DIPLOMA IN LAW
LEGAL PROFESSION
ADMISSION BOARD
LAW EXTENSION COMMITTEE
LAW EXTENSION COMMITTEE SUBJECT GUIDE
01 LEGAL INSTITUTIONS
SUMMER SESSION 2015-16 (Revised 12/1/16)
This Guide includes the Law Extension Committee’s course information and teaching program and the
Legal Profession Admission Board’s syllabus. The syllabus is contained under the heading
“Prescribed Topics and Course Outline” and has been prepared in accordance with Rule 27H(a) of the
NSW Admission Board Rules 2015.
Course Description and Objectives
Lecturers
Assessment
March 2016 Examination
Lecture Program and Prescribed Topics
LEC Orientation
Essential Intensive Introductory Classes for all Legal Institutions Students
Weekend Schools 1 and 2
Legal Skills Workshops
Texts and Materials
Course Materials Reading Summary
Compulsory Assignments
Assignment Questions
Important Notice to Legal Institutions Students
Legal Institutions Course Outline
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1
1-2
3
3-4
5
5
6
6-7
7
8
8
9
9
10-31
1
LAW EXTENSION COMMITTEE
SUMMER 2015-16
01 LEGAL INSTITUTIONS
COURSE DESCRIPTION AND OBJECTIVES
This course emphasises the building of a core of legal knowledge to facilitate further study and a strong
set of legal skills to assist in the practical application of that knowledge.
The course will introduce students to the origins, history and present operation of the institutions which
make up the Australian legal system, to the sources of law, and to the Commonwealth and New South
Wales Constitutions. The matters which will be considered include the distribution of legislative powers
between the Commonwealth and the States; the executive powers of the Commonwealth and New
South Wales governments and the sources of those powers; the system of courts and tribunals
operating at Commonwealth and New South Wales levels; the relationship between the various legal
institutions; the theory and practice of precedent; the rules of statutory interpretation; the legal profession
and arbitration and alternative dispute resolution.
Students are given an opportunity to develop the skills necessary for successful completion of legal
studies, including legal essays and answering legal problems. This is done through a study of relevant
legislation and cases, class problems and class skills tasks, web tutorials and problems and the
completion of assignments.
LECTURERS
Mrs Susan Carter, BA (Hons), LLB (Hons) (Syd)
Susan is an experienced commercial solicitor who has worked in private practice, as in-house counsel,
and was seconded for a period of government service. Beginning her professional life with the Federal
Court, Susan has used her legal expertise both in practical commercial applications and in wider policy
issues. A national and international conference speaker, who has served on a number of boards
(including the Family Law Council of Australia), Susan is currently involved in legal education, having
taught at the University of Sydney before her current involvement with the LEC.
Professor Anita Stuhmcke, BA, LLB (Hons) (Macq), MJuris (Hons) (Syd), PhD (ANU)
Anita is a Professor who teaches law at the University of Technology, Sydney, Faculty of Law. She holds
a BA and LLB (Hons) from Macquarie University, a Master of Jurisprudence (Hons) from the University
of Sydney and a PhD from the Australian National University. Anita has published widely in the area of
health and administrative law and has a keen interest in the education of future legal practitioners.
ASSESSMENT
To be eligible to sit for the Board’s examinations, all students must complete the LEC teaching and
learning program, the first step of which is to ensure that you have registered online with the LEC in
each subject for which you have enrolled with the Board. This gives you access to the full range of
learning resources offered by the LEC.
To register with the LEC, go to www.sydney.edu.au/lec and click on the WEBCAMPUS link and follow
the instructions. Detailed guides to the Webcampus are contained in the material distributed by the
LEC, in the Course Information Handbook, and on the Webcampus.
2
Eligibility to Sit for Examinations
In accordance with the Legal Profession Admission Rules, the LEC must be satisfied with a student’s
performance in a subject in order for the student to be eligible to sit for the examination, conducted by
the Legal Profession Admission Board (LPAB). Assignments are used to assess eligibility.
Students are expected to achieve at least a pass mark of 50% in assignments to be eligible to sit for
examinations. However, a category of “deemed eligible” has been introduced to offer students whose
assignment mark is between 40-49% an opportunity to sit for the examination. In these circumstances
students are often advised not to sit. A mark below 40% means a student is not eligible to sit for the
examination.
Assignments as part of the Board’s Examinations
Assignment results contribute 20% to the final mark in each subject.
The Law Extension Committee (LEC) administers the setting and marking of assignments. The LEC
engages the LPAB’s examiners to assess or supervise the assessment of assignments.
Submission
Assignments must be received by 11:59pm on the due date unless an extension has been granted.
Extensions must be requested by email prior to the due date. Specific supporting evidence must be
provided. Assignments that are more than ten days late will not be accepted. Late assignments attract
a penalty of one mark out of 20, or 5% of the total marks available, per day.
Assessment
Assignments are assessed according to the “Assignment Grading and Assessment Criteria” outlined in
the Guide to the Presentation and Submission of Assignments. Prior to the examination, assignments
will be returned to students and results posted on students’ individual results pages of the LEC
Webcampus. Students are responsible for checking their results screen and ascertaining their eligibility
to sit for the examination.
Review
Where a student’s overall mark after the examination is between 40-49%, the student’s assignment in
that subject will be included in the Revising Examiner’s review. The final examination mark is determined
in accordance with this review. Assignment marks will not otherwise be reviewed.
3
MARCH 2016 EXAMINATION
Please note: all questions in relation to the March examination in Legal Institutions should be
directed to the Legal Profession Admission Board, not the Law Extension Committee or LEC
teachers. Information regarding permitted materials for the examination will appear on the Legal
Profession Admission Board’s website (http://www.lpab.justice.nsw.gov.au) before the exam.
Candidates will be expected to have a detailed knowledge of the following prescribed topics:
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Legal institutions: general considerations
Legal reasoning
English legal and constitutional history from 1066 to 1875
New South Wales and Commonwealth legal and constitutional history from 1788 to the present
The Commonwealth Parliament
The New South Wales Parliament
The Executive Government
The court system
Non-judicial tribunals
Arbitration and alternative dispute resolution
The legal profession
What is law?
Candidates will be expected to have made a study of the prescribed materials in relation to those topics,
and to have analysed the cases and statutory provisions referred to in the Legal Institutions Course
Outline. Candidates will also be expected to display an adequate grasp of the legal skills to which they
have been introduced in the course Legal Institutions.
Accordingly, candidates should expect a number of questions in legal problem format as well as essay
style questions. Candidates are also expected to be aware of the basic principles of grammar, spelling
and sentence construction.
LECTURE PROGRAM AND PRESCRIBED TOPICS
Evening lectures will be held on Wednesdays, on the main campus of the University of Sydney,
commencing 4 November 2015. All lectures begin at 6.00pm and finish at either 8.30pm or 9.00pm.
Additionally, ALL Legal Institutions students will be required to attend the Essential Intensive
Introductory Classes (7 November and 8 November 2015) and both Sunday mornings of the First
and Second Weekend Schools (Sunday 29 November 2015 and Sunday 31 January 2016). Topics
8 and 9 will be made available as on-line lectures for external students and this material will not
be covered at Weekend Schools. External students are encouraged to note the date and times
of these lectures and ensure that they are available on these evenings.
The venues for the lectures are set out in the lecture program overleaf. For details as to the location of
these venues, refer to page 53 of the Course Information Handbook for a map of the University of
Sydney main campus.
Please note that this program is a general guide. It may be varied according to need, including
adjustments for longer or shorter sessions. Please refer to the Reading Summary for each topic in the
Legal Institutions Course Outline.
Once you have registered online with the LEC, you will have access to all the facilities on the LEC
Webcampus including the Legal Institutions Course Outline by topic, plus any other materials that the
lecturer may make available to students. These materials can be found in the Course Materials section
of the LEC Webcampus.
4
WEEK
1
Intensive
Introductory
classes
Intensive
Introductory
Classes
Intensive
Introductory
Classes
2
3
4
First
Weekend
School
5
6
7
DATE
Wed.
4 Nov
Sat.
7 Nov
Sat.
7 Nov
Sun.
8 Nov
Wed.
11 Nov
Wed.
18 Nov
Wed.
25 Nov
Sun.
29 Nov
VENUE
ChLT1
TOPIC
Topic Three: Australian Legal Institutions
New LSLT 101
Topic One: An Introduction to Law and its Sources
New LSLT 101
Topic Two: Legal Research
New LSLT 101
Topic Five: Introduction to Legal Problem Solving
ChLT1
Topic Five: Legal Problem Solving: further considerations
ChLT1
Topic Four: The Legal Profession
ChLT1
Topic Seven: Statutory Interpretation
New LSLT 101
Topic Six: Legal Referencing; Study Skills
8am-noon
Wed.
2 Dec
Wed.
9 Dec
Wed.
16 Dec
ChLT1
Topic Seven: Statutory Interpretation; Problem Solving
ChLT1
Topic Eight: English Legal and Constitutional Foundations
ChLT1
Topic Nine: New South Wales and Commonwealth Legal and
Constitutional History
Study Break: Friday 18 December 2015 – Sunday 10 January 2016
8
9
10
Second
Weekend
School
11
12
13
Wed.
13 Jan
Wed.
20 Jan
Wed.
27 Jan
Sun.
31 Jan
New LSLT 101
Topic Ten: The Court System
New LSLT 101
Topic Eleven: Tribunals, Arbitration and Alternative Dispute
Resolution
New LSLT 101
Topic Thirteen: Commonwealth Parliament
New LSLT 101
Topic Twelve: Study/Summary and Exam Preparation Skills
New LSLT 101
Topic Fourteen: New South Wales Parliament
New LSLT 101
Topic Fifteen: Executive Government
New LSLT 101
Topic Sixteen: Legislative Process Review
8am-noon
Wed.
3 Feb
Wed.
10 Feb
Wed.
17 Feb
5
LEC ORIENTATION
An Orientation for new students, including Overseas Qualified Students, will be provided by the LEC
from 9am on Friday 6 November 2015 in the Eastern Avenue Auditorium (EAA) on the main campus of
the University. This Orientation will conclude at approximately 3.15pm. Please note that, from 12.15pm,
Overseas Qualified Students will follow a separate orientation program. The Orientation will conclude
at approximately 3.30pm.
The Orientation will provide you with an opportunity to understand the roles of the Legal Profession
Admission Board (LPAB) and the Law Extension Committee; the LEC will guide you through the
features of the Webcampus; the LEC Law Librarian will explain library resources; approaches to the
course by former and present students will be discussed and you will be able to meet other students. A
full program of the day can be accessed on the LEC Webcampus and was included in your Enrolment
Package.
ESSENTIAL INTENSIVE INTRODUCTORY CLASSES FOR ALL LEGAL
INSTITUTIONS STUDENTS
All students (both evening and external students) in Legal Institutions, whether for the first time or
returning, should attend on the weekend of 7 and 8 November 2015 in the New Law School Lecture
Theatre 101 (New LSLT 101) on the main campus. No material will be repeated at a later date.
A detailed program of the Essential Intensive Introductory Classes is below and was included in your
Enrolment Package. It is also available on the LEC Webcampus. Please make sure you have
downloaded the relevant material from the Webcampus, and bring along the cases, questions and
problem (from Topic 5) for discussion.
The classes to be held in Legal Institutions will be taught by Susan Carter and the LEC Law Librarian
Patrick O’Mara and are as follows:
Saturday 7 November 2015
Legal Institutions
TIME
TOPIC
9.00am –11.00am
Topic One: An Introduction to the Law and its Sources: Susan Carter
11.00am – 12noon
12noon – 3.00pm
Topic Two: Legal Research: Patrick O’Mara
Research Workshops; Study Group Formation; Case Reading Tasks and
Lunch Break.
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3.00pm – 5.00pm
During this extended break, students will be helped to form study groups and will
break for lunch.
Also, students who have registered with the LEC prior to the Essential Intensive
Introductory Classes will be allocated to one of the three computer research
workshops which will be run during this time.
Students will also be allocated to one of the two study skills classes which will be
run during this time.
Topic One: An Introduction to the Law and its Sources (continued)
Sunday 8 November 2015
Legal Institutions
TIME
9.30am – 12.30pm
TOPIC
Topic Five: Introduction to Legal Problem Solving: Susan Carter
12.30pm – 1.30pm
1.30pm – 4.30pm
Lunch Break
Topic Five: Introduction to Legal Problem Solving (continued)
6
WEEKEND SCHOOLS 1 AND 2
Classes in Legal Institutions are held at both Weekend School 1 and 2. The focus of these classes is
the external students except for the Sunday morning classes which should be attended by ALL Legal
Institutions students. Evening lecture students may attend on the understanding that weekend classes
aim to cover the topics covered in weekly lectures and are principally for the benefit of external students.
Please note that it may not be possible to cover the entire course at the weekend schools. Remember
that topics 8 and 9 will be made available on line as a webcast on the evening of the lecture, and
these topics will not be covered separately at the weekend schools.
The weekend schools are designed to deliver the lecture program for external students, and provide
them with an opportunity to ask questions and interact with other students. Attendance at the weekend
schools is voluntary, but external students are encouraged to attend. It is the best way for external
students to receive the LEC’s lecture program and the only way in which the lecture material is available
to them. It is envisaged that the following topics will be covered at the weekend schools:
First Weekend School
Second Weekend School
Friday 27 November 2015: 5.00pm – 9.00pm
Mereweather Lecture Theatre 2
Saturday 28 November 2015: noon – 4.00pm
New Law School Lecture Theatre 101 (New LSLT
101)
Friday 29 January 2016: 5.00pm – 9.00pm
New Law School Lecture Theatre 101 (New LSLT
101)
Saturday 30 January 2016: noon – 4.00pm
New Law School Lecture Theatre 101 (New LSLT
101)
Topics: 3, 4, 7 and refresh Topic 5
Topics: 10, 11, 13, 14, 15
ALL LEGAL INSTITUTIONS STUDENTS
Sunday 29 November 2015: 8.00am – noon
New Law School Lecture Theatre 101 (New LSLT
101)
Topic 6: Legal Referencing; Study Skills
ALL LEGAL INSTITUTIONS STUDENTS
Sunday 31 January 2016: 8.00am – noon
New Law School Lecture Theatre 101 (New LSLT
101)
Topic 12: Study/Summary and Exam
Preparation Skills
The key reading for each topic can be found under the “Reading Summary” in the Legal Institutions
Course Outline.
LEGAL SKILLS WORKSHOPS
Success in legal studies requires both the acquisition of knowledge and the development of the
necessary skills of problem solving and analysis. Students need to learn how to apply their legal
knowledge to a variety of novel factual situations – a proficiency which will be valuable in practice as
well as in their studies. Legal knowledge alone – without the skills to apply it – is not a sufficient
foundation for success in exams.
To assist students to become proficient in these areas, Legal Institutions has been deliberately
structured to introduce students to the necessary skills of legal problem solving. Through lectures,
class problems, research tasks and the assignments, students should begin to build the necessary base
of proficiencies which they will rely on throughout their studies.
As well, a package of self-guided tutorials is available on the Webcampus for students to work through
at their own pace. These tutorials focus on the acquisition of general study and exam skills; on skills
addressed in the Legal Institutions course; and on legal problems. Each set of tutorial questions has an
answer guide (which is best accessed after students have attempted the question) available to students
at any time.
7
Students with questions about the tutorial material or general questions about the development of legal
skills, approach to legal study or preparation for exams are welcome to contact the principal teacher in
Legal Institutions, Susan Carter, by email at any time at: s.carter@sydney.edu.au.
TEXTS AND MATERIALS
Course Materials (Available through LEC)
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Law Extension Committee, Legal Institutions Course Outline (from p.10 of this subject guide and
also available on the LEC Webcampus for download by topic)
The Course Outline refers you to the Course Materials which may be accessed electronically
through the University Library. If you have questions about accessing the case readings and other
materials, please contact the LEC Liaison Librarian.
Guide to the Presentation and Submission of Assignments (available on the LEC Webcampus)
Prescribed Text (Required reading for all students)
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Cook, Creyke et al, Laying Down the Law, 9th ed. LexisNexis, 2014.
Alexander Reilly, Gabrielle Appleby, Laura Grenfell, Australian Public Law, 2nd ed. Oxford
University Press, May 2014
Anita Stuhmcke, Legal Referencing, 4th ed. LexisNexis, Sydney, 2011
Students should also obtain a good Australian Legal Dictionary.
If they wish, students may purchase a three-book pack of Laying Down the Law (9th ed.), Legal
Referencing and LexisNexis Concise Australian Legal Dictionary, 5th ed. LexisNexis 2014, through the
Co-op Bookshop, Phillip Street Branch, at a special price, but these texts may also be purchased
individually.
Reference Materials (Additional reading which students may find useful)
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Vines Prue, Law & Justice in Australia, Oxford University Press, 2004
Farrar, Legal Reasoning, 1st ed. Thomson Reuters, 2010
Parkinson, Tradition and Change in Australian Law, 5th ed. Thomson Reuters, 2012
Carvan, Understanding the Australian Legal System, 7th ed. Thomson Reuters, 2014.
Macken & Dupuche, Law Essentials: Foundations in Australian Law, 1st ed. Thomson Reuters,
2011
Crawford, Australian Courts of Law, 4th ed. Oxford University Press, 2004
Lumb, Constitutions of the Australian States, 5th ed. University of Queensland Press, 1991
Moens and Trone, The Constitution of the Commonwealth of Australia: Annotated, 8th ed.
LexisNexis, 2011
Ellis, Principles & Practice of Australian Law, 3rd ed. Thomson Reuters, 2012
Gooley & Radan, Principles of Australian Contract Law, 3rd ed. LexisNexis, 2013
Gooley, Radan & Vickovich, Principles of Australian Contract Law, Cases and Materials, 3rd ed.
LexisNexis, 2013
Meehan & Tulloch, Butterworths Guides -Grammar for Lawyers, 3rd ed. LexisNexis, 2013
Bott & Talbot-Stokes, Nemes & Coss' Effective Legal Research, 5th ed. LexisNexis, 2012
Butt and Hamer, Concise Australian Legal Dictionary, 4th ed. LexisNexis, 2010
Hutchinson, Researching and Writing in Law, 3rd ed. Thomson Reuters, 2009
Milne and Tucker, A Practical Guide to Legal Research, Thomson Reuters, 2010
Dr Derek Soles, Perfect Grammar, Studymates Ltd, 2008
R L Trask, Penguin Guide to Punctuation, Penguin 1997
LEC Webcampus
Once you have registered online with the LEC, you will have full access to the Webcampus. Regularly
check the Course Materials and Legal Workshops sections on the LEC Webcampus for additional
materials, notes, assignment questions and for links to the Law Library and other relevant research
sites.
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COURSE MATERIALS READING SUMMARY
The prescribed readings for each topic are listed in the Law Extension Committee’s Legal Institutions
Course Outline and are available to be accessed electronically through the Library. Additional
prescribed readings may be posted in the Legal Institutions Course Materials section on the
Webcampus during the course of the session. It is your responsibility to regularly check the Legal
Institutions Course Materials section for updates on readings and other relevant issues that arise.
COMPULSORY ASSIGNMENTS
There are two compulsory assignments in Legal Institutions. The first assignment is for practice
and feedback. Comments will be provided, but no marks assigned other than “satisfactory” or
“unsatisfactory”. The second assignment will be marked. Assignments must be submitted by
the due dates. Students who fail to satisfy the compulsory requirement (that is, submit two
satisfactory assignments) will be notified through the Results screen on the Webcampus before
the examination period of their ineligibility to sit the examination in this subject. The maximum
word limit for each assignment is advised on the front page of each assignment and is calculated
inclusive of all footnotes but not bibliography. Penalties apply for exceeding the stated limit by
10% or more.
The rules regarding the presentation of assignments and instructions on how to submit assignments
are set out in the LEC Guide to the Presentation and Submission of Assignments which can be
accessed on the LEC Webcampus. Please read this guide carefully before completing and submitting
an assignment.
Completed assignments should be lodged through the LEC Webcampus, arriving by 11:59pm on the
following dates:
Assignment 1 – Feedback only
Sunday 13 December 2015
Assignment 2 – 20 Marks
Sunday 17 January 2016
To be eligible to sit the examination, you must:
a) submit both assignments by the due dates, and
b) demonstrate a sufficient command of the lecture material. This will most usually be
demonstrated by achieving satisfactory feedback in the first assignment and a pass
mark in the second assignment. In extraordinary cases it may also be demonstrated
by a significant improvement from the first to the second assignment.
The markers will attempt to mark the assignments as quickly as possible. However, please note that
our markers are busy practitioners or academics. Do not wait for the return of one assignment before
commencing the next assignment.
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ASSIGNMENT QUESTIONS
To obtain the Legal Institutions assignment questions for the Summer Session 2015-16, please
follow the instructions below:
1.
Register online with the LEC (see page 27 of the Course Information Handbook for detailed
instructions). Once you have registered, you will have full access to all the facilities on the LEC
Webcampus.
2.
Then go into the Webcampus, select the Course Materials section and click on the link to the
assignment questions for this subject.
IMPORTANT NOTICE TO LEGAL INSTITUTIONS STUDENTS
Students enrolled in Legal Institutions for the Summer 2015-16 Session should attend lectures
as follows:
Orientation Day: Friday 6 November 2015: ALL new students should attend.
Essential Intensive Introductory Classes for all Legal Institutions Students: Saturday
7 November and Sunday 8 November 2015: ALL Legal Institutions students should attend.
This material will not be covered in evening lectures. As we hope to provide students with
research instruction in web-based computer labs, it is vital that Legal Institutions students have
registered with the LEC prior to the Essential Intensive Introductory Classes so that they may
be placed in a seminar session. Numbers are limited and registrations will NOT be available
on the day.
Evening Lectures: ALL evening lecture Legal Institutions students should attend lectures
which commence Wednesday 4 November 2015. (Note: ALL Legal Institutions students
should attend the Sunday morning session of each Weekend School which is scheduled for
Sunday 29 November 2015 at 8.00am – noon in New LSLT 101 and Sunday 31 January 2016
at 8.00am – noon in New LSLT 101.) Refer to pages 3 and 4 in this Subject Guide for the
Legal Institutions Evening Lecture Timetable.
External students: should note the details of the two webcast lectures. This material
will not be covered at weekend schools.
Once you have registered online with the LEC, you will have access to all the facilities on the
LEC Webcampus including the Legal Institutions Course Outline by topic, plus any other
materials that the lecturer may make available to students. These materials can be found in
the Course Materials section of the LEC Webcampus.
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LEGAL INSTITUTIONS COURSE OUTLINE
TOPIC 1
AN INTRODUCTION TO THE LAW AND ITS SOURCES
An introduction to what we mean by “law” and the building blocks on which the legal system
in Australia is based: common law and statute. How do we find and use “the law”?
Materials
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Cook, Creyke et al, Chapter 1
Gleeson, “The Role of a Judge in a Representative Democracy” speech given to the
Judiciary of the Commonwealth of the Bahamas, 4 January 2008. This, and other articles
referred to in Materials throughout the study guide, is available electronically through the
Library. A number of important case extracts are also available electronically through the
Library.
Ratnapala, “What is Law?”, in Corkery, A Career in Law, 2nd ed. Federation Press,
1989
Australian Public Law, pp 9-11
Initial Reading
Please download the Topic 1 materials available on the LEC Webcampus and make sure you
are familiar with them prior to the introductory weekend. However, in subsequent topics, you
will need to use your legal research skills to locate many of the materials yourself.
Pepper Finance Corporation Ltd v Williams [2008] NSWSC 4
Merritt v Merritt [1970] 2 All ER 760
Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163
1.1
Difference between law and policy/law and opinion
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1.2
Statute law
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1.3
Law as a technical exercise, requiring precise knowledge
Importance of always substantiating argument with legal sources
Distinction between law and policy and law and opinion
Pepper Finance Corporation Ltd v Williams [2008] NSWSC 4
Importance of statutes
Parts of a statute
Reading simple statutes
How to cite and use statutes as authority
Case law
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Case law is common law
Parts of a case
How to read a case
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o
o
o
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o
o
1.4
Distinguishing fact from law
Distinguishing ratio from obiter
Case reading review
Thornton v Shoe Lane Parking [1971] 2 QB 163 - example of setting aside
previous ratio and development of new ratio
need to generalise ratio
writing case notes
The scope of jurisprudence - or what is meant by “law”?
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A brief introduction to four major theories of law:
o Natural law
o Positivism
o Common law
o Legal realism
TOPIC 2
LEGAL RESEARCH
An introduction to legal research skills delivered in conjunction with Patrick O'Mara, the law
librarian.
Materials
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2.1
Library: Introduction to Legal Research for LPAB Students
Cook, Creyke et al, Part 4
Nemes and Coss’ Effective Legal Research / Bruce Bott, Jill Cowley and Lynette
Falconer. Sydney: LexisNexis Butterworths, c2007. 3rd ed. Held Law Short Loan
340.072 17 B
Review of research skills
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2.2
Overview of research skills and tools
Difference between collaborative learning and plagiarism
Importance of footnoting, bibliography etc. and academic conventions with
respect to referencing
Practical research skills
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Introduction to computer-based researching, in small group computer lab
sessions
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TOPIC 3
AUSTRALIAN LEGAL INSTITUTIONS
A brief overview of the three major legal institutions or arms of government, both at a
Federal level and in the context of New South Wales.
Materials
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3.1
Australian Public Law, pp 20-25
Overview of legal institutions in New South Wales
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3.2
Australia's legal heritage and implications of federation
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3.3
Introduction to concept of separation of powers
Parliament
o Upper House, Lower House and Crown
o Extent of legislative power
Executive Government
o Entities that comprise the executive
Courts
o State and Federal hierarchies
Derivation of the Australian legal system
Legal consequences of federation
Division of powers
The nature and sources of constitutional law
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What is a constitution?
Nature of the Australian and New South Wales constitutions
Comparison with unwritten constitution of the United Kingdom
Different focus of different constitutional documents (e.g. why a Bill of Rights in
US Constitution, but not in Australian Constitution)
TOPIC 4
THE LEGAL PROFESSION
This topic provides an introduction to the legal profession. The concept of a profession is
central to any understanding of the work and duties of a legal professional.
The legal profession is composed of barristers, solicitors and members of the judiciary.
Materials
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Justice Debelle, “Judicial Independence and the Rule of Law” (2001) 75 ALJ 556
The Hon Sir Gerard Brennan, “The State of the Judicature” (1998) 72 ALJ 33
The Hon Sir Gerard Brennan, “Profession or Service Industry: the choice”
Opening address Australian Bar Association Conference San Francisco 18-21
August 1996
The Hon Sir Gerard Brennan, “Judicial Independence” The Australian Judicial
Conference Canberra 2 November 1996
Laying Down the Law, Chapter 5
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4.1
Judiciary
4.2
Legal Practitioners
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Obligations of a professional
Rule of law and responsibilities of a legal practitioner
Requirement of good fame and conduct
TOPIC 5
INTRODUCTION TO LEGAL PROBLEM SOLVING
An introduction to different ways of classifying the law, and solving legal problems.
Materials
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Class problem
State Government Insurance Commission v Trigwell (1979) 142 CLR 617 (Selected
extracts, available via Library E Reserve)
Further Reading
Radan, Gooley & Vickovich, Principles of Australian Contract Law, 3rd ed. LexisNexis, 2013
Radan, Gooley & Vickovich, Principles of Australian Contract Law, Cases and Materials, 3rd
ed. LexisNexis, 2014
5.1
Classifications of law: private, public and commercial law





5.2
Overview of problem question


5.3
Public law: criminal law, constitutional law, administrative law, evidence, practice
and procedure etc.
Private law: tort, contract, real property etc.
Commercial law: commercial transactions, law of associations etc.
National law and international law
The common law
o and civil law
o and statute
o and equity
Class discussion of types of legal issues raised by problem, and where we may
look to find the relevant law to address these problems
Class discussion: determine issues of law and issues of fact to be resolved
Overview of problem-solving methodology



IRAC
Discussion of “issue”, “application” and “advise”
Importance of integrated discussion
14

5.4
Using case law: Extended overview of contract law




5.5
Private law, based in case law
How do we know when a contract exists?
How do we know what is in a contract?
Introduction to problem solving using case law
Using Statutes: Introduction to Competition and Consumer Law







5.6
Case reading exercise (e.g. Mason J in SGIC v Trigwell) to demonstrate how
judges use this methodology when they are answering legal problems in cases
Example of public law, heavily based in statute, but with important role of judicial
interpretation of statute
Overview of Competition and Consumer Act 2010 (NSW)
Consumer Guarantees – ss54, 55 Australian Consumer Law
Interaction of statutes with case law
‘Old’ cases and ‘new’ law
Example of co-operative solution to constitutional limitations
Sources of legal rights – contract (private) and legislation (public)
Revisit problem question




Isolate all relevant issues
Identify relevant law
Apply law to the facts
Reach a conclusion
INSTRUCTIONS RECEIVED IN CONFERENCE FROM
MAVIS STEWART: New client
Mavis Stewart attended our office today with her daughter Kylie Berg and a coffee cake, baked
that morning. Ms Stewart is a keen cook and has a number of problems arising from a recent
kitchen renovation, in respect of which she seeks our advice.
The kitchen renovation included new flooring. Mavis was particularly interested in flooring as
she had difficulties keeping her slate tiles clean. She searched for low maintenance flooring
and after extensive shopping decided on single sheet vinyl flooring. She saw just the thing at
Discount Lino Barn, close to Kylie's home. Kylie indicated that she didn't share her mother's
preference for vinyl flooring as it was cold underfoot and she had suggested kitchen carpet.
Kylie and Mavis spoke to Mike at Discount Lino Barn who suggested under-floor heating could
address Kylie's temperature issues.
Kylie provided details of the under floor heating options while her mother left the conference
room to offer slices of her coffee cake to the other staff. Kylie also advised that her mother
was having problems with Whitegoods World from which she had bought her fridge. Kylie
advised that her mother required a “French Door” fridge with freezer drawers underneath to
accommodate the large baking trays she used for her cakes. She had ordered the fridge she
needed from Whitegoods World but had experienced delivery problems.
Mavis returned to the conference room. She advised that she had had to make a large coffee
cake that morning, even though her preference would have been to make cup-cakes. In fact,
one of her legal problems was her cup-cake oven. Cake Cookers is a specialist retailer which
sells products designed for those who like to cook cakes. It retails a number of specialist pans
and other baking utensils - many imported from America and not readily available in Australia
15
- as well as a special range of cake ovens. They are located in Broome, and Mavis lives in
Sydney, but Cake Cookers sells throughout Australia by catalogue. Mavis wanted a special
cake oven in her new kitchen. She saw an oven that looked perfect for her in their catalogue
- the picture showed 8 slide out patty pan trays instead of oven trays - exactly what she wanted.
She rang the store and spoke to Cathy. She told Cathy all about her cupcakes, her favourite
recipes, and her interest in the patty pan oven in their catalogue. Cathy told her that the patty
pan oven had eight slide out patty pan holders instead of oven racks, and that each patty pan
holder would take one dozen patty pans. Even better, they came with self-cleaning silicone
inserts. Mavis was delighted about the self-cleaning but concerned that each tray would only
take one dozen patty pans. Although after discussion with Cathy, she was convinced that the
overall capacity of the oven was appropriate, and so she placed an order.
Her oven purchase was much more successful than her fridge which, on the very day it was
due to be delivered - not only did not arrive, but the shop called her to advise that delivery was
delayed for one month. Mavis said to the shop keeper: “Well that's no good to me. I ordered
that fridge for today. I need that fridge today. I told you when I ordered the fridge that I needed
it to be delivered today. The only reason I ordered from you was that you told me I could have
it today. If you can't give it to me today, you can just keep your fridge!! I don't want it anymore.”
Mavis then rang Quick Fridge and ordered and received another fridge that afternoon, suitable
for her requirements. However, one month later, Whitegoods World delivered the fridge
originally ordered, and demanded payment. Mavis refused to accept the fridge or to pay, and
advised them that the order had been cancelled. Whitegoods World is threatening to sue
Mavis for the price of the fridge - $5,500.
As well, Mavis is being threatened with legal action by Chrissie Saranrap. Chrissie was
married a month ago and was expecting Mavis to produce her specialty - the “nouveau
doveau” - a tiered tower of cupcakes, iced in white and arranged to resemble the wings of
doves - as the centrepiece cake for her wedding reception. Mavis loves doing cakes for
weddings; in fact she now makes more money from doing wedding cakes than she does from
her regular cooking classes.
Chrissie read information about Mavis' cake services in an article in the local paper, and called
round to see Mavis, and look at the different cakes she could make. They discussed
possibilities and pricing and Chrissie left with a price list. Apparently, Chrissie called and left
Mavis a message on the answering machine ordering the “nouveau doveau” for her wedding,
to be delivered on 2nd May at the wedding reception, for $2,000 COD. In her message, Chrissie
had said: “If I don't hear to the contrary, I'll assume everything is OK. Call me if there is a
problem - otherwise I will see you on the 2nd. Looking forward to your lovely creation.”
Unfortunately, because of all the work being done to the kitchen and problems with electrical
supply, Mavis had experienced a number of black outs which had interrupted her answering
machine. Mavis did not receive the message from Chrissie, and so of course, had not provided
the cake. Chrissie is very angry and claims her wedding was ruined without the cake. She has
threatened to sue Mavis.
Mavis advised that even if she had known about the cake order she would have had difficulty
fulfilling it because of problems with her newly installed cake oven. When the oven arrived she
saw that instead of Australian sized delicate patty pan holders, the cake trays were large
American size muffin holders. This is not what Mavis wanted at all. Mavis rang Cathy and told
her that the oven was not suitable for the cakes in which she specialised. Cathy said that she
was sorry that Mavis was disappointed, but advised that there was nothing they could do about
it now. Mavis wants to know if she still has to pay the $8,000 for the special cake oven.
She is also angry about the flooring she has had installed. Despite Kylie's protests she went
ahead with the single sheet vinyl, and did not have under floor heating installed. The vinyl,
16
while easier to clean than the slate, is marking and scuffing badly however. She has only had
it down 6 months, and already there are a number of wear marks. Her cupcake classes - which
she runs 5 times a week and more often in the school holidays - are now so popular that she
has at least 20 students per class. Because of her renovations she has room for them all
around her lovely new island bench, but the vinyl around the island bench almost looks like a
race track. It is as if her students have worn a path around the bench - and in only 6 months.
The vinyl was quite expensive - as she had heavy grade domestic installed - so Mavis is very
unhappy. She hasn't yet paid the bill for the vinyl as she has been arguing with the company.
They are, according to Mavis, now getting nasty, and want their $45,000 immediately. Advise
Mavis.
TOPIC 6
LEGAL REFERENCING
Legal referencing is a critical skill. In this topic we will review how to provide adequate
references and citations – and revise the difference between referencing and plagiarism.
Materials
Stuhmcke, Chapters 1, 3, 4, 5, 6 and 7.
Referencing primary materials: Stuhmcke, Chapters 6 & 7
Referencing secondary materials: Stuhmcke, Chapters 8, 9, 10, 11 and 12
6.1 Legal referencing
6.2 Using referencing to communicate effectively




Using referencing to improve legal writing
Knowing when to reference material
Appreciating your contribution to the discipline of law
Ask, check, use …tips for writing well and avoiding plagiarism
6.3 Citation style


Different citation styles
Citation of primary and secondary materials
6.4 Citation in legal writing



Citation in essays, problem questions and exams
Citation in other forms of legal assessment
When do I use case lists, tables of statutes and a bibliography?
17
TOPIC 7
STATUTORY INTERPRETATION
Legislation forms an increasingly important source of our law. The rules of statutory
interpretation govern how to read and interpret legislation. As Gifford & Gifford have noted,
legislation is not something that can be read like a book:
“[This] is because over the years the law has developed special rules that govern the
reading of the Act of Parliament. Every Act of Parliament must be read in the light of
those rules, and the person who attempts to read an Act of Parliament without a
working knowledge of the more important rules of interpretation may fall into error”
(Preface pp v-vi)
The courts play an important role in statutory interpretation, and so it is important to
understand the doctrine of precedent, which has been described as the accepted intellectual
framework within which judges are expected to reason. In its simplest form it means that a
question should be decided in a certain way today because a similar question was so decided
yesterday. However, there are a number of rules which make up the doctrine of precedent
and you need to know these to fully understand how the doctrine is applied.
Materials

Cook, Creyke et al, Chapter 6 and Part 3 – focus on Chapters 10, 11 and 12
Legislation


Acts Interpretation Act 1901 (Cth) ss 15AA, 15AB
Interpretation Act 1987 (NSW) ss 33, 34
7.1
Interpretation of legislation
7.1.1
Importance of interpretation of legislation
7.1.2
Approaches to interpretation of legislation





7.1.3
Statutory approach
o s 15AA Acts Interpretation Act 1901 (Cth)
o s 33 Interpretation Act 1987 (NSW)
o Mills v Meeking (1990) 169 CLR 214
Common law approaches:
o Literal
o Golden
o Purposive
Use of extrinsic materials
Common law
Statute
o s 15AB Acts Interpretation Act 1901 (Cth)
o s 34 Interpretation Act 1987 (NSW)
Specific rules/canons of construction

Maxims of interpretation:
18
Noscitur a sociis – the meaning of a word or phrase is derived from its context
Ejusdem generis – where words of a particular meaning are followed by
words of a general meaning, the general words are limited to the same kind
as the particular words
Presumptions of interpretation
o
o

7.1.4
Judicial interpretation of statutes
7.2
Doctrine of precedent
7.2.1
Development and purpose of doctrine


7.2.2
Rules of precedent







7.3
Stare decisis
Hierarchical structure of courts
Each court is bound by the decisions of higher courts in the same judicial
hierarchy
The highest court in a judicial hierarchy can overrule its previous decisions
A judge does not have to follow the decisions of other judges at the same level in
the same judicial hierarchy
A decision of a court in a different hierarchy may be of considerable weight but
will not be binding
Only the ratio decidendi (the judge’s decision on the material facts) of a case is
considered binding
Obiter dicta, although not binding, may be very persuasive
Precedents are not necessarily abrogated by lapse of time – e.g. Pinnel’s case
(1602) 5 Co Rep 117
Statutory interpretation problems
Problems in text
7.3.1
Long problem question
Early in 1995, Australia participated in an international conference which drew up the
Convention on Piracy. The Convention created offences relating to the robbery of ships and
boats in national and international waters.
A Prevention of Piracy Bill is introduced into the House of Representatives and, in the course
of the second reading speech to the Bill, the Minister states as follows:
“The Prevention of Piracy Bill will apply to pirates who cannot at present be reached
by existing law."
The Commonwealth Parliament subsequently enacts the Prevention of Piracy Act 1996
("Act"), the long title of which is "An Act to deal with robbery of ships and boats in national
and international waters." The Act receives the Royal Assent on 1 July 1996.
19
The Act includes the following provisions:
Possession of weapons on ships
4. Any person (other than an officer or crew member or a ship protection officer) who
possesses on board any ship, boat, ferry or any other transport whatsoever, any
firearm, ammunition, weapon or explosive substance, shall be guilty of an offence
punishable by 7 years' imprisonment.
Diversion of Ship
5. Any person who causes to be diverted or attempts to cause to be diverted a ship
from its scheduled course shall be guilty of an offence punishable by life imprisonment.
Obligation to issue licences
6. If any person applies to become a ship protection officer, the Registrar of Ship
Protection Officers, if satisfied that the applicant is a fit and proper person to be a ship
protection officer, may issue the applicant with a ship protection officer's licence.
Appointment of Registrar of Ship Protection Officers
7. (1) A Registrar of Ship Protection Officers shall be appointed by the GovernorGeneral.
(2) A person appointed under sub-section (1) shall hold office for such period as is
specified in the instrument of appointment.
On 30 July 1996, Howard, who is an amateur spearfisherman, is a passenger on a train which
is stopped by Federal Police at Bowral, New South Wales. He is found to have a spear gun in
his possession.
On 5 August 1996, a container ship is diverted from its scheduled course between Melbourne
and Brisbane by a storm and radio contact with the land is lost. Before the captain can resume
radio contact, Patricia, a cabin girl, unsuccessfully attempts to force the captain to steer the
ship into Sydney Harbour.
Howard is charged with an offence under s 4 of the Act and Patricia with an offence under s
5.
Assuming the Act is within the constitutional power of the Commonwealth, using the
relevant rules of statutory interpretation, advise Howard and Patricia on all the legal
issues involved.
Acts Interpretation Act 1901 (Cth)
15AA Regard to be had to purpose or object of Act
(1) 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.
20
15AB Use of extrinsic material in the interpretation of an Act
(1) Subject to subsection (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 subsection (1), the material that may be considered in
accordance with that subsection 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
subsection (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.
21
Interpretation Act 1987 (NSW)
33 Regard to be had to purposes or objects of Acts and statutory rules
In the interpretation of a provision of an Act or statutory rule, a construction that would
promote the purpose or object underlying the Act or statutory rule (whether or not that
purpose or object is expressly stated in the Act or statutory rule or, in the case of a
statutory rule, in the Act under which the rule was made) shall be preferred to a
construction that would not promote that purpose or object.
34 Use of extrinsic material in the interpretation of Acts and statutory rules
(1) In the interpretation of a provision of an Act or statutory rule, if any material not
forming part of the Act or statutory rule 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 or statutory rule and the purpose or object underlying the Act
or statutory rule and, in the case of a statutory rule, the purpose or object
underlying the Act under which the rule was made), or
(b)
to determine the meaning of the provision:
(i)
if the provision is ambiguous or obscure, or
(ii)
if the ordinary meaning conveyed by the text of the
provision (taking into account its context in the Act or
statutory rule and the purpose or object underlying the
Act or statutory rule and, in the case of a statutory rule,
the purpose or object underlying the Act under which the
rule was made) leads to a result that is manifestly absurd
or is unreasonable.
(2) Without limiting the effect of subsection (1), the material that may be considered in
the interpretation of a provision of an Act, or a statutory rule made under the 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 Parliament before the provision was enacted or made,
(c)
any relevant report of a committee of Parliament or of either House of
Parliament before the provision was enacted or made,
(d)
any treaty or other international agreement that is referred to in the Act,
(e)
any explanatory note or memorandum relating to the Bill for the Act,
or any other relevant document, that was laid before, or furnished to the
members of, either House of Parliament by a Minister or other member
of Parliament introducing the Bill before the provision was enacted or
made,
(f)
the speech made to a House of Parliament by a Minister or other
member of Parliament on the occasion of the moving by that Minister
or member of a motion that the Bill for the Act be read a second time
in that House,
(g)
any document (whether or not a document to which a preceding
22
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 Minutes of Proceedings or the Votes and
Proceedings of either House of Parliament or in any official record of
debates in Parliament or either House of Parliament.
(3) In determining whether consideration should be given to any material, or in
considering the weight to be given to any material, regard shall be had, in addition to
any other relevant matters, to:
TOPIC 8
(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 or statutory rule and the purpose or object underlying the Act
or statutory rule and, in the case of a statutory rule, the purpose or object
underlying the Act under which the rule was made), and
(b)
the need to avoid prolonging legal or other proceedings without
compensating advantage.
ENGLISH LEGAL AND CONSTITUTIONAL FOUNDATIONS
The Australian legal system derived its legal institutions, as well as much of its substantive
law – especially the common law – from England. An understanding of the origins and
development of English legal institutions and English law is necessary to properly understand
the nature and operation of Australian legal institutions and law.
Materials



Cook, Creyke et al, Chapter 2
Appleby, Reilly et al, pp 38-42
“David Starkey's Magna Carta” available at the following link:
http://www.dailymotion.com/video/x2gd5t0
8.1 Development of the common law and the three principal common law courts of
England






Law in England prior to 1066
Norman conquest and the beginnings of the common law in England
Foundation of stare decisis – principle that like cases should be treated alike
Formalisation of legal structures – King’s Court or curia regis; Justices in Eyre
and Justices of Assize
Development of the common law courts
o Common pleas
o The Exchequer
o King’s Bench
Development of the writ system; The Provisions of Oxford
8.2 Development of Equity and the Court of Chancery


Growth of deficiencies and inadequacies in the common law courts
Complaints of injustice delivered by the common law courts
23



Discretionary power of the Chancellor
Equitable maxims
Disputes between equity and the common law
8.3 Nineteenth century reforms in England



Common form of writ
Simplification of court procedures in common law and equity
o Uniformity of Process Act 1832
o Common Law Procedure Act 1852
o Chancery Procedure Act 1852
Judicature Acts (1873 and 1875):
o Merging of common law courts and Court of Chancery into Supreme
Court of Judicature
 High Court (five divisions)
 Queen’s Bench
 Common Pleas
 Exchequer
 Chancery
 Probate, Divorce and Admiralty
 Court of Appeal
o Single set of rules and procedures for all courts
o Rules of common law and equity able to be applied in all courts
8.4 Implications for New South Wales of English developments

Supreme Court Act 1970 (NSW)
8.5 Origins and development of the United Kingdom Parliament


Foundations of English constitutionalism
o Magna Carta
o Reformation
 Reformation Parliament (1529 – 1536)
 The Act in Restraint of Appeals to Rome and The Act of
Supremacy
o English Civil War
 “Divine Right of Kings”
 Chief Justice Coke
 The Triennial Act 1641
 Act to Continue the Existing Parliament 1641
o Glorious Revolution
o Bill of Rights 1689
o Act of Settlement 1701
Parliamentary power “plenary” and “unlimited”
24
TOPIC 9
NEW
SOUTH
WALES
AND
COMMONWEALTH
LEGAL
CONSTITUTIONAL HISTORY FROM 1788 TO THE PRESENT
AND
In this topic we continue our examination of how the legal institutions in place in Australia
today were shaped by historical developments, in England as well as in the developing colony
of New South Wales, which was, at Federation, to become a State in the new Commonwealth
of Australia.
Materials



9.1
Cook, Creyke et al, Chapter 3
Appleby, Reilly et al, pp 32-38; 43-59
Mabo v State of Queensland (No 2) (1992) 175 CLR 14 – highlighted extracts
Manner of derivation of law from England





9.2
Conquest
Session
Settlement
Blackstone’s commentaries
Cooper v Stuart [1889] 14 AC 286
Extent of English law received upon settlement


State Government Insurance Commission v Trigwell (1979) 142 CLR 617
Imperial Acts Application Act (1969) NSW
9.3
Establishment and structure of courts
9.4
Legislative power








9.5
Effect of Federation


9.6
New South Wales Act 1823 (Imp)
Australian Courts Act 1828 (Imp)
Australian Constitutions Act (No 1) 1842 (Imp)
Australian Constitutions Act (No 2) 1850 (Imp)
NSW Constitution Act 1855 (Imp)
NSW Constitution Act 1855 (Imp)
Colonial Laws Validity Act 1865 (Imp)
Phillips v Eyre [1870] LR 6QB 1
Commonwealth of Australia Constitution Act 1900 (Imp)
Constitution Act 1902 (NSW) s5
Evolving colonial/imperial relationship


Statute of Westminster 1931 (Imp) (as adopted)
Australia Act 1986 (Imp)
25
9.7
Present status of terra nullius

Mabo v State of Queensland (No 2) (1992) 175 CLR 14
TOPIC 10
THE COURT SYSTEM
The courts have an important role to play in the Australian system of government because
they resolve disputes and in the course of resolving disputes they develop the law. In this
topic, we examine judicial power and the doctrine of separation of powers, the Commonwealth
or Federal Courts and the main courts in New South Wales.
Materials

Reilly et al, Chapters 8 and 9
Legislation

Cth Constitution ss 71-77
Further reading
R v Kirby: ex parte Boilermakers Society of Australia (Boilermakers Case) (1956) 94 CLR 254
10.1
Judicial power and the doctrine of separation of powers


10.2
Commonwealth courts




10.3
High Court of Australia
Federal Court of Australia
Family Court of Australia
Federal Magistrates Court of Australia
New South Wales courts





10.4
Judicial power of the Commonwealth
Separation of powers doctrine
Supreme Court of New South Wales
District Court of New South Wales
Local Courts
Land and Environment Court
Industrial Relations Commission
Cross-vesting scheme
26
TOPIC 11
TRIBUNALS, ARBITRATION AND ADR
There are many Commonwealth and New South Wales bodies which are not necessarily
bound by the procedural and evidentiary criteria traditionally associated with courts yet often
carry out a function similar to that which is traditionally performed by the courts. In this topic
we examine a selection of these non-judicial tribunals.
Arbitration has been an “alternative” to litigation for much longer in our history than the options
presented by the alternative dispute resolution movement. We examine each briefly, looking
at the reasons for their development, the advantages which they have over traditional court
processes and their possible dangers and disadvantages, as well as the overall implications
for management of disputes.
Materials
Further reading
Attorney-General’s Department, A Strategic Framework for Access to Justice in the Federal
Civil Justice System, September 2009
http://www.ag.gov.au/a2j
Collaborative Law in Australia, Collaborative Law in Australia
http://www.collaborativelaw.asn.au
11.1
Commonwealth non-judicial tribunals
11.2
New South Wales non-judicial tribunals
11.3
Arbitration
TOPIC 12
STUDY/SUMMARY AND EXAM PREPARATION SKILLS
A brief overview of study skills, preparation for open book exams and introduction to summary
preparation techniques.
12.1
Preparation for open book exams
12.2
Preparation of summaries

Class summary preparation exercise
27
TOPIC 13
COMMONWEALTH PARLIAMENT
In this topic, we will examine the Commonwealth Parliament which is the National Parliament
and one of the parliaments affecting New South Wales. We will look at the structure of the
Commonwealth Parliament, the relationship between the Houses constituting the
Commonwealth Parliament and the legislative powers given to the Commonwealth
Parliament. A number of aspects of the Commonwealth Parliament’s legislative powers will
be considered including the Commonwealth Constitution’s division of law-making power
between the Commonwealth Parliament and the State Parliaments and the manner in which
conflicts between Commonwealth and State legislation are resolved. We will also look at
some of the ways (but not all of the ways) in which the Commonwealth Parliament has been
able to control States’ areas of power and at some of the so-called Constitutional guarantees
(rights and freedoms) contained in the Constitution.
Materials

Reilly et al, Chapters 4 and 5
Legislation

The Commonwealth Constitution
Cases (extracts only)
Western Australia v The Commonwealth (First Territorial Senators Case) (1975) 134 CLR 201
Queensland v The Commonwealth (Second Territorial Senators Case) (1977) 139 CLR 585
Amalgamated Society of Engineers v Adelaide Steamship Co (Engineers’ Case) (1920) 28
CLR 129
Viskauskas v Niland (1983) 153 CLR 280
University of Wollongong v Metwally (1984) 158 CLR 447
The Commonwealth v Tasmania (Tasmanian Dam Case) (1983) 158 CLR 1
13.1

Description
Constitution s 1
13.2
Structure
13.2.1 Queen and Governor-General
Constitution ss 1, 2, 58, 59, 74


Role and powers of the Queen in the Constitution
Discretionary powers of the Governor-General
13.2.2 Senate
Constitution ss 7, 13
Western Australia v The Commonwealth (First Territorial Senators Case) (1975) 134 CLR 201
Queensland v The Commonwealth (Second Territorial Senators Case) (1977) 139 CLR 585
28



Composition of the Senate and election of senators
Terms of office
Provision for senators to be elected from the Territories
13.2.3 House of Representatives
Constitution ss 24, 27, 28


13.3
Composition of the House of Representatives and election of members
The House to be as near as practicable twice the size in number as the
Senate
Legislative powers
13.3.1 Enumerated specific powers
Constitution ss 51-60

Law-making provisions in the Constitution
13.3.2 Exclusive and concurrent powers
Constitution ss 106-109
 Difference between exclusive and concurrent powers
 Ways in which the Constitution makes powers exclusive to the
Commonwealth Parliament
13.3.3 Inconsistency of Commonwealth and State legislation
Constitution s 109
Viskauskas v Niland (1983) 153 CLR 280
University of Wollongong v Metwally (1984) 158 CLR 447


The function of s 109
o Confirms the legislative supremacy of the Federal Parliament over the State
Parliaments with respect to concurrent powers
o Eliminates conflicts of law that may arise between State and Federal laws
operating in the same field
o Allows the Commonwealth to determine whether it might allow State laws to
operate in areas that might otherwise be the subject of Federal laws
o “laws” in s 109 refer to Acts of State or Federal Parliament
Tests of inconsistency applied by the High Court:
o “cover the field” – A Federal law evinces an express or implied intention to
provide an exhaustive statement over the relevant subject matter
o direct inconsistency:
 where it is impossible to simultaneously obey both State and
Federal law
 where one law takes away a right or privilege conferred by another
29
13.3.4 Commonwealth control of States’ areas of powers
Constitution ss 51(xxix), 96, 109
Amalgamated Society of Engineers v Adelaide Steamship Co (Engineers’ Case) (1920) 28
CLR 129
Victoria v The Commonwealth (Federal Roads Case) (1926) 38 CLR 399
A-G (Vic) (ex rel Black) v The Commonwealth (DOGS Case) (1981) 146 CLR 559
The Commonwealth v Tasmania (Tasmanian Dam Case) (1983) 158 CLR 1





New South Wales v Commonwealth [2006] HCA 52
Early narrow view of Commonwealth powers in relation to States powers
Effect of the Engineers’ Case
Use of s 96 & s 109 in widening the scope of Commonwealth power
External affairs power (s 51(xxix))
13.3.5 Constitutional amendments
Constitution s 128
TOPIC 14
THE NEW SOUTH WALES PARLIAMENT
In topic 10 we examined the Commonwealth Parliament as one parliament affecting New
South Wales. In this topic, we will examine the other parliament affecting New South Wales,
the New South Wales Parliament, and, in a similar way to the way in which we looked at the
Commonwealth Parliament, we will look at the structure of the New South Wales Parliament,
the relationship between its two Houses and its legislative powers.
Materials
Legislation


Constitution Act 1902 (NSW) ss 3, 5,5A,5B, 7,7A,7B, 8A, 9A,17,22B(2),24
Australia Act 1986 (Imp) ss 6-10
Further reading
Lumb
14.1
Description

14.2
Constitution Act 1902 (NSW) ss 3, 5
Structure


Kable v Director of Public Prosecutions (NSW) (1997) 189 CLR 51
Separation of powers in the context of NSW Constitution
14.2.1 Queen and Governor


Constitution Act 1902 (NSW) ss 3, 8A, 9A
Australia Act 1986 (Imp) ss 7-10
30
14.2.2 Legislative Council






Constitution Act 1902 (NSW) ss 7, 7A, 17, 22B (2)
Colonial Laws Validity Act 1865 (Imp)
‘manner and form’ provisions to protect Legislative Council
Brief consideration of nature of manner and form provisions
Attorney-General for New South Wales v Trethowan [1932] AC 526
Clayton v Heffron (1960)105 CLR 214
14.2.3 Legislative Assembly


Constitution Act 1902 (NSW) ss 7B, 24
‘manner and form’ provisions to protect Legislative Council
14.2.4 Relationship between Legislative Council and Legislative Assembly




14.3
Constitution Act 1902 (NSW) ss 5, 5A, 5B
Clayton v Heffron (1960) 105 CLR 214
Deadlock procedures
Taylor v Attorney-General (Queensland) (1917) 23 CLR 457
Legislative powers
14.3.1 Grant of broad plenary power




Constitution Act 1902 (NSW) s 5
Australia Act 1986 (Cth) s 2(1)
Clayton v Heffron (1960) 105 CLR 214
Union Steamship Co of Aust PL v King (1988) 82 ALR 43
TOPIC 15
EXECUTIVE GOVERNMENT
In this topic, the executive governments of the Commonwealth and New South Wales will be
examined. We will look at the sources of executive power; the roles of the Queen, the
Governor-General and the Governor; the executive councils set up to assist the Queen’s
representatives in the exercise of some of their executive powers; the Ministry and the
Cabinet; and responsible government and the reserve powers.
Materials

Reilly et al, Chapters 6 and 7
Cases (extracts only)
Victoria v The Commonwealth (Petroleum and Minerals Authority Case or PMA Case) (1975)
134 CLR 81
Minister for Arts, Heritage and Environment v Peko Wallsend (1987) 75 ALR 218
Ruddock v Vadarlis [2001] FCA 1329
31
Legislation
Constitution ss 53, 54, 55, 57, 61-70, 128
Further reading
Lumb
Morison
15.1
Description and sources of executive power
15.2
Relationship between Senate and House of Representatives


15.3
Commonwealth executive government


15.4
Constitution ss 53, 54, 55, 57, 128
Victoria v The Commonwealth (Petroleum and Minerals Authority Case or PMA
Case) (1975) 134 CLR 81
Constitution ss 61-70
Minister for Arts, Heritage and Environment v Peko Wallsend (1987) 75 ALR 218
at 225
New South Wales executive government



Constitution Act 1902 (NSW) ss 9A, 10, 11A, 35A, 35B, 35C, 35D, 35E, 35F, 47
Australia Act 1986 (Imp) ss 7-10
Interpretation Act 1987 (NSW) ss 14, 15
TOPIC 16
LEGISLATIVE PROCESS REVIEW
Class Exercise:
Mock Parliament reviewing legislative process, statutory interpretation, special considerations
of a federal system and role of High Court in reviewing law.