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The new lawyer SECOND EDITION

Nickolas James Rachael Field Jackson Walkden-Brown

Second edition published 2019 by John Wiley & Sons Australia, Ltd 42 McDougall Street, Milton Qld 4064 First edition published 2013 Typeset in 10/12pt TimesLTStd © Nickolas James, Rachael Field 2013, 2019 The moral rights of the author have been asserted. A catalogue record for this book is available from the National Library of Australia. Reproduction and Communication for educational purposes The Australian Copyright Act 1968 (the Act) allows a maximum of one chapter or 10% of the pages of this work or — where this book is divided into chapters — one chapter, whichever is the greater, to be reproduced and/or communicated by any educational institution for its educational purposes provided that the educational institution (or the body that administers it) has given a remuneration notice to Copyright Agency Limited (CAL). Reproduction and Communication for other purposes Except as permitted under the Act (for example, a fair dealing for the purposes of study, research, criticism or review), no part of this book may be reproduced, stored in a retrieval system, communicated or transmitted in any form or by any means without prior written permission. All inquiries should be made to the publisher. The authors and publisher would like to thank the copyright holders, organisations and individuals for their permission to reproduce copyright material in this book. Every effort has been made to trace the ownership of copyright material. Information that will enable the publisher to rectify any error or omission in subsequent editions will be welcome. In such cases, please contact the Permissions Section of John Wiley & Sons Australia, Ltd. Cover image: © Sergey Nivens / Shutterstock.com Typeset in India by diacriTech Printed in Singapore by C.O.S. Printers Pte Ltd 10 9 8 7 6 5 4 3 2 1

BRIEF CONTENTS Foreword viii About the authors

xiii

PART 1 Knowing

1

1. The life of a lawyer

2

2. Fundamental legal concepts 3. A history of Australian law

43 87

4. The Australian legal system

116

5. The sources of law in Australia PART 2 Doing

199

6. Legal research skills 7. Interpretation skills 8. Thinking skills

152

200 237

284

9. Communication and collaboration skills 10. Self-management skills PART 3 Being

11. Being realistic

366

395

396

12. Being committed to justice 13. Being ethical

455

14. Being future-ready Index

526

489

426

326

CONTENTS Foreword viii About the authors

Private property 77 Equality 81 Key terms 84 Exercises 86 Acknowledgements 86

xiii

PART 1

Knowing

1

CHAPTER 3

CHAPTER 1

The life of a lawyer

2

Introduction 3 1.1 Being a lawyer: myths and realities 4 Thinking like a lawyer 4 Myths about being a lawyer 5 The realities of legal practice 7 1.2 A diversity of career options 10 A changing profession 11 Traditional career paths 11 Work sectors 14 1.3 Your legal education 22 Legal education in Australia 22 Making the most of your legal education 28 1.4 Developing a professional identity 36 What is a ‘professional identity’? 36 The importance of a positive professional identity 37 Academic integrity 38 Key terms 41 Exercises 42 Acknowledgements 42

A history of Australian law 87 Introduction 88 3.1 Indigenous Australians and the law 89 Who are the Indigenous Australians? 89 Customary law 90 Terra nullius 92 3.2 The development of British law 94 Early British history 94 The rise of parliament 96 The social contract 98 Common law and equity 99 3.3 The development of Australian law 101 Colonial law 101 Federation 104 3.4 Indigenous Australians and the law today 106 Indigenous legal issues 107 The way forward 111 Key terms 114 Exercises 115 Acknowledgements 115

CHAPTER 2 CHAPTER 4

Fundamental legal concepts 43 Introduction 44 2.1 Law 44 What is ‘law’? 45 The categories of law 47 The need for law 51 The changing law 54 2.2 Law and extrinsic standards Natural law theory 57 Legal positivism 62 2.3 Law and liberal values 66 Liberty 67 Reason 71 Rights 75

The Australian legal system 116

56

Introduction 117 4.1 Seven key characteristics 117 The rule of law 117 A liberal democracy 118 A common law legal system 120 A constitutional monarchy 120 A federation 121 The separation of powers 122 Responsible government 123 4.2 The Australian Constitution 124 Structure of the Constitution 125 Constitutional conventions 126

Federal and State relations 127 Residual powers 132 Regulating the Territories 133 Rights and freedoms 133 Changing the Constitution 134 4.3 The State constitutions 136 Similarities and differences between the State constitutions 138 4.4 Executive government in Australia 140 The Governor-General and the State Governors 140 The Executive Council and the Cabinet 142 Challenging the executive 145 Key terms 149 Exercises 150 Acknowledgements 151 CHAPTER 5

The sources of law in Australia 152 Introduction 153 5.1 Legislation 154 What is ‘legislation’? 154 Parliamentary sovereignty 155 5.2 The structure of parliament 156 Federal Parliament 156 State and Territory parliaments 157 The role of the Crown in parliament 158 Parliament in operation 158 Types of legislation 163 Delegated legislation 165 5.3 Case law 169 What is ‘case law’? 169 Court systems 169 Court processes 179 The doctrine of precedent 189 Key terms 194 Exercises 198 Acknowledgements 198 PART 2

Doing

199

CHAPTER 6

Legal research skills

200

Introduction 201 6.1 Adopt a systematic approach 203 Plan your research 205 Undertake some background reading

Think carefully about your search terms 208 6.2 Know where to look 211 Primary and secondary sources 211 Legal research tools 212 Finding secondary sources 214 Finding case law 215 Finding legislation 217 6.3 Access good-quality information 219 Online versus hard-copy sources 219 Use current information 220 Use authoritative information 221 Use relevant information 221 Be patient 224 Know when to stop looking 225 6.4 Read actively and efficiently 226 Reading actively and efficiently 226 Reading case law 228 Reading legislation 229 6.5 Apply your research 230 Applying research to legal problem solving 230 Applying research to writing a paper 231 Citing your research 231 Key terms 236 Exercises 236 Acknowledgements 236 CHAPTER 7

Interpretation skills

237

Introduction 238 7.1 Reading the law 239 Legislation 239 Case reports 242 7.2 Interpreting the law 248 The need for interpretation 248 Statutory interpretation 250 Interpretation of contracts 269 7.3 Interpretation in practice 275 Meaning and intent 276 Text, context and purpose 276 Using ambiguity 277 A practical guide to interpretation Key terms 281 Exercises 282 Acknowledgements 283

278

CHAPTER 8

Thinking skills 207

Introduction

284

285

CONTENTS v

8.1 Legal reasoning 286 What is ‘legal reasoning’? 286 The IRAC method 287 Legal reasoning and logic 292 Legal reasoning and policy 302 8.2 Critical thinking 304 What is critical thinking? 304 Criteria-based judgement 305 Three types of critical thinking for law 306 An act of thoughtful disobedience 308 Becoming a critical thinker 309 8.3 Creative thinking 319 What is creative thinking? 319 Creativity in law school and legal practice 320 Becoming a creative thinker 321 Key terms 323 Exercises 324 Acknowledgements 325 CHAPTER 9

Communication and collaboration skills 326 Introduction 327 9.1 Communication skills 327 The importance of effective communication skills 327 The objectives of legal communication 329 Understanding the audience 335 9.2 Communicating effectively 338 Written communication 338 Oral communication 346 Non-verbal communication 352 9.3 Collaboration skills 356 The importance of effective collaboration skills 356 Collaborating effectively 358 Key terms 364 Exercises 364 Acknowledgements 365 CHAPTER 10

Self-management skills 366 Introduction 367 10.1 The importance of self-management Mental health and wellbeing 368 10.2 Six self-management skills 371 Independent learning 372

vi CONTENTS

368

Reflective practice 376 Using feedback appropriately Resilience 384 Hope and optimism 388 Mindfulness 391 Exercises 394 Acknowledgements 394

380

PART 3

Being

395

CHAPTER 11

Being realistic

396

Introduction 397 11.1 Formalism vs realism 397 Strict formalism 399 Moderate formalism 399 Legal realism 403 Judicial activism 405 11.2 Law and power 407 Marxist legal theory 408 Critical legal studies 409 Postmodern legal theory 411 Feminist legal theory 417 Critical race theory 422 Key terms 424 Exercises 424 Acknowledgements 425 CHAPTER 12

Being committed to justice 426 Introduction 427 12.1 The nature of justice 427 Theories of justice 427 Types of justice 429 12.2 Access to justice 434 The problem 434 Some solutions 440 12.3 Two social justice issues 448 Homelessness 448 Immigration detention 450 Key terms 453 Exercises 453 Acknowledgements 454

CHAPTER 14

CHAPTER 13

Being ethical

455

Introduction 456 13.1 Ethics 457 What is ‘ethics’? 457 Knowing the ‘right’ thing to do 458 The relationship between laws and ethics 463 Extending moral status 464 13.2 Professional ethics 475 The duties of a lawyer 476 Ethical rules 477 Conflict between professional and personal ethics 481 Key terms 487 Exercises 487 Acknowledgements 488

Being future-ready

489

Introduction 490 14.1 Disruption and transformation 491 Globalisation 491 Diversification 493 Emergent technologies 495 The end of lawyers? 497 14.2 Preparing for the future 498 Be flexible and open-minded 498 Be committed to lifelong learning 499 Service skills 501 Be globally minded 502 Be positive and optimistic 515 Key terms 523 Exercises 524 Acknowledgements 525

Index

526

CONTENTS vii

FOREWORD Professor Sally Kift wrote the foreword to the first edition in May 2012. We are reproducing it in the second edition because many of the issues discussed are just as relevant now as they were back then. Professor Kift’s foreword to this new edition follows immediately after as an addendum.

Foreword to the first edition: re-imagining the first year of legal education Professor Sally Kift1 As they commence their journey to becoming the next generation of new lawyers, what should commencing law students know, understand and be able to do as a result of their learning in the critical first year of their legal education? How might the curriculum, their teachers and their peers support first year learners for an optimal and positive engagement with the study of law and the disciplinary culture? How might those same first year students be facilitated further to lay the robust foundations necessary for future learning, diverse careers and global citizenship in an evolving knowledge economy? The New Lawyer seeks to answer these questions, and more besides, by re-imagining the ‘educational conditions’2 in which we place first year law students and by advocating a coherent, sustainable and carefully aligned legal education that seeks to ensure all students entering Australian law schools, whether undergraduates or postgraduates and whatever their entering backgrounds and experiences, are supported equitably to learn and succeed academically, socially, emotionally and philosophically. The first year of the modern law degree bears a heavy foundational burden, as even the briefest rehearsing of contemporary challenges (and opportunities) makes clear. In the context of a national quality and regulatory regime, heralded by the commencement of the Tertiary Education Quality and Standards Agency (TEQSA) in early 2012, the first year must be constructively designed with the end — articulated program outcomes — firmly in mind. Specifically, it must make an intentional contribution to the demonstration of student attainment of minimum discipline learning outcomes — the ‘Threshold Learning Outcomes’ (TLOs) for law,3 which were developed with broad disciplinary consensus over 2010 and are congruent with the requirements of the Australian Qualifications Framework (AQF),4 the latter comprising a critical component of the government’s Higher Education Standards Framework. The TLOs are an important anchor-point and frame of reference for many of this book’s chapters, while the discussion itself makes a further and significant contribution to legal pedagogy in the context of the HE Standards Framework, given that HE providers are required to assure, at a threshold level, that all staff who teach students ‘have an understanding of pedagogical and/or adult learning principles relevant to the student cohort being taught’ and implement good and scholarly practice.5

1 Sally Kift is President of the Australian Learning & Teaching Fellows, an Australian Learning and Teaching Council (ALTC) Senior Fellow, a Fellow of the Australian Academy of Law and an ALTC Discipline Scholar: Law. She was formerly the Deputy Vice Chancellor (Academic) James Cook University, a Professor of Law, Queensland University of Technology (QUT), the inaugural QUT Director, First Year Experience and an Assistant Dean (Teaching and Learning), QUT Faculty of Law. 2 Vincent Tinto, ‘Taking Student Retention Seriously: Rethinking the First Year of University’ (Paper presented at the FYE Curriculum Design Symposium, Brisbane, 2009) . 3 Sally Kift, Mark Israel and Rachael Field, Bachelor of Laws Learning and Teaching Academic Standards Statement (ALTC Learning and Teaching Academic Standards Project, 2010) . TLOs for the Juris Doctor (JD), a Masters Degree (Extended) level qualification under the Australian Qualifications Framework, have also been developed over 2011?12. The JD TLOs have taken as their starting point the TLOs for the Bachelor of Laws. 4 The Australian Qualifications Framework — First Edition July 2011 5 See the Higher Education Standards Framework (Threshold Standards) 2011, a legislative instrument made under the TEQSA Act 2011, especially in this regard the Provider Course Accreditation Standards and the Provider Category Standards.

viii FOREWORD

As this book makes explicit, in accordance with the principles of transition pedagogy,6 law’s first year must be designed carefully and intentionally to assist diverse student cohorts make the successful transition to the nature and culture of legal learning, while also equipping them with the requisite knowledge, skills and dispositions needed, not only to persist, but to be successful and independent over the course of their degree, and for a lifetime of professional practice, the latter inevitably now characterised by challenges and ideas unimaginable at the time of university study. For undergraduates new to higher education, especially those from non-traditional backgrounds, the first-year experience of law may be exacerbated by the need also to adjust to independent learning at the tertiary level, in all of its social, cultural, administrative and academic facets. For graduates coming to law from other disciplines, a measure of guided ‘unlearning’ may need to be intentionally facilitated to aid transition from prior, and quite different, educational genres. A great strength of this book is that it makes clear and explicit what is required for early learning success in law by demystifying the often hidden rules, behaviours and habits that students require for success as they strive for mastery of their new law student role.7 It does this by presenting and exampling fundamental threshold concepts and foundational skills — including the skills of research, thinking, communication, collaboration and study — in an engaging and accessible manner, while holding firm to uniformly high expectations and standards of all students. This substance, together with the practical tips and guidance provided, the pauses for reflection on learning, and the underlying requirement for students to engage with an emergent sense of professional identity — what it is to think like a lawyer, to act responsibly and ethically, and to promote the ideals of justice and public service — are everything that the academy, the profession and society more broadly could wish for in a thoroughly modern legal education that better prepares its students to take their place as ‘intellectually and morally responsible citizens’.8 But, as the marketers would say, ‘that’s not all’. Many other contemporary educational imperatives are also addressed in this thoughtful and comprehensive first year treatise and, in its pages, both law teachers and law students alike are provided with the tools required to respond and thrive in a crowded curriculum landscape. Particularly, the more recent obligation to address well-founded and specific concerns around the mental health of law students and the effect of law’s signature pedagogies on student wellbeing are considered, while other, more perennial, issues regarding the assurance of deep learning engagement with subject matter often perceived to be complex and dense are dealt with in the constructivist way through the provision of opportunities to contextualise and make sense of learning by building on prior experiences and establishing relevance through connection with contemporary issues and affairs. Law students’ and graduates’ special obligations to our country’s Indigenous peoples, the desperately needed paradigm shift to balance adversarial with alternative dispute resolution thinking and engagement with broad notions of justice and global citizenry, round out this impressive first year curriculum roadmap. As is obvious in the above, The New Lawyer is a learning-centred text written by three highly regarded experts in legal education and the first year experience. It seeks to assure and enhance the quality of the first-year student experience of law by explicitly engaging, motivating and supporting student learning. It engages commencing law students through its dynamic writing style, appealing format, periodic references to contemporary issues and events, and the use of flowcharts, checklists, diagrams, tables and timelines. Acknowledging the diversity of career pathways open to law graduates, professional and wider vocational relevance and opportunities are explored by providing explanations of how the material canvassed relates, not only to the practice of law and broader professional responsibility, but also to the acquisition of both generic and discipline-specific employability skills. 6 Sally Kift and Karen Nelson, ‘Beyond Curriculum Reform: Embedding the Transition Experience’ in Angela Brew, and Christine Asmar (eds), Higher Education in a Changing World, Research and Development in Higher Education, (University of Sydney, 2005) 225 ; Sally Kift, Final Report for ALTC Senior Fellowship Program (ALTC, 2009) . 7 PJ Collier and DL Morgan, ‘“Is that Paper Really Due Today?”: Differences in first-generation and traditional college students’ understandings of faculty expectations’ (2008) 55(4) Higher Education 425. 8 Margaret Davies, ‘University Culture or Intellectual Culture?’ in B Brecher, O Fleischmann and J Halliday (eds), The University in a Liberal State (Ashgate Publishing (Avebury Series), 1996) 24.

FOREWORD ix

The book motivates student learning by promoting active and authentic learning. It does this by modelling, and explicitly requiring students to practise, what they need to do with the knowledge they are acquiring; all of the domains — knowledge, skills and dispositions and their practical applications — are canvassed in the pages that follow, and no one domain is privileged to the detriment of another. The book includes in each chapter regular self-directed learning exercises, practical exercises for the development of important foundational legal skills, exercises that promote student collaboration, and prompts and tasks that require students to apply their learning to practical situations. Finally, the book supports student learning by encouraging both reflective and independent learning. It does this by including specific material on how to be a reflective practitioner and an independent learner, exercises that require students to engage in independent learning (for example, particularly in relation to legal research skills development), prompts requiring students to reflect upon what they have learned, and tasks requiring students to reflect upon their own views and beliefs. As legal educators, we have a responsibility to ensure that the first-year experience of law is inclusive, engaging, supportive, intentional, relevant and social. This book is an invaluable tool for ensuring compliance with that responsibility. It is a fresh and innovative re-imagining of the contemporary first year of legal education. I strongly commend this book and offer my warmest congratulations on a significant accomplishment to both its authors and its publisher, John Wiley & Sons. May 2012

Addendum to foreword: The New Lawyer 2nd edition Professor Sally Kift In 2018, 2012 seems a professional lifetime ago. In the six years that have elapsed since the first edition of The New Lawyer was published, it seems trite to observe that much has changed. Somewhat comfortingly, however, some things have also remained constant. The book’s title, in particular, is enduring and was prescient. ‘NewLaw’ has now entered the profession’s lexicon and the future-proofing of our profession requires NewLawyers in response. In the context of another ‘new’ — the new normal of disruptive innovation challenging the practice and content of law and unbundling the business of lawyer and legal work — this second edition is timely and welcome. As legal educators and the legal services industry alike are buffeted by a relevance tsunami of constant change due to digitisation, automation and artificial intelligence, accelerated by generational shifts, this second edition engages with the pressing imperative that the next iteration of legal practice should prepare for a ‘digital, divergent and differentiated future’.9 First year law students and their educators are encouraged to be optimistic and positive in preparing for law’s future and, in these pages, are provided with the strategies and agency to do and be so. Looking with 2018 eyes at the framing of the book around the 2010 Threshold Learning Outcomes (TLOs) it seems appropriate to observe that the adaptable TLOs have retained their relevance, been extended to the Juris Doctor,10 and continue to stand the Australian Legal Academy in good, futureproofing, stead. Just as legal knowledge has always had a limited shelf life, so too it has now become apparent that fit-for-contemporary-purpose skill sets are no longer stable and will routinely become obsolete without continual iteration: ‘disruption is … changing the skills that employers need and shortening the shelf-life of employees’ existing skill sets in the process’.11 In this context then, any attempt to future-proof lawyering skills in the face of endemic skills instability requires an emphasis on a twenty-first century mindset that recognises both the opportunities and the 9 Australasian Legal Practice Management Association, Preparing Australasian Law Firms for a Digital, Divergent, Differentiated Future (2015)