in the creation of the modern constitutional structure came in 1215, when King John was forced to sign the Magna Carta (the ‘Great Charter’). John was an unpopular king. Among other things, he was responsible for the loss of Normandy. After he imposed a heavy taxation burden to pay for his disastrous military campaign, a group of nobles known as ‘the Barons’ rose up and demanded that John provide a guarantee of certain freedoms. Some of the better known among 63 clauses are: • the promise that, in most cases, the Common Pleas would be heard in a fixed place; • a promise that justices and sheriffs would only be appointed from those who were learned in the law; • a guarantee that freemen would not be imprisoned or dispossessed of their property except ‘by the lawful judgement of their peers or by the law of the land’; and • a further guarantee that justice would be neither delayed nor denied. Originally only an advisory body, Parliament as a legal institution gradually grew more powerful and independent of the monarch’s control. The first assembly called a ‘Parliament’ was summoned in 1265 by Simon de Montfort, an important noble of the day, after he had led a rebellion and captured the king. It was 30 years later, however, in 1295, that a recognisable antecedent of today’s Parliament was summoned by King  Edward  I. The ‘Model Parliament’, as it is known, included nobles, representatives of the clergy, representatives of the commoners, two knights from each shire and two representatives from each city and borough. For a long time, Parliament remained a purely advisory body, and the king was under no obligation to summon it on a regular basis. It was not until 1414, during the reign of King Henry V, that the Crown formally acknowledged that no new statutes should be made without the assent of the Commons (as the lower House became known). The composition of the British Parliament today still resembles that of the Model Parliament. The upper chamber of the British Parliament, the House of Lords, consists of hereditary nobles, bishops (known as ‘Lords Spiritual’), together with men and women appointed to the peerage for their lifetime only (‘life peers’). The lower chamber, the House of Commons, is made up of local representatives elected by popular vote. Under the House of Lords Act 1999, most of the several hundred hereditary peers were eliminated from the House of Lords. Ninety-two of them were elected by their colleagues to remain, along with the life peers and the Lords Spiritual. The House of Lords Reform Bill 2012 made provision that 80 per cent of the members of the House of Lords would be elected. While this further reform was not pursued, the House of Lords Reform Act 2014 enabled members to retire or resign from the House of Lords, which had not previously been possible. It also provided for the exclusion of members convicted of serious criminal offences or who fail to attend the House for a complete session.

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CHAPTER 2 THE ORIGINS AND HISTORICAL DEVELOPMENT OF THE AUSTRALIAN LEGAL SYSTEM

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REFORMATION AND PARLIAMENT Parliament’s influence grew further during the reign of King Henry  VIII (1509–47). Henry wanted to divorce his first wife, Catherine of Aragon, but the Pope would not allow it. Henry’s solution was to separate from the Church in Rome and establish a Church of England, with himself at the head — the English Reformation. In order to secure the cooperation of influential people for this split, Henry agreed to give Parliament greater involvement in his decision-making processes. Moreover, the Reformation freed parliamentarians from what had previously been a strong limitation: the political authority of the Roman Catholic Church. ENGLISH CIVIL WAR The 17th century was in many ways the most important period in British constitutional development. When the century began, the throne was occupied by a person who claimed the right to be called a god, even by God himself.When it ended, there was in his place a monarch whose powers were confined by definite and ascertainable constitutional principles. These principles form the basis of our understanding of governmental power in both the United Kingdom and Australia today: a Parliament with supreme political authority and with an exclusive right to levy taxes; an executive whose power is subservient to that of Parliament; and an independent judiciary which should be allowed to conduct its work free of all political interference. This momentous century began with the accession to the English throne of the Scottish House of Stuart in 1603. The first of the Stuart kings, James I (who was also James VI of Scotland), was a firm adherent to the ‘divine right of kings’ theory. In a speech given to Parliament in 1610, James outlined his theory of the place of the monarch in the natural order. ‘Kings’, he asserted, ‘are not only God’s lieutenants upon earth and sit upon God’s throne but even by God himself they are called gods’. This attitude ran against expectations that Crown power would be shared with other societal interests and institutions, and quickly led to conflict. Incrementally the courts asserted their own independence from the king and affirmed growing independence of the Parliament. In 1607, in the Case of Prohibitions del Roy,19 when James expressed a wish to involve himself personally in the determination of cases, the judges held that this was not appropriate. Sir Edward Coke said that common law cases were ‘not to be decided by natural reason but by the artificial reason and judgment of law, which law is an art which requires long study and experience’.20 Reluctantly James acceded to the judges’ view. Not long afterwards, in the Case of Proclamations,21 the courts held that the king could not create new crimes or change the common law by royal proclamation. The right to do this was held by Parliament alone. However, the courts also clashed with Parliament. In 1610 in Dr Bonham’s Case,22 Coke CJ asserted that if a statute was ‘against common right or reason’ the common law courts could invalidate it. In other words, the courts reserve to themselves the right to be the ultimate arbiters of whether laws made by Parliament are valid. In Britain, Parliament 19 20 21 22

2.35 Reformation: European movements in the 16th and 17th centuries in which Protestant churches were established after splitting from the older Roman Catholic Church

2.36

2.37

2.38

(1607) 12 Co Rep 63; 77 ER 1342. (1607) 12 Co Rep 63, 65; 77 ER 1342, 1343. (1611) 12 Co Rep 74; 77 ER 1352. (1610) 8 Co Rep 107a; 77 ER 638.

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2.39

2.40

Bill of Rights 1689: an Act of Parliament settling the basis on which William and Mary took the throne, including that taxation could be levied only with the consent of Parliament

32

came to be viewed as sovereign, and there are now relatively few grounds on which a court can invalidate legislation. (In modern Australia, Parliament has supremacy over the common law, but does not have absolute sovereignty. It is the written Constitution that is sovereign, and the courts may invalidate legislation on the ground it is unconstitutional.23) By far the most tumultuous struggle of the century was between Crown and Parliament. James I, claiming a divine right to rule, sought to minimise his reliance on the services of Parliament. But since much of his reign was characterised by financial difficulties, he could not avoid summoning Parliament at least periodically to levy taxes. On these occasions Parliament sought to secure a royal acknowledgment of its role, with mixed success. The relationship deteriorated under James’s son, King Charles  I. He attempted to dispense with the services of Parliament altogether, and to raise taxes without parliamentary sanction. In the Case of Ship Money,24 a bare majority of the judges held that it was within the king’s prerogative to do so. That decision did not settle the issue. By 1642 Parliament was in open civil war against Charles. Led by Oliver Cromwell, the parliamentary forces defeated the Royalists in 1646. Charles I was put on trial for treason and in 1649 was convicted and beheaded. The monarchy and the House of Lords were abolished, and England was renamed a ‘Commonwealth’. Cromwell gave himself the title of ‘Lord Protector’ and in 1653 he dismissed the House of Commons, the sole remaining element of the pre-Civil War government. Cromwell, formerly Parliament’s champion, saw no greater need to govern with the consent of Parliament than had King Charles. Moreover, unlike Charles, Cromwell was a Puritan who despised any form of entertainment or fun. Dancing, for example, was forbidden during much of the Commonwealth, and many Church properties and works of art held by the Church were destroyed. In 1660, shortly after Cromwell died, Parliament (which had reassembled) invited Charles II, the son of the beheaded Charles I, to assume the throne. THE GLORIOUS REVOLUTION AND THE CONSTITUTIONAL SETTLEMENT Charles II appeared to share his father’s belief in absolute monarchy. Furthermore, he was suspected of having sympathy for the Roman Catholic faith, which raised concern in the now deeply Protestant England. James II, Charles II’s successor to the throne, was openly sympathetic to Catholicism, and when he attempted to suspend a duly passed statute which precluded Roman Catholics from holding public office, Parliament deposed him. In 1688, Prince William of the Dutch House of Orange and his wife Mary were invited by Parliament to assume the throne jointly, on terms that they accepted.While respectively nephew and daughter of James II, they were avowed Protestants. This second deposition of a king in 1688, which became known as the Glorious Revolution, provided a clear demonstration that English monarchs now ruled only by parliamentary consent. The terms of the offer that William and Mary accepted were laid out in a statute known as the Bill of Rights 1689. Among other things, the Bill of Rights:

23 24

Australian Constitution s 76; Judiciary Act 1903 (Cth) ss 39(2), 39B(1A)(b). (1637) 3 How St Tr 825.

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CHAPTER 2 THE ORIGINS AND HISTORICAL DEVELOPMENT OF THE AUSTRALIAN LEGAL SYSTEM

asserted that the Crown had no power to suspend the operation of law; reaffirmed the principle that taxation could be levied only with the consent of Parliament; • forbade the keeping of a standing army in England, remembering the power that Cromwell had wielded through his control of the army (a restriction which continues to the present day);25 • provided that parliamentary debates could not be called into question by the monarch or in any proceeding in the courts; and • reiterated that the Crown ought to summon Parliament on a regular basis. A further key element of the separation of powers between the judiciary and other branches of government was established in 1701 through the grant to judges of security of tenure. This was brought about as a refinement of the constitutional settlement, with the passage in 1701 of the Act of Settlement. Previously, judges had served ‘at the king’s pleasure’, which had left them susceptible to the king’s inf luence as, for example, in the Case of Ship Money mentioned at 2.39. Now, however, they were to serve ‘during good behaviour’ and could be removed only on an address (that is, a direction) passed by both Houses of Parliament. Australian judges today enjoy security of tenure and fixed salaries, meaning they are independent and not subject to pressure from the legislature or the executive. Section  72(ii) of the Australian Constitution corresponds closely to the provision in the Act of Settlement 1701, and similar provisions appear in the state constitutions.

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• •

EMERGING ROLE OF PARLIAMENT The constitutional settlement of 17th-century Britain cemented the legislative power of Parliament. Originally statutes were simply royal decrees; however, they came to be enactments of the monarch (or their representative) in Parliament. Nowadays, the monarch’s role is limited to the provision of royal assent to the law passed by Parliament. Royal assent has not been withheld since 1708;26 nevertheless, this formality provides a reminder of the historical origins of Parliament and its wresting of power from the monarch. From the 13th century, references are found to the monarch consulting others before passing statutes, but it was only during the reign of Henry VIII that legislation acquired the features it possesses today: that is, Bills passed by both Houses of Parliament and given to the Crown for assent. Gradually, the volume of statutes increased. Indeed, in Henry VIII’s reign alone, almost 700 statutes were enacted, more than doubling the size of the existing statute book.

25

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Act of Settlement: a key step in the constitutional settlement passed in 1701 which, among other things, provided judges with security of tenure

2.42

Consent for the armed forces must be provided annually by Parliament. Until 1955 Parliament passed annual Army Acts and later Air Force Acts. After 1955, these Acts were passed on a five-yearly basis under which annual approval was provided by Orders in Council, subject to Parliamentary approval: see, eg, Armed Forces Act 2016 s 1; see also SA de Smith, Constitutional and Administrative Law (Penguin Books, 1971) 204–5. The Scottish Militia Bill 1707, which passed both Houses in early 1708; see 18 HL Jour 506 (11 March 1708); FW Maitland, The Constitutional History of England, ed HAL Fisher (Cambridge University Press, 1908) 423.

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2.43

2.44

2.45

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2.46

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The transformation of legislative power was completed in the 17th century. The Glorious Revolution culminated in the balance of constitutional power that we know today. As far as law-making is concerned, Parliament is sovereign.Today, rather than being a royal decree, a statute is an instrument of Parliament.When Parliament wants to command something, it passes a statute (or an Act; the two words are synonymous) which will receive royal assent as a mere formality. DEVELOPMENT OF AN EXECUTIVE ARM OF GOVERNMENT As discussed at 2.10, some of the first English courts were formed from the Curia Regis, the body of the king’s close advisers. Other institutions also emerged from the Curia Regis. While some advisers took on the function of resolving disputes, other members of the advisory body travelled as part of the monarch’s entourage and assisted with general policy questions. A larger body remained in Westminster to manage the affairs of state, where they were assisted by officials.These are the origin of the government departments of today. What began as an efficiency measure after the Norman Conquest as a way for kings to coordinate the activities of their government throughout England is the genesis of today’s executive or government public service. The monarch’s closest advisers on general policy questions metamorphosed into what has been known since the late 16th century as the Cabinet, named after the small room where they met. Initially, this body always included the monarch. In the early 18th century, however, King George I and King George II were electors in Hanover as well as English kings. They focused on their German responsibilities and their English Cabinet increased its responsibilities and power as a consequence. In addition, as George I spoke little English, he ceased to attend meetings and the Prime Minister by convention became the chair of the Cabinet. The royal advisers who remained at Westminster came to head the departments of officials and in time became known as Secretaries of State (Ministers in Australian governments). Principal among them was the head of the Treasury who became the chief adviser to the monarch and is the precursor of today’s Prime Minister. The Prime Minister is still First Lord of the Treasury. A selection of the Secretaries of State are also members of the Cabinet. These advisers needed both the confidence of the monarch and the authority of Parliament for funds and to pass legislation. So began the practice of requiring a Secretary of State (or Minister) also to be a Member of Parliament, the origin of what is known as ‘responsible government’. Over time the task of government grew in complexity, and Secretaries of State increasingly relied on the advice of a growing number of officials. The effective functioning of government throughout the country became ever more dependent on the professionalism of their departments. The Northcote–Trevelyan Report on Civil Service Reform in England, published in the mid-19th century, led to the development of an apolitical and well-educated public service that could be trusted to implement legislation and government policy effectively.The various government departments are led by senior civil servants known as permanent secretaries; these are distinct from the Secretaries of State, politicians who would lose their position if an election led to a change of government.Today, the Secretaries of State and the officials comprising their departments collectively form the core of the executive arm of government.

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CHAPTER 2 THE ORIGINS AND HISTORICAL DEVELOPMENT OF THE AUSTRALIAN LEGAL SYSTEM

SEPARATION OF POWERS AND THE RULE OF LAW The historical evolution of the Crown’s powers resulted in their division among three distinct bodies: Parliament — the legislature — which enacts laws; the government and its officials — the executive — which puts the laws into operation; and the courts — the judiciary — which resolves individual disputes about the meaning or application of the law. Prominent political philosophers, such as Baron de Montesquieu in his De l’esprit des loix (The Spirit of the Laws) in the mid-18th century, viewed this separation of powers as an astute architecture for government, preventing a concentration of public power in one individual or institution, and avoiding abuses of power, such as those which led to the constitutional struggles chronicled in this chapter. The separation of powers principle influenced the constitutional development of other nations in the common law tradition, such as the United States and Australia. However, in England, while the governmental functions were distributed among separate institutions, there was considerable overlap in personnel. Key members of the executive, the Prime Minister and Secretaries of State, were also members of the legislature. Indeed, this remains a key feature of Westminster-style responsible government — the executive government is drawn from and accountable to Parliament. Further, the ultimate English appeal court also overlapped with the legislature. The Appellate Committee of the House of Lords (its elaborate formal title) was made up of the Lords of Appeal in Ordinary, who both decided appeal cases and could sit in the upper House, contributing to debates and voting on legislation. The most senior judge, the Lord Chancellor, was also a senior minister in Cabinet. This overlap between the judiciary and the legislature and, in the case of the Lord Chancellor, the executive, continued until the Constitutional Reform Act 2005. This Act replaced the Appellate Committee with the Supreme Court of the United Kingdom, which is now the apex of the court system and not part of the legislature. In practice, Supreme Court judges are still appointed to the House of Lords, but they are prohibited from voting on legislation while holding judicial office. The United States Constitution maintains a stricter separation of the three arms of government, in both function and personnel. As will be seen at 2.60–2.71, Australia adopted the Westminster system of responsible government. Members of the executive are also key members of the legislature, namely the Prime Minister and the Cabinet. A second fundamental doctrine of constitutional law, related to separation of powers,27 was given force through England’s tumultuous history — the rule of law. The rule of law provides a shield against capricious despotic government. Many commentators see the Magna Carta as an early expression of the values that are central to the rule of law. As discussed at 2.32, the Magna Carta is an early 13th-century list of demands that the Barons forced King John to accept, with the goal of protecting their freedom and property from his arbitrary exercise of power. Central to the rule of law is the principle of legality.28 This requires not only that people are obedient to the law, but, equally importantly, that public officials exercise their 27

28

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See, eg, Denise Meyerson, ‘The Rule of Law and the Separation of Powers’ (2004) 4 Macquarie Law Journal 1. See, eg, Jeffrey Jowell, ‘The Rule of Law and its Underlying Values’, in Jeffrey Jowell and Dawn Oliver (eds), The Changing Constitution (Oxford University Press, 6th ed, 2007) 5, 10.

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powers in accordance with the law. Related to this is the value of equality.The law should be applied consistently to all, regardless of wealth or status. The rule of law also places a high premium on the certainty and predictability of the law.29 The law should be clear and accessible. It must be made possible for people to know their rights and responsibilities under the law so that they can plan their lives accordingly. Further, people who are affected by any exercise of government power should be given a means of testing its lawfulness.30 In other words, the rule of law requires that people be accorded due process and that decision-makers are accountable. The virtues of the rule of law were celebrated in the late 19th-century work of AV Dicey.31 His influential treatise promoted the doctrine as a peculiarly British invention,32 one that justified and underpinned the exercise of British imperial rule. And yet Dicey was forced to acknowledge that the exigencies of imperial governance required arbitrariness and formal inequality at odds with the rule of law and the liberal Empire it was supposed to uphold.33 As discussed below, the British colony of New South Wales began as little more than a military prison; it took some time for legislative and judicial powers to separate from the executive, and for the rule of law to take root. The doctrines of the rule of law and separation of powers operate at a high level of abstraction. Their importance and impact are indisputable; however, they are open to different interpretations, and their specific applications and implications can be contentious. This is particularly the case in Britain given its unwritten constitution, but the same can be said for Australia despite its written constitution. Constitutional law, together with the related branch of administrative law which is concerned with the regulation of government decision-making, are considered in more detail in Chapter 3.

The foundation of the Australian legal system

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2.54

The preceding pages provide a discussion of the development of the English common law together with its constitutional framework and key institutions. The remainder of this chapter explores the foundation and subsequent development of the Australian legal system. The discussion explores the reception of English law in the colonies; the development of independent colonial courts and colonial legislatures based on the Westminster model; Federation, by which the nation of Australia was created; and finally Australia’s achievement of full independence from Britain, its former imperial power. But first we must acknowledge that an Aboriginal population has been present in Australia for more than 60,000 years.34 It is now recognised as one of the world’s oldest continuing cultures. However, Aboriginal customary law was largely disregarded in the development of the Australian legal system. Rather than discussing these issues briefly 29 30 31 32

33 34

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Ibid. Ibid, 11–13. Albert Venn Dicey, The Law of the Constitution (1885). Jowell (n 28) 6; Dylan Lino, ‘The Rule of Law and the Rule of Empire: AV Dicey in Imperial Context’ (2018) 81 Modern Law Review 739. Lino (n 32) 763–4. Chris Clarkson et al, ‘Human Occupation of Northern Australia by 65,000 Years Ago’ (2017) 547 Nature 306; cited in Love v Commonwealth (2020) 94 ALJR 198, 244 [242] (Nettle J), 264 [336] (Gordon J).

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here, we instead focus on them in Chapter 4, which examines how this ongoing systemic disrespect of First Nations culture has contributed to a complex set of problems with which the Australian legal system continues to grapple. TRANSPORTATION AND SETTLEMENT The Australian legal system originated as a penal outpost of the British Empire.At common law, no person could be forcibly exiled from England. In 1717, however, the Imperial Parliament passed a statute (4 Geo 1, c 11) which permitted judges to commute the death sentences of most prisoners on condition that they agreed to go to one of the colonies. Initially, these prisoners were ‘transported’ to the American colonies, but after the American Revolution, a new destination was needed. In 1786, Orders in Council were made designating New South Wales, Norfolk Island and Bermuda as places to which prisoners could be transported. The First Fleet sailed to Australia from England in May 1787 carrying 717 convicts and 290 free persons. The fleet arrived in New South Wales and on 26 January 1788, at Botany Bay, the British flag was unfurled and Governor Phillip formally claimed the territory for King George III. The transportation of prisoners to New South Wales was terminated in 1840 and to Van Diemen’s Land (Tasmania) in 1852. It was not until 1868, however, that the last prisoners were sent to Western Australia. All told, over 160,000 prisoners were dispatched to Australia from the British Isles. As will be seen, it is significant that legal authority in this country originated in the military administration of penal law over convicts and free persons. This had an important bearing on the way in which law and government subsequently developed. The law applicable to the people of the new colony was determined by international law. Traditionally, international law recognises three ways for a country to acquire new territory: conquest, cession (one power giving up or ‘ceding’ its sovereignty over territory to another) and settlement. At the time and subsequently, legal authorities have treated Australia as settled rather than conquered or ceded. Where a territory is conquered or ceded, the laws in force in the territory prior to takeover continue in force until they are changed by the new power.With respect to settled lands, however, the situation is different. As William Blackstone put it in an oft-quoted passage of his Commentaries, an early influential treatise on the English common law:

2.55 Imperial Parliament: the British Parliament, legislating for colonies Orders in Council: royal orders made on political advice

2.56

It hath been held that if an uninhabited country be discovered and planted by English subjects all the English laws then in being, which are the birthright of every English subject, are immediately there in force.35

Blackstone added to this a significant proviso, however: But this must be understood with very many and very great restrictions. Such colonists carry with them only so much of the English law as is applicable to their new situation and the condition of an infant colony …36

35 36

William Blackstone, Commentaries on the Laws of England (Burn and Williams, 11th ed, 1791) vol 1, 108. Ibid.

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2.57

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terra nullius: Latin, land belonging to no one

DOCTRINE OF TERRA NULLIUS The reason that Australia, unlike most other British colonies, was initially deemed to be settled rather than conquered, was that it was deemed terra nullius, land belonging to no one.The British did not consider the existing indigenous population — the First Nations peoples, being the various Aboriginal nations and Torres Strait Islanders — to inhabit or possess the land because their relationship with the land was so foreign to the British. Because the First Nations peoples did not appear to be using the land for recognisable purposes such as agriculture, residences, or commerce, it was assumed that they did not own the land. Moreover, the Aboriginal nations were not perceived as having an organised political structure or system of law. In Cooper v Stuart,37 the Judicial Committee of the Privy Council38 confirmed that, in the eyes of the common law, Australia had been settled. In more recent times the Australian legal system has learned that Australia’s First Nations, for tens of thousands of years, have had a deep connection with their land,39 giving rise to land rights movements and the belated recognition of native title at common law and under legislation. Squaring native title with the longstanding legal fiction of settlement has given rise to significant practical and jurisprudential problems, discussed in Chapter 4.

37 38 39

38

(1889) 14 App Cas 286. For more discussion of the Judicial Committee of the Privy Council, see 2.72–2.76, and 8.77ff. Bill Gammage, The Biggest Estate on Earth: How Aborigines Made Australia (Allen & Unwin, 2011).

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CHAPTER 2 THE ORIGINS AND HISTORICAL DEVELOPMENT OF THE AUSTRALIAN LEGAL SYSTEM

RECEPTION OF ENGLISH LAW According to Blackstone’s formulation, English law — including common law, equity and statute law — arrived in New South Wales with the settlers on 26  January 1788. But ‘only so much of the English law as is applicable to their new situation and the condition of an infant colony’.40 In Australia’s case, this limitation proved to be a source of confusion and uncertainty, one reason being that, for the first several years of its existence, New  South  Wales was little more than a penal colony under military rule. Arguably, not very much of the common law — and even less of equity — was applicable to the conditions in Australia when it was first colonised. To erase any doubt about the extent of the applicability of English law in New South Wales, in 1828 the Imperial Parliament passed the Australian Courts Act (Imp) 9 Geo 4, c 83. Among other things, this Act provided that all laws and statutes in force in England on 25  July 1828 that were applicable to the conditions in New South Wales and Van Diemen’s Land were deemed to be in force there. The respective Supreme Courts were given authority to determine whether a given law was ‘applicable’ to colonial conditions. Since the boundaries of New South Wales at the time included what are now Victoria and Queensland, the date of ‘reception’ (the date at which a colony, state or territory is considered to have acquired English law) is the same in those states.The date of reception of English law in the other states is the date of their foundation.41 40 41

2.58

Blackstone (n 35) 108. Western Australia received English law on 1 June 1829 (Interpretation Act 1984 (WA) s 73), and South Australia on 28 December 1836 (Acts Interpretation Act 1915 (SA) s 48). The Australian Capital Territory

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2.59

The Imperial Parliament retained the power to pass legislation with application to the colonies. However, regular British legislation passed after the date of reception would not be received. The distinction between the two was not always clear: see 2.69– 2.71. The position of subsequent developments in the common law is even less clear. In State Government Insurance Commission v Trigwell,42 Gibbs J suggested how the neighbour principle, laid down in the landmark negligence decision of the House of Lords, Donoghue v Stevenson,43 long after reception, could nevertheless form part of Australian common law: Legislation passed after [the date of reception] will of course not be applicable … But the common law which was adopted is not frozen in the form which it assumed in 1836 [the date of reception in South Australia]. It is the common law rules as expounded from time to time that are to be applied … [I]f it is not right to say that the principle of Donoghue v Stevenson became part of the law of South Australia in 1836, it is at least true to say that a body of principles, including those that developed into the rule subsequently expressed in that case, formed part of the law of South Australia from 1836 onwards … This … means that parts of the common law which are suitable to a more advanced state lie dormant until occasion arises for enforcing them …44

Of course, the principles of the common law must keep up with social, political and institutional developments. However, this statement appears problematic in two respects. First, it seems to embody the fiction that judges merely discover and declare the common law, rather than create it: see  7.57. Nowadays courts generally acknowledge that they have the power to develop and modify the common law. Second, this statement may be taken to imply that the British apex court (then the House of Lords, now the Supreme Court of the United Kingdom) is the ultimate authority on Australian common law. This may have been the position once, particularly while the Privy Council, whose composition overlapped with the House of Lords, was the ultimate appeal court for Australia: see 2.75. However, this is no longer the case and for some time now Australian courts have shown greater independence and confidence, leading to the ‘separate development of the common law in Australia’.45 See further at 8.76ff. Copyright © 2020. LexisNexis Butterworths. All rights reserved.

Evolution of an independent legislature 2.60

In the first decades after British arrival, the Governor of New South Wales wielded virtually all the political power in the colony. In this respect, the situation was not unlike the early years of the common law in England, where the monarch exercised great control in all areas of government: see 2.8 and 2.21. The Governor had a body of advisers (just as the monarch had the Curia Regis), but they exercised little constraint on the Governor’s powers. Transformation from a military to civil government, with an independent judiciary and democratic legislature, took several significant constitutional steps.

42 43 44 45

40

received the body of English law that was in operation in New South Wales on the date that the Territory was proclaimed, 1 January 1911 (Seat of Government Acceptance Act 1909 (Cth) s 6).The Northern Territory received the body of English law that was in operation in South Australia on the date that it was proclaimed, also 1 January 1911 (Northern Territory Acceptance Act 1910 (Cth) s 7). (1979) 142 CLR 617 (‘Trigwell’). [1932] AC 562. Trigwell (n 42) 625–6 (Gibbs J). D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1, 24 [59] (Kirby J).

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CHAPTER 2 THE ORIGINS AND HISTORICAL DEVELOPMENT OF THE AUSTRALIAN LEGAL SYSTEM

The New South Wales Act 1823 (Imp) began the transformation of the colony from a de facto autocracy to a constitutional state.The Act created a Legislative Council comprising between five and seven members nominated by the Crown. The Act conferred upon the Governor the power to enact laws for the ‘peace, welfare and good government’ of New South Wales with the advice of the Legislative Council. The Governor had the sole right to initiate legislation, but if one or more members of the Legislative Council disagreed with a proposed measure, it was not to become law except in certain circumstances, such as an actual or apprehended rebellion or insurrection. A further limitation on the Governor’s legislative power was that locally enacted laws could not be repugnant to (that is, inconsistent with) the laws of England. The Act also created an independent Supreme Court with jurisdiction to review legislation to ensure that no repugnancy existed. The development of the court system and the repugnancy doctrine are discussed at 2.65ff and 2.69ff, respectively. The creation of an Executive Council,a further significant constitutional development, occurred with the appointment of Governor Darling in 1825. His commission provided for an Executive Council appointed by the Crown. Under this commission, many executive acts relating to the military, civic and commercial development of New South Wales could be taken only with the ‘advice’, or in some instances ‘advice and consent’, of the Executive Council. In other areas, such as ‘resisting or withstanding all Enemies, Pirates and Rebels both at Sea and Land’, the Governor was given ‘full power and authority’.46While these developments went only some way towards establishing what we would consider to be democratic rule, they nonetheless represent important milestones in Australia’s constitutional evolution. Further significant changes were introduced incrementally. In 1828 the Imperial Parliament passed the Australian Courts Act, which increased the size of the Legislative Council to between 10 and 15 members, gave it power to veto a law proposed by the Governor, and provided for trial by jury. This Act also fixed the date of reception of English law into New South Wales. In 1842 a further step towards democracy was taken with the Australian Constitutions Act (No 1) (Imp) 5 & 6Vict, c 76.This Act expanded the Legislative Council to 36 members, of whom two-thirds were to be elected, the remaining third still to be nominated by the Crown. The Governor was no longer considered to be a part of the legislature. While the Governor retained the power to introduce Bills, the Legislative Council could reject or pass them, with or without amendment.The Governor, however, was empowered to give, or exceptionally withhold,47 royal assent to the Bills passed by the Council, a legislative role that Governors and the Governor-General in Australia still possess today. In 1850 a number of important constitutional changes were introduced by the Australian Constitutions Act (No  2) (Imp) 13 & 14 Vict, c  59. The separate colony of Victoria was formed in 1851 and provision was made for the creation of Queensland, which occurred in 1859. Further, the Act conferred upon the colonial legislatures the power, subject to final approval by the Imperial authorities, to remodel their constitutions to accommodate full responsible government. New South Wales quickly took this opportunity. In 1853, the Legislative Council forwarded to England a constitutional Bill 46 47

2.61

2.62

2.63

2.64

Governor Darling’s Commission, 16 July 1825. Greg Taylor, ‘Two Refusals of Royal Assent in Victoria’ (2007) 29 Sydney Law Review 85.

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that provided for a bicameral legislature, with an elected lower House and an appointed upper House. The Bill was enacted in London, with minor amendments, as a schedule to the New South Wales Constitution Statute 1855 (Imp) 18 & 19 Vict, c  54. The new constitution itself was called the New South Wales Constitution Act and it remained in force until it was replaced by the current Constitution Act 1902 (NSW). Similar steps were, in time, taken by the other colonies.

Development of judicial independence 2.65

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Letters Patent: letters from the Crown containing public instructions or directions

2.66

In order for the courts of New South Wales to implement fundamental principles such as the independence of the judiciary and trial by jury, they had to overcome the limitations of their origins as military courts in a penal colony. Shortly before the First Fleet left England, legislation was passed to create a criminal court in New South Wales. At the same time Letters Patent were issued to create a Court of Civil Jurisdiction.48 Initially these courts were staffed by military officers and run along military lines.49 It was not until 1810 that the first civilian judge, Ellis Bent, arrived in the colony. Bent soon found himself in conflict with Governor Macquarie, over attempts by the military to influence the workings of the court. In 1814 the conflict escalated when Bent’s brother, Jeffery Bent, was also appointed a judge in New South Wales. Essentially, the judges were seeking to establish the independence of the judiciary from the two other branches of government, the executive and legislature, both of which were largely in the hands of the Governor. Governor Macquarie demanded that London dismiss them. The Colonial Secretary acceded but expressed concern at Macquarie’s disregard for fundamental principles of English common law. In the meantime, pressure was exerted by some of the freed convicts, known as ‘emancipists’, to increase the protection of civil rights in the colony. Criminal trials were still being conducted along the lines of military courts-martial. The emancipists wanted the principle of trial by jury enshrined in colonial law. In 1818 the British Government appointed John Bigge, a former Chief Justice of Trinidad, to investigate the situation in New South Wales. Among other things, Bigge recommended that the colony’s court system be restructured and formalised along English lines. The two reports were favourably received in England and, in 1823, the Imperial Parliament passed legislation to enact many of their recommendations. The 1823 Act (4 Geo 4, c 96), which is commonly referred to as the New South Wales Act 1823, provided a statutory basis for the Supreme Court of New South Wales and the Supreme Court of Van Diemen’s Land. A court called the Supreme Court had been established in New South Wales by Letters Patent in 1814, but as the problems with the Bents had shown, its foundation was insufficiently firm to ward off interference by 48

49

42

New South Wales Charter of Justice, Letters Patent 2 April 1787. On the meaning of ‘jurisdiction’, see Abebe v Commonwealth (1999) 197 CLR 510 [24]. Although, interestingly, in its first case the Court of Civil Jurisdiction upheld a claim by two convicts against the captain of one of the ships in the First Fleet for the loss of some of their possessions during the voyage. See David Neal, The Rule of Law in a Penal Colony: Law and Power in New South Wales (Cambridge University Press, 1991) 5–7; Ian Holloway, Simon Bronitt & John Williams, ‘Rhetoric, Reason and the Rule of Law in Early Colonial NSW’ in Hamar Foster, Benjamin L Berger, AR Buck, and W Wesley Pue (eds), The Grand Experiment: Law & Legal Culture in British Settler Societies (UBC Press, 2008), 78, 80–83.

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CHAPTER 2 THE ORIGINS AND HISTORICAL DEVELOPMENT OF THE AUSTRALIAN LEGAL SYSTEM

the military. The New South Wales Act 1823 resolved these problems. Whereas Justice Ellis Bent’s commission had required him ‘to observe and follow such orders and directions as he might be given by our Governor or any other superior officer’, s  2 of the New South Wales Act 1823 gave the judges of the new courts ‘like jurisdiction and authority in New South Wales and Van Diemen’s Land … as the judges of the courts of King’s Bench, Common Pleas and Exchequer in England’. In other words, colonial judges were to enjoy the security and independence gained by English judges in the constitutional settlements arising from the Bill of Rights Act 1689 (UK) and the Act of Settlement 1701 (UK) (see 2.40–2.41). The New South Wales Act 1823 did not give the courts and the emancipists all that they hoped for. For example, it did not entrench trial by jury in criminal matters. Only in 1828 did the Australian Courts Act (Imp) give the Governor power to introduce a jury to criminal trials, which finally occurred in 1833. One of the key advocates for jury trials in the colony was the first Chief Justice of the new Supreme Court of New South Wales, Sir Francis Forbes.50 Forbes was a former Chief Justice of Newfoundland and one of the drafters of the New South Wales Act 1823. He served as Chief Justice of New South Wales until 1837. In the face of a culture of military rule, Forbes strove to free the judiciary from political interference. His tenure as Chief Justice has been described as ‘the Australian version of the Glorious Revolution — in the sense that it marked the end of claims to autocratic power in the Crown’.51 Interestingly, in a landmark criminal case, Forbes CJ delivered a dissent in support of a defendant’s liberties that would have largely negated the court’s jurisdiction. In 1831 in R v Farrell, Dingle, and Woodward (‘Farrell’),52 the defendants, on trial for bank robbery, argued that an alleged accomplice was precluded from testifying for the prosecution as he was a convicted felon. Under the felony attaint rule, the evidence of convicted felons is not admissible.53 With reference to the Magna Carta,54 Forbes CJ would have given the present defendant the benefit of this rule, notwithstanding that, given the high proportion of transported felons in the colony, this would have made the judicial administration of justice unworkable. Fortunately perhaps, the majority judgment of Dowling and Steven JJ adopted a more pragmatic position and held that this aspect of the English felony attaint rule was not applicable to New South Wales, ‘to all intents and purposes … an extensive gaol’.55 The alleged accomplice’s evidence was admitted, and the three defendants were convicted.The first two were sentenced to death, but the sentence was commuted and all three were transported to Norfolk Island. Forbes played a key role in the establishment of a strong, independent judiciary in Australia. By the time of Federation at the turn of the 20th century, the colonies had court systems comparable to the ones of today. They comprised three tiers: a Supreme Court; an intermediate civil and criminal court, usually called a District or County Court; and 50 51 52

53

54 55

2.67

2.68

Holloway, Bronitt and Williams (n 49) 89–90. Ibid 99. (1831) 1 Legge 5 (‘Farrell’); discussed in Holloway, Bronitt and Williams (n 49) 94–7. For an annotated report of the case, see Macquarie Law School, Decisions of the Superior Courts of New South Wales, 1788– 1899 (Website) . Bruce Kercher, ‘Perish or Prosper:The Law and Convict Transportation in the British Empire, 1700-1850’ (2003) 21 Law and History Review 527. Farrell (n 52) 8. Ibid 16.

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at the lower tier, the Local or Magistrates’ Court. That structure has largely remained.56 A  challenge at Federation was how to superimpose a federal system of courts on the existing court systems which had emerged during the colonial era.

Continuing connection with English law 2.69

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2.70

2.71

REPUGNANCY AND THE COLONIAL LAWS VALIDITY ACT One of the limitations placed on the law-making powers of the early Governors and Legislative Councils was that their enactments were not permitted to be repugnant to the laws of England. One of the problems with this restriction on colonial law-making powers was that the meaning of ‘repugnant’ was never expressly spelled out. How different from an English law could an Australian law be before it could be said to be repugnant? A further complication was that even after the date of reception had been fixed for New South Wales and Van Diemen’s Land by the Australian Courts Act in 1828, the Imperial Parliament could still pass legislation with application to the colonies. While the existence of this power was clear, the question often arose as to whether statutes passed in Westminster were intended to apply to the colonies. Could they extend to the colonies by implication? Or was it necessary for Imperial statutes to contain an express statement that they were intended to apply to the colonies? This problem came to be of more than theoretical concern during the mid-19th century. Following his appointment to the Supreme Court of South Australia in 1853, Benjamin Boothby invalidated many pieces of South Australian legislation, among them the Real Property Act 1858 (SA) which established the first ‘Torrens’ system of land registration, subsequently emulated around the world.57 In 1861 the South Australian Government appointed a committee to investigate this and other aspects of Boothby’s behaviour. (On one occasion, he locked up a jury for 22 hours without food when it refused to bring a finding in accordance with his direction.)58 In 1862, both Houses of the South Australian Parliament passed addresses asking that he be removed from the bench. The Imperial Government refused to agree to this but, not long after, it passed legislation aimed at curbing Boothby’s Anglophilic zeal. In 1863 the Imperial Parliament sought to narrow the repugnancy doctrine to give the colonies more independence. It passed An Act to confirm certain Acts of Colonial Legislature (Imp) 26 & 27 Vict, c 84, followed in 1865 by the Colonial Laws Validity Act (Imp) 28 & 29 Vict, c 63. The latter reiterated the premise of the supremacy of English law, but in s  3 it provided that no colonial law was to be invalidated for repugnancy unless it was inconsistent with Imperial legislation that ‘extended to’ the colony. Under s 1, legislation only ‘extend[ed] to’ a colony where it was ‘made applicable to such colony by the express words or necessary intendment of any Act’. This sent a clear message to both colonial legislatures and judges that they should not be overly deferential to British

56 57

58

44

See Essential Legal Toolkit A. Greg Taylor, ‘Is the Torrens System German?’ (2008) 29 Journal of Legal History 253; Greg Taylor, ‘The Torrens System – Definitely not German’ (2009) 30 Adelaide Law Review 195. Alex C Castles, ‘Boothby, Benjamin (1803–1868)’, Australian Dictionary of Biography (online) (National Centre of Biography, Australian National University) .

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CHAPTER 2 THE ORIGINS AND HISTORICAL DEVELOPMENT OF THE AUSTRALIAN LEGAL SYSTEM

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law. Their task was to develop bodies of law, in broad conformity with British notions of justice, but responsive to the various needs of colonial societies. Imperial legislation for the colonies diminished in volume over the 19th century with the establishment of local legislatures with responsibility for their own law-making. Residual power to legislate for the states was, however, retained by the British Parliament until the commencement of the British and Commonwealth Australia Acts 1986 on 3 March 1986: see 2.87–2.88. JUDICIAL COMMITTEE OF THE PRIVY COUNCIL Apart from the repugnancy doctrine, there was another way in which English norms continued to be the yardstick against which colonial law was measured.Australia’s ultimate appeal court was Imperial — the Judicial Committee of the Privy Council, which sits in London. The Judicial Committee of the Privy Council, usually referred to by lawyers simply as ‘the Privy Council’, can trace its origins to the King’s Council of the early middle ages, which was in turn an offshoot of the Curia Regis of the 12th and 13th centuries: see 2.8. During the struggles for political power in the 16th and 17th centuries, Tudor and Stuart monarchs began to use the ‘conciliar courts’ to combat the growth in influence of the common law courts. Initially, their lack of formality made the conciliar courts very popular. But as monarchs began to use the conciliar courts for more overt political ends (the chief of which was to get rid of enemies under the guise of the criminal law), they became first disliked and then feared.The Court of Star Chamber, whose name still conjures up images of arbitrary punishment and injustice, is perhaps the best known of these courts. So unpopular were the conciliar courts that the right of the Council to exercise court-like powers was abolished by statute in 1641. For a while the Council (by now called the Privy Council) operated as a political advisory body. Nowadays its main functions in Britain are ceremonial, such as attending the accession of a new sovereign. The Privy Council retained greater practical importance in the colonies than it did at home.The abolition of the Council’s judicial powers was limited to England.The Privy Council retained jurisdiction to entertain petitions to the monarch for justice filed by people in the colonies. Petitioners valued the Privy Council’s lack of local prejudice and parochialism. The French-speaking people of Canada, for example, were among the most ardent supporters of appeals to the Privy Council — the Counsellors were considered likely to be free of the anti-French bias that so permeated the North American colonies. The practice arose whereby petitions sent to the Privy Council were passed to a group of senior judges, most often members of the House of Lords who held judicial office. Over time, the judicial workload of the Privy Council was such that it was felt necessary to systematise the process. In 1833 the Imperial Parliament passed the Judicial Committee Act 1833 (Imp) 3 & 4 Will 4, c  41, which created a formal Judicial Committee of the Privy Council whose job was to hear appeals from the colonial possessions of the Empire. The Judicial Committee was chiefly composed of judicial members of the House of Lords, although provision was made for colonial and dominion judges to sit as well. While it had the advantage of freedom from local bias, the Privy Council suffered from two great handicaps: expense and distance. First, relatively few litigants could afford

2.72

2.73

2.74

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to take their cases to London, including the people whom the appeal was supposed to benefit most — those who might be at the greatest risk from local prejudice. At one of the sessions of the 1898 Melbourne constitutional convention, this point was made forcefully in an exchange between Henry Higgins and Richard O’Connor: Higgins: The poor man never goes to the Privy Council. O’Connor: A man is generally a poor man when he leaves it.59

2.75

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2.76

Second, there was the fact that the Privy Council was not really a colonial court. Most judges were British. While the Privy Council may have avoided local prejudices, on occasions it also lacked knowledge of local conditions. During the federation process some effort was made by drafters of the Australian Constitution to limit Privy Council appeals. However, the Colonial Secretary insisted that some provision be maintained for an appeal to the Queen in Council, both to preserve a symbolic tie to the Empire and to protect British financial interests from what were perceived to be the vagaries of the Australian judiciary. A compromise was reached: appeals from the High Court on questions of constitutional law were limited,60 but appeals on other matters were maintained. Decades later appeals to the Privy Council were eliminated in three steps. Appeals on federal matters were abolished by the Privy Council (Limitation of Appeals) Act 1968 (Cth), and appeals from the High Court on matters of state law were abolished by the Privy Council (Appeals from the High Court) Act 1975 (Cth). This left open the possibility of appeals from state courts directly to the Privy Council, bypassing the High Court. These were abolished by the passage of the Australia Acts in 1986. The Privy Council decided its last appeal from Australia in 1987.61 Most former British colonies have now abolished appeals to the Privy Council. The Privy Council reluctantly continues to hear appeals from several Caribbean states. In 2001 the Caribbean community voted to set up its own Caribbean Court of Justice as the ultimate court of appeal, but only a few states have adopted it. In a 2017 appeal against a murder conviction from Jamaica, the Privy Council indicated it would be ‘very unsatisfactory’ for it to resolve the dispute ‘when the Court of Appeal, sitting locally and with daily practical experience of the course of trials in the jurisdiction where the events occurred, did not feel able to do so’.62 The Privy Council provided a brief discussion of how the case might be approached and remitted it to the Jamaican Court of Appeal, commenting: ‘How that court goes about its resolution must be for it to decide.’63

The path to constitutional independence 2.77

FEDERATION Australia federated at the turn of the 20th century. Prior to that, the idea of federation had been discussed and debated for more than half a century, eventually garnering enough support, locally and in Britain, to be properly implemented. 59 60 61 62 63

46

Official Record of the Debates of the Australasian Federal Convention, Melbourne, 31 January 1898, 325. Australian Constitution s 74. Austin v Keele (1987) 61 ALJR 605. McLeod v The Queen [2017] UKPC 1 [18]. Ibid.

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CHAPTER 2 THE ORIGINS AND HISTORICAL DEVELOPMENT OF THE AUSTRALIAN LEGAL SYSTEM

The first discussion of the desirability of federation for the Australasian colonies came about in the late 1840s and 1850s — roughly the time that Victoria and Queensland were being carved out of New South Wales. The early proposals were quite limited in their ambit, but in a speech given in Melbourne in 1867, possibly influenced by Canada’s Confederation which took place that year, Sir Henry Parkes raised the question of federation directly. Nonetheless, the likelihood of any early action seemed remote. New South Wales and Victoria disagreed strongly about tariffs, New South Wales favouring free trade and Victoria advocating protectionism. What eventually overcame the intercolonial rivalry and distrust was a shared fear of German and French expansionism in the South Pacific. In 1885 the Imperial Parliament passed the Federal Council of Australasia Act 1885 (Imp) 48 & 49 Vict, c 60, which provided for a Federal Council with limited legislative power in areas of common concern. The Federal Council did not prosper, however, for New South Wales chose not to become a member and South Australia’s membership lasted only two years. (Interestingly, though, both New Zealand and Fiji did join the Council.) But the momentum within the colonies for union was maintained, and in March 1891 a National Australasian Convention met in Sydney. Out of this meeting came a draft Bill for a federal constitution. In the short term, the 1891 Bill came to nothing. The various colonial legislatures seemed to lose interest in the idea. But the quest for federation was kept alive by a populist movement, and further conventions, held in Adelaide, Sydney and Melbourne in 1897 and 1898, produced another draft federal constitution.The proposed constitution was put to referendum in all colonies except Queensland and Western Australia. These referenda passed by large majorities in Victoria, South Australia and Tasmania, but not by a sufficient majority in New South Wales. Some amendments were made to accommodate New South Wales’ concerns, and in the subsequent round of referenda, in which Queensland also took part, the constitution was approved in all five of the participating colonies. The constitution was then sent to the Imperial Parliament in London, for approval. In July 1900, after some minor amendments — chief of which concerned Privy Council appeals — the Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Vict, c 12 was passed by the Imperial Parliament. Shortly afterwards,Western Australia held a referendum on the Constitution, which passed by a majority. In September 1900, Queen Victoria proclaimed that the Act — and the new federal nation — would commence on 1 January 1901, the first day of the new century.64 The Australian Constitution combines a Westminster-style parliamentary democracy with a bicameral federal legislature. The Parliament comprises a lower people’s House (the House of Representatives) and an upper states’ House (the Senate), modelled on the United States Congress. However, unlike the United States system, there is no provision for the direct election of an executive. The Constitution vests executive power in the Queen, exercisable by her representative, the Governor-General.65 As in Britain, according to unwritten Westminster convention, the bulk of executive power is exercised by the parliamentary political party that commands support in the lower, more representative, 64

65

2.78

2.79

2.80

2.81

Popular belief may have it that the 20th century began on 1 January 1900. However, the first year of the first century CE was year one, not year zero. The 100th year CE was 100 CE, the second century CE began on 1 January 101, and the 20th century began on 1 January 1901. Australian Constitution s 61.

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LAYING DOWN THE LAW

2.82

2.83

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2.84

House of Parliament. This is the real executive government; the Crown almost invariably acts on the government’s advice. While the commencement of the Australian Constitution in 1901 created a new nation, it did not provide full legal independence from Britain. This took almost another century of incremental steps, and in large part occurred without formal legal change.This is not unusual for countries in the British constitutional tradition. Many key elements of constitutional structure are unwritten, and when formal change does occur, it may simply capture something that has already taken root in legal and political culture. In the decades following Federation and the proclamation of Australia as a new nation, most Australians still considered themselves to be British. The two identities, Australian and British, sat comfortably side by side. Clear evidence of this can be found in Australia’s relations with the outside world. In the eyes of the international community, Australia had no identity apart from its membership in the British Empire. When Great Britain declared war on Germany in August 1914, it was taken for granted that Australia was at war as well. The first hint of a change came in 1919, when the Treaty of Versailles was formally signed to end the First World War. At Great Britain’s insistence and over the objections of some of the other allies, Australia and Canada were permitted to sign the treaty themselves. STATUTE OF WESTMINSTER 1931 A more important, but still non-formal, step came at the Imperial Conference of 1926.The conference was called as a result of a constitutional crisis in Canada which turned on the question of the role of the Canadian Governor-General. Was the Crown’s representative to take political advice from the Canadian Government? Or was the Governor-General meant to be a representative of Imperial interests? The conference opted for the former model — Governors-General were to act on the advice of the locally elected governments, rather than that of Great Britain. In addition, the conference led to a statement of British Government policy, known as the Balfour Declaration of 1926 after AJ  Balfour, the British politician who drafted the document. (This is not to be confused with the more controversial Balfour Declaration of 1917, named after the same politician, in which the British Government expressed support for the ‘establishment in Palestine of a national home for the Jewish people’.) The 1926 statement declared that the ‘dominions’ — Australia, Canada, Ireland, Newfoundland, New Zealand and South Africa — were autonomous communities within the British Empire, equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs, though united by a common allegiance to the Crown, and freely associated as members of the British Commonwealth of Nations.66

After another Imperial Conference held in 1930, the Balfour Declaration was committed to statutory form. The Statute of Westminster 1931 (Imp) 22 & 23 Geo 5, c 4 reiterated in its preamble the essence of the Balfour Declaration, and in s 4 provided that thereafter, the British Parliament would not pass legislation applying to any dominion except at the dominion’s request. Further, s 2 repealed the last vestiges of the repugnancy doctrine as contained in the Colonial Laws Validity Act 1865; dominion 66

48

Balfour Declaration, Imperial Conference 1926, 2.

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CHAPTER 2 THE ORIGINS AND HISTORICAL DEVELOPMENT OF THE AUSTRALIAN LEGAL SYSTEM

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laws would no longer be held void on the grounds that they were inconsistent with English law. Finally, s 3 formally conferred upon the dominion Parliaments the power to make laws of extra-territorial application (that is, laws which could apply outside the country’s own borders). In this sense, the Statute of Westminster 1931 marked a significant step forward on the road to independence of Australia and the other dominions.Yet political difficulties within Australia limited the Act’s practical effect.The problem was that the states, particularly New South Wales which at the time was embroiled in a controversy with the Commonwealth over financial power, did not want to sever their direct constitutional links with Britain. And so an express provision was included in the statute that excluded its application to the Australian states. Moreover, s 10(1) said that the operative provisions of the statute were not to come into effect in a dominion until the dominion passed legislation to that effect. In Australia, this did not happen for 11 years with the Commonwealth Parliament’s enactment of the Statute of Westminster Adoption Act 1942. This Act provided that the operative provisions of the Statute of Westminster 1931 were to be deemed to have had effect since 3 September 1939, the first day of the Second World War. That a sizeable number of Australians still considered themselves to be British was made plain in September 1939, when Great Britain declared war on Germany after the invasion of Poland. Again, the Australian Prime Minister stated that since Britain was at war, so too was Australia. (Canada saw fit to make its own declaration of war, a week after Britain’s.) But, as with the First World War, participation in international armed conflict led to an increase in Australia’s international status. In 1941 Australia separately declared war against Japan. In 1942 Australia’s first ambassador was accredited to the United States. And in 1945 Australia took full part in the surrender of the enemy forces, particularly the Japanese. THE AUSTRALIA ACTS 1986 Yet the anomaly created by the uneven adoption of the Statute of Westminster 1931 continued. While the Commonwealth had secured its de facto legislative freedom from the United Kingdom, the states retained a direct colonial link with the Imperial Parliament and were still bound by the repugnancy doctrine contained in the Colonial Laws Validity Act 1865. This situation was not resolved until 1986. Following Premiers’ conferences in the early 1980s, the states agreed in principle to cut the final direct constitutional links with the United Kingdom. Accordingly, in 1985 each of the states passed a statute to this effect, entitled the Australia Acts (Request) Act, requesting the British and Commonwealth Parliaments to pass legislation by which the United Kingdom would give up whatever remaining legislative powers it had over the state. At the same time, the Commonwealth Parliament, pursuant to the Statute of Westminster 1931, passed the Australia (Request and Consent) Act 1985, requesting that the United Kingdom give up whatever power it might still have over Australia as a whole. In 1986, the British and Commonwealth Parliaments each passed almost identically worded statutes, both called the Australia Act, which came into force at 5.00 am Greenwich Mean Time on 3 March 1986. Section 1 provides:

2.85

2.86

2.87

2.88

No Act of the Parliament of the United Kingdom passed after the commencement of this Act shall extend, or be deemed to extend, to the Commonwealth, to a State or Territory as part of the law of the Commonwealth, of the State or of the Territory.

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Section 11 terminated the final avenue of appeal to the Privy Council directly from state courts, bypassing the High Court: see further 2.75 and 8.76ff. With the passage of the two Australia Acts in 1986, Australia’s journey to legal independence was complete. EXERCISE 1: TIMELINES 2.89

Construct two timelines of Australia’s journey to legal independence, one for the judiciary and one for the legislature. Mark on each timeline the most important steps on the journey. Indicate in each case the means by which the step was taken, whether through legislation or some other event. In the case of legislation, note whether it is colonial, Imperial, British, state or Commonwealth. Briefly explain the significance and impact of each step.

Further reading • John H Baker, An Introduction to English Legal History (LexisNexis Butterworths, • • • •

5th ed, 2019). John Bennett and Alex Castles (eds), A Source Book of Australian Legal History (Lawbook, 1979). Alex Castles, An Australian Legal History (Lawbook, 1982). Michael Coper, Encounters with the Australian Constitution (CCH Australia, 1988). Paul Finn, Law and Government in Colonial Australia (Oxford University Press, 1987).

• Justin T Gleeson et al, Historical Foundations of Australian Law, vols  1 and  2

(Federation Press, 2013). • Ellen Goodman, The Origins of the Western Legal Tradition from Thales to the Tudors (Federation Press, 1995). Copyright © 2020. LexisNexis Butterworths. All rights reserved.

• William S Holdsworth, A History of English Law (Sweet & Maxwell, 7th  ed, 1956).

• Sir Ivor Jennings, The Queen’s Government (Penguin Books, 1954) ch 5. • Richard Lumb, The Constitutions of the Australian States (University of Queensland Press, 5th ed, 1991). • Frederic W Maitland, The Constitutional History of England (Lawbook Exchange, 1908). • David Neal, The Rule of Law in a Penal Colony: Law and Power in Early New South Wales (Cambridge University Press, 1991).

• Patrick Parkinson, Tradition and Change in Australian Law (Lawbook, 5th  ed, 2012). • Victor Windeyer, Lectures on Legal History (LawBook, 2nd rev ed, 1957).

50

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CHAPTER 2 THE ORIGINS AND HISTORICAL DEVELOPMENT OF THE AUSTRALIAN LEGAL SYSTEM

• George Winterton and HP Lee (eds), Australian Constitutional Landmarks (Cambridge University Press, 2003). • George Winterton (ed), State Constitutional Landmarks (Federation Press, 2006).

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To enhance your learning experience, use the student resources available on Lexis® Learning See the Visual Preface at the front of this book on how to register.

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CHAPTER

3

The Australian Legal System The Constitution of the Commonwealth of Australia entrenches the rule of law in the … vital sense that there is no Commonwealth power legislative, executive or judicial that can be exercised other than with the authority of the Constitution or laws made under it. The Constitution also sets limits, directly or indirectly, expressly or by implication, upon the law-making powers of the States.1

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1

Chief Justice Robert French AC (Speech, Book Launch [Nicholas Aroney et al, The Constitution of the Commonwealth of Australia: History, Principle and Interpretation (Cambridge University Press, 2015)], Australian National University, Canberra, 1 October 2015).

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Introduction

3.1

Origins and Institutions

3.2

− Parliamentary democracy

3.3

− Federal system

3.4

Key Constitutional Principles

3.7

− Separation of powers

3.8

− Responsible government

3.11

− Rule of law

3.13

Australian Legal Institutions

3.14

− Legislature

3.17

− Judiciary

3.21

•

Commonwealth

3.24

•

State and territory court systems

3.27

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− Executive

3.28

•

Commonwealth

3.29

•

States and territories

3.31

•

Administrative law

3.32

International Law

3.33

− Sources

3.34

− Impact on domestic law

3.37

− Enforcement

3.40

Human Rights Law in Australia

3.44

− Express and implied constitutional rights

3.45

− Constitutional rights infrastructure: rule of law, principle of legality, separation of powers

54

3.47

− Administrative law and the protection of rights

3.50

− An entrenched Bill of Rights for Australia?

3.54

− Protecting rights through intragovernmental dialogue

3.58

EXERCISE 2: Bill of Rights and Parliament’s role

3.61

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CHAPTER 3 THE AUSTRALIAN LEGAL SYSTEM

Introduction The Australian legal system is made up of key governmental institutions that make, interpret, administer and enforce laws, at the federal, state and territory levels. These institutions are guided by written constitutions, such as the Australian Constitution,2 and fundamental constitutional principles. The form of government, derived from English settlement, is a Westminster parliamentary system, but in a federal structure and within an international context. In this chapter we explain each of these elements of the Australia legal system as it stands today.

3.1

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Origins and institutions The Australian Constitution is the fundamental law of Australia. It took effect from 1 January 1901, uniting six constituent British colonies to form a nation with a federal system of government: see 2.77ff. It provides for the establishment of a national government — known as the federal or Commonwealth government — and sets out the structure and limits of each of the three key branches of government: the legislature, the executive and the judiciary. It reflects the agreement reached by the colonies on the relationship between these branches, between the federal government and the state governments, and between the federal government and the citizens of Australia. It also sets out, in s 128, the means by which the Constitution can be amended.3 The way the Australian government system operates now, more than a century after Federation, is not immediately evident on reading the Constitution, but it remains the touchstone for identifying the legality and limits of government action. The Constitution also reflects the history of British settlement of Australia. As explained in Chapter 2, the Australian legal system is modelled on the English legal system because the land was ‘settled’4 and colonised by Britain from 1788. Although originally established as a penal colony, for convicts ‘transported’ from Britain, the government of the colony of New South Wales and subsequent colonies evolved gradually to reflect the governmental structures of Westminster, the seat of British government. This model was then used to create the new Australian Government to sit above the six former colonies in a federal structure. PARLIAMENTARY DEMOCRACY There are key features of a parliamentary system of government, although not all are peculiar to this system. First, reflecting the principle of separation of powers, introduced in Chapter 2 and discussed further below at 3.8, there are three branches of government: legislature, executive and judiciary. Each of these branches has a primary role and is notionally separate from the others, with some important qualifications.

2 3

4

3.2

3.3

Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Vict, c 12. Note that the requirements for amendment are onerous. Section 128 requires proposed amendments to pass both Houses of Parliament and be approved at referendum by a majority of voters overall, and by a majority of voters in a majority of states. Only 8 of 44 referendums have passed. See 4.60ff for discussion of the 1967 referendum for constitutional amendment. See 2.56 for explanation of this term in international law and how it applied to the colonies.

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LAYING DOWN THE LAW

The second feature, one that is peculiar to a parliamentary system of government, is a particular overlap of personnel and powers among the branches of government (more so in the United Kingdom than Australia). In establishing the federal government, the Australian Constitution required the judiciary to be separate in personnel and powers from the other two branches, the legislature and the executive, which overlap, as they do in the British government in Westminster. The judiciary is comprised only of judges, who are charged with exercising judicial power, and only judicial power in that role at the federal level: see 3.24–3.26. However, in a parliamentary system the legislature and the executive are not distinct: key members of the executive, including the Prime Minister and the other Ministers, who are effectively secretaries of state or heads of executive departments, are also members of the legislature.5 Reflecting another constitutional principle, responsible government (discussed below), this overlap means that the executive government is drawn from and ostensibly responsible to Parliament and, in turn, to those who elect Members of the Parliament, the people. By convention, the government is constituted by those Members of Parliament whose party or coalition gains a majority of seats (or support of a majority) in the election of the lower House of Parliament. It is this majority that, by convention, authorises the head of state, which in Australia is the British monarch’s representative, the Governor-General, to appoint the Members as Ministers and to form government. Parliament, as the democratically elected branch, is supreme in respect of law-making and allowing the government to govern; generally, if the government loses support of a majority in Parliament, it will be expected to advise the Governor-General to call an election.

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3.4

3.5

FEDERAL SYSTEM In Australia’s federal system of government, the national Commonwealth Government sits atop the semi-autonomous governments of the six states and the two territories. Powers and responsibilities are divided and shared between the two levels of government. The states, originally operating as British colonies, each have a constitution that establishes and delineates the government powers and responsibilities within that state. In federating, the colonies ceded some powers to the new federal government but in many fields retained power to govern concurrently with the national government. This can be seen, for example, in the division of legislative powers in the Australian Constitution, with the Commonwealth Parliament being granted a small number of fields (referred to as ‘heads of power’) in which it alone can pass legislation,6 while also being granted power to make laws concurrently with state governments over a much longer list of fields.7 Under the Constitution, the High Court of Australia plays a significant role in the federal system. First, the High Court can resolve conflicts between federal and state laws; in the event of an inconsistency, the federal law will prevail to the extent of the inconsistency.8 Second, the High Court is the highest court for all disputes, which means that it can determine appeals from all courts. In this role, under the common law rules 5 6 7 8

56

Australian Constitution s 64. Ibid s 52. Ibid s 51. Ibid s 109.

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CHAPTER 3 THE AUSTRALIAN LEGAL SYSTEM

of precedent (see Chapter 7), it can harmonise conflicting authorities in case law from different states. In this sense, there is only one system of common law in Australia: see 8.35. Finally, the High Court has power to determine whether the federal government has operated within the powers given to it in the Constitution. This could mean assessing whether legislation falls within one or more of the heads of power,9 or assessing whether the executive government has legal authority to undertake a particular action.10 While the High Court has checked federal power,11 over time the federal government’s reach has grown substantially. This is in part because the court has interpreted the heads of power increasingly widely to allow federal legislation in areas not foreseen by the founding constitutional drafters.12 And the federal government has expanded its powers beyond those broadening legislative limits by holding the purse strings; dating from a fiscal crisis in the Second World War when the states were persuaded to give up their income taxing powers, the federal government has been able to regulate areas traditionally within state control by attaching conditions to grants offered to the states.

3.6

Key constitutional principles

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Underpinning and informing the legal institutions in Australia are key ideas that have developed over centuries about how governments should be constituted and operate. These are referred to as constitutional principles because of their foundational nature; they are reflected but not expressly referred to in the Australian Constitution (and state equivalents). Three constitutional principles introduced in Chapter  2 and explained further below are: the separation of powers; responsible government; and the rule of law. They are indisputably important in the operation of government today, but the principles are open to interpretation. Much has been written about them, each inspiring many treatises and ongoing debates but for our purposes we merely seek to introduce and outline them. SEPARATION OF POWERS The principle of the separation of powers emerged over time and reflects the now well-accepted idea that government power should not be too concentrated in any single individual or institution. Instead, it is better to distribute power across separate institutions and allow each of these institutions to keep the others in check. Articulated most notably by the French social commentator and political philosopher Baron de Montesquieu in his De l’esprit des loix (The Spirit of the Laws) in 1748,13 the ideas were controversial but influential. They clearly influenced the structuring of the United States Constitution in 1787 with the first three articles establishing respectively the three branches of government — legislature, executive and judiciary — and this structure was replicated in Australia: see 3.14ff.

9 10 11 12 13

3.7

3.8

See, eg, New South Wales v Commonwealth (2006) 229 CLR 1 (‘WorkChoices Case’). See, eg, Williams v Commonwealth (2012) 248 VLR 156 (‘School Chaplains Case’). See, eg, Australian Communist Party v Commonwealth (1951) 83 CLR 1 (‘Communist Party Case’). See, eg, Commonwealth v Tasmania (1983) 158 CLR 1 (‘Tasmanian Dam Case’). Baron D Montesquieu, De l’esprit des loix (Geneva, Barrillot & Sons, 1748).

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57

LAYING DOWN THE LAW

3.9

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3.10 delegated legislation: legal rules made by those to whom Parliament has delegated authority, usually members of the executive branch of government, such as Ministers; also known as ‘subordinate legislation’

3.11

58

This division of functions has come to be regarded as politically astute architecture for governments. Each branch of government has different powers and responsibilities, and different personnel, with some important qualifications. • The legislature, comprised of elected Members of Parliament, is designed primarily to make law, specifically to enact legislation. • The primary role of the judiciary, the judges, is to be the arbiter of disputes and, in doing so, provide authoritative guidance on the meaning of the laws. • The executive branch is by far the largest and most amorphous branch of government, as it is made up of numerous officers, departments and institutions whose primary role is to execute or administer the laws. This separation of functions prevents a concentration of public power in one individual or institution, and in turn avoids those abuses of power which led to the constitutional struggles chronicled in Chapter  2. This separation is not absolute, however, either in respect of powers or personnel. First, in respect of personnel, as noted above, a parliamentary system is defined as one where there is some overlap between the legislature and the executive: the Ministers, including the Prime Minister, who are the heads of each department of the executive, must be elected members of the legislature. While the term ‘government’ is loosely used to refer to all three branches, it is more specifically used for the Prime Minister and Ministers who are in and have the support of the Parliament but also control the executive. One of the main rationales for this overlap is the principle of responsible government, which is explained further at 3.11. In respect of powers, although each branch has a primary role of making, administering or interpreting laws, it also has other powers. The judiciary, for example, not only interprets legislation but also has power to create law in the form of case law precedent (as discussed in Part  2). The executive also creates law and, in fact, creates the most law in the form of secondary, subordinate, or delegated legislation, such as regulations (discussed in Chapter 9). This power is officially ‘delegated’ from Parliament to the executive; parliamentary committees in each jurisdiction are then established to examine delegated legislation. For example, the Senate Committee on Regulations and Ordinances ensures the subordinate law meets standards such as not exceeding the authority delegated, not unnecessarily curbing statutory discretions, and not trespassing unduly on personal rights and liberties. RESPONSIBLE GOVERNMENT The principle of responsible government refers to the relationship between the executive branch of government and Parliament. Specifically, it is the notion that the executive is responsible or accountable to the Parliament, via the Ministers who head the executive and are elected Members of Parliament. The idea is that every part of the executive — every department, centre or unit of public servants carrying out government administration — has an identified Minister to whom it reports and who is ostensibly responsible for that administration.The Minister is responsible in the sense of being answerable to Parliament about all activity within their domain. Ultimately, in theory, an individual Minister might be called upon to resign for significant administrative failures within their department, although this is increasingly rare. Further, if the government itself loses the confidence of

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CHAPTER 3 THE AUSTRALIAN LEGAL SYSTEM

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the House — that is, it loses support of a majority of Members of Parliament — it will be pressed to call an election. As a mechanism for parliamentary supervision over government business, the principle of responsible government has notable weaknesses. Most importantly, with the extraordinary growth over the centuries and complexity of government activity, there is little real capacity for Parliament to properly scrutinise the breadth and depth of activity including every piece of delegated legislation and administrative decision.With Members of Parliament mostly voting along party lines, there is also limited capacity for Parliament to extract from government the information it needs to assess government performance. The principle of responsible government still has significant rhetorical power though, as an idea that accountability of the executive is critical to good government. It has underpinned the development of many other mechanisms designed to promote both accountability and good performance of the executive branch. Examples of these include those within Parliament, such as committees made up of Members of Parliament established to operate in an ongoing way (standing committees) or for specific inquiries (select committees). Accountability mechanisms within the executive are noted below: see 3.28. RULE OF LAW While probably the most important constitutional principle, the rule of law is also one that defies a simple definition. It is a principle, or a set of interrelated principles, that is expressed in a range of ways, with different authors emphasising different aspects. As noted in 2.50, central to the rule of law is the notion of legality.14 At its simplest yet most profound, this means that the law applies not only to individuals but also to public officials, constraining them to do only what the law empowers and allows them to do. That authority may be found in the common or judge-made law or, more usually today, in legislation.15 Absent authority from these sources, governments are prevented from taking action. According to the scholar renowned for elaborating the idea, AV Dicey, this also meant that public officials were not to be granted wide discretionary power because this would be akin to granting arbitrary power that would not sufficiently constrain them.16 A second, related principle is that no-one should be punished without a crime, meaning a breach of a law. Sometimes described using a Latin formulation — nullum crimen sine lege, or ‘no crime without law’ — this means no-one should suffer a penalty or restriction imposed by the government unless they are found guilty of having broken a law, and that law must already have been in existence. In particular, the executive has no inherent authority to impose taxation, to interfere with private property, or to take punitive action against members of the public. This is integrally linked to a third aspect of the rule of law, which relates to the form of laws: they must be written or knowable, well-defined (including any possible penalties for breach), certain, able to be complied

14

15

16

3.12

3.13

See, eg, Jeffrey Jowell, ‘The Rule of Law and Its Underlying Values’, in Jeffrey Jowell and Dawn Oliver (eds), The Changing Constitution (Oxford University Press, 6th ed, 2007) 5, 10. There is a small but significant bundle of other powers that can authorise executive action, including prerogative executive powers (which originated in the prerogative of the monarch) and powers to contract. Albert Venn Dicey, The Law of the Constitution (1885). See also Lord Bingham, ‘The Rule of Law’ (2007) 66(1) Cambridge Law Journal 67, 72.

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LAYING DOWN THE LAW

with, and prospective.17 Finally, and this underpins the importance of independence of the judiciary and other adjudicative decision-makers, anyone affected by an exercise of government power must be accorded procedural fairness, which includes a fair hearing before an unbiased judge.18

Australian legal institutions 3.14

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3.15

3.16

The principal legal institutions in Australia are parliaments, which pass legislation and monitor delegated legislation; the courts, which interpret those laws in their application to individual disputes; and the executive, which administers those laws. This section examines each of these arms of government. Local government is another important legal tier of state governments but is not mentioned in every state constitution.19 This division of law-making functions is clearly apparent from the first three chapters of the Australian Constitution: • Chapter I ‘The Parliament’ identifies the topics on which the national Parliament has legislative power, concurrent for the most part with powers of state parliaments; • Chapter II ‘The Executive Government’ sets out in broad terms in s  61 the executive or non-legislative powers of the Australian Government; and • Chapter III ‘The judicature’ provides for the establishment of the High Court of Australia and defines the functions of a federal judicial system, superimposed on the state judicial systems. The clear division of government functions — legislative, executive and judicial — in the Constitution has been interpreted as an intentional introduction of separation of powers principles, as noted above in 3.9. This separation is not as distinct or forceful in the states and territories.20 None of the state or territory constitutional documents is as clearly divided, and not all refer to the three arms of government. For example, Tasmania’s Constitution Act 1934 contains no reference to the judicial arm, while other state constitutions establish the legislature, the executive and the judiciary, but refer only to the powers of the legislature, not the other arms of government. A constitution such as the Australian Constitution, which not only establishes the institutions of government but also sets out their powers, introduces a degree of inf lexibility into law-making. For example, the Constitution limits federal legislative capacity to the topics listed in ss  51 and  52, so the Commonwealth Parliament must ensure each Act falls within the scope of these sections. This is policed by the courts. The rule of law element requires that even Parliament does not act beyond its power. But while the Constitution sets limits, there is much scope for evolution within these limits. This is particularly the case for the executive, as evidenced later in this chapter (see 3.28ff), but also for Parliament (as noted above at 3.4).

17 18 19

20

60

Jowell (n 14) 10–11; Bingham (n 16) 69–70. Jowell (n 14); Bingham (n 16) 80–81. See Constitution Act 1902 (NSW) pt 8; Constitution of Queensland Act 2001 (Qld) ch 7; Constitution Act 1934 (SA) pt 2A; Constitution Act 1975 (Vic) pt IIA. Kable v DPP (NSW) (1996) 189 CLR 51 (‘Kable’).

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CHAPTER 3 THE AUSTRALIAN LEGAL SYSTEM

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By contrast, state constitutions are expressed in broad terms, commonly granting state legislatures full legislative power in words such as ‘power to make laws for the peace, welfare [or order], and good government [of the state] in all cases whatsoever’.21 Such constitutions are flexible. The limits that are imposed, often known as ‘manner and form’ provisions,22 merely prescribe a manner or form of passing laws. An example is requiring a more onerous majority to pass certain laws, such as a law to vary the term of Parliament.23 LEGISLATURE Each of the component parts of the federation — the Commonwealth, the states and the territories — has a legislature. This means that there are nine parliaments in Australia: the Commonwealth Parliament, the six state parliaments, and the Australian Capital Territory and Northern Territory parliaments. Most parliaments are bicameral, that is, have two Houses in the Westminster tradition: a lower House where the party or parties with a majority of Members elected forms the government; and an upper House often designated ‘a house of review’. Some parliaments, including those in Queensland and the two territories, are unicameral, that is, they have only one House. The primary role of the legislature is to enact legislation, otherwise known as Acts or statutes, and generally this involves two steps. First, the Bill must pass a vote of both Houses of Parliament (or the single House in unicameral systems). The Bill then needs to be assented to by the Governor-General in the case of the Commonwealth, or the relevant Governor in the case of the states; the equivalent step for the two mainland territories is for the legislation to be published in the government gazette in the Australian Capital Territory,24 or consented to by the Administrator in the Northern Territory.25 As noted above, in 3.4, at Federation the Constitution divided legislative powers between the parliaments of the six existing Australian colonies and the new national Parliament. The Commonwealth Parliament was given limited legislative powers, and most of these were granted concurrently with the state legislatures rather than exclusively to the Commonwealth.26 The Commonwealth was given power to legislate on issues the colonies agreed it needed in order to form a nation, including tax, trade and commerce, immigration, and industrial arbitration. Apart from the exclusive topics granted to the Commonwealth, such as defence and coinage, each state retained its plenary powers to legislate ‘for the peace, welfare and good government’ of the state. The territory parliaments, like the state parliaments, have plenary legislative power. However, the Commonwealth also has plenary legislative power over the territories under s 122 of the Constitution and so can override territory legislation on any topic — this is known as the Commonwealth’s territories power. A notable example of the exercise of the veto power is the Euthanasia Laws Act 1997 (Cth), which negated the Northern Territory’s Rights of the Terminally Ill Act 1995.

21 22 23 24 25 26

See, eg, Constitution Act 1902 (NSW) s 5. Colonial Laws Validity Act 1865 (Imp) s 5. See, eg, Constitution Act 1934 (Tas) s 41A. Australian Capital Territory (Self-Government) Act 1988 (Cth) s 25. Northern Territory (Self-Government) Act 1978 (Cth) s 7. Australian Constitution ss 51–52.

3.17

3.18

3.19 mainland territories: the Australian Capital Territory and the Northern Territory; as opposed to Australian external territories, such as Norfolk Island

territories power: plenary Commonwealth power to pass legislation for the government of a territory under s 122 of the Constitution

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3.20

3.21

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3.22

3.23

independence of the judiciary: the principle that judges, in deciding disputes, should be free from political or other influence

With most federal legislative powers being granted concurrently with the states rather than exclusively to the Commonwealth,27 there is potential for conflict between laws. This was anticipated in s 109 of the Constitution, which provides that in the case of any inconsistency between national and state laws, the Commonwealth law prevails to the extent of the inconsistency. A recent example of legislative inconsistency is provided by Commonwealth v Australian Capital Territory,28 albeit involving the invalidation of a territory rather than a state law.29 Marriage is a topic on which the Commonwealth may legislate under s 51(xxi) of the Constitution. This is a concurrent head of legislative power; however, the High Court held invalid the Marriage Equality (Same Sex) Act 2013 (ACT) as it was wholly inconsistent with the definition of marriage in s  5 of the Marriage Act 1961 (Cth). At the time, s 5 provided that marriage means ‘the union of a man and a woman …’. This definition did not appear in the Marriage Act 1961 as originally passed, but was inserted by the Howard Government in 2004 in a deliberate effort to prevent same-sex marriage. (Note that after the national postal plebiscite on same-sex marriage, this definition was amended in 2017 so that marriage now means ‘the union of 2 people’.) JUDICIARY There are nine different hierarchies of courts in Australia, although they have the High Court at the apex. Set up under s 71 of the Australian Constitution, the High Court hears appeals or reviews decisions on all legal issues from the federal court hierarchy, and from each of the six state and two territory court systems. Judges are appointed to particular courts. The appointment process is undertaken by the executive government, following advice from key bodies in the legal profession, such as the Law Council of Australia, representatives of the bar and other prominent legal institutions such as the Judicial Conference of Australia. Under the High Court of Australia Act 1979 (Cth), the federal Attorney-General is required to consult with the state Attorneys-General as well. Criticisms of this process are that it lacks transparency. However, the quality of the Australian judiciary is generally high, so the system has served Australia well. At Federation, the High Court only had three Justices, but that number has since increased to seven. Judges are generally appointed for life, which effectively means until they reach a particular age, and can only be removed earlier for ‘proved misbehaviour or incapacity, upon an address from both Houses of Parliament in the same session’.30 Such circumstances are rare. This provision secures the independence of the judiciary from governmental interference, as do restrictions on reducing the salaries or employment conditions of judges during their tenure.31 For the High Court Justices and all federal court judges, the

27 28 29

30

31

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Ibid. (2013) 250 CLR 441. Under Australian Capital Territory (Self-Government) Act 1988 (Cth) s 28(1) which is similar, but not identical, to s 109 of the Constitution. Australian Constitution s 72(ii). There are equivalent provisions in state and territory constitutions to the extent they cover the judiciary. See, eg, ibid s 72(iii).

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CHAPTER 3 THE AUSTRALIAN LEGAL SYSTEM

compulsory retirement age is fixed in the Constitution at 70.32 This is a common judicial retirement age.33

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Commonwealth Chapter III of the Australian Constitution provides for the establishment of the High Court of Australia and ‘such other courts as [the Parliament] invests with federal jurisdiction’.34 Those courts now are the Federal Court of Australia, the Federal Circuit Court of Australia, and state courts to the extent they are exercising federal judicial power, as well as the Family Court which resolves complex family disputes: see Essential Legal Toolkit A.2. Most matters heard by the High Court are appeals. A distinctive feature of this Court is that it is the final court of appeal for every court in Australia, that is, from federal, state and territory court systems on all legal disputes including those arising under the common law. The federal judicial system is contrasted with that in the United States where dual federal and state court systems exist side by side. A beneficial consequence is that the High Court can establish ‘one common law in Australia which is declared by this Court as the final court of appeal’.35 The High Court also has limited original jurisdiction, which means that in some cases a party can start an action in the High Court. The Court’s original jurisdiction includes disputes against the Commonwealth, affecting certain diplomatic personnel, concerning admiralty and maritime matters, arising under a treaty, or crossing state boundaries (the diversity jurisdiction).36 The High Court is empowered to determine whether the executive branch has exceeded its powers;37 whenever limits are placed on the exercise of power, there needs to be an institution that ensures these limits are not exceeded (according to the rule of law). Under the Constitution, the High Court’s original jurisdiction may be shared with other courts exercising federal judicial power. This includes all federal courts, but also includes state supreme courts. In what was dubbed the ‘autochthonous expedient’,38 which is a peculiarly Australian mechanism, the Constitution allowed for the High Court’s original jurisdiction to be vested in the state supreme courts. For a long time there was great reliance on this expedient; no general federal courts were established in the first seven decades of the nation. The separation of powers doctrine has particular force in relation to the nature of federal judicial power.Two principles have emerged. First, courts in the federal system can only exercise judicial power of the Commonwealth, not legislative or executive power,39 nor state judicial power.40 Second, judicial power of the Commonwealth may not be

32 33 34 35 36 37 38

39 40

3.24

3.25 original jurisdiction: the jurisdiction or power of a court to hear matters that commence in that court, as the first hearing, rather than on appeal from a lower court

3.26

Ibid s 72. For example,Victorian Supreme Court judges are appointed to age 70: Constitution Act 1975 (Vic) s 77. Australian Constitution s 71. Lange v Australian Broadcasting Tribunal (1997) 189 CLR 520, 563. Australian Constitution ss 75, 76. Ibid ss 73, 75. R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254, 268 (Dixon  CJ, McTiernan, Fullagar and Kitto JJ) (‘Boilermakers Case’). Ibid 273. Re Wakim; Ex parte McNally (1999) 198 CLR 511.

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exercised by bodies other than federal courts.41 As noted above, state supreme courts were granted federal jurisdiction and in this sense can be characterised as federal courts. However, tribunals cannot exercise federal judicial power because they are not courts. Federal tribunals operate as part of the executive, reviewing and remaking decisions of the executive, but not making authoritative determinations of law. Similarly, state tribunals are not able to exercise judicial powers of the Commonwealth,42 although they are not as strictly constrained in respect of judicial power of the state. A consequence of these principles is that judicial officers may not perform any non-federal judicial functions that would impair their independence or integrity. It has been determined that this permits federal court judicial officers to be appointed in their personal capacity to tribunals,43 such as the Administrative Appeals Tribunal or the Fair Work Commission, but incompatibility has been established in other circumstances in which the role is closely allied with political functions of government.44 State and territory court systems 3.27

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3.28

The constitutional frameworks of the states, as mentioned earlier, is less prescriptively defined into three elements. The consequence is that separation of powers is not constitutionally entrenched as it is federally.45 The typical framework of state court systems is found in Essential Legal Toolkit A.3. The issue of the status of the court systems of the mainland territories remains a vexed one in the absence of any reference to territory court systems in Chapter III of the Australian Constitution. Most state constitutions and the Australian Capital Territory (Self-Government) Act 1988 (Cth) refer to their courts and the appointment and tenure of judicial officers but generally refrain from mentioning the powers of the judiciary.46 There is no provision relating to the judiciary in the constitutions of South Australia and Tasmania, nor in the Northern Territory (Self-Government) Act 1978 (Cth). EXECUTIVE The executive arm of government administers and enforces the law.In the Commonwealth, the executive comprises the head of state, the Governor-General; the Prime Minister and Ministers who together make up the Federal Executive Council, with the most senior Ministers forming the Cabinet, which is the principal policy-making body of government; the government departments that the Ministers head; the defence force; the police force; and numerous statutory or non-statutory and some private sector entities that provide services to or for government. The different categories of bodies 41 42

43 44 45

46

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Boilermakers Case (n 37). This continues to be a barrier to state tribunals exercising some powers, such as those involving residents of different states, in contrast to the ‘diversity jurisdiction’ granted exclusively to the federal court system in the Australian Constitution s 75(iv): Burns v Corbett (2018) 92 ALJR 423. For examination of the NSW response to this case, see Gaynor v A-G (NSW) [2020] NSWCA 48. Hilton v Wells (1985) 157 CLR 57. Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1. Clyne v East (1967) 68 SR (NSW) 385; Building Construction Employees and Builders’ Labourers Federation of New South Wales v Minister for Industrial Relations (1986) 7 NSWLR 372. ACT: Australian Capital Territory (Self-Government) Act 1988 (Cth) pt VA; NSW: Constitution Act 1902 pt 9; Qld: Constitution of Queensland Act 2001 ch 4; SA: Constitution Act 1934 pt 4; Vic: Constitution Act 1975 pt III; WA: Constitution Act 1889 pts IV, V.

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CHAPTER 3 THE AUSTRALIAN LEGAL SYSTEM

and means by which they are made accountable are set out in the Public Governance, Performance and Accountability Act 2013 (Cth). There are equivalent executive structures in each state and territory. The executive puts into effect the legislation agreed to by parliaments and policy advice, establishes programs and makes decisions implementing legislation and policy. Otherwise known as the administration, this branch administers government action, including everything from issuing and cancelling licences, monitoring pollution levels, assessing visa applications, granting pensions and benefits, maintaining jails, and prosecuting crimes. The powers of the executive are found in legislation, often detailed in delegated laws, and the common law including royal prerogative powers. Prerogative powers are the remaining vestiges of the monarch’s absolute powers, such as to grant honours and pardons. The powers are generally exercised on government advice and are progressively being overtaken by legislation. In addition, governments possess many of the powers of an individual, including the power to introduce legal obligations through contract, the basis of governments’ commercial activities.

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Commonwealth The Australian Constitution barely defines the executive function, describing it simply as ‘vested in the Queen and … exercisable by the Governor-General as the Queen’s representative, and extend[ing] to the execution and maintenance of this Constitution, and of the laws of the Commonwealth’.47 The Governor-General is to be advised by a Federal Executive Council made up of the Ministers of State.48 Ministers must be Members of Parliament, signifying the adoption of responsible government in the Westminster tradition.49 Notably, however, there is no reference in the Constitution to Cabinet or the Prime Minister, and a literal reading of the Constitution would suggest that the Governor-General wields real executive power, taking only advice from Ministers. In reality, on most matters the Governor-General acts as directed by Ministers, the Prime Minister above all. The ‘reserve powers’, where the Governor-General may act independently, are limited and highly contentious.50 Upon Federation, the new Commonwealth Government took responsibility for departments of public service covering particular fields: ‘posts, telegraphs and telephones; naval and military defence; lighthouses, lightships, beacons and buoys; quarantine;’51 and customs and excise. The Governor-General was made head of the defence force.52 This skeletal description bears little relation to the size and functions today of the executive government, which has expanded considerably. Not only does it now cover ministerial departments, but also numerous other statutory entities or bodies set up under executive powers, such as bureaus, commissions, authorities and corporations, as well as selected private sector bodies that provide specialist research, advice and decision-making 47 48 49 50

51 52

3.29

3.30

Australian Constitution s 61. Ibid ss 62–64. Ibid s 64. The most notorious illustration is the Governor-General’s dismissal of Prime Minister Gough Whitlam in 1975. Australian Constitution s 69. Ibid s 68.

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on behalf of government.53 The entities include statutory bodies such as the MurrayDarling Basin Authority, a corporate Commonwealth entity, or those set up by executive power, such as the National Federation Reform Council (replacing the Council of Australian Governments (COAG)), or the Northern Australia Indigenous Development Accord designed to advance First Nations economic development across Australia’s north. States and territories 3.31

The constitutions of the states and territories refer to executive power to varying extents. All state constitutions provide for the office of Governor as head of state, explicitly or by implication,54 but only to establish or confirm the office, not to set out the Governor’s powers. In only Queensland explicitly and Tasmania by implication is Cabinet referred to.55 All the constitutions deal with the appointment of an Executive Council and some refer to Ministers of the Crown.56 A few refer to heads of departments and to the executive.57 The Constitution of Queensland 2001 (Qld) explicitly states that the state has all the powers of an individual;58 no other state constitution does this. Nevertheless, as a matter of common law, the principle is generally true for the Commonwealth and the states and territories. Queensland alone makes provision for the commercial activities of the state.59 Generally, however, the state constitutions are silent about the powers of the executive. The self-government legislation for the Australian Capital Territory both establishes an executive60 and sets out an extensive list of areas in which there is executive power.61 By contrast, the earlier self-government legislation for the Northern Territory sets out executive power in terms broadly similar to those in s 61 of the Australian Constitution.62 Administrative law

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3.32

Administrative law is the field of law that allows individuals to challenge executive action to ensure members of the executive only act within the legal power granted to them in accordance with separation of powers and principles of legality: see 3.47–3.49. There are numerous such institutions, many set up as independent statutory bodies to monitor the operations of the public service. Prominent among them are: • tribunals, which review administrative decisions by public servants that affect citizens and corporations, and uphold, overturn or vary decisions made by government;

53

54 55 56

57 58 59 60 61 62

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See Australian Government, ‘Government departments and agencies’ (Website) . See, eg, Constitution Act 1902 (NSW) pt 2A. Constitution of Queensland 2001 (Qld) ch 3 pt 3; Constitution Act 1934 (Tas) ss 8F–8G. Constitution Act 1902 (NSW) ch 3 pt 4; Constitution of Queensland 2001 (Qld) ch 3 pts 1, 2, 4; Constitution Act 1934 (SA) pt 3; Constitution Act 1934 (Tas) pt II; Constitution Act 1975 (Vic) pt II div 8; Constitution Act 1889 (WA) pt IIIA. See, eg, Constitution Act 1902 (NSW) pt 4A. Constitution of Queensland 2001 (Qld) s 51. Ibid ch 2 pt 5 div 2. Australian Capital Territory (Self-Government) Act 1988 (Cth) s 36. Ibid ss 37, 38, 38A, sch 4. Northern Territory (Self-Government) Act 1978 (Cth) s 31.

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CHAPTER 3 THE AUSTRALIAN LEGAL SYSTEM

an Auditor-General, who scrutinises and reports to Parliament on the activities of the executive; • the Independent National Security Legislation Monitor, which monitors the operation, effectiveness and implications of national security and counterterrorism laws and whether they sufficiently protect human rights; • the Australian Law Reform Commission, which provides recommendations for law reform to government on issues referred to it by the Attorney-General of Australia; • the Australian Human Rights Commission, which conciliates complaints of discrimination, and protects and promotes human rights nationally and internationally; • the Ombudsman, which investigates complaints by those affected by government decisions, or on its own motion undertakes reports on the actions of the executive, and recommends changes to government administration of its powers; • the Australian Information Commissioner, which conducts investigations, reviews decisions, handles complaints, and provides guidance and advice on privacy, freedom of information and government information policy; and • royal commissions, which are established as needed (and have proliferated in recent years) and are the highest form of inquiry on matters of public importance. These entities have different levels of reporting to government for accountability purposes. The investigative and reporting powers of these bodies motivate government decision-makers to comply with their obligations. An adverse report from bodies such as ombudsmen, parliamentary committees or auditors-general are often sufficient to ensure that deficiencies are rectified. Intervention by a court or tribunal is, however, available as a last resort. Recommendations to government from law reform, productivity or royal commissions may also lead to improved practices. Copyright © 2020. LexisNexis Butterworths. All rights reserved.

•

International law The term public international law refers to the rights and obligations of sovereign nation states, and has traditionally been viewed as largely a matter of politics and diplomacy. Public international law is distinguished from private international law, which governs transactions between private persons that cross national boundaries. The latter is also known as ‘conflict of laws’ as it is centrally concerned with questions of which state has jurisdiction and which state’s laws will have application. It resembles ordinary domestic law in its sources and means of enforcement. The connection between public international law, domestic law and private international law has strengthened in recent years. As noted in 1.18, with increasing globalisation the practical significance of national boundaries has diminished, and public international law has had a greater impact on the domestic law that governs the actions of private individuals. For example, free-trade agreements tend to bring a convergence in the commercial regulation of the states party to the agreements, simplifying the disputes of private international law. However, recent political events, such as the Brexit vote in the

3.33 private international law: the set of principles, also known as ‘conflict of laws’, which determines issues of forum and choice of law in connection with disputes that cross jurisdiction boundaries

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United Kingdom and increasing trade disputes and general international discord between the United States and China in the era of President Donald Trump and President Xi Jinping, suggest that the forces of globalisation may be losing their power. The effect may be some disintegration in international cooperation and a greater divergence in the domestic law of different states.

3.34

3.35

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3.36

SOURCES There are two main sources of public international law: customary international law and international conventions or treaties. Customary law consists of those rules of international law generally accepted and acknowledged by states in their practices and actions. The exact content of customary international law is a matter of some dispute, and can be difficult even for experts to divine. International conventions and treaties, in contrast, are easy to identify and the dates at which they come into force clearly specified. They are written instruments containing rules that will govern the actions of states and create rights and duties among them. Such treaties can be bilateral (between two states) or multilateral (between a number of states). Unless the rules they contain become recognised over time as customary international law, treaties create rights and obligations only among those states that are party to them (but see 3.37–3.39 below). It generally takes a number of separate steps for a state to become a party to a treaty: settlement of terms; opening for signature; signing by states; coming into force; and ratification. Some treaties only come into force after a specified number of states have ratified them. For example the Kyoto Protocol63 on climate change was negotiated and settled in December 1997 in Kyoto, opened for signatures in March 1998, was signed by Australia in April 1998, came into force in February 2005 (on the ratification of at least 55 parties representing 55 per cent of carbon dioxide emissions), but was not ratified by Australia until December 2007. In international law, it is the Australian Government that represents Australia, enters treaties and has responsibility in the international arena for ensuring that Australia meets its obligations under either treaty-based or customary international law. The High Court has determined that the external affairs power in s  51(xxxix) of the Constitution gives the Commonwealth power to enact legislation to ensure Australia’s compliance with its international obligations. One well-known example is Commonwealth v Tasmania64 (‘Tasmanian Dam Case’).The Commonwealth listed an area for protection under the World Heritage Convention65 that was to be dammed by the Tasmanian Government to create a hydro-electric power scheme. The Commonwealth then enacted the World Heritage Areas Conservation Act 1983 (Cth) to protect this area. Tasmania challenged the validity of the legislation on several grounds, but the High Court upheld the Commonwealth legislation on the basis that enacting the legislation, to give effect to Australia’s international obligations, was a valid exercise of the external affairs power. Australia’s obligations under the World Heritage Convention are now given force under the Environment Protection and Biodiversity 63

64 65

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Kyoto Protocol to the United Nations Framework Convention on Climate Change, opened for signature 16 March 1998, 2303 UNTS 162 (entered into force 16 February 2005). Tasmanian Dam Case (n 12). Convention for the Protection of the World Cultural and Natural Heritage, opened for signature 16 November 1972, 1037 UNTS 151 (entered into force 17 December 1975).

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CHAPTER 3 THE AUSTRALIAN LEGAL SYSTEM

Conservation Act 1999 (Cth), which also gives effect to Australia’s obligations under a number of other international conventions, including the Convention on International Trade in Endangered Species66 and the Ramsar Convention.67 IMPACT ON DOMESTIC LAW Once a state ratifies a treaty, it does not automatically bring about the required change in state practice and domestic law. This requires action by the various arms of government. In particular, public international law does not directly create legal rights and duties in Australian without domestic legislation. In some instances, the incorporation can be direct, such as s 7 of the Diplomatic Immunities and Privileges Act 1967 (Cth) which provides that the Vienna Convention on Diplomatic Relations is ‘to have the force of law’ in Australia.68 In other instances, definitions from a treaty may be incorporated in the Act itself, such the Racial Discrimination Act 1975, s 8(1) of which makes reference to ‘special measures to which paragraph 4 of Article 1 of the Convention applies’69: see further 4.48. However, the broad terms of many international treaties do not lend themselves well to such direct incorporation, and usually specific legislation will have to be drafted to give concrete effect to such obligations. The Kyoto Protocol, for example, establishes emission targets but largely leaves it up to state discretion as to how they are achieved. Australia’s international obligations can also have an indirect effect on domestic law. Although the exact scope is unclear, there is judicial authority that international law can serve as a ‘guide’ to the development of the common law, particularly in relation to human rights law.70 For example, Brennan J observed in Mabo v Queensland [No 2] that

3.37

3.38

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[t]he common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights.71

International obligations not implemented in domestic law can also have a role in the area of administrative law: see 3.32. In some instances, such as s 137 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth), the government decision-maker is explicitly directed to consider an international instrument. International law may also be relevant to the interpretation of domestic legislation, including the legitimacy of an administrative decision. There is a presumption in interpreting statutes, particularly those that have been passed in connection with Australia’s international obligations, that legislation conforms to international law. Thus, where possible, courts will resolve ambiguities in domestic legislation in a way that accords with Australia’s international obligations. Of course, this presumption will be

66

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Convention on International Trade in Endangered Species of Wild Fauna and Flora, opened for signature 13 January 1976, 993 UNTS 243 (entered into force 1 July 1975). Convention on Wetlands of International Importance especially as Waterfowl Habitat, opened for signature 2 February 1971, 996 UNTS 245 (entered into force 21 December 1975). Vienna Convention on Diplomatic Relations, opened for signature 24 April 1964, 500 UNTS 95 (entered into force 24 June 1964). Referring to International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature on 21 December 1965 (entered into force on 2 January 1969). R Balkin, ‘International Law and Domestic Law’ in S Blay, R Piotrowicz and M Tsamenyi (eds), Public International Law: An Australian Perspective (Oxford University Press, 2nd ed, 2005) ch 5, 118–20. (1992) 175 CLR 1, 42.

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displaced where Parliament expresses its intention that the legislation should diverge from orthodox understandings of the relevant international law. The presumption is discussed further in 13.35–13.36.

3.40

3.41

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3.42

ENFORCEMENT International law is quite different from domestic law in a number of respects. To a large extent, its subjects are nation states and international organisations (rather than individuals) and, in large part, the obligations are consensual (treaties are negotiated by states, and must be ratified by states to become binding). A further important difference is that systems of enforcement are generally weaker for international law than for domestic law. In some cases, this is apparent on the face of the treaty. The emissions targets coming out of the Paris Agreement72 are currently only aspirational. In its current form the treaty lacks proper compliance and enforcement mechanisms.73 Even where treaties are expressed to establish mandatory obligations, they may be difficult to enforce. International law does not have the equivalent of a police force and a court to encourage compliance and sanction noncompliance. While the International Court of Justice (‘ICJ’), established by the United Nations Charter following the Second World War, may rule on a very wide range of issues, its jurisdiction in contentious matters is by consent, and its rulings may be ignored by the losing party. Although the United Nations Security Council is empowered to take steps to enforce the ICJ’s orders, permanent members like the United States have the power of veto over its decisions. And even where a permanent member is not directly involved in a case, the Security Council is generally reluctant to take enforcement measures, preferring to rely instead on diplomacy. While the subjects of international law are generally states and international organisations, there are exceptions. For example, individuals can be held responsible for breaches of international criminal law, such as those governing the behaviour of individuals in war (known as international humanitarian law) or the international crime of genocide. Pursuant to these laws, individuals have been prosecuted before ad hoc international tribunals, such as the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, created to hear accusations of genocide and crimes against humanity in relation to atrocities committed, respectively, in connection with the break-up of Yugoslavia in the early 1990s and in Rwanda in 1994. The International Criminal Court (‘ICC’) established in 2002 by the Rome Statute74 and located in The Hague will handle such matters in the future. The ICC handed down its first conviction in March 2012.75 As with the ICJ, however, the jurisdiction of the ICC is subject to a state’s consent. The United States and Russia both signed the Rome Statute in 2000 but neither ratified the treaty. Other notable states that have not signed or ratified

72 73

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Paris Agreement, opened for signature 22 April 2016 (entered into force 4 November 2016). Guri Bang, Jon Hovi and Tora Skodvin, ‘The Paris Agreement: Short-Term and Long-Term Effectiveness’ (2016) 4 Politics and Governance 209. Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 3 (entered into force 1 July 2002). Prosecutor v Lubanga (Judgment) (International Criminal Court, Trial Chamber  I, Case No ICC-01/0401/06-2842, 14 March 2012).

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CHAPTER 3 THE AUSTRALIAN LEGAL SYSTEM

the Rome Statute are Indonesia, India, China and Israel; the Philippines withdrew its ratification in 2019. Another area of international law with a direct impact on individuals is human rights. Several regional and global international conventions enable citizens of party states to make complaints of violations of human rights, protected by the relevant convention, to specialist courts or committees. These include specialist United Nations committees under various United Nations instruments, and the European Court of Human Rights under the European Convention on Human Rights.76 The United Nations committees, to which Australia is a party, may only investigate ‘communications’ and write ‘views’; they lack any enforcement powers. For an example, see 4.52. Nevertheless, their work can sometimes contribute to legal change. An example of this in the Australian context is the case of Toonen v Australia,77 where a Tasmanian homosexual complained in 1992 to the United Nations Human Rights Committee that the Tasmanian Criminal Code as it then stood, which criminalised private consensual homosexual relations, breached his right to privacy under art 17 of the International Covenant on Civil and Political Rights (‘ICCPR’).78 The Committee’s view substantiated his complaint. The Commonwealth then passed the Human Rights (Sexual Conduct) Act 1994 which, in s 4, referred to ICCPR art 17 and provided that ‘[s]exual conduct involving only consenting adults acting in private is not to be subject, by or under any law of the Commonwealth, a State or a Territory, to any arbitrary interference with privacy’. Eventually, in 1997 the offending provisions were removed from the Criminal Code by the Tasmanian Parliament.

3.43

Human rights law in Australia

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Human rights are fundamental rights to which people are entitled simply by virtue of being human. While the movement to improve the recognition and protection of human rights gained great impetus in the aftermath of the Second World War and the Holocaust, its roots run much deeper. In Australia, human rights receive protection at various levels from different sources. EXPRESS AND IMPLIED CONSTITUTIONAL RIGHTS The Australian Constitution, unlike the United States Bill of Rights, for example, includes few explicit statements of human rights. For example, there are express guarantees to:‘just terms’ for property compulsorily acquired by the Commonwealth;79 trial by jury for an indictable

76

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78

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3.44 human rights: fundamental, inalienable rights to which people are entitled simply by virtue of being human

3.45

European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953) as amended by Protocol No 14bis to the Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 27 May 2009, CETS 204 (entered into force 1 September 2009). Human Rights Committee, Views: Communication No 488/1992, 50th sess, UN Doc CCPR/C/50/488/ 1992 (31 March 1994) (Toonen v Australia). International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976). Individual complaints are allowed from states party to the First Optional Protocol to the ICCPR: Optional Protocol to the International Covenant on Civil and Political Rights, opened for signature 23 March 1976, 999 UNTS 171 (entered into force 23 March 1976). Australian Constitution s 51(xxxi).

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3.46

federal offence;80 freedom of trade, commerce and intercourse within Australia;81 freedom of religion;82 and a qualified right not to be discriminated against by laws of a state in which the person is not resident.83 Implied rights and freedoms have also been found in the Australian Constitution. Provisions such as ss 7 and 24, which respectively require that members of the Senate and House of Representatives be ‘directly chosen by the people’, have given rise to an implied freedom of political communication84 and the right to vote.85 And, as mentioned in 3.14ff, the Australian Constitution’s separation of powers recognises and protects the essential nature of courts, which gives litigants rights to due process and a fair hearing.86 Criminal accused have the right to a fair trial which, in serious cases, will be compromised if the accused is not legally represented.87 As with the United States Constitution, since these rights are entrenched in the Australian Constitution, laws that infringe these rights are invalid. However, the implied rights in the Australian Constitution are scattered and limited in scope. This is illustrated by the ‘Stolen Generations Case’, Kruger v Commonwealth.88 Several First Nations plaintiffs who had been directly affected by the protection regime established by the Aboriginals Ordinance 1918 (NT) brought an action arguing that the Act was constitutionally invalid, and claiming damages. The plaintiffs were members or parents of the ‘Stolen Generations’ of children taken from their families and their communities by the Chief Protector. The plaintiffs argued that the legislation, passed under the Commonwealth Parliament’s territories power,89 was invalid on several grounds: the removals occurred without due process of law, breached an implied constitutional right of equality, were contrary to the implied constitutional freedom of movement and association, inhibited the free exercise of religion contrary to the express constitutional right in s 116, and were genocidal and thus beyond the legislative power provided by the Constitution. The plaintiffs’ arguments were unsuccessful. The plaintiffs faced obstacles in relying on even the most clearly expressed constitutional rights. Section 116, for example, states that ‘[t]he Commonwealth shall not make any law … prohibiting the free exercise of any religion’. However, having regard to the structure of the Constitution, it was questioned whether this provision, situated in Chapter V ‘The States’, restricted the Commonwealth Parliament’s power to make laws with respect to the territories. Half of the Court either rejected this restriction (Dawson and McHugh JJ) or left the question open (Toohey J). Unsurprisingly, the plaintiffs faced still greater difficulties in relying on rights that were not expressed in the Constitution, but were purportedly implicit. Only Gaudron  J considered that the territories power was subject to a prohibition against laws authorising genocide. Justices Dawson, McHugh and Gummow were reluctant to read such a prohibition into the Constitution as it was inconsistent with the doctrine of 80 81 82 83 84

85 86 87 88 89

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Ibid s 80. Ibid s 92. Ibid s 116. Ibid s 117. Australian Capital Television v Commonwealth (1992) 177 CLR 106; Nationwide News v Wills (1992) 177 CLR 1. Roach v Electoral Commissioner (2007) 233 CLR 166. Dietrich v The Queen (1992) 177 CLR 292. Ibid. (1997) 190 CLR 1. Australian Constitution s 122.

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parliamentary supremacy. Similarly, only Toohey J considered the Constitution to contain an implied guarantee of substantive legal equality. The remainder of the Court rejected this proposition. Half the Court also rejected the view that the Constitution contained an implied freedom of movement and association. Those Justices who did recognise the freedom considered that it did not extend to First Nations people at the relevant time. Freedom of association and political communication are incidental to the Constitution’s system of representative and responsible government. However, over the period of the protection regime’s operation, 1918–1957, the Aboriginal people of the Northern Territory were disenfranchised and ‘had no part to play in the constitutionally prescribed system of government’90: see further 4.27ff. Because they were denied political representation, they were also denied the rights that facilitated political involvement. CONSTITUTIONAL RIGHTS INFRASTRUCTURE: RULE OF LAW, PRINCIPLE OF LEGALITY, SEPARATION OF POWERS A basic respect for rights is deeply embedded in Australia’s constitutional structure as a matter of history. As mentioned in Chapter 2, Australia inherited from England laws such as the Magna Carta of 1215, the Bill of Rights Act 1689 and the Act of Settlement 1701, and doctrines developed by the courts, such as the rule of law which protects against despotic power by rulers. Former High Court Chief Justice Robert French has described the rule of law as ‘a kind of societal infrastructure. It creates and maintains the space within which we can enjoy our freedoms, exercise our rights, develop our capacities, take risks and generally pursue life goals’.91 The precise contours of the rule of law are the subject of constant debate; however, there is broad agreement regarding its core meaning.The law applies equally to everyone: ‘nobody, private citizen, public official or government, is above the law’.92 In the words of former Lord Chief Justice of England and Wales, Thomas Bingham: ‘All persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts.’93 There is no express statement of the rule of law in the Constitution. Instead, it is an assumption that underpins the Constitution.94 Australia’s constitutional history, inherited from Britain, is the source of a wide range of rights and freedoms. In Ex parte Walsh; ReYates,95 Isaacs J referred to ‘certain fundamental principles which form the base of the social structure of every British community’ dating back to the Magna Carta.96 These are not expressly mentioned in the Constitution, and Parliament can override them; however, they give rise to ‘an initial presumption in favour 90 91

92 93 94 95 96

3.47

3.48

Stolen Generations Case (n 88) 142 (McHugh J). Robert French,‘Rights and Freedoms and the Rule of Law’ (The Law Oration, Victorian Law Foundation, Banco Court, Supreme Court of Victoria, 9  February 2017)  5. Ibid. Thomas Bingham, The Rule of Law (Allen Lane, 2010) 8. Communist Party Case (n 11) 193 (Dixon J). (1925) 37 CLR 36. Ibid 42. See also Susan Crennan, ‘Magna Carta, Common Law Values and the Constitution’ (2015) 39 Melbourne University Law Review 331, 341.

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3.49

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3.50

of liberty’.97 In interpreting legislation, courts presume ‘that Parliament does not intend to interfere with common law rights and freedoms except by clear and unequivocal language for which Parliament may be accountable to the electorate’.98 These common law rights and freedoms include personal liberty, freedom of movement, freedom of speech, freedom of association and assembly, freedom of religion, the right to silence, and the right to a fair trial.99 This presumption, an element of the principle of legality, is an important principle of statutory interpretation that is discussed further at 13.9–13.13. The courts play a key role protecting rights, guided by the rule of law, including the principle of legality. Courts approach legislation on the basis that ‘it is highly improbable that Parliament would overthrow fundamental principles or depart from the general system of law, without expressing [this intention in language of] irresistible clearness’.100 The courts’ ability to protect rights is secured by a third key element of constitutional infrastructure, the separation of powers. Unlike the rule of law and the principle of legality, the separation of powers does find expression in the Australian Constitution, with a separate chapter for each branch of government: the Parliament, the executive government, and the judicature (see 3.14ff above).The structure of the Australian Constitution confirms that the legislature and the executive can only operate within defined limits, with the judiciary being given supervisory jurisdiction. Further, courts cannot be required to operate in a way contrary to their essential nature which includes ‘open hearings, procedural fairness and publicly available reasoned decisions’.101 And, under the Kable principle, these protections extend to the state courts since the Australian Constitution contemplates that they can exercise federal jurisdiction.102 ADMINISTRATIVE LAW AND THE PROTECTION OF RIGHTS In addition to the constitutional infrastructure outlined above, it is important to recall the role of administrative law in regulating government: see 3.32. The comprehensive institutions and principles of administrative law regulates, among other things, how organs and agents of governments exercise their statutory powers and duties. Unrivalled in other common law countries, Australian administrative law safeguards the rights and interests of people and corporations in their dealings with government agencies. Many of the protected rights are of practical importance to people, such as the right to income support, to an occupational licence, to a disability aid, or to compensation for work-related injury. These rights are accessible through the multiple avenues which administrative law provides to challenge government decisions and actions. These avenues include ombudsmen, the Australian Human Rights Commission, tribunals, and courts: see also 3.32. A person can ask an ombudsman to investigate an action or decision by government — and in some cases by the private sector — alleging that the action or decision is wrongful, unreasonable, unjust, oppressive or improperly discriminatory. If the ombudsman upholds the complaint, the ombudsman can recommend the decision or action be rectified or changed. Other inquiry or investigative bodies take a similar approach. 97 98 99 100 101 102

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Ex Parte Walsh; Re Yates (n 95) 79 (Isaacs J), cited in Crennan (n 96) 341. Momcilovic v The Queen (2011) 245 CLR 1, 46 [43] (French CJ). French (n 90) 13. Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252, 259 [15]. Ibid 3. Kable (n 19).

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Tribunals are designed to reconsider and, if appropriate, remake decisions that deny persons their rights or interests. There are multiple tribunals at both the federal level and the state and territory level. They deal with matters as diverse as a right to practise a profession, to compensation for dust diseases, to building approvals, not to be dismissed from employment without cause, and rights to pensions, benefits and insurance. Where a decision contains an error or an inappropriate exercise of discretion by the original decision-maker, the tribunal can substitute or vary the decision so that the person affected receives the benefit of a correct or preferable decision. This protects the rights, including human rights, of individuals. Although not technically authoritative and final, tribunal decisions are accepted and implemented by government, thus providing a less costly and formal avenue for redressing removal or denial of rights or interests. Most investigative or inquiry bodies, tribunals and, increasingly, courts seek to resolve disputes — including those involving human rights — by conciliation, mediation or other forms of alternative dispute resolution. These forms of dispute resolution have the advantage that they are private and can be significantly cheaper than hearings by courts or tribunals. Costs are usually minimal when a complaint is dealt with by an ombudsman or other inquiry or investigative body. Ultimately, administrative law disputes may be considered by courts with greater authority and finality, but at much greater cost. There are also limits on the role of courts in disputes which hear appeals from tribunals or, on occasion, other investigative bodies. Court review is often restricted to the lawfulness of the original decision, without reference to any new evidence. This contrasts with tribunals, which can consider new evidence and reconsider facts and law. The statutory protections contained in state and territory anti-discrimination and human rights legislation provide a safety net of laws to protect nominated rights against damage by government and in many cases against private sector encroachment. Legislation at the federal level includes the Racial Discrimination Act 1975 (Cth), the Sex Discrimination Act 1984 (Cth), the Disability Discrimination Act 1992 (Cth) and the Privacy Act 1998 (Cth).The operation of these Acts is generally uncontroversial. For example, the Racial Discrimination Act provides in s 9(1):

3.51

3.52

3.53

It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

Section 18C(1) of the Act provides, however: (1) It is unlawful for a person to do an act, otherwise than in private, if: (a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and (b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.

There has been considerable recent debate as to whether s  18C of the Act goes too far.103 Indeed, some take the view that s 18C, while purporting to protect against racial 103

Commonwealth Parliamentary Joint Committee on Human Rights, Freedom of speech in Australia: Inquiry into the operation of Part  IIA of the Racial Discrimination Act 1975 (Cth) and related procedures under the Australian Human Rights Commission Act 1986 (Cth) (Inquiry Report, 28 February 2017).

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discrimination, inhibits the fundamental right of free speech. This raises an important fact about human rights — they are rarely absolute and generally need to accommodate other rights. Section 18C, for example, is subject to s 18D which provides a defence for acts performed ‘reasonably and in good faith’ for artistic, academic, scientific or other public interest purposes, including fair report and fair comment.

3.54

Bill of Rights: a statement of human rights, made in a constitution or other fundamental laws, that limits the legislature’s law-making power

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3.55

AN ENTRENCHED BILL OF RIGHTS FOR AUSTRALIA? Australian citizens enjoy the benefits of an inherited implicit constitutional respect for the rule of law, overlaid by a broad patchwork of rights protection. And, as mentioned in 3.14ff, the Australian Constitution’s separation of powers recognises and protects the essential nature of courts, which gives litigants rights to due process and a fair hearing. Despite this, the question regularly arises whether Australia should adopt a Bill of Rights to provide stronger protection of broadly described civil and political rights and, perhaps, economic and social rights. The United States Bill of Rights, for example, operates more strongly than most of the rights considered above. The United States Bill of Rights, consisting of the first 10 amendments to the United States Constitution passed in the late 18th century, among other things guarantees that governments will respect freedom of speech and due process of law, and protects against cruel and unusual punishment. Because these rights are entrenched in the United States Constitution, laws that infringe them are invalid.The Bill of Rights constrains the operation of the federal and state governments of the United States. Scattered across the Australian Constitution are a miscellany of rights and freedoms: see 3.45. As with the United States Constitution, since these rights are entrenched in the Australian Constitution, laws that infringe these rights are invalid. However, current constitutional Australian rights have limited scope, and the more extensive Australian anti-discrimination laws mentioned in 3.53 are not constitutionally entrenched. If the Australian Government wants to permit or engage in discriminatory behaviour it has the option of repealing the anti-discrimination laws. It has been suggested that a comprehensive Bill of Rights as part of the Constitution would provide more effective rights protection. It is easy to agree that human rights should be respected. But there is considerable disagreement as to how this can best be achieved. And many are opposed to the idea of a constitutionally entrenched Bill of Rights. Professor James Allan, for example, points out that rights tend to be expressed at a fairly high level of abstraction, requiring interpretation and the consideration of other competing rights and interests.104 Rights cases that end up being litigated tend to raise difficult moral and political issues on which reasonable opinions might differ. These issues include, for example, abortion, euthanasia, samesex marriage, and the extent of law enforcement powers. Under current constitutional arrangements in Australia it is the executive and Parliament that give rights and policy considerations concrete expression through the political process. (Although, in the federal system the question arises as to which level of government should have the power to decide, as illustrated by the Commonwealth’s intervention on euthanasia: see 3.19.) An entrenched Bill of Rights would give the judiciary a far greater role in resolving these controversial policy issues. Some consider this to be undemocratic, as politicians rely

104

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James Allan, ‘Siren Songs and Myths in the Bill of Rights Debate’ (2008) 49 Papers on Parliament 25.

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on public support to keep their jobs, while judges do not. If the power to make these decisions is transferred from the legislature and the executive to an unelected judiciary, the influence of members of the public will also be diminished. A related risk is that, in being called upon to make moral and political decisions about the validity of legislation and executive actions, the judiciary will become politicised. The appearance of judicial detachment and neutrality will be lost, and the public’s respect for the judiciary and the justice system may be threatened. It can also be questioned whether Bills of Rights are necessarily effective in preventing the abuse of minority groups. In the United States, slavery was legal under the Bill of Rights for over half a century until it was abolished by the 13th amendment to the Constitution in 1865. Despite the Bill of Rights and its protection against cruel and unusual punishment, the United States continues to use the death penalty, and uses it disproportionately against African Americans and others from minority groups.105 Opponents of Bills of Rights point to other countries and regimes where entrenched rights have failed to prevent extreme discrimination against minority groups — Joseph Stalin’s Soviet Union, Communist China, Nazi Germany, Robert Mugabe’s Zimbabwe. Australia may be one of the few democracies lacking a Bill of Rights, but it does not follow that rights in Australia are routinely disregarded. While rights have not been collected together and expressed in an Australian Bill of Rights, Australia’s strong democratic tradition, independent judiciary, respect for the rule of law, and extensive administrative law system together protect rights more effectively than many countries that do have a Bill of Rights. Nevertheless, the repeated violation of the rights of First Nations Australians since the arrival of the colonists, and of other vulnerable groups, makes it clear that Australia has no grounds for complacency. If an entrenched Bill of Rights is inconsistent with Australia’s tradition of responsible government and parliamentary sovereignty, perhaps other approaches are worth considering. PROTECTING RIGHTS THROUGH INTRAGOVERNMENTAL DIALOGUE Another method of protecting rights is through processes requiring dialogue between the courts, the executive and the legislature concerning rights protection. Such a process exists in the United Kingdom, where the European Convention of Human Rights and Fundamental Freedoms has been incorporated into domestic law through an Act of Parliament, the Human Rights Act 1998 (UK).This Act does not prevent Parliament from passing legislation that is incompatible with these rights; parliamentary sovereignty is retained. However, the Act contains several mechanisms that have the potential to strengthen rights protection. While Parliament is considering whether to pass a Bill, the responsible Minister should, under s 19, make a statement that the Bill is compatible with the Convention, or that the government wishes to pass the Bill notwithstanding incompatibility. Furthermore, a parliamentary committee, the Joint Committee on Human Rights, is charged with scrutinising all government Bills for their compatibility with the Convention. And where legislation is being considered by a court, the Act requires the court to prefer an interpretation of the legislation that complies with the Convention: ‘So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect 105

3.56

3.57

3.58

‘Race and the Death Penalty’, American Civil Liberties Union (Web Page) .

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3.59

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3.60

judicial review: a right of appeal limited to legality issues, as compared with a merits review: see 6.47

in a way which is compatible with the Convention rights.’106 Where it is not possible to construe an Act compatibly with protected rights, the court may draw attention to the breach by making a ‘declaration of incompatibility’.107 It has been suggested that this approach achieves a better balance between the executive, the legislature and the judiciary. It does not allow the executive or legislature to infringe rights with impunity, nor does it enable the judiciary to override the clearly stated wishes of the democratically elected government. Instead, the judiciary, the executive and the legislature can engage in a dialogue and work together to develop the law consistently with individual rights. Within Australia, the Australian Capital Territory, Victoria and Queensland have adopted legislation similar to the Human Rights Act 1998 (UK): the Human Rights Act 2004 (ACT), the Charter of Rights and Responsibilities 2006 (Vic) and the Human Rights Act 2019 (Qld). The validity and workability of the process appears to have been broadly upheld by the High Court.108 As well as the statutory interpretation and declaration provisions, the Victorian, Queensland and Australian Capital Territory legislation also adopted the British requirements of legislative scrutiny and government statement of compatibility. Justice Chris Maxwell, President of Victoria’s Court of Appeal, has suggested that these requirements, while ‘unseen’, have had a ‘salutary effect on the machinery of government … encourag[ing] the development of a culture of human rights … Proposals which are not human rights-compatible are likely to be refined, or abandoned, in favour of a rightscompatible alternative.’109 In 2008 the Federal Government established an inquiry into whether human rights in Australia require stronger protection. The National Human Rights Consultation Committee, charged with examining the issue, recommended a federal Human Rights Act incorporating an element of judicial review,110 but noted there was a lack of consensus on the issue in the community and in Parliament.The government rejected the Consultation Committee’s recommendation. Instead it took a more limited approach in the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), which requires a government statement of compatibility and scrutiny by a Parliamentary Joint Committee on Human Rights reporting to Parliament. The human rights protected are those in the seven international instruments listed in s 3 of the Act. This approach carries both the advantages and disadvantages of operating within a politicised democratic framework — representative decision-making but with the risk of excessive party-controlled adversarialism. A 2015 review of the operation of the Act, by Tom Campbell and Stephen Morris, has given it a largely positive appraisal, claiming that the Act has strengthened decision-making frameworks within which to build a more vigilant and bipartisan approach to human rights, while generating better informed political debate with 106 107

108 109

110

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Human Rights Act 1998 (UK) s 3(1). Ibid s 4. For the UK experience of the operation of this provision see Ghaidan v Godin-Mendoza [2004] 2 AC  557, 572. On every occasion in which the judiciary has made a declaration of incompatibility, Parliament has responded by amending or repealing the offending provision. Momcilovic v The Queen (2011) 245 CLR 1. Chris Maxwell, ‘Judges and Human Rights’ (Address to the Queen’s Inn Dinner, Queen’s College, University of Melbourne, 4 May 2012). National Human Rights Consultation Committee, National Human Rights Consultation Report (30 September 2009) [15.5].

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CHAPTER 3 THE AUSTRALIAN LEGAL SYSTEM

respect to the specific content and requirements of human rights in particular circumstances, thus bringing human rights considerations to bear in the formation of policy, the drafting of legislation, and parliamentary decision-making.111

Nevertheless, they suggest that the operation of the Act could be strengthened in a number of respects.112 The government should genuinely engage in the preparation of statements of compatibility. More time should be provided for scrutiny by the Parliamentary Joint Committee and Parliament. And there should be greater public consultation, particularly on important subjects such as asylum seekers and national security powers. EXERCISE 2: BILL OF RIGHTS AND PARLIAMENT’S ROLE Professor James Allan, a regular academic commentator on human rights matters, says he was tempted to entitle his presentation to Parliament113 on the Bill of Rights debate, ‘Whaling is for Scientific Purposes; Homeopathy Actually Works; and a Bill of Rights Will Enhance the Role of Parliament’. What threat does a Bill of Rights pose to Parliament? How might the threat be mitigated? Is Allan’s ‘dripping sarcasm’ warranted?

3.61

Further reading • Hilary Charlesworth et al, ‘Deep Anxieties: Australia and the International •

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• • • • •

111

112 113

Legal Order’ (2003) 25 Sydney Law Review 423. A provocative introduction to the relationship between international law and the Australian legal system. Michael Coper, Encounters with the Australian Constitution (CCH Australia, 1988). An accessible (and entertaining) discussion of Australian constitutional law and history. Susan Crennan, ‘Magna Carta, Common Law Values and the Constitution’ (2015) 39 Melbourne University Law Review 331. Carolyn Evans and Simon Evans, Australian Bills of Rights: The Law of the Victorian Charter and the ACT Human Rights Act (LexisNexis, 2008). Robert French, ‘Rights and Freedoms and the Rule of Law’ (The Law Oration,Victorian Law Foundation, Banco Court, Supreme Court of Victoria, 9 February 2017). Paula Gerber and Melissa Castan (eds), Contemporary Perspectives on Human Rights Law in Australia (Lawbook, 2013). Michael Kirby, ‘The Growing Impact of International Law on the Common Law’ (2012) 33 Adelaide Law Review 7.

Tom Campbell and Stephen Morris, ‘Human Rights for Democracies: A Provisional Assessment of the Australian Human Rights (Parliamentary Scrutiny) Act 2011’ (2015) 34 University of Queensland Law Journal 6, 9. Ibid 22–7. Allan (n 104) 25.

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• Richard Lumb, The Constitutions of the Australian States (University of Queensland Press, 5th ed, 1991). Part I deals with the evolution of responsible government in the Australian colonies. • George Winterton (ed), State Constitutional Landmarks (Federation Press, 2006). A collection of essays on state constitutional matters. • George Winterton and HP Lee (eds), Australian Constitutional Landmarks (Cambridge University Press, 2003). A collection of essays on the Federal Constitution.

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To enhance your learning experience, use the student resources available on Lexis® Learning See the Visual Preface at the front of this book on how to register.

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CHAPTER

4

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First Nations Australians and the Australian Legal System A strong moral case can be made for special recognition of Aboriginal people in the Constitution because of their special place as the first inhabitants of the continent and the historical injustices suffered by them. Indeed, the case for special recognition is the subject of public debate at the present time. The point is that the debate about constitutional recognition is necessary precisely because the Constitution, in its current terms, does not have that effect.1 1

Love v Commonwealth; Thoms v Commonwealth (2020) 94 ALJR 198 235 [178] (Keane J) (‘Love and Thoms’). Keane J was dissenting. The majority in Love and Thoms considered that, with regard to the narrow issue in that case, the current Australian Constitution does provide special treatment to First Nations Australians.

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Introduction

4.1

Native title

4.2

− Mabo [No 2] and the Native Title Act 1993 (Cth)

4.3

− Wik and the Native Title Amendment Act 1998 (Cth)

4.7

− Developing jurisprudence of native title: from Yorta Yorta to Akiba

4.8

− The ALRC’s Connection to Country report

4.12

− Compensation for extinguishment: the Timber Creek Decision

4.15

− Complexity of native title claims

4.19

EXERCISE 3: Extinguishment of native title

4.23

First Nations Australians and the criminal justice system

4.24

− Early jurisdiction over the ‘Aboriginal native’

4.25

− Protection regimes

4.27

− Royal Commission into Aboriginal Deaths in Custody

4.29

− ‘Crimes of poverty, despair and defiance’

4.33

− Indigenous sentencing courts

4.36

− Customary punishment

4.40

− Equality under the law

4.46

EXERCISE 4: Sentencing of First Nations offenders

4.50

Northern Territory Intervention

4.51

First Nations Australians and the Australian Constitution

4.60

− The race power and the 1967 referendum

4.60

− Constitutional recognition of First Nations Australians

4.63

− First Nations Australians, aliens and the Constitution

4.68

EXERCISE 5: First Nations Australians and the law

4.70

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CHAPTER 4 FIRST NATIONS AUSTRALIANS AND THE AUSTRALIAN LEGAL SYSTEM

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Introduction As discussed in previous chapters, on settlement Australia received English laws and subsequently developed a legal and justice system in the English common law tradition under which Australia’s First Nations and their pre-existing customary laws were largely ignored. In this chapter, we consider in more detail how the Australian legal system has treated First Nations Australians. It took the Australian legal system around 200  years to belatedly recognise native  title. The dispossession and discrimination suffered by Australia’s First Nations have resulted in social disadvantage and criminalisation, but governments have struggled to find a response that has not worsened the situation. Through the 19th and 20th centuries many Australian governments instituted protection regimes in which Chief Protectors took control over all aspects of the lives of First Nations people, frequently taking children away from their families. This paternalistic approach fell out of favour in the second half of the 20th century, with growing appreciation of First Nations peoples’ rights and the recognition of native title. However, at the beginning of the 21st century the Commonwealth Government, still struggling to address First Nations disadvantage, returned to paternalism with its Northern Territory Intervention, and some states implemented similar schemes. There is little evidence that these are having a positive impact on the lives of affected First Nations Australians. The social disadvantages suffered by many First Nations Australians are founded in deep historical injustice. It appears doubtful whether current problems can be remedied without properly addressing that historical injustice. On settlement, at the end of the 18th century, the First Nations and their cultures were disregarded. The Australian Constitution, introduced at the turn of the 20th century, discriminated against First Nations Australians, a flaw which was not corrected until 1967. Now, in the 21st century, steps are being taken to give proper constitutional recognition to Australia’s First Nations. There is a growing belief that constitutional amendments should provide more than symbolic recognition and should include a First Nations voice to Parliament, so that First Nations Australians can play a greater role in solving the problems that affect them and the rest of the nation. One hurdle will be meeting the demanding requirements for constitutional change under s 128 of the Constitution: see 3.2.

4.1

native title: a right or interest over land or waters that may be owned according to traditional custom

Native title At the time of settlement,Australia was considered to be terra nullius: see 2.57.The colonists had no appreciation for the traditional Aboriginal system of sociopolitical organisation and land ownership. They brought with them the English property law principle that ultimate — or radical, as it is termed — title to all land belongs to the Crown, with all subsequent ownership being derived from an original grant from the  monarch. Unsurprisingly, this had a destructive effect on the First Nations peoples, the traditional

4.2 radical title: the ultimate ownership rights over land, vested in the Crown

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custodians whose social, economic, and spiritual links with the land is central to their cultures.

4.3

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4.4

4.5

extinguishment: the loss of a potential native title claim through authorised use of the land inconsistent with customary usage

MABO [NO 2] AND THE NATIVE TITLE ACT 1993 (CTH) Only quite recently have attempts been made to address the effects of this dispossession of First Nations peoples from their land. The first major step was the passage of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), which allowed blocks of land in the Northern Territory to be granted to land trusts if traditional land ownership could be proven. This was a response to the decision by Blackburn  J in Milirrpum v Nabalco Pty Ltd2 that, although there were traditional customs and laws regulating the relations of First Nations people with the land, in light of a decision of the Privy Council in Cooper v Stuart3 that Australia was ‘settled’ not ‘conquered’ (see 2.57), such laws were not recognised by Australian common law. A fundamental reconsideration of the common law’s approach to land rights took place in 1992 with the High Court’s landmark decision in Mabo v Queensland (No 2) (‘Mabo [No 2]’).4 The Mabo litigation began in 1982, when a group of Torres Strait Islanders, led by Mr Eddie Mabo, began a battle to have their traditional land ownership recognised. The High Court’s decision, influenced by developing notions of human rights, recognised that in reality Australia was not terra nullius — it was inhabited by a stable, organised society that followed customary laws. At the same time, in what has recently been described as a ‘supreme jurisprudential paradox’,5 the High Court did not question that Australia was a settled colony, that English law came with the settlers in accordance with Blackstone’s formulation (see  2.56), or that radical title to all land in Australia was vested in the Crown. The Court sought to reconcile the history of settlement with pre-existing First Nations occupation by recognising that the Crown’s radical title coexisted with a beneficial native title. If a group of Torres Strait Islanders could show that they had exercised traditional rights over land since before British colonisation, then those traditional rights may have survived to the present day. But if the Crown had exercised its title to the land, either by using the land itself or by selling or granting it to someone else, native title might be extinguished. Although in Mabo [No  2] the High Court recognised that beneficial native title could coexist with radical Crown title, whether native title continues to exist in relation to a particular parcel of land raises difficult questions of fact. First, has the Crown or its successors in title used the land inconsistently with native title, bringing about extinguishment? Second, have the native title claimants maintained their connection with the land? To clarify and simplify the process by which Aboriginal and Torres Strait Islander groups could make native title claims, the Commonwealth Parliament passed the Native Title Act 1993 (Cth) (‘NTA’). Consistently with Mabo [No 2], the NTA defines native 2 3 4 5

84

(1971) 17 FLR 141. (1894) 14 AC 286, 239. (1992) 175 CLR 1. Daniel Lavery, ‘No Decorous Veil: The Continuing Reliance on an Enlarged Terra Nullius Notion in Mabo [No 2]’ (2019) 43 Melbourne University Law Review 233, 265.

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CHAPTER 4 FIRST NATIONS AUSTRALIANS AND THE AUSTRALIAN LEGAL SYSTEM

title in terms of ‘rights and interests in relation to land or waters … possessed under the traditional laws … and the traditional customs [of] Aboriginal peoples or Torres Strait Islanders [who], by those laws and customs, have a connection with the land or waters’.6 These include ‘hunting, gathering, or fishing, rights or interests’.7 The Federal Court is required, when making a native title determination, to specify a number of matters, including: the determination area; the persons or group holding the rights; the nature and extent of the rights; and whether or not the native title holders have ‘possession, occupation, use and enjoyment of that land or waters … to the exclusion of all others’.8 Depending on the traditional relationship of the claimants with the land, native title may be either exclusive or non-exclusive. A primary goal of the NTA was to provide a mechanism for the effective and efficient implementation of the common law as laid down in Mabo [No  2].9 While the Federal Court is the body empowered to make native title determinations, the NTA also set up the National Native Title Tribunal to mediate native title disputes and otherwise assist in the resolution of land claims, and to make recommendations to government on related issues.10 The NTA also requires state governments and other parties to negotiate in good faith with native title holders and claimants in respect of future acts — such as the future exploitation of the land by mining and agricultural interests.11

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WIK AND THE NATIVE TITLE AMENDMENT ACT 1998 (CTH) The significance of the Mabo [No 2] decision was underlined by Wik Peoples v Queensland (‘Wik’)12 where a majority of the High Court held that, contrary to the expectations of many, native title to land could coexist with pastoral leases. Native title was not extinguished by such a lease where its continuation was not inconsistent with the lease. This decision suggested that the geographical area open to native title claims was potentially far greater than many previously thought.

6 7 8 9

10 11 12

future acts: an act authorised by government after the commencement of the Native Title Act 1993 which impacts on an area the subject of a native title claim, such as the granting of an agricultural or mining lease

4.6

good faith: honest, sincere, without hidden ulterior motives

4.7

Native Title Act 1993 (Cth) s 223 (‘NTA’). Ibid. Ibid s 225. Paul Keating, ‘Mabo: An Address to the Nation — The National Interest’ (Speech, Parliament House, Canberra, 15 November 1993). NTA (n 6) pt 4 div 4. Ibid pt 2 div 3 sub-div P. (1996) 187 CLR 1.

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This map shows the geographical extent of native title claims as at 1 April 2020. Different shading indicates whether or not the claims were successful, and also the claims that are still working their way through the system. Copyright National Native Title Tribunal. Reproduced with kind permission of the National Native Title Tribunal.

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Wik generated uncertainty and unease in some segments of Australian society. Indeed, some states had already granted mining leases over land susceptible to native title claims under Wik without respecting the right to negotiate provided by the NTA. The Australian Government responded with the Native Title Amendment Act 1998 (Cth). Unlike the original 1993 legislation, which sought to implement the law as stated in Mabo [No 2] and provide protection for native title holders and claimants, the 1998 Act modified and restricted common law native title, strengthening the position of pastoralists and mining companies that wished to exploit land over which native title might be held. The then Deputy Prime Minister, Tim Fischer, promised that it would provide ‘bucket-loads of extinguishment’.13 Among other things, the amending Act downgraded or eliminated the right to negotiate in respect of certain mining grants and allowed states to validate mining leases and certain other grants that might have been inconsistent with Wik.

13

86

J Brough, ‘Wik Draft Threat to Native Title’, The Sydney Morning Herald, (Sydney, 28 June 1997) 3; see also Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report: July 1996 to June 1997 (Report, Human Rights and Equal Opportunity Commission, 1997) chs 4–5.

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CHAPTER 4 FIRST NATIONS AUSTRALIANS AND THE AUSTRALIAN LEGAL SYSTEM

DEVELOPING JURISPRUDENCE OF NATIVE TITLE: FROM YORTA YORTA TO AKIBA The Wik decision was widely perceived as manifesting a relatively broad and robust notion of native title. However, it actually continued the development, begun in Mabo [No 2], of quite a rigid and fragile conception of native title. The native title claimants were successful in Wik because they could establish that, in certain specific respects, they had continued their traditional way of life in a remote part of North Queensland with little disruption from the pastoral leases. The High Court held that, consequently, their corresponding specific rights had not been extinguished. It would prove far more difficult for claimants in other cases to satisfy the High Court’s strict and detailed demands regarding continuity. The 2002 case Members of the Yorta Yorta Aboriginal Community v Victoria (‘Yorta Yorta’)14 was concerned with a claim to some 2,000 square kilometres adjacent to the Murray and Goulburn Rivers in North Central Victoria. This area had been far more directly affected by colonisation than the remote area under consideration in Wik, and the High Court held 5:2 that the traditional rights and interests had not been shown to have had a ‘continuous existence and vitality’ since the time of settlement.15 This majority decision upheld the findings of the lower courts. At first instance in the Federal Court, Olney J had suggested: ‘The tide of history has undoubtedly washed away any traditional rights that the indigenous people may have previously exercised in relation to controlling access to their land within the claim area.’16 This rigid approach was resisted by dissentients in both appeal decisions. In the Full Court of the Federal Court, Black CJ, dissenting, objected to the majority’s view of the First Nations traditions as ‘dead, frozen or otherwise incapable of change’.17 In the High Court, Gaudron and Kirby JJ, dissenting, argued that traditional laws should accommodate ‘adaptations, alterations, modifications or extensions made in accordance with the shared values or the customs and practices of the people who acknowledge and observe those laws and customs’.18 Several years later, in Akiba v Commonwealth (‘Akiba’)19 a more flexible view of the continuity of First Nations traditions gained the unanimous support of the High Court. Akiba was concerned with a native title claim for fishing rights. The Commonwealth argued that this right had been extinguished by regulatory legislation which prohibited fishing without a licence. The High Court adopted a resilient conception of native title rights and found these rights survived despite the intrusive regulatory framework. The High Court viewed the ‘right’ in broad holistic terms, distinguishing it from the various ways in which the right may have been ‘exercised’ in the past.20 The Court found that while the fishing legislation may have interfered with the way in which the native title rights could be exercised, such interference did not mean that the underlying right was 14 15

16 17 18 19 20

4.8

4.9

4.10

(2002) 214 CLR 422. Ibid 444–7 [47]–[55], 456 [87] (Gleeson CJ, Gummow and Hayne JJ); discussed in Simon Young, ‘The Increments of Justice: Exploring the Outer Reach of Akiba’s Edge Towards Native Title “Ownership” ’ (2019) 42(3) University of New South Wales Law Journal 825, 840. Members of the Yorta Yorta Aboriginal Community v Victoria [1998] FCA 1606 [126]. Members of the Yorta Yorta Aboriginal Community v Victoria (2001) 110 FCR 244, 271;Young (n 15) 858. Yorta Yorta (n 14) 464 [114];Young (n 15) 858. (2013) 250 CLR 209. Young (n 15) 829, citing Akiba (n 19) 242 [68] (Hayne, Kiefel and Bell JJ), 229 [29] (French CJ and Crennan J).

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4.11

extinguished. Further, changing conditions may lead to new ways in which rights are exercised. Again, such change should not be taken as extinguishment. On the contrary, ‘contemporary variations are positive evidence of continued enjoyment of the broadly cast underlying rights, and of continued acknowledgement and observance of the attendant “traditional laws and customs” ’.21 In Banjima People v Western Australia,22 the Full Court of the Federal Court, quoting from Bodney v Bennell,23 expressed support for a broad interpretation of Yorta Yorta: [W]hen determining whether rights and interests are traditional, the proper enquiry is whether they find their origin in pre-sovereignty law and custom and not whether they were the same as those that existed at sovereignty. Clearly laws and customs can alter and develop after sovereignty, perhaps significantly, and still be traditional.24

4.12

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4.13 extrajudicial: where a judge makes a statement about the law that is not part of a judgment about a case before the court; this statement does not carry the precedential weight of a judicial statement

THE ALRC’S CONNECTION TO COUNTRY REPORT In 2013, 20 years after the NTA became law, the Commonwealth Government gave the Australian Law Reform Commission (‘ALRC’) a broad reference to consider the operation of the NTA. The reference was made only days before the Akiba decision. The result was the ALRC’s 2015 report, Connection to Country,25 which endorsed the direction taken by the High Court in Akiba and recommended reforms to ensure native title remain resilient and relevant in contemporary Australia. In particular, given the disruptive impact of colonisation on First Nations Australians, it should not be required that ‘the acknowledgment of traditional laws and the observance of traditional customs have continued substantially uninterrupted since sovereignty’.26 Rather, it must be acknowledged that ‘traditional laws and customs may adapt, evolve or otherwise develop’.27 Further, references in the NTA to a ‘traditional physical connection’ with the land or waters, which may be open to a more stringent interpretation, should be deleted.28 As Patrick Keane, then Chief Justice of the Federal Court, noted extrajudicially, a key practical issue regarding native title is ‘how [its] economic value … can be unlocked and managed for the future’.29 The terms of reference of the NTA review by the ALRC included the question of ‘the capacity of native title to support Indigenous economic development and generate sustainable long-term benefits for Indigenous Australians’.30 The ALRC recommended that the NTA be amended to expressly recognise that ‘native title rights and interests … may comprise a right that may be exercised for any purpose, including commercial or non-commercial purposes’.31 In Akiba the High Court recognised that there was a long history of the Torres Strait Islander claimants fishing for the purpose of trade and exchange. The High Court framed the Islanders’ native title 21 22 23 24 25 26 27 28 29

30 31

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Young (n 15) 862. (2015) 231 FCR 456. (2008) 167 FCR 84 114 [120]. Banjima People (n 22) 487–8 [75]. ALRC, Connection to Country: Review of the Native Title Act 1993 (Cth) (Report No 126, 4 June 2015). Ibid 29 (Recommendation 5–2). Ibid (Recommendation 5–1). Ibid (Recommendations 6–1 and 6–2). Patrick Keane, ‘Opportunity and Responsibility’ (Speech delivered at the AIATSIS Native Title Conference, Brisbane, 3 June 2011). ALRC (n 25) 5. Ibid 30 (Recommendation 8–1).

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CHAPTER 4 FIRST NATIONS AUSTRALIANS AND THE AUSTRALIAN LEGAL SYSTEM

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rights to include commercial fishing. A more difficult question is whether a native title right may be open to commercial exploitation where traditionally there has been no commercial exploitation. The ALRC report has yet to generate any legislative amendments. However, in the area of commercial exploitation, case law developments may be overtaking the ALRC report. The ALRC suggested, conservatively, ‘[t]here can be some degree of change and adaptation of the traditional laws and customs, but there cannot be new native title rights and interests’.32 A more f lexible approach is implicit in the distinction, endorsed in Akiba, between a broad holistic conception of native title rights and specific ways in which they may happen to be exercised. In Willis (Pilki People) v Western Australia,33 North J, applying Akiba, held that the Pilki People had the right to utilise natural resources for any purpose, including commercial purposes, and had had that right since colonisation. North J rejected the state government’s objections of a ‘lack of precision’ in the claims.34 The government’s appeal was dismissed,35 partly on the basis of evidence that the Pilki People had long used the resources of the area for trade as well as for subsistence and ceremony. However, the decision suggests that the Pilki People’s commercial rights would have been recognised even without evidence that these had traditionally been exercised. Trade was common in the broader area of the Western Desert. Even if the Pilki People had not engaged in trade in the past, that does not mean that they did not have the right to trade at any time. In the absence of evidence of a traditional prohibition on trade, the distinction that Western Australia invoked between commercial and non-commercial rights was unsustainable. The decision offers support for a presumption that native title rights cover the taking and use of resources for any purpose, with the onus to prove otherwise on the party seeking to limit those rights.36 COMPENSATION FOR EXTINGUISHMENT: THE TIMBER CREEK DECISION It may be expected that, under the influence of Akiba, there would be a reduction in the extinguishment of native title. Nevertheless, much native title has been extinguished in the past, and some extinguishment will continue into the future. Where native title is or has been extinguished, compensation may be payable under the NTA pt 2 div 5. The High Court had its first opportunity to consider these provisions in March 2019 in Northern Territory v Griffiths (deceased) and Jones on behalf of the Ngaliwurru and Nungali Peoples (‘Timber Creek Decision’).37 This was an appeal from Northern Territory litigation arising from the partial extinguishment of the Ngaliwurru and Nungali Peoples’ native title to 127 hectares of land at Timber Creek in the 1980s and 1990s. The High Court held that, under the NTA, compensation for the diminution of native title rights has three components: economic loss, interest on economic loss and cultural loss.The Court held that it was appropriate under NTA s 51A that the economic loss claim be calculated as a percentage of the value of the freehold estate. The Court 32 33 34 35 36 37

4.14

4.15

4.16

Ibid 256 [8.139], citing Yorta Yorta (n 14) 443 [43] (Gleeson CJ, Gummow and Hayne JJ). [2014] FCA 714. Ibid [128]. Western Australia v Willis (2015) 239 FCR 175. See also Young (n 15) 854. (2019) 93 ALJR 327.

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alienable: able to be transferred to a new owner; usually with reference to rights to land or other property

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4.17

4.18

rejected the claimants’ argument that this was discriminatory: ‘Non-exclusive native title [simply does have] lesser economic value than a freehold estate’.38 The Court held, however, that the valuation should not be discounted on the basis that the native title rights were inalienable and could not be sold or otherwise transferred.39 Despite this, the High Court reduced the award from 65% of freehold value in the Full Court of the Federal Court (which was down from 80% in the first-instance decision) to 50%. This amounted to a valuation of $320,250. The High Court held that interest was payable on this amount covering the period between entitlement to compensation and the date of judgment. Entitlement to compensation was taken to have arisen at the date of the acts of extinguishment, not the later date on which these acts were validated, for example by the NTA.40 However, the High Court rejected the claimants’ arguments that interest should be calculated on a compound basis. While not excluding the possibility that compound interest may be appropriate in other cases, the Court held that in this case the lower courts’ calculation of simple interest was just.41 The interest award amounted to $910,100. The issue that generated the most interesting and lengthiest discussion in the Timber Creek Decision was the assessment of compensation for cultural damage associated with extinguishment.The High Court held that this required a determination of ‘the essentially spiritual relationship which the Ngaliwurru and Nungali Peoples have with their country and to translate the spiritual hurt from the compensable acts into compensation’.42 The Court drew upon an expert report by two anthropologists, Palmer and Asche, who detailed ‘the travels of major Dreamings through the claim area [and] explained that Dreamings are spiritual beings that performed actions that resulted in physical and spiritual modifications to the countryside’.43 With reference to evidence from the claimants, the High Court noted ‘the breadth and depth of the claimants’ spiritual connection to the land; it explains that their loss of connection to country is incremental and cumulative and has to be understood in terms of the pervasiveness of the Dreamings and the significant sites’.44 The High Court adopted the trial judge’s findings that ‘loss of, and damage to, country caused emotional, gut-wrenching pain and deep or primary emotions accompanied by anxiety for the Claim Group’.45 Significantly, the High Court held that a proper determination of the damage required a holistic view of the claimants’ connection with country. ‘Each act affected native title rights and interests with respect to a particular piece of land. But each act was also to be understood by reference to the whole of the area over which the relevant rights and interests had been claimed.’46 Taking this approach, the High Court confirmed the trial judge’s award of $1.3 million. There is an important restriction on compensation for extinguishment which the High Court referred to but which was not the subject of argument. Compensation 38

39 40 41 42 43 44 45 46

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Ibid 349 [74] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ) (emphasis added). Gageler and Edelman JJ expressed broad agreement with the joint judgment at [240] and [253] respectively. Ibid 355 [101]. Ibid 344 [43]. Ibid 362–3 [133]. Ibid 368 [155]. Ibid 371 [170]. Ibid 372 [180]. Ibid 375 [194]. Ibid 376 [204].

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CHAPTER 4 FIRST NATIONS AUSTRALIANS AND THE AUSTRALIAN LEGAL SYSTEM

for extinguishment is only payable where it occurs after the enactment of the Racial Discrimination Act 1975 (Cth) (‘RDA’). Prior to the commencement of the RDA, extinguishment occurred automatically as a result of the Crown dealing with the land inconsistently with native title. Once the RDA commenced operation, however, extinguishment would require validation under the NTA which also provided native title holders with an entitlement to compensation. In the Timber Creek Decision it was noted that the claimants had been ‘partly impaired from enjoying their traditional lands — before the compensable acts — and the current claim for compensation had to take into account the extent to which spiritual attachment to the land had already been impaired’.47 COMPLEXITY OF NATIVE TITLE CLAIMS Native title cases are among the most complex that courts face. An extreme example is the claim of the Noongar People in the South West of Western Australia. This claim involves 30,000 people and encompasses approximately 200,000 square kilometres including the greater metropolitan area of Perth. The litigation began in 1996.48 In Bennell v Western Australia49 in 2006, Wilcox J observed:

4.19

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The Court took evidence over a period of 20 days. On eleven of those days, the Court sat ‘on-country’ at eight different locations: Jurien Bay,Albany,Toweringup Lake near Katanning, Dunsborough near Busselton, Kokerbin Rock and Djuring in the Kellerberrin district and, in Perth, at Swan Valley and in Kings Park. The Court heard evidence from 30 Aboriginal witnesses and five expert witnesses: two historians, two anthropologists and a linguistic expert. A considerable volume of written evidence was also received.50

Wilcox J’s decision was 952 paragraphs long, almost 240 pages in the Federal Court Reports. However, it dealt with only a few preliminary issues. Wilcox J noted that the litigation ‘has gone on for a long time. It has undoubtedly cost much money — mostly taxpayers’ funds. Unless the parties make a determined effort otherwise, it will absorb a lot more money, before it is finished’.51 Two years later the Full Court of the Federal Court upheld the appeals of Western Australia and the Commonwealth in a judgment of 239 paragraphs, 61 pages.52 In the native title area, as in other areas of litigation, delays and costs are a major problem. As Robert French, former Chief Justice of Australia and former president of the National Native Title Tribunal, noted extrajudicially, ‘[t]here is a sense that the beneficial purpose [of the NTA] has been frustrated by the extraordinary length of time and resource burden that the process of establishing recognition, whether by negotiation or litigation, impose[s]’.53 Kirby J in Wilson v Anderson ref lected that ‘the benefits intended for Australia’s Indigenous peoples in relation to native title land and waters are being

47 48

49 50

51 52 53

4.20

Ibid 369 [163]. The first litigation appears to be Minister for Mines (WA)/Taylor on behalf of the Njamal People/Mullan [1996] NNTTA 20. (2006) 153 FCR 120; 230 ALR 603. Ibid ALR 609 (these passages appear in an additional statement by the judge which does not appear in FCR). Ibid 612. Bodney v Bennell (2008) 167 FCR 84. Justice Robert French, ‘Lifting the Burden of Native Title — Some Modest Proposals for Improvement’ (FCA) [2008] Federal Judicial Scholarship 18, [7].

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4.21 mediation: negotiations between parties in an attempt to resolve a dispute, with the assistance of a neutral third party

4.22

channelled into costs of administration and litigation that leave everyone dissatisfied and many disappointed’.54 The NTA provides parties with a number of alternatives to litigation.As noted at 4.6, mediation in the National Native Title Tribunal is a mandatory part of the process. The NTA makes provision for the Federal Court to make determinations, without a full trial, by consent of the parties,55 and for the registration of Indigenous Land Use Agreements (‘ILUAs’), which do not require a Federal Court determination.56 French also observed: ‘It is in the nature of native title litigation under the substantive law that it imposes heavy burdens on the human and financial resources of the principal parties involved. These can be alleviated, only to a limited extent, by process improvements.’57 However, efforts to streamline the litigation and provide greater opportunities for settlement are continuing. The 2013 reference to the ALRC required it to consider ‘delays to the resolution of claims caused by litigation’ and ‘the need to ensure that the native title system delivers practical, timely and flexible outcomes for all parties, including through faster, better claims resolution’.58 In its report, Connection to Country, the ALRC commented that,‘[g]iven the breadth of interests involved, it is perhaps inevitable that native title is complex and technical’.59 However, it made a number of recommendations to simplify the processes of negotiation and litigation, such as endorsing a more flexible and less technical conception of native title (see  4.12ff), and ways to clarify and simplify the selection of authorised claimant representatives and the joinder of parties.60 As yet, these recommendations have not led to any amendments to the NTA.61 In 2015 the parties to the Noongar litigation agreed on a series of ILUAs, the South West Native Title Settlement.62 It provides for legislative recognition of the Noongar people as custodians; the transfer of parcels of Crown land to the Noongar people; scheduled financial payments; housing, employment and cultural programs; and the establishment of various institutions to manage the settlement. However, this may not be the end of it. Following the Timber Creek Decision it has been reported that the Noongar people are seeking compensation of $290 billion.63

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EXERCISE 3: EXTINGUISHMENT OF NATIVE TITLE 4.23

Suppose that a First Nations group had a strong customary relationship with a large area of land at the time Australia was settled. Under Mabo and the NTA what events may result in the group’s loss of native title? List as many as possible, including actions by government, 54 55 56 57 58 59 60 61

62

63

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Wilson v Anderson (2002) 213 CLR 401, 454 [126]. NTA (n 6) pt 4. Ibid pt 8A. French (n 53) [1]. ALRC (n 25) 5. Ibid 16. Ibid 30–3 (Recommendations 10, 11 and 12). However, see Native Title Amendment (Indigenous Land Use Agreements) Act 2017 (Cth), which appears to be a response to the difficulties that arose at the final stage of the negotiations of the Noongar ILUAs noted at 4.22. Though this case ended up back in court in McGlade v Native Title Registrar [2017] FCAFC 10 with difficulties over the paperwork. Isabella Higgins and Sarah Collard, ‘WA Indigenous Group’s $290 Billion Claim Could Become One of the World’s Biggest Payouts’, ABC News (online, 29 November 2019) .

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CHAPTER 4 FIRST NATIONS AUSTRALIANS AND THE AUSTRALIAN LEGAL SYSTEM

agricultural and mining interests.What factors, geographical or otherwise, may determine whether a First Nations group would be vulnerable to these events? Outline the impact that these events may have on the group. Do you consider it just that the group should lose its title to their traditional land? What changes to the law would you recommend?

First Nations Australians and the criminal justice system Mabo [No 2] and its legislative and case law progeny seek to give recognition to native title, redressing to some extent the injustice perpetrated by the terra nullius doctrine. As we have seen, this project faces ongoing challenges. Another area where the treatment of First Nations Australians continues to raise complex issues and grave concerns is the criminal law. As historian Mark Finnane observes,

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the persistent intrusion of Indigenous difference exhibits a remarkable continuity through more than two centuries of Australian settler history, constantly raising the possibility of an alternative body of law and practice that government policy and criminal justice institutions have struggled to understand and contain.64

EARLY JURISDICTION OVER THE ‘ABORIGINAL NATIVE’ In the first decades following settlement, Australian courts did not routinely expect the First Nations population to comply with the law that the colonists brought with them from England, at least where the colonists were not directly affected. In 1829 in R v Ballard, Forbes CJ held:

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[T]he prisoner ought to be discharged for want of jurisdiction. … The prisoner is accused of the murder of one of his own tribe … [They are] wandering about the country and living in the uncontrolled freedom of nature. … [T]he savage is governed by the laws of his tribe — & with these he is content. In point of practice, how could the laws of England be applied to this state of society?65

In 1836 in R v Murrell, however, Burton J, delivering the judgment of the Full Court of the Supreme Court of New South Wales, noted that ‘[t]his Court has repeatedly tried and even executed aboriginal natives of this Colony, for offences committed by them upon subjects of the King’.66 In 1841 in R v Bonjon, Willis J of the New South Wales Supreme Court accepted that Aboriginal people are ‘subject to and protected by English law in relation to conf licts between them and the British’, but expressed doubt about whether the Court had ‘jurisdiction over crimes committed by Aborigines against one another’.67

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Mark Finnane, ‘The Limits of Jurisdiction: Law, Governance and Indigenous Peoples in Colonised Australia’ in Shaunnagh Dorsett and Ian Hunter (eds), Law and Politics in British Colonial Thought: Transpositions of Empire (Palgrave, 2010) 149, 165. R v Ballard (Supreme Court of New South Wales, Forbes CJ and Dowling J, 13 June 1829), extracted in Bruce Kercher, ‘R v Ballard, R v Murrell and R v Bonjon’ (1998) Australian Indigenous Law Reporter 410. R v Murrell (Supreme Court of New South Wales, Forbes CJ, Dowling and Burton KJ, 11 April 1836), extracted in Kercher (n 65). R v Bonjon (Supreme Court of New South Wales, Willis J, 16 September 1841), extracted in Kercher (n 65).

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Over the succeeding decades, the courts exercised increasing jurisdiction over First Nations defendants, even regarding incidents that involved only First Nations people.68 In R v Paddy and Wills69 in 1886, for example, counsel for the defendants admitted that they had killed another Aboriginal man, but argued that the defendants were ignorant of the law and that it was natural for the defendants to kill a man of a different tribe. As Finnane notes, ‘[i]n delivering their verdict after long deliberation the jury found both men guilty “& strongly recommended them to mercy on the grounds of ignorance of the laws of the country” ’.70 The defendants were convicted but the death sentence was commuted. PROTECTION REGIMES During the 19th century the practice developed of subjecting Aboriginal people to differential treatment within a broader colonial legal framework. Aboriginal people were drawn within comprehensive protection regimes where Protection Boards exerted almost total control over all aspects of their lives. One tragic aspect of this was that many First Nations children were forcibly removed from their families and communities to be placed in institutions or with non-Aboriginal foster parents.71 This severely damaged the children and their families — the ‘Stolen Generations’ — and has had a lasting impact on later generations. Along with their dispossession of traditional lands and the destruction of their culture, this continues to contribute to First Nations peoples’ alienation and disadvantage. Another consequence of the ‘absolutist welfare control’72 of the protection system was that criminal conduct by Aboriginal people was often not dealt with by the criminal justice system. Instead, extra-judicial and often brutal punishments were handed down administratively by the Chief Protector. An example is the methods of Reverend William Mackenzie who ‘ruled’ Aurukun, a mission on the Cape York Peninsula, for four decades from 1925: Mackenzie’s punishments were harsh, unorthodox, and arbitrary — they included the use of banishment, corporal punishment, including flogging and beating, use of his fists, use of the ‘electro magnet’, binding the mouth to stop verbal abuse and swearing.73

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As noted in 3.44, following the Second World War there was, in Australia as elsewhere, an increasing awareness of human rights, particularly those of the First Nations peoples of colonies and former colonies. This was accompanied by a shift away from the paternalistic ‘protection’ approach to indigenous peoples. As a consequence, Aboriginal people were no longer outside the criminal justice system. The rise in protection regimes at the beginning of the 20th century had led to a decline in the Aboriginal prison population. But with the fall of the protection regimes in the last quarter of the 20th century, the Aboriginal prison population increased alarmingly.74

68 69 70 71

72 73 74

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See also discussion in Love and Thoms (n 1) 251–2 [267] (Nettle J). 1886, EXE/4, Queensland State Archives, discussed in Finnane (n 64) 155. Finnane (n 64) 155. See Human Rights and Equal Opportunity Commission, Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (Report, 1997). Finnane (n 64) 157. Ibid. Russell Hogg, ‘Penalty and Modes of Regulating Indigenous Peoples in Australia’ (2001) 3 Punishment and Society 355.

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CHAPTER 4 FIRST NATIONS AUSTRALIANS AND THE AUSTRALIAN LEGAL SYSTEM

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Derby Boab Tree by R Wally. Copyright Mary Walters. Reproduced with kind permission of Mary Walters. In the 1940s this tree became known as the Derby ‘Prison Tree’, with reports that, in the past, Aboriginal prisoners had been locked up inside as they were transported to Derby jail from Fitzroy Crossing in Western Australia’s remote Kimberley region. More recent research, however, suggests that these reports were false, damaging and inconsistent with the sacred meaning of the 1500-year-old tree in local Aboriginal culture: Elizabeth Grant and Kristyn Harman, ‘Inventing a Colonial Dark Tourism Site: The Derby Boab “Prison Tree” ’, in Jacqueline Z Wilson et al (eds), Palgrave Handbook of Prison Tourism (Palgrave Macmillan, London, 2017) 735.

ROYAL COMMISSION INTO ABORIGINAL DEATHS IN CUSTODY A spotlight was shone on rates of First Nations imprisonment by the Royal Commission into Aboriginal Deaths in Custody (RCIADIC). It investigated 99 deaths that occurred between 1980 and 1989. Reporting in 1991, the Commission observed:

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Aboriginal people die in custody at a rate relative to their proportion of the whole population which is totally unacceptable and which would not be tolerated if it occurred in the non-Aboriginal community. But this occurs not because Aboriginal people in custody are more likely to die than others in custody but because the Aboriginal population is grossly over-represented in custody.Too many Aboriginal people are in custody too often.75

The RCIADIC made many recommendations for reforms to reduce the rate of Aboriginal incarceration. It noted that the arrest and detention of Aboriginal people often began with offences as trivial as using offensive language, and recommended that the law should operate less harshly, that police should show greater restraint, and that

75

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Royal Commission into Aboriginal Deaths in Custody: National Report (Final Report, 1991) vol 1, 1.3.3 (‘RCIADC Final Report’).

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arrest and imprisonment should be remedies of last resort.76 In Police v Dunn,77 several years after the Royal Commission ended, Magistrate Heilpern of Dubbo Local Court commented: Charges about language just become part of an oppressive mechanism of control of Aboriginals. Too often the attempt to arrest or charge an Aboriginal for offensive language sets in train a sequence of offences by that person and others — resisting arrest, assaulting police, hindering police and so on, none of which would have occurred if police were not so easily ‘offended’.78

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The RCIADIC recommendations have been poorly implemented. In New South Wales, the Australian Capital Territory and Western Australian, ‘offensive language’ and equivalent offences no longer carry a custodial sentence,79 but they do in other Australian jurisdictions.80 Aboriginal people continue to be arrested inappropriately and imprisoned for trivial offences. These police interventions continue to be counterproductive. In 2017 in Prior v Mole,81 a Northern Territory case, a majority of the High Court upheld the legality of the ‘protective’ arrest of an Aboriginal man, Mr Prior, who was intoxicated in a public place; the police claimed the arrest was in order to prevent Mr Prior from committing the offence, under s 101U(1) of the Liquor Act 1978 (NT), of drinking in a regulated area (an offence which does not itself carry a custodial sentence). The arrest led to an altercation between Mr Prior and the police, resulting in his conviction for assaulting a police officer, an offence carrying a maximum sentence of five years’ imprisonment even if the officer is not harmed.82 First Nations people make up a little over 3% of Australia’s population.83 In 1991 First Nations people made up almost 15% of the prison population. Today the figure is approaching 30%.84 First Nations people are imprisoned at a rate more than 15  times higher than for non-First Nations people.85 Aboriginal Australians may be ‘the most imprisoned race in the world’.86 More than 25  years after the RCIADIC, Aboriginal deaths in custody remain a shameful indictment of the Australian criminal justice system.87

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76 77

78 79

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81 82 83

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85 86

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Ibid vol 3, ch 23; vol 5, Recommendations 87, 92. Police v Dunn (Dubbo Local Court, NSW, Heilpern SM, 27 August 1999), reproduced in David Heilpern, ‘Judgement: Police v Shannon Thomas Dunn’ (1999) 24(5) Alternative Law Journal 238. Ibid. Summary Offences Act 1988 (NSW) s 4A; see also Crimes Act 1900 (ACT) s 92; Criminal Code Act 1913 (WA) s 74A. Summary Offences Act 1923 (NT) ss 47, 53; Summary Offences Act 2005 (Qld) s 6; Summary Offences Act 1966 (Vic) s 17; Summary Offences Act 1953 (SA) s 7; Police Offences Act 1935 (Tas) s 12. (2017) 261 CLR 265. Criminal Code (NT) s 189A. Australian Bureau of Statistics, Estimates of Aboriginal and Torres Strait Islander Australians (Catalogue No 3238.0.55.001, June 2016). Australian Bureau of Statistics, Corrective Services, Australia, December Quarter 2019 (Catalogue No 4512.0, March 2020); see also ALRC, Pathways to Justice: An Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples (Report No 133, December 2017) 93–97 (‘Pathways to Justice’). Australian Bureau of Statistics, Prisoners in Australia, 2019 (Catalogue No 4517.0, December 2019). David Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in NSW (Federation Press, 5th ed, 2011) 1179. Lorena Allam, Calla Wahlquist and Nick Evershed, ‘Indigenous Deaths in Custody Worsen in Year of Tracking by Deaths Inside Project’, The Guardian (online, 23 August 2019) ; Thalia Anthony, ‘Deaths in Custody: 25 Years After the Royal Commission, We’ve

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CHAPTER 4 FIRST NATIONS AUSTRALIANS AND THE AUSTRALIAN LEGAL SYSTEM

‘CRIMES OF POVERTY, DESPAIR AND DEFIANCE’ The disproportionate imprisonment of First Nations Australians cannot be wholly attributed to discriminatory and clumsy law enforcement by police. Many First Nations communities experience higher rates of offending, including serious offences,88 reflecting their severe social disadvantage. As Russell Hogg notes, ‘crimes committed by Aboriginal offenders are overwhelmingly crimes of poverty, despair and defiance’.89 Higher crime rates among First Nations Australians correlate with their lower levels of education, higher unemployment and poorer health. The Federal Government’s efforts to ‘close the gap’ across these areas have had limited success.90 The high rates of offending and imprisonment of First Nations Australians are both a consequence and a cause of social disadvantage. The crucial question this raises is how the criminal justice system can help break this cycle. This complex and multidimensional issue involves many different legal institutions and actors. Sentencing courts, in particular, are regularly required to take account of the impact of past social disadvantage on the offending behaviour, and the relative prospects of rehabilitation and reoffending. The sections following outline different approaches to sentencing of First Nations offenders. An inf luential statement of the applicable sentencing principles was provided by Wood J in R v Fernando (‘Fernando’):

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It is proper for the court to recognise that the problems of alcohol abuse and violence which to a very significant degree go hand in hand within Aboriginal communities are very real ones and their cure requires more subtle remedies than the criminal law can provide by way of imprisonment.91

Wood J called for the realistic recognition by the court of the endemic presence of alcohol within Aboriginal communities, and the grave social difficulties faced by those communities where poor self-image, absence of education and work opportunity and other demoralising factors have placed heavy stress on them, reinforcing their resort to alcohol and compounding its worst effects.92 Copyright © 2020. LexisNexis Butterworths. All rights reserved.

Wood J added: In sentencing an Aborigine who has come from a deprived background or is otherwise disadvantaged by reason of social or economic factors, or who has little experience of European ways, a lengthy term of imprisonment may be particularly, even unduly, harsh when served in an environment which is foreign to him and which is dominated by inmates

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Gone Backwards’, The Conversation (online, 13 April 2016) . See, eg, Simone Georg and Matthew Manning, ‘Safety in Indigenous Communities: Identifying Gaps and Opportunities in Australian Crime Prevention Policy’, Policy Studies (online, 20 May 2019, DOI: 10.1080/01442872.2019.1606902); Stephen Gray, ‘Scoring the Intervention: Fail Grades on Closing the Gap, Human Rights’ (2016) 8(23) (Mar/Apr) Indigenous Law Bulletin 10, 12. Hogg (n 74) 368. Gray (n 88); Diana Perche, ‘Closing the Gap is Failing and Needs a Radical Overhaul’, The Conversation (online, 15 February 2017) ; Department of the Prime Minister and Cabinet (Cth), Closing the Gap: Report 2020 (Report, 12 February 2020). (1992) 76 A Crim R 58, 62. Ibid 62–63.

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and prison officers of European background with little understanding of his culture and society or his own personality.93

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It should be emphasised that Wood J was not proposing that Aboriginal offenders be treated differently from any other offenders. ‘The same sentencing principles are to be applied in every case irrespective of the identity of a particular offender or his membership of an ethnic or other group.’94 As a general principle, ‘where the abuse of alcohol by the person standing for sentence ref lects the socio-economic circumstances and environment in which the offender has grown up, that can and should be taken into account as a mitigating factor’.95 Unfortunately, however, as a generalisation, this factor is more likely to arise for consideration where courts are presented with First Nations offenders. This approach has recently been confirmed by the High Court in Bugmy v The Queen (‘Bugmy’).96 The majority indicated that [t]here is no warrant, in sentencing an Aboriginal offender in New South Wales, to apply a method of analysis different from that which applies in sentencing a non-Aboriginal offender. … ‘Properly understood, Fernando is a decision, not about sentencing Aboriginals, but about the recognition, in sentencing decisions, of social disadvantage that frequently (no matter what the ethnicity of the offender) precedes the commission of crime.’97

This is just another instance of the operation of ‘individualised justice’.98 A few months before deciding Bugmy, in Elias v The Queen99 the Court held, in a unanimous judgment: It is the duty of the judge to balance often incommensurable factors and to arrive at a sentence that is just in all of the circumstances. The administration of the criminal law involves individualised justice, the attainment of which is acknowledged to involve the exercise of a wide sentencing discretion.100

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INDIGENOUS SENTENCING COURTS A number of the RCIADIC recommendations sought to further the involvement of First Nations communities in setting and implementing appropriate sentences.101 This, it was thought, would address ‘the sense of powerlessness and alienation felt by many Aboriginal people caught up in the criminal justice system’.102 Significant steps have been taken in that direction. The first Indigenous sentencing court was established in 1999 in Port Adelaide, and they now operate in most Australian jurisdictions.103 While their features vary between jurisdictions, they all operate with less than usual formality and enable 93 94 95 96 97 98 99 100 101 102

103

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Ibid 63. Ibid 62. Ibid. (2013) 249 CLR 571. Ibid 592–3 [36]–[37], quoting from Kennedy v The Queen [2010] NSWCCA 260 [53]. Ibid 592 [36], [41]. (2013) 248 CLR 483. Ibid 494–5 [27]. RCIADC Final Report (n 75) vol 5, Recommendations 104, 111, 113, 114. Justice Jenny Blokland, ‘Foreword’ in Paul Bennett, Specialist Courts for Sentencing Aboriginal Offenders: Aboriginal Courts in Australia (Federation Press, 2016) v. Elena Marchetti,‘Indigenous Sentencing Courts’ (Research Brief No 5, Indigenous Justice Clearinghouse, December 2009) 1, 5–6; Elena Marchetti and Janet Ransley,‘Applying the Critical Lens to Judicial Officers and Legal Practitioners Involved in Sentencing Indigenous Offenders: Will Anyone or Anything Do?’ (2014) 37 University of New South Wales Law Journal 1, 9–14.

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CHAPTER 4 FIRST NATIONS AUSTRALIANS AND THE AUSTRALIAN LEGAL SYSTEM

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representatives of the offender’s community to play a role in determining how a First Nations offender should be punished. It should be noted that, despite the more informal setting and structure, the court retains the authority to decide on the ultimate sentence, which should be consistent with the usual sentencing principles. Indigenous sentencing courts generally have limited jurisdiction. In New South Wales, for example, under the Criminal Procedure Regulation 2010 (NSW), the Circle Court operates within the local court, which has no jurisdiction over more serious offences tried on indictment before a jury. At the same time the offence must be one for which the offender may be sentenced to imprisonment, a community service order or a good behaviour bond,104 which would exclude the least serious offences. South Australia’s ‘Nunga Court’ also operates at the lowest level of the court hierarchy, and is presided over by a magistrate. However, in South Australia there is a discretion, under s 22 of the Sentencing Act 2017 (SA),105 for a court at any level to convene a sentencing conference. It seems this tends to only be used for less serious offences. In R v Wanganeen,106 five years after the reform was introduced, Gray J noted that the Supreme Court of South Australia, the highest first-instance court in that state, had only used it twice.107

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‘Kartiya Boat’ by Jimmy Pike (1988). Copyright Pat Lowe. Reproduced by kind permission of Pat Lowe. Jimmy Pike started painting in Fremantle Prison in the early 1980s. Released in 1986 he continued his art until his death in 2002. Much of his work captures the physical and spiritual quality of his traditional Walmajarri country. This piece depicts the boat bringing the first Kartiya (European) people to Australia.

104 105 106 107

Criminal Procedure Regulation 2010 (NSW) reg 36. Formerly s 9C of the Criminal Law (Sentencing) Act 1988 (SA). R v Wanganeen (2010) 108 SASR 463. Ibid 463 [3].

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4.38

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4.39

Indigenous sentencing courts serve several related goals.108 They aim to show respect for First Nations Australians and improve communication between them and the courts. This should help the court achieve a more appropriate sentence, and one that is understood and accepted by the offender and their community. The offender, with the community’s support, may have a greater chance of understanding the consequences of criminal behaviour and to accept responsibility, reducing the risk of their recidivism. Evidence is mixed as to whether these goals are being achieved. Pathways to Justice,109 a 2017 ALRC report, noted that ‘establishment of such courts “demonstrate respect for Indigenous culture and the Elders who are its authority figures. Their processes, collaborative in nature, promote the resolution of underlying problems that have brought individual offenders to court” ’.110 The Murri Court in Queensland has been reported to have had ‘ “considerable success” in improving relationships between Aboriginal and Torres Strait Islander communities and Queensland Magistrates Courts’.111 However, it is less clear whether such courts bring lower rates of recidivism. There are indications both of rates being reduced112 and of them being unaffected.113 The Pathways to Justice report noted that Western Australia abolished its specialist courts in 2015 ‘following evaluations … that found that recidivism either did not significantly reduce, or because it in fact increased’.114 Queensland abolished its Murri Court in 2012 for similar reasons, though it has since been re-established.115 The conf licting views may ref lect limitations in the empirical evidence, together with uneven success in committing to and fully implementing the reforms. Legislative and procedural change, creating space for First Nations community participation in sentencing, is clearly a good first step. However, the current legislative reforms have only patchwork coverage. There is room for Indigenous sentencing courts to be used more extensively, with better follow-through116 and greater sensitivity to local conditions.117 Further, commentators have argued that, for the reforms to fulfil their potential, they should be accompanied by educational measures for courts and lawyers, so that the legal change is accompanied by a proper awareness of First Nations culture.118 The Pathways to Justice report recommended not only that specialist courts be created, but that they ‘incorporate individualised case management, wraparound services, and be culturally competent, culturally safe and culturally appropriate’,119 and, further, that

108 109 110

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114 115 116 117 118 119

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Ibid 463 [4]; Criminal Procedure Regulation 2010 (NSW) reg 35. ALRC, Pathways to Justice (n 84). Ibid 328–9 [10.33], quoting Australasian Institute of Judicial Administration, Indigenous Issues and Indigenous Sentencing Courts (Web Page) . Ibid 329 [10.34], quoting Anthony Morgan and Erin Louis, Evaluation of the Queensland Murri Court: Final Report (Technical and Background Paper No 39, Australian Institute of Criminology, 2010) 150. See, eg, Sarah Xin Yi Chua and Tony Foley, ‘Implementing Restorative Justice to Address Indigenous Youth Recidivism and Over-Incarceration in the ACT: Navigating Law Reform Dynamics’ (2015) 18 Australian Indigenous Law Review 138, 143; Morgan and Louis (n 111); Bennett (n 102). See, eg, Jacqueline Fitzgerald, ‘Does Circle Sentencing Reduce Aboriginal Offending?’ (2008) 115 Crime and Justice Bulletin 1. ALRC, Pathways to Justice (n 84) 330 [10.36]. Ibid, citing Bennett (n 102) 71. Ibid 331–3 [10.43]–[10.50]. Ibid 333 [10.51]–[10.52]. Marchetti and Ransley (n 103) 15, 31; Chua and Foley (n 112) 147–8. ALRC, Pathways to Justice (n 84) 328, Recommendation 10–2.

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First Nations communities ‘should play a central role in [their] design, implementation and evaluation’.120 CUSTOMARY PUNISHMENT We have seen that to break the cycle of social disadvantage experienced by many First Nations communities, it is crucial that the criminal justice system respect their culture. This goal raises difficult issues where sentencing courts are presented with cases involving the administration of customary punishment.121 Suppose one young First Nations man assaults another within a traditional community. The two young men meet with community Elders who agree the first man should receive a traditional ‘payback’ punishment — a  spear wound to the thigh, inflicted by an Elder. This punishment is carried out and then the local police find about what happened. Should they arrest the first young man for assault and the Elder for wounding, and bring them both to justice? Or, given that the situation has been handled under customary law, should the police and the Australian criminal justice system stay out of it? In Walker v New South Wales,122 Mason CJ rejected the proposition that Mabo [No 2], which recognises native title, provides support for also recognising customary Aboriginal criminal law.

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In Mabo (No.2), the Court held that there was no inconsistency between native title being held by people of Aboriginal descent and the underlying radical title being vested in the Crown. There is no analogy with the criminal law. English criminal law did not, and Australian criminal law does not, accommodate an alternative body of law operating alongside it.There is nothing in Mabo (No.2) to provide any support at all for the proposition that criminal laws of general application do not apply to Aboriginal people.123

However, while customary punishment is not recognised as a separate system of law operating alongside Australian criminal law, its operation may still be recognised as a fact that is relevant to the sentencing court’s provision of individualised justice.124 In the scenario outlined at 4.40, if the court fails to take any account of the fact that the first young man has received traditional punishment, he may suffer double punishment, considerably more in total than a defendant in a like case who had not received traditional punishment. Further, his willingness to accept his traditional punishment is a strong sign of remorse and the potential for rehabilitation. On an individualised justice approach, these are all relevant mitigating factors.125 The fact of the operation of customary punishment will also be relevant to the sentencing of the First Nations Elder who inf licted ‘payback’. The Elder did not act for financial gain, or in anger, but was acting in accordance with traditional practice.

120 121

122 123 124

125

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Ibid Recommendation 10–3. Similar issues arise where First Nations defendants seek to rely on customary law to mount a criminal defence. See, eg, Karpany v Dietman (2013) 252 CLR 507; Walden v Hensler (1987) 163 CLR 561. (1994) 182 CLR 45. Ibid 50 [6]. See also Law Reform Commission of Western Australia (‘LRCWA’), Aboriginal Customary Laws: The Interaction of Western Australian Law with Aboriginal Law and Culture (Project 94, Final Report, September 2006) 13. Ibid 15.

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Such  practices are designed to mend the rift between the aggressor and the victim, and between their respective families, and to restore balance within the community. As Southwood J noted in R v Wunungmurra (‘Wunungmurra’),126 on occasion sentencing courts held that the moral culpability of an offender was lessened because he or she had acted in accordance with traditional Aboriginal law or cultural practices. Such matters were taken into account in accordance with established sentencing principles …127

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In such a case the positive motivation and effect of the administration of customary punishment reduces the blameworthiness of the conduct. Further, by acknowledging traditional law, the court would be contributing to ‘the continued unity and coherence of the group’.128 In some jurisdictions, sentencing legislation reinforces the position outlined above. For example, Crimes (Sentencing) Act 2005 (ACT) s 33(1) requires a court, in sentencing an offender, to consider, among other things: (m) the cultural background … of the offender; … (v) the reason or reasons why the offender committed the offence; [and] (w) whether the offender has demonstrated remorse; …

Section 9(2) of the Penalties and Sentencing Act 1992 (Qld) similarly provides that ‘[i]n sentencing an offender, a court must have regard to’, among other things:

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(d) the extent to which the offender is to blame for the offence; and … (g) the presence of any aggravating or mitigating factor concerning the offender; and … (p) if the offender is an Aboriginal or Torres Strait Islander person—any submissions made by a representative of the community justice group in the offender’s community that are relevant to sentencing the offender, including, for example— (i) the offender’s relationship to the offender’s community; or (ii) any cultural considerations …

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In both Acts the long lists of sentencing factors are expressly made non-exhaustive.129 But despite the several strong arguments favouring the consideration of First Nations traditions and customs in sentencing, the Commonwealth Government has expressed opposition to the practice.130 In 2006, legislation131 was passed which removed from s 16A(2)(m) of the Crimes Act 1914 (Cth) the requirement that ‘cultural background’ be considered at sentencing, replacing it with a prohibition against such consideration. The sentencing court ‘must not take into account any form of customary law or cultural practice as a reason for … excusing, justifying, authorising, requiring or lessening the 126 127 128

129 130

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(2009) 231 FLR 180. Ibid 184 [17]. Joshua v Thomson (1994) 119 FLR 296 [39]; Heather Douglas, ‘Customary Law, Sentencing and the Limits of the State’ (2005) 20 Canadian Journal of Law and Society 141. Penalties and Sentencing Act 1992 (Qld) s 9(2)(r); Crimes (Sentencing) Act 2005 (ACT) s 33(3). See Jack Maxwell, ‘ “Two Systems of Law Side by Side”: The Role of Indigenous Customary Law in Sentencing’ (2015/2016) 19 Australian Indigenous Law Review 97. Northern Territory National Emergency Response Act 2007 (Cth) (‘NTNERA’).

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seriousness of the criminal behaviour to which the offence relates’.132 This restriction is now contained in ss 16A(2A) and 16AA(1) of the Crimes Act 1914 (Cth) for federal and Northern Territory offences respectively. Southwood  J considered the meaning of this amendment in Wunungmurra.133 The  defendant intended to plead guilty to aggravated assault. Southwood  J needed to determine whether, at sentencing, he could consider evidence from an Elder in the offender’s community indicating that the defendant was a Dalkaramirri, a senior person within the clan group, similar to a magistrate.The evidence would indicate that it was the defendant’s role to enforce traditional Aboriginal law, and that he had acted in accordance with this law when he did the actions constituting the offence. Southwood J held that the new provision ‘precludes a sentencing court from taking into account customary law or cultural practice as a basis for finding that an offender who acted in accordance with traditional Aboriginal law is less morally culpable because of that fact’.134 He added:

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The fact that legislation might be considered unreasonable or undesirable because it precludes a sentencing court from taking into account information highly relevant to determining the true gravity of an offence and the moral culpability of the offender, precludes an Aboriginal offender who has acted in accordance with traditional Aboriginal law or cultural practice from having his or her case considered individually on the basis of all relevant facts which may be applicable to an important aspect of the sentencing process, distorts the well-established sentencing principle of proportionality, and may result in the imposition of what may be considered to be disproportionate sentences, provides no sufficient basis for not interpreting [what is now Crimes Act 1914 (Cth) s 16AA(1)] in accordance with its clear and express terms. The Court’s duty is to give effect to the provision.135

EQUALITY UNDER THE LAW This issue — whether the sentencing court should or should not consider a First Nations offender’s cultural background — highlights the distinction between formal and substantive equality.136 It may be objected that provisions that require sentencing courts to take account of the traditional culture of First Nations offenders137 introduce an inequality as they refer to a consideration that is not applicable to other offenders. On this view, ‘[t]he law would be fragmented on the basis of race, which implies inbuilt biases that deny equal treatment in contradiction of the doctrine of the rule of law.’138 Such a view argues that provisions like s 16AA(1) of the Crimes Act 1914 (Cth), which limits a sentencing court’s ability to take account of an offender’s First Nations culture, further legal equality, because they have the effect of ‘one law applied to all Australians’.139 132 133 134 135 136

137 138

139

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Ibid s 91 (emphasis added). Wunungmurra (n 126). Ibid 185 [24]. Ibid 185 [25]. See generally, Sandra Fredman, ‘Substantive Equality Revisited’ (2016) 14 International Journal of Constitutional Law 712. See, eg, Penalties and Sentencing Act 1992 (Qld) s 9(2)(p). Editorial,‘Race-based Law Reform Ideas Are Fraught with Hazards’, The West Australian (Perth, 8 February 2006) 16, quoted in LRCWA (n 124) 8. Joe Ludwig, Shadow Attorney-General (NT), ‘Customary Law’ (Press Release, 2 November 2007), expressing qualified support for the Northern Territory Intervention (see 4.51ff).

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These arguments against the consideration of culture, custom and tradition at sentencing are premised on a narrow notion of formal equality,‘yet an emphasis on formal equality can in practice serve to create or perpetuate inequality before the law’.140 Formal equality ignores the differences between individual cases. Like cases are treated alike, but so are unlike cases. The equality that is sought by the rule of law is substantive equality, which takes account of individual differences. Like cases are treated alike, and allowances are made in unlike cases.141 As Bell  J observed in Maloney v The Queen (‘Maloney’),142 ‘ “formal equality” is insufficient to eliminate all forms of racial discrimination’. For the criminal justice system to provide First Nations people with substantive equality, it is necessary to take into account the reasons for their ‘entrenched disadvantage … [including] historical factors such as dispossession and exclusion from traditional lands, the impact of past government policies of assimilation and child removal, and the breakdown of cultural authority and traditional law’.143 Provisions like s 16AA(1) of the Crimes Act 1914 (Cth), which prevent these factors from being considered, deny First Nations people substantive equality. The Commonwealth Parliament passed the Racial Discrimination Act 1975 (Cth) (‘RDA’) to comply with Australia’s obligations under the International Convention on the Elimination of All Forms of Racial Discrimination:144 see 3.37–3.39. Section 10 of the RDA seeks to guarantee equality under the law. It renders ineffective any law by which persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin.

Section 8 follows the Convention in creating an exception for ‘special measures’, defined as special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms …145 Copyright © 2020. LexisNexis Butterworths. All rights reserved.

The ALRC’s Pathways to Justice report endorsed provisions that allow for First Nations background to be considered in sentencing: Sentencing legislation should provide that, when sentencing Aboriginal and Torres Strait Islander offenders, courts take into account unique systemic and background factors affecting Aboriginal and Torres Strait Islander peoples.146

It expressed the view that this would not contravene s 10 of the RDA because sentencing courts already have the obligation to consider all relevant matters, including those f lowing from an offender’s ethnicity.147 Such provisions merely seek to ensure 140 141

142 143 144

145 146 147

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LRCWA (n 124) 8 (emphasis in original). See, eg, Robert Walker, ‘Treating Like Cases Alike and Unlike Cases Differently: Some Problems in AntiDiscrimination Law’ (2010) 16 Canterbury Law Review 201. (2013) 252 CLR 168, 247 [212]. LRCWA (n 124) 9; see also Maxwell (n 130) 106. International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature on 21 December 1965 (entered into force on 2 January 1969). Ibid art 1(4). ALRC Pathways to Justice (n 84) 14, Recommendation 6–1. Ibid 211 [6.101].

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that First Nations offenders enjoy the benefit of this approach. However, if there were any doubt about this, they could be viewed as special measures under s 8. Instead it is ss  16A(2A) and 16AA(1) of the Crimes Act 1914 (Cth) that appear inconsistent with the RDA’s right to equality before the law. In limiting sentencing courts’ ability to consider a First Nations offender’s culture and traditions, these provisions deny such offenders the benefit of a consideration that is available to offenders generally.148 These provisions cannot be justified as a special measure under s 8 of the RDA. Despite the occasional ill-informed suggestion to the contrary, there is no proper evidence that customary law increases the level of violence in First Nations communities.149 On the contrary, violence in First Nations communities is associated with the breakdown of traditional culture, including customary law.150 Despite their discriminatory effect, ss  16A(2A) and 16AA(1) remain in force. It is clear that s 10 of the RDA would render ineffective discriminatory state and territory laws, because Commonwealth laws override state151 and territory legislation to the extent of any inconsistency.152 But the Crimes Act 1914 (Cth) provisions were introduced by later Commonwealth legislation. Even though RDA s  10 is expressed to extend to Commonwealth laws, the rights in RDA are not entrenched, and may be overridden by subsequent Commonwealth legislation.153 It seems that the discriminatory provisions of the Crimes Act 1914 (Cth) are valid despite the RDA.154

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EXERCISE 4: SENTENCING OF FIRST NATIONS OFFENDERS

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The sentencing of First Nations offenders often involves the need to balance the principle of equality before the law with a consideration of the particular circumstances of disadvantage in many First Nations communities. How well do you think these competing considerations are balanced by the principles enunciated in Fernando and Bugmy? Can Indigenous sentencing courts and the recognition of First Nations customary law, as favoured by Southwood J in Wunungmurra, be reconciled with the notion that the same law applies to all?

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Northern Territory Intervention In 2007 the Federal Government under John Howard conducted a broad Northern Territory Intervention in response to concerns about high levels of crime in First Nations communities.155 The Northern Territory National Emergency Response Act 2007 (Cth)

148 149 150 151 152

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155

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Maxwell (n 130) 106. See LRCWA (n 124) 13; Maxwell (n 130) 105. See LRCWA (n 124) 22; Maxwell (n 130) 106. Australian Constitution s 109 (see 3.20). Australian Capital Territory (Self-Government) Act 1988 (Cth) s 28(1); Attorney-General (NT) v Hand (1989) 25 FCR 345, 366–7. George Williams and Daniel Reynolds, ‘The Racial Discrimination Act and Inconsistency under the Australian Constitution’ (2015) 36 Adelaide Law Review 249–52. Dennis Pearce, Statutory Interpretation in Australia (LexisNexis Butterworths, 9th ed, 2019) 284; cf Maxwell (n 130) 107. One trigger was the Little Children are Sacred’: Report of the Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse (Report, 30 April 2007). However, this report was misrepresented

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(‘NTNERA’) and related Commonwealth Acts, in addition to the discriminatory sentencing provisions (see 4.44ff), imposed a variety of restrictions and controls on a number of First Nations communities in the Northern Territory. Property rights were suspended to enable the government to step in and improve the standard of housing and infrastructure. Welfare payments were quarantined with value transferred to a store card that could be spent only on basic necessities. Restrictions were imposed on the availability of alcohol and pornography on the basis that their use was linked with violence against women and children.‘Indigenous violence or child abuse’ was defined as a ‘federally relevant crime’ with the result that First Nations people (‘on par with outlawed motorcycle gangs, international crime syndicates and terrorists’156) were made susceptible to the Australian Crime Commission’s strong investigative powers. In line with its ‘emergency response’ label, NTNERA included a sunset provision under which many of the Act’s provisions would cease to have effect after five years.157 In 2012, the NTNERA was repealed by the Gillard Government; however, many of its policies and provisions were embodied in the Stronger Futures in the Northern Territory Act 2012 (Cth) (‘SFNTA’) and related legislation. These provisions raise the question, considered above in connection with sentencing laws, whether these discriminatory measures are consistent with the RDA. In his annual report in 2007, the Aboriginal and Torres Strait Islander Social Justice Commissioner,Tom Calma, raised a number of ‘significant human rights concerns’ with the Intervention.158 He noted that ‘[t]he NT intervention seeks to address a breakdown in law and order in Aboriginal communities. And yet it potentially involves introducing measures that undermine the rule of law’.159 As originally passed, s 132(1) of the NTNERA provided that the Act and acts done under it ‘are, for the purposes of the Racial Discrimination Act 1975, special measures’. However, at the same time s 132(2) provided that the Act and acts done under it ‘are excluded from the operation of … the Racial Discrimination Act 1975’. This suggests that the Howard Government was not entirely confident that the discriminatory provisions of the Intervention could be justified as special measures and chose not to leave this question for the courts to determine. Following a complaint by affected First Nations people in early 2009, the United Nations Committee on the Elimination of Racial Discrimination questioned whether Australia was complying with its obligations under the Convention.160 In November 2009 the Rudd Government acknowledged that [the Northern Territory Emergency Response] will not achieve robust long-term outcomes if it continues to rely on the suspension of the Racial Discrimination Act. The reinstatement of the RDA — coupled with effective partnership arrangements with communities —

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and the measures adopted by the Federal Government went far beyond its recommendations: Maxwell (n 130) 105–6. Peter Billings, ‘Mind the Gap: Public Power, Accountability and the Northern Territory Emergency Response’ (2010) 17 Australian Journal of Administrative Law 132, 140. NTNERA (n 131) s 6. Aboriginal and Torres Strait Islander Social Justice Commissioner, 2007 Social Justice Report (Report, Human Rights and Equal Opportunity Commission, 11 February 2008) 197. Ibid 248. Letter from Fatimata-Binta Victoire Bah, Chairperson of the Committee for the Elimination of Racial Discrimination, to the Australian Representative to the United Nations in Geneva (13 March 2009).

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CHAPTER 4 FIRST NATIONS AUSTRALIANS AND THE AUSTRALIAN LEGAL SYSTEM

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will serve to restore dignity to communities and give them the backing and incentive to become involved in driving long-term solutions.161

In 2010, s  132 of the NTNERA was repealed. The Act currently governing the Intervention, the SFNTA, provides in s 4A that ‘[t]his Act does not affect the operation of the Racial Discrimination Act 1975’. Can the provisions targeting First Nations people be upheld on the basis that they constitute ‘special measures’ under s 8 of the RDA?162 In 2010, UN Special Rapporteur James Anaya noted that ‘[o]rdinarily, special measures are accomplished through preferential treatment of disadvantaged groups … and not by the impairment of the enjoyment of their human rights’.163 Similarly, Aboriginal and Torres Strait Islander Social Justice Commissioner Mick Gooda suggested that ‘a measure that seeks to provide a benefit to a racial group or members of it, but operates by limiting certain rights of some or all of that group, is unlikely to be a special measure if the consent of the group has not been obtained’.164 As a matter of general principle, such restrictions would appear justifiable only in narrow circumstances — where they are a proportionate means of furthering the equal enjoyment of human rights.165 The question of whether these kinds of provisions can constitute a special measure was considered by the High Court in Maloney.166 The case concerned alcohol restrictions in Queensland, similar to those in the Northern Territory Intervention. Palm Island, a predominantly First Nations community, had been designated a restricted area under the Liquor Act 1992 (Qld). The possession of liquor, other than light or mid-strength beer, was prohibited. The appellant, Joan Maloney, a First Nations resident of Palm Island, had been found by police to be in possession of two bottles of spirits; she was convicted under s 168B of the Act and fined $150. In the High Court Ms Maloney argued that the legislation was inconsistent with s 10 of the RDA and invalid. In response, the Queensland Government primarily relied on the argument that restricting the possession of alcohol was a special measure permitted by s 8 of the RDA. A majority held that the Liquor Act 1992 (Qld) operated to deny the equal enjoyment of rights on the basis of race, in contravention of s  10 of the RDA.167 Although the restriction operated by reference to a geographical area and made no specific reference to First Nations people, its effect was that the First Nations community on Palm Island

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Australian Government, Policy Statement: Landmark Reform to the Welfare System, Reinstatement of the Racial Discrimination Act, and Strengthening of the Northern Territory Emergency Response (2009) 2. If the Intervention measures were found to be inconsistent with RDA s 10 and not warranted as special measures, it is difficult to determine what the result would be. In view of SFNTA s 4A, the position would be less straightforward than with regard to Crimes Act 1914 (Cth) ss 16A(2A) and 16AA(1): see 4.44ff. James Anaya, Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, Addendum: Situation of Indigenous Peoples in Australia (15th sess, UN Doc A/HRC/15/37/ Add.4, 2010) Appendix B [21]. Mick Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, 2010 Native Title Report (Australian Human Rights Commission, 2011) 70, citing Australian Human Rights Commission, Draft Guidelines for Ensuring Income Management Measures Are Compliant with the Racial Discrimination Act (11 November 2009) [84]. Peter Billings and Anthony Cassimatis, ‘Re-designing the Northern Territory Emergency Response: Social Welfare Reform and Non-Discrimination’ (2009) 27 Law in Context 58, 77; see also Walker (n 141) 210. Maloney (n 142). Ibid.

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could not enjoy the right to possess and consume alcohol to the extent enjoyed by other (predominantly non-Indigenous) Queensland adults.168 The Court unanimously held, however, that the restriction on the possession of alcohol qualified as a special measure under s  8, and so was not inconsistent with the RDA. The evidence before the court demonstrated ‘the existence of violence and public disorder in certain communities caused by the misuse of alcohol’.169 How to respond to this problem is ‘at least in some respects, a political question’.170 As Crennan J noted, there are ‘democratic mechanisms by which representative governments resolve contested policy’.171 There are differences between judgments as to how deferential the Court, in assessing proportionality, should be to Parliament’s choices. Bell J held that it was sufficient that the legislative restriction has ‘as its sole purpose the adequate advancement of a racial group or individuals who are in need of protection in order to attain equality in the enjoyment of rights’.172 Taking a stricter approach, Hayne J held that if ‘the same result could be achieved in a way that is less restrictive of the rights and freedoms of the group or individuals in question’ the restrictions should not be upheld.173 The Court rejected the proposition, advanced by the appellant, that for a restriction to constitute a special measure under s 8 there had to be consultation with the affected community prior to the introduction of the restriction.174 But, while not a strict requirement, the fact of consultation was considered relevant to whether the restriction was a special measure.175 In this case the Queensland Government had conducted some consultations with the Palm Island community, but the community was divided as to what alcohol restrictions, if any, should be adopted.176 The appellant questioned whether the consultations were sufficient.177 However, overall the court upheld the alcohol restrictions as proportionate special measures. The types of measures adopted on Palm Island and in the Northern Territory Intervention continue to be controversial. In 2011 the Australian Government sought to strengthen the protection of human rights by introducing the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth): see 3.60. Under this Act, the Parliamentary Joint Committee on Human Rights is empowered to scrutinise Bills for their compatibility with human rights.The Committee reported on the SFNTA in 2013,178 highlighting areas of concern and recommending a continuing close evaluation. Following a further inquiry, the Committee reported again in March 2016179 and raised concerns about whether some of 168

169 170 171 172 173 174 175 176 177 178

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See, eg, ibid 191 [39] (French CJ). Interestingly, Kiefel J dissented on this initial point, holding that ‘the relevant freedom [to possess and consume alcohol] cannot be said to evoke some value common to all societies and therefore to qualify as a human right’: ibid [157]. Ibid 223 [139] (Crennan J). Ibid 209 [95] (Hayne J), quoting Gerhardy v Brown (1985) 159 CLR 70, 138 (Brennan J). Maloney (n 142) 222 [135]. Ibid 259 [246]. Ibid 211 [102]. See, eg, ibid 208 [91] (Hayne J), 222 [135] (Crennan J). See, eg, ibid 186 [25] (French CJ). Ibid. See, eg, ibid 254 [231] (Bell J). Commonwealth Parliamentary Joint Committee on Human Rights, Stronger Futures in the Northern Territory Act 2012 and Related Legislation (Report, 27 June 2013). Commonwealth Parliamentary Joint Committee on Human Rights, 2016 Review of Stronger Futures Measures (Report, 16 March 2016).

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the more stringent measures of the Intervention were justifiable. While considering that the provisions regarding customary law were likely to be compatible with the right to a fair trial and the right to equal treatment, the Committee recommended a review to confirm this.180 The Committee questioned whether the alcohol restrictions and income management scheme were ‘effective, and genuinely tailored to the needs and wishes of the local community’.181 As at 18 June 2020, the Federal Government had not responded to the report.182 In February 2020, the Castan Centre for Human Rights Law at Monash University, led by Dr Stephen Gray, published an evaluation of the Northern Territory Intervention.183 The Intervention was awarded an overall score of 4 out of 10, with the note that the Intervention measures ‘have been highly criticised [for infringing various human rights] including the right to freedom from racial discrimination, the right to self-determination, the right to be consulted, the right to social security, the rights of children, and freedom from genocide’.184 In 2017, Greens Senator Rachel Siewert suggested ‘the heavy-handed, punitive, top-down approach of the Intervention was always doomed to fail’.185 She was particularly critical of its paternalism:

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It was yet another example of bureaucrats and politicians in Canberra assuming that they knew what was best … [The Government] must … enable Aboriginal and Torres Strait Islander peoples … to lead the way in addressing social injustice and disadvantage. [They] already have many of the answers. Governments just need to listen.186

The need for Australian governments to listen to First Nations communities in order to find practical effective solutions is emerging as a key theme in First Nations law reform. There are signs that, in this respect, government policy is changing. In his Closing the Gap Statement to Parliament in February 2020, Prime Minister Scott Morrison identified the underlying problem with past programs as being ‘the belief that we knew better than our Indigenous peoples’.187 He said there must be a greater willingness to ‘push decisions down to the people who are closest to them. Where the problems are, and where the consequences of decisions are experienced.’188 The Prime Minister acknowledged calls for a First Nations voice to government to be given constitutional status. The evolving position of First Nations Australians in the Australian Constitution is discussed in the next section.189

180 181 182 183

184 185 186 187

188 189

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Ibid [2.25]–[2.26]. Ibid [3.56], [4.104]–[4.105]; see also Recommendations 1–5. Commonwealth, Parliamentary Debates, House of Representatives, 18 June 2020, 4896. Stephen Gray, The Northern Territory Intervention: An Evaluation (Castan Centre for Human Rights Law, Monash University, February 2020). Ibid 5. Rachel Siewert, ‘Ten Years of Intervention’ (2017) 148 (June) Arena Magazine 5, 5. Ibid. Commonwealth, Parliamentary Debates, House of Representatives, 12 February 2020, 21 (Scott Morrison, Prime Minister). Ibid. Ibid 24–25.

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LAYING DOWN THE LAW

This poster, produced by the Australian Council of Salaried and Professional Associations, an affiliate of the National Council for the Advancement of Aborigines and Torres Strait Islanders, recommended voting ‘yes’ in the 1967 referendum, to remove discrimination from the Australian Constitution: MS 7992, Christophers Papers. Reproduced by kind permission of the National Library of Australia.

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First Nations Australians and the Australian Constitution THE RACE POWER AND THE 1967 REFERENDUM The NTA and the Intervention legislation are pieces of Commonwealth legislation that specifically target First Nations Australians. The Commonwealth’s power to pass such legislation is found in the ‘race power’ in s 51(xxvi) of the Australian Constitution. This provision gives the Commonwealth Parliament power to legislate with respect to ‘the people of any race for whom it is deemed necessary to make special laws’. The NTA clearly falls within this head of legislative power. As six members of the High Court recognised in Western Australia v Commonwealth:190

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The Act … secures the Aboriginal people and Torres Strait Islanders in the enjoyment of their native title subject to the prescribed exceptions … The Act confers its protection upon native title holders who, ex hypothesi, are members of a particular race. As ‘(t)he relationship between the Aboriginal people and the lands which they occupy lies at the heart of traditional Aboriginal culture and traditional Aboriginal life’, the significance of security in the enjoyment of native title by the Aboriginal people of Western Australia who hold native title is undoubted.191

The race power as it initially appeared in the Constitution would not have allowed the NTA to be passed. Section 51(xxvi) originally gave the Commonwealth power to legislate with respect to ‘the people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws’ (emphasis added). The italicised words were removed by the Constitutional Alteration (Aboriginals) Act 1967 (Cth). The original provision left ‘regulation [of the First Nations peoples] to the States. It may have had the effect of protecting them from any risk of the misuse of the race power by the new Federal Parliament’.192 But of course it left them at the risk of mistreatment by state law without the possibility of Commonwealth intervention. A second change brought by the 1967 constitutional referendum was to delete s 127 of the Constitution, which was concerned with the Federal Government’s running of the national census.The section provided: ‘In reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted.’ Initially this provision may simply have reflected the practical difficulty of counting people living in remote First Nations communities;193 however, the provision was also a further ‘symbolic exclusion of Indigenous people from “membership of the Federal community” ’.194 Indeed, the exclusion was not merely symbolic. Section  127 weakened the voting power of First Nations Australians. Many had been disenfranchised in the Northern Territory, Queensland, Western Australia and the Commonwealth right

190 191

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(1995) 183 CLR 373. Ibid 459 [93] (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ), quoting Commonwealth v Tasmania (1983) 158 CLR 1, 274–5 (Deane J). Kartinyeri v Commonwealth (1998) 195 CLR 337, 403 [136] (Kirby J) (‘Kartinyeri’). Dylan Lino, ‘Indigenous Recognition’ in Rosalind Dixon (ed), Australian Constitutional Values (Hart, 2018) 243, 247. Ibid 245, quoting from J Quick and R Garran, The Annotated Constitution of the Australian Commonwealth (1901) 957.

4.60 race power: the Commonwealth’s power to legislate with respect to the people of a particular race, provided by s 51(xxvi) of the Constitution

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disenfranchise: to deny representation or a voice; in the political context, to deny the right to vote

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up until the early 1960s195 — First Nations Australians covered by protection regimes ‘had no part to play in the constitutionally prescribed system of government’.196 By the mid-1960s First Nations Australians had the right to vote in all elections in Australia, but s 127 reduced the power of their vote. This was because electoral districts for the Commonwealth House of Representatives are created by reference to the population as revealed in the census. Until First Nations Australians were properly counted, the votes of people in electorates with large Aboriginal or Torres Strait Islander populations were effectively given less weight. Section  127’s exclusion of First Nations Australians was increasingly recognised as discriminatory.197 The 1967 constitutional amendment removed this element of discrimination. It is very difficult to bring about change in the Constitution (see 3.2), but the 1967 amendments were passed by a record majority of 90% of Australian voters. It is ironic that an element of racial discrimination in the Constitution was removed by an amendment that, in part, extended Parliament’s power to pass laws that discriminate on the basis of race. The NTA, of course, is a clear case of positive discrimination. The question arises as to whether the race power also allows for legislation that discriminates in an adverse way. This question was considered by some members of the High Court in Kartinyeri v Commonwealth.198 This case arose out of the long-running political and legal dispute about the development of Hindmarsh Island, an area of special significance to the local First Nations community. The case specifically concerned the constitutional validity of the Hindmarsh Island Bridge Act 1997 (Cth) which removed the Island from the protection of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth). The First Nations plaintiffs claimed that this discriminated against them in an adverse fashion, and was therefore not authorised by the race power. There were four judgments in the case, each following a different line of reasoning. Only Kirby J decided the case by reference to the race power. In interpreting s 51(xxvi) he had regard to the historical importance of the 1967 constitutional amendment to this section.

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The stated purpose here was to remove two provisions in the Constitution which … discriminated against Australian Aboriginals. … To construe the resulting power in par  (xxvi) as authorising the making of laws detrimental to, and discriminatory against, people on the ground of race, and specifically Aboriginal race, would be a complete denial of the clear and unanimous object of the Parliament in proposing the amendment to par (xxvi). It would amount to a refusal to acknowledge the unprecedented support for the change, evident in the vote of the electors of Australia.199

Kirby J, dissenting, held the Act invalid. The other five Justices decided against the plaintiffs on other grounds. While not necessary to their decision, Gummow and Hayne JJ rejected Kirby J’s view that the 1967 amendment introduced this limitation on the race power.200 Gaudron J also rejected the notion that the race power is 195

196 197 198 199 200

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Welfare Ordinance 1953 (NT); Election Acts Amendment Act 1965 (Qld); Electoral Act Amendment Act 1962 (WA); Commonwealth Electoral Act 1962 (Cth). Kruger v Commonwealth (1997) 190 CLR 1, 142–3 (McHugh J). Kartinyeri (n 192) 405 [139] (Kirby J); Lino (n 193) 245. Kartinyeri (n 192). Ibid 413 [157]. Ibid 382 [91].

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CHAPTER 4 FIRST NATIONS AUSTRALIANS AND THE AUSTRALIAN LEGAL SYSTEM

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strictly limited to the making of ‘beneficial laws’. However, she suggested that, given the material disadvantage suffered by First Nations communities and the threats to their culture, ‘prima facie, at least, only laws directed to remedying [First Nations] disadvantage’ would be likely to be within power.201 CONSTITUTIONAL RECOGNITION OF FIRST NATIONS AUSTRALIANS The 1967 amendment removed aspects of the Constitution that discriminated against First Nations Australians. For decades there have been demands that the Constitution be changed further, to give First Nations Australians positive recognition.202 In 1999 a constitutional referendum proposed adding a preamble to the Constitution, ‘honouring Aborigines and Torres Strait Islanders, the nation’s first people, for their deep kinship with their lands and for their ancient and continuing cultures which enrich the life of our country’.203 However, the significance of this acknowledgment was weakened by other references to ‘Australians from many ancestries; … the sacrifices of all who defended our country and our liberty in time of war; … [and] the nation-building contribution of generations of immigrants’ among many other things. It was also to be accompanied by a new s 125A providing that the preamble would have ‘no legal force’. The proposed amendment was not passed at referendum. In fact, it did not pass in a single state, and received less than 40% of the overall vote. This may have been, in part, because the preamble question was accompanied by a second proposed constitutional amendment, to adopt a particular model of republicanism. The republic amendment also failed to pass, but the preamble received even less support. Perhaps the ‘honouring’ of First Nations Australians in the proposed preamble was rejected as empty, heavily qualified symbolism.204 Political support for constitutional recognition has grown in recent years. The Australian Government broke its 2010 pledge to hold a referendum on a suitable amendment no later than the 2013 federal election.205 However, the issue remains high on the political agenda, having recently been the subject of consideration by an Expert Panel206 and a Referendum Council,207 both government-sponsored, and two Parliamentary Joint Select Committees.208 A crucial recent development is the Uluru Statement from the Heart (‘Uluru Statement’),209 which reflects a consensus among First Nations communities as to what constitutional recognition should include. 201 202 203 204

205

206

207 208

209

4.63

4.64

Ibid 367 [44]. Murray Gleeson, Recognition in Keeping with the Constitution (Uphold and Recognise, 2019) 5. Constitution Alteration (Preamble) Bill 1999 (Cth). However, these kinds of changes were made to some state constitutions: Constitution Act 1902 (NSW) s 2; Constitution of Queensland 2001 preamble (c) and (e), s 3A; Constitution Act 1975 (Vic) s 1A. Anne Twomey, ‘Constitutional Recognition of Indigenous Australians in a Preamble’ (Report No 2, Constitutional Reform Unit, Sydney Law School, September 2010) 5. Expert Panel on Constitutional Recognition of Indigenous Australians, Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution (Report, Department of Prime Minister and Cabinet, 2012). Referendum Council, Parliament of Australia, Final Report of the Referendum Council (2017). Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, Parliament of Australia, Final Report (2015); Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, Parliament of Australia, Final Report (2018). Uluru Statement from the Heart (2017 National Constitutional Convention) .

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4.65

The Uluru Statement was agreed upon at a national convention held at Uluru in May 2017 following a series of dialogues around the country.210 While just one page long, it contains considerable wisdom and power.The Uluru Statement begins with the recognition of First Nations sovereignty, which ‘has never been ceded or extinguished’, acknowledges that First Nations sovereignty ‘co-exists with the sovereignty of the Crown’ and calls for ‘a  Makarrata Commission to supervise a process of agreement-making between governments and First Nations’.211 This suggestion appears appropriate given the High Court’s recognition that Australia was not terra nullius at the time of settlement: see 4.4. Furthermore, as Gordon J recently noted in Love v Commonwealth;Thoms v Commonwealth (‘Love and Thoms’): ‘It was the dispossession of Aboriginal Australians, starting in 1788 and expanding “parcel by parcel”, that underwrote the development of this nation.’212 The Uluru Statement proposes that the historical injustice be acknowledged so as to provide a basis for a ‘fair and truthful relationship with the people of Australia’.213 Looking ahead to a ‘better future for our children based on justice and self-determination’ the Uluru Statement calls for a ‘First Nations Voice enshrined in the Constitution’.214 The Uluru Statement has received broad support,215 including from the two most recent former High Court Chief Justices216 and from the Law Council of Australia,217 the peak body for the Australian legal profession. The Referendum Council ‘made a single proposal for constitutional change, based upon [the Uluru] Statement’.218 It recommended that ‘a referendum be held to provide in the Australian Constitution for a representative body that gives Aboriginal and Torres Strait Islander First Nations a Voice to the Commonwealth Parliament’.219 However, the Uluru Statement did not receive the support of then Prime Minister, Malcolm Turnbull, who objected that this new body ‘would inevitably become seen as a third chamber of Parliament’, and one which, with its narrow constituency, is less representative than the existing chambers.220 It has been pointed out that this objection misunderstands the proposal. Former Chief Justice Murray Gleeson noted that it is a ‘voice to Parliament, not a voice in Parliament [and could] be achieved without legal derogation from parliamentary supremacy’.221 Further, the 210 211 212 213 214 215 216

217 218 219 220

221

114

See Lino (n 193) 252. Uluru Statement (n 209). Love and Thoms (n 1) [337] (Gordon J), quoting from Mabo [No 2] (n 4) 69. Uluru Statement (n 209). Ibid. Referendum Council (n 207) [3.6]. Gleeson (n 202); Robert French, ‘Voice of Reason Not Beyond Us’, The Australian (Sydney, 31 July 2019); Gabrielle Appleby, ‘ “A Worthwhile Project”: Why Two Chief Justices Support the Voice to Parliament, and Why That Matters’, The Conversation (online 1 August 2019) . Law Council of Australia, ‘Uluru Statement Should Be Respected’ (Media Release, 1 November 2019). Gleeson (n 202) 5. Referendum Council (n 207) 2. Dan Conifer et al, ‘Indigenous Advisory Body Rejected by PM in “Kick in the Guts” for Advocates’, ABC News (online, 26 October 2017) . Gleeson (n 202) 12; see also Arthur Moses, ‘The Case for Adopting the Uluru Statement on its Second Anniversary’ (2019) 93 Australian Law Journal 339, 342; Anne Twomey, ‘Putting Words to the Tune of Indigenous Constitutional Recognition’, The Conversation (online, 20 May 20 2015) .

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CHAPTER 4 FIRST NATIONS AUSTRALIANS AND THE AUSTRALIAN LEGAL SYSTEM

Council recommended that the new body’s remit be limited to monitoring and advising the Parliament on its use of the race and territories powers, respectively ss 51(xxvi) and 122 of the Australian Constitution.222 Gleeson noted that this reform

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has the merit that it is substantive, and not merely ornamental. … It would give Indigenous people a constitutionally entrenched, but legislatively controlled, capacity to have an input about the making of laws about Indigenous people or Indigenous affairs.223

As noted at 4.59, the current government has recently expressed recognition that paternalism in First Nations affairs has not worked. In his Closing the Gap Statement to Parliament in February 2020, Prime Minister Scott Morrison observed that ‘when Indigenous people have a say in the design of programs, policies and services, the outcomes are better — and lives are changed’.224 He indicated that the government had adopted the Joint Select Committee’s recommendation that ‘a process of co-design between Aboriginal and Torres Strait Islander peoples and government be initiated in communities across Australia to design a voice that can help deliver practical outcomes for that community’.225 However, the Prime Minister also indicated that the government was not committing, at this point, to entrenching a requirement for the advisory body in the Constitution.226 The Joint Select Committee recommended that ‘following a process of co-design, the Australian Government consider, in a deliberate and timely manner, legislative, executive and constitutional options’.227 As Gleeson observed, ‘there is nothing inherently impossible about providing in the Constitution for an institution before its form is determined’.228 He noted this occurred with the High Court of Australia. While provision was made for the new court in the Constitution in 1901, there were two years of argument before the details of its structure and operation were laid down by Parliament in the Judiciary Act 1903 (Cth). So too with the new advisory body: ‘What would appear in the Constitution would be the minimum requirements necessary to guarantee its continued existence and its essential characteristics.’229 Its ‘structure, composition and functions … would be determined, and susceptible to change, by legislation of the Federal Parliament’.230 There would be many finer details that could be left to legislation. There would be many ‘complexities [in] designing a body that fairly represents Aboriginal Torres Strait Islander people’.231 But, as Arthur Moses, President of the Law Council of Australia, emphasised, the basic requirement for the body must be ‘constitutionally enshrined [otherwise] it could be abolished at any time if the government does not like what it was saying’.232

222 223 224 225

226 227 228 229 230 231 232

4.66

4.67

Referendum Council (n 207) 2. Gleeson (n 202) 14. Commonwealth, Parliamentary Debates (n 187) 23 (Scott Morrison, Prime Minister). Ibid 24; see also Joint Select Committee (2018) (n 208) 77–8; see also Ken Wyatt, Minister for Indigenous Australians, ‘A Voice for Indigenous Australians’ (Media Release, 30 October 2019). Commonwealth, Parliamentary Debates (n 187) 25 (Scott Morrison, Prime Minister). Ibid 119. Ibid 13. Ibid 12. Ibid. Gleeson (n 202) 13. Moses (n 221).

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4.68

4.69

FIRST NATIONS AUSTRALIANS, ALIENS AND THE CONSTITUTION While politicians, experts, and First Nations leaders were considering constitutional change to better recognise First Nations Australians, the High Court was presented with ‘two special cases’ regarding their position under the Constitution in its current form.233 In Love and Thoms, the two plaintiffs, citizens of Papua New Guinea and New Zealand respectively, had had their visas cancelled following their conviction of criminal offences and were facing deportation under migration and citizenship legislation. This legislation had been made under the Commonwealth Parliament’s power to legislate with respect to ‘aliens’.234 The men argued that, in application to them, the legislation was not supported by the aliens power in the Constitution because they are First Nations Australians. While they had not been born in Australia and held foreign citizenship, Mr Love and Mr Thoms claimed to be members of the Kamilaroi people and Gunggari people respectively. By a majority of 4:3235 the High Court accepted the men’s claim that First Nations Australians could not be considered ‘aliens’ under the Constitution. The central meaning of ‘alienage’ is ‘lack of relationship with a country’.236 However, First Nations Australians have a connection with land and waters that is unique … It is a connection which existed and persisted before and beyond settlement, before and beyond the assertion of sovereignty and before and beyond Federation. It is older and deeper than the Constitution.237

The connection to country recognised by the majority is broader than native title, which in many cases has been extinguished.238 Indigeneity of a person is to be determined by the tripartite test from Mabo [No 2], which involves First Nations descent, self-identification, and acceptance by their First Nations community.239 A majority held that Mr Thoms, a native title holder, is Aboriginal and could not be deported, but there was insufficient evidence to assess Mr Love’s position. His case was referred to the Federal Court for determination. EXERCISE 5: FIRST NATIONS AUSTRALIANS AND THE LAW Copyright © 2020. LexisNexis Butterworths. All rights reserved.

4.70

‘The disadvantage suffered by First Nations Australians is recognised as one of the Australia’s most serious and enduring social problems. Unfortunately, over the years, legal responses have been as much a part of the problem as a solution.’ Do you agree? Explain your views by reference to specific legal reforms. What do you think is required for the law to make a more positive contribution?

233 234 235 236

237 238 239

116

Love and Thoms (n 1) 204 [1]. Australian Constitution s 51(xix). Love and Thoms (n 1) (Bell, Nettle, Gordon and Edelman JJ; Kiefel CJ, Gageler and Keane JJ). Ibid 259 [302] (Gordon J), quoting Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178, 183 (emphasis added by Gordon J). Ibid 269 [363] (Gordon J). Ibid 216 [71] (Bell J), 255 [277] (Nettle J), 268–9 [362]–[365] (Gordon J). Ibid 218 [81] (Bell J), 270 [368]–[371] (Gordon J); cf 291 [462] (Edelman J). This tripartite test of Indigeneity was supported in previous High Court decisions: see ibid 253 [271] (Nettle J), 290 [458] (Edelman J).

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CHAPTER 4 FIRST NATIONS AUSTRALIANS AND THE AUSTRALIAN LEGAL SYSTEM

Further reading • Thalia Anthony, Indigenous People, Crime and Punishment (Routledge, 2013). • Toni Bauman and Lydia Glick (eds), The Limits of Change: Mabo and Native • • • • • • •

Title 20 years on (AIATSIS Research Publications, 2012). Larissa Behrendt, Chris Cunneen, Terri Libesman and Nicole Watson, Aboriginal and Torres Strait Islander Legal Relations (Oxford University Press, 2019). Peter Billings (ed), Indigenous Australians and the Commonwealth Intervention (Federation Press, 2011). Sean Brennan et al (eds), Native Title from Mabo to Akiba: A Vehicle for Change and Empowerment? (Federation Press, 2015). Megan Davis and Marcia Langton, It’s Our Country: Indigenous Arguments for Meaningful Constitutional Recognition and Reform (Melbourne University Publishing, 2016). Michael Mansell, Treaty and Statehood: Aboriginal Self-determination (Federation Press, 2016). Bruce Pascoe, Dark Emu: Aboriginal Australia and the Birth of Agriculture (Magabala Books, 2018). David Ritter, Contesting Native Title: From Controversy to Consensus in the Struggle Over Indigenous Land Rights (Allen and Unwin, 2009).

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To enhance your learning experience, use the student resources available on Lexis® Learning See the Visual Preface at the front of this book on how to register.

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5

The Legal Profession and Professional Legal Practice and Ethics There can be no final truth in ethics any more than in physics, until the last man has had his experience and said his say.1 William James, ‘The Moral Philosopher and the Moral Life’, The Will to Believe (1896).

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1

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120

Introduction

5.1

Legal profession

5.3

− Criminal law practitioners

5.8

− Reform of the legal profession

5.11

Understanding and practising law

5.12

− Entry to the legal profession

5.15

− Generic professional conduct requirements

5.17

•

Good fame and character

5.17

•

Level of knowledge, training and skill

5.21

•

Professional conduct rules

5.24

− Dual source of professional duties

5.27

Professional conduct

5.28

− Duty to client

5.29

− Obligations when acting for government

5.31

•

Model litigant rules

5.31

•

Duty to assist

5.34

•

‘Genuine’ steps

5.35

− Duty to court

5.38

− Duty to fellow practitioners and third parties

5.39

− Duty to community

5.41

Ethics

5.42

− Legal ethics

5.43

− Ethical decisions

5.44

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− Sources of ethical conflict

5.47

•

Duty to court versus duty to client

5.47

•

Commercial imperatives versus duty to profession

5.48

•

Duty to community versus personal interests

5.49 5.50

− Ethics of criminal defence

5.53

Conclusion

5.58

EXERCISE 6: Legal professional practice and ethical duties

5.59

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− Ethics of criminal prosecution

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Introduction 5.1

5.2

Chapter 2 discussed the evolution of constitutional law, the court system and the common law, which together form the foundation of the Australian legal system; Chapter  3 provided details of the key institutions and their powers in the Australian legal system. This chapter focuses on another key legal institution, the legal profession. The chapter explores the historical development of the two main branches of the legal profession — barristers and solicitors; the current structure in Australia of those practising law; and proposed reforms to the profession to create a national, rather than a Commonwealth, state and territory legal market. Being a member of a profession such as the legal profession entails certain ethical and legal duties. Law students need to appreciate the tenets of the legal profession early in their careers to avoid disappointment when seeking admission as a barrister or solicitor due to any indiscretion in the past which might bar entry.What will be required for admission involves an understanding of key principles; the mastery of skills such as advocacy, legal writing and research; an awareness of ethical duties inherent in professional practice; and an appreciation of the particular duties that a legal professional owes to their client, the court, their fellow professionals and the community.

Legal profession

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5.3

attorney: lawyer or other representative from the French word à tourner: to stand in one’s turn, or one’s place

5.4 122

Alongside the development of the legal system (Chapter  2) there evolved exponents of that system who could advise on the function of the system, and help negotiate on a person’s behalf before the courts. With the creation of the common law courts in England — the King’s Bench, which travelled with the monarch, and the Common Pleas and Exchequer, which remained at Westminster — came the creation of a corps of professional judges: see 2.10. But litigants — people wanting to make use of the courts’ services — still had to suffer some inconvenience if they were to have justice: they either had to follow the King’s Bench or go to Westminster in London. This led to the growth of another group of people who were allowed to represent litigants and who, like the judges, made their living through the workings of the courts. These people were called attorneys, from the French à tourner: to stand in one’s turn, or one’s place. We see this term reflected in our modern Attorney-General: someone who stands in the Queen’s place for the purposes of conducting the legal business of the government. In the Common Pleas, there developed an even more specialised class of representatives. They were called servientis ad legem (‘servants at law’), which over time became corrupted to ‘serjeants at law’. The serjeants-at-law were the highest-ranking members of the legal profession, and in the social hierarchy came just below knights. Membership in the Order of Serjeants was conferred by the king. In part, the serjeants’ prestige was a result of the fact that they had a monopoly of appearance before the Common Pleas — the place where most litigation took place. So, a de facto division of the legal profession into serjeants-at-law and attorneys had taken place by 1400. The last serjeants were appointed in 1868, and the final member of the Order of Serjeants, Lord Lindley, who went on to become a prominent judge, died in 1921. At the same time, a new class of lawyer — called barristers — was developing. The attorneys were ‘jacks of all trades’ but, because of an increase in litigation, more lawyers

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CHAPTER 5 THE LEGAL PROFESSION AND PROFESSIONAL LEGAL PRACTICE AND ETHICS

who specialised in oral pleading were needed. Although they did not have the royally conferred status of a serjeant, these new specialised oral advocates were permitted to approach the bar of the court, hence the name ‘barrister’. For the sake of professional convenience (and probably also out of a desire for comradeship), the barristers began to take out commercial lodgings in the same area of the West End of London, near the Hall of Westminster. Over time, the practising Bar came to be quartered in four ‘Inns of Court’, as they are known: the Inner and Middle Temples (so called because these inns are located on the site of what was the London home of the Order of Knights Templar), Gray’s Inn and Lincoln’s Inn. Today these four inns remain the organisational basis for the English Bar. All barristers must belong to one of the Inns of Court, and disciplinary proceedings against barristers are conducted by the Inns. In Australia, the English tradition is ref lected in the tendency of barristers to gather together in so-called ‘professional chambers’ in the metropolitan areas. By the 15th century, yet another type of lawyer had evolved. This was someone who today we might think of as a clerk. He (they were always male) helped other lawyers generally, and provided basic advice to people in legal difficulty. In fact, this new branch of the profession was often a stepping stone for young men who wanted to become attorneys, barristers or serjeants. This new type of legal professional was said to help clients by soliciting information on their behalf, and so became known as a ‘solicitor’. For various reasons, however, the work of the attorneys and solicitors became more and more alike and, eventually, all those lawyers whose work was outside the courts became referred to as solicitors.The fact that in America lawyers are still generally called attorneys is an anthropological signpost: it tells us that in the mid-18th century, the time when the Americans broke away from the English legal profession, the description ‘attorney’ was still more common in England than ‘solicitor’. In Australia, Canada and New Zealand, the early lawyers were also often called attorneys, but, because they stayed within the British fold longer, the legal profession in these countries followed the English change in nomenclature. By the late 19th century in England there were two types of lawyers: barristers, who had an exclusive right of audience before the higher courts, and solicitors. In recent years, there have been moves to limit the divide between the two branches so as to open up competition and reduce costs, but this rough division continues to form the basis of the legal profession. In Australia, all jurisdictions have, at least in theory, fused the profession to some degree, enabling a legal practitioner to do the work of both a solicitor and a barrister. Queensland was the last jurisdiction to provide for fusion in its Legal Profession Act 2004. However, in most jurisdictions, legal practitioners generally continue to operate as either a solicitor or a barrister, and all jurisdictions possess a Bar of specialised advocates. A person with tertiary legal qualifications may still elect to become a barrister or solicitor only, or to enrol in both arms of the profession. Within the class of barrister, there is a senior grade of counsel, traditionally called Queen’s Counsel (QC) or King’s Counsel (KC) during the reign of a female or male monarch, respectively. As a mark of their higher status, QCs wore a silk gown in court, rather than a cotton one, thus the expression ‘taking silk’. Beginning in New South Wales  in 1993, all Australian jurisdictions except the Australian Capital Territory, and New Zealand replaced the rank of QC with Senior Counsel (SC); the Commonwealth was the last to make the change in 2010. In recent years, however, jurisdictions such

5.5

5.6

5.7

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as Queensland, Victoria, South Australia and the Commonwealth have reinstated the title of QC. The main argument for returning to the traditional title appears to be the internationalisation of legal practice. Some hold that the title of QC has wider recognition and, perhaps, greater status than SC, particularly in Asian jurisdictions, although others reject this view. The rejection of the second justification may ref lect the fact that some former British colonies in Asia, such as Singapore and Hong Kong, have also adopted the SC description given that the Queen is no longer their head of state.Where reversion has occurred, those who have an SC may retain the title, and in some states and territories, successful applicants may choose which initials they wish to use. In Australia, QCs are appointed by a warrant from the Governor-General or the relevant state Governor, while SCs are appointed by the state or territory bar association or supreme court.

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5.8

summary charge: a charge relating to a summary or minor criminal offence, usually tried before a magistrate, for which the penalty is a short sentence or fine (in contrast to a more serious ‘indictable’ offence, often heard before a judge and jury, and involving heavier penalties)

5.9

CRIMINAL LAW PRACTITIONERS In understanding the evolution of the legal profession, it is necessary to draw a distinction between civil and criminal practice. Through the 16th and 17th centuries, civil procedure was ‘lawyer-suffused’ whereas criminal procedure was ‘lawyer-free’,2 the criminal trial being a ‘relatively unstructured “altercation” between accusers and accused’.3 The role of the public prosecutor had not yet developed and, while defendants may have obtained legal advice, defence counsel was prohibited from playing a significant part in the trial. The active engagement of defence counsel in the trial was limited in the belief that this would benefit the court’s straightforward pursuit of the truth. However, several treason trials of the late 17th century, ending in the execution of innocent persons, revealed that the truth is not always so readily accessible.4 Reforms were introduced to allow treason defendants to be more fully represented by counsel. These reforms gained further momentum with the shift in the 18th century from private to public prosecutions. Since lawyers were increasingly employed on the side of the prosecution, it was recognised that, as a matter of fairness, lawyers should also be allowed on the defence side.5 Criminal defendants were also the beneficiaries of evidentiary safeguards that developed during the 18th century — for example, excluding involuntary confessions, and requiring that the evidence of certain prosecution witnesses be corroborated.The increasingly technical nature of these principles reinforced the need for the parties and the court to have the benefit of expert legal counsel.6 By the beginning of the 19th century, the criminal trial resembled the adversarial civil trial. The development of the modern police force in the 19th century confirmed the need for the rights of suspects and defendants to be safeguarded with the assistance of their lawyers at trial and pre-trial. The legal profession has still not established a strong presence at the lowest tier of the criminal court hierarchy.7 In Australia, the magistrates that hear summary charges in Local and Magistrates Courts are now legal professionals. However, many defendants appearing on summary charges are unable to afford legal representation. In Dietrich

2 3 4 5 6 7

124

John H Langbein, The Origins of Adversary Criminal Trial (Oxford University Press, 2003) 7. Ibid 2. Ibid ch 2. Ibid ch 3. Ibid ch 4. Doreen McBarnet, Conviction (Palgrave Macmillan, 1981) 140.

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CHAPTER 5 THE LEGAL PROFESSION AND PROFESSIONAL LEGAL PRACTICE AND ETHICS

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v The Queen8 the High Court held that, for a trial to be fair, the indigent criminal defendant must be provided with legal representation. However, in practice this proposition has been limited to serious offences. Governments provide funds for defendants unable to afford their own legal representation through Legal Aid bodies, but resource constraints mean that defendants are generally only eligible if they are at risk of receiving a prison sentence, which excludes many summary offences. Legal Aid does provide duty lawyers at the courts, but this scheme offers limited opportunities for advice, preparation and representation. Further, while prosecutions in the higher courts are brought by qualified lawyers working under the auspices of a Director of Public Prosecutions, in many summary prosecutions the Crown is represented by police prosecutors who generally lack legal qualifications. This is problematic in that, as well as lacking legal expertise, police prosecutors may be embroiled, directly or indirectly, in the investigation and have a stake in securing a conviction. At the same time, since they do not have to be legal practitioners, police prosecutors are not bound by the ethical and behavioural duties and responsibilities discussed in this chapter. A number of Royal Commissions and Commissions of Inquiry and other bodies have recommended that prosecutions should no longer be conducted by police.9 In the common law world, Australia, with the exception of the Australian Capital Territory, is one of the few countries still allowing this to occur.10 REFORM OF THE LEGAL PROFESSION In April 2009 the Council of Australian Governments (COAG) initiated the Legal Profession Uniform Law Reform project to create and regulate a national legal profession. In particular, the aim was to achieve uniform laws regulating matters such as admission to the profession and the management of legal practices. The resulting Legal Profession Uniform Law has, however, been adopted only in the Australian Capital Territory, New  South Wales, Queensland, Victoria and Western Australia giving members of the profession in those jurisdictions the benefit of more variety of practice and increased opportunities for work. The remaining jurisdictions have been less enthusiastic, leaving the goal of uniform rules as yet unrealised.

5.10

5.11

Understanding and practising law In addition to legal reasoning skills and knowledge of the law, lawyers must possess professional judgement and an understanding of their professional responsibilities, as requirements for entering professional practice. This side of legal practice is the subject of detailed study in courses which prepare law graduates to join the profession. An introduction to this aspect of the practice of law is provided in this chapter. Any understanding of legal skills and responsibilities must take into account technological development. Technology is having a profound impact on the operation of those in the profession. Lawyers routinely use a variety of online research tools such 8 9

10

5.12

5.13

(1992) 177 CLR 292. Chris Corns, ‘Police Summary Prosecutions in Australia and New Zealand: Some Comparisons’ (2000) 19 University of Tasmania Law Review 280, 295. Ibid 280.

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discovery: an important element of an action brought before a court: discovery of facts comprises answers on oath to questions by one party of another which may be used in evidence; discovery of documents requires one party to file an affidavit of all the documents relevant to the action which are or have been in the party’s possession

as AustLII, Lexis.com and Westlaw: see Chapters 17–19. Access to courts and tribunals, including lodgment of documents, is increasingly through dedicated electronic portals, email and other forms of electronic communication, rather than in-person hearings. The onset of the COVID-19 pandemic in 2020 has led to hearings in most cases being conducted using interactive platforms, video-conferences or other forms of telecommunications, a trend likely to continue. Within law firms, voluminous material is stored in, and can more easily be accessed and manipulated by, lawyers using in-house databases. Much of the drudgery of newly qualified practitioners undertaking discovery — that is, the pre-civil trial listing of all documents relating to an action which are or have been in a party’s possession or control — has been eliminated. While many of these developments have enhanced the efficiency of legal practice, technology has also thrown up many new legal issues for society in general.The increasing range of activities which are carried out online, and potentially recorded and stored, has undermined personal privacy. Consequently, the supra-national operation of some technology platforms often inhibits national legal actions to protect privacy rights of individuals, and has led to calls for removal of entries identifying individuals. Use of drones and surveillance devices may also result in loss of privacy. Automated processes, while a boon for parking enforcement, can be a nightmare for individuals who cannot manage the technology or who face a malfunctioning system. The rapid adoption of automated decision-making can also raise a host of rights’ infringement issues.11 Such systems may displace the exercise of discretion to take account of individual circumstances and block the opportunity for people to complain or explain why the facts in their case did not warrant the legal outcome. Meanwhile, the opacity of decisions based on proprietary algorithms or ‘black box’ machine learning, and inadequate database construction, present further obstacles. The Federal Government’s ‘robodebt’ system illustrates the problem. The Department of Human Services used an automated system to compare social service recipients’ claims of their working hours with tax office information about their employment, and automatically raise a debt notice when it found a discrepancy. However, the system relied on an automated formula to calculate the debt, and put the onus on recipients to prove the debt was incorrect. The government has conceded that the debts had been obtained by an unlawful process. Refunds have commenced to some thousands of those who had been required to repay monies to the Commonwealth.12 A Federal Court class action is scheduled in 2020 to assess whether the Government’s actions were unlawful for all those listed in the class and whether compensation is due to them.13

11

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See, eg, Australian Law Reform Commission, Human Rights and Technology (Discussion Paper, 2019); Administrative Review Council, Automated Assistance in Administrative Decision Making (Report No  46, 2004); Justice Melissa Perry, ‘iDecide: the Legal Implications of Automated Decision-Making’ (Speech, Cambridge Public Law Conference, University of Cambridge, September 2014) . Paul Karp, ‘Robodebt: the Federal Court Ruling and What It Means for Targeted Welfare Recipients’, The Guardian (online, 28  November 2010) . For an exploration of the issues, see Terry Carney, ‘Robo-debt: Challenges and Opportunities for Administration and Accountability’ (2019) 5(1) Social Security Rights Review . Katherine Prygodicz v Commonwealth of Australia (Federal Court of Australia, Murphy J, VID1252/2019) .

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CHAPTER 5 THE LEGAL PROFESSION AND PROFESSIONAL LEGAL PRACTICE AND ETHICS

These and a host of other mechanical or legal issues raise new challenges for those entering the legal profession. Despite the novelty of the technologically-enhanced landscape, the traditional obligations on members of the profession outlined below continue to apply to guide appropriate conduct by lawyers. ENTRY TO THE LEGAL PROFESSION The successful completion of a law degree, or a diploma of law offered by a legal profession admissions authority, opens the door for entry into the legal profession. Those who practise law do so as members of a profession. Traditionally the learned professions were the three vocational occupations of law, medicine and theology. Today, the term ‘profession’ is not so restricted, but what the above professions do have in common is that their practitioners have an obligation to serve the public.That is one of several features that distinguish a profession from other occupations. Individuals are said to become members of a profession as a matter of vocation or calling, and that calling is to serve others. As professionals, lawyers have responsibilities and duties to the courts, to their clients, to the legal profession and to the public. Membership of the legal profession indicates to the community that the person has legal knowledge and skill, but also professional judgement and a grasp of legal ethical rules, including what is regarded by the profession as responsible professional conduct. Former Chief Justice Sir Owen Dixon once shared in a lecture the following insights into professionalism:

5.15

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It is the essence of a profession that its members master and practise an art. The art must depend on a special branch of organised knowledge and be indispensable to the progress or maintenance of society, and the skill and knowledge of the profession must be available to the service of the State or the community. Experience has shown in every age that a profession cannot proceed without high professional standards. Special knowledge is always suspected by those who do not share it. Unless high standards of conduct are maintained by those who pursue a profession requiring great skill begotten of special knowledge, the trust and confidence of the very community that is to be served is lost and thus the function itself of the profession is frustrated.14

GENERIC PROFESSIONAL CONDUCT REQUIREMENTS Good fame and character In order to practise law an applicant must be able to declare, and provide referees prepared to declare, that the applicant for admission is of good fame and character. Students intending to enter practice should be aware of these requirements from the beginning of their law studies and govern their conduct accordingly throughout their studies. On graduation and prior to admission, universities or law admission authorities may be asked to provide any records of a student that reveal wrongdoing during their studies. A person who has been disciplined, for example, for plagiarism or cheating in an examination, or who has been excluded from a course on serious behavioural grounds, may be refused admission. Before admission, an intending lawyer must declare any occasion on which they have been dealt with by a court for a criminal offence. Even minor offences (apart from 14

5.17

5.18

Sir Owen Dixon, ‘The Profession of Accountancy’ in Jesting Pilate (Lawbook, 1965) 192.

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5.20

ombudsman: someone appointed to hear complaints, against both government and private sector bodies which provide services such as denial of government benefits, allowances finance, electricity or water

infringements that have not involved court proceedings, such as parking tickets) must be disclosed. It is wise for students to be circumspect in their behaviour during their legal training so they can confidently swear, and have others confirm, that they meet the prerequisites for entry into the profession. Certifying authorities do not look kindly on later discovery of a misrepresentation of pre-admission behaviour by an existing member of the profession, and failure to disclose leaves the person open to future disciplinary proceedings. The disgraced former barrister at the centre of the ‘Lawyer  X’ scandal conceded that, had she disclosed that she had been implicated, when a student, in a drug bust at her shared f lat, she may not have been admitted as a lawyer.15 A key attribute of the professions is that they are autonomous or self-regulating. That means that it is legal admission authorities, law societies (for solicitors) and bar associations (for barristers) that variously certify a person’s suitability for entry to the profession and issue practising certificates.These bodies, composed of respected members of the profession, are also responsible for the maintenance of professional standards. As part of that role they exercise disciplinary sanctions against existing members of the profession. These professional bodies generally take their responsibilities seriously. However, there have been some controversial cases, such as the Wendy Bacon litigation. In the late 1970s Ms Bacon, a political activist and journalist, had applied to join the New South Wales Bar. Some years prior to her application she provided bail for an accused she was helping to defend. She told the court hearing her admissions appeal that she borrowed the sum from a friend and had not provided it herself. The court found the sum had come from a different source and Ms Bacon’s deceit was fatal to her application to join the Bar, although the vote was apparently a close one.16 Reynolds JA raised the ‘question of whether a person who aspires to serve the law can be said to be fit to do so when it is demonstrated that in the zealous pursuit of political goals she will break the law if she regards it as impeding the success of her cause’.17 There has been criticism of the fact that the profession regulates itself. As a result the regulatory and disciplinary functions of the professional bodies have been supplemented in some jurisdictions by independent ‘watchdogs’ such as the Commissioner for Uniform Legal Services Regulation in New South Wales,18 a kind of ombudsman. The role includes receipt of complaints against the legal profession. Similar bodies have been established in other Australian jurisdictions.19 Lay membership of professional bodies has been included in the disciplinary bodies in some jurisdictions,20 while in others the disciplinary function is now performed by the relevant civil and administrative tribunal.21 15

16 17 18 19

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Australian Associated Press, ‘Nicola Gobbo Grilled Under Oath About How She Became Lawyer  X’, The  Guardian (online, 4  February 2020) . Re B [1981] 2 NSWLR 372. Ibid at 402. Legal Profession Uniform Law (NSW) (NSW) pts 3.6, 8.3, sch 2. Legal Profession Act 2007 (Qld) pt 7; Legal Profession Uniform Law Application Act 2014 (Vic) pt 3 divs 2–4, sch 1. Legal Profession Act 2006 (NT) ch 4; Legal Practitioners Act 1981 (SA) pt 6 div 2; Legal Profession Act 2007 (Tas) ch 4; Legal Profession Uniform Law Application Act 2014 (Vic) pt 3 div 2; Legal Profession Act 2008 (WA) pt 16 div 2. Legal Profession Act 2006 (ACT) ch 4 pt 4.7; Legal Profession Uniform Law (NSW) (NSW) s 101, pts 5.4, 5.6; Legal Profession Act 2007 (Qld) pt 7; Legal Profession Uniform Law Application Act 2014 (Vic) pt 2, s 10; Legal Profession Act 2008 (WA) pt 13 div 10.

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CHAPTER 5 THE LEGAL PROFESSION AND PROFESSIONAL LEGAL PRACTICE AND ETHICS

Level of knowledge, training and skill Certification that a person has met the knowledge standard is the responsibility of tertiary legal education institutions, and legal admission or studies boards. In 1992 the Law Admissions Consultative Committee decided that 11 areas of academic study — administrative law, civil procedure, company law, contracts, criminal law and procedure, equity (including trusts), ethics and professional responsibility, evidence, federal and state constitutional law, property, and torts — are the foundational subjects for admission to the profession in Australia. These are the so-called ‘Priestley 11’ law subjects, named after the then chair of Committee, Justice LJ (‘Bill’) Priestley. Successful completion of the ‘Priestley 11’ is regarded as necessary to ensure that the practitioner has the minimum level of competence to provide the service expected of a member of the legal profession. In addition to these academic qualifications, the aspiring lawyer also needs a certificate, or other qualification, in practical legal training. Historically, that training required the completion of articles — that is, supervised practice in a law firm over a number of years — as the only means of satisfying the requirement. In most states and territories this avenue, as the exclusive route to obtaining a practising certificate, has been abandoned. Today, for the most part, students enrol in courses offered by training authorities, law societies or tertiary institutions, which have substituted for the former articles. The courses comprise a mix of practical legal training and complementary lectures; on successful completion, the student receives a certificate or graduate diploma in practical legal training. Those wishing to be admitted to the Bar must pass a Bar examination and then enter into a pupillage arrangement which involves ‘reading’ with a senior barrister or ‘pupil master’, coupled with a period when the would-be barrister’s legal advices or court representation work is supervised by their pupil master.

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Professional conduct rules Knowledge, skill and training, however, are not all that is required for admission to the profession. Personal behaviour and attributes are also taken into account. These are evident in the national conduct rules which have been developed by each arm of the legal profession, namely solicitors and barristers. The Law Council of Australia, the peak body for the Australian legal profession, developed the Australian Solicitors’ Conduct Rules 2011 (‘Solicitors Rules’), updated in 2015 and reviewed in 2018.22 The Solicitors Rules have been adopted as the Legal Profession Uniform Law in New South Wales, and Victoria,23 and is before the Western Australian Parliament.24They provide a single, uniform set of professional conduct rules that govern solicitors’ professional dealings with all those to whom they owe professional duties. The rules list the factors to be taken into account in deciding whether someone is a fit and proper person to practise law, including whether a person has: • complied with the solicitor’s paramount duty to the court and the administration of justice; 22

23 24

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Law Council of Australia, Review of the Australian Solicitors’ Conduct Rules (Discussion Paper, 1 February 2018) 5. Legal Profession Uniform Law (NSW) (NSW); Legal Profession Uniform Law Application Act 2014 (Vic). Legal Profession Uniform Law Application Bill 2020 (WA).

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• • •

5.26

acted in the best interests of their clients; been honest and courteous in all dealings in the course of legal practice; delivered legal services competently, diligently and as promptly as reasonably possible; • avoided any compromise to their integrity and professional independence; and • complied with the rules and the law.25 Barristers also have conduct rules, the Australian Bar Association’s model Barristers’ Conduct Rules,26 currently enacted only in New South Wales (‘Barristers Rules’).27 The objects of these rules are to ensure that barristers: (a) act in accordance with the general principles of professional conduct, (b) act independently, (c) recognise and discharge their obligations in relation to the administration of justice, and (d) provide services of the highest standard unaffected by personal interest.28

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5.27

DUAL SOURCE OF PROFESSIONAL DUTIES The barristers and solicitors’ conduct rules illustrate that professional conduct is a product of knowledge of the law and an understanding of ethics. Some of these requirements — such as compliance with duties in relation to the administration of justice, including not being fraudulent, dishonest or deceitful — are imposed under the common law or by statute, including specific legislation regulating the profession.29 But moral or ethical requirements such as acting with integrity, independence, impartiality, and being personally blameless are requirements of a higher order. The professional rules contain both legal and ethical standards, but these are treated separately here for ease of understanding. Maintenance of these standards is necessary to ensure that actions by legal practitioners maintain public confidence in the legal profession and the justice system, and do not bring the profession into disrepute. A rationale for these professional standards is illustrated in this classic comment by Griffith CJ in Melbourne Steamship Co Ltd v Moorehead30 when he lamented the taking of a technical pleading point by the Crown: I am sometimes inclined to think that in some parts — not all — of the Commonwealth, the old-fashioned, traditional, and almost instinctive, standard of fair play to be observed 25 26

27 28 29

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Law Council of Australia, Australian Solicitors’ Conduct Rules (August 2015) (‘Solicitors Rules’) cll 3, 4. Australian Bar Association, ‘About Us’(Web Page) (which, under Resources, lists the ‘Legal Profession Uniform Conduct (Barristers) Rules’, which links to the NSW legislation). Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) (‘Barristers Rules’). Ibid r 3. These objects are expanded in a set of Principles at r 4. Australian Capital Territory: Legal Profession Act 2006 (ACT); New South Wales: Legal Profession Uniform Law (NSW) (NSW) and Professional Standards Act  1994 (NSW); Northern Territory: Legal Profession Act  2006 (NT) and Professional Standards Act  2004 (NT); Queensland: Legal Profession Act  2007 (Qld) and Professional Standards Act 2004 (Qld); South Australia: Legal Practitioners Act 1981 (SA) and Professional Standards Act 2004 (SA); Tasmania: Legal Profession Act 2007 (Tas) and Professional Standards Act 2005 (Tas); Victoria: Legal Profession Uniform Law Application Act 2014 (Vic) and Professional Standards Act 2003 (Vic); Western Australia: Legal Profession Act 2008 (WA) and Professional Standards Act 1997 (WA). (1912) 15 CLR 333 (‘Moorehead’).

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CHAPTER 5 THE LEGAL PROFESSION AND PROFESSIONAL LEGAL PRACTICE AND ETHICS

by the Crown in dealing with subjects, which I learned a very long time ago to regard as elementary, is either not known or thought out of date. I should be glad to think that I am mistaken.31

Professional conduct A lawyer has duties to multiple bodies and people, including their clients, the courts, fellow practitioners, and those with whom the person has a professional relationship.32 Underpinning these duties is the notion inherent in professional practice of service to the public: see Dixon CJ at 5.16. The legal profession should not be regarded solely as a business but as a service. Street CJ explained the distinction:

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A trade or business is an occupation or calling in which the primary object is the pursuit of pecuniary gain. Honesty and honourable dealing are, of course, expected from every man, whether he be engaged in professional practice or in any other gainful occupation. But in a profession, pecuniary success is not the only goal. Service is the ideal, and the earning of remuneration must always be subservient to the main purpose.33

DUTY TO CLIENT A lawyer’s duty to a client is based on a legal obligation to provide legal services, including advice, in all aspects of a matter covered by a retainer. For example, services in relation to a client who is a minor is to represent the child and in doing so act in the child’s best interests. Achievement of that goal in practice requires the lawyer to meet with the child to gain the child’s trust, and, if feasible, to elicit the child’s views of its best interests. The lawyer is then able to present those interests to the court or other body. The duties are imposed because of the ‘client’s position of dependence, lawyers’ special training and experience, and the high degree of trust clients are entitled to place in lawyers’.34 The example illustrates another aspect of legal practice, namely, that in meeting the obligation to a client, conflicts may arise. Thus the ‘best interests’ requirement may bring the child’s lawyer into conflict with the ideas, practices and values of the parents or professionals dealing with the child. Handling that conflict may call on the personal judgement and integrity elements of the lawyer’s role. Specific duties to all clients are the duty to be competent and to perform services within a reasonable time. Competence refers to the lawyer’s technical legal knowledge in the fields of practice in dispute. For example, when a lawyer is representing the best interests of their client, the lawyer is required to have an understanding of the nature of the ‘best interests’ test at law and the limits on the application of the principle.These have been established in the areas of family law, guardianship and enduring powers of attorney. A lawyer who is engaged by a client is expected to be able to advise on all aspects of the matter. If unable to fulfil this requirement, the lawyer should obtain advice from another

31 32

33 34

5.29 retainer: contains the terms of engagement of a legal practitioner to undertake legal proceedings or provide legal advice

5.30

Ibid 342. Solicitors Rules (n  25) and Commentary to the Solicitors’ Conduct Rules (August 2013) 3. Re Foster (1950) 50 SR (NSW) 149, 151. Gino E Dal Pont, Lawyers’ Professional Responsibility (Lawbook, 6th ed, 2016) 107–8.

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appropriate specialist. Failure to do so could result in the practitioner being liable to the client for negligence or breach of contract.35 OBLIGATIONS WHEN ACTING FOR GOVERNMENT Model litigant rules 5.31

A practitioner’s professional and ethical duties are especially high when that client is the government. The public expects government representatives to act fairly and as a moral exemplar. McHugh J said of this duty: [T]he relationship between the modern state and its citizens is so different in kind from that which exists between private citizens that rules worked out to govern the contractual, property, commercial and private confidences of citizens are not fully applicable where the plaintiff is a government or one of its agencies. Private citizens are entitled to protect or further their own interests, no matter how selfish they are in doing so … But governments act, or at all events are constitutionally required to act, in the public interest.36

5.32

These obligations on lawyers acting for government arise when handling civil, including administrative, claims and when conducting litigation. They are a product of the greater resources available to government, the public’s trust that the government and its legal representatives exercise their powers honestly and fairly, the absence of government’s private interests in the outcome, and the need for public confidence in government officials. The expectations are superimposed on the existing high standards of behaviour and ethical duties of the legal profession in general. These heightened obligations are spelled out in the Commonwealth’s Model Litigant Rules found in the Legal Services Directions 2017 (Cth) (‘Directions’)37 that apply to lawyers or law firms acting for government.38 Being a ‘model litigant’ requires that the lawyers acting on behalf of the Commonwealth and its agencies act with complete propriety, fairly and in accordance with the highest professional standards. The extent of the obligations is exemplified by a note to the Directions which states:

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The obligation to act as a model litigant may require more than merely acting honestly and in accordance with the law and court rules. It also goes beyond the requirement for lawyers to act in accordance with their ethical obligations.39

Compliance requires, for example, what is described as ‘fair play’40 in the conduct of litigation. This includes not taking technical procedural points unnecessarily; minimising cost and delay (for example, by preferring alternative dispute techniques over litigation to resolve disputes); not requiring the other party to prove a matter 35 36

37

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Snowkowski v Jones (Legal Practice) [2008] VCAT 1943. A-G (UK) v Heinemann Publishers Australia Pty Ltd (1987) 10 NSWLR 86, 191 (‘Spycatcher Case’).The case concerned an attempt by the British Government to prevent the publication of a book on the British Secret Service by one of its former officers, Mr Peter Wright. Legal Services Directions 2017 (Cth) (‘Directions’). The Model Litigant Rules are authorised by the Judiciary Act  1903 (Cth) pt  VIIIC. See  also the Guidance Notes and Guidelines issued by the Office of Legal Coordination, Attorney-General’s Department (Cth), Legal Services Directions and Guidance Notes (Web Page) . Judiciary Act 1903 (Cth) s 55ZF. Directions (n 37) app B cl 2 n 3. Moorehead (n 30) 342 (Griffiths CJ).

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CHAPTER 5 THE LEGAL PROFESSION AND PROFESSIONAL LEGAL PRACTICE AND ETHICS

that the Commonwealth knows to be true; offering assistance to self-represented opponents; and not taking advantage of the greater knowledge and expertise of government lawyers or legal representatives when dealing with a newcomer to legal proceedings.41 These injunctions do not prevent government lawyers from taking all legitimate steps and using litigation firmly and properly to achieve lawful outcomes and to protect public revenue. That is, the Model Litigant Rules do not prevent the Commonwealth and its agencies from acting ‘fully and firmly’ to defend claims in order to protect the Commonwealth’s interests.42 Similar obligations are found in model litigant guidelines that apply to lawyers doing government work in most states and the two mainland territories.43 A controversial example of compliance with these standards occurred in the Voyager litigation. The HMAS Voyager, a destroyer, collided with the HMAS Melbourne, an aircraft carrier, during an exercise at sea which resulted in the loss of 82 lives. There had been two royal commissions into the disaster, with the result that the period for bringing legal actions had expired. In the course of the litigation by those injured and relatives of those who had died, the Commonwealth initially announced it would waive its right to invoke the statute of limitations and would not argue that the plaintiffs’ actions were out of time. Subsequently the Commonwealth chose to strictly enforce those limitations. The change of approach was challenged in the High Court, which decided, by majority, that the Commonwealth was not free to renege on its promise not to rely on the statute of limitations, and that rights — here, the right to litigate — could arise from assurances made by the government in the early stages of litigation.44

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Duty to assist A specific example of the additional obligations on lawyers acting for government is the statutory duty on those appearing before the Administrative Appeal Tribunal to ‘use [their] … best endeavours to assist the Tribunal to make its decision in relation to the proceeding’.45 Examples of ‘best endeavours’ include making relevant information promptly available to the Tribunal even when not raised by the other party; not concealing new, relevant material even if it disadvantages the case of the government agency; and providing the necessary evidence, for example, for decisions based on specialist scientific information such as an application for a patent.46

41

42 43

44 45

46

5.33

statute of limitations: provides for time limits for commencement of legal proceedings which, if not complied with, are barred

5.34

Kenny v South Australia (1987) 46 SASR 268, 273 (King CJ); Yong Jun Qin v Minister for Immigration and Ethnic Affairs (1997) 75 FCR 155, 166; DPP (Cth) v Saxon (1992) 28 NSWLR 263, 268 (Kirby P). Directions (n 37) sch 1 cl 4.3 n 1. Attorney-General (ACT) Law Officer Model Litigant) Guidelines 2010 (No 1) (NI2010-88, 24  February 2010); Department of Premier and Cabinet (NSW) Model Litigant Policy for Civil Litigation (M2016-03, 2016); Department of Attorney-General and Justice (NT) Revised Model Litigant Policy (19 September 2017): Department of Justice and Attorney-General (Qld) Model Litigant Principles (4 October 2010); Department of Justice and Community Safety (Vic) Model Litigant Guidelines (2011). Commonwealth v Verwayen (1990) 170 CLR 394. Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’) s 33(1AA). See also Re General Merchandise and Apparel Group P/L and CEO of Customs and Australian Weaving (Party joined) [2009] AATA 988, (2009) 114 ALD 289; Re Whitlock and Comcare [2019] AATA 1911. The duty is imposed not only on government lawyers but on all parties: AAT Act s 33(1AB). Directions (n 37) app B cl 4.The applicant is also under an equivalent obligation: AAT Act (n 45) s 33(1AB).

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‘Genuine’ steps 5.35

5.36

5.37

The obligation to minimise the cost of civil litigation under model litigant rules has motivated consistent moves in recent years to settle matters prior to a hearing. Accordingly, some jurisdictions have introduced a requirement in civil litigation that the parties, including their legal representatives, take ‘genuine’47 steps to settle matters without commencing litigation. What steps are ‘genuine’ involves the party’s sincerity, taking into account ‘the person’s circumstances and the nature and circumstances of the dispute’.48 Examples of ‘genuine’ steps for the purposes of litigation in the Federal Court and the Federal Circuit Court include identifying the issues and offering to discuss them in order to reach a negotiated outcome; disclosing documents held by government to assist the process; and, where possible, facilitating alternative dispute resolution. This is in line with the increasing emphasis on the resolution of disputes by methods other than litigation: see 6.49ff. Failure to take such steps may result in a reprimand by the courts or a possible costs order against the offending party, and breaches may be noted in the annual report of the relevant justice department.49 The reprimand sanction is illustrated by LVR (WA) Pty Ltd v Administrative Appeals Tribunal50 in which adverse comments were made by the Full Court of the Federal Court against the legal representatives for the Commonwealth agency, the Australian Taxation Office.The legal practitioners had failed to disclose to the judge at first instance pertinent facts concerning the initial decision by the Administrative Appeal Tribunal.The judgment of the Full Court noted that government must be a model litigant at all times — before, during and after litigation — citing the Directions. That means government should act with complete propriety, fairly and in accordance with the highest professional standards. … In our opinion, counsel representing the executive government must pay scrupulous attention to what the discharge of that obligation requires, especially where legal representatives who are independent of the agency are not involved in the litigation.51

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5.38

DUTY TO COURT Admission to practice by a particular court results in the practitioner becoming an officer of that court. As a consequence the lawyer’s duty to the court is an overriding one and trumps any duty to the client or others to whom they have professional obligations. Mason CJ said of this obligation on barristers: The performance by counsel of his paramount duty to the court will require him to act in a variety of ways to the possible disadvantage of his client. Counsel must not mislead

47

48 49

50 51

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See, eg, Civil Dispute Resolution Act 2011 (Cth) ss 3, 4(1A). A similar obligation applies in New South Wales  (Legal Profession Uniform Law (NSW) s  34) but has been tried and abandoned in Victoria. The ‘reasonable steps’ obligation in Victoria applies to principals of law firms, their practices and to other bodies such as partnerships offering legal services : Legal Profession Uniform Law Application Act 2014 (Vic) Sch 1 cll 34, 35, 174, 470. Civil Dispute Resolution Act 2011 Act (Cth) s 4(1A). Directions (n 37) sch 1 cl 14. See, eg, Superior IP International v Ahearn Fox Patent and Trade Mark Attorneys [2012] FCA 282; Superior IP International v  Ahearn Fox Patent and Trade Mark Attorneys (No  2) [2012] FCA 977; Seaman v Silvia (No 2) [2018] FCA 363; Federal Deputy Commissioner of Taxation v Clear Blue Developments Pty Ltd (No 2) (2010) 190 FCR 11; Dunkerley v Comcare [2020] FCAFC 8. [2012] FCAFC 90 (‘LVR (WA)’). Ibid [42].

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CHAPTER 5 THE LEGAL PROFESSION AND PROFESSIONAL LEGAL PRACTICE AND ETHICS

the court, cast unjustifiable aspersions on any party or witness or withhold documents and authorities which detract from his client’s case. And, if he notes an irregularity in the conduct of a criminal trial, he must take the point so that it can be remedied, instead of keeping the point up his sleeve and using it as a ground for appeal. It is not that a barrister’s duty to the court creates such a conflict with his duty to his client that the dividing line between the two is unclear.The duty to the court is paramount and must be performed, even if the client gives instructions to the contrary. Rather it is that a barrister’s duty to the court epitomizes the fact that the course of litigation depends on the exercise by counsel of an independent discretion or judgement in the conduct and management of a case in which he has an eye, not only to his client’s success, but also to the speedy and efficient administration of justice. 52

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Where it appears this duty may have been breached, the court will refer the practitioner to the appropriate disciplinary body and a costs order can also be made against the practitioner if there is found to be a breach.53 DUTY TO FELLOW PRACTITIONERS AND THIRD PARTIES Dealings with other practitioners should be honest, fair and courteous. It is this obligation that lies behind the customary reference to practitioners acting for the opposing party as ‘my friend’ or, even more fulsomely, ‘my learned friend’. This form of address epitomises the degree of civility expected towards fellow practitioners, an objective not always achieved in the heat of a hard-fought matter. Nonetheless, courts and tribunals are entitled to insist on a reasonable level of politeness and practitioners can face disciplinary sanctions for persistent breach. There is also a degree of self-interest in observing this tenet of behaviour, since a lawyer will frequently need the cooperation of fellow practitioners in other, later, matters and discourtesy or an absence of fair dealing can jeopardise that goodwill. A significant facet of the duty to be honest and fair is not to mislead a fellow practitioner, and to be honest and accurate in written exchanges of information and representations, including in negotiations. These duties represent the public interest in furthering the administration of justice.A lawyer can be tempted not to reveal information or not to do so fully, in the desire to assist the client. A lawyer will often represent the interest of their client when dealing with third parties, for example, principals negotiating contracts or agency agreements, or sale or lease of property. The lawyer must be careful to act according to instructions, and must ensure that the third party is aware that they are acting in the matter as an agent and not as a principal. The practitioner, through experience, may recognise the sense, fairness or wisdom of the negotiated outcome or of an offer, but must comply with the client’s wishes if that person refuses the outcome or offer. The practitioner should also be conscious of the need to avoid conf licts of interest in those circumstances. For example, the practitioner may have a personal or commercial relationship with the third party. If so, the practitioner should at the least declare that interest before agreeing to act for the client, or else decline the role. The practitioner should also eschew other than

52 53

5.39

5.40 principal: a person who uses another (an ‘agent’) to represent them or take action on their behalf in a legal transaction

agent: see ‘principal’

Giannarelli v Wraith (1988) 165 CLR 543, 556. LVR (WA) (n 50).

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professional contact with friends in the profession during litigation in which both are on opposing sides.

5.41

DUTY TO COMMUNITY The reputation of a member of the profession depends on their estimation in the community and this should be fostered assiduously by diligence, competence, and guarded jealously from being tainted by any activities which may lead to disrepute. Practitioners must not advertise their services in a manner that would bring the profession into disrepute. They should be careful to avoid behaviour in social situations which falls below social norms. They should be circumspect in their choice of social contacts and non-professional activities including support for or involvement with community associations.

Ethics 5.42

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5.43

5.44

The term ‘ethics’ is based on the Greek word ethikos meaning ‘moral character’, itself derived from ethos meaning ‘custom’. Ethics was the subject of some of the principal writings of the famous Greek philosophers such as Plato and Aristotle. The essence of the notion is captured in Aristotle’s Nichomachean Ethics which discusses the qualities that single out a virtuous character — a person who acts only on high moral principles and will, accordingly, enjoy the greatest happiness. In Aristotle’s view, achievement of ethical behaviour is the ambition to which humans should aspire. LEGAL ETHICS Legal ethics are the principles and values reflected in the conduct rules developed for the legal profession — the Solicitors Rules and Barristers Rules discussed at 5.24–5.26) — which regulate a lawyer’s behaviour, alongside common law and regulatory duties, and the individual’s personal sense of ethics and of honour. For example, the Solicitors Rules list duties such as to be ‘honest and courteous in all dealings’ and to avoid ‘compromise to their integrity and professional independence’.54 The possession of these personal attributes is exemplified by the requirement that a lawyer is a ‘fit and proper person’ or ‘of good fame and character’ and desirably that they have developed a strong moral compass. ETHICAL DECISIONS Ethical issues like those discussed above do not lend themselves to easy solutions. It is not realistic to expect lawyers immediately to know how to resolve all ethical issues that arise. Seeking advice from more experienced practitioners is a wise step. An ethical and professional lawyer is one who is aware of the competing duties and responsibilities, and makes a genuine attempt to comply with them. This requires individual engagement and judgement, and, in some situations, self-sacrifice. The lawyer’s deliberations should exclude considerations of self-interest. An ethical decision may consume time and other resources, alienate clients, harm relations with one’s colleagues, and be bad for one’s 54

136

Solicitors Rules (n 25).

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career.55 However, these consequences should be ignored. They are irrelevant to the ethical demands of the situation. These principles are designed to foster confidence in members of the public that those certified to practise can be trusted to provide legal services in a competent, professional and ethical manner. This is illustrated by the following example. If a lawyer who is not a tax specialist is offered a matter that has tax implications, the ethical duty of diligence and competence imposes an obligation on the lawyer to inform the client of the need to obtain the services of someone who can provide that aspect of the advice or service, even if this risks losing the client and jeopardising the lawyer’s fee. Legal ethical conduct by legal practitioners is required within the same relationships as are covered by the professional conduct rules, namely, the court, the client, other legal practitioners, and the wider community.There is a potential ethical (and legal) dimension in each of these relationships. A frequently encountered ethical element arises when the lawyer is faced with a choice between competing duties to different parties. For example, in the course of their work, members of the profession commonly acquire information about events and people’s practices and activities. That information is confidential. It has usually been shared by the client on the basis that their legal representative, as a member of the profession, can be trusted; that confidential information divulged for the purpose of furthering the client’s cause will be respected; that the lawyer will avoid any conflict of interest based on that knowledge which could disadvantage their client; and that the information will be used only to further the interests of the client. The expected level of trust means the practitioner should decline to act in a later matter for another party which involves breaching those expectations. Equally, a lawyer should not use such information in another matter for the same client without consent. The possibility of breach of these and similar ethical principles regularly confronts lawyers. Rules developed by bar associations and law societies assist in handling such conflicts but can never substitute for good professional judgement and the practice of sound ethical principles.

5.45

5.46

SOURCES OF ETHICAL CONFLICT Duty to court versus duty to client The key obligation of a lawyer to the court is that legal professionals must not knowingly make misleading statements to the court on any matter. This obligation may be at odds with furthering a client’s interests: see  5.29. For example, a common ethical issue is whether a legal representative should actively dissuade a client from disclosing information that might indicate wrongful conduct on the client’s part. If that knowledge means that the legal representative must discontinue their representation of the client, the legal representative may not only be letting the client down but may also cause the person to incur further costs. In these circumstances there is an incentive to avoid obtaining that information in order to retain the work and provide the assistance of which the lawyer is capable — clearly raising an ethical dilemma for the lawyer.

55

5.47

Robert Rubinson, ‘Attorney Fact-Finding, Ethical Decision-Making and the Methodology of Law’ (2001) 45 St Louis University Law Journal 1185, 1220–2.

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Commercial imperatives versus duty to profession 5.48

Today, contrary to its professional objectives, law has become a business, a development decried by Street CJ: see 5.28. The commercial imperatives of meeting financial targets and furthering the business interests of a firm or individual at the expense of those of their competitors are often pressing. These commercial imperatives encourage members of the profession to focus on financial enrichment at the expense of disinterested legal advice. Where that focus means that lawyers are reluctant to take on unprofitable work or provide legal services pro bono, this reflects poorly on the profession. Pressure by law firms on their staff to maximise profits is ever present and may create an ethical dilemma for legal practitioners. In particular, financial incentives may lead to the practitioner taking a more adversarial approach than is warranted in order to win a matter, contrary to the ethical principle of courtesy and fair dealing with other members of the profession. As the discussion of professional conduct at 5.39–5.40 indicates, to so act is no longer to be faithful to the principle underpinning the law as an honourable profession. Duty to community versus personal interests

5.49

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5.50

The ethical imperatives on lawyers require that they exhibit a high level of integrity in their general dealings in the community. Behaviour falling below that expected can damage the reputation of the profession as a whole. They should not use their position as lawyers to gain an advantage. For example, a lawyer should not trade on their professional position to obtain membership of an organisation, or to add lustre to a public presentation on matters outside the law, or to dissuade someone from making a justifiable claim against them for fear of being faced with superior legal knowledge and contacts. Those in senior positions in the profession should not overstep the limits of collegial interaction in their relationships with junior colleagues, or, as in the Lawyer X situation, have duties to report to both sides. ETHICS OF CRIMINAL PROSECUTION Prosecutions in criminal matters are undertaken by police or government prosecutors. As the earlier discussion at 5.31ff indicates, special rules apply where the government is a litigant. While most litigants in a dispute may act in self-interest, the government should primarily operate in the public interest, and should not benefit unduly from its resource advantage over most opponents. In some circumstances, the government’s higher duty may hamper its efforts to win disputes. This kind of reasoning ‘applies a fortiori … in criminal proceedings’.56 In addition to the fact that the prosecutor represents the government and generally has greater resources than defendants, regard must be had to the asymmetry in what parties have at stake. The defendant, if convicted, is likely to suffer damage to reputation, relationships and career prospects, and may be incarcerated.As Kirby J observed in Mallard v The Queen (‘Mallard’),57 ‘special requirements … descend upon a prosecutor, who represents not an ordinary party but the organised community committed to the fair trial of criminal accusations and the

56 57

138

Moorehead (n 30) 342 (Griffiths CJ). (2005) 224 CLR 125 (‘Mallard’).

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CHAPTER 5 THE LEGAL PROFESSION AND PROFESSIONAL LEGAL PRACTICE AND ETHICS

avoidance of miscarriages of justice’.58 The New South Wales Prosecution Guidelines, for example,59 emphasise that ‘[a] prosecutor is not entitled to act as if representing private interests in litigation’.60 ‘A prosecutor is a “minister of justice”. The prosecutor’s principal role is to assist the court to arrive at the truth and to do justice between the community and the accused according to law and the dictates of fairness’.61 One aspect of the prosecution’s higher ethical responsibility concerns disclosure of evidence.The Barristers Rules provide that ‘[a] prosecutor must disclose to the opponent as soon as practicable all material … available to the prosecutor or of which the prosecutor becomes aware which could constitute evidence relevant to the guilt or innocence of the accused’.62 This rule was breached in various respects by the prosecutor in Mallard. Perhaps the gravest breach was in relation to the murder weapon. The prosecution case was that the defendant had killed the victim with a wrench. However, the police had conducted experiments which led a forensic expert to conclude that the murder weapon could not have been a wrench.63 Kirby J concluded that ‘the many instances of prosecution nondisclosure and of the suppression of material evidence results in a conclusion that the appellant’s trial cannot enjoy public confidence’.64 The conviction was quashed. A related principle governing the prosecution relates to the calling of witnesses. Under the Barristers Rules, ‘[a] prosecutor must call as part of the prosecution’s case all witnesses … whose testimony is admissible and necessary for the presentation of all of the relevant circumstances’.65 This includes witnesses whose evidence undermines the prosecution case. In Gilham v The Queen66 the Court of Criminal Appeal of New South Wales held that the prosecutor had breached this obligation. According to the prosecution the defendant had murdered his parents and his brother by stabbing. The defendant had previously admitted to the murder of his brother, but argued that it was his brother who had stabbed his parents, and it was his discovery of this that had provoked him to stab his brother. All victims had suffered multiple stab wounds to the upper torso. Part of the prosecution case was that ‘the degree of similarity’ between the fatal attacks was ‘extraordinary’ and ‘remarkable’; it was ‘inconceivable that a coincidence like that could happen’.67 In other words, the three attacks must have been carried out by the same individual, namely the defendant. However, during the investigation and in earlier proceedings, a forensic pathologist, Professor Cordner, had rejected this theory, suggesting that there was nothing particularly unusual or distinctive in the three sets of stab wounds. The prosecution was aware of Cordner’s view and yet did not call him as a witness. The Court described it as a ‘fundamental defect’ that the decision not to call Cordner was ‘expressly based on the fact that he held a different opinion from that advanced by the 58 59

60 61 62 63 64 65 66 67

5.51

5.52

Ibid 156. In 1990, a uniform prosecution policy was adopted by the Directors of Public Prosecutions of all states and the Commonwealth of Australia. These can be found on websites for the Offices of the Directors of Public Prosecutions in all jurisdictions. Prosecution Guidelines of the Office of the Director of Public Prosecutions for New South Wales (2007) Guideline 2. Ibid. Barristers Rules (n 27) r 87. Mallard (n 57) 146. Ibid 157. Barristers Rules (n 27) r 89. [2012] NSWCCA 131. Ibid [319]–[324].

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witnesses the Crown intended to call’.68 The Court concluded that ‘[t]he failure to call Professor Cordner to give evidence that in his opinion that analysis lacks a legitimate scientific foundation constitutes a miscarriage of justice’.69

5.53

5.54

ETHICS OF CRIMINAL DEFENCE The previous section discussed the overriding duty that prosecutors owe to the pursuit of truth and justice. On occasion, this duty may require them to disclose or present evidence that damages the prosecution case. However, where defence barristers are concerned, some take the view that they owe a higher obligation to their clients relative to their duties to the court, to their opponent, and to the pursuit of truth and justice.70 The argument supporting this view is essentially the converse of that differentiating the prosecution’s duties. Criminal defendants typically have few resources — financial, social and educational — relative to the police and prosecution, and yet their liberty and reputation may be at risk. ‘Only through zealous advocacy can [defendants be provided] meaningful access to justice.’71 Admittedly, it is not only criminal defendants who pursue high-stakes litigation against opponents with far greater resources.72 The same is true of workers who have contracted mesothelioma from asbestos exposure in the work place; farmers fighting against the exploitation of coal-seam gas on their properties; and asylum seekers threatened with deportation. All would place considerable reliance on their barristers’ duty to ‘promote and protect fearlessly and by all proper and lawful means the client’s best interests to the best of the barrister’s skill and diligence, and do so without regard to his or her own interest or to any consequences to the barrister or to any other person’.73 However, the criminal defence lawyer is recognised as the ‘archetype of the advocate in the adversary system’.74 As these discussions illustrate, defence counsel may face difficulties squaring the principle of full and fearless representation with their duties to the court and their opponents, and potentially with their own views on what is right. In his defence of Queen Caroline in 1820, Lord Brougham famously declared that

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an advocate, by the sacred duty of his connexion with his client, knows, in the discharge of that office, but one person in the world — that client and none other.To save that client by all expedient means, to protect that client at all hazards and costs to all others, and among others to himself, is the highest and most unquestioned of his duties; and he must not regard

68 69 70 71

72 73 74

140

Ibid [404]. Ibid [412]. See also Pell v The Queen [2020] HCA 12. United States v Wade 388 US 218, 256 (1967). Abbe Smith, ‘The Difference in Criminal Defense and the Difference it Makes’ (2003) 11 Washington University Journal of Law and Policy 83, 136; see also Monroe Freedman and Abbe Smith, Understanding Lawyer’s Ethics (LexisNexis, 4th ed, 2010). For the contrary view see, eg, William H Simon, ‘The Ethics of Criminal Defense’ (1993) 91 Michigan Law Review 1703; Fred  C Zacharias, ‘The Civil-Criminal Distinction in Professional Responsibility’ (1996) 7 Contemporary Legal Issues 165. See Smith (n 71) 136. This version comes from Uniform Barristers’ Rules r 35. Murray L Schwartz, ‘The Zeal of the Civil Advocate’ [1983] American Bar Foundation Research Journal 543, 548–50; Smith (n 71) 138.

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the alarm, the suffering, the torment, the destruction which he may bring upon any others; … he must go on reckless of the consequences …75

For modern defence counsel, the position is not so simple. Genuine ethical dilemmas do arise. Consider, for example, the question that is commonly asked of criminal defence barristers: how can you try to get an acquittal for a defendant whom you know to be guilty? The question has particular force where the crime is violent and the defendant, if acquitted, appears likely to reoffend, or the defendant is a paedophile working in a primary school. Part of the answer is that all defendants are entitled to legal representation, no matter how unsavoury or dangerous they are.This is the rationale behind the cab rank principle, which appears in the Barristers Rules.76 Further, it will be very rare for the barrister to know that the defendant is guilty. This is not knowledge that the barrister would necessarily seek out. Indeed, many would deliberately avoid acquiring such knowledge,77 a strategy raising its own ethical quandaries: see 5.47.78 No doubt incriminating evidence exists, otherwise the prosecution would not have been brought, but it is for the prosecution to persuade the jury beyond reasonable doubt of the defendant’s guilt. It is not the defence barrister’s place to pre-empt this assessment. However, the ethical difficulties in representing guilty defendants cannot be sidestepped altogether.What if the defendant has made a believable confession to the defence barrister but still intends to plead not guilty? Can the barrister continue to  act for the defendant? The Barristers Rules specifically address this scenario: subject to certain restrictions, the barrister should continue to represent the defendant.79 The prosecution can be put to proof of its case. However, the barrister should not suggest that someone else committed the crime or otherwise advance an affirmative defence. If the defendant insists on making a false declaration of innocence, committing perjury, the barrister may cease to act for the client. This solution is a specific instance of a broader distinction that is drawn in ethical rules. As noted at 5.53, with the exception of prosecutors, barristers do not have a positive duty to disclose facts or evidence to the court and other parties. However, barristers do have a duty not to knowingly mislead the court or the opponent.80 While this distinction between commission and omission is firmly established in barristers’ ethics as well as other areas of law, some commentators question whether it is principled.81 Is there a genuine difference between knowingly advancing a false version of events and remaining silent while knowing the court is proceeding on the basis of a false version of events? As well as questioning the philosophical validity of the distinction, practical issues can also arise in its application. In the situation where a defendant has confessed guilt to their barrister and the barrister is testing the strength of the prosecution case, to what 75 76 77

78 79 80 81

5.55

cab rank rule: requires a barrister to accept a brief within their capacity, skill and experience, subject to certain exceptions

5.56

5.57

Henry Brougham, Opinions of Lord Brougham (Baudry’s European Library, 1841) 107. Barristers Rules (n 27) r 17. Ben Clarke, ‘An Ethics Survey of Australian Criminal Law Practitioners’ (2003) 27 Criminal Law Journal 142, 148. Rubinson (n 55) 1203–5. Barristers Rules (n 27) r 79. Uniform Barristers’ Rules rr 26, 49; R v Bourchas (2002) 133 A Crim R 413, 437. For example, D Pannick, Advocates (Oxford University Press, 1992) 35. [check page]

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extent can the defence counsel challenge the credibility of prosecution witnesses? Would it be legitimate to question the eyesight of an elderly eyewitness?82 What about challenging a witness’s honesty on the basis of their prior conviction for fraud? These  questions highlight the difficult boundary issues that arise for a criminal barrister. These strategies may be considered to cross the line into the territory of an affirmative defence.

Conclusion 5.58

The rules governing the professional conduct of would-be legal practitioners should guide their behaviour from the commencement of their law studies. The instilling of principles of good conduct, the ideal of service to others, and the acquisition of skills and understanding of the subtleties of the law will better enable law students to meet their various duties and manage the ethical issues which inevitably arise in practice. EXERCISE 6: LEGAL PROFESSIONAL PRACTICE AND ETHICAL DUTIES

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5.59

The questions following include scenarios that involve issues which commonly arise in practice. Be prepared to provide a solution and defend that solution in class or tutorial discussion. 1. In the course of a trial your client produces a document to you which damages their credit and the substantive case. The document is one which would have been disclosed in discovery, but was not then in existence. What should a practitioner do in this situation? To whom are duties owed? Which of those duties takes precedence and why? 2. A judge wishes to protect the confidentiality of a document. At the same time the judge is anxious to hear argument about it. The judge proposes to make it available to counsel on the basis that counsel does not disclose the contents to anyone, including their client. What should counsel say to the judge when the proposal is put? To whom is their primary obligation in this situation? 3. A solicitor has acted on several occasions for a particular client. The client asks the solicitor to prepare a lease of premises. The solicitor becomes aware that the premises are to be used for prostitution, which is unlawful in the jurisdiction in which the solicitor practises. To whom does the solicitor owe a primary obligation? What should the solicitor advise the client about the request for the preparation of a lease? 4. A practitioner is appearing in a one-day matter before the Supreme Court. On the evening prior to the first day of the hearing, the solicitor is provided an advance copy of a decision to be published in two days’ time. The decision overturns previous authorities on the matter and undermines the solicitor’s case. Advise the solicitor as to the appropriate conduct in court.

82

142

Andrew Ashworth and Meredith Blake, ‘Some Ethical Issues in Prosecuting and Defending Criminal Cases’ [1998] Criminal Law Review 16, 20.

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CHAPTER 5 THE LEGAL PROFESSION AND PROFESSIONAL LEGAL PRACTICE AND ETHICS

5. A practitioner has appeared for a client in a recent hearing. Before the judgment is handed down, the client informs the practitioner that the client committed perjury at the hearing. What should the practitioner do in these circumstances? 6. Is there any harm in a practitioner appearing in court for someone whom they know is appearing under a false name? Explain the nature of the harm, if any. Advise the practitioner about the professionally appropriate conduct in these circumstances. 7. You are representing a client charged with a robbery.Your client admits to you that they committed an earlier unrelated murder for which another defendant has been convicted and is serving time in prison. What should you do? 8. Your client has been convicted for shoplifting and you are appearing at the sentencing hearing. The prosecution tells the court that the defendant has no prior convictions.You know that this is incorrect: your client actually has three prior convictions for similar offences but in a different state. What should you do? 9. What are the justifications, if any for the continuing division in practice between barristers and solicitors? 10. How is a profession defined and what are its distinctive features? 11. Should the regulation of the legal profession take account of the public interest? If so, how would this best be achieved? 12. Was the legal professionalism of the past merely an illusion? Is the law moving in the direction of a business? Is the idealism and selflessness of professionalism finally dying out?

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Further reading • Gabrielle Appleby, ‘The Government as Litigant’ (2014) 37 University of • • • • • •

New South Wales Law Journal 94. Andrew Ashworth and Meredith Blake, ‘Some Ethical Issues in Prosecuting and Defending Criminal Cases’ [1998] Criminal Law Review 16. Thomas Frederick Bathurst, ‘The Role of Courts in the Changing Dispute Resolution Landscape’ (2012) 35 University of New South Wales Law Journal 870. Gino E Dal Pont, Lawyers’ Professional Responsibility (Lawbook, 6th ed, 2016). Monroe Freedman and Abbe Smith, Understanding Lawyer’s Ethics (LexisNexis, 4th ed, 2010). Harry Orr Hobbs ‘The Dispute Resolution Act 2011 (Cth) and the Meaning of “Genuine Steps”: Formalising the Common Law Requirement of “Good Faith” ’ (2012) 23 Australasian Dispute Resolution Journal 249 John H Langbein, The Origins of Adversary Criminal Trial (Oxford University Press, 2003).

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• Law Council of Australia, Australian Solicitors’ Conduct Rules (at June 2015) . • Law Council of Australia, Australian Solicitors’ Conduct Rules (August 2015) and Commentary to the Australian Solicitors’ Conduct Rules (July 2013) . • Law Society of New South Wales, Representation Principles for Children’s Lawyers (3rd ed, 2007). • Tania Sourdin, ‘Civil Dispute Resolution Obligations:What is Reasonable?’ (2012) 35 University of New South Wales Law Journal 889.

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To enhance your learning experience, use the student resources available on Lexis® Learning See the Visual Preface at the front of this book on how to register.

144

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CHAPTER

6

Going to Law: Legal Dispute Resolution Processes

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The legal system performs a critical role in the promotion of social order by the administration of the law in a manner which answers the fundamental requirements of justice, namely, fair outcomes arrived at by fair procedures. The fairness of the procedures is as essential as the correctness or fairness of the outcomes.1 1

James Jacob Spigelman, ‘Judicial appointments and judicial independence’ (2008) 17 Journal of Judicial Administration 139, 139.

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146

Introduction

6.1

Overview of legal process

6.4

− Who can seek justice?

6.8

− Procedure

6.11

− Alternatives to courts

6.14

The adversarial trial

6.16

− Accusatorial criminal trial

6.18

− Judge and jury

6.21

− Goals of the adversarial trial

6.25

•

Accuracy and individual autonomy

6.25

•

Peaceful and efficient dispute resolution

6.27

Finality and appeals

6.29

− Wrongful convictions

6.32

Costs, delays and access to justice

6.37

− Case management, settlement and guilty pleas

6.40

− Tribunals

6.43

− Inquisitorial and informal processes

6.48

− Alternative dispute resolution

6.49

Distinction between matters of fact and matters of law

6.54

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CHAPTER 6 GOING TO LAW: LEGAL DISPUTE RESOLUTION PROCESSES

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Introduction As a society, we mostly rely on ‘voluntary’ compliance with laws, but there will always be breaches and disputes. Accompanying the laws, made by the various branches of government to regulate behaviour, are legal institutions set up to encourage, enable and enforce compliance, and to resolve disputes. The most well-known institutions for resolving disputes are courts of law. Courts decide claims, usually by adversarial hearings that involve elaborate rules of procedure and result in enforceable judgments. There are, however, other dispute-resolution institutions, such as tribunals, and alternative dispute resolution mechanisms such as conciliation, mediation and arbitration. There is also a raft of institutions that operate in various areas of regulation, not in response to legal disputes, but to prevent them from arising. Mostly situated in the executive branch of government, these regulatory agencies engage with persons involved in specific industries and activities, to encourage and enable their compliance. Regulators’ efforts are often backed up by the power to prosecute a matter to a court or tribunal as a last resort. The focus in law schools and law texts is often on dispute resolution by courts and tribunals, but students should keep in mind alternative methods of dispute resolution, and wider regulatory frameworks designed to enable compliance without litigation. This chapter introduces students to the procedures and mechanisms by which legal compliance is encouraged and enforced, and legal disputes are resolved. The legal system, in pursuing compliance and enforcement, may intervene in different ways and to differing degrees. Much of the chapter focuses on the most formal and interventionist mechanism: civil and criminal litigation in the courts. We begin, in the next section, by outlining the range of procedural laws that govern court litigation, ranging from who has standing through to which party pays litigation costs. Following that, we take a closer look at the adversarial trial. The distinctive features which make the trial ‘adversarial’ are identified. We also consider the more ‘accusatorial’ criminal trial where criminal defendants have the benefit of the presumption of innocence and other safeguards.We consider the division of responsibility between the judge as the tribunal of law, and the jury as the tribunal of fact, a division which retains some relevance in non-jury trials before a judge alone. After that we take a more critical perspective by considering the goals of litigation and how well the adversarial trial serves them. A primary goal is factual accuracy, however, the overarching goal is the peaceful and efficient resolution of disputes. We consider opportunities for disappointed litigants to appeal, and the occurrence of wrongful convictions. Costs and delays raise perennial concerns, and we examine less formal tribunals, and alternative dispute resolution. The final section of this chapter focuses on the conceptual distinction between fact and law, which can be determinative of how legal dispute-resolution methods operate.

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Overview of legal process The law establishes substantive rules for behaviour in many different areas of human activity. As human societies have become increasingly complex, so too have the laws regulating the expanding range of human interactions and behaviours. Whenever you buy a good or pay for a service, the transaction operates against a backdrop of contract law. In most cases the seller or service provider will also be governed by one or more regulatory frameworks.

6.4

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6.6

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If you buy a car, the manufacturer, distributor and retailer should all have complied with work health and safety laws in respect of their workers, and safety standards and consumer protection laws relating to the goods and services they provide.At the time of your purchase, you most likely will also have had related transactions regarding vehicle registration and insurance. When you drive your new car on the road you will also need a driving licence, and you should comply with roadworthy requirements and the rules of the road. If there is a motor vehicle accident causing property damage or personal injury, compensation issues may arise under the common law of negligence and related legislation. If it appears that poor driving was the cause, there may also be a criminal investigation and charges. Legal rules, unlike the laws of physics, are not necessarily complied with. For this reason, substantive rules prescribing behaviour are accompanied by further rules specifying the consequences of breaches of substantive duties and obligations. For example, negligence law sets standards of behaviour, and a method for calculating compensation for harm resulting from the breach of those standards.The criminal law defines a range of criminal offences, from speeding through to murder, and also specifies the penalties that may be imposed on offenders. In addition to outlining rules of behaviour and the consequences of breach, our laws have developed rules and institutions for enforcement. A central institution is the judiciary — the court system — which has constitutional responsibility for interpreting the law as it applies to individual cases. In relation to the courts, a large body of procedural law has been developed, with rules about when a court can be called on to resolve a dispute; who can seek its intervention; how the process is commenced; how the parties may gather evidence, including from each other; and how the court conducts itself in resolving the dispute. There are also other dispute-resolution institutions and mechanisms, governed by different procedures, such as tribunals and alternative dispute resolution (ADR), which includes mediation, conciliation and arbitration. Further, in designing legislative responses to identified social problems, Parliament commonly now also establishes regulatory agencies with responsibility for identifying and prosecuting possible breaches of the rules, as well as promoting compliance to avoid the need for litigation. The most formal method of dispute resolution is court adjudication. For a legal dispute to be resolved by a court, someone must initiate a legal action, effectively asking a court or tribunal to help. Courts do not maintain surveillance over society, intervening and punishing when someone commits a crime, and awarding compensation where someone’s breach causes harm to another. It is up to an interested party to originate the legal process. For civil matters, an enforceable finding of breach and liability by the courts will only occur if legal action is initiated and pressed by the person who has suffered harm.2 For criminal matters, the legal process is initiated and maintained by the state, traditionally a police officer or a public prosecutor.3 WHO CAN SEEK JUSTICE? It is worth pausing and considering in a little more detail who has the power to commence court proceedings by alleging a breach of the law. Who does the law recognise as a legitimate party entitled to seek justice? This is sometimes referred to 2 3

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See, eg, Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’) pt 6. See, eg, Criminal Procedure Act 1986 (NSW) (‘Criminal PA’) ss 48, 173.

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CHAPTER 6 GOING TO LAW: LEGAL DISPUTE RESOLUTION PROCESSES

as standing before a court. In criminal matters, a victim of crime (sometimes known as the ‘complainant’) might be the one to report the offence to the police, but they are not the party responsible for bringing the matter to the court to seek punishment of the perpetrator. Rather, the state has primary responsibility for laying criminal charges and engaging the court in a process of determining whether a crime has been committed and an appropriate punishment. While private prosecutions occurred historically,4 and are still possible today, they are very rare in the modern state. Where they are brought, the state prosecutor has the power to take them over.5 Compliance with the criminal law is seen as a matter of public interest, not left to individual actions by victims. State and federal public prosecutors, within the executive arm of government, are appointed to work with police to prosecute those accused of a crime through the courts. Offences in particular fields of activity may be enforced by specialist federal or state regulators. For example, work health and safety laws in New South Wales are enforced by SafeWork NSW.6 For civil matters (that is, disputes between individuals) the question of liability and remedy can generally only be pursued by the person harmed by the breach. Civil disputes are not generally viewed as a matter of public concern. The doctrine of privity of contract, for example, provides that the only people allowed to ask the court to determine whether there has been a breach of the contract are the parties to that contract.7 Similarly, in negligence law, it is the injured party who can ask the court to determine whether the defendant breached their duty and how much compensation may be payable. It can be argued that, in some areas, rules of standing should be expanded so that people may bring actions in the public interest, for example against those who harm the environment.8 Many laws of a regulatory nature may allow for both private and public enforcement. Individual victims may bring a legal action seeking an individual remedy, but the law also empowers an executive agency to monitor and enforce the laws.This reflects recognition of both the private and public interest in compliance.Workplace laws, for example, prescribe conditions for workers such as pay rates, hours of work and workplace protections. An individual worker can pursue their employer for failing to pay the prescribed rate of pay, for example. The Fair Work Act 2009 (Cth), however, also establishes a government agency, the Fair Work Ombudsman, which can prosecute such breaches on behalf of the individual victim or victims and, in some cases, ask the court to impose penalties to deter further breaches by that employer and others. Some laws also authorise third parties or advocacy organisations, such as unions, to initiate proceedings to further enable enforcement.

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standing: for a party to be recognised by the court as sufficiently connected to a harm to be able to commence a legal action relating to the harm

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John Langbein, The Origins of the Adversary Criminal Trial (Oxford University Press, 2003) 11–12. See, eg, Director of Public Prosecutions Act 1983 (Cth) s 9(5); Public Prosecutions Act 1994 (Vic) s 22(1)(b)(ii). See, eg, Work Health and Safety Act 2011 (NSW) s 152. The doctrine of privity of contract was relaxed slightly in Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107. In that case a producer took out an insurance policy for the benefit of subcontractors. It was held that the subcontractor, although not a party to the contract, could enforce the indemnity against the insurance company. See, eg, Elizabeth C Fisher and Jeremy Kirk, ‘Still Standing: An Argument for Open Standing in Australia and England’ (1997) 71 Australian Law Journal 370.

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6.12 pleadings: court documents that must be submitted by parties engaged in a dispute, outlining competing claims and often narrowing the scope of the dispute

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costs: the expenses that a party incurs in connection with litigation; eg court fees, lawyer fees, and payment of expert witnesses

6.14

PROCEDURE Beyond the question of who can initiate legal action, there are rules governing other aspects of the process. The law can prescribe how the process is to be initiated, including the specific forms to be used and submitted to the agency or court; the steps that must be taken to ‘serve’ the documents on the other party so they know they are the subject of legal action; the fees that need to be paid to the court or agency to start the process; and time limits for commencing proceedings. Once proceedings are commenced, a number of steps are taken before the case reaches court. The parties will exchange pleadings outlining their opposing claims. This may have the effect of narrowing the issues. The parties might agree on some matters relating to the dispute (for example, that there was a contract), joining issue on other points (such as whether there was a breach, or the extent of the harm suffered).The court may also give the parties the opportunity to gather evidence from each other through the inspection and copying of documents (‘discovery’) and the asking of questions (‘interrogatories’). Many of the legal rules that are referred to as civil and criminal procedure relate more specifically to the hearing process in that they address specific questions such as how witnesses can be called and examined, the types of evidence that are not admissible at trial, and how factual uncertainty is resolved. Further procedural rules govern limited rights to appeals. These are explored at 6.29ff as aspects of the adversarial trial. There are also many rules about how the costs of litigation are to be born. Costs may include the court fees, lawyer fees and litigation expenses such as the fee for transcription of the hearing, and paying experts to provide evidence.The general rule in civil litigation is ‘loser pays’; however, the court, in making orders regarding costs, has a discretion to consider many factors, although not the impecuniosity of the losing party.9 In criminal matters a successful defendant may obtain costs,10 and, more rarely, in a narrow range of circumstances, costs may be awarded against an unsuccessful defendant.11 As discussed at 6.37ff, litigation can be very expensive for parties, raising concern about access to justice, and giving rise to reforms to introduce cheaper dispute-resolution mechanisms. ALTERNATIVES TO COURTS Before we examine the trial process, it is worth remembering that courts are used only as the last resort for resolving disputes. Even where litigation is commenced, parties generally seek to resolve their dispute through negotiation, with or without external assistance, and often reach a settlement agreement before trial. Growing concerns about costs, delays and access to justice in courts have encouraged exploration of alternative, less adversarial methods of dispute resolution. A great deal of litigation is now heard, less formally and more cheaply, by tribunals. Courts and tribunals encourage, and in some cases order, parties to engage in negotiations and ADR.The operations of tribunals and some of these ADR methods are discussed later in this chapter: see 6.43ff and 6.49ff, respectively. 9 10

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Northern Territory v Sangare (2019) 265 CLR 164. Latoudis v Casey (1990) 170 CLR 534; see, eg, Criminal PA (n 3) ss 212–214. Costs orders are not awarded in indictable matters (Wang v Farkas (2014) 85 NSWLR 390 [18]), but a successful defendant may recover costs from the state through another mechanism: see, eg, Costs in Criminal Cases Act 1967 (NSW). See, eg, Criminal PA (n 3) s 215.

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CHAPTER 6 GOING TO LAW: LEGAL DISPUTE RESOLUTION PROCESSES

Further, many regulatory agencies have been established, not only to investigate and litigate legal disputes, but to use a range of regulatory tools to prevent them and encourage compliance. Agencies such as the Fair Work Ombudsman and the Australian Competition and Consumer Commission, for example, are empowered primarily to enable, encourage and monitor compliance; enforcement through court prosecution is rarely needed. The regulatory tools granted to such agencies can include powers to set standards; provide guidance; undertake inspections; conduct audits and investigations of organisations, industries or specific complaints; issue compliance notices; monitor disclosures; and engage with regulated actors to improve compliance with the law. Used responsively and strategically, such tools can be more efficient and effective than the power to prosecute a handful of individual cases through expensive court processes.

6.15

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The adversarial trial Perhaps the best-known mechanism for resolving disputes, familiar from numerous courtroom dramas on the stage and screen, is the adversarial trial. But despite its familiarity and archetypal status, the adversarial trial is, in some respects, an unnatural and problematic solution to the problem of legal conflict. Concerns with the adversarial trial have given rise to efforts to divert disputes away from the courts, and to an increasing array of ADR processes: see 6.49–6.53. The trial is described as adversarial because, rather than conducting an investigation into disputed events, the court adjudicates a contest between the opposing litigants as adversaries. The parties put to one side the matters that are undisputed and agreed upon, and focus on the matters that are genuinely in dispute. Each party gathers and presents evidence in an effort to persuade the court to accept their version of events with respect to those issues. Most commonly, the parties are contesting the facts and how the law applies to those facts; however, purely legal issues also may arise. The court has ultimate authority over the dispute, but it seeks to remain above the fray. The court should generally not call or examine witnesses.12 The court’s primary role  is to ensure that the contestants play by the rules, and even then, the court may require prompting by one party before it considers enforcing a rule against another,13 thus the familiar trope of counsel interrupting opposing counsel’s examination of a witness with the declaration: ‘Objection, your Honour!’ ACCUSATORIAL CRIMINAL TRIAL The criminal trial is the mechanism for resolving disputes about the guilt of a defendant (‘the accused’) or group of defendants (‘the co-accused’ or ‘co-defendants’). Following an investigation by police, the defendant is charged and, if the defendant does not admit guilt and plead guilty, the matter will be brought to trial by a state prosecutor.The criminal trial court will decide whether to convict or acquit the defendant. In some respects the criminal trial is less adversarial than the civil trial. It is sometimes described, instead, as ‘accusatorial’.14 This reflects structural asymmetries in criminal 12 13 14

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See, eg, R v Esposito (1998) 45 NSWLR 442. See, eg, Papakosmas v The Queen (1999) 196 CLR 297 [72] (McHugh J). See, eg, Lee v NSW Crime Commission (2003) 251 CLR 196 [1] (French CJ), [176]–[178] (Kiefel J).

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6.20

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6.21

litigation that are not present in the civil trial. Most civil disputes are about which party should bear the expense of a particular loss or harm. The loss at the start of the trial is borne by the plaintiff, who seeks to shift it to the defendant; thus both have an equal stake in the dispute. Criminal litigation lacks this symmetry. The criminal trial addresses the question of whether the defendant should be labelled and punished as a criminal.The criminal defendant has a great deal to lose. If convicted, the defendant will be censured, may be fined or imprisoned, and may suffer significant reputational damage with social and other collateral consequences. And while the defendant has so much at stake, the prosecution, a state-funded repeat player with access to the investigative capacities of the police, has far greater resources than the typical criminal defendant. Because the defendant has more at stake and fewer resources, the prosecution carries higher and greater procedural and ethical obligations: see 5.50–5.52.The prosecution’s goal should be to achieve justice, not to secure conviction. For example, the prosecutor must call all available material witnesses, not just those who can be expected to incriminate the defendant. Many other safeguards operate for the benefit of the defendant in the criminal trial, such as their right to silence, the presumption of innocence and the requirement that the prosecution prove guilt beyond reasonable doubt.15 These principles serve the rule of law and the constitutional guarantee of a fair trial, which, as Deane J said in Dietrich v The Queen (‘Dietrich’), ‘provides the ultimate rationale and touchstone of the rules and practices which the common law requires to be observed in the administration of the substantive criminal law’.16 In the same case, Mason CJ and McHugh J said: ‘The right of an accused to receive a fair trial according to law is a fundamental element of our criminal justice system.’17 Deane J further said: ‘The fundamental prescript of the criminal law of this country is that no person shall be convicted of a crime except after a fair trial according to law.’18 JUDGE AND JURY Nowadays, most civil and criminal trials are heard by a judge alone. Juries are mainly reserved for the trial of more serious criminal charges,19 and for these matters the jury is strongly entrenched. Section  80 of the Australian Constitution guarantees that a trial on indictment will be by jury. Strictly speaking, this only applies to federal offences, but the High Court regularly refers to the jury’s constitutional status in non-federal cases.20

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See, eg, R v Dookheea (2017) 262 CLR 402 (‘Dookheea’). Dietrich v The Queen (1992) 177 CLR 192, 326 (Deane J) (‘Dietrich’). Ibid 299 (citations omitted). Ibid 326. Though note further observations by Deane J: ‘[T]he practical content of the requirement that a criminal trial be fair may vary with changing social standards and circumstances’: at 328; ‘regard must be had “to the interests of the Crown acting on behalf of the community as well as to the interests of the accused” : at 335, quoting from R v Barton (1980) 147 CLR 75, 101 (Gibbs ACJ and Mason J). Further, justice is a practical exercise. It does not demand ‘the fairest of all possible trials’. Justice requires only ‘as fair a trial as practicable in the circumstances’: Dietrich (n 16) 324. In New South Wales, juries are reserved for charges which are heard on indictment, as opposed to summary offences. Summary offences are punishable by a maximum of two years imprisonment. There is also a category of offences which may proceed either way. If tried summarily the two-year maximum will apply. See Criminal PA (n 3) chs 3–5. See, eg, R v Baden-Clay (2016) 258 CLR 308, 329.

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CHAPTER 6 GOING TO LAW: LEGAL DISPUTE RESOLUTION PROCESSES

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The jury is a ‘little parliament’21 which gives representatives of the community direct involvement in the justice system. It is also thought that 12 randomly chosen members of the public will, in combination, have a greater wealth of life experience to draw upon than a single trial judge.22

In a jury trial, the jury plays a narrowly defined role. The trial judge is the tribunal of law while the jury is the tribunal of fact (see further discussion on this distinction at 6.54ff). The trial judge will seek to ensure that the parties comply with the requirements of procedural law. An important aspect of this is for the trial judge to rule  on the admissibility of evidence. Some evidence may be excluded because there are concerns that it may prejudice the jury against the defendant; for example, evidence revealing that the defendant, facing charges for a physical assault on a child, has prior convictions for child sexual assault.23 Other evidence may be subject to exclusion because, although highly relevant, it has been illegally obtained; for example, a confession obtained by threats of violence.24 It is also the trial judge’s job to ensure that the jury, in carrying out its task, properly applies both the substantive law and procedural law. The trial judge will instruct the jury as to the legal definitions of any criminal offences and defences that are in issue; for example, that it is sufficient for a murder conviction that the defendant, while he may not have intended the victim’s death, intended to cause the victim grievous bodily harm.25 The trial judge will direct the jury as to the proof requirements — the prosecution must 21

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Patrick Devlin, Trial by Jury (Methuen, 1966) 164; Sally Lloyd-Bostock and Cheryl Thomas, ‘Decline of the “Little Parliament”: Juries and Jury Reform in England and Wales’ (1999) 62 Law & Contemporary Problems 7. See, eg, Hawi v The Queen [2014] NSWCCA 83 [480]; Pell v The Queen (2020) 94 ALJR 394 [37]–[38]. See, eg, Evidence Act 1995 (NSW) ss 97, 98, 101, 135, 137. See, eg, ibid ss 84, 138, 139. See, eg, Crimes Act 1900 (NSW) s 18(1)(a); Criminal Code Act 1899 (Qld) s 302(1)(a).

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6.24 standard of proof: the degree to which a party must prove their case at trial in order to succeed: in criminal cases the prosecution must prove the defendant’s ‘guilt beyond reasonable doubt’; in civil cases the plaintiff must prove the defendant’s liability on ‘the balance of probabilities’

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6.25

prove its case to the criminal standard of proof, ‘beyond reasonable doubt’, while the defence may, in some cases, be required to prove defences on the ‘balance of probabilities’, the  lower standard that also applies in civil trials.26 The trial judge will also provide guidance on any evidentiary complications or dangers, such as the potential unreliability of the evidence of a police informant.27 It will then be up to the jury to determine whether, taking account of the trial judge’s instructions and guidance, the evidence they have seen and heard warrants the defendant’s conviction. In non-jury trials, including most civil trials, the judge operates as both tribunal of fact and tribunal of law. However, the notional separation remains. The judge should properly give directions on the law to him- or herself while carrying out the fact-finding function. Theoretically, there is even scope for the trial judge, acting as tribunal of law, to exclude evidence on the ground that it may prejudice him- or herself as the trial judge, acting as tribunal of fact. The fact–law distinction can be a difficult one, but it is important for a number of purposes. As well as determining whether an issue is one for the judge or the jury, it can also inf luence the breadth of rights of appeal: see 6.30, 6.54–6.58. GOALS OF THE ADVERSARIAL TRIAL Accuracy and individual autonomy On one view, the adversarial system is designed to advance the goal of accurate dispute resolution. Factual accuracy has been described as a ‘fundamental’28 and ‘paramount’29 goal of the trial. Giving the parties control over the proceedings is said to serve this goal, since the parties know the dispute and ‘each side [will] strive as hard as it can in a keenly partisan spirit, to bring to the court’s attention the evidence favourable to that side’.30 On another view, however, the adversarialist spirit of proceedings has the potential to disrupt the court’s pursuit of factual accuracy.31 A lawyer will not ‘concede the existence of facts if they are inimical to his client and he thinks they cannot be proved by his adversary’.32 The evidence that is placed before the court is likely to be the ‘partisan and coerced residue … culled by the parties with a view not so much to establishing the whole truth as to winning the case’.33 Indeed, critics have suggested that the common law system’s attraction to adversarialism prioritises values other than factual accuracy. Giving the parties a high level of control over the proceedings reflects the importance in the common law world of 26 27 28

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See, eg, Crimes Act 1900 (NSW) s 419. See, eg, Evidence Act 1995 (NSW) s 165(1)(e). Vern R Walker, ‘Preponderance, Probability and Warranted Factfinding’ (1996) 62 Brooklyn Law Review 1075, 1081. Marvin Frankel, ‘The Search for Truth: An Umpireal View’ (1975) 123 University of Pennsylvania Law Review 1031, 1055. Jerome Frank, Courts on Trial: Myth and Reality in American Justice (Princeton University Press, 1949) 80. See also Jones v National Coal Board [1957] 2 QB 55, 63. See, generally, David Hamer and Gary Edmond, ‘Forensic Science Evidence, Wrongful Convictions and Adversarial Process’ (2019) 38 University of Queensland Law Journal 185. Frank (n 30) 84; see also Frankel (n 29) 1038. HM Hart Jr and J McNaughten, ‘Evidence and Inference in the Law’, in D Lerner (ed), Evidence and Inference (Free Press, 1959) 53.

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CHAPTER 6 GOING TO LAW: LEGAL DISPUTE RESOLUTION PROCESSES

individual autonomy34 and a mistrust of bureaucracy and government.35 The epigraph to this chapter is a quote from an extrajudicial article on judicial independence by a former Chief Justice of New South Wales, James Spigelman. In that article he suggests that ‘[t]he fairness of the procedures is as essential as the correctness or fairness of the outcomes’, adding that ‘[w]hen people talk about having their “day in court” this is a matter that is of significance to their sense of freedom and of personal autonomy’.36 The values of individualism and autonomy, together with a mistrust of government, are also reflected in the longstanding but slightly paradoxical attachment, in much of the common law world, to the jury. As mentioned at 6.22, quite a few rules of evidence exclude relevant evidence because of the perceived risk that a jury might misuse it. These considerations lead some critics to reject the proposition that the adversarial trial pursues truth. Instead the trial is viewed as a game of skill or a battle of strength, which is inherently inconsistent with the pursuit of truth and justice. In most games each contestant is given a fair opportunity of victory, but ‘[j]ustice, … by definition, belongs to one side or another a priori’.37 This image of the trial as a game or battle extends to the accusatorial criminal trial. Procedural rules are introduced that favour the defendant in recognition that ‘the adversaries wage their contest upon a tilted playing field’.38 The procedural interventions aim to achieve ‘equality of arms’,39 ‘the existence of contestants who are more or less evenly matched’.40 These rules may hamper factual accuracy by ‘handicapping’41 the prosecution so as to give the defendant a ‘fair chance of escape’.42

6.26

Peaceful and efficient dispute resolution

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From a broader perspective, having regard to the role played by the law in the operation of society, it can plausibly be argued that the goals of factual accuracy and respecting individual autonomy are secondary to the overarching ‘paramount’ goal: ‘to resolve the dispute.’43 Trials have been described as the ‘last line of defence in the indispensable effort to secure peaceful settlement of social conflicts’.44 If the trial was not accepted as a fair way to resolve disputes,45 the law would fail in its ‘critical role in the promotion of social

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36 37 38

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44 45

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PD Connolly, ‘The Adversarial System: Is It Any Longer Appropriate?’ (1975) 49 Australian Law Journal 439, 441; John Thibaut and Laurens Walker, ‘A Theory of Procedure’ (1978) 66 California Law Review 541. Michael Asimow, ‘Popular Culture and the Adversary System’ (2007) 46 Loyola of Los Angeles Law Review 653, 658; also Frank (n 30) 92. Spigelman (n 1) 139. Anatol Rapoport, Fights, Games and Debates (Ann Arbor, MI, University of Michigan Press, 1960) 263. Daniel Givelber, ‘Meaningless Acquittals, Meaningful Convictions’ (1997) 49 Rutgers Law Review 1317, 1360. See, eg, R v Horncastle [2010] 2 AC 373 [26]. See, eg, Dietrich (n 16) 354. Jenny McEwan, ‘Ritual, Fairness and Truth:The Adversarial and Inquisitorial Models of Criminal Trial’, in Antony Duff et al (eds), The Trial on Trial:Volume 1 — Truth and Due Process (Hart Publishing, 2004) 51, 68. HLA Hart, ‘The Demystification of the Law’, in Essays on Bentham: Studies in Jurisprudence and Political Theory (Oxford University Press, 1982) 21, 37, discussing Works of Jeremy Bentham (Bowring ed, 1838–43) vol 7, 454. Charles Nesson, ‘Reasonable Doubt and Permissive Inferences: The Value of Complexity’ (1979) 92 Harvard Law Review 1187, 1194 (‘Reasonable Doubt’). Hart and McNaughten (n 33) 52. Charles Nesson, ‘The Evidence or the Event? On Judicial Proof and the Acceptability of Verdicts’ (1985) 98 Harvard Law Review 1357.

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6.28

order’,46 to quote again from Spigelman.This draws on the view that there would be a risk of the parties to a dispute taking matters into their own hands, threatening civil peace;47 law ‘is civilisation’s substitute for vengeance’.48 On this view, while the accuracy of a verdict may contribute to its acceptability,49 it is not the only consideration.This is why, Spigelman argues, it is important to give the parties their ‘day in court’. Other commentators agree that respecting parties’ ‘sense of freedom and of personal autonomy’50 is the best way to ensure that the parties ‘believe that justice has been done regardless of the verdict’.51 Efficiency is another key consideration in the effectiveness of the trial as a disputeresolution mechanism. ‘[L]itigation is a practical enterprise that must seek finality within reasonable time, money, and other resource constraints’.52 Achieving absolute certainty about past events is not possible and is not required,53 not even by the criminal standard of proof. An endeavour to arrive at the indisputably true facts could be never-ending in time and cost, and ‘[t]he law would fail to protect the community’.54 The common law legal system avoids this risk by giving the parties control over the dispute and establishing the trial as a means of making a definitive choice between the parties’ competing claims. The court’s oversight role includes ensuring the trial occurs on schedule, and that the process has a definite endpoint. Burdens and standards of proof — requiring the prosecution to prove guilt ‘beyond reasonable doubt’, and the plaintiff to prove liability ‘on the balance of probabilities’ — enable the court to make a clear decision notwithstanding any lingering uncertainty.

Finality and appeals

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6.29 appeal: the opportunity for an unsuccessful litigant to seek to have an unfavourable decision overturned by a higher court

It is important to the goal of dispute resolution that courts provide finality within reasonable time.This has been recognised both in criminal and civil litigation.55 The party that is unsuccessful at trial may be able to appeal, but only within certain restrictions.The details of these restrictions vary between jurisdictions and can be found in the relevant legislation applicable to that jurisdiction.56 (In this context, the term ‘jurisdiction’ refers not only to the law within a particular geographical region, but also to the distinction between criminal and civil litigation, and the levels of the lower and appeal courts.) These restrictions reflect ‘the overarching societal interest in the finality of litigation [and the]

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Spigelman (n 1) 139. C Chamberlayne,‘The Modern Law of Evidence and its Purpose’ (1908) 42 American Law Review 757, 765. Eduardo J Couture ‘The Nature of Judicial Process’ (1950) 25 Tulane Law Review 1, 7. Nesson, ‘Reasonable Doubt’ (n 43) 1194. Spigelman (n 1) 139. Thibaut and Walker (n 34), 551. Dale Nance, ‘The Best Evidence Principle’ (1988) 73 Iowa Law Review 227, 233. ‘[A]bsolute mathematical or metaphysical certainty is not essential, and in the course of judicial investigations would be usually unattainable.’: Briginshaw v Briginshaw (1938) 60 CLR 336, 360 (Dixon J), quoting Thomas Starkie, A Practical Treatise of the Law of Evidence (V & R Stevens and GS Norton, 4th ed, 1853) 817. Miller v Minister of Pensions [1947] 2 All ER 372, 373 (Denning LJ). Crampton v The Queen (2000) 206 CLR 161 [14], [19] (‘Crampton’); Preston Banking Co v William Allsup & Sons [1895] 1 Ch 141, 144 (Lindley LJ); Smith v New South Wales Bar Association (1992) 176 CLR 256, 265 (Brennan, Dawson, Toohey and Gaudron JJ). Harrison v Schipp (2002) 54 NSWLR 612 [55]; Fleming v The Queen (1998) 197 CLR 250 [12].

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CHAPTER 6 GOING TO LAW: LEGAL DISPUTE RESOLUTION PROCESSES

danger that trial … will come to be regarded as a preliminary skirmish in a battle destined to reach finality before a group of appellate judges’.57 Despite the jurisdictional variations, it is possible to make some broad observations about the restrictions on appeals. First, an appeal must be commenced within a limited period — ordinarily a matter of weeks.58 Second, it may be easier to persuade an appeal court that the lower court has made an error on a point of law than a point of fact.59 Appeal courts generally do not rehear evidence — at most they will review the trial transcript, and in some circumstances, appeal courts will only intervene where legal error has been demonstrated. With regard to facts, appeal courts acknowledge that the trial court carries the advantage in having seen and heard witnesses.60 Further, where there is an appeal from a jury trial, the appeal court, made up of professional judges, may be reluctant to privilege their view of the facts over that of the community’s representatives. Finally, disappointed litigants generally only have one right of appeal. Once the appeal court has decided the appeal, that decision is final.61 This is subject to the qualification that the unsuccessful party on the appeal may have the opportunity to appeal to a higher appeal court — ultimately the High Court of Australia. However, the High Court will only hear appeals where it gives ‘special leave’,62 and leave is rarely granted.63 In Crampton v The Queen, Gleeson CJ indicated that ‘a second appeal is intended to be reserved for special cases. It is not there for the purpose of giving any sufficiently determined and resourceful litigant a third chance of success.’64 Just as much criminal procedure operates asymmetrically in order to provide the criminal defendant with special protections (see 6.20), the same asymmetry operates on appeals. The criminal defendant enjoys the benefit of the ancient principle of double jeopardy: a defendant should not be put in jeopardy of criminal punishment in respect of the same facts more than once. This means that, generally, once the trial is over, the defendant is immune from further action by the prosecution. The double jeopardy principle reflects a variety of concerns: ‘the imbalance of power between prosecution and accused, seriousness for an accused of conviction, prosecution as an instrument of tyranny and the importance of finality’.65 Nevertheless, scope for prosecution appeals has increased in recent years. These reforms may reflect a broader political shift in priorities, away from safeguarding

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Crampton (n 55) [14], [19]. See, eg, UCPR (n 2) r 50.3; Criminal Appeal Act 1912 (NSW) s 10(1)(a). See, eg, Criminal Appeal Act 1912 (NSW) ss 5, 6. Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550, 561 [54]; Pell v The Queen (2020) 94 ALJR 394 [37]–[38]. See, eg, Gamser v Nominal Defendant (1977) 136 CLR 145, 154 (Aickin J); Folbigg v The Queen [2007] NSWCCA 128. Special leave is granted only where a question of law is raised that is of public importance, or involves a conflict between courts, or ‘is in the interests of the administration of justice’: Judiciary Act 1903 (Cth) s 35A. Pam Stewart and Anita Stuhmcke, ‘Litigants and Legal Representatives: A Study of Special Leave Applications in the High Court of Australia’ (2019) 41 Sydney Law Review 33, 43. Crampton (n 55) [20], although in this case special leave was granted, the appeal allowed, and an acquittal ordered. R v Carroll (2002) 213 CLR 635 [23].

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acquittal: found to be not guilty of a charge

6.32

the criminal defendant in favour of law enforcement and the protection of society.66 For instance, the prosecution can appeal against a sentence that it views as too lenient.67 And, in respect of the most serious offences, in limited situations, the prosecution can even seek to overturn a jury acquittal on the basis there is ‘fresh and compelling evidence’ that demonstrates the jury made a factual error. For example, the acquitted defendant may have later made a plausible confession, or developments in DNA-profiling technology may clearly identify the defendant as the perpetrator. All Australian states have introduced this exception to double jeopardy68 but it has so far been virtually unused.69 This is a little surprising given that the strength of the presumption of innocence and the demanding requirement of proof beyond reasonable doubt imply that a significant proportion of acquitted defendants may in fact be guilty. It may be that, despite having the power to correct mistaken acquittals, the criminal justice authorities have a strong traditional attachment to the defendant’s protection against double jeopardy.70 WRONGFUL CONVICTIONS As discussed at 6.25–6.26, factual accuracy is often identified as a key goal of adversarial litigation. However, the overarching goal of resolving disputes in a way that is acceptable to the parties and society more broadly, which prioritises efficiency and party autonomy, raises the question as to the accuracy of adversarial litigation. This question is particularly pertinent to the criminal trial. A high premium is placed on the factual accuracy of convictions. The law expresses acute awareness of the ‘searing injustice and consequential social injury ... when the law turns upon itself and convicts an innocent person’.71 A major reason for the asymmetric operation of much criminal procedure, in the defendant’s favour, is to minimise the risk of harmful wrongful convictions.To obtain a conviction the prosecution must overcome the presumption of innocence with proof beyond reasonable

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Double jeopardy exceptions allowing appeals against jury acquittals were first introduced in the United Kingdom in response to the injustice of the acquittals of Stephen Lawrence’s killers: Paul Roberts,‘Double Jeopardy Law Reform: A Criminal Justice Commentary’ (2002) 65 The Modern Law Review 393. See also Criminal Justice Act 2003 (UK) pt 10; Criminal Procedure and Investigations Act 1996 (UK) ss 54–57. See, eg, Criminal Appeal Act 1912 (NSW) s 5D. In addition, the prosecution can appeal against a trial judge’s interlocutory determination to exclude incriminating evidence: s  5F. And the prosecution can appeal against acquittals by a judge sitting without a jury, and jury acquittals at the direction of a judge, where the trial judge made a mistake of law: see, eg, Crimes (Appeal and Review) Act 2001 (NSW) s 107; discussed in R v JS (2007) 175 A Crim R 108; R v PL (2009) 199 A Crim R 199; R v PL [2012] NSWCCA 31. Remarkably, the defendant PL had directed acquittals on murder and manslaughter charges overturned on appeal twice. See, eg, Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2006 (NSW), amending and renaming Crimes (Appeal and Review) Act 2001 (NSW). An unsuccessful application to set aside murder acquittals in connection with the Bowraville case was made in A-G (NSW) v XX (2018) 274 A Crim R 30.The NSW Government did not support consequent proposals to broaden the ‘fresh and compelling evidence’ exception, incorporated in the private member’s Crimes (Appeal and Review) Amendment (Double Jeopardy) Bill 2019, despite the recommendations of the Standing Committee on Law and Justice: Legislative Council Standing Committee on Law and Justice, Parliament of New South Wales, Crimes (Appeal and Review) Amendment (Double Jeopardy) Bill 2019 (Report 71, August 2019). Notably, the NSW Director of Public Prosecutions did not support the broadening of the ‘fresh and compelling evidence’ exception to double jeopardy in the 2019 inquiry: (n 69); see also Office of the Director of Public Prosecutions (NSW), Submission No 2 to Legislative Council Standing Committee on Law and Justice, Crimes (Appeal and Review) Amendment (Double Jeopardy) Bill 2019 (28 June 2019) 7. Van der Meer v The Queen (1988) 82 ALR 10, 31 (Deane J).

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CHAPTER 6 GOING TO LAW: LEGAL DISPUTE RESOLUTION PROCESSES

doubt. The criminal standard of proof ‘requires a much higher state of satisfaction than proof on the balance of probabilities’,72 the standard for civil trials. Further, it is far easier for a defendant to appeal against a conviction than it is for the prosecution to appeal against an acquittal.The asymmetries increase the risk of mistaken acquittals, but these are viewed as less harmful than wrongful convictions. Nevertheless, it is clear that wrongful convictions occur, and the errors are not always corrected on appeal. Quite regularly, convictions upheld on appeal are later revealed to be erroneous. In the United States the Registry of Exonerations records hundreds of convicted defendants exonerated through DNA testing and hundreds more non-DNA exonerations.73 Comparable data has not yet been systematically gathered in Australia; however, here too there is a steady f low of exonerations. In 2014, the Full Court of the South Australian Supreme Court overturned Henry Keogh’s 1995 conviction for the murder of his fiancée.74 A retrial was ordered, but the prosecution decided not to pursue it. Also in 2014, the Full Court of the Supreme Court of the Australian Capital Territory overturned the 1995 conviction of David Eastman for the murder of Assistant Commissioner of the Federal Police, Colin Winchester.75 Eastman was acquitted on retrial in 2018. Both of these appeals were exceptional subsequent appeals. Keogh was granted leave to bring his subsequent appeal before the South Australian Full Court under a recent criminal justice reform,76 on the basis of ‘fresh and compelling evidence’ of his innocence. (This exceptional subsequent defence appeal was modelled on the prosecution’s exceptional appeal against acquittals under recent double jeopardy reforms.) The fresh and compelling evidence in R v Keogh [No 2]77 revealed the unreliability and bias of the prosecution’s forensic pathologist, Dr Colin Manock, which had ‘materially misled the prosecution, the defence, the trial judge and the jury’.78 In Eastman’s case, too, fresh evidence had come to light regarding the unreliability and bias of evidence provided by the prosecution’s expert witness, police forensic scientist Robert Barnes. This had been revealed in a court-ordered judicial inquiry (‘Eastman Inquiry’), which had ‘a devastating impact upon the reliability and the veracity of the trial evidence given by Mr Barnes’.79 Flawed and biased forensic evidence features prominently in Australian wrongful convictions.80 Exonerations like these highlight the dangers with the adversarial system. The prosecution’s overriding ethical duty is to assist the court in achieving a just result: see 5.50 and 6.20. However, sometimes it appears prosecutors are more interested in winning

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exoneration: where a convicted defendant is later proven to be innocent, and is officially recognised as such

expert witness: a special kind of witness who, because of their specialist knowledge, may be called at trial to give evidence of their opinions about certain aspects of a case

6.34

Dookheea (n 15) [39]. The National Registry of Exonerations (Website) . R v Keogh [No 2] (2014) 121 SASR 307 (‘Keogh [No 2]’). Eastman v DPP (ACT) [No 2] [2014] ACTSCFC 2. Now see Criminal Procedure Act 1921 (SA) s 159. Keogh [No 2] (n 74). Ibid [345]. Board of Inquiry, Supreme Court of the Australian Capital Territory, Inquiry into the Conviction of David Harold Eastman for the Murder of Colin Stanley Winchester (Final Report, May 2014) [1103] (‘Eastman Inquiry’). See, eg, Royal Commission of Inquiry into the Chamberlain Convictions (Final Report, 1987); see, generally, Hamer and Edmond (n 31).

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Copyright © 2020. LexisNexis Butterworths. All rights reserved.

6.35

a conviction. Expert witnesses owe a duty to the court similar to that of prosecutors: ‘An expert witness is not an advocate for a party and has a paramount duty, overriding any duty to the party … to assist the court impartially on matters relevant to the area of expertise of the witness.’81 And yet they too may get caught up in the contest, losing sight of their duty. In the Eastman Inquiry, the inquiry’s commissioner commented that Barnes ‘behaved in a manner totally inconsistent with the independence of a forensic expert. He identified himself with the prosecution and plainly demonstrated his bias in favour of the prosecution.’82 Similar comments about a prosecution expert witness were made in a recent appeal in the New South Wales Court of Criminal Appeal, Wood v The Queen: ‘Rather than remaining impartial and offering his independent expertise to the Court’, ‘A/Prof Cross [the prosecution’s expert witness] took upon himself the role of investigator and became an active participant in attempting to prove that the applicant had committed murder’.83 Unreliable and biased expert evidence has also been identified as major factor in the cases on the National Registry of Exonerations in the United States; other leading causes are witnesses making false accusations, official misconduct, mistaken identification and false confessions.84 It is difficult to determine how often wrongful convictions occur. The number that are recognised and corrected is extremely small relative to the total number of convictions.85 However, it is likely that many more wrongful convictions remain undiscovered. Having failed at first appeal, it is difficult for a defendant to gain the opportunity of obtaining a further appeal. Traditionally, this option was not open at all. A wrongfully convicted defendant’s only option was to persuade the Attorney-General and government to exercise the prerogative of mercy and grant a pardon. Nowadays there are avenues for obtaining a further appeal, but they are narrow. As mentioned at 6.33, Keogh was able to bring a further appeal to the South Australian Full Court, but to do so, he first had to persuade the Court that ‘there is fresh and compelling evidence that should, in the interests of justice, be considered on an appeal’.86 The New South Wales Supreme Court has said, in respect of the provisions operating there, that it ‘is not intended to provide a convicted person with yet another avenue of appeal after the usual avenues have been

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UCPR (n 2) sch 7 ‘Expert witness code of conduct’, r 2 ‘General duties to the Court’. This code has application to criminal cases: Supreme Court Rules 1970 (NSW) r 75.3J. At common law, see National Justice Compania Naviera SA v Prudential Assurance Co Ltd (‘The Ikarian Reefer Case’) [1993] 2 Lloyd’s Rep 68, 81–2. Eastman Inquiry (n 79) [1114]. Wood v The Queen (2012) 84 NSWLR 581; [2012] NSWCCA 21 [758] (the full decision is not extracted in the NSWLR). Although Gordon Wood managed to get his conviction overturned on his first appeal, the criminal process had dragged on over many years. Gordon Wood’s girlfriend, Caroline Byrne, died in 1995. Originally the police thought it was suicide, but by the end of the 1990s it was being investigated as a possible murder, with Wood the prime suspect.Wood was eventually convicted in 2008 but his successful appeal took place several years later. By that time he had spent a couple of decades under investigation and more than three years in prison. National Registry of Exonerations (n 73). In the 12 months to June 2019, 15,481 defendants were convicted in Australian higher courts, and 526,716 in the magistrates’ courts: Australian Bureau of Statistics, Criminal Courts, Australia, 2018–19 (Catalogue No 4513.0, 27 February 2020). Only a handful of convictions upheld on first appeal are later identified as wrongful. Criminal Procedure Act 1921 (SA) s 159(1).

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CHAPTER 6 GOING TO LAW: LEGAL DISPUTE RESOLUTION PROCESSES

exhausted’.87 It is only through a combination of good fortune, the work of criminal justice activists,88 and great personal fortitude that wrongfully convicted defendants like Eastman and Keogh eventually manage to achieve justice. It can be imagined that many wrongfully convicted defendants, having been convicted at trial and failed on appeal, and perhaps still serving time in prison, would lack the resources and the resilience to persevere and succeed. Many commentators believe Australia needs a criminal cases review commission (CCRC) along the lines of those in the United Kingdom.89 This body would have the powers and resources to consider applications from defendants who claim to have been wrongfully convicted, to investigate their cases and, where it appears miscarriages of justice may have occurred, to refer the case back to the criminal appeal court for fresh consideration. Arguably, a CCRC is a crucial piece of criminal justice infrastructure. New Zealand has recently established a CCRC, and Canada may follow.90

6.36

Costs, delays and access to justice 6.37

A major goal for litigation is to provide an efficient way of resolving disputes that gains general acceptance among the community. To a large extent this goal is achieved in Australia, where parties who are unable to resolve disputes themselves generally accept litigation as the means of bringing resolution. It is uncommon for parties to choose instead to take matters into their own hands. For the most part, Australia enjoys the rule of law. And by giving parties control over disputes, the government limits its own costs. However, litigation is an inherently complex operation. Achieving and maintaining efficiency is a constant challenge.The justice system raises perennial and growing concerns over delays, costs and access to justice.91 While the adversarial system saves the government money, the expenses of investigation, gathering evidence, and presenting evidence and arguments at trial are not avoided altogether. The adversarial system allocates these expenses to the parties — and these expenses may be considerable. N =

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R v Milat (2005) 157 A Crim R 565, 574 [26] (Barr J); Application of Holland [2008] NSWSC 251 [9] (Johnson J). See, eg, Colleen Egan, Murderer No More: Andrew Mallard and The Epic Fight to Prove His Innocence (Allen & Unwin, 2010) and the work of Robert Moles and Bibi Sangha on Networked Knowledge (Website) . See, eg, David Hamer,‘Wrongful Convictions,Appeals, and the Finality Principle:The Need for a Criminal Cases Review Commission’ (2014) 37 University of New South Wales Law Journal 270; Lynne Weathered, ‘The Criminal Cases Review Commission: Considerations for Australia’ (2012) 58 Criminal Law Quarterly 245; Robert Moles,‘Institutional Reform in the Context of Criminal Appeal in South Australia’ (2015) 17 Flinders Law Journal 331; Michael Kirby, ‘A New Right of Appeal as a Response to Wrongful Convictions: Is it Enough?’ (2019) 43 Criminal Law Journal 299, 305. Kirby (n 89) 305. See, eg, Lord Woolf, Access to Justice (Final Report, 1996); Law Reform Commission of Western Australia, Review of the Criminal and Civil Justice System in Western Australia (Final Report, September 1999); Australian Law Reform Commission, Managing Justice: Review of the Federal Civil Justice System (originally entitled, Review of the Adversarial System of Litigation) (Report No  89, January 2000); Criminal Law Review Division, New South Wales Attorney-General’s Department, Report of the Trial Efficiency Working Group (March 2009); Anthony Edwards, ‘The Other Leveson Report — the Review of Efficiency in Criminal Proceedings’ [2015] Criminal Law Review 399; Law Council of Australia, The Justice Project (Final Report, 2018).

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In many cases, a party’s expenses will include the cost of engaging legal advice. Adversarial litigation adds numerous technical rules of procedure and evidence to the already complex substantive rules of the common law and legislation. As discussed above, many steps are taken before trial. In civil litigation parties must draft and file pleadings, such as the plaintiff ’s statement of claim and the defendant’s defence: see 6.12. In addition, the parties will take steps to obtain information from the opposing party, seeking court orders for discovery and interrogatories. In most cases, the parties will not have the necessary knowledge or skills to engage in the adversarial contest themselves: ‘a trial is a battle and the lawyer the client’s champion’.92 Some lawyers may see an advantage in using certain technical rules in game-playing strategies that create delays and additional costs.93 Clearly, not everyone engaged in a legal dispute will be able to afford a lawyer: ‘You can’t pay $500 per hour when you earn $500 per week.’94 You have to be very wealthy — or in some cases have your insurance company exercise the right of subrogation and take over the litigation on your behalf — to contemplate going to trial, which could easily cost $100,000 in legal fees.95 Even if you win (which cannot be guaranteed) and the losing party is ordered to pay your costs,96 you may still end up out of pocket. In Dietrich97 the High Court held that a criminal defendant without legal representation could not be guaranteed a fair trial. The Court held that if a defendant facing serious criminal charges cannot afford legal representation, and it is not provided by the state, the trial judge should stay proceedings. In civil cases, too, self-represented litigants raise concerns. Not knowing the complexities of the law or procedure, they require the court’s assistance and tend to slow down proceedings.98 More fundamentally, there is the risk of a ‘justice deficit’.99 ‘If obtaining justice calls for legal expertise, then those who cannot afford to pay for it are in effect denied access to justice.’100 Governments fund the legal costs of some litigants through legal aid schemes. However, there are many other drains on the public purse and the legal aid budget does not stretch very far. Following Dietrich, the state must provide counsel for criminal defendants facing serious charges, but most defendants in less serious criminal matters and most parties in non-criminal matters are ineligible.101

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EG Thornburg, ‘Metaphors Matter: How Images of Battle, Sports and Sex Shape the Adversary System’ (1995) 10 Wisconsin Women’s Law Journal 225, 225. Robert A Kagan, ‘Adversarial Legalism: Tamed or Still Wild?’ (1999) 2 Legislation and Public Policy 217. An unrepresented litigant quoted by Stephen Kós, ‘Civil justice: Haves, Have-nots and What To Do about Them’ (2016) 5 Journal of Civil Litigation and Practice 178, 180. Tania Sourdin and Naomi Burstyner, ‘Cost and Time Hurdles in Civil Litigation: Exploring the Impact of Pre-action Requirements’ (2013) 2 Journal of Civil Litigation and Practice 66, 73. See above n 10 and accompanying text. Dietrich (n 16). Productivity Commission, Access to Justice Arrangements (Inquiry Report No 72, 5 September 2014) vol 1, 498–500; Kós (n 94) 181. Adrian Zuckerman, ‘No Justice Without Lawyers: The Myth of an Inquisitorial Solution’ (2014) 33 Civil Justice Quarterly 355, 356. Ibid 355–6, quoted in Kós (n 94) 181. In New South Wales, for example, the applicant faces several hurdles. First, legal aid is only available for certain types of matters: NSW Legal Aid, Legal Aid Policy (Website) [6.2.1]. And then the applicant must satisfy a means test and a merit test: [6.2]. That is, they must have very limited income and assets, and reasonable prospects of success in the litigation. Even then, there is a final hurdle. NSW Legal Aid must have ‘available funds’: [6.2]. 5 PB 6 PB 0 LL ,

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CASE MANAGEMENT, SETTLEMENT AND GUILTY PLEAS Unsurprisingly, in view of the costs issue, most civil disputes do not go to court. Even where litigation is commenced, the vast majority of disputes settle prior to trial. Traditionally, settlement occurs ‘on the courthouse steps’ immediately prior to trial.102 While late settlement saves some costs of the hearing, it is very disruptive. Considerable time and effort will already have been spent by the parties in ensuring readiness for trial and the court will have scheduled time for trial; late settlement wastes the court’s resources and delays other cases. For this reason, in a departure from the pure adversarial model, legislation gives courts increasing case-management powers and responsibilities. The aim is to achieve ‘just, quick and cheap resolution of the real issues in the proceedings’,103 and the parties are given a ‘duty to assist the court to further’ this goal.104 If a party breaches this duty, this may be reflected in the orders that the court makes with regard to costs.105 A party’s lawyers can also be made liable to pay costs,106 for example, for ‘raising untenable defences for the purpose of delay’.107 To try to facilitate early settlement, the parties may be required to engage in ADR: see 6.49ff.108 Ironically, concerns have been raised that case management requirements, in demanding that more legal work take place at an earlier stage, may actually increase costs.109 However, it seems that these concerns are not borne out.110 Similar concerns about costs and delays apply to criminal matters. The New South Wales Government, for example, recently noted that ‘73 per cent of serious criminal cases end with the defendant pleading guilty, yet 23 per cent of guilty pleas are not entered until the day of trial’.111 It introduced reforms to encourage early guilty pleas, promising that this would reduce expenditure on ‘police, courts and lawyers on both sides’, as well as reducing stress for victims of crime.112 Under the scheme, which commenced on 30 April 2018, criminal defendants charged with indictable offences will receive a reduction in their sentence for pleading guilty, with the size of the discount (up to 25%) depending on the earliness of the guilty plea.113 As with civil procedure reforms, the scheme requires greater case management by courts, earlier exchange of information by the parties, and mandatory case conferencing. Clearly guilty pleas save everyone a great deal of time and expense. If defendants stopped pleading guilty, the number of jury trials might increase nearly fourfold. The system would not be able to cope without a massive increase in resources. Nevertheless, it appears potentially problematic that defendants are being convicted and punished in such

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Julie Macfarlane, The New Lawyer (UBC Press, 2nd ed, 2017) 24. See, eg, Civil Procedure Act 2005 (NSW) (‘Civil PA’) s 56(1). Ibid s 56(3). Ibid s 56(5). Ibid s 99. Judicial Commission of NSW, Civil Trials Bench Book (May 2020) [8-0110], citing Deputy Commissioner of Taxation v Levick (1999) 168 ALR 383; Helljay Investments Pty Ltd v Deputy Commissioner of Taxation (1999) 166 ALR 302. See, eg, Civil PA (n 103) s 26. Sourdin and Burstyner (n 95) 66. Ibid. NSW Department of Communities and Justice, ‘Encouraging Earlier Guilty Pleas’ (Factsheet) . Ibid. Crimes (Sentencing Procedure) Act 1999 (NSW) s 25D.

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great numbers without any genuine judicial assessment of the prosecution case. It might be assumed that a guilty plea provides a very strong indication of guilt. However, the United States National Registry of Exonerations, in a 2015 report, noted that 15% of known exonerees had pleaded guilty.114 Defendants who are led to believe that the prosecution has strong evidence against them, have little faith in the court’s ability to recognise their innocence, and are offered a considerable sentencing discount, may be tempted to plead guilty notwithstanding their innocence.

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TRIBUNALS In addition to its court system, Australia has other official bodies with the job of adjudication, that is, making decisions to resolve legal disputes. These bodies are known collectively as tribunals, but may also be termed boards, committees, commissions, agencies, councils or authorities. Tribunals are sometimes said to perform a ‘quasi-judicial’ function, reflecting the view that courts are the only bodies which carry out ‘judicial’ functions. However, while federal tribunals are not permitted under the Constitution to exercise judicial powers,115 this is not true of state tribunals. The NSW Civil and Administrative Tribunal (‘NCAT’), for example, does exercise judicial power.116 Many decisions of tribunals appear in law reports and on databases like AustLII in much the same way as court decisions: see 18.29–18.30. There are now so many administrative tribunals that their importance in settling disputes approaches, and in some cases exceeds, that of courts.The Fair Work Commission, for example, is empowered to make a broad range of decisions that affect the working conditions of large segments of the Australian community. Similarly, there are numerous Commonwealth, state and territory administrative tribunals that adjudicate complaints against government and in some cases, private sector bodies: see 3.32 and 3.50ff. Tribunals are established by legislation and their authority is defined by their constituting Act. Initially, tribunals dealt with specific areas, such as town planning, medical negligence or guardianship. However, since the late 1960s, tribunals with government-wide jurisdiction have also been created. These have different divisions that deal with specialty areas, such as disputes about human rights, anti-discrimination or housing. These multi-purpose tribunals are now found in all Australian jurisdictions.117 Many tribunal members have legal qualifications, but many members instead (or as well) have qualifications appropriate for the specific matters which the tribunal decides.118 For example, the Mental Health Review Tribunal of New South Wales generally sits as a

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‘Innocents Who Plead Guilty’ (24 November 2015), National Registry of Exonerations (n 73). R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254 (‘Boilermakers Case’). Johnson v Dibbin [2018] NSWCATAP 45 [3]; Kirk v Industrial Relations Commission of NSW (2010) 239 CLR 531 [69]. State tribunals may exercise administrative powers in relation to federal matters but not judicial powers: Gaynor v A-G (NSW) [2020] NSWCA 48 [41]–[57] (Bell P), [86], [88]–[101] (Basten JA), [124]–[140] (Leeming JA). Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’); ACT Civil and Administrative Tribunal Act 2009 (ACT); Civil and Administrative Tribunal Act 2013 (NSW) (‘NCAT Act’); Northern Territory Civil and Administrative Tribunal Act 2014 (NT); Queensland Civil and Administrative Tribunal Act 2009 (Qld); South Australian Civil and Administrative Tribunal Act 2013 (SA); Tasmanian Civil and Administrative Tribunal Act 2020 (Tas); Victorian Civil and Administrative Tribunal Act 1998 (Vic); State Administrative Tribunal Act 2004 (WA). See, eg, NCAT Act (n 117) s 13. 5 PB 6 PB 0 LL ,

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three-member panel comprising a lawyer, a psychiatrist and ‘another suitably qualified’ person.119 Tribunals make a range of different types of decisions. Much of their work is resolving civil disputes, in much the same way as courts decide matters at first instance. For example, the Consumer and Commercial Division of NCAT can consider claims lodged by home owners, traders and insurers about residential building work up to the value of $500,000.120 Tribunals also make decisions which may be unrelated to disputes; for example, the Guardianship Division of NCAT has the power to decide whether to appoint someone as a guardian for a person with a decision-making disability.121 Tribunals and like bodies may be given powers of investigation under legislation; for example, the President of the NSW Anti-discrimination Board has the power to investigate alleged breaches of the Anti-Discrimination Act 1977 (NSW).122 One of the most important and distinctive functions of tribunals is the review of government decisions, conducted at the instigation of persons dissatisfied with decisions made by officials of government departments or agencies. In NCAT, this function is carried out by the Administrative and Equal Opportunity Division.123 Federally, this function is carried out by the Administrative Appeals Tribunal (AAT), which is the prototype of many Australian tribunals. The AAT was established in 1976 to review administrative matters over which federal legislation gives it power. Over 450 pieces of legislation now grant the AAT its wide-ranging jurisdiction. For example, the AAT may be asked to review Centrelink’s denial of a social security payment, or the level at which Centrelink decided it should be paid.124 The AAT may sit anywhere in Australia and its members include both lawyers and non-lawyers. In 2015, the AAT took over the functions of the specialist immigration and refugee, and income and child support tribunals, leading to a massive increase in its caseload. Prior to the establishment of the AAT with its government review powers, persons dissatisfied with government decisions could bring a complaint to a court. However, judicial review by a court operates far more narrowly than AAT review. Courts only have jurisdiction to review government decisions on legal grounds; for example, ‘that procedures that were required by law to be observed in connection with the making of the decision were not observed [or] that the person who purported to make the decision did not have jurisdiction to make the decision’.125 The big advantage of administrative review by tribunals like the AAT, from the applicant’s point of view, is that they generally conduct a merits review. That is, the applicant does not have to demonstrate error and the tribunal will consider the matter afresh, and ‘exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision’.126 Merits review also usually involves consideration of all relevant matters as at the date of the tribunal decision, which means parties do not need to restart the process if their

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merits review: a right to appeal on all the merits of a decision including issues of law, fact and policy

Mental Health Review Tribunal (NSW), ‘The Tribunal’ (Web Page, 9 April 2020) . Home Building Act 1989 (NSW) s 48K. Guardianship Act 1987 (NSW) s 14. Anti-Discrimination Act 1977 (NSW) s 90. See NCAT Act (n 117) s 30; Administrative Decisions Review Act 1997 (NSW). Social Security (Administration) Act 1999 (Cth) pt 4A. Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5(1)(b), (c). AAT Act (n 117) s 43(1).

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circumstances have changed, for example, their financial position has worsened since the original decision.

6.48

INQUISITORIAL AND INFORMAL PROCESSES Another major advantage of tribunals over courts — and this is not limited to their administrative review function — is that they generally operate with less formality than courts, and so are cheaper and quicker. The stated objective of the Administrative Appeals Tribunal Act 1975 (Cth), for example, is to ‘provid[e] a mechanism of review that [among other things] … is accessible; and … is fair, just, economical, informal and quick’.127 Fees for tribunal matters are generally less than for courts. A key difference in this respect is that tribunals are generally far less adversarial than courts. Instead they are said to operate inquisitorially. As discussed at 6.16, adversarial processes place the onus of gathering and presenting evidence on the parties, leaving it to the impartial judge or jury to evaluate the evidence and reach a conclusion. Tribunals, however, often play a more active investigative role. The High Court said of the Refugee Review Tribunal in Minister for Immigration and Citizenship v SZIAI:128 In the exercise of its review function, the Tribunal may obtain such information as it considers relevant. In this sense it has an inquisitorial function. That does not, however, impose upon it a general duty to undertake its own inquiries in addition to information provided to it by the applicant and otherwise under the Act …129 It has been said in this Court on more than one occasion that proceedings before the Tribunal are ‘inquisitorial’, rather than adversarial in their general character. There is no joinder of issues as understood between parties to adversarial litigation. The word ‘inquisitorial’ has been used to indicate that the Tribunal, which can exercise all the powers and discretions of the primary decision-maker, is not itself a contradictor to the cause of the applicant for review. Nor does the primary decision-maker appear before the Tribunal as a contradictor. The relevant ordinary meaning of ‘inquisitorial’ is ‘having or exercising the function of an inquisitor’, that is to say ‘one whose official duty it is to inquire, examine or investigate’. As applied to the Tribunal ‘inquisitorial’ does not carry that full ordinary meaning. It merely delimits the nature of the Tribunal’s functions.130

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The inquisitorial nature of tribunal work is significant in several related respects. There is less of an onus on the applicant to conduct their own investigation. Also, the technical rules of evidence law that operate in the adversarial trial do not apply to tribunals.131 Both considerations may make it cheaper and quicker for a party to bring a matter to a tribunal as compared with a court. Further, because the procedures are less technical and the tribunal carries more of the workload, the applicant may be able to manage the dispute without legal representation, bringing a further reduction in costs. Indeed, in some tribunals legal representation is prohibited or limited.132 A

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further feature is that, in some tribunals, parties generally bear their own costs.133 While this means that a successful applicant’s costs will not be covered by another party, it also means that an unsuccessful applicant does not face the prospect of bearing the additional costs of another party. ALTERNATIVE DISPUTE RESOLUTION Litigation, whether in a court or a tribunal, can be expensive and time-consuming. Further, the winner-takes-all, zero-sum-game approach can be counterproductive where the parties are involved in ongoing business, work, neighbourhood or familial relationships. In these respects ADR carries certain advantages. It is generally less formal, quicker and cheaper. It can also be more consensual, bringing a result that may satisfy all parties, thus preserving important relationships between them. A further feature that may be desirable to parties in some circumstances is that, unlike most court and tribunal hearings, the outcome may be kept confidential and cannot be used as any kind of precedent. ADR may occur in conjunction with litigation in courts or tribunals, or it may occur outside the formal adjudicative system. Many different kinds of procedures are covered by the term ADR. Methods employed by the AAT134 include the following: • Conferencing — the parties confer with an officer of the AAT to identify the issues, discuss the future conduct of the matter, and to explore whether an agreed outcome is possible. • Mediation — a mediator assists the parties in defining the issues, suggests options and helps the parties reach an agreement. The mediator has no role in deciding or directing the parties to reach a particular outcome. • Conciliation — similar to mediation but the conciliator takes a more active role in assisting the parties to reach agreement. • Neutral evaluation — a subject-matter expert provides a non-binding opinion on the dispute and the various options available. • Case appraisal — similar to a neutral evaluation but focused on the facts rather than possible legal outcomes. ADR also includes relatively formal arbitration. This involves use of an independent and impartial expert to make a decision following an adversarial process. This differs from other kinds of ADR in that an outcome is imposed on the parties, as in a court or tribunal; the outcome is not consensual. Nonetheless, because arbitration resolves disputes outside the public court or tribunal system, it may bring some of the advantages of other forms of ADR, such as speed, lower cost and confidentiality of outcomes. While the term ‘alternative dispute resolution’ quickly gained acceptance, such procedures often operate in aid of more formal processes.135 ADR may obviate, shorten or assist any subsequent litigation. For that reason the ‘A’ in ‘ADR’ is sometimes taken as 133 134

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See, eg, ibid s 60. See, eg, Administrative Appeals Tribunal, General Practice Direction (2019); Alternative Dispute Resolution Guidelines (2006). Laurence Street, ‘The Court System and Alternative Dispute Resolution Procedures’ (1990) Alternative Dispute Resolution Journal 5, 9.

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standing for ‘additional’, ‘assisted’, or ‘appropriate’ dispute resolution.136 ADR can assist parties in reaching settlement without litigation or before the hearing, reducing the costs for parties and the court or tribunal. Or, if it does not bring a total resolution to the dispute, ADR may at least narrow the issues, resulting in a shorter, cheaper hearing. Accordingly, whether ‘alternative’, ‘additional’, ‘assisted’, or ‘appropriate’, the various processes offer methods whereby disputes can be resolved more quickly, less expensively and generally with greater satisfaction of the parties.This latter advantage may be particularly enjoyed in those ADR processes where the outcome is agreed rather than externally imposed. As noted at 6.40, courts increasingly engage in case management in an effort to reduce the time and expense of litigation. As part of their case-management powers, many courts and tribunals have the power to refer the parties to a dispute to ADR during the course of litigation.137 It should be noted that where this occurs, the ADR processes are separate from the litigation. Those negotiations remain confidential, and should the ADR fail and the parties return to the court or tribunal, evidence cannot be adduced of any offers or other communications made during the ADR.138 If the ADR is successful, and agreement is reached, the court or tribunal may, without a full hearing, make orders reflecting the terms of the agreement.139 Alternatively, the parties may formalise their agreement separately from the court, through completion of a deed.140 In either case, in the event that one of the parties is later unhappy with the agreed settlement, it will not be subject to the usual appeal processes. ADR should not be viewed merely as an adjunct to court processes. Some disputes will go to ADR without litigation. Indeed, in large commercial ventures such as construction projects, it is common for contracts to include dispute-resolution clauses141 that ‘provide opportunities to the parties to reach an early amicable settlement through negotiation, mediation or expert determination’.142 Some clauses go to some lengths in an effort to ensure that parties will not rush to court. It is clear that an agreement by the parties to exclude or ouster the courts’ jurisdiction will be invalid as being contrary to public policy.143 However, an agreement may validly require the parties to attempt ADR as a condition precedent for the commencement of litigation.144 Such clauses reflect the commercial benefits of ADR, which include not only the conservation of the parties’ resources, but also the maintenance of a positive working relationship between the parties. Good will may be damaged in adversarial litigation, which can be problematic where parties have ongoing business.

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See, eg, Katrina Markwick, ‘Appropriate Dispute Resolution in Cases of Family Violence and the Collaborative Practice Model’ (2015) 5 Family Law Review 4; Thomas Denehy and Paula Gerber ,‘What Constitutes World’s Best Practice for Dispute Avoidance in Standard Form Contracts?’ (2012) 28 Building and Construction Law Journal 266, 268. See, eg, Civil PA (n 103) pt 4; AAT Act (n 117) pt IV div 3. See, eg, Civil PA (n 103) ss 30–31; AAT Act (n 117) s 34E. See, eg, Civil PA (n 103) s 29; AAT Act (n 117) s 34D. See, eg, Civil PA (n 103) s 29(3). Michael Pryles,‘Dispute Resolution Clauses in Contracts’ (1990) 1 Australasian Dispute Resolution Journal 116. Ahsan Ashraf, ‘Uncertainty in Dispute Resolution Clauses: Is there a Way to Escape the Commercial Bargain?’ (2018) 29 Australasian Dispute Resolution Journal 107, 108. See, eg, South Australian Railways Commissioner v Egan (1973) 130 CLR 506. So-called Scott v Avery clauses, from Scott v Avery (1856) 10 ER 1121. See Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337, 378; Ashraf (n 142) 109. 5 PB 6 PB 0 LL ,

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Distinction between matters of fact and matters of law 6.54

An important conceptual distinction emerging from the preceding sections is that between fact and law.145 In a jury trial, this distinction draws the boundary between the responsibilities of the judge, the tribunal of law, and those of the jury, the tribunal of fact. Legislation governing appeals generally provides greater scope for intervention by the appellate court on legal issues than on factual findings. Judicial review of administrative decisions is generally confined to errors of law; one of the features of administrative tribunals is that they provide merits review, including any factual matters. In some situations, the distinction between fact and law is easily seen. Consider, for example, the issue of identity in a murder trial.As a matter of law, for the accused to be guilty of murder, generally it must have been the accused rather than someone else who performed the act that caused the death of the victim. Determining who performed the fatal act — for example, whether to believe the prosecution’s eyewitness evidence — is clearly a question of fact for the jury.There are cases, however, where the issue of identity presents greater legal complexity. For example, the prosecution may allege that the murder was part of a joint criminal enterprise for which the defendant should be held responsible even though he did not pull the trigger.The scope of the joint criminal enterprise doctrine is quite controversial, having reached the High Court on several occasions.146 The legal requirements for joint criminal enterprise will be determined by the trial judge on the basis of legal materials.The trial judge will then instruct the jury as to the legal requirements regarding identity and joint criminal enterprise. Whether these requirements are satisfied will then be a question of fact for the jury, determined based on their consideration of the evidence. While the fact–law distinction is readily discernible in many issues (such as identity), many others involve concepts that are more difficult to pin down. In Collector of Customs v Agfa-Gevaert Ltd147 (‘Agfa-Gevaert’) a joint judgment of five Justices of the High Court of Australia noted: N = /DD B AL

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The distinction between questions of fact and questions of law is a vital distinction in many fields of law. Notwithstanding attempts by many distinguished judges and jurists to formulate tests for finding the line between the two questions, no satisfactory test of universal application has yet been formulated.148

As the High Court observed in Ruddock v Taylor,149 there are many cases … in which a distinction between mistake of law and mistake of fact could not readily be drawn, if drawn at all … Errors about the conclusion cannot safely be divided between errors of law and errors of fact. Often, perhaps much more often than not, the error will be one of mixed law and fact.150

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The fact-law issue arises in many contexts, perhaps most frequently where words in a legislative provision require interpretation. The High Court in Ag fa-Gevaert 145

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William Twining and David Miers, How to Do Things with Rules (Cambridge University Press, 5th ed, 2010) 126. McAuliffe v The Queen (1995) 183 CLR 108; Miller v The Queen (2016) 259 CLR 380; IL v The Queen (2017) 262 CLR 268; cf R v Jogee [2017] AC 387. (1996) 186 CLR 389 (‘Agfa-Gevaert’). Ibid 394. (2005) 222 CLR 612. Ibid 627.

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considered the following propositions, laid down by the Full Court of the Federal Court in Collector of Customs v Pozzolanic (‘Pozzolanic’):151 1. The question whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning is a question of law. 2. The ordinary meaning of a word or its non-legal technical meaning is a question of fact. 3. The meaning of a technical legal term is a question of law. 4. The effect or construction of a term whose meaning or interpretation is established is a question of law. 5. The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law.152

While the High Court in Ag fa-Gevaert was not required to express a final view, it offered support for the first three propositions. As the High Court noted, the Federal Court itself had qualified the fifth proposition in Pozzolanic to the extent that it was inconsistent with the second proposition: The [Federal] Court said that, when a statute uses words according to their ordinary meaning and it is reasonably open to hold that the facts of the case fall within those words, the question as to whether they do or do not is one of fact.153

And it appeared to the High Court that the fourth proposition too was at odds with the second proposition and, for that reason, also in need of qualification: If notions of meaning and construction are interdependent, as we think they are, then it is difficult to see how meaning is a question of fact while construction is a question of law without insisting on some qualification concerning construction that is currently absent from the law.154

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An illustration of the application of these principles is provided by Director General Department of Land and Water Conservation v Bailey.155 The defendant was acquitted by the Land and Environment Court of New South Wales on charges of clearing native vegetation without a permit under the Native Vegetation Conservation Act 1997 (NSW). The case concerned the defendant’s construction of a reservoir on a rural property. It was clear that the defendant had cleared vegetation in the construction of the reservoir and that he had not obtained a permit for this, but the trial judge considered that the clearing fell within a statutory defence or exemption; it was clearing ‘for the purpose of a rural structure’.156 At the same time, the trial judge held that another statutory exemption did not apply. The construction of the reservoir was not a ‘designated development’.157 While the trial judge acquitted the defendant, he stated a question of law for the Court of Appeal under s 5BA of the Criminal Appeal Act 1912 (NSW) as to the operation and application of these exemptions. Under proposition 1 from Pozzolanic it is a question of law whether a term has a technical or legal meaning, or an ordinary meaning. And then, under propositions 2 and 3, this categorisation determines whether the term’s meaning is a question of fact or a question of law. The Court of Appeal applied these propositions:

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(1993) 43 FCR 280 (‘Pozzolanic’). Ibid 289. Agfa-Gevaert (n 147) 395. Ibid 397. (2003) 136 LGERA 242 (‘Bailey’). Schedule 3 cl(e) of State Environmental Planning Policy No  46 — Protection and Management of Native Vegetation (NSW). Native Vegetation Conservation Act 1997 (NSW) s 12(f). 5 PB 6 PB 0 LL ,

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On the two stated questions the Court is asked to construe the terms ‘rural structures’ and/or ‘designated development’. Clearly, the latter term is a technical or legal term, and the construction of that term would accordingly be a question of law. In my opinion, the former compound expression does not carry any technical or legal meaning …158

In line with Agfa-Gevaert and Pozzolanic, the Court had little scope to intervene with regard to the ordinary meaning of ‘rural structures’, as this was a question of fact. The Court could only override the trial judge’s findings if these ‘were not findings reasonably open for his Honour to make’.159 The Court held that the trial judge’s finding that the reservoir was a rural structure was reasonably open.160 However, the Court had greater scope for intervention with regard to the second exemption, relating to a ‘designated development’, as this was the interpretation of a technical or legal term and therefore a question of law. The Court held that the trial judge had made a mistake in the construction of this technical or legal term and provided its own construction, setting a precedent for future cases.161

Further reading

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• Hilary Astor and Christine Chinkin, Dispute Resolution in Australia (LexisNexis, 2nd ed, 2002). • Laurence Boulle and Nadja Alexander, Mediation: Skills and Techniques (Lexis Nexis Butterworths, 3rd ed, 2019). • Jerome Frank, Courts on Trial: Myth and Reality in American Justice (Princeton University Press, 1949). • Roderick Howie, Paul Sattler and Marissa Hood, Hayes & Eburn Criminal Law and Procedure in New South Wales (LexisNexis Butterworths, 6th ed, 2019). • Michael Legg, ‘The Future of Dispute Resolution: Online ADR and Online Courts (2016) 27(4) Australasian Dispute Resolution Journal 207. • Julie Macfarlane, The New Lawyer (UBC Press, 2nd ed, 2017). • Tania Sourdin, Alternative Dispute Resolution (6th ed, Thompson Reuters, 2020). • Adrian Zuckerman et al, Zuckerman on Australian Civil Procedure (Lexis Nexis Butterworths, 2017).

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To enhance your learning experience, use the student resources available on Lexis® Learning See the Visual Preface at the front of this book on how to register.

158 159 160 161

Bailey (n 155) [23]. Ibid [34]. Ibid [37]. Ibid [42].

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2 Sources of Law: Case Law 175

8 Precedent in Australian Courts

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Case Law and Precedent Let us consider the reason of the case. For nothing is law that is not reason.1 Sir John Powell in Coggs v Barnard (1703) 2 Ld Raym 909, 912; 92 ER 107, 109.

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Introduction

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− Development of case law

7.3

Reading and analysing a case

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− Undertaking an analysis

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EXERCISE 7: Analysing a case

7.12

− Doctrine of precedent or stare decisis

7.13

− Rationale of the doctrine of precedent

7.17

− Hierarchy of courts

7.19

− Identifying the ratio decidendi

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Rules in contention

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Level of generality and distinguishing

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Finding a ratio among diverging majority judgments

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Equally divided courts

7.36

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Dissenting judgments

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Ratio decidendi and obiter dicta

7.45

EXERCISE 8: Identifying ratio and obiter Authoritative obiter dicta

7.51

Judicial law-making

7.53

− Filling gaps in the law

7.54

− Developing the law

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Law reporting

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− Authorised and unauthorised report series

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− Cases on the internet

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CHAPTER 7

CASE LAW AND PRECEDENT

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This chapter introduces students to case law — the output of courts and tribunals. A case is a judicial decision resolving an individual dispute; however, as we will see, judicial decisions are often modelled on the way in which similar cases were decided in the past, and they may also provide a model or a precedent for how future cases will be decided. Case law, or common law, is one of the major sources of law, the other being legislation which is the focus of later chapters. Common law is the law developed by judges, usually those in superior courts and tribunals. Historically, case law was the major source of legal rules but, due to increasing government regulation of activity during the 20th and early 21st centuries, legislation in its various forms has replaced cases as the main source of Australian law. Nevertheless, the study of cases remains extremely valuable for law students; understanding case law remains an essential skill for lawyers. Even in areas governed by legislation, it is necessary to understand how that legislation has been interpreted by the courts and to be able to anticipate how courts may apply it in new disputes. The first part of this chapter examines the structure of a case and how to break it down into its parts for the purpose of analysis. The judicial resolution of many a dispute turns upon the facts of the dispute. Parties typically present conflicting versions of what happened. However, our focus in this chapter is on the law that applies to the facts. From this perspective, a particular focus in analysing a case is the identification of the legal principle applied in the case. We will consider how courts derive legal principles from past cases, and the factors that influence whether a case may be taken as an authoritative source of law in future cases. The remainder of the chapter begins our study of the doctrine of precedent, outlining its basic structure and the forces impacting upon it. This doctrine determines the weight that should be given to the legal principles applied in past cases, or precedents. The key factors are: • the position in the court hierarchy of the court or tribunal that decided the precedent relative to the present court or tribunal; • whether the statement of principle made by the earlier court or tribunal was necessary to the resolution of the case (a ‘ratio’) or whether it was merely a passing comment (‘obiter’); • in a full court, the number of judges that have given support to the statement of principle.

7.1

7.2

doctrine of precedent: the set of principles that determines whether the law expounded in a case should be followed in later, similar cases

In this chapter we consider the advantages of courts following precedents, namely predictability, efficiency and equality. However, we also consider the forces operating against a strict doctrine of precedent. Greater flexibility gives courts and tribunals the ability to seek justice in the individual case, and to respond to changes in society and community values. As we’ll see, these competing forces set up an ongoing tension between judicial conservatism and judicial activism. The operation of the doctrine in the Australian court hierarchy is examined in Chapter 8. Before turning to our discussion of the mechanics of reading and analysing a case, first we look at what a case is and how case law has developed.

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DEVELOPMENT OF CASE LAW Each case represents the solution to a particular dispute between the parties about which the trial judge, or bench of appeal court judges, has made a decision. Broadly speaking, judges make decisions in order to resolve disputes. Declaring the law in order to head off future disputes is a secondary consideration. For example, if a building is damaged by blasting for a road, a court will decide who, if anyone, is to blame and what compensation the owner should be paid; the court is less concerned with making rules that will help prevent future damage to buildings although, indirectly, case law may have that effect. By contrast, it is the legislature’s job to regulate blasting operations, either in statutes or, more likely, through delegated legislation, balancing the need for efficient road construction against the interests of affected property owners. Cases might be thought of as individual building blocks, unlike legislation which has greater scope to provide a more complete framework of rules to govern a given area. When judges make decisions they are concerned primarily with the individual cases before them. But together, a series of decisions dealing with the same general topic has the effect of creating a firm legal framework. Within that framework created by various individual judicial decisions, each case represents a brick in the wall. Consider, for example, the House of Lords decision in Donoghue v Stevenson2 in 1932. Ms Donoghue claimed that she found the decomposed remains of a snail in a bottle of ginger beer she was drinking, and from which she suffered shock and severe gastroenteritis. The bottle had been bought by her friend so Ms Donoghue had no contract with the seller and could not sue for a breach of contract. Instead she brought an action against the manufacturer who had supplied the ginger beer.The drink was in bottles which were opaque, thus preventing anyone seeing the contents before consumption. Lord Atkin said that the only way in which the action could succeed was if Ms Donoghue could show that

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[t]he manufacturer of an article of drink sold by him to a distributor, in circumstances which prevent the distributor or the ultimate … consumer from discovering by inspection any defect, is under [a] legal duty to the ultimate … consumer to take reasonable care that the article is free from defect likely to cause injury to health.3

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Study of several previous cases or ‘building blocks’, decided over a lengthy period, led Lord Atkin to identify the ‘neighbour principle’ as the key to determining whether a duty was owed.

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[A]cts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief. In this way rules of law arise which limit the range of complainants and the extent of their remedy. The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be — persons who are so closely and directly affected by my act that

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[1932] AC 562. Ibid 578. 3 N I4 N I .

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I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.4

Donoghue v Stevenson’s neighbour principle is seen with hindsight as having been a most important building block — a keystone. But much construction work has taken place since. The implications of the neighbour principle have been worked out through subsequent cases as courts have sought to construct a coherent principled body of negligence law. As will be discussed later in this chapter, the High Court carried out quite a bit of work in this area in the latter part of the 20th century. This kind of systematic development of legal principles by the courts was not possible until decisions started being recorded, making them available to subsequent courts. The early English Yearbooks were described in 1.25. Those were followed by the Nominate Reports and finally, in the 1860s, by the official reports put out by The Incorporated Council of Law Reporting.5 This body was established to publish case reports after they had been checked by the judges who made the decisions. (For more detail on law reporting, see 7.66ff and 21.14ff.) At that stage the basic principle of the doctrine of precedent became settled. While an essential element of the common law system, the doctrine of precedent is not the only factor that influences a court in reaching a decision. As will become apparent, the context in which the decision is made and the attitudes of the judicial decision-maker can also exert influence. Clearly the common law was created by courts and it continues to develop over time. Absolute judicial conservatism is not possible. Donoghue v Stevenson was a major development in negligence law. The relative influence on judicial decision-making of the objective historical case-law record as against an individual judge’s subjectivity and creativity is a matter of perennial debate.

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Reading and analysing a case Cases are known by the names of the people, or parties, who are in dispute. The parties might include companies or representatives of the state as well as ordinary individuals. Those involved in the initial hearing of a civil case are generally called the plaintiff and the defendant. In the title of a civil case the plaintiff ’s name appears first. On appeal, the name of the person bringing the appeal, the appellant, appears first in the case name. The other party in the appeal, whose name appears second, is known as the respondent. The party bringing criminal charges to trial is known the prosecution; depending upon the jurisdiction, this party may also be known as the Crown, the State or the People. The party against whom charges are brought is known as the defendant or the accused (either term is acceptable). Traditionally, in Australia, the prosecution in criminal proceedings has been considered to be acting on behalf of the Crown. The case name includes ‘The Queen’ or ‘The King’, often signified by the abbreviation R for Regina or Rex, depending on whether the monarch reigning at the time of the case is female or male respectively. However, in certain jurisdictions, charges are now brought in the name of the relevant state, for example, ‘The State of Western Australia’. In some cases, particularly those involving children or, more 4 5

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7.6 plaintiff: the party to a case who brings the action: see 21.18 defendant: the party to a case against whom the action is brought: see 21.18

Ibid 580. The full title now is The Incorporated Council of Law Reporting for England and Wales.

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recently, refugee cases, the court may conceal a person’s identity using a pseudonym, initials, random letters or numbers. For a more extensive discussion of the naming of parties and cases, see Chapter 21. Case law is a major source of law. Even in areas governed by legislation, an understanding of the cases interpreting that legislation is crucial. Many cases, even those studied at the beginning of a law course, can be long and complicated.They may contain convoluted facts, complex law, and two or more judgments in which judges have used the same or different reasoning to come to the same or different conclusions. It is advisable, therefore, for students to learn, at an early point in their studies, how to read and analyse a case. The object of the exercise should always be borne in mind when reading and analysing a case. Commonly, lawyers and law students will be seeking to identify the principle or principles for which the case is authority, and the significance of these principles in the context of other rules of law. On other occasions, however, the reader may be seeking to understand the key facts, the historical context in which the case arose, or the arguments made by each party. Shortcuts can be taken in reading cases which are reported. Some lawyers and students simply read the ‘headnote’ found at the beginning of the report. The headnote is a summary of the facts of the case and the decision reached by the court. An example appears below at the beginning of the report of Hart v Rankin6 at 7.12. While this may provide a helpful introduction to the case, headnotes can be unreliable unless they have been approved, prior to publication, by the judge or tribunal member who heard the case. If not approved, the headnotes may be neither comprehensive nor accurate as they are written by independent law reporters: see 7.66. Much research today relies on online sources which will often not contain a headnote, making it imperative for readers to be able to identify the key issues and principles for themselves. When reading long cases, it is helpful to note, for later use, page or paragraph references to particular points of interest. In cases where there are several judgments, the name of the judge (or judges, if more than one joined, or agreed with, a judgment) should also be noted. If a case does not appear particularly important to the reader it may be sufficient to note only the following information: (a) citation; (b) court, including whether single judge, Full Court or Court of Appeal; (c) brief statement of material facts; (d) ground(s) of appeal and/or issue(s) to be decided; (e) reason(s) for decision, including principle(s) of law; and (f) decision.

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Where there are multiple grounds of appeal and/or issues to be decided, steps (d)–(f) will need to be repeated for each ground or issue. If a detailed analysis is required, it may be necessary to note a wider range of matters, including some or all of the following: (a) citation; (b) court, including whether single judge, Full Court or Court of Appeal; 6

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brief statement of material facts; procedural history; grounds for appeal and/or issues to be decided; summary of court’s analysis of law; principle of law to be applied; description of how law was applied to the facts; decision; orders made by the court; and any features of the case suggesting that it should be viewed in its social or cultural context.

Steps (f)–(i) will need to be repeated for each issue that the court discusses. And where the decision includes more than one judgment, these steps may need to be repeated for those issues on which there is a divergence of opinion. Matters (e), (g), (h) and (i) correspond with the steps in the IRAC methodology (discussed further in Chapters 16 and 22). UNDERTAKING AN ANALYSIS Here we provide an example of a case analysis in accordance with the more detailed method. The decision is extracted below in a slightly edited form, with marginal labels identifying the parts of the decision corresponding with the various points of analysis. This is followed by a brief discussion of each step.

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IRAC: an acronym for the case analysis method Issue; Rule; Application; Conclusion

7.10

Warringah Properties Pty Ltd v Babij [2006] NSWSC 702 Supreme Court of New South Wales Malpass AsJ

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Claim for restoration of dividing fence — destroyed by deliberate act — distinction between fence and retaining wall — fence may have other functions — legislative changes — intention of the legislature — indemnity costs and leave. JUDGMENT

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[1] The Plaintiff and the Defendants are respectively the owners of adjoining properties. It now seems to be common ground that what has been described as a sandstone structure (the ‘structure’) stood (at least in a rough sense) upon the common boundary between the two properties. The dispute that has ensued between the parties came into being when the Plaintiff demolished the structure on or about 10 May 2005. The active participant on the part of the Plaintiff was the late Mr Humphreys (a director and licensed builder). [2] The Court has been told that the Plaintiff acquired its property in or about 2003. It has also been told that the property was acquired for the purposes of redevelopment. The Defendants have lived in their property for many years. [3] The Court has before it photographs of the common boundary area prior to demolition. It also has a photograph of that area subsequent to demolition. I shall briefly

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endeavour to describe in a general sense the boundary area. A rocky outcrop stood on the Plaintiff’s property adjacent to the common boundary. The height of the outcrop is variable. The common boundary is about 14.5 metres in length. The structure extended along the whole length of the common boundary. Looking from the property of the Defendants, at least in part the structure had a height of about 2 metres. Looking from the rocky outcrop on the Plaintiff’s property, at least in part the sandstone structure was about waist high. There was also some wire mesh with stakes on the top of the structure. The Plaintiff has contended that there was fill on its property between the  rocky outcrop and the structure and that it was about 1  metre high (this was a matter in issue between the parties). The height of the fill was lower than the height of the structure and was not observable from the property of the Defendants. [4] The Plaintiff obtained development approval. Without notice to the Defendants, it proceeded to effect demolition of the sandstone structure and says that it also removed the fill. It is said that it was necessary to demolish the structure and remove the fill to enable the construction of a driveway on the Plaintiff’s property (the driveway being part of the redevelopment). At that time (and for a period thereafter) it was contended by the Plaintiff that the structure was on its property. The late Mr Humphreys gave evidence to that effect. [5] Subsequent to the demolition, also without consultation with the Defendants, the Plaintiff erected a paling fence on the common boundary. This replacement fence was not accepted as a satisfactory replacement by the Defendants. During pre-litigation correspondence, the Plaintiff came to take the stance that the sandstone structure was a retaining wall and not a dividing fence (it was then being contended that it retained the fill). [6] The Defendants brought proceedings in the Local Court seeking relief pursuant to s 8 of the Dividing Fences Act 1991 (the ‘Act’). It provides a remedy for restoration costs where a dividing fence has been damaged or destroyed by a negligent or deliberate act.

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[7] A contested hearing took place between the parties (it lasted about 2 days). The principal issue was whether or not the structure was a retaining wall or a dividing fence. The Defendants were successful in the proceedings and the Plaintiff was ordered to pay the sum of $26,000.00. It was also ordered to pay costs on an indemnity basis. [8] The Plaintiff has brought an appeal to this Court against both orders. It alleges that there has been error in point of law. It requires a grant of leave to challenge the costs order. [9] The hearing of these proceedings took place on 10 July 2006. Again, the principal issue between the parties was whether or not the structure was a retaining wall or a dividing fence. [10] The Act affords the relief that was sought by the Defendants in relation to the restoration of a dividing fence. Section 3 of the Act contains definitions of ‘dividing fence’ and ‘fence’. The definition of ‘fence’ excludes inter alia a ‘retaining wall’. Section 3 does not define a ‘retaining wall’. Some assistance as to the meaning to be given to those words may be found in what was said in and what was referred to in Kontikis & Anor v Schreiner & Ors (1989) 16 NSWLR 706. [11] The Act introduced other provisions which were different to those previously found in its predecessor (the Dividing Fences Act 1951 (the ‘1951 Act’)). Sections 7 and

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13 thereof (which required contribution in equal proportions) have been replaced by different provisions (see inter alia ss 7 and 14(c)). Liability to contribute in equal proportions is only applicable where the standard of the dividing fence is not greater than the standard for a sufficient dividing fence. The Act now allows the making of orders determining the manner in which contributions for fencing work are to be apportioned or re-apportioned. These changes would appear to have been motivated by observations made in Kontikis.

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[12] Kontikis was decided whilst the 1951 Act was still in force. What was decided therein has been seen to be of relevance to the definition of ‘fence’ that was introduced into the Act. It would seem that a ‘retaining wall’ was expressly excluded so that the definition would accord with the position at common law (the exclusion of a retaining wall did not appear in the 1951 Act). In that case the Court gave consideration to a brick wall and held it was retaining wall and not a dividing fence within the meaning of the 1951 Act. [13] The definitions of ‘dividing fence’ and ‘fence’ are as follows: ‘ “dividing fence” means a fence separating the land of adjoining owners, whether on the common boundary of adjoining lands or on a line other than the common boundary. “fence” means a structure, ditch or embankment, or a hedge or similar vegetative barrier, enclosing or bounding land, whether or not continuous or extending along the whole of the boundary separating the land of adjoining owners, and includes: (a) any gate, cattlegrid or apparatus necessary for the operation of the fence, and (b) any natural or artificial watercourse which separates the land of adjoining owners, and (c) any foundation or support necessary for the support and maintenance of the fence,

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but does not include a retaining wall or a wall which is part of a house, garage or other building.’

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[14] The definition of ‘fence’ can be seen to be one of great width. Save for the exclusions, it would appear to be contemplated to pick up inter alia any structure that has the characteristics of enclosing or bounding land. A ‘fence’ satisfies the statutory requirements of a ‘dividing fence’ if it separates the land of adjoining owners. The concept of separation has been said to have a functional connotation. [15] There has been attack on the expression of reasoning process by the Magistrate (Mr George LCM). In my view, in this case, it is unnecessary to embark on an analysis of his expression of reasoning process. I consider that any demonstrated error would not assist the Plaintiff. [16] There is little historical evidence pertaining to the structure (it had been in existence for a very long time). As a consequence, there is a lack of express evidence as to the purpose of its construction. However, what evidence there is compellingly demonstrates that it meets the statutory requirements of both a ‘fence’ and of a ‘dividing fence’. The structure was at least roughly situated on the common boundary. It extended along the whole boundary. Further, it can be observed that it was a structure that was higher than the fill. It had the characteristics of enclosing or bounding land. It also separated the two properties and performed the function of a dividing fence.

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[17] In the previous paragraph I have mentioned certain of the material that the Magistrate had before him. The mention was not intended to be exhaustive. I consider that not only was the result reached by him reasonably open on the material, it was the correct result.

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[18] It was correct to reach the result that the structure was a ‘fence’ within the meaning of the Act and not a ‘retaining wall’. It was also correct to reach the result that the structure was a ‘dividing fence’ within the meaning of the Act. [19] The Plaintiff’s case is dependent on evidence that there was fill behind the structure on the Plaintiff’s property and that it was performing some retaining function in relation to that fill. In my view, even assuming that to be the case, it does not seem to me to be determinative in the circumstances of this case. [20] The question of what is a ‘retaining wall’ has been little argued. No definition was presented by counsel. There are dictionary meanings. They are to the effect of it being a wall built to hold back or support material (including earth and water).

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[21] There may be overlapping of purposes. Apart from being erected to perform the purpose of a separating structure, a ‘fence’ may also serve other functions (such as a function to provide support). In the determination of the question of whether a particular structure is a ‘fence’ it can be expected that each case will turn on its own circumstances (with regard being had inter alia to matters of physical characteristics and function). Even if a fence has a support function, the Court is not precluded from finding that it was a ‘fence’ (see  Kontikis pp  711–712). I do not consider that it was intended by the legislature that a structure necessarily fell outside the Act merely because it provided some support or other function.

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[22] Questions concerning onus (relating to the burden to prove that the structure either was or was not a retaining wall) were agitated during the hearing. The questions were not fully argued. They do not have to be decided in this case and are better left for another day.

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[23] In addition to what has already been said, I am not satisfied that there was any error in the awarding of costs on an indemnity basis. It seems to me that the Magistrate was entitled to form strong views as to the conduct of the Plaintiff and to take that conduct into account when dealing with the questions of costs. The Plaintiff had deliberately acted without notice to demolish the structure so that it would not impede its redevelopment. Thereafter it obstructed the restoration of an appropriate dividing fence on the specious bases that the structure had been a retaining wall on its own property. It needlessly put the Defendants to the not inconsiderable expense of propounding defended proceedings to obtain the relief that they were entitled to under the Act. Apart from the absence of manifest error, there is a lack of any other features which would attract the granting of leave. [24] In conclusion, it can be said that the Plaintiff had the onus in this appeal to demonstrate error in point of law and that such error justified the disturbing of the decisions made by the Magistrate. In my view, the Plaintiff failed dismally to discharge that onus.

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[25] The Summons is dismissed. Save for the costs of a Notice of Motion the Plaintiff is to pay the costs of the proceedings. The costs of that Notice of Motion which was brought to obtain an order for security for costs are presently reserved and can be dealt with by Registrar Howe in due course.

The following provides guidance as to how one might undertake an analysis in accordance with the more detailed paradigm given in 7.9. a Citation, including name of case: This is fairly straightforward. It is the citation for the case, found at the start of the case report in this example: Warringah Properties Pty Ltd v Babij [2006] NSWSC 702 Like many cases today, while not reported in an official law report series this case is available online. The type of citation used is referred to as a ‘medium neutral citation’ (MNC). The citation starts with the names of the parties in italics; 2006 is the year of judgment; NSWSC abbreviates the court name (New  South  Wales Supreme Court) and 702 is the case number (it was the 702nd case decided in 2006 by the New South Wales Supreme Court).The number at the start of each paragraph in the judgment is a paragraph number. When a case is cited by its MNC, paragraph numbers in square brackets — for example, [23] — are used as pinpoint references to identify precisely where information can be found, rather than using page numbers as for a law report. See further in Chapter 21 on citing law reports in general. b Court, including single judge, Full Court or Court of Appeal: The court in which the case is heard is also usually straightforward. The information is found at the start of the published decision. This is a decision of Associate Justice Malpass — which may be written Malpass  AsJ — of the Supreme Court of New South Wales. Among other things, Associate Justices hear applications that arise before trials, conduct certain civil trials and hear appeals from the Local Court, as in this case. c Brief statement of material facts: Case reports may contain many facts, not all of which are material. Generally speaking, facts are ‘material’ when they are crucial to the decision made by the court; that is, they are the facts upon which the decision is based. Which facts are material is often apparent from the relevant legislation. In other cases, this may only become apparent once the judgment has been read and the principles of law identified. In some cases, whether facts are material may remain a little unclear. In the above extract, not all the facts are material. For example, it is not relevant to the outcome that the defendant had lived on the property ‘for many years’: at [2]. An initial statement of material facts follows. The plaintiff and defendant were owners of adjoining properties separated by a structure along the shared boundary of the properties. Due to the different elevations of the properties the structure was about two metres high from the

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7.11 registrar: an official who maintains records, in this instance for a court

pinpoint reference: a reference to a specific page, paragraph, footnote or other section of a source

Creyke, Robin, et al. Laying down the Law, LexisNexis Butterworths, 2020. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6413182. Created from monash on 2021-02-06 11:29:57.

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defendant’s perspective and waist high from the plaintiff ’s. The plaintiff claims there was fill on its side of the structure. Without notice to the defendant, the plaintiff had demolished the structure and subsequently erected, also without notice, a paling fence. Actually, the presence of fill turned out to be immaterial in this case: see at [19], [21] and the discussion below at (f), (g) and (h). It should be noted that in many cases, particularly at  first instance, the law is relatively clear-cut and it is the material facts that are in dispute. If a reader’s interest in a decision is its factual reasoning rather than its legal reasoning, a different (nonlegal) form of analysis will be called for. Further, in some cases, it may be principles of procedural or evidence law that are in dispute as they have a crucial bearing on the court’s fact-finding. In such cases, with a little modification, the present form of analysis may be applied. Procedural history: The procedural history records the steps taken in the proceeding prior to the hearing. This should include a review of the earlier decisions, if any, by the trial court and lower appeal court. If the case is being heard for the first time — that is, ‘at first instance’ — there will be only one entry. For cases that are on appeal, as here, there could be several earlier decisions.This material can usually be found in the headnote. The procedural history in this example would be: This is a case on appeal to the Supreme Court of New  South  Wales from a decision of the Local Court of New South Wales in which the defendant (in the appeal) (Babij) was awarded $26,000 in restoration costs under s 8 of the Dividing Fences Act 1991 (NSW): at [6]–[7]. Students may be puzzled as to why Malpass  AsJ observes that ‘[t]he Defendants brought proceedings in the Local Court’ (emphasis added): at  [6]. Ordinarily the party commencing proceedings is the plaintiff. However, the term ‘defendant’ here refers to the parties’ position in the appeal. Malpass AsJ notes that ‘[t]he Plaintiff has brought an appeal to this Court’: at [8]. It is more common for the parties in an appeal to be termed appellant and respondent but appeals from the Local Court to the Supreme Court are commenced by summons, and the party commencing proceedings is termed the plaintiff. Grounds for appeal and/or issues to be decided: The issue to be decided is the question or questions on which the court must rule. The issue may be one of law or of fact, or whether a particular rule or principle applies to the facts. For example, who, if anyone, was negligent? What is the meaning of a statutory provision? On appeal, the court must determine whether the grounds of appeal are made out. In first-instance judgments, as mentioned above, the issue is often purely factual. On appeal the questions may be ones of law only, with the appellant arguing that the trial court misstated the law. More commonly,7 appeal courts are presented with issues combining law and fact, the appellant arguing that

Ruddock v Taylor (2005) 222 CLR 612, 627.

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f

g

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the trial judge misinterpreted and misapplied the law. For further discussion of the fact/law distinction, see 6.54ff. In Warringah Properties Pty Ltd v Babij there were two grounds of appeal, both a mixture of fact and law. The first was that the primary judge had erred in law in determining that the structure was a ‘dividing fence’ rather than a ‘retaining wall’. The second was that the primary judge erred in awarding costs on an ‘indemnity basis’, ruling that the plaintiff should pay not only party/party costs as is usually the case, but also solicitor/client costs: at  [8]. The awarding of indemnity costs generally reflects the court’s disapproval of the way the losing party has conducted its case. Summary of court’s analysis of law: Law students and lawyers tend to be most interested in appeal decisions where difficult issues of law have been resolved. In such cases, courts consider primary sources of law (legislation and past cases), possibly some secondary commentaries, and the parties’ competing submissions in order to arrive at the correct principle(s) of law to be applied in the instant case. In order to understand the court’s reasoning, it is helpful for students and lawyers to summarise the court’s discussion of legal authorities, whether case law or statute, and whether these were followed, disapproved or distinguished. In this particular case, the legal questions that were analysed were ones of statutory interpretation; ‘what was the meaning of “retaining wall”?’: at  [9]. Malpass  AsJ considered the legislative definitions of ‘fence’ and ‘dividing fence’ in s  3 of the Dividing Fences Act 1991 (NSW) (as it then was).The Court stated that the definition of ‘fence’ was ‘of great width’ and would ‘pick up inter alia any structure that has the characteristics of enclosing or bounding land’ and that a fence would be a dividing fence if it functionally ‘separates the land of adjoining owners’: at [13]. The Court then turned to the question of what constitutes a ‘retaining wall’, noting that there was no definition in the Act: at [10]. Dictionary meanings defined retaining wall as a structure ‘built to hold back or support material’: at [20]. The Court applied Kontikis v Schreiner8 decided under the former Dividing Fences Act 1951, concluding that even if a fence has an additional support function, that did not preclude it from being a fence: at [21]. Principle of law to be applied: The principle of law to be applied is arrived at by the legal analysis summarised above in (f). If the law is in dispute, the analysis can run into the statement of principle. How the principle applies to the facts is discussed in (h). Under s 8 of the Dividing Fences Act 1991, a party is entitled to restoration costs where a ‘dividing fence’ has been damaged or destroyed by a negligent or deliberate act: at [6]. Whether a structure is a fence or ‘retaining wall’ is to be determined on a case-by-case basis through the application of s 3 of the Act. Thus, a fence would include any structure that has the characteristics of ‘enclosing or bounding land’ and a fence would be a dividing fence if it functionally ‘separates the land of adjoining owners’: at  [13],  [21]. The fact that a fence may also provide support does not

party/party costs: the costs of conducting the litigation, including court fees and the solicitor’s costs; the courts have devised a scale of fees of what is fair and reasonable, which are paid generally by the unsuccessful party to the successful party to the litigation as part of the settlement of the case

solicitor/client costs: the professional fees of a solicitor for their services; these are usually more generous than party/ party costs and include fees for work done and expenses such as barristers’ fees, search fees, fees for reports and photocopying

(1989) 16 NSWLR 706.

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h

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indemnity costs: all costs incurred provided they are reasonable

i

j

k

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preclude it from being a fence: at [21]. Note that the effect of s 8 was not analysed by the Court, but merely stated, whereas the definitions of ‘dividing fence’ and ‘retaining wall’ were subject to some discussion. The Court did not analyse the law as to the awarding of costs but stated that the conduct of the parties was to be taken into account in determining an award: at [23]. Description of how law applied to the facts: Having identified the material facts and the applicable legal principles, it becomes possible to resolve the dispute by applying the law to the facts.This step may be fairly mechanical, or it may require judgement and discretion, depending on the law’s level of abstraction. (Consider for example, judgments of whether conduct is ‘reasonable’ or ‘offensive’.) It is this application that produces the decision, given in (i) below. In the first ground of appeal here, the Court concluded that the structure was a ‘dividing fence’ within s 3 as it ran along the whole common boundary and was higher than the fill. It therefore bounded the land, separating the two properties, and was not erected only as a retaining wall to contain the fill: at [16]. As to the second ground of appeal, that of costs on an indemnity basis, the Court concluded there had been no error by the lower court as the plaintiff had deliberately destroyed the fence, obstructed the restoration of an appropriate fence on a ‘specious’ basis, and ‘needlessly’ put the defendants through the costs of embarking on the present litigation: at [23]. The lower court’s disapproval was reflected in the grant of indemnity costs. Decision: In this step, the outcome of the application of the facts to the law is recorded. For example, was the plaintiff negligent and, if so, what damages should be awarded? The decision will often be briefer than the application of the law or analysis of the law at (i) and (g). If the case is an appeal, then the decision will be to dismiss or uphold the appeal, with various consequent orders. In this case, the Court determined that the plaintiff had failed to demonstrate an error of law and dismissed the summons, thus upholding the original decision of the Local Court: at [24]. Order made by the court: The orders made by the court can usually be found at the very end of the judgment. They record the legal consequences ordered by the court following its decision. In this case they can be described as follows: Summons dismissed with the plaintiff to pay costs. Social or cultural context: Not all judgments will contain material worthy of note in this step. Other cases, however, will convey statements or attitudes reflective of the social or cultural context in which the judgment was given. For example, cases may reflect views on, among other things, gender roles, race, the environment or societal values in existence at the time the judgment was delivered. This case does not contain any notable features in this regard. As a point of interest, the legislation that was discussed in this case was subsequently amended in 2008 so that s 3 now reads:

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“fence” means a structure, ditch or embankment, or a hedge or similar vegetative barrier, enclosing or bounding land, whether or not continuous or extending along the whole of the boundary separating the land of adjoining owners, and includes: (a) any gate, cattlegrid or apparatus necessary for the operation of the fence, and (b) any natural or artificial watercourse which separates the land of adjoining owners, and (c) any foundation or support necessary for the support and maintenance of the fence, but does not include a retaining wall (except as provided by paragraph (c)) or a wall which is part of a house, garage or other building.

In line with Warringah Properties Pty Ltd v  Babij this definition envisages that a ‘retaining wall’ may be subsumed in the statutory notion of ‘fence’. While the legislative language of course differs from that in the judgment, this may be taken as an endorsement of that decision. It appears the case would be decided the same way under today’s law. EXERCISE 7: ANALYSING A CASE Analyse the case which follows in accordance with the less detailed of the two methods provided in 7.9 above.

7.12

Hart v Rankin [1979] WAR 144 Supreme Court of Western Australia Burt CJ

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15, 30 September 1977 Criminal law and procedure — Driving offence — Motor vehicle — Driver — Whether person in charge of motor car under tow driving a motor vehicle — Road Traffic Act 1974–1978 ss 49(1), 5(1). Transport — Motor vehicle — Driver — Whether person in charge of motor car under tow driving motor vehicle — Road Traffic Act 1974–1978 ss 49(1), 5(1). Criminal law and procedure — Sentence — Sentences imposed for three offences occurring over comparatively short period of time — Whether sentences should be cumulative — Question of degree — Whether total period of imprisonment excessive. The appellant was charged upon each of three complaints that he had driven a motor vehicle on a road whilst not being the holder of a driver’s licence contrary to the provisions of s  49(1)(a) of the Road Traffic Act  1974–1978. He was convicted of each charge upon his plea of guilty. He had made three journeys in his car between 4.30 in the afternoon and 6.30 the following morning. On the last occasion he sat in the driver’s seat of his car and steered it while under tow. He appealed against his conviction in respect of the last offence contending that his car was not a motor vehicle within the meaning of the Act and that he was not driving it. The justices had

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sentenced him to 12 months’ imprisonment in respect of each charge and ordered that the sentences be served cumulatively and fixed a minimum term of six months. The appellant appealed against the sentences imposed by the justices on the ground, inter alia, that the sentences should not have been made cumulative. Held: (1) Upon the proper construction of s 49(1) of the Road Traffic Act 1974–1978 the appellant drove a motor vehicle at the material time, because:— (a) the car was a motor vehicle as defined by s 5(1) and remained a motor vehicle notwithstanding that at the material time it was under tow and was unable to propel itself as it was designed to do; (b) while the verb ‘to drive’ was not defined by the Road Traffic Act, the appellant was the driver of the motor vehicle as defined by s 5(1) of the Act since he was in fact in control of the motor vehicle although it was under tow. R v MacDonagh [1974] 2 WLR 529 at 531; [1974] 2 All ER 257 at 259, applied. Wallace v  Major [1946] 2 All  ER 87; Caughey v  Spacek [1968] VR 600 and McGrath v Cooper [1976] VR 535, distinguished. (2) The sentences imposed by the justices in respect of each offence should have been made concurrent because the offences occurred over three fairly short journeys over a comparatively short period of time and in addition the total period of imprisonment of three years was excessive. JG Picton-Warlow, for the appellant. GF Scott, for the respondent. Cur adv vult Other cases cited: R v Roberts [1965] 1 QB 85; Murphy, Davidson & Ward v Watson [1975] WAR 23; R v Shaw [1975] RTR 161; Alberts v Pethick (Appeal No 19 of 1976).

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Burt CJ. … The appellant who is a person of Aboriginal descent within the meaning of the Aboriginal Affairs Planning Authority Act  1972, was charged upon each of three complaints that he had driven a motor vehicle on a road whilst not being the holder of a driver’s licence. Each charge was laid under s 49(1)(a) of the Road Traffic Act. He pleaded guilty to each charge and in each case he was convicted on his plea. Upon it appearing that he was at all times a person who was disqualified from holding a licence (s 49(2) of the Road Traffic Act) the sentence as noted on the record of court proceedings was in each case: ‘Imp. in first instance: Twelve months’ imprisonment. Accumulative Minimum six months before being eligible for parole.’ The appellant complains that the sentence passed upon each conviction was excessive in the circumstances and he appeals against his conviction on one of the three complaints — Complaint No 55 of 1977. Appeal against conviction: Upon the appellant pleading guilty upon his conviction the prosecuting sergeant stated the facts to the presiding justices. From what was said it appears that at about 4.30 on the afternoon of 5 May 1977 the appellant drove his car from the Williams Native Reserve along the Williams-Narrogin Road to the Williams Hotel. He did that again at about 9.45 on the evening of that day. It seems that his car then ran out of petrol or broke down and reading between the lines it was left at the hotel overnight. At about 6.30 on the following morning the appellant had his car towed back to the reserve. The appellant was then sitting in the driver’s seat and

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steering it. That was the act of ‘driving’ which was relied upon for the purposes of the third charge. The appellant by his order to review challenges his conviction upon that charge for three reasons. He says in the first place that the justices ought not to have accepted his plea of guilty because they ‘did not satisfy themselves that he [the appellant] was capable of understanding the nature of the charge’, the proposition being that by reason of s 49 of the Aboriginal Affairs Planning Authority Act the justices could not accept a plea of guilty until they had so satisfied themselves. This ground was not pressed. Section 49 of the Act requires that a plea of guilty entered by a person of Aboriginal descent be not admitted ‘where the court is satisfied upon examination of the accused person that he is a person of Aboriginal descent who from want of comprehension of the nature of the circumstances alleged, or of the proceedings, is or was not capable of understanding that plea of guilty …’ It is not suggested that it did so appear to the court nor is it suggested that an ‘examination’ of the appellant would have led to its so appearing. That ground, in my opinion, is without substance. The next ground taken is that from the statement of facts as given by the prosecuting sergeant it appears that what the appellant was driving, if he was driving, at the material time was not a ‘motor vehicle’. A ‘motor vehicle’ is defined by the Road Traffic Act to mean, ‘a self-propelled vehicle that is not operated on rail; and the expression includes a trailer, semitrailer or caravan while attached to the motor vehicle’. At the material time the vehicle was not ‘self-propelled’. It was being towed. Therefore, the appellant contends, it was not at  the material time a ‘motor vehicle’. One answer to that might be to say that while it was being towed it was a ‘trailer’ and hence within the definition of ‘motor vehicle’. The answer, however, which I would give would be to say that the definition is describing and defining a thing in terms of its functional design and not with reference to the way it is performing at any particular time. A conventional motor car is, I think, a ‘motor vehicle’ as defined and it remains a motor vehicle notwithstanding the fact, if it be the fact, that it has run out of petrol, or has a flat battery, or for some other such reason is unable at the time to propel itself as it was designed to do. Then and finally it is said that the appellant did not at the material time ‘drive’ the motor vehicle. The verb ‘to drive’ is not defined by the Act but the noun ‘driver’ is. That word is defined to mean, ‘Any person driving, or in control of, a vehicle or animal’. From that it is, I think, reasonable to say that to be in control of the vehicle is to drive it. I was referred to the decision of the Divisional Court in Wallace v Major [1946] 2 All ER 87, as an authority which it is said denies that conclusion. That was a case arising under and decided upon the construction of the Road Traffic (Driving Offences) Act 1936 (UK) and upon the regulations made under that Act. As such it cannot be an authority which controls the answer to the present question which in the terms of the local legislation is, as it seems to me, a simple question of fact, the question being whether a person steering and, so far as he can, by the application of brakes controlling the speed of a vehicle which is being towed by another, can be said to be in control of the towed vehicle. I think, although the question I know has been otherwise answered although upon different legislation — see  Caughey v  Spacek [1968] VR 600, and McGrath v  Cooper [1976] VR 535 — that robust common sense, which seems commonly to be resorted to in this area of the law, would require one to answer the question in the affirmative. I would, with respect, accept as being applicable to the local statute

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the remarks appearing in the reasons of the Court of Appeal in R v MacDonagh [1974] 2 WLR 529 at 531; [1974] 2 All ER 257 at 259: ‘There are an infinite number of ways in which a person may control the movement of the motor vehicle, apart from the orthodox one of sitting in the driving seat and using the engine for propulsion. He may be coasting down a hill with the gears in neutral and the engine switched off; he may be steering a vehicle which is being towed by another. As has already been pointed out, he may be sitting in the driving seat while others push, or half sitting in the driving seat but keeping one foot on the road in order to induce the car to move’. To say that a person in the position of the appellant in this case was not in control of his vehicle would seem to me to be saying that if he were not there his vehicle would nevertheless obediently follow the tow with proper tension on the tow rope. I would deny that as a question of fact. To achieve that result requires that the towed vehicle be steered and its speed controlled and the person who is doing those things, I think, is in control of that vehicle. It is, as I have said, a question of fact: see Tyler v Whatmore [1976] RTR 83. In the instant case the appellant pleaded guilty and, in my opinion, and in the terms of s 197(1)(a) of the Justices Act, ‘in the circumstances of the case there are (no) reasons which are sufficient to show that the decision of the justices in convicting the person … should be reviewed’. … The appellant also appeals from the sentence passed upon him in each case. The threshold question here is to find out what the sentence was. It has on all sides been assumed that the total sentence with respect to the three convictions was imprisonment for three years — one year in each case cumulative — with a minimum of 18  months to be served before being eligible for parole — six months in each case cumulative. I do not think that this is so. By s  37(3) of the Offenders Probation and Parole Act: ‘Where a person is before a Court to be sentenced upon convictions of two or more offences that Court, notwithstanding that it sentences the person to be imprisoned in respect of all or any of those offences for which he is convicted and has then to be sentenced, shall not fix a minimum term in respect of each of the offences for which he is sentenced to be imprisoned but if the Court is of the opinion that a minimum term should be fixed in respect of those offences, it shall fix a minimum term in respect of the aggregate period of imprisonment the person shall be liable to serve under all the sentences then imposed’. To read the sentences as noted so as to extract from them three minimum terms each of six months made cumulative one upon the other requires that the word ‘accumulative’ as there appearing should apply both to the finite and the minimum term. That is not what the notation says and to read it in that way assumes that the justices were unaware of the provisions of s 37(3) of the Act. For these reasons it would seem to me to be more reasonable to say that the effect of the three sentences was that the appellant was sentenced to imprisonment for three years with a minimum of six months to be served before being eligible for parole. The appellant says that the period of 12  months’ imprisonment was in each case excessive in the circumstances. It was the maximum sentence which could be imposed upon him, but bearing in mind that the appellant had been convicted on nine previous occasions of driving a motor car without a licence I do not think that he can complain about that. Whether it was right to make each the second and third sentence cumulative upon the first is, however, another matter. The convictions show the offences occurred in the course of three fairly short journeys and over a comparatively short period of time. It is not a situation to which it is easy to apply established notions. If a man drives his car for, say, one mile and then stops, gets

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out and buys a packet of cigarettes and then re-enters his car and drives on, has he committed two offences or one offence, and if two, then should the punishments imposed for each be made cumulative? It is, of course a matter of degree but I think that if it can in broad terms be said that the appellant was using his car on a particular day including, on the facts of this case, his driving on the following morning, then the proper punishment should not be made to depend on the number of stops and starts. So judged this case could be said to be near the borderline, but when one considers the total period of imprisonment ordered — three years — then that, in my opinion, confirms the view that each period of imprisonment ought to have been made concurrent. In my opinion: — (1) The appeal against conviction on charge No 55 of 1977 should be dismissed. (2) The period of imprisonment imposed in each case should not be reduced but each should be served concurrently with the other. (3) The period to be served before being eligible for parole being a period fixed in respect of the time to be served under all the sentences should be six months. To this extent the appeals are allowed and there will be orders accordingly. Solicitors for the appellant: Aboriginal Legal Service. Solicitor for the respondent: State Crown Solicitor. RODNEY GREAVES

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Doctrine of precedent or stare decisis This chapter is concerned with finding statements of law in past cases. Past cases provide precedents which may be binding in some subsequent cases. As will be seen, extracting a principle of law from a precedent is often not straightforward. One issue is that, in judicial decisions, statements of law are not provided according to a single fixed set of words. This is a significant difference between judicial decisions and legislation. Sometimes the principles of law that have been applied in a case are not explicitly stated in the decision at all; those principles are merely implicit in the judgments. In other cases, although the judge may quite specifically state the rule being applied, this might be done more than once — each time in a different form of words. The difficulty is compounded where an appeal court’s decision flows from several different judgments, each containing one or more statements of the rule.When interpreting a case, therefore, it is often possible to state the rule for which it is authority in different ways.This is one reason why case law rules are more flexible than statutory provisions, but frequently less certain. Although the meaning of legislation is sometimes unclear, at least the rule is expressed in a single form of words. Other issues also arise in applying the doctrine of precedent. The effect of the doctrine is that, when deciding cases, courts have regard to past decisions in which the law and the facts are similar. The relative weight or authority of a case, however, may vary and this too is determined by the doctrine of precedent. Nearly all legal systems (including civil law systems) rely on the authority of precedent, although with differing

7.13

7.14

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stare decisis: the doctrine of binding precedent

7.15 ratio decidendi: the reason for a decision in a case; the judge’s decision on the material facts

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7.16

degrees of formality and strictness. Countries that derive their legal systems from the English common law are said to employ the principle of stare decisis, which literally translates as ‘to stand on what has been decided’.This is quite a strict approach to precedent. According to Cross and Harris, the orthodox interpretation of stare decisis is to ‘keep to the rationes decidendi of past cases’.9 ‘Rationes decidendi’ is the plural of ratio decidendi which means the reason for the decision. A later court may, in some situations, be strictly bound by the rationes of past cases. There is ongoing debate about the extent to which, in any given situation, the doctrine of precedent allows a court discretion as to the principle to be applied in the present case. The doctrine of precedent itself draws a distinction between precedents that are strictly ‘binding’ and those which are merely ‘persuasive’. Where a precedent is strictly binding, the present court must apply it, even if it views the principles laid down as wrong, unwise or harmful. Where a precedent is persuasive, the present court may be able to avoid applying those principles. However, the fact that the present court simply disagrees with those principles may not provide sufficient reason to depart from the precedent. There is flexibility in the doctrine of precedent, and often courts can avoid following precedents they disagree with. Nevertheless, it is not uncommon to find judges expressing their ‘judicial regrets’ about the law they are compelled to apply.10 The general rules of the doctrine of precedent in common law systems can be summarised as follows: • each court is bound by decisions of courts higher in its hierarchy; • a decision of a court in a different hierarchy or lower in the same hierarchy may be persuasive but is not binding; • a court is not bound by its own past decisions but will depart from them with reluctance; • only the ratio decidendi of a case is binding; • obiter dicta (‘remarks in passing’, see 7.45ff below) are not considered binding but may be persuasive; and • precedents do not lose their force by lapse of time. Further, it is axiomatic that only propositions of law will be viewed as rationes decidendi. Conclusions of fact by a superior tribunal or court in the judicial hierarchy do not bind an inferior tribunal or court, especially in different proceedings.11

9 10 11

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Rupert Cross and JW Harris, Precedent in English Law (Oxford University Press, 4th ed, 1991) 100. Ibid 36. Contrast s 25B of the Dust Diseases Tribunal Act 1989 (NSW) which may be viewed as extending the doctrine of precedent to certain findings of fact. Section 25B(1) provides ‘(1) Issues of a general nature determined in proceedings before the Tribunal (including proceedings on an appeal from the Tribunal) may not be relitigated or reargued in other proceedings before the Tribunal without the leave of the Tribunal, whether or not the proceedings are between the same parties.’ This extension may be viewed as being based on three considerations. First, very similar issues arise in many of the cases before the Tribunal, eg whether exposure to a particular level of asbestos dust causes mesothelioma. Second, the consideration of these issues turns on expensive and time-consuming expert evidence.Third, given the aggressively fatal nature of dust diseases once they take hold, it can be a race against time for the Tribunal to decide before the sufferer of the disease succumbs: see, eg, (Re Mowbray) Brambles Holdings Ltd v British American Tobacco Australia Services Ltd (No 6) [2006] NSWDDT 7.

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These rules and the concepts on which they are based are discussed in the remainder of this chapter. They are revisited in Chapter 8, which is takes a closer look at how they operate in the context of Australia’s federal system of interrelated court hierarchies. RATIONALE OF THE DOCTRINE OF PRECEDENT Branson and Finkelstein  JJ explained the doctrine of stare decisis in Telstra Corporation v Treloar:

7.17

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The doctrine of stare decisis takes its name from the Latin phrase ‘stare decisis et non quieta movere’ which translates as ‘stand by the thing decided and do not disturb the calm’. It is a doctrine based on policy.The rationale for the doctrine can be grouped into four categories: certainty, equality, efficiency and the appearance of justice. Stare decisis promotes certainty because the law is then able to furnish a clear guide for the conduct of individuals. Citizens are able to arrange their affairs with confidence knowing that the law that will be applied to them in future will be the same as is currently applied. The doctrine achieves equality by treating like cases alike. Stare decisis promotes efficiency. Once a court has determined an issue, subsequent courts need not expend the time and resources to reconsider it. Finally, stare decisis promotes the appearance of justice by creating impartial rules of law not dependent upon the personal views or biases of a particular judge. It achieves this result by impersonal and reasoned judgments.12

Further, as Kirby  P explained in X  v Almalgamated Television Services Pty Ltd [No  2], ‘[t]he binding authority of precedent is related to political organisations of a country’s courts and to the power of a court to reverse the decision of another lower in the judicial hierarchy’.13 Decisions of a higher court are binding on lower courts in the same hierarchy because, on appeal, the higher court would have the power to overrule decisions of the lower courts. Also, the judges in the higher courts have greater seniority and are presumably more learned. It is only the ratio from a previous case higher in the same court hierarchy that is binding. The explanation for the ratio, but not obiter dicta (singular: obiter dictum), being binding is that a court takes greater care in stating a rule that forms a reason for its decision than it does in making a passing remark. In addition, judges may be reluctant to make definitive pronouncements on the hypothetical situations discussed in obiter. At the same time, it is recognised that it is not always easy to distinguish between the ratio and an obiter dictum: see 7.45ff. Precedents are used in many areas other than the legal system. In deciding an issue, decision-making bodies of all kinds will consider previous decisions in relation to similar issues and will be aware they are setting an example for the future.The doctrine as applied in the common law system is a refined and formalised example of normal decisionmaking. HIERARCHY OF COURTS Since the common law doctrine of precedent is premised on the hierarchical structure of the court system, the different elements of the hierarchy, and how they relate to one 12

13

obiter dicta: a legal principle expounded by a judge which is not necessary for the judge’s decision in the case

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7.19

(2000) 102 FCR 595, 602. See also Dyson Heydon,‘How Far Can Trial Courts and Intermediate Appellate Courts Develop the Law?’ (2009) 9 Oxford University Commonwealth Law Journal 1, 9–13 (‘How Far?’). (1987) 9 NSWLR 575, 584.

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jurisdiction: has dual meanings: (a) the territory over which legal power extends: eg Queensland, the Commonwealth, or Australia; (b) the function and the extent of the authority of a court or tribunal in relation to the matter before it

7.21

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7.22

another, must be considered. The same basic court hierarchy is found in all common law jurisdictions (in the territorial sense); however, differences of detail exist. A description of the main features of the Australian and several other common law court hierarchies is given in Essential Legal Toolkit A at the end of the book. To take New South Wales as an example, there are essentially five levels in the hierarchy. At the bottom level is the Local Court presided over by magistrates. Next is the District Court, which is presided over by District Court judges. Then the Supreme Court, which is presided over by Supreme Court Justices. Above that are the Court of Appeal and the Court of Criminal Appeal, which are usually made up of benches of senior Justices, including the Chief Justice, President of the Court of Appeal, and Justices of Appeal. And finally, above all is the High Court of Australia. These are the courts with general jurisdiction (in the sense of a court’s functions and authority).There are, in addition, specialist courts such as the Drug Court and the Industrial Court, and a range of tribunals. It should also be noted that the High  Court is actually a federal court that plays an important role in the interpretation, application and development of New South Wales law. Most courts above the lowest level have both original and appellate jurisdiction (in the second sense). To say that a court is exercising its original jurisdiction means that it is hearing a case at first instance. There may have been pre-trial hearings dealing with case management issues (see Chapter 6); however, this is the first time matters of substance have been considered. Conversely, appellate jurisdiction, as the name suggests, is where a court is hearing an appeal against a decision of a court (or tribunal) lower in the hierarchy. For example, in New South Wales, while the District Courts and the Supreme Court have some appellate jurisdiction, the term ‘intermediate appeal court’ ordinarily refers to the Court of Appeal and Court of Criminal Appeal. These intermediate appeal courts specialise in civil and criminal law respectively. All the other general courts have both civil and criminal jurisdiction. Some of the complexities relating to the doctrine of precedent that are raised by tribunals and the interrelation of state and federal court hierarchies are discussed in the next chapter.The important thing to note for present purposes is that the court hierarchy plays two important interrelated functions. First, it establishes avenues of appeal, and, second, it determines which precedents are strictly binding. Because appellate courts have the power to reverse the decisions of lower courts, lower courts should follow the law as stated by the appellate courts. Where a lower court fails to follow the precedent of an appellate court, the lower court is liable to be reprimanded and pulled sharply back into line. Reich v Client Server Professionals of Australia Pty Ltd (‘Reich’)14 provides an illustration. Reich concerned litigation being conducted in the Industrial Relations Commission of New South Wales in Court Session, a specialist court.The Full Bench was considering an appeal from a first-instance decision in which Maidment J avoided following a previous decision of the Full Bench. Maidment J had considered the Full Bench precedent but treated it dismissively, favouring an earlier line of authority. In Reich the Full Bench said of Maidment J: His Honour was, of course, not sitting as a member of an appeal bench but as a trial judge and, as such, bound by decisions of Full Benches of this Court and of its predecessors. The 14

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(2000) 49 NSWLR 551 (‘Reich’).

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policy reasons for that situation are so obvious one hesitates to state them. However, they are helpfully set out, both in terms of principle and of policy, in a decision of the former Industrial Commission in Court Session in Re Hospital Employees Pharmacists (State) Award [1979] AR (NSW) 348 at 350–351 where the Full Bench … said: ‘It was the duty of the chairman to follow a decision of the Commission which was directly in point. The scheme of the Act provides for the Commission to exercise a supervisory appellate jurisdiction concerning decisions of the conciliation committees. A failure at committee level to follow decisions of the Commission is conducive to the bringing of appeals and the inevitable delay in finalizing industrial claims which an appeal causes. The present case provides an example. The principle involved is aptly stated by Stephen J in Viro v The Queen (1978) 141 CLR 88 at 129 in these terms: “The first duty of a court is to administer justice according to law. However in the case of an inferior court operating within a system where the doctrine of precedent applies, the existence of authority binding upon it determines for it what it must understand to be the law. It must accept the law to be as the precedent authority has declared it to be, whatever may be its own inclinations in the matter. The sanction implicit in the doctrine of precedent is simple and effective; if an inferior court fails to observe the doctrine the superior court will correct its decision on appeal. Thus the existence of an appeal is inherent in and essential to the doctrine.” Apart from such consideration, any failure at committee level to follow decisions of the Commission can only impair the consistency and uniformity in decisions of the various tribunals constituted by the Act which has always been seen as desirable. The decision of Dey J was not only binding on the committee but, in our view, was also correct.’15

Lower courts can be in a particularly difficult position where a binding precedent makes no sense to them. In 1995 in Pfennig v The Queen (‘Pfennig’)16 the High Court established an admissibility test for evidence of a criminal defendant’s other misconduct (also known as similar fact, propensity or tendency evidence) which trial courts and intermediate appeal courts had a great deal of trouble making sense of. On its face, the test was virtually impossible to satisfy.17 Legislatures intervened ‘to lower the threshold for admissibility of similar fact evidence by abolishing … the … Pfennig test’.18 In time, only Queensland was left struggling with the common Pfennig test. In R v O’Keefe (‘O’Keefe’)19 the Queensland Court of Appeal developed a workaround which came to be adopted by Queensland criminal courts. In a criminal case before the District Court of Queensland, the trial judge followed O’Keefe, admitting evidence of the defendant’s other alleged victims, leading to his conviction on a series of sexual 15 16 17 18

19

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Ibid [53]. (1995) 182 CLR 461. R v W [1998] 2 Qd R 531, 537, 533–4; R v Vinh Le [2000] NSWCCA 49 [116]. Velkoski v The Queen (‘Velkoski’) 45 VR 680 [58]. The legislative responses were Crimes Act 1958 (Vic) s 398A (introduced 1997); Evidence Act 1906 (WA) s 31A (inserted 2004); and Evidence Act 1929 (SA) s 34S (inserted 2011). Apart from Queensland, the other jurisdictions adopted the Uniform Evidence Law (‘UEL’), ss 97, 98 and 101 of which have been held to depart from Pfennig: R v Ellis (2003) 58 NSWLR 700. The UEL legislation is: Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic). The UEL test, itself, has been described as ‘exceedingly complex and extraordinarily difficult to apply’: Velkoski [33]. [2000] 1 Qd R 564 (‘O’Keefe’).

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assaults. This approach and the convictions were upheld by the Queensland Court of Appeal.20 However, the defendant then appealed to the High Court which, in Phillips v The Queen (‘Phillips’),21 in a unanimous judgment held: The trial judge from time to time referred to Pfennig v The Queen. But he did not apply the tests stated in that case. Rather he followed the agreement of counsel and applied the tests advanced in R v O’Keefe.The Queensland Court of Appeal in R v O’Keefe said that the tests it stated were the ‘only sensible resolution’ of passages in Pfennig v The Queen which were not as ‘workable’ as the views expressed by minority judges, revealed ‘fundamental difficulty’ and ‘artificiality’, were ‘rather perplexing’, had led to ‘the expression and application of different tests’ in state courts and had a ‘dubious pedigree’. It must be said at once that it is for this court alone to determine whether one of its previous decisions is to be departed from or overruled. Of course, in criminal cases it is often necessary for trial judges and Courts of Criminal Appeal to elaborate upon rulings of this court; to gather together rules expressed in several cases; to apply rules to different facts and sometimes to reconsider rules affected by later legislation. Within spaces left by the binding determinations of this court, trial judges and intermediate courts retain their proper functions. However, these do not extend to varying, qualifying or ignoring a rule established by a decision of this court. Such a rule is binding on all courts and judges in the Australian judicature. … The tests advanced in O’Keefe are expressed differently. Because they are expressed differently it cannot be assumed that in every case they would operate identically to the tests expressed in Pfennig. Indeed, much that is said in the reasons in O’Keefe might be read as suggesting that the tests propounded there were intended to have a different operation from those stated in Pfennig. These are reasons enough to conclude that the O’Keefe tests should not be adopted or applied. Intermediate and trial courts must continue to apply Pfennig.22

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These observations prompted one commentator to suggest that the High Court was treating its decisions ‘like sacred texts’, an approach which ‘would threaten to ossify the common law, rather than allowing its development’.23 The next time the issue reached the High  Court, it was noted that Phillips had become ‘one of the most criticised decisions of the High Court of all time’.24

7.24

IDENTIFYING THE RATIO DECIDENDI Courts are bound by the precedents of courts higher in the court hierarchy. However, only the ratio decidendi in a case (the legal reason for the decision) — that is, the pronouncement of legal principle necessary for the judge’s decision on the established facts of the case — is binding. Arriving at a statement of the ratio is not always straightforward. A number of difficulties may arise, for example: • It may be difficult to determine whether the principle of law was in contention in the earlier case, a requirement for the principle to form a ratio in the strict legal sense.

20 21 22 23 24

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R v PS [2004] QCA 347. (2006) 225 CLR 303 (‘Phillips’). Ibid [59]–[60], [64] (citations omitted). Jeremy Gans, ‘Similar Facts after Phillips’ (2006) 30 Criminal Law Journal 224, 237. Stubley v Western Australia [2010] HCATrans 269 (20 October 2010).

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It may be possible to state a ratio at  a higher or lower level of generality, broadening its operation or distinguishing it, respectively. There may be no majority in favour of a particular ratio. It may be difficult to distinguish the ratio from the obiter dicta.

There may be overlap between these issues and the list is not exhaustive. Each of these problems will be considered in turn.

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Rules in contention The expression ratio decidendi can be translated as ‘reason for deciding’. Rationes are most commonly distinguished from obiter dicta, passing remarks which are not necessary to the resolution of the case and which are not binding on lower courts: see  7.19ff. But not every statement of law leading to the decision will constitute a ratio. The legal principle must have been in contention. In many cases, particularly at first instance, the law will not be in issue. The parties may disagree only about the facts. As McHugh J said in the High Court:

7.25

This Court has no business in determining issues upon which the parties agree … If a point is not in dispute in a case, the decision lays down no legal rule concerning that issue. … The case can have no wider ratio decidendi than what was in issue in the case. Its precedent effect is limited to the issues.25

A non-contentious rule that the court adopts and applies will not be viewed as a ratio. To constitute a ratio there must be a ‘ “ruling on a point of law” rather than a “statement of a rule of law” ’.26 The rationale for this is that if the issue was in 25 26

Coleman v Power (2004) 220 CLR 1, 44–5; see also Bell Lawyers Pty Ltd v Pentelow (2019) 372 ALR 555 [28]. Cross and Harris (n 9), quoting from Neil MacCormick, ‘Why Cases Have Rationes and What These Are’ in L Goldstein (ed), Precedent in Law (Clarendon Press, 1987) 179.

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7.26

contention the parties will have presented competing arguments and the court will have been required to make a  ruling. The court will have given the matter its full consideration with the benefit of the argument of counsel. In Miliangos v George Frank (Textiles) Ltd,27 Lord Simon noted that ‘a judgment in undefended proceedings or a decision on an uncontested issue tends to have less authority than one given after argument on both sides’.28 Taylor v Rudaks29 illustrates this point.The trial judge, Mansfield J, reached a view on the meaning of s 588M of the Corporations Act 2001 (Cth). He then added: In reaching that conclusion, I have not overlooked the observation [supporting a different interpretation] of Hill J in Commonwealth Bank of Australia v Paola [2005] FCA 855 at [25], upon which senior counsel for the trustee relied. … [T]hat view was not expressed after the benefit of argument on the matter. It does not form part of the ratio decidendi of the decision. It is not a view which his Honour reached after the opportunity of considering the decisions to which I have referred or the analysis of the precise wording of s 588M. I accordingly do not think that the decision obliges me to reach a conclusion different from that I have reached; nor that I should do so.30

Heydon J made a similar point in Tabet v Gett: The consciousness of parties and their legal representatives that the outcome of a debate about the correctness of contested propositions of law is decisively important to the interests of those parties often greatly assists the sharpness and quality of that debate. … [T]he efficacy of a debate does not depend only on whether the participants in the debate have that consciousness. The efficacy of its resolution depends on the court sharing that consciousness and being assisted by that consciousness.31

Level of generality and distinguishing

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7.27

Courts are tasked with deciding the case before them.As such, courts may make statements of principle at a very low level of generality: ‘given these facts, this result follows’. Such statements are of limited usefulness for subsequent cases. Statements at a higher level of generality can encompass a wider range of factual circumstances. In Donoghue v  Stevenson, the House of Lords held that the manufacturer of an opaque bottle of ginger beer could be liable to the consumer if, before the bottle was sealed, the ginger beer was contaminated by the remains of a snail and the consumer became ill as a result of drinking it. A rule stated in terms of these concrete facts would not be particularly useful. Decomposed snails in ginger ale bottles are rare events. Such a specific rule would not be binding, for example, where a snail was in a can of Coca-Cola. It is unclear, however, why the rule should not apply. Arguably, as a matter of principle, the rule should apply, at the least, to all food and drink which is packaged or manufactured in such a way as to prevent inspection prior to consumption. It should extend, for example, to a cockroach in a Mars bar. But why limit it to food and drink? Why not extend

27 28 29 30 31

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[1976] AC 443. Ibid 478; quoted with approval in CSR Ltd v Eddy (2005) 226 CLR 1 [14]. (2007) 245 ALR 91. Ibid 101–2. (2010) 240 CLR 537, 574.

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manufacturer’s liability to all situations where the end-user is injured as the foreseeable result of a hidden defect? Actually, as noted above at 7.4, Lord Atkin expressed the principle at a much higher level of generality. His ‘neighbour principle’ provided a basis for negligence law generally. ‘You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour’, where ‘neighbour’ is defined to include ‘persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question’.32 Care must be taken in drawing a general principle from an individual decision. Many cases, to a greater or lesser degree, ‘turn on their own facts’. In Nagle v Rottnest Island Authority33 the plaintiff was injured by concealed rocks while diving into waters off Rottnest Island.The High Court held the public authority liable for failing to warn of the dangers of concealed rocks for those diving. Subsequently, in Vairy v Wyong Shire Council, Gleeson CJ and Kirby J observed:

7.28

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The proper use of precedent is to identify the legal principles to apply to facts as found. Decided cases may give guidance in identifying the issues to be resolved, and the correct legal approach to the resolution of those issues. But a conclusion that reasonableness required a warning sign of a certain kind in one place is not authority for a conclusion about the need for a similar warning sign in another place. The decision of this Court in Nagle v Rottnest Island Authority is not authority for the proposition that the coastline of Australia should be ringed with signs warning of the danger of invisible rocks. That was a decision about the legal principles relevant to the existence of a duty of care. The majority also held that the primary judge had been correct to find a breach of duty. That was a conclusion of fact, turning upon the circumstances of the particular case. The decision in Nagle did not establish that reasonableness requires a warning sign in all places where there are submerged rocks, any more than the decision in Romeo v Conservation Commission (NT) established that reasonableness never requires a warning sign at the top of a cliff.34

A judge may hold that the facts of an earlier case, providing a potential precedent, are materially different from the present facts and that, accordingly, the principle applied in that case is not applicable to the present case. Construing a precedent relatively narrowly, so that it does not have application to the present case — or ‘distinguishing’ the precedent — can be a useful technique. It provides a court a means of avoiding unwelcome precedents, potentially developing the law in a useful way. At the extreme, the authority of an unpopular precedent may be confined to those very rare cases with identical facts. ‘In this way the tooth of time will eat away an ancient precedent, and gradually deprive it of all authority and validity.’35 The technique of distinguishing precedents can be illustrated in Thornton v Shoe Lane Parking Ltd (‘Thornton’).36 The English Court of Appeal had to decide whether the plaintiff was bound by a clause excluding liability, which appeared on a ticket automatically issued

32 33 34 35

36

7.29

Ibid 580. (1993) 223 CLR 486. (2005) 223 CLR 422, 422 [3]. John W Salmond, ‘The Theory of Judicial Precedents’ (1900) 16 Law Quarterly Review 376, 383, quoted in PGA v The Queen (2012) 245 CLR 355 [24] (‘PGA’). [1971] 2 QB 163.

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as the plaintiff drove into the defendant’s car park. It was argued that the case was the latest in a line of cases in which the customer received the ticket from a human operator. In these earlier cases the issue of the ticket was regarded as an offer by the company. By taking the ticket without objection the customer was deemed to have accepted the offer, thus forming a contract and becoming bound by the conditions printed on the ticket. In Thornton, however, the Court distinguished those earlier cases on their facts: None of those cases has any application to a ticket which is issued by an automatic machine. The customer pays his money and gets a ticket. He cannot refuse it. He cannot get his money back. He may protest to the machine, even swear at it. But it will remain unmoved.37 [T]he really distinguishing feature of this case is the fact that the ticket on which reliance is placed was issued out of an automatic machine … [I]n all the previous so-called ‘ticket cases’ the ticket has been proffered by a human hand, and there has always been at least the notional opportunity for the customer to say — if he did not like the conditions — ‘I do not like your conditions: I will not have this ticket’. But in the case of a ticket which is proffered by an automatic machine there is something quite irrevocable about the process.38

7.30

This technique may even be open where the precedent contains a statement of principle that, on its face, covers the present case. There may be some flexibility because it is not expected that judges will ‘state a rule with the completeness of a statutory draftsman’.39 Attorney-General (NSW) v  Mundey (‘Mundey’)40 provides an example. Immediately following the conviction of two of his fellow unionists for criminal damage in connection with an anti-apartheid protest, Mr  Mundey, in response to questions from a journalist, criticised the decision and described the judge as ‘racist’. The Attorney-General argued that this constituted a contempt on the basis that it was calculated, or tended, to obstruct the administration of justice, namely a possible appeal or retrial. The Attorney-General relied on a statement by the Full Court of the Supreme Court in an earlier case, Ex parte Attorney-General; Re Truth & Sportsman Ltd:

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It seems obvious to this Court that any statements or comment dealing with the case and propounding views as to its proper determination are calculated to obstruct, or to tend to obstruct, the administration of justice and to make the task of the court entertaining the appeal both difficult and embarrassing.41

Hope JA, the single judge of the Supreme Court hearing the contempt proceedings in Mundey, suggested: With respect to the members of the court, it seems to me that this statement is too wide. It appears to have been based on statements appearing in the judgments of Humphreys and Oliver JJ in R v Davies; Ex parte Delbert-Evans but a later court of five judges, presided over by Lord Parker CJ, has held that these statements were too wide or should be read down: R v Duffy; Ex parte Nash.42

37 38 39 40 41 42

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Ibid 169 (Lord Denning MR). Ibid 174 (Willmer J). Heydon (n 12) 19. [1972] 2 NSWLR 887 (‘Mundey’). Ex parte Attorney-General; Re Truth & Sportsman Ltd [1961] SR (NSW) 484, 496, cited in Mundey (n 40) 901. Mundey (n 40) 901–2. The internal references are R v Davies [1945] 1 KB 435, 444, 445 and R v Duffy [1960] 2 QB 188.

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Consideration of R v Duffy and other authorities led Hope JA to prefer a narrower test, requiring an ‘intention’ or a ‘real risk’43 that the course of justice would be interfered with. In the present case, Hope JA noted that Mr Mundey made the statements spontaneously in answer to questions by a journalist, and that the broadcasting of the statements was done by a media outlet without any connection to Mr Mundey.44 It should be noted that the broader statement of law in Ex parte Attorney-General; Re Truth & Sportsman Ltd was made in a judgment of a higher court in the same court hierarchy. Hope  JA was, therefore, very careful in his treatment of it. He distinguished the facts of that case. The statements under consideration in that case were part of a deliberate campaign by a newspaper to vilify a criminal defendant and to provoke public condemnation of the ‘totally inadequate’ sentence he had received following conviction. Hope JA indicated, having regard to those facts, that the statement of the Full Court was broader than it needed to be, and was, therefore, obiter dicta.45 However, if the statement of the Full Court was binding, Hope JA indicated that the present defendant’s conduct would constitute only a ‘technical contempt’ and would warrant no penalty.46 Trial judges who seek to distinguish and avoid higher court precedent should have in mind how the higher court will look at their decision on appeal. In Reich, the Industrial Relations Commission decision discussed above at 7.22, Maidment J at trial considered Full Bench authority

7.31

7.32

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in the light of that which Lord Halsbury said in Quinn v Leathem (‘Quinn’): ‘… every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found;’ and: ‘… a case is only authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to flow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all.’47

However, on appeal the Full Bench indicated that the reliance on Quinn was inappropriate, and Maidment  J had failed to distinguish the earlier Full Bench authority on sound grounds. The Full Bench quoted from a classic jurisprudential work by a respected judge of the United States, Benjamin Cardozo. I am not to mar the symmetry of the legal structure by the introduction of inconsistencies and irrelevancies and artificial exceptions unless for some sufficient reason, which will commonly be some consideration of history or custom or policy or justice. Lacking such a reason, I must be logical, just as I must be impartial, and upon like grounds. It will not do to decide the same question one way between one set of litigants and the opposite way between another. ‘If a group of cases involves the same point, the parties expect the same decision. It would be a gross injustice to decide alternate cases on opposite principles. If a case was 43 44 45 46 47

Mundey (n 40) 903–4. Ibid 904. Ibid. Ibid. Reich (n 14) [35] quoting Quinn v Leathem [1901] AC 459, 506 (‘Quinn’).

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decided against me yesterday when I was defendant, I shall look for the same judgment today if I am plaintiff. To decide differently would raise a feeling of resentment and wrong in my breast; it would be an infringement, material and moral, of my rights’. Everyone feels the force of this sentiment when two cases are the same. Adherence to precedent must then be the rule rather than the exception if litigants are to have faith in the even-handed administration of justice in the courts.48

The Full Bench added: The approach of Cardozo J not only illustrates the limitations upon the approach in Quinn v  Leathem but also serves to emphasise the important policy considerations involved in following precedent, particularly in precedent being followed by single judges sitting at trial or first instance, considerations which go to the very legitimacy of the legal system itself. The need to maintain consistency in the law, even when a Full Bench or Full Court is considering or reconsidering earlier decisions has been stated many times.49

Finding a ratio among diverging majority judgments 7.33

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7.34

Cases at  appellate level are often decided by a panel of judges, usually three at  the intermediate level, such as the New South Wales Court of Appeal or the Full Court of the Federal Court. When such a court is reconsidering one of its own decisions, five judges may be empanelled: see 8.22. In the High Court, there are usually five or seven judges sitting. Often a court will deliver a single unanimous judgment, or there may be a single majority judgment.50 However, it is not uncommon, in appellate decisions, for a number of different judgments to be delivered. As a ratio decidendi is a proposition with which a majority of the court has agreed, it may be necessary to determine, by a head count, what the majority thought were the relevant principles of law applicable to the case. Even when each judge comes to the same conclusion it may be the result of different reasoning or the application of different legal principles. In these circumstances it may be difficult to discern one or more rationes which gained majority support. A court bound by such a decision may conclude that all that is binding is a narrow proposition constructed from the material facts of the earlier case, together with the court’s conclusion. The High Court was presented with this situation in Jones v Bartlett (‘Jones’).51 The plaintiff had been injured visiting his parents, who leased their home from the defendant landlord. In Jones, Gummow and Hayne  JJ, considering the earlier case of Northern Sandblasting Pty Ltd v Harris (‘Northern Sandblasting’),52 stated that Northern Sandblasting is authority for the rejection in Australia of the rule in Cavalier v Pope [which recognised landlord’s immunity], and … the existence of some duty [by the landlord] to the plaintiff [entrant] … There was disagreement in Northern Sandblasting as to the nature and extent of that duty in the circumstances of the case. The four members of the court (Brennan  CJ, Toohey, Gaudron and McHugh  JJ) comprising the majority in favour of the order dismissing the appeal were divided as to 48

49 50

51 52

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B N Cardozo, The Nature of the Judicial Process (Yale University Press, 1921) 32–4, quoting from W G Miller, The Data of Jurisprudence (W Green & Sons, 1903), 335. Reich (n 14) [55]. A single majority judgment may be co-authored by the majority judges, or written by a single judge with other majority judges very briefly expressing their agreement. (2000) 205 CLR 166 (‘Jones’). (1997) 188 CLR 313 (‘Northern Sandblasting’).

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the ground upon which that order should be made. Toohey J and McHugh J relied upon breach of a non-delegable duty of care, but the other members of the majority and those justices who would have allowed the appeal rejected the submission that such a duty had arisen. Brennan CJ and Gaudron J both relied upon breach of a duty of care which involved the need for a pre-letting inspection, but they did not express the point in the same terms. Toohey J said that there were ‘real difficulties’ in the way of a case based upon a failure to inspect. McHugh J did not deal with this point. The justices in the minority, Dawson J, Gummow J and Kirby J, were of a view contrary to that of Brennan CJ and Gaudron J. Northern Sandblasting thus is an example of a decision of an ultimate appellate court in which there is no majority in favour of either of the two grounds for decision. Further, as regards the non-delegable duty ground, all members of the court dealt with it and a majority was against it; of those judges who dealt with the other ground for decision, a majority of them was against it. The authority of a decision reached in this way for later cases in trial courts and intermediate courts of appeal is a matter of debate. … One view is that, in such an instance, there is no discernible ratio decidendi, so that the later court is free to decide the legal issues for itself and to adopt any reasoning which appears to it to be correct so long as that reasoning supports ‘the actual decision’ in the earlier case. … [I]n Dickenson’s Arcade Pty Ltd v  Tasmania, Barwick  CJ said that, if there was ‘no reason for decision common to the majority of the Justices’, a decision of this Court was ‘authority only in relation to the statutory and factual situation it resolved and in relation to a case which has, if not precisely, at least substantially and indistinguishably the same statutory and factual situation’. Thus, the Chief Justice would have rejected as an adequate foundation a ground accepted only by a majority within the majority supporting the order made by the Court. … It is unnecessary to resolve these problems in this Court in the present case. This is so for two reasons. First, this Court is not necessarily bound by its previous decisions; a difference between the reasons of the justices constituting the majority in an earlier decision may justify departure from that decision. If there be difficulty in detecting and isolating the propositions of law which provided the grounds for a decision, this Court should not strain to construct a precedent from which it may then be asked to depart. Secondly, there is force in the statement that ‘from the realistic point of view, we are not sure of the ratio of a decision until we can discover its reception and its treatment by subsequent cases’. The present litigation illustrates the point.53

In Re Tyler; Ex parte Foley,54 the Full Bench of the High Court had to consider the authority of two of its own previous decisions — Re Tracey; Ex parte Ryan (‘Re Tracey’)55 and Re  Nolan; Ex parte Young (‘Re  Nolan’)56 — in which there had been differing reasoning of the majority justices. McHugh J said of these decisions:

7.35

The divergent reasoning of the majority judges in Re  Tracey and Re  Nolan means that neither of those cases has a ratio decidendi. But that does not mean that the doctrine of stare decisis has no relevance or that the decisions in those cases have no authority as precedents. Because it is impossible to extract a ratio decidendi from either of the two cases, each decision is authority only for what it decided. … 53 54 55 56

Jones (n 51) 223–5 [200]–[207] (citations omitted). (1994) 181 CLR 18 (‘Tyler’). (1989) 166 CLR 518. (1991) 172 CLR 460.

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[T]he true rule is that a court, bound by a previous decision whose ratio decidendi is not discernible, is bound to apply that decision when the circumstances of the instant case ‘are not reasonably distinguishable from those which gave rise to the decision’.57

Equally divided courts 7.36

7.37

Equally divided courts present difficulties for the doctrine of precedent similar to those of divergent majority judgments, discussed in the previous section. When judges disagree, the decision of the majority prevails. Normally, the possibility of a court being equally divided is avoided by ensuring that an odd number of judges sits on each case. Sometimes, however, an equally divided court cannot be avoided, as, for example, when one of the judges dies during the hearing.When this happens, two questions arise.The first, more immediate issue concerns the outcome of the case.The second question concerns the authority of such a decision. The first issue, identifying the decision of the court, is resolved by provisions in the relevant statutes. For example, s 23(2) of the Judiciary Act 1903 (Cth) deals with the possibility of an equally divided Full Bench of the High Court: [W]hen the Justices sitting as a Full Court are divided in opinion as to the decision to be given on any question, the question shall be decided according to the decision of the majority, if there is a majority but if the Court is equally divided in opinion — (a) in the case where a decision of a Justice of the High Court (whether acting as a Justice of the High Court or in some other capacity), a decision of the Supreme Court of a State or Territory or a Judge of such a Court, a decision of the Federal Court of Australia or a Judge of that Court or a decision of the Family Court of Australia or a Judge of that Court is called in question by appeal or otherwise, the decision appealed from shall be affirmed; and (b) in any other case, the opinion of the Chief Justice, or if he is absent the opinion of the Senior Justice present, shall prevail.

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Corresponding principles apply where the Full Court of either the Federal Court or the Family Court is equally divided.58 The rules that resolve equal divisions in Full Courts of state and territory Supreme Courts are quite diverse. • If the New South Wales Court of Appeal is equally divided, the decision is in accordance with the opinion of the Chief Justice or other Judge of Appeal presiding.59 • In Queensland the decision of the Court of Appeal is in accordance with the opinion of the most senior judge.60 • In Tasmania, in the case of an appeal from a judge who is not sitting as a member of the Full Court which hears the appeal, the decision appealed from is affirmed, unless the judge whose decision is appealed from indicates a wish that the appeal be determined without reference to the decision, in which event the opinion of the Chief Justice or senior judge present shall prevail. In any other case, the 57 58 59 60

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Tyler (n 54) 37. Federal Court of Australia Act 1976 (Cth) s 16; Family Law Act 1975 (Cth) s 30. Supreme Court Act 1970 (NSW) s 45. Supreme Court of Queensland Act 1991 (Qld) s 42.

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opinion of the Chief Justice or senior judge present shall prevail.61 In Tasmanian criminal appeals, if the Court of Criminal Appeal is divided, the decision is in accordance with the decision of the Chief Justice or senior judge.62 • In Victoria the decision is in accordance with the opinion of the senior judge of appeal then present unless the appeal is heard by a Full Court constituted by two judges, in which event it must be reheard by a Court of Appeal of more than two judges.63 • In Western Australia, the solution adopted is the same as that in Victoria, except that if an appeal is heard by a Full Court constituted by two judges the decision appealed from stands, unless the appeal is directed to be reheard by a Full Court of no fewer than three judges.64 • In South Australia there is no statutory provision dealing with the possibility of an equally divided Full Court of the Supreme Court. • In the Australian Capital Territory, in the case of an equally divided court, the appeal is to be reheard.65 • In the Northern Territory, the decision is in accordance with that of the senior judge.66 Statutory provisions such as these do not always provide a satisfactory identification of the decision that should be reached where the court cannot agree. An interesting illustration is provided by Skulander v  Willoughby City Council.67 The appellant pedestrian was injured when she collided with an object protruding from a wall; she sued the council in negligence. The trial judge held that the council owed no duty and found for the defendant. On appeal the New South Wales Court of Appeal held that the council owed a duty, but the Court then split three ways. Mason P held that the council had not breached its duty. Beazley JA held that the council had been negligent but damages should be reduced by 20% due to the plaintiff ’s contributory negligence. Basten JA also held that the council had been negligent but that damages should be reduced by 50% due to the plaintiff ’s contributory negligence. In a passage agreed to by the other members, Mason  P considered a number of possibilities as to how their disagreement could be resolved. If the Court is ‘equally divided’ in the terms of s 45(2) of the Supreme Court Act 1970 (NSW), then the presiding judge’s decision should prevail. Mason P noted that this ‘would lead to the exquisite but troubling outcome that my dissenting opinion [that the defendant was not in breach] revives and swells into the judgment of the Court’.68 Mason P expressed ‘doubts as to whether a court whose members each propose discrepant orders is necessarily “equally divided” ’69 and went on to consider other options. 61 62 63 64 65 66 67 68 69

7.39

Supreme Court Civil Procedure Act 1932 (Tas) s 15(9). Criminal Code Act 1924 (Tas) sch, s 400(2). Supreme Court Act 1986 (Vic) s 12. Supreme Court Act 1935 (WA) s 62. Supreme Court Act 1933 (ACT) s 37L(3). Supreme Court Act 1979 (NT) s 23. (2007) 73 NSWLR 44 (‘Skulander’). Ibid 47 [51] (Mason P). Ibid 47 [53].

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7.40

The option of allowing the judgment below to stand would also have the disadvantage of resolving the matter effectively in favour of the dissenting appeal judgment. Moreover, it ‘would affirm a judgment in the court below that rests upon reasoning disfavoured by each member of this Court’.70 A further option was to apply the convention noted by McHugh JA in O’Brien v Tanning Research Laboratories Inc,71 namely that the junior judge (in this case Basten  JA) should withdraw their proposed orders, and join with those proposed by the senior judge.72 But Basten JA had not indicated his willingness to withdraw and, again, this would have the effect of endorsing the dissenting judgment of Mason P. Mason P then considered the approach developed by his predecessor, Kirby P, over a number of cases. In CES v Super Clinics (Australia) Pty Ltd Kirby P suggested: In earlier times, differences of this kind were resolved by the principle of seniority of judicial appointment. In these more enlightened times, a more rational principle has been adopted by this Court. It seeks to express (and in its orders to reflect) the majority consensus of reasoning.73

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7.41

Mason P said that he ‘remain[ed] to be convinced that deference to seniority is a badge of “unenlightened” times or that a rule of last resort whereby the junior judge defers to the senior has necessarily reached its use-by date’.74 However, he still thought it most appropriate to seek ‘what Kirby P described as “the majority consensus of reasoning” and “the highest common denominator of rational agreement” ’.75 He expressed a little discomfort that this required him to ‘assume factual propositions that I positively deny’,76 namely that the defendant was in breach. Nevertheless, he proceeded on that basis and ultimately joined with Basten JA to favour liability with a 50% reduction in damages for the plaintiff ’s contributory negligence. Another tricky issue regarding determining the decision of an equally divided court arose in the recent High Court appeal, Perara-Cathcart v The Queen (‘Perara-Cathcart’).77 The defendant was convicted by a jury of rape and threaten to kill. He appealed to the South Australian Supreme Court on the basis that the trial judge had not properly directed the jury on the use of evidence of other discreditable conduct of the defendant. The Full Court considered the appeal; a majority of 2:1 held that there had been a misdirection. This then raised a further question for the majority under s  353 of the Criminal Law Consolidation Act  1929 (SA) (‘CLC Act’),78 whether the appeal should nevertheless be dismissed under ‘the proviso’.This provides that ‘the Full Court may, notwithstanding that it is of the opinion that the point raised in an appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred’.79 On this question, two judges each went a different way. The appeal 70 71 72 73 74 75

76 77 78 79

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Ibid 48–9 [58]. (1988) 14 NSWLR 601, 641. Skulander (n 67) 49 [59]. (1995) 38 NSWLR 47, 79 (‘CES v Super Clinics’). Skulander (n 67) 51 [74]. Ibid quoting from, respectively, CES v  Super Clinics (n  73) 79 and Woolworths Ltd v  Kelly (1991) 22 NSWLR 189, 200. Skulander (n 67) 51 [74]. (2017) 260 CLR 595 (‘Perara-Cathcart’). The provision has since been moved, without significant change, to Criminal Procedure Act 1921 (SA) s 158. Then Criminal Law Consolidation Act 1929 (SA) s 353(1), now Criminal Procedure Act 1921 (SA) s 158(2).

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was then dismissed since two of the three judges had found against the defendant: one judge found there had been no error at trial, and one judge found that, while there had been an error, the proviso applied and the appeal should be dismissed nevertheless. The defendant then appealed to the High  Court, arguing that the appeal to the South Australian Full Court should have been upheld because a majority had not found that the proviso applied; that is, a majority had not held that despite the error, there had been no substantial miscarriage of justice.This required the High Court to consider s 349 of the CLC Act, which provides: ‘The determination of any question before the Full Court under this Act shall be according to the opinion of the majority of the members of the Court hearing the case.’80 A majority of the High Court upheld the defendant’s argument on this point.81 Section 349 should have been applied to the two questions in turn: first, whether there had been a misdirection; and second, whether, notwithstanding the misdirection, there was no substantial miscarriage of justice. Since a majority had not resolved the second question in the prosecution’s favour, the proviso should not have been applied.The majority rejected the proposition that ‘ “any question” [in s 349] before the Full Court is, always and only, the single question whether the appeal should or should not be allowed’.82 Gageler J dissented, holding that ‘the “question” to which s 349 of the CLC Act refers … is the question as to what order the Full Court should make.The “determination of any question before the Full Court” occurs through the making of an order by the Full Court’.83 A majority of two judges of the Full Court agreed that the appeal should be dismissed, therefore the appeal should be dismissed. It does not matter that their reasoning in arriving at this conclusion differed. While a majority of the High  Court upheld the defendant’s argument as to the interpretation of s 349 of the CLC Act, a differently constituted majority also held that there had been no misdirection. On this basis the defendant’s appeal was dismissed. This leaves the second question raised by equally divided courts. What authority do the decisions carry as precedents? As Gageler  J noted in Perara-Cathcart, there are significant differences between the two questions. One is addressed by a rule, the other by a principle.

7.42

The decision-making rule applied to produce the order of a multi-member court in a case in which there is disagreement between its members is different in timing, concept and purpose from the principle applied in an attempt to extract a ratio decidendi from the reasons for decision of the members of that court in that case.The decision-making rule is applied at the time of decision. The rule is directed to ensuring an outcome in the case. When triggered by disagreement, the rule applies to produce a result. The principle is applied subsequently and in retrospect. The principle is directed to the ideal of ensuring that cases are decided consistently through time. The principle cannot be expected always to achieve that ideal. Every case must have an outcome, but not every case need have a ratio decidendi.84

This question of the authority of a decision of an equally divided court arose in Re Wakim; Ex parte McNally (‘Wakim’).85 In this case the High Court considered a challenge 80 81 82 83 84 85

Now Criminal Procedure Act 1921 (SA) s 152. Perara-Cathcart (n 77) [38] (Kiefel, Bell and Keane JJ); see also [129] (Nettle J). Ibid [40]. Ibid [83]; see also [144] (Gordon J). Ibid [75]. (1999) 198 CLR 511 (‘Wakim’).

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to the validity of cross-vesting legislation. That legislation, enacted in 1987, enables matters which would previously have been within the sole jurisdiction of the courts of the Commonwealth, or of one of the states or territories, to be dealt with in the courts of any Australian jurisdiction. A previous challenge, in Gould v Brown,86 had been unsuccessful but the High Court had been equally divided. In Wakim, Gummow and Hayne JJ said: Stating the question as whether the Court should reconsider or reopen Gould v  Brown obscures important considerations. The order that was made in Gould v Brown was made pursuant to s 23(2)(a) of the Judiciary Act. It was made in circumstances where the Court was, as s 23(2)(a) says, ‘equally divided in opinion’. That is, there was no opinion on the issues raised that was an opinion commanding the assent of a majority of the Court. It follows that, although the decision in Gould v  Brown disposed finally of the appeal and bound other courts in Australia to arrive at  a like result on the issues it dealt with, it established no principle or precedent having authority in this Court. There is, then, no question in the present matters of the Court reopening or reconsidering one of its earlier decisions. It is unnecessary to examine the circumstances in which the Court will do that. It was submitted that the Court should adopt a different rule from the rule stated by Dixon  J in Tasmania v  Victoria87 and subsequently applied on several occasions (that a decision of a full court of this Court in which opinions are equally divided creates no precedent binding this Court). But any different rule must grapple with the difficulty of identifying what principle is established by a decision of an equally divided Court. In general, this Court considers itself bound by its earlier decisions. (The exceptions to, or qualifications on, that general rule are of no immediate relevance.) But what is binding is not the order that is made disposing of the particular proceeding. The Court is bound by the principles of law that are established by its decisions. The expedient prescribed by s 23 of the Judiciary Act enables a decision to be given in the particular case but the application of that provision does not give to the opinion of those members of the Court who favoured that disposition of the matter any special status.88

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The position of lower courts faced with an evenly split High  Court precedent may be more difficult. The High  Court, as in Wakim, can consider afresh the issue left uncertain by its previous decision. However, lower courts are more constrained by High Court authority. In Langley v Langley, Mahoney J, considering a decision of an equally divided High Court, indicated that this Court should, even if there be no ratio decidendi to be extracted from the decision, seek to ensure that its decision is consistent with the views or the approach adopted by members of that Court, as far as that is possible, having regard to the differences in view which may have been expressed by them.89

Dissenting judgments 7.44

While on the topic of multiple inconsistent judgments in appellate decisions, something should briefly be said about dissenting judgments. Obviously, a dissenting judgment cannot be strictly binding. However, it may still be persuasive. It may influence courts which are not bound by the majority judgment, including the dissenting judge’s own 86 87 88 89

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(1998) 193 CLR 346. (1935) 52 CLR 157. Wakim (n 85) 570–1. [1974] 1 NSWLR 46, 54.

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court on a later occasion. Consider, for example, Evatt  J’s dissent in the High  Court decision of Chester v Council of the Municipality of Waverley90 in an early ‘nervous shock’ case. Having searched for her lost child for several hours, Mrs Chester saw his body dragged out of a flooded trench. She saw local lifesavers attempt resuscitation unsuccessfully. She sued the local council, which had dug the trench and failed to provide adequate steps to safeguard it, for her consequent psychiatric injury. The majority did not recognise this ‘hitherto unknown cause of action’.91 Evatt J dissented in a judgment celebrated for its ‘strong, empathic and persuasive language’,92 a ‘great Australian dissent’ because of ‘the immediate impact it had on statute law and its eventual but forceful significance for the modern common law of both Australia and England’.93 Interestingly, courts have different practices with regard to dissents and separate concurring judgments. It is a strong tradition of the Privy Council, and the Criminal Division of the Court of Appeal of England and Wales, to issue a single judgment.94 Other courts at times appear to have sought to maximise the rate at which they deliver composite judgments.95 With a single judgment it is obviously easier for lower courts, and the lawyers who practise in them, to know what the law is,96 furthering the goals of efficiency and certainty: see Chapter 6. However, some suggest that preventing or discouraging dissenting (or separate concurring) judgments infringes judicial independence and integrity.97

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Ratio decidendi and obiter dicta A judge will often find it necessary or convenient to consider how an issue which is not in direct contention may be decided. The judge may, for example, suggest a resolution of a hypothetical dispute based upon a version of events differing in some respect from the facts of the case. Such statements may illustrate or clarify the principle which is actually applied in the case (the ratio). But since these statements do not concern the actual facts of the case, they are not strictly necessary, and so will not be a source of rationes. These incidental or passing remarks regarding legal principle are called obiter dicta (singular: obiter dictum). Obiter dicta of eminent judges in superior courts are often very persuasive for judges deciding later cases but, according to the traditional understanding of the doctrine of precedent, they are not strictly binding. In Tabet v Gett,98 Heydon J highlighted the dangers with courts indulging in obiter musings. He suggested that the awareness of both judge and counsel that a particular legal 90 91 92

93 94

95 96

97

98

7.45

7.46

(1939) 62 CLR 1. Ibid 11 (Rich J). Barbara McDonald, ‘Justice Evatt and the Lost Child in Chester v Waverley Corporation (1939)’ in Andrew Lynch (ed), Great Australian Dissents (Cambridge University Press, 2016) 58, 59. Ibid 60. Cross and Harris (n 9) 94; Roderick Munday, ‘ “All for One and One for All”: The Rise to Prominence of the Composite Judgment within the Civil Division of the Court of Appeal’ (2002) 61 Cambridge Law Journal 321, 340. See, eg, Munday (n 94). Sir Anthony Mason, ‘Reflections on the High Court: Its Judges and Judgments’ (2013) 37 Australian Bar Review 102, 110. J D Heydon ‘Threats to Judicial Independence: The Enemy Within’ (2013) 129 Law Quarterly Review 205; responses include Mason (n 96). See also Stephen Gageler, ‘Why Write Judgments?’ (2014) 36 Sydney Law Review 189; Gabrielle Appleby and Heather Roberts, ‘He Who Would Not Be Muzzled: Justice Heydon’s Last Dissent in Monis v The Queen (2013)’ in Lynch (ed) (n 92) 335. Tabet v Gett (n 31).

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question is crucial to the outcome of the case helps sharpen the quality of the argument, and its absence may reduce the quality of the debate. He explained his concerns with obiter in these terms: The only significance of an answer would lie in what future courts would make of it. They are likely to treat it not as a decision, but only as a dictum; not as the resolution of a controversy, but only as advice; not as an event, but only as a piece of news. The consciousness … that the outcome of a debate about the correctness of contested propositions of law is decisively important to the interests of those parties often greatly assists the sharpness and quality of that debate. … Here a stage has been reached in a journey along the path to decision which has caused that consciousness to cease to exist because an issue has ceased to be decisively important. No assistance can be gained from a consciousness that has ceased to exist. In this field, for me, at least, to embark on difficult and doubtful inquiries in an attempt to answer the question without the assistance to be gained from that consciousness is a potentially very dangerous course. This is a case in which, since it is not necessary to do so, it is desirable not to.99

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Statements made by judges are often clearly identifiable as obiter dicta. The statement may be preceded by words signalling their obiter status, such as ‘although a consideration of this question is not necessary for the decision in this case’. On other occasions, distinguishing between ratio and obiter requires close consideration of the actual facts and matters in dispute. In Eslea Holdings Ltd v Butts Samuels JA, with whom Kirby P agreed, said of a recent decision of the High Court of Australia: It seems to me that since their Honours found that the necessary evidentiary footing was absent … the statement concerning the nature of an estoppel by convention is not an alternative basis for the court’s conclusion but an obiter dictum. Nonetheless, it appears in a reserved joint judgment of the High Court, to which I am bound to pay the very greatest respect and attention.100

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Sometimes regard must be had to the precise line of reasoning taken by the court. A  court may have a choice as to the ground on which it decides the case. For example, a plaintiff who has been injured by a product bought from the defendant manufacturer may claim compensation on the alternative grounds of breach of contract and negligence. The court may find for the plaintiff in contract, and then comment in passing that it would also have upheld the negligence claim. Statements of law on contract may then be rationes while those on negligence would be only obiter dicta. Had the court chosen to decide on the basis of negligence rather than contract, the reverse would be the case. In some cases a court may pursue two or more different routes to a conclusion without indicating which is the true basis for the decision. In such a case each basis for the decision should be considered to provide a separate ratio.101 If one of the grounds is more carefully reasoned than the others, this may provide a reason to consider that ground to provide the true ratio, while the others are merely obiter; however, caution should be exercised in making this determination.102

99 100 101 102

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Ibid [97]–[98] (Heydon J). (1986) 6 NSWLR 175, 186. McBride v Monzie Pty Ltd (2007) 164 FCR 559, 562 [6]. Brunner v Greenslade [1971] Ch 993, 1002–3.

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In Re Lower and Comcare,103 Forgie DP, in the Administrative Appeals Tribunal, was required to determine whether certain observations in an earlier decision of Tamberlin J in the Federal Court were ratio and binding, or obiter and not binding. The applicant argued that they were obiter dicta on the basis that the observations were preceded by the words ‘in my view’. Forgie DP rejected this argument: Certainly, I understand that his Honour adopted the expression ‘in my view’ in [19] but it seems to me that his doing so is not indicative of its being obiter dicta rather than part of the ratio decidendi of the case. Apart from [19], Tamberlin J used a similar form of words on no fewer than five other occasions in the course of his judgment ([12], [18], [20] and [34]) and the expression ‘in my opinion’ on one ([18]). In [18], he uses both expressions in concluding what is clearly part of the ratio decidendi of the case … The use of expressions such as ‘in my view’ in his judgment reflects his Honour’s style just as my adopting the expression ‘it seems to me’ earlier in this paragraph reflects mine. Both are used in presenting concluded views.104

Obiter dicta are increasingly common in dismissed criminal appeals. The appeal court will often find that (a) the trial judge may well have made the mistake claimed by the defendant; but (b) this made no difference to the verdict — even had the mistake not been made the jury would have convicted the defendant. To decide on ground (b) is to apply ‘the proviso’ (see  7.41): ‘the Full Court may, notwithstanding that it is of the opinion that the point raised in an appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred’.105 In the High Court decision CTM v The Queen, Kirby J, the lone dissentient, warned of having recourse to the proviso in such cases:

7.48

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An appellant has no special interest, as such, in resolving contested questions of criminal law, such as were at issue in this appeal. If it is thought that an appellant may succeed in substance but will generally fail on the ‘proviso’ an important practical incentive for the bringing of criminal appeals is diminished, if not lost entirely. Yet, when legally justified, the prosecution of such appeals is essential to the proper administration of criminal justice in Australia.106

Not every statement of a rule of law by a judge is necessarily ratio or obiter. Frequently during the course of a judgment, a judge will restate and discuss propositions of law from previous cases. Such recitations may provide a useful foundation for the judge’s reasoning but they will be neither ratio nor obiter unless they receive the endorsement of the judge.

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EXERCISE 8: IDENTIFYING RATIO AND OBITER Analyse the judgment of McCardie  J in Cohen v  Sellar,107 set out below, giving the following information: 1. Citation. 103 104 105 106 107

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(2003) 74 ALD 547. Ibid 552 [15]. See, eg, Criminal Procedure Act 1921 (SA) s 158(2); see also s 6(1) of the Criminal Appeal Act 1912 (NSW). (2008) 236 CLR 440, 479 [131]. [1926] 1 KB 536. For a recent Australian decision with similar facts, see Papathanasopoulos v Vacopoulos [2007] NSWSC 502.

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2. Brief statement of the material facts. 3. Procedural history, distinguishing the two actions and explaining why this decision concerned the defendant’s claim for a remedy. 4. The issues to be decided. 5. The passages in the judgment which could be argued to be: a) rationes decidendi; or b) obiter dicta. Cohen v Sellar [1926] 1 KB 536 High Court, King’s Bench Division McCardie J at 546–9:

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The plaintiff, Miss Cissie Cohen, aged 24, had been engaged in business, and was a young woman of obvious ability. The defendant, Nathan Sellar, aged 27, occupied a clerical post at a moderate weekly salary. Each belonged to the Jewish faith. In August 1923, they agreed to marry, and in December 1923, the defendant handed to the plaintiff a single-stone diamond ring worth £30. No express condition accompanied the delivery of the ring. It was, however, admittedly given and received as an engagement ring in contemplation of marriage. Unhappy differences soon arose between the two. Each had a quick temper, and quarrels were frequent. So acute became the state of affairs that in June 1924, the parties went before a Jewish tribunal in order to secure, if possible, an adjustment of the strife, but no reconciliation was achieved. Matters reached a climax in December, 1924. The mutual asperities were then most pronounced, and the two did not meet after that date. The plaintiff asserted that in that month the defendant refused to marry her. The defendant, on the contrary, asserted that it was the plaintiff herself who, with emphatic words, broke off the engagement. Apart from damages the substantial question for the jury was which of the two had refused to marry. The jury found that it was the defendant and not the plaintiff who had refused to carry out the promise. They awarded the plaintiff £34 10s as special damages in respect of certain items claimed by her, and £40 as general damages for the loss of the marriage. Few will doubt that the act of the defendant in ending the engagement saved both parties from an unhappy married life. There was no suggestion of any breach of morality between the two. The defence contained no plea of legal justification for breaking off the engagement. In the course of the trial the question arose which of the two litigants was entitled to the engagement ring. An action had been brought in the County Court by the defendant to recover back the engagement ring from the plaintiff. The County Court judge adjourned the hearing to await the decision of the High  Court action. The County Court action was removed to the High Court and was made a counterclaim in the proceedings before the jury and myself. … The questions for my decision emerge from a breach of promise action tried before me with a common jury. I am indebted to each of the counsel for their learned and able arguments. A few facts can be stated. [His Lordship stated the

214

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facts set out above and continued.] Both counsel requested that I should, after the jury had given their verdict on the other questions in the case, determine the points of law with respect to the ring. Hence their arguments on a later day before me. … I now turn to the two recent cases which bear on betrothal gifts. In neither of them was any reference made to Young v Burrell Cary’s Causes in Ch 77; 21 Eng Rep 29, or Oldenburgh’s Case Freeman’s KB 213; 2 Mod 140, or Lockyer v Simpson Mosely 298. First I take Jacobs v  Davis [1917] 2 KB 532. The headnote is as follows: ‘When an engagement ring is given by a man to a woman, there is an implied condition that the ring shall be returned if the engagement is broken off.’ This broad statement seems to favour [counsel for the defendant’s] argument before me. But the headnote must of course be read with the actual judgment of Shearman J. He was dealing with a case where the lady broke off the engagement, and the man thereupon sued for the return of the engagement ring. In the course of his decision Shearman  J said [1917] 2 KB 533: ‘Though the origin of the engagement ring has been forgotten, it still retains its character of a pledge or something to bind the bargain or contract to marry, and it is given on the understanding that a party who breaks the contract must return it. Whether the ring is a pledge or a conditional gift, the result is the same. The engagement ring given by the plaintiff to the defendant was given upon the implied condition that it should be returned if the defendant (ie, the lady) ‘broke off the engagement’. She did break the contract, and therefore must return the ring.’ It seems reasonably clear that Shearman J impliedly held that if the plaintiff himself had broken off the promise he could not get back the ring. This too, I infer, would have been the opinion of Bray J: see the words of his decision with respect to wedding gifts in Jeffreys v Lack 153 LT Newspaper 139. Such are the decisions. The principles involved are illustrated by the arguments in the already cited case of Lockyer v  Simpson Mosely 298. It was conceded by the Attorney-General in that case that if the lady had refused to marry the man she must return the gifts delivered to her in contemplation of marriage. This I hold to be the correct legal view. If a woman who has received a ring refuses to fulfil the conditions of the gift she must return it. So, on the other hand, I think that if the man has, without a recognized legal justification, refused to carry out his promise of marriage, he cannot demand the return of the engagement ring. It matters not in law that the repudiation of the promise may turn out to the ultimate advantage of both parties. A  judge must apply the existing law as to the limits of justification for breach. The conclusions I have stated are I think borne out by the general body of opinion. The apparent dictum to the contrary in Oldenburgh’s Case Freeman’s KB 213; 2 Mod 140, cannot be relied on at the present day. By the slow growth of decisions the promise of marriage is today fixed with many of the legal characteristics of a commercial bargain. It is governed largely by the principles of law applicable to ordinary contracts. The conditions which attach to a gift made in contemplation of marriage must be viewed in relation to the incidents which flow from the engagement itself. It is therefore appropriate to quote the words of Lord Sumner in Bank Line v Capel [1919] AC 435 at 452, where, speaking of a commercial adventure, he said: ‘Reliance cannot be placed on a self-induced frustration’. The like rule will, I think, apply to a matrimonial adventure also. So too Lord Finlay LC said in New Zealand Shipping Co v Société des Ateliers et Chantiers de France [1919] AC 1 at 6:

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‘It is a principle of law that no one can in such a case take advantage of the existence of a state of things which he himself produced’: see also Mackay v Dick (1881) 6 App Cas 251 at 264. A like result to that I have already stated will follow if an engagement ring be regarded as a pledge or deposit for the fulfilment of a contract. A person who wrongly refuses to carry out a bargain will lose his deposit: see Ex parte Barrell (1875) LR 10 Ch 512 and Howe v Smith (1884) 27 Ch D 89. I have thought it best to deal with the matter somewhat fully, as it was so adequately argued before me. I may therefore venture to add a few words on other aspects of the matter which may arise and which were referred to by counsel. If the engagement to marry be dissolved by mutual consent, then in the absence of agreement to the contrary, the engagement ring and like gifts must, I think, be returned by each party to the other. This seems clear on principle. If the marriage does not take place either through the death of, or through a disability recognized by law on the part of, the person giving the ring or other conditional gift, then I take the view that in such case the condition is to be implied that the gift shall be returned. For although, as I have said, such a gift cannot be dissociated from the engagement to marry, yet I think that in the circumstances of betrothal gifts there should be no application of the operation of such decisions as Krell v Henry [1903] 2 KB 740 and Chandler v Webster [1904] 1 KB 493. If the marriage actually takes place then the engagement ring or like gift will, in the absence of express agreement to the contrary, become, I infer, the absolute property of the recipient, and that property will not, I presume, be divested by subsequent divorce. The judgment I have given does not, of course, touch gifts which, as in Lockyer v Simpson Mosely 298, are absolute and free from condition. It touches conditional gifts only. I must add just a word on another point. The jury, after giving their verdict, expressed a view that the plaintiff, Miss Cohen, should return the ring to the defendant. But the matter was not left to them for decision and their view was only a suggestion. They were not cognizant of the points involved in the dispute as to the ring. In any event it would have been right that the plaintiff should keep possession of the ring so that she might be able to take it in execution for the damages and costs awarded in her favour against the defendant. For the reasons given there must be judgment for the plaintiff with costs on claim and counterclaim.

Authoritative obiter dicta 7.51

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Obiter dicta are judicial statements of law that are not strictly necessary for the present decision. The legal principle being propounded is not properly raised by the issues in the case. As noted in the previous section, judges at times are hesitant make obiter statements on the basis that the principles being addressed are too hypothetical and will not have received full argument. Nevertheless, judges often do make obiter observations. And sometimes superior courts go to considerable lengths to expound important legal principles even though they are only provoked by, rather than directly

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relevant to, the proved facts of the case before them. Two classic cases in which this has occurred are Central London Property Trust Ltd v High Trees House Ltd108 and Hedley Byrne & Co Ltd v Heller & Partners Ltd (‘Hedley Byrne’).109 In the former, in the King’s Bench Division of the English High  Court, Denning  J expounded the doctrine of equitable or promissory estoppel even though the actual decision in the case did not involve an application of the doctrine. His judgment was nevertheless followed widely and proved extremely influential in the evolution of the doctrine of equitable estoppel. The issue in Hedley Byrne was liability for negligent misstatement. The plaintiff had obtained information from the defendant bank about the creditworthiness of a third party, a customer of the bank, with whom the plaintiff was considering doing business. The defendant negligently and incorrectly provided a favourable report, and consequently the plaintiff performed work for the third party for which the latter was unable to pay. The decision of the House of Lords was that the defendant was not liable for the plaintiff ’s loss because it had disclaimed responsibility for inaccuracy. That was the decision in the case. Fifty pages of the House of Lords’ reasoning, however, discuss what the result would have been had there been no disclaimer. Although obiter, this analysis by the Law Lords constituted a major development in the law governing negligent misstatement and recovery for pure economic loss. In Nowicka v Superannuation Complaints Tribunal110 Sundberg J quoted two pertinent observations:

7.52

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A mere passing remark or a statement or assumption on a matter that has not been argued is one thing, a considered judgment on a point fully argued is another, especially where, had the facts been otherwise, it would have formed part of the ratio. Such judicial dicta, standing in authority somewhere between a ratio decidendi and an obiter dictum, seem to me to have a weight nearer to the former than the latter.111 It is a truism upon which there is no need to enlarge that dicta are of various degrees of persuasiveness. At one end of the scale we have the considered opinion of all members of the House of Lords who sat to hear a case. At the other end of the scale we have broad observations made on the spur of the moment such as the remark which prompted Lord Abinger to say ‘It was not only an obiter dictum, but a wide divaricating dictum.’ Dicta of the highest degree of persuasiveness may often, for all practical purposes, be indistinguishable from pronouncements which must be treated as ratio decidendi.112

In the Australian context, Justice Heydon, while warning of the risks of judges introducing obiter into their judgments, nevertheless indicated extrajudicially that ‘lower courts ought to respect the decision rather than disloyally engaging in an overruthless characterisation of what is said as dicta’.113 In Farah Constructions Pty Ltd v SayDee Pty Ltd (‘Farah Constructions’),114 the High  Court expressed the view that, as the highest court in the Australian judicial hierarchy, its dicta — especially dicta subscribed 108 109 110 111 112 113 114

[1947] KB 130. [1964] AC 465. [2008] FCA 939 [21]. Brunner v Greenslade (n 102) 1002–1003 (Megarry J). Cross and Harris (n 9) 77. Heydon, ‘How Far?’ (n 12) 39. (2007) 230 CLR 89 (‘Farah Constructions’).

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to by a majority of Justices — should be accorded great respect. In its unanimous judgment, the Court was extremely critical of the New South Wales Court of Appeal for departing from ‘long-established authority and seriously considered dicta of a majority of this Court’,115 and stated: The result of the statements by the Court of Appeal … has been confusion among trial judges of a type likely to continue unless now corrected. … [A]  trial judge of the Supreme Court of New South Wales now ‘faces the difficult situation of obiter dicta in the High Court some 30 years ago conflicting with recent dicta in the Court of Appeal, which have met with substantial criticism’. The confusion is not likely to be limited to New South Wales judges.116

As with the High  Court’s similarly critical remarks in Phillips, discussed above at 7.23, the ‘haughty’117 attitude expressed by the High Court is open to question. Keith Mason, who was President of the New  South  Wales Court of Appeal in Farah Constructions, described the High  Court decision as a ‘profound shift in the rules of judicial engagement’.118 He suggested that the decision has been viewed as an ‘assertion of a High  Court monopoly in the essential developmental aspect of the common law’ which will ‘have the effect of shutting off much of the oxygen of fresh ideas that would otherwise compete for acceptance in the free market of Australian jurisprudence’.119 The High Court’s attitude in Farah Constructions appears inconsistent with its earlier suggestion that, given the restrictions imposed on High Court appeals, intermediate appeal courts serve as ‘courts of last resort for all practical purposes’.120

Judicial law-making

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7.53

As discussed in Chapters 2 and 3, law-making is not a core part of the judicial function. That is the legislature’s job. The judiciary’s function is to interpret and apply existing law to resolve the disputes that come before it.Where an issue is addressed unambiguously by legislation, the court has no choice but to apply the legislation. If there is any ambiguity in the legislation, the court should consider, and in many cases apply, the interpretation adopted in previous cases.Where the issue is free of legislation, the court should consider, and in many cases follow, relevant precedents.

115 116

117 118 119

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Ibid 150–1 [134]. Ibid [151]; the internal citation is Kalls Enterprises Pty Ltd (In liq) v Baloglow (2006) 58 ACSR 63, 78 [47] (Hamilton J), quoted in Darkinjung Pty Ltd v Darkinjung Local Aboriginal Land Council [2006] NSWSC 1217 [30] (Barrett J). Keith Mason, ‘President Mason’s Farewell Speech’ (2008) 82 Australian Law Journal 768, 769. Ibid. Ibid. See also Keith Mason, ‘The Distinctiveness and Independence of Intermediate Courts of Appeal’ (2012) 86 Australian Law Journal 308. Nguyen v Nguyen (1990) 169 CLR 245, 268 (Dawson, Toohey and McHugh JJ) (‘Nguyen’).

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FILLING GAPS IN THE LAW Where there is no Australian precedent, a trial judge may obtain assistance from authorities from foreign jurisdictions. The question of what a trial judge should do when faced with no pertinent Australian authority, only conflicting foreign decisions, was considered by Heydon JA in the New South Wales Court of Appeal in Union Shipping New Zealand Ltd v Morgan.121 On appeal, the defendant argued that the trial judge was wrong to have followed MacKinnon v The Iberia Shipping Co Ltd122 — a decision of the Court of Session,

121 122

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(2002) 54 NSWLR 690 (‘Union Shipping’). 1955 SC 20.

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Scotland’s Supreme Civil Court — in view of conflicting authorities of the United States Supreme Court and academic criticism. Heydon JA said: The criticisms were misplaced. In view of the quality of the court which decided MacKinnon’s case, the absence of contrary authority in the British Commonwealth, the fact that the United States cases are based on a process of statutory construction and a ‘proper law of the tort’ theory which was not part of the intra-Australian conflict of laws, the general acceptance of MacKinnon’s case, though subject to criticism, as stating the law, and his own position as a primary judge, the primary judge did not err … In fact his behaviour was entirely correct and legitimate: it was a model of what a primary judge should have done in the circumstances.123

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7.55

Judges are occasionally presented with novel issues that are free of legislation and authority. Despite all the shelves of case law and legislation in law libraries and legal databases, new issues may be thrown up by developments in society, economics, technology and medicine. Law, with its inherently conservative approach, can struggle to keep up. In Mount Isa Mines Ltd v Pusey, Windeyer J referred to ‘[l]aw, marching with medicine but in the rear and limping a little’.124 Consider, for example, Cattanach v  Melchior (‘Cattanach’).125 In Cattanach the first defendant, Dr Cattanach, had performed a sterilisation procedure on the first plaintiff, Ms Melchior, at Redland Hospital, the second defendant. He carried out the operation competently but was negligent in failing to warn her that further steps might be necessary to avoid pregnancy. As a result, she became pregnant and had a healthy baby boy. Ms Melchior and her husband brought an action against the defendants, arguing that the failure to warn was negligent and claiming compensation for their consequent losses. This ‘wrongful birth’ action was novel; it would have been inconceivable at  an earlier stage in the development of medical science. At trial and in the Queensland Court of Appeal the plaintiffs were successful. She obtained damages for pain and suffering, and costs associated with the pregnancy and birth. Her husband obtained damages for loss of consortium, and both plaintiffs obtained damages for the cost of raising the child to the age of 18. The defendants appealed to the High Court in connection with the final head of damages, but the Court dismissed the appeal by a majority of 4:3.126 A number of legislatures responded to the recognition of the wrongful birth action in Cattanach by passing legislation blocking it.127 A few years later the High Court faced a closely related type of claim in Harriton v Stephens (‘Harriton’).128 The difference was that this was an action for ‘wrongful life’ rather than wrongful birth. The medical negligence action was brought by the child who had been born severely disabled, rather than by the parents. The High  Court rejected the claim by a majority of 6:1. The action proceeded on the basis that, had the plaintiff ’s mother received proper treatment and advice, she would have had an

123

124 125 126 127

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Union Shipping (n 121) 701 [14], 734 [115] (Heydon JA, Hodgson JA agreeing at [120], Santow JA agreeing at [121]). (1970) 125 CLR 383, 395. (2003) 215 CLR 1 (‘Cattanach’). McHugh, Gummow, Kirby and Callinan JJ; Gleeson CJ, Hayne and Heydon JJ dissenting. Civil Liability Act 2002 (NSW) ss 70, 71; Civil Liability Act 2003 (Qld) ss 49A(2), 49B(2); Civil Liability Act 1936 (SA) s 67. (2006) 226 CLR 52 (‘Harriton’); and Waller v James (2006) 226 CLR 136, decided at the same time.

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abortion. In assessing compensation, the Court would have to draw a comparison not between a life with disabilities and a life without disabilities, but between a life with disabilities and no life at  all. According to the majority, this comparison ‘cannot be made’;129 it is ‘impossible’.130 New issues may also be thrown up by new legislation. Of course, the judge has to apply the legislation, but it may be ambiguous or leave the judge with wide discretion.As Justice Heydon has pointed out extrajudicially,131 the ever-growing body of legislation continues to present trial courts with cases of first impression. A contributing factor is that ‘modern statutes are long, complex, not always well-drafted, frequently amended, and sometimes repealed and re-enacted in a slightly different form’; novel legal issues may also arise ‘where legislation is piecemeal in the sense that it does not cover the field and there is a need for the general law to be synthesised with it’.132 The principles governing statutory interpretation are discussed in Chapters 10–15. If there is a gap in the law, the judge must fill the gap.This is as true of magistrates as it is of Justices of the High Court. The essence of the judicial role is that a decision must be made. The judge ‘must respond to the parties’ arguments … cannot walk away … cannot postpone indefinitely … cannot say it is too hard’.133 It follows that ‘there is never an absence of law’.134 As former Justice Michael Kirby commented extrajudicially, ‘[i]f there is no apparent law on the subject the judge is duty-bound to create it’.135 For many years, the judicial law-making role was not acknowledged. Jurists subscribed to what was called the ‘declaratory theory of law’. Under that theory judges did not make law, even if the issue before them had never been dealt with before. Rather, by looking at existing common law and statute law principles, they were said to have extracted a rule that was held always to have existed, but which had remained unused, waiting to be declared at the appropriate moment. By the end of the 18th century, legal philosophers such as Jeremy Bentham and John Austin had exposed that theory as a fiction, and had asserted that, in some cases, judges did make law when making their decisions. As legal theorist Julius Stone pointed out:

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How could the law of a small community, based on agriculture and cottage industry, of the 16th and 17th centuries have developed the enormous complex of rules which could regulate a great commercial and industrial empire if the judges had only been drawing on pre-existing sources?136

Lord Reid provided a sardonic account of the declaratory theory:

129 130 131 132 133

134 135 136

Harriton (n 128) 105 (Hayne J). Ibid 126 (Crennan J). Heydon, ‘How Far?’ (n 12). Ibid 18. Michael Kirby, ‘Judicial Activism? A Riposte to the Counter-Reformation’ (2005) 11 Otago Law Review 1, 14 (‘A Riposte’). Ibid. Ibid. Lyndel Prott,‘Stone and Legal Reasoning’ (1986) 10 Bulletin of the Australian Society of Legal Philosophers 144.

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Those with a taste for fairytales seem to have thought that in some Aladdin’s cave there is hidden the Common Law in all its splendour and that on a judge’s appointment there descends on him knowledge of the magic words Open Sesame.137

Now it seems that most, if not all, judges and legal commentators reject the fairytale and accept that judges do make law.

7.58

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7.59

DEVELOPING THE LAW Even where there is no gap in the law, judges still have the power, in some cases, to change the law. A court may be allowed to reject an established principle of common law. Clearly, judges should respect the supremacy of Parliament; they cannot ignore legislation no matter how dimly they view it: see, for example, 4.45. However, legislation often leaves room for interpretation. Despite the doctrine of precedent, a court may be able to depart from an established interpretation of legislation. (The doctrine of precedent applies, potentially with some slight variation, to decisions involving statutory interpretation, as discussed at 8.7ff.) The doctrine of precedent is inherently conservative. Judges resolving disputes today should apply the principles that were applied to similar disputes in the past. This serves the goals of predictability, equality and efficiency. However, as discussed in this chapter and the next, the doctrine is not wholly rigid. If a superior court in the same hierarchy has previously made a clear decision on identical facts, the lower court will be required to follow that decision and apply the law as there stated with the same result. But in other situations, precedents may be only persuasive and otherwise binding precedents may be distinguishable or open to interpretation. Judges may be tempted to depart from precedent for a variety of reasons. A judge may consider the principle to be erroneous as a matter of principle, or contrary to a clear policy goal. Alternatively, the judge may consider that, while the established principle generally operates well, the present case has special features that the principle fails to account for. In these situations, the judge may feel some pressure to depart from precedent and develop the law. It should be noted that precedents do not lose their authority merely through the passage of time. Indeed, the contrary is often true: ‘a precedent gains in authority with age’.138 Though, as John Salmond noted in an article published in 1900, in a passage quoted by the High Court, this statement … must be read subject to an important qualification. Up to a certain point a human being grows in strength as he grows in age; but this is true only within narrow limits. So with the authority of judicial decisions. A moderate lapse of time will give added vigour to a precedent, but after a still longer time the opposite effect may be produced, not indeed directly, but indirectly through the accidental conflict of the ancient and perhaps partially forgotten principle with later decisions. Without having been expressly overruled or intentionally departed from, it may become in course of time no longer really consistent with the course of judicial decision. In this way the tooth of time will eat away an ancient precedent, and gradually deprive it of all authority and validity. The law becomes animated

137

138

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James Reid, ‘The Judge as Law Maker’ (1972) 12 Journal of the Society of Public Teachers of Law (New Series) 22. Salmond (n 35) 383, cited in PGA (n 35) [24].

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by a different spirit and assumes a different course, and the older decisions become obsolete and inoperative.139

Nevertheless, some precedents retain their legal authority despite being out of step with modern societal values. To a greater or lesser extent, this will present the court with a ‘judicial dilemma’.140 To comply with the existing rule opens the court to criticism that it is out of step with community values or social developments, while to change the law invites the charge that the court is undermining certainty and breaching the separation of powers by ‘usurping the role of the legislature’.141 Given the way the doctrine of precedent operates, judges higher in the court hierarchy will have greater scope to depart from precedents than lower courts.‘The ultimate function of developing the law must lie for the most part in the hands of an ultimate appellate court’.142 And, as Phillips and Farah Constructions illustrate, the High Court has guarded its privileged position jealously (notwithstanding that, on another occasion, it suggested that intermediate appellate courts are serve as ‘courts of last resort for all practical purposes’).143 Lower courts, particularly trial courts, are more likely to feel constrained by what appear to be inappropriate precedents. A number of the common law reforms made by the High Court in the 1980s and 1990s included the overruling of tort law authorities that were viewed as out of step with the broader principles of negligence law as outlined in Donoghue v Stevenson and its progeny. Ad hoc torts and immunities were abolished, and the reach of negligence law was extended. In Australian Safeway Stores v Zaluzna,144 the body of principle governing occupiers’ liability, which previously had an uncertain relationship with negligence law, was unambiguously subsumed by it. In Burnie Port Authority v General Jones Pty Ltd,145 the High Court abolished the rule in Rylands v Fletcher,146 a strict liability tort for the escape of dangerous substances from the defendant’s property.The Court held that such circumstances should be dealt with by the principles of negligence law. In the decision in Northern Territory v Mengel (‘Mengel’),147 the High  Court unanimously overruled Beaudesert Shire Council v  Smith (‘Beaudesert’).148 Beaudesert had held that a person should be entitled to compensation if they have suffered harm as the inevitable consequence of the unlawful, intentional and positive acts of another, even if that harm was neither intended nor foreseeable.The High Court in Mengel considered the Beaudesert rule to be inconsistent with the broader principles of modern tort law, which confine liability to injuries that are intentional or negligent. In Northern Sandblasting149 the High Court disapproved the immunity of landlords from liability arising from defects in rented premises, ruling that landlords should be held liable for injuries flowing from their negligence.

139 140 141 142 143 144 145 146 147 148 149

7.60

7.61

Salmond (n 35) 383, cited in PGA (n 35) [24]. Michael McHugh, ‘The Judicial Method’ (1999) 73 Australian Law Journal 37, 42. Ibid. Heydon, ‘How Far?’ (n 12) 44. Nguyen (n 120) 268. (1987) 162 CLR 479. (1994) 179 CLR 520. (1868) LR 3 HL 330. (1995) 185 CLR 307. (1966) 120 CLR 145. See discussion at 7.34 and n 52.

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Judicial negligence law reform continued into this century. In Brodie v  Singleton Shire Council,150 by a majority of 4:3 the High  Court overturned the immunity of highway authorities from liability for injuries arising from nonfeasance in their care and management of highways. In so doing it overruled the High Court’s earlier decisions, Buckle v Bayswater Road Board151 and Gorringe v Transport Commission (Tas).152 The majority held it was necessary to abolish the immunity and deal with the liability of highway authorities under the general law of negligence, in order to ‘[place] the common law of Australia on a principled basis’.153 Gleeson CJ, dissenting, acknowledged the many criticisms that had been made of the immunity. He added, however, that ‘[t]he question for decision is what is the appropriate judicial response to such criticisms’.154 In his view, the change was too great in its implications for the judiciary to make: it should be left to Parliament. If the rule is to be changed, the change should be made by those who have the capacity to modify it in a manner appropriate to the circumstances calling for change, who may be in a position to investigate and fully understand the consequences of change, and who are politically accountable for those consequences.155

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7.62

In Imbree v McNeilly156 the High Court overturned its earlier decision, Cook v Cook,157 which had established a different standard of care for learner drivers; the change was necessary ‘to maintain a better connection with more fundamental doctrines and principles’.158 Cattanach, the wrongful birth case discussed at  7.55, while involving a new principle rather than a change to existing principle, can be viewed as part of this pattern. The majority considered that liability flowed from the general principles of negligence law.159 ‘Duty, breach and damage are all conceded’.160 The majority were not prepared to recognise, as an exception to general principle, an immunity against wrongful birth liability.161 Harriton, in which the wrongful life action was not recognised, is distinguishable from the point of view of principle — it was difficult to conceptualise existence and life as compensable damage.162 The extent to which it is legitimate for the High Court to change the law has been a hotly contested issue on which a range of views have been expressed.Towards the liberal end of the spectrum, Justice McHugh has acknowledged that the common law must develop in response to societal values:

150 151 152 153 154 155

156 157 158 159 160 161 162

224

(2001) 206 CLR 512 (‘Brodie’). (1936) 57 CLR 259. (1950) 80 CLR 357. Brodie (n 150) 542. Ibid 529. Ibid 536. Note that legislatures promptly reintroduced a ‘[s]pecial non-feasance protection for roads authorities’: see, eg, Civil Liability Act 2002 (NSW) s 45. See also Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22, 30 [11] (Gleeson CJ). (2008) 236 CLR 510 (‘Imbree’). (1986) 162 CLR 376. Imbree (n 156) 526 [45] (Gummow, Hayne and Kiefel JJ). Cattanach (n 125) 27, 28 (Gummow and McHugh JJ), 68 (Kirby J), 106 (Callinan J). Ibid 32 (McHugh and Gummow JJ). See, eg, ibid 29 (McHugh and Gummow JJ), 106 (Callinan J). See discussion at 7.55 and nn 129–138.

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When legal rules and principles are no longer efficient or do not meet social needs, they must be reviewed and sometimes revised or extended. The law is a social instrument — a means, not an end. It changes as society changes.163

Similarly, Gummow J has endorsed Lord Radcliffe’s view that ‘the common law is a body of law which develops in process of time in response to the developments of the society in which it rules’.164 And Justice Kirby has referred to ‘the great tradition of the common law — adapting and updating the law for a time of rapid social change’.165 Towards the conservative end of the spectrum, Chief Justice Gleeson has stated: ‘The expertise which the members of the court are required to bring to bear on that function is their expertise as lawyers … The quality which sustains judicial legitimacy is not bravery, or creativity, but fidelity’.166 Justice Hayne expressed a similarly modest view of the judicial role, describing ‘judicial reticence … as a fundamental informing principle for every judge at  every level in the judicial system’.167 Justice Callinan has also been critical of the view that a court should ‘look to and adopt its own view of contemporary community perceptions and values’.168 More stridently, Justice Heydon equated ‘judicial activism’ with the ‘death of the rule of law’, castigating its ‘illegitimate’ use of judicial power to further ‘some political moral or social programme’.169 A particularly controversial example of law-making by the High Court is provided by Mabo v Queensland [No 2] (‘Mabo [No 2]’),170 in which the High Court rejected the application of the terra nullius principle to Australia, and upheld native title, dramatically overturning established doctrine (see 4.3ff). Brennan J said:

7.63

Whatever the justification advanced in earlier days for refusing to recognise the rights and interests in land of the indigenous inhabitants of settled colonies, an unjust and discriminatory doctrine of that kind can no longer be accepted. The expectations of the international community accord in this respect with the contemporary values of the Australian people.171

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Similarly, Deane and Gaudron JJ, in their joint judgment, said: If this were any ordinary case, the Court would not be justified in reopening the validity of fundamental propositions which have been endorsed by long-established authority and which have been accepted as a basis of the real property law of the country for more than one hundred and fifty years … Far from being ordinary, however, the circumstances of the present case make it unique … [T]he two propositions in question provided the legal basis for the dispossession of the Aboriginal people of most of their traditional lands.172

163 164

165 166 167

168 169

170 171 172

McHugh (n 140) 42. Wik Peoples v Queensland (1996) 187 CLR 1, 179 (Gummow J), quoting from Lister v Romford Ice and Cold Storage Co Ltd [1957] AC 555, 591–2 (Lord Radcliffe). Kirby, ‘A Riposte’ (n 133) 10. Murray Gleeson, ‘Judicial Legitimacy’ (2000) 20 Australian Bar Review 4, 11. Kenneth Hayne, ‘Letting Justice Be Done Without the Heavens Falling’ (2001) 27 Monash University Law Review 12, 15. Ian Callinan, ‘An Over-Mighty Court?’ (1994) 4 Proceedings of The Samuel Griffith Society 81, 96. Dyson Heydon, ‘Judicial Activism and the Death of the Rule of Law’ (2003) 23 Australian Bar Review 110, 113 (‘Judicial Activism’). (1992) 175 CLR 1 (‘Mabo [No 2]’). Ibid 42 (Brennan J). Ibid 109 (Deane and Gaudron JJ).

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Dissenting, Dawson J said: The policy which lay behind the legal regime was determined politically and, however insensitive the politics may now seem to have been, a change in view does not of itself mean a change in the law. It requires the implementation of a new policy to do that and that is a matter for government rather than the courts.173

Some commentators took a similar view. Historian Geoffrey Blainey said that the majority judgment … denied the legitimacy of this country. … The High  Court has become too powerful. It seems to have the ambition to become a sort of supreme legislature, a third Parliament, and that runs counter to the path Australian democracy has taken over the years.174

In delivering his judgment in Mabo v Queensland [No 2] Brennan J acknowledged the constraints on judicial law-making: [T]his Court is not free to adopt rules that accord with contemporary notions of justice and human rights if their adoption would fracture the skeleton of principle which gives the body of our law its shape and internal consistency.175

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7.64

He considered that the principles the majority advanced, discussed in 4.4, while departing from established precedent, were consistent with the essential structure of Australian property law. Competing pressures, for and against High Court law-making, were prominent in a pair of criminal appeals dealing with similar issues, one decided in 1991 and the other in 2012. In the earlier case, R v L,176 the defendant had been charged with the rape of his wife. There was common law authority going back more than 250 years that marriage carried with it the wife’s irrevocable consent to sexual intercourse with her husband.177 This provided a defence for a husband charged with the rape of his wife. But, by the 1990s, social conditions and values had changed and the principle was no longer acceptable to the vast majority of the Australian population. That being the case, the High Court considered itself ‘justified in refusing to accept a notion that is so out of keeping with the view currently taken by society of the relationship between the parties to a marriage’.178 The majority expressed doubts as to whether marital immunity was ever part of common law,179 but if it was, the High Court unanimously held it should be abolished. The High  Court was presented with a more difficult sequel to R  v  L in PGA v The Queen (‘PGA’).180 In 2010 in South Australia the defendant was charged with the rape of his wife in 1963, several decades before the High Court’s common law rejection of the immunity in R v L in 1991 and South Australia’s legislative narrowing and abolition of the immunity in 1976  and  1992.181 In separate dissenting judgments, Heydon  J and 173 174

175 176 177 178 179 180 181

226

Ibid 145. Richard Evans,‘The Blainey View: Geoffrey Blainey Ponders Mabo, the High Court and Democracy’ (1995) 69 Law Institute Journal 203, quoted in Kathy Laster, Law as Culture (Federation Press, 2nd ed, 2001) 132. Mabo [No 2] (n 170) 29. (1991) 174 CLR 379 (‘R v L’). Matthew Hale, Historia Placitorum Coronae (History of the Pleas of the Crown) (Sollom Emlyn, 1736) vol 1, 629. R v L (n 176) 390. Ibid 388–90. PGA (n 35). Criminal Law Consolidation Act Amendment Act 1976 (SA) s 12 inserted new sub-ss (3) and (5) to s 73 of the principal Act. The Criminal Law Consolidation (Rape) Amendment Act 1992 (SA) replaced the existing s 73(5).

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CHAPTER 7

CASE LAW AND PRECEDENT

Bell J held that marital immunity was part of the common law in 1963, and expressed concern about its retrospective abolition half a century later in 2012. Judicial change of the law is always retrospective (in that the judicial decision is always after the events under consideration); however, retrospectivity raises particular concerns where criminal liability is concerned.182 And in this case the concerns were further heightened by the many years that had passed between the conduct and the judicial change of law.183 A majority of the High Court, however, indicated that marital immunity was not part of the common law in 1963, nor even in 1935 when South Australia’s Criminal Law Consolidation Act was passed.184 The majority expressly held that it was not extending criminal liability retrospectively.185 The majority’s judgment in PGA is difficult and controversial. Kos Lesses suggests that the majority ‘expressly denied the role of social change in Australia as a legitimate method of legal reasoning’.186 Lesses applauds the majority for still managing to arrive at a decision which recognises marital rape as a crime:

7.65

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There may have been a time and place when such treatment was considered acceptable and hence the possibility of a positive public policy for the marital immunity. But that time had well and truly passed in Australia as at 1963. The decision of the majority in PGA v The Queen is a praiseworthy declaration to this effect.187

However, other commentators are critical of the majority’s approach and consider that the dissenting judgments, in acknowledging that the defence was in existence in 1963, are more accurate. For example, Jill Hunter suggests that the majority judgment ‘effectively masks social and legal reality’;188 Wendy Larcombe and Mary Heath concur, indicating that in 1963 ‘the legal treatment of rape in marriage across Australia, as in other common law jurisdictions, proceeded on the basis that the marital immunity was part of the law’.189 It was not until the ‘sustained feminist activism’ of the 1970s that attitudes changed, bringing about statutory reforms.190 Larcombe and Heath agree with Heydon J’s assessment that the majority’s conclusion rests on a belief ‘that history can be rewritten in complete defiance of all contemporary evidence’.191 ‘The decision … fails to acknowledge the lived experiences of wives and husbands and their relationship to the law as it was understood in 1963.’192 Ngaire Naffine and Joshua Neoh suggest that the majority ‘absolved the common law from responsibility’193 and that the majority

182 183 184 185 186

187 188

189

190 191 192 193

PGA (n 35) 402–15 (Heydon J), 444–5 (Bell J). Ibid 402 (Heydon J), 423 (Bell J). Ibid 384 (French CJ, Gummow, Hayne, Crennan and Kiefel JJ). Ibid 369. Kos Lesses, ‘PGA v The Queen: The Role of Repetition, Reputation and Fiction in the Common Law’ (2014) 37 Melbourne University Law Review 786, 832, citing PGA (n 35) 384. Lesses (n 186) 833. Jill Hunter,‘Rape Law, Past Wrongs and Legal Fictions:Telling Law’s Story with Integrity’, in Paul Roberts, Simon N M Young, and David Dixon (eds), The Integrity of Criminal Process (Bloomsbury, 2016) 327, 347. Wendy Larcombe and Mary Heath, ‘Developing the Common Law and Rewriting the History of Rape in Marriage in Australia: PGA v The Queen’ (2012) 34 Sydney Law Review 785, 803. Ibid 803. Ibid 803, quoting PGA (n 35) 414 (Heydon J). Larcombe and Heath (n 189) 788. Ngaire Naffine and Joshua Neoh, ‘Fictions and myths in PGA v The Queen’ (2013) 38 Australian Journal of Legal Philosophy 32, 51.

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decision constituted ‘a failure to recognise the fact of wife rape and the role of law in giving it full licence’.194 An acknowledgment of the legal and social reality of marital immunity in 1963 would not necessarily preclude a prosecution 50 years later. Hunter highlights a possible solution, albeit one requiring some judicial courage, as she draws a comparison with war crimes: Rape might … be viewed as a crime that is a ‘moral transgression [justifying] … the public interest in seeing the transgressors called to account [and outweighing] … the need of society to protect an individual from prosecution on the basis that a law did not exist at the time of the conduct’.195

Law reporting 7.66

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7.67

The development of the doctrine of precedent required a comprehensive system of law reports in which authoritative decisions may be found by the judges and lawyers involved in later cases: see 7.5. Since the 1860s in England and Wales, and progressively in Australian jurisdictions, judgments given in the more important cases have been systematically published in series of law reports. Generally, only the more important cases decided by superior courts get reported. These constitute only a small proportion of the cases decided in the judicial system each year; they are those which raise significant points of law and are thought to be valuable as precedents. (Virtually all decisions of apex courts like the High Court of Australia and the United Kingdom Supreme Court get reported, often in several different sets of law reports.) The editor of each series of law reports is responsible for deciding which cases should be reported. Headnotes are generally drafted by a reporter, usually a barrister, solicitor or academic lawyer, employed by the publisher of the law report series. Each set of law reports has its own abbreviation series reference — for example, the Commonwealth Law Reports series is abbreviated to CLR. A reported case is referred to (or ‘cited’) by giving the case name (usually the names of the parties), the year in which the decision was made or reported (each law report will use a system of dates), the volume number (if there is one), the abbreviated series reference, and the page at which the report begins. A guide to the most important Australian law report series, together with those of a few foreign jurisdictions, appears in Essential Legal Toolkit C at the end of this book. The rules for the citation of cases are explained in Chapter 21 at 21.14ff. A list of abbreviations of commonly used reports appears in Essential Legal Toolkit B at the end of the book. For a fuller list, see LexisNexis Concise Australian Legal Dictionary and the Australian Guide to Legal Citation in Further reading below. In the past, law reporting played a crucial role in making past decisions available for use in subsequent disputes. Now, however, many unreported decisions are readily also available over the internet. For guidelines on the citation of unreported decisions, see 21.27 and Essential Legal Toolkit D. See Chapter 18 for a discussion of case law databases. 194 195

228

Ibid. Hunter (n 188) 333, quoting from the war crimes case Polyukhovich v The Commonwealth (1991) 172 CLR 501, 689 (Toohey J).

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CHAPTER 7

CASE LAW AND PRECEDENT

AUTHORISED AND UNAUTHORISED REPORT SERIES From the beginning of the 16th century until the middle of the 19th, law reports in England were produced by private reporters under their own names. For that reason, they are called the Nominate Reports and are of variable quality depending on the skills of the individual reporter. They were not checked by the courts from which the cases came. Most of these series, some of which were short-lived, are reproduced in the English Reports: see also 1.26. In England in 1865, the body now known as The Incorporated Council of Law Reporting for England and Wales was set up to begin systematic reporting of all cases decided by the superior courts: see 7.5. These reports are seen by the courts which decided them before being published and are regarded, therefore, as authorised. They include the Law Reports, which are made up of a number of distinct series such as the decisions of the Queen’s Bench Division (QB) and the Appeal Cases (AC). Law reporting in the Australian colonies followed a similar pattern to that of England. Before the mid-1860s law reporting was haphazard. During the 1860s, however, Councils of Law Reporting were set up in the colonies and the systematic production of authorised report series began. Each jurisdiction has at least one authorised series; for example, the Commonwealth Law Reports (CLR) contains decisions of the High Court of Australia and previously also of the Privy Council. In both England and Australia, unauthorised series, which are not produced by Councils of Law Reporting, have continued to be published alongside the authorised reports.These may be specialist reports, such as Australian Criminal Reports (A Crim R), or general reports for a jurisdiction, such as the State Reports of Western Australia (SR(WA)). Where a decision appears in both authorised and unauthorised reports, the court will generally require the authorised citation to be provided.196 The advantage of unauthorised reports was that, since they are not checked by the court, they can be published more quickly.This advantage has diminished, given the wide and prompt availability of decisions published by the relevant court over the internet: see 7.71. However, the unauthorised report has the possible advantage of including a headnote and the navigability of headers and footers. CASES ON THE INTERNET Access to court decisions has been transformed by their increasing availability on the internet. Most law report series are now available on commercial legal platforms such as Lexis Advance or Westlaw AU, and virtually all appeal court decisions are available soon after they are handed down on sites such as AustLII and the court websites: see Chapter 18. Moreover, decisions downloaded from the internet have the benefit of being fully text-searchable. The unreported versions generally do not have headnotes and are not authorised (see 7.68), but they are extremely valuable to legal researchers and may be cited in court. Furthermore, the proliferation of case law databases in other jurisdictions has meant that international precedents are increasingly also used in argument.

196

7.68

7.69

7.70

7.71

See, eg, Supreme Court of Victoria, Practice Note 9 of 2011 — Citation and Provision of Copy Judgments to the Court and Opposing Counsel, 7 November 2011.

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7.72

These developments may not be an unqualified boon. Dyson Heydon, a former Justice of the High Court, has complained extrajudicially that the ease of access to such a wealth of decisions constitutes a ‘challenge to [judicial] probity’.197 ‘The duty of a judge’, Heydon suggests, ‘is to decide the case’, and entailed in this is ‘a duty to say no more than what is necessary’.198 However, aided by the internet, ‘many modern judges’199 go far beyond that: Often no cases are followed, though all are referred to … They do not limit themselves to reported cases, but use computers to obtain access to unreported ones. They use huge footnotes  … The citations often in fact do not demonstrate judicial erudition, being associate-generated, or worse, computer-generated. But however they are generated, they seem more designed to highlight supposed judicial learning than to advance the reasoning in any particular direction relevant to the issues between the parties.200

Further reading • James Crawford and Brian Opeskin, Australian Courts of Law (Oxford • • •

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• • • • •

197 198 199 200

230

University Press, 4th ed, 2004). Rupert Cross and JW Harris, Precedent in English Law (Oxford University Press, 4th ed, reprint, 2004). Robert French, ‘Judicial Activism: The Boundaries of the Judicial Role’ (2010) 10 Judicial Review 1. Matthew Harding and Ian Malkin, ‘The High Court of Australia’s Obiter Dicta and Decision-Making in Lower Courts’ (2012) 34 Sydney Law Review 239. Dyson Heydon, ‘How Far Can Trial Courts and Intermediate Appellate Courts Develop the Law?’ (2009) 9 Oxford University Commonwealth Law Journal 1. Dyson Heydon ‘Threats to Judicial Independence: The Enemy Within’ (2013) 129 Law Quarterly Review 205. Michael Kirby, ‘Judicial Activism: Power Without Responsibility? No, Appropriate Activism Conforming to Duty’ (2006) 30 Melbourne University Law Review 576. Alastair MacAdam and John Pyke, Judicial Reasoning and the Doctrine of Precedent in Australia (LexisNexis Butterworths, 1998). Anthony Mason, ‘Legislative and Judicial Law-Making: Can We Locate an Identifiable Boundary?’ (2003) 24 Adelaide Law Review 16.

Heydon, ‘Judicial Activism’ (n 169) 118. Ibid 121. Ibid 118. Ibid 118–19.

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CHAPTER 7

CASE LAW AND PRECEDENT

• Anthony Mason, ‘Reflections on the High  Court: Its Judges and Judgments’ (2013) 37 Australian Bar Review 102. • Michael McHugh, ‘The Judicial Method’ (1999) 73 Australian Law Journal 37. • William Twining and David Miers, How to Do Things with Rules (Cambridge University Press, 5th ed, 2010).

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To enhance your learning experience, use the student resources available on Lexis® Learning See the Visual Preface at the front of this book on how to register.

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231

CHAPTER

8

Precedent in Australian Courts Precedent plays an important part in eliminating inconsistency, thereby promoting justice and rationality. Likewise, precedent enhances continuity and predictability which are also essential qualities in an acceptable system of law. In order that the citizen may order his affairs and make decisions, the courts must apply uniformly rules and principles that are ascertainable in advance.1 Sir Anthony Mason, ‘The Use and Abuse of Precedent’ (1988) 4 Australian Bar Review 93.

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1

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Introduction

8.1

The High Court of Australia

8.2

− When will the High Court overrule itself?

8.3

− Statutory interpretation

8.7

− Constitutional cases

8.10

Other Australian courts

8.17

− The appellate hierarchy

8.18

− Conflicting precedents

8.24

− Statutory interpretation

8.27

− Discretionary principles

8.29

Court hierarchies in the federal system

8.31

− Cross-vesting between the hierarchies

8.32

− Australian common law

8.35

− State and territory law; national scheme legislation

8.36

− Precedent across different Australian appeal hierarchies

8.39

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− Precedent across different court hierarchies regarding non-uniform legislation − ‘Plainly wrong’ and per incuriam precedents, and judicial comity

8.51

Overview of the doctrine of precedent in Australian courts

8.60

Issues on the margins of the doctrine of precedent

8.61

− Inferior courts

8.62

− Administrative and other tribunals

8.64

− Decisions from other common law jurisdictions

8.72

•

Privy Council

8.76

•

House of Lords

8.82

EXERCISE 9: Precedent in Australian courts

234

8.46

8.90

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CHAPTER 8 PRECEDENT IN AUSTRALIAN COURTS

Introduction The general concepts and principles of the doctrine of precedent or stare decisis were discussed in Chapter 7. Some of the details of the application of the doctrine are left to individual courts to determine as a matter of court practice. Within Australia’s federal court structure, complex issues can arise. This chapter examines the doctrine as it applies in the various Australian courts. In particular the chapter discusses: • the special factors considered by the High Court in determining whether it will overrule itself, and how these vary depending on whether the case concerns common law, legislation or the Australian Constitution; • • • •

• • •

8.1

the circumstances in which other courts in the Australian federal, state and territory hierarchies will overrule themselves; whether and in what circumstances a court in a hierarchy is bound by a decision of another court in the same hierarchy; the precedential value of decisions by courts in another court hierarchy; the precedential value of decisions in another Australian court hierarchy regarding the common law of Australia, Commonwealth legislation or national scheme legislation; the meaning of expressions commonly used in the practice of precedent such as ‘plainly wrong’ and ‘judicial comity’; the practice of precedent in tribunals; and the precedential value of decisions from other common law jurisdictions with particular attention to decisions of the House of Lords and the Privy Council.

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The High Court of Australia As the ultimate appeal court in Australia on matters both of state and of federal law, the High Court is a special case, and is considered separately here. A discussion of the general principles concerning the other courts follow. The position has long been that the Full Court of the High Court is not strictly bound by its own previous decisions. Earlier in its history, the High Court took a more conservative approach. However, this changed when appeals to the Privy Council were abolished. In 1977 Aickin J said: ‘The fact that error can no longer be corrected elsewhere must change our approach to the overruling of our own decisions, at  least to some extent’.2 Given the position of the High Court as the apex court, it is not strictly bound by any precedents. This is not to say that the High Court ignores precedents. This would squander the advantages of following precedent — namely, ‘certainty, equality, efficiency and the appearance of justice’.3 Aickin J did not totally reject the need for conservatism, noting that for the High Court to overrule its previous decision is ‘a serious step, not lightly to be undertaken’.4

2 3 4

8.2

Queensland v The Commonwealth (‘Second Territory Senators Case’) (1977) 139 CLR 585, 630. Telstra Corporation v Treloar (2000) 102 FCR 595, 602 (‘Treloar’). Second Territory Senators Case (n 2) 630.

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The High Court has to be persuaded to depart from its own past decisions. Indeed, it may take some persuasion for the Court to even allow full argument about whether it should overrule one of its own precedents.5 The factors the High Court considers are discussed in the sections following. These vary a little according to the nature of the case. Special considerations may also apply where the case concerns the interpretation of a statute or the Constitution.

8.3

WHEN WILL THE HIGH COURT OVERRULE ITSELF? One of the leading cases is John v Federal Commissioner of Taxation (‘John’).6 The majority observed: There is no doubt that this Court has power to review and depart from its previous decisions. However, such a course is not lightly undertaken. … [I]n Commonwealth v Hospital Contribution Fund, Gibbs  CJ, with whom Stephen  J and Aickin  J agreed, specified four matters which in that case justified departure from earlier decisions. The first was that the earlier decisions did not rest upon a principle carefully worked out in a significant succession of cases. The second was a difference between the reasons of the justices constituting the majority in one of the earlier decisions.The third was that the earlier decisions had achieved no useful result but on the contrary had led to considerable inconvenience. The fourth was that the earlier decisions had not been independently acted on in a manner which militated against reconsideration …7

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8.4

These considerations are often referred to by the High  Court when it is invited to overrule its own precedents. In Esso Australia Resources Ltd v  Federal Commissioner of Taxation (‘Esso Australia Resources Ltd’)8 the Court, by a majority of 4:2, reconsidered the scope of legal professional privilege at common law as laid down in Grant v Downs.9 The effect of this privilege is that lawyer–client communications are confidential: the client may resist making the material available to the other party or the court during litigation. Grant v Downs had supported the ‘sole purpose’ test, according to which, for the privilege to be available, the communication must have been created for the sole purpose of obtaining legal advice. In Esso Australia Resources Ltd the High Court considered whether a ‘dominant purpose’ test should be applied instead. In their joint judgment Gleeson CJ, Gaudron and Gummow JJ, referring to John, noted that the reasoning of Stephen, Mason and Murphy JJ in Grant v Downs had been accepted as law in Australia for more than 20 years.10 However, they also observed: The sole purpose test enunciated by Stephen, Mason and Murphy JJ did not rest upon a principle that had been worked out in a succession of cases. On the contrary, it overturned what was, until then, accepted principle. … The reasons given in the joint judgment for rejecting the pre-existing test do not, as a matter of logic or of policy, require a preference for the sole purpose test over the dominant purpose test, and nowhere do those reasons address 5 6 7

8 9 10

236

Evda Nominees Pty Ltd v Victoria (1984) 154 CLR 311, 316. (1989) 166 CLR 417 (‘John’). Ibid 438–9, citing Commonwealth v  Hospital Contribution Fund (1982) 150 CLR 49 (other citations omitted). (1999) 201 CLR 49 (‘Esso Australia Resources Ltd’). (1976) 135 CLR 674. Esso Australia Resources Ltd (n 8) 71–2 (Gleeson CJ, Gaudron and Gummow JJ).

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CHAPTER 8 PRECEDENT IN AUSTRALIAN COURTS

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a possible choice between those two tests. The House of Lords in England, and the Court of Appeal in New Zealand, with the benefit of the reasoning in Grant v Downs available to them, subsequently preferred the dominant purpose test, and the law in Australia is now out of line with other common law jurisdictions. The Parliaments of the Commonwealth and New South Wales have adopted the dominant purpose test for their Evidence Acts. All those circumstances, in combination, lead to the conclusion that this Court should now reconsider the matter.11

Another illustration is Brodie v Singleton Shire Council,12 in which the High Court, by a majority of 4:3, overturned the immunity of highway authorities from liability for injuries arising from nonfeasance in their care and management of highways: see 7.61. In so doing it overruled the High  Court’s earlier decisions Buckle v  Bayswater Road Board13 and Gorringe v  Transport Commission (Tas).14 Referring to John, the majority questioned whether the immunity had been carefully worked out in a significant succession of cases,15 and noted differences in the reasoning of the majority in Gorringe.16 The decisive consideration, however, was that the immunity did not work effectively. It led to results that were ‘dictated by the caprices of unprincipled exceptions and qualifications’.17 The majority held it was necessary to abolish the immunity and deal with the liability of highway authorities under the general law of negligence, in order to ‘[place] the common law of Australia on a principled basis’.18 In Imbree v  McNeilly (‘Imbree’)19 the High  Court reconsidered its earlier decision in Cook v  Cook,20 which held that the standard of care owed by a learner driver to an instructor was lower than that of other drivers. In Imbree, Gummow, Hayne and Kiefel  JJ (Gleeson  CJ and Crennan  J agreeing) relied on the four criteria in John to overrule Cook v Cook and added a fifth consideration: whether the change ‘is necessary to maintain a better connection with more fundamental doctrines and principles’.21 Under Imbree, learner drivers would be held to the ordinary objective standard of reasonable care, the same standard as owed by other drivers. Kirby  J, agreeing with the majority, noted that the compulsory third-party motor vehicle insurance weakens the principle of ‘individual culpability’22 which provided the foundation for the more subjective standard of care of Cook v Cook. More pragmatically, Kirby J also noted that these schemes make the imposition of a higher objective standard on learner drivers workable. Without compulsory insurance, ‘it is extremely unlikely … that the courts would impose on them liability … sounding in millions of dollars. Such a course would be unrealistic and futile, characteristics the courts usually endeavour to avoid’.23

11 12 13 14 15 16 17 18 19 20 21 22 23

8.5

8.6

Ibid. (2001) 206 CLR 512 (‘Brodie’). (1936) 57 CLR 259. (1950) 80 CLR 357. Brodie (n 12) 562. Ibid 562–3. Ibid 544. Ibid 542. (2008) 236 CLR 510 (‘Imbree’). (1986) 162 CLR 376 (‘Cook v Cook’). Imbree (n 19) 533 [72] (Gummow, Hayne and Kiefel JJ). See also 7.61. Ibid 544 [112]. Ibid 543 [111].

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8.7

STATUTORY INTERPRETATION In John the High Court was invited to overrule Curran v Federal Commissioner of Taxation (‘Curran’),24 a case which involved the application of s 51(1) of the Income Tax Assessment Act 1936 (Cth). The first two of the four considerations from Commonwealth v Hospital Contribution Fund (see 8.3) supported this step. The majority in John noted that Curran ‘does not stand in a line of cases giving rise to recognized principle’25 and also that ‘there was a difference in the reasoning of Barwick CJ and Menzies J on the one hand, and Gibbs J on the other’.26 The majority considered the third consideration did not play a part in John but that the fourth consideration provided ‘powerful reasons for following Curran in the present case’.27 Schemes based on Curran had been widely relied on by taxpayers to reduce income tax. The majority in John noted that ‘there are special considerations applicable to the doctrine of stare decisis in cases of statutory construction’,28 stating: The fundamental responsibility of a court when it interprets a statute is to give effect to the legislative intention as it is expressed in the statute. If an appellate court, particularly an ultimate appellate court, is convinced that a previous interpretation is plainly erroneous then it cannot allow previous error to stand in the way of declaring the true intent of the statute … It is no part of a court’s function to perpetuate error and to insist on an interpretation which, it is convinced, does not give effect to the legislative intention.29

8.8

The majority added that ‘[t]he same considerations, in our view, apply with equal force if the issue is identified as one of the application of a statutory provision, rather than one of statutory construction in the strict sense’.30 The Court concluded that Curran should be overruled, ‘notwithstanding that the appellant taxpayer … relied upon its authority as the basis for ordering their affairs’.31 In McNamara v  Consumer, Trader and Tenancy Tribunal32 the High  Court had to consider whether to follow or depart from its reasoning in Wynyard Investments Pty Ltd v  Commissioner for Railways (NSW) (‘Wynyard Investments’).33 Should the current respondent enjoy Crown immunity like the respondent in the earlier case had? The majority (McHugh, Gummow and Heydon JJ; Gleeson CJ and Hayne J agreeing) held:

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It should be noted that what was at stake in John … was the application of s 51, the same section of the Income Tax Assessment Act 1936 (Cth), to facts ‘relevantly indistinguishable’ from those of Curran … The relationship between this case and Wynyard Investments is not of that character.What was said in John respecting the criteria for the overruling of previous decisions is not immediately applicable. However, that does not mean that the court is now at liberty to ignore the reasoning of the majority in Wynyard Investments and, as Gibbs J once put it [in Queensland v Commonwealth

24 25 26 27 28 29 30 31 32 33

238

(1974) 131 CLR 409. John (n 6) 439. Ibid. Ibid. Ibid. Ibid 439–40, quoting from Babaniaris v Lutony Fashions Pty Ltd (1987) 163 CLR 1, 13 (‘Babaniaris’). John (n 6) 440. Ibid. (2005) 221 CLR 646 (‘McNamara’). (1955) 93 CLR 376.

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CHAPTER 8 PRECEDENT IN AUSTRALIAN COURTS

(‘Second Territory Senators Case’)34], ‘to arrive at [its] own judgment as though the pages of the law reports were blank’. Nevertheless, it remains the fundamental (and constitutional) responsibility of the court not to allow the perpetuation of previous error in statutory construction.35

Ultimately, the majority did not follow the reasoning in Wynyard Investments. Callinan J dissented, largely on the basis that Wynyard Investments had stood for 50 years and assumptions about Crown immunity under 80 other pieces of New South Wales legislation could be upset were Wynyard Investments now departed from.36 As observed at  a number of points in this text, legislation has proliferated over the last century to the point that few legal issues remain untouched. Justice Kirby has observed extra-judicially that such coverage reduces the importance of precedent in judicial reasoning:

8.9

The new emphasis by the High Court of Australia upon the importance of purpose and context in ascertaining legislative meaning means that the construction of a particular word or phrase, used in a new context, will need to be reconsidered when presented in a later case. It follows that the law of precedent, as it applies to legislative texts, is bound to have less significance than in the statement of the broad principles of the common law. Thus, the growth of the amount and importance of legislation and subordinate legislation as sources of law results in a correlative reduction in the significance of the doctrine of precedent for the ascertainment of the law. In giving meaning to a legislative text the necessary starting point, in every case, is the text itself — not what judges may have said on other texts or on the principles of the common law that preceded the adoption of the text.37

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CONSTITUTIONAL CASES The Australian Constitution originated as a piece of Imperial legislation. However, as the foundational document for the nation it is a very special piece of legislation. In New South Wales v Commonwealth (‘Work Choices Case’) Callinan J observed:

8.10

Judges of this Court have repeatedly stated that constitutional doctrine stands on a different basis to other holdings, so far as the requirements of the law of precedent are concerned. In part, this is because the Constitution is itself the source of legal authority and thus is placed apart.38

The High Court has acknowledged that, in relation to overruling its own decisions, ‘considerations are present in constitutional cases, where Parliament is not in a position to change the law, which do not arise in other cases’.39 ‘The approach to reconsideration of constitutional cases must take into account that the only other way in which the effect of a particular interpretation of the Constitution can be altered, if at  all, is by

34 35 36 37

38 39

8.11

Second Territory Senators Case (n 2). McNamara (n 32) 661 [41]–[42], quoting from Gibbs CJ in Second Territory Senators Case (n 2) 599. McNamara (n 32) 677 [94] (Callinan J). Michael Kirby, ‘Precedent Law, Practice and Trends in Australia’ (2007) 28 Australian Bar Review 243 (citations omitted). (2006) 229 CLR 1, 311 [756] (‘Work Choices Case’). Perpetual Executors and Trustees Association of Australia Ltd v Federal Commissioner of Taxation (1949) 77 CLR 493, 496.

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constitutional amendment pursuant to s 128 of the Constitution.’40 However, different views have been taken as to the implications of this consideration. In Re Wakim; Ex parte McNally (‘Wakim’),41 McHugh J said: the judiciary has no power to amend or modernise the Constitution to give effect to what the judges think is in the public interest. The function of the judiciary, including the function of this Court, is to give effect to the intention of the makers of the Constitution as evinced by the terms in which they expressed that intention. That necessarily means that decisions, taken almost a century ago by people long dead, bind the people of Australia today even in cases where most people agree that those decisions are out of touch with the present needs of Australian society.42

By contrast Kirby J said in Re Governor, Goulburn Correctional Centre; Ex parte Eastman: Each generation of Australians reads the Constitution in the light of the meaning of its words and the requirements of its structure as understood from time to time. This is inherent in the giving of meaning to a constitution as an instrument of government. It is why a search for the subjective intentions of the framers may not fetter the present and the future to the distant past.43

8.12

To a degree, the distinction between the positions of McHugh J and Kirby J is that between ‘originalist’ and ‘living tree’ approaches to constitutional interpretation.44 The originalist position may be more difficult to sustain. In the Work Choices Case, Callinan J referred to the ‘recognition (affirmed by history) that different generations read the Constitution in different ways according to the perceptions of different times observations’.45 ‘If the Constitution requires a result in a relevant contested matter, no rule of practice of the Court can impede that outcome.’46 In Alqudsi v The Queen French CJ indicated that it is not always necessary to make a finding that a prior decision was ‘erroneous’ in order to justify overruling it. … The taxonomy of ‘correctness’ and ‘error’ is not always required to justify an overruling. An overruling may reflect an evolved understanding of the Constitution. Overarching all these considerations is a conservative cautionary principle against overruling earlier decisions without very good cause.47

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In discussing the practice of the High  Court in overruling its past constitutional decisions, Sir Leslie Zines noted in 2008: While many judges have had much to say on the subject, no generally agreed principles, approach or even factors for consideration have emerged. Whether judges are otherwise seen as conservative, liberal or radical, the general impression is that they do not allow past cases to stand in the way of what they consider to be the correct or desirable decision. That is not, of course, to deny that, generally speaking, counsel argue and judges decide in 40 41 42 43 44

45 46

47

240

Alqudsi v The Queen (2016) 258 CLR 203 [66] (French CJ) (‘Alqudsi’). (1999) 198 CLR 511 (‘Wakim’). Ibid 549. (1999) 200 CLR 322, 355, citing Victoria v The Commonwealth (1971) 122 CLR 353, 396 (Windeyer J). See, eg, Michael Kirby, ‘Constitutional Interpretation and Original Intent: A Form of Ancestor Worship?’ (2000) 24 Melbourne University Law Review  1; J  D  Heydon, ‘Theories of Constitutional Interpretation: A Taxonomy’ [2007] (Winter) NSW Bar News 12. Work Choices Case (n 38) 311 [756] (Callinan J). Permanent Trustee Australia Ltd v  Commissioner of State Revenue (Vic) (2004) 220 CLR 388, 452 [179] (Kirby J), quoted in Work Choices Case (n 38) 311 [756] (Callinan J). Alqudsi (n 40) [67].

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CHAPTER 8 PRECEDENT IN AUSTRALIAN COURTS

accordance with existing principles and doctrine without referring to the fact that they are doing so. When, however, a constitutional case or principle is challenged there seems to be no agreed framework or theory, even of a general kind, for determining when it is unacceptable to ignore or overrule a precedent.48

The potential force of the principle of stare decisis in constitutional cases is illustrated by the High  Court’s consideration of whether the territories may be represented by senators. In Western Australia v  Commonwealth49 the High  Court, by a majority of 4:3 (McTiernan, Mason, Jacobs and Murphy  JJ; Barwick  CJ, Gibbs and Stephen  JJ dissenting) held that the legislation providing for representation of the Australian Capital Territory and the Northern Territory in the Senate was constitutionally valid. Shortly afterwards, when McTiernan  J had retired and been replaced by Aickin  J, a further comprehensive challenge to the territories’ representation legislation was made in the Second Territory Senators Case.50 Once again, this time by a majority of 5:2 (Gibbs, Stephen, Mason, Jacobs and Murphy JJ; Barwick CJ and Aickin J dissenting), the validity of the legislation was upheld. Mason, Jacobs and Murphy JJ, in separate judgments, adhered to the conclusion which they had reached in the earlier case. Gibbs and Stephen JJ in separate judgments maintained their view from the earlier case and considered the legislation invalid, but upheld it as a matter of stare decisis. Barwick CJ and Aickin J separately considered the earlier case wrong and would have overruled it. A reason for refusing to overrule Western Australia v Commonwealth was that it had been acted on, and senators for the territories had been elected under the territories’ representation legislation. Gibbs J commented:

8.13

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To reverse the decision now would be to defeat the expectations of the people of the Territories that they would be represented, as many of them believed that they ought to be represented, by senators entitled to vote.51

In Wurridjal v  Commonwealth (‘Wurridjal’),52 the High  Court was asked to reconsider one of its earlier decisions, Teori Tau v Commonwealth (‘Teori Tau’),53 in which it had unanimously held that s  51(xxxi) of the Constitution, which requires that the Commonwealth acquire property only on just terms, did not govern the operation of s 122 of the Constitution, which allows the Commonwealth to make laws with respect to the Australian territories. French CJ indicated that a ‘cautionary principle’ should be followed in overruling past decisions:

8.14

It is apparent from the authorities the question whether the Court will overrule one of its earlier decisions is not to be answered by the application of a well defined rule. Nor is it simply to be answered by the application of such visceral criteria as ‘manifestly’ or ‘clearly’ wrong. Rather it requires an evaluation of factors which may weigh for and against overruling. That evaluation will be informed by a strongly conservative cautionary principle, adopted in the interests of continuity and consistency in the law, that such a course should not be lightly taken.54 48 49 50 51 52 53 54

Leslie Zines, The High Court and the Constitution (Federation Press, 5th ed, 2008) xv. (1975) 134 CLR 201. Second Territory Senators Case (n 2). Ibid 600 (Gibbs J). (2009) 237 CLR 309 (‘Wurridjal’). (1969) 119 CLR 564. Wurridjal (n 52) 352 [70] (French CJ).

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In developing this principle, French CJ considered the four factors identified in John: see  8.3. He also had reference to a similar list advanced by Aickin  J in the Second Territory Senators Case: 1. Whether the error of the prior decision had been made manifest by later cases which had not directly overruled it. 2. Whether the prior decision went with a ‘definite stream of authority’ and did not ‘conflict with well established principle’. 3. Whether the prior decision could be confined as an authority to the precise question which it decided or whether its consequences would extend beyond that question. 4. Whether the prior decision was isolated as receiving no support from other decisions and forming no part of a stream of authority. 5. Whether the prior decision concerned a fundamental provision of the Constitution, or involved a question of such ‘vital constitutional importance’ that its consequences were likely to be far reaching although not immediately foreseeable in detail.55

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8.15

A majority in Wurridjal held that Teori Tau should be overruled.56 French CJ joined the majority despite the ‘cautionary principle’. He indicated it was at odds with other High Court authority and in isolation from prior and subsequent jurisprudence. The proposition for which Teori Tau was authority had not entered the mainstream of constitutional jurisprudence, nor was there any evidence that the case had been acted upon in a way that militated against its reconsideration. Finally, French  CJ noted the potential absurdities and inconveniences that could result from the decision.57 Gummow and Hayne JJ (Kirby J concurring) observed: ‘To preserve the authority of Teori Tau would be to maintain what was an error in basic constitutional principle and to preserve what subsequent events have rendered an anomaly. It should be overruled.’58 In Shaw v  Minister for Immigration and Multicultural Affairs (‘Shaw’)59 there was broad agreement that the principle of stare decisis had force in constitutional cases, but disagreement as to its implications. In that case, the High Court was faced with inconsistent High Court precedents. Shaw, the applicant, was appealing against the Commonwealth’s efforts to deport him as an alien. He argued that, as a British subject arriving in Australia in 1974, he was not an alien, and therefore the Commonwealth’s actions were not within the constitutional ‘aliens power’.60 He relied on Re Patterson; Ex parte Taylor (‘Patterson’)61 in which the High Court had overturned the Commonwealth’s order to deport a British subject who had arrived in 1966. In Shaw the Minister argued that the approach in the earlier case of Nolan v  Minister for Immigration and Ethnic Affairs (‘Nolan’)62 should be followed in preference to that of Patterson. In Nolan the High Court suggested that persons who had been neither born in Australia nor naturalised were aliens if they arrived in Australia after the commencement of the Australian Citizenship Act  1948 (Cth) on

55 56

57 58 59 60 61 62

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Ibid [148] citing Second Territory Senators Case (n 2) 630. French CJ, Gummow, Hayne and Kirby JJ — Heydon, Crennan and Kiefel JJ found it unnecessary to consider the issue. Wurridjal (n 52) 358–9 [84]–[85]. Ibid 388 [189] (Gummow and Hayne JJ). (2003) 218 CLR 28 (‘Shaw’). Australian Constitution s 51(xix). (2001) 207 CLR 391. (1988) 165 CLR 178.

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26 January 1949. The Court accordingly upheld the deportation of a British subject who had arrived in 1967. In Shaw the majority (Gleeson CJ, Gummow and Hayne JJ; Heydon J agreeing) considered that while Patterson was more recent than Nolan, Patterson’s authority was weakened by the lack of any ‘single strand of reasoning in the majority judgments’:63 Any consideration of the significance to be attached to Patterson must involve the determination whether Patterson was effective to take the first step of overruling the earlier decision in Nolan … In our view, the court should be taken as having departed from a previous decision, particularly one involving the interpretation of the Constitution, only where that which purportedly has been overthrown has been replaced by some fresh doctrine, the elements of which may readily be discerned by the other courts in the Australian hierarchy. On that approach … the decision in Patterson plainly fails to pass muster.64

The dissentients accorded Patterson greater precedential value.65 Ha v New South Wales (‘Ha’)66 illustrates the sometimes far-reaching consequences of the High Court departing from the principle of stare decisis in a constitutional case. In Ha a majority of the High Court overruled Philip Morris Ltd v Commissioner of Business Franchises67 and held that a state-imposed tax on tobacco was an excise in contravention of s 90 of the Constitution. Only the Commonwealth can impose this kind of tax. The decision had direct implications for very lucrative state taxes on alcohol and possibly other areas as well, as noted in Blackshield & Williams Australian Constitutional Law and Theory:

8.16

The immediate result [of Ha] for the States was catastrophic. Not only was the collection of franchise fees brought to an end, but billions of dollars in franchise revenue that had been collected unlawfully was liable to be repaid. The loss in State revenue was estimated to be around $5 billion a year.68

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In the event, the catastrophe was, in large part, averted by the Commonwealth intervening with an ‘urgent rescue package’.69 Essentially, the Commonwealth imposed taxes corresponding to the disallowed state taxes, and passed on the proceeds to the states. In time, this arrangement was folded into the new Commonwealth goods and services tax (GST), the proceeds of which also passed to the states.

63 64 65 66 67 68

69

Shaw (n 59) 44 [35]. Ibid 44 [36]. Ibid 47–8 (McHugh J), 55–6 (Kirby J), 81–2 (Callinan J). (1997) 189 CLR 465. (1989) 167 CLR 399. George Williams, Sean Brennan and Andrew Lynch, Blackshield & Williams Australian Constitutional Law and Theory (Federation Press, 6th ed, 2014) 1049–50. Ibid.

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243

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LAYING DOWN THE LAW

Other Australian courts 8.17

8.18

244

As discussed in Chapter  7, the doctrine of precedent is closely related to the court hierarchy.The existence of nine interrelated court hierarchies — one federal, six state and two territory — within Australia’s federal system gives rise to a number of complexities. These are discussed below at 8.31ff. We begin by discussing the issues that arise within a single court hierarchy. THE APPELLATE HIERARCHY It is because an appeal court has the power to overturn decisions of the lower court that the lower court should apply the principles laid down by the appeal court. In order to determine whether the present court is bound by a previous decision, it must be asked whether the earlier court has appellate jurisdiction over the present court. This

Creyke, Robin, et al. Laying down the Law, LexisNexis Butterworths, 2020. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6413182. Created from monash on 2021-02-06 11:29:57.

requires knowledge of the hierarchical relationship between the earlier and later courts. For example, New South Wales has its hierarchy of courts, running from the Local Court up to the Court of Appeal and the Court of Criminal Appeal; South  Australia has its own corresponding hierarchy running from the Magistrates Court up to the Full Court of the Supreme Court; and the other jurisdictions have similar court hierarchies. A fairly detailed discussion of court hierarchies is provided in Essential Legal Toolkit A. The hierarchical relationship between courts is not always as straightforward as it may appear, and it may be necessary to consult relevant legislation. For example, it is clear that the rationes of appeal decisions of the High Court are binding on all other courts.70 However, a decision of a single justice of the High Court is not binding because a single justice of the High Court does not have appellate jurisdiction.71 Similarly, the District Court of New South Wales in its civil jurisdiction is not strictly bound by decisions of single judges of the Supreme Court because there is no avenue of appeal from the former to the latter.72 This leaves the question whether courts should be bound by their own prior decisions. The appellate hierarchy rationale of the doctrine of precedent suggests that the answer is no. However, it is not uniformly accepted that courts are free to depart from their own decisions.73 A more conservative approach would be to prioritise certainty and predictability in the law, and to leave any changes in the law to courts higher in the hierarchy — if any, and if they have this power — or to the legislature. At times, courts have adopted such conservatism. However, the current trend favours greater flexibility. The High Court in Nguyen v Nguyen (‘Nguyen’)74 was considering an appeal from the Full Court of the Supreme Court of Queensland which had followed a precedent, its own earlier decision, despite being ‘unanimously of the view that [it] was wrongly decided … following what was said to be the prevailing practice in Queensland whereby the Full Court regards itself as bound by its own previous decisions’.75 The High Court suggested that whether an intermediate appellate court is free to depart from its own previous decisions ‘must be a matter of practice for the court to determine for itself ’.76 However, the High Court made some fairly strong statements about the approach courts should take.77 The High Court discouraged courts from being too conservative, particularly the intermediate appeal courts. Since special leave is required to appeal to the High Court, the intermediate appeal courts serve as ‘courts of last resort for all practical purposes’.78

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The same respect may be due to decisions on special leave applications for which the High Court has provided substantive reasons, although this has not been definitively established: Palmer v Parbery (in his capacity as liquidator of Queensland Nickel Pty Ltd (in liq)) (2016) 153 ALD 475. AZAFX v Federal Circuit Court of Australia (2016) 244 FCR 401 [55]–[56]; Judiciary Act 1903 (Cth) ss 16, 20, 21. Keramaniakis v Wagstaff [2005] NSWDC 14 [58]. Eg, prior to 1966 the House of Lords considered itself bound strictly by its own precedents: London Tramways Co v London County Council [1898] AC 375.The change was brought about by the House of Lords, Practice Statement (Judicial Precedent) [1966] 1 WLR 1234. (1990) 169 CLR 245 (‘Nguyen’). Ibid 268. Ibid. Ibid (Dawson, Toohey and McHugh JJ, Brennan J and Deane J agreeing in separate judgments). Ibid 269.

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previous decisions. In cases where an appeal is not available or is not taken to [the High] Court, rigid adherence to precedent is likely on occasion to perpetuate error without, as experience has shown, significantly increasing the corresponding advantage of certainty.79

At the same time, the High Court discouraged courts from being too liberal in their treatment of precedents. Where a court of appeal holds itself free to depart from an earlier decision it should do so cautiously and only when compelled to the conclusion that the earlier decision is wrong. The occasions upon which the departure from previous authority is warranted are infrequent and exceptional and pose no real threat to the doctrine of precedent and the predictability of the law.80

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This now appears to be the prevailing approach across Australian intermediate appellate courts. In Transurban City Link Ltd v Allan,81 the Full Federal Court, referring to Nguyen, indicated it had the power to depart from its own authorities, but added that ‘[i]t would be wrong to do this merely because the matter was one on which minds might differ’.82 Having regard to ‘the principled, consistent and predictable development of the law’83 courts will tend to follow their own precedents unless they are viewed as ‘clearly or plainly wrong’.84 In the course of its reasons in Nguyen, the High Court pointed to the practice in the Victorian Court of Appeal of convening a bench of five judges to review a decision of three judges.85 A panel (full bench) of five judges is usually convened when the issue is not only important but is also the subject of conflicting Full Court decisions.86 Other state appellate courts follow this practice,87 as does the Federal Court.88 In R v Morrison,89 the Queensland Court of Appeal sat as a bench of five judges to consider whether it should depart from its previous approach regarding the standard of proof to be applied by a court to factual issues at  the sentencing stage following a criminal conviction. Citing Nguyen, Fitzgerald  P indicated that ‘[t]he court is free to overrule … the earlier decisions of the Court of Criminal Appeal if to do otherwise would perpetuate error’.90 A majority of 3:2 held that the ‘the ordinary criminal standard, namely, beyond reasonable doubt’91 should be applied. This overruled the court’s earlier approach — which applied a weaker standard to certain matters on sentencing — and brought the state into line with the sentencing practice of other states. 79

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Ibid 269–70. Ibid 268. (1999) 95 FCR 553 (‘Transurban’). Ibid 560. Department of Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469, 475. Ibid. Nguyen (n 74) 269. See, eg, Australian Steel Company (Operations) Pty Ltd v  Lewis (2000) 109 FCR 33, where conflicting Full Court decisions existed which affected the day-to-day operation of the bankruptcy law. Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86; Harrison v Melhem (2008) 72 NSWLR 380; R v Ellis (2003) 58 NSWLR 700; Calder v Boyne Smelters Ltd [1991] 1 Qd R 325; Re Pooraka Holdings Pty Ltd (1989) 52 SASR 1; Gardenal-Williams v The Queen [1989] Tas R 62; Pitcher v H B Brady & Co Ltd [2005] WASCA 159. Australian Steel Company (Operations) Pty Ltd v Lewis (2000) 109 FCR 33. [1999] 1 Qd R 397. Ibid 399. Ibid (Fitzgerald P). 5 PB 6 PB 0 LL ,

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Whether the doctrine of precedent as applied to full courts or courts of appeal differs when five judges are convened, as Weinberg  JA has observed, ‘has not … been finally determined’.92 However,Weinberg JA also said that ‘[i]t has generally been assumed that a court of five has greater freedom to depart from earlier appellate decisions than a court of three’.93 In R v BDX94 Vincent and Weinberg JJA suggested, that if there was a difference in approach, it was ‘marginal’,95 while Nettle and Redlich JJA did not ‘necessarily agree’96 with that assessment, and Ashley JA said that ‘there should be a different and lesser level of inhibition against departing from an earlier decision’ when a full bench of five judges was convened.97 The apparent purpose of the larger bench is to bring deeper consideration where a court is considering difficult matters of principle involving conflicting authorities or the possibility of departing from previous principle. If there is agreement between all five judges that there is wisdom in developing the law in a particular direction, this may give them greater confidence that the move is correct, notwithstanding the benefits of stare decisis. However, if the court is split 3:2 regarding the development, this may give the majority pause for thought.

CONFLICTING PRECEDENTS Occasionally courts are presented with conflicting precedents. Some conflicts will be easy 8.24 to resolve. For example, it may be that the earlier precedent has been clearly overruled by the later precedent from a court at the same or a higher level. Or it may appear that the earlier precedent should be followed because the later precedent was from a lower court which erroneously failed to follow the earlier precedent from a higher court. Where the conflicting precedents are not binding because, for example, they are from courts at the same level as the present court, then the present court arguably ‘has the option of choosing which of the conflicting judgments [it] prefers’.98 However, more difficult situations may arise. In WorkCover Corporation v Jakas, Lander J, with whom Duggan J agreed, observed:

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Sometimes inferior courts are confronted with a decision of a superior court (the first court of appeal) and a later decision of a second court of appeal that is superior to the first court of appeal in the hierarchical system. If the decision of the second court of appeal overrules the earlier decision of the first court of appeal then the inferior court must follow the second court of appeal decision and it can do so without waiting upon any further decision of the first court of appeal. In some other cases a consideration of the decision of the second court of appeal will show that the decision of the first court of appeal has been overruled without express mention being made. However, an inferior court or tribunal should be very cautious before deciding that a decision of a court of appeal has been overruled by a second court of appeal where the second court of appeal decision depends upon the construction of legislation materially different from the legislation the subject of decision of the first court of appeal … If there is any doubt then the matter must be left to one or other of the courts of appeal.99 92 93 94 95 96 97 98 99

R v Roussety (2008) 24 VR 253 [75]. Ibid. (2009) 24 VR 288. Ibid [152] (Vincent and Weinberg JJA). Ibid [202] (Nettle and Redlich JJA). Ibid [210] (Ashley JA). NAAT v Minister for Immigration, Multicultural and Indigenous Affairs (2002) 170 FLR 477, 484. (2003) 86 SASR 20, 30–2.

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In Einfeld v  HIH Casualty and General Insurance Ltd (‘Einfeld’)100 Rolfe  J of the New  South  Wales Supreme Court was considering a dispute under the Insurance Contracts Act 1984 (Cth). He was faced with the New South Wales Court of Appeal’s decision in FAI General Insurance Company Limited v  Perry (‘Perry’),101 ‘which is indistinguishable on the facts’,102 together with the High  Court’s decision in Antico v  Heath Fielding Australia Pty Limited (‘Antico’),103 which disapproved the reasoning in Perry, preferring instead an earlier decision of the Court of Appeal, East End Real Estate Pty Limited v CE Heath Casualty & General Insurance Limited.104 Complicating matters, in a subsequent decision, Greentree v  FAI General Insurance Co Limited (‘Greentree’),105 the Court of Appeal indicated that while some of the reasoning in Perry had been overruled in Antico, the decision had not been.106 However, other intermediate appeal courts in FAI General Insurance Company Ltd v Australian Hospital Care Pty Ltd (‘Australian Hospital Care’)107 and HIH Casualty and General Insurance Australia Limited v Dellavedova (‘Dellavedova’)108 declined to follow Perry. Rolfe  J acknowledged that ‘judges at  first instance [are] not free to draw subtle distinctions in decisions of, or assume that certain matters had been overlooked by, the Court of Appeal, or otherwise seek to distinguish its decisions on narrow grounds or fine points’.109 However, having given the matter very close consideration, he took the view that the Court of Appeal’s suggestion in Greentree that Antico had not overruled Perry was obiter. He concluded: ‘I consider that my duty is to conclude that Perry has been overruled and to follow the decisions in Dellovedova and Australian Hospital Care.’110 Another situation where a trial court may avoid following a decision of an appeal court in the same hierarchy was discussed by Campbell J, also of the New South Wales Supreme Court, in Mid-City Skin Cancer and Laser Centre Pty Ltd v Zahedi-Anarak.111 While acknowledging ‘the obligation of a judge of first instance loyally to follow decisions of any court which is above the first instance judge in the appellate hierarchy, even if the judge of first instance thinks that decision is wrong’,112 Campbell J declined to follow a decision of the Court of Appeal in Moorgate Tobacco Co Ltd v Philip Morris Ltd.113 His reasoning was as follows:

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(1999) 152 FLR 211 (‘Einfeld’). (1993) 30 NSWLR 89. Einfeld (n 100) 217 [22]. (1997) 188 CLR 652, 666, 668–9. (1991) 25 NSWLR 400. (1998) 44 NSWLR 706. Ibid 721. (1999) 153 FLR 448. (1999) 10 ANZ Insurance Cases ¶61-431. Einfeld (n 100) 218 [24]. Ibid 226 [45]. (2006) 67 NSWLR 569 (‘Mid-City Skin Cancer’). Ibid 629 (Campbell J). (1982) 64 FLR 387. 5 PB 6 PB 0 LL ,

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two grounds relied on by the Court of Appeal are not binding on judges below the Court of Appeal in the appellate hierarchy. 114

Campbell J acknowledged that when the High  Court affirms a decision from an inferior court on different grounds, the Court may simply have found another reason to do so rather than disagreeing with the lower court’s reasons: Even so, the fact that the High  Court has chosen a different route to the solution of the case leaves the reasons of the court below in a kind of limbo, where they have been considered by the High Court (as must necessarily happen in the course of the judges of the High Court reading the judgment of the court below, even if the reasons for judgment of the court below are not themselves explicitly considered in the reasons for judgment delivered by members of the High  Court), and not adopted. Even if the reasons of the court below have been left in that kind of limbo, rather than positively disapproved by the High Court, one can still say that the decision of the court below has been affirmed, but not its judgment.115

Approving this analysis in Wardle v Agricultural and Rural Finance Pty Ltd, the Court of Appeal observed that ‘[i]t is the reasons of the High Court, not the reasons of the judges in the NSW Full Court, which are the binding precedent’.116 STATUTORY INTERPRETATION In Telstra Corporation Ltd v Treloar117 (‘Treloar’) a majority of the Full Court of the Federal 8.27 Court suggested that intermediate appellate courts should exercise greater caution in overturning their own precedents on points of statutory interpretation.

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[S]tatutory language is often ambiguous. Courts can struggle to determine the legislative intent. It is often impossible to discover any legislative intent. In many instances the generality of the statutory language is deliberate and allows the courts to develop a body of law to fill the gaps. This may lead to disagreement among judges about what the statute means. It would be sound policy that once that intent has been discerned by an appellate court then that should be the end of the matter. The view which we prefer is that unless an error in construction is patent, or has produced unintended and perhaps irrational consequences not foreseen by the court that created the precedent, the first decision should stand. In other areas of the law a precedent may be reconsidered if its underlying reasoning is outdated or is inconsistent with other legal developments. Perhaps, with some modification, in some instances these factors could also be applied to cases concerned with the construction of statutes. Accordingly, we venture to suggest it would be on a rare occasion that an intermediate appellate court … will allow an issue concerning the construction of a statute, past and closed and especially a repealed statute, to be thrown open, producing as it clearly will, uncertainty, disruption to the conduct of affairs, a sense of grievance in those who may consequently receive treatment less favourable than that received by others under the same statute and additional cost and expense.118

114 115 116 117 118

Mid-City Skin Cancer (n 111) 616. Ibid 630. [2012] NSWCA 107 [209]. Treloar (n 3). Ibid [27]–[28].

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The majority held that ‘it is arguable’ that the earlier decision misinterpreted the statute, and ‘in the absence of authority’ they ‘may well have’ adopted a different interpretation.119 However, the majority also held: Where the competing views have been exposed and analysed in such a case, and a particular construction is reached and, as in this case, is confirmed by a later decision, there will rarely be occasion to inquire into the matter again. In this case, no clear or patent error has been demonstrated. The decisions were not per incuriam. It has not been demonstrated that the construction preferred by the earlier courts has produced unintended consequences such as to throw real doubt on the decision. No court in another jurisdiction has arrived at an opposite result on similar legislation.To the extent that it is suggested that the construction preferred by the earlier courts does not reflect the intention of the legislature, it may be noted that Parliament could have, but has not, moved to amend the legislation. In other words, no basis has been demonstrated for the reconsideration of the earlier decisions.120

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As Gyles J noted, dissenting, this approach is inconsistent with the position taken by the High Court,121 which applies the doctrine of precedent less strictly where legislation is concerned. Given the importance of implementing Parliament’s purpose in passing legislation, the High Court has indicated precedent carries less weight: see 8.9. Notwithstanding the view expressed in Treloar, a majority of the Full Court of the Federal Court in Sok v Minister for Immigration and Multicultural and Indigenous Affairs122 (‘Sok’) overturned its previous interpretation of the term ‘domestic violence’ in reg 1.23(2) (b) of the Migration Regulations 1994 (Cth).The appellant had applied for a special visa on the grounds that he had suffered domestic violence at the hands of his wife.The issue was whether this term required (actual or threatened) physical violence, or whether the term also encompassed psychological and emotional harm. The Full Court had previously adopted the narrower interpretation in obiter dicta in Cakmak v Minister for Immigration and Multicultural and Indigenous Affairs123 (‘Cakmak’). In Sok the majority acknowledged that it should only depart from Cakmak if ‘ “compelled to the conclusion that the earlier decision is wrong”, “convinced that that is wrong”, and only after exercising “great care” and if persuaded that the earlier decision was “clearly erroneous” ’.124 The majority in Sok held that Cakmak was clearly wrong and adopted the broader interpretation of domestic violence. Hely J, dissenting, held:

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I am not satisfied that the meaning which the Full Court ascribed to ‘violence’ in the relevant regulation is so clearly wrong that I should not follow it. The language of the regulation is ambiguous, and whilst the construction advanced by the Full Court is not the only available construction, it is at least an available construction which derives some support from some indicators in the Regulations. In these circumstances the controversy as to the denotation of the term ‘violence’ should be regarded as settled by the decision in Cakmak.125 119

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Ibid [29]. Ibid. Ibid [34]. (2005) 144 FCR 170 (‘Sok’). (2003) 135 FCR 183. Sok (n  122) 177 [29] (Branson and Marshall  JJ), quoting from NATB v  Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 506, 519 [61], with internal quotes from Nguyen (n 74) 269; Chamberlain v The Queen (1983) 72 FLR 1, 8–9; and Transurban (n 81) 560. Sok (n 122) 193 [88] (Hely J). 5 PB 6 PB 0 LL ,

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DISCRETIONARY PRINCIPLES It has been suggested that the doctrine of precedent may apply more weakly to the 8.29 Family Court. On this view, because of the nature of its decisions, Family Court decisions are more discretionary than those of other courts. For example, in making a parenting order as to which parent a child should live with, s 60CA of the Family Law Act 1975 (Cth) provides that ‘a court must regard the best interests of the child as the paramount consideration’. Clearly, this assessment will depend on the weighing up of many factors that may vary widely between different cases. In Moore v Moore Carmody J suggested: There is a risk of serious injustice in preferring precedent to principle in family law cases … Judges must not be prevented from doing justice because of too strict an adherence to precedent or a legislative ‘straight jacket’ which leaves them with no fairer alternative. Principles have a ‘dimension of weight’. They may operate in one theatre but not in another albeit strikingly similar one. Their ‘weight’ or significance is variable depending upon the prevailing circumstances or the overriding influence of a higher principle or practice. This allows judges, subject to the doctrine of precedent and stare decisis (to the limited extent they apply) the ‘discretionary space’ to give ‘practical expression to the words and purpose of the legislation after taking account of relevant policy considerations … making necessary value judgments’.126

However, properly understood, not to follow a precedent on the basis that it involves a different set of facts is simply to distinguish the precedent: see 7.27ff. This does not require any diminution in the force of the doctrine of precedent. It may be, however, that the Family Court distinguishes precedents more often than other courts. There is authority that the doctrine of precedent applies to the Full Court of the Family Court in the same way it applies to other intermediate appeal courts. In Marriage of Maisey Evatt CJ and Marshall SJ held:

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As a general rule, a considered decision of an intermediate appellate court will be followed, unless there is a cogent reason not to do so. It has been held that the Full Court of the Family Court of Australia should regard itself as bound to follow its own decisions, unless such decisions can be shown to be clearly wrong, or in conflict with a binding authority of a superior court.There are good reasons for such a rule. It provides for certainty and stability in the law, though not at the price of blinkered obedience to demonstrated error. … There is at least some opportunity for decisions of the Full Court to be reviewed and, where necessary, corrected.Therefore it is only in limited circumstances that this court will entertain submissions to the effect that it should overrule one of its own decisions.127

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Court hierarchies in the federal system As stated at 8.18, the logic behind the doctrine of precedent is that a lower court should 8.31 apply the principles previously laid down by an appeal court because the appeal court has the power to overturn the lower court’s decisions. However, applying this logic can be difficult because the court hierarchies of Australia’s federal system have complex interrelations. Australia has nine different court hierarchies. The federal hierarchy 126 127

[2008] FamCA 32 [69]–[70]. (1980) 6 Fam LR 180, 183.

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is comprised of courts dealing mainly with matters arising under Commonwealth legislation.128 And each of the six states and two territories has its own court hierarchy, dealing with matters arising under each state or territory’s jurisdiction. To a large extent, the distribution of judicial jurisdiction within the federal system corresponds with the distribution of legislative power discussed at 3.17ff.

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CROSS-VESTING BETWEEN THE HIERARCHIES There is considerable potential for particular activities to raise issues under the law of more than one jurisdiction. Geographically, federal jurisdiction overlaps with that of the states and territories, and many activities cross state and territory borders. It was recognised as convenient, for the rational and efficient allocation of judicial business, for the courts of various Australian jurisdictions to be able to transfer cases between them. This was the rationale of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) and complementary legislation in each of the states and territories. This legislation provided that most matters which would previously have been within the sole jurisdiction of the federal courts, or of the courts of one of the states or territories, could be dealt with in the courts of any Australian jurisdiction. In 1999, however, in Re Wakim; Ex parte McNally (‘Wakim’),129 the High Court held that parts of the scheme were unconstitutional. The Court recognised that federal jurisdiction could still be conferred on state courts; indeed, s  77(iii) of the Constitution makes express provision for this. And the states were free to cross-vest jurisdiction between their own courts. However, the conferral of state jurisdiction on the federal courts under the cross-vesting arrangements was not permitted by the Constitution. Federal courts only possess a narrow authority to resolve those non-federal matters that form an inseparable part of or are sufficiently related to the federal dispute.130 These are known as the ‘accrued’ or ‘associated’ jurisdictions.131 Wakim had the effect of invalidating many decisions of the federal courts, made over more than a decade, and undermined the development of cooperative federalism in the important areas of corporations law and administrative law (among others). The decision in Wakim required several responses. Legislation was passed to retrospectively validate the earlier decisions it made unlawful. Federal jurisdiction has been conferred on state courts by Commonwealth legislation in various areas, including federal industrial relations, trade practices, bankruptcy, admiralty, family law and administrative law. With respect to corporations law, the states referred legislative power to the Commonwealth so that the national scheme could be maintained under its authority. The Jurisdiction of Courts Legislation Amendment Act 2000 (Cth) was passed to ensure that the Federal Court of Australia could continue to fulfil its role as the primary forum for review of the actions and decisions of Commonwealth officers and authorities. The effect of Wakim is that cross-vesting cannot operate as freely as was previously thought; however, these legislative efforts and the findings in Wakim appear to have been successful in averting the worst inconveniences of the decision. 129 130

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Australian Constitution s 77(iii); Judiciary Act 1903 (Cth) ss 17, 39, 39A, 39B. Wakim (n 41). Fencott v  Muller (1983) 152 CLR 570; Wakim (n  41) [71] (McHugh  J), [136], [145] (Gummow and Hayne JJ). See, eg, Robin Creyke, John McMillan, Mark Smyth and Matthew Groves, Control of Government Action: Text, Cases and Commentary (LexisNexis Butterworths, 5th ed, 2018) [2.2.16]–[2.2.23]. 5 PB 6 PB 0 LL ,

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8.34

Notwithstanding Wakim, the current arrangements mean that courts from different court hierarchies may all be applying the same Commonwealth law. The impact this has on the doctrine of precedent is considered below. An example is provided by Einfeld, in which Rolfe J of the New South Wales Supreme Court heard a dispute concerning the Insurance Contracts Act 1984 (Cth) and considered precedents from the High Court, the New South Wales Court of Appeal and other intermediate appeal courts: see 8.25.

AUSTRALIAN COMMON LAW Despite there being nine major judicial hierarchies within the federation, Australia has 8.35 only one common law: see 3.5. In Lipohar v The Queen (‘Lipohar’) Gleeson CJ said: This Court is placed by s 73 of the Constitution at the apex of a judicial hierarchy to give decisions upon the common law which are binding on all courts, federal, State and territorial. Different intermediate appellate courts within that hierarchy may give inconsistent rulings upon questions of common law. This disagreement will indicate that not all of these courts will have correctly applied or declared the common law. But it does not follow that there are as many bodies of common law as there are intermediate courts of appeal.The situation which arises is not materially different to that which arises where trial judges in different courts or within the same court reach different conclusions on the same point of law. The ultimate foundation of precedent which binds any court to statements of principle is, as Barwick CJ put it, ‘that a court or tribunal higher in the hierarchy of the same juristic system, and thus able to reverse the lower court’s judgment, has laid down that principle as part of the relevant law’. Until the High  Court rules on the matter, the  doctrines of precedent which bind the respective courts at various levels below it in the hierarchy will provide a rule for decision. But that does not dictate the conclusion that until there is a decision of the High Court the common law of Australia does not exist, any more than before 1873 it would have been true to say that there was not one English common law on a point because the Court of King’s Bench had differed from the Court of Common Pleas.132

STATE AND TERRITORY LAW; NATIONAL SCHEME LEGISLATION The type of law which may vary between the jurisdictions is state and territory 8.36 legislation. Consider, for example, criminal law, which is largely a matter of state and territory legislative responsibility. While the criminal law has its origins in the common law, each jurisdiction has extensive bodies of legislation that modify and extend this area of common law. Nevertheless, as in many areas of law, the various jurisdictions are not entirely divergent. In criminal law there are broad areas of overlap. As far as traditional common law offences are concerned, Australian criminal jurisdictions can be divided ‘roughly into thirds’: ‘common law jurisdictions’ (New South Wales, South Australia,Victoria); those with ‘traditional codes’ (Queensland, Tasmania and Western Australia), and those with ‘recently enacted codes’ (the

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The implication of Lipohar is that courts from different court hierarchies are all applying the same Australian common law. The impact this has on the doctrine of precedent is considered below: see 8.46ff.

132

(1999) 200 CLR 485, 505–6; see also Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, 151–2 [135] (‘Farah Constructions’).

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Commonwealth and the territories).133 Even in the common law jurisdictions, legislation impacts on the traditional common law offences in some respects, though not to the extent of the traditional code jurisdictions. In addition to variations on the traditional common law offences, each jurisdiction has numerous Acts which incidentally create new statutory offences. For example, the Companion Animals Act 1998 (NSW) is primarily concerned with setting up a pet registration scheme; however, it contains additional provisions, like s 14 which prohibits dogs in certain public places such as food preparation areas. The person responsible for breaching this provision may face a penalty of 10 penalty units, or 100 penalty units in the case of a ‘dangerous, menacing or restricted dog’. The corresponding Victorian Act, the Domestic Animals Act 1994 (Vic), does not have a comparable offence. Large parts of the criminal law, then, are the product of the distinctive criminal legislation of particular jurisdictions. The only precedents directly on point, for example, regarding the offence of bringing a menacing dog to a public place in New South Wales, would be past decisions of the courts of that jurisdiction, including, of course, any appeals that had reached the High  Court. In other parts of the criminal law, the law of one jurisdiction may be similar or identical to that of another jurisdiction. There is a great deal of overlap between common law offences in the common law jurisdictions; between the offence definitions in the traditional code states (which all trace their origin to the Griffith Code of the late 19th century);134 and between the criminal law principles in the Commonwealth and the territories (which are all closely based on the Model Criminal Code developed in the 1990s by a multijurisdictional committee).135 There are many areas of law where the different Australian jurisdictions have sought to bring their legislation into line, such as the Australian Consumer Law, the Uniform Defamation Laws and the Uniform Evidence Law (‘UEL’). In some cases, the aim for uniformity is not fully achieved. For example, the UEL has not been uniformly adopted throughout Australia — South  Australia, Western Australia and Queensland have each retained their own idiosyncratic mixes of statute and common law.136 Further, there is some variation between the legislation of the UEL jurisdictions.137 Even where the statutory provisions of different jurisdictions are identical, it is arguable that the situation is not like that of the common law or Commonwealth law, in that the law of the different jurisdiction comes from different sources. In Einfeld, Rolfe J of the New South Wales Supreme Court was considering the operation of the Insurance Contracts Act  1984 (Cth), and had regard to precedents of other jurisdictions that were interpreting the very same Act: see 8.25. Contrast this with the recent cases of

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Jeremy Gans, Modern Criminal Law of Australia (Cambridge University Press, 2nd ed, 2016) 8. See, eg, Thomas Crofts and Stella Tarrant, ‘Criminal Law Pedagogy and the Australian State Codes’ in Kris Gledhill and Ben Livings (eds), The Teaching of Criminal Law: The Pedagogical Imperatives (Routledge, 2017) 99. See, eg, Miriam Gani, ‘Codifying the Criminal Law: Implications for Interpretation’, in Suzanne Corcoran and Stephen Bottomley (eds), Interpreting Statutes (Federation Press, 2005) 197. Andrew Hemming, ‘Adoption of the Uniform Evidence Legislation: So Far and No Further?’ in Andrew Roberts and Jeremy Gans, Critical Perspectives on the Uniform Evidence Law (Federation Press, 2017) 34. Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 15th  ed, 2020) [EA.Intro.210] ‘Differences between the Acts’. 5 PB 6 PB 0 LL ,

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PRECEDENT ACROSS DIFFERENT AUSTRALIAN APPEAL HIERARCHIES According to the ordinary operation of the doctrine of precedent, whether a precedent is 8.39 strictly binding is determined by reference to the appeal hierarchy. Unless the precedent comes from a court that has the power, on appeal, to overturn the decision of the present court, the precedent will not be strictly binding. Difficulties are raised, however, within Australia’s federal system. Commonwealth law and Australian common law present the situation of courts from different hierarchies applying the same law. Uniform legislation may require courts of different hierarchies to apply laws that, while from different sources, are expressed in identical language. Importantly, however, there are rare situations where a precedent that appears to be 8.40 from another court hierarchy is strictly binding. This is because, although the hierarchies are ordinarily separate, there is a line of appeal from the present court to the court that decided the earlier case. Some Commonwealth legislation, including intellectual property legislation like the Copyright Act 1968 (Cth),143 provides for appeals from state

138 139 140

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Dupas v The Queen (‘Dupas’)138 in the Victorian Court of Appeal and R v XY (‘XY’)139 the New South Wales Court of Criminal Appeal. The former was concerned with the interpretation of s 137 of the Evidence Act 2008 (Vic) while the latter was concerned with the interpretation of s  137 of the Evidence Act  1995 (NSW). Both courts were sitting with a bench of five judges to deal with the divergence that had developed between the interpretations in the two jurisdictions, but both maintained their different positions. Arguably, this divergence matters less since the two Acts are from different jurisdictions. However, the provisions were both part of the UEL and were in identical terms.140 Further, the schism ultimately led to an appeal to the High Court in IMM v The Queen,141 in which a majority of the High Court favoured the New South Wales interpretation.142 This supports the view that divergence in the treatment of national scheme laws is no different from divergence in the treatment of Commonwealth legislation and common law, at least where the national scheme laws are identical across jurisdictions. The sections following explore further how the doctrine of precedent deals with situations where an Australian court is faced with precedents from other Australian court hierarchies which either deal with the same law — common law or Commonwealth legislation — or different legislation in identical or similar terms.

143

(2012) 40 VR 182 (‘Dupas’). (2013) 84 NSWLR 363 (‘XY’). The New South Wales Law Reform Commission (NSWLRC), the Victorian Law Reform Commission (VLRC) and the Australian Law Reform Commission (ALRC) engaged in a tripartite review culminating in a joint report in 2005: Uniform Evidence Law (ALRC Report No 102, NSWLRC Report No 112, VLRC Final Report, December 2005). (2016) 257 CLR 300. Ibid [50]–[52]. Unfortunately, the High  Court was split 4:3, and the joint majority judgment is itself difficult to interpret: see, eg, Andrew Roberts, ‘Probative Value, Reliability and Rationality’ in Roberts and Gans (eds) (n 136) 63; Gary Edmond, ‘Icarus and the Evidence Act: Section 137, Probative Value and Taking Forensic Science Evidence “at its Highest” ’ (2017) 41 Melbourne University Law Review 106; David Hamer, ‘The Unstable Province of Jury Fact-Finding: Evidence Exclusion, Probative Value and Judicial Restraint after IMM v the Queen’, (2017) 41 Melbourne University Law Review 689. See, eg, Copyright Act 1968 (Cth) ss 131A, 131B.

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and territory trial courts to the Full Court of the Federal Court. In Dutton v O’Shane,144 James J of the New South Wales Supreme Court considered himself ‘bound’145 to apply a ruling of the Full Court in interpreting the Extradition Act 1988 (Cth). At that time, appeals from decisions of single judges lay only to the Full Court of the Federal Court. Even where a precedent is not strictly binding, in the interests of equality, efficiency and certainty in the law, it will still be seriously considered by later courts. This is true within court hierarchies, where the earlier and later court are at the same level of the hierarchy, or there is otherwise no line of appeal from the later court to the earlier court. It has been suggested that this is still more important where different court hierarchies are applying the same or identical law because there is greater risk of divergence. The New South Wales Court of Appeal has observed: Where … one State appellate court declines to follow a decision of another appellate court in Australia the consequence is, or may be, that there is an immediate inconsistency between the respective States or Territories and, of course, trial courts will be bound by the decision of the appellate court in their State or Territory. For this reason even greater caution should be exercised in deciding not to follow the existing authority of another State or Territory.146

8.42

If divergences in interpretation emerged, ‘[t]he public would be entitled to ask why the same words of a statute have different meanings in different States or Territories’.147 The High Court has emphasised the importance of consistency between jurisdictions on several occasions. In Farah Constructions Pty Ltd v Say-Dee Pty Ltd (‘Farah Constructions’) the High Court stated: Intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong. Since there is a common law of Australia rather than of each Australian jurisdiction, the same principle applies in relation to non-statutory law.148

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In CAL No 14 Pty Ltd v Motor Accidents Insurance Board (‘CAL No 14’),149 the High Court was very critical of the Full Court of the Tasmanian Supreme Court for casually departing from a precedent of the New South Wales Court of Appeal on a point of common law. At issue was the extent to which a proprietor of premises licensed to sell alcohol owes a duty of care to customers. In this case a customer had been killed in a motorcycle accident on his way home from the bar. The New South Wales Court of Appeal in Cole v South Tweed Heads Rugby League Football Club Ltd150 had concluded that the proprietor owed a duty of care only in ‘exceptional’ circumstances. The Tasmanian Full Court in Scott v  CAL No  14 Pty Ltd151 held that a broader duty exists. In the High Court, Gummow, Heydon and Crennan JJ noted:

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[2002] NSWSC 1086. Ibid [106]. Fernando v Commissioner of Police (1995) 36 NSWLR 567, 589–90 (Clarke JA), quoted in Tillman v A-G (NSW) (2007) 70 NSWLR 448 [107] (Giles and Ipp JJA) (emphasis added by present authors) (‘Tillman’). Tillman (n 146) [110] (Giles and Ipp JJA). Farah Constructions (n 132) 151 [135]. (2009) 239 CLR 390 (‘CAL No 14’). (2002) 55 NSWLR 113; upheld on appeal in the High Court, though without reference to the current issue: Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 217 CLR 469. (2009) 17 Tas R 331. 5 PB 6 PB 0 LL ,

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Unless the Full Court majority had concluded, giving reasons, either that the present case was exceptional, or that the New  South  Wales Court of Appeal was plainly wrong, it was its duty to follow the New South Wales Court of Appeal. The Full Court majority did not conclude that the present case was exceptional or that the New  South  Wales Court of Appeal was plainly wrong. Hence it did not carry out its duty to follow the New South Wales Court of Appeal. If these appeals had not been brought, there would have been an undesirable disconformity between the view of the New South Wales Court of Appeal as to the common law of Australia and the view of the Tasmanian Full Court majority. At best the Full Court decision would have generated confusion. At worst it would have encouraged the commencement of baseless and ultimately doomed litigation, to the detriment both of the unsuccessful plaintiffs and of the wrongly vexed defendants.152

8.43

CAL No 14 concerned divergence at the intermediate appellate level. As noted in Farah Constructions, similar considerations apply where a trial judge in one jurisdiction has regard to an appellate decision from another jurisdiction. Indeed, having regard to their relative positions in the hierarchy, the precedent in such a situation should be given greater respect. In Australian Securities Commission v Marlborough Gold Mines Ltd (‘Marlborough Gold Mines’),153 an earlier case concerning uniform national legislation, the High Court said: It is somewhat surprising that the Full Court of the Supreme Court of Western Australia, and more particularly that Mr  Commissioner Ng, declined to follow what was said by the Full Court of the Federal Court. … [U]niformity of decision in the interpretation of uniform national legislation … is a sufficiently important consideration to require that an intermediate appellate court — and all the more so a single judge — should not depart from an interpretation placed on such legislation by another Australian intermediate appellate court unless convinced that that interpretation is plainly wrong.154

In R v Abbrederis,155 in a case concerning the possession of imported prohibited drugs under s  233B of the Customs Act  1901 (Cth),156 Street  CJ of the New  South  Wales Supreme Court said of a precedent of the Full Court of the Supreme Court of Victoria:

Similar considerations will again apply where a trial judge in one jurisdiction has regard to the precedent of another trial judge in another jurisdiction. In Hamilton Island Enterprises Pty Ltd v Commissioner of Taxation, Rogers J commented:

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In my view it is of cardinal importance in the proper administration of justice that single judges of State Supreme Courts exercising federal jurisdiction should strive for uniformity

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It is of significance to recognize that the decision was reached by the ultimate State appellate court and unless and until such time as this decision is departed from by the Full Court of Victoria or the High Court, it will bind absolutely all single judges and inferior courts in Victoria … [W]here a Commonwealth statute has been construed by the ultimate appellate court within any State or Territory, that construction should, as a matter of ordinary practice, be accepted and applied by the courts of other States and Territories so long as it is permitted to stand unchanged either by the court of origin or by the High Court.157

153 154 155 156 157

CAL No 14 (n 149) 412–13 [51]. (1993) 177 CLR 485 (‘Marlborough Gold Mines’). Ibid 492 (emphasis added). [1981] 1 NSWLR 530. Corresponding offences are now found in div 307 of the Criminal Code Act 1995 (Cth). Ibid 542.

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in the interpretation of Commonwealth legislation. Unless I were of the view that the decision of another judge of co-ordinate authority was clearly wrong I would follow his decision.158

8.44

Marlborough Gold Mines suggests that, since the precedent is from a court at the same rather than a higher level, the respect shown the precedent may not be at such a high level. Some judicial statements may be taken to express somewhat greater independence. In Commercial Banking Co of Sydney Ltd v Federal Commissioner of Taxation, Hunt J made the following comment on the remarks of Rogers J: I doubt, with respect, whether single judges should be quite as unquestioning of each other’s decisions as is suggested. It is not always the case that single judges feel obliged to follow decisions even of other judges within the one Supreme Court unless considered to be clearly wrong; and I see no distinction in relation to the decisions of judges of other Supreme Courts merely because all may be exercising Federal jurisdiction.159

In R v Hookham, Priestley JA expressed a similarly independent view with regard to the appellate jurisdiction: This court is not bound by its own decisions … The position cannot be different in regard to the decision of another court with the same standing in its jurisdiction as this court has in New South Wales. It may be that in regard to decisions on Commonwealth legislation by appellate courts of other jurisdictions particular caution should be exercised by this court before departing from them … but nevertheless it seems inescapable that this court retains jurisdiction to reach its own decision, different from that of the other court, in a case where it feels convinced that the law and justice of the case require a different decision.160

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While these statements are more independent in tone, they still acknowledge the need for caution in departing from precedents of courts in another hierarchy. Freedom to depart from these precedents is ‘not always’ so restricted; the present court must ‘feel … convinced the law and justice of the case require a different decision’. In Marlborough Gold Mines, the High  Court suggested that ‘the considerations applying [to uniform national legislation] are somewhat different from those applying in the case of Commonwealth legislation’.161 However, the Court still emphasised the importance of ‘uniformity of decision’, and stated the applicable principle in terms indistinguishable from that applying to Commonwealth legislation. And subsequently in Farah Constructions, the High  Court indicated that the ‘same principle’ applies to Commonwealth legislation, common law and uniform legislation.162 In Towney v Minister for Land and Water Conservation for New South Wales,163 Sackville J of the Federal Court, considering an issue under the Evidence Act 1995 (Cth), had regard to a decision in the New  South  Wales Supreme Court on the same provision of the Evidence Act 1995 (NSW). Sackville J said:

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The decision of McLelland  CJ in  Eq is not binding on this court. However, it is a considered decision on an identical point, concerning legislation that has been enacted both by the Commonwealth Parliament and by the Parliament of New South Wales. Both

159 160 161 162 163

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[1982] 1 NSWLR 113, 119. (1983) 14 ATR 142, 152. (1993) 31 NSWLR 381, 391. Marlborough Gold Mines (n 153) 492. Farah Constructions (n 132) 151 [135]. (1997) 147 ALR 402. 5 PB 6 PB 0 LL ,

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PRECEDENT ACROSS DIFFERENT COURT HIERARCHIES REGARDING NON-UNIFORM LEGISLATION The line between similar non-uniform legislation and uniform or national scheme 8.46 legislation is not always sharp. As noted at 8.36, the criminal codes of the traditional code jurisdictions originated in the Griffith Code of the late 19th century. However, there are only three such jurisdictions and there has been some divergence over the years.The same can be said for the UEL — it has not been uniformly adopted across Australia, and there are some divergences between the jurisdictions that have adopted it. Australia achieved far greater, almost perfect, uniformity in both senses with the Australian Consumer Law. At the same time, legislation in different jurisdictions may be expressed in similar or even identical terms even where it is not part of a national scheme and there has been no formal coordination between jurisdictions. The jurisdiction adopting legislation on a particular set of issues at the later date will naturally have regard to how other jurisdictions have addressed the same issues in the past.165 This raises the question of how far the principle of Farah Constructions extends, particularly in terms of similarly or identically worded legislation in different jurisdictions that does not form part of a national scheme. This issue of the application of the doctrine of precedent to non-national legislation 8.47 that is nevertheless similar across jurisdictions arose in Tillman v  Attorney-General of New South Wales (‘Tillman’).166 The New South Wales Court of Appeal considered the meaning of s 17 of the Crimes (Serious Sex Offenders) Act 2006 (NSW). This legislation provided that, in certain circumstances, a court could order the continuing detention of a serious sex offender after the completion of their prison sentence. In interpreting this provision the Court considered the Victorian Court of Appeal decision in TSL v Secretary to the Department of Justice (‘TSL’)167 where it was interpreting a similar provision of the Serious Sex Offenders Monitoring Act  2005 (Vic). While noting differences between the two Acts, the majority in Tillman held that the ‘[Victorian Act] is sufficiently close to the [New South Wales Act] as to require this Court to follow TSL unless it is satisfied that TSL is clearly wrong’.168 They held:

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enactments derive from a common source, namely, the ALRC final report. … I think that the appropriate course is to follow the decision … unless I consider that the decision is clearly wrong. Dr Renwick did not put forward any reason to suggest that the decision is clearly wrong and I do not think it is. On the contrary, with respect, I think that the reasoning of McLelland CJ in Eq is convincing.164

164 165

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Commonwealth legislation, uniform national legislation and the common law have obvious claims to national certainty and predictability. The first and third are truly nation-wide, the [second] is effectively nation-wide, and there should be consistent decision-making throughout Australia notwithstanding the existence of separate legal jurisdictions.Perpetuation

166 167 168

Ibid 412. Jeremy Gans provides some interesting examples of this in ‘The Uniform Evidence Law in the Islands’, in Roberts and Gans (eds) (n 136) 13. He considers how a variety of island nations in the Caribbean and the South Pacific based their evidence law on Australia’s UEL. ‘The Evidence Act 2009 (SI) [Solomon Islands] … contains almost fifty provisions that are almost identical to Australia’s’: ibid 32. Tillman (n 146). (2006) 14 VR 109. Tillman (n 146) 459 [73] (Giles and Ipp JJA).

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of egregious error is countered by departure from the prior decision if persuaded that it is plainly wrong, but there is for the most part social and economic unity within Australia calling for comity … between the appellate courts of the separate jurisdictions. Although the High Court has not yet spoken, there is support in the cases for similarly following decisions of other State and Territory courts at the same judicial level on the interpretation of substantially similar State or Territory legislation.169

While agreeing with the majority, Mason P did not consider there to be a particular need to follow that Victorian decision in interpreting the present New South Wales legislation. He held: I acknowledge that there is a rule of precedent obliging intermediate appellate courts not to depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of (a) Commonwealth legislation or (b) uniform national legislation or (c) the common law of Australia unless convinced of plain error (Marlborough Gold Mines; Farah Constructions). To my understanding, the High Court has not expressed the rule in broader terms. Neither has it expounded the reasons that lie behind the existing rule, leaving a margin of inference on that topic … The legislation under consideration in this appeal is not federal or part of a uniform national scheme. It does not involve matters of property, commercial law or even tort law (cf the Civil Liability Act 2002) where citizens of Australia may have had transactions or dealings in more than one State on similar terms, or made insurance or travel arrangements on assumptions of commonality throughout Australia … It involves the liberty of the subject.170

Mason P added: I agree that it is ‘highly desirable’ that there be conformity of decision as between different States, but this is not a legal test for determining whether and in what circumstances a considered departure from uniformity may occur  … I remain of the view that no categorical rule of precedent similar to that expounded in Marlborough and Farah applies in the present context …171

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The issue arose for the New South Wales Court of Appeal again the following year, in Harrison v  Melhem,172 a case concerning the interpretation of legislation regulating the calculation of damages in negligence cases. Mason  P, delivering the leading judgment, indicated, with reference to Tillman:

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We recently concluded that similar principles should apply both when this Court is asked to depart from one of its own decisions that [is] in point and when this Court is confronted with a decision of an Australian intermediate appellate court of comparable jurisdiction with reference to substantially similar legislation. I was in dissent, but I regard myself as bound by that decision …173

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In Harrison v Melhem the majority ultimately adopted the interpretation of Victorian and Queensland appellate courts in preference to its own previous interpretation. However, Basten  JA, dissenting on this point, held: ‘Resolution of these conflicts

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requires consideration of the reasoning of the various courts and the legislative history. However, the starting point of the analysis must be the language of the statute itself.’174 In Harrison v  Melhem, Mason  P, while acknowledging he was bound by Tillman, added the observation ‘that the High  Court has subsequently endorsed an arguably different test’175 in Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (‘Walker Corporation’).176 Subsequently, in XY,177 Basten JA, in joining a majority which followed its own interpretation of a provision of the UEL in preference to an interpretation of the Victorian Court of Appeal, quoted the relevant passage from Walker Corporation: [T]hat does not mean that the courts of Queensland, when construing the legislation of that State, should slavishly follow judicial decisions of the courts of another jurisdiction in respect of similar or even identical legislation. The duty of courts, when construing legislation, is to give effect to the purpose of the legislation. The primary guide to understanding that purpose is the natural and ordinary meaning of the words of the legislation. Judicial decisions on similar or identical legislation in other jurisdictions are guides to, but cannot control, the meaning of legislation in the court’s jurisdiction.178

Basten JA concluded:

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Uncertain though the state of current authority is, the course this court should take in all the circumstances is to determine for itself the correct approach to the statutory provision, giving proper consideration to the reasoning and conclusions of earlier authorities, both in this court and in the Victorian Court of Appeal.179

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Other courts have also taken divergent approaches to this difficult question. The Tasmanian Court of Criminal Appeal in Director of Public Prosecutions v Chatters180 followed the approach of Giles and Ipp  JJA in Tillman. The Tasmanian Court was interpreting a recently introduced provision of the Tasmanian Criminal Code in relation to prosecution appeals on sentencing. In so doing, the Court considered authorities on similar provisions recently introduced in other jurisdictions, particularly the Western Australian provision. The Tasmanian Court observed that ‘[s]ince Western Australia’s s  41(4) is practically identical to Tasmania’s s  402(4A), this Court should not depart from the interpretation placed on the Western Australian provision by that State’s Court of Appeal unless convinced that that interpretation is plainly wrong’.181 The same approach was adopted in the Western Australian Court of Appeal in Thornton v Newcrest Mining Ltd.182 The Court observed that ‘although the legislation under consideration here is not uniform throughout the nation, the fact that it is the same in four Australian jurisdictions warrants similar treatment in those jurisdictions … unless it is plainly wrong’.183

177 178

179 180 181 182 183

Ibid 404 [194]. Ibid 403 [188]. (2008) 233 CLR 259, 270 [31] (‘Walker Corporation’). XY (n 139). XY (n 139) 374–5 [39], quoting Walker Corporation (n 176) 270 [31], quoting Marshall v Director-General, Department of Transport (2001) 205 CLR 603 [62] (McHugh J). XY (n 139) [40] (Simpson J agreeing at [159]). (2011) 21 Tas R 26. Ibid [42] (Blow, Porter and Wood JJ). [2011] WASCA 92. Ibid [16] (Pullin and Murphy JJA, Murray J).

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The Queensland Court of Appeal, however, has been more circumspect, expressing the view that [t]he question whether or not a similar principle [to that applied to Commonwealth legislation, uniform legislation or the common law] applies when an intermediate appellate court is confronted with a decision of an intermediate appellate court of a different State upon the interpretation of indistinguishable legislation of that other State may not have been finally resolved, but at the very least such a decision must be treated as a guide.184

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These expressions of greater independence potentially extend beyond similar state legislation to uniform legislation and Commonwealth legislation, qualifying or undermining the principles laid down in Farah Constructions and Marlborough Gold Mines. The High Court’s warning in Walker Corporation, against courts ‘slavishly follow[ing]’ the decisions of courts of other jurisdictions extended to ‘similar or even identical legislation’.185 These doubts, about the extent to which the doctrine of precedent creates obligations across judicial hierarchies, may even extend to Australia’s singular common law. In XY, Basten JA noted, in a sceptical tone, that in Farah Constructions ‘[t]he “same principle” was said to apply in relation to “non-statutory law” ’, adding that ‘[w]ithout knowing the legal basis for such a principle’ he found it difficult to assess its breadth.186 We return to Basten JA’s doubts about the ‘principle’ applying the doctrine of precedent across court hierarchies at the end of the next section. ‘PLAINLY WRONG’ AND PER INCURIAM PRECEDENTS, AND JUDICIAL COMITY As explained in the previous sections, courts are only strictly bound by precedents from courts higher in the same court hierarchy. However, even where not strictly bound, courts should still treat precedents with respect. A court should only depart from a precedent of a court at the same level in the court hierarchy if convinced the precedent is ‘plainly’, ‘clearly’ or ‘manifestly’ wrong. That same principle may apply to precedents of courts in other Australian hierarchies in connection with the common law, Commonwealth legislation, national scheme legislation and other similar or identical legislation. What might lead a court to declare a precedent ‘plainly wrong’? In BHP Billiton Iron Ore Pty Ltd v National Competition Council (‘BHP v NCC’)187 Greenwood J of the Federal Court, after noting that the question ‘should be approached with real and deliberative caution’,188 gave the following non-exhaustive list of what may lead a precedent to be described as ‘plainly wrong’:

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[T]he consideration of an incorrect statutory instrument in the resolution of the controversy; consideration of a provision of a statute in a form not enacted at the relevant date of the events or a failure to consider a provision of an Act relevant to the disposition of the cause, thus causing the analysis to fall into error; a failure to apply having regard to the issues raised by the controversy, a binding decision of a Full Court of this Court or the High Court; a failure to apply a decision of a Full Court of this Court, an intermediate Court of Appeal

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R v Cain [2010] QCA 373 [21] (Fraser JA; White JA and Jones J agreeing) (citation omitted). Quoted at 8.48 above, see n 178. XY (n 139) [33]. (2009) 162 FCR 234 (‘BHP v NCC’). Ibid 253 [83]. 5 PB 6 PB 0 LL ,

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of another jurisdiction or an authority of the High  Court expressing a clear persuasive emphasis of opinion in favour of a particular conclusion (particularly concerning legislation of the Commonwealth Parliament); or some other circumstance that has caused a dispositive adjudication of the controversy to miscarry.189

These elements all involve a failure to use all the appropriate legal authorities or materials.190 In this respect, the notion of a precedent being ‘plainly wrong’ appears to encompass that of a decision being made per incuriam (through want of care). Decisions are said to be per incuriam where they are given ‘in ignorance or 8.53 forgetfulness’ of a legislative provision inconsistent with the decision or of a precedent which is binding on the court that made the decision.191 The failure of an earlier court to refer to contrary legislation or a binding precedent will not, in itself, render the court’s decision per incuriam. It must be clear that the omission resulted in flawed reasoning which affected the law adopted by the court. It is not enough that, ‘if different arguments had been placed before [the court in the earlier case] or if different material had been placed before it, it might have reached a different conclusion’.192 This will not always be apparent. Perhaps, even had the earlier court expressly considered the precedent, the court would have distinguished it and made the same decision. In determining whether the court, in failing to mention the earlier authority, did make a decision per incuriam, a number of factors may be relevant. In Miliangos v George Frank (Textiles) Ltd,193 Lord Simon said:

It is fairly rare for a court to decline to follow its own earlier decision on the basis 8.54 it is per incuriam. A clear example, however, is R v Young.195 Spigelman CJ noted that in the earlier criminal decision R v N196 he had suggested that a certain rule of criminal procedure had been ‘superseded by the introduction in the District Court Rules of pt 29 r 1’.197 In the later case he said: ‘It is clear that Pt 29 relates only to civil cases. Accordingly, the reasoning in R v N should be regarded as per incuriam.’198 There is an important limitation on per incuriam as a basis for avoiding a precedent. 8.55 ‘The per incuriam rule is not available to a court in relation to a decision of a court superior in the hierarchy. It is a rule which applies only to a review by a court of its own decision’.199 A lower court should regard itself as bound to follow the decision of a court

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[A]lthough certainly a case is not decided per incuriam merely because it is argued on one side only … the absence of a contrary argument will sometimes make it easier to establish a per incuriam exception, and in any case a judgment in undefended proceedings or a decision on an uncontested issue tends to have less authority than one given after argument on both sides.194

189 190

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Ibid. Dyson Heydon, ‘How Far Can Trial Courts and Intermediate Appellate Courts Develop the Law?’ (2009) 1 Oxford University Commonwealth Law Journal 1, 26. Morelle Ltd v Wakeling [1955] 2 QB 379, 406. Duke v Reliance Systems Ltd [1987] 2 All ER 858, 860 (emphasis added). [1976] AC 443. Ibid 478, quoted with approval in CSR Ltd v Eddy (2005) 226 CLR 1 [14]. (1999) 46 NSWLR 681 (‘R v Young’). Court of Criminal Appeal, Spigelman CJ, Sully and Ireland JJ, 21 July 1998. R v Young (n 195) 691 (Spigelman CJ). Ibid. Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166, 177.

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above it in the hierarchy, even if the lower court believed the precedent was incorrect in law. [T]o permit the use of the per incuriam rule by a court inferior to the court the precedential effect of whose decision was in issue ‘would open the door to disregard of precedent by the court of inferior jurisdiction by the simple device of holding that decisions of superior courts with which it disagreed must have been given per incuriam’.200

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In such a case, while bound by the higher court’s precedent‚ the lower court may encourage the losing party to appeal, giving the higher court the opportunity to consider whether it views its earlier decision as incorrect and requiring correction. This restriction on the use of per incuriam limits its significance. As discussed earlier in this chapter, courts are generally not bound by their own precedents in any case. The principle was more important historically, when courts were more reluctant to depart from their own decisions. Now, however, finding that an earlier decision of the same court is per incuriam is just one of a number of reasons for not following it.201 The concept of ‘plainly wrong’ is broader than per incuriam:‘[T]hose adverbs “plainly” or “clearly” do not limit the circumstances of departure to those in which error is patent or obvious or easily perceived. Rather they bespeak the quality of the error or the level of conviction of error that must be perceived.’202 The earlier court’s decision may be viewed as plainly wrong on the basis of its erroneous reasoning, notwithstanding that the earlier court considered all the relevant legal materials.203 However, as Greenwood J observed in BHP v NCC, the application of the epithet ‘ “plainly wrong” should be approached with real and deliberative caution’.204 He continued: ‘That minds might differ on a question is not a foundation for a conclusion that a decision supported by exposed reasons for judgment after full argument, is plainly wrong.’205 Other courts have emphasised the need for courts to exercise discretion in making this judgment, stating that ‘[u]se of that adjective [“plainly”] suggests something far more potent than mere disagreement’206 and ‘goes well beyond merely considering an earlier judgment to have been erroneously decided’.207 This judgment will be harder to make ‘when the correct interpretation of the statute is highly disputable or finely balanced, involving a difficult choice between strongly competing contentions’.208 The caution that should be exercised in labelling another court’s decision ‘plainly wrong’ raises a difficulty: the application of this label appears to clash with the notion of ‘comity’. This particularly troubled Basten  JA in XY, where he noted that ‘comity denotes courtesy or civility’ between courts and between judges,209 and contributes to 200

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Baker v  The Queen [1975] AC 774, 788, cited with approval in Algama v  Minister for Immigration and Multicultural Affairs (2001) 115 FCR 253, 261 [40]. Cf Alastair Macadam and John Pyke, Judicial Reasoning and the Doctrine of Precedent in Australia (LexisNexis Butterworths, 1998) 89. Gett v Tabet (2009) 254 ALR 504 [283] (Allsop P, Beazley and Basten JJA). Ibid. BHP v NCC (n 187) [83]. Ibid [84]. DPP (Vic) v Patrick Stevedores Holdings Pty Ltd (2012) 41 VR 81 [113]. Ibid [117]. South Australia v Teachers Appeal Board [2011] SASCFC 3 [82], quoting Babaniaris (n 29) [37] (Mason J). XY (n  139) [34]; see  further Mustac v  Medical Board of Western Australia [2007] WASCA 128 [37]–[46] (Martin CJ). 5 PB 6 PB 0 LL ,

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‘the effective administration of impartial and independent justice [which] depends upon the maintenance of public respect for the courts as an institution’.210 Comity within the Australian judiciary is a further reason for following precedent, on top of the advantages of ‘certainty, equality, efficiency and the appearance of justice’.211 Even though a court is not bound by the earlier court’s precedent, the court should not ignore it and proceed ‘as though the pages of the law reports were blank’.212 This would be disrespectful to the earlier court. But then, should the later court wish to avoid the earlier court’s precedent, it must label it ‘plainly wrong’. As Basten  JA said in XY, ‘the categorisation of a decision of another court at the same level of the hierarchy as plainly or clearly wrong on a point of law is the antithesis of treating courts of equal status with courtesy and civility’.213 It may also undermine public respect for the courts as an institution. Basten JA further noted that ‘it is not conducive to the orderly administration of justice for intermediate courts of appeal to characterise or even to routinely consider characterising the judgments of their colleagues in other jurisdictions as “plainly wrong”.’214 Basten JA’s concerns were prompted by the split between the Victorian Court of 8.58 Appeal and the New South Wales Court of Criminal Appeal over the interpretation of s 137 of the UEL, as mentioned at 8.38. In Dupas, the Victorian Court of Appeal declined to follow the New South Wales Court of Appeal decision, R v Shamouil (‘Shamouil’)215 on the basis that

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the conclusion reached in Shamouil … is contrary to a long line of established authority and to considered dicta of the High Court concerning the common law. That conclusion does not give effect to the plain language of the statute, the context or the extrinsic material … The effect of the decision in Shamouil is to undermine an important safeguard which the common law provided against an unfair trial and which the legislatures intended should be replicated in the Evidence statutes. … We are therefore compelled to the conclusion that we should depart from the reasoning and conclusion in Shamouil, as error can be demonstrated with a degree of clarity by the application of the correct legal analysis.216

As Basten JA observes, the ‘plainly wrong’ conclusion is liable to appear ‘as a gratuitous insult when applied to another court’.217 Ironically, it may appear more courteous and respectful for courts to depart from the precedents of other courts more readily. As Justice Heydon has noted extra-judicially, ‘[a] judge who refuses to follow the decision of another court because it is “wrong” is likely to provoke much less unpleasantness than a judge who does so because the decision is “plainly wrong”.’218 Basten JA gave two reasons for adopting a less restrictive approach to non-binding 8.59 precedents of other jurisdictions.219 First, as discussed at 8.48, Basten JA questioned the strength of the High  Court authorities like Farah Constructions advocating a restrictive 210

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XY (n 139) [34]. Treloar (n 3) 602. McNamara (n 31) 661 [42], quoting Second Territory Senators Case (n 2) 599 (Gibbs J). XY (n 139) [34]. Ibid. (2006) 66 NSWLR 228. Dupas (n 138) [226], [228]. XY (n 139) [34]. Heydon (n 190) 24. XY (n 139) [38].

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approach in light of the more liberal approach endorsed in Walker Corporation. Second, as outlined here, he argued that a restrictive approach can lead to a lack of civility between jurisdictions and a consequent undermining of public respect for the judicial institution. These are both persuasive points. Nevertheless, the the concept of ‘plainly wrong’ appears to be well entrenched in Australian jurisprudence.

Overview of the doctrine of precedent in Australian courts

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The foregoing discussion has been somewhat lengthy, but a consistent pattern of principles has emerged across the various jurisdictions that may be summarised as follows: • The High Court is not self-bound, but will depart from its own decisions with reluctance.There are no set principles as to when the High Court will reconsider the law, although it will often apply the considerations in John and Imbree. • Other Australian courts are bound by courts higher in the same hierarchy. • Australian courts do not consider themselves bound by their own decisions, but will depart from one only when they consider the decision ‘plainly wrong’. It is not open to a court bound by a decision of a higher court to depart from it on the basis that it is ‘clearly wrong’. • There are three situations where there is a strong desirability for uniformity: the common law, the interpretation of Commonwealth legislation, and the interpretation of uniform national legislation. In these cases, while not entirely settled, the weight of authority suggests Australian courts should follow the decisions of the courts at the same or a higher level of other Australian hierarchies, unless they consider a decision ‘clearly wrong’. This is the same respect with which courts treat their own decisions. • It is unclear how far the above principle extends in cases of similarly or identically worded legislation that is not part of a national scheme. • Courts may be more prepared to depart from a non-binding precedent where it involves statutory interpretation and the present court considers that the precedent does not give effect to Parliament’s intention in passing the legislation. While simple to espouse, the situation can become quite complicated when courts in different hierarchies hand down conflicting decisions, as was seen in Einfeld, discussed in 8.25. These complexities are explored further in Exercise 9 in this chapter.

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Issues on the margins of the doctrine of precedent

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This chapter so far has considered the application of the doctrine of precedent to the courts in Australia’s federal court system. It began at  the top with the High  Court, considered a range of issues that exist within a single court hierarchy, and then considered complications arising from the interconnections between Australia’s nine individual

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court hierarchies. This final section of the chapter considers a range of marginal issues — ‘marginal’ in the sense of ‘relating to the edge’ rather than ‘of minor importance’.220 The first two topics concern ‘inferior courts’ and tribunals.These bodies may handle disputes with less at stake in terms of costs or years of imprisonment, but they handle many more cases than the superior courts and arguably have a more direct impact on the lives of Australians. The third topic examines how the doctrine of precedent treats courts of foreign jurisdictions. As will be seen, foreign precedents are of diminishing importance relative to Australian precedents. However, for much of Australian legal history since settlement, a foreign (Imperial) court, the Privy Council, was the ultimate appeal court for Australia, providing the most important and strictly binding precedents. Moreover, similar weight was given to decisions of the House of Lords notwithstanding that it has never had a role in the Australian court hierarchy. INFERIOR COURTS A route of appeal may lie from one inferior court to another. See, for example, pt 3 of 8.62 the Crimes (Local Courts Appeal and Review) Act  2001 (NSW), which governs ‘Appeals from Local Court to District Court’ on criminal matters. This route suggests that the decisions of the District Court, exercising its appeal jurisdiction, would be binding on the Local Court. However, in Valentine v  Eid,221 Grove  J of the Supreme Court of New South Wales, overturning Binskin v Kangaroo Transport Pty Ltd,222 held the doctrine of stare decisis does not apply as between two inferior courts.223 As well as relying on the distinction between inferior and superior courts, Grove J suggested stare decisis does not apply to inferior courts because of their formidable caseload, which demands frequent ex tempore judgments, with many litigants unrepresented, depriving the court of the benefit of counsel’s argument and assistance. Moreover, judgments of the District Court are not routinely, and in practice are rarely, reported in the law reports. While it has been followed in subsequent decisions,224 Grove J’s reasoning is open 8.63 to question, and has lost some force over time.225 The distinction between inferior and superior courts is a technical one that appears of limited relevance to the doctrine of precedent.226 Judgments that are delivered ex tempore without the benefit of full legal argument from both sides may have less value but that does not apply to all inferior court judgments.227 Further, in the internet age judgments of inferior courts are becoming widely available.228 It should be noted that, despite holding the doctrine of precedent does not strictly apply, Grove J made it clear that a Local Court magistrate should follow any

220

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Oxford English Dictionary (3rd  ed, 2000) ‘marginal’ (defs 2,  7). Strangely, there is no definition in the Macquarie Dictionary (online at 10 August 2020) corresponding with the latter definition. Valentine v Eid (1992) 27 NSWLR 615. Supreme Court of New South Wales, Maxwell J, 22 May 1990. Valentine v Eid (n 221) 621–2. See, eg, Whittaker v Delmina Py Ltd (1998) 87 IR 268, 273; Knight v Raddie [2013] QMC 15 [53], cited in Oliver Jones, ‘Should Lower Court Judges Bind Magistrates and Tribunals?’ (2016) 90 Australian Law Journal 663, 663 (‘Should Lower Court Judges’). Jones, ‘Should Lower Court Judges’ (n 224). Ibid 669–71. Ibid 671. Ibid 667.

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decision of the District Court ‘unless after earnest consideration and for good reason … convinced that the decision was wrong’.229

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ADMINISTRATIVE AND OTHER TRIBUNALS It is difficult to make general statements as to the application of the doctrine of precedent to tribunals. As discussed in Chapter  7, the doctrine of precedent was developed in conjunction with the historical development of court hierarchies and law reporting. Tribunals are a more recent phenomenon, to which the doctrine does not automatically translate. However, as the following discussion shows, there is strong support for the proposition that the doctrine applies, at least in some situations. As discussed in Chapter  6, there are a wide variety of tribunals with a broad range of functions and powers. Federal tribunals are not permitted, constitutionally, to exercise judicial powers, but this restriction does not extend to state tribunals.Tribunals are creatures of statute: it is the statute which decides the structure and role of the tribunal, whether it exercises judicial powers, and rights of appeal from its decisions. In Lam v Steve Jarvin Motors Pty Ltd,230 the Appeal Panel of the New South Wales Civil and Administrative Tribunal (which does exercise judicial power231) stated: ‘Whether the doctrine of precedent or stare decisis is capable of applying to a decision of a tribunal depends on the functions of the tribunal under the Act by which it was created’.232 It further held that ‘[t]he doctrine of stare decisis applies to decisions of tribunals which exercise judicial power’, and ‘[t]he doctrine may apply even though the Act by which the tribunal was created does not explicitly recognise that the tribunal has the status of a court’.233 To a greater or lesser extent tribunals are designed to operate differently from courts, to provide greater flexibility and efficiency. Tribunals may bring a more flexible attitude towards the authority of their own previous decisions than courts. Moreover, the considerations that influenced Grove J in Valentine v Eid to suggest that inferior courts are not bound by precedent also have application to tribunals.234 Yet the familiar arguments in favour of stare decisis apply: following precedents provides consistency, predictability, equality and efficiency.235 Public confidence may be adversely affected if the decisions of tribunals appear too variable. And so, even if precedents are not strictly binding, tribunals are encouraged to have regard to the decisions of tribunals at the same level,236 and even more regard to the decisions of tribunals and courts with appellate jurisdiction. In Re Littlejohn and Secretary, Department of Social Security,237 Thompson DP of the Administrative Appeals Tribunal (AAT) emphasised the manner in which the AAT has traditionally operated.238 Where differently constituted tribunals have expressed conflicting

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Ibid 622. [2016] NSWCATAP 186 (‘Lam’). Johnson v Dibbin [2018] NSWCATAP 45 [3]. Lam (n 239) [191], citing Babaniaris (n 29) 11–12, 31–2. Lam (n 239) [191]. Hull v Australian Postal Corporation (2013) 62 AAR 94 [149]–[150]. See, eg, AGS [2015] QCATA 189 [30]. Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234 [80]. (1989) 10 AAR 220. Ibid 224. 5 PB 6 PB 0 LL ,

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views on a question of law, the President’s practice is to constitute the tribunal with the President, a Federal Court Judge, and another presidential member or a deputy president; the parties are encouraged to argue the question fully; and a reasoned decision on the question is given by the tribunal as so constituted. While that decision is not binding on the tribunal in future proceedings, it is nevertheless highly persuasive. This practice was referred to by Todd DP in Re Ganchov and Comcare239 in following a decision of the President with which he personally disagreed. Tribunals should also have regard to relevant precedents of courts, even where these 8.68 are not within the same hierarchy. In Federal Commissioner of Taxation v Salenger,240 a senior member of the AAT had reached an independent conclusion that a profit on a sale of shares was not assessable under s 26AAA of the Income Tax Assessment Act 1936 (Cth). To arrive at this conclusion, he had declined to follow a decision of the Tasmanian Supreme Court which was directly on point. On an appeal to the Federal Court, French J allowed the appeal, adding: [W]ith the greatest of respect to the tribunal … it is difficult to see how it is open to a senior member to form the view that a decision of the Supreme Court of a State which is on the very point before the tribunal is incorrect and not to be followed. In the special case of conflicting decisions of superior courts, the tribunal may have to decide which to follow, but that occasion does not arise here. Ordinarily, senior members of the tribunal should apply the law as stated by the judges of this Court or by judges of the Supreme Courts of the States.241

Where there is an avenue of appeal to the court, this provides added reason for 8.69 the tribunal to follow the court’s precedents. In Re 1412960 (Migration), Forgie DP and Senior Member Holmes, in the Refugee and Migration Division of the AAT, held:

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In relation to AAT Act migration decisions other than those we have described as excluded migration decisions, the Federal Circuit Court sits in a position above that of the Tribunal in the hierarchy. It may be an inferior court but it is clear that Parliament has intended that it has the power to set aside the Tribunal’s decisions … Unless set aside on appeal by the Federal Court, the Federal Circuit Court’s judgments are final. It seems to us that it follows that, in relation to AAT migration decisions, the Tribunal must have regard to judgments of the Federal Circuit Court when applying the doctrine of precedent or stare decisis.242

The Tribunal, however, suggested that other Divisions of the AAT, from which appeals go to the Federal Court, not the Federal Circuit Court, would not be bound by decisions of the Federal Circuit Court.243 This was notwithstanding that in some cases the Federal Court could refer the appeal to the Federal Circuit Court.244 The Western Australian State Administrative Tribunal (SAT) has accepted that 8.70 ‘in accordance with the doctrine of precedent, or stare decisis, [it is bound to follow] a decision of a single judge of the Supreme Court’.245 This finding followed a decision of the Western Australian Court of Appeal in Mustac v Medical Board of Western Australia246 239 240 241 242 243 244 245 246

(1990) 11 AAR 468, 470. Federal Commissioner of Taxation v Salenger (1988) 19 FCR 378. Ibid 388–9. [2016] AATA 4193 [100]. Ibid [101]. Ibid. Match Projects Pty Ltd and ARCCON (WA) Pty Ltd [2009] WASAT 134 (‘Match Projects’). [2007] WASCA 128 (‘Mustac’).

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which had overturned a decision of the President of the SAT who said he would follow a decision of a single judge of the Supreme Court unless it was plainly wrong. As the SAT put it: In the leading judgment of the Court of Appeal, his Honour, Chief Justice Martin, found that principles of comity were not applicable as between a court and a tribunal. The Chief Justice … stated: The relationship between the decision of the courts and the functions to be formed by the Tribunal is, I think, quite straightforward.The law, as enunciated by the courts, at least those courts above the Tribunal in the appellate structure, must be applied by the Tribunal, however constituted.247

8.71

In WorkCover Corporation v  Jakas (‘Jakas’)248 the Full Court of the Supreme Court of South  Australia made a very strong statement about the obligation of tribunals to follow judicial precedent. The case was an appeal from a decision of the Workers Compensation Tribunal in which the Deputy President had upheld a widow’s application for workers’ compensation based upon her husband’s death. The Deputy President held that he should not follow a decision of the Full Court in Burch v South Australia (‘Burch’)249 as, in his view, it was inconsistent with the later High Court decision in Kennedy Cleaning Services Pty Ltd v Petkoska (‘Kennedy’),250 even though that decision was concerned with the quite different workers’ compensation scheme of the Australian Capital Territory, and did not expressly refer to Burch. WorkCover appealed to the Full Bench of the Workers Compensation Tribunal, which stated a case for the Full Court in Jakas as to whether the Deputy President was right to prefer Kennedy to Burch. The Full Court unanimously upheld WorkCover’s appeal. Lander  J, with whom Duggan J agreed, was very critical of the Deputy President’s understanding of the doctrine of precedent:

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The Deputy President seems to have questioned not only the impact of Kennedy Cleaning Services Pty Ltd v Petkoska upon the Full Court decision but also the reasoning of the Full Court decision itself. The Tribunal is part of the hierarchical system of the courts in this State and as such is bound loyally to follow the decisions of all tribunals or courts superior in the system. That means that a deputy president of the Tribunal must follow a decision of this Court whether it appeals to the Deputy President as being correct or otherwise. A deputy president of the Tribunal is not entitled to question the reasoning of this Court even if it appears to the Deputy President that the reasoning is wrong … The doctrine of stare decisis exists to ensure certainty in the law. The doctrine should be observed especially by a tribunal at the base of the system … A decision of a superior court is as binding upon the inferior tribunal as the Act itself …251

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Match Projects (n 245) [38], quoting from Mustac (n 246) [50]. (2003) 86 SASR 20 (‘Jakas’). (1998) 71 SASR 12. (2000) 200 CLR 286. Jakas (n 248) 30–2 (Lander J). 5 PB 6 PB 0 LL ,

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DECISIONS FROM OTHER COMMON LAW JURISDICTIONS In modern Australia, no decision of any foreign court is binding on Australian courts. 8.72 This simple statement of principle follows from the logical connection between the doctrine of precedent and court hierarchies — foreign courts are not in the Australian court hierarchy. However, this statement of principle may be subject to one qualification. Historically, the Privy Council, a British Imperial court, was at the head of the Australian court hierarchy; Privy Council precedents were binding in the past, and they may retain their binding nature until overruled by the High Court. Decisions of senior British courts were also given considerable weight, particularly 8.73 those of the House of Lords, the composition of which overlapped considerably with that of the Privy Council. It appears possible that any lingering authority held by Privy Council decisions from the period when it was the ultimate appeal court may extend to House of Lords decisions from that era. However, it is clear that more recent decisions of the senior British courts, including the House of Lords, and the United Kingdom Supreme Court which replaced it at the apex of the British court hierarchy, no longer receive this special degree of respect. While not receiving special regard, decisions of senior British courts may still carry 8.74 some weight. Where a point of law appears open or an Australian legal principle is challenged, regard will be had to precedents from foreign jurisdictions. In Esso Australia Resources Ltd, Kirby J said:

By ‘like jurisdictions’, Kirby J means comparable common law jurisdictions — Britain, New  Zealand, Canada and the United States. That is, senior courts in common law jurisdictions show mutual respect. Decisions of senior Australian courts will be considered by these courts where they face difficult issues. While contemporary decisions of the Privy Council and the United Kingdom 8.75 Supreme Court no longer deserve special respect, it is possible that past decisions of the Privy Council do, and House of Lords precedents from that earlier period may occupy a similar position. These possibilities are explored in more detail in the remainder of this chapter.

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[W]here it is shown that this Court’s authority is out of step with that of many other like jurisdictions, that demonstration concentrates attention on the justification for the disparity. It poses the issue of principle and policy as to whether previous legal authority was erroneous and should be changed.252

Privy Council The Judicial Committee of the Privy Council was formerly the highest court to which 8.76 an appeal from a decision of an Australian court could be taken. An appeal to the Privy Council could be brought from a decision of the High Court or directly from a decision of a state court. Such appeals were abolished in a lengthy three-stage process culminating in the Australia Acts: see 2.75. In the first stage, the Privy Council (Limitation of Appeals) Act  1968 (Cth) abolished appeals to the Privy Council in all matters of federal and territorial jurisdiction. The High Court was then the ultimate appeal court on matters of federal and territorial law while the Privy Council remained the ultimate appeal court 252

Esso Australia Resources Ltd (n 8) 85.

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on matters of state law. In the second stage, the Privy Council (Appeals from the High Court) Act  1975 (Cth) abolished appeals from the High  Court on matters of state law. This left the anomalous situation of two ultimate appeal courts on state law — either the High Court or the Privy Council. This anomaly was removed by the Australia Acts in 1986 (the third stage), which fully closed off Privy Council appeals. After the 1975 Act, the High Court, in Viro v The Queen,253 dealt with the weight to be given to decisions of the Privy Council in cases coming before it. The seven Justices decided unanimously that the High Court was no longer bound by decisions of the Privy Council, even if those decisions had been handed down before the 1975 Act took effect, as appeal to that body was no longer possible.254 Murphy J described the Privy Council as an ‘eminent relic of colonialism, representing a dwindling influence’,255 adding: The Australian judicial system is not assisted in the definition and development of Australian law by the existence of a tribunal acting as a rival of the High  Court. The members of the Privy Council have not been appointed by Australians, are not responsible to anyone in Australia and cannot be removed by any Australian procedure. As the framers of our Constitution understood, the members of the Privy Council generally have little knowledge of our history, our legislation, our society and therefore of how our decisional law should develop.256

More recently, following the Australia Acts, in Mabo v Queensland [No 2], Brennan J said: Although our law is the prisoner of its history, it is not now bound by decisions of courts in the hierarchy of an Empire then concerned with the development of its colonies. It is not immaterial to the resolution of the present problem that, since the Australia Act 1986 (Cth) came into operation, the law of this country is entirely free of Imperial control. The law which governs Australia is Australian law. … Increasingly since 1968 the common law of Australia has been substantially in the hands of this Court. Here rests the ultimate responsibility of declaring the law of the nation.257

Under s  74 of the Constitution, an appeal from the High  Court to the Privy Council on certain constitutional matters remains theoretically possible. However, this would require the High Court to ‘certify that the question is one which ought to be determined by Her Majesty in Council’. As former Chief Justice Anthony Mason noted, the High Court has ‘made it clear it would never again grant a certificate’.258 He stated:

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The basic reason for the Court’s refusal thereafter to grant a certificate was, as Dixon CJ stated in delivering the judgment of the Court in Whitehouse v Queensland, that ‘experience shows — and that experience was anticipated when s 74 was enacted — that it is only those who dwell under a Federal Constitution who can become adequately qualified to interpret and apply its provisions.’259 253

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(1978) 141 CLR 88 (‘Viro’). Ibid 93 (Barwick CJ), 121 (Gibbs J), 130 (Stephen J), 135 (Mason J), 150 (Jacobs J), 166 (Murphy J), 174 (Aickin J); see also Barns v Barns (2003) 214 CLR 169, 184 (Gleeson CJ). Viro (n 253) 166. Ibid 166–7. (1992) 175 CLR 1 [29]. Anthony Mason, ‘The High Court of Australia: A Personal Impression of Its First 100 Years’ (2003) 27(3) Melbourne University Law Review 864, 884, citing Kirmani v Captain Cook Cruises Pty Ltd [No 2] (1985) 159 CLR 461, 465 where s 74 was described as ‘obsolete’. Mason (n 258) 884, quoting Whitehouse v Queensland (1961) 104 CLR 635, 638. 5 PB 6 PB 0 LL ,

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The High  Court has indicated that it is not bound by Privy Council decisions, 8.79 and further, that recent Privy Council decisions — since it lost Australian appellate jurisdiction — will not bind Australian courts. What is less clear is the current status, for courts below the High Court, of historical Privy Council decisions that were, at the time, binding on Australian courts. Different views have been expressed on this point. In Hawkins v Clayton260 McHugh JA, dissenting, commented: Now that appeals from the State courts to the Privy Council have been abolished, I do not think that Australian courts are bound by any previous decisions of that body. The Privy Council is no longer part of the structure of the administration of justice in Australia. It takes no place in the hierarchical structure of the Australian courts. No one suggests that the High Court is bound by decisions of the Privy Council given at a time when appeals could be taken from the High Court to the Privy Council. The position of the High Court in regard to old Privy Council decisions does not depend on it being the ultimate Australian appellate court, but on the fact that it is no longer bound by the Privy Council. Logically, the same consideration requires that all Australian courts are no longer bound by Privy Council decisions.261

In Australian Oil Refining Pty Ltd v Caltex Oil (Australia) Pty Ltd,262 Yeldham J of the New South Wales Supreme Court followed the approach advocated by McHugh JA. But the question was left open by the Court of Appeal in X v Amalgamated Television Services Pty Ltd [No 2] (‘X v ATS’).263 In the recent High Court decision, Barclay v Penberthy,264 Heydon J observed that 8.80 ‘[n]othing in Cook v Cook undercuts the present status as authorities in Australian courts of Privy Council decisions before 1986, until they are overruled by this Court’.265 In Perilya Broken Hill Ltd v Valuer-General,266 Leeming JA referred to Heydon J’s observation and suggested that, while Cook v Cook contained assertions of Australian jurisprudential independence, it also can be ‘read as confirmatory of the ongoing binding effect of decisions in Privy Council appeals’. In Cook v Cook a majority of the High Court said:

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Subject, perhaps, to the special position of decisions of the House of Lords given in the period in which appeals lay from this country to the Privy Council, the precedents of other legal systems are not binding and are useful only to the degree of the persuasiveness of their reasoning.267

Leeming  JA interpreted this to mean ‘Privy Council decisions given when appeals lay to that body from Australia (and thus formed part of the Australian legal system) continue to bind’.268 Leeming JA indicated that particular caution is required for Privy Council appeals from the High  Court which overturned High  Court decisions. He noted that the Full Court of the Federal Court269 had taken the view that ‘it was for the 260 261

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(1986) 5 NSWLR 109. Ibid 136–7, citing Viro (n 253) 93, 120, 129–30, 135, 150–1. Supreme Court of New South Wales,Yeldham J, 26 September 1986; see also R v Judge Bland; Ex parte DPP (Vic) [1987] VR 225, 321–4; Parker v South Australian Housing Trust (1985) 41 SASR 493 (‘SAHT’), 516. (1987) 9 NSWLR 575, 585 (Kirby P), 601 (Mahoney JA) (‘X v ATS’). (2012) 246 CLR 258. Ibid [103], citing Cook v Cook (n 20) 389–90. (2015) 10 ARLR 235 (‘Perilya’). Cook v Cook (n 20) 390 (Mason, Wilson, Deane and Dawson JJ). Perilya (n 266) [75]. Rockwell Graphic Systems Ltd v Fremantle Terminals Ltd (1991) 106 FLR 294, 301 (Malcolm CJ).

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High Court and the High Court alone to determine whether to depart from a Privy Council decision which itself overturned a decision of the High Court’, adding that he saw ‘no compelling reason for this Court to depart from that approach’.270 Contrary to McHugh  JA’s suggestion in Hawkins v  Clayton, the High  Court’s position as ‘the ultimate Australian appellate court’271 may well have influenced its attitude to Privy Council precedents from the earlier period. Once appeals to the Privy Council ceased, leaving the High  Court as the sole ultimate appeal court, it became necessary for it to be free of Privy Council precedent. Otherwise, Australian common law could stagnate.272 There is not such a strong need for other courts to be free to depart from Privy Council precedent. However, it could be argued that the same argument does have some application to intermediate appellate courts. As the High Court itself has noted,273 appeals to the High Court are quite limited and, to a degree, intermediate appeal courts serve as the ultimate appeal court. Despite his ultimately conservative conclusion, Leeming JA also said he could ‘see force in the proposition that, just as the High Court is no longer bound by the Privy Council, by the same reasoning this Court is likewise no longer bound’.274 House of Lords Until recently, the Appellate Committee of the House of Lords sat atop the United Kingdom court hierarchy. In October 2009 it was replaced by the United Kingdom Supreme Court: see 2.49 and Essential Legal Toolkit A.5. For much of Australia’s legal history, decisions of the House of Lords were given a great deal of weight. In 1943 in Piro v W Foster & Co Ltd (‘Piro’), Latham CJ of the High Court proposed that it should now be formally decided that it will be a wise general rule of practice that in cases of clear conflict between a decision of the House of Lords and of the High Court, this Court, and other courts in Australia, should follow a decision of the House of Lords upon matters of general legal principle.275

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Other members of the court made similar remarks.276 In 1980 in R v Darrington and McGauley (‘Darrington’), the Full Court of the Victorian Supreme Court indicated that while ‘[t]his court is not bound to follow the decision of the House of Lords … [its] practice has been to follow a decision of the House of Lords in preference to its own decision, unless compelled to another course by a decision or reasoning of the Privy Council or of the High Court.’277 As recently as 1983, in the New South Wales Court of Appeal decision Life Savers (Australia) Ltd v Frigmobile Pty Ltd, Hutley JA held, with Glass  JA agreeing, that ‘the judgment of the House of Lords … is binding on this Court, unless there are inconsistent decisions of the High Court or the Privy Council standing in the way of its application’.278 270

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Perilya (n 266) [76]. See above n 261. Oliver Jones, ‘Do the Law Lords Bind Lower Courts?’ (2013) 87 Australian Law Journal 383, 389. Nguyen (n 74) 269. Perilya (n 266) [71]. (1943) 68 CLR 313, 320. Ibid 325–6 (Rich J), 341 (Williams J), 335–6 (McTiernan J). [1980] VR 353, 365 (Jenkinson J), 354 (Young CJ, agreeing). [1983] 1 NSWLR 431, 433–4 (Hutley JA), 438 (Glass GA, agreeing). 5 PB 6 PB 0 LL ,

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There are several interrelated reasons why decisions of the House of Lords, although never part of the Australia court hierarchy, have been given so much weight. Of course, while the House of Lords ‘never has been’279 part of the Australian court hierarchy, the Privy Council was, and there was considerable overlap between the personnel of the two courts to the point where, on one view, there was a ‘convergence’ between them.280 This may be taken as an explanation for the ‘special position of decisions of the House of Lords given in the period in which appeals lay from this country to the Privy Council’.281 In Parker v  South  Australian Housing Trust (‘SAHT’)282 King  CJ provided another reason for the respect accorded to decisions of the House of Lords — its ‘position … as the ultimate court of appeal of the country in which the common law had its genesis and experienced its formative development’.283 It should be remembered that on settlement, so far as was applicable to the new colonies, Australia received English common law developed by the British courts headed by the House of Lords: see 2.58ff. Further, on one view, the developments introduced by the British courts after the date of reception could be picked up by Australian law. In State Government Insurance Commission v  Trigwell,284 Gibbs J suggested that the neighbour principle, laid down in the landmark negligence decision of the House of Lords, Donoghue v Stevenson,285 formed part of Australian common law: see 7.4, 7.27 and 7.61. Donoghue v Stevenson was decided in 1932, post-dating the date of reception by about a century,286 but Gibbs J suggested that ‘parts of the common law which are suitable to a more advanced state lie dormant until occasion arises for enforcing them’.287 Despite the House of Lords’ historical eminence as the senior common law court and its convergence with the former ultimate Australian appeal court (the Privy Council), as a matter of principle it is arguable that House of Lords precedents never deserved special treatment. After all, the House of Lords has never been part of the Australian court hierarchy.288 Suggestions to the contrary may be viewed, sceptically, as ‘a vestigial survival of imperial authority’.289 Increasingly, Australian courts have denied that the House of Lords should receive special regard. Given a good reason, Australian courts have become progressively more prepared to depart from House of Lords precedents. The High Court took a significant step in weakening its bonds with the House of Lords in 1963, in Parker v The Queen (‘Parker’).290 At this time appeals were still open from the High Court to the Privy Council with the consequence that the High Court was unambiguously bound by Privy Council precedents. The High Court was considering the authority of the House of Lords decision, Director of Public Prosecutions v Smith (‘Smith’s

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X v ATS (n 263) 584 (Kirby P); see also Macadam and Pyke (n 201) 139–40. Jones, ‘Do the Law Lords Bind Lower Courts?’ (n 272) 389. Cook v Cook (n 20) 390. (1985) 41 SASR 493 (‘SAHT’). Ibid 516. (1979) 142 CLR 617 (‘Trigwell’). [1932] AC 562. Trigwell (n 284) is a South Australian decision. That state’s date of reception is 28 December 1836: Acts Interpretation Act 1915 (SA) s 48. The date for the eastern states is 25 July 1828: Australian Courts Act (Imp) 9 Geo 4, c 83. See further 2.58–2.59. Trigwell (n 284) 625–6 (Gibbs J). X v ATS (n 263) 584 (Kirby P). SAHT (n 282) 516 (King CJ). (1963) 111 CLR 610 (‘Parker’).

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mens rea: the subjective mental element of a crime, which must coincide with the physical element (or actus reus) for the defendant to be guilty

Case’).291 The defendant in Smith’s Case had been charged with the murder of a police constable.The constable had asked the defendant, who had stolen goods in his car, to pull over. Instead the defendant accelerated away with the constable holding on to the side of the car. The defendant drove erratically, and the constable was thrown into the path of another car and killed. The primary issue was whether the defendant had the requisite mens rea for murder, that is, whether the defendant had intended to cause the constable’s death or grievous bodily harm. The House of Lords held that if the natural and probable result of the defendant’s actions was that the constable would suffer grievous bodily harm or death, then the defendant should be taken to have intended to cause grievous bodily harm or death.292 The concern that this approach raises is that it weakens the degree of fault required for murder, the most serious of crimes. It could turn murder into an offence of negligence. In Parker, Dixon CJ observed that ‘[t]he introduction of the maxim or statement that a man is presumed to intend the reasonable consequences of his act is seldom helpful and always dangerous’.293 He indicated that Smith’s Case should not be followed, and then made a statement with which the other members of the Court agreed: Hitherto I have thought that we ought to follow decisions of the House of Lords, at the expense of our own opinions and cases decided here, but having carefully studied Smith’s Case I think that we cannot adhere to that view or policy.There are propositions laid down in the judgment which I believe to be misconceived and wrong.They are fundamental and they are propositions which I could never bring myself to accept … I wish there to be no misunderstanding on the subject. I shall not depart from the law on the matter as we had long since laid it down in this Court and I think Smith’s Case should not be used as authority in Australia at all.294

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Three years after Parker, in Skelton v Collins,295 Owen J pointed out that it followed from what had been said in Parker that there should be a departure from the statement in Piro: see 8.82. From then on Australian courts, other than the High Court, faced with conflicting decisions of the High  Court and the House of Lords, would be obliged to follow the High Court decision.296 Owen J added: ‘Where, however, there is no decision of the High  Court on a question that arises in some other Australian court and a decision of the House of Lords is directly in point, the court which is called upon to decide the question will no doubt follow the decision.’297 In 1986 — the year in which the Australia Acts were passed, cutting off the final avenue of appeal from the state courts to the Privy Council — the High Court again expressed mixed views about the status of House Lords authorities. In Cook v Cook, a majority of the High  Court disapproved of suggestions that lower courts should give special weight to decisions of the English Court of Appeals, stating that

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[1961] AC 290. Ibid 327. Parker (n 290) 632, quoting from Stapleton v The Queen (1952) 86 CLR 358, 365. Parker (n 290) 632. (1966) 115 CLR 94, 137. Ibid 138–9. Ibid 139. 5 PB 6 PB 0 LL ,

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those statements should no longer be seen as binding upon Australian courts  … [T]he precedents of other legal systems are not binding and are useful only to the degree of the persuasiveness of their reasoning.298

However, this statement was subject to a qualification: see  8.80. The High  Court appears to have suggested that decisions of the Privy Council from the period when it was part of the Australian court hierarchy retain their binding status, at least for courts below the High Court, and, further, that House of Lords decisions from this period may also occupy this ‘special position’.299 And yet, earlier that same year, the Full Court of the South  Australian Supreme Court declined to follow House of Lords authority from that earlier period. In SAHT the child of a tenant had been injured by a faulty gas cooker. As King CJ noted, the landlord sought to rely on the 1906 House of Lords authority Cavalier v Pope300 for ‘the supposed rule … that a lessor is not under a duty of care to persons who may suffer injury on the demised premises by reason of the lessor’s failure to comply with a covenant with the lessee to effect repairs or to keep the premises in repair’.301 King CJ noted the Court’s practice that ‘a decision of the House of Lords will ordinarily be followed in this Court if there is no contrary decision of the High Court’.302 However, he indicated that House of Lords decisions ‘are not technically binding upon any Australian court’,303 and that Australian courts have ‘a degree of freedom [in respect of House of Lords decisions] which is not enjoyed by the English courts’.304 King CJ held that the rule in Cavalier v Pope

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is inconsistent in principle with the modern doctrine of liability for negligence as it has developed since Donoghue v. Stevenson. That being so, I do not think that this Court would be justified in following the decision of the House of Lords, thereby imposing on the parties a result which the Court would consider be incorrect. I would therefore hold that there is no rule of law precluding the existence of a duty of care in the lessor if on the ordinary principles of the law of negligence the facts are such as to give rise to such a duty.305

The High Court subsequently departed from Cavalier v Pope in Northern Sandblasting Pty Ltd v Harris306 and Jones v Bartlett:307 see 7.34, 7.61. It sometimes appears that, even if intermediate appeal courts have now managed 8.89 to gain independence from House of Lords decisions, trial judges may still be bound.308 In 1987, the year following the passage of the Australia Acts and the decision in SAHT, Southwell J commented in Horne v Chester and Fein Property Developments Pty Ltd:‘I would regard myself as bound to follow an indistinguishable decision of the House of Lords, unless the High Court has otherwise decided.’309 It appears doubtful, however, that trial courts would endorse that attitude today.With the passage of time, the need for Australian 298 299 300

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Cook v Cook (n 20) 390. Ibid. [1906] AC 428. SAHT (n 282) 516–7. Ibid 516. Ibid. Ibid. Ibid. (1997) 188 CLR 313. (2000) 205 CLR 166. Macadam and Pyke (n 201) 143. [1987] VR 913, 916.

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courts to assert their independence from British authorities has only grown stronger. In 2005 in D’Orta-Ekenaike v Victoria Legal Aid,310 Kirby J observed: [The High Court] decided, as long ago as 1963 [in Parker], that it would no longer ‘follow decisions of the House of Lords, at the expense of our own opinions and cases decided here’. The separate development of the common law in Australia over the last 40 years, coupled with the considerable, and now profound, changes in the constitutional and other arrangements to which the United Kingdom is party, such as the various European and other international instruments to which it is, but Australia is not, a party, can only reinforce that view.311

He emphasised that where British decisions are based upon the judicial perception of social and other changes said to affect the administration of justice in England and Wales (or the United Kingdom more generally) there can be no automatic transposition of the arguments found persuasive there to the Australian judicial system.312

A year earlier, in 2004, in R v Goldman,313 Redlich J, a single judge of the Supreme Court of Victoria, held that the defence of duress is available for attempted murder, despite House of Lords authority to the contrary.314 Interestingly, a similar issue had arisen for the Full Court of the Victorian Supreme Court in the case of Darrington in 1980, mentioned at  8.82. In that case the court held that the defence of duress may be available for a defendant charged with murder as principal in the second degree, following House of Lords authority Director of Public Prosecutions for Northern Ireland v Lynch315 in preference to its own earlier decision in R v Harding.316 In R v Goldman, Redlich J suggested: It is sufficiently plain that had the Court had the unequivocal guidance of the High Court subsequently given in Cook v Cook, the Court would have followed Harding in preference to [Deputy Public Prosecutor for Northern Ireland v] Lynch which was not perceived to be based upon established principles of the common law.317

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As mentioned at  8.80, contrary to Redlich  J’s suggestion, Cook v  Cook is not quite unequivocal; rather, it suggests that decisions of the House of Lords (and the Privy Council) that date back to a period when the Privy Council was the (sole or joint) ultimate appeal court may still bind courts below the High  Court. In ignoring this qualification, Redlich J may have misinterpreted Cook v Cook. Despite this, Redlich J’s attitude to House of Lords authorities should be taken as correct.318 The House of Lords was never part of the Australian court hierarchy. While convergence between the House of Lords and the Privy Council once provided a practical reason to put House of Lords decisions on virtually the same footing as Privy Council decisions, 310 311 312

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(2005) 223 CLR 1. Ibid 24 [59]. Ibid [60]. (2004) 147 A Crim R 472 (‘R v Goldman’). R v Gotts [1992] 2 AC 412. [1975] AC 653 (‘Lynch’). [1976] VR 129 (‘Harding’). R v Goldman (n 313) [54], citing Cook v Cook (n 20), Harding (n 316) and Lynch (n 315). In R v  Goldman (n  313), despite the defence being made available, the defendant was convicted. On appeal the prosecution did not seek to argue that the defence was unavailable: R v Goldman [No 2] [2007] VSCA 25 [65]. 5 PB 6 PB 0 LL ,

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this was always contrary to strict principle, and since the Australia Acts, this practical consideration has fallen away.

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EXERCISE 9: PRECEDENT IN AUSTRALIAN COURTS The following problems are loosely based on decided cases. A list of earlier relevant 8.90 decisions is given (while based on actual decisions, the names of the parties have been changed). For each problem, imagine you are a judge in the state or territory specified (or another state or territory, if preferred), who must decide a point of law similar, to a greater or lesser degree, to that in the previous cases given. Give reasons for your choice of binding, or most highly persuasive, authority — citing case authority where appropriate. 1. You are a single judge in the Australian Capital Territory Supreme Court deciding whether patients should have the right of access to their medical records at common law on the basis of the doctor/patient relationship being a fiduciary one. The previous decisions on the issue are as follows: Nathanson v Rowland (1915) England and Wales Court of Appeal (EWCA); Robertson v Hamer (1920) New South Wales Full Court of the Supreme Court (NSWSCFC); Johnson v Geddes (1980) House of Lords (HL); Matthiesen v Gamble (1990) Supreme Court, Full Court (SCFC), Canada; Frederiksen v O’Connor (1994) New South Wales Court of Appeal (NSWCA), which did not follow Nathanson, Robertson and Johnson but preferred Matthiesen; Wilson v Holloway Hospital (1996) High Court of Australia, Full Court (HCAFC), which decided 3:3 (thus affirming a decision of the Full Court of the Supreme Court of Tasmania) that Johnson was to be preferred to Matthiesen); and Thomson v Walker (2001) South Australia Supreme Court, Full Court (SASCFC), which applied the ruling in Matthiesen. 2. You are a single judge in the Supreme Court of Queensland who must interpret a provision of the Insurance Contracts Act 1984 (Cth). The previous decisions on the issue are as follows: Hellebore v ABC Insurance Co Ltd (1986) Queensland Supreme Court (QSC); Papaver v Creyke Health Casualty & General Insurance Ltd (1990) Full Court of the Federal Court of Australia (FCAFC), which refused to follow Hellebore on the ground that it was plainly wrong; Monarda v Rumble Insurance (1998) HCAFC, which disapproved the reasoning in Hellebore but followed the decision; Hypericum v XYZ Insurance (1999) NSWCA, which applied Hellebore; and Escallonia v Barker (2001) Victorian Supreme Court, Appeals Division (VSCAD) which followed the decision in Hellebore, but not the reasoning. 3. You are a single judge in the Supreme Court of Victoria who has to decide on the interpretation of a section of the consumer protection legislation common to all Australian jurisdictions. The previous decisions on the issue are as follows:

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Devious Pty Ltd v Black (October 1995) VSCAD; Grasping Pty Ltd v White (November 1995) VSCAD, which seems inconsistent with Black on the point in issue; Green v Misleading Pty Ltd (1997) HCAFC which was thought to have impliedly overruled White and expressly approved Black; Scarlett v Deceptive Pty Ltd (1999) VSCAD, which held that Green did not overrule White but did disapprove some of the reasoning in White; Speculative Sellers Pty Ltd v Brown (2000) FCAFC, which impliedly refused to follow White; and Gold v  NM Discounters Pty Ltd (2001) Queensland Court of Appeal (QCA), which was consistent with Brown and did not follow White. 4. You are a single judge in the New South Wales Supreme Court who has to decide on an issue raised in a case involving the tort of negligence.The previous decisions on the issue are as follows: Carpenter v Clumsy (1990) HL; Taylor v Shortsighted Pty Ltd (1993) NSWCA, which did not follow Carpenter; Smith v  Careless Pty Ltd (1996) HCAFC, which in a 3:2 majority decision affirmed the Carpenter rule in obiter dicta; Cook v Heedless (1997) Western Australia Supreme Court, Full Court (WASCFC), which applied Taylor; Butcher v  Eggshell Cracking (Victoria) Pty Ltd (2000) VSCAD, which followed Carpenter on the basis that it was more highly persuasive than Taylor; and Joiner v  Antipodean Breachers (2000) Privy Council (PC) (appeal from New Zealand), which applied Carpenter. 5. You are a single judge in the New South Wales Supreme Court who has to decide on the issue of third-party liability for receipt of property transferred in breach of fiduciary duty. The previous decisions on the issue are as follows: Egerton v Peters (1874) EWCA, which required that the recipient have notice of the prior interest in order to be held liable; DEF Estates Pty Ltd v  Blair Developments Pty Ltd (1974) NSWCA, which explained and applied Egerton; El Amiri v Pound Land Holdings plc (1994) EWCA, which applied Egerton; Blair Development Pty Ltd v DEF Estates Pty Ltd (1975) HCAFC, which in obiter dicta stated that the principle in Egerton was to be preferred to strict liability of recipients; and ABC Developments Pty Ltd v  Rose Bay Construction Pty Ltd (2005) NSWCA, which adopted the principle of strict liability.

280

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CHAPTER 8 PRECEDENT IN AUSTRALIAN COURTS

• John Carvan, Understanding the Australian Legal System (Lawbook, 6th ed, 2009). • Matthew Conaglen and Richard Nolan, ‘Precedent from the Privy Council’ (2006) 122 Law Quarterly Review 349. • Robin Cooke, ‘Divergences — England, Australia and New Zealand’ (1983) New Zealand Law Journal 197. • James Crawford and Brian Opeskin, Australian Courts of Law (Oxford University Press, 4th ed, 2004). • Stephen Gageler and Brendon Lim, ‘Collective Irrationality and the Doctrine of Precedent’ (2015) 38 Melbourne University Law Review 525. • Matthew Harding and Ian Malkin,‘Overruling in the High Court of Australia in Common Law Cases’ (2010) 34 Melbourne University Law Review 519. • Matthew Harding and Ian Malkin, ‘The High  Court of Australia’s Obiter Dicta and Decision-Making in Lower Courts’ (2012) 34 Sydney Law Review 239. • Dyson Heydon, ‘How Far Can Trial Courts and Intermediate Appellate Courts Develop the Law?’ (2009) 9 Oxford University Commonwealth Law Journal 1. • Oliver Jones, ‘Do the Law Lords Bind Lower Courts?’ (2013) 87 Australian Law Journal 383. • Oliver Jones, ‘When Is the Federal Magistrates Court Bound by the Federal Court?’ (2012) 86 Australian Law Journal 478. • Michael Kirby, ‘In Praise of Common Law Renewal’ (1992) 15 University of New South Wales Law Journal 462. • Michael Kirby, ‘Precedent Law, Practice and Trends in Australia’ (2007) 28 Australian Bar Review 243. • John Lockhart, ‘The Doctrine of Precedent — Today and Tomorrow’ (1987) 3 Australian Bar Review 1. • Alastair Macadam and John Pyke, Judicial Reasoning and the Doctrine of Precedent in Australia (LexisNexis Butterworths, 1998). • Anthony Mason, ‘The Use and Abuse of Precedent’ (1988) 4 Australian Bar Review 93. To enhance your learning experience, use the student resources available on Lexis® Learning See the Visual Preface at the front of this book on how to register.

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Further reading

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281

PART

3

9 Legislation

285

10 Approaches to Interpretation of Legislation

337

11 Extrinsic Aids to Interpretation of Legislation

365

12 Interpretation of Legislation in Context

385

13 Presumptions Used in the Interpretation of Legislation

413

14 Statutory Obligations and Discretions

441

15 Applying Legislation to Complex Problems

455

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Sources of Law: Legislation

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CHAPTER

9

Legislation There is something monstrous in commands couched in invented and unfamiliar language … The language of the law must not be foreign to the ears of those who are to obey it.1 Judge Learned Hand, ‘Is There a Common Will?’ (Speech, Mayflower Hotel, Washington, DC, 11 May 1929).

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Introduction

9.1

Historical development

9.2

Terminology

9.4

Differences between legislation and case law

9.5

− Value or weight of legislative rules

9.7 9.10

Making statutes

9.11

The legislative process

9.13

Financial scrutiny of legislation

9.14

Legislation: frequently asked questions

9.16

Commencement of statutes

9.17

− Commonwealth

9.20

− States

9.21

N =

Legislation takes precedence over case law

•

New South Wales and Western Australia

9.22

•

Queensland and South Australia

9.23

•

Tasmania

9.24

•

Victoria

9.25

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9.26

•

Australian Capital Territory

9.27

•

Northern Territory

9.28

− Other commencement dates

9.29

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•

Revived (or extended) statutes and sunset clauses

9.30

•

Retrospective commencement

9.31

Amendment and repeal of statutes

9.34

− Amending legislation

9.34

− Repeal of statutes

9.36

•

Express repeal

9.37

•

Implied repeal

9.38

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•

Effect of repeal

9.40

•

Repeal of a repealing Act

9.41

− Disallowance of Acts of the territories

9.42

Formal structure of a statute

9.43

− Number

9.44

− Date

9.45

− Long title

9.46

− Short title, title or name

9.47

− Preamble

9.48

− Sections 

9.49

− Section headings, notes and examples

9.50

− Chapters, parts, divisions, subdivisions and their headings

9.53

− Tables of contents and indexes

9.54

− Purpose or objects clauses

9.55

− Interpretation sections

9.56

− Schedules

9.57

EXERCISE 10: Reading and identifying parts of a statute

9.58

Legislative dictionaries — interpretation statutes

9.60

EXERCISE 11: Using interpretation legislation

9.61

Drafting statutes

9.62

− Plain English

9.62

− Other developments in drafting

9.64

Different types of statutes

9.66

− Public Acts and private Acts

9.67

− Codes

9.68

− Uniform laws

9.70

− Consolidations

9.71

− Reprinted Acts

9.72

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− Declaratory and validating Acts

9.74

− Omnibus and cognate Acts

9.75

Particular forms of legislation in the Australian territories

9.76

− Australian Capital Territory

9.77

− Northern Territory

9.79

− Other Australian territories

9.80

Delegated legislation

9.81

− Parliamentary scrutiny and consultation

9.83

− Quasi-delegated legislation

9.84

− Commencement of delegated legislation

9.85

•

Commonwealth

9.86

•

States and mainland territories

9.87

•

Non self-governing territories

9.88 9.89

•

Disallowance

9.89

•

Amendment

9.90

•

Repeal

9.91

•

Automatic repeal

9.92

•

Repeal of regulations

9.93

− Formal structure of delegated legislation

9.94

− Different types of delegated legislation

9.95

EXERCISE 12: Legislation

9.97

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− Disallowance, amendment and repeal of delegated legislation

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CHAPTER 9

LEGISLATION

9.1

This chapter focuses on outlining the nature of legislation, the other key source of law in common law jurisdictions to case law. The two bodies of law interact — with judges responsible for interpreting legislation. This discussion of the nature of legislation is a necessary precursor to outlining the principles applied by courts in interpreting it in Chapters 11–14. The chapter covers: • the historical development and ambit of ‘legislation’, from initially being secondary to case law as the source of law, to the point of being the dominant source today; • the weight of and interaction between legislation and case law: legislation prevails over case law, but judges still interpret the law; • the parliamentary processes by which a statute is made; • key questions relating to legislation, including when it commences, is amended, revives, ceases to exist or is repealed, and when it can commence retrospectively; • the powers of the Commonwealth Parliament to disallow the legislation of the territories; • the formal structure of a statute and the significance attached to each element; • the use and value of interpretation legislation (statutes passed in each jurisdiction providing default rules for the operation of legislation, and common terms found in legislation); • the drafting of legislation and the recent emphasis on ‘plain language’ over the ornate language previously associated with ‘legalese’; • different types of legislation and their significance, including forms of legislation in the Australian territories; • the nature of delegated legislation — that is, legislation made by someone authorised under an Act, rather than through the parliamentary process — including how it is made, and rules concerning its disallowance, amendment and repeal; and • quasi-delegated legislation and its significance.

legislation: a generic term to describe both statutes or Acts and delegated legislation

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Introduction

Historical development

9.2

An early form of legislation — the statute or Act — existed in England before the end of the sixth century and delegated legislation was made as early as the 14th century: see  9.4. Nonetheless, legislation was originally much less significant than case law. However, the need for speedier amendment of the law, for the comprehensive treatment of a subject, or for radical change, has meant that legislation has now become the most common source of new rules of law. Today, therefore, being able to understand and apply legislation is essential for lawyers, administrators, politicians and, of course, citizens.

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delegated (or ‘subordinate’) legislation: legislation authorised by statute rather than passed by Parliament

42-

289

LAYING DOWN THE LAW

9.3

An incentive for this development arose during the Second World War when mobilisation of the war effort was largely regulated by legislation, much of it in the form of subordinate laws. The practice continued post-war in order to reconstruct societies fractured by the war’s effects. Today, heavy government regulation of most aspects of people’s daily activities continues. The consequence is that there has been a dramatic increase in the amount and complexity of legislation. In turn, this has had an impact on the work of courts. A former Chief Justice of the High Court, Murray Gleeson, said: One of the changes making the work of modern judges different from that of their predecessors is that most of the law to be applied is now to be found in Acts of Parliament rather than judge-made principles of common law (in which I include equity). A federal judge devotes almost the whole of his or her judicial time to the application of an Act of the federal Parliament, whether it be about corporations law, or bankruptcy, or family law, or migration.2

To illustrate this change, in 1964 the Commonwealth Parliament passed Acts comprising a combined total of 943 pages. Fifty years later, in 2014, Commonwealth Acts comprised close to 4,500 pages in total, a more than fourfold increase. When the pages of subordinate legislation — typically considerably in excess of the pages of Acts — are added to these numbers, and the volume of new or amended rules they represent is considered, the assertion that legislation is now the predominant source of legal rules is borne out.

Terminology

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9.4

There are two forms of legislation: statutes or Acts (made by Parliament) and delegated or subordinate legislation (made by office-holders or bodies to whom Parliament has delegated law-making power). Subordinate laws are made by someone other than Parliament, typically the Governor-General, a Governor, a Minister of the Crown, or a statutory body such as a board, municipal council or university; council by-laws are a good example of delegated legislation. The authority for these law-makers to do so is found in an Act or statute of Parliament. These subordinate laws come in many forms. They can be known as rules, regulations, statutory rules, subordinate law, legislative instruments, ordinances and bylaws. Generically they are usually called subordinate, secondary or delegated legislation. For the Commonwealth these terminological differences have diminished, since the Legislation Act 2003 (Cth) provides that most forms of subordinate laws are known simply as legislative instruments.3

Differences between legislation and case law Legislative bodies have a singular advantage over courts: they can be proactive. Unlike courts, which must wait for a dispute to arise before making new laws, Parliament and

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Murray Gleeson, ‘The Meaning of Legislation: Context, Purpose and Respect for Fundamental Rights’ (Speech,Victoria Law Foundation Oration, Melbourne, 31 July 2008) 1. On delegated legislation see  Dennis Pearce and Stephen Argument, Delegated Legislation in Australia, (LexisNexis Butterworths, 5th ed, 2017). 5 PB 6 PB 0 LL ,

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CHAPTER 9

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delegated legislative law-makers can make rules aimed at preventing problems from occurring. Examples of preventative laws include rules to prohibit surrogacy arrangements, to protect the environment and to require adequate food labelling. As these examples illustrate, the breadth of matters dealt with by legislative bodies is almost unlimited. In practice, however, the constraints of the political process, constitutional restrictions on legislative power, and other limitations such as the recognition that there are domestic areas into which the law should not intrude, confine the reach of legislation. Legislative rules also differ from rules in cases because legislation is usually prospective in operation. In other words, they affect future action only. Case law, because it purports to be based on an existing corpus of law, operates both retrospectively and with prospective effect. Still, the prospective nature of legislation should not be overstated. Although there is a common law presumption against legislation having retrospective effect (see 13.9), it is increasingly common, particularly when amending laws are involved, for legislation to be deemed to come into force before the date of assent: see 9.18. Further, legislative rules are expressed in fixed form: there is one wording for a rule, found in the particular statutory provision. In contrast, rules found in case law may be expressed using a variety of different formulations, even within the same judgment: see 7.13.

9.6

VALUE OR WEIGHT OF LEGISLATIVE RULES As questions can arise in relation to the common law as to which precedent to apply (that is, which precedent carries the most ‘weight’ or has the most value: see Chapter 8), so too in relation to statute law the issue can arise as to which legislative rule should be applied to certain circumstances. This issue can arise in three key contexts: later and earlier legislation on the same topic; statutes and subordinate laws on the same topic; and legislation made by Parliaments of the Commonwealth, the states and the territories on the same topic. The first principle is that a later statute or subordinate law that is inconsistent with an earlier Act or subordinate law on the same topic in the same jurisdiction repeals the earlier law to the extent of the inconsistency.The repeal may be express or by implication. Courts are reluctant to find repeal by implication and will strive to give meaning to both instruments where possible: see 9.38–9.39. The second principle is that an Act or statute takes precedence over subordinate laws on the same topic unless the Parliament specifically provides to the contrary. Devices that reverse this position are the ‘as if enacted in this Act’ clause, which gives subordinate laws equal status with Acts, and the colourfully titled ‘Henry VIII’ clause, which is effected by specifically providing in the statute that the subordinate law can repeal or supersede rules in the statute. For example, s  258 of the Liquor Act  2010 (ACT) provided that:

9.7

9.8 ‘Henry VIII’ clauses: (also called ‘chop off their head’ clauses) provide the executive with a power to use delegated legislation to override primary legislation, thus bypassing the scrutiny provided by the parliamentary process

258 Transitional Regulations … (2) a regulation can modify this part (including in relation to another territory law) to make provision in relation to anything that, in the Executive’s opinion, is not, or is not adequately and appropriately, dealt with in this part. (3) A regulation under subsection (2) has effect despite anything elsewhere in this Act.

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LAYING DOWN THE LAW

9.9

As can be seen, in combination these two provisions allow for a regulation, or subordinate legislation, to modify the principal Act (ie, the Act empowering the delegated legislation). Such clauses are usually strictly, or narrowly, construed.4 Use of these reversing devices is relatively uncommon but not unknown.5 The third principle is that legislation made by the Commonwealth Parliament prevails over inconsistent legislation, on the same topic, made by state Parliaments. This principle is needed because, in a federation like Australia, the possibility of conflict between legislation made by the different political units is a real one. The Australian Constitution provides for this eventuality with the rule set out in s 109. A similar rule applies in relation to Commonwealth legislation that is inconsistent with territory legislation and is found in the territories’ constitutions.6 Use by the Commonwealth of these provisions often causes controversy, for example when the Commonwealth invalidated the euthanasia legislation of the Northern Territory in 1994, and the protracted efforts by the Commonwealth in the years 2006 to 2008 that prevented the Australian Capital Territory passing legislation to provide for same-sex marriage.7 Although states and territories can, in limited circumstances, make laws that apply outside their territory (ie, laws with ‘extraterritorial effect’), they cannot amend or impact on legislation in another jurisdiction.

Legislation takes precedence over case law Inconsistency can occur not only between legislative rules but also between legislation and cases. In these circumstances, legislation takes precedence. That was one of the outcomes of the constitutional struggle between the Stuarts and the House of Commons in England in the 17th century — Parliament was accorded supremacy over the courts: see 2.14–2.16. It follows that it is always open to Parliament to change rules deriving from case law that the Parliament considers undesirable. That does not necessarily imply that the courts are subordinate. It is their task to resolve disputes about the meaning of words in legislation and the courts’ interpretation may differ from Parliament’s intention. Moreover, it falls to the courts to ensure that legislation is made only on topics within constitutional power. Notable examples of legislation struck down by the High Court as unconstitutional include the Commonwealth Parliament’s laws enforcing orders of the Australian Human Rights Commission, contrary

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4

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Public Service Association and Professional Officers’ Association Amalgamated Union (NSW) v  New South Wales [2014] NSWCA 116. For an amusing and informative discussion of Henry VIII clauses, see ACT Legislative Assembly Standing Committee on Justice and Community Safety, ‘Henry  VIII Clauses: Fact Sheet’ (November 2011) . See Australian Capital Territory (Self-Government) Act 1988 (Cth) s 28; Northern Territory (Self-Government) Act 1978 (Cth) s 51. Commonwealth, Gazette: Special, No  S  93, 14  June 2006. A further attempt in the Australian Capital Territory to introduce same-sex marriage legislation — the Marriage Equality (Same Sex) Act 2013 (ACT) — was struck down by the High Court in Commonwealth v Australian Capital Territory (2013) 250 CLR 441 as inconsistent with the Marriage Act 1961 (Cth). The Marriage Act 1961 (Cth) was amended in December 2017 to allow for same-sex marriage following a national plebiscite: Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth). 5 PB 6 PB 0 LL ,

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CHAPTER 9

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to the separation of powers principle, and state laws imposing tobacco licence fees as excise duties, a function reserved to the Commonwealth under s 90 of the Constitution.8

Making statutes 9.11

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Nine principal legislatures enact statutes in Australia: the Commonwealth Parliament, the Parliaments of the six states, and the Legislative Assemblies of the Australian Capital Territory and the Northern Territory. Until 2015, Norfolk Island also had its own legislature, the Norfolk Island Legislative Assembly, established in 1979; see  9.60 for its current governance. The Parliaments of certain mainland states such as Western Australia and South Australia make legislation for other Australian external territories. All Australian states, with the exception of Queensland, have bicameral Parliaments, that is, a Parliament with two Houses (upper and lower); the approval of both Houses is required to enact legislation. The Legislative Council in Queensland was abolished in 1922.9 All upper Houses in Australia are now elected. The Legislative Assemblies of the mainland territories, that is, the Australian Capital Territory and the Northern Territory, also have only one chamber (ie, they are unicameral), a function of the population size of the territories. Before a statute is enacted it is known as a Bill and its provisions are known as clauses.The process for making statutes differs between Parliaments. Special procedures are required for particular kinds of Acts. For example, under s 53 of the Australian Constitution certain money Bills may not be initiated or amended in the Senate. If dissatisfied with some or all of a Bill of this nature, the Senate may only return the Bill to the House of Representatives with a request for an amendment. The procedures for amendment of the Australian Constitution are particularly demanding, requiring that amending laws be passed by a majority of electors in a majority of states, and by an overall majority of electors across the Commonwealth.10 There are also special procedures for amending important parts of state and territory constitutions.11

9.12 Bill: a statute in draft form before it is introduced and passed by Parliament money Bill: a Bill proposing the appropriation of government revenue for spending or the imposition of taxation

The legislative process

9.13

The process by which Bills become law can be described in general terms, although there are differences in detail between the different jurisdictions. Broadly, the steps are as follows: • A majority of statutes originate from within the government of the day. A proposal for a Bill is given to the government Minister responsible for the area of law to which the Bill relates. The proposal may come from anywhere — from party policy, interest groups in the community or government departments. Once the 8

9 10 11

Brandy v  Human Rights and Equal Opportunity Commission (1995) 183 CLR 245; Ha v  New South Wales (1997) 189 CLR 463. Constitution Act Amendment Act 1922 (Qld). Australian Constitution s 128. See, eg, Australian Capital Territory (Self-Government) Act 1988 (Cth) s 26; Constitution Act 1902 (NSW) ss 7, 7A, 7B; Constitution Act 1867 (Qld) s 53; Constitution of Queensland Act 2001 (Qld) ss 4A, 78; Constitution Act 1934 (SA) ss 8, 10A, 64A, 88; Constitution Act 1934 (Tas) s 41A; Constitution Act 1975 (Vic) ss 18, 85; Constitution Act 1889 (WA) s 73.

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•

•

explanatory memorandum: a document to assist Members of Parliament, officials and the public by setting out the objectives of the Bill and outlining its provisions

•

second reading speech: contains an explanation of the purpose or rationale of the Bill, rather than the details of each provision

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Minister responsible has approved the proposal, the Minister arranges for a Bill to be drafted by parliamentary counsel. Detailed instructions for the content of the Bill come from the relevant department. Occasionally, the initiative for legislation will originate with other Members of Parliament, and will be drafted without the involvement of the relevant Minister. Such initiatives are known as ‘private member’s Bills’ (see last item below). When a Bill has been drafted, it is allocated a place in the queue for passage of Bills by Parliament. Before the Bill can be enacted, it is read and debated in Parliament, before both lower and upper Houses, or, in Queensland and the two territories, the single chamber.The processes followed originated in 17th century England when Parliament gained ascendancy over the monarch. The parliamentary process commences with placement of the Bill on the Notice Paper, or agenda of business of Parliament, for the next sitting day. The Bill is introduced on that sitting day by the Clerk of the relevant House of the Parliament, who reads the short title of the Bill. The responsible Minister then formally presents a signed copy of the Bill to the Clerk together with the explanatory memorandum. This is the first reading of the Bill. If the process of debating the Bill results in amendment of the Bill, there may be a supplementary explanatory memorandum. The second reading of the Bill usually happens immediately after the first reading. The Minister responsible for the legislation reads the second reading speech, which explains the purpose, general principles and effect of the Bill. This is the first occasion on which the terms of the Bill are available to all Members of Parliament and to the public. Debate on the Bill is then usually adjourned to allow time for public discussion and reaction to the terms of the Bill. The second reading debate, which generally takes place several sitting days after the second reading, involves substantial debate of the principles of the Bill. Debate usually commences with the shadow Minister outlining the opposition’s position on the Bill, followed by alternating speeches from government and opposition Members. Following the debate a vote is taken. The next stage is detailed consideration of the text of the Bill, clause by clause, and amendments can be made to the clauses. When the clauses of the Bill have been considered and agreed to, with or without changes, the Bill is approved. At this stage a Bill may be referred to a committee of the House for specialist input. The committee will make recommendations which, if approved by the government, are debated in the House as amendments. The final, third reading stage of the Bill is usually a formality. The responsible Minister moves that the Bill be read a third time and when the motion is agreed to the Bill has finally passed the relevant House. For bicameral Parliaments, the process is then repeated in the other House. If there are disagreements between the two Houses as to the terms of the Bill, messages may pass between them to seek agreement. If the terms cannot be agreed, the Bill may be laid aside or referred to a parliamentary committee for report. Under the Australian Constitution an unresolved Bill may be a trigger for

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CHAPTER 9

•

•

•

LEGISLATION

a double dissolution,12 but this leads to a general election.The double dissolution process is used rarely and generally only for important legislation.13 Once the Bill in identical terms passes both Houses or the single chamber of the Parliament, the Governor-General, state Governor in Council, Administrator14 or Chief Minister15 approves it and the Bill is said to have received the Royal Assent and becomes an Act. The time at which an Act enters into ‘force’ will vary —it may be specified in the Act itself, follow a default rule in the relevant interpretation legislation (see 9.60) or depend on proclamation by the Governor or Governor-General. Proclamations for state laws are published in the states’ government gazettes. Federal laws are proclaimed in the Government Notices Gazette (formerly the Commonwealth of Australia Gazette) which, since 2013, has only been published electronically on the Federal Register of Legislation (formerly known as ComLaw).16 In the mainland territories, notification in the respective territory gazettes substitutes for a proclamation. If the Bill is a private Member’s Bill, the Member sponsoring the Bill takes the place of the Minister in the processes described. Although rare, the number of such Bills is increasing and in 2018, for the Australian Parliament, numbered 555.17 At the time of writing, since Federation only 23 private member’s Bills have been passed. This relatively low number does not reflect the lack of influence of such Bills, as many of their elements are more often incorporated into government-sponsored legislation.

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Financial scrutiny of legislation 9.14

There are two key federal bodies which scrutinise policy proposals leading to legislation and government expenditure: the Parliamentary Budget Office (PBO) and the Senate estimates committees. The PBO was set up by statute in 2012 as an independent, non-partisan body providing analysis and costings of policy proposals, the budget and, significantly, of election promises. The initiative followed the global financial crisis in 2008 and was replicated in many countries, as well as in some Australian states and territories. The PBO’s service is extensively used by parliamentarians and this ensures policies are properly costed before being made public. The reports to parliamentarians can be kept confidential on request. The PBO also has a research arm which provides reports, in plain English, to the public on the budget and other fiscal matters. The role of the PBO is to aid the democratic 12 13

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15

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17

Australian Constitution s 57. The latest example related to the Bills for the Australian Building and Construction Commission reforms and led to a double dissolution election on 2 July 2016. The Northern Territory and Norfolk Island each has an Administrator who performs the role of the Governor or Governor-General. In the Australian Capital Territory, the Chief Minister publishes a notice of the passage of the Bill in the Australian Capital Territory Gazette. The Bill is then enacted: see 9.13. Available at . See also 19.8 and 19.19. Parliament of Australia, ‘Info sheet 6 – Opportunities for private Members’ (Web Page) .

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9.15

process by making information available to assist voters, Members of Parliaments and parliamentary committees in understanding the financial implications of budgets and policies, thus contributing to increased accountability and transparency of government.18 Senate Legislation committees — known colloquially as ‘estimates committees’ — some eight in total, also contribute to financial accountability. The committees examine income and expenditure of government departments and other government agencies. Committee membership comprises six senators: three from government, two from the opposition and one from a minor party or independent. The committees meet three times: immediately after the budget, towards the end of the calendar year, and in February the following year.The hearings are open to the public and are televised.The relevant Minister, or the senator representing the Minister, and senior officials attend to answer questions about expenditure and departmental operations. Reports by the committees include issues of concern. Questions may reveal practices or expenditure not otherwise identified and the estimates committees’ hearings often test political and financial rectitude. Committee recommendations have contributed to legislation being amended or withdrawn.

Legislation: frequently asked questions 9.16

The most frequently asked questions about legislation are where to find when a law takes effect — that is, when does the Act or subordinate law, or a part of it, commence; which version of an Act or subordinate law should be used; and where the key words and phrases are defined.The following material provides the answers to these questions. Many of these answers are found in the relevant jurisdiction’s interpretation Act.19 These Acts perform a number of key functions: providing default rules on such matters as commencement, amendment and repeal of statutes; specifying what comprises an Act; providing definitions of often repeated terms; and also providing guidance on interpretative principles: see Chapters 10 and 11. Other questions, such as whether the Act is the latest version, and what were the terms of the Act on a particular date, are answered in Chapter 19.

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Commencement of statutes

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9.17

It may be critical to know the day on which an Act, subordinate law or a provision in the legislation came into force. Guilt or innocence, entitlement to a pension, or eligibility for a licence may turn on the answer.The rules concerning commencement of statutes differ between jurisdictions and are discussed below. The moment from which the assent to an Act applies is now spelled out in interpretation legislation. For example, it may be the first moment of the day on which the assent has been given or notified, or the moment immediately preceding the specified day.20

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See Parliamentary Service Act 1999 (Cth) pt 7 div 2; Parliament of Australia, ‘About the PBO’, (Web Page) . Acts Interpretation Act 1901 (Cth); Legislation Act 2001 (ACT); Interpretation Act 1987 (NSW); Interpretation Act  1978 (NT); Acts Interpretation Act  1954 (Qld); Acts Interpretation Act  1915 (SA); Acts Interpretation Act 1931 (Tas); Interpretation of Legislation Act 1984 (Vic); Interpretation Act 1984 (WA). See, eg, Legislation Act 2001 (ACT) s 74; Interpretation Act 1987 (NSW) s 24. 5 PB 6 PB 0 LL ,

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9.18

9.19

9.20

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A distinction needs to be drawn between enactment, such as when Royal Assent is given, and commencement in operation or entry into force. Generally, an Act will commence operation at, or some time after, enactment. On rare occasions, an Act has retrospective operation, commencing prior to its enactment: see  9.31–9.33 and 13.9. Some legislation may even remain on the statute book indefinitely without being brought into force — it is enacted but never commences. An example is the Mental Health Act 1981 (WA). The Act was intended to replace the Mental Health Act 1962 but the 1981 Act was never brought into operation and was superseded by the Mental Health Act 1996 (WA). The more common practice, however, is for statutes either to commence on enactment or within a fixed time thereafter. The common law rule in England was that an Act was deemed to come into force on the first day of the parliamentary session in which it was enacted, unless another day was specified in the Act. In effect, that made the Act retrospective in operation. Perhaps for that reason the rule was changed by statute so that today, in England, an Act commences on the day on which it receives the Royal Assent, unless a contrary intention is apparent.21 Australia has also departed from the common law rule: see 9.31ff. The special rules for commencement of statutes in the Commonwealth and the states and territories follow. The dates specified in the discussion are default dates. That is, these dates apply when no dates of commencement are specified in the Act itself. However, it is common for a statute itself to specify its date of commencement or to nominate separate commencement dates for particular provisions. Alternatively, an Act will specify that it is to commence on a date to be proclaimed by the Governor, Governor-General or, in the Northern Territory and Norfolk Island, the Administrator. It is also quite common for the Act to provide that it will automatically come into effect within a certain period after the date of assent if it has not been formally brought into effect by another means. In the Australian Capital Territory, in the absence of the vice-regal office, the procedure is either to notify the date in the Australian Capital Territory Gazette or in the Australian Capital Territory register of legislation. The Act commences on the day specified.22 COMMONWEALTH Commonwealth statutes come into force 28 days after the date of the Governor-General’s assent unless another commencement date is specified in the Act.23 There are exceptions to this rule for Acts amending the Constitution — a rare event — and, formerly, for Bills required to be reserved for the Queen’s pleasure. Acts which amend the Constitution commence on the date of assent.24 Following the passage through Parliament of the Australia Acts (see  2.75 and 2.87–2.88), Australia became legally independent and hence the second exception, Bills reserved for the Queen’s pleasure, has, for the most part, become of historical interest only. Bills reserved for the Queen’s pleasure commenced on the date the Queen’s assent was notified in the Government Notices Gazette. Only 15 such Bills were reserved in the

LEGISLATION

21 22 23 24

33 Geo III, c 13 (1793). Legislation Act 2001 (ACT) s 30, ch 8. Acts Interpretation Act 1901 (Cth) s 3A(2). Acts Interpretation Act 1901 (Cth) s 3A(3).

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first 75 years of federation, two examples being the Flags Act 1953 (Cth) and the Royal Style and Titles Act 1973 (Cth). Two constitutionally significant examples of Bills which complied with that process were the Privy Council (Limitation of Appeals) Bill (Cth) (enacted in 1968) and the Privy Council (Appeals from the High Court) Bill (Cth) (enacted in 1975): see also 2.75 and 8.76ff.

9.21

STATES The rules differ between the states and territories. There is, however, a point of similarity in that after the passage of the Australia Act  1986 (Cth) and related legislation, the requirement that certain state Bills be reserved for Her Majesty’s pleasure was removed.25 Since 1986 no Bills of the Commonwealth or the states have to be reserved for the Queen’s signature. New South Wales and Western Australia

9.22

Statutes commence 28 days after the date of assent unless another date is specified.26 In Western Australia, for statutes assented to before 1 July 1984, if no commencement day was fixed, the date of operation was the date of assent. Queensland and South Australia

9.23

In these states a statute commences on the day on which it receives the Royal Assent, unless a contrary intention appears in the statute.27 Tasmania

9.24

The general rule is that Tasmanian statutes assented to before 1 January 1982 commenced on the date of assent. Acts assented to on or after that date come into effect 14 days after the date of assent unless another day is specified.28 Victoria

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9.25

TERRITORIES A distinction needs to be made between those statutes made for the territories before selfgovernment, and those made since. Formerly the territories’ principal form of legislation was called an ordinance. Ordinances commenced on the date specified in the ordinance or, if none was specified, on the date the ordinance was notified in the Government Notices Gazette.

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9.26

In Victoria an Act commences on the day specified either in the Act itself or in a proclamation.29

1

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Australia Act 1986 (Cth) s 9. Interpretation Act 1987 (NSW) s 23; Interpretation Act 1984 (WA) s 20. Acts Interpretation Act 1954 (Qld) s 15A; Acts Interpretation Act 1915 (SA) s 7. Acts Interpretation Act 1931 (Tas) s 9. Interpretation of Legislation Act 1984 (Vic) s 11. 5 PB 6 PB 0 LL ,

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LEGISLATION

Australian Capital Territory On self-government in 1989, Australian Capital Territory enactments were renamed Acts. 9.27 From 1989 until 2002, unless another date was specified, Acts passed by the Australian Capital Territory Legislative Assembly commenced on the date of notification in the Australian Capital Territory Gazette.30 Since 28 May 2002, unless the Act provides otherwise, the Act commences the day after notification in the legislation register, the gazette, a government website or other appropriate place specified by parliamentary counsel.31 Northern Territory In the Northern Territory, Acts assented to by the Administrator of the Territory generally come into effect on the date assent is signified by the Administrator. If the Act is reserved for assent by the Governor-General, it commences on the date the assent is notified in the Northern Territory Gazette.32

9.28

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OTHER COMMENCEMENT DATES Different commencement dates may be specified for different parts of an Act to allow 9.29 for the completion of administrative steps necessary to bring the Act into operation (for example, the making of regulations, or the appointment of staff), or for political reasons. Therefore, an Act prohibiting ‘unlawful assembly’ may be passed, but remain unproclaimed until emergency circumstances arise in which the powers are needed. An example of a proclamation in the Victoria Government Gazette appears below.

30 31 32

Australian Capital Territory (Self-Government) Act 1988 (Cth) s 25. Legislation Act 2001 (ACT) ss 28, 73. Northern Territory (Self-Government) Act 1978 (Cth) ss 7–8; Interpretation Act 1978 (NT) s 6.

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Revived (or extended) statutes and sunset clauses 9.30

sunset clause: a provision which states that the Act is to cease to operate after a specified, fixed period

A special kind of commencement date occurs where statutes are revived. Reviving statutes is uncommon. It is a device employed, for example, when a statute which has been repealed is brought into force again for a specified period. The commencement date and usually the expiry date are specified in the reviving Act. An example is the Road Obstructions (Special Provisions) Revival and Amendment Act 1979 (NSW), which provided that the Road Obstructions (Special Provisions) Act  1979 (NSW) should be revived from time to time, by Order in Council, for periods of up to three months.The reviving statute permitted the reactivation, as needed, of a repealed Act which had dealt with the removal from roads of abandoned cars. Reviving or extending the operation of a statute may also be required when it has a sunset clause. If the ‘sunset’ is timed to occur before the Act has ceased to be useful, a reviving statute may be needed to continue the statute in operation. An example of a sunset clause is s  34Y of the Australian Security Intelligence Organisation Act  1979 (Cth) which provided that the controversial ‘Division 3 — Special powers relating to terrorism offences’, added by the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003, was to cease three years after its commencement on 23 July 2003 — subject, of course, to any reviving or extending legislation. As it happened, div 3 of the 1979 Act was substantially reworked by the Australian Security Intelligence Organisation Legislation Amendment Act  2006, commencing 20  June 2006. ASIO’s special powers remained, strengthened in some respects, although with certain clarifications. The sunset clause, now s 34ZZ, has been amended four times as of August 2020 and at that time read: ‘This Division ceases to have effect on 7 September 2020.’ Retrospective commencement

9.31

In general, legislation operates prospectively; that is, it applies only to events occurring after it comes into operation. The justification for this rule is one of fairness. Dixon CJ has expressed this in the following terms:

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The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events. It is left to the court, if the retrospective operation of legislation is challenged, to decide on the degree of unfairness or injustice.33

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Parliament may, however, specify that a statute is to operate retrospectively so that it also applies to events which occurred before it commenced. An example of an express retrospective commencement occurs in the Town and Country Planning (Amendment) Act 1984 (Vic), most provisions of which commenced on either 3 June or 2 July 1984. Section  2(2), however, provided: ‘Section  15 shall be deemed to have come into operation on 3 November 1980’. It is increasingly common to encounter amendments to major legislation such as the Social Security Act  1991 (Cth) that are designed to

33

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Maxwell v Murphy (1959) 101 CLR 629, 637–8, citing Australian Education Union v General Manager of Fair Work Australia (2012) 246 CLR 117 [31]–[32]. 5 PB 6 PB 0 LL ,

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complement original provisions in the Act and therefore come into operation from the time of commencement of the complementary section or part. Although it is customary to regard retrospective legislation as unfair because it may result in hardship to people relying on the existing state of the law — indeed there is a common law presumption against retrospectivity (see  13.9) — retrospective operation is not always detrimental.34 Retrospective commencement of a statute may be required to avoid confusion or social dislocation by validating action which has already occurred and which is technically unlawful or of doubtful validity. For example, in Phillips v Eyre35 Willes LJ commented:

LEGISLATION

9.32

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Similarly, when the High Court in Re Wakim; Ex parte McNally37 decided that, for constitutional reasons, the states could not refer matters to the Federal Court, an Act 38 was passed validating the outcome in cases that had been heard and decided, thus avoiding the need for the parties to relitigate the matter in a state court. Another type of validating (or declaratory) statute is an Act which corrects an earlier Act. Such Acts are often expressed to commence from the date of commencement of the earlier Act. An example of a validating statute is the Powers of Attorney Act 1980 (NT), which repealed the Powers of Attorney Act 1979 (NT) because it contained a mistake (‘legal incapacity’ was defined without reference to persons) and did not, therefore, reflect the intention of the Northern Territory Legislative Assembly. Even when a validating statute makes no express provision for retrospective commencement, a court may conclude that, as a matter of implication, the purpose or object of a statute requires that it should operate retrospectively. Again, courts tend to be unwilling to so find when the result will detrimentally affect someone’s rights, but may do so when the matters are of an administrative nature or relate solely to procedure not affecting rights: see 13.9.

34

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One instance of retrospective legislation obviously just, to render valid the acts of persons who had fallen honestly into error, and by which infinite actions were killed in embryo, may suffice. When the result of the judgment, finally affirmed by the House of Lords, in The Queen v Millis 10 Cl & F 534 was to declare null and void numerous marriages celebrated in Ireland by Presbyterian ministers and others not episcopally ordained, one effect of the decision was to disclose, by the new light thrown upon the relations of families previously supposed to be legitimate, a prospect of vast and interminable litigation, springing from a host of vested rights of action of every description.This result was averted (in so far as it was possible without making persons liable to prosecution who were not so liable before) by the Acts 5 & 6 Vict c 113, 6 & 7 Vict c 39, and 7 & 8 Vict c 81, s 83. By these beneficial and just statutes the past marriages were ratified and confirmed as from the beginning, for it was in terms enacted that they should ‘be adjudged and taken to have been and to be’ of the same force and effect as if canonically had and solemnized.36

35 36

37 38

9.33

See, eg, Legislation Act  2001 (ACT) ss  75A–76, which governs retrospective commencement of an Australian Capital Territory statute, and requires that the statute ‘clearly indicates’ retrospective operation. (1870) LR 6 QB 1. Ibid 24–5. For the background to Phillips v Eyre, see Rande W Kostal, A Jurisprudence of Power: Victorian Empire and the Rule of Law (Oxford University Press, 2005). (1999) 198 CLR 511, discussed at 7.42. Jurisdiction of Courts Legislation Amendment Act 2000 (Cth).

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Amendment and repeal of statutes 9.34

9.35

omnibus legislation: the name given to an Act which amends a number of other Acts

REPEAL OF STATUTES Change to legislation is frequently effected by statutes that repeal earlier Acts. The repeal may be achieved by express repeal or by repeal by implication.

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9.36

AMENDING LEGISLATION Changing social or technological circumstances, such as an increase in the number of single-parent families, new methods of gambling on the internet, or the need to protect against identity theft, require amendment to legislation. The complexity of many statutes may also necessitate amendment to avoid unintended consequences of the legislation as originally drafted.The more detailed the statute, the more likely it is that it will need to be frequently amended. For example, the Fisheries Regulation Act 1995 (Qld), which provides for the quotas of various species of fish which may be caught and the licensing scheme which decides who may catch them, is often amended more than once a year. Statutes may be changed by subsequent legislation. This is done by substituting, inserting, omitting or repealing words or provisions. Amendments may be made by an Act with the same title as the Act to be amended with the addition of the word ‘Amendment’. For example, the Alice Springs to Darwin Railway Act 1997 (SA) was amended by the Alice Springs to Darwin Railway (Financial Commitment) Amendment Act  1999 (SA) to provide for the effect on the proposed financial arrangements for the railway of the introduction by the Commonwealth of the goods and services tax (GST). Amendments may also be effected by statutes known as omnibus legislation: see 9.75. For example, the Statute Law Revision (Penalties) Act 1995 (Tas) amended 61 regulations imposing penalties relating to subjects as diverse as Aboriginal relics, fruit and vegetable sales, hairdressers, marine equipment, legionnaire’s disease and scaffolding.

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Express repeal An amending statute that states it repeals a named Act or Acts, or parts thereof, is expressly repealing the nominated statute or provisions. The statement appears in the text of the repealing statute or, if there are several Acts to be repealed, these may be listed in a schedule to the repealing statute. A schedule of the express repeals effected by the Mental Health Act 1958 (NSW), reprinted as at 27 September 1978, is an example. As noted at 9.30, some statutes are self-amending; that is, they contain a provision that the statute (or a particular provision of it) is to be in force only for a finite period, at the end of which it ceases to have effect. Such a statute is known as ‘sunset legislation’ (and the specific sections as sunset clauses) and the express repeal occurs automatically. An example was s 36 of the former Human Rights Commission Act 1981 (Cth), which provided:

9.37

reprint: a document comprising the Act as originally passed, with subsequent amendments incorporated within the text of the statute itself

(1) This Act, unless sooner repealed, shall cease to be in force at the expiration of 5 years after the date of commencement of this Act. (2) For the purposes of section 8 of the Acts Interpretation Act 1901, when this Act ceases to be in force by virtue of sub-section (1), it shall thereupon be deemed to have been repealed by an Act other than this Act.

The 1981 Act was proclaimed on 10 December 1981, Human Rights Day. The Act was effectively replaced by the Human Rights and Equal Opportunity Commission Act  1986 (Cth) which commenced on 10 December 1986, now renamed the Australian Human Rights Commission Act 1986 (Cth). While the 1981 Act would have been repealed on that day of its own motion, it was also expressly repealed by s 4 of the Human Rights and Equal Opportunity Commission (Transitional Provisions and Consequential Amendments) Act 1986, also commencing on 10 December 1986.

A later Act is deemed to repeal an earlier Act to the extent of any inconsistency between the two. Since it is assumed that Parliament does not intend to repeal earlier Acts unless they are specifically referred to, courts are reluctant to imply repeals and will do so only if the inconsistency is unequivocal. Before the courts will find an implied repeal they must be satisfied that the terms of the two enactments are so inconsistent that they cannot coexist. The process of statutory construction begins by seeking to read the provisions of the two Acts so that they do not conflict. It is only where the provisions are ‘wholly incompatible’,39 where the consequences of the operation of the two would lead to ‘wholly absurd consequences’,40 or ‘if the entire subject-matter was taken away by the subsequent statute’41 that an implied repeal will be accepted. If a construction that would allow some operation to both enactments is possible, then the courts will adopt that construction:

9.38

That proposition is only an instance of a more general rule, that is, that where the provisions of a particular Act of Parliament dealing with a particular subject matter are wholly inconsistent with the provisions of an earlier Act dealing with the same subject matter, then the earlier Act is repealed by implication. It is immaterial whether both Acts

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Implied repeal

39 40 41

R v Industrial Commission of South Australia (1986) 41 SASR 471, 478–9. Ibid. Ibid.

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are penal Acts or both refer to civil rights. The former must be taken to be repealed by implication. Another branch of the same proposition is this, that if the provisions are not wholly inconsistent, but may become inconsistent in their application to particular cases, then to that extent the provisions of the former Act are excepted or their operation is excluded with respect to cases falling within the provisions of the later Act.42

9.39

The courts have developed principles of statutory interpretation to help determine whether there has been an implied repeal. In the absence of clear words, general provisions of a later Act do not impliedly repeal specific provisions of an earlier Act (generalia specialibus non derogant: see 12.27). The maxim does not apply if it is clear from the terms of the later general Act that Parliament did intend to repeal the earlier specific provision. Where the maxim does apply, the earlier specific provisions, despite any apparent inconsistency with the later general provisions, continue to operate. Legislation couched in wideranging terms, such as anti-discrimination laws or privacy laws, may have unintended consequences for existing, more specific, legislation and will attract the maxim. Effect of repeal

9.40

Where an Act repeals another Act, interpretation legislation in all jurisdictions preserves rights and liabilities which arose under the repealed Act. For example,43 the Acts Interpretation Act 1901 (Cth) s 7(2) states: If an Act, or an instrument under an Act, repeals or amends an Act (the affected Act) or a part of an Act, then the repeal or amendment does not: … (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the affected Act or part; …

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Provisions such as this protect only what are termed ‘substantive’ rights and liabilities which have accrued. ‘Substantive’ rights are contrasted with ‘procedural’ safeguards, which are not so protected. Thus a right to a particular procedure at trial is not acquired when the person is charged, but only when the occasion for its application arises, namely, at the time of trial.44 However, a procedure by means of which an offence is proved (for example, the need for a breath-test certificate at the time the defendant is charged), although not preserved under the relevant interpretation Act, is saved by implication.45 Repeal of a repealing Act

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9.41

In general, if a repealing Act is itself repealed, the Act which was repealed by the first repealing Act is not revived.The interpretation Acts of all jurisdictions contain a provision to this effect. For example, s 28 of the Interpretation Act 1987 (NSW) states:

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An Act or statutory rule that has been repealed by some other Act or statutory rule is not revived merely because the other Act or statutory rule is subsequently amended or repealed or subsequently ceases to have effect.

43

44 45

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Goodwin v Phillips (1908) 7 CLR 1, 7 (Griffith CJ), quoted with approval in Re Applications of Shephard [1983] 1 NSWLR 96, 106 (Yeldham J). See also Legislation Act 2001 (ACT) s 84; Interpretation Act 1987 (NSW) s 30; Interpretation Act 1978 (NT) s 12; Acts Interpretation Act 1954 (Qld) s 20; Acts Interpretation Act 1915 (SA) s 16; Acts Interpretation Act 1931 (Tas) s 16; Interpretation of Legislation Act 1984 (Vic) s 14; Interpretation Act 1984 (WA) s 37. See Rodway v The Queen (1990) 169 CLR 515, discussed at 13.16. Sutton v Bradshaw (1987) 6 MVR 257; Yrttiaho v Public Curator (Qld) (1971) 125 CLR 228. 5 PB 6 PB 0 LL ,

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For discussion of further complexities of repeal see Further reading. DISALLOWANCE OF ACTS OF THE TERRITORIES A consequence of the subordinate status of the territories was that their Acts could be disallowed. The Governor-General retained, until 2011, this limited residual role in the territories’ legislative process. For example, in the Australian Capital Territory the power was exercised in 2006 in relation to the Civil Unions Act  2006 (ACT).46 Disallowance operated from the date of notification in the then Commonwealth of Australia Gazette.47 A similar rule applied in relation to the Northern Territory where the Governor-General could disallow a law within six months of its assent. The effect of disallowance was the same as repeal.48 The disallowance power was removed in November 2011.49

9.42

Formal structure of a statute 9.43

The structure of a statute or Act follows a traditional pattern.A statute comprises a number of parts, each of which is considered in the material that follows. It is not necessarily the case that all materials in a printed or digital Act are considered part of the Act for the purposes of statutory interpretation and the application of the law. In all jurisdictions there are statutory provisions that indicate whether certain contents of a statute, as printed, form part of the statute or not: see 9.50ff. These technical rules, and others expressed in interpretation legislation, can be expressly excluded by statute.

9.44

DATE This is generally the date on which the statute received assent. The Hawkers Act Repeal Act 1986 (SA), shown below, is an example. In the Australian Capital Territory, in the absence of a head of state for the territory, the date is the day after the Act was notified in the Territory Gazette, although the name and commencement day provisions of the Act commence on the notification date.50 Note that the date of assent may not be the date of commencement of the Act or of particular provisions of the Act: see 9.18.

9.45

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NUMBER A modern statute is numbered and may be identified by its number alone, although almost invariably identification is by reference to the long or short title. It is not usual to include the number when citing statutes: see 21.32.

46 47 48 49 50

Commonwealth, Gazette: Special, No S 93, 14 June 2006. For further discussion see 3.20 and 9.9 n 7. Australian Capital Territory (Self-Government) Act 1988 (Cth) s 35. Northern Territory (Self-Government) Act 1978 (Cth) s 9. Territories Self-Government Legislation Amendment (Disallowance and Amendment of Laws) Act 2011 (Cth). See Legislation Act 2001 (ACT) ss 73, 75.

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LONG TITLE In most jurisdictions, an Act has a long title and a short title. The long title commonly states the purpose of the statute and usually commences with the words ‘An Act to …’. Since 1 September 1985 Victorian Acts do not have long titles.51 A Victorian Act is cited by its title or its short title if passed before 1985: see 21.32. Examples are provided in Exercise 10. SHORT TITLE, TITLE OR NAME This is the identifier normally used when referring to a statute. A statute usually contains a provision providing for its short title: see 12.13. An example is the Hairdressers Act 1988 (SA) s 1. In New South Wales and the Australian Capital Territory the title is the name of the Act. PREAMBLE Where used, and this is rare, the function of a preamble is to state the reason the statute has been enacted. Preambles are used mostly for legislation with a social purpose. Accordingly, discussion of interpretation by reference to purpose or object and context applies to preambles as well as to long titles: see 12.15. Preambles generally commence with the word ‘Whereas’. A preamble can be a valuable aid when the meaning of a word or expression in the statute is unclear. A preamble is part of a Commonwealth Act52 and of Acts of the Australian Capital Territory,53 South Australia54 and Western Australia.55 For Victorian legislation, a preamble

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is not expressly part of an Act but may be considered relevant for interpreting the statute.56 See further discussion in 11.28. SECTIONS A statute is commonly divided into sections. A section may be further divided into subsections, paragraphs and subparagraphs, and even further into clauses and subclauses. However, determining the meaning of sections that have been divided to that extent becomes difficult. Drafting of that kind is anathema to proponents of the ‘plain English’ movement: see 9.62ff. An example of the division of a section occurs in s 3 of the Guide Dogs and Hearing Dogs Act 1967 (Tas), which provides:

9.49

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(1) A person who is blind or vision impaired, deaf or hearing impaired or a trainer — (a) is entitled to be accompanied by a guide dog into any public place or onto any public passenger vehicle; and (b) does not commit an offence by taking a guide dog into or onto, or permitting a guide dog to remain in or on, a public place or public passenger vehicle.

SECTION HEADINGS, NOTES AND EXAMPLES In most modern statutes there is a short heading above each section. These headings are intended to provide some guide to the contents or the legislative history of the section. Footnotes or endnotes are also added for the convenience of the reader. They are usually inserted by parliamentary drafters, are not debated by Parliament and often do not form part of the Act. Formerly marginal notes served this purpose. In more recent and lengthy Acts, such as the Telecommunications Act 1997 (Cth), headings to paragraphs are also used. There is no universal rule as to whether headings to sections are part of an Act. In New South Wales, South Australia, Tasmania and Western Australia, interpretation legislation provides that headings to sections, marginal notes, footnotes or endnotes shall not be part of legislation.57 In the Australian Capital Territory, Northern Territory, Queensland and Victoria, interpretation legislation provides that headings to sections created after a certain date are part of the Act, but that footnotes and endnotes are not.58 Since 2011, the Acts Interpretation Act 1901 (Cth) has contained a provision unique to that jurisdiction: ‘All material from and including the first section of an Act to the end of either the last section or the last schedule, is part of the Act’. In all jurisdictions except South Australia, the interpretation legislation contains provisions59 that cover the interpretive uses to which headings to sections, marginal notes,

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9.50

9.51

Interpretation of Legislation Act 1984 (Vic) s 35(b)(i). See Interpretation Act 1987 (NSW) s 35(2)(c); Acts Interpretation Act 1915 (SA) s 19(2); Acts Interpretation Act 1931 (Tas) s 6(4); Interpretation Act 1984 (WA) s 32(2). See Legislation Act 2001 (ACT) ss 126(2), 127(1); Interpretation Act 1978 (NT) s 55(2), (6); Acts Interpretation Act 1954 (Qld) s 14(2), (7); Interpretation of Legislation Act 1984 (Vic) s 36(2A), (3). See Acts Interpretation Act 1901 (Cth) s 15AB(2)(a) (discussed further at 11.21); Legislation Act 2001 (ACT) s 142(1); Interpretation Act 1987 (NSW) s 34(2)(a); Interpretation Act (NT) s 62B(2)(a); Acts Interpretation Act 1954 (Qld) s 14B(3)(a); Acts Interpretation Act 1931 (Tas) s 8B(3)(a); Interpretation of Legislation Act 1984 (Vic) s 35(b)(i); Interpretation Act 1984 (WA) s 19(2)(a).

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9.52

footnotes and endnotes may be put as extrinsic materials, that is, materials external to the Act itself (even though they are on the printed page): see 10.6 and Chapter 11. The inclusion of examples is increasingly common in legislation; examples are generally part of the Act but are not exhaustive, nor can they limit the meaning of the section where they appear.60

9.53

CHAPTERS, PARTS, DIVISIONS, SUBDIVISIONS AND THEIR HEADINGS It is common to arrange groups of sections in lengthy statutes into chapters, parts, divisions and subdivisions.These are usually provided with headings which serve as titles or subtitles to the particular group of sections: see 12.10. For example, the first few chapters of the Anti-discrimination Act 1991 (Qld) are arranged as follows:

extrinsic materials: documentary materials that exist outside the statute being interpreted, which can shed light on its content

Chapter 1 — Preliminary Chapter 2 — Discrimination Prohibited by this Act (Complaint) Part 1 — Act’s Anti-Discrimination Purpose Part 2 — Prohibited Grounds of Discrimination Part 3 — Prohibited Types of Discrimination Part 4 — Areas of Activity in which Discrimination is Prohibited. Division 1 — Part’s Structure Division 2 — Work and Work-Related Areas Subdivision 1 — Prohibitions in Work and Work-Related Areas. Subdivision 2 — Exemptions for Discrimination in Work and Work-Related Areas …

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The interpretation Acts of the Commonwealth and each state and territory all contain a provision to the effect that headings to Chapters, Parts and Divisions are part of an Act.61

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TABLES OF CONTENTS AND INDEXES In many statutes, especially long ones, a table of contents appears at the front of the statute and there may be an index at the end. PURPOSE OR OBJECTS CLAUSES It is increasingly common for statutes to contain a purpose or objects section. As with a preamble, the purpose clause enables the user to more clearly determine the reason(s) the legislation was passed. In turn this may shed light on the context for the interpretation of the statute, or the meaning of particular provisions. The use of such provisions

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61

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Acts Interpretation Act 1901 (Cth) s 13(1); Legislation Act 2001 (ACT) s 126(4); Interpretation Act 1978 (NT) s 55(4); Acts Interpretation Act 1954 (Qld) s 14(3); Acts Interpretation Act 1915 (SA) s 19(1)(c); Interpretation of Legislation Act 1984 (Vic) s 36(3A). Interpretation legislation in New South Wales, Tasmania and Western Australia makes no explicit mention of examples. See Acts Interpretation Act 1901 (Cth) ss 13(1), 13(2)(d); Legislation Act 2001 (ACT) s 126(1); Interpretation Act 1987 (NSW) s 35(1)(a); Interpretation Act 1978 (NT) s 55(1); Acts Interpretation Act 1954 (Qld) s 14(1); Acts Interpretation Act 1915 (SA) s 19(1)(b); Acts Interpretation Act 1931 (Tas) s 6(2); Interpretation of Legislation Act 1984 (Vic) s 36(1)(a); Interpretation Act 1984 (WA) s 32(1). See also 9.60. 5 PB 6 PB 0 LL ,

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complements the purposive approach to statutory interpretation: see  10.18ff. In every Australian jurisdiction, finding the purpose of an Act or section is a mandatory step when construing legislation. For example, s  1 of the Legal Profession Uniform Law Application Act 2014 (Vic) provides: Purposes The purposes of this Act are— (a) (b) (c) (d) (e)

to apply the Legal Profession Uniform Law as a law of Victoria; and to provide for certain local matters to complement that Law; and to repeal the Legal Profession Act 2004; and to make transitional arrangements; and to make consequential amendments to other Acts.

9.56

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SCHEDULES These are appendices to statutes. They are often used in modern statutes to set out tables, forms, lists, or international conventions to which reference has been made in the body of the statute. For example, the Environment Protection (Sea Dumping) Act 1984 (SA) contains three schedules which include the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter and other relevant international instruments. For further discussion of schedules, see 12.21–12.22. The interpretation legislation of each jurisdiction except New South Wales provides that a schedule is part of an Act.63 The effect of these provisions is implied in New South Wales.64 Drafters frequently find it convenient to include in schedules items that can be set out in tabular form or that are consequential upon the issues dealt with by the sections of the Act. The amendments to principal Acts are frequently set out in schedules to the amending Acts. In some cases the bulk of the substantive provisions are contained in a schedule. For example, the Criminal Code Act 1899 (Qld) contains eight sections but sch 1 of the Act contains ss 1–753 of the Criminal Code (Qld).

62

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INTERPRETATION SECTIONS Most statutes contain their own dictionary of particular words or terms used in the statute. Definitions usually appear in the early sections of the Act although a word or expression used only in one division, for example, is often defined at the beginning of that division. In some jurisdictions, longer definition sections may appear at the end of the Act in a schedule or dictionary.62 All jurisdictions now embolden in the text of the Act the words or expressions in the definition section(s). This makes it easier to identify specially defined words: see 12.28.

63

64

9.57

See, eg, Patents Act 1990 (Cth) s 3, sch 1; Evidence Act 1995 (Cth) s 3, Dictionary; Income Tax Assessment Act 1997 (Cth) s 995.1. Acts Interpretation Act  1901 (Cth) s  13(1) (discussed at 12.11); Legislation Act  2001 (ACT) s  126(5); Interpretation Act 1978 (NT) s 55(5); Acts Interpretation Act 1954 (Qld) s 14(5); Acts Interpretation Act 1915 (SA) s 19(1)(a); Acts Interpretation Act 1931 (Tas) s 6(3); Interpretation of Legislation Act 1984 (Vic) s 36(2); Interpretation Act 1984 (WA) s 31(2). Interpretation Act 1987 (NSW) s 64A.

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EXERCISE 10: READING AND IDENTIFYING PARTS OF A STATUTE A) An extract from the Commonwealth Immigration (Guardianship of Children) Act 1954 appears below. In addition, use the material in Chapter 19 to help locate the following Acts in an electronic database: • Notification of Births Act 1915 (NSW) (now repealed). • Australia Acts (Request) Act 1999 (WA). For each of the Acts, answer the following questions: 1. What is the short title/title? 2. What is the number? 3. What is the long title? 4. When did the principal or amending Act come into force? (Note: different provisions may come into force on different dates.) 5. Has it been reprinted or is it consolidated? If yes, as at what date and up to what number Act? 6. Does it have a table of contents? 7. Does it have a schedule or schedules? 8. Does it have an interpretation or definition section? If yes, which section(s)? 9. Does the interpretation section(s) refer to the whole of the Act or only to part? 10. Write down (a)  an open definition (ie an ‘includes’ definition); (b)  a closed definition (ie a ‘means’ definition). 11. (a) Does it authorise regulations (or other delegated legislation)? Cite section(s) and or subsection(s). (b) If yes, by whom may the regulations be made? Cite section(s) and subsection(s). (c) State one subject about which regulations may be made. 12. Does it cross-refer to other legislation? Identify one such Act by its short title.

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9.59

B) Locate the Australia Security Intelligence Organisation Act 1979 (Cth) in an electronic database. Part 3 div 3 had a sunset clause (s 34ZZ). As at the time of this volume’s printing it was due to expire on 7 September 2020. In addition to answering questions A) 1–12 above, answer the following questions: 1. Is pt 3 div 3 still in force? 2. If yes, what is the new expiration date? Which Act amended the ‘sunset’ clause (you will find it helpful to consult the ‘Notes’ section to the Act).

Legislative dictionaries — interpretation statutes

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The parts of a statute, including their interpretation sections, can be useful in interpreting Acts and subordinate laws: see Chapter 12. Equally useful is the interpretation legislation in each jurisdiction. Such interpretation Acts are ‘like a dictionary and manual to use when reading and interpreting’ statutes.65 In addition to providing general rules for interpretation and various default rules — such as in relation to the composition of a statute (see  9.43ff), commencement (see  9.17ff) or repeal (see  9.36ff) — these external aids or dictionaries provide default definitions for the interpretation of terms that commonly recur in legislation and serve to make legislation shorter, less complex and more consistent. See, for example, the Acts Interpretation Act 1901 (Cth) s 2B, which contains definitions of constitutional terms such as ‘the Commonwealth’, ‘Constitution’, ‘Executive Council’, ‘Proclamation’, ‘Territory of the Commonwealth’; definitions of judicial terms such as ‘Federal Court’, ‘Court exercising federal jurisdiction’ and ‘Court of summary jurisdiction’; and definitions of socially relevant terms such as ‘de facto partner’. The Legislation Act 2001 (ACT), the Territory’s interpretation legislation, contains a long set of definitions in a dictionary at the end of the Act. Other useful aids to interpretation which are found in the interpretation statutes in each jurisdiction are the provisions stating that words in the singular include the plural and vice versa, and words importing a gender include every other gender.66 These default definitions may be displaced by an indication of a contrary statutory intention. EXERCISE 11: USING INTERPRETATION LEGISLATION

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Use the Acts Interpretation Act 1901 (Cth) to answer these questions in relation to the Meat and Livestock Corporation Act 1991 (Cth), a fictitious Act, extracts from which appear below. Since there is some overlap between interpretation provisions, some of the questions can be answered by referring to more than one provision. 1. Fred Smith has certified a document under the Meat and Livestock Corporation Act  1991 (Cth) s  3(4). He was authorised to do so by Jack Johnson who at the time was Acting Secretary of the Department of Primary Industry. The

1

65 66

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3.

4.

Copyright © 2020. LexisNexis Butterworths. All rights reserved.

5.

6.

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authorisation was still on tape waiting to be typed after Jack had dictated it. New administrative arrangements in an order made by the Governor-General, before Fred had been authorised by Jack, had changed the name of the Department of Primary Industry to the Department of Rural Resources and Fisheries. (a) Was Jack permitted to authorise Fred to certify documents under s 3(4)? (b) Was the authorisation ‘in writing’ as required by s 3(4)? (c) What was the effect, if any, of the change in Administrative Arrangements on s 3(4)? (a) In s 3(4) what do the words ‘Commonwealth’, ‘State’ and ‘Territory’ mean? (b) In s 3(6) who is ‘the Minister’? (c) In the definition of ‘edible offal’ in s 5, what does ‘prescribed’ mean? The corporation appoints a committee under s 16. (a) Was it required to do so? (b) It subsequently wishes to replace one of the appointees. Does it have the power to do so? Kanga Enterprises Pty Ltd applies for a licence under s 16B(1).The corporation refuses the application, saying that Kanga Enterprises is not a ‘person’ under s 16B(1). Is Kanga Enterprises a person? (a) The Minister under s 16H(6) has given only one direction to the corporation. It is argued that this single direction cannot be valid as s 16H(6) refers to more than one direction (‘directions’). Is this argument correct? (b) The direction refers to ‘heifers’. It is argued that this includes male bovine animals. Is this correct? (c) It is argued that as the direction is delegated legislation, the Acts Interpretation Act 1901 (Cth) does not apply. Is this correct? (d) The direction is required to be ‘served’ on the corporation. It is argued that as the direction was emailed to the company it has not been served. Is this correct? Kanga Enterprises is the proprietor of an abattoir. Under s  7 of the Animal Slaughter Levy Collection Act 1974 (Cth) certain amounts are payable by abattoir proprietors to the Commonwealth. (a) Assume s  7 is amended in 1984, 1990 and 1998 to provide for higher amounts. Kanga Enterprises argues that the amount referred to in the Meat and Livestock Corporation Act 1991 (Cth) s 34(2) is the original amount levied in 1974. Is this correct? (b) Assume the Animal Slaughter Levy Collection Act 1974 (Cth) was repealed in 1980 and re-enacted as the Animal Slaughter Levy Collection Act 1980. The re-enacted Act specifies in s 7 that a higher amount is to be paid than that specified in the 1974 Act. Kanga Enterprises argues that the amount referred to in the Meat and Livestock Corporation Act 1991 (Cth) s 34(2) is the original amount levied in 1974. Is this correct?

Creyke, Robin, et al. Laying down the Law, LexisNexis Butterworths, 2020. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6413182. Created from monash on 2021-02-08 12:44:35.

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Meat and Livestock Corporation Act 1991 (Cth) 3

(1) (2)

(3)

(4)

Copyright © 2020. LexisNexis Butterworths. All rights reserved.

(5)

(6)

The following Acts are repealed: Meat Industry Act 1974 (Cth); Meat Industry Act 1975 (Cth); Meat Industry Act 1979 (Cth). Upon the commencing date — (a) any rights, property or assets that immediately before that date were vested in the Board are, by force of this subsection, vested in the Corporation; and (b) the Corporation becomes, by force of this subsection, liable to pay and discharge any debts, liabilities or obligations of the Board that existed immediately before that date. An arrangement or contract entered into by or on behalf of the Board as a party and in force immediately before the commencing date continues in force, notwithstanding the repeal of the Acts specified in subsection (1), but that arrangement or contract has effect, on and after the commencing date, as if — (a) the Corporation were substituted for the Board as a party to the arrangement or contract; and (b) any reference in the arrangement or contract to the Board were (except in relation to matters that occurred before that date) a reference to the Corporation. An instrument or document that the Secretary to the Department of Primary Industry or an officer of that Department authorised by him in writing for the purpose of this subsection certifies to have been made, executed or given by reason of, or for a purpose connected with or arising out of, the operation of this section is not liable to stamp duty or other tax under a law of the Commonwealth or of a State or Territory. Where, immediately before the commencing date, proceedings to which the Board was a party were pending in any court, the Corporation is, by force of this subsection, substituted for the Board as a party to the proceedings and has the same rights in the proceedings as the party for which it is substituted. The Corporation shall, as soon as practicable after the commencing date, prepare and furnish to the Minister a report of the operations of the Board during the period that commenced on 1 July 1991 and ended immediately before the commencing date (in subsection (7) referred to as the ‘final period’), together with financial statements in respect of that period in such form as the Treasurer approves.

… 5

In this Act, unless the contrary intention appears — ‘edible offal’ means any edible portion, other than the flesh, of cattle, buffaloes, sheep, lambs, goats or other prescribed animals …

… 16 (1) The Corporation may appoint a committee to assist the Corporation in relation to a matter.

318

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(2) A committee appointed under this section shall consist of such persons, whether members of the Corporation or not, as the Corporation thinks fit. 16B (1) Subject to this Division, the Corporation may grant to a person a licence, in writing, to export meat from Australia or to export live-stock from Australia. (2) Nothing in subsection (1) shall be taken to prevent — (a) the granting to a person of both a licence to export meat from Australia and a licence to export live-stock from Australia; or (b) the issuing of directions under section 16H for the purpose of restricting the kind of meat or live-stock export business, as the case may be, that the holder of an export licence is to be permitted to carry on under the conditions to which the licence is subject. … 16H … (5) An export licence is subject to the condition that the holder of the licence shall comply with — (a) orders made under this section; and (b) such directions issued under this section (if any) as are from time to time given to him. (6) The Corporation shall, in exercising the powers conferred on it by this section, comply with such directions (if any) as are from time to time given to it, in writing, by the Minister.

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… 34 (1) There shall be paid to the Corporation out of the Consolidated Revenue Fund, which is appropriated accordingly, amounts equal to — (a) the amounts of levy received by the Commonwealth by virtue of paragraphs 6(1)(a), 6A(1)(a), 6B(1)(a), 6C(1)(a), 6D(1)(a), 6E(1)(a) and 6F(1)(a) of the Animal Slaughter Levy Collection Act 1974 (Cth); and (b) the amounts of charge received by the Commonwealth by virtue of paragraphs 7(1)(a), 8(1)(a), 9(1)(a), 10(1)(a) and 11(1)(a) of the Animal Export Charge Collection Act 1987 (Cth). (2) A reference in paragraph (1)(a) to amounts of levy received by the Commonwealth shall be read as including a reference to amounts received from the proprietor of an abattoir in accordance with section 7 of the Animal Slaughter Levy Collection Act  1974 (Cth) and amounts payable by way of penalty in accordance with section  9 of that Act in relation to amounts of levy referred to in that paragraph. (3) A reference in paragraph (1)(b) to amounts of charge received by the Commonwealth shall be read as including a reference to amounts payable by way of penalty in accordance with section 6 of the Animal Export Charge Collection Act 1987 (Cth) in relation to amounts of charge referred to in that paragraph. [Section  52 confers on the Governor-General a comprehensive regulation-making power for the purpose of giving effect to the Act.]

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Drafting statutes 9.62

PLAIN ENGLISH A movement to simplify statutory language and presentation began in Victoria in 1985 but has since been adopted in every jurisdiction. Drafting changes reflect the following principles: • Acts should be written in language which is simple but precise, direct and familiar; • unnecessary words should be avoided; and • sentences should not be longwinded or replete with qualifications and exceptions. As former Chief Justice Murray Gleeson said, however, the task is more subtle than that: We speak of plain language, and we all agree on its value. Yet the clearest method of communicating an idea depends upon the idea itself. A mismatch between the simplicity of language and the complexity of an idea may result, not in plain speech, but in confusion. It is an interesting exercise to ask how you might better state, in a brief general formula, the test for deciding what business expenditure would be an allowable deduction. Language is an imperfect instrument of communication, and we have to live with that imperfection.67

9.63

The aims of the plain English movement were described in these terms by Professor Ruth Sullivan, University of Ottawa, at the Legislative Drafting: Emerging Trends conference in Dublin in 2000:

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Plain Language Plain language drafting refers to a range of techniques designed to create legislation that is readable and easy to use by the relevant audience(s) for that legislation. At the level of vocabulary, plain language drafters try to use words and expressions that are familiar to everyone. Although technical language is sometimes necessary to achieve an acceptable level of precision, unnecessary jargon and gratuitous obscurity are eliminated. At the level of syntax, plain language drafters try to create sentence patterns that are easy for the average person to process. According to the experts, such sentences tend to be short, avoid embedding, and branch to the right. They rely on verbs rather than nouns, the active rather than the passive voice, and positive rather than negative formulations to state the intended law. At the level of structure, plain language drafters try to organise statutes in a clear and meaningful way.The sequencing of provisions is based on chronological order, logical order, order of importance or some other principle or combination of principles that is likely to make sense to the reader. Equally important, the structure of the statute is clearly revealed to the reader through use of headings and subheadings, marginal notes, transitions, tables of contents, summaries and the like. Plain language drafters also draw on the research and insights of experts in document design. They pay as much attention to fonts and white space as they do to choice of words. They try to devise methods of presenting material visually that will assist the reader to use the statute book effectively, and with minimum effort.

embedding: the practice of inserting a clause within a main clause

branch: to include multiple ideas within a single sentence

Murray Gleeson, ‘Justice Hill Memorial Lecture: Statutory Interpretation’ (Speech, Taxation Institute of Australia, Sydney, 11 March 2009).

67

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Legislation

Finally, plain language drafters try to provide information that will help readers to interpret the text. Such information typically takes the form of purpose statements, explanatory notes, examples, summaries, overviews and the like. The less familiar a reader is with legislation and its application by official interpreters, courts, tribunals and administrators, the greater is the need for context of this sort.68

OTHER DEVELOPMENTS IN DRAFTING Recognition of the problems referred to in the extract has led to many changes in drafting, such as directions as to how the Act or parts of the Act work. For example, the Military Rehabilitation and Compensation Act 2004 (Cth) s 3 provides:

9.64

3 Simplified outline of this Act This Act provides for: (a) compensation and other benefits to be provided for current and former members of the Defence Force who suffer a service injury or disease; and (b) compensation and other benefits to be provided for the dependants of some deceased members; and (c) certain assistance (such as child care, counselling or household services) to members or former members or to related persons of members, former members or deceased members. Before most benefits can be paid or provided, the Commission must accept liability for an injury, disease or death of a current or former member under Chapter  2. Chapters  3, 4, 5 and  6 set out what the benefits are. Assistance or benefits under Chapter  5A can be provided before the Commission has accepted such liability.

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The procedure for dealing with claims under this Act is dealt with under Chapters 7 and 8.The Military Rehabilitation and Compensation Commission and the administration of the Act are dealt with in Chapters 9 to 11. Provisions in this Act might be affected by the Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004.

Other examples include the explanatory notes in the Criminal Code which is located in the Schedule to the Criminal Code Act  1995 (Cth). Legislation may include examples of how a section is to be applied or interpreted: see 9.52. For example, s 86 of the Legislation Act  2001 (ACT) contains an example to illustrate what is meant by s 86(1): 86 Repealed and amended laws not revived on repeal of repealing and amending laws (1) If a law (the first law) is repealed by another law (the other law), the first law is not revived only because the other law is repealed.

R Sullivan, ‘Some Implications of Plain Language Drafting’ (Speech, Legislative Drafting: Emerging Trends Conference, Dublin, 6–7 October 2000); also in Statute Law Review 22 (2001) 175.

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Examples 1 Act A repeals Act B. Act A is repealed. The repeal of Act A does not revive Act B. 2 Act A repeals Act B. Act A is automatically repealed under this Act, section  89 (Automatic repeal of certain laws and provisions). The repeal of Act A does not revive Act B.

9.65

Another welcome change to drafting practices is the indication of the date of commencement of particular provisions in the text of the Act, in italics, at the end of the section, rather than the conventional listing in a commencement section.69 When there are multiple commencement dates within the one Act, this saves the reader from having to consult other sources such as Notes to the Act, annotations volumes and gazettes, to discover when the relevant provision came into force. Further innovations are shorter sections, greater use of headings, more definitions, running headers to pages, use of the possessive case and simpler expression. Progressively, drafters are producing more userfriendly legislation, but the improvements are not uniform. Associated with these innovations in drafting is an increasing awareness of the need to consult people likely to be affected by the legislation, both before drafting begins and as it is being developed. In particular, the making of subordinate laws is generally preceded by public consultation and the preparation of regulatory impact statements. These processes are, however, only mandatory in some jurisdictions.70 In jurisdictions in which these matters are not regulated by statute, administrative guidelines provide for the regulation-making processes.

Different types of statutes 9.66

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9.67

Statutes may be classified in various ways, for example, as Acts that are public, private, codes, uniform, consolidations, reprints or declaratory. PUBLIC ACTS AND PRIVATE ACTS In the Australian states, Acts are generally classified either as public or as private Acts, although private Acts are increasingly rare. Most state Acts are public Acts — that is, they apply to the public at large. Some public Acts, however, may be of restricted application. A private Act is passed for a particular individual or group. An example of a private Act from New Zealand is below. A private Act should be distinguished from  a private Member’s Bill, which is sponsored by an individual Member of Parliament rather than the government, but its content generally applies to the community at large.

See, eg, Migration Laws Amendment Act 1993 (Cth); Veterans’ Entitlements Act 1986 (Cth). See Legislation Act 2003 (Cth) pt 3 ch 3; Legislation Act 2001 (ACT) ch 5; Subordinate Legislation Act 1989 (NSW) pt 2; Subordinate Legislation Act 1992 (Tas) ss 3A, 56, 10; Subordinate Legislation Act 1994 (Vic) pt 2.

69 70

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CHAPTER 9

Legislation

The distinction between the two types of Acts is essentially that, under parliamentary standing orders, different procedures are required for the passage of public and private Acts. Some of the Australian legislatures, including the Commonwealth Parliament, lack such procedures.The difference used to be important. At common law a court would take judicial notice of a public Act while a private Act had to be formally proved.This rule has been changed by statute in most states, principally by doing away with the distinction and deeming all Acts to be public unless the contrary is shown, and by s 143(3) of the Evidence Act 1995 (Cth).71 Another reason for noting the distinction is that any ambiguities in a private Act will be construed against the person in whose favour the Act has been made. CODES A code is a statute that draws together both statute and case law on a topic. Perhaps the most famous example of a code is the Code Napoléon, which was a complete statement of French law at the time it was compiled: see 1.19. There are few codes in existence in Australia. Each of Queensland, Western Australia, Tasmania, the Northern Territory and the Commonwealth has a Criminal Code covering the law on indictable offences. It should be noted that the Criminal Codes are not exhaustive statements of the criminal law. For example, despite the existence of the so-called Criminal Code 1899 (Qld), the Drugs Misuse Act 1986 (Qld) also creates a number of very serious indictable offences.The Commonwealth Criminal Code Act 1995 is increasingly comprehensive, but a number of Acts Interpretation Act  1954 (Qld) s  11, but see  ss  12–12A; Acts Interpretation Act  1915 (SA) s  5; Acts Interpretation Act 1931 (Tas) s 6(7); Interpretation Act 1984 (WA) s 28.

71

9.68 indictable offence: a charge relating to a serious criminal offence, often heard before a judge and jury and involving heavy penalties; it is contrasted with a ‘summary’ charge (see 6.21 n 19)

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9.69

9.70

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9.71

serious offences such as treachery remain in the Crimes Act 1914 (Cth). The sale of goods and the partnership legislation in all Australian jurisdictions except the Commonwealth, and the corporations law throughout Australia, are also examples of codes. Although a code is a complete statement of the law when it is enacted, in time the code itself will require interpretation. Before long it will have to be read in conjunction with the case law it has generated, in addition to any statutory amendments. The courts have developed some special rules of interpretation in relation to codes. As a code is intended to be a comprehensive statement of the law on a particular topic, some courts have refused to look at prior cases when interpreting it. Other courts, however, have been prepared to look at authorities where there is an ambiguity in the text or where words or phrases used in the code have an established common law meaning. UNIFORM LAWS National legislation is being introduced in an increasing number of areas. Examples are national laws to regulate those in the legal profession, in medical and allied professions, movie and video game classification, and competition and consumer law. It is even proposed that there be uniform laws relating to contract. These forms of legislation are often effected by passing a template statute in one jurisdiction which is then copied, wholly or substantially, in other states, territories or the Commonwealth. An example of this scheme is the Health Practitioner Regulation National Law. Courts strive for uniform interpretation of uniform national legislation across the different jurisdictions: see 8.37.72 CONSOLIDATIONS A consolidating Act brings together the original statute law on a topic and the subsequent amendments. This is done by Parliament repealing the initial and amending Acts and re-enacting their provisions in a single statute. Unlike reprinting, the process is, therefore, a formal one. The principal reason for consolidating legislation is convenience; it enables people to find the law on a topic more quickly. In the past,Victoria regularly consolidated its legislation, but the last consolidation was in 1958. Consolidation of all the legislation of a jurisdiction is a formidable task and is therefore rare; it is more common to find consolidations of the legislation on a specific topic. The courts have developed some special rules for interpreting consolidating Acts. There is an initial presumption that a consolidating Act does not amend an existing statute or the common law. Where, however, the words of a consolidating Act clearly indicate that an amendment has been made to a statute, or a change effected in the common law, the presumption does not apply. The courts do not rely, for interpretation purposes, on pre-consolidation versions of the Act. The term ‘consolidated’ legislation is also used at times for Acts published online that include all current amendments within them — such Acts are not the result of ‘consolidation’ by an Act of Parliament, but rather are a type of ‘reprint’: see 9.72.

Australian Securities Commission v Marlborough Gold Mines (1993) 177 CLR 485.

72

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REPRINTED ACTS In all Australian jurisdictions, amended Acts are routinely reprinted as an alternative to the enactment of consolidating Acts. The original Act is reprinted to incorporate the text of amendments which have been made. Reprints are carried out by, or under the authority of, the government printer.There are no special principles of interpretation for reprinted Acts. The principal difference between a reprinted Act and a consolidation is that the former is not passed by Parliament. If there is a mistake in the text of a reprint, the court must look at the original statute. By contrast, a consolidating Act is passed by Parliament and, even if a mistake is made, the courts are bound by the text of the consolidation. General reprints of all the legislation in force at any one time are sometimes made. These reprints appear in bound volumes. In Australia the most recent are: Acts of the Australian Parliament 1901–73 (Cth); Public Acts of New South Wales 1824–1957; Queensland Statutes 1828–1962; Public General Acts of South Australia 1837–1975; Tasmanian Statutes 1826–1959; Laws of the Australian Capital Territory 1911–59; Ordinances of the Northern Territory of Australia 1911–60. In Western Australia The Reprinted Acts of the Parliament of Western Australia 1939–62 (22 vols) contain reprints made over that period of the more significant Western Australian Acts. In all jurisdictions, electronic versions of reprinted Acts are found online and these have greatly facilitated access to up-to-date copies of legislation. Since researchers today generally rely on versions of Acts in databases and these have fields to indicate the dates of versions of an Act, there is little need for hard copies of reprinted Acts. Some online databases such as AustLII describe these as ‘consolidated Acts’. Strictly speaking this is incorrect, as is clear from the previous paragraph. The Federal Register of Legislation found at uses the more accurate term ‘compilations’. The online compilations include the date of any amendments. DECLARATORY AND VALDIATING ACTS When doubts are expressed as to the meaning, scope or validity of a particular law, Parliament may legislate to clarify the position. The resulting statute is known as declaratory legislation. An example is the Presbyterian Synod of Victoria Act  1867 (Vic). As noted at 8.33 and 9.33 above, Acts can also be passed retrospectively to validate past actions, such as Commonwealth legislation validating decisions by federal courts under state legislation. OMNIBUS AND COGNATE ACTS As mentioned at 9.35, an omnibus Act is one that incorporates amendments to a number of different Acts. There is a convention that the amendments included in an omnibus Act should be confined to ‘housekeeping’ or inconsequential matters, and not cover significant matters of policy or law. The convention is not always followed. A ‘cognate’ Act is one that is subsidiary to a principal Act. It generally deals with consequential or transitional matters flowing from the passage of the principal statute. For example, if an Act provides that a new tribunal is to replace an earlier one, provision must be made for claims that have already been partly heard by the earlier body.

Legislation

9.72

9.73

9.74

9.75

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Particular forms of legislation in the Australian territories 9.76

9.77

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9.78

For historical and political reasons there are some variations in the forms of legislation in particular jurisdictions. The legislation applying in the Australian Capital Territory, for example, comes from several sources because the Territory was formerly part of New South Wales and, until 1989, had no elected legislature. A similar situation applies in the Northern Territory (formerly part of South Australia), although it has had a Legislative Assembly, which makes law for the Territory, since 1978. AUSTRALIAN CAPITAL TERRITORY The legislation applicable in the Territory include ordinances and subordinate laws, made prior to self-government in 1989. Today these statutes are known as Acts and are cited as such.73 The Australian Capital Territory inherited a number of Imperial Acts, as well as New South Wales Acts. Former New South Wales and United Kingdom Acts in force before 1989 are taken to be laws of the Legislative Assembly and may be amended or repealed like ordinary territory Acts.74 Most of these Acts have now been amended or repealed. Laws reflective of this history applicable in the Australian Capital Territory include: • Imperial Acts and New South Wales  Acts in force prior to establishment of Territory on 1 January 1911;75 • New South Wales laws in force after self-government, for example, the Crimes Act 1900 (NSW) (as it applies in the Australian Capital Territory);76 • Commonwealth ordinances passed for the Territory prior to 1989; • Commonwealth Acts which apply nationally and those passed specifically for the Territory, for example, Captain’s Flat (Abatement of Pollution) Agreement Act 1975 (Cth); and • Commonwealth Acts and instruments which prevail over the Acts made by the Legislative Assembly to the extent to which they are inconsistent.77 Since self-government all Australian Capital Territory enactments are known as Acts or legislative instruments. Under the Legislation Act  2001 (ACT) s  12, a legislative instrument may take the form of a subordinate law, a disallowable instrument, a notifiable instrument or a commencement notice.

Australian Capital Territory (Self-Government) Act 1988 (Cth) s 34; Self-Government (Citation of Laws) Act 1989 (ACT) s 5. 74 Interpretation Act 1967 (ACT) s 65. 75 See Legislation Act 2001 (ACT) sch 1 pt 1.1. 76 See Legislation Act 2001 (ACT) sch 1 pt 1.2. 77 Australian Capital Territory (Self-Government) Act 1988 (Cth) s 28. 73

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CHAPTER 9

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NORTHERN TERRITORY The Acts applicable in the Northern Territory reflect the fact that the Northern Territory was, until 1911, part of South Australia. The legislation applicable in the Northern Territory is, accordingly: • South Australian legislation applicable in the Territory, to continue in force until substitute laws are passed;78 • Imperial laws formerly part of the law in South Australia; • Ordinances for the Territory made by the Commonwealth prior to selfgovernment in 1978, now called Acts;79 • Commonwealth Acts made specifically for the Territory since 1978, and those Acts of the Commonwealth that apply nationally. Since 1978, the Northern Territory Legislative Assembly has made Acts and authorised delegated legislation, generally in the form of regulations. The Northern Territory of Australia Index to Legislation, formerly published twice yearly, included a chronological list of South Australian Acts in force in the Northern Territory. No list of United Kingdom Acts in force has been drawn up. The Northern Territory (Administration) Act 1910 (Cth) s 5 (now repealed) specified that laws continued in force should be laws of the Territory and can be amended and repealed by the Northern Territory legislature. Northern Territory legislation can be found in the Northern Territory Legislation database.80 OTHER AUSTRALIAN TERRITORIES The Territory of Norfolk Island, between 1979 and 2015, had a legislative assembly established under the Norfolk Island Act 1979 (Cth) to make laws for the Territory. Under s 18 of that Act, Commonwealth laws applied to the Territory only when specified to do so. Laws passed for the Territory were called ordinances. The Norfolk Island Legislative Assembly was replaced in 2015 by an elected Norfolk Island Regional Council, and New South Wales law became applicable to the Territory.81 The result is that the Commonwealth is responsible for providing national and state level services to Norfolk Island; its Regional Council provides for local government services. Laws that are made for Australia’s non-self-governing territories82 are called ordinances. Although strictly a form of delegated legislation (having been made under the authority of Commonwealth Acts), they are for most purposes treated as statutes, and regulations and other forms of delegated legislation are made under them.83

Legislation

9.79

9.80

Northern Territory Acceptance Act 1910 (Cth) s 7. Northern Territory (Administration) Act  1910 (Cth) s  13 (repealed by Northern Territory (Self-Government) Act 1978 (Cth) s 3 sch 1); Interpretation Act 1978 (NT) ss 18, 49. 80 See at . 81 Norfolk Island Legislation Amendment Act 2015 (Cth) and related Acts. 82 These are: Christmas Island; Jervis Bay Territory; Cocos (Keeling) Islands; Ashmore and Cartier Islands; Coral Sea Islands; Australian Antarctic Territory; and Heard Island and McDonald Islands. 83 See Esmonds Motors Pty Ltd v Commonwealth (1970) 120 CLR 463. 78 79

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Delegated legislation

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9.81

This is legislation made by office-holders or bodies other than Parliament. The most frequently specified delegates are the Governor-General or a Governor, a Minister or a local government body. Delegated legislation is known variously as regulations, rules, bylaws, orders, statutory instruments, subordinate law, subsidiary legislation, notices, orders in council, ordinances and proclamations. Commonly too such legislation is referred to as a legislative instrument. An example of a form of delegated legislation appears in 9.95.84 There are several reasons for framing rules as delegated legislation. Matters of administration are best left for the executive arm of government, to reduce the pressure on parliamentary time; delegated legislation is more appropriate where technical matters or matters of detail are involved; and when facts which are the subject of the legislation are likely to change rapidly, it is more sensible to deal with them in a form of legislation that can be changed with relative ease. Some jurisdictions have Acts specific to delegated legislation in addition to their interpretation Acts.85 Delegated legislation is not made by the parliamentary enactment process. Methods for making delegated legislation may be prescribed by the statute which authorises the particular form of delegated legislation. Thus local government Acts contain provisions for making by-laws, and Acts constituting the courts provide for the making of rules of court. Alternatively, interpretation Acts or Acts such as subordinate legislation Acts specify procedures for the making of a class of delegated legislation such as regulations.86

Delegated legislation tail wagging statutory dog

For detailed discussion see Pearce and Argument (n 3). See, eg, Legislation Act  2003 (Cth) ch  3; Subordinate Legislation Act  1989 (NSW); Statutory Instruments Act  1992 (Qld); Subordinate Legislation Act  1978 (SA); Subordinate Legislation Act  1992 (Tas); Subordinate Legislation Act 1994 (Vic). 86 See, eg, Legislation Act 2001 (ACT) chs 5–8; Interpretation Act 1987 (NSW) pt 6; Interpretation Act 1978 (NT) pt 7 divs 2–3; Acts Interpretation Act 1915 (SA) pt 3; Interpretation Act 1984 (WA) pt 6. See also Legislation Act 2003 (Cth); Subordinate Legislation Act 1989 (NSW); Statutory Instruments Act 1992 (Qld); Subordinate Legislation Act 1978 (SA); Subordinate Legislation Act 1992 (Tas); Subordinate Legislation Act 1994 (Vic). 84 85

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Regulations — the most common form of delegated legislation — are made by a process involving drafting, signature, notification and tabling in Parliament. Once the instrument is drafted it must be signed by the Governor-General or Governor, generally on the advice of the Executive Council. The next step is to publish, usually in the government Gazette, the text of the legislation or a notice that it has been made. Finally, it is tabled in Parliament and, unless there is a motion for disallowance within a specified number of sitting days, the formal procedures for its making are complete. Failure to table the regulation in Parliament means it is void.87 In all jurisdictions it is also quite common for a statute to specify a two-step procedure: signature by the relevant Minister and notification in the Gazette, no tabling in Parliament being required.

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PARLIAMENTARY SCRUTINY AND CONSULTATION Parliamentary control generally involves scrutiny of the principal forms of delegated legislation by a committee of members. Guidelines — typical of which are those devised for use by the Senate Standing Committee for the Scrutiny of Delegated Legislation88 — are used to ensure that subordinate laws do not, for example, unduly trespass on individual rights, deal with matter more suitable for inclusion in an Act, or authorise the making of unreviewable decisions that affect people. Subordinate laws which breach the guidelines are recommended for disallowance or may be required to be redrafted. An alternative and more radical approach to the scrutiny of subordinate laws has been adopted in some jurisdictions. Additional steps, involving preparation of a regulatory impact statement and consultation with the public, occur before subordinate legislation is made, and this process is mandatory in some jurisdictions.89 QUASI-DELEGATED LEGISLATION Increasingly, government departments and agencies are resorting to policy as a form of subordinate instrument. Policy is not strictly delegated legislation and only some policy instruments require compliance with comparable formalities such as tabling in Parliament. The rules sometimes take the form of ‘quasi-legislative’ instruments and have been dubbed ‘soft law’. Commonly, soft law appears in the form of codes of practice, manuals, circulars and other policies. Unlike the more orthodox forms of delegated legislation, such as regulations, legislative instruments and statutory rules, these instruments have generally not been required to be numbered or published and are hard to find. However, amendments to the Freedom of Information Act  1982 (Cth) emphasise that information produced by government is a national resource. A  consequence is that presumptively such information should be publicly available unless there is a demonstrated reason to the contrary. Consequently, much of this material is now available, or at least notified, on agency websites under the Freedom of Information Publication Scheme or disclosure logs. Comparable developments are occurring in some of the states and territories.

Legislation

9.82

9.83

9.84

See, eg, Interpretation Act 1978 (NT) s 63(8). See  Senate Standing Committee for the Scrutiny of Delegated Legislation, Parliament of Australia, ‘Guidelines’ (Web Page) . 89 See above n 70. 87 88

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A deficiency is that quasi-delegated legislation and soft law, other than disallowable instruments, are not required to be scrutinised by parliamentary committees to ensure that they comply with standards designed to protect individual rights.The distinction between delegated legislation and disallowable instruments has been largely avoided under the Legislation Act 2003 (Cth), which defines instruments that are legislative instruments and those that are not.

9.85

COMMENCEMENT OF DELEGATED LEGISLATION As with Acts, default rules as to the commencement of delegated legislation vary between the jurisdictions. Commonwealth

9.86

Since 2003, legislative instruments commence on the day after registration in the Legislative Instruments Register unless another day is specified for commencement.90 If legislative instruments adversely affect individual rights or liabilities, they may not be retrospective unless expressly authorised by the principal Act.91 States and mainland territories

9.87

In general, delegated legislation must be published in government Gazettes, in legislation registers or other designated places, such as a government website, and take effect either from the date of publication or such other specified date as appears in the regulations.92 Non-self-governing territories

9.88

Commencement of both ordinances and subordinate law is governed by provisions similar to those applying to Commonwealth regulations.93

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DISALLOWANCE, AMENDMENT AND REPEAL OF DELEGATED LEGISLATION Disallowance 9.89

All forms of delegated legislation and quasi-delegated legislation which must be tabled in Parliament may be disallowed following a resolution of either House of Parliament (if more than one) within a prescribed number of sitting days. The number of days is typically 6, but can be up to 18, although several jurisdictions have reduced the time in view of improvements in legislation-printing technology.94 If delegated legislation or a Legislation Act 2003 (Cth) s 12. Legislation Act 2003 (Cth) s 12(2)–(4). 92 Legislation Act 2001 (ACT) ss 61–62; Interpretation Act 1987 (NSW) s 39; Interpretation Act 1978 (NT) s 63; Statutory Instruments Act 1992 (Qld) ss 32–35; Subordinate Legislation Act 1978 (SA) s 10AA; Acts Interpretation Act 1931 (Tas) ss 9(5), 38A, 47; Subordinate Legislation Act 1994 (Vic) pt 3; Interpretation Act 1984 (WA) s 41. 93 See, eg, Cocos (Keeling) Islands Interpretation Ordinance 1955 s 15. 94 Legislation Act  2003 (Cth) ch  3 pt  2; Legislation Act  2001 (ACT) s  65; Interpretation Act  1987 (NSW) s 41; Interpretation Act 1978 (NT) s 63(9); Statutory Instruments Act 1992 (Qld) s 50; Subordinate Legislation Act 1978 (SA) s 10; Acts Interpretation Act 1931 (Tas) s 47(4); Subordinate Legislation Act 1994 (Vic) s 23; Interpretation Act 1984 (WA) s 42. 90 91

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CHAPTER 9

Legislation

disallowable instrument is disallowed, the effect is the same as repeal. After disallowance, if the disallowed instrument repealed another subordinate law, the repealed law revives.95 Amendment Delegated legislation can be amended by later statutes or later delegated legislation. Amendment by statute is rare.96

9.90

Repeal As with amendment, delegated legislation can be repealed by subsequent statutes or delegated legislation, although repeal by statute is infrequent. The repeal may be express or implied. Delegated legislation is impliedly repealed if it is inconsistent with a later Act or delegated legislation.

9.91

Automatic repeal

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Automatic repeal can occur in several ways. If an Act (or relevant sections of an Act) which authorises delegated legislation is repealed, any delegated legislation made under the Act is usually automatically repealed, although some jurisdictions provide for it to continue if not inconsistent with the repealing Act.97 The second type of automatic repeal is a more recent mechanism designed to ensure that subordinate laws do not become outdated. In the Commonwealth, New South Wales, Queensland, South Australia, Tasmania and Victoria, delegated legislation ceases to operate after a fixed period (for example, 7 or 10 years) from the date it is made, unless exempt.98 Such sunset provisions are a form of automatic repeal. This statutory device, which is designed to ensure that the continuation of the delegated legislation is justified, and that it does not remain in force indefinitely, has had a marked impact on the volume of subordinate legislation. In Victoria the number of regulations halved between 1984 and 1993 following the introduction of a sunsetting process.

9.92

Repeal of regulations As with statutes, interpretation legislation generally provides that where a regulation is repealed, unless it is expressly provided to the contrary, existing rights accrued and liabilities incurred under the delegated legislation are not disturbed.99 In addition, it is

9.93

Legislation Act 2003 (Cth) s 45; Legislation Act 2001 (ACT) s 66; Interpretation Act 1987 (NSW) ss 41(3), (4), (5); Interpretation Act 1978 (NT) s 63(9)–(10); Statutory Instruments Act 1992 (Qld) s 51; Acts Interpretation Act 1915 (SA) s 12; Acts Interpretation Act 1931 (Tas) ss 47(4)–(6); Interpretation of Legislation Act 1984 (Vic) ss 28–29, Subordinate Legislation Act 1994 (Vic) s 24; Interpretation Act 1984 (WA) s 42. 96 See, eg, Subordinate Legislation (Revocation) Act 1984 (Vic). 97 See, eg, Interpretation Act 1984 (WA) s 38. 98 See Legislation 2003 (Cth) Ch 3 pt 4; Subordinate Legislation Act 1989 (NSW) pt 3; Statutory Instruments Act 1992 (Qld) pt 7; Subordinate Legislation Act 1978 (SA) pt 3A; Subordinate Legislation Act 1992 (Tas) pt 3; Subordinate Legislation Act 1994 (Vic) s 5. Exemptions are permitted in some jurisdictions: see Legislation (Exemptions and Other Matters) Regulation 2015 (Cth) regs 11–12. 99 Acts Interpretation Act 1901 (Cth) ss 2, 7; Legislation Act 2001 (ACT) s 84; Interpretation Act 1987 (NSW) s  30; Interpretation Act  1978 (NT) ss  4, 12; Statutory Instruments Act  1992 (Qld) s  51; Acts Interpretation Act 1915 (SA) ss 3A, 14A, 16; Acts Interpretation Act 1931 (Tas) ss 5, 16; Interpretation of Legislation Act 1984 (Vic) ss 4, 28; Interpretation Act 1984 (WA) ss 5, 37. 95

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specifically provided in most jurisdictions that the repeal of a repealing regulation does not revive regulations in force prior to the making of the repealed regulation.100

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9.94

FORMAL STRUCTURE OF DELEGATED LEGISLATION Different kinds of delegated legislation take different forms. The most common kinds, regulations and statutory rules, have a similar form to that of statutes. Ordinances are also like statutes. Proclamations and orders in council have a different, and rather ponderous, structure. See the example below from Western Australia.

Acts Interpretation Act 1901 (Cth) ss 2, 7; Legislation Act 2003 (Cth) s 45; Legislation Act 2001 (ACT) s 84; Interpretation Act 1987 (NSW) ss 5, 28–30; Interpretation Act 1978 (NT) ss 4, 11–12; Statutory Instruments Act 1992 (Qld) ss 3, 14, sch 1; Acts Interpretation Act 1954 (Qld) s 19; Acts Interpretation Act 1915 (SA) ss 3A, 14A, 16, 17; Acts Interpretation Act 1931 (Tas) ss 5, 16; Interpretation of Legislation Act 1984 (Vic) ss 4, 28; Interpretation Act 1984 (WA) ss 5, 34.

100

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CHAPTER 9

DIFFERENT TYPES OF DELEGATED LEGISLATION The classification of delegated legislation follows some broad patterns. Thus, regulations or statutory rules are delegated legislation made by the executive or a Minister and apply to the general population. By-laws (and sometimes ordinances) are made by local government authorities and apply to the people within the local government area. The term ‘rules’ commonly describes delegated legislation which sets out the procedure to be followed by particular bodies such as courts (rules of court). Other descriptions of delegated legislation cannot be so neatly categorised. An example appears below.

Legislation

9.95

ORDER IN COUNCIL At the Executive Building, Brisbane, the twelfth day of May, 1983 Present: His Excellency the Governor in Council WHEREAS by the Supreme Court Act 1921–1979, it is enacted that the Governor in Council, with the concurrence of two or more of the Judges, may from time to time by Order in Council published in the Gazette, make all such Rules of Court as may be deemed necessary or convenient for regulating the procedure and practice of the Supreme Court and for the purpose of giving full effect to The Judicature Act and the Supreme Court Act 1921–1979, and any other Act conferring jurisdiction, power or authority on the Court: Now, therefore, His Excellency the Governor, acting by and with the advice of the Executive Council and with the concurrence of the required number of Judges, hereby makes the following Rule of Court. And the Honourable the Minister for Justice and Attorney-General is to give the necessary directions herein accordingly.

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S. SCHUBERT, Clerk of the Council.

A rule of court made under the Supreme Court Act 1921 (Qld) and published in the Queensland Government Gazette, No 29, 14 May 1983, 382 follows. Note that it is also an example of an Order in Council.

9.96

RULE OF COURT It is ordered that the Rule of Court providing for the sittings of the Supreme Court during the year 1983 contained in Order in Council dated the twenty-third day of December, 1982 and published in the Government Gazette on the twenty-fifth day of December, 1982 be amended by deleting under Table 1(A) Brisbane Criminal Sittings “Monday, 23rd May Mr Justice Kelly (4 weeks)” and inserting in lieu thereof under Table 1 (A) Brisbane Civil Sittings “Monday, 23rd May Mr Justice Kelly (5 Weeks) from 23rd May”.

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EXERCISE 12: LEGISLATION 9.97

You may need to do further research to find answers or part of the answers to these questions. Some of that research can be undertaken by using the information in the other chapters in Part 3. 1. Describe the differences between subordinate or delegated legislation and Acts or statutes. 2. Can a statute be deemed to have come into effect on a date prior to the date of the enactment of the Act? 3. When is it appropriate to speak of an implied repeal of part or all of an earlier statute by a later statute? 4. What is the purpose of s  7 of the Acts Interpretation Act  1901 (Cth) and its equivalent state and territory provisions? 5. What is the function of the statutory interpretation maxim generalia specialibus non derogant? What are the factors that limit its use? 6. What are the dangers to accountability that arise from the increased reliance on non-legislative instruments and soft law?

Further reading

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• Administrative Review Council, Rule-Making by Commonwealth Agencies (Report No 35, 1992). • Australian Law Reform Commission, Managing Justice: a Review of the Federal Civil Justice System (Report No 89, 2000). • Australian Legal Information Institute (AustLII) (Website) . • Jeffrey Barnes, ‘When “Plain Language” Legislation is Ambiguous — Sources of Doubt and Lessons for the Plain Language Movement’ (2010) 34 Melbourne University Law Review 671. • Commonwealth Office of Parliamentary Counsel (OPC), Plain English Manual (Canberra, 2016) . Provides a useful discussion of plain English objectives. • Commonwealth Parliament, Powers, Practice and Procedure (Web Page) . Infosheets No  6, ‘Opportunities for private Members’; No 7,‘Making Laws’; No 19,‘The House, Government and Opposition’; and No  20, ‘The Australian system of government’. • Department of the Prime Minister and Cabinet, Legislation Handbook (Canberra, 2017) . Describes the processes which take place before a Commonwealth Bill is introduced, as well as the enactment procedure. Department of the House of Representatives, House of Representatives Practice (7th ed, 2018) . Dennis C Pearce, Interpretation Acts in Australia (LexisNexis Butterworths, 2018). Focused on the interpretation Acts in the different Australian jurisdictions and their operation. Dennis C Pearce, Statutory Interpretation in Australia (LexisNexis Butterworths, 9th ed, 2019). A comprehensive textbook on the interpretation of legislation in Australia. Dennis C Pearce and Stephen Argument, Delegated Legislation in Australia (LexisNexis Butterworths, 5th  ed, 2017). The standard work on delegated legislation in Australia and New Zealand. Regulation Taskforce, Rethinking Regulation: Report of the Taskforce on Reducing Regulatory Burdens on Australians (Report, January 2006). Michelle Sanson, Statutory Interpretation (Oxford University Press, 2nd  ed, 2017). A practical guide to statutes and their interpretation, aimed at students. Standing Orders of the Parliaments of the states and the Commonwealth, and of the Legislative Assemblies of the Australian Capital Territory and the Northern Territory.

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To enhance your learning experience, use the student resources available on Lexis® Learning See the Visual Preface at the front of this book on how to register.

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CHAPTER 

10 Approaches to Interpretation of Legislation This case is a simple one. The Act means what it says, and, what is more important, it does not mean what it does not say.1 Secretary, Department of Health v Harvey (1990) 21 ALD 393 (Meagher JA).

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Introduction 10.1 Summary of principles 10.5 The goal of interpretation 10.6 Common law approaches 10.7 −− Literal approach

10.8

−− Golden rule

10.11

−− Purposive approach

10.14

Purposive approach under legislation 10.18 −− Introduction of s 15AA and similar provisions

10.18

−− Operation and limitations of s 15AA and similar provisions

10.20

−− Australian Capital Territory equivalent of s 15AA

10.22

−− Queensland equivalent of s 15AA

10.23

−− South Australian equivalent of s 15AA

10.24

−− Impact of s 15AA and its counterparts

10.25

Context: the modern approach to interpretation 10.27 Copyright © 2020. LexisNexis Butterworths. All rights reserved.

−− Modern approach and drafting errors or oversights

10.29

EXERCISE 13: Approaches to interpretation 10.35

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CHAPTER 10

Approaches to Interpretation of Legislation

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Introduction This chapter considers the common law rules and statutory rules relating to the interpretation of statutes. It covers: • why interpretation of legislation is a key area of law; • the goal of interpretation, which is to give effect to the intention of Parliament in drafting the legislation, as determined by the courts on the basis of the text of the legislation, rather than other sources; • the historical common law rules taken by judges to interpreting statutes, including the literal approach, golden rule and purposive approach — these rules, which emphasised the primacy of the text, are now largely of historical interest in light of changes in interpretation legislation and common law approaches; • the provisions of interpretation legislation that require courts to prefer interpretations that give effect to the purpose of legislation; • different ways of determining purpose; and • the common law ‘modern approach’ of using ‘context’ to interpret legislation, including its purpose. Legislation, as noted in Chapter  9, is the most frequently encountered source of rules of law. To the extent that the rules in legislation are in fixed verbal form, the interpretation of legislation is less problematic than the interpretation of case law. Nevertheless, legislation is frequently complex and its meaning can sometimes be difficult to determine. Unsurprisingly, therefore, lawyers spend much of their time interpreting legislation in order to decide how it applies in particular circumstances. To do so requires an appreciation of the rules devised by the courts for the interpretive task. In 2001 Chief Justice Spigelman, of the Supreme Court of New  South  Wales, wrote that ‘[t]he law of statutory interpretation has become the most important single aspect of legal practice. Significant areas of the law are determined entirely by statute. No area of the law has escaped modification’.2 Of the cases that have come before courts and tribunals in recent years, the vast majority have had some legislative content. In many instances, legislation will have enabled the case to be initiated, such as those that arise under the Family Law Act 1975 (Cth) or under a motor traffic Act, or crimes Act. In such cases the facts are likely to be in dispute, but it is also common for issues as to the meaning of legislative provisions to arise. Most appellate cases at least partly concern issues of the interpretation, or construction (the terms are used interchangeably), of legislation. To interpret legislation, courts and tribunals regularly draw on principles that are difficult to assemble as a coherent whole. This and the following chapters, therefore, can do no more than serve as an introduction to the interpretation of legislation. The basic techniques of interpretation discussed here are also used in the interpretation of other types of legal documents, like contracts, deeds and wills. Most extracts from reported cases

10.1 literal approach: (also known as the ‘literal rule’) words in a statute must be interpreted in the context in which they appear, according to their plain and ordinary meaning golden rule: it is permissible to depart from the grammatical and ordinary meaning of words to avoid an absurd result

10.2 purposive approach: words in a statute may be interpreted so that they promote the purpose they were enacted to address

10.3

James J Spigelman, ‘The Poet’s Rich Resource: Issues in Statutory Interpretation’ (2001) 21 Australian Bar Review 224.

2

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10.4

in these chapters illustrate an approach, a maxim or an assumption used in interpretation. Some of the extracts illustrate several, perhaps conflicting, techniques of interpretation.3 In some areas of the law, such as constitutional law, there are interpretive principles that are more or less specific to those areas. Such area-specific principles are discussed in other publications and are not included in this book.4 Furthermore, in this chapter and the chapters that follow, no attempt is made to directly address the wider philosophical questions as to the nature of language and the claims that it is inherently indeterminate in meaning. However, that is not to question the relevance of such issues to the interpretation of legislation. Nevertheless, it is sufficient for present purposes to state that for lawyers, as for others who value clarity in linguistic communication, it must be assumed that language, if used with care, can carry a meaning that is reasonably clear. Applying that assumption to legislation in particular, it seems reasonable to suggest that most Australian judges accept the proposition that clarity of meaning on the face of a legislative provision is an attainable objective for a legislative drafter.5 In his short judgment in Secretary, Department of Health v Harvey,6 from which this chapter’s epigraph is taken, Meagher  JA made the unexceptional assumption that his responsibility was to determine the meaning of the relevant Act and to apply it to the issue(s) under consideration. In the process of establishing what legislation means, two related interpretive techniques are regularly employed. The first is to seek to discover the purpose of a provision, as that may be informative. The second technique is to consider the meaning of the provision in its context. These chapters on legislative interpretation are primarily concerned with exploring the concepts of ‘purpose’ and ‘context’ and how they can be used to discover the meaning. Sometimes the two concepts are presented as aspects of a single interpretive method. Consider, for example, these introductory remarks in an address given by former Chief Justice Spigelman in 2007:

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Law is a fashion industry. Over the last two or three decades the fashion in interpretation has changed from textualism to contextualism. Literal interpretation — a focus on the ordinary meaning of particular words — is no longer in vogue. Purposive interpretation is

For a more detailed discussion of the principles of statutory interpretation, see Dennis C Pearce, Statutory Interpretation in Australia (LexisNexis Butterworths, 9th ed, 2019) and Michelle Sanson, Statutory Interpretation (Oxford University Press, 2nd ed, 2017). 4 See Suzanne Corcoran and Stephen Bottomley (eds), Interpreting Statutes (Federation Press, 2005) chs 7–15. Constitutional interpretation is dealt with in Leslie Zines, ‘The Interpretation of the Constitution’ in ibid ch 5; George Williams, Sean Brennan and Andrew Lynch, Blackshield andWilliams Australian Constitutional Law and Theory (Federation Press, 7th ed, 2018) ch 5; James Stellios, Zines’s The High Court and the Constitution (Federation Press, 6th ed, 2015). 5 For an introduction to the application of theories of interpretation of legislation, see Peter C Schanck, ‘The Only Game in Town: An Introduction to Interpretive Theory, Statutory Construction and Legislative Histories’ (1990) 38 University of Kansas Law Review 815; Peter C Schanck, ‘Understanding Postmodern Thought and its Implications for Statutory Interpretation’ (1992) 65 Southern California Law Review 2507. For a discussion of interpretive theory in the Australian context, see  Suzanne Corcoran, ‘Theories of Statutory Interpretation’ in Corcoran and Bottomley (n 4) 8. The similarities and differences between the tasks of interpreting legislation and other legal documents are considered in Michael Kirby, ‘Towards a Grand Theory of Interpretation: The Case of Statutes and Contracts’ (2003) 24 Statute Law Review 95. See also Stephen Gageler, ‘Common Law Statutes and Judicial Legislation: Statutory Interpretation as a Common Law Process’ (2011) 37 Monash University Law Review 140. 6 (1990) 21 ALD 393. 3

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CHAPTER 10

Approaches to Interpretation of Legislation

what we do now … In constitutional, statutory and contractual interpretation there does appear to have been a shift from text to context.7

Although this chapter concentrates on the literal and purposive approaches to interpretation, the relationship between these approaches and the principle that words and sections should be interpreted in context is also considered.

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Summary of principles Here are the key principles covered in this chapter: • The goal of interpretation is to give effect to the ‘intention of Parliament’ as revealed primarily by the text of the statute — other expressions of parliamentary intent are regarded as extrinsic materials: see 10.6. • Historically, the focus of interpretation was the ‘literal rule’, which gave effect to the words of the statute according to their ordinary meaning, regardless of what that result might produce: see 10.9–10.10. Generally speaking, the literal rule was modified by: (a) The ‘golden rule’, which allowed departure from the words of the statute to correct an error or where the result was absurd: see 10.11–10.12. (b) The ‘purposive approach’, which focused on the statute’s purpose in the case of ambiguity or absurdity: see 10.14–10.17. • Today, interpretation legislation requires courts to prefer an interpretation that either best achieves the Act’s purpose over other interpretations (Commonwealth, Australian Capital Territory, Queensland), or simply achieves the Act’s purpose (New  South  Wales, Northern Territory, South  Australia, Tasmania, Victoria, Western Australia). In all jurisdictions, this purpose is to be considered regardless of whether there is a patent ambiguity or absurdity: see 10.18–10.26. • In conjunction with this statutory mandate to prefer an interpretation to give effect to the Act’s purpose, the ‘modern approach’ to interpretation under the common law requires a court to consider the Act’s ‘context’ in its widest extent. That means considering context not just in the sense of the Act’s text, but also the prior state of the law and the Act’s purpose: see 10.27–10.28 and Chapters 11–12. • Generally speaking, the literal interpretation or ordinary meaning of a provision will give effect to the ‘purpose’ of the Act: see 10.9, 10.21, 10.26. • That in giving effect to an Act’s purpose, and considering its context, the court may imply words or give a strained interpretation to legislation to correct drafting errors, but not to the extent of filling larger gaps in the legislation necessary to effect its perceived purpose or where the insertion is at variance with the actual language used: see 10.29–10.34.

10.5

James J Spigelman, ‘From Text to Context: Contemporary Contractual Interpretation’ (Speech, Risky Business Conference, Sydney, 21 March 2007) 1.

7

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The goal of interpretation 10.6

As Higgins J stated in the famous High Court case ‘Engineers’ Case’,8 ‘the fundamental rule of interpretation, to which all others are subordinate, is that a statute is to be expounded according to the intent of parliament that made it’.9 The focus on the ‘intention of parliament’ is a reflection of the doctrine of the separation of powers: courts interpret the law, legislatures make the law: see 2.48ff. Despite the use of the language of intent, the court’s inquiry does not begin with a quest for the subjective intention of the person who proposed the Bill or the various Members of Parliament who voted upon it. Rather, the ‘intent’ here is that revealed by the text of the statute itself. As the High Court has stated on many occasions, ‘the task of statutory construction must begin with consideration of the text itself ’.10 Thus, it has been noted that ‘the intention of Parliament is somewhat of a fiction’.11 As former Chief Justice Robert French has said: Although it [legislative intention] has long been integral to the rhetoric of statutory interpretation, it does not denote anybody’s state of mind. It is invoked as an assertion that the court’s constitutional choice lies within the constitutional boundaries of the judicial function. It has been called a constitutional courtesy.12

Despite this focus on the text of the legislation itself, as we will see in Chapter 11, materials containing expressions of the subjective intent of the legislators, such as records of debates in Parliament, can in certain circumstances be consulted by the courts. Such materials form part of a category referred to as extrinsic materials because they are ‘external’ or ‘extrinsic’ to the legislation that is being interpreted.

Common law approaches

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10.7

The Commonwealth, states and territories all have statutory provisions that set out the general approach to be taken to the interpretation of legislation. However, it is still necessary to know about the common law approaches for two reasons. First, for historical context: older cases in particular will focus on the literal approach, and it is necessary to understand the approach the courts took there. Second, because these common law approaches have not been superseded by the provisions in interpretation legislation, they can still have relevance in conjunction with those legislative provisions. In this area of the law, as in many other areas, the precise relationship between statutory principles and the common law has not always been clear. Historically, the common law interpretive techniques were the ‘literal’ approach and the ‘purposive’ approach. They are familiar to lawyers in other common law countries. In the United States the former approach is known as the ‘plain meaning’ principle. Today, it is also possible to speak of a ‘modern approach’ to statutory interpretation, which incorporates aspects of these two approaches as part of a greater emphasis on ‘context’ and interpretation, as discussed in 10.27ff. Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 (‘Engineers’ Case’). Ibid 161–2. 10 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, 46 [41] (‘Alcan’). 11 Mills v Meeking (1990) 169 CLR 214, 234 (Dawson J). 12 Robert French, ‘The Principle of Legality and Legislative Intention’ (Speech, Cambridge University, 11 May 2018), quoted in Pearce (n 3) 37 [2.4].

8

9

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CHAPTER 10

Approaches to Interpretation of Legislation

LITERAL APPROACH In the Engineers’ Case, Higgins J defined and explained the literal approach (or rule, as he called it):

10.8

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The fundamental rule of interpretation, to which all others are subordinate, is that a statute is to be expounded according to the intent of the Parliament that made it; and that intention has to be found by an examination of the language used in the statute as a whole. The question is, what does the language mean; and when we find what the language means, in its ordinary and natural sense, it is our duty to obey that meaning, even if we think the result to be inconvenient or impolitic or improbable.13

Stated in this form, the literal approach would have excluded the possibility of applying any other approach, however unsatisfactory the result. It is now accepted that this approach complements the purposive approach. As already noted, ‘the task of statutory construction must begin with consideration of the text itself ’.14 Although the literal approach has a simplicity about it that is attractive, it suffers from a major defect — it assumes that a word or phrase, read in its textual context, always has just one meaning. In fact, the wording of a statutory provision may have no single, unambiguous, ordinary meaning. More recent statements of the approach to be taken in interpretation still accord primacy to the text of the statute, but allow for possible alternative approaches. For example, in Project Blue Sky Inc v  Australian Broadcasting Authority (‘Project Blue Sky’)15 McHugh, Gummow, Kirby and Hayne JJ said that

10.9

the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.16

15 16 13 14

Engineers’ Case (n 8) 161–2. Alcan (n 10) 46 [41]. (1998) 194 CLR 355. Ibid 384.

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10.10

The ‘canon of construction’ instanced was the presumption, discussed in 13.9ff, that Parliament does not interfere with common law rights. It is worth emphasising another point made in this extract, namely, that ordinarily the ‘literal’ or ‘ordinary’ meaning of a statute will give effect to its purpose.17 Higgon v O’Dea,18 extracted below, illustrates the point that sometimes the language of a statute suggests a result that cannot be avoided. Higgon v O’Dea [1962] WAR 140 Full Court of the Supreme Court of Western Australia, 1961 Hale J [at 142]:

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On 14  April  1961 the respondent, a police constable, laid a complaint against the appellant under the Justices Act 1902 charging that the appellant on 4 February 1961 being the keeper of a room, to wit the Globe Amusement Arcade, did knowingly suffer a person under the age of 16 years, namely, one Chave, to enter and remain therein contrary to s 84 of the Police Act 1892. The charge was heard on 9 May 1961 by a stipendiary magistrate. During the hearing on that day the charge was amended to make it read ‘being the keeper of a room of public resort’. The learned magistrate reserved his decision, and on 20 July 1961 he read a written judgment in which he held that if the charge were further amended to read ‘being the keeper of a place of public resort’ the appellant would be guilty, and he said that he would make the amendment and convict the appellant, whom he then proceeded to fine £3 with £2 0s 9d costs. No amendment was in fact made so that the record appears to show that the appellant was convicted in respect of a room of public resort. On 14  August  1961 the appellant obtained an order to review this decision which is now returned before this Court. Section 84 of the Police Act 1892 reads as follows: ‘Every person who shall have or keep any house, shop, or room, or any place of public resort, and who shall wilfully and knowingly permit drunkenness or other disorderly conduct in such house, shop, room, or place, or knowingly suffer any unlawful games or any gaming whatsoever therein, or knowingly permit or suffer persons apparently under the age of sixteen years to enter and remain therein, or knowingly permit or suffer prostitutes or persons of notoriously bad character to meet together and remain therein, shall, on conviction for every such offence, be liable to a penalty of not more than five pounds …’. [Hale J held that there was no substance in the appellant’s challenge to the amendment proposed by the magistrate. He continued:] I now turn to s 84 itself. Apart from the question of which nouns are governed by the adjectival expression ‘of public resort’ … the language of the section is, in my opinion, unambiguous. It subjects to a penalty the keeper of any house, shop, or room, or place of public resort who knowingly (i) permits therein drunkenness or disorderly conduct; or (ii) permits therein unlawful games or any gaming; or (iii) permits persons apparently under the age of 16 to be therein; or (iv) permits prostitutes or persons See also Saraswati v The Queen (1991) 172 CLR 1, 21 (McHugh J) (‘Saraswati’); DPP (Vic) v Leys (2012) 44 VR 1, 15–16 [45] (‘Leys’); and discussion at 10.22 and 10.26. 18 [1962] WAR 140.

17

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of notoriously bad character to meet therein. The argument for the appellant is that even if the words ‘of public resort’ are read as governing the words ‘house, shop, or room’ the prohibition relating to persons under 16  years of age is so absurd that the section must of necessity be read down in some manner, and that the absurdity becomes even greater if the house, shop, or room need not be ‘of public resort’. [His Honour discussed the history of s 84 and continued:] I have no doubt but that the section should be taken as relating to the same subject-matter as its predecessors, ie to premises of public resort. Thus read the prohibitions relating to drunkenness, disorderly conduct, gaming, prostitutes and persons of notoriously bad character are perfectly rational, and in fact they are what one would expect to find in such a statute, but the same cannot be said of the reference to persons apparently under the age of 16. Under this section every shopkeeper, hotel-keeper and theatre proprietor who permits a child to enter his premises commits an offence, as does every local authority which permits a child to enter its parks or reserves. Such a result is clearly absurd but, to my mind, it is equally clear that this is what the section enacts. If an enactment is susceptible of two meanings, one rational and one absurd, it is not merely permissible but it is proper for the court to adopt the rational meaning: but where the language is clear and susceptible of only one meaning it is not permissible for the court in effect to legislate by refusing to accept the plain meaning of the words used by Parliament, and this is especially so in the present case where the only effective emendation is to drop the entire expression ‘or knowingly permit or suffer persons apparently under the age of sixteen to enter and remain therein’ … In the present case the words of s 84, are, in my opinion, too intractable to permit of any alternative choice of meaning. This view leads inevitably to the conclusion that the appellant was rightly convicted.

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[Wolff CJ and Virtue J agreed.]

Following the decision in Higgon v O’Dea, the Police Act 1892 (WA) was amended to prohibit the entry of children onto premises where they might be exposed to moral danger, presumably better capturing what had been the original, actual, intent of the legislature, which had been imperfectly realised in text of the Act itself.19 Here we can see that the literal rule was strictly applied, despite the fact that the judge considered the result ‘absurd’: that, for example, even a council would be guilty of an offence in allowing someone under 16 to enter a park. It is worth considering whether the adoption of the purposive or ‘modern’ approaches to interpretation (see 10.14–10.28) would have yielded a different result in this instance. GOLDEN RULE In Grey v Pearson20 Lord Wensleydale qualified the literal approach in the following way:

10.11

I have been long and deeply impressed with the wisdom of the rule, now, I believe, universally adopted, at least in the Courts of Law in Westminster Hall, that in construing wills and indeed Police Act 1963 (WA) s 3. (1857) 6 HL Cas 61; 10 ER 1216.

19 20

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statutes, and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no farther.21

10.12 intestate: someone who dies without leaving a will

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10.13

This limitation on the literal approach is known as the ‘golden rule’. Like the comments of Spigelman  CJ 150  years later (see  10.2), Lord Wensleydale’s comments were made with reference to documents generally. Although the golden rule has only occasionally needed to be used, it has been applied if a court is persuaded that the document in question contains an error. When Lord Wensleydale said that ‘the grammatical and ordinary sense of the words’ (that is, their literal meaning) may be modified so as to avoid ‘absurdity, or some repugnance or inconsistency with the rest of the instrument’, he was referring to absurdity or inconsistency in the language itself. He was not speaking more generally of absurdity as to the results that might be produced. However, as Chernov JA observed in Footscray City College v Ruzicka,22 ‘the [golden] rule is also otherwise applied to avoid construing legislation so as to produce patently unintended or absurd results’.23 Section 61B(3) of the Wills, Probate and Administration Act 1898 (NSW) originally provided: ‘If the intestate leaves a husband or wife and also leaves issue, then if the value of the estate … does not exceed the prescribed amount the whole estate shall be held in trust for the husband and wife …’. This was an example of a drafter’s mistake. It was obviously intended that in the situation described the whole estate should be held in trust for the husband or wife (as one of the two must be deceased, and the estate could not be held in trust for the deceased spouse). The context would have compelled a court to interpret ‘and’ as ‘or’, for otherwise the provision could not have operated. Before the issue arose for judicial consideration the error was corrected by amending legislation. Occasionally, a court has considered itself compelled by the context or underlying purpose to read a conjunctive ‘and’ between paragraphs in a section as meaning ‘or’.24 Sometimes, however, it is less obvious whether a court should apply the golden rule. A literal interpretation, while not rendering a provision completely ineffective, might have given it a different meaning from that which was probably intended. In Adler v George25 the English Court of Appeal had to interpret s 3 of the Official Secrets Act  1920 (UK), which provided that it was an offence for any person to obstruct a member of Her Majesty’s forces ‘in the vicinity of any prohibited place’. The defendant argued that he had not committed an offence against the section, since the obstruction in question had occurred in a prohibited place, not in its ‘vicinity’ (meaning nearby but not actually in). Nevertheless, the defendant’s conviction was upheld; the words in question were interpreted as meaning ‘in or in the vicinity of any prohibited place’. See also King v Rowlings.26 In the case of Higgon v  O’Dea we can see  that the golden rule was not applied because the correction required to the legislation was not for a minor drafting error — such as reading ‘and’ for ‘or’ — but rather, as the judge expressed, dropping the entire 23 24 25 26 21 22

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Ibid 106; 1234. (2007) 16 VR 498, 505. Ibid 505 (Chernov JA), 499 (Warren CJ and Maxwell P agreeing). R v O’Neill; Ex parte Moran (1985) 58 ACTR 26; Smith v Papamihail (1998) 88 FCR 80. [1964] 2 QB 7. [1987] VR 20.

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expression ‘or knowingly permit or suffer persons apparently under the age of sixteen to enter and remain therein’. For a discussion concerning the use of the purposive approach to correct errors or oversights, see 10.29ff. PURPOSIVE APPROACH The common law purposive approach to interpretation of legislation is applied by determining the purpose of Parliament in passing the legislation or the particular provision in question, and adopting an interpretation of the words that is consistent with that purpose. This approach has its origins in the so-called mischief rule which was set out in 1584 in Heydon’s Case.27 In this case all of the judges met [a]nd it was resolved by them, that for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law), four things are to be discerned and considered:– (1st.) What was the common law before the making of the Act. (2nd.) What was the mischief and defect for which the common law did not provide. (3rd.) What remedy the Parliament hath resolved and appointed to cure the disease of the Commonwealth. And,

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(4th.) The true reason of the remedy; and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico.28

Whatever the position in relation to the mischief rule may have been,29 it was generally accepted that at common law the purposive approach applied only when an attempt to apply the literal approach produced an ambiguity or an inconsistency.30 Occasionally, however, it was suggested that the purposive approach should simply be preferred to the literal approach. In the Northern Territory, when only the common law approaches were available, it was suggested that the purposive approach could be used even when the meaning of the statute appeared to be clear on its face.31 Generally, the purpose was deduced by looking at  the statute as a whole. A  consideration of the previous versions of the statute sometimes assisted. In Pambula District Hospital v Herriman32 Samuels JA commented that ‘it has always been open to the court to have regard to the historical setting of a statute and by that means to ascertain what the object of the legislature was’.33 Of course, a search for the purpose of a legislative provision was not always successful. In Avel Pty Ltd v Attorney-General (NSW) (‘Avel’),34

10.14

mischief rule: words in a statute may be interpreted with reference to the mischief they were enacted to address, so that the mischief is suppressed pro private commodo: means that any action was for purely private gain pro bono publico: means for the benefit of the public

10.15

(1584) 3 Co Rep 7a; 76 ER 637. Ibid 7b; 638. 29 See the discussion of s 22 of the Acts Interpretation Act 1915 (SA) at 10.24. 30 See Mills v Meeking (n 11) 234–5 (Dawson J), discussed at 10.20. 31 KP Welding Construction Ltd v Herbert (1995) 102 NTR 20, 40–1; Peninsula Group Pty Ltd v Registrar-General for the Northern Territory (1996) 136 FLR 8, 12. 32 (1988) 14 NSWLR 387. 33 Ibid 410; see also ibid 394 (Kirby P). 34 (1987) 11 NSWLR 126 (‘Avel’). 27 28

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for example, the New South Wales Court of Appeal considered provisions contained in the much-amended Gaming and Betting Act 1912 (NSW). Kirby P said: The legislation relevant to the present appeal … does nothing to add to the coherency of this body of law. It is a jumble of ill-matched and poorly integrated enactments. If there is now to be found a common thread through it all, it would seem to be nothing more than revenue raising. This conclusion suggests that the only safe approach to the construction of the web of applicable legislation is an attention to the literal words of the legislation. A  ‘purposive’ approach founders in the shallows of a multitude of obscure, uncertain and even apparently conflicting purposes.35

10.16

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10.17

If we reflect on the nature of the purposive approach it will be clear that we have all used it, usually intuitively, to interpret documents. It often comes down to a conviction that our interpretations may be closer to the original intentions of a document’s author(s) if we go beyond the surface meanings of the words, seek to establish the underlying intentions of the author(s), and then strive for interpretations that give effect to those intentions. While doing this, we are likely to be aware of risks associated with this approach. It is possible that we are in error as to the underlying intentions of the author(s); or we may identify a supposed intention that is self-serving, leading to a biased interpretation of the document. The reader will probably also have argued, in a context that has nothing to do with the law, that a particular interpretation of a document is unacceptable because it would lead to a result that could hardly have been intended by the document’s author. We are all familiar with the idea that we can test the validity of an interpretation by applying it to fictitious, but plausible, scenarios. This form of reasoning is an aspect of the purposive approach, because we are arguing that the interpretation is not what the author of the document would have intended: the author’s purpose could not have been to produce such a result. The reasoning of the court in Maritime Services Board of New South Wales v Posiden Navigation Inc,36 extracted below, produced a result that appeared to be consistent with what was taken to be the legislature’s underlying purpose. Maritime Services Board of New South Wales v Posiden Navigation Inc [1982] 1 NSWLR 72 Supreme Court of New South Wales, 1982 Yeldham J [at 74]: These matters raise questions as to the meaning and effect of two sections  of the Prevention of Oil Pollution of Navigable Waters Act 1960. That Act, as its name denotes, and as its preamble states, is ‘an Act relating to the prevention of the pollution of navigable waters by oil …’. The first section is s 7E which, so far as is relevant, is in these terms:

Ibid 127 (Kirby P). [1982] 1 NSWLR 72.

35 36

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(1) This section applies to a tanker, whether within the jurisdiction or elsewhere. (2) Where a discharge of oil or any mixture containing oil occurs from a tanker the Board may (whether or not a notice has been served in respect of the tanker under section 7A and complied with) cause such things to be done as it thinks proper to prevent, or reduce the extent of, the pollution by the oil or mixture containing oil of any waters within the jurisdiction, any part of the New South Wales coast or any New South Wales reef, or to remove or reduce the effects of the pollution by the oil or mixture containing oil of any such waters, coast or reef. (3) Subject to subsection  (4), where the Board has incurred expenses or other liabilities in the exercise of its powers under subsection (2) in relation to any oil or any mixture containing oil that has discharged from a tanker, the total amount of those expenses and liabilities, or where the discharge of oil mixture containing oil did not occur as a result of the actual fault or privity of the owner, that total amount to the extent that it does not exceed the maximum liability applicable to the tanker under subsection (5), in relation to that incident — (a) is a debt due to the Board by, and may be recovered by the Board in any court of competent jurisdiction from, the owner of the tanker; and (b) is a charge upon the tanker which may be detained by a person authorised by the Board and may be so detained until the amount is paid or security for the payment of the amount is provided to the satisfaction of the Board.

The present matters are two actions by the Maritime Services Board of New South Wales (which I will call ‘the MSB’) to recover as a debt substantial sums of money from two shipowners … under s 7E(3) … The parties asked me to determine as a separate issue, before the trial of the actions, and pursuant to the Supreme Court Rules 1970, Pt 31, r 2, the meaning and effect of the words in s 7E(3) ‘the total amount of those expenses and liabilities’ … The critical question in the present case is whether … the plaintiff is entitled to recover from the relevant defendant sums representing the wages payable to permanent employees, some of whom were diverted from other tasks for the purpose of assisting in the clean-up of the spillage of oil, overhead expenses relating to them, and the cost of using its equipment which would or may have been employed for other purposes. Each defendant conceded that it was liable to reimburse the plaintiff for moneys which it has paid or liabilities which it has incurred to third parties (eg outside contractors, etc) but claimed that the expressions ‘expenses and liabilities’ (s 7E) … did not go beyond this … In the present case it would, in my opinion, require clear words to bring about the result that, in every case where the MSB contracted out the whole or part of the work of cleaning up the results of oil pollution, it could recover from the owner of the vessel from which the oil was discharged in respect of all moneys paid out by it pursuant to such a contract, but could recover nothing (except perhaps overtime payments if any were made) where it diverted its own men and materials from other tasks and used them in the clean-up operation. In my view, the mischief and defect for which the common law did not provide, and to which s 7E … in particular, and the various oil pollution provisions of the statute in general, were directed, was the conferring upon the harbour authority of the power to itself prevent or eradicate pollution by oil, with all its terrible consequences, and to recover in full against the shipowner for the cost of cleaning-up, whether or not that involved paying out moneys to any third party … I regard the present case as one for the application of the rule in Heydon’s Case (1584) 3 Co Rep 7a; 76 ER 637: see Craies on Statute Law, 7th ed (1971) 96 ff. See also

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Ward v The Queen (1981) 54 ALJR 271, 279. The remedy that Parliament resolved and appointed to cure the mischief and defect for which the common law did not provide is that to which I have referred. The choice here is between a narrow construction of the two sections, in which the plaintiff would be limited to recovering from the defendants money which it had become liable to pay or had paid out to another or others or had incurred to its employees because of the doing of the work, as distinct from outgoings which the plaintiff would have had to bear in any event, on the one hand; and on the other hand, a broad construction which would enable the MSB to recover in full the actual cost to it, whether or not it uses its own men and equipment in the clean-up operation. In my opinion, the latter is the proper construction and it does not do violence to the words of either section. I regard it as … able to be comprehended within the words ‘expenses or other liabilities’. Plainly, the mischief to which the sections in question, and indeed the Act as a whole, is directed, when considered in conjunction with the nature and functions of the MSB as set out in its own statute and in the 1960 Act, requires a broad approach to the question of the person or body who is ultimately to be liable for the cost of the clean-up operations where oil pollution takes place. That broad approach requires the rejection of fine distinctions between cases where the MSB has employed others to do the work and where it has done it with its own men and facilities. This conclusion does not mean, as Mr  Rayment submitted, that the Board is entitled to make a profit from its clean-up operations or to make a ‘commercial charge’ for the work done. But it does mean that it is entitled to calculate the actual cost to it of using its own employees, including overheads and administration charges, as well as the actual cost to it of using its own plant, and any necessary overheads involved in the latter. This result places squarely upon the shipowner whose vessel has disgorged oil the cost of removing that oil … That this was the intention of the Legislature I think is plain, notwithstanding the ambiguity and uncertainty of the words used to express it. I do not regard it as an answer to say, as Mr Rayment submitted, that because the plaintiff was in any event obliged to pay its employees and to incur overheads and administrative expenses in relation to them, and because it was required to retain and maintain its plant and equipment, these matters being unrelated to their employment in any clean-up operations, it cannot recover under either section. It is true to say, in one sense, that what occurred was merely a diversion of labour and resources from other tasks and perhaps the bringing into operation of men and equipment who were otherwise not working (eg overtime hours, etc). On the other hand, the reality of the situation is that, if the Board had elected not to do this, but to wholly sub-contract the work to others, it would admittedly have been entitled to recover the entire cost. And in addition it did in fact provide its men and facilities to carry out work which was required to be carried out only because of the escape of oil from the offending vessels. Furthermore, it is apparent that other work of the Board upon which many of the men and some of the equipment would have been employed, would necessarily have been deferred. But the latter is not a very material consideration. The principle which I discern from the legislation is that the owner of the offending ship must pay for the cleaningup of the oil which came from that vessel. Plainly, the MSB is given the power to do the work itself because otherwise it would either not be done or would not be done with sufficient promptness to render it effective. It would be curious in the extreme if, in a case where the MSB did not sub-contract any of the work but did it all with the use of its own men and equipment, without any overtime payments being involved, it could

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not recover in any way from the owner of the offending ship. Any such consequence would require clear words and these do not appear in either section. Hence, I conclude that the plaintiff is entitled to succeed in principle in both cases in respect of all the heads under which it seeks reimbursement.

Here we can see how regard to the Act’s purpose, or the mischief it was trying to address, resolved an ambiguity in the wording of the legislation. That is, whether the expression ‘total expenses and liabilities’37 referred to either (a)  a broad interpretation, allowing recovery of all the expenses in cleaning up pollution in the water; or (b) a narrow interpretation, only additional expenses, beyond what the Maritime Services Board would normally incur. The Court considered that the purpose of the Act — or the mischief it was trying to address — was to prevent pollution and to allow the Board to claim the cost of clean-up against a polluter, a purpose that was achieved by the broad reading rather than the narrow one.

Purposive approach under legislation

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INTRODUCTION OF S 15AA AND SIMILAR PROVISIONS During the 1970s and early 1980s some Australian courts were subjected to public criticism for what were considered to be inappropriately literal approaches to the interpretation of legislation. The High  Court, in particular, was criticised for handing down decisions that strictly construed taxation legislation, instead of giving effect to the underlying purpose of the legislation. Early in 1981 the Commonwealth AttorneyGeneral’s Department conducted a symposium at which ways of improving the quality of statutory interpretation were discussed.38 Later in 1981 the Commonwealth Parliament enacted s 15AA of the Acts Interpretation Act 1901, which provided:

10.18

In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.

In 2011 s 15AA was amended, and it now provides: In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.

In comparing the current s 15AA with the provision it replaced, the observations of Dawson, Toohey and Gaudron JJ in Chugg v Pacific Dunlop Ltd39 concerning s 35(a) of the Interpretation of Legislation Act 1984 (Vic), which was based on the original s 15AA, should be noted. They drew attention to a limitation on s 35(a): The choice directed by s  35(a) … is not as to the construction that ‘will best achieve’ the object of the Act. Rather, it is a limited choice between ‘a construction that would Prevention of Oil Pollution of Navigable Waters Act 1960 (NSW) s 7E(3). Published as Another Look at Statutory Interpretation (AGPS, 1982). 39 (1990) 170 CLR 249. 37 38

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promote the purpose or object [of the Act]’ and one ‘that would not promote that purpose or object’.40

10.19

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10.20

The current s  15AA remedies this shortcoming by allowing for the possibility of a choice between two or more interpretations each of which would promote the Act’s purpose or object, in which event the interpretation that would best achieve that purpose or object must be chosen. The other differences between the current section and the previous provision are best understood as an updating of the language without any change in meaning. In the years following the enactment of the original s 15AA, similar provisions were enacted in the states and territories.41 The provisions currently in force are: • Legislation Act 2001 (ACT) s 139 (see 10.22); • Interpretation Act 1987 (NSW) s 33; • Interpretation Act 1978 (NT) s 62A; • Acts Interpretation Act 1954 (Qld) s 14A (see 10.23); • Acts Interpretation Act 1915 (SA) s 22 (see 10.24); • Acts Interpretation Act 1931 (Tas) s 8A; • Interpretation of Legislation Act 1984 (Vic) s 35(a); • Interpretation Act 1984 (WA) s 18. All the provisions apply in the interpretation of delegated legislation made under these Acts, as well as to the Acts themselves.42 Sometimes the drafter finds it helpful to include a statement of purpose in the legislation itself. Since 1985 the first section of each Victorian Act has contained a statement of the purpose (or purposes) of the Act. This also occurs in some legislation of other jurisdictions. OPERATION AND LIMITATIONS OF S 15AA AND SIMILAR PROVISIONS In Mills v Meeking Dawson J of the High Court offered the following explanation of the effect of the Victorian equivalent of s 15AA and, by implication, s 15AA itself: [T]he literal rule of construction, whatever the qualifications with which it is expressed, must give way to a statutory injunction to prefer a construction which would promote the purpose of an Act to one which would not, especially where that purpose is set out in the Act. Section  35 of the Interpretation of Legislation Act must, I  think, mean that the purposes stated in Pt 5 of the Road Safety Act are to be taken into account in construing the provisions of that Part, not only where those provisions on their face offer more than one construction, but also in determining whether more than one construction is open. The requirement that a court look to the purpose or object of the Act is thus more than an instruction to adopt the traditional mischief or purpose rule in preference to the literal rule of construction. The mischief or purpose rule required an ambiguity or inconsistency before a court could have

Ibid 262 (Dawson, Toohey and Gaudron JJ). See Pearce (n 3) 45–57 [2.14]–[2.28] on these provisions. 42 Acts Interpretation Act 1901 (Cth) s 46 and Legislation Act 2003 (Cth) s 13; Legislation Act 2001 (ACT) s 136; Interpretation Act 1987 (NSW) s 33 (Acts and statutory rules); Interpretation Act 1978 (NT) s 4; Statutory Instruments Act 1992 (Qld) s 14; Acts Interpretation Act 1915 (SA) s 3A; Acts Interpretation Act 1931 (Tas) s 4; Interpretation of Legislation Act 1984 (Vic) s 35(a); Interpretation Act 1984 (WA) s 18. 40 41

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regard to purpose: Miller v Commonwealth (1904) 1 CLR 668, 674; Wacal Developments Pty Ltd v Realty Developments Pty Ltd (1978) 140 CLR 503, 513.The approach required by s 35 needs no ambiguity or inconsistency; it allows a court to consider the purposes of an Act in determining whether there is more than one possible construction. Reference to the purposes may reveal that the draftsman has inadvertently overlooked something which he would have dealt with had his attention been drawn to it and if it is possible as a matter of construction to repair the defect, then this must be done. However, if the literal meaning of a provision is to be modified by reference to the purposes of the Act, the modification must be precisely identifiable as that which is necessary to effectuate those purposes and it must be consistent with the wording otherwise adopted by the draftsman. Section 35 requires a court to construe an Act, not to rewrite it, in the light of its purposes.43

This statement has been endorsed on several occasions.44 Dawson  J’s initial point is made explicit in the Australian Capital Territory’s version of s 15AA: see 10.22. The last point made by Dawson  J in the extract above is particularly important. Section 15AA and similar provisions do not permit the courts to ignore the actual words of a statute. This was illustrated by the acknowledgment of Kirby P in several cases in the New South Wales Court of Appeal that he was bound to give effect to the clear language of a statute although in his own opinion the result was anomalous or unfair.45 Dawson J’s final point was also echoed in the decision of the Full Court of the Federal Court in R v L.46 In that case, Burchett, Miles and Ryan JJ commented: The requirement of s  15AA(1) that one construction be preferred to another can have meaning only where two constructions are otherwise open, and s 15AA(1) is not a warrant for redrafting legislation nearer to an assumed desire of the legislature.47

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The need for caution in applying provisions such as s 15AA was endorsed and amplified by the Full Federal Court, comprising Drummond, Cooper and Finkelstein  JJ, in Whittaker v Comcare.48 In the High Court’s decision in Carr v Western Australia (‘Carr’),49 Gleeson CJ drew attention to an important limitation of s 15AA and its equivalents in other jurisdictions. He explained that the purposive approach

10.21

may be of little assistance where a statutory provision strikes a balance between competing interests, and the problem of interpretation is that there is uncertainty as to how far the provision goes in seeking to achieve the underlying purpose or object of the Act. Legislation rarely pursues a single purpose at all costs. Where the problem is one of doubt about the extent to which legislation achieves a purpose, stating the purpose is unlikely to solve the problem. For a court to construe the legislation as though it pursued the purpose to the Mills v Meeking (n 11) 235 (Dawson J) (emphasis added). See, eg, the Victorian Court of Criminal Appeal in R v Boucher [1995] 1 VR 110, 123–4; the Victorian Court of Appeal in DPP (Vic) v Ali (2009) 23 VR 203, 216; the Full Court of the South Australian Supreme Court in F,  BV v  Magistrates Court of South  Australia (2013) SASR 232, 240–1 [10]–[11]; the Full Court of the Federal Court, with reference to the amended version of s 15AA, in Anglican Care v NSW Nurses and Midwives Association (2015) 231 FCR 316, 325 [49] (Bromberg and Katzmann JJ); Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCAFC 69, [29] (Ross J) (‘Hutchinson Ports Appeal’). 45 Michael Kirby, ‘Statutory Interpretation and the Rule of Law — Whose Rule, What Law?’ in David St Leger Kelly (ed), Essays on Legislative Drafting (Adelaide Law Review Association, 1988) 94. 46 (1994) 49 FCR 534. 47 Ibid 538 (Burchett, Miles and Ryan JJ), citing Trevisan v Commissioner of Taxation (1991) 29 FCR 157, 162 (Burchett J). 48 (1998) 86 FCR 532, 543–4. 49 (2007) 232 CLR 138 (‘Carr’). 43 44

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fullest possible extent may be contrary to the manifest intention of the legislation and a purported exercise of judicial power for a legislative purpose.50

To illustrate the point, Gleeson CJ added: [I]t may be said that the underlying purpose of an Income Tax Assessment Act is to raise revenue for government. No one would seriously suggest that s 15AA of the Acts Interpretation Act has the result that all federal income tax legislation is to be construed so as to advance that purpose. Interpretation of income tax legislation commonly raises questions as to how far the legislation goes in pursuit of the purpose of raising revenue. In some cases, there may be found in the text, or in relevant extrinsic materials, an indication of a more specific purpose which helps to answer the question. In other cases, there may be no available indication of a more specific purpose.51

When the provision to be interpreted lacks an obvious purpose the interpreter may be tempted to suggest that it has a specific underlying purpose or object. Articulating such a purpose may involve unhelpful speculation. Sometimes, as Kirby P recognised in Avel52 (see 10.15), interpretation by reference to purpose should not be pursued.53 Further, courts should refrain from projecting their own policy views into the interpretive process. In Australian Education Union v  Department of Education and Children’s Services,54 French CJ, Hayne, Kiefel and Bell JJ observed: In construing a statute it is not for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose. The statutory purpose in this case was to be derived from a consideration of the scheme of the Act as a whole, the respective functions of Pts II and III of the Act, and the regulatory requirements of Pt IV of the Act.55

In addition to these limitations, the point must also be re-emphasised that, as McHugh J stated, ‘[i]n many cases, the grammatical or literal meaning of a statutory provision will give effect to the purpose of the legislation’.56

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10.22

AUSTRALIAN CAPITAL TERRITORY EQUIVALENT OF S 15AA In 1982 the Australian Capital Territory legislature enacted s  11A of the Interpretation Act  1967, which was closely based on the Commonwealth s  15AA. Section  11A was replaced with s 139 of the Legislation Act 2001 (ACT), which provides: (1) In working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation. (2) This section applies whether or not the Act’s purpose is expressly stated in the Act.

Ibid 143 (Gleeson CJ). Ibid. For similar comments, see Harrison v Melhem (2008) 72 NSWLR 380, 397 (Mason P, Spigelman CJ agreeing at 382, Beazley and Giles JJA agreeing at 403), 406 (Basten JA). The remarks of Gleeson CJ in Carr were reinforced by the High Court in Alcan (n 10) 47–8 (Hayne, Heydon, Crennan and Kiefel JJ); reference should also be made to the comments of French CJ at 35. See also Australian Postal Corporation v Sinnaiah (2013) 213 FCR 448, 456–7. 52 Avel (n 34). 53 See also Mitchell v Bailey (2008) 168 FCR 370, 378–9. 54 (2012) 248 CLR 1. 55 Ibid 14 (footnote omitted). 56 Saraswati (n 17) 21. 50 51

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Section 139 is to be read together with s 7(3) of the Legislation Act 2001, which provides that a reference to an Act includes a reference to a provision of an Act. Section 138 of the Act provides that the term ‘working out the meaning of an Act’ means: (a) resolving an ambiguous or obscure provision of the Act; or (b) confirming or displacing the apparent meaning of the Act; or (c) finding the meaning of the Act when its apparent meaning leads to a result that is manifestly absurd or is unreasonable; or (d) finding the meaning of the Act in any other case.

As to the use of the term ‘best achieve the purpose of the Act’ in s  139(1), see  the comments on the current version of the Commonwealth s 15AA at 10.18. Section 139 is of particular interest because, when read with s 138, it makes clear that a meaning that is compatible with the purpose is to be preferred to a meaning that is apparent on the face of the provision in question, although such a meaning must be open on the basis of the words of the legislation.57 In applying s 139 of the Legislation Act 2001, s 30 of the Human Rights Act 2004 (ACT) is also relevant. Section 30 provides: ‘So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights.’ QUEENSLAND EQUIVALENT OF S 15AA Section 14A of the Acts Interpretation Act 1954 (Qld) provides:

10.23

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(1) In the interpretation of a provision of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation. (2) Subsection (1) does not create or extend criminal liability, but applies whether or not the Act’s purpose is expressly stated in the Act. (3) To remove any doubt, it is declared that this section  applies to an Act passed after 30 June 1991 despite any presumption or rule of interpretation.

Section 36 of the Act provides that ‘ “purpose”, for an Act, includes policy objective’. As to the use of the term ‘best achieve the purpose of the Act’ in s  14A(1), see  the comments on the current version of the Commonwealth s 15AA at 10.18. SOUTH AUSTRALIAN EQUIVALENT OF S 15AA Section 22 of the Acts Interpretation Act 1915 (SA) provides:

10.24

(1) Subject to subsection (2), where a provision of an Act is reasonably open to more than one construction, a construction that would promote the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) shall be preferred to a construction that would not promote that purpose or object. (2) This section does not operate to create or extend any criminal liability.

Notwithstanding its similarity to the original version of Commonwealth s  15AA, before 2010 it was arguable that s 22(1) had a more limited operation. The section’s words ‘where a provision of an Act is reasonably open to more than one construction’ See also the comments of Besanko J in Casey v Alcock (2009) 165 ACTR 1, 18, repeated by the Australian Capital Territory Court of Appeal in Haurelink v Furler (2012) 6 ACTLR 151, 159–60.

57

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are absent from s  15AA. That could have meant that a construction that would promote the purpose or object of the Act must be preferred only if the provision being interpreted was ambiguous on its face. However, the position was clarified by the Full Court of the South Australian Supreme Court in South Australia v Lampard-Trevorrow: Section 22 of the Acts Interpretation Act 1915 (SA) should not be read as permitting a reference to the purpose of an Act only if it is first shown that the relevant provision ‘is reasonably open to more than one construction’: see Burch v South Australia (1998) 71 SASR 12 at 18–19 Cox J, at 27 Lander J and at 40 Bleby J. Consistently with contemporary approaches to statutory interpretation, s 22 can and should be read as permitting a consideration of the purpose of the legislation from the outset of the process of construction.58

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IMPACT OF S 15AA AND ITS COUNTERPARTS 10.25 How have courts and tribunals regarded the statutory form of the purposive approach in s 15AA of the Acts Interpretation Act 1901 (Cth) and equivalent provisions in the states and territories? In the early years of their operation, they were referred to relatively infrequently in judgments and explanations for decisions. There were several reasons for this. First, these provisions were considered in some quarters as being merely declaratory of the common law. Some courts and tribunals took the view that they required no changes in existing approaches to the interpretation of legislation. Second, courts in a few cases anticipated the enactment of these provisions. The High Court’s decision in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation,59 which is widely regarded as representing an important shift in that court’s approach to the interpretation of taxation legislation, was handed down one week before s 15AA came into operation. In recent times Australian courts and tribunals have more frequently relied on 10.26 these provisions. They are now routinely referred to in explanations of the interpretive principles that have been applied by courts and tribunals dealing with legislation. However, since the High Court decision in CIC Insurance Ltd v Bankstown Football Club Ltd (‘CIC Insurance’),60 which is discussed at 10.27, it has been generally assumed that the provisions co-exist with the common law approaches dealt with at 10.7–10.17. The introduction of s  15AA and equivalent provisions did not produce the adverse consequences some had predicted. One of the reasons for this is, as noted at 10.9 and 10.21, that the drafter will have achieved the desired objective if the literal meaning of a provision coincides with the interpretation that is arrived at as a consequence of applying the section. As the Victorian Court of Appeal observed in Director of Public Prosecutions (Vic) v Leys61 (‘Leys’): ‘In ordinary circumstances, the literal interpretation of a statutory provision will give effect to its purpose.’62

Context: the modern approach to interpretation 10.27 The consideration of the purpose of an enactment in its interpretation from the start, rather than when ambiguity arises, forms part of the ‘modern approach’ to statutory 60 61 62 58 59

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(2010) 106 SASR 331, 376. (1981) 147 CLR 297. (1997) 187 CLR 384 (‘CIC Insurance’). Leys (n 17). Ibid 15–16 [45].

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interpretation, which emphasises interpreting statutory provisions in ‘context’. As Mason J stated, to read the section in isolation from the enactment of which it forms a part is to offend against the cardinal rule of statutory interpretation that requires the words of a statute to be read in their context … Problems of legal interpretation are not solved satisfactorily by ritual incantations which emphasize the clarity of meaning which words have when viewed in isolation, divorced from their context. The modern approach to interpretation insists that the context be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity might be thought to arise.63

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But what is meant by ‘context’? In statutory interpretation, ‘context’ may 10.28 have essentially three meanings. The first is the narrowest meaning: the syntactical construction in which a term appears. As Mason  J stated above, to focus solely on this is to breach a cardinal rule of interpretation. Nonetheless, there are various rules that assist with interpretation in this narrowest of ‘contexts’. The second is a focus on context of the Act as a whole. This understanding of ‘context’ is found even in Higgins  J’s description of the operation of the ‘literal approach’, discussed above in 10.8. Various rules to assist with this both these levels of context can be found in Chapter  12. The third is context ‘in its widest sense’, which was discussed in the High Court case of CIC Insurance: [T]he modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses ‘context’ in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy … Instances of general words in a statute being so construed by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd (1986) 6 NSWLR 363, 388, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent …64

The reference to the ‘mischief ’ here indicates that the purpose of legislation is part of its wider ‘context’. Context in this ‘widest sense’ also includes the legislative history of an enactment.65 The Victorian Court of Appeal has further stated: Context also may include time, place, and any other circumstance that could rationally assist understanding of meaning. It may encompass the facts and circumstances which were within the knowledge or contemplation of the legislature. Therefore, in construing a statute, a court may have regard to the matrix of facts in which the statute was enacted.66

It is this emphasis on context in its widest sense that former Chief Justice Spigelman had in mind when he stated, extrajudicially, that the courts had shifted in their K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 312, 315 (citations omitted). CIC Insurance (n  60) 408 (Brennan  CJ, Dawson, Toohey and Gummow  JJ). See  recent High  Court endorsement of this approach in R v A2; R v Magennis; R v Vaziri [2019] HCA 35 [31]–[37] (Kiefel CJ and Keane J), [124] (Bell and Gageler JJ), [163] (Edelman J). 65 Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1. 66 Commissioner of State Revenue v EHL Burgess Properties Pty Ltd [2015] VSCA 269, [52] (citations omitted). 63 64

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emphasis from ‘text to context’: see 10.2.67 The extent to which the courts may have recourse to materials beyond the Act itself (extrinsic materials), as part of determining the wider context of the Act, are considered in detail in Chapter 11. MODERN APPROACH AND DRAFTING ERRORS OR OVERSIGHTS 10.29 What effect does the purposive, or modern, approach have if the court determines that the legislative provision in question contains an error or that, due to an oversight, something has been omitted from the provision? This was a topic of some controversy, particularly when the implication of words into legislation to correct errors was under consideration. The question of the appropriate approach has now, to a degree, been settled by the High Court decision of Taylor v Owners — Strata Plan No 11564 (‘Taylor’).68 The practical application of these principles in particular cases, however, is often a complicated process. Prior to Taylor, one approach to implying words into legislation was that expressed 10.30 by McHugh  JA of the New  South  Wales Court of Appeal in Bermingham v  Corrective Services Commission of New South Wales (‘Bermingham’): [I]t is not only when Parliament has used words inadvertently that a court is entitled to give legislation a strained construction. To give effect to the purpose of the legislation, a court may read words into a legislative provision if by inadvertence Parliament has failed to deal with an eventuality required to be dealt with if the purpose of the Act is to be achieved.69

There is an overlap between this use of the purposive approach and the golden rule: see  10.11–10.17. In Bermingham McHugh  JA suggested that it was only if certain conditions were adhered to that the reading in of missing words could be a legitimate use of the purposive approach: First, the court must know the mischief with which the Act was dealing. Secondly, the court must be satisfied that by inadvertence Parliament has overlooked an eventuality which must be dealt with if the purpose of the Act is to be achieved. Thirdly, the court must be able to state with certainty what words Parliament would have used to overcome the omission if its attention had been drawn to the defect.70 Copyright © 2020. LexisNexis Butterworths. All rights reserved.

Those conditions were fulfilled and the Court of Appeal unanimously concluded that the legislation in question should be construed by reading in the words that were necessary to achieve the purpose of the legislature. A few weeks previously, a slightly differently constituted Court of Appeal had adopted the same approach in Tokyo Mart Pty Ltd v Campbell.71 This approach was followed in a number of cases, notably in the Victorian Court of Appeal decision of Leys, which added the additional criterion that the modified words must be reasonably open, that is, they must not be ‘unnatural, incongruous or unreasonable’ and must be ‘consistent with the statutory scheme’.72

69 70

Spigelman (n 7). (2014) 253 CLR 531 (‘Taylor’). (1988) 15 NSWLR 292, 302. Ibid, paraphrasing the principles formulated by Lord Diplock in Wentworth Securities Ltd v Jones [1980] AC 74, 105–6 (‘Wentworth Securities’). 71 (1988) 15 NSWLR 275. See also R v Di Maria (1996) 67 SASR 466, 474 (Doyle CJ, Prior and Nyland JJ agreeing at 477). 72 Leys (n 17) 38. 67 68

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CHAPTER 10

Approaches to Interpretation of Legislation

A more restrictive interpretation was given in R v Young73 by Spigelman CJ, who 10.31 suggested that it was misleading to characterise the judicial conduct described above as ‘reading in’ extra words:

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The three conditions set out by Lord Diplock [in Wentworth Securities Ltd v Jones (‘Wentworth Securities’),74 paraphrased by McHugh JA in Bermingham] should not be misunderstood. His Lordship did not say, nor do I take any of their Honours who have adopted the passage to suggest, that whenever the three conditions are satisfied, a court is at liberty to supply the omission of the legislature. Rather, his Lordship was saying that in the absence of any one of the three conditions, the court cannot construe a statute with the effect that certain words appear in the statute. … The court may construe words in the statute to apply to a particular situation or to operate in a particular way, even if the words used would not, on a literal construction, so apply or operate. However, the words which actually appear in the statute must be reasonably open to such a construction. Construction must be text based. … The process of construction will … sometimes cause the court to read down general words, or to give the words used an ambulatory operation. So long as the court confines itself to the range of possible meanings or of operation of the text — using consequences to determine which meaning should be selected — then the process remains one of construction. The construction reached in this way will often be more clearly expressed by way of the addition of words to the words actually used in the legislation. The references in the authorities to the court ‘supplying omitted words’ should be understood as a means of expressing the court’s conclusion with clarity, rather than as a description of the actual reasoning process which the court has conducted.75

Thereafter, in several decisions the Victorian Court of Appeal expressed reservations about endorsing the reasoning employed in R v Young. In Victorian Workcover Authority v Wilson,76 Callaway JA, with whose interpretation Winneke P agreed, held that the three conditions to which McHugh JA had referred in Bermingham had been satisfied and that the Court should read in the words that were necessary to make sense of the provision being applied.77 Victorian Workcover Authority v Vitoratos 78 is a second example, culminating in the 2012 decision of Leys. Despite this Victorian diffidence, when the efforts of a drafter of legislation fell short of a clear parliamentary purpose or object, Australian courts generally had applied the approach in R v Young.79 This difference in approach between R  v Young and Leys was resolved in the 10.32 High Court in Taylor where a majority of 3:2 (French CJ, Crennan and Bell JJ; Gageler 75 76 77 78 79 73 74

(1999) 46 NSWLR 681. Wentworth Securities (n 70). Ibid 687–8. (2004) 10 VR 298. Ibid 306 (Callaway JA). (2005) 12 VR 437, 439 (Callaway JA), 442–4 (Buchanan JA), 446 (Nettle JA, dissenting). See, eg, the New South Wales Court of Appeal case Re DG and the Adoption Act 2000 (2007) 244 ALR 195, 202–3 (Handley  AJA), 198 (Basten  JA agreeing), 196 (Santow  JA agreeing); Nominal Defendant v Ravenscroft [2008] 2 Qd R 32, 49–50, 52 (Muir JA, Jerrard and McMurdo JJA agreeing); James v Keogh (2008) 102 SASR 51, 60–1 (Doyle CJ), 69 (White and Layton JJ agreeing); Taylor v Centennial Newstan Pty Ltd (2009–2010) 76 NSWLR 379, 390–4 [44]–[56] (Beazley JA), 398–9 [78]–[79] (Giles JA), 401–2 [92]–[94] (Basten JA); Witheyman v Simpson [2011] 1 Qd R 170, 189–90 (Muir JA, Cullinane J agreeing), 198 (Fryberg J agreeing); Smith v Ash [2011] 2 Qd R 175, 184 [36] (Fraser JA, McMurdo P agreeing); R v Byerley (2010) 107 SASR 517, 546–7.

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and Keane JJ dissenting) overturned a decision of the New South Wales Court of Appeal80 that applied the broader approach in Bermingham, in order to imply words into the Civil Liability Act 2002 (NSW). As to the interpretive principles to be applied in reaching this conclusion, French CJ, Crennan and Bell JJ said: Consistently with this Court’s rejection of the adoption of rigid rules in statutory construction (Collector of Customs v  Agfa-Gevaert Ltd (1996) 186 CLR 389 at  401 per Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ; [1996] HCA 36), it should not be accepted that purposive construction may never allow of reading a provision as if it contained additional words (or omitted words) with the effect of expanding its field of operation. As the review of the authorities in Leys demonstrates, it is possible to point to decisions in which courts have adopted a purposive construction having that effect. And as their Honours observed by reference to the legislation considered in Carr … the question of whether a construction ‘reads up’ a provision, giving it an extended operation, or ‘reads down’ a provision, confining its operation, may be moot. The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of the addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision … It is answered against a construction that fills ‘gaps disclosed in legislation’ … or makes an insertion which is ‘too big, or too much at variance with the language in fact used by the legislature’ …81

Having made these observations, French CJ, Crennan and Bell JJ added that it is unnecessary to decide whether Lord Diplock’s three conditions are always, or even usually, necessary and sufficient. This is because the task remains the construction of the words the legislature has enacted. In this respect it may not be sufficient that ‘the modified construction is reasonably open having regard to the statutory scheme’ because any modified meaning must be consistent with the language in fact used by the legislature. Lord Diplock never suggested otherwise.82

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French CJ, Crennan and Bell JJ also noted that in Australian law, too great a departure from the statutory text ‘may violate the separation of powers in the Constitution’.83 In their dissenting judgment Gageler and Keane JJ reached the same conclusion84 as the majority in the New South Wales Court of Appeal, but without relying on the analysis in Leys or on Lord Diplock’s three conditions on which that analysis and Bermingham were based. Although they dissented as to the outcome, their statements on principle are now frequently referred to: Statutory construction involves attribution of legal meaning to statutory text, read in context.‘Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning … But not always.’ Context sometimes favours an ungrammatical legal meaning. Ungrammatical legal meaning sometimes involves reading statutory text as containing implicit words. Implicit words are sometimes words of limitation.They are sometimes words of extension. But they are always words of explanation. The constructional task remains Taylor v Owners — Strata Plan No 11564 (2013) 83 NSWLR 1. Taylor (n 68) 548 [37]–[38] (French CJ, Crennan and Bell JJ), quoting Western Bank Ltd v Schindler [1977] Ch 1, 18 (Scarman LJ) (other citations omitted). 82 Taylor (n 68) 548–9 [39], quoting Leys (n 17) 126 [96]. 83 Ibid 549 [40] (citations omitted). 84 Ibid 557–8 [67]–[71] (Gageler and Keane JJ). 80 81

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CHAPTER 10

Approaches to Interpretation of Legislation

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throughout to expound the meaning of the statutory text, not to divine unexpressed legislative intention or to remedy perceived legislative inattention. Construction is not speculation, and it is not repair. Context more often reveals statutory text to be capable of a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural. The choice between alternative meanings then turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies.85

What conclusions are to be drawn from the High  Court’s decision in Taylor? 10.33 The High Court explicitly acknowledged that the purposive approach may lead to the court reading a provision ‘as if it contained additional words’.86 The High Court has also severely constrained the circumstances in which such words would be included — namely, to where it is permissible to do so to correct drafting errors, or where the object of a provision would be defeated, but not to ‘fill gaps disclosed in legislation’ or where such an insertion is large, or at variance with the actual words used.87 However, the criteria of Lord Diplock in Wentworth Securities and of McHugh JA in Bermingham have been left in a nebulous position. As Warren CJ observed in the Victorian Court of Appeal in Lowe v The Queen (‘Lowe’),88 in the light of Taylor the criteria for the inclusion of words elaborated on by Leys ‘may be relevant’ but ‘they will not be determinative’.89 Lowe is illustrative of the multi-faceted approach that courts may take to the issue, 10.34 focusing — as Taylor directs — on the text, purpose and context, but also considering incriminating the criteria outlined in Leys. At issue in Lowe was whether the term ‘relies’ in statutory conduct: provisions of the Jury Directions Act 2013 (Vic) that required a mandatory direction to the conduct that appears to jury where the prosecution ‘relies’ on evidence of incriminating conduct should be indicate an ‘read down’ — that is, given a narrower reading — as if the provision stated ‘explicitly admission of guilt relies’.Warren CJ, with whom Redlich JA and Robson AJA agreed on this point, decided by the accused in a criminal case that the term ‘explicitly’ should be read into the statute: ‘The context of the provision, the consequences of a literal construction and the purpose of the Act demand a different interpretation [ie, from the broad literal interpretation of ‘relies’], namely that reliance must be explicit’90 (note how Warren CJ’s wording here resembles the High Court’s in Project Blue Sky quoted at 10.4 above). In particular, Warren CJ noted that the purpose of the Act included to clarify and restrict the pre-existing, broad common law position governing when a direction on incriminating conduct was required.91 He then stated that, in accordance with Taylor, the change to read the Act as if it included the term ‘explicitly’ ‘did not depart too far’ from the language used in the statute nor ‘fill a gap’ in the legislation.92 Finally, Warren CJ stated that the preconditions in Leys, to the extent they were relevant, were also met as the mischief that the Act intended to address was clear: it was apparent that the Parliament had overlooked an issue; the word to be inserted — ‘explicitly’ — was easy to identify; and the modified reading (‘explicitly relies’) accorded 87 88 89 90 91 92 85 86

Ibid [65]–[66] (Gageler and Keane JJ); see also Pearce (n 3) 75–7 [2.54]–[2.56]. Taylor (n 68) 548 [37] (Gageler and Keane JJ). Ibid 548 [37]–[38] (French CJ, Crennan and Bell JJ). (2015) 48 VR 351 (Warren CJ; Redlich JA and Robson AJA agreeing). Ibid 363 [29] (Warren CJ). Ibid 371 [58]. Ibid 371–2 [59]–[66]. Ibid 372–3 [67].

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with the statutory scheme and did not give the provision an unnatural, unreasonable or incongruous interpretation.93 EXERCISE 13: APPROACHES TO INTERPRETATION 10.35 Answer the following problems assuming that they arise within your state or territory. In this and in subsequent exercises, the statutory provisions quoted are fictitious. As with any problems that involve giving legal advice, the task in this and the other exercises on the interpretation of legislation in the following chapters is to identify the issue(s), articulate the arguments, reach conclusions and give reasons for those conclusions. Bear in mind that your advice is likely to be more valuable if you consider both arguments and counter-arguments. But do not waste effort formulating arguments that you consider to be without merit. A suggested answer is provided with the first problem. Sample problem Section 7 of the Official Secrets Act 1980 provided: Any person who aids or abets and does any act preparatory to the commission of an offence under the Act shall be guilty of a felony.

Jeremy was charged with doing an act preparatory to the commission of an offence contrary to the section. He raised the preliminary point that this was not an offence under s 7. Could this contention be upheld?

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Suggested answer On a literal approach Jeremy’s objection is well grounded.The charge refers to behaviour that does not in itself amount to an offence. But it appears that an error has been made in s 7. This may be an occasion for applying the golden rule which was explained by Lord Wensleydale in Grey v Pearson (1857) 6 HL Cas 61, 106; 10 ER 1216, 1234.The word ‘and’ has been used where ‘or’ would have made more sense. In the criminal law, ‘aiding or abetting’ and ‘doing an act preparatory to the commission of an offence’ describe quite different actions. At common law, a person who aids or abets is a party to an offence, but a person who merely does a preparatory act is not (unless it is sufficiently proximate to a completed offence to constitute an attempt). The latter offence extends the normal reach of the criminal law and is generally of a less serious nature than the former offence. Assuming the purpose of the Act was to create a comprehensive series of offences dealing with aspects of national security, perhaps ‘and’ can be interpreted as meaning ‘or’. Problems 1. Section 25(3) of the Income Tax Act 1972 provided: A person who neglects or refuses to deliver a true and correct return that the person is required under the preceding provisions of this Act to deliver shall — (a) if proceeded against by an action in any Court, forfeit the sum of twenty dollars and treble the tax which the person ought to be charged under this Act. Ibid 373 [68].

93

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CHAPTER 10

Approaches to Interpretation of Legislation

Ian understated his income for a year. The tax thereby evaded was $14. The total income tax payable by him for the year was $140. What should be the amount of the penalty imposed on Ian? What should the penalty be if Ian evaded $14 and the total income tax payable for the year was $140,000? 2. Section 1 of the Street Offences Act 1989 provided: This Act is intended to prevent solicitation for purposes of prostitution in streets and other public places.

Section 2 provided: It shall be an offence for a prostitute to loiter or solicit in a street or public place for the purpose of prostitution.

Carl, a prostitute, was charged under this section. It was established that from inside a house he had solicited men passing in the street by tapping on a windowpane to attract their attention and then either directly or by signs invited them into the house. Could Carl be convicted? 3. Section 12 of the Licensing Act 1872 provided: Every person who in any highway or other public place, whether a building or not, is guilty while drunk of riotous or disorderly behaviour, or who is drunk while in charge on any highway or other public place of any carriage, horse, cattle or steam engine, or who is drunk when in possession of any loaded firearm, may be apprehended, and shall be liable to a penalty.

Ross, who was found pushing his bicycle along the road while in a drunken state, was charged with an offence under s 12. Could he be convicted? 4.  Consider the factual circumstances and statutory provisions (as they existed at  the time) in Higgon v O’Dea, extracted above at 10.12.Would applying the modern approach to statutory interpretation yield a different result?

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5. The Appeals Act 1972 provided: Subject to the special provisions of this Act, the Supreme Court shall, if it allows an appeal against conviction, either quash the conviction and direct a judgment and verdict of acquittal to be entered or, if the interests of justice so require, order a new trial.

Does this Act allow the Supreme Court to both quash a conviction and then order a new trial? What happens if you apply the literal rule? Would any change enable this to happen? What principle(s) could be applied? (Hint: Pay close attention to the positions of the words ‘either’, ‘and’ and ‘or’.)

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Further reading • Rick Bigwood (ed), The Statute: Making and Meaning (LexisNexis Butterworths, 2004). This New  Zealand book includes an essay on reading down legislation. • Suzanne Corcoran and Stephen Bottomley (eds), Interpreting Statutes (Federation Press, 2005).This book contains extensive discussions of principles of interpretation as applied in different subject areas. • Dennis C Pearce, Interpretation Acts in Australia (LexisNexis Butterworths, 2018). This book focuses on the interpretation Acts in the different Australian jurisdictions and their operation. • Dennis C Pearce, Statutory Interpretation in Australia (LexisNexis Butterworths, 9th  ed, 2019). This is a comprehensive textbook on the interpretation of legislation in Australia. • Michelle Sanson, Statutory Interpretation (Oxford University Press, 2nd  ed, 2017). A comprehensive introduction to the interpretation of legislation in Australia, with exercises.

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To enhance your learning experience, use the student resources available on Lexis® Learning See the Visual Preface at the front of this book on how to register.

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CHAPTER 

11

Extrinsic Aids to Interpretation of Legislation Second reading speeches have almost never any value in elucidating a legal problem.1 Lembecke v SAS Trustee Corporation (2003) 56 NSWLR 736, 738 (Meagher JA). This is a pessimistic, but not unique, view.

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1

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Introduction 11.1 Summary of principles 11.3 Use of extrinsic materials at common law 11.4 −− Historical approach to parliamentary and related materials

11.5

−− International agreements

11.9

−− Modern approach to statutory interpretation

11.12

Use of extrinsic materials under statute 11.20 −− Introduction of s 15AB and similar provisions

11.20

−− Operation of s 15AB and similar provisions

11.21

−− Australian Capital Territory equivalent of s 15AB

11.27

−− Victorian equivalent of s 15AB

11.28

−− Interpretation by reference to international agreements Under s 15AB and equivalent provisions

11.30

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EXERCISE 14: Use of extrinsic materials 11.31

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CHAPTER 11

Extrinsic Aids to Interpretation of Legislation

Introduction

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In the introduction to the previous chapter at 10.1 it was stated that in the interpretation of legislation two techniques, described as ‘purposive’ and ‘contextual’, are regularly employed. It was also mentioned that these techniques are linked, a point which is further illustrated by the contents of this chapter. The chapter concentrates on the principles governing the permissible uses of extrinsic materials in the interpretive process, including: • how judges have used different kinds of extrinsic materials, including parliamentary documents and international agreements; • the common law ‘modern approach’ to using extrinsic materials as part of the wider context of the legislation, in particular to determine the mischief that the legislation addresses; and • the statutory provisions in interpretation legislation that provide for the use of extrinsic materials to confirm the meaning of the legislation, or determine the meaning where there is ambiguity or an absurd result. Extrinsic materials are part of the background of legislation — part of the context in its widest sense. Such materials often comprise second reading speeches or explanatory memoranda, produced during the process of passing the Act through Parliament (see 9.13); reports of law reform commissions or parliamentary committees that formed the basis for the Act; or international agreements that may form the basis of a statute. The materials may be relevant in providing insights into the purpose or object of an Act. Statutory provisions introduced approximately three decades ago broadened the role of extrinsic materials in this process. More recently, the courts developed principles that led to further increases in the use of such materials in the interpretation of legislation. Courts and tribunals now routinely rely on these common law principles to justify referring to extrinsic materials as part of the process of interpretation. In the United States of America, extrinsic materials that may assist in the interpretation of legislation are commonly described as legislative histories.2

11.1

11.2

international agreement: a written instrument (eg a treaty, protocol or convention) containing rules that states agree will govern their actions and create rights and duties among them

Summary of principles The following principles are discussed in this chapter: • Extrinsic materials are materials outside a statute that can shed light on the statute’s contents and purpose. • Both common law and statutory provisions permit the use of extrinsic materials to assist in statutory interpretation.

11.3

Readers who wish to become acquainted with United States practice on the use of legislative histories in the interpretive process should refer to the following: Antonin Scalia, ‘Common-Law Courts in a CivilLaw System:The Role of United States Federal Courts in Interpreting the Constitution and Laws’ in Amy Gutmann (ed), Antonin Scalia: A Matter of Interpretation: Federal Courts and the Law (Princeton University Press, 1998). See also D Law and D Zaring, ‘Law Versus Ideology: The Supreme Court and the Use of Legislative History’ (2010) 51 William and Mary Law Review 1653, an empirical examination of the United States Supreme Court’s use of legislative histories over more than 50 years. For a comprehensive discussion of the use of legislative histories in Germany, England and the United States, see H Fischer, ‘Comparative Approaches to the Use of Legislative History in Statutory Interpretation’ (2012) 60 American Journal of Comparative Law 401.

2

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• Historically, common law principles only allowed limited use of extrinsic materials: see 11.4–11.11. • Under the common law ‘modern approach’ to statutory interpretation, extrinsic materials form part of the context of a statute, and may be consulted to assist in its interpretation, including to determine the law prior to the statute and the ‘mischief ’ the statute is intended to address: see 11.12–11.19. • Under interpretation legislation, except in South Australia, reference to extrinsic materials is also permitted (though not required) either: (a) to confirm the meaning is the ordinary meaning; or (b) to determine the meaning of a provision where a ‘threshold test’ is met: namely, that, when read in light of the statute’s purpose, a provision is ambiguous or obscure, or the ordinary meaning leads to an absurd or unreasonable result: see 11.21–11.26. • The Australian Capital Territory and Victorian provisions are not subject to these specific limitations: see 11.27 and 11.28, respectively.

Use of extrinsic materials at common law 11.4

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11.5

11.6

There are several different types of materials that are ‘extrinsic’ or external to the legislation under scrutiny but closely related to it. These include reports of parliamentary debates, executive documents, commission and committee reports, and international agreements referred to in, or relating to, the legislation: see 3.37–3.39. HISTORICAL APPROACH TO PARLIAMENTARY AND RELATED MATERIALS The traditional common law rule on the use of parliamentary materials was quite restrictive; as recently as 1977, in Commissioner for Prices and Consumer Affairs (SA) v Charles Moore (Aust) Pty Ltd,3 the High Court had affirmed the common law rule that the courts would not refer to reports of parliamentary debates for any purpose as an aid to the construction of a statute. However, the High Court decisions in Wacando v Commonwealth4 and Commissioner of Taxation (Cth) v Whitfords Beach Pty Ltd5 marked a departure from that traditional approach. In those cases, Mason J suggested that when a Bill was introduced to remedy a mischief, there were grounds for making an exception to the general rule that reports of parliamentary debates were not admissible.6 This departure is now more fully reflected in the ‘modern approach’ (see 11.12ff) and also is modified by the statutory provisions in most jurisdictions that explicitly permit recourse to extrinsic materials. Reports of law reform commissions, royal commissions, parliamentary committees, interdepartmental committees and other governmental committees sometimes suggest the enactment of legislation to deal with the matters into which they have inquired. There are many examples of cases in which, without legislative sanction, courts have 5 6 3 4

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(1977) 139 CLR 449. (1981) 148 CLR 1 (‘Wacando’). (1982) 150 CLR 355 (‘Whitfords Beach’). Wacando (n 4) 25; Whitfords Beach (n 5) 373.

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CHAPTER 11

Extrinsic Aids to Interpretation of Legislation

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admitted such reports, primarily for the purpose of discovering the mischief or defect for which the existing law did not provide.7 In South Australia, where there is still no legislation enabling the use of extrinsic materials, it has been clear since the 1996 decision of the Full Court of the Supreme Court in Owen v South Australia8 that reference may be made to reports of parliamentary debates both to ascertain the mischief and to discern the purpose or object of the legislation in question.9 The ‘modern approach’ to statutory interpretation discussed at  11.12ff also informs current South Australian practice. The High  Court’s use of convention debates and referendum materials in the interpretation of the Australian Constitution has been considered in several cases.10 As to the interpretation of the Australian Constitution by reference to international treaties and principles of international law, see Kartinyeri v Commonwealth.11 INTERNATIONAL AGREEMENTS If an Act purports to give effect to an international agreement, the court is at liberty to refer to the agreement to resolve any ambiguity in the Act.12 However, an agreement may be referred to even though it is not mentioned in the Act.13 It may also be referred to when the statute has been enacted before ratification of the agreement.14 Sometimes an international convention or treaty or part thereof is enacted into domestic law: see  3.37. Legislation may also provide that a particular word or phrase contained in it shall have the same meaning as it has in an international convention or treaty. In these circumstances, Australian courts have taken the view that Parliament has intended such legislation to be interpreted by reference to the rules applicable to the interpretation of treaties, the principles governing the interpretation of domestic legislation giving way to those rules.15 Thus, subject to a contrary intention in the legislation, the principles of interpretation are those applicable in international law.16 The approach described above was taken in Applicant A v Minister for Immigration and Ethnic Affairs (‘Applicant A’).17 In that case the High Court had to decide whether the appellant was a ‘refugee’ as defined by s 4(1) of the Migration Act 1958 (Cth). Section 4(1) defined ‘refugee’ as having the same meaning as it had in art 1 of the 1951 Convention

11.7

11.8 international treaty: one of the forms of international agreements

11.9

11.10

See, eg, Barker v The Queen (1983) 153 CLR 338, 346 (Mason J), 362 (Brennan and Deane JJ); cf 350 (Murphy J). See also Estate of Kelly (1983) 34 SASR 370, 379–81. 8 (1996) 66 SASR 251. 9 See, eg, K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501, 521–2 (French CJ); Palace Gallery Pty Ltd v The Liquor and Gambling Commissioner (2014) 118 SASR 567, 581–2 [49]. 10 See, eg, Cole v  Whitfield (1988) 165 CLR 360, 385; Port MacDonnell Professional Fishermen’s Association Inc v South Australia (1989) 168 CLR 340, 376–7; New South Wales v Commonwealth (1990) 169 CLR 482; Kartinyeri v Commonwealth (1998) 195 CLR 337, 401 (Kirby J) (‘Kartinyeri’); Selim v Lele (2008) 167 FCR 61, 66–7. 11 Kartinyeri (n 10) 383–6 (Gummow and Hayne JJ), 417–19 (Kirby J, dissenting). 12 Enzed Holdings Pty Ltd v Wynthea Pty Ltd (1984) 4 FCR 450, 458. 13 The Banco [1971] P 137, 151 (Lord Denning MR), 157 (Megaw LJ), 161 (Cairns LJ). 14 D & R Henderson (Mfg) Pty Ltd v Collector of Customs for New South Wales (1974) 48 ALJR 132, 135 (Mason J). 15 See, eg, Koowarta v Bjelke-Petersen (1982) 153 CLR 168, 265 (Brennan J); Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298, 305 (Gummow J), 335–6 (Einfeld J); Kotsambasis v Singapore Airlines Ltd (1997) 42 NSWLR 110, 112–13 (Meagher JA; Powell and Stein JJA agreeing). 16 See Morrison v Peacock (2002) 210 CLR 274; El Greco (Australia) Pty Ltd v Mediterranean Shipping Co SA (2004) 140 FCR 296. 17 (1997) 190 CLR 225 (‘Applicant A’). 7

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Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees.18 Neither the Convention nor the Protocol had been enacted into Australian domestic law. The effect of s 4(1) was that ‘refugee’ in the Migration Act 1958 (Cth) had to be interpreted in accordance with art 31 of the Vienna Convention on the Law of Treaties (‘Vienna Convention’),19 which sets out the following principles for the interpretation of international treaties: 1 A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2 The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3 There shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties. 4 A special meaning shall be given to a term if it is established that the parties so intended.

In Applicant  A McHugh  J provided a detailed discussion of the operation of art  31, together with an explanation of how it should be applied by Australian courts.20 Brennan CJ agreed with McHugh J’s explanation of the operation of art 31 and added his own more general comment:

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In interpreting a treaty, it is erroneous to adopt a rigid priority in the application of interpretative rules. The political processes by which a treaty is negotiated to a conclusion preclude such an approach. Rather … it is necessary to adopt an holistic but ordered approach. The holistic approach to interpretation may require a consideration of both the text and the object and purpose of the treaty in order to ascertain its true meaning.Although the text of a treaty may itself reveal its object and purpose or at least assist in ascertaining its object and purpose, assistance may also be obtained from extrinsic sources. The form in which a treaty is drafted, the subject to which it relates, the mischief that it addresses, the history of its negotiation and comparison with earlier or amending instruments relating to the same subject may warrant consideration in arriving at  the true interpretation of its text.21

Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954); Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967). 19 Vienna Convention on the Law of Treaties, opened for signature 23 May 1960, 1155 UNTS 331 (entered into force 27 January 1980 (‘Vienna Convention’). 20 Applicant A (n 17) 251–6 (McHugh J). 21 Ibid 231 (Brennan CJ). 18

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CHAPTER 11

Extrinsic Aids to Interpretation of Legislation

Dawson J offered an interpretation of art 31 that was consistent with that of Brennan CJ and McHugh J.22 Gummow J agreed with McHugh J’s explanation of the operation of art 31;23 see also Kirby J’s comments.24 The joint judgment of Gleeson  CJ, Gummow, Hayne and Heydon  JJ in Povey v Qantas Airways Ltd25 contains a useful brief summary of the effect of arts 31 and 32 of the Vienna Convention:

11.11

Article 31 provides that a treaty must be interpreted in good faith, in accordance with the ordinary meaning of the terms in their context and in the light of the object and purpose of the treaty. Interpretive assistance may be gained from extrinsic sources (Art 32) in order to confirm the meaning resulting from the application of Art 31, or to determine the meaning when interpretation according to Art  31 leaves the meaning ‘ambiguous or obscure’ or ‘leads to a result which is manifestly absurd or unreasonable’.26

Article 32 thus allows recourse to supplementary materials to aid in the interpretation of treaties in similar circumstances to where Australian interpretation legislation allows recourse to extrinsic materials in the interpretation of domestic statutes: see 11.21ff. However, reference should also be made to the warning of McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority that ‘many international conventions and agreements are expressed in indeterminate language, as the result of compromises made between the contracting state parties’.27 See also 11.30 and 13.35.

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MODERN APPROACH TO STATUTORY INTERPRETATION Notwithstanding the statutory limitations on the consideration of extrinsic materials in the interpretation of legislation discussed in 11.21ff, the common law ‘modern approach’ to interpretation permits the use of those materials in circumstances in which their consideration is not sanctioned by those statutory provisions. Such materials form part of the widest context for legislation. This was elaborated on in CIC Insurance Ltd v Bankstown Football Club Ltd (‘CIC Insurance’),28 where Brennan CJ, Dawson,Toohey and Gummow JJ said:

11.12

It is well settled that at  common law, apart from any reliance upon s  15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure. Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses ‘context’ in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy: Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436, 461, cited in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309, 312, 315. Instances of general words in a statute being so construed by their context are numerous. In particular, as McHugh  JA pointed out in Isherwood v  Butler Pollnow Pty Ltd (1986) 6 NSWLR 363, 388, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, 24 25 26 27 28 22 23

Ibid 240 (Dawson J). Ibid 277 (Gummow J). Ibid 294 (Kirby J). (2005) 223 CLR 189. Ibid 202 [24]. (1995) 194 CLR 355, 391–2. This case is discussed further at 14.7–14.8. (1997) 187 CLR 384 (‘CIC Insurance’); see also discussion at 10.28.

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they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent: Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 147 CLR 297, 320–1.29

11.13

11.14

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11.15

Despite its use of the old-fashioned concept of mischief (see 10.14) this passage has been frequently relied on. An early example is Newcastle City Council v GIO General Ltd,30 in which an explanatory memorandum and Law Reform Commission report were consulted to disclose the particular mischief the legislation was enacted to remedy.31 A more recent judgment of the High Court, showing the importance of extrinsic materials in determining the ‘wider context’ of legislation, is the high-profile case of Independent Commission Against Corruption (NSW) v  Cuneen (‘Cuneen’),32 in which the definition of ‘corrupt conduct’ was at issue. The majority (French CJ, Hayne, Kieffel and Nettle JJ), referring to CIC Insurance with approval,33 commenced their analysis with an examination of extrinsic materials that included the legislative history of the Independent Commission Against Corruption Act 1988 (NSW) as well as a review of that Act,34 in order to ascertain the Act’s purpose and the implications of this for the breadth, or narrowness, of the meaning of the phrase ‘adversely affect’ the conduct of an official in the Act’s definition of ‘corrupt conduct’ in s 8. The Court concluded that a narrow meaning was appropriate considering the provision’s context and purpose. In Maritime Union of Australia v Minister for Immigration and Border Protection,35 decided subsequently to Cuneen, the High  Court, in a unanimous judgment (French  CJ, Bell, Gageler, Keane and Nettle JJ), relied on ‘[t]he text, context of the legislation and extrinsic materials’36 in interpreting the Migration Act 1958 (Cth). The Court did not even feel it necessary to cite authority for its approach to interpretation, including its recourse to extrinsic materials. Another recent High  Court example of the application of the CIC Insurance principle is R v A2; R v Magennis; R v Vaziri (‘R v A2’)37 where reference was made to, among other things, a report by the Family Law Council, an explanatory note, a second reading speech and the section  heading in the Act, in determining the ‘mischief ’ that Crimes Act  1900 (NSW) s  45 — which created a crime of genital mutilation — was intended to address, in order to determine whether the phrase ‘otherwise mutilates’ in that section should have a broad meaning of ‘genital mutilation in all its forms’, rather than a narrow meaning that required ‘permanent disfigurement or obvious damage’.38 Taking into account this extrinsic material, including the section heading ‘Prohibition of

31 32 33 34 35 36 37 38 29 30

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Ibid 408. (1997) 191 CLR 85. Ibid 99–100 (Toohey, Gaudron and Gummow JJ), 112–13 (McHugh J). (2015) 256 CLR 1 (‘Cuneen’). Ibid 28 [57]. Ibid 10–16 [4]–[16]. (2016) 259 CLR 431. Ibid 447 [34]. [2019] HCA 35 (‘R v A2’). Ibid [45] and [53] (Kiefel CJ and Keane J).

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female genital mutilation’, the majority concluded (although exact formulations differed) that the phrase should be given a broad, rather than narrow, meaning.39 The importance of the CIC Insurance principle lies in the fact that, unlike s 15AB of the Acts Interpretation Act 1901 (Cth) and the state and territorial provisions (other than the Victorian and Australian Capital Territory provisions) that are based on s 15AB, there is no ‘threshold test’ that must be satisfied before extrinsic materials can be brought into consideration. Section 15AB is discussed at 11.20ff and the ‘threshold test’ is explained at 11.21–11.23. For discussion of the Australian Capital Territory and Victorian provisions see 11.27 and 11.28, respectively.40 Cases such as Cuneen, SZTAL v Minister for Immigration and Border Protection41 and R v A2 show that the ‘modern approach’ stated in CIC Insurance remains the appropriate interpretative paradigm, including for the use of extrinsic materials. This clarifies some doubt that arose from obiter dicta in a number of cases from the High  Court, which suggested a ‘reversion to text’ rather than a contextual approach. This apparent retreat began with Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (‘Alcan’)42 in 2009. In the course of their reasoning Hayne, Heydon, Crennan and Kiefel JJ observed:

11.16

11.17

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This Court has stated on many occasions that the task of statutory interpretation must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.43

This case was followed in 2010 by Saeed v  Minister for Immigration and Citizenship (‘Saeed’),44 in which French CJ, Gummow, Hayne, Crennan and Kiefel JJ concluded that, in the decision appealed from, the lower court had failed to consider the actual terms and operation of an applicable statutory provision, adding ‘it is erroneous to look at extrinsic materials before exhausting the application of the ordinary rules of statutory interpretation’.45 The High Court’s decision in CIC Insurance was not mentioned. These cases, and some other obiter dicta,46 have raised some doubt at the intermediate appeal court level47 and also extrajudicial speculation48 of a retreat by the High Court from the ‘modern approach’ and a ‘reversion to text’. However, as we have seen, more recent

11.18

Ibid [53] ‘genital mutilation in all its forms’ (Kiefel CJ and Keane J), [158] ‘physical injury’ (Nettle and Gordon JJ), [171] ‘a practice of causing tissue damage’ (Edelman J); Bell and Gageler JJ dissented. 40 For a detailed discussion of ‘the modern approach to statutory interpretation’ see James Allsop, ‘Statutes: Context, Meaning and Pre-Enactment History’ [2005] Bar News (Winter) 19; Robert S Geddes, ‘Purpose and Context in Statutory Interpretation’ (2005) 2 University of New England Law Journal 5, 18–25. 41 (2017) 262 CLR 362, 368 [14] (Kiefel CJ, Nettle and Gordon JJ); 374–5 [37]–[39] (Gageler J). 42 (2009) 239 CLR 27 (‘Alcan’). 43 Ibid 46–7 (citations omitted). 44 (2010) 241 CLR 252 (‘Saeed’). 45 Ibid 265. 46 See, eg, Wicks v State Rail Authority of New South Wales; Sheehan v State Rail Authority of New South Wales (2010) 241 CLR 60. 47 See, eg, SM v The Queen (2012–15) 46 VR 464; Lowe v The Queen (2015) 48 VR 351. 48 See, eg, James J Spigelman, ‘The Intolerable Wrestle: Developments in Statutory Interpretation’ (2010) 84 Australian Law Journal 822. 39

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11.19

High Court authority supports the continued application of the ‘modern approach’ to consideration of a statute’s context in its interpretation.49 Nonetheless, there still remains some caution with regard to the usefulness of extrinsic materials. Thus, in Attorney General of New South Wales v Melco Resorts & Entertainment Ltd,50 the New South Wales Court of Appeal cited CIC Insurance to justify looking at an Act’s context, but — referring to Alcan — the Court adopted an interpretation that did ‘not depend on’ and was ‘not influenced by’ extrinsic materials, although they had been used by the judge at  first instance.51 The Court concluded that as the second reading speech in this instance was unclear, it illustrated ‘the dangers and potential pitfalls that resort to extrinsic materials may have’.52 How might the relative weight to be placed on ‘text’ and ‘context’, in particular extrinsic materials, be determined? Perhaps one approach lies in a recognition that what is often expressed as a concern about timing — whether context in its widest sense, including extrinsic materials, is considered ‘at the start’, as in CIC Insurance, or ‘after’ the exhaustion of other approaches, as in Saeed — is more readily conceptualised as a concern about importance. What the High Court appears keen to prevent is the ‘displacement’ of the terms of the statute, with the terms of the extrinsic materials. The ideal relationship between ‘text and context’ was well expressed by Kiefel J in Certain Lloyd’s Underwriters v Cross:

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The fundamental object of statutory construction is to ascertain legislative intention, understood as the intention that the courts will impute to the legislature by a process of construction, by reference to the language of the statute viewed as a whole. The starting point for this process of construction is the words of the provision in question read in the context of the statute. Context is also spoken of in a broader sense as including the general purpose and policy of the legislation, in particular the mischief to which the statute is directed and which the legislature intended to remedy. It is legitimate to resort to materials outside the statute, but it is necessary to bear in mind the purpose of doing so and the process of construction to which it is directed. That purpose is, generally speaking, to identify the policy of the statute in order to better understand the language and intended operation of the statute. An understanding of legislative policy by these means does not provide a warrant for departing from the process of statutory construction and attributing a wider operation to a statute than its language and evident operation permit.53

Use of extrinsic materials under statute 11.20

INTRODUCTION OF S 15AB AND SIMILAR PROVISIONS In 1983 the Commonwealth Attorney-General’s Department organised a symposium on the interpretation of legislation which followed the symposium that it had held two years earlier (see 10.18), before the enactment of s 15AA of the Acts Interpretation Act  1901 (Cth). The second symposium focused on the use that should be made of See, eg, Quickfind (Australia) Pty Ltd v Airmark Consolidators Pty Ltd (2014) 222 FCR 13, esp [75] (Allsop CJ, White and Wigney JJ); but cf the recent New South Wales Court of Appeal decision A-G (NSW) v Melco Resorts & Entertainment Ltd [2020] NSWCA 40 (‘Melco Resorts’), discussed below. 50 Melco Resorts (n 49). 51 [2020] NSWCA 40, [103]. 52 Ibid [110]. 53 (2012) 248 CLR 378, 411–2 [88]–[89].

49

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extrinsic materials, such as parliamentary debates recorded in ‘Hansard’, explanatory memoranda and international conventions, in the interpretation of legislation.54 After this second seminar, s 15AB was inserted into the Acts Interpretation Act 1901 by s 7 of the Acts Interpretation Amendment Act 1984 (Cth). Section 15AB provides:

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(1) Subject to sub-section (3), in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material — (a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or (b) to determine the meaning of the provision when — (i) the provision is ambiguous or obscure; or (ii) the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable. (2) Without limiting the generality of sub-section (1), the material that may be considered in accordance with that sub-section  in the interpretation of a provision of an Act includes — (a) all matters not forming part of the Act that are set out in the document containing the text of the Act as printed by the Government Printer; (b) any relevant report of a Royal Commission, Law Reform Commission, committee of inquiry or other similar body that was laid before either House of the Parliament before the time when the provision was enacted; (c) any relevant report of a committee of the Parliament or of either House of the Parliament that was made to the Parliament or that House of the Parliament before the time when the provision was enacted; (d) any treaty or other international agreement that is referred to in the Act; (e) any explanatory memorandum relating to the Bill containing the provision, or any other relevant document, that was laid before, or furnished to the members of, either House of the Parliament by a Minister before the time when the provision was enacted; (f) the speech made to a House of the Parliament by a Minister on the occasion of the moving by that Minister of a motion that the Bill containing the provision be read a second time in that House; (g) any document (whether or not a document to which a preceding paragraph applies) that is declared by the Act to be a relevant document for the purposes of this section; and (h) any relevant material in the Journals of the Senate, in the Votes and Proceedings of the House of Representatives or in any official record of debates in the Parliament or either House of the Parliament. (3) In determining whether consideration should be given to any material in accordance with sub-section (1), or in considering the weight to be given to any such material, regard shall be had, in addition to any other relevant matters, to — (a) the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; and (b) the need to avoid prolonging legal or other proceedings without compensating advantage. Published as Symposium on Statutory Interpretation (AGPS, 1983).

54

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In the following years, all states and territories (except South  Australia) enacted provisions based on s 15AB; these provisions are: • Legislation Act 2001 (ACT) ss 141–143 • Interpretation Act 1987 (NSW) s 34 • Interpretation Act 1978 (NT) s 62B • Acts Interpretation Act 1954 (Qld) s 14B • Acts Interpretation Act 1931 (Tas) s 8B • Interpretation of Legislation Act 1984 (Vic) s 35(b) • Interpretation Act 1984 (WA) s 19. However, for the purposes of applying s  14B of the Queensland Act to statutory instruments, see  the special definition of ‘extrinsic material’ in s  15 of the Statutory Instruments Act 1992 (Qld). The Australian Capital Territory provision, ss 141–143 of the Legislation Act  2001, and the Victorian provision, s  35(b) of the Interpretation of Legislation Act 1984, are worded a little differently and are discussed separately in 11.27 and 11.28, respectively.

11.21

OPERATION OF S 15AB AND SIMILAR PROVISIONS Under s  15AB(1)(a) of the Acts Interpretation Act  1901 (Cth), material outside the Act (including the material listed in s 15AB(2)) may be used to confirm the ordinary meaning of a provision. In other words, extrinsic materials may be taken into account even where the provision is ‘clear on its face’.55 Apart from that, extrinsic materials may be used in accordance with s  15AB(1)(b) only to determine the meaning of a provision in cases of ambiguity or doubt, or where the ordinary meaning leads to a manifestly absurd or unreasonable result. In Re Australian Federation of Construction Contractors; Ex parte Billing,56 all members of the High Court, in a joint judgment, said:

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Reliance is also placed on a sentence in the second reading speech of the Minister when introducing the Consequential Provisions Act, but that reliance is misplaced. Section 15AB of the Acts Interpretation Act  1901 (Cth), as amended, does not permit recourse to that speech for the purpose of departing from the ordinary meaning of the text unless either the meaning of the provision to be construed is ambiguous or obscure or in its ordinary meaning leads to a result that is manifestly absurd or is unreasonable. In our view neither of those conditions is satisfied in the present case.57

A similar comment was made in relation to the New South Wales equivalent of s 15AB, s  34 of the Interpretation Act  1987 (NSW), by Lee  J in Ombudsman v  Commissioner of Police.58 In Saraswati v The Queen59 in the High Court, McHugh J pointed out that the ‘ordinary meaning’ of a provision in that section  is the ordinary meaning conveyed

Commissioner of Australian Federal Police v Curran (1984) 3 FCR 240, 250; NAQF v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 130 FCR 456, 471 (‘NAQF’); cf Parrett v Secretary, Department of Family and Community Services (2002) 124 FCR 299, 310. 56 (1986) 68 ALR 416. 57 Ibid 420. 58 (1987) 11 NSWLR 386, 396. 59 (1991) 177 CLR 1. 55

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by the text, taking account of its context and the underlying purpose or object of the Act.60 These comments apply equally to s 15AB and the other equivalent provisions. It follows from the discussion of s  15AB and its equivalents at  11.20 that for a reference to extrinsic materials to have the potential to change an interpretation which would otherwise have been arrived at, it is necessary for a court to conclude that one of the conditions in s 15AB(1)(b)(i) or (ii) is present; that is, there is a ‘threshold test’. The court must conclude, ignoring any extrinsic materials, that the provision in question is ‘ambiguous’ or ‘obscure’ or, taking account of its context and the underlying purpose or object of the Act, that the ordinary meaning leads to a result that is ‘manifestly absurd’ or ‘unreasonable’.61 The word ‘ambiguous’ is broadly interpreted.‘It extends to circumstances in which the intention of the legislature is, for whatever reason, doubtful.’62 The ‘threshold test’ described above is a limitation on the operation of s  15AB compared with s 15AA of the Acts Interpretation Act 1901. Section 15AA always operates, whereas s 15AB can operate to change an interpretation only if one of the conditions identified in sub-s  (1)(b) is met. To this extent, s  15AB represents a qualification of the proposition, discussed in relation to the ‘modern’ approach of interpretation, that ‘context’ must be considered in the first instance: see 10.27. Another difference between the sections is that, although a court is required to apply s 15AA, the language of s 15AB permits a court to merely refer to extrinsic materials placed before it.63 Soon after the enactment of s 15AB, the High Court warned of other limitations on its use in statutory interpretation. In Re Bolton; Ex parte Beane Mason CJ, Wilson and Dawson JJ issued the following warning:

11.22

11.23

11.24

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The words of a Minister must not be substituted for the text of the law. Particularly is this so when the intention stated by the Minister but unexpressed in the law is restrictive of the liberty of the individual. It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the law. However unfortunate it may be when that happens, the task of the court remains clear. The function of the court is to give effect to the will of Parliament as expressed in the law.64

The warning of this limitation has been endorsed on many occasions.65 This emphasis on the importance of the legislative text in relation to the content of extrinsic materials is also a key tenet of the cases discussed above, with regard to the High Court’s recent ‘reversion to text’: see  11.17–11.19. The concern in these cases, such as Saeed, was expressed in the context of common law rules on the consultation of extrinsic materials, but is equally applicable to materials consulted under s 15AB and its equivalents. Ibid 26. NAQF (n 55) 471–2; Harrison v  Melhem (2008) 72 NSWLR 380, 398 (Mason P), 382 (Spigelman CJ agreeing), 403 (Beazley and Giles JJA agreeing) (extracted at 13.13). 62 Repatriation Commission v Vietnam Veterans’ Association of Australia New South Wales Branch Inc (2000) 48 NSWLR 548, 578 (Spigelman CJ, Handley JA agreeing at 593); R v Sharma (2002) 54 NSWLR 300, 312–13 (Spigelman CJ; Mason P, Barr, Bell and McClellan JJ agreeing at 318); Parrett v Secretary, Department of Family and Community Services (2002) 124 FCR 299, 312. 63 See the remarks of Gummow J in Brennan v Comcare (1994) 50 FCR 555, 573. 64 (1987) 162 CLR 514, 517–18. 65 See, eg, Nominal Defendant v GLG Australia Pty Ltd (2006) 228 CLR 529, 538 (Gleeson CJ, Gummow, Hayne and Heydon JJ), 555–6 (Kirby J); Harrison v Melhem (n 61), 384–5 (Spigelman CJ), 400 (Mason P), 403 (Beazley and Giles  JJA agreeing with Mason  P); Lacey v  A-G (Qld) (2011) 242 CLR 573, 598 (French  CJ, Gummow, Hayne, Crennan, Kiefel and Bell  JJ); Empire Waste Pty Ltd v  District Court of New South Wales (2013) 86 NSWLR 142, 156 [69] (Bathurst CJ), 93 [97] (Beazley P agreeing), 93 [98] (Hoeben JA agreeing). 60 61

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11.25

11.26

Another limitation is that extrinsic materials should not be taken into account when they merely indicate a view as to the meaning of legislation in existence at the time when the view is expressed.66 This latter limitation applies equally under the common law.67 It is important to remember that s  15AB and its equivalents empower courts to have recourse to extrinsic materials under certain circumstances, rather than obligating them to do so pursuant to certain criteria. Therefore, even where the ‘threshold test’ is met, the courts are not compelled to refer to extrinsic materials. Section  15AB(3) requires the courts, in determining whether recourse to extrinsic materials is justified, to have regard to the desirability of being able to rely on the text of the statute itself, without needing to have recourse to extrinsic materials, and the desirability of avoiding prolonged litigation without ‘compensating advantage’. A similar provision exists in the corresponding sections of other legislation. It is also important to remember that the ‘modern approach’, permitting recourse to extrinsic materials at common law as part of the context ‘in its widest sense’ of the statute, exists alongside the provisions of interpretation legislation, and there is no ‘threshold test’ to be met before it can be applied: see 11.12. In the following extract from Re  Shingles and Director-General of Social Security,68 resort to the second reading speech of the Minister enabled the Administrative Appeals Tribunal to choose an interpretation that avoided an absurd result. Re Shingles and Director-General of Social Security (1984) 6 ALD 568 Administrative Appeals Tribunal, 1984

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[The applicant sought a review of the decision of the Director-General rejecting her claim for a severely handicapped child’s allowance under s 105J of the Social Security Act 1947 (Cth). Section 105J stated that, where a person who had the custody, care and control of a severely handicapped child provided ‘constant care and attention in respect of that child’, that person was entitled to the allowance. The issue was whether the attendance of the applicant’s severely handicapped child at  school prevented the applicant from qualifying for an allowance under s 105J. The Minister for Social Security had said, in his second reading speech introducing the original legislation: ‘Parents or guardians who care for a handicapped child at home will be encouraged to take full advantage of the facilities that are being made available under the general welfare program and the child’s attendance at a day school or training centre will not affect eligibility for payment of the allowance’.] J Dwyer (Senior Member) [at 579]: Section  15AB … permits consideration of extrinsic material in interpretation of an Act if the provision is ambiguous or obscure or if the ordinary meaning is manifestly absurd or unreasonable. The ambiguity of the provisions in ss 105J and 105JA which See, eg, Hunter Resources Ltd v Melville (1988) 164 CLR 234, 240–1 (Mason CJ and Gaudron J); compare 253–4 (Dawson J). 67 See  Australian Education Union v  Department of Education and Children’s Services (2012) 248 CLR  1, 16 (French CJ, Hayne, Kiefel and Bell JJ); The Palace Gallery Pty Ltd v The Liquor and Gambling Commissioner (2014) 118 SASR 567, 581–2 [49]. 68 (1984) 6 ALD 568. 66

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require that a person ‘provides in a private home that is the residence of that person and of that child, constant care and attention in respect of that child’ is apparent from the conflicting decisions of this Tribunal when attempting to apply or ascertain the meaning of those provisions … The manifest absurdity and unreasonableness of the ordinary meaning of those provisions is also apparent when one considers the effect of a strict literal interpretation which requires in the words of Mr Thompson in Re Meloury that ‘all the care and attention required by a handicapped child should be provided to him by the applicant in the private home that is the residence of the applicant and the child’, or in the words of Mr Ballard in Re Johnstone that ‘a severely handicapped child must be confined in the home as though in rigorous custody’. Although Mr  Ballard said that he did not think that s  105J should be read as having that meaning, that is the effect of giving the words ‘the ordinary meaning conveyed by the text of the provision’. In fact not only would the provision require that the child be confined in the home, but also that the mother or applicant be confined. It may even be that attendance by applicant and child at medical appointments or hospital would remove eligibility for the allowance. When one considers that meaning taking into account the purpose or object underlying the Act which must surely be to promote the welfare of handicapped children and their families, it is clear that such a meaning is manifestly absurd and unreasonable. The welfare of handicapped children is surely best promoted not by confining them either to institutions or their homes but by allowing them to participate as fully as possible in the life of the community including wherever possible attendance at  school. This philosophy is clearly reflected in the recently released report of the Ministerial Review of Educational Services for the Disabled entitled Integration in Victorian Education. The report was required ‘to advise the Minister on ways in which the Government’s stated policy of normalisation for young people with disabilities could best be implemented’. It is indeed absurd if those parents who succeed in supporting their handicapped children so that they can attend schools and benefit from normalisation in education should thereby lose any entitlement to handicapped child allowance … The obscurity and ambiguity as to the meaning of ss 105J and 105JA and the manifest absurdity and unreasonableness of the literal meaning of the sections entitle me to look at the speech of Mr Hayden, then the Minister for Social Security, when he moved that the Social Services Bill (No 3) be read a second time in the House of Representatives on 16 October 1974. In the extract from that speech … Mr Hayden specifically said that ‘the child’s attendance at  a day school or training centre will not affect eligibility for payment of the allowance’ and by implication would not be seen as detracting from the provision of constant care and attention in a private home that is the residence of the applicant and the child. The provisions of s 15AB of the Acts Interpretation Act 1901 which came into force on 12 June 1984 allow me to use this Second Reading speech to assist in ascertaining the meaning of s  105J and s 105JA. I now know that the sections do not require that the child in question remain rigorously confined in the home, but allow the child to be regularly absent from the home for the whole of a school day without affecting eligibility. Thus the intended interpretation is … that the requirement ‘distinguishes the provision of care and attention at home from care and attention given in an institution’ … and ‘it may well be that in the context of this section in includes from’.

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Here we can see that the judge first determined that the threshold test was met, namely, the absurdity and unreasonableness that flowed from giving the phrase ‘constant care and attention’ its ordinary, literal meaning, which would render the primary care provider ineligible to receive the allowance in question if the child attended a day school. This enabled the judge, under Acts Interpretation Act  1901 (Cth) s  15AB(1)(b)(ii), to have reference to extrinsic materials — in this particular instance the Minister’s second reading speech, which explicitly provided that attendance at a day school would not affect eligibility. AUSTRALIAN CAPITAL TERRITORY EQUIVALENT OF S 15AB 11.27 In 1985, the Australian Capital Territory legislature enacted s  11B of the Interpretation Act 1967, which was closely based on s 15AB. It has since been replaced with ss 141–143 of the Legislation Act 2001 (ACT). The Australian Capital Territory provisions share most of the features of Commonwealth s 15AB, with the important difference that there are no limits as to the circumstances in which extrinsic material may be considered. Section 141(1) provides:‘In working out the meaning of an Act, material not forming part of the Act may be considered’. As to the definition of the phrase ‘working out the meaning of an Act’, see 10.22. Another difference between the two provisions is that, instead of a single nonexhaustive list of material that may be considered (as in s 15AB(2)), two non-exhaustive lists are provided, one for Acts and the other for statutory instruments.69 VICTORIAN EQUIVALENT OF S 15AB 11.28 It was observed in 11.21–11.22 that, subject to one limitation, under s 15AB extrinsic materials may be resorted to only in the interpretation of a provision in case of ambiguity or doubt, or where the ordinary meaning leads to a manifestly absurd or unreasonable result.70 Like its Australian Capital Territory counterpart, the Victorian equivalent of Commonwealth s 15AB — s 35 of the Interpretation of Legislation Act 1984 (Vic) — is not expressed to be subject to such limitations. Section 35 provides: Copyright © 2020. LexisNexis Butterworths. All rights reserved.

In the interpretation of a provision of an Act or subordinate instrument — (a) a construction that would promote the purpose or object underlying the Act or subordinate instrument (whether or not that purpose or object is expressly stated in the Act or subordinate instrument) shall be preferred to a construction that would not promote that purpose or object; and (b) consideration may be given to any matter or document that is relevant including but not limited to — (i) all indications provided by the Act or subordinate instrument as printed by authority, including punctuation; (ii) reports of proceedings in any House of the Parliament; (iii) explanatory memoranda or other documents laid before or otherwise presented to any House of the Parliament; and (iv) reports of Royal Commissions, Parliamentary Committees, Law Reform Commissioners and Commissions, Boards of Inquiry or other similar bodies.

Legislation Act 2001 (ACT) s 142. Acts Interpretation Act 1901 (Cth) s 15AB(1)(b).

69 70

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CHAPTER 11

Extrinsic Aids to Interpretation of Legislation

In the Appeal Division of the Supreme Court of Victoria, Crockett and Southwell JJ stated that s 35(a)

11.29

requires a construction to be given to legislation ‘that would promote the purpose or object underlying the Act’. That ‘purpose or object’ may not be ascertainable without reference to the parliamentary debates. Accordingly, the better view would appear to be that, even if it be thought that the language is clear and unambiguous, it was not improper to have had recourse to the parliamentary debates in order to ensure that to apply the ordinary and grammatical meaning of the words would not give the statute a meaning which obviously was not intended.71

Despite an early view that, in the absence of ambiguity or doubt on the face of the statute, reference should not be made to extrinsic materials, there is general support for the contrary view expressed by Crockett and Southwell JJ.72 In Masters v McCubbery, in the Victorian Court of Appeal, Winneke P said of s 35: Resort to this section has become almost common place as parties strive to find support for the proposition which they seek to make. In my view the court needs to be careful not to permit recourse to this section to undermine its primary function of seeking to ascertain the intention of the legislation from the content of the Act itself. So commonly is the court asked to refer to the speeches in Hansard, pursuant to the authority conferred by this section, that it is necessary to keep reminding ourselves of the caution referred to by the court in R v Kean & Mills [1985] VR 255, 259: We were urged to refer to the Attorney-General’s second reading speech in the Legislative Council on the Bill … It was said that we were entitled to do so pursuant to s 35(1) of the Interpretation of Legislation Act 1984. It is unnecessary to attempt the interpretation of that section. It is sufficient to say that apparently the Court is not obliged to refer to the Minister’s speech. It ‘may’ do so. The criteria for the exercise of such a power seems, however, not to be specified.73

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These strictures were repeated in the Victorian Court of Appeal’s decision in Rizza v Fluor Daniel GTI (Australia) Pty Ltd.74 INTERPRETATION BY REFERENCE TO INTERNATIONAL AGREEMENTS UNDER S 15AB AND EQUIVALENT PROVISIONS When Australia becomes a party to an international agreement, the terms of the agreement 11.30 do not automatically become part of Australian law.Whatever the nature of the obligations imposed by the agreement, those obligations can become part of Australian law only if made so by domestic legislation.75 Occasionally a party to litigation finds that domestic legislation under consideration would be better understood if reference were made to the international agreement which the legislation was enacted to implement. To this end s 15AB(2)(d) of the Acts Interpretation Act 1901 (Cth), without limiting the generality of s 15AB(1) of the Act, specifies ‘any treaty or other international agreement that is referred Humphries v Poljak [1992] 2 VR 129, 136–7. See, eg, R  v Quick (2004) 148 A  Crim  R 51; Alcoa Portland Aluminium Pty Ltd v  Victorian WorkCover Authority (2007) 18 VR 146, 159 (Chernov JA), 147 (Maxwell ACJ agreeing), 162 (Neave JA agreeing). 73 Masters v McCubbery [1996] 1 VR 635, 646. 74 [1999] 1 VR 405, 414 (Chernov JA; Winneke P and Brooking JA agreeing). 75 See Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298, 303 (Gummow J) (‘Magno’) and the cases there cited. See also 3.37. 71 72

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to in the Act’ as among the materials which may be considered in the interpretation of a provision of an Act. If the agreement is not referred to in the Act, it is still possible that reference may be made to it, under s  15AB(1). If the agreement is to be relied on to change an interpretation which would otherwise have been arrived at, however, the court must have concluded, without reference to the agreement, that the provision under consideration is ‘ambiguous’ or ‘obscure’ or, taking into account its context and the underlying purpose or object of the Act, that it leads to a result that is ‘manifestly absurd’ or ‘unreasonable’.76 EXERCISE 14: USE OF EXTRINSIC MATERIALS 11.31 Consider the statutory provisions and then the questions that follow. Section  13 of the Crimes Act  1914 (Cth) allows for private prosecution in the following terms: Unless the contrary intention appears in the Act or regulation creating the offence, any person may: (a) institute proceedings for the commitment for trial of any person in respect of any indictable offence against the law of the Commonwealth; or (b) institute proceedings for the summary conviction of any person in respect of any offence against the law of the Commonwealth punishable on summary conviction.

Division 268 of the Criminal Code Act  1995 (Cth) (‘Criminal Code’) deals with crimes against humanity and other international crimes and was inserted in 2011. Section 268.121 governs prosecutions under this division:

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(1) Proceedings for an offence under this Division must not be commenced without the Attorney-General’s written consent. (2) An offence against this Division may only be prosecuted in the name of the AttorneyGeneral. (3) However, a person may be arrested, charged, remanded in custody, or released on bail, in connection with an offence under this Division before the necessary consent has been given.

Section  268.122 of the Criminal Code allows for judicial review of the AttorneyGeneral’s refusal under s 268.121. The expression ‘may only be prosecuted in the name of ’ in s 268.121(2) has been used in a variety of other Commonwealth statutes and has been interpreted by the Australian Law Reform Commission (‘ALRC’) as commonly being used in Commonwealth legislation to impose an ‘absolute restriction upon the right to prosecute’.77 Similarly, s 12 of the War Crimes Act 1945 (Cth) provides that ‘an offence against this Act may only be prosecuted in the name of the Attorney-General or the Director of Public Prosecutions’. The explanatory memorandum accompanying the Bill that created this provision states that, due to the nature of the offences (which are similar to those in div  268 of the Criminal Code), it was ‘desirable to exclude the possibility of private prosecutions’.78 See  Barry R Liggins Pty Ltd v  Comptroller-General of Customs (1991) 32 FCR 112; Magno (n  75) 305 (Gummow J). 77 Australian Law Reform Commission, Standing in Public Interest Litigation (Report No 27, 1985) 194. 78 Explanatory Memorandum, War Crimes Amendment Bill 1987 (Cth) 8. 76

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Extrinsic Aids to Interpretation of Legislation

Taylor has lodged an indictment against a foreign leader for an indictable offence under div 268 of the Criminal Code and requested the Attorney-General for permission to prosecute, which has been refused. Taylor has sought review of this decision to refuse permission, in which a preliminary question has arisen whether a private prosecution is possible for crimes in div 268. Consider the following questions: 1. What is required to exclude a private prosecution under Crimes Act s  13 according to that section? 2. What would be the arguments in favour of a private prosecution? Consider here first the wording of s 268.121, without considering the extrinsic materials (explanatory memorandum, legislative history, ALRC report). Does the section explicitly state that prosecution can only be conducted by the AttorneyGeneral? Does it necessarily imply that? What are the possible implications of specifying the Attorney-General’s consent is needed? 3. What would be the arguments against a private prosecution? What arguments can be made without recourse to the extrinsic materials? 4. Can the extrinsic materials be considered: (a) under the ‘modern approach’ to statutory interpretation? (b) under s 15AB of the Acts Interpretation Act 1901 (Cth)? If so, under which limb(s)? 5. Can a private prosecution be brought? Does your answer differ according to whether you do or do not consider the extrinsic materials?

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This exercise is based on Taylor v Attorney-General (Cth) [2019] HCA 30, a 4:3 majority decision of the High Court.

Further reading • For a comprehensive and consolidated list of further reading sources on statutory interpretation, see Chapter 10.

To enhance your learning experience, use the student resources available on Lexis® Learning See the Visual Preface at the front of this book on how to register.

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CHAPTER

12 Interpretation of Legislation in Context The true meaning of a legal text almost always depends on a background of concepts, principles, practices, facts, rights and duties which the authors of the text took for granted or understood, without conscious advertence, by reason of their common language or culture.1 Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104, 196 (McHugh J).

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1

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Introduction 12.1 Summary of principles 12.3 Interpretation with reference to accompanying words 12.4 Interpretation with reference to punctuation 12.8 All words are assumed to carry meaning 12.10 Interpretation with reference to other parts of the legislation 12.11 −− Titles or names

12.13

−− Preambles 12.15 −− Interpretation provisions

12.16

−− Headings to chapters, parts and divisions

12.18

−− Section headings and notes

12.19

−− Schedules 12.21 −− Examples 12.23 Consistent use of words is assumed 12.24 Express mention of something may draw attention to the intended Copyright © 2020. LexisNexis Butterworths. All rights reserved.

absence of something else 12.25 General provisions do not override specific positions 12.27 Interpretation legislation 12.28 Dictionaries may be consulted 12.30 Words should be interpreted in accordance with their current meaning 12.31 Provisions may be interpreted with reference to other legislation 12.32 Provisions may be interpreted with reference to the audience 12.37 Provisions may be interpreted with reference to prior or existing law 12.39 EXERCISE 15: Interpretation in context 12.41

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CHAPTER 12

Interpretation of Legislation in Context

Introduction In Chapter 11 the role of ‘context’ in statutory interpretation was discussed with reference to the permissible uses of extrinsic materials. This chapter considers several other ways in which context is relevant to interpretation, including: • the use of syntactical presumptions to construe terms in legislation; • the effects of reading a provision within the context of other provisions of the legislation under consideration, including the use of definition sections; • the use of aids outside the legislation, such as dictionaries to find ordinary meaning of terms in legislation, a jurisdiction’s interpretation legislation, and technical or trade meanings of terms; • whether to consider a word’s meaning at the time the legislation was drafted or its current meaning; and • the assumptions that words carry consistent meanings, that the deliberate omission of terms may be meaningful, and that all words carry meaning. In a leading decision of the High Court, Project Blue Sky Inc v Australian Broadcasting Authority (‘Project Blue Sky’),2 McHugh, Gummow, Kirby and Hayne JJ observed that ‘the process of construction must always begin by examining the context of the provision that is being construed’.3 To support this observation the Justices referred to these comments of Mason J in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd:4

12.1

12.2

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Problems of legal interpretation are not solved satisfactorily by ritual incantations which emphasise the clarity of meaning which words have when viewed in isolation, divorced from their context. The modern approach to interpretation insists that the context be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity might be thought to arise.5

As stated in 10.28, context may be conceptualised in three different ways, or at three different levels. The first, and narrowest, is the context of the provision itself; the next level is that of the Act as a whole; the third is the context of the legislation in its widest sense, including a broader statutory scheme, the legislative history of the enactment and the purpose for which the legislation was enacted.

Summary of principles The implications of the principle that a provision should be interpreted in context include the following, progressing from narrow to wider meanings of ‘context’: • Words should be interpreted with reference to accompanying words — in particular, general words can be ‘read down’ or given a more narrow meaning

4 5 2 3

12.3

(1998) 194 CLR 355 (‘Project Blue Sky’) (extracted in 14.9). Ibid 381. (1985) 157 CLR 309 (‘K&S Lake City Freighters’). Ibid 315 (Mason J). See also ibid 312 (Gibbs CJ), 321 (Deane J); CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408 (‘CIC Insurance’), cited in 11.12; Repatriation Commission v Vietnam Veterans’ Association of Australia, NSW Branch Inc (2000) 48 NSWLR 548, 575–6 (Spigelman  CJ), 593 (Handley JA, agreeing).

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• • •

•

•

• • • •

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•

•

•

by more specific words that accompany them (following the maxims noscitur a sociis or ejusdem generis): see 12.4–12.5. Although once not given great weight, today punctuation is regarded as relevant to interpretation: see 12.8. All words in a provision are assumed to carry meaning, so an interpretation should be favoured that gives effect to all the words: see 12.10. Words should be interpreted with reference to other parts of the legislation in which they appear, including titles, preambles, headings, notes and schedules. Depending on jurisdiction, some of these form part of the legislation; others, for example section headings, may be extrinsic materials: see 12.11–12.23; see also 9.32ff. Consistent use of words is assumed throughout a statute — thus a term or phrase will generally be given the same meaning in different parts of the statute: see 12.24. The express mention of something may draw attention to the absence of something else that might be expected, or which is included elsewhere in the statute (following the maxim expressio unius est exclusio alterius): see 12.25. Specific provisions can take precedence over general provisions (following the maxim generalia specialibus non derogant): see 12.27. Words should be interpreted with reference to the interpretation legislation of the relevant jurisdiction: see 12.28–12.29. Dictionaries may be consulted to obtain the ordinary meaning of words: see 12.30. Words should be interpreted in accordance with their current meaning, which may change over time: see 12.31. Provisions may be interpreted with reference to other legislation that is either on the same material (in pari materia) or part of the same legislative scheme: see 12.32–12.36. Provisions may be interpreted with reference to the audience to which they are primarily directed, in order to give a term its technical or trade meaning rather than its ordinary meaning: see 12.37–12.38. Provisions may be interpreted with reference to prior or other existing law, which may result in a term being given a legal, rather than ordinary, meaning or being interpreted in accordance with prior judicial interpretation: see 12.39–12.40.

In this chapter each of these propositions is explored and illustrated.

Interpretation with reference to accompanying words 12.4

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Many words have two or more meanings. The word ‘light’, for example, can be used as a noun, a verb or an adjective. Further, when used for a particular grammatical function, it can have more than one meaning. Similarly, the word ‘match’ can be used as a noun or

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CHAPTER 12

Interpretation of Legislation in Context

a verb and it can also have any one of several meanings when used for either function. Notwithstanding these apparently insurmountable barriers to communication, if someone says ‘light a match’, you know what you have been asked to do. When interpreting legislation, as in everyday life, we are attuned to determining the meaning of words by taking account of the context in which they are used. Thus, when it is provided in s 10(2) of the Animal Welfare Act 1993 (Tas) that ‘[a] person must not promote or take part in a match or competition in which an animal is released from captivity for the purpose of being shot, killed, worried or injured’, we have a reasonably clear idea of the sense in which the word ‘match’ is used, despite the absence of a definition. Applying the same reasoning process, the meaning of ‘worried’ in s  10 is also clear, despite the consideration that its interpretation by reference to the accompanying words produces a less common meaning. The principle that words should be interpreted with reference to accompanying words is exemplified in two ancient maxims of interpretation: • noscitur a sociis — the meaning of a word is known from the words that accompany it; and • ejusdem (or eiusdem) generis — if words of particular meaning are followed by general words, the general words are limited to the same kind as the particular words.This maxim is often considered a sub-principle of the maxim noscitur a sociis.6 Example

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R v Ann Harris (1836) 7 Car & P 446; 173 ER 198 illustrates the application of noscitur a sociis. The prisoner was indicted under 9 Geo IV, c 31 s 12 with wounding a female by biting off the end of her nose. Section 12 provided that if a person ‘shall unlawfully and maliciously stab, cut, or wound any person, with intent … to maim, disfigure, or disable such person’ the offender was guilty of a felony. Patteson J directed the jury that it was the intention of the legislature, according to the words of the statute, that the wounding should be inflicted with an instrument, and not by the hands or teeth. The jury found the prisoner not guilty.

In this case, the application of noscitur a sociis produced a reading down of the word ‘wound’; that is, the application of an otherwise broad general term was limited by the more specific terms that accompanied it. It is an open question whether the same conclusion would be reached today in light of the purposive approach: see 10.14ff. If the maxim ejusdem generis is to apply, the specific words must have a genus (a  category). This means that they must have something in common, a basic core of meaning by reference to which the general words should be interpreted. Furthermore, it is generally accepted that there must be more than one word of specific meaning to establish a genus.7 Thus, the maxim was not applied to exclude a liquid from the phrase ‘stone or other missile’.8

12.5 noscitur a sociis: the meaning of a word is known from the words that accompany it ejusdem generis: Latin for ‘of the same kind’; if words of particular meaning are followed by general words, the general words are limited to the same kind as the particular words

12.6

Deputy Commissioner of Taxation v Dick (2007) 226 FLR 388, 391 (Spigelman CJ). Deputy Commissioner of Taxation v Clark (2003) 57 NSWLR 113, 142–4 (Spigelman CJ), 150 (Handley and Hodgson JJA, agreeing) (‘Clark’). 8 Field v Gent (1996) 67 SASR 123. 6 7

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Example Most Australian wills Acts contain a provision that a will may be revoked by ‘burning, tearing, or otherwise destroying the will’ with an intention to revoke it. The specific words ‘burning’ and tearing’ form a category, or genus, ie physical destruction — thus, by the application of the ejusdem generis maxim, the phrase ‘otherwise destroying’ also requires physical destruction. This means that under this provision a will may be revoked by being put through a paper shredder, but not by writing ‘cancelled’ on it, nor by scribbling over it, nor by drawing lines through the signatures of the testator and the witnesses.

12.7

The maxim ejusdem generis is based on a narrow concept of context. Its significance as a tool of interpretation has diminished as the courts have placed greater emphasis on purpose and on much broader meanings of context. In Deputy Commissioner of Taxation v  Clark9 (‘Clark’) the New  South  Wales Court of Appeal considered the argument that ejusdem generis applied to a provision in the Corporations Act 2001 (Cth). However, Spigelman CJ instead examined the scope and purpose of the provision, considering it in its historical setting. This involved a detailed examination of more than 20 years of legislative changes and judicial interpretations. Spigelman CJ observed: The process of reading down general words in a statute is a frequently recurring issue in statutory interpretation … Application of the ejusdem generis rule is a specific example of this process. The application of this rule, in substance, gives the immediate verbal context determinative weight in the process of construing general words. In my opinion, this is rarely justified. Whether or not general words ought to be read down is to be determined by the whole of the relevant context, including other provisions of the statute and the scope and purpose of the statute.10

The comments of Spigelman CJ have been quoted and relied on in several cases.11

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12.8

Punctuation is another part of the narrowest conception of context. Punctuation can play a critical role in meaning. An example of this is the title of a popular book on the subject: Eats, Shoots & Leaves.12 With the comma, this title reads as a list of three actions: to eat, to shoot and then to leave; without the comma (eats shoots and leaves) the phrase describes one action — the eating of shoots and leaves. The traditional attitude of the courts to punctuation stems from the time when printing was not an exact process. Wherever possible, drafters avoided using punctuation, and courts tended to ignore punctuation on the basis that it might not be part of the enactment but merely a printer’s error. That judicial attitude survived to some extent in the High Court decision in Shire of Charlton v Ruse.13 In that case Griffith CJ said: ‘I think Clark (n 7). Ibid 143 (Spigelman CJ); see also ibid 150 (Handley and Hodgson JJA agreeing). 11 See, eg, Vella v Minister for Immigration (2015) 230 FCR 61, 77 [63] (Bucanan, Flick and Wigney JJ). 12 Lynn Truss, Eats, Shoots & Leaves (Profile Books, 2003). 13 (1912) 14 CLR 220. 9

10

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CHAPTER 12

Interpretation of Legislation in Context

that stops, which may be due to a printer’s or proof reader’s error, ought not to control the sense if the meaning is otherwise tolerably clear.’14 And Isaacs J said: ‘But though I am not prepared to discard wholly the punctuation of an Act, it would be unsafe to allow it to govern the construction.’15 Today, interpretation legislation stipulates that punctuation forms part of a statute in the Commonwealth, the Australian Capital Territory, Queensland, South Australia and Victoria, enabling a court to have regard to punctuation as it does to other parts of legislation.16 Further, today’s drafters do use punctuation and courts take that into account when interpreting legislation. In Re Collins; Ex parte Hockings, Toohey and McHugh JJ said:

12.9

There is no reason why the use of a comma after the words ‘breach of the rules of an organization or of a branch of an organization’ should be discarded or thought to serve no purpose in the construction of the definition: see the discussion in Pearce and Geddes Statutory Interpretation in Australia, 3rd ed (1988) par 4.37. It is said that Sir Roger Casement was hanged by a comma.17

See also the comments of Gibbs ACJ in Ryde Municipal Council v Macquarie University,18 interpreting s  132(1)(d) of the Valuation of Land Act  1916 (NSW), which stated that University land was exempt from rates when the land ‘is used or occupied by the University or college, as the case may be, solely for the purposes thereof ’. According to Gibbs ACJ, [t]he word ‘solely’ in this paragraph does not in my opinion govern the phrase ‘by the University’; its position in the paragraph, and the interposition of commas, and of the words ‘as the case may be’, show that it relates to ‘the purposes’.19

For the effect of inverted commas in a statute on its interpretation, see  Conigrave v Tanner 20 where the use of inverted commas was held to be a deliberate sign-posting that a word was being used in a special way.

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All words are assumed to carry meaning If drafters succeed in their aim to communicate meaning as succinctly as possible, it may be assumed that every word in a statute or set of regulations is intended to have some meaning. In Project Blue Sky, McHugh, Gummow, Kirby and Hayne JJ commented that

12.10

a court construing a statutory provision must strive to give meaning to every word of the provision. In Commonwealth v Baume (1905) 2 CLR 405, 414 Griffith CJ cited R v Berchet (1688) 1 Show KB 106; 89 ER 480 to support the proposition that it was ‘a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that

Ibid 225 (Griffith CJ). Ibid 229–30 (Isaacs J). 16 Acts Interpretation Act 1901 (Cth) s 13; Legislation Act 2001 (ACT) s 126(6); Acts Interpretation Act 1954 (Qld) s 14(6); Acts Interpretation Act 1915 (SA) s 19(1)(d); Interpretation of Legislation Act 1984 (Vic) ss 35(b)(i) and 36(3B). 17 Re Collins; Ex parte Hockings (1989) 167 CLR 522, 525; see also ibid 529 (Gaudron J). 18 (1978) 139 CLR 633. 19 Ibid 636. 20 [1978] WAR 225, 230. 14 15

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no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent’.21 surplusage: excessive or nonessential material

This reasoning technique is frequently employed.22 It is sometimes described as the presumption against surplusage. The presumption can be considered an aspect of the purposive approach. In Plaintiff S157/2002 v Commonwealth,23 Gaudron, McHugh, Gummow, Kirby and Hayne JJ observed: As was said in Project Blue Sky … [at] 384 (McHugh, Gummow, Kirby and Hayne JJ), ‘the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have’. Seldom will a construction that gives a provision no useful work to do achieve that end.24

Interpretation with reference to other parts of the legislation 12.11

As we saw in 10.8, interpreting a provision requires more than merely reading words in their immediate, syntactical context — as Higgins  J stated in the Engineers Case, it also requires reading a provision in the context of the Act ‘as a whole’.25 This seemingly simple injunction is complicated by the fact that not everything that appears on the page of a printed statute (or online) is legally part of the Act. The components making up the formal structure of an Act were identified and discussed at 9.31–9.43. As we saw in these paragraphs, in each jurisdiction there are rules as to which parts of an Act as printed, such as headings to sections, headings to parts, long titles and preambles, are in fact parts of the Act. This question and the role of these parts of an Act in the interpretive process are discussed in the following paragraphs. As to Commonwealth Acts, the first of these questions is addressed by s 13 of the Acts Interpretation Act 1901 (Cth), which provides:

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(1) All material from and including the first section of an Act to the end of: (a) if there are no Schedules to the Act — the last section of the Act; or (b) if there are one or more Schedules to the Act — the last Schedule to the Act; is part of the Act. (2) The following are also part of an Act: (a) the long title of the Act; (b) any Preamble to the Act; (c) the enacting words for the Act; (d) any heading to a Chapter, Part, Division or Subdivision appearing before the first section of the Act.

The precise content of s  13 is not replicated in the interpretation legislation of the states and territories. In those jurisdictions, although the interpretation legislation does

Project Blue Sky (n 2) 382. See, eg, Maroondah City Council v Fletcher (2009) 169 LGERA 407, 420–1 (Warren CJ and Osborn AJA); Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252, 266 (French CJ, Gummow, Hayne, Crennan and Kiefel JJ). 23 (2003) 211 CLR 476. 24 Ibid 509–10. 25 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129, 161 (Higgins J) (‘Engineers Case’). 21 22

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CHAPTER 12

Interpretation of Legislation in Context

not contain a general provision equivalent to s 13(1), there are specific common law principles and statutory provisions that determine which parts of an Act as published are in fact part of the Act. These are identified in the sections below. Items appearing on the printed, or online, page that are not parts of the Act are considered extrinsic materials, and may be consulted in accordance with the rules discussed in 11.12ff. Turning to the role of the parts of an Act in the interpretive process, s 140 of the Legislation Act 2001 (ACT) provides:

12.12

In working out the meaning of an Act, the provisions of the Act must be read in the context of the Act as a whole.

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This provision does not have counterparts in other interpretation legislation. However, as noted above in the Engineers Case, it has long been accepted that provisions in legislation should be interpreted by taking into account other parts of the legislation. Lawyers who are interpreting a section in an Act routinely read other sections close to that section and examine the definitions section of the Act. They may decide that it is prudent to look at the whole of the Act. For this purpose, tables of contents, indexes, headings to parts of the Act and headings to sections can be useful. Generally speaking, the rules governing the uses of the various parts of an Act as aids to interpretation can be established by reference to the concepts of purpose and context. However, there are some specific principles that the courts have laid down, which are of more than historical interest. TITLES OR NAMES In most jurisdictions, an Act has a long title and a short title.The practice in the Australian Capital Territory and in New South Wales is to give Acts names instead of short titles. Victorian Acts have titles, instead of short titles, and do not have long titles, but instead have statements of purpose: see 9.34, 9.35 and 9.41. The long title is recognised by the courts as part of an Act. The Acts Interpretation Act 1901 (Cth) contains a provision to this effect: s 13(2)(a) (quoted at 12.11). In Birch v Allen26 Latham CJ explained what may be described as the traditional view of the use to be made of the long title in the interpretation of legislation:

12.13

It may be proper to look at the title for the purpose of determining the scope of an Act; it may be referred to, not to contradict any clear and unambiguous language, but if there is any uncertainty it may be referred to for the purpose of resolving the uncertainty.27

More recent High Court decisions express a more modern view of the way a long title may be used in interpretation. This view takes account of the change brought about by s 15AA of the Acts Interpretation Act 1901 (Cth) and its counterparts (see 10.18ff ), which require the courts to prefer a construction of a provision that would promote (or ‘best achieve’ in some jurisdictions) the purpose or object of the Act. They should do this initially by looking at the provision in the light of the purpose as disclosed in the rest of the Act, including the long title, and not at some later stage of the interpretive process when ambiguity might be considered to have arisen.28 In Amatek Ltd v  Googoorewon

12.14

(1942) 65 CLR 621. Ibid 625–6. 28 See K & S Lake City Freighters (n 4) 315 (Mason J), quoted in 12.2. 26 27

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Pty Ltd29 the High  Court was required to consider the scope of powers granted the court by the Encroachment of Buildings Act 1922 (NSW). Mason CJ, Brennan, Dawson, Gaudron and McHugh JJ said: The purpose of the Act is to be ascertained from its language. So far as one may define the purpose of the Act from its long title, that purpose does not extend to the conferring of a general power to change the boundaries between contiguous parcels of land. It is an Act ‘to make provision for the adjustment of boundaries where buildings encroach on adjoining land; to facilitate the determination of boundaries; and for purposes connected therewith’. The twin purposes of the Act are to facilitate the determination of existing boundaries when, but only when, buildings encroach on adjoining land (provided for by s 3).30

A good example of the use of the long title is in R v White,31 where it was argued that the Evidence Act 1898 (NSW) was intended to codify the law on evidence, and thus the interpretative principles applicable to a code ought to apply: see 9.68. However, the court held that as the long title stated that the statute was ‘An Act to consolidate the statute law relating to evidence’, rather than a code, it ought to be interpreted as a consolidating statute, rather than a code. As to Victorian legislation, see  the discussion of s  35(b)(i) of the Interpretation of Legislation Act 1984 in 11.28ff.

12.15

PREAMBLES The preamble to a statute is also recognised by the courts as part of an Act: see 9.48. The interpretation legislation in the Commonwealth, the Australian Capital Territory, South  Australia and Western Australia expressly provide that the preamble is part of legislation.32 In Bowtell v Goldsbrough, Mort & Co Ltd Griffith CJ said: [W]here the words of a Statute are plain and clear, their meaning cannot be cut down by reference to the preamble. But, if the words are uncertain as applied to the subject matter, and may bear more than one meaning, then you may, in a proper case, refer to the preamble to ascertain what was the occasion for the alteration of the law.33

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In Wacando v Commonwealth Mason J amplified and explained this view: It has been said that where the enacting part of a statute is clear and unambiguous it cannot be cut down by the preamble. But this does not mean that a court cannot obtain assistance from the preamble in ascertaining the meaning of an operative provision. The particular section must be seen in its context; the statute must be read as a whole and recourse to the preamble may throw light on the statutory purpose and object. There is, however, one difficulty in seeking to restrict the generality of the operative provision by reference to a suggested restriction expressed in the preamble: it is that Parliament may intend to enact a provision which extends beyond the actual problem sought to be remedied. Recognition of this difficulty led Viscount Simonds in Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436, 463 to say ‘that the context of the preamble is (1993) 176 CLR 471. Ibid 477. 31 (1899) 20 LR (NSW) 12. See Dennis Pearce, Statutory Interpretation in Australia (LexisNexis Butterworths, 9th ed, 2019) 189–90 [4.60]. 32 Act Interpretation Act 1901 (Cth) s 13(2)(b); Legislation Act 2001 (ACT) s 19; Acts Interpretation Act 1915 (SA) s 19; Interpretation Act 1984 (WA) s 31(1). 33 (1905) 3 CLR 444, 451. 29 30

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Interpretation of Legislation in Context

not to influence the meaning otherwise ascribable to the enacting part unless there is a compelling reason for it’.34

The comments in 12.12 concerning interpretation by reference to purpose or object and context apply to preambles as well as to long titles. For Victorian legislation, the preamble is not part of the Act, but may be considered as extrinsic material: see 11.28.35 INTERPRETATION PROVISIONS When a provision has to be interpreted it is important to check the definition, interpretation or dictionary section of the legislation, or of that part of the legislation in which the provision appears, to determine whether any words in the provision have been given a particular interpretation: see 9.56. It used to be standard practice to commence such provisions with the formula ‘unless the contrary intention appears’: see further at 12.29. Even if these words are not included, they are implied.36 The formula means that the definition of a word may be displaced by the context in which it appears. Although this practice is not always followed today, the same effect can be achieved by the inclusion in interpretation legislation of provisions like s 6 of the Interpretation Act 1987 (NSW) which provides:

12.16

Definitions that occur in an Act or instrument apply to the construction of the Act or instrument except in so far as the context or subject-matter otherwise indicates or requires.

See  also Legislation Act  2001 (ACT) ss  5–6, 155; Acts Interpretation Act  1954 (Qld) ss 32–32AB. Also note s 2 of the Acts Interpretation Act 1901 (Cth) which provides:

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(1) This Act applies to all Acts (including this Act). (2) However, the application of this Act or a provision of this Act to an Act or a provision of an Act is subject to a contrary intention.

The onus of establishing a contrary intention lies with the party asserting it.37 There are two kinds of definitions: closed definitions, marked by the use of the term ‘means’; and open definitions, marked by the use of the term ‘includes’. Closed definitions are exhaustive, whereas open definitions are illustrative. For example, the University of Canberra Act 1989 (ACT) provides in the dictionary at the end of the Act:

12.17

‘elect’ includes re-elect. ‘general staff ’ means members of the university other than — (a) the vice-chancellor; and (b) the members of the academic staff.

In this definition, we see  that the term ‘general staff ’ means certain people — this definition is exhaustive or closed, so only those people can be ‘general staff’ for the purposes of the Act. However, ‘elect’ is an open definition; thus to ‘re-elect’ does not exhaust the category of actions involved in electing. Types of definition, including

36 37 34 35

(1981) 148 CLR 1, 23. Interpretation of Legislation Act 1984 (Vic) s 35(b)(i). Matter of The Fourth South Melbourne Building Society (1883) 9 VLR (Eq) 54. Anti-Doping Rule Violation Panel v XZTT (2013) 214 FCR 40, 64.

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open and closed definitions, are explicitly dealt with in Australian Capital Territory interpretation legislation.38

12.18

HEADINGS TO CHAPTERS, PARTS AND DIVISIONS Acts may be divided into chapters, parts and divisions and if necessary a division may be divided into subdivisions: see  9.53. The interpretation legislation provides that the headings to chapters, parts, divisions and subdivisions into which an Act may be divided are part of the Act.39 The comments in 12.12 concerning interpretation by reference to underlying purpose or object and context apply to headings as well as to long titles and preambles. In Hagan v Trustees of Toowoomba Sports Ground Trust Drummond J said: [Section 18C(1)(b) of the Racial Discrimination Act 1975 (Cth)] is in Part IIA of the Act headed ‘Prohibition of Offensive Behaviour based on Racial Hatred’. It is necessary to take this heading into account in seeking the true meaning of s 18C(1)(b): that heading is part of the statutory context of the phrase ‘act done because of the race …’ in this sub-section. See  s  13(1) of the Acts Interpretation Act  1901 (Cth) and CIC Insurance Ltd v  Bankstown Football Club Ltd (1997) 187 CLR 384, where it is said at 408 that ‘the modern approach to statutory interpretation … insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise …’.40

Section 13(1) of the Acts Interpretation Act 1901 (Cth), discussed in the quote above, has been replaced with s 13(2)(d) of that Act.41

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12.19

SECTION HEADINGS AND NOTES The interpretation legislation of New  South  Wales, South  Australia, Tasmania and Western Australia provides that headings to sections, marginal notes, footnotes or endnotes are generally not part of legislation.42 However, the equivalent provisions in the Australian Capital Territory, Northern Territory, Queensland and Victoria provide that while headings to sections are part of the Act (if the Act has been passed after a certain date), footnotes and endnotes are not.43 There are some exceptions to this in relation to certain notes that are considered part of legislation, such as those expressly referred to in an Act as part of it.44 As to the Commonwealth, as all parts of the Act from the first section to the end are now part of the Act, section headings and notes of all kinds are now included as part of the Act.45 Legislation Act 2001 (ACT) ss 130–132. Acts Interpretation Act 1901 (Cth) s 13(1), (2)(d); Legislation Act 2001 (ACT) s 126(1); Interpretation Act 1987 (NSW) s  35(1)(a); Interpretation Act  1978 (NT) s  55(1); Acts Interpretation Act  1954 (Qld) s  14(1); Acts Interpretation Act 1915 (SA) s 19(1)(b); Acts Interpretation Act 1931 (Tas) s 6(2); Interpretation of Legislation Act 1984 (Vic) s 36(1)(a); Interpretation Act 1984 (WA) s 32(1). See also 9.60. 40 [2000] FCA 1615 [34]. 41 See also Australian Prudential Regulation Authority v Holloway (2000) 104 FCR 521, 539–41; Awada v Linkarf Ltd (in liq) (2002) 55 NSWLR 745, 749–50. 42 Interpretation Act  1987 (NSW) s  35(2)(c); Acts Interpretation Act  1915 (SA) s  19(2)(a); Acts Interpretation Act 1931 (Tas) s 6(4); Interpretation Act 1984 (WA) s 32(2). 43 Legislation Act 2001 (ACT) s 126(2) (cf s 127(3)), s 127(1); Interpretation Act 1978 (NT) s 55(2), (6); Acts Interpretation Act 1954 (Qld) s 14(2), (7); Interpretation of Legislation Act 1984 (Vic) s 36(2A), (3). 44 Interpretation Act  1987 (NSW) s  35(4); Interpretation Act  1978 (NT) s  55(4); Acts Interpretation Act  1954 (Qld) s 14(4); Interpretation of Legislation Act 1984 (Vic) s 36(3A); Interpretation Act 1984 (WA) s 32(2). 45 See the current s 13(1) of the Acts Interpretation Act 1901 (Cth), which is set out at 12.11. 38 39

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Interpretation of Legislation in Context

Where section headings and notes are part of an Act on account of interpretation legislation, they are perhaps on the same level as a title: see 12.13.46 Thus, it was recently stated that while ‘a note cannot govern the text of an [A]ct, it can be used as an aid in interpretation’.47 In the absence of statutory provisions governing the issue, Australian courts used to take the view that marginal notes (and, by implication, other notes) could not be taken into account in the interpretation of legislation.48 There was, however, authority for the view that a marginal note may be consulted to the extent that it shows the ‘drift of the section’.49 Stephen J commented in Dugan v Mirror Newspapers Ltd that marginal notes were at most ‘only a quite minor aid’.50 In Ombudsman v Moroney Street CJ took a different view from that taken in the earlier cases:

12.20

If a clause in a Bill accompanied by a marginal note passes through Parliament unamended and that marginal note is printed on the formal Bill to which Royal assent is in due course given, I see every reason to regard it as a legitimate source upon which to draw as an aid to construction of the section  … Whilst asserting, as I do, the permissibility of turning to an authenticated marginal note to assist in resolving the interpretation of a doubtful or ambiguous section, I fully recognize that, not being part of the Act, it cannot control the meaning of the section. It may well be only rarely that such doubt or ambiguity will arise as will result in useful reference to an authenticated marginal note for its resolution.51

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With the exception of South Australia, where a jurisdiction’s interpretation legislation defines headings to sections, marginal notes, footnotes or endnotes as not part of an Act, provisions are included that explicitly refer to such parts of Acts as extrinsic materials52 that may be consulted in accordance with the rules discussed in Chapter  11: see also 9.50ff. An example of the use of a heading to aid in interpretation, though not part of the Act, is R v A2; R v Magennis; R v Vaziri (‘R v A2’),53 discussed in 11.15, where regard was had to the heading to s 45 of the Crimes Act (NSW), ‘Prohibition of female genital mutilation’, in order to give the phrase ‘otherwise mutilates’ a broad meaning in light of the sweeping approach implied by the term ‘prohibition’. SCHEDULES As discussed at  9.57, schedules to an Act are used for a variety of purposes, such as setting out material in tabular form, listing amendments to Acts, setting out an international agreement to which the Act gives force, or even including the bulk of operative provisions, such as the Queensland Criminal Code in sch 1 of the Criminal

12.21

Pearce (n 31) 201 [4.74]. KDSP v Minister for Immigration, Citizenship and Migrant Services [2020] FCAFC 108 [289] (O’Callaghan and Stewart JJ). 48 Frauenfelder v Reid (1963) 109 CLR 42, 50; Bradley v Commonwealth (1973) 128 CLR 557, 577. 49 Joyce v Paton (1941) 58 WN (NSW) 88, 90. 50 (1979) 142 CLR 583, 594. 51 [1983] 1 NSWLR 317, 324–5. 52 See Legislation Act 2001 (ACT) s 142(1); Interpretation Act 1987 (NSW) s 34(2)(a); Interpretation Act 1978 (NT) s 62B(2)(a); Acts Interpretation Act 1954 (Qld) s 14B(3)(a); Acts Interpretation Act 1931 (Tas) s 8B(3)(a); Interpretation of Legislation Act 1984 (Vic) s 35(b)(i); Interpretation Act 1984 (WA) s 19(2)(a). 53 [2019] HCA 35.

46 47

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Code Act 1899 (Qld). The interpretation legislation provides that a schedule is part of an Act in all jurisdictions54 except New South Wales where it is implied.55 This means that schedules are not to be regarded as an inferior part of the Act and so, generally speaking, the ordinary principles of interpretation apply to their interpretation. In Inland Revenue Commissioners v Gittus56 Lord Sterndale MR set out the principles to be applied in the event of a possible inconsistency between the enabling sections of an Act and a schedule: It seems to me there are two principles or rules of interpretation which ought to be applied to the combination of Act and schedule. If the Act says that the schedule is to be used for a certain purpose and the heading of the part of the schedule in question shows that it is prima facie at any rate devoted to that purpose, then you must read the Act and the schedule as though the schedule were operating for that purpose, and if you can satisfy the language of the section without extending it beyond that purpose you ought to do it. But if in spite of that you find in the language of the schedule words and terms that go clearly outside that purpose, then you must give effect to them and you must not consider them as limited by the heading of that part of the schedule or by the purpose mentioned in the Act for which the schedule is prima facie to be used. You cannot refuse to give effect to clear words simply because prima facie they seem to be limited by the heading of the schedule and the definition of the purpose of the schedule contained in the Act.57

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12.22

12.23

The comments in 12.12 concerning interpretation by reference to underlying purpose or object and context apply to schedules as well as to long titles, preambles and headings to parts and divisions. However, it must be remembered that scheduling an international agreement in a statute does not necessarily incorporate it as part of domestic law: see 3.37. The purposes for which the agreement has been scheduled will be set out in the Act. These purposes may limit the effect in domestic law of the agreement and to that extent the schedule will be subordinate to the terms of the Act.58 For international agreements in Australian Capital Territory legislation and Victorian legislation, see the discussion of s 140 of the Legislation Act 2001 (ACT) and s 35(b)(i) of the Interpretation of Legislation Act 1984 (Vic) in 11.27 and 11.28, respectively.59 EXAMPLES Examples are used in some Acts. An example is expressed to be part of an Act in the Commonwealth, Australian Capital Territory, Northern Territory, Queensland, South  Australia and Victoria.60 Section  15AD of the Acts Interpretation Act  1901 (Cth) provides: Acts Interpretation Act 1901 (Cth) s 13(1) (quoted at 12.11); Legislation Act 2001 (ACT) s 126(5); Interpretation Act 1978 (NT) s 55(5); Acts Interpretation Act 1954 (Qld) s 14(5); Acts Interpretation Act 1915 (SA) s 19(1)(a); Acts Interpretation Act  1931 (Tas) s  6(3); Interpretation of Legislation Act  1984 (Vic) s  36(2); Interpretation Act 1984 (WA) s 31(2). 55 Interpretation Act 1987 (NSW) s 64A. 56 [1920] 1 KB 563. 57 Ibid 576. 58 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. 59 See also Brooks v Federal Commissioner of Taxation (2000) 100 FCR 117, 134–6. 60 Acts Interpretation Act  1901 (Cth) s  13(1); Legislation Act  2001 (ACT) s  126(4); Interpretation Act  1978 (NT) s 55(4); Acts Interpretation 1954 (Qld) ss 14(3), 35C(2); Acts Interpretation Act 1915 (SA) s 19(1)(c); Interpretation of Legislation Act 1984 (Vic) s 36(3A).

54

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Interpretation of Legislation in Context

If an Act includes an example of the operation of a provision: (a) the example is not exhaustive; and (b) the example may extend the operation of the provision.

Similar provisions are found in those other jurisdictions where examples form part of the Act.61 Interpretation legislation in Queensland and the Northern Territory also includes the express provision that the section  of the statute itself prevails over an example to the extent of any inconsistency.62

Consistent use of words is assumed A further aspect of interpreting a provision within the context of the Act as a whole is considering whether a word or phrase can be found elsewhere in the legislation in a place where its meaning is more apparent. Unlike poets and novelists, drafters attempt to communicate meaning as directly and briefly as possible. One of the ways to do this is to repeat the same word or phrase when precisely the same meaning is intended. When interpreting a particular piece of legislation, therefore, it may be assumed that the meaning of a word that is repeated is consistent. In Wilson v Commissioner of Stamp Duties, Lee J said:

12.24

Although there is no absolute requirement that the same words in a statute must be given the same meaning, the need to give different meanings should be clearly apparent and should lead to a result which is consonant with the purpose of the statute.63

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The obverse of this principle of interpretation is that, where different words have been used, a different meaning must have been intended. However, drafting styles can change, so it is possible that a different form of words has been used merely for clarity. This possibility is expressly acknowledged in the interpretation legislation of the Commonwealth, the Australian Capital Territory, Queensland and the Northern Territory. These Acts provide that where that the same idea appears to be stated through the use of different words ‘for the purpose of using a clearer style’, the ideas shall not be regarded as different merely because of the use of different words.64

Express mention of something may draw attention to the intended absence of something else This principle is encapsulated in the maxim expressio unius est exclusio alterius, which means ‘the express mention of one thing is the exclusion of another’. This maxim of interpretation is another illustration of the principle that a word or phrase should be interpreted in the context of the Act as a whole. Its possible operation arises in circumstances in which it could be assumed that otherwise the two things would both be included. Another way of putting this is to say that sometimes an absence is significant.

12.25

Legislation Act 2001 (ACT) s 132; Interpretation Act 1978 (NT) s 62D; Acts Interpretation Act 1954 (Qld) s 14D; Acts Interpretation Act 1915 (SA) s 19A; Interpretation of Legislation Act 1984 (Vic) s 36A. 62 Interpretation Act 1978 (NT) s 62D(c); Acts Interpretation Act 1954 (Qld) s 14D(c). 63 (1986) 6 NSWLR 410, 418–19. 64 Acts Interpretation Act 1901 (Cth) s 15AC; Legislation Act 2001 (ACT) s 147; Interpretation Act 1978 (NT) s 62C; Acts Interpretation Act 1954 (Qld) s 14C. 61

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The High Court has counselled on several occasions that the maxim should be applied with caution.65 A  reason for this caution was expressed in Colquhoun v  Brooks where Lopes CJ said: The maxim ‘expresssio unius, exclusio alterius’ … is often a valuable servant, but a dangerous master to follow in the construction of statutes or documents. The exclusion is often the result of inadvertence or accident, and the maxim ought not to be applied when its application, having regard to the subject-matter to which it is to be applied, leads to inconsistency or injustice.66

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12.26

An example of the application of the maxim is the Federal Court case Construction, Forestry, Mining and Energy Union v Hodgkiss.67 There, the relevant Act contained several references to false or misleading statements, each of which required proof of knowledge that the statement was false or misleading, or recklessness as to whether it was false or misleading. Lander J, expressing a majority view, noted that as the section under consideration did not state that knowledge on the part of the maker of a false or misleading representation was required, ‘the unavoidable inference is that Parliament intended that the section would be contravened without proof of knowledge or intent on the part of the maker of the representation’.68 In other words, the omission was deliberate.69 Here it can be seen that the principle is related to that expressed at 12.24, that a consistent use of words is to be expected — if something is included in one part of an Act, but not another, this suggests its exclusion was intentional.

See  Bass v  Permanent Trustee Co Ltd (1999) 198 CLR 334, 348–9 (Gleeson  CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ), and the cases there cited. 66 (1888) 21 QBD 52, 65. 67 (2007) 169 FCR 151. 68 Ibid 161 (Lander J). 69 See also R v Zuber (2010) 242 FLR 416, 427–8. 65

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Interpretation of Legislation in Context

General provisions do not override specific provisions When considering an Act as a whole, the question can arise as to the relationship between general provisions and specific provisions that are inconsistent with one another, with respect to current provisions within the same Act, and also whether later general provisions repeal earlier specific provisions. The general presumption as to the approach to adopt is expressed by the maxim generalia specialibus non derogant — ‘general things do not derogate from special things’. The ‘things’ referred to are statutory provisions, so that an earlier provision which deals with a particular matter may not be impliedly repealed by a later, more general, provision. Thus, in South Australia v Tanner,70 Wilson, Dawson, Toohey and Gaudron JJ held that the provisions of the later Planning Act 1982 (SA) did not impliedly repeal the earlier Waterworks Regulations 1974 (SA) made under the specific Waterworks Act  1932 (SA), as the Planning Act was concerned with general planning permission, whereas the Waterworks Act dealt with the specific problem of water pollution.71 Thus a permit was required under both regimes, rather than just the Planning Act. As this maxim illustrates, the opportunities to argue that a provision is impliedly repealed arise infrequently: see  9.38. For examples of the use of the maxim generalia specialibus non derogant, see Booth v Federal Commissioner of Taxation72 and Smith v The Queen.73

12.27

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Interpretation legislation Moving beyond the context of the Act itself, another aspect of interpretation in context is that statutes and subordinate legislation must be interpreted in the light of the appropriate interpretation legislation: see 9.60. In addition to its many other functions, which we have seen, such interpretation legislation also contains definitions of terms that commonly recur in legislation. See, for example, s 2B of the Acts Interpretation Act 1901 (Cth) which contains definitions of constitutional terms such as ‘Commonwealth’, ‘Constitution’, ‘Executive Council’, ‘Proclamation’ and ‘Territory’. The terms ‘de facto partner’ and ‘de facto relationship’, which are used regularly in Commonwealth74 and state and territorial legislation,75 are also defined. Readers should refer to the Acts Interpretation Act 1901 (Cth) and to interpretation legislation in one of the states or territories to see  the kinds of words and phrases that are defined. The Legislation Act 2001 (ACT) contains a long set of definitions in a dictionary at the end of the Act. The interpretation legislation in each jurisdiction also contains provisions stating that words in the singular include the plural and vice versa, and words importing a gender include every other gender.76

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(1989) 166 CLR 161. Ibid 171. 72 (1986) 86 ATC 4049, 4060. 73 (1994) 181 CLR 338, 348. 74 Acts Interpretation Act 1901 (Cth) ss 2D and 2F. 75 See, eg, Interpretation Act 1987 (NSW) s 21C. 76 See Acts Interpretation Act 1901 (Cth) s 23; Legislation Act 2001 (ACT) s 145; Interpretation Act 1987 (NSW) s  8; Interpretation Act  1978 (NT) s  24; Acts Interpretation Act  1954 (Qld) ss  32B, 32C; Acts Interpretation Act 1915 (SA) s 26; Acts Interpretation Act 1931 (Tas) ss 24, 24A; Interpretation of Legislation Act 1984 (Vic) s 37; Interpretation Act 1984 (WA) s 10. 70 71

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12.29

These definitional sections  of interpretation legislation may be displaced by an indication of a contrary intention. For example, s 2(2) of the Acts Interpretation Act 1901 (Cth) states that the application of any provision of the Act ‘is subject to a contrary intention’. In Fordham v  Brideson77 it was held that the word ‘units’ in s  30(1) of the Teaching Service Act 1981 (Vic) should not be interpreted as including one unit, a contrary intention being disclosed in the Act for the purposes of the Interpretation of Legislation Act 1984 (Vic) s 37(a). In Walsh v Tattersall78 a prosecution for obtaining multiple payments or other benefits by dishonest means was quashed because the Act itself only referred to a singular ‘payment’ or ‘other benefit’.79

Dictionaries may be consulted

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12.30

If a word or phrase is not defined in the definition section of a piece of legislation then the task of interpretation again must move beyond the context of the Act itself. Here, it will often be helpful to refer to a dictionary for the word’s or phrase’s popular or ordinary meaning or, where appropriate, its technical meaning. In State Chamber of Commerce and Industry v Commonwealth, five Justices of the High Court in a joint judgment referred to the Macquarie Dictionary, an Australian dictionary, for assistance with the meaning of the term ‘fringe benefit’ in the Commonwealth’s fringe benefits legislation.80 References to the Macquarie Dictionary are becoming increasingly common in Australian cases. The Oxford English Dictionary, in both its longer and shorter versions, and the Australian Oxford English Dictionary are referred to from time to time, as are various other dictionaries. In KingAnsell v Police Richardson J referred to 12 dictionaries in the course of interpreting the word ‘ethnic’ in s 25(1) of the Race Relations Act 1971 (NZ).81 Of course, reliance on a dictionary definition of a word or phrase must give way to the context in which it is used in the legislation, as well as to the broader context encapsulated in the modern approach to statutory interpretation that is discussed in 10.27ff. In Van der Feltz v City of Stirling the sale of takeaway coffee did not breach planning regulations relating to the sale of ‘fast food’ in a drive-through facility;82 and in Norrie v NSW Registrar of Births Deaths and Marriages the term ‘sex’ in the Births, Deaths and Marriages Registration Act 1995 (NSW) was interpreted as not confined to the binary meaning of ‘male/female’, but could embrace alternative sexual labels.83

Words should be interpreted in accordance with their current meaning 12.31

The meaning of a word often changes over time. This can cause difficulties when the legislation to be interpreted was enacted many years before. In general, courts apply the current meaning of a word rather than the meaning that it had at the time the legislation 79 80 81 82 83 77 78

402

[1986] VR 587. (1996) 188 CLR 77. Ibid 90–1 (Gaudron and Gummow JJ). (1987) 163 CLR 329, 348. [1979] 2 NZLR 531, 541. (2009) 167 LGERA 236, 248. (2013) 84 NSWLR 697, 715 (Beazley ACJ).

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was enacted. This is sometimes expressed as the concept that the Act will be deemed to be ‘always speaking’. In the United States of America this interpretive technique or theory is known as ‘dynamic statutory interpretation’. Its leading exponent is William N Eskridge  Jr.84 The interpretation statutes of South  Australia and Western Australia explicitly provide that Acts should be read as ‘always speaking’.85 The concept was explained in Clark where Spigelman CJ said: Statutes may be interpreted on the basis that the connotation of the language remains the same whereas its denotation may differ over time  … So the word ‘gas’ was interpreted to include the supply of liquefied petroleum gas [in 1970], whereas only coal gas could have been in the contemplation of the Parliament at the time the legislation was adopted [in 1906] … Similarly [in 1971] ‘mining operations’ was extended to encompass a novel technological procedure for bringing subterranean pockets of brine to the surface to produce salt, which procedure was not in existence at the time the Income Tax Assessment Act (Cth) was enacted [in 1936].86

Spigelman CJ’s distinction between ‘connotation’ and ‘denotation’ here is a distinction between a broad concept ‘connoted’ or ‘suggested’ by a term (here, ‘gas’) and the specific things ‘denoted’, ‘indicated’ or ‘embraced’ by that concept over time (in this case, ‘coal gas’, ‘liquefied petroleum gas’). In R  v Strawhorn the Victorian Court of Appeal supported this approach, saying: ‘Prima facie, the words of legislation need to be interpreted in accordance with their current meaning from time to time.’87 An endorsement of the connotation/denotation analysis in Clark can be found in Preston v  Commissioner of Fair Trading.88 But sometimes the statutory language has acquired an obsolescent quality which prevents the inclusion of more modern technologies, as when ‘a motion picture film’ was held not to include a videotape.89

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Provisions may be interpreted with reference to other legislation Sometimes the statute to be interpreted is one of a number of statutes dealing with the same or similar subject matter. Here we might consider two contexts: the first, simply where different Acts deal with similar subject matter; and the second, where legislation forms part of a legislative scheme, either within one jurisdiction, or as part of a broader reciprocal or even ‘national’ scheme. In both contexts, the court may find it helpful to refer to the other statutes while interpreting the statute in question. This is another illustration of interpretation in a wider context, beyond the Act itself.

12.32

For a discussion of its relevance to Australia, see Suzanne Corcoran, ‘The Architecture of Interpretation: Dynamic Practice and Constitutional Principles’ in Suzanne Corcoran and Stephen Bottomley (eds), Interpreting Statutes (Federation Press, 2005) 31. 85 Acts Interpretation Act 1915 (SA) s 21; Interpretation Act 1984 (WA) s 8. 86 Clark (n 7) 145 (Spigelman CJ).The 1970 case referred to is Lake Macquarie Shire Council v Aberdare County Council (1970) 123 CLR 327, and the 1971 case is Imperial Chemical Industries of Australia & New Zealand Ltd v Commissioner of Taxation (Cth) (1971) 46 ALJR 35, 43. 87 (2008) 19 VR 101, 108. 88 (2011) 80 NSWLR 359, 368–9 (Campbell JA). 89 Wilson v  Commissioner of Stamp Duties (1988) 13 NSWLR 77, 78–9 (Kirby  P), 86 (Priestley  JA), 87 (McHugh JA, agreeing). 84

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12.33

Where Acts deal with similar subject matter within a jurisdiction, reference to other statutes is sometimes referred to as the application of the in pari materia principle (‘in relation to the same matter’). Mason P stated in Harrison v Melhem: There is a principle of statutory interpretation supporting a presumption that a legislature intends to attach the same meaning to the same words when used in a subsequent statute in a similar connection.90

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12.34

This principle can even apply across jurisdictions. For example, in Kernn v Verran it was held that the term ‘seniority’ in the Commonwealth public service Acts was in pari materia with an Australian Capital Territory ordinance dealing with Territory public servants.91 Where the context is different or dissimilar, the principle cannot be applied. Clear principles for determining whether contexts are similar enough have not been set out. To give one negative example, in Alfonso v Northern Territory,92 it was held that ‘bodily harm’ in the Crimes (Victims Assistance) Act 1989 (NT) ought not be given the same limited meaning as in the Northern Territory Criminal Code, as the former Act was intended to give compensation, and the latter to apply criminal responsibility. This case demonstrates the impact of the ‘purposive approach’ to interpretation (see 10.14ff ) and the primacy of the language of an individual statute over the assistance provided by materials extrinsic to it (in this case, another Act on a related, but not identical, topic): see 11.24. This principle is perhaps even more clearly applied where one statute forms part of a legislative scheme: it is generally understood that the purpose of the legislature is for all statutes in the scheme to work harmoniously together. This is reflected in Commissioner of Stamp Duties v Permanent Trustee Co Ltd,93 where the New South Wales Court of Appeal considered the effect of s 66G of the Conveyancing Act 1919 (NSW), which interacted with at least three other Acts: the Stamp Duties Act 1920 (NSW); the Real Property Act 1900 (NSW) and the Trustee Act 1915 (NSW). The Court had to decide whether an order under s 66G, which appointed trustees of property held by co-owners and vested the property in the trustees, was a ‘conveyance’ under s 65 of the Stamp Duties Act or an ‘appointment of a trustee’ under the second schedule of that Act. A decision on this question was necessary to determine the amount of duty payable on the transaction. The Real Property Act and the Trustee Act contained provisions that were also relevant. The transaction would be a ‘conveyance’ only if the term ‘vested’ was given a different meaning in s 65 of the Stamp Duties Act from that given to it in the relevant sections of the other three Acts. The Court decided that the transaction was not a ‘conveyance’ but was an ‘appointment of a trustee’, so that a nominal sum was payable. In reaching this conclusion, Kirby P commented: In construing the legislation under consideration here, I … prefer that construction which is available in the language used and which facilitates the sensible operation together of the four statutes mentioned, avoiding inefficiency and the capricious operation of revenue law which would seriously impede or discourage the availability of beneficial statutory provisions for the sale or partition of property held by co-owners. In the case of ambiguity of the legislation I consider this to be the modern approach which this Court should adopt 92 93 90 91

404

(2008) 72 NSWLR 380, 393 [131] (Mason P); see also Pearce (n 31) 119 [3.42]. (1989) ALR 125, 136–7 (Jenkinson J); see also Pearce (n 31) 120 [3.42]. (1999) 13 NTR 8 [9]–[10] (Mildren J); see also Pearce (n 31) 120–1 [3.43]. (1987) 9 NSWLR 719.

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Interpretation of Legislation in Context

in implementing the will of Parliament. We should presume that Parliament intended its legislation to operate rationally, efficiently and justly, together.94

For a more recent example of the application of the principle set out by Kirby  P, see  Russell v  Stephen,95 in which a disqualification to drive under s  49 of the Road Traffic Act  1974 (WA) could include a person disqualified under the Fines, Penalties and Infringement Notices Enforcement Act  1994 (WA) since the two Acts comprised an overlapping scheme. In Abdi v Release on Licence Board,96 Kirby P indicated that the approach which he had described should also be applied when interpreting reciprocal legislation of different states. He stated:

12.35

Because of the nature and purpose of the Prisoners (Interstate Transfer) Acts of New  South  Wales and Queensland, the court should prefer that construction of the legislation which secures harmony of operation, avoids apparent injustice and obviates the necessity of clarifying amendments where the achievement of such amendments would be more difficult even than ordinarily because of the reciprocal nature of the legislation enacted in all States and Territories.97

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As noted previously, where a statute forms part of a national or cooperative legislative scheme such as that of movie and video game classification (see  9.70), courts will strive for uniform interpretation of national uniform legislation across the different jurisdictions: see 8.36ff.98 Despite these considerations, the definition of a term in an Act does not necessarily determine the meaning of that term in another Act in which it is not defined. The fact that a definition has been included in one statute and not in the other may indicate that the legislature intended the term to have a special meaning in one statute and an ordinary meaning in the other.99 In R v Scott,100 the broad meaning of the term ‘officer’ in the Companies (NSW) Code 1981 was held not to apply to the Crimes Act 1900 (NSW) as the meaning in the code was not the ordinary and natural meaning.

12.36

Provisions may be interpreted with reference to the audience In determining the meaning of words that are not defined, it may be helpful to take into account the audience or portion of the community to which the legislation is directed. This again forms part of the wider context of legislation. For example, when a term that has a commercial or trade meaning is used in legislation directed to business people or those in that trade, it may be argued that the term should be given its technical, rather than its popular, meaning. This is illustrated by Herbert Adams Pty Ltd v Federal Commissioner of Taxation,101 in which the word ‘pastry’ was given its trade meaning, which is wider than

12.37

96 97 98 99

Ibid 723–4. [2013] WASCA 284. (1987) 10 NSWLR 294. Ibid 295. See, eg, Australian Securities Commission v Marlborough Gold Mines (1993) 177 CLR 485. R v Scott (1990) 20 NSWLR 72. 100 Ibid. 101 (1932) 47 CLR 222. 94 95

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12.38

its popular meaning, as the legislation was directed primarily to pastrycooks. In Re Pacific Film Laboratories Pty Ltd and Collector of Customs,102 it was found that words in revenue laws relating to commerce were more likely to be given their commercial or trade usage rather than their ordinary meaning. In Collector of Customs v Agfa-Gevaert Ltd103 the High Court considered the phrase ‘silver dye bleach reversal process’ in a tariff concession order. Although the term ‘silver dye bleach process’ had a technical meaning, ‘silver dye bleach reversal process’ (emphasis added) did not. The lower court had held that the phrase contained in the order must be interpreted according to the ordinary meaning of the words used. The High Court reversed that decision, concluding that it was necessary to take account of the technical meaning of a term that was part of a phrase which included both technical and nontechnical words. The High Court also held that this conclusion was a question of law, rather than a question of fact: see 6.54ff. Some words have a special meaning at law, as well as a popular, non-legal meaning. In Attorney-General (NSW) v Brewery Employés Union of New South Wales, O’Connor J commented: Where words have been used which have acquired a legal meaning it will be taken, prima facie, that the legislature has intended to use them with that meaning unless a contrary intention clearly appears from the context.104

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For examples of the application of this principle, see  Hayes v  Federal Commissioner of Taxation,105 where the meaning of income is discussed; Fisher v  Bell106 (extracted in 12.39), where the case turned on the meaning of ‘offers for sale’; and R  v Turner [No 4],107 where the meaning of ‘conspires … to defraud’ is discussed. Recently, Griffiths J in Uber BV v Commissioner of Taxation108 declined to give ‘taxi’ a technical, trade, or ‘regulatory’ meaning in interpreting taxation legislation that required taxi drivers to register for the Australian goods and services tax (GST), regardless of turnover. As a consequence of this decision, people who provide rides under ‘rideshare’ services, such as Uber, are taxi drivers in accordance with the ordinary meaning of a taxi, which Griffiths J gave as ‘a vehicle available for hire by the public and which transports a passenger at his or her direction for the payment of a fare that will often, but not always, be calculated by reference to a taximeter’.109

Provisions may be interpreted with reference to prior or existing law 12.39

As noted at 12.18 in CIC Insurance Ltd v Bankstown Football Club Ltd (‘CIC Insurance’),110 part of the context ‘in its widest sense’ of a statute is the state of the law prior to the (1979) 2 ALD 144, 155–6. (1996) 186 CLR 389. 104 (1908) 6 CLR 469, 531. 105 (1956) 96 CLR 47, 51. 106 [1961] 1 QB 394. 107 (2001) 10 Tas R 81, 95. 108 (2017) 247 FCR 462. 109 Ibid 496–7 [135]. 110 (1997) 187 CLR 384. 102 103

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Interpretation of Legislation in Context

enactment of the statute. Here, there is sometimes an issue as to whether legislation should be interpreted by reference to the law that was previously in force, both statutory and common law. On the one hand, such consideration of the wider context may show that the ‘mischief ’ the Act was directed towards (see 10.14), or its ‘purpose’, was to change the prior law. Alternatively, it may provide an informative background that assists in understanding the current law. See, for example, the discussion of Clark in 12.7. On the other hand, it sometimes appears that this kind of contextual approach is detrimental, as it may lead to the survival of older legal rules that may be intended to have been swept aside by a new statute.111 Another possibility is that reference to existing common law principles will throw light on the meaning of words in legislation; that is, as noted at 12.37, it may have been the legislature’s intention that a term in a statute possess its technical, legal meaning, rather than its ordinary meaning. In the following extract of Fisher v Bell, the phrase ‘offers for sale’ was given its meaning in the law of contract, rather than its popular meaning. It is not assumed that Parliament, in passing an Act, actually knows the law of contract. Sometimes the courts impute knowledge or intentions to Parliament. Thus, as we will see in Chapter 13, courts presume certain things about Parliament’s intention — such as Parliament does not intend to abrogate certain human rights or freedoms — as Gleeson CJ states in Al-Kateb v Godwin: Courts do not impute to the legislature an intention to abrogate or curtail certain human rights or freedoms (of which personal liberty is the most basic) unless such an intention is clearly manifested by unambiguous language, which indicates that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment.112

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Fisher v Bell [1961] 1 QB 394 Queen’s Bench Divisional Court, 1960 [The defendant, a shopkeeper, had displayed in the window of his shop a knife, behind which was a ticket upon which the words ‘Ejector knife — 4s’ were printed. He was charged with unlawfully offering for sale a flick knife, contrary to s 1 of the Restriction of Offensive Weapons Act 1959 (UK). This provided: Any person who manufactures, sells or hires or offers for sale or hire, or lends or gives to any other person — (a) any knife which has a blade which opens automatically by hand pressure applied to a button, spring or other device in or attached to the handle of the knife, sometimes known as a ‘flick knife’ or ‘flick gun’ … shall be guilty of an offence …

The defendant was acquitted of the charge and the prosecutor appealed against that decision.]

This issue, together with other issues concerning the relationship between legislation and the common law, is explored in Paul D Finn, ‘Statutes and the Common Law’ (1992) 22 University of Western Australia Law Review 7, 18–30; Paul D Finn, ‘Statutes and the Common Law: The Continuing Story’ in Corcoran and Bottomley (n 84) 52. 112 (2004) 219 CLR 562, 577 [19]. 111

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Lord Parker CJ [at 399]: The sole question is whether the exhibition of that knife in the window with the ticket constituted an offer for sale within the statute. I confess that I think most lay people and, indeed, I myself when I first read the papers, would be inclined to the view that to say that if a knife was displayed in a window like that with a price attached to it was not offering it for sale was just nonsense. In ordinary language it is there inviting people to buy it, and it is for sale; but any statute must of course be looked at  in the light of the general law of the country. Parliament in its wisdom in passing an Act must be taken to know the general law. It is perfectly clear that according to the ordinary law of contract the display of an article with a price on it in a shop window is merely an invitation to treat. It is in no sense an offer for sale the acceptance of which constitutes a contract. That is clearly the general law of the country. Not only is that so, but it is to be observed that in many statutes and orders which prohibit selling and offering for sale of goods it is very common when it is so desired to insert the words ‘offering or exposing for sale’, ‘exposing for sale’ being clearly words which would cover the display of goods in a shop window. Not only that, but it appears that under several statutes — we have been referred in particular to the Prices of Goods Act 1939, and the Goods and Services (Price Control) Act 1941 — Parliament, when it desires to enlarge the ordinary meaning of those words, includes a definition section enlarging the ordinary meaning of ‘offer for sale’ to cover other matters including, be it observed, exposure of goods for sale with the price attached. In those circumstances I am driven to the conclusion, though I confess reluctantly, that no offence was here committed. At first sight it sounds absurd that knives of this sort cannot be manufactured, sold, hired, lent or given, but apparently they can be displayed in shop windows; but even if this — and I am by no means saying it is — is a casus omissus it is not for this court to supply the omission. I am mindful of the strong words of Lord Simonds in Magor and St Mellons Rural District Council v Newport Corporation [1952] AC 189. In that case one of the Lords Justices in the Court of Appeal [1950] 2 All ER 1226, 1236 had, in effect, said that the court having discovered the supposed intention of Parliament must proceed to fill in the gaps — what the Legislature has not written the court must write — and in answer to that contention Lord Simonds in his speech said [1952] AC 189, 191: ‘It appears to me to be a naked usurpation of the legislative function under the thin disguise of interpretation’. [Ashworth and Elwes JJ agreed that the appeal should be dismissed.]

12.40

408

In Exercise 15 we consider whether Fisher v Bell would have been decided the same way today in light of the modern approach to interpretation. An additional consideration that can arise in relation to the legal context is of course whether the provision has received prior interpretation by a court. In those circumstances, the later court may consider whether it accepts the interpretation previously arrived at. If the later court prefers a different interpretation, at this point the common law rules of precedent come into play. The court will have to consider whether it is permissible to depart from the previous interpretation and, if it is, whether such a departure is appropriate; often this means a consideration of whether the prior decision is ‘clearly’ or ‘plainly’ wrong. These matters were discussed with reference to various Australian courts in Chapter  8. Related to this is the presumption, discussed in 13.27, that reenactment of a statutory provision using the same form that has previously received judicial interpretation constitutes the legislature’s approval of that interpretation.

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CHAPTER 12

Interpretation of Legislation in Context

EXERCISE 15: INTERPRETATION IN CONTEXT Answer the following problems assuming that they arise within your state or territory. The statutory provisions quoted are fictitious, although some problems are based on actual cases. As with any problems that involve giving legal advice, the task is to identify the issue(s), articulate the arguments, reach conclusions and give reasons for those conclusions. Bear in mind that your advice is likely to be more valuable if you consider both arguments and counter-arguments. But do not waste effort formulating arguments that you consider to be without merit. A suggested answer is provided with the sample problem below.

12.41

Sample problem Section 7A of the Crimes Act 1968 provided: If any person prints or publishes any writing which incites, urges, aids or encourages the commission of offences against any law of the Commonwealth or of a Territory or the carrying on of any operations for or by the commission of such offences he shall be guilty of an offence.

Section 30F of the same Act provided: Any person who knowingly prints, publishes, sells or exposes for sale or who circulates or distributes any book, periodical, pamphlet, handbill, poster or newspaper for or in the interests of or issued by any unlawful association shall be guilty of an offence.

Deidre admitted handing out, in a public street, a pamphlet which encouraged the commission of an offence under a law of the Commonwealth. Did she ‘publish’ any writing, thereby committing an offence against s 7A?

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Suggested answer Although Deidre did not print the pamphlet in question, there is an issue as to whether by handing it out she could be said to have published it. It is necessary to determine the meaning of the word ‘publishes’ in s 7A. The Australian Concise Oxford English Dictionary refers to several possible meanings of ‘publish’, including ‘prepare and issue for public sale’, ‘make generally known’, ‘announce formally’ and ‘communicate to a third party’. It is difficult to be certain which, if any, of these meanings is the intended meaning here. According to s 15AA of the Acts Interpretation Act 1901 (Cth), the contents of s 7A should be interpreted with reference to the purpose or object of the provision. Students may speculate as to the section’s purpose or object. The contextual approach to interpretation appears to be especially useful here. The starting point should be that the use of a term in one section of an Act may shed light on its meaning in another section of the Act. In s 30F the word ‘publishes’ does not appear to be intended to include distribution, since that term is also used in the section. If  ‘publishes’ in s 7A is given the same meaning as in s 30F, Deidre appears not to have committed an offence. That would be an application of the maxim expressio unius est exclusio alterius. However, caution should be exercised in applying this maxim. It would be helpful to know whether the two sections were drafted and added to the Act at the same time.

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Problems 1. Section 3 of the Litter Act 1989 provided: Any person who throws down, drops or otherwise deposits and leaves any litter in or on any public place shall be guilty of an offence.

Section 2 of the Act provided: Unless inconsistent with the context or subject-matter — ‘litter’ means bottle, tin, carton, package, paper, glass, food or other refuse or rubbish.

Bruce drained oil onto the ground from the sump of his car that was parked in a public place. Did he commit an offence? 2. Section 25 of the One-off Payments to Veterans Act 2012 provided: A veteran is eligible for a compensation payment of $25,000 if the following conditions are met: (a) the veteran is alive on 1 January 2012; (b) the veteran was interned by the military forces of an enemy State during the designated war period.

Section 3 of the Act provided: Unless inconsistent with the context or subject-matter — ‘interned’ means: (a) confined in a camp, building, prison, cave or other place; or (b) restricted to residing within specified limits.

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In July 2012 Ray, a veteran, sought a compensation payment. In Greece on 14 April 1941 the military unit of which he was then a member surrendered to the German military forces. The members of the unit were taken to a designated surrender area, which was in the open countryside near the sea and which lacked any physical barriers. There, they were ordered to remain. Ray stayed there for about two hours, after which he and two other members of the unit walked to a beach, found a boat and left the area by sea. At that time Germany was an enemy state and the incident took place during a designated war period. Was Ray ‘interned’ and therefore eligible for compensation under the 2012 Act? 3. Section 111A of the Marriage Act 1974 provided: (1) A person is not entitled to recover damages from another person by reason only of the fact that that other person has failed to perform a promise, undertaking or engagement to marry the firstmentioned person. (2) This section does not affect an action for the recovery of any gifts given in contemplation of marriage that could have been brought if this section had not been enacted.

At common law, in addition to an action for damages for breach of promise of marriage, a person whose engagement had been broken off by the other party could recover damages for consequential expenses and economic loss. Yvonne, whose fiancé has broken off their engagement, has had to forfeit the deposit paid by her for hire of the hall in which the wedding reception was to have been held. Is she entitled to recover this expense from him?

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Interpretation of Legislation in Context

4. Consider again the circumstances set out in problem 4 of Exercise 13 in Chapter 10 concerning the Licensing Act. Does consideration of further aspects of ‘interpretation in context’ affect your answer to this problem? If so, how? 5. Consider again the case of Fisher v Bell, extracted in 12.39.Would a ‘modern approach’ to context suggest a different result? If so, how?

Further reading • For a comprehensive and consolidated list of further reading sources on statutory interpretation, see Chapter 10.

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To enhance your learning experience, use the student resources available on Lexis® Learning See the Visual Preface at the front of this book on how to register.

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CHAPTER

13 Presumptions Used in the Interpretation of Legislation Legislators and drafters assume that the courts will continue to act in accordance with well-recognised rules.1 John Bell and George Engle, Cross: Statutory Interpretation (LexisNexis Butterworths, 3rd ed, 1995) 165.

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1

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Introduction 13.1 Summary of principles 13.3 Presumptions of interpretation and a common law Bill of Rights 13.4 −− Common law presumptions of interpretation

13.5

−− Changes in presumptions and their rebuttal

13.6

Presumption that Parliament does not interfere with common law rights 13.9 −− Protection of ‘fundamental’ rights

13.10

−− Related presumption against alteration of common law doctrines

13.13

Presumption that statutes do not operate retrospectively 13.14 Presumption that Parliament does not abrogate the privilege against self-incrimination 13.18 Presumption that Parliament does not abrogate legal professional privilege 13.19 Presumption that Parliament does not deprive people of access Copyright © 2020. LexisNexis Butterworths. All rights reserved.

to the courts 13.20 Presumption that penal provisions are construed strictly and beneficial provisions construed broadly 13.21 Presumption that property rights are not taken away without compensation 13.24 Presumption that re-enactment constitutes approval of previous judicial interpretation 13.27 Presumption that legislation does not bind the Crown 13.31 Presumption that legislation does not have extraterritorial effect 13.34 Presumption that Parliament intends to legislate in conformity with international law 13.35 EXERCISE 16: Presumptions of interpretation 13.37 414

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CHAPTER 13

Presumptions Used in the Interpretation of Legislation

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Introduction When courts interpret legislation they do so against the background of a series of common law presumptions, or assumptions. Although these terms are taken by the courts to have the same meaning, the former term is used in this chapter. Such presumptions could be conceptualised as part of an Act’s context. Presumptions of interpretation are called into service because they are accepted as part of the body of principles used in the interpretation of legislation. These presumptions can be broadly classified into three groups. First are what we might term ‘syntactical’ presumptions, that certain practices will be followed in drafting statutes — the principles ejusdem generis and noscitur a sociis, discussed at  12.4– 12.7, are examples of this type of presumption.2 Second are presumptions that facilitate interpretation, such as the presumption that re-enactment of a provision that has been judicially interpreted constitutes the legislature’s approval of that interpretation. Finally, a number of presumptions are grounded in the liberal values based on the abstract concepts of freedom and the sanctity of private property, which are generally held by people living in parliamentary democracies under the rule of law, including lawyers, legislators and members of the broader community. It is presumed that Parliament intends to legislate in accordance with these values.The application of any of these presumptions in an individual case is theoretically not dependent on the personal views of the judge deciding the case. This particular body of presumptions is sometimes said to form a ‘common law Bill of Rights’. The approach of interpretation where it is presumed Parliament does not intend to abrogate fundamental rights and freedoms is also termed the ‘principle of legality’.3 Importantly, an intrinsic feature of presumptions of interpretation is that they are presumptions, rather than rules. As such, they can be ‘rebutted’ — that is, shown not to apply, when the language of the legislation either explicitly states this to be the case, or it is a necessary implication: the legislation and the presumption cannot operate side by side. This chapter looks at the presumptions underlying statutory interpretation, including: • the view that certain presumptions of interpretation form a common law Bill of Rights; • the circumstances in which a presumption may be rebutted; • which rights are presumed to be protected as being fundamental; and • the particular presumptions that are in operation under the common law. The main focus is on those presumptions derived from shared values, rather than syntactical presumptions (some of which are addressed in Chapter 12).

13.1

presumption of interpretation: an assumption capable of being displaced by the words of a statute

13.2

Summary of principles Here are the key principles discussed in this chapter in relation to presumptions of interpretation: • Courts interpret legislation against a background of series of presumptions about the intention of the legislature.

13.3

See  Dennis Pearce, Statutory Interpretation in Australia (LexisNexis Butterworths, 9th  ed, 2019) 165–88 [4.32-4.58] (‘Statutory Interpretation’). 3 See, eg, Al-Kateb v Godwin (2004) 219 CLR 562, esp 565 [19]–[20] (Gleeson CJ) (‘Al-Kateb’). 2

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• These presumptions form part of an Act’s context and include those that are syntactical and those that derive from shared values: see 13.1. • Those presumptions that derive from values shared by the courts, community and legislature are sometimes said to form a ‘common law Bill of Rights’ and the approach of interpreting legislation so that it is presumed Parliament does not intend to abrogate fundamental rights is part of the ‘principle of legality’: see 13.1, 13.4 and 13.9–13.13. • No definitive list of fundamental rights exists. As they are based on shared values, they are susceptible to change as societal values change. See 13.5 for a list of some key presumptions, which are explored in detail at 13.9ff. • Presumptions of interpretation are not of equal value — that is, some presumptions are more readily rebutted than others: see  13.6–13.7. The presumption that Parliament does not intend to deprive people of access to the courts, for example, is a ‘strong’ presumption: see 13.20. • Generally speaking, a presumption can be rebutted either by explicit language in the statute, or by implication. Rebuttal by implication happens when the content (subject matter, language or both) of the statute is incompatible with the presumption. Courts have used phrases such as ‘clear and unambiguous words’ to indicate what is required to rebut a presumption: see 13.7.

Presumptions of interpretation and a common law Bill of Rights

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13.4

It is accepted that presumptions of interpretation function as an element of a common law Bill of Rights.4 The presumptions and their philosophical underpinnings are part of the context in which legislation is interpreted.Two Australian jurisdictions, the Australian Capital Territory and Victoria, have enacted Bills of Rights: the Human Rights Act 2004 (ACT) and the Charter of Human Rights and Responsibilities Act 2006 (Vic).The relationship between the interpretive provisions of these Acts and common law presumptions of interpretation is explored by Carolyn Evans and Simon Evans.5 Section 32(1) of Victoria’s Charter of Human Rights and Responsibilities Act 2006 provides: So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.

Section 30 of the Human Rights Act 2004 (ACT) is almost identical to s 32(1) of the Victorian Act.

See, eg, James J Spigelman, ‘The Common Law Bill of Rights’ (First Lecture in the 2008 McPherson Lectures, University of Queensland, 10  March 2008). See  also James J Spigelman, ‘The Principle of Legality and the Clear Statement Principle’ (2005) 79 Australian Law Journal 769 and Pearce (n 2) 208 [5.2]. See also the discussion at 3.47ff. 5 Carolyn Evans and Simon Evans, Australian Bills of Rights (LexisNexis Butterworths, 2008) 87–90. For an examination of some complex interpretive issues in relation to the Victorian statute, see Maya Narayan, ‘Creature of Statute, Beast of Burden. The Victorian Civil and Administrative Tribunal and the Heavy Lifting of Human Rights’ (2011) 66 Australian Institute of Administrative Law Forum 1. See also Momcilovic v The Queen (2011) 245 CLR 1. 4

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CHAPTER 13

Presumptions Used in the Interpretation of Legislation

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COMMON LAW PRESUMPTIONS OF INTERPRETATION Here are some of the more important common law presumptions of interpretation discussed in this chapter:6 • statutes do not operate retrospectively; • Parliament does not interfere with common law rights; • Parliament does not abrogate the privilege against self-incrimination; • Parliament does not abrogate legal professional privilege; • Parliament does not deprive people of access to the courts; • legislation does not bind the Crown; • penal provisions are strictly construed; • property rights are not taken away without compensation; • re-enactment of a provision constitutes approval of a previous judicial interpretation of the provision; • legislation does not have extraterritorial effect; and • Parliament intends to legislate in conformity with international law. One presumption of interpretation, that later laws do not impliedly repeal earlier laws, has been dealt with previously: see 9.38–9.39 and 12.27. It is based on the assumption that if Parliament had wanted to do something as important as repeal an earlier law it would have done so expressly. CHANGES IN PRESUMPTIONS AND THEIR REBUTTAL Some presumptions are strong and others are more tentative.The strength of presumptions changes over time. Several presumptions are weaker than they were previously. See, for example, the so-called presumption that Parliament does not interfere with common law rights, discussed in 13.9–13.12; the presumption that legislation does not bind the Crown in 13.31–13.33; and the presumption that penal provisions are strictly construed in 13.21–13.22. Other presumptions may have strengthened in recent times, such as the presumption that legislation is to be interpreted in conformity with international law: see  13.35–13.36. General interpretive presumptions may be removed, acknowledged, modified or created by the legislature. For an example of the modification of a presumption, see s 170 of the Legislation Act 2001 (ACT), which provides: (1) An Act or statutory instrument must be interpreted to preserve the common law privileges against self-incrimination and exposure to the imposition of a civil penalty. (2) However, this section does not affect the operation of the Evidence Act 1995 (Cth). (3) This section is a determinative provision.

As to how this provision may be displaced, s  6(2) of that Act has the effect that s  170  — as a ‘determinative provision’ — can only be displaced ‘expressly or by manifest contrary intention’. Legal professional privilege (see  13.19) is similarly

13.5

13.6

legal professional privilege: a principle that protects from disclosure communications between a client and legal practitioner made for the dominant purpose of giving or obtaining legal advice

There is a comprehensive list of the presumptions that have been identified by Australian courts in the table at the end of ch 5 in Pearce, Statutory Interpretation (n 2). See also the list in the terms of reference, as expanded in the Executive Summary, in Australian Law Reform Commission (‘ALRC’), Traditional Rights and Freedoms: Encroachments by Commonwealth laws (Report No 129, 2016).

6

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13.7

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13.8

protected in the Australian Capital Territory under s 171, expressed in similar wording to s 170, and so is also a determinative provision to which s 6(2) applies. All common law presumptions of interpretation are rebuttable. It must, however, be clear from the terms of the legislation that Parliament intended to rebut a presumption. As Kiefel CJ has stated, in relation to abrogating or restricting a ‘fundamental freedom’ (see 13.9–13.12), ‘it will usually require that it be manifest from the statute in question that the legislature has directed its attention to the question whether to so abrogate or restrict and has determined to do so’.7 Over the years the courts have used various phrases as tests of rebuttal, such as ‘clear and unambiguous words’ and ‘express words of plain intendment’. Spigelman CJ collected many of these phrases in Durham Holdings Pty Ltd v New South Wales:8 • ‘clear and unambiguous words’; • ‘unambiguously clear’; • ‘irresistible clearness’; • ‘express words of plain intendment’; • ‘clear words or by necessary implication’; • ‘unmistakable and unambiguous’; • ‘expressly stated or necessarily to be implied’; • ‘clearly emerges whether by express words or necessary implication’; and • ‘with a clearness which admits no doubt’. The phrase used is an indicator of the strength of the presumption: the stronger the presumption, the clearer the language required. While it is possible for a presumption to be rebutted by implication, it is clear that the threshold here is quite high: the presumption must render the provision ‘inoperative or meaningless’9 or it ‘would frustrate an object of that legislation or render means by which the legislation sets out to achieve that object inoperative or non-sensical’.10 In the process of examining such presumptions, Justice Antonin Scalia, formerly of the United States Supreme Court, referred to ‘the use of certain presumptions and rules of construction that load the dice for or against a particular result’.11 Describing his own philosophy of interpretation as ‘textualism’, Justice Scalia explained that ‘while the good textualist is not a literalist, neither is he a nihilist. Words do have a limited range of meaning, and no interpretation that goes beyond that range is permissible’.12 He added: ‘To the honest textualist, all of these rules and presumptions are a lot of trouble’.13 Justice Scalia concluded:

X7 v Australian Crime Commission (2013) 248 CLR 92, 153 [158]. (1999) 47 NSWLR 340, 353–4 [44] (Spigelman CJ) (citations omitted) (‘Durham Holdings’). 9 Pearce, Statutory Interpretation (n 2) 212 [5.6]. 10 R v Independent Broad-based Anti-corruption Commissioner (2016) 256 CLR 459, 481 [77] (Gageler J). 11 Antonin Scalia, ‘Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws’ (Tanner Lecture on Human Values, Princeton University, 8 March 1995) , 102. 12 Ibid 99. 13 Ibid 103. 7 8

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[W]hether these dice-loading rules are bad or good, there is also the question of where the courts get the authority to impose them. Can we really just decree that we will interpret the laws that Congress passes to mean less or more than they fairly say? I doubt it. The rule of lenity is almost as old as the common law itself, so I suppose that is validated by sheer antiquity. The others I am more doubtful about.14

His views must be read in the context of the United States legal system which has an entrenched Bill of Rights.

lenity: refers to the rule that penal provisions are strictly construed

Presumption that Parliament does not interfere with common law rights The presumption that Parliament does not interfere with common law rights15 is accepted as part of the value system in which judges and legislators co-exist: see  13.2. This is sometimes expressed as an element of the principle of legality. The High Court stated in R v Independent Broad-based Anti-Corruption Commission:

13.9

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The principle of legality means that common law rights will not be taken by a court to have been displaced by legislation save where the intention to do so is ‘expressed with irresistible clearness’.16

PROTECTION OF ‘FUNDAMENTAL’ RIGHTS As a number of the presumptions considered below have been regarded, from time to time, as protecting ‘fundamental’ rights, this broader presumption is worth considering first. This presumption was a factor in the reasoning of the members of the High Court in Al-Kateb v Godwin.17 This case involved an unlawful non-citizen, as defined by s 14 of the Migration Act 1958 (Cth), who had been subjected to mandatory administrative detention. Although he had asked to be removed from Australia, his visa application having been unsuccessful, no other country was prepared to accept him and it was believed unlikely that this would change in the reasonably foreseeable future. The High Court considered whether the appellant was entitled to an order directing his release from detention or whether he could be detained indefinitely. It decided, by a majority of 4:3 (McHugh, Hayne, Callinan and Heydon JJ; Gleeson CJ, Gummow and Kirby JJ dissenting), that the appellant was not entitled to be released. One of the factors that influenced the outcome was that the words of the statute were too clear to permit the presumption that Parliament did not intend to abrogate what were described as fundamental rights (in particular, the right to personal liberty). Gleeson CJ observed:

13.10 principle of legality: the principle that people must comply with the law and conversely cannot be punished or denied a right or interest in relation to actions that do not transgress the law

Where what is involved is the interpretation of legislation said to confer upon the Executive a power of administrative detention that is indefinite in duration, and that may be permanent, there comes into play a principle of legality, which governs both Parliament and the courts. In exercising their judicial function, courts seek to give effect to the will of Parliament by declaring the meaning of what Parliament has enacted. Courts do not impute Ibid. See Michelle Sanson, Statutory Interpretation (Oxford University Press, 2nd ed, 2016) ch 11. 16 (2016) 256 CLR 459, 470–1 [40] (French CJ, Kiefel, Bell, Keane, Nettle and Gordon JJ) (citations omitted). 17 Al-Kateb (n 3). 14 15

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to the legislature an intention to abrogate or curtail certain human rights or freedoms (of which personal liberty is the most basic) unless such an intention is clearly manifested by unambiguous language, which indicates that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment. That principle … is not new. In 1908, in this court, O’Connor J referred to a passage from the fourth edition of Maxwell on Statutes which stated that ‘[i]t is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness’.18

Gleeson CJ added: A statement concerning the improbability that Parliament would abrogate fundamental rights by the use of general or ambiguous words is not a factual prediction, capable of being verified or falsified by a survey of public opinion. In a free society, under the rule of law, it is an expression of a legal value, respected by the courts, and acknowledged by the courts to be respected by Parliament.19

13.11

In the following extract from Coco v The Queen,20 the outcome was influenced by the presumption that Parliament does not interfere with what the High  Court identified as fundamental rights. Coco v The Queen (1994) 179 CLR 427 High Court of Australia

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[The appellant was convicted of an offence under s  73(3) of the Crimes Act  1914 (Cth). The respondent acknowledged that, if evidence that had been obtained by means of a listening device was inadmissible, the conviction should be quashed. The appellant argued that this evidence was inadmissible. A judge had given approval for the installation of listening devices to obtain evidence pursuant to s 43(2)(c) of the Invasion of Privacy Act 1971 (Qld). However, police officers when installing the device had obtained entry onto the premises of the appellant’s company by subterfuge, and were thus trespassers at  common law. One of the issues on the appeal was whether s 43(2)(c) conferred power to authorise entry onto premises for the purpose of installing the listening devices in circumstances that would otherwise have constituted a trespass.] Mason CJ, Brennan, Gaudron and McHugh JJ at 435 [8]–[17], 441 [23]: Every unauthorised entry upon private property is a trespass, the right of a person in possession or entitled to possession of premises to exclude others from those premises being a fundamental common law right: Entick v  Carrington (1765) 2 Wils  275, 291  … In accordance with that principle, a police officer who enters or remains on private property without the leave or licence of the person in possession or entitled to possession commits a trespass unless the entry or presence on the premises is authorised or excused by law: Halliday v  Nevill (1984) 155 CLR  1, 10 (Brennan  J); Plenty v  Dillon (1991) 171 CLR 635, 639 (Mason  CJ, Brennan and

Ibid 577 [19] (Gleeson CJ), quoting Potter v Minahan (1908) 7 CLR 277, 304. Ibid [20]. 20 (1994) 179 CLR 427. 18 19

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Toohey  JJ), 647 (Gaudron and McHugh  J). Statutory authority to engage in what otherwise would be tortious conduct must be clearly expressed in unmistakable and unambiguous language … In Bropho v Western Australia (1990) 171 CLR 1 at 18 Mason CJ, Dawson, Toohey, Gaudron and McHugh  JJ pointed out that the rationale against the presumption against the modification or abrogation of fundamental rights is to be found in the assumption that it is:

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‘in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used’: Potter v Minahan (1908) 7 CLR 277 at 304.

At the same time, curial insistence on a clear expression of an unmistakable and unambiguous intention to abrogate or curtail a fundamental freedom will enhance the parliamentary process by securing a greater measure of attention to the impact of legislative proposals on fundamental rights. The need for a clear expression of an unmistakable and unambiguous intention does not exclude the possibility that the presumption against statutory interference with fundamental rights may be displaced by implication. Sometimes it is said that a presumption about legislative intention can be displaced only by necessary implication but that statement does little more than emphasise that the test is a very stringent one. … [I]n some circumstances the presumption may be displaced by an implication if it is necessary to prevent the statutory provisions from becoming inoperative or meaningless. However, it would be very rare for general words in a statute to be rendered inoperative or meaningless if no implication of interference with fundamental rights were made, as general words will almost always be able to be given some operation, even if that operation is limited in scope. … … In our view, it cannot be said that there is to be implied in s 43 power in a judge to authorise conduct which would otherwise amount to a trespass. … Further, it has not been suggested that such listening devices as existed at the time the legislation was enacted could not be used without making entry for installation which would amount to a trespass. Although it may be that many devices required entry to premises for installation, this cannot be said of all devices. … [L]awful entry may be gained to the premises to effect installation through the co-operation of a person who has a legal right of entry to the premises. [Deane, Dawson and Toohey  JJ delivered concurring judgments. The appellant’s conviction was quashed and a new trial was ordered.]

As can be seen in this case, the bar was set high for rebuttal of the presumption that Parliament would not authorise interference with private property. The legislation itself did not explicitly authorise trespass, and it was not considered required by necessary implication as the High Court considered that some types of listening devices could be installed without trespass, or there was the possibility of installation using the co-operation of someone who has a legal right of entry — that is, the provision of the legislation would not be rendered inoperable.

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13.12

What rights may be considered ‘fundamental’?21 No comprehensive list exists, and changing community values can affect what rights will be considered ‘fundamental’, as McHugh J observed: But times change. What is fundamental in one age or place may not be regarded as fundamental in another age or place. When community values are undergoing radical change and few principles or rights are immune from legislative amendment or abolition, as is the case in Australia today, few principles or rights can claim to be so fundamental that it is unlikely that the legislature would want to change them. No doubt there are fundamental legal principles — a civil or criminal trial is to be a fair trial, a criminal charge is to be proved beyond reasonable doubt, people are not to be arrested or searched arbitrarily, laws, especially criminal laws, do not operate retrospectively, superior courts have jurisdiction to prevent unauthorised assumptions of jurisdiction by inferior courts and tribunals are examples. Clear and unambiguous language is needed before a court will find that the legislature has intended to repeal or amend these and other fundamental principles. But care needs to be taken in declaring a principle to be fundamental.22

13.13

RELATED PRESUMPTION AGAINST ALTERATION OF COMMON LAW DOCTRINES The area of operation of the presumption against interference with common law rights is further explained in Harrison v Melhem,23 extracted below. The broader, closely related presumption against alteration of common law doctrines, beyond those that might be considered ‘fundamental’ rights, is also considered. Harrison v Melhem (2008) 72 NSWLR 380 New South Wales Court of Appeal

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[In this case the New South Wales Court of Appeal constituted by five judges dealt with several issues concerning damages for personal injuries in tort. The Civil Liability Act 2002 (NSW) introduced many provisions limiting the common law principles that had applied to such awards. Section 15(3) of that Act stated in part that ‘no damages may be awarded to a claimant for gratuitous attendant care services if the services are provided, or are to be provided: (a) for less than 6 hours per week, and (b) for less than 6 months’. The appellant argued that a presumption that Parliament did not intend to abrogate common law rights or principles was applicable. A majority of the judges sitting on this appeal did not accept the argument of the appellant, holding that s 15(3) did not affect any common law right or common law principle that was subject to a presumption of interpretation.] Basten JA [at 408]: The right of one citizen to obtain compensation from another for an injury suffered by the negligence of the other is significantly removed from a right to remain at liberty, For further discussion of what rights may be considered ‘fundamental’, in addition to the presumptions discussed specifically in this chapter, see the lists compiled in ALRC (n 6). See also Sanson (n 15) ch 11, esp 255; Pearce, Statutory Interpretation (n 2) ch 5. 22 Malika Holdings Pty Ltd v Stretton (2001) 204 CLR 290, 298–9 [28] (‘Malika Holdings’). 23 (2008) 72 NSWLR 380.

21

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absent conviction and sentence by a court. It is also removed from the immunity from deliberate interference with one’s physical integrity, and the concomitant right to protection from the state in respect of such interference. … Compensation for loss of the capacity to look after oneself as a result of the tortious conduct of another is undoubtedly an entitlement which arises under the general law. … [However], both the existence of an effective remedy and controls over the extent of compensation have long since moved beyond the scope of the general law unaffected by statute, and have become the specific attention of widespread statutory interventions. … [W]here consideration of the legislation, in a given statutory context, favours a construction involving greater rather than lesser constraint, there is no reason not to give effect to the construction so indicated. Spigelman CJ [at 382]:

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Like Basten JA I do not believe that any weight can be attributed to the principle that Parliament is presumed not to intend to abrogate common law rights … I reiterate my opinion that the principle of statutory interpretation relied on by the appellant is now of minimal weight. It reflects an earlier era when judges approached legislation as some kind of foreign intrusion. The scope and frequency of legislative amendment of the common law, including the common law relating to personal injury damages, has been both wide ranging and fundamental. (See also Gumana v Northern Territory (2007) 158 FCR 349 (French, Finn and Sundberg JJ at 374)) … I agree that the principle still operates with force with respect to legislation which abrogates fundamental rights, immunities and freedoms. However, this line of authority in Australia commencing with Potter v Minahan (1908) 7 CLR 277 at 304 has no application to the statutory regime presently under consideration. With respect to general common law doctrines, McHugh J has emphasised the weakness of the presumption. He said [in Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269, 284]: Courts should not cut down the natural and ordinary meaning of legislation evincing an intention to interfere with these lesser rights by relying on a presumption that the legislature did not intend to interfere with them. Given the frequency with which legislatures now abolish or amend ‘ordinary’ common law rights, the ‘presumption’ of non-interference with those rights is inconsistent with modern experience and borders on fiction. If the presumption still exists in such cases, its effect must be so negligible that it can only have weight when all other factors are evenly balanced.

(See  also the approving reference by Gleeson  CJ in Electrolux Home Products Pty  Ltd  v  Australian Workers’ Union (2004) 221 CLR 309 at  328. See  also Malika Holdings Pty Ltd v Stretton (2001) 204 CLR 290 at 299.) This analysis would appear to apply to the Civil Liability Act, specifically s  15 thereof. [Beazley JA associated herself (at 403) with the views of Spigelman  CJ. However, Mason  P took the view (at 397–8) that the presumption applied more broadly to common law rights and Giles JA agreed (at 403) with Mason P.]

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The sentiments of Basten JA in the above extract from his judgment in Harrison v Melhem have been quoted with approval in another appeal involving compensation for a motor accident victim.24 In Harrison v Melhem we can see both judges distinguishing between the ‘rights’ under consideration — to claim compensation — and ‘fundamental’ rights, such as personal liberty and protection of personal integrity. Both also emphasised that this area was one that had already been the subject of extensive statutory intervention. In such a context, the greater the statutory intervention that has already occurred in an area of the common law, the weaker arguments become that Parliament does not intend to interfere with the common law in that area.25

Presumption that statutes do not operate retrospectively 13.14 retrospective operation: application of a provision to events occurring before the provision commenced operation

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13.15

A statute is said to operate retrospectively if its provisions apply to events that occurred or to things that existed before it came into operation. However, a distinction is drawn between retrospective operation and future operation by reference to past events. In the words of the Full Court of the Victorian Supreme Court: ‘[The] principle is not concerned with the case where the enactment under consideration merely takes account of antecedent facts and circumstances as a basis for what it prescribes for the future, and it does no more than that’.26 This can at times be a difficult distinction. The case of Rodway v the Queen (‘Rodway’),27 extracted at 13.16, considers this point further. It is necessary to determine the date on which a statute came into operation before any question of retrospective operation can arise: see  9.31–9.33. It is, of course, clear that all parliaments have power to enact legislation which has retrospective effect.28 Such legislation is at  times necessary to validate past circumstances. For example, legislation was necessary to validate decisions by federal courts exercising state jurisdiction after the High Court determined in Re Wakim: Ex parte McNally29 that federal courts could not exercise such jurisdiction. Some legislation applies retrospectively because it contains an express provision that it shall so operate: see  9.31. In jurisdictions other than the Australian Capital Territory, if the legislation contains no such provision, the issue as to whether it applies retrospectively must be decided by determining whether the presumption applies. In the Australian Capital Territory the issue of retrospective operation is governed by legislation. Section 75B(1) of the Legislation Act 2001 provides: A law must not be taken to provide for the law (or another law) to commence retrospectively unless the law clearly indicates that it is to commence retrospectively.

Daly v Thiering (2013) 249 CLR 381, 392 (Crennan, Kiefel, Bell, Gageler and Keane JJ). Pearce, Statutory Interpretation (n 2) 244–5 [5.44]. 26 Robertson v City of Nunawading [1973] VR 819, 824. 27 (1990) 169 CLR 515 (‘Rodway’). 28 R v Kidman (1915) 20 CLR 425; Yrttiaho v Public Curator (Qld) (1971) 125 CLR 228. 29 (1999) 198 CLR 511. 24 25

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As this is a ‘determinative provision’, it can only be displaced expressly or by a ‘manifest’ contrary intention.30 In jurisdictions other than the Australian Capital Territory, the operation of the common law presumption against retrospective operation is still relevant. The nature and operation of the presumption is considered in the following extract of Rodway. To the extent that the case sheds light on the essential nature of retrospective operation, the case is also of interest to those who are concerned with Australian Capital Territory law.

13.16

Rodway v The Queen (1990) 169 CLR 515 High Court of Australia [The applicant sought special leave to appeal to the High  Court against a number of convictions for sexual offences. At the time the offences occurred, s  136 of the Criminal Code (Tas) provided that no person could be convicted of any of the offences in question on the uncorroborated evidence of the alleged victim. After the applicant had been charged, and before the trial, the Criminal Code had been amended. Section 136 had been repealed and replaced with a provision that in such cases ‘no rule of law or practice shall require a judge to give a warning to the jury to the effect that it is unsafe to convict the person on the uncorroborated evidence’ of the alleged victim. The trial judge held that the newer provision applied. That view was upheld in the Tasmanian Court of Criminal Appeal.] Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ [at 518–19]:

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The rule at common law is that a statute ought not be given a retrospective operation where to do so would affect an existing right or obligation unless the language of the statute expressly or by necessary implication requires such construction. It is said that statutes dealing with procedure are an exception to the rule and that they should be  given a retrospective operation. It would, we think, be more accurate to say that there is no presumption against retrospectivity in the case of statutes which affect mere matters of procedure. Indeed, strictly speaking, where procedure alone is involved, a  statute will invariably operate prospectively and there is no room for the application of such a presumption. It will operate prospectively because it will prescribe the manner in which something may or must be done in the future, even if what is to be done relates to, or is based upon, past events. A statute which prescribes the manner in which the trial of a past offence is to be conducted is one instance. But the difference between substantive law and procedure is often difficult to draw and statutes which are commonly classified as procedural — statutes of limitation, for example — may operate in such a way as to affect existing rights or obligations. When they operate in that way they are not merely procedural and they fall within the presumption against retrospective operation. But when they deal only with procedure they are apt to be regarded as an exception to the rule and, if their application is related to or based upon past events, they are said to be given a retrospective operation provided that they do not affect existing rights or obligations.

Legislation Act 2001 (ACT) ss 75B(2) and 6(2). See discussion in relation to ss 170 and 171 at 13.6.

30

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Where a period is limited by statute for the taking of proceedings and the period is subsequently abridged or extended by an amending statute, the amending statute should not, unless it is clearly intended, be given a retrospective operation to revive a cause of action which has become barred or to deprive a person of the opportunity of instituting an action which is within time. If it were given a retrospective operation, the amending legislation would operate so as to impair existing, substantive rights — either the right to be free of a claim or the right to bring a claim — and such an operation could not be said to be merely procedural. This distinction was recognised by Williams  J in Maxwell v  Murphy (1957) 96 CLR 261, 278, and his remarks were adopted by the Privy Council in Yew Bon Tew v Kenderaan Bas Mara [1983] 1 AC 553, 562. Gibbs J re-examined the question in Yrttiaho v Public Curator (Qld) (1971) 125 CLR 228, 242 and he expressed his view as follows: Limitations may be regarded as being only of a procedural nature and, therefore, unless a contrary intention appears, retrospective in operation, if, being an amendment enlarging time, it took effect before the right sought to be enforced had become finally barred by lapse of time, and if, being an amendment reducing time, it left time after its commencement within which an action might be brought.

It was recognition of the fact that the simple classification of a statute as either procedural or substantive does not necessarily determine whether it may have a retrospective operation which no doubt led Dixon  CJ in Maxwell v  Murphy to formulate the general rule in terms which did not rest simply upon that classification. At 267 he said:

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The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events. But, given rights and liabilities fixed by reference to past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such a presumption. Changes made in practice and procedure are applied to proceedings to enforce rights and liabilities, or for that matter to vindicate an immunity or privilege, notwithstanding that before the change in the law was made the accrual or establishment of the rights, liabilities, immunity or privilege was complete and rested on events or transactions that were otherwise past and closed. The basis of the distinction was stated by Mellish LJ in Republic of Costa Rica v Erlanger (1876) 3 Ch D 62, 69. ‘No suitor has any vested interest in the course of procedure, nor any right to complain, if during the litigation the procedure is changed, provided, of course, that no injustice is done’.

… [O]rdinarily an amendment to the practice or procedure of a court, including the admissibility of evidence and the effect to be given to evidence, will not operate retrospectively so as to impair any existing right. It may govern the way in which the right is to be enforced or vindicated, but that does not bring it within the presumption against retrospectivity. A person who commits a crime does not have a right to be tried in any particular way; merely a right to be tried according to the practice and procedure prevailing at  the time of trial. The principle is sometimes succinctly, if somewhat sweepingly, expressed by saying, as did Mellish LJ in the passage cited by Dixon CJ in Maxwell v Murphy, that no-one has a vested right in any form of procedure.

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It is a principle which has been well established for many years: see also Wright v Hale (1860) 6 H & N 227, 233; 158 ER 94, 96 (Wilde B); Attorney-General v Sillem (1864) 10 HLC 704, 763; 11 ER 1200, 1224 (Lord Wensleydale); Warner v Murdoch (1877) 4 Ch D 750, 752 (James LJ). [The application to grant special leave to appeal succeeded, but the appeal itself was dismissed.]

Thus in Rodway it was not so much that the presumption against retrospectivity was applied, but rather that it did not arise. This is because what happened was not to change any vested right, that is, any right that the accused had acquired in the past. Rather, it was prospective — only applying to trials from the time that it commenced. The approach outlined by the High Court in Rodway was applied in S v White,31 in which a person was charged with assault. It was alleged that he had assaulted his former partner and two of her children. Bail was refused. After these events, the Family Violence Act 2004 (Tas) commenced operation. Section 12(1) provided: ‘A person charged with a family violence offence is not to be granted bail unless a judge … is satisfied that the release of the person on bail would not be likely to adversely affect the safety, wellbeing and interests of the affected person or child’. Subsequently, s 12(1) was applied to another bail application by the person charged.The Court held that the terms of s 12(1) had been satisfied and that no question of retrospective operation arose.32 In addition to the presumption against retrospective operation, reference should be made to the provisions in the interpretation legislation that deal with the repeal and expiration of Acts.33 This presumption is at its strongest in relation to criminal law, where it has been described as a fundamental right.34 See discussion above at 13.3ff.

13.17

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Presumption that Parliament does not abrogate the privilege against self-incrimination The presumption that Parliament has not excluded the right to refuse to incriminate oneself has been considered fundamental. Its operation is illustrated by Crafter v Kelly.35 Section s 39(1)(a) of the Primary Producers Debts Act 1935 (SA) provided that the Farmers Assistance Board, for the purposes of the Act, could require any person to answer any inquiry which the board thought fit to make. It was also provided, by s  39(2)(d), that if any person ‘refuses to answer any lawful question he shall be guilty of an offence’. Kelly refused to answer a question ‘on the ground that it may tend to incriminate me’. When he was charged with committing an offence against s 39(2)(d), the Full Court of the Supreme Court of South  Australia held that an offence had not been committed.

13.18

[2005] TASSC 27. Ibid [11]–[12]. 33 See Acts Interpretation Act 1901 (Cth) ss 7–11; Legislation Act 2001 (ACT) ss 82–96; Interpretation Act 1987 (NSW) ss 27–30C; Interpretation Act 1978 (NT) ss 11–16; Acts Interpretation Act 1954 (Qld) ss 17A–22C; Acts Interpretation Act  1915 (SA) ss  16–17; Acts Interpretation Act  1931 (Tas) ss  14–18A; Interpretation of Legislation Act 1984 (Vic) ss 14–16; Interpretation Act 1984 (WA) ss 33–39. 34 Malika Holdings (n 22) [28]. See also discussion in Sanson (n 15) 240–2. 35 [1941] SASR 237. 31 32

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The common law right not to incriminate oneself in this instance was held to have survived the enactment of s 39(2)(d). In light of the privilege against self-incrimination, a question whose answer might tend to incriminate the person being questioned was not regarded as a ‘lawful’ question under the section. Compare Pyneboard Pty Ltd v Trade Practices Commission (‘Pyneboard’),36 where it was held that the language and the purpose of s 155(1) of the Trade Practices Act 1974 (Cth) rendered the presumption inapplicable. This provision enabled the Trade Practices Commission to require people to provide information and documents in investigations for breaches of part of the Act. A  key factor here was that, without the Commission’s being able to obtain documents and evidence from those who had participated in contraventions of the Act, the Commission would have found it nearly impossible to establish the existence of those contraventions and enforce the Act. That is, unless the privilege were abrogated, part of the Act would be rendered ineffectual. Contrast this with Coco v  The Queen (above at  13.11), where alternative means did exist of installing listening devices so the statutory provisions in question could still have an operation. The interpretive principle based on the common law right against self-incrimination is protected by legislation in the Australian Capital Territory: see 13.6.

Presumption that Parliament does not abrogate legal professional privilege

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13.19

Also part of the ‘principle of legality’ is the presumption that Parliament does not intend to abrogate legal professional privilege. This privilege protects communications, and information or documents that might reveal such communications, between a client and legal professional for the purposes of obtaining legal advice. This right was considered to be fundamental in Daniels Corporation International Pty Ltd v  Australian Competition and Consumer Commission (‘Daniels’).37 This case pertained to the same statutory provision, albeit at a later point in time, that had been considered in Pyneboard in relation to the privilege against self-incrimination: see 13.18.38 In Daniels, however, the information the Australian Competition and Consumer Commission (which replaced the Trade Practices Commission) was seeking could fall within legal professional privilege, but not the privilege against self-incrimination. This time it was considered that the functions of the Commission would not be significantly impaired by the continued operation of legal professional privilege, and thus there were neither clear words nor a necessary implication that it had been abrogated.39 The interpretive principle based on legal professional privilege is protected by legislation in the Australian Capital Territory: see 13.6.

(1983) 152 CLR 328, 341. (2002) 213 CLR 543 (‘Daniels’). 38 Although emphasising Pyneboard was not ‘wrongly decided’, in Daniels (n  37) Gleeson  CJ, Gaudron, Gummow and Hayne JJ indicated there were ‘difficulties with the approach’ of the majority in the earlier case: ibid [29]. 39 See also Fagan v New South Wales [2004] NSWCA 182, [88]; A v Boulton (2004) 136 FCR 420, 434–9 (Kenny J), 422 (Beaumont and Dowsett JJ agreeing). 36 37

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Presumptions Used in the Interpretation of Legislation

Presumption that Parliament does not deprive people of access to the courts The presumption that Parliament does not deprive people of access to the courts is sometimes seen as a specific application of the presumption that Parliament does not interfere with common law rights: see 13.9–13.10. A provision in legislation that purports to deprive access to the courts is commonly called a privative clause or an ouster clause. Courts can be relied on to interpret such a provision strictly. In Plaintiff S157/2002 v Commonwealth (‘Plaintiff S157/2002’)40 the High Court upheld the validity of a privative clause contained in s 474 of the Migration Act 1958 (Cth), at the same time holding that s 474 did not prevent judicial review of decisions that involved jurisdictional error, despite the very lengthy list of explicit exclusions from review contained in the section. The Court reached this conclusion on the basis that such decisions were not protected from review because s 474 applied only to valid decisions made under the Act. A decision that involved jurisdictional error was not a valid decision but invalid from the start (ab initio), because the decision-maker lacked the ‘jurisdiction’ to make that decision — either because the decision-maker lacked the power to do so, or prerequisites for making the decision had not been satisfied. In a joint judgment, Gaudron, McHugh, Gummow, Kirby and Hayne JJ applied a ‘basic rule’: [I]t is presumed that the Parliament does not intend to cut down the jurisdiction of the courts save to the extent that the legislation in question expressly so states or necessarily implies. Accordingly, privative clauses are strictly construed.41

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The High Court endorsed this rule in Fish v Solution 6 Holdings Ltd.42 The presumption also applies to state parliaments.43 The interpretation of privative clauses, a complex topic, is studied as part of administrative law.44

13.20 privative clause: a provision in a statute purporting to prevent review by a court of a decision made pursuant to a provision in that statute

jurisdictional error: an administrative decision — ie, a decision by a decisionmaker under statute — is said to suffer from jurisdictional error where it is in excess of the powers granted, or it has been made without the criteria for the exercise of the power being satisfied

Presumption that penal provisions are construed strictly and beneficial provisions construed broadly The presumption that penal provisions should be construed ‘strictly’ — that is, as narrowly as possible, to apply to as few people as possible — is one that has reduced in weight over the years.The more recent approach makes the presumption subject to the ‘ordinary’ rules of construction, as Gibbs CJ commented in Beckwith v The Queen:

13.21

The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal 42 43 44 40 41

(2003) 211 CLR 476 (‘Plaintiff S157/2002’). Ibid 505; see also 492–3 (Gleeson CJ), 516 (Callinan J). (2006) 225 CLR 180, 194 (Gleeson CJ, Gummow, Hayne, Callinan and Crennan JJ). Kirk v Industrial Court (NSW) (2010) 239 CLR 531. See, eg, Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action (Thomson Reuters, 6th ed, 2017) ch 18; Robin Creyke et al, Control of Government Action:Text, Cases and Commentary (LexisNexis Butterworths, 5th ed, 2018) ch 16.

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statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences … The rule is perhaps one of last resort.45

13.22

13.23

Despite these comments, the principle continues to be applied.46 In Newcastle City Council v GIO General Ltd,47 McHugh J, relying in part on Waugh v Kippen,48 suggested that the presumption that penal provisions should be interpreted strictly must give way to the purposive approach, especially where the provision in question is a remedial one.49 Toohey, Gaudron and Gummow JJ were content to comment that, in that context, the presumption was ‘one of last resort’.50 For an instructive discussion of the presumption, including its status as a rule of last resort and its relationship with the purposive approach, see the observations of Kirby J in R v Lavender.51 In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory),52 Hayne, Heydon, Crennan and Kiefel JJ observed that penal provisions in an Act make up part of its context and so are relevant to the task of interpreting it in accordance with established interpretive principles. In South Australia and Queensland, it is expressly provided that the state equivalents of s 15AA of the Acts Interpretation Act 1901 (Cth), namely s 22 of the Acts Interpretation Act 1915 (SA) and s 14A of the Acts Interpretation Act 1954 (Qld), do not operate to create or extend criminal liability: see 10.23–10.24. If a penal provision should be strictly construed, perhaps a provision intended to have a remedial or beneficial effect should be liberally interpreted. This latter proposition may raise a question as to how to determine whether a provision is remedial or beneficial. Social welfare and industrial safety legislation are examples.53

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13.24

As can be seen from Coco v The Queen (above at 13.11), the common law has a high respect for property rights, and their protection can be regarded as a ‘fundamental’ right. There is a general presumption that the legislature does not intend to interfere with vested property rights. A specific application of this is that it is presumed that such rights will only be taken away with adequate compensation.54 This presumption is summarised by French CJ in R & R Fazzolari Pty Ltd v Parramatta City Council, and contextualised as a ‘fundamental right’: (1976) 135 CLR 569, 576. See, eg, Smith v Corrective Services Commission of New South Wales (1980) 147 CLR 134; Murphy v Farmer (1988) 165 CLR 19; Battaglini v Interfren Pty Ltd (1989) 16 NSWLR 378; Chew v The Queen (1992) 173 CLR 626, 632 (Mason CJ, Brennan, Gaudron and McHugh JJ). 47 (1997) 191 CLR 85. 48 (1986) 160 CLR 156, 164–5. 49 Newcastle City Council v GIO General Ltd (n 47) 109. 50 Ibid 102–3. 51 (2005) 222 CLR 67, 95–7. 52 (2009) 239 CLR 27, 49. 53 For other examples, see Pearce, Statutory Interpretation (n 2) 313–20 [9.2]–[9.7]. 54 Ibid 229–33 [5.25]–[5.29]. 45 46

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Where a statute is capable of more than one construction, that construction will be chosen which interferes least with private property rights. That approach resembles and may even be seen as an aspect of the general principle that statutes are construed, where constructional choices are open, so that they do not encroach upon fundamental rights and freedoms at common law.55

As with other presumptions, this one is capable of rebuttal, as happened in Durham Holdings Pty Ltd v  New  South  Wales.56 In this case, the High  Court refused an application for special leave to appeal from a decision of the New  South  Wales Court of Appeal.57 The decision turned on the interpretation of the Coal Acquisition Act 1981 (NSW). Section 5 of the Act vested the lands in question in the Crown and s 6 provided for landowners to be compensated. Section 6(3) provided:

13.25

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Arrangements under this section  may differentiate between the persons to whom compensation is payable as a result of the enactment of this Act by providing that specified persons, or persons of a specified class, are not entitled to be paid more than a specified sum or specified sums of money in respect of coal vested in the Crown by the operation of section 5, irrespective of the amount of coal that they owned immediately before the commencement of this Act.

Clause 22AA(3) of the arrangements under s  6(3) capped the compensation payable to the applicant at a little more than $23 million. Without the capping the applicant would have been entitled to a total of over $93 million. In the circumstances, therefore, the applicant’s claim was not that the legislation deprived the applicant of its property without compensation, but that it had been deprived of the property without just or adequate compensation, contrary to law. In their joint judgment Gaudron, McHugh, Gummow and Hayne JJ concluded that the terms of s 6(3) rebutted the presumption and that the New  South  Wales Parliament had power to enact the legislation in question.58 Kirby J agreed with both conclusions59 as did Callinan J.60 The presumption was affirmed in the joint judgment of French  CJ, Gummow, Hayne, Heydon, Crennan and Kiefel JJ  in Jemena Gas Networks (NSW) Ltd v  Mine Subsidence Board.61 The Commonwealth Parliament is constrained in part in regard to its acquisition of property by s 51(xxxiii) of the Australian Constitution, which requires the Commonwealth to acquire property only on ‘just terms’. As this is a constitutional requirement, rather than a statutory presumption, it cannot be abrogated by legislation. This provision only applies where the Commonwealth acquires property. Hence, the Tobacco Plain Packaging Act 2011 (Cth), which prohibited cigarette companies from using their packaging designs (a type of intellectual property) on tobacco products, did not result in an ‘acquisition’ of property by the Commonwealth that required the payment of compensation.62

57 58 59 60 61 62 55 56

13.26

(2009) 237 CLR 603, 619 [43]. (2001) 205 CLR 399 (‘Durham Holdings v NSW’). Durham Holdings (n 8). Durham Holdings v NSW (n 56) 407–8. Ibid 414–30. Ibid 433. (2011) 243 CLR 558, 571. JT International SA v Commonwealth (2012) 250 CLR 1.

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Presumption that re-enactment constitutes approval of previous judicial interpretation 13.27

Moving beyond presumptions associated with fundamental rights, to one that aids in judicial interpretation, there is a presumption that re-enactment of a provision that has previously been interpreted by the courts in the same terms constitutes legislative approval of that judicial interpretation.This position was stated clearly in Public Service Association of New South Wales v Industrial Commission of New South Wales where Kirby P said: There is a presumption, useful in statutory interpretation, that where a provision of legislation has been passed upon by authoritative decisions of the courts and is later reenacted, Parliament can be taken, in the absence of a clear intention to the contrary, to know and accept the interpretations given to the legislation.63

As the legislative history of a provision can be considered as part of the context of an enactment in the widest sense, this presumption can also be expressed as part of the modern, contextual approach to interpretation.Thus, Gageler J stated in Baini v the Queen: [The] modern contextual approach ordinarily requires that statutory language re-enacted in an identical form after it has acquired a settled judicial meaning be taken to have the same meaning. It equally requires that, changes of drafting style aside, statutory language re-enacted in an altered form after it has acquired a settled judicial meaning be taken to have a different meaning.Were it otherwise, legislative policy choices would be blurred and orderly legislative reform would be impeded.64

13.28

This presumption has gone into decline in recent years. In South Australia it has been abrogated by statute.65 An impression of the status of the presumption elsewhere in Australia can be gained from the following extract from Flaherty v Girgis (‘Flaherty’).66 Flaherty v Girgis (1987) 162 CLR 574 High Court of Australia

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[It was argued in this case that the Service and Execution of Process Act  1901 (Cth) provided a code for the extraterritorial service of the process of state and territorial courts. If that argument had been accepted, state rules of court which authorised service outside a particular state but within Australia would have been invalid.] Mason ACJ, Wilson and Dawson JJ [at 594]: It was submitted on behalf of the respondent that the amendment of the Service and Execution of Process Act a number of times over the years during which it has consistently been interpreted as having no exclusive operation with respect to the service of process, indicates the tacit approval of the Commonwealth Parliament and provides a guide to its intent. That is to overstate the position somewhat. Whilst it is true that, where an inference can be drawn from the terms in which subsequent legislation has been passed that Parliament itself has approved of a particular 65 66 63 64

432

(1985) 1 NSWLR 627, 640. (2012) 246 CLR 469, 484–5 [43]. Acts Interpretation Act 1915 (SA) s 18. (1987) 162 CLR 574 (‘Flaherty’).

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judicial interpretation of words in an earlier statute, a court should adhere to that interpretation, the difficulty is in discerning the existence of parliamentary approval: see Geelong Harbour Trust Commissioners v Gibbs Bright & Co (1974) 129 CLR 576, 584. Mere amendment of a statute not involving any re-enactment of the words in question could seldom if ever constitute approval of an interpretation of those words. Even reenactment of the words in circumstances not involving any reconsideration of their meaning, as eg, in a consolidating statute, does not do so … At most the principle affords a presumption of no great weight concerning the meaning of the words used and cannot be relied upon to perpetuate an erroneous construction … Indeed, in Reg v Reynhoudt (1962) 107 CLR 381, 388 Dixon CJ said: In any case the view that in modern legislation the repetition of a provision which has been dealt with by the courts means that a judicial interpretation has been legislatively approved is, I think, quite artificial. To repeat what I have said before, the mechanics of law-making no longer provide it with the foundation in probability which the doctrine was supposed once to have possessed.

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For the reason given by Dixon CJ, the suggested rule nowadays is little use as a guide and it will not be permitted to prevail over an interpretation otherwise appearing to be correct.

It can be seen from the extract above that the re-enactment presumption is one of the weaker presumptions. Nevertheless, it continues to be applied. It was restated and applied by a unanimous High Court bench of seven Justices in Re Alcan Australia Ltd; Ex parte Federation of Industrial Manufacturing and Engineering Employees.67 In Flaherty Mason  ACJ, Wilson and Dawson  JJ said of the re-enactment presumption that ‘the difficulty is in discerning the existence of parliamentary approval’ of the earlier judicial interpretation.68 In Plaintiff S157/2002, discussed in 13.20, that difficulty was not present. The  High  Court considered the effect of the privative clause contained in s  474 of the Migration Act  1958 (Cth), the history of which was well known. The provision’s formulation was shaped by comments made by Dixon J in R v Hickman; Ex parte Fox and Clinton69 (‘Hickman’) concerning a particular privative clause, reg 17 of the National Security (Coal Mining Industry Employment) Regulations (Cth), and privative clauses generally. In their joint judgment, Gaudron, McHugh, Gummow, Kirby and Hayne JJ referred to the second reading speech of the relevant Minister on the Bill that produced the Migration Act amendment which introduced s 474.70 In that speech, the Minister drew the attention of Members of the House of Representatives to the fact that the provision was based on privative clauses such as that interpreted in Hickman. Furthermore, he made it clear that the provision had been introduced in the expectation that it would achieve an effect similar to the effect of privative clauses that had been included in previous legislation.The Justices quoted the following comments of the Minister:

69 70 67 68

13.29

(1994) 181 CLR 96, 106–7. Flaherty (n 66) 594. (1945) 70 CLR 598, 614–15. Plaintiff S157/2002 (n 40) 499 (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).

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Members may be aware that the effect of a privative clause such as that used in Hickman’s case is to expand the legal validity of the acts done and the decisions made by decision makers.The result is to give decision makers wider lawful operation for their decisions, and this means that the grounds on which those decisions can be challenged in the Federal and High Courts are narrower than currently: Australia, House of Representatives, Parliamentary Debates (Hansard) 26 September 2001, p 31561.71

The Justices added: ‘Of course, the Minister’s understanding of the decision in Hickman cannot give s 474 an effect that is inconsistent with the terms of the Act as a whole.’72 In his separate judgment, Gleeson CJ noted: The approach to the interpretation of statutes containing privative provisions enunciated by Dixon  J in Hickman, and developed by him in later cases, has been accepted by this Court as authoritative. Parliament has legislated in the light of that acceptance.73

13.30

As stated at 13.20, the Court upheld the validity of s 474. In recent examples of the possible application of the re-enactment presumption, the courts have adopted an approach like that of the High Court in Plaintiff S157/2002.They have considered the subject matter of the legislation and the context of its enactment, looking for indications as to the likelihood that Parliament, the Minister or the Minister’s department knew or would have known of a judicial interpretation of language that was repeated in the later enactment.74

Presumption that legislation does not bind the Crown 13.31

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13.32

The presumption that the Crown was not bound by statutes unless expressly stated or the intention was manifest in the statute is one that has become less strong over time.75 Legislation often contains a statement such as ‘This Act shall bind the Crown’ that expressly rebuts this presumption. In Australia, this question is complicated by the presence of state and territorial Crowns as well as a Commonwealth Crown.76 The weakening of this presumption over time was noted by the High  Court in Bropho v  Western Australia (‘Bropho’).77 In a joint judgment with which Brennan  J was in broad agreement, Mason CJ and Deane, Dawson, Toohey, Gaudron and McHugh JJ commented that earlier judicial statements to the effect that it must be manifest from the very terms of the statute itself that it was the legislative intent that the general words of a statute should bind the Crown, or that it must be apparent that the purposes of the statute would be wholly frustrated unless the Crown were bound, should be read as applying to the context of the particular statutory provisions involved in the cases in which they were made. Such Ibid. Ibid. 73 Ibid 489 (Gleeson CJ); see also 526–7 (Callinan J). 74 See Informax International Pty Ltd v Clarius Group Ltd (2012) 207 FCR 298, 352; R v Aubrey (2012) 82 NSWLR 748, 758 (Macfarlan JA), 761 (Johnson and Davies JJ agreeing). 75 Pearce, Statutory Interpretation (n 2) [5.17]–[5.20]. 76 On the complications caused by different Crowns, see Re Residential Tenancies Tribunal of New South Wales and Henderson; Ex parte the Defence Housing Authority (1997) 190 CLR 410. 77 (1990) 171 CLR 1 (‘Bropho’). 71 72

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statements should no longer be seen as precluding the identification of such a legislative intent in other circumstances or as warranting the overriding of a legislative intent which can be discerned in the provisions of a statute when construed in context.78

The Justices considered this to be in keeping with the range of activities with which modern governments were involved and with the added emphasis in recent years on the purposive approach to statutory interpretation. See also Jacobsen v Rogers,79 in which the High Court affirmed the principles that had been laid down in Bropho. In Queensland and Tasmania, interpretation legislation provides that legislation does not bind the Crown unless it is expressly declared to do so.80 For an example of reliance on the Queensland provision, s 13 of the Acts Interpretation Act 1954 (Qld), see Re Northbuild Construction Pty Ltd.81 The majority of the High Court stated in Bropho that provisions such as those in the Queensland and Tasmanian interpretation legislation would necessarily give way to the provisions of a subsequent enactment which, notwithstanding the earlier provision, disclosed a contrary legislative intent since the subsequent enactment would represent a pro tanto repeal or amendment of the earlier provision.82

13.33

pro tanto: ‘for so much’; or ‘to the extent’ required

That is, despite these provisions, if it is a necessary implication (that is, not expressly stated, just implied) that the statute does not bind the Crown, the courts will interpret the legislation so that the Crown is not bound. Section  20 of the South  Australian Acts Interpretation Act 1915 reverses the presumption that legislation does not bind the Crown, except in regard to the imposition of criminal liability on the Crown.

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Presumption that legislation does not have extraterritorial effect Parliaments generally have a competence that is, to some extent, geographically restricted. As such, there is a presumption that legislation does not have extraterritorial effect. In relation to the extraterritorial competence of Parliament, as Brereton  J highlighted in Re Iskra; Ex parte Mercantile Trasnport Co Pty Ltd,83 it is necessary to distinguish between two questions: • does a legislature have power to make a law with extraterritorial effect; and • assuming that it does, how should it be determined whether a law made by a legislature has extraterritorial effect?84

80 81 82 83 84 78 79

13.34

Ibid 22. (1995) 182 CLR 572. Acts Interpretation Act 1954 (Qld) s 13; Acts Interpretation Act 1931 (Tas) s 6(6). [2000] 2 Qd R 600. Bropho (n 77) 22. [1963] SR (NSW) 538, 934. As to the constitutional authority of the Commonwealth and the states to legislate extraterritorially, see George Williams, Sean Brennan and Andrew Lynch, Blackshield and Williams Australian Constitutional Law and Theory: Commentary and Materials (Federation Press, 6th ed, 2014) 109–10. The operation of the presumption against extraterritorial operation of legislation is discussed by Pearce, Statutory Interpretation (n 2) 218–21 [5.12]–[5.14].

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For the first question, a connection between the enacting jurisdiction and the person, event or thing on which the law operates is necessary for valid extraterritorial operation.85 In relation to the second question, the content of the presumption was clearly stated by O’Connor J in Jumbunna Coal Mine NL v Victorian Coal Miners’ Association: Most Statutes, if their general words were taken literally in their widest sense, would apply to the whole world, but they are always read as being prima facie restricted in their operation with territorial limits.86

The presumption is enacted in the interpretation legislation87 of the Commonwealth, the states, except for South Australia and Western Australia, and the territories, as well as existing at common law. For example, s 21(1)(b) of the Acts Interpretation Act 1901 (Cth) provides: In any Act, … references to localities jurisdictions and other matters and things shall be construed as references to such localities jurisdictions and other matters and things in and of the Commonwealth.

Presumption that Parliament intends to legislate in conformity with international law 13.35

13.36

Sometimes an expression is defined in domestic legislation as having the meaning attributed to it in an international agreement. It was explained in 11.9–11.11 that in those circumstances the legislation is interpreted by reference to the rules applicable to the interpretation of treaties, the ordinary principles of interpretation giving way to those rules. Australia is also a party to many international agreements which impose obligations that are met less directly, by the enactment of domestic law honouring those obligations. It is clear that if there is an ambiguity in an Act purporting to give effect to an international agreement, the courts should favour an interpretation that accords with Australia’s obligations under that agreement. In Plaintiff S157/2002 Gleeson CJ stated that

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where legislation has been enacted pursuant to, or in contemplation of, the assumption of international obligations under a treaty or international convention, in cases of ambiguity a court should favour a construction which accords with Australia’s obligations.88

In Minister for Immigration and Ethnic Affairs v Teoh, Mason CJ and Deane J said: In this context, there are strong reasons for rejecting a narrow conception of ambiguity. If the language of the legislation is susceptible of a construction which is consistent with the terms of the international instrument and the obligations which it imposes on Australia, then that construction should prevail.89 Pearce, Statutory Interpretation (n 2) 218–9 [5.12]. (1908) 6 CLR 309, 363. 87 Acts Interpretation Act  1901 (Cth) s  21(1)(b); Legislation Act  2001 (ACT) s  122; Interpretation Act  1987 (NSW) s 12; Interpretation Act 1978 (NT) s 38; Acts Interpretation Act 1954 (Qld) s 35; Acts Interpretation Act 1931 (Tas) s 27; Interpretation of Legislation Act 1984 (Vic) s 48. On these provisions see Dennis Pearce, Interpretation Acts in Australia (LexisNexis Butterworths, 2018) 123–33 [4.48]–[4.58]. 88 Plaintiff S157/2002 (n 40) 492, citing Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 287 (Mason CJ and Deane J) (‘Teoh’), and referring also to Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, 38 (Brennan, Deane and Dawson JJ). 89 Teoh (n 88) 287. 85 86

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Gaudron J agreed with Mason CJ and Deane J on this point.90 However, in Coleman v Power 91 Gleeson CJ expressed concern that it was difficult to apply an international agreement ratified by Australia in 1980, the International Covenant on Civil and Political Rights, to a statute of Queensland from 1931, as the legislators in 1931 could not be presumed to be taking account of that international obligation.92 Kirby J, in contrast, emphasised the nature of a statute as ‘living language’, rather than having its meaning ossified or frozen in time by the subjective intention of the legislators decades before (see 12.31 on a statute as ‘always speaking’).93 For further discussion of the presumption that Parliament intends to legislate in conformity with international law, see Dennis Pearce, Statutory Interpretation in Australia.94 EXERCISE 16: PRESUMPTIONS OF INTERPRETATION Answer the following problems assuming that they arise within your state or territory. In this exercise the statutory provisions quoted are fictitious, although some are based on real cases. As with any problems that involve giving legal advice, the task is to identify the issue(s), articulate the arguments, reach conclusions and give reasons for those conclusions. Bear in mind that your advice is likely to be more valuable if you consider both arguments and counter-arguments. But do not waste effort formulating arguments that you consider to be without merit. A suggested answer is provided with the sample problem.

13.37

Sample problem

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Section 116(1) of the Solicitors Act 2011 provided: (a) Where a person who is or was a clerk to a solicitor has been convicted — (i) of larceny, embezzlement or fraudulent conversion; or (ii) of any other criminal offence in respect of any money or property belonging to or held or controlled by the solicitor by whom the person is or was employed or any client of that solicitor; … an application may be made by or on behalf of the Law Society to the Disciplinary Committee that an order be made directing that as from a date to be specified in that order, no solicitor shall in connexion with his or her practice as a solicitor take or retain that person into or in his or her employment or remunerate that person without the written permission of the Society.

Nasem had worked as a solicitor’s clerk from 1996 to 2008, when she was convicted of larceny and sentenced to a term of imprisonment. In 2012 the Disciplinary Committee of the Law Society made an order that no solicitor should employ Nasem in connection with their law practice without the permission of the Law Society. Did the committee have power to make such an order?

Ibid 304. (2004) 220 CLR 1. 92 Ibid 27–30 [17]–[24] (Gleeson CJ). 93 Ibid 93–6 [243]–[249] (Kirby J). 94 Pearce, Statutory Interpretation (n 2) 57–65 [2.30]–[2.39]. 90 91

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Suggested answer This particular situation appears, at first blush, to involve the retrospective operation of a statute — Nasem’s actions were in 2008, yet in 2012 an apparently additional consequence has been applied. However, it is important to remember an important distinction between the retrospective operation of an Act and the using of past events as a basis for future action. This distinction can be difficult to get one’s head around. These circumstances are using past actions as a basis for future actions, rather than retrospective operation: the prohibition is prospective as it only applies from 2012 onwards, even though it uses past actions as a basis for the disqualification. A retrospective operation of the statute would penalise anyone who had employed Nasem from 2008–2011, before the Act came into force, or declaring anything done by Nasem as a clerk in this period (2008–2011) void or voidable.We can also examine the purpose of the statute itself.The purpose would appear to be ensuring that those operating as law clerks have a requisite degree of integrity and honesty. A conviction for fraud, whether occurring in, say, 2010 (before the Act) or in 2012 (after the Act), would appear to carry the same implications for the integrity or honesty of the person concerned. Thus, there are good reasons to determine that the Act was also intended to embrace people convicted in the past, as well as after the Act became law. To read the real-life case on which this problem is based, see Re a Solicitor’s Clerk [1957] 1 WLR 1219. Problems 1. Section  1(1) of the Merchant Shipping (International Labour Convention) Act  1978 provided: Where by reason of the wreck or loss of a ship on which a seaman is employed his service terminates before the date contemplated in the agreement, he shall be entitled, in respect of each day on which he is in fact unemployed during a period of two months from the date of termination of the service, to receive wages at the rate to which he was entitled at that date. Copyright © 2020. LexisNexis Butterworths. All rights reserved.

The convention referred to in the short title appeared in a schedule to the Act. It is clear from this convention that it was not intended that seamen should receive more than they would have received if the voyage had not been interrupted, and that the maximum amount payable in any case should be two months’ wages. It had been held in an important decision in 1966 that the word ‘wreck’ in s 158 of the Merchant Shipping Act 1947 meant ‘anything happening to a ship that renders it incapable of carrying out an intended voyage’. On 1 March last year the Strathclova collided with another ship. The damage was too severe to permit the ship to continue its voyage, so it returned to port for repairs, and the crew was paid off. Bertram was a seaman on the Strathclova. The voyage for which he had signed on was due to end on 15 March, but he claimed two months’ wages from the owners of the ship, since he was in fact unemployed until June. Is Bertram entitled to two months’ wages? 2. The following provides a more complex series of provisions to examine the question of presumptions of interpretation, in this instance the presumptions that the 438

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CHAPTER 13

Presumptions Used in the Interpretation of Legislation

Parliament does not intend to abrogate the privilege against self-incrimination or legal professional privilege: see 13.18 and 13.19. Section 28 of the Australian Crime Commission Act 2002 provided: An examiner may summon a person to appear before an examiner at an examination to give evidence and to produce such documents or other things (if any) as are referred to in the summons.

Section 25A provided: (1) An examination before an examiner must be held in private and the examiner may give directions as to the persons who may be present during the examination or a part of the examination. (2) An examiner may direct that: (a) any evidence given before the examiner; or (b) the contents of any document, or a description of any thing, produced to the examiner; or (c) any information that might enable a person who has given evidence before the examiner to be identified; or (d) the fact that any person has given or may be about to give evidence at  an examination; must not be published, or must not be published except in such manner, and to such persons, as the examiner specifies. The examiner must give such a direction if the failure to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been, or may be, charged with an offence.

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Section 30 provided: (1) A person appearing as a witness at an examination before an examiner shall not: (a) refuse or fail to comply with a requirement to take an oath or make an affirmation; (b) refuse or fail to answer a question that he or she is required to answer by the examiner; or (c) refuse or fail to produce a document or thing that he or she was required to produce by a summons under this Act served on him or her as prescribed. (2) Subsection (4) limits the use that can be made of any answers given at an examination before an examiner, or documents or things produced at an examination before an examiner. Subsection (4) only applies if: (a) a person appearing as a witness at an examination before an examiner: (i) answers a question that he or she is required to answer by the examiner; or (ii) produces a document or thing that he or she was required to produce by a summons under this Act; and (b) before answering the question or producing the document or thing, the person claims that the answer, or the production of the document or thing, might tend to incriminate the person or make the person liable to a penalty. (3) Where: (a) a legal practitioner is required to answer a question or produce a document at an examination before an examiner; and (b) the answer to the question would disclose, or the document contains, a privileged communication made by or to the legal practitioner in his or her capacity as a legal practitioner; the legal practitioner is entitled to refuse to comply with the requirement unless the person to whom or by whom the communication was made agrees to the legal practitioner complying with the requirement.

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(4) The answer, document or thing is not admissible in evidence against the person in: (a) a criminal proceeding; or (b) a proceeding for the imposition of a penalty; or (c) a confiscation proceeding. (5) A person who contravenes subsection  (1) commits an indictable offence that, subject to this section, is punishable, upon conviction, by a fine not exceeding 200 penalty units or imprisonment for a period not exceeding 5 years. (6) This section does not affect the law regarding legal professional privilege. Jack is a police officer who has been charged with smuggling drugs into Australia. After he has been charged, but prior to his trial, Jack is summoned by the Australian Crime Commission to answer questions about his drug smuggling, which the Commission suspects to be part of a larger criminal syndicate. Before he is questioned, the Commission gives a direction under s 25A that the examination is to be confidential. Jack refuses to answer questions put to him about his involvement in drug smuggling on the basis that they might incriminate him. Jack is charged under s 30(5) for failing to answer. He claims that his privilege against self-incrimination has not been abrogated by the Act. Is he correct?

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Here are some steps to help you: 1. What appears to be the purpose of these provisions? 2. Does this Act say anything explicitly about the privilege against selfincrimination? 3. Does the Act say anything explicit about legal professional privilege? 4. Does a comparison of how legal professional privilege and the privilege against self-incrimination are treated suggest anything? (expressio unius est exclusio alterius: see 12.17) 5. If not explicit, is it a ‘necessary implication’ that the privilege against selfincrimination has been removed? Consider here, for example, whether any protections are created for someone who gives evidence to a Commission inquiry. What does that suggest about the privilege against self-incrimination under the Act?

Further reading • For a comprehensive and consolidated list of further reading sources on statutory interpretation, see Chapter 10.

To enhance your learning experience, use the student resources available on Lexis® Learning See the Visual Preface at the front of this book on how to register.

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CHAPTER

14 Statutory Obligations and Discretions Purposive interpretation is what we do now. In constitutional, statutory and contractual interpretation, there does appear to have been a shift from text to context.1 James J Spigelman, ‘From Text to Context: Contemporary Contractual Interpretation’ (Speech, Risky Business Conference, Sydney, 21 March 2007).

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1

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Introduction 14.1 Summary of principles 14.2 −− Obligation or discretion?

14.3

−− Does breach produce invalidity?

14.4

How to determine whether a provision is obligatory or discretionary 14.5 −− Interpretation legislation

14.6

−− Judicial approaches

14.7

How to determine whether breach produces invalidity 14.8

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EXERCISE 17: Statutory obligations and discretions 14.10

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CHAPTER 14 Statutory Obligations and Discretions

Introduction It is not uncommon for legislation to empower a particular person or agency — often someone holding a particular office — to make a decision or perform an action. It is important to know whether, under legislation, that person or agency is obliged, or has a duty, to do something or whether the office-holder has a discretion, or a choice, to do or not to do it. Another way of putting this is to ask whether a legislative provision is obligatory or discretionary. If an office-holder has an unfettered discretion as to whether to do something, failure to do the thing cannot be the subject of a legitimate complaint at law. However, if there has been a failure to perform an obligation imposed by legislation, quite apart from possible consequences for the person or agency that failed to fulfil the obligation, there may be an issue as to the legal consequences of that breach of the law. In particular, there may be implications for the legal status of that decision or action — in essence, is the decision or action still legally valid? The outcome of this determination in turn has an impact on those potentially affected by that decision or action. This chapter focuses on the two main questions that arise in relation to statutory obligations and discretions: • how to determine whether a legislative provision imposes an obligation or confers a discretion; and • how to determine whether failure to comply with a statutory obligation renders the action or decision invalid.

14.1 discretion: something that involves choice, or something that may be done or performed obligation: something that must be done or performed

The answers to these questions are arrived at by applying the principles of interpretation discussed in the previous four chapters. The next chapter considers the application of these principles to complex problems.

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Summary of principles The principles for this chapter can be divided into two categories: first, those that relate to the question of whether a provision creates an obligation or discretion; and second, those that relate to the question of the consequences of failing to comply with a statutory obligation. OBLIGATION OR DISCRETION? The question of whether a statutory provision creates an obligation or discretion is determined primarily by the application of the ordinary rules of interpretation. Here are the principles that apply: • Does the provision, when read in light of its purpose and context, show an intention that the provision creates an obligation or discretion? See 14.5–14.7. • Statutory language can provide some guidance with language like ‘may’ suggesting a discretion and words like ‘shall’ or ‘must’ suggesting an obligation. • Interpretation legislation provides some guidance on language. In the Commonwealth, the Australian Capital Territory and Tasmania, the use of certain language, such as the words ‘may’ or ‘must’, is prima facie indicative of a discretion or obligation. In other jurisdictions the interpretation legislation is

14.2

14.3

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more circular: if used to confer a ‘power’, ‘may’ indicates a discretion, whereas ‘shall’, if used to impose a ‘duty’, creates an obligation: see 14.6. • Courts place an emphasis on the context of the provision over the individual provision and the particular breach. The hypothetical question is often asked, would the legislature have intended to create a discretion or obligation in relation to any action taken or decision made under the provision? See 14.7.

14.4

DOES BREACH PRODUCE INVALIDITY? The question of whether a breach of an obligation produces invalidity is also determined by the application of the rules of statutory interpretation: when the provision is read in light of its purpose and context, was it the intention of Parliament that any breach of the provision would produce invalidity? Several considerations are relevant here: see 14.8–14.9. They include: • Does the provision regulate a power granted, or set out the preliminaries for the exercise of a power? If the latter, the exercise will be invalid because of jurisdictional error. • Does the obligation have a ‘rule like’ quality? Can it be readily identified? • Does invalidity in any circumstance, not just the particular one, produce inconvenience? • As with the question of whether a breach of an obligatory provision will create invalidity, the courts again adopt a hypothetical approach to reasoning, rather than only considering the particular breach. The question will be asked, would the legislature have intended that any breach of the provision in question produce invalidity?

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14.5

14.6

In answering the question of whether a provision produces an obligation or discretion, the courts have regard to the principles of statutory interpretation considered in Chapters  10–13. That is, courts and tribunals strive for an interpretation that would promote the purpose or object underlying the provision. In carrying out this responsibility, they must not look at  the provision in isolation, but must consider it in its context. Consistently with this, the issue may be resolved by interpreting the words according to their plain and ordinary meaning. INTERPRETATION LEGISLATION The interpretation legislation in all jurisdictions except the Northern Territory provides some guidance as to the use of terms, although all provisions only apply to legislation after the date that the provision was inserted into the relevant interpretation statute: see 9.60, 12.28–12.29.2 On these provisions see Dennis Pearce, Interpretation Legislation in Australia (LexisNexis Butterworths, 2018) 157–65 [5.44]–[5.63].

2

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CHAPTER 14 Statutory Obligations and Discretions

Section 33 of the Acts Interpretation Act 1901 (Cth) makes provision in relation to the word ‘may’ creating a discretion, although does not explicitly provide for obligatory language: (1) Where an Act confers a power or function or imposes a duty, then the power may be exercised and the function or duty must be performed from time to time as occasion requires. (2A) Where an Act assented to after the commencement of this subsection provides that a person, court or body may do a particular act or thing, and the word may is used, the act or thing may be done at the discretion of the person, court or body.

Section  33(2A) commenced on 18  December 1987 and is thus applicable to Commonwealth Acts passed after that date.The Commonwealth provision is more helpful than the somewhat circular provision contained in s  9 of the Interpretation Act  1987 (NSW), which provides: (1) In any Act or instrument, the word ‘may’, if used to confer a power, indicates that the power may be exercised or not, at discretion. (2) In any Act or instrument, the word ‘shall’, if used to impose a duty, indicates that the duty must be performed.

The circularity here lies in the fact that before one can determine that ‘may’ confers a discretion, one must determine whether it confers a power — that is, whether the provision confers a discretion. Similarly, before one can determine that ‘shall’ creates an obligation, one must determine whether the provision imposes a duty — that is, whether it creates an obligation. As Basten JA said of the New South Wales provision in Coffs Harbour and District Local Aboriginal Land Council v Lynwood:

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The statement in s  9(2) of the Interpretation Act, namely, that ‘shall’, if used to impose a duty, indicates that the duty must be performed is question begging; the real issue will usually be whether the word imposes a duty.3

Compare the provisions in the interpretation legislation of other jurisdictions: the Legislation Act  2001 (ACT) s  146 and Acts Interpretation Act  1931 (Tas) s  10A treat the use of ‘may’ or ‘must’ as prima facie determinative, whereas the Acts Interpretation Act 1954 (Qld) s 32CA, Acts Interpretation Act 1984 (SA) s 34, Interpretation of Legislation Act 1984 (Vic) s 45 and Interpretation Act 1984 (WA) s 56 have similar wording to the New South Wales provision. JUDICIAL APPROACHES As Dennis Pearce has shown, the courts have not always treated the use of ‘shall’ and ‘may’ as conclusive, either under statutory provisions or the common law.4 Instead, the courts have sought to go beyond those words and have attempted, by considering the possible effects of alternative interpretations, to reach a conclusion that is in accordance with the purpose or object underlying the provision.

14.7

[2017] NSWCA 317 [15]. Dennis Pearce, Statutory Interpretation in Australia (LexisNexis Butterworths, 9th ed, 2019) ch 11.

3 4

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The influence of modern techniques of interpretation in the resolution of the obligation/discretion issue is evident in Samad v  District Court of New  South  Wales (‘Samad’),5 extracted below. Samad v District Court of New South Wales (2002) 209 CLR 140 High Court of Australia [In this case, the High Court had to interpret cl 149(f ) of the Poisons and Therapeutic Goods Regulation 1994 (NSW). Clause 149 provided: The Director-General may suspend or cancel a licence or authority on any one or more of the following grounds: (a) the holder of the licence or authority requests or agrees in writing to the suspension or cancellation of the licence or authority, (b) the holder of the licence or authority contravenes any condition of the licence or authority, (c) the holder of the licence or authority is convicted of an offence against the Act or this regulation, or of an offence against the Drug Misuse and Trafficking Act 1985 or any regulation in force under that Act, or an order is made under section 556A(1) of the Crimes Act 1900 in respect of such an offence, (d) the holder of the licence or authority is, in the opinion of the Director-General, no longer a fit and proper person to hold the licence or authority, (e) the annual fee for the licence is not duly paid, (f ) in the case of a licence or authority to supply methadone, the supply of methadone is causing disruption to the amenity of the area in which the premises from which it is being supplied are situated.

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The case concerned a licence to supply methadone. The Director-General of the New South Wales Department of Health concluded that the appellants’ methadone clinic was causing disruption to the area in which the clinic was situated. The issue was whether, if grounds had been established under cl 149(f ), the Director-General was obliged to either suspend or cancel the licence or whether the Director-General could exercise a discretion whether to suspend or cancel the licence. The Court of Appeal preferred the first interpretation. Beazley JA, with whom Stein and Heydon JJA agreed, said of cl 149: ‘The word “may” is directed, not to a discretionary exercise of the power as such but to its manner of exercise. It empowers the Director-General to engage one of two alternative sanctions: suspension or cancellation’. However, in the High Court Gleeson CJ, Gaudron, McHugh, Gummow and Callinan JJ unanimously concluded that the second interpretation was the correct one.] Gleeson CJ and McHugh J [at 152–3]: When a statutory power is conferred by the use of words of permission, there may arise a question whether the effect is to impose an obligation, or, at  least, an obligation that must be performed in certain circumstances. Even where it is plain that the intention of the legislature was permissive, questions may arise as to the nature of the considerations that the person in whom the power is confided may be entitled or bound to take into account in the exercise of the discretion conferred. Issues of this (2002) 209 CLR 140.

5

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CHAPTER 14 Statutory Obligations and Discretions

kind are to be resolved as a matter of statutory interpretation, having regard to the language of the statute, the context of the relevant provision, and the general scope and objects of the legislation: Ward v Williams (1955) 92 CLR 496, 505 (Dixon CJ, Webb, Fullagar, Kitto and Taylor JJ). As was pointed out in Ward v Williams (at 506) there is a long history of legislative intervention in New  South  Wales ‘to restrain the development of the notion that permissive words may have a compulsive effect’. The current provision is s  9 of the Interpretation Act 1987 (NSW) which, except in so far as the contrary intention appears in an Act or instrument (s 5), provides that the word ‘may’, if used to confer a power, indicates that the power may be exercised or not, at discretion. An example of a statutory provision in which a contrary intention appeared may be seen in Finance Facilities Pty Ltd v  Federal Commissioner of Taxation (1971) 127 CLR 106. Section  46(3) of the Income Tax Assessment Act  1936 (Cth) provided that, if the Commissioner was satisfied that certain conditions as to non-payment of dividends were fulfilled, the Commissioner ‘may allow’ a private company a rebate in its assessment. This Court held that, if the Commissioner was satisfied of the specified condition, then he was obliged to allow the rebate. The taxpayer had a right or entitlement. The context indicated that it was not intended that the Commissioner should have a discretionary power to defeat that right or entitlement. The word ‘may’ conferred a power; and the statutory intention was that the power be exercised if the condition was fulfilled  … If the Court of Appeal is right, then the same conclusion (ie that the only choice available to the Director-General is either to suspend or cancel a licence) must follow whichever of the grounds set out in the clause applies. The opening words of the clause must have the same meaning in their application to each ground. Consider paras (b) and (e). A contravention of a licence condition, or a failure to make due payment of a licence fee, could occur in circumstances that are technical, or trivial, or accidental, or readily excusable. What legislative purpose would be served by depriving the Director-General of the capacity to excuse such a contravention or failure, or to seek to deal with it by some means short of suspension or cancellation?

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Gaudron, Gummow and Callinan JJ [at 162]: In submissions to this Court, the Director-General appeared to concede that, whilst there may be no duty in respect of some of the grounds specified in cl 149, that was not the case with respect to para (f ). It may, for present purposes, be accepted that, as a matter of construction, the opening words of cl 149 may have such a distributive operation upon the various grounds then spelled out. That however does not mean that the submission with respect to para (f ) is made good. The paragraph uses the continuous present ‘is causing disruption’. It should be accepted that, in many cases, the very grant of a licence will from the time of the grant be productive of some disruption to the amenity of the area in which the premises from which the methadone is to be supplied are situated. With the passage of time and the change of circumstances, that disruption may diminish or be exacerbated. It would be an odd construction of para  (f ) to require [suspension or] cancellation wherever there was an exacerbation to any degree.

In Samad we can see the High Court considering whether ‘may’ imposed a discretion or obligation, and an emphasis that this question is to be answered, as Gleeson CJ and McHugh J state, as a ‘matter of statutory interpretation, having regard to the language Creyke, Robin, et al. Laying down the Law, LexisNexis Butterworths, 2020. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6413182. Created from monash on 2021-02-09 18:39:49.

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of the statute, the context of the relevant provision, and the general scope and objects of the legislation’.6 Note the reasoning process used by the Justices here, which in both judgment extracts attempted to divine the purpose of these provisions by considering not only the specific facts and paragraph in question, but various hypothetical situations and asking the question, would the legislature intend the cancellation or suspension to be compulsory here too? If the answer is no, then whether to exercise the power to cancel or suspend, and not just the choice between cancellation or suspension, must be discretionary, rather than obligatory. This type of hypothetical reasoning is also applied to the question of whether the violation of a statutory obligation invalidates a decision or action: see 14.8–14.9. Gleeson  CJ and McHugh  J considered the particular provision in context: they examined not only the particular paragraph under which the licence had been cancelled — para  (f) causing disruption — but also paras (b) and (e): contravention of a licence condition, and failure to pay a fee, respectively. They concluded that as it was unlikely the legislature intended for obligatory suspension or cancellation for a minor breach of these requirements, then it must be the case that obligatory suspension was also not intended for a breach of para (f).The other Justices also considered hypothetical situations in relation to para (f) — would the legislature have intended obligatory suspension or cancellation for any variation in disturbance? They answered this in the negative.

How to determine whether breach produces invalidity

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14.8

14.9

Assume that legislation clearly imposes an obligation or lays down a condition. Now assume that there has been a failure to perform that obligation or to comply with that condition. In such circumstances there may be an issue as to the consequences of that breach of obligation or lack of compliance. This issue is a particularly difficult one because the court must produce a result in circumstances that are necessarily outside the contemplation of Parliament. The courts, applying ordinary principles of interpretation, must in effect impute an intention to Parliament as to the consequences of a failure to comply. Older cases would often use a distinction between ‘mandatory’ and ‘directory’ provisions. ‘Mandatory’ provisions were those that were essential preconditions to the exercise of a power; ‘directory’ provisions were procedural conditions. Only breaches of ‘mandatory’ provisions resulted in invalidity. Following the High Court decision in Project Blue Sky Inc v Australian Broadcasting Authority (‘Project Blue Sky’),7 extracted below, the use of this terminology has been discouraged. The focus instead is on ‘whether it was the purpose of the legislation that an act done in breach of the provision should be invalid’.8 Some guidelines for carrying out this task were laid down in Project Blue Sky. As we shall see, the reasoning process for determining invalidity overlaps to a degree with that used in determining obligation or discretion in Samad above.

Ibid 152. (1998) 194 CLR 355. 8 Ibid 390–1 [93] (McHugh, Gummow, Kirby and Hayne JJ); see also Pearce (n 4) 387–8 [11.1]. 6 7

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CHAPTER 14 Statutory Obligations and Discretions

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 High Court of Australia [The Australian Broadcasting Authority (ABA) had made a ‘program standard’, known as the Australian Content Standard, which provided that in 1997 at  least 50% of television programs broadcast between 6  am and midnight must be Australian, rising to 55% from 1 January 1998. The Australian Content Standard had been made pursuant to the Broadcasting Services Act 1992 (Cth). Section 160 of that Act provided: The ABA is to perform its functions in a manner consistent with: (a) the objects of this Act and the regulatory policy described in section 4; and (b) any general policies of the Government notified by the Minister under section 161; and (c) any directions given by the Minister in accordance with this Act; and (d) Australia’s obligations under any convention to which Australia is a party or any agreement between Australia and a foreign country.

The High Court decided that cl 9 of the Standard breached para (d) of s 160 because it gave preference to Australian television programs, contrary to obligations arising under a trade agreement and protocol between Australia and New  Zealand. The Justices who delivered a joint judgment allowing the appeal from the decision of the Full Court of the Federal Court considered whether, as a consequence of that breach, cl 9 of the Standard was invalid and of no effect. They held that it was not. Brennan CJ, who also allowed the appeal, took an approach that made it unnecessary for him to consider this issue.]

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McHugh, Gummow, Kirby and Hayne JJ [at 388]: An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied: Howard v Bodington (1877) 2 PD 203, 211 (Lord Penzance); there is not even a ranking of relevant factors or categories to give guidance on the issue. Traditionally, the courts have distinguished between acts done in breach of an essential preliminary to the exercise of a statutory power or authority and acts done in breach of a procedural condition for the exercise of a statutory power or authority. Cases falling within the first category are regarded as going to the jurisdiction of the person or body exercising the power or authority. Compliance with the condition is regarded as mandatory, and failure to comply with the condition will result in the invalidity of an act done in breach of the condition. Cases falling within the second category are traditionally classified as directory rather than mandatory … if the statutory condition is regarded as directory, an act done in breach of it does not result in invalidity …

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In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood [1978] 1 NSWLR 20, 23–4; see  also Victoria v Commonwealth and Connor (1975) 7 ALR 1 (Gibbs  J) in criticising the continued use of the ‘elusive distinction between directory and mandatory requirements’ … The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning … That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory … A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to ‘the language of the relevant provision and the scope and object of the whole statute’: Tasker v Fullwood [1978] 1 NSWLR 20, 24 … The fact that s 160 regulates the exercise of functions already conferred on the ABA rather than imposes essential preliminaries to the exercise of its functions strongly indicates that it was not a purpose of the Act that a breach of s 160 was intended to invalidate any act done in breach of that section. That indication is reinforced by the nature of the obligations imposed by s 160. Not every obligation imposed by the section has a rule-like quality which can be easily identified and applied. Thus, s 160 requires the functions of the ABA to be performed in a manner consistent with: • the objects of the Act and the regulatory policy described in s 4; • any general policies of the Government notified by the Minister under s 161; • any directions … given by the Minister in accordance with the Act.

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In particular situations, it is almost certain that there will be room for widely differing opinions as to whether or not a particular function has been carried out in accordance with these policies or general directions. When a legislative provision directs that a power or function be carried out in accordance with matters of policy, ordinarily the better conclusion is that the direction goes to the administration of a power or function rather than to its validity: compare Broadbridge v Stammers (1987) 16 FCR 296, 300. Furthermore, while the obligations of Australia under some international conventions and agreements are relatively clear, many international conventions and agreements are expressed in indeterminate language, as the result of compromises made between the contracting State parties … Often their provisions are more aptly described as goals to be achieved rather than rules to be obeyed. The problems that might arise if the performance of any function of the ABA carried out in breach of Australia’s international obligations was invalid are compounded by Australia being a party to about 900 treaties … Courts have always accepted that it is unlikely that it was a purpose of the legislation that an act done in breach of a statutory provision should be invalid if public inconvenience would be a result of the invalidity of the act: Montreal Street Railway Co v Normandin [1917] AC 170, 175 … Having regard to the obligations imposed on the ABA by s 160, the likelihood of that body breaching its obligations under s 160 is far from fanciful, and, if acts done in breach of s  160 are invalid, it is likely to result in much inconvenience to those members of the public who have acted in reliance on the conduct of the ABA.

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CHAPTER 14 Statutory Obligations and Discretions

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Among the functions of the ABA, for example, are the allocation and renewal of licences (s  158(c)) and the design and administration of price-based systems for the allocation of commercial television and radio broadcasting licences (s  158(e)). It is hardly to be supposed that it was a purpose of the legislature that the validity of a licence allocated by the ABA should depend on whether or not a court ultimately ruled that the allocation of the licence was consistent with a general direction, policy or treaty obligation falling within the terms of s 160. This is particularly so, given that the ‘general policies of the Government notified by the Minister under section  161’ unlike the ‘directions given by the Minister in accordance with this Act’ (see s 162(2)) are not required to be publicly recorded and that even those with experience in public international law sometimes find it difficult to ascertain the extent of Australia’s obligations under agreements with other countries. In many cases, licensees would have great difficulty in ascertaining whether the ABA was acting consistently with the obligations imposed by s 160. Expense, inconvenience and loss of investor confidence must be regarded as real possibilities if acts done in breach of s 160 are invalid. Because that is so, the best interpretation of s 160 is that, while it imposes a legal duty on the ABA, an act done in breach of its provisions is not invalid.

As we can see again, in Project Blue Sky the High Court did not confine itself to the particular paragraph (s 160(d)) nor the particular facts, but rather considered whether it would have been the legislature’s intention for any breach of s 160 to produce invalidity. In concluding the negative, the High Court had regard to a number of considerations that should not be considered exhaustive, but would be relevant considerations in relation to the question of invalidity. These include: • Does the provision regulate the exercise of a power already granted, rather than state preliminaries to the exercise of a power? A failure to satisfy the preliminaries to exercising a power can result in jurisdictional error — which results in invalidity. In Project Blue Sky, however, the provision regulated a power, rather than setting out the preliminaries for exercising the power. • Does the obligation have a ‘rule like quality’? This is difficult to identify and apply consistently. In this case, the obligation did not have a rule-like quality, because considerations of policy and international law were involved. • Does invalidity in any circumstance (not just the particular circumstance) produce significant inconvenience? Such a consideration is also involved in overturning precedent — it is not in and of itself determinative. Importantly, in asking the questions, the courts consider not only the particular breach of the provision, but whether any breach of the provision ought to produce invalidity. EXERCISE 17: STATUTORY OBLIGATIONS AND DISCRETIONS Answer the following problems assuming that they arise within your state or territory. In this exercise the statutory provisions quoted are fictitious, although some are based on real cases. As with any problems that involve giving legal advice, the task is to identify the issue(s), articulate the arguments, reach conclusions and give reasons for those conclusions. Bear in mind that your advice is likely to be more valuable if you consider both arguments

14.10

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and counter-arguments. But do not waste effort formulating arguments that you consider to be without merit. A suggested answer is provided with the sample problem. Sample problem Section 151 of the Electoral Act 1902 provided: In elections for members of the House of Representatives the voter shall mark his ballotpaper by making a cross in the square opposite the name of the candidate for whom he votes.

Section 132 of the Act provided: Ballot-papers to be used in the election of members of the House of Representatives may be in the form P in the Schedule.

A ballot-paper, in the form set out in the schedule (that is to say, containing rectangles instead of squares), was marked as follows: Blackwood Chanter X

Is the above vote valid? Suggested answer

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The issue is whether under s 151 a voter may only cast a valid vote by placing a cross in a square opposite the name of the preferred candidate. At first glance, the presence of the word ‘shall’ in s 151 may appear to resolve the issue, since ‘shall’ suggests an obligation to place a cross in a square opposite the name of the candidate. However, if a contextual approach is adopted, a different solution emerges. The ballot-paper had rectangles, not squares, opposite the candidates’ names; and under s 132 ballot-papers did not have to be in the form P set out in the schedule. The reason is that s 132 provides that ballot-papers ‘may’ be in the form P in the schedule. Therefore, to give both sections operative effect, it can be concluded that to cast a valid vote it is obligatory to make a cross opposite the name of the preferred candidate, and discretionary to place the cross in a square. So the answer to the question posed would be:Yes. Problems 1. Section 7(4) of the Courts Act 1971 provided: The trial of a person committed by a magistrates’ court shall, unless the Court has otherwise ordered, begin not later than the expiration of the prescribed period beginning with the date of his committal. Rules prescribed a period of 56 days.

By an administrative oversight, the trial of a defendant did not begin until 50 days after the end of the period prescribed by the rules. Twenty-one days after the expiry of the 56-day period, the court ordered an extension of time of 28 days 452

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CHAPTER 14 Statutory Obligations and Discretions

from the end of the period prescribed by the rules. The defendant was convicted and sentenced to 2 years’ imprisonment. What could you argue for him on his appeal? Would the argument be successful? 2. Section 7 of the Civil Proceedings (Felons) Act 1995 provided: A person who is in custody as a result of having been convicted of a felony may not institute any civil proceedings in any court except by the leave of that court.

Section 8 of the Act provided: A court shall not, under section 7, grant leave to a person to institute proceedings unless the court is satisfied that the proceedings are not an abuse of process.

Tao was serving a sentence of imprisonment for a felony. One day he was attacked by another prisoner, sustaining serious injuries. He instituted civil proceedings against the prison authority, alleging negligence on the part of its employees. At the trial the prison authority applied for Tao’s action to be struck out, although it conceded that the proceedings were not an abuse of process. At that stage Tao sought leave to institute proceedings under s 7. How should the court resolve these applications? 3. Section 70 of the Australian Broadcasting Corporation Act 1988 provided: The Corporation shall not, without the approval of the Minister, enter into a contract under which the Corporation is to pay or receive an amount exceeding $500,000.

Section 71 of the Act provided:

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The moneys of the Corporation shall not be expended otherwise than in accordance with the estimates of expenditure approved by the Minister.

The Australian Broadcasting Corporation made a contract with Bruce to purchase from him, for $750,000, land for the construction of a television studio.The approved estimates made provision for an expenditure of up to $800,000 for such a purpose. Due to an oversight, the Minister had not approved the contract. Now the corporation argues that it is not under any obligation to Bruce. Advise Bruce.

Further reading • For a comprehensive and consolidated list of further reading sources on statutory interpretation, see Chapter 10. To enhance your learning experience, use the student resources available on Lexis® Learning See the Visual Preface at the front of this book on how to register.

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CHAPTER

15

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Applying Legislation to Complex Problems

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Introduction 15.1 Practical guide to interpretation of legislation 15.2 Interpreting the Wild Dog Destruction Act: question and answer 15.3 EXERCISE 18: Interpreting the Graffiti Control Act 15.4 EXERCISE 19: Interpreting the Impounding Act 15.5

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EXERCISE 20: Interpreting the Dividing Fences Act 15.6

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CHAPTER 15 Applying Legislation to Complex Problems

Introduction This chapter deals with how to apply legislation to a given set of facts. Of course, a substantial part of the task is to identify and locate relevant legislation. Those matters are dealt with in Chapter  19. Here, legislation that is relevant to a problem has been identified.The task of students attempting Exercises 18 and 19 below is to locate certain legislation and then to apply it to the facts.To assist in this task, a checklist is set out below, together with an example of a problem based on a short Act, accompanied by a suggested answer to the questions asked.

15.1

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Practical guide to interpretation of legislation Here is a checklist to use when dealing with complex problems of interpretation. Not all of these steps are necessary in every case. 1. Establish whether the legislation was in force at the relevant date. If it later commenced operation, check whether it applies retrospectively to the problem. 2. Using the table of contents and the headings, check through the legislation seeking relevant provisions. 3. When a relevant provision has been found, read it carefully, observing any words or phrases that appear significant. 4. Check whether any of those words or phrases are defined in the legislation. 5. If necessary, check the meaning of any key words in a dictionary. 6. Consider whether any provisions of the relevant interpretation legislation are in point. 7. Check whether any of the adjacent provisions in the legislation throw light on a relevant provision, remembering that words are normally used consistently. 8. If appropriate, check whether any relevant provision has been judicially interpreted. 9. Attempt to interpret the words according to their ordinary meaning or, where appropriate, their technical or legal meaning, and try to apply them to the problem. 10. Attempt to identify the purpose of the legislation, or of a particular provision, and try to interpret the words consistently with that purpose. 11. If a provision is ambiguous or obscure or, taking account of its context and underlying purpose or object, its ordinary meaning leads to an absurd or unreasonable result, reference may be made to parliamentary, executive and related materials to determine the meaning of the provision. 12. If the preconditions referred to in 11 are not present, reference may be made to relevant extrinsic materials to discover the mischief or defect addressed. 13. Interpret a provision against a background of any relevant common law presumptions.

15.2

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Interpreting the Wild Dog Destruction Act: question and answer 15.3

The following is a sample complex statutory interpretation problem based on a piece of New South Wales legislation (as it stood at April 2017). Attempt to answer the question in a methodical fashion, applying the principles considered in Chapters 10–14. Note that not all principles will necessarily be relevant to every problem. Sam Keen is a law student doing voluntary work at the Broken Hill Legal Advice Centre in New South Wales.The duty solicitor has asked him for a report on the following matter:

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Last year Bill Blake purchased a small Crown pastoral lease a few kilometres out of Broken Hill. Several months ago he found a dingo pup on his property. Bill took it home and telephoned the Wild Dog Destruction Board, asking for permission to keep it. A few days later he received a letter from the Board, authorising him to keep the dingo, but advising him to ensure that it was tied up. A month ago it got off the chain and since then Bill has been unable to catch it. Bill’s neighbours saw the dingo wandering around on Bill’s property. They complained about it to the Wild Dog Destruction Board. Last week Arch Huggins, a Board member (the nominee of the Broken Hill Rural Lands Protection Board), went out to take a look. The dingo walked over and licked Arch’s hand, but Bill’s blue heeler dog viciously attacked Arch, knocking him to the ground and biting his leg. Later that day the neighbours told Arch that the dingo was quiet and friendly but that recently the blue heeler had attacked them several times and was now very dangerous. The following day, Arch gave a full report on the visit at a meeting of the Board, as a result of which the Board prepared a notice addressed to Bill, requiring him to arrange for both the dingo and the blue heeler dog to be destroyed. The notice specified that this was to be done within 24 hours of receipt of the notice. Arch drove out to Bill’s property later that day and gave the notice to him.That evening, Bill telephoned Vince Dunn, a veterinary surgeon, asking him to come out and destroy the animals.Vince said that he was very busy, but that he would get out there as soon as he could. Yesterday, two days after his last visit, Arch called in again at Bill’s place and saw both the dingo and the blue heeler. Bill explained to Arch what Vince had said. This morning, after receiving a report of these events from Arch, the Board resolved that, in the exercise of authority granted by s 8 of the Wild Dog Destruction Act 1921 (NSW), Bill would be required to pay a fine of $500 unless he informed the Board in writing forthwith after receiving written notice of the Board’s resolution that he had complied with the Board’s original notice. When Arch delivered the notice of this resolution to Bill, Bill told Arch that Vince had just destroyed the animals. When Arch reported this back to the Board it decided that Bill should be fined because he had not shown in writing that he had complied with the notice.

The duty solicitor instructed Sam to consult the Wild Dog Destruction Act 1921 (NSW) and, if necessary, any Act that is referred to in that Act, but without consulting any other legislation (apart from the Interpretation Act 1987 (NSW)) nor referring to any cases which interpret the Act.

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CHAPTER 15 Applying Legislation to Complex Problems

He then told Sam to write him some notes, dealing with the following issues, taking care to set out each step of his reasoning and to include references to relevant provisions of both the Wild Dog Destruction Act 1921 and the Interpretation Act 1987: (a) Broken Hill falls within Lot 1901, Deposited Plan 1133899, recorded with the office of the Registrar General. Is this significant in terms of the application of the Act? (b) Bill has been told that the Board’s notices are invalid because they were not sent by registered letter (see s 23 of the Wild Dog Destruction Act 1921). Is this correct? (c) What is the underlying purpose or object of s 6 of the Wild Dog Destruction Act 1921? (d) Is the dingo pup (see s 26 of the Wild Dog Destruction Act 1921) or the blue heeler a ‘wild dog’ within s 6, and does the section apply if only one of them is a ‘wild dog’? (e) Has there been a breach of s 7? (f) Assuming that there has been a breach of s  7, did the Board have the authority to impose the $500 fine under s 8?

Here are Sam’s notes, written early in 2014: (a) Application of the Act to the Broken Hill area

Yes, the location of the property is significant. Section 2 provides that the Wild Dog Destruction Act 1921 applies only to the ‘Western Division’ and that term is defined in s 3 by reference to its meaning in the Crown Lands Act 1989. Section 4(2A) of the 1989 Act provides, subject to any regulations made under sub-s (3), that the Western Division comprises that part of the state depicted in Lot 1901, Deposited Plan 1133899, recorded in the office of the Registrar-General.

(b) Validity of service

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No, it is not correct that the Board’s notices are invalid because there were not sent by registered letter. Section 23 provides that service of notice ‘may be served by registered letter’. The question of whether or not a provision imposes an obligation or discretion is determined by the application of the ordinary rules of statutory interpretation: Samad v District Court of New South Wales (2002) 209 CLR 140. In considering the language of the provision, the use of the term ‘may’ suggests that the use of registered mail is discretionary, as does s 9(1) of the Interpretation Act 1987, which associates ‘may’ with the exercise of a power. It would seem that service could be achieved in the usual way by regular post, as outlined in s 76 of the Interpretation Act 1987, but that service by registered letter was also available, in recognition of the difficulty of finding people in the vast area of the Western Division.

(c) Underlying purpose of object of s 6

In relation to the underlying purpose or object of s  6, s  33 of the Interpretation Act 1987 provides that an interpretation of a provision that would promote its underlying purpose or object is to be preferred to one that would not. It seems clear from the long title and the other provisions of the Act that it contains a series of measures designed to promote the ‘control or eradication’ (see s 20(e1)) of wild dogs in the Western Division. The Act itself does not indicate the reasons for promoting the control or eradication of wild dogs, but it is generally known that it is to reduce the threat to grazing animals which is posed by these animals. The reduction of the threat to humans may be an incidental purpose of the Act. The purpose of s 6 appears to be to require individual owners or occupiers to take measures which are likely to result in the destruction of wild dogs suspected of

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being on the owners’ or occupiers’ land. There are several ways in which this could be done, including shooting, trapping and the laying of poison baits. It appears from s 4 that measures taken shall be at the cost of the owner or occupier. (d) Wild dogs

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Is the dingo pup a ‘wild dog’ within s 6? The term ‘wild dog’ is defined in s 3. The dingo pup appears to be covered by the part of the definition which provides that ‘wild dog includes any dingo’. If the dingo pup was the only ‘wild dog’ that the Board had reason to believe was on Bill’s land, s 6 would be applicable, because s 8 of the Interpretation Act 1987 provides that a reference to a word in the plural form includes the singular form. It may be argued on Bill’s behalf that, because he has the Board’s written authorisation to keep the dingo, s 6 is inapplicable. The better view would be that any protection afforded by this authorisation against a successful prosecution under s 26 has been negated by the Board’s notice to Bill. In any case, it might be concluded that the authorisation no longer protects Bill because he no longer has possession of the dingo. Is the blue heeler a ‘wild dog’ within s 6? Under the definitions of that term in s 3, the only possibility is that it is a ‘dog which has become wild’. When this term is considered in the context of the other definitions of ‘wild dog’ it appears to mean a domestic dog that has ceased to have the characteristics that make it domestic. This has not occurred in the case of the blue heeler, which appears merely to have undergone a change of temperament. However, a broader interpretation, which takes account of the underlying purpose or object of the section, would be that the term covers a dog that has developed the characteristics of the dingos and other dogs referred to in the definition. On this interpretation, the term would apply to the blue heeler. An intermediate interpretation would be to limit the relevant characteristic to the capacity or inclination to kill or injure grazing animals. In the absence of evidence of a tendency of the blue heeler to engage in such behaviour, the definition would not apply. Whatever the conclusion in relation to the blue heeler, however, the requirements of s 6 appear to be satisfied.Therefore, the Board acted within its authority in giving Bill a notice in the terms described.

(e) Breach of s 7 deeming provision: a provision that includes material within the ambit of a statute, irrespective of whether or not it would actually be included



This section is a deeming provision. The first question to ask is whether Bill commenced to comply with the notice ‘forthwith’: see s 7(a). As he contacted Vince within a few hours of being given the notice and as the notice allowed for 24 hours within which to comply with the instruction, it may be concluded that this does not represent a failure to comply. But Bill let 24 hours lapse at the end of which the animals still had not been destroyed, without taking additional steps to ensure compliance with the notice. As to this, the question is whether that amounts to a deemed failure to comply. Perhaps it should be concluded that as Bill may have been able to summon another veterinary surgeon, or devise another method for destroying the animals or having them destroyed, there has been a failure to comply with s 7.

(f) Validity of fine

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Section 8(1) confers the right to impose a penalty and so should be considered a penal provision and strictly construed: see, for example, Chew v The Queen (1992) 173

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CHAPTER 15 Applying Legislation to Complex Problems

CLR 626, 632 (Mason CJ, Brennan, Gaudron and McHugh  JJ). Before exercising the authority conferred by s 8, to give notice requiring Bill to pay to the Wild Dog Destruction Fund the amount determined by the Board, the Board was obliged to give Bill the opportunity of showing that he had complied with the original notice.This was not done. Section 8(1) provides that the owner or occupier is to be given the opportunity of showing ‘by writing or otherwise’ that he or she has complied with the notice. This provision might be considered ambiguous, as it does not indicate who is entitled to choose the means of communication. As the provision is penal in nature, it should be concluded that the choice of the means of communication lies with the owner or occupier. Therefore, the Board was not entitled to reject the verbal notice that the animals had been destroyed. As the section does not expressly require the notice to be given directly to the Board, notice to Arch as an agent of the Board should be sufficient. But did Bill’s statement to Arch amount to a statement that he had complied with the original notice? As to this, see the answer to (e). Perhaps the Board should decide that, although there has not been strict compliance with the original notice, as the animals have been destroyed the matter should not proceed further. In any case, s 8 does not give the Board authority to fine in the strict sense. It may only require the payment of a predetermined amount to the Wild Life Destruction Fund.

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EXERCISE 18: INTERPRETING THE GRAFFITI CONTROL ACT After reading ‘Interpreting the Wild Dog Destruction Act: question and answer’ above, read and carry out the instructions below. You are a solicitor employed by Town and Country Solicitors, Tenterden, New South Wales. Michelle Cho, General Manager of the Tenterden Council, comes to see you early in 2020. She tells you the following stories, which you should assume are correct. A proposal to establish a new coal mine in the district has been the subject of fierce debate. A few days ago council workers discovered that a sloping grassy area in the public gardens controlled by the council, which are bounded on all sides by streets, had been interfered with. An examination of the area disclosed that a shed at a nearby sports ground had been broken into and a line marker had been taken and used to write ‘NO MINE’ in lime on the freshly mown grass. In addition, posters were placed on trees within the town’s only school with the same message. The posters and words can be seen from the street. When, a few days later, the council workers hosed the lime off they discovered that the words had been burned into the grass. Tests have revealed that ‘Windup’, a poison used to kill grass and weeds, had been mixed with the lime. The grass will grow back, but this will take a few weeks. In the meantime Selina Smart, an opponent of the mine, admitted to the local newspaper that she was responsible and the newspaper published Selina’s story. Michelle also tells you that last Saturday she sent her 15-year-old son, Walter, down to her brother’s place to borrow a can of red spray paint. She wanted to paint her wheelbarrow. She explains that on his way home Walter stopped off at the local public swimming pool to see some friends. Constable Starling, who knew that Walter was 15 years old, was on duty and happened to be at the pool. He asked Walter what he was doing with the paint can. Walter replied: ‘I don’t have to answer your dumb questions’,

15.4

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whereupon Constable Starling took the can from Walter and threw it in a rubbish bin. Walter went home and told Michelle what had happened. Michelle wishes to know whether Selina has committed offences under the Graffiti Control Act 2008 (NSW). Michelle also wants to know whether Constable Starling was entitled to take the can and throw it in the bin. Walter said the can was nearly empty anyway. Prepare written responses to Michelle’s questions below. Identify any issues of interpretation and set out each step of your reasoning. Include references to relevant provisions of the Graffiti Control Act 2008 (NSW) and the Graffiti Control Regulation 2014 (NSW). You may also wish to refer to the second reading speech of the Honourable Penny Sharpe, Parliamentary Secretary, who introduced the Graffiti Control Bill into the Legislative Council on 26 November 2008. (a) Did Selina commit an offence under s 4 of the Act? If so, is it an aggravated offence? (b) Did Selina commit an offence under s 6 of the Act? Michelle is familiar with the definition of ‘public place’ in the Local Government Act 1993 (NSW). Does ‘public place’ in s 6 have the same meaning as in that Act? (c) Has Constable Starling acted in accordance with s 9 of the Act and regs 4 and 5 of the Graffiti Control Regulation 2014? EXERCISE 19: INTERPRETING THE IMPOUNDING ACT

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15.5

462

After reading ‘Interpreting the Wild Dog Destruction Act: question and answer’ above, read and carry out the instructions below. You are a solicitor employed by Friendly Solicitors, Coonabarabran, New South Wales. In March 2014 Phil Friendly, one of the partners in the firm, hands you some notes that he made following a meeting with a client, Sally Galvin. These notes appear below. Phil has asked you to assume that the information contained in the notes is accurate. Sally Galvin owns a hobby farm within the Coonabarabran Council area 3  km out of town, on which she grazes cows. She lives there with her elderly mother and her son. Sally’s neighbour on one side is David Huang, who also runs cattle. David has leased a bull from another neighbour, Terry Thomas, whose place is 25 km further out. On five occasions in the last four weeks Sally has discovered that the bull has jumped the dividing fence, which is in good condition, and got in with her cows. Each time, Sally has notified David, who has come around in his truck and collected the bull. Early this morning, after Sally once again found the bull in with her cows, she rang David and explained that she had put it in her cattle yards, adding: ‘This time you’re not getting it back. Ring Terry Thomas and tell him I’ve impounded his bull and he can come and get it. And tell him to take it back to his place. I don’t want to see it in my place again.’ The bull had cut one of its hind legs, probably when getting over the fence. Sally has given it a penicillin injection and she says it will be OK. But she will not hand the bull back until David or Terry pays her $15, which is the cost of the penicillin. Before driving into Coonabarabran this morning to do her shopping, Sally filled the water trough at the yards and tossed the bull some hay.

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CHAPTER 15 Applying Legislation to Complex Problems

While Sally was in Coonabarabran her mother saw David Huang drive down the road, open Sally’s front gate, hunt one of Sally’s cows through the gate onto the busy road, close the gate and drive away. (David Huang has since apologised to Sally for his behaviour.) Soon after, Errol Schute, the impounding officer of the Coonabarabran Council, arrived in a council vehicle. Errol attempted to hunt the cow down the road towards town, intending to put it in the council’s pound which was 2 km away, but it kept turning back towards Sally’s place. (Errol has since discovered that the cow had a small calf back in the paddock.) The cow got madder and madder and Errol became apprehensive that it might run out and hit a vehicle travelling along the road. So he took out a gun and shot it, killing it instantly. A few days ago, Sally’s son Ivan parked his old Ford Falcon (with registration label still attached) outside the front gate of his mother’s property. He placed on it a sign ‘Free to good home’. Various parts of the car were soon removed but the chassis and body remained. Yesterday, Constable Brenda Nevin of the local police arrived and stopped by the car. Unknown to Sally and Ivan and without making any checks as to ownership, she arranged for the vehicle to be taken to the council’s recycling depot, where it was quickly reduced to scrap. Please consult the Impounding Act 1993 (NSW). It is available on the web.You will need to read the whole Act carefully. There is no need to consult any other legislation (apart from the Interpretation Act 1987 (NSW)). Do not consult reports of parliamentary debates or explanatory memoranda as these are unlikely to be of assistance. Nor need you refer to any cases interpreting the 1993 Act. Write some notes, addressing the following matters.Take care to set out each step of your reasoning and to include references to relevant provisions of the Act: (a) Advise Sally of her rights and responsibilities with respect to the bull under pt 2 divs 1 and 3 of the Impounding Act 1993. (b) Was Errol permitted by pt 2 divs 1 and 2 of the Impounding Act 1993 to act as he did? (c) Was Constable Nevin permitted by pt 2 divs 1 and 4 of the Impounding Act 1993 to act as she did? EXERCISE 20: INTERPRETING THE DIVIDING FENCES ACT Julia owns a rectangular-shaped property bordered on three sides by her neighbours, all of whom own their land: Nathan to the north, Evan to the east and Wesley to the west. They all live on rural lots within the City of Albany local government area in Western Australia. In September 2020, Julia is having issues with the boundary on the north. An old wooden fence running along the boundary sufficed to keep Nathan’s sheep on his property. While Julia was on an overseas trip, a fire burned part of the fence and also caused trees to fall and destroy other parts, damaging approximately one-third of the fence. In order to keep his sheep in, Nathan hired not one but two fencing contractors to build a new section of fence at great haste (before Julia’s return). This new section, built with wire and posts, is of far superior quality to the remaining wooden fence and cost more than a replacement wooden fence would have ($5000 more in materials). The number of contractors increased the cost ($15,000, as opposed to $10,000 if it had been

15.6

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one contractor). The fire was started by a dead tree falling onto powerlines on Julia’s property. Julia had noticed the tree was in danger of falling, but had decided to address the issue after returning from her trip. Nathan wishes Julia to pay the entire cost of the new fence. Julia believes that she should have been served notice before the repairs were made, and that in any event replacing the section with a cheaper wooden fence would have been sufficient. Answer the following questions based on the application of the Dividing Fences Act 1961 (WA). Consider also the relevance of the provisions of the Interpretation Act 1984 (WA) and the City of Albany Local Fencing Law 2010 as well as the cases Halvorsen v Baumgartner [2014] WADC 129 and Krysiak v Housing Authority [2019] WADC 162. (1) Can Nathan claim from Julia the whole amount of the cost of erecting the wire and post fence, or are Julia’s concerns valid? Questions to consider here include: (a) What is the procedure in the Act applicable to repairing/replacing damaged fencing? Has it been followed? (b) Is this ‘repairing’ a fence or ‘replacing’ it? Does this affect the procedure that applies? (c) What constitutes a ‘sufficient’ fence in a rural lot? Does the old fence meet this requirement? Does the replacement one? (d) Under what circumstances can the whole cost of repair be claimed from an owner? Do they arguably apply here or not? (2) Find the Minister’s second reading speech introducing the Dividing Fences Bill and consider: (a) What light does this shed on the purpose of the Act? (b) Under what legal principles could this speech be used in court to assist in interpreting the Dividing Fences Act 1961 (WA)?

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To enhance your learning experience, use the student resources available on Lexis® Learning See the Visual Preface at the front of this book on how to register.

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PART

4 Legal Research 467

17 Searching for Secondary Sources

485

18 Searching for Case Law

505

19 Searching for Legislation

525

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16 Legal Research — Approaches and Steps

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CHAPTER

16 Legal Research — Approaches and Steps Knowledge is of two kinds. We know a subject ourselves, or we know where we can find information upon it.1 Samuel Johnson, 18 April 1775, in James Boswell, Life of Johnson (LF Powell’s revision of GB Hill’s ed, 1934) vol II, 365.

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1

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Introduction 16.1 Why legal research skills are important 16.2 Goals and constraints 16.5 Strategic approach to legal research 16.8 −− Step I. Identify and analyse the facts

16.11

•

S — Situation and subject matter 16.13

•

H — Harm 16.14

•

A — Actors involved 16.15

•

R — Remedy or relief 16.16

•

P — Policy considerations 16.17

•

Example of factual analysis 16.17

− Step 2. Identify the legal issues involved and formulate the research

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question 16.19 −− Step 3. Research the legal issues thoroughly

16.20

−− Step 4. Evaluate the results

16.21

−− When should research stop?

16.22

Finding sources of legal information 16.23 −− Online legal research

16.24

Legal research exercises 16.25 EXERCISE 21: Strategy for legal research 16.26

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CHAPTER 16

Legal Research — Approaches and Steps

Introduction Legal research skills, along with legal writing skills, are an essential component of the armoury of any law graduate. Reports on teaching law students have indicated that the qualities, skills and understandings, including research skills, developed during their tertiary education, as much as their subject-specific knowledge, determine whether a law student will be successful in the workplace.1 More immediately, a law student is hampered in their studies if they have not learned to carry out effective research.This chapter covers: • why legal research skills are important and the kinds of skills needed; • the goals of legal research, and the constraints that limit the approach to take; • how to take a strategic approach to legal research, with a detailed focus on how to apply this approach to finding the current law as it applies to a particular scenario; and • where to find sources of legal information.

16.1

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Why legal research skills are important Law students and legal practitioners need to acquire good research capabilities because the law is complex and changing constantly. Knowing where to find new developments is the most useful knowledge a student obtains as part of their law studies. Daily, there are new cases and legislation; principles learned today can be obsolete tomorrow. It is, therefore, essential to anyone working with or writing about the law to be able to find the legal rules relevant to a particular problem or topic and to know that the rules are up to date. To do so effectively requires the development of research strategies and an understanding of research process. The need to develop good research skills is also a function of the rapid changes in information technology and resources.2 The information revolution, in conjunction with the process of globalisation, has increased our access to information and, in many fields, leads to greater harmonisation of rules in different legal systems. An Australian lawyer who cannot keep up to date with legal trends as they develop around the world is at risk of being placed at a significant disadvantage against professional colleagues. This being the case, it is no solace to be told that legal research is one of the more challenging aspects of a lawyer’s work. Lawyers are seldom asked a straightforward legal question by a client. Instead, a client presents a set of facts to the lawyer, whose job is then to clarify those facts, identify whether they present a legal issue, find the relevant law, and present a conclusion or advice about how the law applies to those facts. The successful researcher needs a range of skills and qualities. Almost every project leads to dead ends during the research process, so the researcher needs persistence

16.2

16.3

16.4

John Bowden et al, ‘Generic Capabilities of ATN University Graduates’ (Australian Technology Network, 2000); Peter Kearns, Generic Skills for the New Economy: Review of Research (Report, National Centre for Vocational Education Research, 2001), cited in Terry Hutchinson, ‘Developing Legal Research Skills: Expanding the Paradigm’ (2008) 33 Melbourne University Law Review 33, n 49. 2 For a detailed discussion of the impact of rapid technological change on the legal profession and legal research, see Richard Susskind, Tomorrow’s Lawyers: An Introduction to Your Future (Oxford University Press, 2nd ed, 2017) and Terry Hutchinson, ‘Legal Research in the Fourth Industrial Revolution’ (2017) 43(2) Monash University Law Review 567. 1

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and patience. They must also be systematic and methodical, carefully recording steps taken, information found and the source of that information. This chapter outlines the tasks a researcher needs to complete to ensure the research is thorough and effective. Specific research skills for finding particular types of legal resources are discussed in Chapters 17–19. Those new to using legal resources will reap later rewards if they take the time to evaluate these resources, identifying those most useful for particular areas of law or a particular legal research task. Acquiring these skills involves development of research strategies. This chapter also deals with strategies for finding the current law as it applies to a particular problem scenario, as answering problem questions is an important task that all law students will be required to undertake from the beginning of their studies. Researching for legal essays or law reform assignments might require more focus on secondary materials of academic scholarship and policy documents, but a researcher will always need to be able to find the current law.

Goals and constraints 16.5

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16.6

information literacy: the ability to locate, evaluate, manage and use information from a range of sources for problem-solving, decision-making and research

16.7

470

There are several different legal research tasks. All may be simulated during a law course. The nature of the research task varies with the intended goal. Advising a client on a matter requires reference to the law current in the state or territory in which the person resides or works. Such research is likely to have a narrower focus than the research required for an appeal to the High Court which, if successful, may change the law. A law reform assignment throws the net wider, often to include the law throughout Australia or beyond its shores, while a legal academic, critiquing the existing law, often needs to engage in research which is more open-ended, exploring empirical, theoretical and policy research, in order to suggest alternative solutions. The structure and direction of the research task will also, in practice, be determined by resource constraints. Time and financial constraints for a client will influence how much research can be undertaken for a particular matter. The research should always be direct and disciplined, but especially so for a tight deadline or a minor matter. If the issue arises in an appeal where the hearing is months away, the research may be more extensive and free-ranging. A small commercial dispute will not warrant as much research as a complex legal issue, or one that has significant implications and for which the client is willing to extend the time and cost involved. For an issue where the client is a multinational company and millions of dollars are at stake, engaging a team of legal researchers may be warranted. Law students similarly face constraints and need to assess how much research is warranted for any particular exercise. Factors relevant to students are the length and assessment weight of the particular assignment, the need to allow enough time for analysing and writing up the research, and competing study demands such as other assignments and ongoing class preparation. Different kinds of legal research will call for different approaches. But legal research of all varieties will require information literacy. A student in law who is information literate has the ability to: • know what information is required to solve a legal problem;

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CHAPTER 16

Legal Research — Approaches and Steps

• access appropriate research tools to efficiently and effectively locate both primary and secondary sources of law; • evaluate the suitability or relevance of the located material for the task at hand (for example, to pin down the legal issues involved, so as to be able to advise on the law; to formulate a policy argument; or to identify the theoretical perspectives), including determining when further research is needed or warranted, and when to stop; • use the information for the relevant task; and • consider any ethical or legal issues surrounding the use of information, and the technology used to obtain that information, including social, economic and political considerations.3 The following legal research chapters are designed to identify the most important legal research tools and equip students with research techniques that will assist them to become information literate in the fullest sense.

primary sources of law: cases and legislation which state the law

secondary sources of law: textbooks, journal articles, case notes, legal encyclopedias and other sources which describe the law and provide commentary about the law

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Strategic approach to legal research Most legal research projects do not start with a blank slate.The researcher typically begins with some knowledge of the relevant law. A law degree provides foundational knowledge of all the key fields of law. This knowledge helps in the formulation of appropriate research questions, and the identification of the issues, and provides the basis for the tasks of evaluating, managing and using information to present a reliable advice. This chapter assumes that the student engaged in legal research is concurrently studying law subjects where they will acquire some knowledge of the legal topic they are being asked to research. Perhaps the single most common mistake that beginning researchers make is to start looking for specific cases or legislation too early. In some situations, where the research question is relatively narrow and the researcher already has a good knowledge base, it may be appropriate to look first for relevant case law. Suppose, for example, that the client is a woman whose engagement has just been broken off, and she wants to know whether she can keep the engagement ring. If the lawyer is familiar with Cohen v Sellar4 the researcher could simply ‘note  up’ McCardie J’s judgment. But, in most instances, commencing a search for cases or statutes without first analysing the question that has been posed will produce research that is both inefficient and ineffective. With many legal research projects, it is wise to follow these steps: 1. identify and analyse the facts; 2. identify the legal issues involved and formulate the research question; 3. research the legal issues thoroughly; and 4. evaluate the results. These points are taken from the Association of College & Research Libraries (a division of the American Library Association) step-by-step information literacy standards, as discussed in Dennis Kim-Prieto, ‘The Road Not Yet Taken: How Law Student Information Literacy Standards Address Identified Issues in Legal Research Education and Training’ (2011) 103 Law Library Journal 605. 4 [1926] 1 KB 536 (discussed in 7.50). 3

16.8

16.9

16.10 note up: to check the subsequent history of the case, ie how later cases have used the case by following it, distinguishing it, or referring to it in judgments

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These steps correlate to some extent with the IRAC process of legal problem-solving: I Issue identification R Rule statement A Application of rule to facts C Conclusion The IRAC method is mentioned at 7.9 and 22.32 in connection with case analysis, and the writing of law assignments and exams that are problem-based. The goal of IRAC is to produce a well-structured legal advice. The present focus is research that involves factual analysis and uncovering of the relevant law. The four steps above have been listed sequentially. However, depending on the nature of the research project at hand, some blurring of lines between the steps is inevitable. For example, there is overlap between legal research and the production of legal advice. Step 2 above corresponds with the first step in IRAC, issue identification. Step 4 above corresponds with the second and third steps in IRAC. Rules are the products of legal research, and they will be evaluated by application to the facts. It is also common for some steps to be repeated; for example, the evaluation of the first set of research results may generate fresh research questions and may even send the researcher back to carry out further factual analysis.Yet each step represents a distinct activity which, if neglected, can result in bad research outcomes.

16.11

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legally material: facts determined by the law to be applied

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STEP 1. IDENTIFY AND ANALYSE THE FACTS Much legal research is directed to problem-solving. It is motivated by the need to find the law that is applicable to a particular set of facts so as to identify the legal solution. The facts of any situation must be unravelled to find out which ones are legally material and what issues they raise. To identify what facts are material (and what ones are not) often requires pre-existing knowledge of the legal tests to be met. At this stage of a student’s academic history, that is not always possible. However, some knowledge of the law is necessary before it is possible to identify what is ‘legally material’ and what are the ‘specific components’ of the facts. In other words, fact and law are inevitably inter-related. The first step, therefore, in successful legal research is to analyse the facts. There is no one correct method of analysis. However, the ‘SHARP’ method, described below, may be a useful process, particularly in the context of a legal dispute. Under this method a given set of facts, or a specific incident, is broken down into its separate components. A sound understanding of the facts will provide the basis for resolving the issues that arise, including the identification of the legal issues that need to be researched. The SHARP approach involves analysing facts under five headings: S Situation and subject matter H Harm suffered A Actors involved in the situation R Remedy or relief sought P Policy considerations

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In some problems one or more of these headings might not have much relevance. For example, ‘harm’ is far more pertinent to litigation than to commercial drafting (although harm avoidance will be a consideration) and the ‘policy’ content of a lawyer’s work will vary considerably. Also, some of the above elements may be more applicable to practitioners than students. The SHARP approach, however, will help researchers to obtain a full understanding of a set of facts. S — Situation and subject matter The first consideration is to obtain an overview of the situation that gives rise to the legal problem.This will provide the basis for the more detailed factual analysis that follows over the remainder of the SHARP analysis. Certain aspects of a situation can have considerable legal significance. The fact that the dispute in Cohen v Sellar concerned an engagement ring, rather than any other gift, was of crucial importance. A widower’s claim on a life insurance policy arising from his wife’s suicide is treated differently from a claim arising from her accidental death. One player causing injury to another during a boxing match or a football game attracts different legal rules than an injury in a bar-room brawl. Therefore, the law which deals with the subject matter may be different depending on the features of the situation. It is important to appreciate that the legal significance of any particular fact might not be clear immediately and might only become apparent through the course of research. So, while the four steps of research listed above at 16.10 are set out sequentially, they might need to be carried out iteratively, with earlier steps repeated before progressing.

16.13

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H — Harm Harm of one kind or another is at the centre of many legal disputes. In resolving the dispute it is crucial to identify the precise nature of the harm. In personal injury actions, for example, there are a variety of recognised types of damage, from concrete and immediate out-of-pocket medical expenses to the abstract and speculative categories of pain and suffering and loss of expectation of life. Special rules govern pure economic loss and ‘nervous shock’ or psychological damage. The factual analysis must clearly and comprehensively distinguish all the harms involved. Harm is also central to much criminal law. The factual analysis should identify the value of the property that has allegedly been stolen or damaged or the degree of harm suffered by the victim of an alleged assault.This will determine the precise offence that may be charged, and the likely penalty.

16.14

A — Actors involved It is important for a researcher to be aware of the various actors involved in the situation, the roles they played, and whether they have any special characteristics. In a dispute arising out of a motor vehicle collision, for example, a number of questions arise. Who were the drivers? Were there any passengers? Were any pedestrians involved? Were the drivers licensed? What was the state of health of the persons injured immediately prior to the accident? Were there any witnesses? Did police attend the scene? Was an ambulance called? If anyone was injured, who treated the injured person? If damage was done to a vehicle, who fixed it?

16.15

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In many legal problems, the actors have special characteristics that are legally relevant. An actor may be of a particular type or class, such as a medical practitioner. They may have special legal status, such as a child, a bankrupt or a person with diplomatic immunity. They may be involved in a legally relevant relationship, such as trustee and beneficiary; employer and employee; company and shareholder; business partners; husband and wife; or parent and child. R — Remedy or relief

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16.16

nuisance: one of two torts or civil wrongs: private nuisance involves the substantial and unreasonable interference with a person’s land or use or enjoyment of that land; and public nuisance is the adverse effect of someone’s actions on the reasonable comfort and convenience of others

This aspect of the facts corresponds with harm, discussed above. The lawyer should consider the various ways in which the harm may be addressed, and what the parties’ preferences are in this connection. Often the law will prescribe and limit the types of remedies that a court can order for a particular harm. In civil actions the most common remedy is monetary compensation, known as damages. However, depending on the nature of the case, there may be alternatives that should be considered. If the client is a purchaser complaining that the seller will not fulfil their side of the bargain, the lawyer should find out whether the client would prefer damages or for the sale to be carried through. If the client is a landowner complaining about a nearby nuisance, the lawyer should ask whether the person would prefer the nuisance to cease or monetary compensation, or both. A further consideration is the client’s attitude to delay and uncertainty. Would a prompt settlement for a lesser sum be preferable to the uncertain promise of a greater sum at a later date? Finally, in many commercial and domestic matters, it is often necessary to assess the relationship between the parties. Depending on the path the dispute takes, the relationship may be damaged; it will be important to be aware of this, and take necessary steps in mitigation. Similar questions should be asked in criminal cases. The prosecutor’s view of an appropriate penalty will be based on the views of the victim and the broader interests of the community. The defence lawyer should determine the defendant’s attitude to the various penalty options and the other possible consequences of a conviction. As with civil cases, uncertainty and delay should also be considered. A prosecutor and defendant may agree to a guilty plea for a lesser offence to avoid, on the prosecution side, the risk of an acquittal, and on the defence side, the risk of a conviction for a more serious offence. An early guilty plea also saves resources, stress and trauma on both sides. P — Policy considerations

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The content and application of the law is often heavily influenced by broader policy concerns. The final letter in the SHARP approach to factual analysis reminds the legal researcher to be alert not only to facts that are material in the purely legal sense, but also to facts that resonate at the policy level. A good personal-injury lawyer will be aware of widespread concern over the increasing costs of litigation; calls for greater individual responsibility, for example, through rehabilitation; and more efficient methods of resolving disputes such as by means of appropriate or alternative dispute resolution processes. An effective criminal lawyer will be aware of prevailing attitudes to ‘law and order’, the actual or perceived prevalence of certain crimes, and how particular criminal litigation could be viewed in the media.

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CHAPTER 16

Legal Research — Approaches and Steps

Example of factual analysis

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A magpie was building a nest on an electricity pole owned by an electricity authority. In building its nest, it used a piece of wire. The magpie was electrocuted, causing a surge of power through the transformer, and 1200  volts were transmitted to the homes in the area, including Tom’s. Computers, television sets, freezers and other electrical appliances were affected. Tom says that the damage caused by the surge and loss of electricity was not covered by his home or contents insurance. Tom seeks compensation of $5,000 from the electricity provider for the damage done to his freezer and the consequent loss of the food.

This situation may be analysed by applying the SHARP factors. The situation (S) in this example involves a wild magpie’s nest on an electricity pole owned by an electricity authority, a power surge caused by the magpie, and consequent property damage suffered by a consumer of electricity. Consider which facts in this situation may be relevant or not relevant. For example, the fact that the surge was caused by an animal rather than an employee of the authority is relevant, and that the animal was wild, rather than a pet (for whom someone might be responsible), but it is not relevant that the bird was a magpie rather than a myna or a sparrow. The second step is to clearly and fully identify the harm (H) that has been suffered. In this case Tom complains of damage to his freezer and the loss of the food it contained. This damage totals $5,000. It would be worth asking Tom whether any other electrical equipment was also damaged, and whether he had any consequential losses. For example, did he suffer a loss of business as a result? Tom has indicated that the loss was not covered by insurance. This should be confirmed. Did he have any insurance at all? The policy should be checked. Also, did he have in place a device to protect against electricity surges? If he did, and that device failed, that would provide another possible avenue for seeking compensation. Next, the researcher will need to explore the nature of the actors (A) involved. The  actor that was the immediate cause of harm was a magpie, a wild animal, now deceased. It would be important to identify the nature of the electricity authority and whether the authority that owned the power lines was the same body that provided electricity to consumers. Is it one authority or are there two entities? Are they private companies, statutory authorities, or something else again? In what capacity did Tom suffer damage? Was the freezer purely used for domestic purposes, or did it have a connection with a business enterprise? The nature of the relationship between Tom and the electricity provider should be fully explored, and copies of any relevant documents obtained. The fourth consideration is the relief (R) sought by the injured party. In this case it appears Tom is simply after compensation. Mitigation of the amount of damages if Tom has already been compensated through an insurance payout may be relevant. Finally, it is important that account be taken of any broader policy  (P) issues. A  couple of possibilities in the present case arise from issues that have already been mentioned. How does the present dispute relate, if at all, to the wider privatisation debate? Does the present problem exemplify private or public underinvestment in infrastructure?

16.18

statutory authority: a body set up under its own Act to manage an activity such as roads or competition policy; it is often authorised to make delegated legislation on the matters it administers

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As well as offering guidance on applicable law, these policy issues may highlight sensitivities that could impact upon the chances and terms of a settlement.

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16.19

sui generis: Latin for ‘of its own kind’ or unique

476

STEP 2. IDENTIFY THE LEGAL ISSUES INVOLVED AND FORMULATE THE RESEARCH QUESTION Once the researcher has a good understanding of the facts of the dispute, they will be in a position to identify the legal issues it raises. The speed and ease with which this can be achieved will depend largely on the researcher’s existing knowledge. Obviously, a law student beginning their law studies will face a more daunting task than will a later-year law student who has completed all the compulsory law courses as well as some electives. An experienced lawyer will be presented with fewer issues requiring research and will be able to identify them more swiftly. While factual analysis will not produce a definitive set of research questions, the problem relating to the magpie and the electricity pole discussed above can be used as an illustration. Researchers with little legal knowledge may focus on the factual features of the situation. With the facts presented above, they may look for authorities dealing with liability for power surges, or liability for harm caused by wild animals.This may or may not be helpful. Factual situations vary so widely that it is quite possible that no legal sources will address the facts so directly. Even if a source is found, it may have been superseded by a change in the law or come from a different jurisdiction and in either case be misleading. Some basic level of legal knowledge will enable the research questions to be framed more usefully in legal terms. If the relationship between Tom and the electricity provider is contractual, the contract should be examined to determine the scope of the provider’s obligations. If there are any exemption or limitation clauses, research should be carried out on their validity and interpretation. Another possible source of liability is consumer protection legislation such as the Competition and Consumer Act 2010 (Cth) and the state equivalents.To what extent does this cover services and utilities? What particular protections does it provide? If Tom is operating a business, is he nevertheless covered by these statutory protections? Do they extend to the present facts? A third source of liability is negligence law. Did the provider owe Tom a duty of care? Of what standard? Was it breached? There may be interconnections between these different approaches. The contract, for example, may limit liability for negligence. The consumer protection legislation may imply terms into any contract. It may invalidate the provider’s efforts to limit liability. Further features of the case will impact upon the way these questions are addressed. If the provider is a statutory authority this may be a fact of considerable significance. Obviously the legislation establishing the statutory authority will need to be examined to see whether it touches upon obligations and liability of the owner of the poles and wires, and of the electricity provider. Even if the legislation is silent on the matter, courts may take into account the statutory nature of the defendant in imposing liability in negligence. The principles governing the liability of statutory authorities will need to be understood. It may also be significant that the most immediate cause of damage was the conduct of a wild animal. As a matter of law, is this considered to break the chain of causation? Does it give rise to some sui generis defence? Particular rules apply in determining the quantum or amount of recoverable damages. The present case appears to be fairly straightforward in that there is a close connection between the cause and the harm. However, if Tom was

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CHAPTER 16

Legal Research — Approaches and Steps

seeking compensation or consequential losses to his business, research on remoteness of damage and economic loss would be required.

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STEP 3. RESEARCH THE LEGAL ISSUES THOROUGHLY The research questions having been identified, the research can begin. There are two types of sources: primary sources — cases and legislation — which state the law; and secondary sources, such as textbooks, journal articles, case notes and legal encyclopedias, which describe the law and provide commentary about the law. The ultimate goal is to obtain authoritative statements of law from the applicable primary sources, so a more experienced researcher, with a stronger knowledge base, may decide to move straight to primary sources. For a less experienced legal researcher, however, it is often advisable to start with a good secondary source to obtain an overview of the general law relating to a topic and references to some of the leading cases and relevant legislation in the area. Whether an expert or a novice, it will be advisable for the researcher to develop an organised plan to work methodically through the relevant primary and secondary sources. The plan should be based on an awareness of the array of available research tools. These are explored in detail in Chapters 17–19. There is often a degree of luck or serendipity involved in legal research, but an organised systematic research plan will generally lead to a more successful outcome. It is also important for a researcher to be methodical in recording research results to ensure accurate referencing of sources when it comes to writing up the research (and complying with academic honesty expectations): see Chapter 21. STEP 4. EVALUATE THE RESULTS Legal research is not simply the gathering of authorities. First, the weight of the authorities must be considered.This will be determined by the doctrine of precedent and an understanding of Australia’s constitutional and legislative framework, as discussed in Chapters 3 and 7–9. More importantly, the researcher must actually read the authorities and determine whether they are relevant, and whether they answer the problem. An evaluation of the first set of research results may throw up further questions of fact and fresh legal issues. As mentioned at 16.13, there may be several iterations of the research process before the researcher arrives at a comprehensive statement of the pertinent law. WHEN SHOULD RESEARCH STOP? A common problem is knowing when to stop researching. The answer is not as simple as saying, stop when the applicable law has been found and not before. There is rarely a single correct statement of law. This may be less true of legislation since finding all the legislation on a topic is possible. But legislation often requires interpretation, which will lead the researcher into case law. And there will always be more cases that can be located — particularly if researching the law of other jurisdictions.Yet, there is a real risk associated with over-research — the risk of clouding the issues. One sign that research can come to an end (and that the process of evaluation can begin) is that the researcher keeps turning up the same citations. This suggests that the research paths are converging on a common set of authorities which hold the answer.

16.20

16.21

16.22 citation: reference to the legal authority for a source; this may be the citation for the case, or provision of legislation, or the secondary source being relied on

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Particularly if the authorities include legislative sources, it is likely that a search for more cases might not shed further useful light on the issue. Another sign that research should be wound down is that its cost exceeds its anticipated benefit (see  16.6). This may concern practising lawyers more than law students, but students have finite resources and time, and the law of diminishing returns still applies. After a certain point — provided, of course, the research has been carried out in an organised fashion — further research costs more in time and effort than it produces in significant information.

Finding sources of legal information 16.23

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16.24

478

Once a research strategy has been identified, the next step is to find related primary and secondary sources of law. For law students, university libraries are the most comprehensive sources of legal information. Students will have access not only to an extensive print collection but also to a wide array of online resources. Some legal sources are available both online and in print. However, students are more likely to have access to the online version than the print version because university libraries now prioritise online resources over print resources.Therefore, our focus in the following chapters will be on online legal research. Students at law school are usually referred to the most important primary and secondary sources of law for the subject that they are enrolled in. Course outlines and prescribed textbooks will flag these sources and quite often the university’s learning management system or the library will provide links to online versions of the sources. It is important for students to realise that they must work to acquire good research skills while they are still at law school to equip themselves for the day when some of these aids are no longer available. ONLINE LEGAL RESEARCH Most legal research is now conducted online. The following chapters introduce the most important databases for finding secondary sources of law, case law and legislation, and strategies for using them effectively. Some of these databases are freely available on the internet. There is also an abundance of other free online resources that can be useful for legal research, including government and community websites. Other databases, including those of the major legal publishers, are subscription-based but will be available to law students via their university library. Students will not always end up working in a legal environment where they will have access to all of the online legal resources available to them at law school. For example, a top tier law firm is more likely to have the capacity to provide their lawyers with access to a wide range of subscription databases than a suburban or regional solicitor’s office. Other students may not intend to work as a lawyer at all but are learning law relevant to other professional fields. It is therefore important that students become familiar with the full range of legal databases available, both free and subscription-based, so that they are able to perform legal research in any work environment. The proliferation of online legal resources presents exciting opportunities for researchers but it does not come without its challenges. It is sometimes difficult to determine the best material to use. Researchers will need to ensure that the information

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CHAPTER 16

Legal Research — Approaches and Steps

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they find is current and from an authoritative source, particularly when using free internet resources. It is also critical for researchers to develop confidence in employing research strategies that enable them to maximise the potential usefulness of each online research tool. Choosing search terms for the database to find sources that are appropriate for your topic is central to this. So too is the ability to use Boolean logic (discussed in more detail at 17.9ff) to connect those search terms.

Legal research exercises The legal research chapters contain exercises to help develop your searching skills. Exercise 21 in this chapter will test your ability to devise a research strategy for researching a legal problem. Exercises 22–25 in Chapters 17–19 will test your ability to use specific legal research tools to find secondary sources of law, cases and legislation on a range of legal topics.

16.25

EXERCISE 21: STRATEGY FOR LEGAL RESEARCH It is important, as this chapter has discussed, to approach legal research strategically and to carry out research according to a plan. Remember, your original plan is likely to evolve as the research is carried out. Nevertheless, some degree of planning is crucial in order to maintain control over the research, and to ensure that it achieves your goals on time.

16.26

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Here are a set of relatively simple legal problems. For the example problem, the research strategy has been provided. Example problem Snickers, a registered builder, enters into a contract with Kit to build a house for Kit for $400,000.The house is to be completed by 10 June. A clause in the contract provides that if the house has not been completed by 10 June, Kit will be entitled to damages at the rate of $500 per day until the house has been built. Snickers does not complete the house until 10 July. Kit does not move into the house until 31 July as business commitments kept him elsewhere until that date. Advise Snickers as to his legal rights. Research strategy

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16.27

contract law: the study of that branch of the law which deals with oral and written agreements associated with exchange of goods and services, money, and properties

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480

1. Fact analysis The first step is to understand the facts, employing the SHARP method of fact analysis discussed at 16.12 (remembering this will be an iterative process). 1.1 Subject and situation This problem concerns an agreement relating to the building of a house, and specifically delay in completion. 1.2 Harm The builder completed the house a month late. It is not clear that Kit suffered any actual loss as he was not ready to move in until after the house was in fact completed. 1.3 Actors Both parties are individuals (not corporations or statutory authorities). Neither party has any special features (such as being of a young age or otherwise vulnerable). As a builder, Snickers would need to be licenced and have insurance. 1.4 Relief and remedies The building contract provides for a remedy in terms of a payment of money calculated daily. The customer wants to know whether he is entitled to this payment. It is unclear whether there is an ongoing relationship between the parties requiring protection. 1.5 Policy A policy angle may develop if it becomes apparent that the parties have not dealt with each other on an equal footing, or that some degree of exploitation was involved. A concern here may be the potential for builders and other tradespersons to be ‘squeezed’ by wealthy property developers via the imposition of unfair penalty clauses in contracts. 2.  Identification of legal issues and research questions As discussed in this chapter, the approach that a researcher takes to this step depends on the extent of their legal knowledge. An experienced commercial lawyer with expertise in building contracts would immediately be able to identify the legal issues and provide answers, possibly without doing research.You should approach the case from the position of a lawyer with no special expertise in the relevant area. Clearly, the case raises issues of contract law. There has been a breach of a term of the contract. The issue concerns the legal consequences of that breach. The contract itself specifies a remedy. But in the circumstances the remedy appears harsh for the party

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CHAPTER 16

Legal Research — Approaches and Steps

in breach, and provides a windfall for the other party, in that payment according to the terms of the contract would exceed Kit’s actual loss. That raises the question whether this provision of the contract would be enforceable. Are parties allowed to put monetary penalty clauses in their contracts? Are there limits on how much? Are there special principles relating to construction contracts? 3.  Research Plan The research questions having been identified, the next step is to carry out the research. Before seeking cases which might contain principles of law that provide answers to this question, the researcher would identify and list the relevant information resources, starting with secondary sources. A good starting point will be current textbooks or legal encyclopedias, some of which may be online, in the relevant areas: contracts, construction law, real property and remedies. Useful search terms for checking in the contents tables and indexes include ‘penalty’, ‘compensation’, ‘mitigation’ and ‘damages’. An initial search may lead to the identification of further useful search terms. If the law is straightforward and settled on these points, the sources may provide an immediate set of principles to apply to the facts. However, there may be some difficult areas in the law that require you to consult more specific secondary sources, such as journal articles. A journal index such as AGIS Plus Text (see 17.30) would be a useful resource to use to find references to relevant articles. The researcher should list all these sources, giving references in accordance with the appropriate citation rules, as discussed in Chapter 21.

16.29

Sample legal research problems

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Using the example problem and strategy as a model, analyse the facts and draft a strategy for reaching a legal solution to one or more of the problems below.You may wish to set out alternative strategies. Note why you made your choices. 1. Wilma, Barney and Betty each want to buy a TV. Fred, a local TV dealer, places an advertisement in the local paper on 17 June in the following terms:

16.30

Special offer on televisions to all members of the local Rotary Club. 60 cm TVs only $500. This offer is to expire on June 24.

Wilma, who is a local Rotary Club member, goes to Fred’s store on 18 June to take advantage of the offer but Fred refuses to sell her a TV, telling her that the offer has now been withdrawn. Barney, another Rotary Club member, wants to buy a 40 cm television, but when he goes to the store Fred refuses to sell him this size television for $500. Finally, Betty, who joined the Rotary Club on 20 June, goes to Fred’s store on 21 June seeking to buy a 60 cm television for $500, but Fred refuses to sell her one. Advise Wilma, Barney and Betty of their legal rights in this situation. 2. Twixt decides to go shopping in the city. Because the train is crowded she is forced to stand next to a complete stranger, Nutter, who takes the opportunity to bump into her every time the train rounds a corner. When she gets to her stop Twixt is forced to push past Mary, making contact with her, in order to leave the train. In an attempt to recover from her journey, Twixt goes into a nearby sweet shop and buys some chocolates. As she is leaving the store she is approached by a store detective

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who, against her will, locks her in a back room of the store. Twenty minutes later she is released after it is discovered she has not stolen anything. Advise Twixt as to her legal rights. 3. Heidi agrees in writing to buy land on the South Coast of New South Wales from Karen for $100,000. At the time of the contract Karen is 17. The following year, Heidi sends Karen a letter telling her that she intends to build a hotel on the land. Karen, who has turned 18 by the time she receives the letter but has remained at the same postal address, does not reply. Three months later, after Heidi has already incurred some expense in preparing the land for redevelopment, Karen writes to Heidi and tells her that she wishes to rescind the contract, and offers to return the $100,000 that Heidi paid her. Advise Heidi of her legal rights in this situation. 4. Hepple, who is drunk and is driving his car at 100 kph in a zone where the speed limit is 50 kph, carelessly drives his car into Matthews, a pedestrian who had stepped out onto the road without looking. As a result of the crash Matthews is thrown onto the road and is injured. Oliphant, a passer-by, sees the accident and rushes to the scene to give assistance to Matthews. He places Matthews in his car and begins to drive him to the local hospital before remembering he is late for a wine tasting, whereupon he takes Matthews out of the car and leaves him on an isolated section of highway. Matthews then wanders onto the land of Stanton and takes refuge in a shed. The shed, however, has been poorly maintained by Stanton and collapses, causing additional injury to Matthews. Advise Matthews as to his legal rights.

Further reading Copyright © 2020. LexisNexis Butterworths. All rights reserved.

• Bruce Bott and Ruth Talbot-Stokes, Nemes and Coss’ Effective Legal Research (LexisNexis Butterworths, 7th ed, 2018).A current, comprehensive and practical guide to legal research. See especially ch 3 ‘Strategy and Technique’. • Terry Hutchinson, ‘Developing Legal Research Skills: Expanding the Paradigm’ (2008) 33 Melbourne University Law Review 33. • Terry Hutchinson, ‘Legal Research in the Fourth Industrial Revolution’ (2017) 43(2) Monash University Law Review 567. • Terry Hutchinson, Researching and Writing in Law (Lawbook, 4th ed, 2018). This book is designed for both postgraduate and undergraduate students. See especially pt 1 ‘Formulating and Writing Your Legal Research Project’. • Nickolas James, Rachael Field and Jackson Walkden-Brown, The New Lawyer (Wiley, 2nd ed, 2019). See ch 6 ‘Legal Research Skills’, which sets out a useful set of principles for conducting strategic legal research. • Jay Sanderson and Kim Kelly, A Practical Guide to Legal Research (Lawbook, 4th ed, 2017). A task-based approach to legal research in Australia. See especially ch 1 ‘Introduction’. 482

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CHAPTER 16

Legal Research — Approaches and Steps

• Richard Susskind, Tomorrow’s Lawyers: An Introduction to Your Future (Oxford University Press, 2nd ed, 2017). A detailed and thought-provoking discussion of the impact of rapid technological change on the legal profession and legal research.

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To enhance your learning experience, use the student resources available on Lexis® Learning See the Visual Preface at the front of this book on how to register.

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CHAPTER

17 Searching for Secondary Sources A good book is the best of friends …1 Proverbial philosophy, ‘Of Reading’.

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1

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Introduction 17.1 Strategies and steps 17.2 Online legal research 17.4 −− An overview of online research tools

17.5

−− How to undertake online legal research

17.8

−− Boolean searching

17.9

Textbooks 17.14 Legal dictionaries 17.17 Legal encyclopedias 17.18 −− Halsbury's Laws of Australia •

Example using Halsbury’s Laws of Australia on Lexis Advance 17.21

−− The Laws of Australia •

17.20 17.22

Example using The Laws of Australia on Westlaw AU 17.23

Journal articles 17.24 −− Finding Australian journal articles

17.26

−− Finding international journal articles

17.31

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Other sources of commentary 17.37 EXERCISE 22: Searching legal encyclopedias 17.39

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CHAPTER 17 Searching for Secondary Sources

Introduction It was mentioned in the previous chapter that a law student who is information literate has the ability to use appropriate research tools to efficiently and effectively locate primary and secondary sources of law: see 16.7. Primary sources of law are cases and legislation that state the law, and we will discuss finding these sources in Chapters  18 and 19 respectively. In this chapter, we focus on secondary sources of law — the materials that describe the law and provide commentary about the law, including: • textbooks; • legal dictionaries; • legal encyclopedias; • journal articles; and • other sources of commentary. Some of these sources are available both online and in print. Because most legal research is now conducted online, and modern university libraries prioritise online resources over print material, our focus is on finding secondary sources of law online. The chapter begins with an analysis of some strategies and steps to consider when researching secondary sources of law. This is followed by an overview of online research tools and a section on how to undertake online legal research, which includes a detailed discussion about Boolean searching. Boolean search strategy is applicable to the databases discussed in this chapter as well as those referred to in the following chapters on finding case law and legislation. Finally, there is a detailed discussion of all of the major secondary sources of law, and the online research tools that can be used to find them.

17.1

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Strategies and steps When looking for information on a legal topic or principle, it is wise to start by consulting secondary sources, to get an overview, before delving into the detail of primary materials. This will enable the researcher to place the issue involved in its broader legal context and will often alert them to areas of uncertainty and controversy in the law. A secondary source will also refer to key case law or legislation that is relevant for the next stage of the research. Approaching the task this way reduces the risk of being overwhelmed by the detail in primary sources. Depending on the prior knowledge of the researcher, finding secondary sources of law may involve a two-stage process. First, to obtain an overview of the relevant law, the researcher can start by consulting relevant textbooks, legal dictionaries and encyclopedias. Then, if the researcher is expected to critique the law, this can be followed by an examination of relevant journal articles and other commentary. This two-step process reflects the different perspectives in secondary sources. Some sources, such as textbooks and legal encyclopedias, are usually written in an objective style, describing what the law says and how it operates. By contrast, authors of journal articles often approach the topic from a particular viewpoint, critiquing the operation of the law and arguing about how it operates other than as intended and how it could or should be designed or

17.2

17.3

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implemented. The researcher generally needs multiple perspectives to enable a critical analysis of the topic (see 20.48 and 22.20 on critical thinking). The first step — a review of relevant textbooks, legal dictionaries and encyclopedias, and perhaps other secondary sources such as law reform or parliamentary reports — will provide a general understanding of the origin and development of the pertinent legal principles. The researcher will then be in a position to carry out more detailed research as the second step: searching for and identifying journal articles and other commentary that discuss those legal principles, often comparing them with the historical principles on the topic, or that discuss relevant principles from other jurisdictions. Having carried out these two steps, the researcher will have identified and formed an understanding of the contentious issues in the primary legal sources. This puts them in a good position to then delve into the primary sources, if necessary.

Online legal research 17.4

17.5 online platform: a website (often a legal publisher website) providing access to a range of legal research products and tools

488

As discussed at 16.24, most legal research is now conducted online. It is therefore appropriate at this juncture to provide a brief overview of some of the most important online research tools, and discuss some strategies for effective online research. AN OVERVIEW OF ONLINE RESEARCH TOOLS The specific research tools for locating sources of law are located on a variety of online platforms. The three major publishers of Australian legal material are LexisNexis, Thomson Reuters and Wolters Kluwer, and each of these has an online platform — Lexis Advance (LexisNexis), Westlaw AU (Thomson Reuters) and CCH IntelliConnect (Wolters Kluwer).The products and information on legal publisher websites are subscription-based but law students will generally have access to them through their university library. Other subscription-based products include the suite of legal databases on the Informit online platform for finding Australian secondary legal materials, and the major databases for

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CHAPTER 17 Searching for Secondary Sources

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accessing international secondary sources of law, including Lexis Advance, Westlaw, Hein Online and LegalTrac. Online legal research can also be conducted on free websites. Free web resources discussed in this chapter include AustLII,2 Google and Google Scholar, as well as the open-access repositories of universities, and other repositories like the SSRN Legal Scholarship Network. If an online research tool being discussed in the legal research chapters in this book is free, this will be indicated by the (F) symbol adjacent to its name. Primary and secondary sources of law can also be searched by law students via their university library’s search engine. These ‘one-stop-shop’ discovery tools are designed to trawl all of the databases subscribed to by the library in a single search. However, many legal publishers do not make it possible to discover their resources via these search engines, particularly primary sources of law. It also needs to be recognised that law students may not have access to such a tool once they start practising law, so it is best to learn how to use each individual online legal research tool. HOW TO UNDERTAKE ONLINE LEGAL RESEARCH Fortunately, from the user’s point of view, there are many similarities in how the various legal databases operate. A common feature of many databases is the ability to perform ‘free text searching’ (also known as ‘full text searching’). For example, a database may allow the full text of a set of journals, a specified journal, or a single article, to be searched for a particular word or legal phrase, or for references to a particular case or legislative instrument. However, there are also important differences between databases. For example, some databases only provide references to (or summaries of) secondary sources of law and do not provide access to full text documents. These databases are known as bibliographic databases (or index databases). For example, a library catalogue or library search engine does not allow searching for key words across the full text of all of the books in that library’s collection. Instead, the researcher is searching for key words only within the bibliographic records that have been created by the library for each book. Perseverance is often required for achieving useful research outcomes, particularly when searching for key words and phrases across the full text of documents. This may involve the researcher trying a different search strategy, such as using alternative search terms, when an initial search has been unproductive. A common form of searching to assist with this process is known as ‘Boolean searching’. BOOLEAN SEARCHING Boolean searching is the most commonly employed technique for online searching. Named after George Boole, an English mathematician, Boolean logic enables a researcher to combine concepts or exclude others. It gives the researcher control, but also requires a degree of skill and knowledge. Boolean searching attempts to find the balance between doing a search that may be too broad (potentially yielding too many irrelevant results) and a search that may be too narrow (potentially missing relevant results). Practice will enable you to use Boolean searching effectively.

17.6

17.7

17.8 free (or full text) searching: to search selected documents in a database for words or phrases matching the search terms supplied by the user bibliographic (or index) database: contains records with abstracts or summaries of documents, rather than the full text of those documents

17.9

Also discussed in detail in Chapters 18 and 19 on finding, respectively, case law and legislation.

2

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17.10

In a Boolean search, the researcher must anticipate word choices that might have been used by the authors of the documents being sought. This form of searching can be particularly valuable if you have partial recall of the information you are seeking, especially if that information is somehow unique or specific. For example, if you remember that the Chief Justice of Victoria had once referred to a ‘tiger’ in connection with tribunals and you searched using ‘tiger’ and ‘Chief Justice of Victoria’, you would be rewarded with a paper by the Chief Justice in which, as the Law Institute of Victoria reported, the Chief Justice called administrative tribunals ‘a tiger ready to pounce on the power and influence of traditional courts.’ Boolean searching involves the combination of two components: ‘search terms’ and ‘search operators’. A search term is the term or expression that the researcher is trying to locate. For example, a personal injury lawyer may use search terms such as ‘negligence’, ‘duty of care’, ‘personal injury’ and ‘pain and suffering’. A search operator (or connector) is a means of connecting different search terms so as to provide a means of refining a search. Search software may use slightly different Boolean operators and if this is the case they are usually specified on the website. The most commonly used search operators are AND, OR, and NOT, sometimes used with proximity operators and wildcards. AND: The ‘AND’ operator will return all of the documents containing two or more search terms but excludes those that only contain one of the terms. This effectively narrows the search. For example, in searching for murder cases in which provocation was used as a defence, a researcher could search for to narrow the murder cases down to those that also contained the term provocation.

Venn diagram showing Boolean AND operator combining concepts. In the example ‘murder AND provocation’, the search returns results in the overlapping area of the circles; that is, only those results that contain both terms.

490

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CHAPTER 17 Searching for Secondary Sources

OR:

Use of this operator will return documents containing just one or all of the nominated alternative search terms. ‘OR’ is often used to locate synonyms and effectively broadens the search. For example, a search for will return results that include either the word ‘youth’ or ‘teenager’, or both of these words.

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Venn diagram showing Boolean OR operator for similar concepts. In the example ‘youth OR teenager’, the search returns results in both circles, including where they overlap; that is, results that contain either one or both of the terms.

NOT: This operator (sometimes ‘AND NOT’ or ‘BUT NOT’ is used instead of just ‘NOT’) will exclude documents containing the search term. For example, a search for will return results dealing with unfair dismissal but exclude those that deal with unfair dismissal caused by discrimination. A researcher would use this operator where a vast quantity of material has been published on unfair dismissal caused by discrimination, but the researcher wants to know about other causes of unfair dismissal. Of course, the risk is that something of real interest will be excluded. (Note also the use of double quotation marks for “unfair dismissal” to group more than one word as a single search term to find the exact phrase).

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Venn diagram showing Boolean NOT operator for excluding concepts. In the example ‘unfair dismissal NOT discrimination’, the search returns results only from the first circle except where it overlaps with the second; that is, only results that include the first term but leaving out any results that also include the second term.

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PROXIMITY OPERATORS: These operators allow you to search for documents that contain two terms but specify that you only want those documents where the two terms are located near each other. Where the second term needs to be within a certain number of words of the first term, ‘w/n’ is placed between the two terms, where the n is the specified number of words. Alternatively, the second term could be within the same sentence (‘w/s’) or the same paragraph (‘w/p’). For example, a search for would instruct the search engine to find only those documents that contain these two search terms within 10 words of each other. Proximity operators can be a very effective tool to eliminate potentially irrelevant results, particularly when searching lengthy documents in full text databases. Imagine the scenario where the researcher is looking for journal articles about negligent doctors. In the text of a particular article there is a reference to a person being injured by a roof falling on top of them as a result of the actions of a negligent builder. Much later in the article there is a reference to medical records obtained by the injured person after a visit to their doctor. A search for would retrieve this irrelevant article. However, a search for might not.

492

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CHAPTER 17 Searching for Secondary Sources

WILDCARDS:  A ‘wildcard’ helps generalise a search by taking the place of certain letters or numerals. The most common wildcards are: * In some databases an asterisk ‘*’ substitutes for any number of letters or numerals and is used at the end of a word. Note that in other databases an exclamation mark ‘!’ is used to perform the same task. For example, would find ‘negligence’, ‘negligent’, ‘negligently’, and all other words that share the root ‘neglig’. Asterisks and other symbols used in this way are often called truncation symbols. ? A question mark ‘?’ is used in some databases to substitute for any single letter. For example, equates to woman and women. ‘??’ will substitute for two letters and so on. # The symbol ‘#’ may be used to substitute for any number. For example, a search for will find 144 CLR 1, 144 CLR 35, 144 CLR 276, etc. Sometimes research software which employs Boolean searching carries out certain substitutions without prompting. Some research software will automatically find regular plural and possessive forms. For example, the search term ‘boy’ would also find sources which refer to ‘boys’, ‘boy’s’ and ‘boys’ ’. Likewise, most research software disregards capitalisation. For example, ‘aid’ would also find sources which refer to ‘aid’, ‘aids’ and ‘AIDS’. Generally speaking, certain commonly occurring words either cannot be used as search terms or will be ignored by most search engines. These tend to be articles and prepositions such as ‘the’ and ‘of ’, often referred to as ‘stop words’. Similarly, search operators generally cannot be used as search terms. Some research systems, however, do allow common words to be searched. It is therefore a good idea to use capital letters for the search operators as this may prevent the database treating the search operator as a search term. It also helps the researcher to more easily visualise their search. There are common patterns among the various databases so that skills learned in using one will generally be applicable to others. However, there is not always uniformity from database to database in terms of the specific operators and symbols that are used to perform different functions, and this can cause problems for researchers. Each individual database usually has a ‘Help’ section (often via a link in one of the top corners of the screen) containing user guides and other helpful information to assist researchers. The following table shows the most commonly used Boolean operators and symbols for some of the major Australian online legal platforms. Note that in some platforms, more than one operator or symbol is allowed for the same function. For a full list, consult the ‘Help’ section of each platform. Boolean

AustLII

CCH IntelliConnect

Informit

Lexis Advance

Westlaw AU

AND (all words) contract AND unfair

AND

AND

AND (or any space between words)

AND

& AND (or any space between words)

17.11

17.12

17.13

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LAYING DOWN THE LAW

494

Boolean

AustLII

CCH IntelliConnect

Informit

Lexis Advance

Westlaw AU

OR (any words) murder OR manslaughter

OR

OR

OR (also XOR to get one word but not both)

OR

OR

NOT (excludes a word) loan NOT gift

NOT

NOT

NOT

AND NOT

% BUT NOT

Proximity operators (to find words closer together) consumer w/5 protection

w/n (one word within a specified number of words of the other) NEAR (= w/50) pre/n (one word preceding another within a specified number of words)

w/n (one word within a specified number of words of the other) w/sen (= w/20) w/par (= w/80) p/n (one word preceding another within a specified number of words)

%n (one word within a specified number of words of the other) !n (one word preceding another within a specified number of words)

/n (one word within a specified number of words of the other – note w/n can also be used) /s (= /25) /p (= /75) pre/n (one word preceding another within a specified number of words)

/n (one word within a specified number of words of the other) +n (one word preceding another within a specified number of words)

Truncation (finding different endings of a word) neglig* (finds negligent, negligently, negligence)

*

*

*

! * (either symbol can be used)

!

? Wildcard (matches any single character) wom?n int??net (finds internet or intranet)

?

?

?

*

Exact phrase “duty of care”

“”

“”

“”

“”

“”

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CHAPTER 17 Searching for Secondary Sources

Textbooks

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A logical starting point for law students to commence their research on a legal topic is to consult the prescribed and recommended textbooks referred to in the subject guide of their course. Textbooks not only serve the purpose of presenting the researcher with an overview of a legal topic but they also refer to key primary sources of law, such as relevant cases and legislation. Some textbooks also provide detailed extracts from important cases on the topic. This is useful for the researcher because it allows them to quickly pinpoint the most important parts of a judgment. These types of textbooks are sometimes referred to as casebooks and will often have the phrase ‘Cases and Materials’ or ‘Commentary and Materials’ as part of their title. Occasionally seminal texts, despite being secondary sources, have been deemed authoritative of the law. Blackstone’s Commentaries, which was discussed at 1.27, is one example.The judgments of the High Court in Mabo v Queensland [No 2]3 show Blackstone’s description of the 18th-century common law was accepted as de facto determinative: see 4.4. In most cases, however, a secondary source will be accepted only as the author’s view of the law, although some texts are recognised as more authoritative than others. Accordingly, after having consulted one or more textbooks or casebooks, the next step is to read and evaluate the cases and legislation identified, to see whether they are current and relevant and how they might be used to assist with your analysis (as discussed in Chapters 18 and 19). Textbooks have traditionally been available in print form only. However, this has changed, with many textbooks now also available as ebooks. Some textbooks can only be purchased in ebook format by individuals rather than libraries. However, whole collections of ebooks are now also being made available to libraries by many legal publishers. Regardless of format, the most straightforward way for law students to find relevant legal textbooks is to use the catalogue or search engine of their university library. The search will provide a link to electronic access or, if this is not available, the exact location of a print copy of the book in the library.

17.14

17.15

17.16

Legal dictionaries Sometimes a researcher may know little about a particular legal topic and will come across words and phrases that they do not know the meaning of, and where it would be useful to obtain a succinct definition. On other occasions a researcher is confronted with a legal term written in Latin. Legal dictionaries are a useful resource, particularly as a starting point, for all of these scenarios. In addition to providing a definition of a legal word or phrase, the dictionary may also refer to case law and legislation defining the term. University libraries will sometimes have print versions of a variety of legal dictionaries in their collection. Some leading legal dictionaries are also available online, including the Australian Law Dictionary by Oxford University Press. The Lexis Advance platform contains two other useful online resources for obtaining definitions of legal words and phrases. The Encyclopaedic Australian Legal Dictionary has over 25,000 definitions covering every subject area of law, with terms and definitions presented in an Australian context.

17.17

(1992) 175 CLR 1.

3

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Australian Legal Words and Phrases contains over 100,000 words and phrases defined in legislation or judicially interpreted in Australian courts or selected tribunals.

Legal encyclopedias 17.18

17.19

Copyright © 2020. LexisNexis Butterworths. All rights reserved.

17.20

A legal encyclopedia may be consulted to identify the key legal principles, and for a comprehensive list of primary sources — both legislation and case law — on a topic. Like a textbook, a legal encyclopedia provides an outline of the main principles of law and may give some historical background and point to yet to be settled areas of the law. References may also be given to other secondary sources of law that provide further commentary on the topic being researched. Generally, legal encyclopedias are written in a propositional style, which clearly sets out the principles and issues, and aim to be an objective statement of the information provided. Australian researchers are fortunate to have access to two Australian legal encyclopedias  — Halsbury’s Laws of Australia and The Laws of Australia. Prior to the publication of these sources, Australian researchers relied on Halsbury’s Laws of England for any comprehensive coverage of a legal topic. Given the increasing divergence of laws in the two legal systems, Halsbury’s Laws of England has become less useful to Australians. However, reference to the English Halsbury’s may sometimes still be necessary if the researcher is undertaking historical research, or research in an area of the law in which Australian law has not departed from its English roots. All of these legal encyclopedias are available in print format but are more commonly accessed online. Halsbury’s Laws of Australia (and Halsbury’s Laws of England) can be accessed via Lexis Advance and The Laws of Australia is available via Westlaw AU. HALSBURY’S LAWS OF AUSTRALIA Halsbury’s Laws of Australia (via Lexis Advance) is a comprehensive legal encyclopedia providing definitive statements of Australian law across a total of 90 subject areas (each with their own title and title number). Information appears in numbered paragraphs within each title, and relevant cases and legislation are referred to in footnotes at the end of each paragraph. Halsbury’s Laws of Australia is updated regularly and, importantly, each paragraph has a currency date. It is possible to either browse or search Halsbury’s Laws of Australia on Lexis Advance. Browsing involves going to the Halsbury’s Laws of Australia Table of Contents and selecting a subject title, then using the arrows to drill down into more specific subtitles. Searching is best performed using the ‘Advanced Search’ feature and performing a Boolean search in the ‘Terms’ box (or any of the other available search fields). A step-by-step example of using Halsbury’s Laws of Australia is provided below. Example using Halsbury’s Laws of Australia on Lexis Advance

17.21

496

Imagine you are undertaking a search for laws relating to cruelty to animals. Step 1 Go to the Lexis Advance home page. Expand the blue ‘Publications’ box and you will see an alphabetical list of publications subscribed to by your institution. Select ‘Halsbury’s Laws of Australia’.

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CHAPTER 17 Searching for Secondary Sources

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Step 2 Click on ‘View Table of Contents’ to browse the encyclopedia’s titles or ‘Go to Advanced Search’ to perform a Boolean search. For the purpose of this example, we will click on ‘View Table of Contents’. Step 3 Find a relevant title from the list. The logical one for this topic is ‘20 – Animals’. Expand your search under ‘Animals’ by clicking on the adjacent ‘+’ symbol and a further table of contents is shown. There is an entry: (4)  PROTECTION OF ANIMALS FROM CRUELTY AND DUTY OF CARE TO ANIMALS. Under this heading you will find further, more specific subheadings. Step 4 Click on your chosen subheading (for example: (C) Offences against specific animals). Step 5 Read the information in each paragraph in this section.There is a paragraph for each of the following animals: dogs, cats, birds and horses. Step 6 Look at the footnotes at the end of each paragraph referring the reader to relevant primary sources of law on the topic (for this topic, this is mainly references to specific legislative provisions in each Australian state and territory concerning prevention of cruelty to animals). THE LAWS OF AUSTRALIA The Laws of Australia (via Westlaw AU) is the other major Australian legal encyclopedia. It provides a comprehensive statement of Australian law on most legal topics for all Australian jurisdictions. The information is provided under a list of 36 titles with subtitles which together cover over 320 topics. Like Halsbury’s Laws of Australia, information appears in numbered paragraphs within each title and relevant cases and legislation are referred to in footnotes at the end of each paragraph. Each paragraph also has a currency date. It is possible to either browse or search The Laws of Australia on Westlaw  AU. Browsing involves going to The Laws of Australia Table of Contents on the left side of the page, selecting a subject title then using the ‘+’ symbols to drill down into more specific subtitles. Boolean searching can be performed on the right side of the page using the ‘Free Text’ box (or any of the other available search fields). A step-by-step example of using The Laws of Australia is provided below.

17.22

Example using The Laws of Australia on Westlaw AU Imagine once again that you are undertaking a search for laws relating to cruelty to animals. Step 1 Go to the Westlaw AU home page and open The Laws of Australia. Step 2 Browse the Table of Contents on the left side of the page.You will see that there is no title for ‘Animals’ as there was in Halsbury’s Laws of Australia. It is possible to search the Table of Contents for a particular word, such as ‘animal’, by clicking on the small magnifying glass above the table of contents. Alternatively, a Boolean search across the whole encyclopedia can be performed in the ‘Free Text’ box on the right side of the screen. For the purpose of this example, we will do a ‘Free Text’ search. Step 3 In the ‘Free Text’ box, enter: animal AND cruel! (see list of Boolean operators for Westlaw AU in the table at 17.13). Click on ‘Search’ to get results.

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Step 4 The results list consists of every paragraph in the encyclopedia containing the words ‘animal’ and ‘cruel’ (or ‘cruelty’). Note also that the search software automatically finds the plural ‘animals’ as well. At the time of writing there was a total of 57 results. Step 5 Scroll through the list of results. Each result has a ‘Document Path’ segment showing the part of the encyclopedia where the results have been found. Many of the results come from Title 14: ‘Environment and Natural Resources’. ‘Animals’ is a subtitle within this title. Each result also has a ‘Hit terms in context’ segment showing where your search terms appear in the text of each paragraph. Step 6 Open one of the paragraphs from the list of results to read the complete paragraph. Step 7 At the end of each paragraph, look at the footnotes referring the reader to relevant primary sources of law on the topic.

Journal articles 17.24

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As discussed at 17.3, journal articles often do more than just provide an overview of the law, like a textbook or a legal encyclopedia. Journal articles are often written for the purpose of critiquing the law by approaching a topic from a particular viewpoint. This may involve an in-depth discussion of legal principles as they have been applied in cases or an analysis of contentious issues within a certain area of the law. When students are asked to write research essays at law school, it is vital that they are able to locate scholarly journal articles providing commentary on the topic from a range of different perspectives. Different views on a topic will help the student to develop their own thinking on the topic and to support their argument (see 20.48 and 22.20 on critical thinking). There are a number of pathways to access journal articles. Full text collections of journals can be found on publisher databases, free websites and open-access repositories. Some databases provide access to Australian journal articles. Others are more suited to finding international articles. The difficulty for the researcher lies in knowing which database to use to access the full text of a particular journal title. The easiest way to establish this is often to search for the journal title on a university library’s catalogue or search engine. There are also specialist databases that provide references to articles from a wide range of journals across multiple legal publishers. An overview of some of the most important databases and other online research tools for finding journals articles is provided below. FINDING AUSTRALIAN JOURNAL ARTICLES The three major publishers of Australian legal material all provide full-text access to journal collections via their online platforms. Lexis Advance has an extensive archive of journals, bulletins and newsletters published by LexisNexis. To browse an alphabetical list of all available publications, go to the blue ‘Publications’ tab on the Lexis Advance home page. To search across all publications for articles on a topic, a good option is to select the ‘Advanced Search’ option above the main red search box on the Lexis Advance home page

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CHAPTER 17 Searching for Secondary Sources

and choose ‘Secondary Materials’. You can then conduct a Boolean search in the ‘Terms’ box or other available search fields. Results can be sorted by publication via a drop-down menu that appears on the left-hand side of the page. Lexis Advance also provides references to journal articles via CaseBase Journal Articles. CaseBase is discussed in detail in Chapter 18. Westlaw AU provides access to all of the journals published by Thomson Reuters. Simply click on the ‘Journals’ link on the Westlaw AU home page and all of the journals subscribed to by your institution will appear on the left side of the screen.To search across all publications for articles on a topic, you can do a Boolean search in the ‘Free Text’ box or other available search fields. Alternatively, click on the link to an individual journal title to browse or search the contents of each issue.Your university’s subscription to Westlaw AU may also include the Australian Legal Journals Index, which provides references to over 100,000 journal articles. CCH IntelliConnect provides access to journals published by Wolters Kluwer. After ticking the box for a relevant practice area on the CCH IntelliConnect home page (or a subfolder within the practice area), the researcher can search for key words and phrases across the full text of documents (including journal articles and other commentary) within that practice area. AustLII (F) (), the Australasian Legal Information Institute, is the most comprehensive free website for Australian law. It contains an extensive collection of journals, law reform commission publications, and other sources of commentary about the law. The journal collection can be accessed via the ‘Journals & Scholarship’ link near the top of the AustLII home page.To do a Boolean search across all journals for articles on a topic, go to the ‘Advanced Search’ using the drop-down menu at the top of the AustLII home page and select the ‘All Law Journals Databases’ folder. AustLII also provides access to cases and legislation from all Australian jurisdictions so it is discussed in detail in the next two chapters dealing with primary sources of law. An extremely useful collection of databases for finding references to Australian journal articles (as well as articles from some international journals) can be found on the Informit online platform. Only selected articles are available in full text but the major advantage is that references to articles from journals across a wide spectrum of legal publishers can be found in the one place. The most useful legal database on Informit is AGIS Plus Text, which provides a comprehensive index to articles from over 200 Australian, New Zealand and Asia-Pacific law journals. Even though the database does not contain the full text of every journal article, the records are comprehensive. Each record contains the author, title of the article, journal citation, abstract, descriptors and relevant cases or legislation referred to in the article. Informit also provides access to a variety of other useful legal-oriented databases. These include AFPD (Australian Federal Police Digest), and CINCH – Australian Criminology Database). CINCH also has subsets dealing with Aboriginal and Torres Strait Islander topics (CINCH-ATSIS) and health issues in criminal justice (CINCH-Health). A variety of other more social-science-oriented databases that are less directly connected to legal studies, but nevertheless still useful, are also available. These include APAFT (Australian Public Affairs Full Text), FAMILY (Australian Family & Society Abstracts Database) and MAIS (Multicultural Australia and Immigration Studies). All of the Informit databases (including

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multiple databases at once) can be searched via an ‘Advanced Search’ feature that is set up for Boolean searching.4

17.31

17.32

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FINDING INTERNATIONAL JOURNAL ARTICLES International journal articles can be accessed from a variety of online publisher databases as well as open-access repositories, Google and Google Scholar. Westlaw (sometimes called Thomson Reuters Westlaw or Westlaw International) is the international legal platform for Thomson Reuters and it also has a very large collection of journals from multiple jurisdictions. Journals for individual countries can be searched by clicking on the ‘International Materials’ link on the Westlaw home page then going to the ‘World Journals’ link on the right-hand side of the page. It is possible to do a Boolean search across all jurisdictions in the one search from the ‘World Journals’ page. Westlaw also provides access to Current Index to Legal Periodicals, which indexes articles from over 300 journals, including very recent articles. Another very important collection of international journals can be found on Hein Online. Its ‘Law Journal Library’ provides full-text access to over 2,800 law and lawrelated journals. The Advanced Search function allows Boolean searching across all of the available titles or selected titles. Hein Online also has a number of other digital collections of secondary sources of law, as well as providing access to Index to Foreign Legal Periodicals, an index to over 500 international legal journals. Lexis Advance also has an extensive collection of journals from the United States, United Kingdom, Canada and other jurisdictions. Select the ‘Advanced Search’ option above the main red search box on the Lexis Advance home page and choose ‘Secondary Materials’. Search results can then be sorted by jurisdiction and publication. LegalTrac, published by Gale, is a highly comprehensive international journal index of more than 1,200 major law reviews, legal newspapers, specialty publications, bar association journals and international legal journals. This includes a large number of American journals in addition to journals from other countries, including Australia. However, only about 200 of these journals are available in full text directly from LegalTrac. The Advanced Search feature allows Boolean searching for articles on a topic, with results sorted by content type, including academic journals, magazines, news, etc. Articles are also classified by subject. Open-access repositories provide a free digital archive (subject to copyright) of the scholarly output of universities and other research institutions. They have become another important option for accessing journal articles and other secondary sources of law. Most universities have their own repository to showcase the work of their academics and higher degree research students. The most significant international repository for law is the Legal Scholarship Network (LSN) (F), a division of the Social Science Research Network (SSRN). Law schools and academics can upload articles and other research papers onto the repository, often prior to commercial publication. It is important to note that while a large amount of articles on LSN are freely available in full text, publishers and academic institutions do have the option to charge a fee for researchers to download articles.

See Boolean operators table at 17.13 for more details on searching Informit databases.

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CHAPTER 17 Searching for Secondary Sources

Google (F) is often the first port of call for researchers, in all disciplines, all over the world. It is quick and easy to use and has the capacity to provide relevant results with a minimum of effort. However, researchers need to check for themselves whether the information they have found is current and authoritative. It also needs to be recognised that only publicly accessible documents (as opposed to subscription-based material on databases) can be retrieved via Google. Google Scholar (F) is a more useful option than Google because it focuses on finding scholarly information. International journal articles via open-access sites will be located and it is sometimes possible for law students to link to journal articles via databases subscribed to by their university library. However, not all legal publishers have granted permission for their material to be accessed via Google Scholar.

17.36

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Other sources of commentary A traditional source of important commentary about the law has come from printed loose-leaf services. As the name suggests, these services are ringbinder volumes of loose pages. A loose-leaf publication has the advantage over a traditional book in that it can easily be kept up to date whenever there is a change to the law by inserting new pages and removing out of date pages as required. However, these services are now more frequently accessed online and are often referred to in this format simply as ‘commentary’. They provide summaries of relevant case law and legislation on specific legal topics and also provide updates on changes to the law. The main pathway for accessing this type of commentary is via the three online platforms: Lexis Advance, Westlaw AU and CCH IntelliConnect. The collection of commentary on CCH IntelliConnect is particularly useful for commercial law and taxation law. Other important sources of commentary include law reform commission publications and parliamentary reports. Law reform commissions conduct inquiries into existing laws on behalf of governments and make recommendations for reform. Discussion papers and reports from the Australian Law Reform Commission and the various state commissions are available from their respective websites as well as on AustLII. Parliamentary reports are documents presented to Parliament on a variety of matters. They include White Papers (statements of current or intended government policy), Parliamentary Committee Reports (which examine proposed laws or other issues in more detail than is possible during parliamentary debates) and Royal Commission and Commission of Inquiry Reports. These sources can all be accessed via the parliamentary websites for each jurisdiction.

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EXERCISE 22: SEARCHING LEGAL ENCYCLOPEDIAS The purpose of this exercise is to familiarise you with using the legal encyclopedias Halsbury’s Laws of Australia and The Laws of Australia. Choose one of the topics listed below to search Halsbury’s Laws of Australia and a different topic to search The Laws of Australia, then answer the questions below. Before commencing, consult the examples provided for using each legal encyclopedia at 17.21 and 17.23. Here is the list of topics: • Aboriginal cultural heritage; • adoption of children;

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• • • •

drug offences; duration of copyright; easements in real property; tort of public nuisance.

A. Halsbury’s Laws of Australia (via Lexis Advance) 1. State the topic chosen. 2. What Halsbury’s Laws of Australia title does the topic come under? 3. Provide three paragraph numbers dealing with specific legal principles related to the topic. Note also the titles of these paragraphs and the currency date of each paragraph. 4. State the method of searching and the steps involved to reach the relevant paragraphs provided in your answer to question 3. 5. Note the name of a case or a piece of legislation referred to in the footnotes of each paragraph. 6. Now search for the same topic in The Laws of Australia. Was it easier to find information on the topic in one encyclopedia than the other? B. The Laws of Australia Online (via Westlaw AU)

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1. State the topic chosen. 2. What Laws of Australia title does the topic come under? 3. Provide three paragraph numbers dealing with specific legal principles related to the topic. Note also the titles of these paragraphs and the currency date of each paragraph. 4. State the method of searching and the steps involved to reach the relevant paragraphs provided in your answer to question 3. 5. Note the name of a case or a piece of legislation referred to in the footnotes of each paragraph. 6. Now search for the same topic in Halsbury’s Laws of Australia.Was it easier to find information on the topic in one encyclopedia than the other?

Further reading • Bruce Bott and Ruth Talbot-Stokes, Nemes and Coss’ Effective Legal Research (LexisNexis Butterworths, 7th ed, 2018). A current, comprehensive and practical guide to legal research. See ch 5 ‘Secondary Sources’. • Emily Finch and Stefan Fafinski, Legal Skills (Oxford University Press, 7th ed, 2019). This text provides a United Kingdom and European perspective on legal research. See ch 8, 9 on books, journals and official publications.

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CHAPTER 17 Searching for Secondary Sources

• Jay Sanderson and Kim Kelly, A Practical Guide to Legal Research (Lawbook, 4th  ed, 2017). A task-based approach to legal research in Australia. See ch  4 ‘Secondary Sources’.

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To enhance your learning experience, use the student resources available on Lexis® Learning See the Visual Preface at the front of this book on how to register.

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CHAPTER

18 Searching for Case Law [T]he popular press likes their cases dripping with gore and salacious detail, while fusty law reports focus on legal precedents and the development of the law …1 Bruce Bott and Ruth Talbot-Stokes, Nemes and Coss’ Effective Legal Research (LexisNexis Butterworths, 7th ed, 2018) 287.

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Introduction 18.1 Researching case law: key tasks 18.3 −− Finding case law on a particular subject

18.6

−− Finding case citations

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−− Finding full text judgments

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−− Finding judicial consideration of cases

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−− Finding cases referring to specific legislation

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−− Finding cases defining legal words and phrases

18.11

−− Finding case notes

18.12

Researching case law: how to perform the key tasks 18.13 Finding case law on a particular subject: principal research tools 18.16

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−− Australian case law

18.16

•

CaseBase 18.16

•

FirstPoint 18.17

•

CCH Intelliconnect 18.18

•

AustLII (F) 18.19

•

Jade (F) 18.20

−− International case law

18.21

•

Lexis Advance 18.21

•

Westlaw 18.22

•

WorldLII (F) 18.23

−− Other research tools for finding case law on a particular topic

18.24

Finding case citations 18.28 Finding full-text judgments 18.29

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−− Law reports

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−− Court and tribunal home pages and other websites

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CHAPTER 18 Searching for Case Law

Finding judicial consideration of cases 18.32 Finding cases referring to specific legislation 18.36 Finding cases defining legal words and phrases 18.37 Finding case notes 18.38 Guide to using CaseBase 18.39 −− Step-by-step guide

18.39

EXERCISE 23: Researching cases by case name 18.40 Guide to using Firstpoint 18.41 −− Step-by-step guide

18.41

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EXERCISE 24: Researching cases by topic 18.42

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Introduction 18.1

18.2

The ability to find cases and research case law remains an essential skill for a lawyer. Although legislation has become the principle source of law in Australia today, the need to interpret the words and expressions in legislation generates considerable case law. As Murray Gleeson  AC, 11th  Chief Justice of the High Court of Australia, said: ‘Most of the work of modern courts consists of applying and, where necessary, interpreting Acts of Parliament.’2 Also, for some areas of the law, such as criminal law, contracts, torts, administrative law and constitutional law, case law is still the predominant source of law. This chapter provides you with strategies and skills to research case law effectively. These include finding: • case law on a particular subject; • case citations; • full text judgments; • judicial consideration of cases; • cases referring to specific legislation; • cases defining legal words and phrases; and • case notes. This chapter should be read in conjunction with other sections of this book that deal with case law, including: • Part 2: Sources of Law: Case Law (Chapters 7 and 8); • Chapter 21: Referencing and Citation, especially 21.14ff on citing cases; and • Part 6: The Essential Legal Toolkit A, B, C and D.

Researching case law: key tasks Copyright © 2020. LexisNexis Butterworths. All rights reserved.

18.3

Researching case law often involves undertaking a series of tasks and using a variety of research tools. However, it is important to realise that these will depend on what information you have to start with and the purpose of your research. For example, are you just looking for information about a specific case and, if so, do you already have the complete citation for the case or do you only know the name of one of the parties? Or you may be searching for the most authoritative case law on a particular legal topic. If so, do you know enough about the topic to start searching for cases straight away or do you need to do some preliminary reading on the topic first? The logical starting point for law students to identify relevant case law on a legal topic is to go to the cases referred to in their lectures and course materials. As suggested in Chapter 17, using a textbook or legal encyclopedia is also a good strategy because these sources will highlight the most important cases on the topic. Once potentially relevant cases have been identified, specialist online databases for case law research, such as CaseBase (Lexis Advance) and FirstPoint (Westlaw AU), discussed later in this chapter, can Murray Gleeson AC, ‘Statutory Interpretation’ (Justice Hill Memorial Lecture, Taxation Institute of Australia, Sydney, 11 March 2009).

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CHAPTER 18 Searching for Case Law

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be used to obtain more information about the cases to ascertain whether they apply to the specific subject or problem being researched. The following table provides a shorthand guide to case law research and the rest of the chapter.The left column of the table lists the most important tasks associated with case law research and the right column shows the research tools that can be used to perform those tasks. After describing each of the tasks, the chapter provides an explanation of the specific databases and other sources to use for each task. Some of the sources are available both online and in print, but our focus is on the online format. Task

Research tools*

Finding case law on a particular subject

Case citators – eg CaseBase (Lexis Advance) and FirstPoint (Westlaw AU) Digests – eg Australian Current Law Reporter (Lexis Advance) Textbooks Legal encyclopedias – eg Halsbury’s Laws of Australia (Lexis Advance) and The Laws of Australia (Westlaw AU)

Finding case citations

Case citators

Finding full text judgments

Law reports (available in print but also via legal publisher online platforms including Lexis Advance, Westlaw AU and CCH IntelliConnect) Free websites (including AustLII and Jade)

Finding judicial consideration of cases

Case citators Digests

Finding cases referring to specific legislation

Case citators Digests Legal encyclopedias

Finding cases defining legal words and phrases

Case citators Digests Legal encyclopedias Legal dictionaries — eg Encyclopaedic Australian Legal Dictionary (Lexis Advance) Special publications – eg Australian Legal Words and Phrases (Lexis Advance)

Finding case notes

Case citators Digests Legal encyclopedias Journal indexes and databases containing journal articles (see examples at 17.26ff)

*  NOTE: Many of the research tools referred to in this chapter are hybrid products. For example, CaseBase and FirstPoint are mainly referred to as case citators but CaseBase is both a case citator and annotator. FirstPoint provides a single online entry point for the content of the Thomson Reuters publications Australian Case Citator and the Australian Digest. Therefore, the distinction between the different types of research tools referred to in the table above can sometimes be blurred and usages can overlap.

Key research tools that have not been considered in earlier chapters are dealt with in detail in this chapter. Some research tools, especially online databases, can be used to perform multiple tasks (as indicated in the above table).Therefore, they may be mentioned

18.4

case citator: provides the full citation of a case, all the report series in which a case is reported, as well as its medium neutral citation. digest: a book or series in which cases are summarised and indexed by topics

legal encyclopedia: provides a comprehensive coverage, both of case law and legislation, on a topic

annotator: secondary source containing critical commentary and explanatory notes, including how a case has been interpreted and applied

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more than once in the following discussion. However, a detailed description is given for each research tool only when it is first mentioned. Databases possess common features in that they generally provide a browse function and a search function. The browse function allows researchers to quickly find information arranged via links to specific subject areas or categories. The search function allows keyword searching by typing in open-ended questions or terms. It is often possible to progressively narrow the search in order to find the precise information sought. However, databases invariably provide a wide variety of pathways for finding information. Researchers will develop their own preferences and skills in using these tools. There are some exercises at the end of the chapter to help researchers develop their skills using two key databases, CaseBase and FirstPoint.

18.6

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authorised series of law reports: one in which the judge or tribunal member has approved the headnote provided prior to editing and publication of the judgment

18.7 medium neutral citation: contains the abbreviation for the court or tribunal; the court- or tribunal-assigned case number; and paragraph numbers

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FINDING CASE LAW ON A PARTICULAR SUBJECT The strategic approach to research starts with an analysis of the facts of the problem, as described in Chapter 16. Part of the factual analysis involves a consideration of the subject matter and the relevant legal issue. Relevant cases can then be found in a number of ways depending on the features of the research tool being used and the researcher’s own knowledge of the subject. In some databases, cases are arranged under broad subject headings. It is possible to browse for cases under these subject headings then drill down further into narrower subheadings. Legal databases also allow the researcher to find cases relevant to the legal issue and facts of the problem by entering key words and phrases into different search fields. In a hierarchical system like the common law the researcher will generally focus on finding binding cases or cases of high authority, usually from superior courts (see discussion of hierarchy of courts starting at 8.17ff). However, depending on the outcome of the early stages of the search, the researcher may need to rely on cases of persuasive authority from another jurisdiction or from decisions of courts lower in the same hierarchy. FINDING CASE CITATIONS Sometimes only the name of a case will be given and the researcher will need to find the complete citation in order to locate it. When citing a case in any form of legal writing, a researcher must always provide a complete citation. This should preferably be from an authorised series of law reports when available, or the medium neutral citation (see 21.15–21.16). The need to find alternative citations may also arise because one or more of the citations may refer to a series of law reports that is unavailable. Hence, in order to locate the case, the researcher may need to know whether the case has been reported in another series. For these reasons it is important to be able to identify sources which will provide this information. FINDING FULL TEXT JUDGMENTS The case citations in your course outlines or those found in your searches can be used to find the full text of the judgment. The citation will usually include a reference to a law report in which the case has been published or a medium neutral citation referring to the court in which the case was heard. This reference to the law report or court will usually

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CHAPTER 18 Searching for Case Law

be in the form of an abbreviation. To decipher the abbreviation, you may need to consult other parts of this book.3 If the abbreviation in a case citation is referring to a law report, you can often access the full text of the judgment via the online platform of the publisher of the law report. If the abbreviation in a case citation is referring to the court in which the case was heard (that is, a medium neutral citation) then the case may be accessible online, including via free websites. The various pathways for accessing full text judgments will be discussed in more detail later in this chapter. FINDING JUDICIAL CONSIDERATION OF CASES It is important to check the precedential value of any case you wish to rely on (see discussion of the doctrine of precedent starting at 7.13). That means the researcher must see whether the case has been subsequently judicially considered. Determining the extent to which a decision can be said to still represent good authority is known as noting up. Case citators such as CaseBase and Firstpoint use a system of signals to indicate the precedential value of the case (see 18.32). Subsequent cases that have referred to the case are also given an annotation (for example, followed or overruled) to indicate positive or negative treatment.

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FINDING CASES REFERRING TO SPECIFIC LEGISLATION A key role of the courts is to interpret legislation. Therefore, it is an essential skill for a researcher to be able to find cases that have interpreted legislation relevant to the legal topic at hand. For example, a migration lawyer may have a client who was the holder of a business visa that has been cancelled. Section 134 of the Migration Act 1958 (Cth) provides the rules concerning the cancellation of business visas. It may be instructive for the lawyer to research the cases that have already considered how the rules in s 134 of the Act have been applied so that the best possible advice can be provided to the client. FINDING CASES DEFINING LEGAL WORDS AND PHRASES Another important task is to identify cases that have interpreted particular words and phrases. Often this will include interpreting the meaning of undefined words and phrases in legislation. For example, the researcher may need the meaning of the word ‘cattle’ in a specific statute which does not define the term. When searching for cases giving the meaning, it may not be useful to rely on cases interpreting ‘cattle’ in other legislation. That is because a particular meaning may have been given to ‘cattle’ in the context of the other statute. By contrast, the meaning of a word or expression in another statute may be relevant if the two statutes are closely aligned. For example, a word or expression in state or territory workers’ compensation legislation may be relevant for the same or a similar word or expression in the Safety, Rehabilitation and Compensation Act 1988 (Cth), the Commonwealth’s equivalent Act. For detailed discussion of statutory interpretation in context, see Chapter 12.

judicially considered: when a subsequent case has applied, approved, followed, considered, overturned, disapproved, not followed, or distinguished an earlier case

18.9 note up: to check the subsequent history of the case, ie how later cases have used the case by following it, distinguishing it, or referring to it in judgments

18.10

18.11

See especially Essential Legal Toolkit B and D. See also Cardiff Index to Legal Abbreviations available at .

3

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18.12

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case note: a summary of a case with analysis of the decision in its legal context

FINDING CASE NOTES Published case notes are useful for helping with understanding a case and discovering its wider significance within a legal discipline. A case note involves a description of the facts and legal principles in the case and may also provide some analysis of the relationship between the decision and the existing case law or statutory law. In other words, the note puts the case in its context and indicates, for example, whether the case illustrates a need for a change in the law or has indeed accomplished that change. This information can be valuable for researchers.

Researching case law: how to perform the key tasks 18.13

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Now we turn to consider how each of the above tasks can be performed. They can all be performed online; the challenge is to know where to look and how to navigate the various platforms. The tools for researching case law discussed in this chapter are located on various online platforms. These include the websites of the three major publishers of Australian legal material: LexisNexis, Thomson Reuters and Wolters Kluwer. The products and legal information on the publisher websites are subscription-based but law students will generally have access to them through their university library. Case law research can

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CHAPTER 18 Searching for Case Law

also be conducted on free websites such as AustLII. Others, such as Jade (Judgments and Decisions Enhanced; an initiative of BarNet), contain a mix of free and subscriptionbased material. There is no ‘one stop shop’ to research case law. As a starting point it is best to become familiar with the online platforms of the three major legal publishers: • Lexis Advance (LexisNexis) contains law reports published by LexisNexis and the case citator CaseBase. Other tools useful for case law research that are incorporated into Lexis Advance include Halsbury’s Laws of Australia, Australian Current Law Reporter and Australian Legal Words and Phrases. • Westlaw AU (Thomson Reuters) provides access to law reports published by Thomson Reuters, Firstpoint (incorporating the Australian Case Citator and the Australian Digest) and The Laws of Australia. • CCH IntelliConnect (Wolters Kluwer) contains law reports and detailed commentary on case law. Some research tools are only available online. For those tools that are available both online and in print, law students are more likely to have access to the online version than the print version because university libraries now prioritise online resources over print resources. In this chapter it can be assumed that the research tool being referred to is available online unless otherwise stated. If the online research tool is free, this will be indicated by the (F) symbol adjacent to its name. If a research tool is only available in print, this will be stated.

18.14

18.15

Finding case law on a particular subject: principal research tools AUSTRALIAN CASE LAW

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CaseBase CaseBase is a case citator and annotator on the Lexis Advance platform. It provides citation information for more than 680,000 Australian and overseas cases and journal articles. CaseBase provides the citation/s for the law report series where a judgment can be found. However, it only provides full-text access to law reports published by LexisNexis. Fulltext access to unreported decisions (that is, decisions not published in a law report) may also be available if subscribed to by your university library. Case law on a particular subject can be found by going to the Advanced Search function and searching for key  words and phrases in the ‘Terms’ box. This will search across all CaseBase search fields in the one search. A more targeted approach is to use the ‘Catchwords/Summary’ box. Note that the search terms used will not be searched across the full text of the decisions. The search will only pick up those cases where the search terms appear in the CaseBase record for that case.The information provided in the record for each case varies depending on the significance of the case. It may include: • parties, citations, court, judge(s), judgment date; • links to the full text of the judgment (if available);

18.16

catchwords: key words, principles and legislation that appear in bold before the beginning of the judgment or reasons

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• CaseBase signals (explained at 18.32); • ‘Catchwords & Digest’ section providing a summary (or abstract) of the facts of the case and the decision of the court or tribunal; • litigation history of the case — for example, if the case was heard on appeal from a lower court, information about the earlier matter(s) between the parties will be provided; • cases that were mentioned or judicially considered in the case; • legislation judicially considered in the case; • words and phrases judicially considered; • subsequent cases referring to the case (important for checking the precedential value of the case); and • references to publications, including journal articles, referring to the case. There is extensive online assistance available on Lexis Advance to help researchers use CaseBase, including video tutorials. A step-by-step guide to using CaseBase is also found at 18.39 immediately prior to the CaseBase exercise at 18.40. FirstPoint

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514

FirstPoint on the Westlaw  AU platform is an integrated case law research tool that amalgamates the content of the Australian Case Citator and Australian Digest. It provides a single entry point to a large collection of Australian authorised and specialised law reports, among them the Commonwealth Law Reports (the authorised law report series for the High Court of Australia) and the Federal Court Reports. Coverage for reported cases commences in 1825; for unreported cases from September 1999. Case law on a particular subject can be found by searching for key  words and phrases in the ‘Free Text’ box. This will search across all FirstPoint search fields. A more targeted approach is to use the ‘Case Summary/Digest’ box. A distinguishing feature of FirstPoint is the ability to browse for cases via an extensive subject-based hierarchical classification scheme taken from the Australian Digest. Each case is assigned one or more broad subject classifications and it is possible to then drill down into narrower subtopics (using the ‘+’ button next to each topic), allowing the researcher to locate cases dealing with a very specific legal issue. For example, a researcher might start with the broad subject classification ‘Criminal law’. If they are interested in evidence within criminal law they would choose the subtopic ‘Evidence’. Within the subtopic ‘Evidence’ there are even narrower subtopics including ‘Hearsay’. Finally, within the subtopic ‘Hearsay’, there is a further layer of subtopics including ‘Admissibility.’ At this point the researcher has reached the narrowest possible classification and all of the cases relating to admissibility of hearsay evidence in criminal law will be listed. The information provided in the FirstPoint record for each case is very similar to what is offered on CaseBase (see the list in the discussion at 18.16) and the level of detail in the record will once again vary depending on the significance of the case. FirstPoint, like CaseBase, employs a signals system to indicate the precedential value of a case (including a red flag symbol when a case has been doubted or overturned).

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CHAPTER 18 Searching for Case Law

There is extensive online assistance available on Westlaw  AU to help researchers use FirstPoint, including a Record Guide and Case Status Symbol Guide. A step-bystep guide to using FirstPoint is also found at 18.41 immediately prior to the FirstPoint exercise at 18.42. CCH IntelliConnect CCH IntelliConnect is a database comprising subject libraries of cases, legislation and commentary covering a wide range of legal topics. Taxation is one topic that has particularly strong coverage. All of the topics are referred to as ‘practice areas’ and many of the practice area folders contain cases from law reports published by Wolters Kluwer. After ticking the box for the relevant practice area (or a subfolder within the practice area), the researcher can search for key words and phrases across the full text of documents (including cases) within that practice area. There is also an extensive help menu to assist researchers to search the database effectively.

18.18

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AustLII (F) The Australian Legal Information Institute (AustLII) database is the most comprehensive free resource for Australian law, available at . It provides access to cases and legislation from all Australian jurisdictions as well as journal articles, law reform commission publications and other sources of commentary about the law. The decisions of most Australian courts and tribunals can be accessed on AustLII and the Advanced Search function (available from the drop-down menu at the search box on the AustLII home page) allows the researcher to search for key words and phrases across the full text of these decisions. The researcher can select ‘All Case Law Databases’ or opt to search for relevant cases from particular courts or tribunals. Note that it can sometimes be difficult to achieve focused results doing key word (or free text) searches on such full-text databases. AustLII also has a ‘noting up’ function. When you have found the page providing the full text of the case, you will see a link to ‘NoteUp references’ under the heading ‘Cited by’ on the right-hand side of the page. If you click on ‘NoteUp references’, you will be provided with a list of all of the documents on AustLII that have referred to that case, including other cases. These documents can be sorted alphabetically, by date or by database. AustLII also comes with a case citator known as LawCite (discussed in detail at 18.34).

18.19

Jade (F) Jade (Judgments and Decisions Enhanced; an initiative of the BarNet company) is a case citator and current awareness service for Australian case law. It provides full-text access to over 400,000 decisions by Australian courts and tribunals. Users can register to get free alerts about new cases relating to a particular topic (or new cases referring to a particular case or piece of legislation) and set up their own personal Jade Library of cases. There is also a subscription-based Jade Professional section providing enhanced features and additional legal research tools.

18.20

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Cases can be searched, using key words or phrases, across the full text of the decisions via an Advanced Search function available from the drop-down menu to the right of the search bar at the top of the Jade home page. Cases can also be searched by broad topics that have been allocated by Jade to each case, as well as by catchword. INTERNATIONAL CASE LAW Lexis Advance 18.21

Lexis Advance is the online legal platform for the publisher LexisNexis. It has an extensive collection of case law from the United States, United Kingdom, Canada and other jurisdictions. Select the ‘Advanced Search’ option above the main red search box on the Lexis Advance home page and choose ‘International Cases’. Case law on a particular subject can be found by searching for key  words and phrases using the ‘Terms’ box. A more targeted approach is to use the ‘Case Summary/Catchwords’ box. Search results can then be sorted by jurisdiction and court. Westlaw

18.22

Westlaw (sometimes called Thomson Reuters Westlaw or Westlaw International) is the international online legal platform for the publisher Thomson Reuters. Note that Westlaw AU, a separate database, should be used to access Australian content. Westlaw has a comprehensive United States full-text case law collection which can be searched by clicking on the ‘Cases’ link on the Westlaw home page. There is also case law from other jurisdictions including the United Kingdom, Canada, the European Union, Hong Kong and Korea.These jurisdictions can be accessed by clicking on the ‘International Materials’ link on the Westlaw home page. Once the researcher has selected the relevant jurisdiction and case file they wish to search, it is possible to find cases on a particular topic by searching for key words and phrases across the full text of these decisions. WorldLII (F)

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516

The World Legal Information Institute (WorldLII) database provides access to case law and legal materials from all parts of the world, available at . These include decisions from a range of international courts and tribunals (including final courts of appeal) and a wealth of other international law materials. There is a useful index of links on the left side of the home page, including to specific countries, international courts and decisions, and a catalogue of law by subject. There are also Legal Information Institute sites for specific countries and regions which can be accessed via links from the bottom of the WorldLII home page. The list is being added to on a regular basis. Some of the most useful for a researcher in Australia include: • AsianLII — Asian Legal Information Institute • BAILII — British and Irish Legal Information Institute • CanLII — Canadian Legal Information Institute • CommonLII — Commonwealth Legal Information Institute • HKLII — Hong Kong Legal Information Institute

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CHAPTER 18 Searching for Case Law

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• NZLII — New Zealand Legal Information Institute • PacLII — Pacific Islands Legal Information Institute. WorldLII and many of the country and regional sites have an Advanced Search function that allows the researcher to search for key words and phrases across the full text of decisions. OTHER RESEARCH TOOLS FOR FINDING CASE LAW ON A PARTICULAR TOPIC Other important research tools for finding cases on a topic are the two encyclopedias of Australian law, Halsbury’s Laws of Australia and The Laws of Australia. They are available in print but are more commonly accessed online via Lexis Advance and Westlaw  AU respectively. Halsbury’s Laws of England is also available on Lexis Advance. Browsing or searching on a topic will bring up a discussion that includes footnotes referring to key cases on the topic. These resources were discussed in detail in 17.18–17.23. Australian Current Law Reporter, available in print but more commonly accessed online via Lexis Advance, is a current awareness service notifying researchers of important recent cases from superior Australian courts. A digest (or summary) of each case is provided and the cases are categorised under the same subject headings that appear in Halsbury’s Laws of Australia. Cases in each issue can be browsed via the subject headings, and a key word or phrase can be searched across the entire reporter or within a specific year, issue or subject heading. The High Court Bulletin (F) is another service designed to alert users to recent cases on a particular topic. It is restricted to cases from the High Court of Australia but includes cases only partially heard and even cases that have not yet been heard but are ready for hearing. It is compiled approximately once a month from February to December each year by the High Court of Australia Library. The bulletins commenced in 1996 and the full archive is available via AustLII. Each case has been categorised by subject and AustLII’s Advanced Search function allows the researcher to search for key words and phrases used in the catchwords provided for each decision. The  Digest (known as The English and Empire Digest until 1981) is an English publication available only in print that summarises cases reported from earliest times to the present. Cases are listed under subject headings similar to those used in Halsbury’s Laws of England. It includes Australian and New Zealand cases, as well as those of the United Kingdom, other Commonwealth countries, and Ireland.

18.24

18.25

18.26

18.27

Finding case citations Most of the research tools discussed so far in this chapter will provide a complete citation to assist the researcher to find cases. However, as discussed at 18.3, sometimes a researcher may only know the name of one or both of the parties in a case and perhaps the court in which the case was decided. They will need the complete citation in order to locate the full text judgment. On other occasions a researcher may already have a complete citation but may not have access to the law report series referred to in that citation and will therefore require an alternative citation.

18.28

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Case citators such as CaseBase and FirstPoint (as well as LawCite via AustLII; see 18.34) are particularly useful because they allow the researcher to conduct a search, using whatever information they already have about a case, to find the complete citation for the case. Assuming the case has been published in a law report (see 18.30), alternative (or parallel) citations for different law report series in which the case has been published will also be provided. If the case has been assigned a medium neutral citation this will also be provided.

Finding full - text judgments 18.29

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18.30

18.31

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Once the researcher has a complete citation for a case they can use it to guide them to the full text of the judgment. As discussed at 18.8, reported judgments can often be accessed via the online platform of the publisher of the law report. If a case is unreported (that is, not published in a law report series) it may still be accessible online, including via court and tribunal home pages, publisher online platforms and other websites including AustLII and Jade. LAW REPORTS The law reports published by the three major legal publishers in Australia (LexisNexis, Thomson Reuters and Wolters Kluwer) can be found on their respective online platforms (Lexis Advance, Westlaw AU and CCH IntelliConnect). The difficulty for the researcher is that they may not know the publisher of the particular law report series they are trying to locate.The same problem arises with United Kingdom cases. Once again, there is no single database or online platform to locate all of the law reports from the United Kingdom. Often the best way for law students to determine the appropriate online platform to use to locate a particular law report series is to search for that law report on the catalogue or search engine of their university library. Essential Legal Toolkit B provides a list of abbreviations of commonly used law reports. The abbreviations for each law report are listed in alphabetical order followed by the full name of the law report. Most (but not all) of the authorised law report series for major Australian courts are published by Thomson Reuters and can be found on Westlaw  AU. These include the Commonwealth Law Reports (High Court of Australia) and the Federal Court Reports (Federal Court of Australia). Some authorised law reports can also be found on Lexis Advance. Many of the authorised law reports for the United Kingdom can be found on the ICLR (Incorporated Council of Law Reporting) subscription database. COURT AND TRIBUNAL HOME PAGES AND OTHER WEBSITES Only the most legally significant cases are published in law report series. For other cases, the researcher will usually be given a medium neutral citation referring to the court or tribunal in which the case was heard (see discussion at 21.14–21.16). A medium neutral citation can also be used to locate a very recent case prior to its publication in a law report. Australian court and tribunal websites can be located with a quick Google search and are an easy way to find case law from that particular court or tribunal. Some jurisdictions have a dedicated website with links to decisions from all available courts and tribunals — for example, Caselaw NSW (F). Alternatively, the researcher can go straight to AustLII

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CHAPTER 18 Searching for Case Law

or Jade, which both have large collections of cases from courts and tribunals across all Australian jurisdictions. In fact, the home pages of some Australian courts and tribunals divert the researcher to find the case on AustLII. Australian unreported judgments can also be found on Lexis Advance and Westlaw AU. Some international courts and tribunals also make judgments publicly available on their websites. The ‘International Decisions’ link on the WorldLII home page makes available in one place the decisions of many of these courts and tribunals, including the International Criminal Court, the International Criminal Tribunal for Rwanda, and the International Criminal Tribunal for the Former Yugoslavia. Unreported judgments from the United Kingdom can be accessed via BAILII  (F) and the subscription database JustisOne.

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Finding judicial consideration of cases As discussed at 18.16 and 18.17, CaseBase (via Lexis Advance) and FirstPoint (via Westlaw AU) are very important databases for case law research. One of the key features of both is the ability to find detailed information about the extent to which cases have received subsequent judicial consideration (sometimes referred to as the ‘subsequent history’ of the case). CaseBase signals indicate the kind of treatment a case has received: positive (green plus sign), negative (red cross) or cautionary (orange exclamation mark). ‘CaseBase Signal Help’ provides a full explanation of each signal. The researcher can then look at a complete list (or a graph providing an overview) of ‘Cases referring to this case’, all of which contain a colour-coded annotation stating how the corresponding case was treated (such as ‘applied’ in green or ‘overruled’ in red). FirstPoint offers similar features, including red and yellow flag symbols to indicate when a case has received negative or cautionary treatment, and a complete list of ‘Cases citing’ the case. Jade (F). One of the most powerful free parts of the Jade database (introduced at 18.20) is its case citator. It has a feature known as ‘CaseTrace’, which not only lists cases citing or cited by a particular case but pinpoints judicial consideration by these cases at a paragraph level. Researchers can click on the ‘Citator’ link, enter the name or citation for their case, and a list of cases referring to that case is shown. A snippet of text from the relevant paragraphs of each referring case is provided as well as a link to the full paragraph. It should be noted that this feature works best for cases from the late 1990s onwards. LawCite (F) is an international legal case citator that is freely available via AustLII. Go to the AustLII home page where there is a link to LawCite in the red band near the top of the page. This link takes the researcher to a page where they can enter details of the case. However, there is no key-word search function to find cases on a particular topic. The LawCite database contains links to all the cases in the AustLII database as well as other Legal Information Institutes around the world (see the list at 18.23). For judicial consideration of cases there is a section in the LawCite record for each case titled ‘Cases Referring to this Case’. Full-text access to the judgments of all of these referring cases (as well as their LawCite records) is also available. LawCite also contains links to journal articles and law reform commission publications referring to the case, as well as cases and legislation cited in the case. There is also a ‘citation index’ showing how many times a particular source has been cited on LawCite. The higher the ‘star’ rating, the greater the popularity of a case or article.

18.32

18.33

18.34

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18.35

JustisOne is both a full-text database of international case law (and legislation) as well as a case citator. It provides extensive information about cases from the United Kingdom, the European Union and other regions.This information includes an overview of the case and a complete list of citations as well as detailed information about any subsequent judicial consideration of each case. A distinguishing feature of JustisOne is its ability to interact with the databases of other legal publishers to which the researcher may subscribe or have access via their library (including ICLR and Westlaw UK), providing full-text access to many of the judgments via authorised law reports. A researcher can search for cases via the Advanced Search function by entering a citation, party names or key words. The record that comes up for each case includes a link to ‘Citing Cases’, that is, cases that have referred to the principal case. These cases are listed under colour-coded annotations such as ‘Applied’ or ‘Not Followed’ to indicate whether the judicial treatment given to the principal case was positive or negative. It is also possible to view a detailed ‘Precedent Map’ demonstrating how each case that has judicially considered the principal case is related to the other.

Finding cases referring to specific legislation

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18.36

Most of the databases and case citators referred to in the above sections (including CaseBase, FirstPoint, LawCite and Jade) allow the researcher to easily find cases referring to specific legislation.The CaseBase Cases Advanced Search on Lexis Advance has an option to find cases by ‘Legislation Title’ and ‘Provision Number’.The FirstPoint search screen has a ‘Legislation Cited (Title)’ field and a ‘Legislation Cited (Provision)’ field. The relevant search fields in LawCite are ‘Legislation Considered’ and ‘Section’. The best way to search for cases referring to specific legislation on Jade is to go to the ‘Citator’ function and enter the title of the legislation (and provision number if required) into the ‘Citations of ’ search box. Some commentary services for important areas of the law are provided by the major legal publishers.These services will sometimes annotate (or summarise) each section of an important Act with reference to case law relevant to each section of the Act. For example, in the area of consumer law,Thomson Reuters publishes Miller’s Australian Competition and Consumer Law Annotated and LexisNexis publishes Annotated Competition and Consumer Legislation. Both publications provide detailed commentary, with case references, to the Competition and Consumer Act 2010 (Cth), including the Australian Consumer Law.

Finding cases defining legal words and phrases 18.37

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CaseBase and FirstPoint allow researchers to find cases that define legal words and phrases. The CaseBase Cases Advanced Search on Lexis Advance has an option to find cases by ‘Words and Phrases Judicially Considered’. The FirstPoint search screen has a ‘Words & Phrases’ field. The legal encyclopedia The Laws of Australia, available via Westlaw AU, has the same search option as FirstPoint. There is also a ‘Words and phrases’ search field in the Jade Advanced search. A specialist service available via Lexis Advance (also available in print) is Australian Legal Words and Phrases. This research tool contains over 100,000 words and phrases defined in legislation or judicially interpreted in Australian courts and selected tribunals. The service gives details of where the word or phrase has been defined and the context in

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CHAPTER 18 Searching for Case Law

which it is defined. It is updated as new terms are defined in legislation, or as the courts interpret words or phrases for the first time. Two specialist print resources published in the United Kingdom are Words and Phrases Legally Defined and Stroud’s Judicial Dictionary of Words and Phrases. For more information see Further reading at the end of this chapter.

Finding case notes Most of the databases and case citators referred to in the above sections list case notes and journal articles referring to a case. These include CaseBase, FirstPoint and LawCite. There is a direct link to the full text of the case notes and journal articles referred to on LawCite. On the other two databases, full-text availability of the listed case notes and journal articles will depend on a number of factors, including whether the publisher of the database also published the journal in which the case note or article appears. Another way to find case notes is to use some of the research tools for finding secondary sources of law, as discussed in Chapter 17.These include the journal articles sections of the major online legal publisher platforms, specialist journal indexes such as AGIS Plus Text and legal encyclopedias like Halsbury’s Laws of Australia and The Laws of Australia.

18.38

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Guide to using CaseBase STEP-BY-STEP GUIDE Here is a step-by-step guide to using CaseBase. Step 1 Go to the home page for Lexis Advance. Step 2 In the blue ‘Publications’ box, find CaseBase Cases in the list and click on it. (If you can’t see CaseBase Cases you may need to expand the Publications list by clicking on ‘View all AU publications’). Once you have clicked on CaseBase Cases, a drop-down menu provides options; click on ‘Go to Advanced Search’. Step 3 Perform your preferred search using any of the different search fields that are available.The search fields used will depend on the information you already have for the case. For example, in the exercise at 18.40 you could enter the name of the case in the ‘Case Name’ box and/or the citation provided in the ‘Citation’ box (if you already have a citation for the case that is generally the most precise search option). Case law on a particular subject can be found by entering key words and phrases in the ‘Terms’ or ‘Catchwords/Summary’ boxes. Step 4 At the results list for your search, click on the ‘CaseBase’ link (or the name of the relevant case) to bring up the full CaseBase record. Step 5 Citations for the case are listed under the case name at the top of the page. These show all of the law report series in which the case has been reported (if applicable) and the medium neutral citation (if applicable). The authorised law report (if applicable) is listed first. Step 6 Check whether there is a link to the full text of the case. Hint: This is indicated if the hypertext link is highlighted in blue.

18.39

Creyke, Robin, et al. Laying down the Law, LexisNexis Butterworths, 2020. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/anu/detail.action?docID=6413182. Created from anu on 2021-02-11 14:17:42.

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Step 7 Check the CaseBase signals system for an indication of the precedential value of the case. The signal appears to the immediate left of the name of the case. ‘CaseBase Signal Help’ is available via a link on the right-hand side of the screen. Step 8 Click on the link near the top of the screen to ‘Catchwords & Digest’. Note the facts and points of law in the case mentioned in this section. Step 9 Click on the link near the top of the screen to ‘Cases referring to this case’. It will provide details of all the cases that have judicially considered the chosen case. Step 10 Scroll through the rest of the CaseBase record. Depending on the significance of the case, there may be other fields too, including ‘Legislation considered by this case’ and ‘Publications referring to this case’. EXERCISE 23: RESEARCHING CASES BY CASE NAME 18.40

Search for two of the High Court of Australia cases listed below using CaseBase Cases. R v Carroll (2002) 213 CLR 635

McHale v Watson (1966) 115 CLR 199

Kioa v West (1985) 159 CLR 550

Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118

Swain v Waverley Municipal Council (2005) 220 CLR 517

Geyer v Downs (1977) 138 CLR 91

Harriton v Stephens (2006) 226 CLR 52 Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 217 CLR 469

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Name the two cases chosen, then answer the following questions for each case. 1. What are the citation details for the case? (Note, there may be more than one citation if the decision is published in multiple law reports.) Hints: For details about the components within a case citation see 21.14ff. To check whether a law report series referred to in the citation is ‘authorised’ or ‘unauthorised’ see Essential Legal Toolkit C. 2. Is the full text of the case available (and via which law reports)? 3. What is the court? Who is the judge(s)? What is the judgment date? 4. What is the CaseBase signal for the case? 5. Is there information from a ‘Catchwords & Digest’ summary for the case? If so, provide a brief summary of the facts and points of law mentioned. 6. Have any subsequent cases given judicial consideration to this case (indicated by link to ‘Cases referring to this case’)? How many? 7. Did either of the cases refer to legislation? If so, give details.

Guide to using FirstPoint 18.41

522

STEP-BY-STEP GUIDE Here is a step-by-step guide to using FirstPoint. Step 1 Go to the home page for FirstPoint (accessible via the menu on the left-hand side of the Westlaw AU home page).

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CHAPTER 18 Searching for Case Law

Step 2 Use one of these three possible approaches for finding cases on a particular subject: • Click on a relevant classification heading in the FirstPoint listing on the lefthand margin, expanding into more specific subheadings as needed. As you click on a heading, a list of corresponding cases appears in the centre of the screen; or • Type a keyword into the ‘Classification’ search box in the centre of the screen. A list of subject classifications containing that topic or term will appear. Select your preferred classification and click on ‘Search’ to display a list of cases tagged with that classification; or • Type your topic or search term in the ‘Free Text’ box in the centre of the screen.You can edit or refine (narrow) the search with further search terms if required. A list of cases will appear on the central screen. Step 3 Click on the ‘FirstPoint’ link (or the name of the relevant case) to go to the full FirstPoint record for that case. Step 4 Note the case status symbol alongside the name of some of the cases to alert you to the litigation history of the case. Step 5 Note the subject classification/s assigned to each case in the ‘Summary’ section near the top of the record for the case. Step 6 Scroll through the rest of the FirstPoint record (and also click on the ‘Cited Documents’ and ‘Citing References’ tabs near the top of the page) to locate further information about the case. Step 7 Click on the Word or PDF links to view, download or print the full text of the decision.

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EXERCISE 24: RESEARCHING CASES BY TOPIC Search for Australian cases on three of the following topics using FirstPoint. As discussed at Step  2 in 18.41, cases can be retrieved either by browsing or searching the subject classification hierarchy or by ‘Free Text’ searching. Defamatory statements

Water pollution

Procedural fairness

Who may register trade marks

Termination of tenancy

Private hospitals

Hearsay evidence

Contractual offers

Consent to adoption

Liquor licensing

18.42

Choose one case from your list of search results for each topic to answer the questions below. Organise your answers under headings for each topic and the search technique used. For example, the heading for the first case might be ‘Topic: Hearsay evidence’ and ‘Search technique used: Browsing the subject classifications’, and the heading for another case might be ‘Topic: Consent to adoption’ and ‘Search technique used: Free text searching’. As mentioned at 18.17, the level of detail in the FirstPoint record for each selected case will vary depending on the significance of the case.

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1. Note the steps taken to find your chosen case using the nominated searching technique. For example, which broad subject classification (and sub-topics within that classification) did you browse, or what search terms did you use? 2. What are the citation details of the case? (Note that there may be more than one citation if the decision is published in multiple law reports.) Hints: For details about the components within a case citation see 21.14–21.29.To check whether a law report series referred to in the citation is ‘authorised’ or ‘unauthorised’ see Essential Legal Toolkit  C. Alternatively, if the case you have located is unreported, you will only be able to locate the medium neutral citation. 3. What is the court or tribunal? Who is the judge(s)? What is the judgment date? 4. Go to the ‘Summary’ section of the record for the case. How many subject classification hierarchies have been assigned to the case? 5. Does the FirstPoint record list any subsequent cases that have given judicial consideration to this case (if so, you will see a section called ‘Cases Citing’ further down the page)? 6. Does the case refer to legislation (if so, you will see a section called ‘Legislation Considered’ further down the page)?

Further reading

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• Bruce Bott and Ruth Talbot-Stokes, Nemes and Coss’ Effective Legal Research (LexisNexis Butterworths, 7th ed, 2018). A current, comprehensive and practical guide to legal research. See ch 7 ‘Case Law’. • Emily Finch and Stefan Fafinski, Legal Skills (Oxford University Press, 7th ed, 2019). A United Kingdom and European perspective on legal research. See ch 5–7 on case law. • David Hay (ed), Words and Phrases Legally Defined (LexisNexis Butterworths, 5th  ed, 2018) and Cumulative Supplement (2010–). This in-print series includes extracts from United Kingdom, Australian, New Zealand and Canadian cases. • Jay Sanderson and Kim Kelly, A Practical Guide to Legal Research (LawBook, 4th  ed, 2017). A  task-based approach to legal research in Australia. See ch  3 ‘Case Law’. • Stroud’s Judicial Dictionary of Words and Phrases (in six vols) and Cumulative Supplement (Sweet & Maxwell, 10th ed, 2020).A similar publication to Hay’s Words and Phrases Legally Defined, providing judicial definitions of words and phrases. To enhance your learning experience, use the student resources available on Lexis® Learning See the Visual Preface at the front of this book on how to register.

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CHAPTER

19 Searching for Legislation Inconvenience arising from the operation of an Act of Parliament can be no ground of argument in a Court of law.1 Grigby v Oakes (1801) 2 Bos & Pul 526, 528 (Lord Alvanley CJ).

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1

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Introduction 19.1 Acts and delegated legislation 19.4 Finding known Acts and delegated legislation 19.5 −− Government websites

19.7

•

Federal Register of Legislation 19.8

•

Government websites of the Australian states and territories 19.9

−− Other websites and databases

19.10

Tracking the history of Acts and delegated legislation 19.16 How to use the Federal Register of Legislation 19.19 Finding legislation by topic 19.20 Finding judicial consideration of legislation 19.24 Finding commentary about legislation 19.27 Finding extrinsic materials 19.30 −− Parliamentary materials

19.31

−− Other extrinsic materials

19.34

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How to use the Parliament of Australia: Bills and Legislation website 19.36 EXERCISE 25: Researching an Act 19.37

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CHAPTER 19 Searching for Legislation

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Introduction Since it is the predominant source of law, few legal problems can be resolved without reference to legislation. The ability to find legislation is therefore critical, not only for researchers but also citizens, who are assumed to know the law. This assumption is expressed in the well-known adage ‘ignorance of the law is no excuse’, affirmed by the High Court in Ostrowski v Palmer.2 In this case the conviction of a professional fisherman for fishing for rock lobsters in a prohibited area was unanimously upheld, even though his decision to fish there was based on misleading information provided by the Western Australia fisheries department. It is important to not only be able to find legislation but also to be confident that you have found the correct version of the law.This will usually involve identifying the law currently in force but sometimes involves identifying how the law stood at a particular point in the past, which requires a search for a historical version of legislation.The volume of new Acts and delegated legislation made each year, as well as the myriad amendments to existing legislation, can make searching for the relevant law time-consuming, even with the assistance of online sources. Being able to use effective methods for finding legislative material not only saves time but also means the researcher can be confident of having correctly identified the relevant law. This chapter offers strategies and skills to perform the range of tasks needed to research legislation effectively. These tasks include: • finding known Acts and delegated legislation, either the most current versions or other versions; • tracking the history of a piece legislation, including its date of commencement and amendments that have been made to it over time; • finding legislation on a topic; • finding cases and commentary referring to legislation; and • finding extrinsic materials related to an Act to help understand its meaning or purpose. These tasks are discussed in detail in the rest of the chapter. At the end of the chapter there is an exercise that can be used to test your ability to find information about Commonwealth legislative materials. This chapter assumes that the reader has some knowledge of contextual information about the legislative process and how Acts, delegated legislation and extrinsic materials fit into this process; this information is contained in Part 3 of this book: ‘Sources of Law: Legislation’. As discussed in the other legal research chapters, there has been a major shift, over the past two decades or so, from legal research being conducted using mainly print resources to being conducted online. This is particularly evident in the context of legislation research. While hard copies of legislation are occasionally needed for historical research, the reality is that many university libraries and other legal libraries are no longer purchasing print copies of legislation. Authoritative versions of Acts and delegated legislation are increasingly being made available online.

19.1

19.2

19.3

(2004) 218 CLR 493.

2

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As a result, our focus in this chapter is the online format. Some of the most important online research tools for researching legislation are websites, especially government websites that are freely available on the internet. There are also a range of subscription databases providing value-added services for legislation researchers. If an online research tool being discussed in this chapter is free, this will be indicated by the (F) symbol adjacent to its name. A small number of research tools that are available only in print form will also be discussed.

Acts and delegated legislation 19.4

Before moving to a detailed discussion of the tasks associated with researching Acts and delegated legislation it is worth briefly recapping some key terminology. The terms ‘Act’ and ‘statute’ have exactly the same meaning: they are enactments of Parliament.As discussed at 9.2–9.4, ‘legislation’ is a term used to describe Acts or statutes, as well as delegated legislation (also referred to as ‘subordinate legislation’ or ‘legislative instruments’), which refers to those laws made by persons or bodies to whom Parliament has delegated lawmaking authority. Examples include regulations, statutory rules, ordinances and by-laws. Formerly, legislation was found in print copy annual volumes. As legislation is often amended (sometimes very frequently), finding the version in force at a particular time was often difficult. This issue was sometimes solved by a consolidation (see 9.71) or a reprint (see 9.72) incorporating the changes. But these would not always provide the researcher with the latest version of the Act, and it is usually (but not always) current law that students and lawyers are expected to apply. Thankfully, online resources have largely made such difficulties a thing of the past, as well as making many of the other tasks associated with researching legislation significantly easier and less time-consuming than was previously the case.

Finding known Acts and delegated legislation Copyright © 2020. LexisNexis Butterworths. All rights reserved.

19.5

19.6

528

The first step towards finding an Act is to discover its short title, which is the name by which it is commonly known and cited. Delegated (or subordinate) legislation often has a title that is a variant of the title of the principal Act under which it operates. In cases where the title of an Act has no apparent connection with the title of the delegated legislation, finding subordinate legislation can be more difficult. However, many (but not all) online research tools provide a link to the delegated legislation enabled by a particular Act. In any event, law students will often already know the names of the Acts and delegated legislation they need to find because they will be identified in their course outline or textbooks. Researchers have a wide range of choices for accessing the full text of legislation online. These include government websites where legislation can be accessed for a particular jurisdiction.There are also websites and subscription databases providing access to legislation for all Australian jurisdictions. Most websites and databases provide access to current (also known as ‘consolidated’ or ‘in force’) versions of Acts and delegated legislation as well as the original (known as ‘numbered’ or ‘as made’) versions. Some also provide access to repealed legislation (legislation no longer in force) and ‘point in time’ legislation, where a version of an Act or piece of delegated legislation can be viewed as it stood at a particular date or time.

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CHAPTER 19 Searching for Legislation

GOVERNMENT WEBSITES (F) A key consideration for all researchers when they need to access current legislation is ensuring that the version of the Act or piece of delegated legislation that they are relying on is up to date. Another important consideration, particularly for lawyers, is that they are viewing an authorised version of legislation. Previously, authorised versions of legislation could only be accessed in print form. However, most Australian jurisdictions now provide authorised versions of legislation in electronic form via government legislation websites. While there are some variations from jurisdiction to jurisdiction, including historical versions of legislation not always being authorised, government websites remain a reliable source for accessing legislative material.

19.7

authorised: the official version of legislation which can be relied on accordingly

Federal Register of Legislation (F) The Federal Register of Legislation at (formerly known as ComLaw) is the authorised government website for Commonwealth legislation and related documents. It is managed by the Office of Parliamentary Counsel in accordance with the Legislation Act 2003 (Cth). Acts are categorised under the headings ‘In force’,‘No longer in force’ and ‘As made’, then separated into principal Acts and amending Acts within each category. They are then listed alphabetically. Delegated legislation, referred to as ‘Legislative instruments’, is categorised under the same headings and is also listed alphabetically. Detailed instructions showing how to use the Federal Register of Legislation are provided at 19.19, after discussion of how to track the history of Acts and delegated legislation.

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Government websites of the Australian states and territories (F) Each Australian state and territory has a website similar to the Federal Register of Legislation where current and historical versions of Acts and delegated legislation can be accessed. As noted at 19.7, some of these websites have become official repositories for authorised electronic versions of legislation. The websites are: • Australian Capital Territory: • New South Wales: • Northern Territory: • Queensland: • South Australia: • Tasmania: • Victoria: • Western Australia: . OTHER WEBSITES AND DATABASES The following free websites and subscription databases provide access to legislative material from all Australian jurisdictions. They will be discussed in the context of finding known legislation immediately below, then analysed further, if applicable, in the context of other tasks associated with researching legislation.

19.8 principal Act: contains a comprehensive statement of the law, ie, it does not merely repeal or amend other legislation amending Act: limited to provisions that either repeal or amend other legislation (or both)

19.9

19.10

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19.11

19.12

19.13

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19.14

19.15

AustLII (F), the Australasian Legal Information Institute database available at , is the most comprehensive free website available for Australian law. It has already been discussed in detail in the context of searching for secondary sources of law (see 17.6, 17.29) and case law (see 18.19). On the home page there is a link under ‘Cases & Legislation’ to databases for each Australian jurisdiction. The researcher can select their chosen jurisdiction, then open the legislation database relevant to their research, and select the required Act or piece of delegated legislation from an alphabetical list. The legislation coverage on AustLII varies by jurisdiction but typically includes ‘consolidated’ (current) and ‘numbered’ (as made) Acts and delegated legislation (note that delegated legislation is referred to in the database headings as ‘regulations’). AustLII also has a ‘point in time’ database for New South Wales and South Australian Acts. Lawlex (F),3 available at , provides free access to principal Acts and delegated legislation from all Australian jurisdictions. A distinguishing feature of Lawlex is that it links to legislation via all of the official state and territory legislation websites. This means that researchers will obtain an authorised electronic version of an Act or piece of delegated legislation whenever it is available. The easiest way to find known legislation is to go to the ‘Browse Legislation’ function. The researcher can then select a jurisdiction (or multiple or all jurisdictions) and use the alphabetical index or find legislation by topic. LawNow, a subscription-based database for Australian legislation that is published by LexisNexis, is available via the Lexis Advance platform. It also provides full-text access to current and historical versions of legislation from all Australian jurisdictions. The main advantage of using LawNow is that it provides seamless links to cases and commentary relevant to specific legislation in other products available via Lexis Advance, such as CaseBase and Halsbury’s Laws of Australia. LawOne via the TimeBase platform is another major subscription-based product for legislation. Known Acts and delegated legislation are easily located using the ‘Browse’ feature, then selecting a particular jurisdiction (or all jurisdictions). Delegated legislation can be found under the heading ‘Regulations’. Like Lawlex, LawOne links to legislation via all of the official state and territory legislation websites, allowing access to authorised versions when available.This can be done by clicking on the ‘Key Info’ tab inside each Act then going to ‘View original source.’ All of the above free websites and subscription databases deal with finding Australian legislation. Law students will occasionally be referred to overseas legislation. The most authoritative website for United Kingdom legislation, managed by the National Archives on behalf of the government, is available at . United Kingdom legislation can also be accessed via the British and Irish Legal Information Institute website at . Legislation from the United States and other foreign jurisdictions can be accessed via Lexis Advance and Westlaw (see discussion of these databases in Chapters 17 and 18).

Lawlex also has a ‘Legislative Alerts and Premium Research’ feature that is available on a subscription-only basis.

3

530

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CHAPTER 19 Searching for Legislation

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Tracking the history of Acts and delegated legislation It is very important, in a variety of contexts, for researchers to be able to successfully 19.16 track the history of legislative materials. For example, as mentioned at 9.17ff, the date of commencement of legislation (that is, the date it comes into force and starts operating as law) may be pivotal to the guilt or innocence of a person, to their entitlement to a pension, or their eligibility for a licence. As mentioned at 9.34ff, legislation, or sections of legislation, may also be subject to frequent change via amendments, or even repealed. It is therefore vital that a lawyer is aware of the amendment history of an Act or piece of delegated legislation, and does not mistakenly rely on a provision that is not applicable to their client. For example, if a client’s matter took place on 1 June 2018, the relevant version of an Act may be the one that was in operation at that time. Subsequent amendments to that Act made after 1 June 2018 may not be applicable. The date of commencement and amendment history of legislation can be found in 19.17 the endnotes (note that the date of commencement is sometimes also specified in an early endnotes: provision of an Act or piece of delegated legislation). The term ‘Historical Notes’ is used information found towards instead of ‘Endnotes’ in older legislation and in some jurisdictions, such as New South the end of a piece Wales. A step-by-step example of interpreting the information in the endnotes in a of legislation, typically including Commonwealth Act, using the Federal Register of Legislation, follows at 19.19. an abbreviation Two tables can generally be found in the endnotes and these list legislation that key, date of has changed the Act and the sections that have been changed. The first table is called commencement amendment ‘Legislation History’ (or in some jurisdictions the ‘Table of Amending Instruments’). and history At the top of this table the researcher will find the date of commencement. This table will also contain a chronological list of amending legislation responsible for altering the operation of the Act or piece of delegated legislation. The second table in the endnotes is called ‘Amendment History’ (or in some jurisdictions the ‘Table of Amendments’). This table provides a list of changes to an Act or piece of delegated legislation provision by provision. While the amendment history of legislation in the endnotes is vital for all of the 19.18 reasons stated above, researchers may also want to be aware of any proposed amendments to legislation that may impact on their clients.This can be checked by viewing the list of Bills currently before Parliament via the parliamentary websites for each jurisdiction (discussed in detail at 19.31ff). Researchers can also set up alerts on some of the subscription-based legislation databases, including LawNow, LawOne and Lawlex, to notify them of proposed or pending legislative changes relevant to a particular Act. Another very useful database to set up alerts for new bills is Capital Monitor, a LexisNexis database.

How to use the Federal Register of Legislation Here is a step-by-step guide to using the Federal Register of Legislation. The Act used in this example is the Paid Parental Leave Act 2010 (Cth) and the steps below will allow you to find it and track its history. While these steps are unique to the Federal Register of Legislation, some of the more generic information contained in the steps will be useful regardless of the website or database used to find an Act.

19.19

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Step 1 Go to the home page for the Federal Register of Legislation: . Step 2 Click on the big ‘Acts In Force’ box in the centre of the screen. This takes you to an alphabetical list of the current consolidations of Commonwealth Acts. If you wanted to view Acts ‘As made’ or Acts ‘No longer in force’ you would select ‘Acts’ from the menu on the left side of the page. The default setting on the ‘Acts in Force’ page is ‘Principal in force’. The Paid Parental Leave Act 2010 (Cth) is a principal Act (see definition of a principal Act at 19.8). Step 3 Click on the link to ‘Pa’ in the alphabetical list and find the Paid Parental Leave Act 2010 (Cth) in the list of Acts. Note that next to the link to the Act there is a symbol showing a map of Australia with a tick inside it. This is flagging that an authorised copy of the Act is available. You would access this by clicking on ‘Download’ and choosing the PDF option. At the bottom of the first page of the PDF document are the words ‘Authorised Version.’ If you open the Word version of the Act it is not stamped with these words. Step 4 Click on the ‘Paid Parental Leave Act 2010’ link to go to a HTML version of the Act. Step 5 You can scroll through the text of the Act or you can click on a specific section of the Act via the Table of Contents. Click on ‘Expand All’ to see a list of all of the sections in the Act. Step 6 After you have clicked on ‘Expand All’ scroll all the way through the list of sections in the Act until you see the links to the ‘Endnotes’ at the bottom of the list. Step 7 Click on the link to ‘Endnote 3 – Legislation history’. You will see a table with a chronological list of each piece of legislation that has amended the Paid Parental Leave Act 2010 (Cth). The first Act listed is the principal Act itself and you will see the date of assent and date of commencement of the Act. The date of commencement is 1 October 2010 (also stated in s 2 of the Act). Step 8 Continue reading ‘Endnote 3 – Legislation history’. You will see listed in the table that the first Act that amended the Paid Parental Leave Act 2010 (Cth) was the Statute Law Revision Act 2011 (Cth). At the time of writing, the most recent Act to have amended the Paid Parental Leave Act 2010 (Cth) — the last Act listed in the table — was the Coronavirus Economic Response Package Omnibus (Measures No.  2) Act 2020 (Cth), assented to on 9 April 2020. Step 9 Go back to the Table of Contents and click on ‘Endnote 4 – Amendment history’. You will see a table listing all of the sections in the Act that have been affected by amendments. For example, you will see at s 21 the following information: 532

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CHAPTER 19 Searching for Legislation

‘am. No. 109, 2012.’ This means that s 21 of the Paid Parental Leave Act 2010 (Cth) was amended by Act number 109 of 2012. A list of abbreviation meanings (including ‘am’) is provided at ‘Endnote 2 – Abbreviation key’. Act No 109 of 2012 is listed in the table in ‘Endnote 3 – Legislation History’. It is the Paid Parental Leave and Other Legislation Amendment (Dad and Partner Pay and Other Measures) Act 2012 (Cth). Step 10 Above the Table of Contents you will see the words ‘View Series’. Click on the link. You will see down the page a list of all of the different Compilations of the Paid Parental Leave Act 2010 (Cth). The ‘Start Date’ and ‘End Date’ columns show the date range for which each compilation was valid before being superseded by a new compilation after a further amendment was made to the Act. Note also other useful links: • ‘Enables’ takes you to a list of the delegated legislation enabled under this Act. At the time of writing, there were two pieces of delegated legislation listed: the Paid Parental Leave Rules 2010 (Cth) and the Social Services Laws (Present Value of Unpaid Amount — Interest Rate) Determination 2018 (Cth). • ‘Principal + Amendments’ takes you to a list of legislation that amended the Paid Parental Leave Act 2010 (Cth). • ‘Related Bills’ lists Bills related to the amending legislation but, importantly, may also list Bills still before Parliament proposing further amendments to the Act.

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Finding legislation by topic As stated at 19.5, law students are often provided with a list of the most important Acts 19.20 and delegated legislation for the subjects in which they are enrolled. However, when undertaking research assignments (and, of course, in legal practice) it will be necessary to locate legislation on a particular topic. It was mentioned in the earlier legal research chapters that when looking for information on a legal topic or principle, it is often wise to consult secondary sources of law before delving into the detail of primary materials. Legislation on a topic can be located using secondary sources of law such as textbooks, legal encyclopedias and journal articles (see Chapter 17 for more information on these sources). All of the specialist legislation websites and databases referred to at 19.8ff have 19.21 advanced searching functions (albeit of varying levels of sophistication) to allow the researcher to locate legislation by topic. It is usually possible to search for words within the titles or across the full text of legislation. On the Federal Register of Legislation and the government legislation websites of the Australian states and territories, it is only possible to search for legislation by topic for the single jurisdiction covered by that website. AustLII provides a free option for searching legislation on a topic across multiple jurisdictions via the Advanced Search function (available from the drop-down menu at the search box on the AustLII home page).

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19.22

19.23

However, it is sometimes difficult to obtain meaningful results using the search feature of databases to find legislation by topic, particularly when searching for words across the full text of Acts and delegated legislation. It is often a better option to browse a subject index to legislation.The Lawlex database has a free subject index. Go to ‘Browse Legislation – Free’ on the Lawlex home page. For example, to find principal legislation about copyright, the researcher would first select the category ‘Intellectual Property’ then select the subcategory ‘Copyright’. The LawNow and LawOne subscription databases also feature comprehensive subject indexes to legislation. On LawNow, there is an option to browse current Acts and subordinate legislation within each jurisdiction ‘by Subject’. On LawOne, click on ‘Browse’ then select ‘By Subject’. An important print resource is Wicks Subject Index to Commonwealth Legislation. This publication contains a subject index to Acts and an index of delegated legislation listed alphabetically by title of authorising Act, together with cross-references to other legislation.

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Finding judicial consideration of legislation 19.24 Probably the most comprehensive way of finding judicial consideration of legislation is to use an online case citator.While case citators are designed primarily to help the researcher find extensive information about cases, products such as CaseBase (via Lexis Advance), FirstPoint (via Westlaw AU) and LawCite on AustLII can also be used very effectively to find cases referring to a particular Act or piece of delegated legislation. This is explained in detail at 18.36. AustLII also has a ‘noting up’ function. Once the researcher has accessed a specific 19.25 Act or piece of delegated legislation (instructions on how to do this can be found at 19.11) there is a link to ‘NoteUp references’ under the heading ‘Cited by’ on the righthand side of the page. This link will take the researcher to a list of all of the documents, including cases, on AustLII that have referred to the legislation. These documents can be sorted alphabetically, by date or by database. The ‘NoteUp references’ feature can also be used to locate cases referring to specific provisions within legislation. Some of the subscription legislation databases also perform this task. The legislation on LawNow links to relevant cases on CaseBase and vice versa, as both of these products can be found on the Lexis Advance platform.This creates an integrated research experience statute annotator: provides the for the user, as they can stay on the one platform to access all of the related sources of law amendment without needing to move from one database to another. To access cases which consider history of Acts, cases where an legislation (or an individual provision within legislation) on LawNow click on ‘View Act (or sections Legislation Citator’. The LawOne database on the TimeBase platform also provides links of an Act) has to PDF versions of the full text of cases that have referred to a specific section within been judicially considered, and legislation. For this platform, click on the ‘Cases’ link in the top corner of the page for the other commentary Act or piece of delegated legislation. 19.26 Another pathway for finding judicial consideration of legislation, as well as other information and commentary about legislation, is using a statute annotator. LexisNexis publishes the Federal Statutes Annotations service as well as annotator services for New South Wales, Queensland and Victoria. Thomson Reuters publishes, in print, the Commonwealth Statutes Annotations service as well as NSW Statute Annotations and References. 534

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CHAPTER 19 Searching for Legislation

Finding commentary about legislation Researchers interested in obtaining an overview of relevant legislation on a topic, 19.27 or an understanding of how a particular piece of legislation fits into its broader legal context, will benefit from finding commentary about legislation. Commentary can be found in the secondary sources of law discussed in Chapter 17, including textbooks, legal encyclopedias, law reform commission publications, parliamentary reports and journal articles. Another important source is the commentary sections of the three major online legal publisher platforms in Australia: CCH IntelliConnect, Lexis Advance and Westlaw AU. While some commentary is written in a descriptive, objective style, journal articles 19.28 are more likely to critique the law, alerting researchers to potential areas of uncertainty and controversy in legislation. A good place to find references to Australian journal articles discussing legislation is the collection of legal databases available on the subscriptionbased Informit online platform. These include AGIS Plus Text, a comprehensive index to articles from over 200 Australian, New Zealand and Asia Pacific journals, and CINCH – Australian Criminology Database.When performing an Advanced Search in AGIS Plus Text, the researcher is able to select ‘Legislation’ from the ‘Any Field’ drop-down menu, then enter the legislation name as a search term to find journal articles referring to that piece of legislation. CCH IntelliConnect, Lexis Advance and Westlaw AU are also good places to search for journal articles referring to Australian legislation. The journal collections on Lexis Advance and Westlaw AU are particularly extensive. These three major online platforms also provide commentary services relevant to 19.29 legislation, including some of the statute annotations services discussed at 19.26. Other products provide summaries of legislation on specific topics, and updates on changes to legislation. For example, each of the platforms contains extensive commentary concerning the Corporations Act 2001 (Cth) and related corporations legislation.

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Finding extrinsic materials Extrinsic materials are sources external to an Act, but closely related to it, that help to interpret the intention or meaning of that Act. The use of extrinsic materials to aid statutory interpretation is explained in detail in Chapter 11. Section 15AB of the Acts Interpretation Act 1901 (Cth) (and equivalent legislation in some states and territories) lists the types of extrinsic materials that can be relied on to interpret an Act. These include treaties or other international agreements referred to in an Act, and reports of law reform commissions, royal commissions or parliamentary committees. Extrinsic materials also include explanatory memoranda relating to a Bill (referred to in some jurisdictions as ‘explanatory notes’), the second reading speech of the Minister responsible for introducing a Bill and any official record of debates in Parliament. PARLIAMENTARY MATERIALS Parliamentary extrinsic materials, including explanatory memoranda, second reading speeches and reports of parliamentary committees, can be found on the Parliament

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of Australia website, as well as the parliamentary websites of the Australian states and territories. Many of these extrinsic materials are generated prior to enactment (that is, when an Act was still a Bill) so the best place to find them is usually with Bills. The Bills sections of parliamentary websites provide researchers with a wealth of useful information to assist them in interpreting legislation. This will include a link to the Bill itself and links to the explanatory memoranda tabled at the second reading stage of the Bill. There is usually also a link to the second reading speech of the Minister responsible for introducing the Bill to Parliament and a table providing dates and other detailed information about how a Bill tracked through each House of Parliament. Further resources will sometimes be made available, including links to speeches by other Members of Parliament who have participated in debate about the Bill. These speeches can also be found in Hansard — the official record of debates and proceedings in Parliament. Another valuable resource that may be made available is a Bills Digest, usually prepared by the Parliamentary Library staff. While this is a secondary source of law and does not qualify as extrinsic material, it provides a detailed summary and analysis of a Bill. Step-by-step instructions on how to use the Parliament of Australia: Bills and Legislation website are provided at 19.36. The parliamentary websites of the Australian states and territories can be easily located via a quick Google search; then the researcher can navigate to the Bills section of the website. It should be noted that parliamentary legislation websites, such as the Federal Register of Legislation (discussed at 19.8 and 19.19), also have links to Bills. However, the range of links to extrinsic materials accompanying the Bills is usually very limited. Bills and parliamentary extrinsic materials are also available via all of the subscriptionbased legislation databases discussed earlier in this chapter, including Lawlex, LawNow (via Lexis Advance) and LawOne (via TimeBase). Another useful and very user-friendly subscription database for locating extrinsic materials is Capital Monitor. It is also possible for researchers to set up alerts services via these databases to keep track of the progress of Bills through Parliament. OTHER EXTRINSIC MATERIALS Extrinsic materials that are not generated by Parliament include treaties and other international agreements, as well as law reform commission publications. AustLII provides free access to the Australian Treaty Series. Here the researcher can get full-text access to all of the treaties to which Australia is a signatory. Go to the ‘Treaties’ link at the top of the AustLII home page and once inside the ‘Australian Treaties Library’ select ‘Australian Treaty Series (ATS).’ Another good option for accessing treaties is via the Department of Foreign Affairs and Trade website: . It includes a subject index of treaties to which Australia is a signatory. Law reform commissions make inquiries into existing laws on behalf of governments and make recommendations for reform. New legislation is often created on the basis of these recommendations. Discussion papers and reports from the Australian Law Reform

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CHAPTER 19 Searching for Legislation

Commission and the various state commissions are available from their respective websites as well as on AustLII (via the ‘Law Reform’ link at the top of the AustLII home page).

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How to use the Parliament of Australia: Bills and Legislation website (F) Here is a step-by-step guide to using the Parliament of Australia: Bills and Legislation website. The Bill used in this example is the Paid Parental Leave Bill 2010 (Cth) and the steps below will allow you to find the Bill and extrinsic materials related to the Bill. This example follows on from the Paid Parental Leave Act 2010 (Cth) being used as the example in the step-by-step guide to using the Federal Register of Legislation at 19.19. While the steps below are unique to the Parliament of Australia: Bills and Legislation website, some of the more generic information contained in the steps will be useful regardless of the website or database you are using to find a Bill and extrinsic materials related to a Bill. Step 1 Go to the Parliament of Australia: Bills and Legislation website: . (There is also a highly visible link to ‘Bills’ on the Parliament of Australia home page, which goes to the above web page.) Step 2 Scroll down to ‘Browse bills’ and select ‘P’. Specific Bills can also be located by doing a key  word search at ‘Search all bills’ (located directly above the ‘Browse bills’ function). Note that some bills cannot be found via the above ‘Browse bills’ and ‘Search all bills’ functions. An alternative is to click on the ‘ParlInfo’ link at the top of the page and do an Advanced Search for the bill. Step 3 Scroll down to the link to ‘Paid Parental Leave Bill 2010’ and click on it. Step 4 You have now reached a page with detailed information about the Paid Parental Leave Bill 2010 (Cth). Scroll through and read the information under the heading ‘Progress’. The ‘Progress’ section provides a detailed outline of how the Bill tracked through both Houses of Parliament. It started when it was introduced and read a first time in the House of Representatives on 12  May 2010. After a third reading of the Bill was agreed to in the House of Representatives on 1 June 2010, it was introduced and read a first time in the Senate on 15 June 2010. After a series of amendments were agreed to between both Houses, the Bill was finally assented to on 14 July 2010. Step 5 Go now to the information under the heading ‘Documents and transcripts’. Open the documents at ‘Text of bill’. The ‘First reading’ document is the Bill as it was first presented to the House of Representatives. As discussed at Step 4, a number of amendments were made to the Bill, so the content of the Bill in this document will be different to the content in the Bill ‘As passed by both Houses’.

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Step 6 Open the explanatory memorandum and supplementary memorandum. A supplementary explanatory memorandum was required due to the amendments that were made to the Bill during its passage through both Houses of Parliament. Step 7 Open the links at ‘Transcript of speeches’. There is a link to the second reading speech of the Minister responsible for introducing the Paid Parental Leave Bill 2010 (Cth) to Parliament ( Jenny Macklin, Minister for Families, Housing, Community Services and Indigenous Affairs). There is also a link to all of the other speeches made about the Bill by other Members of Parliament. Step 8 Scroll down to the ‘Bills digest’ and open it. The Bills digest, prepared by the Parliamentary Library, provides a detailed summary and analysis of the Paid Parental Leave Bill 2010 (Cth). EXERCISE 25: RESEARCHING AN ACT

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19.37

The purpose of this exercise is to familiarise you with using the Federal Register of Legislation — available at — to find a Commonwealth Act and track its history. A step-by-step guide to using the Federal Register of Legislation was provided at 19.19. Four Acts, all currently in force, are listed below: • Australian Organ and Tissue Donation and Transplantation Authority Act 2008 (Cth) • Medical Indemnity Act 2002 (Cth) • Personal Property Securities Act 2009 (Cth) • Product Grants and Benefits Administration Act 2000 (Cth). For each Act, answer the following questions: 1. What does s 8 of the Act deal with? 2. What was the date of commencement of the Act? 3. What is the last Act to have amended this Act? 4. Has s 8 of the Act been amended? If so, how many times and by which amending Acts?

Further reading • Bruce Bott and Ruth Talbot-Stokes, Nemes and Coss’ Effective Legal Research (LexisNexis Butterworths, 7th ed, 2018). A current, comprehensive and practical guide to legal research. See ch 6 ‘Legislation’. • Emily Finch and Stefan Fafinski, Legal Skills (Oxford University Press, 7th ed, 2019).A United Kingdom and European perspective on legal research. See ch 2–4 on legislation. 538

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CHAPTER 19 Searching for Legislation

• Jay Sanderson and Kim Kelly, A Practical Guide to Legal Research (LawBook, 4th  ed, 2017). A  task-based approach to legal research in Australia. See ch  2 ‘Legislative material’.

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To enhance your learning experience, use the student resources available on Lexis® Learning See the Visual Preface at the front of this book on how to register.

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PART

5 Legal Writing, Study and Exam Skills 543

21 Referencing and Citation

565

22 Study and Exam Skills

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20 Legal Writing

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CHAPTER 

20 Legal Writing Legal writers must recognize what the rest of the literary world already knows: a good style powerfully improves substance.1 Bryan Garner, The Elements of Legal Style (Oxford University Press, 2nd ed, 2002) 2.

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1

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Introduction 20.1 −− The different kinds of legal writing

20.2

−− Developing skills, voice and style

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General principles of good legal writing 20.7 −− What is the writer’s aim?

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−− Who is the writer’s intended audience?

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−− Plain language

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Specific principles of good legal writing 20.22 −− Precision 20.23 −− Plain English words, not jargon or antiquated English

20.24

−− Active voice

20.27

−− Short sentences and coherent paragraphs

20.30

−− Formality 20.34

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−− Referencing: authority and honesty

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•

Authority 20.36

•

Honesty 20.38

Writing conventions 20.40 −− Footnotes, endnotes, tables and bibliographies

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−− Quotations 20.42 −− Italics and emphasis

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−− Capitals 20.45 −− Grammar and punctuation

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Legal essay writing 20.47

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−− Critical thinking

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−− Structure and writing

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CHAPTER 20

Legal Writing

Introduction

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Most of what lawyers do, they do through writing. Learning to write effectively is a fundamental legal skill that every law student should develop.This skill goes hand in hand with other skills, so this chapter is paired with Chapter 21, which addresses referencing skills by providing a practical summary of the key rules of referencing and style, and Chapter 22, which provides guidance on study skills, exam preparation and how to write legal advices, responses to legal problems that are typical in law school exams. The purpose of this chapter is to explain what good legal writing is, persuade you to strive for it, and provide advice on how to achieve it. This chapter: • outlines different types of legal writing; • discusses how writing skills need to be developed and practised; • shows how effective writing uses appropriate structure, vocabulary and writing devices suited to the intended audience so as to achieve the intended purpose of the writing; • introduces specific principles of good legal writing, focusing on the plain language approach; • explains how proper referencing supports good writing; • covers the style conventions that you are expected to follow in legal writing; and • provides tips on writing legal essays. THE DIFFERENT KINDS OF LEGAL WRITING There are many different types of legal writing, not merely good writing versus bad writing. Legal documents can differ significantly in structure, vocabulary and tone, reflecting differences in purpose and intended readership. These documents can be categorised in a range of ways. One category is those documents that have legal effect, including legislation, contracts and wills. There are books devoted to the special rules of drafting for these types of documents.2 A second category includes documents that reflect legal analysis, such as case notes, legal briefs or memoranda, and letters of advice. Law school assignments and exams often take this form, posing problem questions and asking students to provide a response in the form of a hypothetical legal advice. These are discussed further in Chapter 22. This category would also include other peculiarly legal documents such as pleadings, written submissions to judicial and quasi-judicial bodies, and judgments of courts and tribunals. A third category comprises commentary on law and legal issues, found in journal articles, books and legal essays. In this chapter we outline general principles that should be used for all legal writing, but then focus on specific principles that are most relevant to the second and third category of documents, followed by specific advice on writing legal essays.

20.1

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For example, Peter Butt, Modern Legal Drafting: A Guide to Using Clearer Language (Cambridge University Press, 3rd ed, 2013).

2

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DEVELOPING SKILLS, VOICE AND STYLE Before explaining these principles, it is worth noting that writing is like any other skill in that it can be taught and can be learned. Unfortunately, many lawyers write poorly because they have learned to write primarily by osmosis, absorbing the bad habits of poor legal writers that have come before them. As discussed below, much legal writing is bad writing and one challenge for the law student is to break the cycle of learning poor legal writing skills by choosing not to adopt bad writing habits from what they read. This chapter seeks to teach key principles of good writing so students can learn this invaluable skill. This might not come easily and will require practice, but students new to law at least have an advantage over senior members of the profession: they do not first need to un-learn many bad writing habits for which lawyers are renowned. At this early stage of your legal career, you can approach the task of learning to write well, critically attuned to poor writing and striving to do better.These skills will assist you to assess the quality of the legal writing that you will encounter in your studies, in practice, and in the wider world. To be effective, legal writing needs to be clear and readable. Where possible, it should also be interesting. Lord Denning, one of the more effective legal writers of the 20th century, provided the following advice: I hold firmly to the view that — in speeches — or in judgments — if you are to persuade your hearers — or your readers — you must cultivate a style which commands attention. No matter how sound your reasoning, if it is presented in a dull and turgid setting, your hearers — or your readers — will turn aside. They will not stop to listen. They will flick over the pages. But if it is presented in a lively and attractive setting, they will sit up and take notice. They will listen as if spellbound. They will read you with engrossment.3

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20.5

While the prescriptions of law school assignments might pressure students to conform to a direct, brief and practical form of writing, with little scope for flourish and personal style, students should still try to make their writing as interesting as possible. It is also important to keep in mind that this tight, formal style is appropriate for the discipline of law, and should be learned for this purpose, but a good writer should be able to adopt different approaches for other fields. There is no such thing as a single ‘legal style’. Good legal writers each develop their own manner of expression. Lord Denning’s writing, for example, was characterised by a style of directness and simplicity. Former High Court Chief Justice Sir Owen Dixon adopted a legalistic style in his expression, to match his legal philosophy. Judge Learned Hand, of the United States Second Circuit, wrote in a descriptively complex fashion, similar to that of the classic philosophers. Yet each is recognised as having been a great judge, and great legal writer. Two more recent highly effective judgment writers, former High Court Chief Justice Murray Gleeson and former Justice Michael Kirby, had notably contrasting judicial writing styles. Gleeson CJ’s judgments are marked by their incisive analysis and logic, and their crisp and lucid expression. ‘His trademark analytical skills reduced legal propositions to aphoristic principle, and citation of authority to the truly essential.’4 Kirby J’s judgments, like those of Gleeson  CJ, are clear, deceptively simple and readable, although more Lord Denning, The Family Story (Butterworths, 1981) 216. Bret Walker, ‘Gleeson, Murray’ in Michael Coper, Tony Blackshield and George Williams (eds), The  Oxford  Companion to the High Court of Australia accessed via Oxford Reference Online (Oxford

3 4

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CHAPTER 20

discursive. Kirby  J’s judgments meticulously work their way through the full array of competing arguments, authorities and policy considerations, all fully referenced. Kirby J’s writing illustrates his view that ‘[j]udges are supremely individuals. Their expression is, in part, a reflection of their personalities and individual values’.5 His recognition of a broader range of influences on the law frequently led him to dissent, and ‘[d]issent against powerful counter-arguments brings out the polemicist in Kirby’.6 At times Kirby J’s passion for justice was express. At other times, he would deploy gentle humour to make his point. Gleeson CJ’s judgments were dispassionate and dry by comparison. He warned against humour as it might give the impression that ‘the judge appears to be taking the occasion lightly’.7 Despite their contrasting styles, Kirby J and Gleeson CJ both wrote effective and persuasive judgments. It is not uncommon for a reader, having examined Gleeson CJ’s majority judgment and Kirby J’s dissent, to agree with both. As with all expressive endeavours, an individual writing style comes with experience, and with exposure to other styles. For that reason, students should develop the habit of critically assessing the style of the material they read. Assessing writing critically is particularly important for students of law because they will read many examples of poor legal writing and must be wary of learning bad writing habits by default. With each generation, legal writing can improve if students adopt this critical reading habit and consciously seek to develop their writing skills. The general and specific principles of good legal writing and conventions laid out in this chapter provide guidance for the novice legal writer in developing their own personal writing style.

Legal Writing

20.6

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General principles of good legal writing Three general principles are touchstones for all legal writing: aim, audience and approach. To write effectively a writer must: • know what it is they are trying to achieve; • consider the intended readers of the document and whether the structure, vocabulary and tone they choose are appropriate for such an audience; and • take a plain language approach that is ‘clear, direct and straightforward’, enabling ‘readers to concentrate on the message conveyed, not on the difficulty of the language used’.8 WHAT IS THE WRITER’S AIM? When setting out to write a document, one of the first questions a writer should ask is: what am I trying to achieve through this writing? The aim or purpose of the document will obviously influence the content, but also choices about writing.

7 8 5 6

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20.8

University Press, 2007) . Quoted in Jessica Davis and Troy Simpson, ‘Humour’, in Coper, Blackshield and Williams (n 4). Simon Sheller, ‘Kirby, Michael Donald’, in Coper, Blackshield and Williams (n 4). Davis and Simpson (n 5). John Pease, ‘Plain English: A Solution for Effective Communication’ (Conference Paper, ACLA National Conference 2012 on New Horizons, 9 November 2012), 3.

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20.9

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20.10

548

For a substantial proportion of legal writing, the goal is to persuade.Whereas writing in other areas may aim primarily to inform or entertain, the lawyer’s central goal is often to persuade the reader that the point of view offered is the correct or preferable one. This is true whether the document is a set of draft terms proposed to a would-be joint venturer, a letter of demand to the opposing side in litigation, written submissions to a court, or a dissenting judgment. In seeking to persuade the judge or tribunal member, a lawyer making a submission will seek to emphasise the strengths of the client’s position and the weaknesses of the opposing case. The weaknesses in the client’s case and the opponent’s strengths may go unstated (subject to the ethical obligations discussed in Chapter 5), although clearly a good advocate would be acutely aware of them. A judge or tribunal member will need to provide a balanced assessment of both sides, while still seeking to persuade the reader of the rightness of the decision. Similarly a legal essay or journal article will seek to persuade the reader of its thesis, as explored further below.This purpose — to persuade — will influence the writer’s choice of structure, vocabulary and tone, among other things. However, the purpose of legal writing is not always to persuade. Instead, or in addition, the purpose might be to inform, explain, summarise, advise or predict. To be effective, a writer needs to know what it is they are trying to effect; what are they seeking to achieve in this piece of writing? For example, when writing a brief or advice on whether a person has a strong legal claim in particular circumstances, the goal is not to persuade, but to develop and assess (equally persuasive) arguments that could be put for each side in order to reach a prediction of what a court or tribunal might decide. For a contract or deed, there might be some persuasion necessary in the negotiation (if any), but ultimately for drafting the contract itself, the goal is not persuasion but ensuring that the document accurately and clearly reflects the agreement reached between the parties. Similarly, a will needs to be clear and unambiguous, not persuasive. So, while persuasive writing is really important and valuable, before undertaking any writing task the writer needs first to ascertain whether persuasion is the purpose (or one of the purposes). Two common forms of writing that students are expected to master are essays and problem responses or advices. These two types of assessment have different aims. Usually the aim of an essay is to persuade a reader of a particular conclusion or thesis. Essays require a balanced exposition and critical analysis of a research question, but must ultimately reach a conclusion and seek to persuade or lead the reader to that conclusion. In contrast, the aim of problem responses is to provide an objectively reasoned prediction of how a court or tribunal would determine the legal question asked. In most problembased assessments — and this includes nearly all law school exams — the student is asked to provide an objective prediction. The standpoint of the law student is most like that of a lawyer advising a client. A lawyer analysing how the law might apply to a particular scenario will consider both sides to an argument and anticipate counterarguments. A brief of that analysis should be objective, not persuasive, informing the reader about both sides of the argument in a balanced way to illustrate the basis of the writer’s conclusion or prediction of what a court or tribunal would decide. A student exam might ask: in light of the facts provided, does party X have a viable claim in this field of law? This calls on the student to consider arguments for and against the client’s claim. While students are encouraged to exercise judgement, and not simply ‘sit on the fence’, one of the most common mistakes in student work is lack of balance. A position is adopted vehemently;

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CHAPTER 20

Legal Writing

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the weaknesses of that position and the strengths of opposing points of view are ignored. If a client decides to press a claim, then the lawyer may need to draft litigation documents that are persuasive, but the advice stage is an objective analysis of the options and chances of success in pressing or defending a position. WHO IS THE WRITER’S INTENDED AUDIENCE? Having identified the aims of a document, a writer should also ask: who is the audience or intended readers for this document? This question is important in at least two ways: language and structure. First, the language should be tailored to the intended reader. For example, some legal jargon is acceptable and even convenient for a lawyer writing for another lawyer, while similar words should be replaced or explained for a lay reader who has no legal education, and further simplification might be warranted for readers who have low levels of literacy. Similarly, in addressing a member of a highly specialised tribunal, like a workplace relations commission, for example, the lawyer could assume an understanding of technical terms specific to that legal field. The choice of language also affects the tone of a document. Tone can be effected by choice of vocabulary, addresses and sign-offs, level of formality, and so on. A writer would not employ the same tone in a submission to a judge as in a memo to a colleague in a law firm. Second, a document’s intended audience should also influence its structure: a writer should structure their paper with the reader in mind.Thinking about the intended reader, it can help to ask a series of questions. What does the reader already know and what do they want to know from this document? What do they want to know first? What writing tools — such as headings, topic sentences, and an introductory abstract — would make it easier for the reader to navigate and access all the detail in the paper? Are definitions or preliminary explanations needed to enable the reader to understand or be persuaded by the analysis? Good writing will make the reader’s job easier in accessing the writer’s message.The writer might have pored over many cases in order finally to develop an understanding and reach a conclusion on the issues, but the reader should not be dragged along that same laborious journey. Similarly, for essays, the reader does not need to know that the writer read every single possibly relevant case or article; the reader simply wants to know the results of that labour. A busy magistrate with a heavy caseload would particularly appreciate writing that makes the text more accessible, but it is probably safe to assume all readers are busy and would appreciate writing that is made easy for them to read. Matters may be complicated, but the writing should not make them more so. Structure and writing devices can be used to assist the reader. For example, if the document necessarily contains a lot of detail, the writer can make this more navigable and digestible by ordering it logically (from the reader’s perspective) and signposting how the detail is organised with headings, numbering and topic sentences. Providing the ‘answer’ up front can also help. Judgment writing has improved significantly in this way, often providing the outcome very early in the judgment soon after a succinct statement of the issues, before proceeding through the law, evidence and other considerations that led to the conclusion, using headings and other signposts. If the writer does not know the audience, it is best to assume that the reader has some general knowledge of the law, but little or no specialised expertise. Bryan Garner

20.11

20.12

20.13

20.14

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suggests that, in the absence of knowledge to the contrary, it must be assumed that the audience comprises ‘well-informed generalists’.9 Often for law school assessments the audience is taken to be a legal generalist — someone who would understand basic legal terminology and principles of law, but who would need the elements or specific rules of a legal action and authorities laid out for them.

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PLAIN LANGUAGE Over time there has been growing recognition that lawyers have developed some very poor writing habits, and support has steadily grown for a plain language approach. Since at least the 14th century, people in England have objected to the impenetrability of legal language. But it was in the 1970s in America and the United Kingdom that an organised effort began to encourage plain English expression in legislation and legal documents.This approach was followed in Australia when, in 1985, the Commonwealth Government revised forms for social security claims and income tax returns. Since then the campaign has continued within government10 and the legal profession. An international network, Clarity, was established to promote plain legal language, with international experts contributing to a website and journal to explain the benefits of this approach and provide guidance on how to achieve it.11 Plain language is ‘clear, direct, and straightforward’.12 One of the earliest and most influential leaders in the push for a plain language approach in legal writing was Professor Robert Eagleson, who described it in the following way:

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‘Plain language’ is the opposite of obscure, convoluted, entangled language. It’s the opposite of language that takes a lot of effort and energy to understand and unravel. Plain language should not be equated with ‘simple’ in the sense of simple minded. Nor should it be equated with ‘simple’ in the sense of ‘childish’ … Nor should it be equated with ‘simple’ or ‘simplified’ in the sense of a reduced document that only gives part of the message ... Plain language, on the contrary, makes use of the full resources of the language. It’s good, normal language that adults use every day of the year. It lets the message come through with the greatest of ease.That’s the best definition and the best way we should look at plain language.13

20.17

There are a number of common problems with legal writing that students should try to avoid learning. Some of these are noted in the quote above, and others are discussed below. These problems include using too many words, antiquated English and jargon, when fewer, plain English words would be more effective. Often it is not only the word choice but convoluted sentence structure that makes legal writing hard to read; the use of passive voice and buried clauses are the typical evils. One reason for poor legal writing is historical. In the past, lawyers who drafted pleadings were paid by the folio, an old measure consisting of 90 words; thus, the longer the document, the greater the lawyer’s income. Some words are also said in multiple ways for historical rather than legal reasons. Over time different languages were used for law in early England and we see vestiges of this in the use of doublets and even triplets in legal Garner (n 1) 181. ‘Plain Language’, Office of Parliamentary Counsel (Web Page) . 11 See Clarity (Website) . 12 Pease (n 8). 13 Robert Eagleson, The Case for Plain Language (Canadian Law Information Centre, Toronto, 1989). 9

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writing, where the author uses two or even three words for the same thing.14 Examples abound of such doublets using both the English and old French terms, such as ‘breaking and entering’, ‘final and conclusive’, and ‘goods and chattels’. An example of an English/ Latin doublet is ‘will and testament’. Another reason for poor legal writing is that archaic constructions reflect the 20.18 inherently cautious nature of those who practise law. If a given phrase has been in legal use for several hundred years, a lawyer may be reluctant not to use it out of fear of missing something — even if the words are no longer in general English usage. The lawyer may not understand what the phrase means (and it may long have been rendered superfluous by a change in the law), but assumes that it must be there for a purpose. A third reason is that many people, lawyers included, equate wordiness with wisdom. 20.19 Ironically, the opposite is more accurate. Prolixity and convoluted expression reflect ignorance, or laziness of thought; simplicity of expression is a clearer sign of understanding. Consider the following alternative drafting of the same contractual provision:

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Know All Persons By These Presents that the party of the first part, to wit John Doe, doth hereby promise, covenant and agree to pay over, in consideration for divers services rendered, to the party of the second part, to wit Richard Roe, the sum and amount of five hundred dollars of the lawful currency of the Commonwealth of Australia, and that the sum hereinbefore mentioned shall be paid over by the 21st instant, viz 21 June, AD 2015. John Doe promises to pay $500.00 (AUD) to Richard Roe by 21 June 2015 in consideration of work completed.

The first version illustrates a number of common legal writing habits. There are simply too many words, antiquated English terms, doublets (sum and amount) and even a triplet (promise, covenant and agree). Further, the writer has used unnecessary capitalisation which is distracting, repetition (‘21st instant, viz 21 June’) and ‘throat clearing’ introductory words that add nothing. It should be obvious that the primary reason to use a plain language approach is 20.20 that it makes writing easier to understand. The writing is thus more likely to be effective. This has implications for productivity, with less time being wasted in deciphering poor prose. Advocates argue that plain language drafting reduces disputes, with clients understanding their legal advisers and parties understanding what it is they are agreeing to. The Australian Government also points out an access to justice rationale for writing laws in plain language: ‘Laws that are clear and easy to understand are an essential part of an accessible justice system. Clearly written laws can be better understood, complied with and administered.’15 And one of the five principles for clearer laws used to guide the development of Commonwealth legislation is: ‘Legislation should enable those affected to understand how the law applies to them.’16 Another reason for using plain language whenever possible is that it is a more 20.21 efficient means of transmitting information. Lawyers (and legal academics) are busy people, and few things are as likely to attract their ire as having to wade through pages of unnecessary verbiage in order to extract a few lines of substance. Indeed, as Lord Denning Pease (n 8) 6. ‘Reducing the Complexity of Legislation’, Attorney-General’s Department, Australian Government (Web Page) . 16 Ibid. 14 15

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remarked in the passage quoted at 20.4, many will simply not bother to do so — they will abandon the effort. In one famous instance of exasperation, Lord Ellesmere, a well-known 16th-century judge, ordered that a lawyer who had drafted a wastefully long document be forced to hang it around his neck, and be publicly humiliated by being paraded around the law courts, after which he was to be put in gaol. The lawyer was also ordered to pay a fine to the other party in the lawsuit, for having forced him to go to the bother of reading the inflated document.17

Specific principles of good legal writing 20.22

20.23

We have already outlined three key elements for effective legal writing — aim, audience and plain language approach. Next we elaborate on some more specific directives for plain language legal writing: precision; plain English words; active voice; short sentences and coherent paragraphs; formality; and referencing. A useful summary of the guidelines for effective legal writing is in John Pease’s 2012 paper for the New Horizons conference.18 PRECISION Legal writing must be as precise as possible.Vagueness and ambiguity are inimical to the law. Unnecessarily long words, strung together in complicated sentences, often serve as a weak disguise for woolly thinking. Simple, clear and concise writing is possible only if In Mylward v  Weldon (1596), discussed in Lord Campbell, ‘The Life of Lord Ellesmere’ in Lives of the Chancellors (John Murray, 4th ed, 1856) vol 2, 318–19. 18 Pease (n 8).

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writers understand what they are writing about. This requires considerable mental effort and planning. In most instances, precision and simplicity go hand in hand. As Bryan Garner says: ‘Good legal style consists mostly in figuring out the substance precisely and accurately, and then stating it clearly.’19 PLAIN ENGLISH WORDS, NOT JARGON OR ANTIQUATED ENGLISH A plain language approach is about choosing the simplest words for the audience and 20.24 purpose of the writing. As noted at 20.16, this does not mean being simplistic but choosing words carefully for the intended audience.The challenge is to impress the reader with the ideas and with clarity of expression, not pretentious vocabulary and complicated sentences. Over centuries the law has developed its own extensive vocabulary. Many of the 20.25 expressions in everyday legal use are meaningless to the non-lawyer. In part this is due to the foreign derivation of many legal words — ‘tort’ (French for ‘wrong’); ‘mens rea’ (Latin for ‘the guilty mind’, signifying the mental element of the crime). In other cases, the words mean something different in a legal context from their meaning when used by non-lawyers. Consider the word ‘assault’. To most people, an assault is an act of physical violence (often unprovoked) against another. In the law of tort, however, an assault is an act which causes someone to fear that they may be subjected to immediate physical harm. The actual ‘violence’ itself, which may consist of any physical contact without consent, is called a ‘battery’. (‘Battery’ is another French-derived word — from ‘battre’ meaning ‘to beat’ — with a specialist legal meaning.) In some jurisdictions, an assault is now deemed to include battery, but it would be incorrect for a legal writer to casually use the word assault in the lay sense. In order to ensure precision in legal writing, familiarity with the correct use of legal terminology is essential. A good legal dictionary is helpful for this purpose. The unnecessary use of jargon should be avoided. In some cases, a Latin or old 20.26 French expression is necessary to capture a precise legal concept, but more often than not an English word would do just as well — and is much less pretentious. Sometimes ‘jargon’, in the sense of language peculiar to a profession or group,20 is acceptable at least when the intended audience is other lawyers who share an understanding of those terms. However, when writing for readers who are unfamiliar with such terms, using this jargon will make the writing less intelligible and thereby less effective. ACTIVE VOICE Generally, the active voice is more interesting to read than the passive voice. The reader 20.27 is more likely (to borrow Lord Denning’s expression) to ‘sit up and take notice’.21 ‘The accused drove the getaway car’ has a greater sense of urgency than ‘the getaway car was driven by the accused’. Much legal writing offends this precept. Students should strive from the beginning of their law studies to develop an arresting writing style.

Garner (n 1) 2. Macquarie Dictionary (online at 18 June 2020), ‘jargon’ (def 1). 21 Denning (n 3), quoted at 20.4. 19 20

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20.28

20.29

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20.32

There is a second, possibly more important reason to prefer the active voice: it conveys more information. While the active and passive examples in the last paragraph convey the same amount of information, it is possible to omit key elements of the story when using the passive voice. It is permissible to say ‘the car was driven away’, and this leaves the reader not knowing who drove the car. Similarly, using the passive voice a writer might say ‘Alex was injured’, ‘the car was struck’, or ‘the property was cleared’. For all of these sentences the subject, that is the person doing the action, is left unknown. Of course, there are times when the passive voice can be used purposefully and to good effect, but a writer should know when and how to deploy it. It can be used intentionally to obscure the subject or to direct attention toward the object. So, for example, a writer might say ‘Alex was injured’, leaving us ignorant of who or what caused Alex’s injury. This could be done intentionally if the person or thing that caused the injury is not relevant or is not known, or if the writer wishes to deflect attention from the cause of the injury. In this case, the passive voice draws attention to Alex’s condition and this could further the writer’s goal. In general, writers should use the active voice because it is punchier and conveys more information, but a passive construction can at times be more effective in achieving the writer’s aim. SHORT SENTENCES AND COHERENT PARAGRAPHS The length and structure of sentences and paragraphs can have a significant impact on readability. Just as the overall structure of the document should be considered with the reader in mind, so too should the intermediate structure of paragraphs and the micro structure of sentences. Use short sentences. They should not be so short that the writing has a staccato effect, but neither should they be so long that the reader loses track of the point. Each sentence should have only one or two points.We have words and punctuation that enable points to be connected and this can help to create flow in an argument, but do not overuse them to create long strings of points. Break the sentences up. There are various views but, as a rule of thumb, sentences should be approximately 25 words on average. This is, however, only an average, not a strict limit. If structured well, some sentences can be significantly longer, but they should be balanced with shorter sentences. A mixture of short and long sentences can make writing more readable because it is clearer, more interesting, and has a discernible rhythm that is more attractive to the ear of the reader. Often the problem with long sentences is not merely the number of words, but the poor structure. One particular structural problem often found in legal sentences is the buried clause. When a writer wants to make one point, but also wants to qualify or elaborate on that point, they can fall into the trap of burying the qualification or elaboration within the first point. Often the sentence flow, and thus the readability, improves if the points are made sequentially instead, either as related clauses or sentences. Take a look at the following example of a relatively short (italicised) buried clause, followed by two alternative ways of drafting. The plaintiff, after participating in the training program run by the defendant on new construction methods, applied for a building licence.

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Alternatives: The plaintiff applied for a building licence after participating in the training program on new construction methods run by the defendant. The plaintiff applied for a building licence. She did this after participating in the training program on new construction methods run by the defendant.

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These simple revisions do not change the meaning of the sentence or add unnecessarily to length; they reorder the content to improve readability. Many sentences reflect far worse crimes, having clauses within clauses, some buried so deeply that the reader has trouble climbing back out and finding the original thread. In legal writing it is common that points need to be qualified or elaborated upon, in part because we are striving for precision. The lazy option is to bury the qualification in the middle of a sentence. The better option is to set it out as a separate but connected point. In this way, the writer draws the reader to a conclusion, rather than losing them in a valley of subclauses. Paragraphing is a useful way to bundle information into digestible chunks for readers, 20.33 with each paragraph leading the reader step by step to a conclusion. As a writer’s ideas develop and coalesce into separate but related points in an argument, the writer is then able to think about each point as a paragraph. Each paragraph should be coherent, dealing with one central point only and that point should be outlined in the first sentence, often referred to as the lead or topic sentence. One tip for writing: if a writer is struggling to capture the essence of a paragraph in a single topic sentence, either the writer’s thinking needs more development or there are simply too many points in the paragraph. In the latter case, the ideas should be teased out to form separate paragraphs. Good writing also provides links or transitions between paragraphs to guide the reader. FORMALITY Given the gravity of the subject matter, legal writing generally calls for formality in 20.34 style. The writer should strive for a dignified tone, although this should not be pompous or stuffy. Avoid colloquialisms, slang and casual constructions. For example, never use expressions such as ‘the plaintiff did not have a hope’, or ‘the defendant went berserk when he heard the verdict’. Contractions, such as ‘isn’t’, ‘don’t’ and ‘can’t’, also should be avoided. Another aspect of tone is exaggeration and sensationalism. Legal writing generally should not shout or exclaim. It should cogently persuade by appealing to logic, emotion and other values, in a methodical and measured way, not by overwrought assertions or ‘straw man’ arguments. The most effective legal (and other) writing is marked by its understatement. Generally the third person should be used in legal writing. However, this once strict rule has been relaxed to some extent and, as with all good writing, the intended audience is relevant. If a personal opinion is being expressed, the use of ‘I’ or ‘we’ may be acceptable. Again, knowing your audience is important but, if in any doubt, use the third person. REFERENCING: AUTHORITY AND HONESTY Good legal writers always provide support for arguments and reference their sources. 20.35 These two points about providing and referencing authority are separate but related. In order to persuade, generally the writer needs to draw the reader step by step through

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the argument to a conclusion. Each of these steps, unless they follow purely by logic, generally needs support. Two types of support are outlined below. Whenever the writer relies upon another source as support, this must be referenced for the sake of honesty.

20.36

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20.37

Authority In seeking to persuade or advise, arguments and assertions need to be supported. For any proposition about what the law is, a writer must point to a primary source of law (legislation or case law) so that the reader can check that the law is as it has been stated. A writer arguing for reform or a new way to think about the law might also draw on secondary sources such as academic commentary to support arguments. Writers should make clear that these sources are commentary and generally they should not be used to support assertions of law. For example, in an essay about appropriate speed limits for driving on public roads, an assertion about the existing legal speed limit should be supported by a reference to the statute in which the legal speed limit is set, not to commentary on speed limits. Then, if the writer seeks to develop arguments about the merits of one speed limit over another, other kinds of authority might be drawn on for support. This might include empirical research about the risks of speed limits, accident rates or behavioural responses of drivers to limits. In this way, the research is used not as legal authority about what the law is, but support for an argument about law reform options. For reasons of academic honesty, the sources of that research must also be acknowledged and appropriately referenced. Whatever the context, whenever a lawyer makes an assertion of legal principle in argument, it must be supported by authority. Even when a proposition is relatively straightforward (such as the statement that the law requires that we take reasonable care not to injure our neighbour22), an authority should normally be cited. In legal proceedings, a judge or tribunal member is liable to become irritated by counsel who does not have authority readily at hand, and this may impact adversely upon their view of the client’s case. Due to the nature of our legal system, legislation and decided cases are the preferred sources of authority, particularly when developing arguments which will be offered in a court or tribunal. Generally, the strongest authorities should be provided. These are determined by Australia’s constitutional framework and the doctrine of precedent, as discussed in Chapters  3 and 7–8, respectively. Applicable legislation should always be cited, as should the most recent decisions of the highest courts. Academic or scholarly writing is accorded less weight by courts and tribunals in Australia and other common law countries than it is in jurisdictions with civil law systems such as Germany, France and Japan. Clearly, case law and legislation are sources of law in themselves, whereas academic writing, no matter how learned, is only the writer’s opinion on the law. Nevertheless, Michael Kirby, in a qualified defence of academic writing in law reviews, commented: ‘Their impact is large. In my opinion, it is growing.’23

Donoghue v Stevenson [1932] AC 562, 580 (Lord Atkin). The case, and the principle, is discussed at 7.4. Michael Kirby, ‘Welcome to Law Reviews’ (2002) 26 Melbourne University Law Review 1, 11.

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Honesty If a writer uses another person’s words or ideas, they must acknowledge this. Failure 20.38 to acknowledge sources constitutes academic dishonesty. This might not be done intentionally and could merely be negligent or sloppy, but nonetheless it is effectively the theft of someone else’s work. Sentences or parts of sentences taken from the work of another person must be placed in quotation marks or, if a quotation of more than a few lines, in an indented paragraph.When using another person’s words, it is not sufficient just to acknowledge that author in a footnote or a bibliography.The writer who fails to give a full citation for an extract, however short, has committed an act of plagiarism, the gravest literary transgression. Students who have any concerns as to whether they understand what amounts to plagiarism, and the consequences for anyone found to have plagiarised, are advised to consult their institution’s policy on academic honesty and plagiarism. If still in doubt, the student should consult the teacher. Plagiarism is not only dishonest; it may also affect the ability of law schools to 20.39 certify that the person is ‘of good fame and character’ for the purpose of admission to practise law. The prevalence of plagiarism has increased with the ease of downloading material from the internet. Law schools that require online submission of assignments use detection software to identify academic dishonesty. Penalties for dishonesty can be applied during, and possibly at the end of, law studies when the student is seeking admission to the legal profession: see 5.17ff. Regardless of sanctions, a student’s use of the words or ideas of others without attribution stands in the way of the student’s own understanding.The practice also inhibits the student from developing their own good legal writing skills, which are critical for success.

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Writing conventions In addition to the general and specific principles of good legal writing, there are also legal 20.40 writing conventions that law students should seek to follow. These are only conventions, so not absolute. More specific requirements might be imposed for particular assignments, submissions for publication, or court or tribunal documents. ‘Style guides’, or lists of requirements about formatting, for example, are generally adopted by each law school or legal publication.The most commonly used guide for legal writing in Australia now is the Australian Guide to Legal Citation24 (AGLC) which is used for Laying Down the Law and explained further in Chapter 21. For any particular assignment or submission, students should find out which style guide has been adopted and seek to comply with it. They should also check and seek to comply with requirements about formatting, submission and word limits. Some law schools impose penalties for noncompliance with word limits, and courts often reject documents if they are not in the right format, so it is important to be informed and compliant. The following sections merely provide an outline of key conventions in legal writing.

Australian Guide to Legal Citation (Melbourne University Law Review Association and Melbourne Journal of International Law, 4th ed, 2018).

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20.41

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20.42

20.43

FOOTNOTES, ENDNOTES, TABLES AND BIBLIOGRAPHIES As a general rule, supporting references should be contained in notes. These may be footnotes found at the bottom of each page, or endnotes found at the end of the work. All notes begin with a capital letter and end with a full stop, and should be numbered consecutively. As stated in 20.38–20.39, students must provide proper references for all statements of law and wherever they draw on the work of others, whether it is quoted or paraphrased. The precise way in which this is done, whether by way of footnotes, endnotes, tables or a bibliography, will depend upon the convention adopted by the institution to which the paper is being submitted. The practice for exams differs, as noted in 22.32. Citation of authority must comply with the applicable style guide, and the AGLC rules are summarised in Chapter 21. If the reference is to a quotation, or to a discrete point, a ‘pinpoint reference’ is required, which is one that includes the specific page or paragraph where the quotation or point is located. Footnotes and endnotes may be used to make tangential points, but this is best done sparingly. Footnotes and endnotes should not be used as a place to deposit content that does not fit into the body of an essay because of the need to conform to a prescribed word count; often limits on words in assignments will include such discursive footnotes. QUOTATIONS Given the importance of precedent and authority in law, the use of quotations is common in legal writing. The extent to which quotations are used will depend on the particular form of legal writing. If the object is to provide a comprehensive statement of law, as in a casebook or textbook, long quotations and case extracts may serve a useful purpose. Parts of Laying Down the Law exemplify this: see, for example, case extracts in Chapter 7. If, however, an argument is being developed, quotations should be used only to the extent that they advance the argument. Sometimes the exact words of a quotation need to be provided, but often it will be more advantageous to paraphrase. Long quotations are rarely called for in legal argument. These comments apply both to arguments as to how current law applies to factual problems and more critical legal arguments. Many students weaken their argument and receive lower marks in assignments because of the overuse of unnecessarily long quotations. The ability of a student to paraphrase accurately has the added advantage of demonstrating the student’s understanding of the material. Remember that even when another author’s ideas have been paraphrased rather than used word for word, they must be referenced. A quotation must be indicated as such by the use of single quotation marks. If, however, a quotation is more than three lines long, it is presented in block format: set apart, indented, with reduced font, and without quotation marks.25 If a quoted source contains a grammatical or typographical error, the Latin word ‘sic’ (‘so’ or ‘thus’) in square brackets can be included immediately after the error to show that something has been copied exactly from the original. For example:‘Some of the man [sic] detailed for the job were unavailable.’

Ibid [1.5.1].

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While quotations must be reproduced in such a way as to maintain the sense of the original work, it is permissible to shorten them by omitting portions of a long passage. This is done by the use of an ‘ellipsis’ (which has the appearance of three full stops) to indicate the omission. For example: ‘The life of the law has not been logic: it has been experience … The Law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.’26 If the writer wishes to add an explanatory word or phrase in a quotation, this is done by the use of square brackets. For example: ‘Latham CJ went on to add that it [ie the plaintiff ’s conduct] was reprehensible.’ Similarly, if a writer wishes to change a quote slightly, the changes should be acknowledged using square brackets, but writers need to be careful not to misquote or change the meaning of another author’s words.

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ITALICS AND EMPHASIS Depending on the style guide being followed, italics may be used for case names, the 20.44 title of Acts and book titles: see Chapter 21. Italics may also be used for foreign words and phrases. The AGLC adopts the convention that italics should be used for foreign words and phrases unless they appear in the latest edition of the Macquarie Dictionary, and notes that this dictionary contains quite a number of common legal terms, such as ratio decidendi, obiter dictum, ultra vires and bona fide.27 Italics should not be used for quotations. Using italics to emphasise words should be done sparingly.To emphasise a particular point, it is at times better to revise the sentence structure and choice of words. When adding emphasis to a word or expression in a quotation, the writer should indicate this by noting ‘emphasis added’ in the footnote or endnote after the citation. If the original work contained emphasis, some people indicate that they have not added it by noting ‘emphasis in original’. CAPITALS As much as possible, capitalisation of words should be avoided. The general rule is that, 20.45 unless the writer is referring to a specific institution, or to a specific holder of an office, the word should begin with a lower-case letter. For example, generic words like court and government should always begin with a lower-case letter unless the author is referring to a specific court or government. In compliance with this convention, you should write the ‘Commonwealth Government’ and ‘state governments’. The term ‘common law’ is always written in lower-case letters. By convention, capitals are used for an ‘Act’ and a ‘Bill’ of Parliament, but not for a ‘statute’, ‘regulation’ or ‘legislation’. The AGLC states that particular words — including ‘Parliament,’ ‘Crown’, ‘Cabinet’, ‘Executive Council’, ‘Ministers’ (of the Crown) and the ‘Bench’ — should generally begin with a capital, but references to the ‘legislature’, ‘the executive’ branch of government or the ‘judiciary’ should not.28

Oliver Wendell Holmes Jr, The Common Law (Little, Brown and Co, 1881) 1. AGLC (n 24) [1.8.3]. 28 Ibid [1.7]. 26 27

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20.46

GRAMMAR AND PUNCTUATION To communicate well in any language, the rules of grammar and punctuation need to be understood and complied with. Incorrect grammar or punctuation can significantly undermine the clarity of writing. All writers should proofread their work carefully to identify and correct such errors. Any writer who is not confident in their grasp of English grammar should pay attention to grammar-checking software or find and use reliable grammar resources. However, the rules of grammar do evolve and are arguably not as rigid as some pedants assert.

Legal essay writing 20.47

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20.48

560

The two most common forms of assessment in law school are legal essays and problem responses that are akin to a legal advice. Both are used to encourage and assess knowledge of the law, critical thinking and written communication. Problem responses require students to objectively determine what the law is in respect of a particular issue, apply the law to a specific set of given facts, and exercise judgement in suggesting a conclusion about how a court or tribunal would rule on the matter. (The role and requirements of problem responses are explained more fully at 20.10, 22.2 and 22.32.) In contrast, essay assessments are used to encourage students to research more widely, beyond the legal doctrine, and draw upon both primary and secondary sources of law. Essays require students to analyse the sources critically and, importantly, they call upon the student to synthesise the ideas and present the student’s own views to the reader in a balanced but persuasive way. CRITICAL THINKING Critical thinking is highly relevant to essay writing. Essay questions are often explicitly framed as a request for the student to ‘critically analyse’ an issue, legal response, case, proposal or theory. Even without this explicit reference, all essays require students to undertake critical thinking. As discussed in detail in 22.20–22.22, critical thinking means being able to reason objectively; underpinning this is the need to ask questions about facts, assertions, arguments and conclusions. Critical thinking is required to enable students to develop their own informed opinion about a topic and express it in an essay. Identifying and summarising the arguments of others can demonstrate good research and an understanding of a topic, but most assignments require more than a parroting of others. Usually in legal essay writing, students are expected to engage with the essay topic or question by providing arguments and counterarguments, based on research, as a means of developing their overall thesis or argument. This thesis should be derived from the student’s research, synthesis of sources and critical analysis.The thesis should drive an essay and be threaded throughout. Each argument or point within an essay should function to develop and strengthen the legitimacy of the student’s thesis. Counterarguments and flaws must be entertained rather than ignored; a thesis cannot simply be dogmatically asserted. If a counterargument can be refuted, this will strengthen the thesis. Alternatively, the counterargument might express an alternative view or qualification to the conclusion. It is important that a legal essay should be persuasive, but at the same time remain balanced.

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CHAPTER 20

Legal Writing

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Students in their early years of study are not expected to develop a wholly new 20.49 argument or interpretation of the law in order to present a thesis or distinguish their ideas. However, critical thinking about sources must be demonstrated.Treating sources critically means asking the types of questions noted in 22.21.This will enable the students to engage with the ideas of others and explain whether they think they are justified. Students must explain why they agree or disagree with ideas, arguments or interpretations, and justify that stance. Later year students may extend or elaborate on the ideas or arguments of others. This could be done by considering the appropriateness of the author’s apparent values, ideas of what the law aims to do, or the role of legal institutions or practitioners. However, students must always keep in mind that their reasoning should be based primarily on research rather than what they think is correct. Some students fall into the dangerous trap of manipulating or taking the ideas of others out of context in order to prop up their own thesis. Students must be careful not to omit or dismiss research, simply because it does not accord with their own argument. Engaging in these practices is its own form of academic dishonesty. It is paramount that students do not misuse the sources upon which their legal essay is based. In general, students should try to approach their research with an open mind, rather than a mind that is already decided on taking a certain path. Often, students will have an argument in mind when they begin their research, and then in the course of the research realise they need to reconsider their position.

STRUCTURE AND WRITING The hallmark of a good piece of legal writing is organisation. The aim is to lead the 20.50 reader step by step through the argument. At each step, every proposition should seem so reasonable, and the explanations so clear, that the reader cannot possibly fail to agree. If this is done successfully, there will be no alternative but to accept the suggested conclusion.

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20.51

20.52

20.53

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20.54

562

All legal essays should begin with an introduction, which leads the reader into the topic or subject matter, and tells the reader why the piece is being written. Is it to provide an opinion on a particular legal problem? Is it meant to be a balanced presentation of both sides of a case? Or is it intended to be partisan — to advance a certain line of argument? Does it provide a critical explanation of how the law operates? Or does it argue for a change in the law? In longer pieces of writing, the introduction should also foreshadow the major steps in the writer’s argument. The scene should be set for the reader at the outset. Following the introduction, there should be a methodical presentation of the points to be made. The use of separate headings often helps to organise the writer’s thoughts, and to identify for the reader the point or points to be focused on. If the author has more than one argument to make in support of a given point, it is generally best to begin with the strongest, and continue to the weakest. Some very good advocates employ a different method, saving their strongest arguments until last, but a writer should be confident before adopting that practice. As discussed at 20.48–20.49, essays require more than mere description. They require critical analysis and argument, usually in response to a specific research question. Some description of the law, context or relevant scholarship is always required, but this is only an intermediate step on the path to developing an argument. Similarly, arguments need to be made, but if they are not supported with authority (as noted in 20.36–20.37), the job of writing is not complete. Finally, there should be a conclusion, summing up what has been said. In effect, the conclusion’s aim is to provide a succinct ‘answer’ to the research question posed in the introduction. Remember that while an essay should provide balanced and critical analysis of both sides or all angles on an issue, ultimately the writer is trying to persuade the reader of the validity of their conclusion. The conclusion should not be a re-hash of all that has been said, but it is one final opportunity to draw together the key points and lead the reader to the writer’s conclusion. One final tip: when timetabling your work, make sure that you leave adequate time for polishing and proofreading. Before submission, read your answer carefully, sentence by sentence, one last time. As well as looking for typographical and grammatical errors, compliance with word limits and formatting requirements, check the writing for audience, aim and approach. Consider what you are trying to achieve with the writing, keeping in mind who the audience is; ultimately, consider it for clarity. In relation to each sentence and each paragraph, ask yourself whether it expresses precisely what you intend to say. Is it clear and direct? Is the research question articulated in the introduction? Has the essay done more than merely describe the law, facts or existing scholarship? Have arguments been supported with authority and have sources of authority been appropriately referenced? Are there signposts such as headings, topic sentences and transitions to guide the reader through the argument? Are there excessive or antiquated words, unnecessary jargon or convoluted constructions that need to be addressed? Finally, does the conclusion succinctly draw the arguments together, answering the question that is posed in the introduction? There are few legal writers whose work cannot be improved by being subjected to this process.

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CHAPTER 20

Legal Writing

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Further reading • James K Aitken and Peter Butt (eds), Piesse — The Elements of Drafting (LawBook, 10th ed, 2004). • Michèle Asprey, Plain Language for Lawyers (Federation Press, 4th ed, 2010). • Peter Butt, Legal Usage: A Modern Style Guide (LexisNexis Butterworths, 2018). • Peter Butt, Modern Legal Drafting: A Guide to Using Clearer Language (Cambridge University Press, 3rd ed, 2013). • Clarity (Website) . An inter­ national association promoting plain legal language. • Robert Eagleson, Gloria Jones and Sue Hassall, Writing in Plain English (Australian Government Publishing Service, 1990). This book offers practical advice, illustrated by examples, on how to write clearly and concisely. • Bryan Garner, Garner’s Dictionary of Legal Usage (Oxford University Press, 3rd ed, 2011). Patterned after HW Fowler’s famous work, A Dictionary of Modern English Usage, this is a guide to the correct use of legal terminology. • Bryan Garner, Legal Writing in Plain English: A Text with Exercises (University of Chicago Press, 2nd ed, 2013). • Bryan Garner, The Elements of Legal Style (Oxford University Press, 2nd ed, 2002). A wonderful little book on the art of legal writing. • Stephen Murray-Smith, Right Words: A Guide to English Usage in Australia (Penguin, 2nd revised ed, 1990). A guide to Australian usage of the English language. • Lynne Truss, Eats, Shoots & Leaves:The Zero Tolerance Approach to Punctuation (Profile Books, 2003). On its release this entertaining guide to grammar became a surprise international bestseller. • Richard C Wydick, Plain English for Lawyers (Carolina Academic Press, 5th ed, 2005). A favourite of American law students, legal writing teachers, lawyers and judges.

To enhance your learning experience, use the student resources available on Lexis® Learning See the Visual Preface at the front of this book on how to register.

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CHAPTER

21 Referencing and Citation Counsel: ‘In the book of nature, my Lords, it is written …’ Lord Ellenborough: ‘Will you have the goodness to mention the page, Sir, if you please?’1 Lord Campbell, ‘The Life of Lord Ellenborough’ in Lives of the Chief Justices (John Murray, 1857) vol 3, 239.

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1

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Introduction 21.1 Conventions in legal citation 21.4 What sources should be referenced and when? 21.6 Subsequent references 21.11 −− Subsequent reference to single source in immediately preceding note

21.12

−− Subsequent reference to any other source

21.13

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Citing cases 21.14 −− Reported cases and medium neutral citation

21.15

−− Case name

21.17

•

Description of parties

•

Criminal cases and prerogative writ proceedings 21.19

•

Re proceedings 21.20

•

Cases in which the identity of the parties is kept confidential 21.21

•

Popular case names 21.22

21.18

−− Year and volume number of report series

21.23

−− Title of report series

21.24

−− Page and paragraph references

21.25

−− Alternative citations and authorised reports

21.26

−− Unreported decisions

21.27

−− Old English cases

21.28

−− Case histories

21.29

Citing statutes 21.30 −− Numbering of statutes

21.31

−− Short titles or names

21.32

−− Enacting jurisdiction

21.33

−− Section references 21.34 −− Citing British and Imperial statutes

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21.35

CHAPTER 21 Referencing and Citation

−− Constitutions 21.36 −− Bills and explanatory memoranda/notes

21.37

−− Regulations and other delegated legislation

21.38

Citing books 21.39 −− Monographs and textbooks

21.39

−− Book chapters

21.40

−− Legal encyclopedias and looseleaf services

21.41

Citing legal journals 21.42 Citing newspapers, magazines and non-legal periodicals 21.43 Citing material from the internet 21.44 Citing parliamentary and government material 21.45 −− Parliamentary debates

21.45

−− Government reports

21.46

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Citing foreign material 21.47

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Introduction 21.1

When a writer needs to refer readers to other material, they provide a reference or citation to that other material. This chapter outlines why, when and how such references should be provided in legal writing. It focuses on: • the underlying rationales for referencing; • referencing conventions in legal citation; • how to determine when a reference to source material is needed, and how to refer to the same source again; and • style conventions for specific kinds of legal materials, including cases, statutes, books, journals and other sources commonly cited in legal writing.

21.2

The two main reasons a legal writer needs to reference other material are authority and honesty. As discussed at 20.36–20.37, all assertions of what the law is should be supported by a reference to a primary source of law — legislation or case law — to support the assertion. Readers are then able to find that source for themselves to check the writer’s interpretation. Other assertions — about facts or the views of others — should also be supported by reference to the source of that information. This brings us to the second reason for referencing: whenever a writer uses an idea or words of another person, for the sake of honesty, they must declare this by referencing their source. Failure to do so constitutes plagiarism, which is a type of academic dishonesty. (Writers might also provide references in footnotes to information and sources that are related to the author’s point but extraneous or secondary.) There are many rules about the content and format of references, but do not let this plethora of rules obscure the fundamental goals of referencing, which are to provide authority and to ensure honesty in your writing. Attention to referencing is an essential part of ensuring your own integrity as a writer and that your writing is effective. In this chapter we summarise key rules about the content and format of citations, drawn from the most commonly used legal citation style guide in Australia, the Australian Guide to Legal Citation (‘AGLC’).2 However, ‘[l]ike most things in life, legal citation and the application of the rules in the AGLC should be undertaken with a good measure of common sense.’3 If you keep in mind the purposes of providing a citation (authority and honesty), a few underlying principles emerge. Fundamentally the citation needs to be complete and correct. That is, it needs to provide enough information for the reader to be able to locate the source and, if necessary, a specific page or paragraph that supports the point, and this information obviously needs to be accurate. Beyond that, the AGLC provides rules about how to provide the references, and these rules about formatting and content are designed to promote ‘clarity and consistency’.4 By agreeing on particular rules and applying them consistently, we can communicate substantial detail about sources clearly, precisely and succinctly.

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21.3

Australian Guide to Legal Citation (Melbourne University Law Review Association and Melbourne Journal of International Law, 4th ed, 2018) (‘AGLC’). 3 Australian Guide to Legal Citation (Melbourne University Law Review Association and Melbourne Journal of International Law, 3rd ed, 2010), xii. 4 AGLC (n 2) xi. 2

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CHAPTER 21 Referencing and Citation

The rest of the chapter provides a summary of the rules on citation, drawn from the AGLC. We work through the citation rules, looking at different types of authorities starting with primary sources, followed by various other secondary sources (books, articles and so on).The AGLC is available online5 and we have provided a quick reference section at the back of this book.

Conventions in legal citation

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There is no single way to cite legal materials. Publishers have their own style guides which 21.4 set out the citation rules for their publications (known as ‘house styles’). However, there are citation conventions that exist throughout common law jurisdictions.The convention in legal writing is to use footnotes (or endnotes) to provide citations of sources, rather than ‘in text’ references. Students writing in other disciplines might use other styles, but need to abide by the legal referencing conventions for legal writing. For footnoting, the superscript footnote number should be inserted immediately after a clause or sentence that warrants support, not merely at the end of the paragraph.You will see this convention followed throughout this book. One of the recent trends in Australian law and legal writing is a convergence in 21.5 citation style. Differences in citation practices among Australian jurisdictions are no longer pronounced. In 1998 the Melbourne University Law Review Association contributed significantly to this convergence with the publication of the Australian Guide to Legal Citation.This guide has been adopted by a large and increasing number of Australian legal publications and was updated in 2002, 2010 and 2018. Given the widespread use of AGLC, Laying Down the Law has adopted it for referencing.The advice on citation that is contained in this chapter is, therefore, consistent with the AGLC style. However, whether the AGLC or another guide to citation is used, the writer should keep in mind the primary purposes of referencing — authority and honesty — and be guided by the principles of completeness and accuracy.

What sources should be referenced and when? The dual purposes of authority and honesty can guide the reader in knowing when to 21.6 provide a reference and what sources to reference. An example is provided below, after the key principles are stated. The first principle is that the best authority for a statement of the current law is 21.7 the law itself, not commentary or someone else’s summary of it. This means providing a reference to legislation or case law, immediately after the statement of law. Of course, as a student, you may have relied on commentary about the law by experts and not been able to delve into all the primary sources. In this case, it is important to keep in mind the honesty edict — the writer must disclose when they have used the views or words of another — and you should have honestly declared the secondary source in your reference. As an authority in law, a secondary source is not the best source and a court would not accept it as proof of the state of the law. However, within a law school context, at least for

See .

5

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21.8 pinpoint reference: a citation that includes the specific page or paragraph being referred to within the source

21.9

an essay, if a student has not read and personally interpreted the primary sources of law, they must declare the secondary source used. The second principle is that assertions of fact or the opinions of others in secondary sources need to be referenced. This does not include all facts; if something is well known and incontrovertible, it does not need a reference. So, for example,‘summer follows spring’ does not need a citation. However, an assertion that ‘summers are getting hotter every year’ would still need some reference to research that establishes this as an empirical fact. To strengthen an argument in an essay, a writer will want to find empirical research and other opinions, and what the reader learns from these other sources must be referenced. For specific points made by others, and certainly for quotations that are used, a pinpoint reference needs to be provided. A simple example serves to illustrate these points about what and when to reference. Suppose you were required to write an essay about whether the default speed limit on Australian roads should be increased. One of the first questions you would need to answer and assert in your essay is the current limit. An assertion that the default speed limit on Australian urban roads is 50 kilometres per hour is a statement of what the law currently is. This statement of the law requires a reference to a primary source, which would be a statute.6 However, to explore arguments for and against changing this limit, a student would need to research the history or the implications of such a change, and reference any empirical data or opinions relied on. An assertion that ‘most people drive above the speed limit’ would need support from an empirical study about driving habits; personal or anecdotal experience is rarely ever sufficient. Similarly, the work of other authors on this topic would need to be referenced.The following example uses two fictitious experts, Remco Pisciottano and Leigh Macfadyen, citing their empirical research and conclusions on driving habits and accidents:

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Pisciottano argues that the speed limit should be increased since most people already drive at 60 kilometres per hour,7 but Macfadyen counters that increasing the speed limit disproportionately increases car accidents.8

21.10

Note that both references required pinpoint citations, that is, a citation that includes all the detail of the source as well as the page on which the specific point was made by the author. In a well-written legal essay there will be some description of the law, which must be supported by reference to primary sources, and then arguments about how the law operates, could operate, should be changed or otherwise, and these latter points need to be supported with reference to empirical research and the views of experts, appropriately referenced. In writing a legal advice (or assignment that is akin to writing a legal advice), nearly all references will be to primary sources of law. The purpose of this form of writing is

National Transport Commission (Road Transport Legislation — Australian Road Rules) Regulations 2006 (Cth) sch 1 r 25. 7 Remco Pisciottano, ‘What Drives Us? Measuring the Driving Habits of Australian Road Users’ (2016) 64 Road Safety Review 264, 269. 8 Leigh Macfadyen, ‘Driving Faster, Driving Less: Measuring How Road Accidents Correlate with Driving Speed Limits’ (2017) 22 Journal of Regulation and Control 330, 340. 6

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CHAPTER 21 Referencing and Citation

to set out in an objective way what the law is, before then applying it to a fact scenario to reach a conclusion. Every statement of what the law is will require a reference to the source of that law. This might start with a general principle found in a statute, such as a prohibition on driving negligently, and this would be referenced to the relevant statutory provision. However, in Australia’s common law system, judicial interpretations of that statutory provision form a body of case law: see 1.23ff and Chapter 7. In setting out the rule on what constitutes ‘negligent driving’ any judicial elaboration would need to be referenced to the relevant case.Thus, most referencing in law school problem assignments and exams will be to statutes and cases.9

Subsequent references

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In a piece of legal writing an authority may be referred to more than once.The first time a source is referred to, all the details need to be set out in full according to the citation guide. After that, for subsequent references, rather than provide all the details again, the writer can provide a cross reference to the earlier footnote that contains the detail. The method of cross-referencing depends on whether the previous reference is in the note immediately preceding the cross-reference or is in a note elsewhere in the document. SUBSEQUENT REFERENCE TO SINGLE SOURCE IN IMMEDIATELY PRECEDING NOTE Generally there are two main ways of cross-referring to the source in the note immediately preceding the cross-reference: by using the Latin abbreviation ‘ibid’ (short for ibidem, meaning ‘in the same place’) or the term ‘above’. The AGLC style is to use ‘ibid’.10 For example, suppose that in note 4 of a document, you refer to Martin Loughlin, Public Law and Political Theory (Clarendon Press, 1992) 164. If note 5 is also to refer to this work, rather than state all the details again, the term ‘ibid’ would be used to indicate that the reader will find the detail ‘in the same place’ as the prior footnote. This form of short or repeat citation can be used for all types of sources, whether primary or secondary. There are two qualifications to the rule on using ibid. First, if you are referring to a different part in that source, this different part needs to be noted. In the example with the first reference to page 164, any subsequent reference to a different page — for example, page 182 — would be noted as ‘ibid 182’. The second qualification is that ‘ibid’ cannot be used if there is more than one source listed in the preceding reference, because ‘ibid’ would not distinguish between the different sources in the preceding note and thus the reference would be ambiguous. Therefore, if there is more than one source in the prior note, the alternative means of cross-referencing, explained in the next section, is to be used.

21.11

21.12

Under the time pressures of exam conditions, sources must still be referenced, but citation rules are more relaxed and only the barest citation information is required: see 22.32. 10 AGLC (n 2) [1.4.3]. 9

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21.13

SUBSEQUENT REFERENCE TO ANY OTHER SOURCE The way to indicate a repeat citation to a source in a note that is not immediately prior, or to one source among two or more sources referenced in the note immediately prior, is to refer to the earlier source in a shortened form — a short title for cases and legislation11 and, for secondary sources, the author’s or authors’ last name(s) — and the number of the earlier note containing the full citation.12 Recall the example above where Loughlin’s work was referenced in full in note 4 of a document: Martin Loughlin, Public Law and Political Theory (Clarendon Press, 1992) 164. If you wanted to refer to the same page of Loughlin’s book in a subsequent note (but not the note immediately after), the repeat citation would be: Loughlin (n 4). And to provide a subsequent citation but to a different page: Loughlin (n 4) 172. An oldfashioned style of providing subsequent references is to use Latin words supra (above) and infra (below) or the Latin expressions op cit (‘in the work cited’) and loc cit (‘in the place cited’): these should not be used.

Citing cases 21.14

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21.15 authorised report: a report of a judgment, including the headnote, that has been approved by the court or tribunal from which it originated

The term ‘citation’, when used in relation to a case, includes the name of the case and a unique alphanumeric reference, which is the information needed to locate it.13 There are two types of case citations: law reports and medium neutral citations: see 7.66ff. REPORTED CASES AND MEDIUM NEUTRAL CITATION The most legally significant cases are published as part of one or more series of authorised reports, which are available in hard copy volumes and now also electronically. A complete case citation for reported cases includes: • the name of the case, italicised; • the year of the decision (or publication, where the report series is published in annual volumes); • the volume number of the report series (if there is one); • the abbreviated title of the report series; • the page in the report volume at which the case begins; and • if a pinpoint reference is called for, the specific page being referred to within the case (a paragraph reference can also be given).14 Usually the name of the court that decided the case is not shown, but where this is important and is not obvious from the report series, the court name should be given in parentheses after the citation. When the citation is to reference a specific part of a judgment, especially in cases where there was more than one judge, the name of the judge who wrote that part of the judgment should also be shown in parentheses after the pinpoint reference. 13 14 11 12

572

Ibid [1.4.4]. Ibid [1.4.1]. For the rules on citing cases, see ibid [2.1]–[2.8]. Ibid [2.2.5].

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CHAPTER 21 Referencing and Citation

Examples Lane v Morrison (2009) 239 CLR 230 Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2001) 188 ALR 493 (Queensland Court of Appeal) Howarth v Adey [1996] 2 VR 535, 536 (Winneke P)

Electronic reporting of cases has led to the medium neutral system of citation. The system was adopted due to the difficulty of reproduction of pagination in an electronic file and the adoption of a numbered paragraph system instead. The medium neutral system is intended to operate in conjunction with, not in lieu of, traditional citation methods. Remembering that only the most legally significant cases are published in law reports, for most judgments there will be only a medium neutral citation. However, medium neutral citations are only used if the citation ‘was allocated by the court itself’;15 all other cases that have not been included in a law report are cited as ‘unreported’.16 The basic components of a medium neutral citation system are: • the name of the case; • the year the judgment is handed down by a court or tribunal, in square brackets; • a unique court or tribunal identifier in abbreviated form; • the judgment number (issued by the court or tribunal); and • a pinpoint reference to the relevant paragraph(s), shown in square brackets (where required). As with authorised report case citations, the name of the judge may also be shown in parentheses after the citation.

21.16

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Examples Ludlam v Johnston [2014] HCA 1 Endeavour Foundation v Weaver [2014] QCA 6 [3] Retirements Benefits Fund Board v Elmore [2014] TASFC 1 [27] (Porter J)

A table listing the abbreviations for Australian courts is in Essential Legal Toolkit D. CASE NAME In most cases decided by the courts, the name of the case will be the surnames of the two main parties, separated by ‘v’, short for ‘versus’ (‘against’). In speech, ‘v’ is replaced with ‘and’ in civil cases. Donoghue v Stevenson, for example, would be spoken of as ‘Donoghue and Stevenson’. (Note that this is different from the practice in the United States, where

21.17

Ibid [2.3.1] (emphasis in original). For citation style of unreported cases, see ibid [2.3.2].

15 16

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‘versus’ is used in speech.) In criminal cases ‘v’ by convention is said as ‘against’; the word ‘and’ is not used as it is in civil cases. By convention, for all cases, the names of the parties and the ‘v’ are italicised. In tribunal decisions, the names of the parties are often preceded by ‘Re’ and the names of the other parties are separated by ‘and’ (used in speech as well), not ‘v’. Example Re Bongioletti and Veterans’ Review Board

If a case has more than two parties, the additional party or parties are sometimes acknowledged by the use of ‘and Another’, or ‘and Others’ (shortened to ‘and Anor’ or ‘and Ors’); however, AGLC style is to cite cases solely by reference to the main parties.17 When the parties include a corporate body, the full corporate title should be used, although abbreviations such as ‘Pty’, ‘Ltd’ and ‘&’ are employed. Examples are Torpedoes Sportswear Pty Ltd v Thorpedo Enterprises Pty Ltd and Fawdry & Co v Murfitt. If the name of a case is given in the text and the citation is footnoted, it is not necessary to repeat the name in the footnote.18 The following sections outline a few more specific details about the naming of parties and how the names are to appear in citations. Description of parties

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21.18

The parties at first instance are usually called the ‘plaintiff ’ and the ‘defendant’ or, particularly if the hearing is before a tribunal, the ‘applicant’ and the ‘respondent’. The designation of the parties depends upon the rules governing the litigation. A decision at first instance may be reported as Cica v Holloway where Cica is the plaintiff and Holloway is the defendant. If Cica lost that case, and then initiates an appeal, Cica is now the appellant, and the party defending the decision is called the respondent; the appeal case is also reported as Cica v  Holloway (with a different court citation). If Cica’s appeal is successful and Holloway then appeals, the second appeal will usually be reported with the order of the names reversed: Holloway v Cica. Holloway is then the appellant and Cica the respondent. This does not always occur, however.19 Criminal cases and prerogative writ proceedings

21.19

In criminal cases the prosecuting party is the government, or specifically the executive branch, referred to as the Crown. The written form of title in a criminal case is usually R v [defendant]. ‘R’ is short for ‘Regina’ (Latin for ‘Queen’) or ‘Rex’ (‘King’). In speech, the prosecutor is described as ‘the Crown’, ‘the Queen’ or ‘the King’ depending on who is the reigning monarch of Australia at the time. There is a practice, in some matters, of Ibid [2.1.1]. Ibid [2.1.15]. 19 See, eg, Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256. 17 18

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CHAPTER 21 Referencing and Citation

using the name of the prosecutor instead of ‘R’. See, for example, Hart v Rankin, at 7.12, in which Rankin is the name of the prosecuting police officer. The Crown’s prosecution may also be undertaken by an official, the Director of Public Prosecutions. In that situation, the prosecuting party will be shown as ‘Director of Public Prosecutions’ or, commonly, ‘DPP’. Some courts have adopted the practice of using the name of the state in place of the Crown, for example: Tasmania v Lee;20 AJ v Western Australia.21 Cases beginning R v are not always criminal.They also appear in lists of civil matters, usually public law or industrial law matters. These cases are actions in which a claim is formally made on behalf of the Crown in the form of a prerogative writ (for example, the writ of habeas corpus). Re proceedings Even though it is common to speak of the common law as an ‘adversarial system’, many court proceedings have only one named party. Common examples are cases dealing with the interpretation of a deed of trust, the disposition of an estate under a will, or the winding up of a company. These cases are usually titled Re or In re, followed by the name of the trust, testator or company. An example is Re Huon Valley Springs Pty Ltd.22 These cases should be distinguished from decisions of tribunals which are also reported as Re [party names]. Here, too, the reason for use of this form of citation is that the proceedings are supposedly not adversarial. The government agency against which the action is brought is represented at the hearing to assist the tribunal, rather than to oppose the application. An example is Re McDonald and Secretary, Department of Family and Community Services.23

21.20

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Cases in which the identity of the parties is kept confidential In an increasing number of cases the law may require,24 or the court or tribunal may order, that the name of a party or a witness to certain proceedings not be published or broadcast. This can happen in cases involving children, people with intellectual disability, sensitive issues of family law, applicants for protection visas, or other cases in which the identity of the party is not disclosed for reasons of confidentiality. In such an instance, the case may be reported using the party’s initials or an acronym of random initials. Examples of cases where initials have been used include F v R25 and SZFDE v Minister for Immigration and Citizenship.26

21.21

Popular case names Some cases acquire popular or common names which differ from their official names.This is either through common usage, or because there is more than one decision involving the 22 23 24 25 26 20 21

21.22

(2005) 15 Tas R 213. (2007) 177 A Crim R 247. [1986] Tas R 112. (2002) 70 ALD 761. See, eg, Children (Criminal Proceedings) Act 1987 (NSW) s 15A. (1983) 33 SASR 189. (2007) 232 CLR 189.

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same parties. In many older English cases the actual title has been all but forgotten, and the convention is to cite the case using the popular name. In newer cases, the convention is to cite the full reference followed by the common name in parentheses. So, for example, the Engineers’ Case27 should be cited as Amalgamated Society of Engineers v Adelaide Steamship Company (‘Engineers’ Case’). Similarly, you often see  a reference to the Tasmanian Dam Case,28 although the correct form is Commonwealth v Tasmania (‘Tasmanian Dam Case’). Another example is Re Judiciary and Navigation Acts29 (‘Advisory Opinions Case’).

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21.23

21.24

YEAR AND VOLUME NUMBER OF REPORT SERIES When cases are collated into published report series they are numbered and identified in one of two ways: by volumes numbered consecutively; or by year. In most Australian series of law reports, there are consecutively numbered volumes. The Commonwealth Law Reports, for example, comprise primarily the decisions of the High Court of Australia from volume 1 in 1903 to volume 265 in 2018, and beyond. The year of decision is included in the citation (in round brackets), but it is the volume number, not the year, which is critical to identifying and locating particular decisions.Volume 162 of the Commonwealth Law Reports, for example, covers cases decided by the High Court in 1986–87. The case of Minister for Aboriginal Affairs v Peko-Wallsend Ltd is found at page 24. Oral argument in the case was heard in November 1985, but the decision was not handed down until July 1986. Accordingly, the proper citation for the case is Minister for Aboriginal Affairs v PekoWallsend Ltd (1986) 162 CLR 24. In other series, cases (and the report in which they can be found) are identified by the year in which they were published, usually shown in square brackets. The current series of the authorised reports for Queensland, England and New Zealand are published this way. Where there is more than one volume in a year, then the volume number must also be identified. For example, [2013] 2 All ER refers to the second volume of the All England Reports for the year 2013. Medium neutral citations by definition do not refer to a bound or published series and thus do not have volume numbers. The year of the decision is included, inside square brackets, and is a critical part of the citation. TITLE OF REPORT SERIES If a case is reported in more than one series, the writer should always cite the authorised report in preference to an unauthorised series (see  21.26). There is sometimes an exception to this in the case of those who practise before tribunals (such as the Fair Work Commission or the Victorian Civil and Administrative Tribunal). In such cases, the custom is sometimes to cite an unofficial, but highly authoritative, report series specific to that commission or tribunal. The abbreviations for commonly used law reports, and a guide to the various report series, including the authorised reports for all Australian, British, New Zealand, and key Canadian and United States jurisdictions, are set out in Essential Legal Toolkit B and C.

(1920) 28 CLR 129. (1983) 158 CLR 1. 29 (1921) 29 CLR 257. 27 28

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CHAPTER 21 Referencing and Citation

More complete lists may be found.30 Some online databases also provide a numbered series for cases; an example is the LexisNexis ‘BC …’ numbering system. PAGE AND PARAGRAPH REFERENCES Each case citation needs to include the page at which the report of the case begins; for medium neutral citation, the equivalent of the first page is the judgment number. In addition, if quoting from a case, or referring to a specific portion of a judgment, the citation must include a pinpoint reference. For citations to law reports, this specific reference must be to the relevant page (and can also include the paragraph number).31

21.25

Examples Commonwealth v Western Australia (1999) 196 CLR 392, 398 Re Culleton [2017] HCA 3 [38]–[43]

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Failure to include pinpoint references is one of the more common errors made by new law students. Without a pinpoint reference, the case citation can be frustratingly incomplete. High Court decisions regularly amount to 100 pages or more; for example, New South Wales v Commonwealth32 runs for some 385 pages. ALTERNATIVE CITATIONS AND AUTHORISED REPORTS When a case is reported in more than one series of reports, normally only the authorised report needs to be cited.33 Publishers of texts sometimes provide all the series in which a case is reported. These can often be found listed on the LawCite link beside the case name in AustLII, or through case citators (including CaseBase and FirstPoint), as discussed in Chapter 18. There are several report series for some of the superior courts. Reports in the Commonwealth Law Reports, the authorised series, should be cited in preference to reports in the unauthorised Australian Law Reports, the Australian Law Journal Reports or the Federal Law Reports; and citation of Federal Court decisions should be to the Federal Court Reports, the authorised series, rather than the Australian Law Reports or the Administrative Appeal Reports series. Similarly, the citation of certain tribunal decisions such as those of the Commonwealth Administrative Appeals Tribunal should be to the Administrative Law Decisions series which are authorised, rather than the Administrative Appeals Reports which are not. UNREPORTED DECISIONS Practices relating to the citation of unreported decisions have changed with the introduction of medium neutral citations (see 21.16). Cases that have not been reported, 32 33 30 31

21.26

21.27

See, eg, the Cardiff Index to Legal Abbreviations (Website) . AGLC (n 2) [2.2.5]. (2006) 229 CLR 1 (‘Work Choices Case’). The lists of law reports in Essential Legal Toolkit B and C indicate which reports are authorised.

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and which have not had a medium neutral citation issued by the court or tribunal, should be cited by the case name, followed by the court, the name of the judge, and the date on which the decision was given. Sometimes, whenever possible, the court or tribunal file number for the case may also be cited. Example Rita McKindley v MJ Campbell Nominees Pty Ltd (Supreme Court of the ACT, Miles CJ, 5 December 1994).

This detailed information helps to identify an unreported case, particularly as the matter may have been before the court more than once.

21.28

21.29

OLD ENGLISH CASES When referring to an old English case which is reported in the English Reports or the Revised Reports, the practice is first to indicate the citation to the nominate report. For example: Groenvelt v  Burwell (1700) 1 Salk 144; 91 ER 134. The system of nominate reports is explained in 1.26. CASE HISTORIES Sometimes it is desirable to show the progress of a set of proceedings through the court system. Generally speaking, the practice is to begin with the decision of the most senior court, followed by lower courts in reverse chronological order. The abbreviations ‘revd’ (reversed), ‘revg’ (reversing), ‘affd’ (affirmed), ‘affg’ (affirming), ‘vard’ (varied) and ‘varg’ (varying) are used as shorthand to describe the case history. Example

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MLC Assurance Co v Evatt [1971] AC 793, revg (1968) 122 CLR 556, affg (1967) 69 SR (NSW) 50 (CA) (sub nom Evatt v MLC Assurance Co [No 1]).

Citing statutes 21.30

The conventional method of citing an Australian statute is as follows:34 • the statute’s short title or name, including the year of enactment, in italics; • the jurisdiction in which the statute was enacted, in round brackets (unless it is obvious from the context); and • if appropriate, the specific part being referred to (for example, section, subsection, paragraph or subparagraph).

The rules for citing legislative materials are found in AGLC (n 2) [3.1]–[3.9.4].

34

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CHAPTER 21 Referencing and Citation

Examples Export Control Act 2020 (Cth) Legal Profession Act 2008 (WA) s 638 Work Health and Safety Act 2011 (NSW) s 22(2)(e)(ii)

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NUMBERING OF STATUTES The ‘official’ citation of an Australian statute is its number, followed by the year of its enactment. The official citation of the Insolvency Law Reform Act 2016 (Cth), for example, is No 11 of 2016. The number of a Northern Territory Act is found in the ‘back note’ at the end of the substantive text. SHORT TITLES OR NAMES The number of a statute is seldom used as the identifier today. Instead, the practice is to refer to a statute by its short title, or its name. In all Australian jurisdictions except Victoria a statute’s short title or name is set out in the statute itself (see  9.46–9.47). An example is the Immigration (Guardianship of Children) Act 1946 (Cth). As will be seen, s 1 of the Act expressly provides for a short title. In Victoria, since 1 September 1985, there has been no separate provision setting out the short title. Instead, the short title is simply the heading of the statute. In a formal piece of legal writing, if uncertain of the proper form of citation, be guided by what is in the statute. Until changes were made in the 1980s there was a great diversity in style of short titles among the different Australian jurisdictions. AGLC practice is to italicise the entire short title, including the year of enactment. For example, Industrial Chemicals Act  2019 and Coronavirus Economic Response Package (Payments and Benefits) Act 2020. The general practice in the past has been for the ‘short title’ section of Northern Territory statutes to cite the name of the Act without the date. However, it is now common practice to include the year of enactment and the short titles of virtually all Northern Territory Acts passed since 2006. ENACTING JURISDICTION The enacting jurisdiction must be made clear, if not by context, then explicitly in parenthesis after the name and year. The abbreviations commonly used for the different Australian jurisdictions are: Cth, ACT, NSW, NT, Qld, SA, Tas, Vic and WA. Unlike the title, the reference to the enacting jurisdiction is not italicised; for example, Modern Slavery Act 2018 (Cth) and Safety in Recreational Water Activities Act 2011 (Qld). SECTION REFERENCES The writer should make clear whether a reference is to a specific legislative provision or the statute as a whole.

21.31

21.32

21.33

21.34

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Statutory provisions are broken down into sections, subsections and paragraphs (and sometimes even further, into sub-paragraphs, clauses and sub-clauses).The current practice in Australia is to use the written abbreviation ‘s’ or ‘section’ to refer to any part of a statutory provision. For example, ‘s 20’ refers to section 20 of a given Act, while ‘s 20(3)(a)(ii)’ refers to section 20 subsection (3) paragraph (a) and sub-paragraph (ii). Occasionally, when you need to distinguish between parts of the same provision, more detailed reference can be given; for example, ‘sub-paras (ii) and (iii)’ of s 20(3)(a). When referring to two or more sections of the same Act, use ‘ss’; for example, ‘ss 33(1) and 37(2)’, ‘ss 46–52’.35

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21.35

21.36

CITING BRITISH AND IMPERIAL STATUTES As with modern Australian statutes, the AGLC says that British legislation is cited using the short title, together with the year of enactment, using the standard practice of italicisation.36 The British practice, using their standard style guide, is to put the short titles of domestic statutes in roman (that is, not italicised).37 Work to be submitted or published in Australia should comply with the AGLC. Since 1963, statutes made by the United Kingdom Parliament have been cited with ‘UK’ in parentheses after the year of enactment. Before 1963, where the British Parliament was legislating for one of the other territories over which it had legislative authority, the reference should be to ‘Imp’ (for the Imperial Parliament) instead. Examples: Statute of Westminster 1931 (Imp); Colonial Laws Validity Act 1865 (Imp). ‘(UK)’ should not be added for statutes made before 1963.38 The official means of citing early British statutes is by regnal year and chapter number. The regnal year is a reference to the length of time that a given monarch had been on the throne, and then the chapter refers to a numbered volume of sessions of the parliament. For example, the statute which first provided for the creation of a Supreme Court in New South Wales was enacted in 1823, the fourth year of the reign of King George IV, as Chapter 96 of the statute volume for that session. The citation for this is 4 Geo IV, c 96. CONSTITUTIONS The Australian Constitution is found in a provision of an Act of the United Kingdom Parliament (specifically, 63 & 64 Vict, c  12, s  9) titled the Commonwealth of Australia Constitution Act 1900 (Imp). By convention the Constitution may be cited as the Constitution, the Australian Constitution, or the Commonwealth Constitution.39 State constitutions are cited in the same way as statutes of the particular state. The constitutions of the Australian Capital Territory and the Northern Territory were passed as Commonwealth Acts, namely, the Australian Capital Territory (Self-Government) Act 1988 (Cth) and the Northern Territory (Self-Government) Act 1978 (Cth).

For the full list of abbreviations used in referring to legislation provisions, see AGLC (n 2) [3.1.4]. Ibid [24.2.1]. 37 The Oxford University Standard for Citation of Legal Authorities (Hart, 4th  ed, 2012) (‘OSCOLA’). 38 AGLC (n 2) [24.2.2[. 39 Ibid [3.6]. 35 36

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CHAPTER 21 Referencing and Citation

BILLS AND EXPLANATORY MEMORANDA/NOTES Before a piece of legislation becomes law, it is known as a Bill, and its various provisions are known as clauses. Bills are cited by the title of the statute with the year, but with the substitution of ‘Bill’ for ‘Act’. The title is not italicised. For example: Liability for Climate Change Damage (Make the Polluters Pay) Bill 2020 (Cth). Explanatory memoranda, or explanatory notes, to a Bill are cited with the document title preceding the Bill name. For example: Explanatory Note, Drug Court Legislation Amendment Bill 2014 (NSW). REGULATIONS AND OTHER DELEGATED LEGISLATION In Australia, regulations are the most common form of delegated legislation. There is some variation between jurisdictions in citing regulations, but the predominant method uses italics as for Acts. For example, Offshore Minerals Regulations 2010 (WA) and Tobacco Plain Packaging Regulations 2011 (Cth). Other forms of delegated legislation, including rules and by-laws, should be checked to confirm the correct form of citation.40 When first citing a piece of delegated legislation, it is best practice to state under which Act and, if possible, under which section of the Act, it was made. This information is usually given at the beginning of the delegated legislation.

21.37

21.38

Citing books

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MONOGRAPHS AND TEXTBOOKS Monographs (books focusing on a specialised area of study) and textbooks are the most commonly cited books in legal writing. These are cited in many ways depending on the style guide used.This book and the AGLC use the following form: author(s), title in italics (publisher, edition (if not the first), year of publication).41 Page reference(s) should also be added if a pinpoint reference is called for.

21.39

Examples JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow & Lehane’s Equity: Doctrines and Remedies (LexisNexis, 5th ed, 2014) J Willis, A History of Dalhousie Law School (University of Toronto Press, 1979) 129–31 Robert Menzies, Central Power in the Australian Commonwealth (University Press of Virginia, 1967) 49, 54

The AGLC states that the name of the author of a book should appear exactly as it does on the source, subject to other general rules,42 although the most common convention may be to provide the author’s full first name and surname. See ibid [3.4]. See ibid [6.1]–[6.9] for rules about citing books. 42 Ibid [4.1.1]. 40 41

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21.40

21.41

BOOK CHAPTERS If referring to an essay, article or other chapter contribution in a book of edited work, the citation convention is as follows: Robin Cooke, ‘Tort Illusions’ in Paul Finn (ed), Essays on Torts (Lawbook, 1989) 71.The number at the end refers to the first page of this writer’s contribution within the book. If a specific page of this essay was referred to, an additional page number would need to be added as a pinpoint reference. LEGAL ENCYCLOPEDIAS AND LOOSELEAF SERVICES If referring to an entry in one of the legal encyclopedias such as Halsbury’s Laws of Australia, the method of citation is to refer to the publisher, the title of the encyclopedia (italicised), the volume number, the date of retrieval, the title number and name and the paragraph number.43 Example LexisNexis, Halsbury’s Laws of Australia, vol 1(1) (at 1 November 2002) 5 Aboriginals and Torres Strait Islanders [5–3760]

Looseleaf services may be cited according to the same principles as those employed for legal encyclopedias; however, instead of a date, the information provided after the volume number is the service number. The volume number is omitted if the service is viewed online.44 Example CCH, Australian Federal Tax Reporter, vol 1 (at 1149-4-2004) Exempt Income [9–870]

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Citing legal journals 21.42

Journals, otherwise known as periodicals or law reviews, are a commonly used source of reference in legal writing.45 The conventional way of citing a journal article is as follows: • the author’s initial(s) or given name(s) and surname; • the title of the article in quotation marks; • the year of publication (in round brackets); • the volume number of the journal (and the particular issue within that volume); • the title of the journal (not abbreviated) in italics; and • the page at which the article begins (but not the last page).

See ibid [7.7] for rules about citing legal encyclopedias. See ibid [7.8] for detailed information on citing looseleaf services. 45 See ibid [5.1]–[5.11] for rules on citing journal articles. 43 44

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CHAPTER 21 Referencing and Citation

For a pinpoint citation, the page(s) being referred to should be added, as in the first example below. Examples Peter Bayne, ‘Legal Development in Papua New Guinea: the Place of the Common Law’ (1975) 3 Melanesian Law Journal 9, 21 Nick James, ‘ “How Dare You Tell Me How to Teach!”: Resistance to Educationalism within Australian Law Schools’ (2013) 36(3) University of New South Wales  Law Journal 799

Citing newspapers, magazines and non-legal periodicals To refer to a newspaper article, include the author (if shown), the title of the article, the newspaper (italicised), the place of publication and the date of publication in round brackets, and, if possible, the page on which the article was printed. If the piece is an editorial, it should be identified as such.

21.43

Example Chris Merritt, ‘Code for a Simpler, Better Contract Law is Presented’, The Australian (Sydney, 14 March 2014) 28 Editorial: ‘The Lessons from Losing Flight MH370’, The Sydney Morning Herald (Sydney, 28 March 2014) 14

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‘Forecasters Crack Formula to Predict Long-Range Weather’, The Times (London, 2 April 2014) 1

A similar practice, but without noting the place of publication, is used when citing a magazine article. The author’s name should always be included. Example Peter Smith, ‘The Deplorable Victims of Free Trade’, Quadrant, April 2017, 32

When citing other types of periodicals that do not follow the legal publishing convention of having continuous pagination throughout an entire volume, it is also necessary to refer to the part of the volume in which the article appears.

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Example Jeff Archer, ‘Ireland’s Model: a Presidential Precedent for Australia?’, Current Affairs Bulletin 74(5) (February/March 1998) 4

Citing material from the internet 21.44

Increasingly, information is sourced from the internet. Citation of this material should, as far as possible, follow the general rules for citing each source as set out above. If, for example, the item is a journal article, then the usual rules for citing journal articles would apply. However, if the journal is published in electronic form only, then the article details need to be provided and a Uniform Resource Locator (URL) enclosed within ‘’ symbols. However, a URL is only useful if it is stable and if the article is freely available online; a URL for an article accessed via a subscription database will not be accessible to all readers. For other types of materials, the general principles should be adhered to: ensure that the citation provides sufficient, correct information for the reader to be able to locate the item. Example Liz Curran, ‘Making Connections: The Benefits of Working Holistically to Resolve People’s Legal Problems’ [2005] Murdoch University Electronic Journal of Law  5

Although many style guides require the date of retrieval to be included after the URL for an online citation, the AGLC style is not to include retrieval dates.46 Copyright © 2020. LexisNexis Butterworths. All rights reserved.

Citing parliamentary and government material 21.45

PARLIAMENTARY DEBATES References to parliamentary debates (Hansard) should be cited as follows. Examples Commonwealth, Parliamentary Debates, Senate, 12 December 2013, 1575 (Senator Seselja) Commonwealth, Parliamentary Debates, House of Representatives, 25 March 2014, 10 (Mrs Prentice) Victoria, Parliamentary Debates, Legislative Council, 2 April 2014, 11 (Ms Darveniza)

See ibid [7.15]–[7.16] for details of citation of other online materials, such as websites and blog posts.

46

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CHAPTER 21 Referencing and Citation

At times it might also be appropriate to note the position of the speaker within the ministry or shadow ministry. GOVERNMENT REPORTS The same principles apply as for citation of other reports or monographs. However, generally there is no author, as the publisher is often a government publishing service, or may be a sponsoring department or other government agency.47

21.46

Examples Australian Bureau of Statistics, A Picture of the Nation: the Statistician’s Report on the 2006 Census (Report No 2070.0, January 2009) Australian National Audit Office, Strengthening Australia’s Tourism Industry (Report No 47 of 2016–17, 27 April 2017) [2.1]–[2.3] Productivity Commission, Migrant Intake into Australia (Inquiry Report No 77, 13 April 2016)

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Citing foreign material Legal writing that is to be submitted or published in Australia should comply with Australian style guides such as the AGLC. While other countries have their own standard style guides, as briefly outlined below, the AGLC Part V, ‘Foreign Domestic Sources’ sets out rules on how Australian writers should cite cases and laws of foreign countries. In the United States, legal citation is a highly-refined art, with competing guides. The Bluebook: A Uniform System of Citation,48 more commonly known simply as the Bluebook (for the colour of its cover), is produced jointly by several of the more prominent American legal periodicals. It prescribes a complex set of rules for legal citation in America. In the late 1980s, as a reaction to the complex detail and rigidity of the citation rules set out in the Bluebook, the University of Chicago produced a simpler guide to citation, known as The Maroonbook:The University of Chicago Manual of Legal Citation.49 It is probably no coincidence that the AGLC resembles the Bluebook in physical appearance; however, like the Maroonbook it seeks to offer fewer, more general rules in preference to numerous detailed rules. Fortunately, most common law countries adhere to the same basic conventions in legal citation (subject, of course, to publishers’ individual house styles). See, for example, The Oxford University Standard for Citation of Legal Authorities (‘OSCOLA’).50 Canada alone seems to have followed the American trend towards complexity in citation with the Canadian Guide to Uniform Legal Citation51 (referred to as the McGill Guide or the Cite Guide).

21.47

See ibid [7.1]. See . 49 University of Chicago Law Review, The Maroonbook: University of Chicago Manual of Legal Citation (University of Chicago, 2019). 50 OSCOLA (n 37). 51 Canadian Guide to Uniform Legal Citation (Thomson/Carswell, 9th ed, 2018). 47 48

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Further reading • Australian Guide to Legal Citation (Melbourne University Law Review Association and Melbourne Journal of International Law, 4th  ed, 2018) . The most commonly used guide for Australian legal writing, frequently referred to as the ‘AGLC’. • Anita Stuhmcke, Legal Referencing (LexisNexis Butterworths, 5th  ed, 2019). A useful short guide.

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To enhance your learning experience, use the student resources available on Lexis® Learning See the Visual Preface at the front of this book on how to register.

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CHAPTER

22 Study and Exam Skills Thinking is skilled work. It is not true that we are naturally endowed with the ability to think clearly and logically — without learning how, or without practicing.1 Alfred E Mander, Clearer Thinking (Watts & Co, 1936) vii.

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1

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Introduction 22.1 What are study skills? 22.4 Organising study time 22.5 Reading efficiently 22.6 Taking notes and making the most of lectures

22.9

Participating in seminars and tutorials 22.11 Engaging outside of the classroom 22.12 −− Online study

22.13

−− Teacher consultation hours and emails

22.14

Finding the right study methods 22.15 −− Reading 22.16 −− Learning and remembering

22.17

−− Lectures, seminars and tutorials

22.18

−− How best to study

22.19

Critical thinking 22.20 Copyright © 2020. LexisNexis Butterworths. All rights reserved.

What are exam skills? 22.23 Exam preparation 22.24 −− Open and closed book exams

22.25

−− Preparing summaries

22.26

−− Study groups

22.29

In the examination 22.30 −− Following instructions and managing time

22.30

−− Outlining answers

22.31

−− Structuring the answer

22.32

−− Headings 22.34 −− Abbreviations 22.35 −− Practical tips for writing exams 588

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22.36

CHAPTER 22

Study and Exam Skills

Introduction

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This chapter deals with two related topics — study skills and exam-taking. It provides advice on how to: • develop key study skills, including reading, note-taking and organising time; • participate effectively both in and out of the classroom; • find the right study methods; • prepare for exams; • create summaries as part of exam preparation; • get the most out of study groups; and • structure a response to a typical issue-spotting law school exam. Good study skills are a key component of success at university. Most of the study problems faced by students are common to all, but they are faced and overcome in many different ways. So while it is not possible to prescribe a fail-safe method that is useful to everyone, this chapter starts with suggestions that should be helpful to most students. Generally teachers make clear to students the expected learning outcomes for a particular unit or course. The outcomes will usually include both an understanding of the particular doctrinal field and the ability to apply the law correctly to hypothetical scenarios. These outcomes are often tested through ‘issue-spotting’ exams. In this type of exam a factual scenario is provided and the student is asked to write a response that is akin to a legal advice about whether, for example, someone in the scenario has breached the contract, committed a crime or could be liable in tort. This type of assessment is different from legal essay writing (discussed in 20.47ff). It mainly relies on primary sources and requires the student to provide an objective, rather than persuasive, conclusion about the likelihood of success in a court if the matter was pursued. However, most teachers will also expect students to develop a wider, contextual understanding of how the law operates to address a social ill or promote particular behaviours. Achieving these outcomes requires more than merely learning the rules of law; it requires critical thinking and reading beyond legislation and cases. There may be some scope for assessing these outcomes in the standard issue-spotting exam, but class participation and essays often perform this role. Critical thinking is discussed further at 22.20ff. Focusing on the enumerated learning outcomes is important, but it is essential to remember that studying is not an end in itself.The ultimate purpose of study is education and understanding. As Paul Vinogradoff, one of the world’s best-known legal historians, once said, ‘study is knowledge coordinated by reflection’.2 This is important to bear in mind while studying law. The mere acquisition of detailed information is not enough. In addition there must be reflection — a period of contemplation about what has been learned and how it fits into a particular subject area and the broader framework of the legal system. Students who do best in law school are those who are not only familiar with the law’s constituent parts — individual subjects such as torts, contracts and the like — but who can also see the wider picture of the law in its entirety, as a system, and as part of our culture. Students should be active participants in their education, concerned with

22.1

22.2

22.3

Paul Vinogradoff, Common-Sense in Law (Williams & Norgate, 1913) 9.

2

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discussion and argument, for which they need to develop justified, reasoned and informed points of view. That development depends on acquiring and exercising many skills, and skills improve with practice.

What are study skills? 22.4

There are a number of skills students need at least some competence in to enjoy, and excel at, tertiary study. There are, of course, personal skills which include: managing uncertainty  — academic, vocational, personal and family; dealing with anxiety and tension; and managing relationships, particularly with fellow students, teachers, family and colleagues.These are beyond the scope of this book.There are also legal writing skills, which are explained in Chapter 20. Other skills can be grouped as study skills to be used throughout the course and these are dealt with at 22.5–22.22. Skills more specific to preparing for exams are outlined later in the chapter at 22.23–22.36. The study skills covered in this chapter include: • planning and organising study time effectively; • reading actively and efficiently; • actively listening and taking notes in classes; • participating in classes; • engaging with teachers and other students outside of the classroom; and • critical thinking. We provide here some guidance on how to study and develop these skills, but ultimately, to study effectively, students need to understand for themselves how they learn best. After looking at the skills listed above, we provide suggestions on how a student can help to develop and use such awareness to improve their study performance.

Organising study time Copyright © 2020. LexisNexis Butterworths. All rights reserved.

22.5

590

It is common sense that to do anything efficiently and effectively it is necessary to be well organised. This is particularly true of tertiary study where there is little externally imposed discipline and students are left to themselves to plan their work schedules, ensure adherence to deadlines and prepare properly for exams. A study plan can be a useful organisational tool. From the beginning of a program of study, students need to find out what they are required to cover and understand, in each course or unit. This information can be used to draw up a study plan, identifying how and when time will be allocated to cover the material, complete assessments and prepare for any exams. It is a good idea to note important dates and deadlines, so that you can conceptualise the course of a program and how much time you have for assessments and study. No plan should be completely inflexible. And all plans should factor in non-study activities, including those things that enable study to be sustainable over the long term, such as work, relaxation, exercise and social engagement.The challenge is to balance these. It is important to remember that adequate relaxation can help you to study efficiently; being disciplined and diligent is good, but unreasonably extending the hours of study is unlikely to help.

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CHAPTER 22

Study and Exam Skills

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Reading efficiently Law students are required to do a large amount of reading, so it is important to work out how to do this efficiently and effectively. In some units the reading will consist mainly of judgments but other readings include journal articles, texts and other books, legislative material, case commentaries and reports. The specific skills involved in reading and analysing cases are discussed in Chapter 7. Here are four important points to remember in relation to reading generally. • Skim-read. It is often useful to skim-read a piece first to determine whether it will be relevant, helpful and worth reading thoroughly. Cases may also be skimmed in order to identify the important or relevant points, using the key elements of the cases identified at 7.10ff. • Read what is relevant. There are many resources available to students and a challenge is to identify which ones are worth reading at any given time. Be guided by your teachers and your goals. Unit outlines will generally distinguish between required readings (those which the student is expected to read for a class), and recommended readings (which are suggested for further depth or as a lead for research). Even the required readings can be lengthy and cover a variety of issues. Students should focus their attention on the parts that are most relevant. Use headings, table of contents, introductions and conclusions to identify what a particular resource covers and be guided by the course outline or a specific research goal in allocating your time and attention in reading the resource. • Read actively. Reading actively means asking questions and thinking critically about the material being read (see 22.20–22.22) in order to understand it. Reading can very easily become a passive occupation. For this reason it is important, where possible, to read when fresh and wide awake, and to take breaks at regular intervals. Significant words or passages should be underlined or highlighted, and notes taken for revision purposes. The student should ensure that the substance of the material is constantly in mind and is being understood.

22.6

Students should seek to develop a sense of what reading habits and methods work best for them. Sometimes it is best to read the materials before class so that the classes build on a basic level of understanding. For other students or other courses, it might be better to skim the materials or focus on key readings before class, and then read them with greater diligence after the class. This might also be shaped by what teachers expect in the classroom. For some, lecturing is designed to convey information and provide guidance for subsequent reading. Other teachers conduct classes, even large classes, in an interactive questioning style, expecting students to have read materials in advance to use class time for testing, clarifying and deepening understanding.

22.8

22.7

Taking notes and making the most of lectures Lectures are intended to impart ideas, theories and concepts, and to put in context, expand upon, enliven and update information contained in cases, legislation, articles and textbooks. To absorb and retain this information it is generally best for students to take notes; learning often occurs through the process of making notes. Normally at

22.9

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22.10

the beginning of a unit students will be provided with a course outline. This provides a skeleton to which can be added the flesh gleaned from reading before class, notes taken in class (of lecturer material and class discussion) and further reading or discussion after class. It is not sensible to record every word spoken by the lecturer — students will generally absorb and understand what is being said if they listen and consider rather than simply write or type without thinking. As with anything else, lecture notes are idiosyncratic. They should contain what each student thinks important and wants to remember. At the same time there are key facts, concepts and principles which should be recorded. Acquiring the skill of identifying and recording salient points is valuable for both study and work. It is useful to spend time each day organising the notes from lectures to ensure they are coherent, complete and can be understood. Once this is achieved, material from all other sources such as textbooks and periodical articles should be amalgamated with, or cross-referred to, the lecture notes. This amalgamation process is helpful in that it reinforces, and aids understanding of, the material: see 22.17. For some students classes are conducted online, or recorded and made available electronically afterwards. Ordinarily, recordings can be accessed as often as students wish, throughout the teaching period. Recordings can be valuable, allowing students to revise, replay complex parts, view more slowly or view alternative recordings in the same unit to get different teacher perspectives. There are, however, some risks. If there is an option of watching a recording instead of attending in person, students who choose to do this need to be mindful of whether this is as good for their own learning. It is particularly important to resist any temptation to postpone viewing lectures until the end of the teaching period when all recordings might not be available or are too much to absorb in a short period. Generally, students need time to think about lecture content, to critically examine that content and to test it by attempting exercises. It is also a mistake to assume that lecture recordings or the teacher’s slides are a substitute for making your own notes; this assumption underestimates the learning involved in the process of making notes for yourself. When taking notes, whether in class or in preparation for an assessment, every student should seek to ensure that they develop skills of academic honesty. This means always ensuring that notes taken from a source — whether that is a lecture, case, textbook, article or website — are referenced so that the source is clear to you when you return to use those notes. Plagiarism can occur unintentionally through sloppy research and notetaking habits. It is up to each student to develop habits of academic integrity and this starts with careful and diligent note-taking.

Participating in seminars and tutorials 22.11

592

Although it might be challenging, generally students benefit from contributing orally to discussion in tutorials and seminars (and also in those lectures where discussion is encouraged by the lecturer).To make a positive contribution to discussion, and to make best use of class time, a student’s preparation should be thorough. Participating in discussion and asking questions are good ways to test and clarify your understanding. By contributing to discussion, students also develop oral skills which are inherently valuable and certainly the

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CHAPTER 22

Study and Exam Skills

cornerstone of good advocacy. Students should not underestimate the value of listening to their peers in class to test and improve their own understanding. There might be other reasons for participating apart from the pure educational value of doing so. In some courses class participation is an element of assessment, and is thus required to demonstrate competence. Good preparation underpinning positive oral contributions are likely to be noted by the teacher. In addition, if the student needs a reference for a job application or further study, class performance can help distinguish better students from the rest.

Engaging outside of the classroom

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In addition to private study and class engagement, there are often ways to engage with teachers and fellow students outside of the classroom to work toward the desired learning outcomes. This might be through forming study groups (discussed at 22.29 in respect of exam preparation). There may be online components of teaching and learning that necessitate engagement with teachers and other students outside the class time. ONLINE STUDY Australian universities include online study as part of the educational services offered to their students.This may be for particular units or components of a course, or for particular periods, such as the move to online study for all Australian universities as a result of the COVID-19 pandemic in 2020. Many of the students to whom this book is addressed are enrolled as external students and do not participate in face-to-face learning except, perhaps, at residential schools. Electronic access to lectures is likely to be complemented with opportunities to participate in synchronous (real time) tutorial-type forums or online discussion forums where students contribute at different times (asynchronous). Comments made in 22.11 concerning participation in seminars and tutorials also apply to online forums, with the difference that it may take more self-motivation to participate in the latter. Students involved in online study derive maximum benefit if they are prepared to join in discussion on the topics in the unit. Asking questions, or writing and posting a contribution, often serves to help the student identify issues about which they require clarification. TEACHER CONSULTATION HOURS AND EMAILS Many teachers make themselves available during set office hours and invite students to drop by or make appointments for consultations. This might be generally for questions students have and are not able to ask during class time, or in respect of specific assignments or issues.While students who missed a class should not turn up and expect the lecture to be replayed personally for them, students who have applied themselves and have outstanding questions, or who need clarification, should use the opportunities teachers offer. Similarly, teachers might invite students to email or post questions about the class or materials. The teacher could respond individually to these or use them in class, or could post a general response for the benefit of others who might also need the point clarified. There are a few things to keep in mind about emailing. First, your teacher may have many students and receive many emails. Keep this in mind when drafting an email.

22.12

22.13

22.14

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After the introductory address, for example, ‘Dear Professor Brainstorm’, it can help to identify yourself by stating your name and your year/class, before moving on to the reason why you are emailing. Next, the message should be clear, brief and polite. The instantaneous nature of email, and the ease with which messages can be typed and sent, present particular dangers. If email is being used for anything important or potentially problematic, it is advisable to draft it, put it aside for some time, then check it — both the addressee(s) and the content of the message — before pressing ‘send’. Finally, even if email is accessible 24/7, unless a teacher says otherwise, they should not be expected to attend to emails other than during regular work hours.

Finding the right study methods 22.15

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22.16

22.17

594

The best way to study is a personal thing; the best method for one student might be quite different from another student’s approach. Ultimately each student should seek to identify learning preferences, strengths and weaknesses in order to develop an approach that supports their own learning. This may be a matter of trial and error, the approach for university study might be quite different from the one used for high school. The questions in the following sections are designed to help students reflect on their own study methods and preferences to identify which methods are most effective for them. There are no right or wrong answers. READING Reading can be done at different times, speeds, and with different ends in mind. Students need to develop different reading approaches and use them appropriately. Consider: • Is it more efficient for me to read the course materials before or after class? • Is it better for me to use a range of reading approaches, such as skimming materials before class and reading them in depth afterwards, or reading key materials carefully, while skimming others and returning to them later? • While reading, is it better for me to highlight words and passages or to take notes to record key points or list points that need clarifying? • In reading and note-taking for assignments such as essays, what techniques work best for me to record the sources of words and ideas so as to ensure academic honesty? LEARNING AND REMEMBERING There are many different learning styles. Some learners are visual, some kinetic, but most people have mixed ways of learning and remembering. To maximise learning it can help if you can identify how you learn best. This might already be obvious to you, or might require some reflection on the question: how do I learn and remember best? Is it: • by reading? • by listening? • through visual demonstrations? • by taking notes or developing mind-maps?

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CHAPTER 22

Study and Exam Skills

• by doing practical work? • through discussions with others? • by a combination of these? Which combinations work best for me?

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LECTURES, SEMINARS AND TUTORIALS To make the most of different teaching and learning forums, it can be helpful to appreciate what each provides for you. In reflecting on the various formats of teaching and learning, consider: • Do lectures provide me with a framework for learning, guidance for reading, or possibly all the detail that I need? Do I find that lectures merely convey information or do they prompt critical engagement by role-modelling critical questioning? • Do I learn different information from seminars and tutorials? Do they provide additional material or possibly a means of testing, clarifying and consolidating lecture materials for me? • Might study groups — with classmates or friends — allow me to further test and clarify ideas, or do I find it better to study alone? Can I use a combination of these? • Do I learn more from reading and private note-taking? HOW BEST TO STUDY In determining the best study methods for you, consider: • Is it better for me to study in a group or individually? • Do I study best at night, in the morning or in the afternoon? Are there optimal periods of study, after which I need a break? • If I have options, in what physical setting is it best for me to study? • What things distract me? Is it helpful to be online with friends, also studying, or does this distract me? Does music allow me to focus or do I need silence? • What barriers to learning do I experience? Anxiety and stress, for example, can be significant barriers, disrupting concentration or inducing procrastination and self-doubt. How might I overcome these?

22.18

22.19

Critical thinking One crucial skill a student should aim to develop is the skill of critical thinking. This skill can be described in many ways, but at its essence it involves asking questions about the information you read or hear. It is a skill that should be used when reading, listening, engaging in discussion and writing. All law school assessments (and any jobs that come after law school) require students to do more than simply memorise and describe or recite information. Students need to be able to analyse, evaluate and build on what they read and hear. These all require critical thinking skills that are developed by asking questions.

22.20

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22.21

22.22

596

The types of information that students might need to question range from a statement about what the law is or what the law should be, assertions or claims about the scope or intention of a party, an opinion about the direction or implication of a line of cases, to a criticism of a legislative amendment. The following provides some suggestions about the questions that can be asked about information in developing critical thinking skills. • Validity. Are given facts true or verifiable? Are conclusions supported by evidence? Is it strong evidence that justifies that conclusion? • Author/speaker. Consider who said or wrote the information. Are they trustworthy? Expert? Credible? Biased? Uninformed? What are their goals in saying or writing what they did? What information to they have to support their points? Are they trying to inform, explain, persuade, or even mislead or distract the reader? These are important questions but not an invitation to attack the person; the focus should remain on the information. • Context. Sometimes the context can be relevant in assessing the validity and value of information. When was it written? Why? What was going on in the case, in that century, or in that community, that might be relevant to how we interpret that information? Is the information as valid, credible or useful in another context? • Values. Even if you know nothing about the author or the context, interrogate the information itself by asking questions, particularly about what it does not say. In particular, does it reflect underlying and unstated values? For example, if a policy is described as ‘good’, this necessarily invites you to question what values might inform this conclusion. Are they considerations of fairness, efficiency, consistency, clarity, simplicity, equality or generosity? Why are these values used? Are there alternative values that could and should be considered to make the assessment? • Assumptions. Is the information based on underlying assumptions? For example, an assertion that increasing the penalty for a crime will have the effect of decreasing incidence of the crime, is based on assumptions about choice, options and self-control of those committing such crimes, as well as assumptions about knowledge of the law and the penalties and rationality in weighing up whether or not to commit the crime. Are these valid assumptions? Are they supportable by evidence about human behaviour and circumstances? Are there alternative assumptions that should be considered? • Implications. Consider the consequences or extension of an idea. Consider whether there might be unintended consequences. Is the scope of the rule, policy or assertion too wide? Too narrow? How will it operate if the underlying assumptions are incorrect? What are the alternatives? This questioning approach to learning will enable students to move beyond memorising cases and legislation, to develop higher order skills of understanding, application, analysis and the formation of well-founded opinions and alternative ideas. In essays students certainly need to use such skills, but these are also needed in the standard issue-spotting exams (discussed at 22.23). It is not enough for a student to know the rules of an area of law. They need to be able to identify the issue or decision at stake, apply

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CHAPTER 22

Study and Exam Skills

the law and seek to predict how a court would apply the law. This requires students to be attuned, for example, to the reasoning in cases, how the facts were seen and used, the context of any line of cases, the unstated values and assumptions of the judges, and ways that a scenario’s facts might be presented and argued to succeed in a claim or defend an allegation. Taking a questioning approach to readings and classes will enable students to develop a deeper understanding of the law and help them to develop skills to apply, analyse and critique the law.

What are exam skills? Core doctrinal units in a law degree are generally assessed at least partly by an exam and in this section we provide guidance on how to prepare for exams, tips on writing exams, and a few points about exam processes. As mentioned at 22.2, law school exams commonly take the form of ‘issue-spotting’: a fact scenario is provided and students are asked to answer a question about possible legal actions, providing a response that is akin to a legal advice. This type of problem–response form of assessment is designed to test a student’s knowledge of a field of law and their capacity to apply that law to a novel scenario. It is also commonly used as a take-home exam or mid-semester assessment, not only for sit-down timed exams. There are examples of this type of scenario and question in the exercises in this book.

22.23

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Exam preparation There is no bright line between studying and preparing for an exam; all studying is about learning the materials and skills, some of which will be assessed in a final exam.There are, however, some steps students can take to specifically prepare for exams. The first step is to find out, as far as possible, what kind of questions are likely to be asked and the variety of issues that could be raised. Past exam questions provide guidance; students should consider what extensions or variations on questions are possible. The second step is to work through previous examination questions. This is extremely valuable in two respects. First, it enables students to test the adequacy of their memory and any summary they have prepared (see 22.26–22.28), as well as alerting them to gaps or weak spots. Second, this form of practice helps students to develop their exam technique. Accurate knowledge of the law and a good summary are important, but equally important is the ability to identify the legal or factual issues and to use that material to solve problems with different facts and to answer novel essay questions. It also provides an opportunity to develop good time management, which is crucial to maximising exam performance (see 22.30). OPEN AND CLOSED BOOK EXAMS It is not unusual for law school exams to be ‘open book’, which means written material may be taken into the exam. The material allowed may be unlimited or restricted to specific materials. Students need to understand what materials are permitted. Although students need not rely wholly on memory for open book exams, the exam techniques they need to use are essentially the same as those for closed book exams. The reality is that, in a short-release or sit-down open book exam, time constraints make

22.24

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it almost impossible to use any written material other than an outline and summary of the course. The best preparation then is generally for students to prepare outlines or summaries of the course (see 22.26–22.28) and to construct them in a way that suits their own learning and recall. An effective summary is one that prompts the student to recall quickly and comprehensively what they need to know for the particular types of questions asked. A set of more comprehensive notes might be helpful for unexpected or more difficult questions. The advantage of an open book exam is that it takes some of the pressure off students. If something is forgotten, the information can be checked. It might be reassuring to know that you have resources at hand, but there is unlikely to be the opportunity for more than one or two brief references to a textbook or casebook. Do not assume that open book exams are easier than closed book ones. They are often more demanding in that the questions may be more complex and the expected level of accuracy, with respect to things like case details, is higher. In closed book exams students must rely on memory and understanding. Of course, preparing for either type of exam requires students to learn and remember both the rules and sources of those rules, and demonstrate how they apply. Closed book exams, however, minimise the option for students to merely regurgitate material from summaries and instead require a demonstration of knowledge and skills. Preparing summaries would still be useful for the learning involved in the preparation. Developing mnemonics or other idiosyncratic ways of remembering case names and rules may also help.

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22.26

598

PREPARING SUMMARIES It is generally useful to prepare a summary of the course to be used for revision or, for open book exams, to be used in the exam room. Four reasons for making a summary are: 1. The process of making a summary reinforces learning, exposes any lack of understanding and may identify ‘grey’ areas of law. 2. A comprehensive summary enables the whole unit to be seen as a single entity in a relatively brief compass. 3. A summary requires the rules and principles to be stated succinctly. Learning how to do this before the examination can help a student write concisely in the exam. By saving time in stating points, a student improves their chances of covering all parts of a question, rather than only some because they have run out of time. 4. A summary becomes a useful reference tool for solving problems. A glance at a well-written summary should enable the student to recall a whole section of the work and use it to solve a problem. The summary can be structured to have the same headings as the course outline and the main body of notes. In this way, more detail from the full set of notes can be located immediately under the heading corresponding to that in the summary. If the exam is of an issue-spotting nature, it can be useful to formulate summaries in a manner that provides students with a scaffold, structure or method for answering each problem question. In doing this, students should consider the kinds of questions that could be asked on each topic, and then create a step-by step set of instructions as to

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CHAPTER 22

Study and Exam Skills

how to resolve each type of question. This may include the issues the courts have dealt with but posed as questions the student needs to answer to develop the advice. It should also include the relevant cases and legislative provisions that provide the rules for the area of law. The first step in preparing a summary is to check how much of the course is examinable and what kinds of questions (for example, essay or problem) need to be tackled. The next step is to outline the course materials and lecture notes, including: • the principles of law taught; • the authorities for those principles (cases and legislation); and • any complexities, comments on, or criticisms of, the principles.

22.27

The summary should also show clearly how the principles relate to one another. This may be done by means of diagrams, equations or f low charts. Example Negligence

= Duty of care + breach of duty + damage

Duty of care

= Neighbour principle: foreseeable class of plaintiff + satisfaction of any additional control factors applicable to that type of case

Breach of duty = Failure to comply with standard of care appropriate to circumstances Damage

= Personal injury, damage to property or economic loss, caused by breach of duty

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For a guide to a step-by-step type of summary, set out below is a partial example of how a contracts summary might be structured. Example Step 1: Formation of contract 1. Has there been a valid offer? a. An offer is a statement of willingness to be bound immediately without further negotiation b. What is not a valid offer? c. … 2. Has there been valid acceptance of the offer? 3. Is the contract sufficiently certain? 4. Is there valid consideration? …

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Step 2: Is the contract wholly or partly in writing? 1. Contracts for the sale of land must be recorded in writing to be enforceable 2. When can a contract be partly in writing? …

22.28

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22.29

600

However well prepared a summary may be, it has limited intrinsic value. The utility of such a document lies in the learning process which has accompanied its preparation and its capacity to prompt recall. If the student has prepared their summary effectively, then a glance at it will trigger access to their learning. To prepare for an exam, students should develop summaries with the final exam in mind, which means creating a summary that enables the student to recall what they need for the type of exam they are to sit. By practising on old exams, students can test the usefulness of their summaries and add further detail or tailor them for better recall. STUDY GROUPS Some students find it helpful to establish or join a study group in which exam problems and different areas of the course are discussed.Those who have not understood a particular point or topic may find the explanations of other students useful, while those who have already understood may find that the act of explaining the concept sharpens their own understanding. Some student law societies or teachers will help to organise study groups. Otherwise students could take the initiative themselves by finding others to work with — in person around a table or online — and meeting regularly. For a study group to be effective, students need to be prepared to act collectively to help each other. There is little point in merely dividing up the course material for each member to prepare a summary for exchange. Topics in the study guide can be allocated to different members, with each taking responsibility for preparing a summary, but the real benefit arises from teaching and learning from each other. Each member of the group might be allocated a topic on which to read relevant periodical articles, case commentaries and monographs on the topic, summarise them for the group and then lead a discussion on them. Also, tutorial problems and past exam questions can be distributed, with each student taking primary responsibility for one question. Study groups are most effective when meetings are regular and the level of understanding and preparation of the members roughly the same. For issue-spotting exams it can be useful for students to discuss a previous exam’s problem question together, then do the problem question under timed, exam conditions, and then discuss or even ‘mark’ each other’s work and provide feedback.This is a good way of understanding different approaches to the law and to answering a question.

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CHAPTER 22

Study and Exam Skills

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In the examination FOLLOWING INSTRUCTIONS AND MANAGING TIME Doing well under exam conditions requires practice and discipline. Candidates should read exam directions very carefully. Occasionally students misunderstand what they are required to do and therefore gain fewer marks than they deserve. In particular it is important to ascertain the number of questions that must be answered and, once the questions have been chosen, to read them thoroughly. Many marks have been lost by students answering too many questions or too few, and misreading questions. If there is a mistake in the exam paper, such as ambiguity in the instructions, or a basic factual premise of a question is unclear, do not hesitate to seek clarification, preferably during reading time. Time allocation in the writing of answers should be adhered to rigidly. The marks gained by going over time are far fewer than those lost by having to cut short another answer. In other words, the first 50% of the marks for any question is much easier to earn than the second 50%. Ideally the student should divide the exam period into chunks of time proportional to the weight of marks allocated. So, if each question is worth the same number of marks, divide the writing time equally between them. This applies to the reading time as well; do not spend a disproportionate amount of time on the first question, leaving insufficient time to read and plan a response to subsequent questions.

22.30

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Finish every answer even if that means that one or two paragraphs are in a shorthand style or bullet points. Some marks can be given for an abbreviated answer, whereas none can be earned for issues not mentioned at all.

22.31

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22.32

602

OUTLINE ANSWERS Before beginning to write the full answer, students should spend some time drafting an outline answer to each question, whether or not there is a designated reading period at the beginning of the exam.This time is best used to make sure that all possible issues have been identified, and to organise the points to be made in each answer.Then, when the time comes to write the full answer, students will know where they are going and will have less need for afterthoughts and insertions and should avert the risk of accidental omissions. A large proportion of marks for order and organisation is earned in the preparation of your outline answers. Remember, too, that the brain probably works best at the beginning of an exam, before tiredness sets in. STRUCTURING THE ANSWER For the standard issue-spotting exam, students are required to write an objective response about how the law would apply to a scenario and provide a tentative conclusion of what a court would find. As noted in 7.9 and 16.10, a good approach for undertaking the legal analysis is to employ an IRAC approach, systematically ensuring each Issue is identified, the relevant Rule set out, then the rule(s) Applied to the facts, before reaching a Conclusion. When giving advice on the likely solution to a legal problem, the student should first consider the material facts presented and identify the legal issue or issues raised by these facts. In a contracts exam, for example, suppose that one party is disputing whether a valid contract was formed, while the other party wishes to enforce the agreement. Contract formation is clearly in issue. Once the issue has been identified, the applicable rule needs to be stated. A good summary should enable the student to find the applicable rule(s) quickly and correctly. The rule should be set out with reference to its legal source, remembering that in a common law system the legal rule might emerge from a statute, case law or, most commonly, a combination of the two. This part of the analysis could include a statement of the legislative provision, then reference to case law interpreting that provision or even to conflicting case law. The student must make clear whether the rule from any particular case is binding, or of only persuasive authority (see Chapters 7–8). Poorer responses omit reference to the legal source of the rule or state the rule too simply, failing to note any complexity or uncertainty in how it has or might be interpreted. The rule should then be applied to the material facts which raised the issue, in order to reach a conclusion as to the likely outcome. When it comes to applying the rule to the facts, students should not waste precious words and time restating the facts of the given problem. However, they should, above all, engage with the detail of the facts when applying legal principles to them. For example, the rule of reasonableness might have been interpreted to encompass a set of factors. To decide whether someone’s actions are reasonable in the circumstances would thus require a careful examination of those circumstances according to the set of factors. These might include the precise

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Study and Exam Skills

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timing of an event, the exact words that were spoken, the peculiar characteristics of a person or a thing, the presence or absence of particular antecedent or accompanying circumstances — any of these may make the difference between a finding for or against civil or criminal liability. A demonstrated appreciation of the importance of factual detail often distinguishes the best exam answers. Poorer responses often skip the application step, jumping from a statement of the rule to a conclusion. For an illustration of how a student is expected to approach a problem assignment, see 15.3 where a sample answer is given to a problem that requires interpretation of the Wild Dog Destruction Act 1921 (NSW). The sample answer is in note form, rather than being a polished piece, so there is neither an introductory nor a concluding paragraph. Nevertheless, the structure is logical and each issue is dealt with thoroughly, and in an objective way, leading to a conclusion for advice to the client. It is important to appreciate that the IRAC scheme is just a tool; it reflects the steps in legal analysis that you should undertake and encourages you to think systematically. But it should not be used mechanically — the scheme may be developed, condensed or varied depending on the specific nature of the question. Sub-issues may be dealt with together if it is cumbersome to deal with each separately. Sometimes one precedent contains several principles only one of which is relevant to the problem. If that is the case, do not waste time or words on irrelevant aspects of the precedent. Sometimes a rule is not clear, needs to be qualified, or only partly resolves an issue. In that case, point out these deficiencies; if necessary, illustrate them by applying the rule to show that the issue cannot be resolved as the law stands (or because the facts given are insufficient). HEADINGS Many students spoil their answers by their poor arrangement of the material. When an answer is not well structured, and the paragraphs merge into one long passage, it is difficult for the reader (the examiner) to discern what has been covered or omitted. Use headings, for several reasons. First, they encourage a logical structure for the answer and help to ensure key issues are not neglected. They also discipline the writer to confine each part of the answer to one thing only. (If each part deals with more than one thing, it is impossible to give it a simple heading. Talking about two things at once is generally not sensible.) Second, headings help examiners find their way around the document. If it is a long-winded essay, headings will certainly improve it. They show the structure of the answer and the student’s understanding of the main issues. To readers, especially those marking hundreds of answers to the same question, guidance of this kind is welcome. For a problem-style question, it is helpful to use major headings to identify the actions raised by the facts. For example, in a medical negligence case, the first claim to consider might be the patient’s possible claim against the doctor and a simple heading for this part of the response, such as ‘Peter Patient v Dr Scalpel’, should reflect this. Where the facts are more complex, there might be a number of different possible actions, and then, in connection with each action, subheadings should identify the major elements in issue. For example, in a negligence case headings might be: duty, standard, breach, causation, remoteness, quantum of damage. Not all of these headings will be called for in each case.

22.33

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22.35

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22.36

ABBREVIATIONS Generally you should not use your own abbreviations for words or expressions. At worst, they may be misunderstood and, at best, the examiner is likely to be annoyed by them. Well-recognised abbreviations (such as ‘Cth’ for Commonwealth) may be acceptable but others should be avoided unless previously checked with the examiner. However, it is acceptable to use abbreviations for the names of parties, provided they are sensibly chosen and properly introduced. For example, ‘P’ and ‘D’ may be used for prosecution or plaintiff and defendant. Similarly, parties’ names, once written in full, can be given an abbreviation — for example: Andrew (‘A’) or United Window Products Pty Ltd (‘UWP’). PRACTICAL TIPS FOR WRITING EXAMS Here are some practical tips for writing exams, particularly for sit-down, handwritten exams, that may help you in developing your response and guide your reader: • Do not start with a recitation of the facts; this takes up valuable time and words, and adds nothing. Note the facts if and when they are relevant within your analysis. • Clearly note the number of the examination question at the start of the answer. • Leave a line space between paragraphs and, if possible, between each line of the answer. • Do not let a page look like an unbroken, un-signposted, mass of verbiage without structure. Underline headings and, if it helps communicate a list or steps, you might even use point form. • Do not rewrite passages to correct minor errors. Add corrected material to the existing text; this is where a spare line between each line of text can be useful. • If time is getting short, finish the answer in note form rather than leaving it unfinished or attempting complete sentences. • Provide authority, whether from case law or legislation, for all propositions of law. In short-release or sit-down exams, generally there is no requirement to give full citations, just enough detail to ensure that the case or legislation is identified. • Answer each question as concisely as possible. Consider all the genuine issues raised in the problem and avoid irrelevant discussion of non-issues. The latter merits no marks, wastes valuable time and words, and might result in marks actually being deducted as the student will have failed to demonstrate good judgement.

Further reading • Tracey Bowell, Robert Cowan and Gary Kemp, Critical Thinking: A Concise Guide (Taylor & Francis, 5th ed, 2019).

• Anthony Bradney et al, How to Study Law (Sweet & Maxwell, 8th ed, 2017). Contains coverage both of specific legal techniques and of the more general study skills needed by any student. 604

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CHAPTER 22

Study and Exam Skills

• Enid Campbell, Richard Fox and Melissa de Zwart, Students’ Guide to Legal Writing, Law Exams and Self Assessment (Federation Press, 3rd ed, 2010). A concise, practical guide. • Stella Cottrell, Critical Thinking Skills: Effective Analysis, Argument and Reflection (Palgrave, 3rd ed, 2017). • Patrick Keyzer et al, Legal Problem Solving: A Guide for Law Students (LexisNexis Butterworths, 2nd ed, 2003). • Richard Krever, Mastering Law Studies and Law Exam Techniques (LexisNexis Butterworths, 8th ed, 2013). A helpful guide. • Claire Macken, Law Student Survival Guide: 9 Steps to Law Study Success (Thompson Reuters, 2nd ed, 2009). • Stacie Strong, How to Write Law Essays and Exams (Oxford University Press, 5th ed, 2018).

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To enhance your learning experience, use the student resources available on Lexis® Learning See the Visual Preface at the front of this book on how to register.

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606

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PART

6

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The Essential Legal Toolkit A Court Hierarchies

609

B Abbreviations of Commonly Used Law Reports

622

C A Guide to Law Reports of Courts

625

D Common Legal Abbreviations

631

E Commonly Misspelt or Misused Words

635

F Glossary

636

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ESSENTIAL LEGAL TOOLKIT

Court Hierarchies Listed below are the main federal, state and mainland territory courts and tribunals. The English court hierarchy is also briefly described, as are the Canadian, New Zealand and United States hierarchies. In addition to its courts, each jurisdiction has a plethora of specialist tribunals that review decisions of bodies ranging from private professional disciplinary boards like the Physiotherapy Board of Australia, to public bodies such as parole boards and industrial relations commissions. Tribunals have great practical importance because they decide a large percentage of the matters which are litigated, but it is not practical to cover them all here. There is usually a right of appeal from tribunals to the courts. For further discussion of tribunals, see Chapter 6.

A

A.1

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Federal hierarchy The following are the courts and tribunals in the federal system: • High Court of Australia, which has general appellate jurisdiction and original jurisdiction in certain matters including constitutional cases. There are seven Justices on the High Court. • Federal Court of Australia, which may be constituted by a single judge or a Full Court (at least three judges and, in significant cases, five judges). Single judges have original and some appellate jurisdiction and the Full Court has appellate jurisdiction, including jurisdiction to hear appeals from state and territory courts on some matters. • Family Court of Australia. The Appeal Division of the Family Court has appellate jurisdiction, while a single judge has original jurisdiction and may hear appeals on family matters from the Magistrates Courts of the territories and the Federal Circuit Court. • Federal Circuit Court of Australia. Established in 1999 as the Federal Magistrates Court, its name was changed in 2013 and its judicial officers are now referred to as judges. It has wide jurisdiction over family law and federal law, and was established to determine less complex matters. • Administrative Appeals Tribunal (AAT) is the foremost national tribunal. The AAT conducts merits review of decisions by government under more than 400 pieces of legislation. From 1 July 2015 former specialist tribunals (the Migration and Refugee Review Tribunals, and the Social Security Appeals Tribunal) were brought into the AAT as divisions of the Tribunal.

A.2

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LAYING DOWN THE LAW

• The Veterans’ Review Board, the National Native Title Tribunal, and the Australian Competition Tribunal are other principal national tribunals with specialist jurisdiction. These are not shown in the diagram of the federal and territorial court hierarchy (below). The federal and territorial court hierarchy is illustrated in simplified form in the diagram below. The AAT, although not a court, is included because of its importance. FEDERAL HIERARCHY High Court of Australia Full Court Single Judge

State/Territory Supreme Court Full Court or Appeal Court.

Federal Court Full Court

Family Court Full Court

Appeal only where allowed by federal legislation on certain matters

Federal Court Single Judge

Family Court Single Judge

State/Territory Supreme Court Single Judge.

Family matters

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Federal Circuit Court

Administrative Appeals Tribunal

State/Territory District/County Court (where applicable)

State/Territory Local/Magistrates Court

The High Court of Australia, headed by the Chief Justice of Australia, is at the apex of the federal and state court systems. It has two classes of original jurisdiction conferred directly by s 75 of the Australian Constitution and arising by federal legislation made under s 76 of the Constitution. For matters within the Court’s original jurisdiction, parties have a right to apply to the High Court, a right exercised in particular by people claiming refugee status. The Court has comprehensive jurisdiction, under s 73 of the Constitution, as the final court of appeal from all courts in Australia. However, litigants generally do not have an automatic right of appeal to the High Court but require the High Court’s special leave. The High Court establishes the common law for all Australians. 610

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Court Hierarchies

State courts are included in the diagram since, under s 39 of the Judiciary Act 1903 (Cth), state courts can exercise federal jurisdiction. Depending on the Commonwealth legislation under which a case is being heard, appeals from single judges of state supreme courts exercising federal jurisdiction may be made either to the Full Court of the Federal Court or to the appellate court of the relevant state supreme court. From this intermediate appellate court, appeal lies by special leave to the High Court. Federal Court appeals go to the Full Court of the Federal Court, and then to the High Court with special leave. Family Court appeals go to the Full Court of the Family Court and then to the High Court with special leave. From the Federal Circuit Court, appeals may be taken to the Federal Court or the Family Court depending on the nature of the matter. An appeal from the Federal Circuit Court may be to a single judge of the Federal Court but is regarded as an appeal to the Full Court of the Federal Court. There is a right of appeal on a question of law from the AAT to the Federal Court, although such an appeal may be remitted by the Federal Court to the Federal Circuit Court. A single judge of the Federal Court or Family Court has coordinate jurisdiction with a single judge of a state Supreme Court. Similarly, the appellate courts of the state Supreme Courts have coordinate jurisdiction with the Full Federal Court and Full Family Court. With regard to family law, Western Australia is a special case. The Commonwealth has given federal jurisdiction to the Western Australian Family Court and to family law magistrates in the Magistrates Court of Western Australia. Appeals from the Magistrates Court on non-federal family law go to the Western Australian Family Court, Supreme Court or Court of Appeal. Appeals from the Western Australian Family Court on non-federal family law go to the Court of Appeal. Appeals on federal family law from the Magistrates Court go to the (federal) Family Court (the Full Court or a single Judge). Appeals on federal family law from the Western Australian Family Court go to the Full Court of the (federal) Family Court of Australia.

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FAMILY LAW HIERARCHY IN WESTERN AUSTRALIA Matters of federal law

Matters of non-federal law

Family Court of Australia Full Court

Family Court of Australia Single Judge

Court of Appeal Full Court

Family Court (WA) Single Judge

Supreme Court Single Judge

Magistrates Court Single Judge

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State courts and tribunals

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A.3

In each state court system there is a superior court called the Supreme Court. The supreme courts have appellate and some original jurisdiction, both civil and criminal, and deal with state and also federal matters. Except in Tasmania, below the Supreme Court there are two levels of courts: an intermediate court and lower courts. In the states with an intermediate court, that court has similar jurisdiction to its Supreme Court but with some financial or other limit in civil matters, and a limit on the types of offence it may try in its criminal jurisdiction. All jurisdictions except Tasmania have a multi-jurisdiction civil and administrative appeals tribunal with authority to make original decisions as well as to review government decisions by others. In Tasmania the jurisdiction is in an administrative division of the Magistrates Court but a Tasmanian Civil and Administrative Tribunal (TasCAT) is scheduled for introduction in 2020.1 In addition, each state has individual specialist tribunals dealing with matters such as industrial relations, mental health, and land and the environment. A significant limit on the powers of the state civil and administrative tribunals is that they are prohibited by s 75(iv) of the Constitution from hearing matters involving parties outside their own state — commonly described as the diversity jurisdiction.2 This has the capacity to reduce their ability to hear matters in areas such as guardianship, discrimination and some commercial operations. The effect of the decision has been addressed legislatively in most jurisdictions. The state court hierarchies are illustrated in simplified form in the diagram below with a description of each jurisdiction’s court system following. (The federal jurisdiction of the state courts has been considered at A2.) The diagram makes no distinction between civil and criminal cases. Criminal trials in the supreme and intermediate courts are generally heard with a jury, but juries are uncommon in civil trials. There are significant differences between jurisdictions, particularly in criminal matters, as to rights of appeal from lower and intermediate courts to the Supreme Court. There are rights of appeal to the court systems from state and territory tribunals and specialist courts.

Tasmanian Civil and Administrative Tribunal Bill 2020 (Tas). Burns v Corbett (2018) 265 CLR 304.

1 2

612

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Court Hierarchies

STATE HIERARCHIES High Court of Australia Full Court Single judge

State Supreme Courts Courts of Appeal/ Full Courts

State Supreme Courts Single judge

Intermediate courts District/County Courts

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Magistrates Courts Local Courts Courts of Petty Sessions Magistrates Courts Small Claims Courts Coroner’s Courts Children’s Courts

Note: This is a simplified diagram of the state hierarchies. There may be jurisdictional differences in some states.

NEW SOUTH WALES • The Supreme Court of New South Wales has two divisions: the Common Law Division (including criminal and some civil matters), and the Equity Division (including many commercial matters). Within the Supreme Court there is a Court of Appeal and a Court of Criminal Appeal, each of which sits with three or more judges. Judges of Appeal are specially appointed to the Court of Appeal. • The District Court of New South Wales is an intermediate court with extensive civil and criminal jurisdiction. • The Local Court has limited civil and criminal jurisdiction within local areas. • The NSW Civil and Administrative Tribunal (NCAT) has broad civil and administrative jurisdiction. Appeals from the Local Court can be made to the District Court, or directly to the New South Wales Supreme Court or, where appropriate, to the Federal Court. There is

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a limited right of appeal from the District Court to the Court of Appeal or to the Court of Criminal Appeal, and from a single judge of the Supreme Court to the appropriate state appellate court. From the appellate courts, and, in some circumstances, from a single judge, appeals can be taken to the High Court with the Court’s special leave. Parties may appeal from NCAT decisions to an Internal Appeal Panel, or, in some circumstances, to the Supreme Court or to the District Court. QUEENSLAND • The Supreme Court of Queensland has appellate and original jurisdiction in civil and criminal matters.The Trial Division, constituted by a single judge, may exercise original or appellate jurisdiction, while the Court of Appeal hears only appeals. • The District Court of Queensland has extensive civil and criminal jurisdiction and hears appeals from the Magistrates Court. • The Magistrates Court has a limited civil and criminal jurisdiction. • The Queensland Civil and Administrative Tribunal (QCAT) has broad civil and administrative jurisdiction. Appeals from the Magistrates Court are to the District Court and, where appropriate, to the Federal Court. From the District Court appeals go to the Court of Appeal. Appeals also lie to the Court of Appeal from a single judge of the Supreme Court. Appeals lie from the Court of Appeal, and, in certain circumstances, the Trial Division, to the High Court with the Court’s special leave. Appeals from the QCAT go to the Tribunal’s appeal tier, or to the Court of Appeal. SOUTH AUSTRALIA

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• The Supreme Court of South Australia has original and general appellate jurisdiction in civil and criminal matters. A single judge may exercise original or appellate jurisdiction while the Full Court exercises appellate jurisdiction only. From January 2021, there will be a South Australian Court of Appeal, with five judges dedicated to hearing matters on appeal.3 • The District Court of South Australia has extensive civil and criminal jurisdiction exercised in a Civil Division, a Criminal Division and a Criminal Injuries Division. • The Magistrates Court has a limited civil and criminal jurisdiction. • The South Australian Civil and Administrative Tribunal (SACAT) resolves a broad range of civil and administrative appeals and disciplinary matters, formerly dealt with by a division of the District Court. From the Magistrates Court, appeals may be taken to the District Court or directly to the Supreme Court. From the District Court an appeal lies to the Supreme Court. Alternatively, where appropriate, appeals may be taken to the Federal Court. Appeals from the Supreme Court, both from the Full Court and, in certain circumstances, a single judge, lie to the High Court with the Court’s special leave. Supreme Court (Court of Appeal) Amendment Act 2019 (SA).

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Court Hierarchies

There is a right of internal appeal to an appeal panel of the SACAT, as well as a right to appeal to a single judge or the Court of Appeal. TASMANIA Tasmania has only two tiers of courts. • The Supreme Court of Tasmania has original and general appellate jurisdiction in civil and criminal matters. The Full Court and the Court of Criminal Appeal have appellate jurisdiction only, while a single judge may exercise original or appellate jurisdiction. • The Magistrates Court of Tasmania has divisions with civil and criminal jurisdiction, and an administrative appeals jurisdiction which will be transferred to the general jurisdiction tribunal (TasCAT) when it is established in 2020. Appeal from the Magistrates Court may be made to a single judge of the Supreme Court or, where appropriate, to the Federal Court of Australia. Appeal from a single judge of the Supreme Court is usually to three judges sitting as the Full Court or the Court of Criminal Appeal or, where appropriate, to the Federal Court. Appeal also lies in certain circumstances from a single judge of the Supreme Court, and from appellate courts, to the High Court with the Court’s special leave.

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VICTORIA • The Supreme Court of Victoria has original and appellate jurisdiction in civil and criminal matters. A single judge may exercise both jurisdictions while the Court of Appeal functions as a civil and a criminal court of appeal. • The County Court of Victoria is an intermediate court with extensive civil and criminal jurisdiction at first instance and, in certain circumstances, on appeal. • The Magistrates’ Court has a limited jurisdiction in civil and criminal matters. • The Victorian Civil and Administrative Tribunal (VCAT) has broad civil and administrative jurisdiction. The Magistrates’ Court is at the base of the Victorian court hierarchy. From there an appeal may be made either to the County Court, to a single judge of the Supreme Court or, where appropriate, to the Federal Court. From the County Court and from a single judge of the Supreme Court, appeals go to the Court of Appeal. Appeals also lie from the Court of Appeal and, in certain circumstances, a single judge of the Supreme Court to the High Court with the Court’s special leave. There is a right to appeal from theVCAT to the Supreme Court or the Court of Appeal. WESTERN AUSTRALIA • The Supreme Court of Western Australia has original and appellate jurisdiction in civil and criminal matters. The Court of Appeal exercises the appellate jurisdiction while a single judge has original and, in some circumstances, appellate jurisdiction. The Court of Appeal hears appeals from decisions of a single judge of the Supreme Court and from judges of the District Court as well as other courts and tribunals.

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• The District Court is an intermediate court with extensive civil and criminal jurisdiction, some of which is appellate. • The Family Court of Western Australia exercises the jurisdiction exercised elsewhere in Australia by the national Family Court of Australia. • The Magistrates Court has a limited criminal and civil jurisdiction including in some family law matters. • The State Administrative Tribunal (SAT) has broad civil and administrative jurisdiction. An appeal from the Magistrates Court in a civil matter can be made to the District Court, while appeal from the Magistrates Court in a criminal matter lies to a single judge of the Western Australian Supreme Court. From the District Court, the Family Court of Western Australia and a single judge of the Supreme Court, appeal lies to the Court of Appeal. An appeal also lies to the Appeal Division of the Family Court of Australia from the Family Court of Western Australia. From the Court of Appeal and, in certain circumstances, a single judge, appeal may be made to the High Court with the Court’s special leave. There is no right of internal review and appeals, by leave, go to the Supreme Court or the Court of Appeal.

Territory courts and tribunals A.4

Like Tasmania, the mainland Australian territories have only a two-tier court system, but like all states (soon including Tasmania), they also have tribunals. The territories’ courts and tribunals are as follows. AUSTRALIAN CAPITAL TERRITORY

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• The Supreme Court of the Australian Capital Territory, usually presided over by a single judge, has general civil and criminal jurisdiction, both original and appellate.The Supreme Court is known as the Court of Appeal when exercising its appellate jurisdiction. • The Magistrates Court has a limited civil and criminal jurisdiction. • The ACT Civil and Administrative Tribunal (ACAT) has broad civil and administrative jurisdiction, original and appellate. There is a right of appeal from the Magistrates Court to the Supreme Court. Appeal from the Supreme Court is to the Full Court of the Federal Court and from there to the High Court with the Court’s special leave. ACAT offers a right of internal review, as well as an appeal to the Supreme Court. NORTHERN TERRITORY • The Supreme Court of the Northern Territory has general civil and criminal jurisdiction, original and appellate. The Court is most frequently presided over by a single judge but also sits as a Court of Appeal, a Court of Criminal Appeal and, occasionally, as a Full Court. 616

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Court Hierarchies

• Local Court (formerly Magistrates Court) has civil and criminal jurisdiction (and members are referred to as judges, not magistrates). • The Northern Territory Civil and Administrative Tribunal (NTCAT) has broad civil and administrative jurisdiction. Appeals from the Local Court may be taken to the Supreme Court. Appeals from a single judge of the Supreme Court usually lie to the Court of Appeal or the Court of Criminal Appeal, and then to the High Court with the Court’s special leave. There is a right of appeal from the NTCAT to an appeal panel of the Tribunal itself, and a right to appeal to the Supreme Court.

British courts and tribunals

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There is no single court system for the United Kingdom. Separate court systems are in place for England and Wales, for Scotland, and for Northern Ireland. Nonetheless, national jurisdiction exists for some areas, such as asylum and refugee claims, and military law. • The Supreme Court of the United Kingdom replaced the House of Lords in 2009 at the apex of the United Kingdom’s legal system. The Supreme Court hears appeals from courts in England and Wales, Scotland, and Northern Ireland.

A.5

Following are the main courts for the jurisdiction of England and Wales. • The Court of Appeal, as its name implies, is an appellate court with no original jurisdiction. It is at the apex of the Senior Courts of England and Wales, which include the High Court and the Crown Court.The Court of Appeal has a Civil Division and a Criminal Division. Appeals lie to the Supreme Court. The Civil Division hears appeals from the courts below and from superior tribunals. • The High Court is composed of three Divisions: the Queen’s (or King’s) Bench Division, which includes the Commercial Court and the Admiralty Court; the Chancery Division; and the Family Division. The jurisdiction of the High Court is mainly original but also, in part, appellate. Judges normally sit alone in the High Court but sometimes two or more sit together, thus forming a Divisional Court of the Queen’s Bench Division, the Family Division or the Chancery Division. The Divisional Courts are intermediate appellate courts hearing appeals from inferior courts such as the Magistrates’ and County Courts, although they also have some original jurisdiction. The Divisional Court of the Queen’s Bench Division exercises supervisory jurisdiction over inferior courts, tribunals and other bodies, by way of prerogative writs. • The Crown Court is a criminal court with both original and appellate jurisdiction. When it sits as a court of first instance, trial may be by judge and jury, but when it hears appeals there is no jury. The Crown Court has a limited civil jurisdiction. • The County Courts are courts of limited original jurisdiction in a wide range of civil matters. Actions are normally tried without a jury, although — for example, in a fraud case — a jury may be requested.

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• Magistrates’ courts are inferior courts with responsibility for some civil matters such as family proceedings and licensing, but their jurisdiction is mainly limited criminal jurisdiction. In civil proceedings, appeals are taken from magistrates’ courts or the County Courts to the Court of Appeal, one of the Divisional Courts or, occasionally, to a single High Court judge. Appeals from the High Court go to the Court of Appeal, Civil Division and then to the Supreme Court. In certain circumstances appeals may be taken directly from the High Court to the Supreme Court. The magistrates’ courts are at the lowest level of the criminal hierarchy. More serious cases are tried in the Crown Court. Appeals from the magistrates’ courts go to the Crown Court or the Divisional Court of the Queen’s Bench Division. Appeals from the Crown Court go to the Court of Appeal, Criminal Division and thence to the Supreme Court. Appeals also lie from the Divisional Court to the Supreme Court. There are numerous specialist tribunals. In 2008, the existing jurisdictions of many existing tribunals were combined in two new tribunals: the First-tier Tribunal (with divisions or chambers corresponding with the former tribunals); and an Upper Tribunal. The Upper Tribunal is a superior court of record, with equivalent status to the High Court. Legally qualified members of the Tribunals are judicial appointments. There is a right of appeal, on most matters with leave from the First-tier Tribunal to the Upper Tribunal, but the First-tier Tribunal may first reconsider its initial decision. First instance decisions on criminal injuries compensation and asylum support may be reviewed by the Upper Tribunal but only by way of judicial review. Appeals against decisions of the Upper Tribunal can be made to the Court of Appeal (in England and Wales) or the Court of Session (in Scotland). There is also an eponymous Employment Tribunal which has equivalent status to the Upper Tribunal and from which there is a similar right of appeal.

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A.6

With its exit from the European Union, unless the terms of the settlement later in 2020 decide otherwise, there will be no need for the United Kingdom to take matters to the Court of Justice of the European Union. Independently of the European Union, the United Kingdom is also a member of the European Convention on Human Rights4 which are incorporated into British law by the Human Rights Act 1998 (UK). Persons who think that the British courts have not properly enforced their rights under the Convention may bring a case to the European Court of Human Rights in Strasbourg. There is ongoing debate as to whether the United Kingdom, having left the European Union, will also abandon the European Convention on Human Rights.

Canadian courts and tribunals A.7

Canada, like Australia, operates a federal system of government. As in Australia, the division between the federal and provincial/territorial spheres is not clear-cut. There is some overlap in the jurisdiction of the two court systems.

Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953).

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Court Hierarchies

The main courts in the Canadian federal system, with judges federally appointed, are as follows: • The Supreme Court of Canada is the highest court in the Canadian hierarchy with both civil and criminal appellate jurisdiction. It hears appeals from the Federal Court of Appeal, and other courts of appeal. It also has the authority to deliver advisory opinions. • The Federal Court of Appeal hears appeals from the Federal Court (Trial Division) and from the Tax Court of Canada, and also adjudicates appeals under various federal Acts and from federal administrative tribunals. • The Court Martial Appeal Court hears appeals from military courts (courts martial). • The Tax Court of Canada has exclusive original jurisdiction to hear and determine appeals in respect of tax and welfare matters under specific Acts, including the Income Tax Act, RSC 1985; the Canada Pension Plan, RSC 1985; and the Employment Insurance Act, SC 1996. Canada also has a Canadian Human Rights Tribunal, established in 1977 under the Canadian Human Rights Act, RSC  1985. There are a number of other federal administrative tribunals with jurisdiction over matters such as industrial relations, transportation, immigration and refugees, energy, and pensions. The Administrative Tribunals Support Service of Canada provides support services and facilities to 11 federal administrative tribunals by way of a single, integrated organisation. There is also a system of provincial and territory (lower) courts. The general model is as follows: • Courts of superior jurisdiction of a province, or the Supreme Court of a province, have an Appellate Division, often referred to as the Court of Appeal of the province or territory, and a Trial Division, which in some provinces or territories is referred to as the Court of Queen’s Bench. • Provincial and Territorial Courts have limited jurisdiction to try civil and criminal matters. In addition, the Canadian provinces have various specialist tribunals. In 1998 Quebec became the first province to introduce a general administrative tribunal (the Tribunal Administratif du Québec). In 2011, Ontario set up the Social Benefits Tribunal which administers a cluster of tribunals dealing with income support, human rights, landlord and tenant, child and family services, custody, and special education matters.

New Zealand courts and tribunals The New Zealand court hierarchy is as follows: • The Supreme Court of New Zealand is the ultimate appeal court for New Zealand. • The Court of Appeal hears and decides appeals from the High Court, the Employment Court, the Maori Appellate Court, the Courts Martial Appeal Court and other courts, and serious criminal charges on appeal from the District Court.

A.8

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• The High Court hears and decides serious criminal charges as well as large or important civil cases and some appeals from the District Court. It also has supervisory jurisdiction over tribunals. • The District Court has limited civil and criminal jurisdiction. It includes the Disputes Tribunal, Family Court and the Youth Court. There is a range of specialist tribunals but, despite a recommendation by the law reform body in New Zealand, no general jurisdiction tribunal has yet been created.

US courts and tribunals

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A.9

The United States of America is a federation like Australia, and has a similar court hierarchy, but with a number of key differences. First, the United States does not have a single or unitary court system: it has a federal system and 50 separate state systems.While the Supreme Court of the United States is considered the highest court of the land, its judgments are only precedential in respect of matters under federal jurisdiction and under the United States Constitution.The highest arbiter of any state’s law is the highest court in that state, not the US Supreme Court. Each state has its own court hierarchy, usually with three levels from trial court, to immediate court, and ultimately the highest court which is a superior court often called a supreme court. Other than in respect of a matter relating to the United States Constitution (or federal law), appeals do not lie from state courts to federal courts. The second difference follows directly from the first: there is no single common law in the United States as the Supreme Court has no capacity to harmonise or reconcile different approaches on common law matters that develop in and across the states. This situation prompted establishment in 1923 of a private body, the American Law Institute (ALI), comprised of eminent legal academics, judges and other legal practitioners.5 The ALI has become a significant law reform body primarily through drafting ‘restatements’ in various common law fields. These documents summarise the state of the law across the nation in a particular field and provide guidance on the interpretation and reform of law. In addition to restatements, the ALI has developed other law reform proposals as Principles of Law and even model codes in evidence and crime. While not law, such restatements have significant persuasive authority. The third difference relates to the structure of the federal court hierarchy, particularly the role of the intermediate courts.The federal court system has three tiers: District Courts (trial), Courts of Appeal (intermediate) and the Supreme Court. (There are also several courts of special jurisdiction.) The country is divided into 94 districts, providing the geographical jurisdiction for the District Courts, and these are arranged into 13 circuits with each circuit headed by a Court of Appeal. Appeals from a District Court go to the relevant Circuit Court of Appeal and very few matters go beyond this level to the Supreme Court. Each of the Circuit Courts of Appeal are not bound by the decisions of the other Courts of Appeal and thus, on any particular federal law matter, the law might be different across the circuits until the matter is heard and differences are reconciled by the Supreme Court. With the Supreme Court only hearing and deciding about 80 cases

‘Membership’, The American Law Institute (Web Page, 2017) .

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Court Hierarchies

a year (from approximately 7,000–8,000 applications),6 what a federal law means might differ across the circuits and never be reconciled. There is also a system of federal and state administrative tribunals.The United States has no general jurisdiction tribunal akin to the AAT in Australia. Individual tribunals at both state and federal levels are often associated with particular government agencies. Administrative law judges are generally appointed by the agency within which they operate and are regarded as officers of the agency. They are triers of fact and manage procedural issues. There is frequently an appeal from their findings to the head of the agency and thereafter on questions of law to the federal and state court systems.

Further reading • James Crawford and Brian Opeskin, Australian Courts of Law (Oxford University Press, 4th ed, 2004). • Margaret Beazley et al, Appeals and Appellate Courts in Australia and

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New Zealand (LexisNexis Butterworths, 2014). • Mark Leeming, Authority to Decide: The Law of Jurisdiction in Australia (Federation Press, 2nd ed, 2014). • Dean Mildren, The Appellate Jurisdiction of the Courts in Australia (Federation Press, 2015).

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‘Frequently Asked Questions (FAQ)’, Supreme Court of the United States (Web Page, 27  June 2017) .

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ESSENTIAL LEGAL

B TOOLKIT

Abbreviations of Commonly Used Law Reports (See also Essential Legal Toolkit C.) Key: ‘*’ beside the acronym indicates that the report series is an authorised series. The dates are the years of coverage of each law report series, in accordance with Appendix  A of the Australian Guide to Legal Citation.7 Note that the years of publication of each report series may differ slightly from the years of actual coverage.

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A Crim R A Jur Rep AAR *AC *ACTLR ACTR *ALD ALJR All ER All ER Rep ALR ALT ANZ Conv R *App Cas ATC ATR

Australian Criminal Reports, 1979 to date Australian Jurist Reports, 1870–74 Administrative Appeals Reports (Australia), 1984 to date Law Reports, Appeal Cases (United Kingdom), 1890 to date Australian Capital Territory Law Reports, 2007 to date Australian Capital Territory Reports (at the back of the ALR series), 1973–2008 Administrative Law Decisions (Australia), 1976 to date Australian Law Journal Reports, 1927 to date (issued as part of the Australian Law Journal prior to 1958) All England Law Reports, 1936 to date All England Law Reports Reprint, 1558–1935 Argus Law Reports, 1895–1959; Australian Argus Law Reports, 1960–73 Australian Law Reports, 1973 to date Australian Law Times, 1879–1928 Australian and New Zealand Conveyancing Reports, 1979 to date Law Reports, Appeal Cases (United Kingdom), 1875–90 Australian Tax Cases, 1969 to date Australasian Tax Reports, 1970 to 1990; Australian Tax Reports, 1991 to date

See Further reading at the end of Toolkit B.

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Abbreviations of Commonly Used Law Reports

Aust Torts Reports Australian Torts Reports, 1984 to date CAR Commonwealth Arbitration Reports (Australia), 1905 to date *Ch Law Reports, Chancery Division (United Kingdom), 1891 to date *Ch D Law Reports, Chancery Division (United Kingdom), 1875–90 *CLR Commonwealth Law Reports (Australia), 1903 to date *CPD Law Reports, Common Pleas Division (United Kingdom), 1875–80 Cox CC Cox’s Criminal Cases (United Kingdom), 1842–1941 DLR Dominion Law Reports (Canada), 1912–55 Dominion Law Reports, Second Series (Canada), 1956–68 DLR (2d) d Dominion Law Reports, Third Series (Canada), 1969–84 DLR (3 ) Dominion Law Reports, Fourth Series (Canada), 1984 to date DLR (4th) ER English Reports, 1220–1873 *Ex D Law Reports, Exchequer Division (United Kingdom), 1875–80 Fam LR Family Law Reports (Australia), 1976 to date *Fam Law Reports, Family Division (United Kingdom), 1972 to date *FC Federal Court Reports (Canada), 1971–2003 *FCR Federal Courts Reports (Canada), 2004 to date *FCR Federal Court Reports (Australia), 1984 to date FLR Federal Law Reports (Australia), 1956 to date GLR Gazette Law Reports (New Zealand), 1876–1953 IPR Intellectual Property Reports (Australia), 1982 to date *IR Industrial Reports (Australia), 1981 to date *KB Law Reports, King’s Bench Division (United Kingdom), 1901–51 LGERA Local Government and Environmental Reports of Australia, 1993 to date *LGRA Local Government Reports of Australia, 1956–93 *LR Ch App Law Reports, Chancery Appeal Cases (United Kingdom), 1865–75 *LR CP Law Reports, Common Pleas (United Kingdom), 1865–75 *LR Eq Law Reports, Equity Cases (United Kingdom), 1865–75 *LR (NSW) Law Reports, New South Wales, 1880–1900 (note that jurisdictions follow report abbreviation Bankruptcy & Probate (B&P); Common Law  (L); Divorce  (D); Equity  (Eq); Lunacy  (L); Vice-Admiralty (Vice Adm)) *LR PC Law Reports, Privy Council Appeals (United Kingdom), 1865–75 *LR P & D Law Reports, Probate and Divorce Cases (United Kingdom), 1865–75 LT Law Times Reports, Old Series (United Kingdom), 1843–59 LT NS Law Times Reports, New Series (United Kingdom), 1859–1947 MVR Motor Vehicle Reports (Australia), 1983 to date NR National Reporter (Canada), 1973 to date *NSWLR New South Wales Law Reports, 1971 to date *NSWR New South Wales Reports, 1960–70 *NTLR Northern Territory Law Reports, 1990 to date NTR Northern Territory Reports (in Australian Law Reports), 1979 to date NZAR New Zealand Administrative Reports, 1976 to date NZFLR New Zealand Family Law Reports, 1981 to date *NZLR New Zealand Law Reports, 1880 to date

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Law Reports, Probate (United Kingdom), 1891–1971 Law Reports, Probate Division (United Kingdom), 1875–90 Law Reports, Queen’s Bench Division (United Kingdom), 1891– 1900; 1952 to date *QBD Law Reports, Queen’s Bench Division (United Kingdom), 1875–90 *Qd R Queensland Reports, 1958 to date *QSR State Reports, Queensland, 1902–57 QWN Queensland Weekly Notes, 1902–72 SALCR South Australian Licensing Court Reports, 1967–78 *SALR South Australian Law Reports, 1865–1920 *SASR South Australian State Reports, 1921 to date *SCR Canada Supreme Court Reports, 1876–1922, 1970 to date *SCR Canada Law Reports, Supreme Court of Canada, 1923–69 *SCR Supreme Court Reports, Supreme Court of India, 1950 to date SCR (NS) (NSW) Supreme Court Reports (New South Wales) (New Series), 1878–79 SCR (NSW) Supreme Court Reports (New South Wales), 1862–76 *SR (NSW) State Reports (New South Wales), 1901–70 (authorised law report 1901–59 only) SR (WA) State Reports (Western Australia), 1979 to date *Tas LR Tasmanian Law Reports, 1897–1940 (authorised law report 1904–40 only) *Tas R Tasmanian Reports, 1979 to date *Tas SR Tasmanian State Reports, 1941–78 TLR Times Law Reports (United Kingdom), 1884–1952 VAR Victorian Administrative Reports, 1985 to date *VLR Victorian Law Reports, 1875–1956 *VR Victorian Reports, 1957 to date *WALR Western Australian Law Reports, 1898–1958 *WAR Western Australian Reports, 1958 to date WLR Weekly Law Reports (United Kingdom), 1953 to date WN Weekly Notes (United Kingdom), 1866–1952 WN (NSW) Weekly Notes (New South Wales), 1884–1970

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*P *PD *QB

Further reading • Australian Guide to Legal Citation (Melbourne University Law Review Association and Melbourne Journal of International Law, 4th  ed, 2018) (‘AGLC’): . The new edition of the guide most commonly used in Australia. • Cardiff Index to Legal Abbreviations . Useful for assistance with abbreviations of law reports not listed here.

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ESSENTIAL LEGAL

C TOOLKIT

A Guide to Law Reports of Courts (See also abbreviations of commonly used law reports in Essential Legal Toolkit B, and the abbreviations for court and tribunal names, which are used for medium neutral citation, included in Essential Legal Toolkit D.) Notes: There are also specialist reports for major tribunals. The years shown are the years of coverage of each law report series, in accordance with Appendix A of the Australian Guide to Legal Citation (‘AGLC’).8 Note that the years of publication of each report series may differ slightly from the years of actual coverage. For a more comprehensive list of law report series for other countries, see also Appendix A of AGLC.

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This section sets out the most important series of court law reports in Australia.

C.1

FEDERAL The authorised series of reports are: • Commonwealth Law Reports (CLR), 1903–, contains decisions of the High Court and previously reported decisions of the Privy Council on appeal from Australian courts. • Federal Court Reports (FCR), 1984–, contains decisions of the Federal Court of Australia. The main unauthorised series of reports include: • Australian Law Reports (ALR), 1973–, contains decisions of the High Court, state Supreme Courts exercising federal jurisdiction, and other federal courts and tribunals. The Australian Law Reports series was preceded by the Australian Argus Law Reports (ALR), 1960–73, and the Argus Law Reports (ALR), 1895–1959. Australian Guide to Legal Citation (Melbourne University Law Review Association and Melbourne Journal of International Law, 4th ed, 2018).

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LAYING DOWN THE LAW

• Australian Law Journal Reports (ALJR), 1927– (issued as part of the Australian Law Journal prior to 1958), contains decisions of the High Court, and decisions of the Privy Council on appeal from Australian courts. The major advantage of both ALJR and ALR is that they are published more quickly than the authorised reports. • Federal Law Reports (FLR), 1956–, contains decisions of federal courts and tribunals other than the High Court and Federal Court, state courts exercising federal jurisdiction, and the courts of the territories. STATE Each state has its own series of authorised law reports. In some states, there are also other important, but unauthorised, series of reports. New South Wales • New South Wales Law Reports (NSWLR), 1971–, is an authorised series covering decisions of the courts of New South Wales. It supersedes a series which from 1880 to 1900 was called the Law Reports, New South Wales (LR (NSW)), and from 1901 to 1970, the State Reports, New South Wales (SR (NSW), which was authorised only between 1901–59. • New South Wales Reports (NSWR), 1960–70, is also an authorised series and contains reports of decisions of the Supreme Court. • Weekly Notes (WN (NSW)), 1884–1970, contains reports of decisions of all the courts in New South Wales. Queensland

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• Queensland Reports (Qd  R), 1958–, is the authorised report series containing decisions of the Supreme Court of Queensland. From 1902 to 1957 the series was called State Reports, Queensland (QSR). South Australia • South Australian State Reports (SASR), 1921–, is the authorised report series containing decisions of the South Australian Supreme Court. From 1865 to 1920 the series was called the South Australian Law Reports (SALR). Tasmania • Tasmanian Reports (Tas  R), 1979–, is the authorised report series containing decisions of the Tasmanian Supreme Court. From 1941 to 1978 the series was called Tasmanian State Reports (Tas SR) and from 1897 to 1940, the Tasmanian Law Reports (TLR), although it was only authorised from 1904 to 1940.

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A Guide to Law Reports of Courts

Victoria • Victorian Reports (VR), 1957–, is the authorised report series containing decisions of the Victorian Supreme Court. In the mid-19th century there were some shortlived series of nominate reports. These were superseded in 1875 by the Victorian Law Reports (VLR) produced by the Council of Law Reporting. In 1957 the name was changed to Victorian Reports. Western Australia • Western Australian Reports (WAR), 1958–, is the authorised report series containing decisions of the Supreme Court of Western Australia. From 1898 to 1958 the series was called the Western Australian Law Reports (WALR). • State Reports, Western Australia (SR  (WA)), 1979–, contains decisions of courts and tribunals including the Family Court of Western Australia, in the exercise of state jurisdiction, the District Court of Western Australia, and the Western Australia State Administrative Tribunal. TERRITORY

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Australian Capital Territory • Australian Capital Territory Law Reports (ACTLR), 2007–, is the authorised series containing decisions of the Supreme Court of the Australian Capital Territory. • Australian Capital Territory Reports (ACTR), 1973–2008, contains decisions of the Supreme Court and appears at the end of the Australian Law Reports (ALR). • Federal Law Reports (FLR), 1956–, is an unauthorised series of decisions on federal law including decisions of the Supreme Courts of the territories. Northern Territory • Northern Territory Law Reports (NTLR), 1990–, is the authorised series of decisions of the Supreme Court of the Northern Territory. • Northern Territory Reports (NTR), 1979–, is an unauthorised series of decisions of the Supreme Court and is published at the end of the Australian Law Reports (ALR). • Federal Law Reports (FLR), 1956–, is an unauthorised series containing reports of decisions on federal law including decisions of the Supreme Courts of the territories.

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SPECIALIST REPORTS In addition to the report series listed above, which contain decisions on a wide range of matters, there are several specialist report series each of which covers only one area of law. These include: • Administrative Appeals Reports (AAR) 1984–. • Administrative Law Decisions (ALD) 1976– (this series comprises decisions of the Administrative Appeals Tribunal, the reports of which are authorised, and some administrative law decisions of the High Court and the Federal Court). • Australasian Tax Reports (ATR) 1970–90 (see also Australian Tax Reports). • Australian Criminal Reports (A Crim R) 1979–. • Australian Jurist Reports (Vic) (AJR or A Jur Rep) 1870–74. • Australian Law Times (ALT) 1879–1928. • Australian & New Zealand Conveyancing Reports (ANZ Conv R) 1979–. • Australian Tax Reports (ATR) 1991– (see also Australasian Tax Reports). • Australian Torts Reports (Aust Torts Reports) 1984–. • Family Law Reports (Fam LR) 1976–. • Intellectual Property Reports (IPR) 1982–. • Local Government Reports of Australia (LGRA) 1956–93. • Local Government and Environmental Reports of Australia (LGERA) 1993–. • Motor Vehicle Reports (MVR) 1983–. • South Australian Licensing Court Reports (SALCR) 1967–78. • Victorian Administrative Reports (VAR) 1985–. Each of these report series contains reports of judicial decisions and some also include reports from administrative tribunals. Copyright © 2020. LexisNexis Butterworths. All rights reserved.

English report series C.2

628

The Law Reports in England, published by the Incorporated Council of Law Reporting, comprise a number of authorised series. There is one for each Division of the High Court, that is, Queen’s (or King’s) Bench Division (QB or KB), Chancery Division (Ch) and Family Division (Fam). There was another for the Probate, Divorce and Admiralty Division (P) which preceded the Family Division. These series also contain reports of cases taken on appeal to the Court of Appeal. Decisions on appeals to the Supreme Court (and the former House of Lords) or the Privy Council are reported in the Appeal Cases series (AC). The Council also produces the Weekly Law Reports (WLR). The latter, as the name implies, are published in weekly parts. Each case in each weekly part is allocated to Volume 1, 2 or 3.Volumes 2 (covering the first half of the calendar year) and 3 (covering the second half of the year) contain the most important cases. These will be published eventually (sometimes as much as two years later) in the authorised Law Reports.Although

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A Guide to Law Reports of Courts

this may appear to be duplication, the first (WLR) version has not been checked by the judges, nor is counsel’s argument included. Volume 1 contains less important cases, from throughout the year, which will not be included in the Law Reports. Another important, although unauthorised, English series is the All England Law Reports (All ER). This contains decisions from all superior English courts.

Canadian report series Canadian law reports include: • Canada Supreme Court Reports (SCR) and Recueil des arrêts de la Cour Suprême du Canada (RCS) (the authorised series), 1876–, which contains reports of Supreme Court cases in both official languages, English and French. • Canada Federal Court Reports (FC 1971–2003; FCR 2004–) and Recueil des arrêts de la Cour Fédérale du Canada (CF), which also contains both English and French authorised versions of each judgment. • Dominion Law Reports (DLR (4th)), which is an unauthorised, annotated series of reports comprising cases from all the courts of Canada.The first series lasted until 1955, the second (DLR (2d)) until 1968, and the third (DLR (3d)) until 1984. • National Reporter (Canada) (NR), 1973–, which contains decisions of the Supreme Court of Canada and the Canadian Federal Court of Appeal, as well as selected judgments of the House of Lords and the Judicial Committee of the Privy Council. The advantage of the NR series is that it reports cases more quickly than either the SCR or FC, the authorised report series. In addition, Canada has several specialist report series such as Canada Tax Cases (CTC), Criminal Reports (CR (7th)), and the Administrative Law Reports (Admin LR), and each province has at least one series of reports.

C.3

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New Zealand report series The main law report series in New Zealand are: • New Zealand Law Reports (NZLR) 1880– (New Zealand Council of Law Reporting) is the authorised report series. It includes decisions of the Supreme Court of New  Zealand, the Privy Council, the Court of Appeal and the High Court. • New Zealand Gazette Law Reports (GLR) 1876–1953. This is an unauthorised series of reports of the decisions of superior New Zealand courts. • Magistrates’ Courts Decisions (MCD) 1939–80. This was preceded by, and for a while overlapped with, Magistrates’ Court Reports (MCR) 1898–1952. • District Court Reports (DCR) 1981–.This replaced the Magistrates’ Courts Decisions when the Magistrates’ Courts were abolished in 1980. Specialist report series in New Zealand include the New Zealand Administrative Reports (NZAR), New Zealand Family Law Reports (NZFLR), New Zealand Town Planning Appeals (NZTPA), and Tax Reports (New Zealand) (TRNZ).

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United States report series C.5

The main federal law reports in the United States include: • United States Reports (US), which contains the official reports of cases heard and decided in the United States Supreme Court. • Federal Reporter (F) and Federal Reporter, Second Series (F  2d) and Third Series (F 3d), although privately published (West), contain authorised reports of cases heard and decided in the United States Court of Appeals (the intermediate federal appellate court). • Federal Supplement (F Supp) contains official reports of cases heard and decided in the United States District Courts (the principal federal trial courts). • Federal Rules Decisions (FRD) contains full-text reports of cases heard and decided in the United States District Courts that are not otherwise designated for publication in the Federal Supplement and which involve matters raised under the Federal Rules of Civil Procedure and the Federal Rules of Criminal Procedure.

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Important unauthorised series include: • Supreme Court Reporter (S Ct). • Lawyers’ Edition of the US Supreme Court Reports (L Ed and L Ed 2d). • United States Law Week (USLW) (looseleaf) provides the most current full-text publication of US Supreme Court decisions available in print. Other materials, including brief summaries of other major federal court decisions, are also contained in the series. • National Reporter Series (West) collects in regional volumes the decisions of all of the highest-level appellate courts in each of the states and most of their intermediate appellate courts. Although privately published, and primarily an ‘unofficial’ reproduction of judicial decisions in most states, this series is the only publication in which the ‘official’ judicial reports of some of the states appear.

International report series C.6

630

Although the common law doctrine of stare decisis does not apply to public international law, decisions on international disputes are relevant to later, similar disputes. The official series for decisions of the International Court of Justice is the International Court of Justice Reports (ICJ Rep), which superseded the Reports of the Permanent Court of International Justice (PCIJ  Rep) in 1947, when the International Court of Justice replaced the Permanent Court. Decisions of the International Court, as well as those of some international arbitral tribunals, appear also in International Law Reports (ILR). A more comprehensive series on arbitral awards, however, is the United Nations Reports of International Arbitral Awards (UNRIAA). Two increasingly important series are the European Court Reports (ECR) which reports decisions of the European Court of Justice in Luxembourg, and the European Human Rights Reports (EHRR) which reports decisions of the European Court of Human Rights in Strasbourg.

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ESSENTIAL LEGAL

D TOOLKIT

Common Legal Abbreviations Note: The abbreviations of court and tribunal names are commonly used in medium neutral citations (together with the year and the number of decision), which may be employed in particular where the case is (as yet) unreported. For example, Moss and Minister for Immigration and Border Protection (Migration) [2017] AATA 1062. AAT (or AATA) ACAT ACJ ACTCA ACTSC ACTSCFC

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AD ADT B C CA CB CC (or Co Ct) CCA ChD CJ CJ at CL CJ in Eq CJCP CJKB (or CJQB) CP

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Administrative Appeals Tribunal of Australia (Commonwealth, 1975–) ACT Civil and Administrative Tribunal (Australian Capital Territory) Associate (or Acting) Chief Justice Supreme Court of the Australian Capital Territory — Court of Appeal (from 2002) Supreme Court of the Australian Capital Territory Supreme Court of the Australian Capital Territory, Full Court (from 2014) Appellate (or Appeal) Division Administrative Decisions Tribunal (NSW) Baron of Exchequer (a judge of the Court of Exchequer, one of the pre-1875 English common law courts) Chancellor (or Commissioner) Court of Appeal Chief Baron of Exchequer (the head of the Court of Exchequer in England, one of the pre-1875 English common law courts) County Court Court of Criminal Appeal Chancery Division (one of the three divisions of the English High Court of Justice) Chief Justice Chief Judge at Common Law (New South Wales) Chief Judge in Equity (New South Wales) Chief Justice of the Court of Common Pleas (England) Chief Justice of the Court of King’s (or Queen’s) Bench (England) Court of Common Pleas (one of the pre-1875 English common law courts; also the name given to the principal trial court in some American states)

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LAYING DOWN THE LAW

Common Pleas Division (formerly a division of the English High Court of Justice) CTTT Consumer, Trader and Tenancy Tribunal (NSW) DC District Court DJ Deputy Justice (or Judge) Div Ct Divisional Court Eq Court of Equity (English) Eq D Equity Division (English) EWCA Civ Div England and Wales Court of Appeal, Civil Division EWCA Crim Div England and Wales Court of Appeal, Criminal Division Exch Court of Exchequer (one of the pre-1875 English common law courts) Exch D Exchequer Division (formerly a division of the English High Court of Justice) Fam Ct Family Court Fam D Family Division (one of the three divisions of the English High Court of Justice) FC Full Court (or Federal Court of Canada) FCA Federal Court of Australia FCAFC Federal Court of Australia, Full Court FamCA Family Court of Australia FamCAFC Family Court of Australia, Full Court FCCA Federal Circuit Court of Australia FMC Federal Magistrates Court (which became the FCCA in 2013) FWC Fair Work Commission HC High Court HCA High Court of Australia HL House of Lords (the court, became the UKSC in 2009) IRComnA Australian Industrial Relations Commission (now FWC) IRT Immigration Review Tribunal (Commonwealth, 1989–98, was replaced by the MRT, 1999–2015) J Justice (or Judge) JJ Justices (or Judges) JA Justice of Appeal JJA Justices of Appeal KB Court of King’s Bench (one of the pre-1875 English common law courts) (see also QB) KBD King’s Bench Division (one of the three divisions of the English High Court of Justice) (see also QBD) LC Lord Chancellor (England) LCJ Lord Chief Justice (the head of the Queen’s Bench Division of the English High Court of Justice) LJ Lord Justice of Appeal (a member of the English Court of Appeal) LJJ Lords Justices of Appeal (plural of LJ) (England) Loc Ct (or LC) Local Court

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CPD

632

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COMMON LEGAL ABBREVIATIONS

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Lord

Lord of Appeal in Ordinary (a member of the Appellate Committee of the House of Lords until 2009, when the HL was replaced by the UKSC) (England) Mag Magistrate Mag Ct (or MC) Magistrates Court MR Master of the Rolls (the head of the English Court of Appeal) MRT Migration Review Tribunal (Commonwealth, 1999–2015, when its function was taken over by the AAT) NCAT NSW Civil and Administrative Tribunal (New South Wales) NNTTA National Native Title Tribunal (of Australia) NSWADT Administrative Decisions Tribunal (New South Wales, 1998–2013) NSWDC District Court of New South Wales NSWSC Supreme Court of New South Wales NSWCA Supreme Court of New South Wales — Court of Appeal NSWCCA Supreme Court of New South Wales — Court of Criminal Appeal NTCA Northern Territory Court of Appeal NTCAT Northern Territory Civil and Administrative Tribunal NTSC Supreme Court of the Northern Territory NZCA New Zealand Court of Appeal NZSC New Zealand Supreme Court P President (usually of a court) PC Judicial Committee of the Privy Council (or Privy Counsellor) PDA (or PDA Div) Probate, Divorce and Admiralty Division of the English High Court of Justice (until 1970, when it became the Family Division) QB Court of Queen’s Bench (one of the pre-1875 English common law courts) (see also KB) QBD Queen’s Bench Division (one of the three divisions of the English High Court of Justice, so called when the throne is occupied by a Queen) (see also KBD) QCA Supreme Court of Queensland — Court of Appeal QCAT Queensland Civil and Administrative Tribunal QDC District Court of Queensland QSC Supreme Court of Queensland R, Reg Regina (Queen) R Rex (King) RRT Refugee Review Tribunal (Commonwealth, 1993–2015, when its function was taken over by the AAT) SACAT South Australian Civil and Administrative Tribunal SACA Supreme Court of South Australia — Court of Appeal SADC District Court of South Australia SASC Supreme Court of South Australia SASCFC Supreme Court of South Australia, Full Court SAT State Administrative Tribunal (Western Australia) SC Supreme Court SC CIV Supreme Court of New Zealand — Civil Appeals SC CRI Supreme Court of New Zealand — Criminal Appeals

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SM SPJ SSAT TASCAT TASCCA TASFC TASSC TD UKSC V-C

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VCAT VCC VICSC (or VSC) VRB WADC WASC WASCA

Stipendiary Magistrate Senior Presiding Judge (or Senior Puisne Judge) Social Security Appeals Tribunal (Commonwealth, 1988–2015, when its function was taken over by the AAT) Tasmanian Civil and Administrative Appeals Tribunal Tasmania Court of Criminal Appeal Supreme Court of Tasmania, Full Court Supreme Court of Tasmania Trial Division Supreme Court of the United Kingdom Vice-Chancellor (the head of the Chancery Division of the English High Court of Justice) Victorian Civil and Administrative Tribunal County Court of Victoria Supreme Court of Victoria Veterans’ Review Board (Commonwealth) District Court of Western Australia Supreme Court of Western Australia Supreme Court of Western Australia — Court of Appeal

634

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ESSENTIAL LEGAL

E TOOLKIT

0

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Commonly Misspelt or Misused Words The following are the correct spellings for some words commonly used in legal writing and frequently misspelt or misused: admissible license (verb: to grant or authorise someone or amend something, eg premises may be licensed to analyse sell alcohol) appellant offence (offense is the US spelling) argument Parliament (but parliamentary) by-law parol (oral, not in writing or under seal) council (administrative body) parole (pledge to return given by prisoner counsel (legal adviser) temporarily released) defence (defense is the US spelling) permissible defendant practice (noun: eg ‘a legal practice’) definitely practise (verb: eg ‘to practise law’) dependant (noun) precedence (priority in importance or time) dependent (adjective) precedent (a legal rule established by case law; enforceable plural: precedents) foreseeable principal (adjective: main or primary; or noun: forego (go before) head of school, or someone who acts forgo (do without) through an agent) grievous principle (noun: rule or precept) intention respondent its (possessive pronoun: belonging to it) separately it’s (contraction of ‘it is’; contractions are statute (statue is a work of art) generally considered too informal for legal tenet (principle or doctrine; not to be confused writing) with a tenant who pays rent) judgment (the decision or reasons for decision who’s (contraction of ‘who is’; contractions are of a court/tribunal) generally considered too informal for legal judgement (the general term, eg, ‘matters of writing) judgement’) whose (possessive pronoun: eg ‘whose car is licence (noun: formal permission to do or this?’) not to do something; or the document recording this permission)

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Glossary

ESSENTIAL LEGAL

F

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TOOLKIT

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1066

the year of the Norman Conquest of England, a seminal event in the development of the English common law

acquittal

found to be not guilty of a charge

Act of Settlement

a key step in the constitutional settlement passed in 1701 which, among other things, provided judges with security of tenure

agent

see ‘principal’

alienable

able to be transferred to a new owner; usually with reference to rights to land or other property

amending Act

limited to provisions that repeal or amend other legislation

annotator

secondary source containing critical commentary and explanatory notes, including how a case and been interpreted and applied

appeal

the opportunity for an unsuccessful litigant to seek to have an unfavourable decision overturned by a higher court

attorney

lawyer or other representative from the French word à tourner: to stand in one’s turn, or one’s place

authorised legislation

the official version of legislation which can be relied on accordingly

authorised series of law reports

one in which the judge or tribunal member has approved the headnote provided prior to editing and publication of the judgment

bibliographic (or index) database

contains records with abstracts or summaries of documents, rather than the full text of those documents

bicameral legislature

a legislative body consisting of two Houses of Parliament (a unicameral legislature has one House)

Bill

a statute in draft form before it is introduced and passed by Parliament

Bill of Rights

a a statement of human rights, made in a constitution or other fundamental laws, that limits the legislature’s law-making power

Bill of Rights 1689

an Act of Parliament settling the basis on which William and Mary took the throne, including that taxation could be levied only with the consent of Parliament

branch

to include multiple ideas within a single sentence

cab rank rule

requires a barrister to accept a brief within their capacity, skill and experience, subject to certain exceptions

case citator

contains records with abstracts or summaries of documents, rather than the full text of those documents

case note

a summary of a case with analysis of the decision in its legal context

catchwords

key words, principles and legislation that appear in bold before the beginning of the judgment or reasons

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the essential facts that must be proven to ground a legal claim for redress

champions

derived from the French word ‘champ’ meaning field; a champion was someone who would take the field on your behalf

citation

reference to the legal authority for a source; this may be the citation for the case, or provision of legislation, or the secondary source being relied on

civil law system

a legal system based on Roman law, comprised primarily of legislated ‘codes’ with a lesser role for judge-made precedent

commission

a document certifying the appointment to a position of authority by the sovereign

contract law

the study of that branch of the law which deals with oral and written agreements associated with exchange of goods and services, money, and properties

costs

the expenses that a party incurs in connection with litigation; eg court fees, lawyer fees, and payment of expert witnesses

criminal law

the system of law concerned with the punishment of offenders by the state

customary law

rules of conduct, obligatory on those within their scope, established by long usage, eg, First Nations law

deeming provision

a provision that includes material within the ambit of a statute, irrespective of whether or not it would actually be included

defendant

the party to a case against whom the action is brought

delegated legislation

legal rules made by those to whom Parliament has delegated authority, usually members of the executive branch of government, such as Ministers; also known as ‘subordinate legislation’

digest

a book or series in which cases are summarised and indexed by topics

discovery

an important element of an action brought before a court: discovery of facts comprises answers on oath to questions by one party of another which may be used in evidence; discovery of documents requires one party to file an affidavit of all the documents relevant to the action which are or have been in the party’s possession

discretion

something that involves choice, or something that may be done or performed

disenfranchise

to deny representation or a voice; in the political context, to deny the right to vote

doctrine of precedent

the principle that the law expounded in a case should be followed in later, similar cases

ejusdem generis

Latin for ‘of the same kind’; if words of particular meaning are followed by general words, the general words are limited to the same kind as the particular words

Q

embedding

the practice of inserting a clause within a main clause

endnotes

information found towards the end of a piece of legislation, typically including an abbreviation key, date of commencement and amendment history

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cause of action

PIA?

GLOSSARY

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637

a body of law which, in opposition to the more rigid and formal common law, was applied f lexibly according to notions of fairness

exoneration

where a convicted defendant is later proven to be innocent, and is officially recognised as such

expert witness

special kind of witness who, because of their specialist knowledge, may be called at trial to give evidence of their opinions about certain aspects of a case

explanatory memorandum

a document to assist Members of Parliament, officials and the public by setting out the objectives of the Bill and outlining its provisions

extinguishment

the loss of a potential native title claim through authorised use of the land inconsistent with customary usage

extrajudicial

where a judge makes a statement about the law that is not part of a judgment about a case before the court; this statement does not carry the precedential weight of a judicial statement

extrinsic materials

documentary materials that exist outside the statute being interpreted, which can shed light on its content

feudalism

a strongly hierarchical system of social and political organisation based on land ownership that was dominant in medieval Europe including the British Isles

free (or full text) searching

to search selected documents in a database for words or phrases matching the search terms supplied by the user

future acts

an act authorised by government after the commencement of the Native Title Act 1993 (Cth) which impacts on an area the subject of a native title claim, such as the granting of an agricultural or mining lease

golden rule

a rule of statutory interpretation that says it is permissible to depart from the grammatical and ordinary meaning of words to avoid an absurd result

good faith

honest, sincere, without hidden ulterior motives

‘Henry VIII’ clauses

(also called ‘chop off their head’ clauses) provide the executive with a power to use delegated legislation to override primary legislation, thus bypassing the scrutiny provided by the parliamentary process

human rights

fundamental, inalienable rights to which people are entitled simply by virtue of being human

Imperial Parliament

the British Parliament, legislating for colonies

.CC IA?

incriminating conduct

conduct that appears to indicate an admission of guilt by the accused in a criminal case

4= A 5= A /L =IN I

indemnity costs

all costs incurred provided they are reasonable

independence of the judiciary

the principle that judges, in deciding disputes, should be free from political or other inf luence

indictable offence

a charge relating to a serious criminal offence, often heard before a judge and jury and involving heavy penalties; it is contrasted with a summary charge

information literacy

the ability to locate, evaluate, manage and use information from a range of sources for problem-solving, decision-making and research

international agreement

a written instrument (eg a treaty, protocol or convention) containing rules that states agree will govern their actions and create rights and duties among them

international treaty

one of the forms of international agreements

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equity

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intestate

someone who dies without leaving a will

IRAC

an acronym for the case analysis method Issue; Rule; Application; Conclusion

judicial review

a right of appeal limited to legality issues, as compared to a merits review

judicially considered

when a subsequent case has applied, approved, followed, considered, overturned, disapproved, not followed, or distinguished an earlier case

jurisdiction

has dual meanings: (a) the territory over which legal power extends: eg Queensland, the Commonwealth, or Australia; (b) the function and the extent of the authority of a court or tribunal in relation to the matter before it

jurisdictional error

an administrative decision — ie, a decision by a decision-maker under statute — is said to suffer from jurisdictional error where it is in excess of the powers granted, or it has been made without the criteria for the exercise of the power being satisfied

jurisprudence

(similar to legal theory) the science of the study of law; the study of a particular body of law, such as tort law or constitutional law; or simply the case law in any branch of law

legal encyclopedia

provides a comprehensive coverage, both of case law and legislation, on a topic

legal fiction

the legal acceptance of a fabricated version of facts so as to extend the reach of existing law to cover a novel situation

legal formalism

the theory that legal rules are separate from other social and political institutions

legal professional privilege

a principle that protects from disclosure communications between a client and legal practitioner made for the dominant purpose of giving or obtaining legal advice

legally material

facts determined by the law to be applied

legislation

new rules made by Parliament and by those to whom Parliament has delegated authority, generically known as subordinate legislation

lenity

refers to the rule that penal provisions are strictly construed

Letters Patent

letters from the Crown containing public instructions or directions

literal approach

(also known as the ‘literal rule’) words in a statute must be interpreted in the context in which they appear, according to their plain and ordinary meaning

Magna Carta

the ‘Great Charter’, which King John was forced by nobles to sign in 1215, restricted the king’s power in numerous respects, making it an early statement of the rule of law

mainland territories

the Australian Capital Territory and the Northern Territory; as opposed to Australian external territories, such as Norfolk Island

mediation

negotiations between parties in an attempt to resolve a dispute, with the assistance of a neutral third party

medium neutral citation

contains the abbreviation for the court or tribunal; the court- or tribunal-assigned case number; and paragraph numbers

mens rea

the subjective mental element of a crime, which must coincide with the physical element (or actus reus) for the defendant to be guilty

merits review

a right to appeal on all the merits of a decision including issues of law, fact and policy

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GLOSSARY

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639

words in a statute may be interpreted with reference to the mischief they were enacted to address, so that the mischief is suppressed

money Bill

a Bill proposing the appropriation of government revenue for spending or the imposition of taxation

native title

a right or interest over land or waters that may be owned according to traditional custom

natural law

the law of nature; law as the emanation of the Divine Providence, rooted in the nature and reason of humankind

noscitur a sociis

the meaning of a word is known from the words that accompany it

note up

to check the subsequent history of the case, ie how later cases have used the case by following it, distinguishing it, or referring to it in judgments

nuisance

one of two torts or civil wrongs: private nuisance involves the substantial and unreasonable interference with a person’s land or use or enjoyment of that land; and public nuisance is the adverse effect of someone’s actions on the reasonable comfort and convenience of others

obiter dicta

a legal principle expounded by a judge which is not necessary for the judge’s decision in the case (in contrast to ratio decidendi)

obligation

something that must be done or performed

occupier’s liability

the liability, generally upon the occupier rather than the owner, to compensate persons injured on premises, owing to their dangerous state

ombudsman

someone appointed to hear complaints, against both government and private sector bodies which provide services such as denial of government benefits, allowances finance, electricity or water

omnibus legislation

the name given to an Act which amends a number of other Acts

online platform

a website (often a legal publisher website) providing access to a range of legal research products and tools

Orders in Council

royal orders made on political advice

original jurisdiction I= =I =

the jurisdiction or power of a court to hear matters that commence in that court, as the first hearing, rather than on appeal from a lower court

parliamentary sovereignty

the doctrine that Parliament has the ultimate power over the content of the law

party/party costs

the costs of conducting the litigation, including court fees and the solicitor’s costs; the courts have devised a scale of fees of what is fair and reasonable, which are paid generally by the unsuccessful party to the successful party to the litigation as part of the settlement of the case’

per incuriam

literally ‘through want of care’; a judgment made in ignorance of existing law

pinpoint reference

a reference to a specific page, paragraph, footnote or other section of a source

plaintiff

a person making a formal legal complaint to the courts seeking redress from another person, the defendant

pleadings

court documents that must be submitted by parties engaged in a dispute, outlining competing claims and often narrowing the scope of the dispute

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mischief rule

.CC IA?

LAYING DOWN THE LAW

640

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positivism

the theory that law is what humans declare it to be

presumption of interpretation

an assumption, capable of being displaced by the words of a statute

primary sources of law

cases and legislation which state the law

principal

a person who uses another (an ‘agent’) to represent them or take action on their behalf in a legal transaction

principal Act

contains a comprehensive statement of the law, ie, it does not merely repeal or amend other legislation

principle of legality

the principle that people must comply with the law and conversely cannot be punished or denied a right or interest in relation to actions that do not transgress the law

private international law

the set of principles, also known as ‘conf lict of laws’, which determines issues of forum and choice of law in connection with disputes that cross jurisdiction boundaries

private law

the law governing relations between non-state entities, including individuals and organisations

privative clause

a provision in a statute purporting to prevent review by a court of a decision made pursuant to a provision in that statute

pro bono publico

means for the benefit of the public

pro private commodo

means that any action was for purely private gain

pro tanto

for so much’, or ‘to the extent’ required

public law

the law governing relations between individuals and the state

puisne

(pronounced ‘puny’) from Old French meaning ‘born later’; a puisne judge is a judge who is inferior or junior in rank (ie not the chief justice)

purposive approach

words in a statute may be interpreted so that they promote the purpose they were enacted to address

race power

the Commonwealth’s power to legislate with respect to the people of a particular race, provided by s 51(xxvi) of the Constitution

radical title

the ultimate ownership rights over land, vested in the Crown

ratio decidendi

the reason for a decision in a case; the judge’s decision on the material facts (in contrast to obiter dicta)

Reformation

European movements in the 16th and 17th centuries in which Protestant churches were established after splitting from the older Roman Catholic Church

registrar

an official who maintains records, in this instance for a court

reprint

a document comprising the Act as originally passed, with subsequent amendments incorporated within the text of the statute itself

responsible government

a system of government in which the executive government (eg prime minister and cabinet) is responsible to the (generally, democratically directly elected) members of the legislature

retainer

contains the terms of engagement of a legal practitioner to undertake legal proceedings or provide legal advice

retrospective operation

application of a provision to events occurring before the provision commenced operation

rule of law

a central constitutional principle imposing principled limits on the government’s power: individuals and government officials are all subject to the law as administered by the courts

0

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GLOSSARY

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641

second reading speech

contains an explanation of the purpose or rationale of the Bill, rather than the details of each provision

secondary sources of law

textbooks, journal articles, case notes, legal encyclopedias and other sources which describe the law and provide commentary about the law

separation of powers

an important constitutional principle which avoids the concentration of government power by dividing it up between the three arms of government: the legislature, the executive and the judiciary

solicitor/client costs

the professional fees of a solicitor for their services these are usually more generous than party/party costs and include fees for work done and expenses such as barristers’ fees, search fees, fees for reports and photocopying

standard of proof

the degree to which a party must prove their case at trial in order to succeed. In criminal cases the prosecution must prove the defendant’s ‘guilt beyond reasonable doubt’; in civil cases the plaintiff must prove the defendant’s liability on ‘the balance of probabilities’

standing

for a party to be recognised by the court as sufficiently connected to a harm to be able to commence a legal action relating to the harm

stare decisis

Latin maxim, in full stare decisis et non quieta movere: ‘to stand by decisions and not disturb the undisturbed’

statute annotator

provides the amendment history of Acts, cases where an Act (or sections of an Act) has been judicially considered, and other commentary

statute of limitations

provides for time limits for commencement of legal proceedings which, if not complied with, are barred

statutory authority

a body set up under its own Act to manage an activity such as roads or competition policy; it is often authorised to make delegated legislation on the matters it administers

sui generis

Latin for ‘of its own kind’ or unique

summary charge

a charge relating to a summary or minor criminal offence, usually tried before a magistrate, for which the penalty is a short sentence or fine (in contrast to a more serious ‘indictable’ offence, often heard before a judge and jury, and involving heavier penalties)

sunset clause

a provision which states that the Act is to cease to operate after a specified, fixed period

surplusage

excessive or non-essential material

terra nullius

Latin, land belonging to no one

territories power

plenary Commonwealth power to pass legislation for the government of a territory under s 122 of the Constitution

utilitarianism

the theory that an action is morally correct if the consequences of adopting it are more favourable to the majority than the consequences of not adopting it

writ

initially a written command from the monarch that something be done; later developed into a form of written command in the name of a court or other legal authority to act, or abstain from acting, in a particular way

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LAYING DOWN THE LAW

To enhance your learning experience, use the student resources available on Lexis® Learning See the Visual Preface at the front of this book on how to register 642

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Index

Copyright © 2020. LexisNexis Butterworths. All rights reserved.

References are to paragraph numbers A Aboriginal Australians see First Nations Australians Absolute monarchy English Civil War, and …. 2.38 Glorious Revolution, and …. 2.40 Access to courts deprivation of …. 13.20 presumption against …. 13.5, 13.20 privative clause …. 13.20, 13.29 Acquittal definition …. 6.31 wrongful conviction …. 6.32, 6.33 Act of Settlement 1701 constitutional development, and …. 2.41 Acts see Legislation Acts Interpretation Act 1901 (Cth) extrinsic materials (s 15AB) …. 11.20–11.26, 11.30 absurdity or unreasonableness of ordinary meaning …. 11.21, 11.26 Australian Capital Territory equivalent …. 11.27 confirming ordinary meaning …. 11.3, 11.21, 11.26 equivalent state and territory provisions …. 10.20 international agreements, reference to …. 11.20, 11.30 operation of …. 11.21–11.26 parliamentary and related materials …. 11.20 threshold test …. 11.3. 11.22, 11.23, 11.25 Victorian equivalent …. 11.28, 11.29 obligation or discretion, determining …. 14.3, 14.6 purposive interpretation (s 15AA) …. 10.18–10.26 Australian Capital Territory equivalent …. 10.22 equivalent state and territory provisions …. 10.19 impact of …. 10.25, 10.26 operation and limitations …. 10.20 Queensland equivalent …. 10.23 South Australian equivalent …. 10.24 Administrative Appeals Tribunal (AAT) judicial review prior to …. 6.47 review of decisions …. 6.46

Administrative law authorities …. 3.32 challenges to government …. 3.32 human rights, safeguarding …. 3.50 international law, role of …. 3.39 investigative and reporting powers …. 3.32 Ombudsman …. 3.32, 3.50 royal commissions …. 3.32, 3.50 tribunals …. 3.32, 3.50 dispute resolution …. 3.52 errors of law, correcting …. 3.51 nature and purpose …. 3.51 Administrative tribunals see Tribunals Adversarial system access to justice …. 6.37, 6.39 appeals see Appeals costs …. 6.13, 6.37 delays …. 6.37–6.38 fair trial, right to …. 6.20, 6.39 trial …. 6.16–6.17 accuracy and individual autonomy …. 6.25–6.26 efficient dispute resolution …. 6.28 evidence …. 6.16, 6.25 peaceful dispute resolution …. 6.27 tribunals, and …. 6.48 Alternative dispute resolution (ADR) advantages …. 6.49, 6.53 case appraisal …. 6.50 case management …. 6.52 conciliation …. 6.50 conferencing …. 6.50 confidentiality …. 6.52 good will, maintaining …. 6.53 mediation …. 6.50 neutral evaluation …. 6.50 overview …. 6.6, 6.14–6.15, 6.53 procedures …. 6.50 terminology …. 6.51 Anti-discrimination law rights, protection of …. 3.53 Appeals avenues of appeal …. 7.22 civil …. 6.29 criminal …. 6.29, 6.31 double jeopardy …. 6.31 prosecution, by …. 6.31 definition …. 6.29 diverging majority judgments …. 7.33–7.35 error of law …. 6.30 evidence …. 6.33

Creyke, Robin, et al. Laying down the Law, LexisNexis Butterworths, 2020. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6413182. Created from monash on 2021-02-11 14:21:41.

643

LAYING DOWN THE LAW

Copyright © 2020. LexisNexis Butterworths. All rights reserved.

Appeals – cont’d court generally not rehearing …. 6.30 fresh and compelling …. 6.31, 6.33, 6.35 wrongful convictions …. 6.33, 6.35 finality of decision …. 6.30 fresh evidence …. 6.31, 6.33, 6.35 High Court, role of …. 3.21, 3.24 special leave …. 6.30 points of law and fact …. 6.30 precedent, doctrine of …. 8.18 appellate hierarchies …. 8.18–8.23 jurisdictional differences …. 8.39–8.45 conflicting precedents …. 8.24–8.26 conservatism …. 8.20, 8.21 court discretion …. 8.20, 8.22 five judges, where …. 8.22, 8.23 single judges …. 8.19 statutory interpretation …. 8.27–8.28 Privy Council to …. 2.73 abolition …. 2.76 limitation of powers …. 2.75 shortcomings of …. 2.74 restrictions …. 6.30 jurisdictional variations …. 6.29–6.30 right of …. 6.30, 6.35 timing …. 6.30 wrongful convictions …. 6.32–6.36 criminal cases review commission, suggested …. 6.36 DNA testing …. 6.33 exoneration …. 6.33 expert witness …. 6.33 fresh and compelling evidence …. 6.33, 6.35 Assizes nature and purpose …. 2.18 Attorney definition …. 5.3–5.4 historical background …. 5.3 AustLII accessing …. 17.29 Boolean search …. 17.29 citator …. 18.19, 19.24 free resource …. 18.19, 19.11 legal research …. 17.6, 17.29, 18.19, 19.11 case law …. 18.4, 18.13, 18.19, 18.29 commentary …. 17.37 full-text judgments …. 18.29, 18.31 journal articles …. 17.29 legislation, finding …. 19.11 judicial consideration …. 19.24, 19.25 topic, by …. 19.21 note up function …. 18.19, 19.25 Australia Acts nature and purpose …. 2.87–2.88 Australian Capital Territory applicable legislation …. 9.77–9.78 interpretation statute …. 10.22, 11.27 legislation

644

government website …. 19.9 reprints …. 9.73 Australian Competition and Consumer Commission (ACCC) dispute resolution …. 6.15 Australian Constitution acquisition of property on just terms under …. 13.26 aliens, and …. 4.68 First Nations Australians, and Closing the Gap Statement 2020 …. 4.66 exclusion of First Nations Australians …. 4.61 human rights …. 3.45–3.46, 4.60–4.67 positive discrimination, Native Title Act and …. 4.62 ‘race power’ …. 4.60 recognition of First Nations Australians …. 4.63–4.67 representative body, creation of …. 4.65–4.67 ‘Stolen Generations’ …. 3.46, 4.27 Uluru Statement …. 4.64–4.65 human rights see Human rights interpretation, use of international agreements …. 11.8 judiciary, jurisdiction of …. 3.25 key principles …. 3.7 legislative powers under …. 2.81, 3.15–3.16 parliamentary democracy, and …. 3.3 Australian legal institutions …. 3.15 Australian legal system Australia Acts, role of …. 2.87–2.88 Australian Courts Act 1828 …. 2.63 Balfour Declaration …. 2.84 bicameral legislature …. 2.3, 3.17 colonial government …. 2.3 Colonial Laws Validity Act …. 2.71 common law …. 1.8 arrival of …. 2.56 reception of English law …. 2.58–2.59 terra nullius, doctrine of …. 2.57, 4.2 Commonwealth of Australia Constitution Act 1900 …. 2.80 Commonwealth Parliament, creation …. 2.81 constitutional law, evolution in …. 2.60–2.64 New South Wales Act 1823 …. 2.61 court structure creation …. 2.65–2.68 Privy Council, appeals to …. 2.72–2.76 Supreme Court of New South Wales …. 2.61, 2.66 Supreme Court of V   an Diemen’s Land …. 2.66 emancipists, role of …. 2.65 English legal history, relevance …. 2.3, 2.55, 3.2

Creyke, Robin, et al. Laying down the Law, LexisNexis Butterworths, 2020. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6413182. Created from monash on 2021-02-11 14:21:41.



Copyright © 2020. LexisNexis Butterworths. All rights reserved.

equity as source of law in …. 2.23 evolution …. 2.3 Executive Council, creation of …. 2.62 federal system …. 3.4–3.6 Federation …. 2.77–2.84 foundation …. 2.53–2.59 Governor General, powers …. 2.63 Governor of New South Wales, powers …. 2.60 independent legislature, evolution of …. 2.60– 2.64 institutions …. 3.14–3.16 administrative law …. 3.32 international law see International law judicature system, adoption of …. 2.28 key principles …. 3.7 Legislative Council creation of …. 2.61 expansion of …. 2.63 origins …. 3.2 overview …. 2.1, 2.56, 3.1 parliamentary democracy …. 3.3 responsible government …. 2.3 Statute of W   estminster Australia, application in …. 2.84–2.86 Balfour Declaration, reiteration …. 2.84 Colonial Laws Validity Act, repealed …. 2.84 transportation of convicts …. 2.55 Westminster system …. 2.1, 3.2 B Bicameral legislature Australian legal system …. 2.3, 2.81, 3.17 Bill of Rights Australia …. 3.54, 3.57 entrenched …. 3.54 debate regarding …. 3.55 minority groups, protection of …. 3.56 Parliament, role of …. 3.55, 3.61 presumptions of interpretation …. 13.1, 13.3, 13.4 statutory protection …. 3.54 effectiveness …. 3.56 United Kingdom …. 2.40, 3.58 United States …. 3.54 Bills citation …. 21.37 definition …. 9.12 finding …. 19.31–19.33 legislative process …. 9.12 money bills …. 9.12 Blackstone, Sir William Blackstone’s Commentaries …. 1.27, 17.15 settlement and the common law …. 2.56, 2.58 Boolean searching anticipating word choices …. 17.9 AustLII …. 17.29 Boolean logic …. 17.9 common patterns …. 17.12 commonly used operators …. 17.13

Index

examples …. 17.20–17.23 online legal research …. 17.1, 17.9–17.13 proximity operators …. 17.10 research software, automatic substitutions, 17.11 search operators …. 17.10, 17.13 search terms …. 17.10 wildcards …. 17.10 British Parliament Act of Settlement 1701 …. 2.41 composition of …. 2.34 Model Parliament …. 2.33 constitutional principles …. 2.42–2.52 rule of law …. 2.2, 2.50–2.52 separation of powers …. 2.2, 2.41, 2.48.2.52 creation …. 2.32 ‘divine right of kings’ theory …. 2.37 English Civil War …. 2.36–2.39 Commonwealth, creation of …. 2.39 Glorious Revolution …. 2.40–2.41 House of Lords …. 2.34 Imperial Parliament …. 2.55 colonies, imposition of law …. 2.59 Reformation, impact of …. 2.35 Burden of proof court, role of …. 6.28 C Cab rank rule rationale …. 5.55 Case citation see also Citation alternative citations …. 21.26 authorised reports …. 7.68–7.70, 21.15 priority of …. 21.24, 21.26 case histories …. 21.29 case name …. 21.17–21.22 additional parties …. 21.17 criminal cases …. 21.19 description of parties …. 21.18, 21.19 identity of parties confidential …. 21.21 popular case names …. 21.22 Re proceedings …. 21.20 conventions …. 21.4, 21.5 court or tribunal …. 21.16, 21.27 criminal cases …. 21.19 Crown as party …. 21.19 definition …. 16.22 finding case citations …. 18.7, 18.28 general citation rules see Citation medium neutral citation …. 18.7, 21.16, 21.23 old English cases …. 21.28 page/paragraph references …. 21.25 parties, description of …. 21.18, 21.19 parties not to be named, where …. 21.21 popular case names …. 21.22 prerogative writ proceedings …. 21.19 Re proceedings …. 21.20 report series …. 21.26 abbreviations …. 21.24 case reported in more than one …. 21.24

Creyke, Robin, et al. Laying down the Law, LexisNexis Butterworths, 2020. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6413182. Created from monash on 2021-02-11 14:21:41.

645

LAYING DOWN THE LAW

Copyright © 2020. LexisNexis Butterworths. All rights reserved.

Case citation see also Citation– cont’d order of priority …. 21.26 title of …. 21.24 year and volume number …. 21.21 reported cases …. 21.15 subsequent references …. 21.11–21.13 ibid …. 21.12 single source in immediately preceding note …. 21.12 source not immediately prior …. 21.13 title of report …. 21.24 unauthorised reports …. 21.24 unreported decisions …. 21.27 volume number of report series …. 21.23 year …. 21.23 Case law citation of cases see Case citation citator …. 18.4 decisions …. 7.3 recording …. 7.5 digest …. 18.4 electronic databases …. 1.29 finding see Case law research important source of law …. 18.1 law reporting …. 7.66–7.67 authorised reports …. 7.68–7.69, 21.15 Councils of Law Reporting …. 7.69 internet, cases on …. 7.71–7.72 Nominate Reports …. 1.26, 7.68 unauthorised reports …. 7.70 unreported decisions …. 7.67, 7.71 legislation differences …. 9.5–9.6 precedence …. 9.10 overview …. 1.2, 7.1–7.5 precedents Precedent; Precedent in Australian courts principles …. 1.30 common law see Common law evolution of …. 1.23 reading and analysing …. 7.6–7.9 reports see Law reports research see Case law research source of law, as …. 7.7 Case law research analysis of case …. 7.6–7.12 application of law, description …. 7.9, 7.11 citation …. 7.9, 7.11 court …. 7.9, 7.11 cultural context …. 7.9, 7.11 decision …. 7.9, 7.11 example …. 7.10, 7.12 grounds for appeal …. 7.9, 7.11 headnote …. 7.8 information, organising …. 7.9 IRAC methodology …. 7.9 issues to be decided …. 7.9, 7.11 object of exercise …. 7.7 orders …. 7.9, 7.11

646

parties, naming …. 7.6 pinpoint references …. 7.11 principle of law, relevant …. 7.9, 7.11 procedural history …. 7.9, 7.11 reference points …. 7.9, 7.11 shortcuts …. 7.8 social context …. 7.9, 7.11 statement of material facts …. 7.9, 7.11 summary of court’s analysis of law …. 7.9, 7.11 analysis of facts of problem …. 18.6 AustLII see AustLII Australian case law, finding AustLII …. 18.4, 18.13, 18.19, 18.29 Australian Current Law Reporter …. 18.25 CaseBase …. 18.4, 18.16, 18.28, 18.39 CCH IntelliConnect …. 18.4, 18.18, 18.30 FirstPoint …. 18.4, 18.17, 18.28, 18.41 High Court Bulletin …. 18.26 Jade …. 18.4, 18.13, 18.20, 18.29 authorised law reports …. 18.7, 18.30 binding cases …. 18.6 case citations …. 18.7, 18.28 case citators …. 18.4, 18.9 case digests …. 18.4 case notes …. 18.12, 18.38 cases as source of law …. 18.1 finding cases Australian cases …. 18.16–18.20 binding cases …. 18.6 case notes …. 18.12, 18.38 citations …. 18.7, 18.28 full text judgments …. 18.8, 18.29–18.31 international cases …. 18.21–18.23 judicial consideration …. 18.9, 18.32–18.35 particular subject, on …. 18.6, 18.16–18.27 specific legislation, referring to …. 18.10, 18.36 words and phrases, defining …. 18.11, 18.37 free websites …. 18.4, 18.13, 18.15, 18.19, 18.20 full text judgments …. 18.8, 18.29–18.31 AustLII …. 18.29 court and tribunal home pages …. 18.31 finding …. 18.8, 18.29–18.31 Jade …. 18.29 law reports …. 18.30 high authority cases …. 18.6 identifying relevant case law …. 18.3 international cases, finding Lexis Advance …. 18.21 Westlaw …. 18.22 WorldlII …. 18.23, 18.31 international court websites …. 18.31 interpretation and judgement …. 1.31 Jade …. 18.4, 18.13, 18.20 CaseTrace …. 18.33 citator …. 18.20, 18.33, 18.36 full-text judgments …. 18.29, 18.31 judicial consideration …. 18.32

Creyke, Robin, et al. Laying down the Law, LexisNexis Butterworths, 2020. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6413182. Created from monash on 2021-02-11 14:21:41.

Copyright © 2020. LexisNexis Butterworths. All rights reserved.



specific legislation, cases on …. 18.36, 19.24, 19.25 words and phrases, cases defining …. 18.37 judicial consideration of cases …. 18.9, 18.32–18.35 CaseBase …. 18.32 FirstPoint …. 18.32 Jade …. 18.33 JustisOne …. 18.35 key tasks …. 18.3, 18.4 language, understanding …. 1.32 law reports …. 18.4, 18.30 LawCite …. 18.28, 18.34 legal encyclopedias …. 18.3, 18.4, 18.24 legal words and phrases, defining …. 18.11, 18.37 legislation, cases on specific …. 18.10, 18.36, 19.24, 19.25 note up references …. 16.9, 18.19 online databases …. 1.29, 18.3–18.5, 18.16–18.38 AustLII see AustLII browse and search functions …. 18.5 CaseBase see CaseBase FirstPoint see FirstPoint online platforms …. 17.5, 18.4, 18.13–18.15 CCH Intelliconnect …. 18.14, 18.18 Lexis Advance …. 18.14, 18.22 Westlaw AU …. 18.14, 18.22 overview …. 18.1, 18.2, 18.4 research tools …. 18.4, 18.13–18.15 free …. 18.15 online …. 18.15 print version …. 18.15 strategies for online research …. 18.2 subject, finding by …. 18.3, 18.6, 18.16–18.27 AustLII …. 18.19 Australian case law …. 18.16–18.20 Australian Current Law Reporter …. 18.25 CaseBase …. 18.16, 18.39 catchword search …. 18.16 FirstPoint …. 18.17, 18.41, 18.42 High Court Bulletin …. 18.26 international case law …. 18.21–18.23 legal encyclopedias …. 18.24 Lexis Advance …. 18.21 The Digest …. 18.27 Westlaw …. 18.22 WorldlII …. 18.23 textbooks …. 18.3 uncertainty and subjectivity …. 1.33 words and phrases, defining …. 18.11, 18.37 Case notes definition …. 18.12 finding …. 18.12, 18.38 online sources …. 18.38 CaseBase case law research …. 18.4, 18.16 case citations …. 18.28

Index

case notes …. 18.38 catchword search …. 18.16 judicial consideration …. 18.32 specific legislation, cases on …. 18.36, 19.24 specific subject, cases on …. 18.16 words and phrases, cases defining …. 18.37 case name search …. 18.40 CaseBase Journal Articles …. 17.26 exercise on using …. 18.40 guide to using …. 18.39 journal articles …. 17.26 CCH Intelliconnect legal research tool case law …. 18.4, 18.18 commentary on legislation …. 19.27, 19.28 journal articles …. 17.28 Champion nature of …. 2.17 Citation Australian Guide to Legal Citation (AGLC) …. 21.3, 21.5, 21.35, 21.47 authority …. 20.35–20.37, 21.2, 21.3, 21.5, 21.6 best authority …. 21.7 Bills and explanatory notes …. 21.37 books chapters …. 21.40 legal encyclopedias …. 21.41 looseleaf services …. 21.41 monographs …. 21.39 textbooks …. 21.39 British material …. 21.47 cases see Case citation commentary …. 21.7 constitutions …. 21.36 conventions …. 21.4, 21.5 convergence of styles …. 21.5 delegated legislation …. 21.38 footnotes and endnotes …. 20.41, 21.4 foreign material …. 21.47 government reports …. 21.46 honesty …. 20.38, 20.39, 21.2, 21.3, 21.5, 21.6 house styles …. 21.4 internet, material from …. 21.44 legal advice, writing …. 21.10 legal encyclopedias …. 21.41 legal journals …. 21.42 newspapers and magazines …. 21.43 overview …. 21.1–21.3 parliamentary debates …. 21.45 periodicals legal …. 21.42 non-legal …. 21.43 pinpoint references …. 7.11, 21.8, 21.9 primary sources …. 21.7, 21.10 purpose of …. 21.2, 21.3 regulations …. 21.38 rules …. 21.2 secondary sources …. 21.7 statutes …. 21.2, 21.7, 21.30–21.38

Creyke, Robin, et al. Laying down the Law, LexisNexis Butterworths, 2020. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6413182. Created from monash on 2021-02-11 14:21:41.

647

LAYING DOWN THE LAW

Copyright © 2020. LexisNexis Butterworths. All rights reserved.

Citation– cont’d Bills and explanatory notes …. 21.37 British and Imperial …. 21.35 constitutions …. 21.36 conventional Australian method …. 21.30 early, or with no short title …. 21.35 enacting jurisdiction …. 21.33 numbering …. 21.31 regnal year, by …. 21.35 section references …. 21.34 short title or name …. 21.32 subsequent references …. 21.11–21.13 ibid …. 21.12 old fashioned Latin terms …. 21.13 shortened form …. 21.13 single source in immediately preceding note …. 21.12 source not immediately prior …. 21.13 US material …. 21.47 what sources should be referenced …. 21.6–21.10 Civil law case management …. 6.40 costs …. 6.40 delays …. 6.40 dispute resolution …. 6.7, 6.9 liability and remedy …. 6.9 overview …. 1.19–1.20, 1.36 procedure …. 6.12 settlements …. 6.40 standing …. 6.9 trial …. 6.16, 6.19 judge, role of …. 6.24 Civil law actions appeals …. 6.29 overview …. 1.36 Civil law systems Code Napoléon, development of …. 1.19, 9.68 common law system differences …. 1.10 impact on …. 1.20 countries with …. 1.9 definition …. 1.9 Roman law, influence of …. 1.11–1.13 Code Napoléon development of …. 1.19, 9.68 Codes interpretation, rules of …. 9.69 statute, as a form of …. 9.68 Coke, Sir Edward equity, and …. 2.23 judicial independence, and …. 2.37, 2.38 legal reporting …. 1.27 Colonial Laws Validity Act effect of …. 2.71 repeal of …. 2.84 repugnancy, and …. 2.71

648

Commission reports legal research …. 17.38 statutory interpretation …. 11.4, 11.6, 11.20 royal commissions …. 2.9 Aboriginal Deaths in Custody …. 4.29–4.32 legal research …. 17.38 Common law application …. 1.21 Australia, arrival in …. 2.3, 2.56 case law see Case law civil law system differences …. 1.10 impact of …. 1.20 countries …. 1.8 courts, creation of …. 2.9–2.10, 2.29 Curia Regis, creation of …. 2.9 justiciars, appointment of …. 2.10 development …. 1.22, 2.2, 2.8 early, trial procedures in …. 2.15–2.19 equity distinguished …. 2.23 Imperial Parliament …. 2.55 colonies, imposition of law …. 2.59 interpretation of legislation …. 10.7–10.17 exercises in applying …. 10.35 golden rule …. 10.11–10.13 literal approach …. 10.5, 10.7–10.10 modern approach …. 10.27–10.34 presumptions see Presumptions of interpretation purposive approach …. 10.7, 10.14–10.17 jury system, development of …. 2.18–2.19 native title and see Native title 19th century procedural reforms …. 2.24–2.28 Chancery Procedure Act 1852 …. 2.26 common law and equity, concurrent administration …. 2.27 Common Law Procedure Act 1852 …. 2.26 Judicature Acts …. 2.26, 2.27 Australia, application in …. 2.28 problems associated with …. 2.25 Uniformity of Process Act 1832 …. 2.26 precedent see Precedent; Precedent in Australian courts presumptions of interpretation see Presumptions of interpretation Roman law, influence of …. 1.11–1.13 sources …. 1.22 stare decisis doctrine see Precedent writ system, development of …. 2.11–2.14 Commonwealth Constitution see Australian Constitution Commonwealth legislation commencement …. 9.20 delegated legislation …. 9.86 Interpretation Act see Acts Interpretation Act 1901 (Cth)

Creyke, Robin, et al. Laying down the Law, LexisNexis Butterworths, 2020. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6413182. Created from monash on 2021-02-11 14:21:41.

Copyright © 2020. LexisNexis Butterworths. All rights reserved.



reprints …. 9.73 searching for see Legislation, searching for Commonwealth Parliament creation …. 2.81 powers …. 2.81 limitations …. 3.19 Compurgation nature of …. 2.18 Constitution Australian see Australian Constitution citation of …. 21.36 United States …. 3.56 Constitutional law Australian Constitutions Act (No 1) …. 2.63 Australian Constitutions Act (No 2) …. 2.64 Australian Courts Act …. 2.58, 2.63, 2.66, 2.69 development of Australian …. 2.60 English …. 2.29–2.52 foundations …. 2.29–2.31 interpretation …. 10.3 Magna Carta …. 2.32 New South Wales evolution in …. 2.61–2.63 New South Wales Constitution Act …. 2.64 principles, development …. 2.42–2.52 rule of law …. 2.2, 2.50–2.52 separation of powers …. 2.2, 2.41, 2.48.2.52 Context see Interpretation of legislation: context (modern) approach Contract law …. 1.37 Costs adversarial system …. 6.13, 6.38 definition …. 6.13 indemnity …. 7.11 party/party …. 7.11 rules …. 6.13 solicitor/client …. 7.11 Courts adversarial trial, role in …. 6.17 alternatives …. 6.14–6.15 case-management powers and responsibilities …. 6.40 dispute resolution role …. 6.1, 6.7 equity, and see Equity hierarchy of see Precedent; Precedent in Australian courts High Court see High Court historical development …. 2.9–2.10, 2.29 human rights, role in …. 3.48 legality principle …. 3.49 international …. 3.41, 3.42 jurisdiction …. 3.24 original …. 3.25 Letters Patent …. 2.65 19th century reform …. 2.24–2.28 Chancery Procedure Act 1852 …. 2.26 common law and equity, concurrent administration …. 2.27

Index

Common Law Procedure Act 1852 …. 2.26 Judicature Acts …. 2.26, 2.27 Australia, application in …. 2.28 Uniformity of Process Act 1832 …. 2.26 state/territory …. 3.27 Criminal law appeals …. 6.29–6.31 costs …. 6.41 criminal cases review commission, proposal …. 6.36 defence, ethics …. 5.53–5.57 delays …. 6.41 double jeopardy …. 6.31 fair trial, right to …. 6.20 guilty pleas …. 6.41, 6.42 overview …. 1.36, 6.5 penal provisions, presumption re construction of …. 13.5, 13.21–13.23 Queensland …. 13.23 South Australia …. 13.23 weakening of …. 13.6, 13.21 practitioners …. 5.8–5.10 procedure …. 6.12 prosecution …. 6.7 ethics …. 5.50–5.52 standing …. 6.8 trial accusatorial …. 6.18–6.20 judge, role of …. 6.23 jury, by …. 2.66 Critical thinking assumptions …. 22.21 author/speaker …. 22.21 context …. 22.21 essay writing …. 20.48, 20.49 implications …. 22.21 studying …. 22.20–22.22 validity …. 22.21 values …. 22.21 Cromwell, Oliver …. 2.39 Crown case citation where party …. 21.19 presumption that legislation not binding …. 13.5, 13.31–13.33 Curia Regis development of …. 2.9–2.10 Court of Common Pleas, creation of …. 2.10 Court of Exchequer, creation of …. 2.10 King’s Bench, creation of …. 2.10 Justices in Eyre …. 2.9, 2.10 justiciars, appointment of …. 2.9 Customary law First Nations Australians …. 2.54, 4.40–4.45 native title principles, and …. 4.41 opposition to …. 4.44–4.45 ‘payback’, concept of …. 4.41, 4.42 sentencing considerations …. 4.43 system of law, evolution of …. 1.6

Creyke, Robin, et al. Laying down the Law, LexisNexis Butterworths, 2020. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6413182. Created from monash on 2021-02-11 14:21:41.

649

LAYING DOWN THE LAW

Copyright © 2020. LexisNexis Butterworths. All rights reserved.

D Deeming provision definition …. 15.3 interpretation of legislation …. 15.3 Defence criminal …. 5.53–5.57 Defendant case citation, description in …. 21.18 definition …. 7.6, 21.18 Delays adversarial system …. 6.38 Delegated legislation see also Legislation amendment …. 9.90 citation …. 21.38 commencement …. 9.85–9.88 disallowance …. 9.89 formal structure …. 9.94 forms, examples …. 9.95 making …. 9.81 parliamentary scrutiny …. 9.83 quasi-delegated …. 9.84 regulations …. 9.82 repeal …. 9.91–9.93 automatic …. 9.92 regulations …. 9.93 rule of court …. 9.96 searching for …. 19.4 known legislation …. 19.5–19.19 title …. 19.5 tracking history …. 19.16–19.18 separation of powers, and …. 3.10 types …. 9.95 Dicey, Professor rule of law principle …. 2.51 Dictionaries legal dictionaries, research using …. 17.3, 17.17 statutory interpretation, use in …. 12.30 Director of Public Prosecutions …. 5.10 Discovery definition …. 5.13 inspection and copying …. 6.12 Dispute resolution alternative see Alternative dispute resolution (ADR) case management civil matters …. 6.40 criminal matters …. 6.41 courts see Courts litigation, goals …. 6.3, 6.37 mechanisms …. 6.2, 6.6 peaceful and efficient …. 6.27–6.28 DNA testing wrongful conviction appeal …. 6.33 Donoghue v Stevenson development of negligence law …. 7.4, 7.5 neighbour principle …. 7.4 Double jeopardy appeal against acquittal on …. 6.33 nature of …. 6.31

650

E Ejusdem generis …. 12.3, 12.5–12.7 Encyclopedias see Legal encyclopedias Enforcement private and public …. 6.10 rules and institutions …. 6.6, 6.10 English law Anglo-Saxon law …. 2.5 common law, development of …. 2.6–2.8 19th century procedural reforms …. 2.24–2.28 Curia Regis, development of …. 2.9–2.10 Court of Common Pleas, creation …. 2.10 Court of Exchequer, creation …. 2.10 King’s Bench, creation …. 2.10 evolution of …. 2.2, 2.3 feudalism …. 2.6–2.7 Norman Conquest …. 2.5, 2.6 Parliament, creation of …. 2.32 English Civil War …. 2.36–2.39 Reformation, impact of …. 2.35 roots of …. 2.5–2.23 scholarship, legal …. 1.23–1.28 research …. 1.29–1.30 Equality cultural considerations in sentencing …. 4.47 formal and substantive, distinguished …. 4.46, 4.47 racial discrimination legislation, and …. 4.48–4.49 Equity common law, distinguished …. 2.23 common law system, concurrent administration of …. 2.27 Court of Chancery …. 2.21 development of …. 2.20–2.21 discretionary nature of …. 2.22 maxims of …. 2.22 Ethics see Legal ethics Evidence adversarial trial …. 6.16, 6.25 appeal, on …. 6.33 court generally not rehearing …. 6.30 fresh and compelling …. 6.31, 6.33, 6.35 wrongful convictions …. 6.33, 6.35 exclusion …. 6.22, 6.25 gathering …. 6.12 jury trial …. 6.22–6.25 rules of …. 6.25 standard of proof …. 6.23 warnings to jury about …. 6.23 Exams see also Study skills abbreviations …. 22.35 allocating time to questions …. 22.30 exam skills …. 22.23 following instructions …. 22.30 headings …. 22.34 identifying issue …. 22.32 IRAC problem-solving method …. 22.33

Creyke, Robin, et al. Laying down the Law, LexisNexis Butterworths, 2020. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6413182. Created from monash on 2021-02-11 14:21:41.

Copyright © 2020. LexisNexis Butterworths. All rights reserved.



‘issue-spotting’ exams …. 22.2, 22.22, 22.23 layout …. 22.36 outline answers …. 22.31 practical tips for writing …. 22.36 preparing for …. 22.24–22.29 closed book exams …. 22.25 how much of course examinable …. 22.27 open book exams …. 22.25 previous examination questions …. 22.24 study groups …. 22.29 study skills see Study skills summaries …. 22.26–22.29 problem-style questions …. 22.33, 22.34 reading directions carefully …. 22.30 structuring answers …. 22.32–22.34 techniques …. 22.30–22.36 time management …. 22.30 Executive government administration …. 3.28 Australian legal institutions …. 3.15 Commonwealth …. 3.29–3.30 Constitution, under …. 3.29 powers …. 3.29 role of …. 3.29 separation of powers …. 3.3, 3.9, 3.10 state/territory …. 3.28, 3.31 Exoneration definition …. 6.33 wrongful conviction …. 6.32, 6.33 Expert witness definition …. 6.33 duty to court …. 6.34 Eastman Inquiry …. 6.33, 6.34 reliability of …. 6.33 Explanatory memoranda citation …. 21.37 finding …. 19.30, 19.31 legislative process …. 9.13 statutory interpretation, use in …. 11.2, 11.15, 11.20 Expressio unius est exclusio alterius …. 12.3, 12.25, 12.26 Extrajudicial definition …. 4.13 Extraterritorial effect presumption against …. 13.5, 13.34 Extrinsic materials see Interpretation of legislation: extrinsic materials F Facts analysis …. 16.11–16.18 fact–law distinction …. 6.54–6.58 joint criminal enterprise doctrine, and …. 6.55 judicial role …. 6.24, 6.54 jury trial …. 6.54 statutory interpretation …. 6.57–6.58 legal research see also Legal research

Index

analysis …. 16.11–16.18 identification …. 16.11 Fair Work Ombudsman dispute resolution …. 6.15 Family Court precedent, application of doctrine of …. 8.29–8.30 Federal Circuit Court of Australia precedent doctrine …. 8.69 Federal Court cross-vesting of jurisdiction …. 8.33 native title determinations, power to make …. 4.5, 4.6 statutory obligations …. 4.5 precedent see also Precedent in Australian courts appellate hierarchy …. 8.21, 8.22, 8.40, 8.43 statutory interpretation …. 8.27, 8.28 tribunal appeals …. 8.67–8.69 Federal Register of Legislation finding Commonwealth legislation …. 19.8 how to use …. 19.19 Federal system High Court, role of …. 3.5–3.6 powers and responsibilities, division of …. 3.4 separation of powers see Separation of powers United States, comparison …. 3.24 Federation Britain, relationship with …. 2.83 Commonwealth of Australia Constitution Act 1900 …. 2.80 Commonwealth Parliament, creation …. 2.81 court system at time of …. 2.68 external factors, importance of …. 2.78 movement towards …. 2.78–2.80 Feminism definition …. 1.16 Feudalism overview …. 2.6–2.7 First Fleet arrival in Australia …. 2.55 First Nations Australians aliens, and …. 4.68–4.69 Australian Constitution, and Closing the Gap Statement 2020 …. 4.66 exclusion of First Nations Australians …. 4.61 positive discrimination, Native Title Act and …. 4.62 ‘race power’ …. 4.60 recognition of First Nations Australians …. 4.63–4.67 representative body, creation of …. 4.65–4.67 Uluru Statement …. 4.64–4.65 criminal justice system and …. 4.24–4.50 customary punishment …. 4.40–4.45 deaths in custody …. 4.29–4.32 equality under the law …. 4.46–4.49

Creyke, Robin, et al. Laying down the Law, LexisNexis Butterworths, 2020. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6413182. Created from monash on 2021-02-11 14:21:41.

651

LAYING DOWN THE LAW

Copyright © 2020. LexisNexis Butterworths. All rights reserved.

First Nations Australians – cont’d historical treatment/jurisdiction …. 4.25–4.26 Indigenous sentencing courts …. 4.36–4.39 offending, rates of …. 4.33–4.35 protection regimes …. 4.27–4.28, 4.61 sentencing …. 4.33–4.35 customary punishment …. 4.40–4.45 deaths in custody …. 4.29–4.32 dispossession and discrimination …. 4.1, 4.33–4.35 equality under the law …. 4.46–4.49 human rights and …. 4.52–4.53, 4.57–4.58 Indigenous sentencing courts …. 4.36–4.39 establishment …. 4.36 goals/purpose …. 4.36, 4.38 jurisdiction …. 4.37 recidivism rates …. 4.39 native title see Native title Northern Territory intervention …. 4.51–4.59 Australian Crime Commission, special investigative powers …. 4.51 Castan Centre for Human Rights Law evaluation of …. 4.58 community consultation …. 4.56, 4.59 ‘emergency response’, as …. 4.51 human rights, impairment of …. 4.53–4.56 overview …. 4.51 parliamentary scrutiny …. 4.57 racial discrimination legislation, and …. 4.52–4.53 protection regimes …. 4.27–4.28, 4.61 Royal Commission into Aboriginal Deaths in Custody …. 4.29–4.32 imprisonment statistics …. 4.32 overview …. 4.29 recommendations …. 4.30 implementation of …. 4.31 sentencing of offenders customary punishment …. 4.40–4.45 disproportionate imprisonment of First Nations Australians …. 4.33 Indigenous sentencing courts …. 4.36–4.39 ‘individualised justice’ …. 4.35 racial discrimination legislation, and …. 4.48–4.49 social disadvantage, impact of …. 4.1, 4.33–4.35 Firstpoint case law research …. 18.4, 18.17 case citations …. 18.28 case notes …. 18.38 judicial consideration …. 18.32 specific legislation, cases on …. 18.36, 19.24 specific subject, cases on …. 18.17, 18.42 words and phrases, cases defining …. 18.37 exercise on using …. 18.42 guide to using …. 18.41 Forbes, Sir Francis CJ independent judiciary, and …. 2.67, 2.68

652

G Generalia specialibus non derogant …. 11.3, 12.27 Gleeson, Murray judgment writing style …. 20.5 Glorious Revolution constitutional settlement and …. 2.40–2.41 Golden rule statutory interpretation …. 10.1, 10.5, 10.10–10.13 purposive approach and …. 10.30 H High Court appeals and reviews …. 3.21, 3.24 High Court Bulletin …. 18.26 jurisdiction …. 3.24, 3.25 autochthonous expedient …. 3.25 precedent see also Precedent in Australian courts application of doctrine …. 8.2 constitutional cases …. 8.10–8.16 consequences of departure from precedent …. 8.16 implications …. 8.11, 8.15 inconsistent precedents …. 8.15 matters to consider …. 8.14 ‘originalist’ and ‘living tree’ interpretation …. 8.12 territories, representation of …. 8.13 overruling own decisions, considerations …. 8.3–8.6 immunity from liability …. 8.5 legal professional privilege …. 8.4 standard of care and individual culpability …. 8.6 Privy Council decisions and …. 8.76–8.81 statutory interpretation …. 8.7–8.9 role in federal system …. 3.5–3.6 House of Lords doctrine of precedent …. 8.82 Human rights administrative law safeguards …. 3.50–3.53 anti-discrimination …. 3.53 Australian law …. 3.44 constitutional basis …. 3.47–3.48 express rights …. 3.45 implied rights …. 3.46 Stolen Generations Case …. 3.46 Bill of Rights entrenched, arguments for and against …. 3.54–3.57 presumptions of interpretation …. 13.1, 13.3, 13.4 Charter of Human Rights and Responsibilities Act 2006 (Vic) …. 3.59, 13.4 courts, role of …. 3.48 European Convention of Human Rights and Fundamental Freedoms …. 3.58 express rights …. 3.45

Creyke, Robin, et al. Laying down the Law, LexisNexis Butterworths, 2020. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6413182. Created from monash on 2021-02-11 14:21:41.



Copyright © 2020. LexisNexis Butterworths. All rights reserved.

First Nations Australians and …. 3.46, 4.60–4.67 Human Rights Act 2004 (ACT) …. 3.59, 13.4 implied rights …. 3.46 legality principle …. 3.49, 13.3, 13.9 National Human Rights Consultation Committee …. 3.60 recommendations …. 3.60 Northern Territory Intervention see Northern Territory Intervention presumptions of interpretation …. 13.1 common law Bill of Rights …. 13.1, 13.3, 13.4 common law rights not interfered with …. 13.3, 13.5, 13.9–13.13 fundamental rights 13.10, 13.12 principle of legality …. 3.49, 13.3, 13.9 rebuttal …. 13.7 rule of law, and …. 3.47–3.49, 3.57 statutory protections …. 3.50–3.53 states and territories …. 3.59 United Kingdom …. 3.58 United States …. 3.53, 3.56 I Implied rights Australian Constitution, under …. 3.46 Indictable offence definition …. 9.68 Indigenous Australians see First Nations Australians Indigenous Land Use Agreements (ILUA) registration of …. 4.21 Indigenous sentencing courts establishment …. 4.36 goals/purpose …. 4.36, 4.38 jurisdiction …. 4.37 recidivism rates …. 4.39 Information literacy …. 16.7 Informit …. 17.5, 17.30 International agreements Australian Treaty Series 19.34 definition …. 11.2 finding …. 19.34 International Convention on the Elimination of All Forms of Racial Discrimination …. 4.48 First Nations Australians, and …. 4.48 international law …. 3.34 interpretation …. 11.9–11.11 principles …. 11.10 resolving ambiguity …. 11.9 Vienna Convention on …. 11.10 Refugee Convention …. 11.10 statutory interpretation, use in …. 11.2 Constitution …. 11.8 enacted into domestic law …. 11.9 finding …. 19.34 rules for interpreting …. 11.9–11.11 International law Australian Government, role of …. 3.36 breaches …. 3.42

Index

case law, finding international court websites …. 18.31 Lexis Advance …. 18.21 Westlaw …. 18.22 WorldlII …. 18.23, 18.31 conflict of laws …. 3.33 conventions and treaties …. 3.34 procedure …. 3.35 convergence of law caused by …. 1.18 criminal law …. 3.42 customary …. 3.34 domestic law incorporation into …. 3.37 relationship with …. 3.33, 3.40 enforcement …. 3.40–3.43 European Court of Human Rights …. 1.18 European Court of Justice …. 1.18 European Union, legislature …. 1.18 globalisation, and …. 3.33 human rights …. 3.43 impact …. 3.37–3.39 incorporation into domestic law …. 3.37 individuals, and …. 3.42 International Court of Justice (ICJ) …. 3.41 International Criminal Court (ICC) …. 3.41 interpretation of legislation Constitution …. 11.8 enacted into domestic law …. 11.9 presumption of conformity …. 13.5, 13.6, 13.35, 13.36 reference to …. 11.2, 11.9, 11.20, 11.30 rules for interpreting …. 11.9–11.11 use in …. 3.38, 3,39, 11.9, 11.20 nation states, actions of …. 3.40 private …. 3.33 public …. 3.33 implementation by domestic legislation …. 3.37 sources …. 3.34 sources …. 3.34–3.36 subjects …. 3.42 territorial acquisition, and …. 2.56 United Nations Charter …. 3.41 Internet cases reported on …. 7.71–7.72 citation of material from …. 21.44 Uniform Resource Locator (URL) …. 21.44 Interpretation of legislation Acts Interpretation Act 1901 extrinsic materials (s 15AB) …. 11.20–11.30 obligation or discretion, determining …. 14.3, 14.6 parts of Act (s 13) …. 12.11 purposive approach (s 15AA) …. 10.18–10.26 applying legislation to problems …. 15.1–15.6 Dividing Fences Act problem …. 15.6 Graffiti Control Act problem …. 15.4

Creyke, Robin, et al. Laying down the Law, LexisNexis Butterworths, 2020. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6413182. Created from monash on 2021-02-11 14:21:41.

653

LAYING DOWN THE LAW

Copyright © 2020. LexisNexis Butterworths. All rights reserved.

Interpretation of legislation – cont’d Impounding Act problem …. 15.5 practical guide …. 15.3 Wild Dog Destruction Act example …. 15.3, 22.33 common law …. 10.7–10.17 Engineer’s Case …. 10.6, 10.8 exercises in applying …. 10.35 extrinsic material …. 11.3–11.19 golden rule …. 10.11–10.13 literal approach …. 10.5, 10.7–10.10 modern approach …. 10.27–10.34, 11.12–11.19 presumptions see Presumptions of interpretation purposive approach …. 10.7, 10.14–10.17 constitutional law …. 10.3 context see Interpretation of legislation: context (modern) approach deeming provision …. 15.3 exercises …. 10.35, 11.31, 12.41, 13.37, 14.10, 15.3–15.6 extrinsic materials see Interpretation of legislation: extrinsic materials goal of …. 10.6, 11.19 golden rule …. 10.1, 10.5, 10.10–10.13 purposive approach and …. 10.30 interpretation statutes …. 9.60, 14.6 Commonwealth …. 9.60, 10.18–10.26, 11.20–11.30 extrinsic materials, use of …. 11.20–11.30 obligation or discretion, determining …. 14.3, 14.6 purposive approach …. 10.18–10.26 reference to …. 12.28, 12.29 states and territories …. 9.60, 10.22–10.24, 11.20, 11.27–11.29 key principles …. 10.5 literal approach …. 10.1, 10.5, 10.8–10.10 common law …. 10.7, 10.8–10.10 purposive approach preferred over …. 10.20 mischief rule …. 10.14, 10.28, 11.12 modern approach see Interpretation of legislation: context (modern) approach obligation or discretion, determining …. 14.1–14.7 breach, whether produces invalidity …. 14.4, 14.8, 14.9 context of provision …. 14.3 exercise …. 14.4, 14.10 Interpretation Acts …. 14.3, 14.6 judicial approaches …. 14.7 ‘shall’ or ‘must’ vs ‘may’ …. 14.3, 14.6, 14.7 underlying purpose of provision …. 14.5 overview …. 10.1–10.4 practical guide …. 15.1–15.6 precedent …. 8.27, 8.28 presumptions see Presumptions of interpretation purposive approach …. 10.4, 10.5, 10.14–10.26

654

Acts Interpretation Act 1901, s 15AA …. 10.18–10.26 equivalent state and territory provisions …. 10.19, 10.22–10.24 impact of …. 10.25, 10.26 operation and limitations …. 10.20 Australian Capital Territory legislation …. 10.22 balance between competing interests …. 10.21 common law …. 10.7, 10.14–10.17 courts to prefer …. 10.5 definition …. 10.2 extrinsic material and …. 11.29 intention of Parliament …. 10.5, 10.14 literal approach giving way to …. 10.5, 10.20 modern approach and …. 10.30 Queensland legislation …. 10.23 South Australian legislation …. 10.24 statute, under …. 10.18–10.26 underlying purpose of legislature …. 10.17 statute as a whole …. 10.15, 12.12 statutory obligations …. 14.1–14.10 distinguishing from discretions …. 14.1–14.7 exercise …. 14.10 whether breach produces invalidity …. 14.4, 14.8, 14.9 summary of principles …. 10.5 Interpretation of legislation: context (modern) approach accompanying words, reference to …. 12.4–12.7 all words assumed to have meaning …. 12.10 audience, reference to …. 12.37, 12.38 common law …. 10.27–10.34, 11.12–11.19 connotation/denotation distinction …. 12.31 consistent use of words assumed …. 12.24 context, meaning …. 10.28, 12.2 courts to prefer …. 10.5 current meaning of words …. 12.31 definition in Act …. 12.16, 12.17 closed definitions …. 12.17 open definitions …. 12.17 dictionaries, use of …. 12.30 drafting errors and oversights …. 10.29–10.34 ejusdem generis …. 12.5–12.7 exercise …. 12.41 express mention excluding something else …. 12.25, 12.26 expressio unius est exclusio alterius …. 12.25, 12.26 extrinsic materials …. 11.3, 11.12–11.19 generalia specialibus non derogant …. 12.27 implying words into legislation …. 10.30 interpretation legislation, reference to …. 12.28 definitional sections …. 12.28, 12.29 displacement by contrary intention …. 12.29 long title …. 12.13, 12.14

Creyke, Robin, et al. Laying down the Law, LexisNexis Butterworths, 2020. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6413182. Created from monash on 2021-02-11 14:21:41.

Copyright © 2020. LexisNexis Butterworths. All rights reserved.



mischief to be remedied …. 10.28, 11.12, 11.15 noscitur a sociis …. 12.5 other legislation, reference to …. 12.32–12.36 in pari materia principle …. 12.33 same or similar subject matter …. 12.32, 12.33 statute part of legislative scheme …. 12.34 other parts of legislation, reference to …. 12.11–12.23 examples …. 12.23 headings to chapters, parts and divisions …. 12.18 headings to sections …. 12.19, 12.20 interpretation provisions …. 12.16, 12.17 long title …. 12.13, 12.14 notes …. 12.19, 12.20 parts of Act …. 12.11 preambles …. 12.15 reading Act as a whole …. 12.12 schedules …. 12.21, 12.22 short title …. 12.14 titles or names …. 12.13, 12.14 overview …. 10.4, 10.5, 10.27, 12.1–12.3 presumptions forming part of …. 13.3 see also Presumptions of interpretation prior or existing law, reference to …. 12.39, 12.40 prior interpretation by court …. 12.40 punctuation …. 12.8, 12.9 purposive approach and …. 10.30 reading down …. 10.32–10.34, 12.3 reading in extra words …. 10.31 special meaning at law …. 12.38 specific provisions taking precedence over general …. 12.27 statute as a whole …. 10.15, 12.12 summary of principles …. 12.3 Interpretation of legislation: extrinsic materials Acts Interpretation Act 1901, s 15AB …. 11.20– 11.26, 11.30 absurdity or unreasonableness of ordinary meaning …. 11.21, 11.26 Australian Capital Territory equivalent …. 11.27 confirming ordinary meaning …. 11.3, 11.21, 11.26 equivalent state and territory provisions …. 10.20 international agreements, reference to …. 11.20, 11.30 operation of …. 11.21–11.26 parliamentary and related materials …. 11.20 threshold test …. 11.3. 11.22, 11.23, 11.25 Victorian equivalent …. 11.28, 11.29 ambiguity or doubt, where …. 11.21, 11.26 CIC Insurance principle …. 11.12, 11.15, 11.16 commission and committee reports …. 11.4, 11.6, 11.20

Index

finding …. 19.30–19.33 common law …. 11.3, 11.4–11.19 historical approach …. 11.5 international agreements …. 11.9–11.11 modern approach …. 11.12–11.19 parliamentary and related materials …. 11.5 permitted use under …. 11.3 convention debates …. 11.8 executive documents …. 11.4 exercise …. 11.31 explanatory memoranda …. 11.2, 11.15, 11.20 finding …. 19.30, 19.31 extrinsic materials, what are …. 11.2, 11.3 Hansard …. 11.20, 11.29, 19.32 international agreements …. 11.2, 11.9, 11.30 Australian Treaty Series …. 19.34 common law …. 11.8, 11.9 Constitution, interpretation of …. 11.8 enacted into domestic law …. 11.9 finding …. 19.34 rules for interpreting …. 11.9–11.11 statute …. 11.20, 11.30 legislative histories …. 11.2 modern approach and …. 11.3, 11.12–11.19 ordinary meaning confirming …. 11.3, 11.21, 11.26 manifestly absurd or unreasonable …. 11.21, 11.26 overview 11.1, 11.2 parliamentary and related materials …. 11.5, 11.20 finding …. 19.30–19.33 Hansard …. 11.20, 11.29, 19.32 records of debates …. 11.4, 11.5, 11.20, 19.32 principles …. 11.3 referendum materials …. 11.8 reversion to text …. 11.17, 11.24 searching for …. 19.30–19.35 Australian Treaty Series …. 19.34 Bills …. 19.31–19.33 Federal Register of Legislation …. 19.33 international agreements …. 19.34 law reform commission reports …. 19.35 Parliament of Australia: Bills and Legislation website …. 19.33, 19.36 second reading speeches …. 11.2, 11.15, 11.20 finding …. 19.30, 19.31 South Australia, no legislation allowing …. 11.3, 11.7 statute …. 11.3, 11.20–11.30 Acts Interpretation Act 1901, s 15AB …. 11.20–11.26, 11.30 permitted use under …. 11.3 threshold test …. 11.3, 11.22, 11.23, 11.25 summary of principles …. 11.3 text and context …. 11.19 threshold test …. 11.3. 11.22, 11.23, 11.25 common law not having …. 11.16 types of extrinsic materials …. 11.4 underlying purpose or object, promoting, 11.29

Creyke, Robin, et al. Laying down the Law, LexisNexis Butterworths, 2020. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6413182. Created from monash on 2021-02-11 14:21:41.

655

LAYING DOWN THE LAW

Interrogatories proceedings …. 6.12 IRAC problem-solving method case law analysis …. 7.9 exam answers …. 22.33 legal research …. 16.10

Copyright © 2020. LexisNexis Butterworths. All rights reserved.

J Jade (Judgments and Decisions Enhanced) case law research …. 18.4, 18.13, 18.20 citator …. 18.20, 18.33, 18.36 full-text judgments …. 18.29, 18.31 judicial consideration …. 18.32 specific legislation, cases on …. 18.36 specific subject, cases on …. 18.20 words and phrases, cases defining …. 18.37 CaseTrace …. 18.33 free alerts …. 18.20 Journal articles Australian articles, finding …. 17.26–17.30 AustLII …. 17.29 CaseBase Journal Articles …. 17.26 CCH IntelliConnect …. 17.28 choice of database …. 17.25 Informit …. 17.30 Lexis Advance …. 17.26 useful databases …. 17.30 Westlaw AU …. 17.27 Australian Legal Journals Index …. 17.27 citation …. 21.42 critiquing the law …. 17.3, 17.24 full text collections …. 17.25 international articles, finding …. 17.31–17.36 choice of database …. 17.25 Google …. 17.31, 17.36 Google Scholar …. 17.31, 17.36 Hein Online …. 17.32 Legal Scholarship Network …. 17.35 LegalTrac …. 17.34 Lexis Advance …. 17.33 Social Science Research Network …. 17.35 Westlaw …. 17.31 legislation, commentary on …. 19.28 online legal research …. 17.24–17.36 Australian articles …. 17.26–17.30 databases …. 17.25 international articles …. 17.31–17.36 open-access repositories …. 17.25, 17.35 pathways to access …. 17.25 secondary source …. 17.1 subjective view …. 17.3, 17.24 textbooks compared …. 17.3, 17.24 Judges see Judiciary Judicature Acts Australia, adoption of system …. 2.28 English, passing of …. 2.26 purpose of …. 2.27 common law and equity systems, concurrent administration …. 2.27 Court of Appeal, creation …. 2.27

656

High Court, creation …. 2.27 Judicial review historical background …. 6.47 Judiciary Australian …. 3.21–3.23, 6.21 independence …. 2.38, 3.3, 3.9, 3.23 legal institutions …. 3.15 military and civil government, conflict …. 2.65 powers …. 3.3, 3.10 Commonwealth …. 3.24–3.26 English historical background …. 2.9–2.10 judges appointment of …. 3.23 ‘declaratory theory of law’ …. 7.57 directions to jury …. 6.23 remuneration …. 3.23 retirement …. 3.23 trial, role in …. 6.21–6.24 tribunal of fact and law, as …. 6.24 judicial independence …. 2.38, 3.3, 3.9, 3.23 judicial law-making …. 7.53–7.57 departure from precedent …. 7.59–7.65 development of law …. 7.58 foreign jurisdictions, using …. 7.54 Mabo decision …. 7.63 novel issues …. 7.55, 7.56 novel legislation …. 7.56 Justices in Eyre …. 2.10 separation of powers …. 3.9 federal judicial power, impact on …. 3.26 state/territory …. 3.27 Jurisdiction appellate …. 7.21 autochthonous expedient …. 3.25 dual meanings …. 7.20 federal judicial power, and …. 3.26 original …. 3.25, 7.21 Jurisprudence definition …. 1.16 Jury constitutional status …. 6.21 directions by judge …. 6.23 role …. 6.22 system, development of …. 2.19 Justice standing, nature of …. 6.8 who can seek …. 6.8 JustisOne …. 18.35 K Kirby, Michael judgment writing style …. 20.5 L Law categories of …. 1.34–1.38 fact–law distinction …. 6.54–6.58

Creyke, Robin, et al. Laying down the Law, LexisNexis Butterworths, 2020. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6413182. Created from monash on 2021-02-11 14:21:41.

Copyright © 2020. LexisNexis Butterworths. All rights reserved.



joint criminal enterprise doctrine, and …. 6.55 judicial role …. 6.24, 6.54 jury trial …. 6.54 statutory interpretation …. 6.57–6.58 making …. 3.18 practice of …. 1.31, 5.14 rule of …. 2.2, 2.50–2.52 sources of …. 1.22, 1.37 case law as …. 7.1–7.5 taxonomy …. 1.34–1.37 technical language, use of …. 1.39 technological developments, and …. 5.13 issues arising from …. 5.14 uncertainties in …. 1.31–1.33 understanding …. 5.12–5.13 Law essays aim …. 20.10 assessment by …. 20.10, 20.47 audience …. 20.12 conclusion …. 20.53 critical thinking …. 20.48, 20.49 introduction …. 20.51 organisation …. 20.50 polishing and proofreading …. 20.54 presentation of points …. 20.52 structure …. 20.50–20.54 writing …. 20.10, 20.12, 20.47–20.54 Law exams see Exams Law reform commission reports finding …. 19.30, 19.35 legal research …. 17.38 statutory interpretation …. 11.4, 11.6, 11.20 Law reports AustLII …. 7.71 Australian Criminal Reports (A Crim R) …. 7.70 authorised reports …. 7.68–7.69, 18.30, 21.15 case citation …. 21.15 case law research …. 18.7, 18.30 definition …. 21.15 case law finding …. 18.4, 18.30 principles, development of …. 1.23 commercial legal platforms …. 7.71 Commonwealth Law Reports (CLR) …. 7.69 Councils of Law Reporting …. 7.69 internet, cases on …. 7.71–7.72 Lexis Advance …. 7.71 Nominate Reports …. 1.26, 7.68 overview …. 7.66–7.67 Rolls …. 1.25 unauthorised reports …. 7.70 case citation …. 21.24 unreported decisions …. 7.67, 7.71 Westlaw AU …. 7.71 writs, collected …. 1.24 Yearbooks …. 1.25 LawCite case law research case citations …. 18.28

Index

case notes …. 18.38 judicial consideration …. 18.34 specific legislation, cases on …. 18.36 Lawlex legislation, finding …. 19.12 extrinsic material …. 19.33 notification of changes …. 19.18 topic, by …. 19.22 subject index …. 19.22 LawNow legislation, finding …. 19.13 extrinsic material …. 19.33 judicial consideration of …. 19.25 notification of changes …. 19.18 topic, by …. 19.22 subject index …. 19.22 LawOne legislation, finding …. 19.14 extrinsic material …. 19.33 judicial consideration of …. 19.25 notification of changes …. 19.18 topic, by …. 19.22 subject index …. 19.22 Lawyers see Legal profession Legal Aid provision of …. 5.9 Legal dictionaries legal research using …. 17.3, 17.17 review of relevant dictionaries …. 17.3 secondary source …. 17.1, 17.3 Legal encyclopedias Australian …. 17.19 case law research …. 18.3, 18.4, 18.24 case notes …. 18.38 citation …. 21.41 exercise in using …. 17.39 Halsbury’s Laws of Australia …. 17.19, 17.20 browsing …. 17.20 case law, finding …. 18.24 example using …. 17.21 exercise in using …. 17.39 Lexis Advance, access via …. 17.20, 17.21, 18.24 online access …. 17.19, 17.20, 18.24 Halsbury’s Laws of England …. 17.19 Lexis Advance, access via …. 18.24 journal articles compared …. 17.3, 17.24 legal research using …. 17.3, 17.18–17.23 exercise …. 17.39 identifying key legal principles …. 17.18 list of primary sources …. 17.18 review of relevant encyclopedias …. 17.3 secondary source …. 17.1, 17.3 objective style …. 17.3 online access …. 17.19 The Laws of Australia …. 17.19, 17.22 case law, finding …. 18.24 example using …. 17.23 exercise in using …. 17.39 online access …. 17.19, 17.22, 18.24

Creyke, Robin, et al. Laying down the Law, LexisNexis Butterworths, 2020. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6413182. Created from monash on 2021-02-11 14:21:41.

657

LAYING DOWN THE LAW

Copyright © 2020. LexisNexis Butterworths. All rights reserved.

Legal encyclopedias – cont’d Westlaw AU, access via …. 17.22, 17.23, 18.24 Legal ethics criminal defence …. 5.53–5.57 criminal prosecution …. 5.50–5.52 ethical conflict commercial imperatives versus duty to profession …. 5.48 duty to community versus personal interests …. 5.49 duty to court versus duty to client …. 5.47 ethical decisions, making …. 5.44 principles …. 5.45 relationships, relevant …. 5.46 ethics, definition …. 5.42 nature of …. 1.38, 5.43, 5.57 practitioners …. 5.2, 5.27 duty to client …. 5.47 duty to community …. 5.49 duty to court …. 5.47 duty to profession …. 5.47 Legal fiction examples …. 2.13 history of …. 2.13 Legal formalism definition …. 1.16 Legal process overview …. 6.4 rules breaches of …. 6.5 substantive …. 6.5 Legal profession attorneys …. 5.3, 5.5 barristers …. 5.4, 5.6 conduct rules …. 5.26, 5.51–5.52, 5.56 civil and criminal law, distinguished …. 5.8 clerks …. 5.5 competence …. 5.30 duty to client …. 5.29–5.30, 5.47 criminal law practitioners …. 5.8 duty to court, conflict with …. 5.47 ‘genuine’ steps …. 5.35–5.37 minimising costs …. 5.35 Model Litigant Rules …. 5.31–5.33 duty to community …. 5.41, 5.49 personal interests, conflict with …. 5.49 duty to court …. 5.38, 5.47 assistance …. 5.34 duty to client, conflict with …. 5.47 duty to fellow practitioners …. 5.39, 5.48 commercial imperatives, conflict with …. 5.48 duty to third parties …. 5.40 entry to …. 5.15–5.16 ethics see Legal ethics evolution of …. 5.3–5.7 ‘fair play’, nature of …. 5.32

658

government, acting for criminal prosecution and ethics …. 5.50–5.52 duty to assist …. 5.34 Model Litigant Rules …. 5.31–5.33 graduate, employment …. 1.5 King’s Counsel (KC) …. 5.7 legal scholarship …. 1.23–1.28 Local Courts, in …. 5.9 Magistrates Courts, in …. 5.9 Model Litigant Rules …. 5.31–5.33 obligations of practitioners …. 5.16 clients, to …. 5.16, 5.29–5.30 conduct rules …. 5.25, 5.26 court, to …. 5.16 legal profession, to …. 5.16 public, to …. 5.16 ombudsman, role of …. 5.20 professional bodies …. 5.19 professional conduct …. 5.28 rules …. 5.24–5.26, 5.27 professional requirements criminal offence, prior …. 5.18 good fame and character …. 5.17–5.20 knowledge and skill …. 5.21 training …. 5.22, 5.23 public prosecutors …. 5.8 Queen’s Counsel (QC) …. 5.7 reform of …. 5.11 regulation of …. 5.19 criticisms …. 5.20 retainer …. 5.29 Senior Counsel (SC) …. 5.7 solicitors …. 5.5, 5.6 conduct rules …. 5.25 technical language, use of …. 1.39 Legal professional privilege precedent …. 8.4 presumption against abrogation …. 13.5, 13.19 Legal representation criminal defence …. 5.53–5.57 fair trial, right to …. 6.20, 6.39 requirement …. 5.9 self-represented litigants …. 6.39 Legal research case law see Case law research commentary, sources of …. 17.37, 17.39 constraints on …. 16.6 critical thinking …. 17.3 direct and disciplined …. 16.6 ebooks …. 17.16 electronic databases …. 1.29 encyclopedias see Legal encyclopedias ethical issues …. 16.7 evaluating material …. 16.7, 16.21 exercises …. 16.25–16.30 fact analysis …. 16.11–16.18 actors involved …. 16.15, 16.18 example …. 16.18

Creyke, Robin, et al. Laying down the Law, LexisNexis Butterworths, 2020. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6413182. Created from monash on 2021-02-11 14:21:41.

Copyright © 2020. LexisNexis Butterworths. All rights reserved.



exercise …. 16.27 harm …. 16.14, 16.18 legally material facts …. 16.11 policy considerations …. 16.17, 16.18 remedy or relief sought …. 16.16, 16.18 SHARP approach …. 16.12–16.18, 16.27 significant facts …. 16.13 situation and subject matter …. 16.13, 16.18 fact identification …. 16.11 globalisation and …. 16.2 goals of …. 16.5 identifying facts …. 16.11, 16.27 identifying legal issues …. 16.19, 16.28 importance of …. 1.29, 16.2–16.4 information literacy …. 16.7 IRAC process, similarities …. 16.10 journal articles see Journal articles knowing when to stop …. 16.22 legal dictionaries …. 17.3, 17.17 legal encyclopedias see Legal encyclopedias legal issues identifying …. 16.19, 16.28 researching …. 16.20, 16.29 use of information, around …. 16.7 legislation see Legislation, searching for loose-leaf services …. 17.37 need for …. 1.29, 16.2 note up …. 16.9, 18.19 online see Online legal research over-research, risk of …. 16.22 overview …. 16.1–16.4 periodicals see Journal articles primary sources …. 16.7, 16.20, 17.1 case law see Case law research finding …. 16.23 legislation see Legislation, searching for research plan …. 16.20, 16.29 researching legal issues …. 16.20, 16.29 rules, uncertainty …. 1.31–1.33 sample problems …. 16.30 secondary sources …. 16.7, 16.20, 17.1 commentary, sources of …. 17.37, 17.39 finding …. 16.23, 17.2, 17.3 online see Online legal research research using …. 17.2–17.39 SHARP factual analysis …. 16.12–16.18, 16.27 skills …. 1.29, 16.2 sources of information …. 16.23 steps …. 16.10, 17.3 strategic approach …. 16.8–16.22 evaluate results …. 16.21 identify and analyse facts …. 16.11–16.19, 16.27 identify legal issues …. 16.19, 16.28 knowing when to stop …. 16.22 research legal issues …. 16.20, 16.29 subjective nature of …. 1.31–1.33 technological changes and …. 16.2 textbooks …. 17.3, 17.14–17.16 case law, finding …. 18.3

Index

casebooks …. 17.15 ebooks …. 17.16 review of relevant texts …. 17.3 seminal texts …. 17.15 time constraints …. 16.6 uncertainty of rules …. 1.31–1.33 university libraries …. 16.23 ebook version of textbooks …. 17.16 legal dictionaries …. 17.17 online …. 16.23, 16.24, 17.7 search engine …. 17.7 when to stop …. 16.22 Legal scholarship development of …. 1.23–1.27 21st century …. 1.28 Legal study reasons for …. 1.5 skills see Study skills Legal systems Australia see Australian legal system civil law see Civil law common law see Common law convergence …. 1.18 customary law see Customary law English …. 2.2 evolution of …. 1.6, 2.2 globalisation, effect of …. 1.18 hybrid …. 1.10 international law, effect on …. 1.18 natural law, and …. 1.13 Roman law …. 1.9–1.12 Western legal tradition …. 1.11–1.13 Legal theory competing schools …. 1.16 impact of …. 1.17 definition …. 1.14 feminism …. 1.16 legal formalism …. 1.16 morality, and …. 1.17 natural law …. 1.13, 1.15 positivism …. 1.16 morality and …. 1.17 utilitarianism …. 1.16 Legal writing active voice …. 20.27–20.29 aim …. 20.7, 20.8–20.10 assessment …. 20.10 informing …. 20.9 persuading …. 20.8 audience …. 20.7, 20.11–20.14 language suited to …. 20.11, 20.24 logical ordering …. 20.13 structure and …. 20.11, 20.13 unknown …. 20.14 writing devices …. 20.13 categories of …. 20.2 citation in see Citation coherent paragraphs …. 20.33 colloquialisms, avoiding …. 20.34

Creyke, Robin, et al. Laying down the Law, LexisNexis Butterworths, 2020. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6413182. Created from monash on 2021-02-11 14:21:41.

659

LAYING DOWN THE LAW

Copyright © 2020. LexisNexis Butterworths. All rights reserved.

Legal writing – cont’d conventions …. 20.40–20.46 bibliographies …. 20.41 capitals …. 20.45 footnotes and endnotes …. 20.41 foreign words and phrases …. 20.44 grammar …. 20.46 italics and emphasis …. 20.44 punctuation …. 20.46 quotations …. 20.42, 20.43 tables …. 20.41 developing skills …. 20.3 dignified tone …. 20.34 essays …. 20.10, 20.12, 20.47–20.54 aim …. 20.10 assessment by …. 20.10, 20.47 audience …. 20.12 critical thinking …. 20.48, 20.49 polishing and proofreading …. 20.54 structure …. 20.50–20.54 exaggeration, avoiding …. 20.34 exam answers …. 22.31–22.36 footnotes and endnotes …. 20.41, 21.4 formality …. 20.34 general principles …. 20.7–20.21 aim …. 20.7, 20.8–20.10 audience …. 20.7, 20.11–20.14 plain language …. 20.7, 20.15–20.21 interesting …. 20.4 jargon, avoiding …. 20.16, 20.26 law essays …. 20.47–20.54 law exams …. 22.31–22.36 legal analysis …. 20.2 legal effect, documents having …. 20.2 legal expressions …. 20.25 foreign derivation …. 20.25 specific meanings …. 20.25 overview …. 20.1 persuasive …. 20.8, 20.10, 20.34 plagiarism …. 20.38, 20.39 plain language …. 20.7, 20.15–20.21, 20.24– 20.26 audience, suited to …. 20.24 clear direct and straightforward …. 20.7, 20.16 description of …. 20.16 efficient transmission of information …. 20.21 jargon, avoiding …. 20.16, 20.26 legal expressions …. 20.25 reasons for using …. 20.20, 20.21 poor writing …. 20.16–20.20 archaic constructions …. 20.18 doublet and triplets …. 20.17 prolix and convoluted …. 20.19 reasons for …. 20.17–20.19 too many words …. 20.17, 20.19 precision …. 20.23 problem-based assessments …. 20.10, 20.47

660

quotations …. 20.42, 20.43 referencing …. 20.35–20.39 authority …. 20.35–20.37, 21.2, 21.3, 21.5, 21.6 citation rules see Citation footnotes and endnotes …. 20.41, 21.4 honesty …. 20.38, 20.39, 21.2, 21.3, 21.5, 21.6 pinpoint references …. 21.8, 21.9 sensationalism, avoiding …. 20.34 short sentences …. 20.30–20.32 specific principles …. 20.22–20.39 style …. 20.5, 20.6 critically assessing …. 20.6 effective judgment writers …. 20.5 third person, use of …. 20.34 tone …. 20.34 types …. 20.2 Legality principle courts and human rights …. 3.49 meaning …. 3.13, 13.3 presumption that rights not interfered with …. 13.3, 13.9 Legislation Acts/statutes …. 9.4, 19.4 searching for see Legislation, searching for amendment of …. 9.33 changing legislation …. 9.34–9.35 repeal of statutes …. 9.36–9.41 Bills …. 9.12 citation …. 21.37 definition …. 9.12 finding …. 19.31–19.33 money …. 9.12 case law differences …. 9.5–9.6 precedence over …. 9.10 referring to specific legislation …. 18.10, 18.36 citation of …. 21.2, 21.7, 21.30–21.38 Bills and explanatory notes …. 21.37 British and Imperial …. 21.35 constitutions …. 21.36 conventional Australian method …. 21.30 delegated legislation …. 21.38 early, or with no short title …. 21.35 enacting jurisdiction …. 21.33 general citation rules see Citation numbering …. 21.31 regnal year, by …. 21.35 section references …. 21.34 short title or name …. 21.32 commencement of …. 9.17–9.19 Commonwealth legislation …. 9.20 default dates …. 9.19 enactment, distinguished …. 9.18 other commencement dates …. 9.29 retrospective …. 9.31–9.33

Creyke, Robin, et al. Laying down the Law, LexisNexis Butterworths, 2020. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6413182. Created from monash on 2021-02-11 14:21:41.

Copyright © 2020. LexisNexis Butterworths. All rights reserved.



revived statutes …. 9.30 state legislation …. 9.21 New South Wales …. 9.22 Queensland …. 9.23 South Australia …. 9.23 Tasmania …. 9.24 Victoria …. 9.25 Western Australia …. 9.22 sunset clauses …. 9.30 territory legislation …. 9.26 Australian Capital Territory …. 9.27 Northern Territory …. 9.28 commentary …. 19.27–19.29 conflicting …. 3.20 creation of …. 3.17–3.20 delegated …. 9.81–9.96, 19.4 amendment …. 9.90 commencement …. 9.85–9.88 disallowance …. 9.89 formal structure …. 9.94 forms, examples …. 9.95 making …. 9.81 parliamentary scrutiny …. 9.83 quasi-delegated …. 9.84 regulations …. 9.82 repeal …. 9.91–9.93 automatic …. 9.92 regulations …. 9.93 rule of court …. 9.96 searching for see Legislation, searching for title …. 19.5 types …. 9.95 disallowance of …. 9.42 drafting …. 9.62–9.65 branches, meaning …. 9.63 date of commencement of provisions …. 9.65 developments in …. 9.64 embedding …. 9.63 plain English …. 9.62–9.63 simplified outlines …. 9.64 user-friendly innovations …. 9.64–9.65 enactment of …. 9.11 commencement, distinguished …. 9.18 process …. 9.13 explanatory memoranda …. 9.13 citation …. 21.37 finding …. 19.30, 19.31 statutory interpretation, use in …. 11.2, 11.15, 11.20 extrinsic materials …. 9.51 financial scrutiny …. 9.14–9.15 Parliamentary Budget Office …. 9.14 Senate Legislation (estimates) committees …. 9.15 finding see Legislation, searching for formal structure of …. 9.43–9.57 chapters …. 9.53

Index

contents, tables of …. 9.54 date …. 9.45 divisions …. 9.53 examples …. 9.52 extrinsic materials …. 9.51 headings chapters, parts and divisions …. 9.53, 12.18 sections …. 9.50, 12.19 indexes …. 9.54 interpretation sections …. 9.56, 12.16 extrinsic materials …. 9.51 long title …. 9.46, 12.13, 12.14 name …. 9.47 notes …. 9.51 number …. 9.44 objects clauses …. 9.55 parts …. 9.53 preamble …. 9.48, 12.15 purpose clauses …. 9.55 schedules …. 9.57 section headings …. 9.50 sections …. 9.49 short title …. 9.47, 12.13 tables of contents …. 9.54 title …. 9.47, 12.13 forms Acts or statutes …. 9.3, 9.4 delegated or subordinate legislation …. 9.2–9.4 historical development …. 9.2 international law see International law interpretation of see Interpretation of legislation jurisprudence …. 1.16 legislative process …. 9.13 legislatures in Australia enacting …. 9.11 meaning …. 1.31, 9.2 overview …. 1.2, 9.1 Parliamentary Budget Office …. 9.14 parts of …. 12.11 questions concerning …. 9.16 repeal of statutes …. 9.36–9.41 effect …. 9.40 express …. 9.37 implied …. 9.38–9.39 repealing Act, of …. 9.41 reprints …. 9.37, 9.72–9.73 Royal Assent …. 9.18 searching for see Legislation, searching for second reading speech …. 9.13 state and territory see State and territory legislation terminology …. 9.4 types …. 9.66–9.75 codes …. 9.68–9.69 rules of interpretation …. 9.69 cognate Acts …. 9.75 consolidations …. 9.71

Creyke, Robin, et al. Laying down the Law, LexisNexis Butterworths, 2020. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6413182. Created from monash on 2021-02-11 14:21:41.

661

LAYING DOWN THE LAW

Copyright © 2020. LexisNexis Butterworths. All rights reserved.

Legislation – cont’d declaratory Acts …. 9.74 omnibus Acts …. 9.75 private Acts …. 9.67 public Acts …. 9.67 reprinted Acts …. 9.37, 9.72–9.73 uniform laws …. 9.70 validating Acts …. 9.74 uncertainty of rules …. 1.31–1.33 value/weight to be given to rules …. 9.7–9.9 Acts over case law …. 9.10 Acts over subordinate legislation …. 9.8 Commonwealth over state legislation …. 9.9 inconsistency between earlier and later law …. 9.7 later laws …. 9.7 Legislation, searching for Acts …. 19.4 known Acts …. 19.5–19.19 tracking history of …. 19.16–19.18 amendments alerts, setting up …. 19.18 history …. 19.16, 19.17 proposed …. 19.18 AustLII …. 19.11, 19.21, 19.24, 19.25 Bills …. 19.30–19.33 CaseBase …. 19.24, 19.25 cases on specific legislation …. 18.10, 18.36, 19.24, 19.25 commentary …. 19.27–19.29 delegated legislation …. 19.4 known legislation …. 19.5–19.19 title …. 19.5 tracking history of …. 19.16–19.18 exercise …. 19.37 extrinsic materials for interpreting …. 19.30–19.35 Australian Treaty Series …. 19.34 international agreements …. 19.34 law reform commission reports …. 19.35 Parliament of Australia: Bills and Legislation website …. 19.33, 19.36 parliamentary materials …. 19.31–19.33 second reading speeches …. 19.30, 19.31 Federal Register of Legislation …. 19.8, 19.33 how to use …. 19.19 topic, finding by …. 19.21 Federal Statutes Annotations …. 19.26 free websites …. 19.10–19.12 full text …. 19.6 government websites …. 19.7–19.9 federal …. 19.8 state and territory …. 19.9 history of, tracking …. 19.16–19.18 amendment history …. 19.16, 19.17 commencement date …. 19.16, 19.17 endnotes …. 19.17 judicial consideration of …. 19.24–19.26 case citators …. 19.24 note up references …. 19.25

662

statute annotator …. 19.26 known legislation …. 19.5–19.19 Lawlex …. 19.12, 19.18, 19.22 LawNow …. 19.13, 19.18, 19.22, 19.25 LawOne …. 19.14, 19.18, 19.22, 19.25 online access …. 19.3, 19.4 authorised version …. 19.7 current (consolidated) versions …. 19.6 free databases …. 19.10–19.12 government websites …. 19.7–19.9 original (numbered) versions …. 19.6 point in time legislation …. 19.6 principal and amending Acts …. 19.8 repealed legislation …. 19.6 subscription databases, 19.13, 19.14, 19.25 overseas legislation …. 19.15 overview …. 19.1–19.3 Parliament of Australia: Bills and Legislation website …. 19.33, 19.36 print copies …. 19.3, 19.4 repealed legislation …. 19.6 short title or name …. 19.5 statute annotator …. 19.26 subject indexes …. 19.22 tasks involved …. 19.2 topic, finding by …. 19.20–19.22 Legislative Council, NSW creation …. 2.61 expansion of members/powers …. 2.63 Legislature see Parliament Letters Patent definition …. 2.65 Libraries see University libraries Loose-leaf services citation …. 21.41 legal research …. 17.37 M Mabo v Queensland [No 2] Native Title Act 1993 (Cth) …. 4.5 overview …. 4.3–4.6 precedent, and …. 7.63 Magna Carta constitutional principles …. 2.2, 2.10, 2.32, 2.50 Mediation definition …. 4.21 Mercy prerogative of …. 6.35 Merits review nature of …. 6.47 Modern approach to interpretation see Interpretation of legislation: context (modern) approach Morality positivism, and …. 1.17 N Napoleonic Code development of …. 1.20, 9.68

Creyke, Robin, et al. Laying down the Law, LexisNexis Butterworths, 2020. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6413182. Created from monash on 2021-02-11 14:21:41.

Copyright © 2020. LexisNexis Butterworths. All rights reserved.



National Native Title Tribunal establishment …. 4.6 functions …. 4.6 mediation …. 4.21 Native title Akiba v Commonwealth …. 4.10, 4.12, 4.13 alternatives to litigation …. 4.21 Banjima People v Western Australia …. 4.11 claims, complexity of …. 4.19–4.22 delays and costs …. 4.20 resource drain …. 4.19–4.21 commercial exploitation …. 4.13, 4.14 Connection to Country Report …. 4.12–4.14, 4.21 cultural loss/damage …. 4.16, 4.17 definition …. 4.5 developments in jurisprudence …. 4.4, 4.8–4.11, 4.14 economic development, and …. 4.13 extinguishment of …. 4.5, 4.23 compensation for …. 4.15–4.18 components …. 4.16 pastoral and mining leases …. 4.7 restrictions …. 4.18 Timber Creek Decision …. 4.15–4.17 Federal Court determinations, power to make …. 4.5, 4.6 obligations …. 4.5 fishing rights …. 4.10, 4.13 Indigenous Land Use Agreements (ILUA) …. 4.21 limits on …. 4.7 Mabo v Queensland [No 2] …. 4.3–4.6 mediation …. 4.21 Native Title Amendment Act 1998 …. 4.7 Noongar people …. 4.22 overview …. 4.1, 4.2 spiritual relationship, consideration of …. 4.17 terra nullius …. 2.57, 4.2 traditional customs and rights, recognition of …. 4.3–4.6, 4.12 Wik Peoples v Queensland …. 4.7 Willis (Pilki People) v Western Australia …. 4.14 Yorta Yorta Case …. 4.9 Native Title Act 1993 (Cth) ALRC review …. 4.12–4.14 terms of reference …. 4.13 determinations …. 4.5, 4.6 future acts, and …. 4.6 good faith negotiations …. 4.6 objects …. 4.6 passing of …. 4.5 Natural law Aquinas on …. 1.15 definition …. 1.13 influence on civil and common law systems …. 1.13 theory of …. 1.13, 1.15 Nazi Germany law and restoration of democracy …. 1.17

Index

Negligence liability and remedy …. 6.9 standards of behaviour …. 6.5 New South Wales English law, arrival of …. 2.3 legislation commencement dates …. 9.22, 19.17 early colonial …. 2.61–2.63 finding see Legislation, searching for government website …. 19.9 reprints …. 9.73 Supreme Court, establishment …. 2.61, 2.66 Northern Territory intervention see Northern Territory Intervention legislation …. 9.79 commencement dates …. 9.28, 19.17 finding see Legislation, searching for government website …. 19.9 reprints …. 9.73 Northern Territory Intervention Australian Crime Commission, special investigative powers …. 4.51 Castan Centre for Human Rights Law evaluation of …. 4.58 community consultation …. 4.56, 4.59 ‘emergency response’ …. 4.51 human rights, impairment of …. 4.53–4.56 overview …. 4.51 parliamentary scrutiny …. 4.57 racial discrimination legislation, and …. 4.52– 4.53 Noscitur a sociis …. 12.3, 12.5 O Obiter dicta authoritative …. 7.51–7.52 definition …. 7.17 ratio decidendi and …. 7.45–7.49 criminal appeals …. 7.48 example …. 7.50 facts and matters, consideration of …. 7.47 Ombudsman definition …. 5.20 Online legal research AustLII see AustLII bibliographic databases …. 17.8 Bills, finding …. 19.31–19.33 Boolean searching …. 17.1, 17.9–17.13 anticipating word choices …. 17.9 common patterns …. 17.12 commonly used operators …. 17.13 examples …. 17.20–17.23 online legal research …. 17.1, 17.9–17.13 proximity operators …. 17.10 research software, automatic substitutions, 17.11 search operators …. 17.10, 17.13

Creyke, Robin, et al. Laying down the Law, LexisNexis Butterworths, 2020. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6413182. Created from monash on 2021-02-11 14:21:41.

663

LAYING DOWN THE LAW

Copyright © 2020. LexisNexis Butterworths. All rights reserved.

Online legal research – cont’d search terms …. 17.10 wildcards …. 17.10 case law see Case law research commentary, sources of …. 17.37, 17.39 encyclopedias see Legal encyclopedias free (full) text searching …. 17.8 free websites …. 17.6 Google …. 17.6, 17.36 Google Scholar …. 17.6, 17.36 index databases …. 17.8 international case law see Case law research international platforms …. 17.5 journals see also Journal articles Australian articles …. 17.26–17.30 finding articles …. 17.24–17.36 international articles …. 17.31–17.36 legal encyclopedias see Legal encyclopedias legislation see Legislation, searching for loose-leaf services …. 17.37 methods of …. 17.8 online platforms …. 17.5, 18.4 CCH IntelliConnect …. 17.5, 17.28, 17.37, 18.14, 18.18 Informit …. 17.5, 17.30 Lexis Advance …. 17.5, 17.20, 17.21, 17.26, 17.37, 18.14 Westlaw AU …. 17.5, 17.22, 17.23, 17.27, 17.37, 18.14 overview …. 16.24, 17.4 research tools, overview …. 17.5–17.7 sources of information …. 16.23 specific research tools …. 17.5–17.7 SSRN Legal Scholarship Network …. 17.6 statutes see Legislation, searching for textbooks available as ebooks …. 17.16 university libraries …. 16.23, 16.24, 17.7 ebook version of textbooks …. 17.16 search engine …. 17.7 Orders in Council transportation of convicts, and …. 2.55 P Parliament Australian legal institutions …. 3.15 Australian parliaments …. 3.17 bicameral …. 2.3, 3.17 British see British Parliament Commonwealth …. 2.81, 3.18 creation …. 2.81 powers …. 2.81, 3.19 development of constitutionalism …. 2.30 role of …. 3.18 separation of powers …. 3.3, 3.9, 3.10 state/territory, powers of …. 2.81, 3.19 unicameral …. 3.17 Parliament of Australia: Bills and Legislation website finding Bills …. 19.33, 19.36 how to use …. 19.36

664

Parliamentary committee reports finding …. 19.30–19.33 legal research …. 17.38 statutory interpretation …. 11.4, 11.6, 11.20 Parliamentary debates citation …. 21.45 finding …. 19.30–19.33 statutory interpretation …. 11.4, 11.5, 11.20 Parliamentary democracy features …. 3.3 Parliamentary scrutiny delegated legislation …. 9.83 financial scrutiny Parliamentary Budget Office …. 9.14 Senate Legislation (estimates) committees …. 9.15 protection of rights …. 3.55, 3.61 Per incuriam limitations …. 8.55 meaning …. 8.52, 8.53 when decision is …. 8.53, 8.54 Plagiarism …. 20.38, 20.39 Plain language audience, suited to …. 20.24 clear direct and straightforward …. 20.7, 20.16 description of …. 20.16 efficient transmission of information …. 20.21 jargon, avoiding …. 20.16, 20.26 legal expressions …. 20.25 legal writing …. 20.7, 20.15–20.21, 20.24–20.26 legislative drafting …. 9.62–9.63 reasons for using …. 20.20, 20.21 Plaintiff case citation, description in …. 21.18 definition …. 2.12, 7.6, 21.18 Pleadings guilty pleas …. 6.41, 6.42 nature of …. 6.12 Positivism definition …. 1.16 morality, and …. 1.17 Precedent Australia see Precedent in Australian courts binding/persuasive distinction …. 7.15 common law, importance to …. 2.4 court discretion, and …. 7.15 court hierarchy …. 7.19–7.23 decisions …. 7.3 recording …. 7.5 distinguishing precedents …. 7.29–7.31 appeal, on …. 7.32 diverging majority judgments …. 7.33–7.35 doctrine of …. 7.13 equally divided courts …. 7.36–7.43 authority of decision …. 7.42 decision, identification of …. 7.37–7.41 rules, jurisdictional differences …. 7.38, 7.39 interpretation of doctrine, orthodox …. 7.14

Creyke, Robin, et al. Laying down the Law, LexisNexis Butterworths, 2020. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6413182. Created from monash on 2021-02-11 14:21:41.

Copyright © 2020. LexisNexis Butterworths. All rights reserved.



judicial law-making …. 7.53–7.57 departure from precedent …. 7.59–7.65 development of law …. 7.58 foreign jurisdictions, using …. 7.54 Mabo decision …. 7.63 novel issues …. 7.55, 7.56 novel legislation …. 7.56 law reporting …. 7.66–7.67 authorised reports …. 7.68–7.69 Councils of Law Reporting …. 7.69 internet, cases on …. 7.71–7.72 Nominate Reports …. 1.26, 7.68 unauthorised reports …. 7.70 unreported decisions …. 7.67, 7.71 obiter dicta …. 7.17, 7.45–7.49 authoritative …. 7.51–7.52 criminal appeals …. 7.48 facts and matters, consideration of …. 7.47 overview …. 7.2, 7.13–7.16, 7.18 per incuriam …. 8.53–8.56 rape within marriage …. 7.64, 7.65 ratio decidendi …. 7.14 case ‘turns on own facts’ …. 7.28 definition …. 7.14 dissenting judgments …. 7.44 diverging majority judgments …. 7.33–7.35 equally divided courts …. 7.36–7.43 generality, level of …. 7.27–7.32 identifying …. 7.24 example …. 7.50 meaning …. 7.14 obiter dicta and …. 7.25, 7.45–7.49 example …. 7.50 rules in contention …. 7.25–7.26 rationale for doctrine …. 7.17 rules …. 7.16 social values, and …. 7.62 stare decisis …. 2.8, 7.14, 7.17, 7.35 tribunals …. 8.64–8.71 appeals to courts …. 8.69 courts, decisions of …. 8.68–8.71 powers …. 8.65 Precedent in Australian courts administrative tribunals …. 8.64–8.71 courts, decisions of …. 8.68–8.71 appeals …. 8.18 appellate hierarchy …. 8.18–8.23 jurisdictional differences …. 8.39–8.45 conservatism …. 8.20, 8.21 court discretion …. 8.20, 8.22 five judges, where …. 8.22, 8.23 single judges …. 8.19 avoiding conflicting precedents …. 8.24–8.26 per incuriam …. 8.53–8.56 ‘plainly wrong’ …. 8.51–8.52, 8.56–8.59 conflicting precedents …. 8.24–8.26 inconsistency in lower courts …. 8.15 court hierarchy, and …. 8.17

Index

discretionary principles …. 8.29–8.30 error, perpetuation of …. 8.22 Family Court …. 8.29–8.30 Federal Circuit Court …. 8.69 Federal Court appellate hierarchy …. 8.21, 8.22, 8.40, 8.43 statutory interpretation …. 8.27, 8.28 tribunal appeals …. 8.67–8.69 federal court system …. 8.31 appellate hierarchy …. 8.18–8.23 jurisdictional differences …. 8.39–8.45 common law, and …. 8.35 criminal law …. 8.36, 8.47 cross-vesting …. 8.32–8.34 national scheme legislation …. 8.36–8.38 divergent treatment of …. 8.38 non-uniform legislation …. 8.46–8.50 state and territory legislation …. 8.36–8.38 Uniform Evidence Law …. 8.37, 8.38, 8.46 foreign courts …. 8.72 common law jurisdictions …. 8.73–8.75 House of Lords …. 8.82–8.89 Privy Council …. 8.76–8.81, 8.88 United Kingdom Supreme Court …. 8.82 High Court …. 8.2 constitutional cases …. 8.10–8.16 consequences of departure from precedent …. 8.16 implications …. 8.11, 8.15 inconsistent precedents …. 8.15 matters to consider …. 8.14 ‘originalist’ and ‘living tree’ interpretation …. 8.12 territories, representation of …. 8.13 House of Lords, and …. 8.86 overruling own decisions, considerations …. 8.3–8.6 immunity from liability …. 8.5 legal professional privilege …. 8.4 standard of care and individual culpability …. 8.6 Privy Council decisions and …. 8.77–8.81 statutory interpretation …. 8.7–8.9 Supreme Court of the United Kingdom …. 8.82 House of Lords …. 8.82–8.89 inferior courts …. 8.62–8.63 judicial comity …. 8.57 overview …. 8.1 per incuriam …. 8.53–8.56 ‘plainly wrong’ decisions …. 8.51–8.52, 8.56–8.59 Privy Council …. 8.76–8.81 abolition of appeals …. 8.76, 8.88 state and territory Supreme Courts appellate hierarchy …. 8.18–8.23 jurisdictional differences …. 8.39–8.45 conflicting precedents …. 8.25, 8.26 cross-vesting of jurisdiction …. 8.32–8.34

Creyke, Robin, et al. Laying down the Law, LexisNexis Butterworths, 2020. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6413182. Created from monash on 2021-02-11 14:21:41.

665

LAYING DOWN THE LAW

Copyright © 2020. LexisNexis Butterworths. All rights reserved.

Precedent in Australian courts – cont’d national scheme legislation …. 8.38 statutory interpretation …. 8.27, 8.28 summary …. 8.60, 8.61 Supreme Court of the United Kingdom …. 8.82 tribunals …. 8.64–8.71 appeals to courts …. 8.69 courts, decisions of …. 8.68–8.71 powers …. 8.65 United Kingdom Supreme Court …. 8.82 Presumptions of interpretation access to courts, no deprivation of …. 13.5, 13.20 jurisdictional error …. 13.20 privative clauses …. 13.20, 13.29 changes in …. 13.6 common law Bill of Rights …. 13.1, 13.3, 13.4 presumptions as element of …. 13.4 rights based on shared values …. 13.3 common law doctrines not altered …. 13.13 common law presumptions …. 13.5 common law rights not interfered with …. 13.3, 13.5, 13.9–13.13 change in strength of …. 13.6 common law doctrines not altered …. 13.13 fundamental rights 13.10, 13.12 outcome of cases influenced by …. 13.10, 13.11 principle of legality …. 13.3, 13.9 rebuttal …. 13.7 context, forming part of …. 13.3 Crown not bound …. 13.5, 13.31–13.33 Queensland interpretation Act …. 13.33 Tasmanian interpretation Act …. 13.33 weakening of presumption …. 13.6, 13.31, 13.32 displacing by contrary intention …. 13.6 ejusdem generis …. 12.5–12.7 extraterritorial effect, against …. 13.5, 13.34 facilitating interpretation …. 13.1 international law, conformity with …. 13.5, 13.35, 13.36 strengthening of presumption …. 13.6 later laws do not impliedly repeal earlier laws …. 9.38, 13.5 legal professional privilege not abrogated …. 13.5, 13.19 liberal values …. 13.1 noscitur a sociis …. 12.5 not of equal value …. 13.3 overview …. 13.1–13.4 penal provisions strictly construed …. 13.5, 13.21–13.23 Queensland …. 13.23 South Australia …. 13.23 weakening of presumption …. 13.6, 13.21 philosophical underpinnings …. 13.4

666

presumptions, rather than rules …. 13.1 principle of legality …. 13.3, 13.9 privilege against self-incrimination not abrogated …. 13.5, 13.18 property rights not removed without compensation …. 13.5, 13.24–13.26 constitutional ‘just terms’ requirement …. 13.26 fundamental right …. 13.24 rebuttal …. 13.25 weakening of presumption …. 13.28 rebuttal …. 13.1, 13.3, 13.7 clear and unambiguous words …. 13.7 clear intention from terms of legislation …. 13.7 explicit …. 13.3 implied …. 13.3 strength of presumption and …. 13.7 re-enactment amounts to approval of interpretation …. 13.1, 13.5, 13.27–13.30 abrogation by statute …. 13.28 recent examples of application …. 13.30 South Australia …. 13.28 retrospective operation, against …. 13.5, 13.14–13.17 shared values …. 13.2, 13.3 strong presumptions …. 13.3, 13.6 summary of principles …. 13.3 surplusage, presumption against …. 12.10 syntactical presumptions …. 13.1 textualism …. 13.8 ‘Priestly 11’ foundation law subjects …. 5.21 Principal definition …. 5.40 Privacy technology and …. 5.14 Private law overview …. 1.35 Privative clauses access to courts, deprivation of …. 13.20 presumption against …. 13.5, 13.20 definition …. 13.20 effect of …. 13.29 presumptions of interpretation …. 13.20, 13.29 Privilege against self-incrimination presumption against abrogation …. 13.5, 13.18 Privity of contract doctrine …. 6.9 Privy Council Australian cases, appeals to …. 2.73 abolition …. 2.76 limitation of powers …. 2.75 shortcomings of …. 2.74 colonies, and …. 2.73 decisions as precedent in Australian courts …. 8.76–8.81 abolition of appeals …. 8.76, 8.88 Judicial Committee …. 2.72 origins …. 2.72

Creyke, Robin, et al. Laying down the Law, LexisNexis Butterworths, 2020. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6413182. Created from monash on 2021-02-11 14:21:41.

Copyright © 2020. LexisNexis Butterworths. All rights reserved.



Procedure legal …. 6.11–6.13 Property law …. 1.37 alienable, definition …. 4.16 inalienable, definition …. 4.16 native title see Native title radical title …. 4.2 Prosecutor criminal prosecution …. 6.20 procedural and ethical obligations …. 5.50–5.52, 6.20 Protection regimes First Nations Australians …. 3.46, 4.27, 4.61 Public law overview …. 1.35 Puisne definition …. 1.39 Punctuation interpretation of legislation …. 12.8, 12.9 legal writing …. 20.46 Purposive interpretation of legislation Acts Interpretation Act 1901, s 15AA …. 10.18–10.26 Australian Capital Territory equivalent …. 10.22 equivalent state and territory provisions …. 10.19 impact of …. 10.25, 10.26 operation and limitations …. 10.20 Queensland equivalent …. 10.23 South Australian equivalent …. 10.24 balance between competing interests …. 10.21 common law …. 10.7, 10.14–10.17 courts to prefer …. 10.5 definition …. 10.2 extrinsic material and …. 11.29 intention of Parliament …. 10.5, 10.14 legislation, under …. 10.18–10.26 literal approach giving way to …. 10.5, 10.20 modern approach and …. 10.30 overview …. 10.4, 10.5, 10.14–10.26 statute as a whole …. 10.15 underlying purpose of legislature …. 10.17 Q Queen’s Counsel (QC) …. 5.7 Queensland creation of state …. 2.64 interpretation statute …. 10.23 legislation commencement dates.... 9.23, 19.16 finding see Legislation, searching for government website …. 19.9 reprints …. 9.73 R Race power definition …. 4.60 Racial discrimination

Index

equality under the law, and …. 4.48–4.49 international law and …. 3.37 Northern Territory Intervention and …. 4.52–4.53 prohibition …. 3.37 Ratio decidendi see also Precedent case ‘turns on own facts’ …. 7.28 definition …. 7.14 dissenting judgments …. 7.44 diverging majority judgments …. 7.33–7.35 equally divided courts …. 7.36–7.43 generality, level of …. 7.27–7.32 identifying …. 7.24 example …. 7.50 meaning …. 7.14 obiter dicta and …. 7.25, 7.45–7.49 example …. 7.50 rules in contention …. 7.25–7.26 Reasonable doubt criminal standard of proof …. 6.23, 6.28 Referencing authority …. 20.35–20.37, 21.2, 21.3, 21.5, 21.6 citation rules see Citation footnotes and endnotes …. 20.41, 21.4 honesty …. 20.38, 20.39, 21.2, 21.3, 21.5, 21.6 legal writing, in …. 20.35–20.39 Referendums federation of Australia …. 2.79 race power, and …. 4.60 recognition of First Nations Australians (1967) …. 4.61 Reformation English law, and …. 2.35 Registrar definition …. 7.10 Report series see Law reports Repugnancy Colonial Laws Validity Act, and …. 2.71 nature of …. 2.69 Responsible government Australian legal system …. 2.3, 3.3 principle of …. 3.11 weaknesses …. 3.12 Retainer definition …. 5.29 Retrospective operation express provision for …. 13.15 presumption against …. 13.5, 13.14–13.17 nature and operation of …. 13.16 Reviews High Court, role of …. 3.21 Rights alienable, definition …. 4.16 human see Human rights inalienable, definition …. 4.16 infringement automated decision-making and …. 5.14 presumptions of interpretation …. 13.1 change in strength of …. 13.6

Creyke, Robin, et al. Laying down the Law, LexisNexis Butterworths, 2020. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6413182. Created from monash on 2021-02-11 14:21:41.

667

LAYING DOWN THE LAW

Rights – cont’d common law Bill of Rights …. 13.1, 13.3, 13.4 common law doctrines not altered …. 13.13 common law rights not interfered with …. 13.3, 13.5, 13.9–13.13 fundamental rights 13.10, 13.12 outcome of cases influenced by …. 13.10, 13.11 principle of legality …. 13.3, 13.9 rebuttal …. 13.7 rights based on shared values …. 13.3 Roman law code …. 1.11–1.12 Corpus Juris Civilis …. 1.11 influence on civil and common law systems …. 1.9, 1.10 Rome Statute signatories …. 3.42 Royal Commission into Aboriginal Deaths in Custody imprisonment statistics …. 4.32 overview …. 4.29 recommendations …. 4.30 implementation of …. 4.31 Rule of law adversarial system, and …. 6.37 constitutional principles …. 3.13 Australian Constitution …. 3.54 definition …. 2.2 development of constitutionalism …. 2.30 principles …. 2.50–2.52, 3.13

Copyright © 2020. LexisNexis Butterworths. All rights reserved.

S Sentencing First Nations Australians customary punishment …. 4.40–4.45 disproportionate imprisonment of First Nations Australians …. 4.33 Indigenous sentencing courts …. 4.36–4.39 ‘individualised justice’ …. 4.35 racial discrimination legislation, and …. 4.48–4.49 social disadvantage, impact of …. 4.33–4.34 Separation of powers constitutional principles …. 3.8 development of constitutionalism …. 2.30 division of functions …. 3.9 federal judicial power, impact on …. 3.26 meaning of …. 2.2 parliamentary democracy, and …. 3.3 principles …. 2.41, 2.48.2.52 state and territory governments …. 3.15 statutory interpretation, application to …. 10.6 Service nature of …. 6.11 Settlement of Australia common law and …. 2.56, 2.58–2.59

668

SHARP approach to fact analysis actors involved …. 16.15, 16.18 example …. 16.18 exercise …. 16.27 harm …. 16.14, 16.18 legally material facts …. 16.11 overview …. 16.12, 16.27 policy considerations …. 16.17, 16.18 remedy or relief sought …. 16.16, 16.18 situation and subject matter …. 16.13, 16.18 Solicitors see Legal profession Sources of law case law …. 1.33, 7.1–7.5, 7.7 legal scholarship …. 1.23–1.28, 1.29 South Australia interpretation statute …. 10.24 legislation commencement dates …. 9.23, 19.16 finding see Legislation, searching for government website …. 19.9 reprints …. 9.73 Standard of proof civil …. 6.28 criminal …. 6.28, 6.32 wrongful convictions and …. 6.32 meaning …. 6.23 Standing definition …. 6.8 Stare decisis see Precedent State and territory legislation Australian Capital Territory …. 9.77 commencement …. 9.27 historical legislation …. 9.78 commencement …. 9.21–9.26 delegated legislation …. 9.81–9.82 commencement …. 9.85–9.88 disallowance of territory Acts …. 9.42 finding see Legislation, searching for government websites …. 19.9 interpretation see Interpretation of legislation interpretation statutes …. 9.60 New South Wales commencement …. 9.22 government website …. 19.9 Norfolk Island …. 9.80 Northern Territory …. 9.79 commencement …. 9.28 government website …. 19.9 historical legislation …. 9.79 Queensland commencement …. 9.23 government website …. 19.9 sources …. 9.76 South Australia commencement …. 9.23 government website …. 19.9 Tasmania commencement …. 9.24

Creyke, Robin, et al. Laying down the Law, LexisNexis Butterworths, 2020. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6413182. Created from monash on 2021-02-11 14:21:41.

Copyright © 2020. LexisNexis Butterworths. All rights reserved.



government website …. 19.9 Victoria commencement …. 9.25 government website …. 19.9 Western Australia commencement …. 9.22 government website …. 19.9 State Parliaments legislative powers …. 2.81, 3.19 Statute annotator …. 19.26 Statute of limitations nature of …. 5.33 Statute of Westminster Australia, application in …. 2.84–2.86 Balfour Declaration …. 2.84 Colonial Laws Validity Act, repealed …. 2.84 Statutes see Legislation Statutory interpretation see Interpretation of legislation ‘Stolen Generations’ human rights, constitutional and …. 3.46, 4.27 Study skills benefits of …. 1.5 best method, finding …. 22.15–22.19 critical thinking …. 22.20–22.22 emailing teachers …. 22.14 exam preparation …. 22.24–22.29 checking how much of course examinable …. 22.27 closed book exams …. 22.25 open book exams …. 22.25 previous examination questions …. 22.24 study groups …. 22.29 summaries …. 22.26–22.29 exam skills see Exams expected learning outcomes …. 22.2 going beyond …. 22.3 external students …. 22.13 ‘issue-spotting’ exams …. 22.2, 22.22 learning and remembering …. 22.17 lectures …. 22.9, 22.18 notes …. 22.9, 22.10 online classes …. 22.10, 22.13 online study …. 22.13 organisation …. 22.5 outside the classroom …. 22.12–22.14 overview …. 22.1–22.3 reading efficiently …. 22.6–22.8, 22.16 active reading …. 22.7 developing suitable habits …. 22.8, 22.16 relevance …. 22.7 skim reading …. 22.7 recordings of lectures …. 22.10 seminars …. 22.11, 22.18 study groups …. 22.29 study method, finding suitable …. 22.15–22.19 study plan …. 22.5 summaries …. 22.27–22.29 teacher consultation hours …. 22.14

Index

time management …. 22.5 tutorials …. 22.11, 22.18 what are …. 22.4 Succession law …. 1.37 Summary charges definition …. 5.9 Supreme Court of the United Kingdom precedent, doctrine of …. 8.82 Supreme Courts New South Wales establishment …. 2.61, 2.66 Forbes, Chief Justice …. 2.66, 2.67 precedent see also Precedent in Australian courts appellate hierarchy …. 8.18–8.23 jurisdictional differences …. 8.39–8.45 conflicting precedents …. 8.25, 8.26 cross-vesting of jurisdiction …. 8.32–8.34 national scheme legislation …. 8.38 T Tasmania legislation commencement dates …. 9.24, 19.16 finding see Legislation, searching for government website …. 19.9 reprints …. 9.73 Taxonomy common distinctions …. 1.35, 1.36 importance of …. 1.34 Technology law, and …. 5.13 issues arising from …. 5.14 Terra nullius abolition see Native title doctrine of …. 2.57, 7.63 Territories Parliaments legislative powers …. 2.81 Textbooks Blackstone’s Commentaries …. 1.27, 17.15 case law, finding …. 18.3 casebooks …. 17.15 citation …. 21.39 ebooks …. 17.16 journal articles compared …. 17.3, 17.24 legal research …. 17.3, 17.14–17.16 review of relevant textbooks …. 17.3 secondary source …. 17.1, 17.3 objective style …. 17.3 seminal texts …. 17.15 Torrens system establishment of …. 2.70 Tort law …. 1.37 Transportation of convicts America, to …. 2.55 Australia, to …. 2.55 legal basis …. 2.55 Treaty of Versailles signing …. 2.83

Creyke, Robin, et al. Laying down the Law, LexisNexis Butterworths, 2020. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6413182. Created from monash on 2021-02-11 14:21:41.

669

LAYING DOWN THE LAW

Trial adversarial …. 6.16–6.17 accuracy and individual autonomy …. 6.25–6.26 peaceful and efficient dispute resolution …. 6.27–6.28 battle, by …. 2.15, 2.17 criminal …. 6.18–6.20 early common law, procedures …. 2.15–2.19 jury, by Australian Courts Act …. 2.63 establishment in Australia …. 2.66 ordeal, by …. 2.15, 2.16 standard of proof see Standard of proof Tribunals administrative law …. 3.32, 3.50 review function …. 6.47 decisions …. 6.45 dispute resolution …. 3.52, 6.43, 6.45 errors of law, correcting …. 3.51 evolution of …. 6.44 government decisions, review of …. 6.46 inquisitorial function …. 6.48 investigative role …. 6.48 nature and purpose …. 3.51 powers …. 6.43 federal and state, distinguished …. 6.43 precedent, application of doctrine …. 8.64–8.71 appeals to courts …. 8.69 courts, decisions of …. 8.68–8.71 powers …. 8.65

Copyright © 2020. LexisNexis Butterworths. All rights reserved.

U United Nations Charter …. 3.41 United States Constitution Bill of Rights …. 3.56 slavery, abolition of …. 3.56 University libraries legal research …. 16.23 ebook versions of textbooks …. 17.16 legal dictionaries …. 17.17 legislation …. 19.3 online …. 16.23, 16.24, 17.7 search engine …. 17.7 Utilitarianism definition …. 1.16 V Victims of crime standing …. 6.8

670

Victoria creation of state …. 2.64 legislation commencement dates …. 9.25, 19.16 finding see Legislation, searching for government website …. 19.9 reprints …. 9.73 W Wager of law nature of …. 2.18 Western Australia legislation commencement dates …. 9.22, 19.16 finding see Legislation, searching for government website …. 19.9 reprints …. 9.73 Western legal tradition development of …. 1.11–1.13 Westminster system Australia, in …. 3.2 bicameral parliaments …. 2.3, 3.17 origins …. 2.1 Wik Peoples v Queensland native title …. 4.7 pastoral and mining leases and …. 4.7 Words and phrases cases defining …. 18.11, 18.37 foreign, in legal writing …. 20.44 interpreting legislation see Interpretation of legislation Writing see Legal writing Writs case citation in proceedings for …. 21.19 definition …. 1.24, 2.11 issue by Chancellor …. 2.21 system …. 2.11–2.14 changes to …. 2.26 legal fictions, and …. 2.13 problems …. 2.12 Wrongful convictions appeal …. 6.32–6.36 criminal cases review commission, suggested …. 6.36 DNA testing …. 6.33 exoneration …. 6.33 expert witness …. 6.33 fresh and compelling evidence …. 6.33, 6.35

Creyke, Robin, et al. Laying down the Law, LexisNexis Butterworths, 2020. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6413182. Created from monash on 2021-02-11 14:21:41.

Copyright © 2020. LexisNexis Butterworths. All rights reserved. Creyke, Robin, et al. Laying down the Law, LexisNexis Butterworths, 2020. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6413182. Created from monash on 2021-02-11 14:21:41.

LexisNexis Related Titles Bott & Talbot Stokes, Effective Legal Research, 7th ed, 2018, ISBN 9780409348095 Chisholm, Nettheim & Chisholm, Understanding Law: An Introduction to the Australian Legal Systems, 8th ed, 2012, ISBN 9780409328448 Corbett-Jarvis & Grigg, Effective Legal Writing: A Practical Guide, 2nd ed, 2017, ISBN 9780409343205 (3rd ed forthcoming ISBN 9780409351484) Finkelstein & Hamer, LexisNexis Concise Australian Legal Dictionary, 5th ed, 2015, ISBN 9780409338447 Hall & Macken, LexisNexis Guides: Legislation and Statutory Interpretation, 4th ed, 2015, ISBN 9780409339222 (5th ed forthcoming ISBN 9780409352405)

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