Table of Contents

AUSTRALIAN LAW 3

DERIVED FROM ENGLISH HERITAGE 3DISTINCT FROM ENGLISH HERITAGE 4KABLE CASE 4R V WEDGE [1976] 1 NSWLR 581 4PUBLIC V PRIVATE LAW 5 R V WRIGHT (2001) 30 MVR 412 6ANDREW V DPP [1937] AC 576 6R V WACKER [2003] QB 1207 7

INTERNATIONAL LAW 7

MINISTER OF STATE FOR IMMIGRATION AND ETHNIC AFFAIRS V AH HIN TEOH [1995] HCA 20 8

DEVELOPMENT OF THE ENGLISH COMMON LAW 8

ROYAL JUSTICE 9ORDINARY ROYAL JUSTICE 9THE CURIA REGIS 9ROYAL COURTS 9CHURCH V MONARCH 9WOMEN IN MEDIEVAL ENGLAND 10

MAGNA CARTA 1215 10

PRISONERS A-XX (INCLUSIVE) V NSW 10

FORMS OF ACTION 11

DEVELOPMENT OF LAWYERS/WOMEN LAWYERS 14

CIVIL WAR AND GLORIOUS REVOLUTION 16

KING V COMMON LAW 16THE COMMON LAW AND THE ROYAL PREROGATIVE-ABSOLUTISTS 19KING, PARLIAMENT, AND COMMON LAW 19THE NEW SOUTH WALES ACT 1823: 23AUSTRALIAN COURTS ACT 1828: 24RECEPTION OF ENGLISH LAW: (REPUGNANCY/PARAMOUNT FORCE) 24CONSTITUTIONS: 25PARLIAMENTARY DEMOCRACY 26

THE IMPACT ON THE INDIGENOUS INHABITANTS/BARANGAROO 28

TERRA NULLIUS: 2 MEANINGS 29HOW WAS AUSTRALIA ‘SETTLED’ NOT ‘CONQUERED’? THEORIES 30ARGUMENTS 30COLONIAL ATTITUDES 31YOUGARLA V WESTERN AUSTRALIA [2001] HCA 47. 31POLICIES 31NAMATJIRA V RAABE [1959] HCA 13 32MILIRRPUM V NABALCO (1971) 17 FLR 141 32

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SOCIAL JUSTICE AND THE LEGACIES OF 1788 33

PRUE VINES ‘WHEN CULTURES CLASH’ 2003 34THE IMPACT OF THE ENGLISH HERITAGE 34SOCIAL SECURITY 35ABORIGINAL DEATHS IN CUSTODY 36

REMOVING CHILDREN: THE STOLEN GENERATIONS 37

1972 (SA); ABORIGINES ACT 1969 (NSW) 38RACIAL DISCRIMINATION ACT. 1978 39KRUGER V COMMONWEALTH (1997) 146 ALR 126: 39CUBILLO AND GUNNER V COMMONWEALTH [2000] FCA 1084: 39TREVORROW V STATE OF SOUTH AUSTRALIA 39

FEDERALISM IN ACTION 40

1. FEDERATION 402. THE RIGHT TO VOTE S41 403. THE COMMONWEALTH CONSTITUTION 40KABLE V DIRECTOR OF PUBLIC PROSECUTIONS (NSW) (1997) 422. FARDON V ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (2004) 423.SOUTH AUSTRALIA V TOTANI (2010) 434. MABO V QUEENSLAND (NO. 1) 44

RACE AND JUSTICE-1970S-1990S 44

MABO AND ORS V QUEENSLAND (NO 2) (1992) 175 CLR 1 44MEMBERS OF THE YORTA YORTA ABORIGINAL COMMUNITY V VICTORIA (2002) 77 ALJR 356 45THE WIK PEOPLES V QUEENSLAND 46‘RECOGNITION OF ABORIGINAL CUSTOMARY LAW’ 47

LAW V EQUITY 47

THE RISE OF EQUITY (LORD CHANCELLOR) 47MAXIMS OF EQUITY 49HARRIS V DIGITAL PULSE PTY LTD (2003) 56NSWLR 298 49

DOCTRINE OF PRECEDENT 52

DEVELOPMENT OF REPORTS 52DORSET YACHT CO LTD V HOME OFFICE 53DONOGHUE V STEVENSON [1932] A.C. 562 53THEORIES ABOUT PRECEDENT 53DUGAN V MIRROR NEWSPAPERS [1978] HCA 54 55

INTERPRETING STATUTES 55

POTTER V MINAHAN 57ROYAL COLLEGE OF NURSING OF THE UK V DEPARTMENT OF HEALTH AND SOCIAL SECURITY 58

TORT 60

SIGNIFICANTLY CURTAILED THE SITUATIONS IN WHICH AN ACTION IN TORT COULD EXIST. 60

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Australian Law

Derived from English Heritage Representative democracy – the people vote for

parliamentarians that make laws Division of solicitors and barristers – an informal distinction

between solicitors, who advise, and barristers, who argue in court.

‘Common law’ system – this exists on three levels:o   As a legal system contrasted with the civil law system

used in France, Germany etco   As a source of law within the legal system whereby

judges follow and create precedents. The other source of law in the Australian system is legislation as made by the parliament.

o   As a classification within the common law source of law and contrasted with equity.

Adversarial court system for dispute resolution – the adversarial nature of our courts stems from ‘trial by battle’, while the use of judges, juries and jurisdiction can also be traced back to this English heritage.

Adversarial Inquisitorial

Procedural differences18.  Parties in charge of the action,

they initiate it, collect evidence etc.

19.  Present before a neutral judge.

20.  Evidence presented according to complex rules.

21.  Evidence presented orally by direct questioning in single session.Role of judge

22.  Makes rulings about what’s admissible, what procedures to be followed.

23.  Otherwise does not interfere.24.  Judge decides on the law,

writes a judgement which becomes precedent.

25.  Appeals mostly on matter of law.

Procedural differences26.  Judge has active role, directs

inquiry and series of meetings instead of a set trial.Role of judge

27.  May direct parties to present witnesses or collect evidence.

28.  Questions witnesses.29.  Juries rare.30.  Broad grounds of appeal.

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Distinct from English Heritage Feudal System- a federation of states and the Cth and division

of power between them

Kable CaseFacts: Henry and Susannah Kable. The married couple, while being transported to Australia, deposited £20 with the ship’s captain which subsequently went missing. Under English law, the Kables were unable to sue because as convicts they were considered ‘civilly dead’. However in Sydney they were allowed to bring an action against the captain and were successful in what was the first civil action in Australian law.

Established the rule of law in the colony. Kable was referred to as a ‘labourer’ not a ‘convict’.  Under

English law of the time a convict was ‘civilly dead’ (attainted) and therefore unable to sue in civil proceedings.

Blackstone: English law existed insofar as it was applicable to the colony.  To deny convicts of civil rights would have made development impossible.

-        -       

Recognition of (limited) Indigenous Customary Law (R v Wedge): post Mabo (page ) limited recognition of customer law including punishment and marriage

R v Wedge [1976] 1 NSWLR 581

Facts: James Leslie Wedge, who may or may not have been an Aborigine, was being indicted for murder.

Issues/Arguments: Wedge argued the Court had no jurisdiction over Aborigines because:

1. The Aboriginal people were and are a sovereign people2. Even if they were not sovereign, English law only applies to

British settlers between themselves3. Both of these arguments were premised on the fact that NSW

had not been founded by settlement

Reasoning

The Court applied the ruling of the Privy Council in Cooper v Stuart (1889)(pg ), which found NSW to have been acquired by settlement. Significantly, they classified NSW in the category described by Sir William Blackstone as “an uninhabited country…discovered and planted by English subjects” and therefore terra nullius. This classification was not dependant on the presence of people but rather on the lack of law and cultivation. Given NSW had been settled, there could be only one sovereign, the King of England, and one law, the English law. As such, any Aboriginals

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within the colony became the King’s subjects and were protected and punishable under the law.

Ratio: The Supreme Court of NSW has jurisdiction over members of the Aboriginal race

Outcome: The plea of lack of jurisdiction failed

Public v Private Law Strongest classificatory divisions – public vs. private law,

common law vs. equity. (pg. ) Public law – at least one party is the state. As one party is more

powerful, and there are political theory and public interest theories to consider, different ways of reasoning apply. Damages are rarer as law considers public interest.

Private law – disputes between individuals. Compensatory damages are common as remedy.  

• System of wer, bot and wite (Henry I): victims family could claim ‘private redress’ according to the status of the victim’s family from the perpetrators family

• Kings Peace (Henry II): a kings source of law where he had jurisdiction in every case

• Doctrine of mens rea or intent: developed from the Christian view of sins of the mind where an individual was only responsible for the crime

R v Wright (2001) 30 MVR 412

Facts: Wright & Watson at 17 illegally acquired rum, stole a van, and Wright drove w/o license, crashing van traveling at 97-100km/hour after attempting ‘wobbling’ movement (45 m of

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marks), killing Watson. Wright pleaded guilty to theft and not guilty to culpable driving causing death (includes gross negligence). Wright was convicted and sentenced to 2y9m, with 2y suspended. Wright appealed, changing grounds of appeal that the judge had erred in directing jury to the definition of gross negligence.

Reasonable care is a civil duty; ‘To prove criminal negligence, the crown must prove not

merely that the accused failed to exercise reasonable care for the safety of others, but that the departure from the standard of care owed to other was such that it deserves to be called gross departure from that standard’

Andrew v DPP [1937] AC 576 ‘in a civil case once negligence is proved the degree of

negligence is irrelevant’ ‘In a criminal court, the amount and degree of negligence are

the determining questions. There must be mens rea’. ‘In order to establish criminal liability the facts must be such

that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation and show such disregard for the life and safety of others as to amount to a crime against the state…expressions used are not definitions of the crime’

R v Wacker [2003] QB 1207

Facts: Wacker transported 60 chinese immigrants by concleaing them, 58 of whom died. He was charged with 58 counts of manslaughter and conspiracy to facilitate entry of illegal immigrants into the UK. Appealed, as victims were not owed duty of care for participation in illegal activities.

Ex turpi causa (no action arises out of a dishonourable cause). Distinction between criminal and civil law allowances for

causes of action ‘The criminal law has as its function the protection of citizens

and gives effect to the state’s duty to try those who have deprived citizens of their rights of light, limb or property’.

‘The criminal law should not be disapplied just because the civil law is disapplied’

‘No one’s actions other than his own could realistically prevent the Chinese from suffocating to death and if he failed to act reasonably in fulfilling his duty to an extent that could be characterised as criminal, he was guilty of manslaughter if death resulted’.

Convicted.

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International Law

Traditionally, international law refers to the laws which govern interactions between states. However, recently this has also extended to international laws covering the actions of individuals through the International Criminal Court and the War Crimes Tribunal. The two main sources for international law are:

customary international law: legal practice that is commonly applied across many states or rules that states abide by out of a sense obligation. There is much debate about the scope and existence of international customary law

treaty law.bilateral (two countries) or multi lateral (more than two) but are not binding on signatory nations till they have ratified it with the appropriate international body such as the UN or NATO.  

International Law and its relationship with domestic lawThe two theories about the power of international law in a domestic setting are known as monism and dualism.

Monists argue that international law is automatically binding on domestic law because all law is part of a universal system.

Dualists, such as Australia, England and Canada, see the two systems as distinct and argue that for international law to become domestically enforceable, it must be passed by domestic legislation. However this is not always the case, with Brennan CJ noting in Mabo (No 2) that international law can “influence the common law, especially when international law declares the existence of universal human rights”.  

Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh [1995] HCA 20

Facts: Teoh came to Australia in 1988 from Malaysia and married Lim (Aust. Citz). They had three children and she had four others. He applied for permanent entry permit in 1988, during which he was convicted of importing heroin, influenced by Lim’s addiction. In 1991 his application was refused because of his criminal record. He was the only only person who could care for the children-the decision to deny his application was the UN Convention on the Rights of Child (best interests). The decision was an exercise of executive power-not clear statue.

Ratio: ‘A treaty which has not been incorporated into our municipal law cannot operate as a direct source of individual rights and obligations under that law’

Development of the English Common Law AD 407: Roman rule falls, Anglo saxon law in place 1006: Norman Conquest by William II

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- Feudalism: pyramidal system where king was ultimate lord, landholder owed duties to lord and lords swore to protect vassels

- Development of Lord of the Manor court: court for peasants responsible for manorial justice subject to authority of King

- Baron’s/Customary Court: court for upper hierarchy (knights)

Increased power through land and money; was ultimate king/owner; controlled administration, politics, military marriage and succession; centralised; no professional judiciary

Royal Justice - Itinerant justices: King’s judges at Westminster (acted as administrators

under command of king) and in the Exchequer- Used writs- Trial by battle (Norman Tradition)

1100: Henry I- initiated system of sending itinerant justices into the country side

1154: Henry II- responsible for development of royal justice- Trial by battle fell into disrepute- Offered trial by jury of 12 knights (grand assize) only in

royal courts (modern day jury developed here)- Oath and ordeal

Ordinary Royal Justice Consolidated king’s power Increased public administration of forms of justice: each court

had its own set of customs Ordeal and oath Consistent set of principles Procedures maintaind by same set of judges who acted as

itinerant judges Jury developed Required Writ

The Curia Regis King’s Court comprised of group of royal advisers who carried

out king’s business, including judges and barons Royal Justice System Henry II added to itinerant justice system by sending judges in

‘eyre’ to invesitage

Royal Courts Exchequer of receipt and pleas (finance) King’s bench Court of Common Pleas (trespass and recovery of

property/debt)

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Loyalty to manor or baron

Church v Monarch Animosity on right to appoint Archbishop of Canterbury and

pope’s claim of supremacy of church in England William II had separated spiritual and temporal courts Spiritual/ecclesiastical courts applied canon law:

- Based on Bible and Statutes of Church- Church had jurisdiction over marriage, wills, punishment

of mortal sins, every was subject except for Clergy men

- Subject to softer punishments (court spiritual) - Church claimed civil+criminal jurisdiction over Clergy - Judges deciphered evidence of witnesses and pplied

facts so rules of law were documented: precursor to modern law

1162: Henry II appoints Thomas Beckett as Archbishop of Canterbury: went further to renounce the offending portions of the Constitution of Clarendon (article 3&8-establishing royal supremacy in legal matters)

- Resolved through Benefit of Clergy: clergy charged with serious crimes could be only be trialled and charged under canon law

Women in Medieval England Inferior in medieval and early Modern England Blackstone: ‘by marriage the husband and wife are one person

in law’ Husband interited everything she may have owned prior to

marriage No property rights Could not sue or make will whilst married Dower: If husband died, 1/3 of land inherited Equity: applicable to higher call women who were married

Magna Carta 1215 Signed by King John as response to the abuse of powers by

preceding Kings: limited the arbitrary abuse of power by monarch, led to establishment of parliament and recognised the crown was no longer the sole powerful arm of law development

Holdsworth: ‘The gaining of Magna Carta closes one period in the history of English law and begins another. It closes the period during which the law is developed by the power of the crown alone, and it begins the period which will end in the establishment of a Parliament, with power to take some share in the making and development of the law’.

The Magna Carta did not have the effect of forming a new parliament, but was the first instance where the king was

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subject to the opinion of people who were outside of his advisory circle.

Prisoners A-XX (inclusive) v NSW

Facts: The department of corrective services used their power under s6 Prisons Act (NSW) to refuse prisoners access to condoms who were concerned about sexually transmitted diseases

Prior proceedings: Trial judge held in favour of the state. Claiming courts could only deal with issues relating to the law and not policy. Plus Habeas Corpus could not be used to challenge something that was applicable to a group of people

Grounds of appeal: The failure to supply condoms contravened chapter 29 of Magna Carta

Issue: Should the appellants be allowed to amend the statement of claim to Habeas Corpus and to rely on the Magna Carta?

Legal reasoning: Jago v District Court – held that the words of the Magna Carta did not relate to the context of the time (i.e. not a contemporaneous piece of legislation)

Outcome: Appeal dismissed with costs – no amendment to statement of claim

Ratio: Court held that Habeas Corpus could not be used to challenge internment and the Magna Carta did not provide a basis for the case as the denial by the commissioners to access condoms was not unlawful

Obiter: ‘Whatever may have been intended by the drafters of Magna Carta…it has influenced the development of current common law’ – influential upon development of Commonwealth

Forms of Action

King’s Bench Common Pleas

Exchequer

13th century

   Actions against the King (eg trespass, replevin).

   Errors of courts or record

   Recovery of property or debts not involving the king

   Debts to the Crown

   Actions by or against exchequer

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   Actions including sheriff

   Monopoly on real actions (land)

   Trespass, replevin

officials

15th century

Above, plus:    Action of ejectment

(for recovery of land) and action on the case (for non-payment of debt)

   Enforcement of non-parole

   Defamatory words (previously only in Church courts)

   Trover and coversion (replacing detinue)

As above Above, plus fictional servants of exchequer

To access ‘justice’, complainant had to go the Chancery and pay for a writ.

In 1258, writs became fixed; therefore if no writ existed for your problem, there was no legal remedy.

The choice of writ dictated procedures and methods of trial, later referred to as the ‘forms of action’. The writ had to pertain to the particular court and facts on which you were suing, or else it was invalid.

Revenue depended on number of cases heard. The court of the King’s Bench changed procedures to hear more cases (see 15th century inclusions), and the Court of Common Pleases ‘fought back’ in the 16th century for business, as writs were still required, and cost a portion of debt claimed (later overcome by fictitious writs of trespass). 

  The King’s bench bill procedure:1. A bill was directly addressed to a court to commence action

(available in jurisdictions where there was a sheriff)(In Middlesex, bills covered all matters)

2. If no bill existed, a writ was used (attained from Chancery or issued by Sheriff)

3. Bills could also be used once court had commenced.4. People would avoid this system by: I.  Getting a writ (eg for trespass) for Middlesex

I. Once proceedings had commenced, use a bill to sue for real action (eg debt)

II. Eventually, anyone could allege trespass had originally happened in Middlesex, so there was no need for a writ at all

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III. The only remaining legitimate writ was ‘writ of latitat’, to retrieve/arrest defendant of a different county

                ·   Common pleas still had 10x more than King’s Bench.·   Parliament passed an act to end the fictitious bills and writs·   King’s Bench overcame this by adding ‘ac etiam’ (added to fictitious

bill the true cause of action).·   Common pleas overcame this by taking out a writ of trespass,

arresting via writ of capias, releasing people on bail, and then litigating their true cause of action-never issuing the writ of trespass in reality. In essence, the rigidity of the system necessitated illegal ways around it.

Trespass was separated into:     I. Vi et armis et contra pacem (against the King’s Peace)-this

was eventually removed, and trespass on case was introduced-foundation for negligence and contract breaches in tort law. Harm must be proven

   II.  Other Trespass, which could go to the baronial courts

·   Forms of Action were abolished in 1832/3.·   Common Law Procedure Act 1852, different causes of actions

could compile one writ, and applicable to any three courts.·   Judicature Act 1873 abolished central courts and created the High

Court of England (equivalent to Aust. State supreme courts), allowing common law courts to administer equity and vice versa.

·   By 1970 (NSW was last), all Aust states took up the Act as well. The forms of action formed the basis for Modern Day ‘cause of action’.FW Maitland: ‘The forms of action we have buried, but they still rule us from their graves.’

Development of Lawyers/Women Lawyers

Began to develop in 13th century, appointed in court by litigant, bringing writ and presenting proceedings. Attorney did preparatory work (solicitor foundation) and narrator/conteur did oral work (barrister).

In 14/15th centuries, ‘serjeants-at-law’ emerged from narrators, monopolising Court of Common Pleas-from which judges could be chosen.

Serjeants were expensive to make (fine payable for refusal to pay from 1412), lived at Serjeant’s Inn.

Barristers lived at Inns of Court, had right of audience in King’s Bench, and would call in Serjeant in a difficult case.

By 15th century, solicitors became agents of litigants, amalgamating with attorneys in 16th century.

Lawyer training (up to 25 years):1. Apprentice of law

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2. Inner Barrister (sat in barrae, inner sets of benches), examined by bolting (answering series of questions on hypotheticals/cases of law)-under the Bar

3. After 4-8 years, eligible for ‘outer’ barristers-moved to the Bar4. After 3 years, could practise in Westminster5. Eventually, joined apprentice-in-law, and was fully qualified6. Most senior lawyers were chosen from these, ‘serjeant at law’ and

judges7. Celebrated by a week long feast

Also selected readers (lecturers), and governing body.  ‘Solicitor’ remains in Aust-‘attorney’ in the US because of settlement date.

Women Lawyers

In 1739, ‘Society of Gentlemen Practitioners in the Courts of Equity’ was formed, becoming the ‘Law Society’ in 1831. Women had to fight to enter the profession. Allowed in: NZ 1896; VIC 1903; TAS 1904; QLD 1905; SA 1911; NSW 1918; WA 1923; (see case below).

Mary Gaudron’s speech to Australian Women Lawyers, 19/07/1997

The key discrimination stems from the rejection of difference between male and female lawyers. Women choose to reject the identity of ‘woman lawyer’ in order to compete with males, wherein fact, the legal profession is not designed to females and minorities but to males (minorities coming from statistics, 1996-97, 1.6% of HCA cases were represented by women). The failure of equality evolution in the legal profession is the conformity and inability to recognise different needs for women, without discriminating against them.

In re Edith Haynes [1904] 6 WALR 209.

Facts: Edith Haynes sought to be admitted as a legal practitioner under the Legal Practitioner’s Act 1893 (WA). She was admitted as a law student in 1900, but warned by Barrister’s Board they could not guarantee her admission. In 1904 she was refused admission to her intermediate exam on the groups she could not be permitted to practise under the Act. She obtained a rule nisi (A procedure which calls upon a party to show cause as to why a proposed rule should be applied by the court) on the Board to show why a writ of mandamus should not issue directing the board to admit her to the examination.

Issue: If a women could be admitted as a legal practitioner, per Supreme Court Act 1861 (‘SCA) and Legal Practitioners’ Act 1893 (WA) (‘LPC’).

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Outcome: Not admitted for examination.

Legal Reasoning: (per Parker J) SCA does not contemplate female practitioners. Case of Miss Cave: Lord Chancellor refused to make precedent of allowing a woman to bar (applied precedent). Circumstances do not make women eligible to be admitted as legal practitioners to court. Mandamus is not granted unless there is a practicality from it-the intermediate exam was to become a legal practitioner, which she could not, therefore the mandamus was not practical and denied. (Per Burnside J) The words ‘every person’ in SCA and ‘any person’ in LPC need to be understood in context-they do not grant under common law for the right of women to be admitted to the bar. Conversely, the Medical Act distinctly states ‘every person, male and female’-which is the only distinction to qualify ‘every person’ being inclusive of women.

Ratio: Both Judges distinguished their role from Legislative powers: Parker commented, ‘I am not prepared to…create a precedent by allowing...a woman to the bar…if the Legislature decided that a woman should be capable of being admitted…or make women eligible for admission…they should have said so in express language’; Burnside said, ‘In the Legal Practitioners Act…(the right to be a legal practitioner) is not a Common Law right…(it) has been conferred by the Courts… we must leave to the Legislature to decide.’ There was nothing in the law that suggested women could or should be admitted, and therefore, it was within the Barristers’ Board’s right to reject admission to the exam.

Obiter: (Burnside) ‘If words are to have any meaning they must have a consistent meaning under the act’, ‘Where the Legislature in its wisdom confers the right on women, then we shall be pleased to admit them’-the law is the ultimate and final authority

Civil War and Glorious Revolution Divine right of kings in England until after Tudor Period 1485-

1603 1642-1651: Civil War decided who out of monarchy, parliament

and common law held ultimate power Custom -> Common Law -> Artificial Reason

King v Common Law Natural Law established kings as analgous to Gods

- ‘‘‘Kings are justly called Gods, for that they exercise a manner or resemblance of Divine power upon earth.’ – James I speech to Parliament.’

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This idea was derived from the fact that Kings demonstrated somewhat similar powers as the Gods. (Ability to create, destroy, send death, judge all etc.)

Francis Bacon (James’ Attorney General) agued the absolute monarchy was the only tried and tested system which could avoid ‘confusion and dissolution.’

The king had an unlimited prerogative and the parliament was only granted its powers by the king. This allowed the King to dismiss the parliament without it consent. The parliament fought for the right to not be dismissed without its consent in the civil war.

Thomas Hobbes argued that law arose from universal or natural reason which was the domain of the divine representative.

Lawyers tended to prefer common law to other sources of law. Despite ‘accepting’ the superiority of the ‘law of nature’ and other similar systems, in practice common law was accepted.

Coke used this attitude of lawyers as a means of challenging the seemingly unlimited power of the king.

Coke held a wide range of high legal offices, serving as Solicitor-General, Attorney General, Chief Justice of the Common Pleas, Privy Councillor and a judge on the Kings Bench.

During James reign his opposition to the divine right of kings became a problem and he was periodically removed from important posts and gaoled.

1608: Coke offered in the Privy Council that the ultimate right of interpreting laws did not lie with the monarch. He also argued that the King did not have the authority to interrupt common law proceedings by using a ‘writ de non procedendo rege inonsulto.’

Many of Coke’s views were inspired by Sir John Fortescue. The customary laws of England survived the test of time, and

the fact that they remained unaltered by all of the different rulers, evidenced the fact that they were excellent. As the purpose of government was to protect the people. As such, the customary law of England was best suited to this purpose, due to the fact that it would stop the king from legislating against the rights of his citizens.

Custom was seen as the superior source of law. Due to its longevity, custom could revoke more clearly legislated laws, and in itself become enforceable. This notion elevated common law (derived from custom), described as the ‘best of all possible laws.’ Moreover, the common law was viewed as a clear triumph of rationality, and was depicted as a reflection of the ‘rational laws of God.’

The illustration of the common law as a system based purely and simply on reason led to the ‘dangerous’ accessibility of the law. To concept of ‘artificial reason’ was developed by Coke

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and other common lawyers to hinder the understanding of those who did not study the law.

The popular view amongst common lawyers was that the purpose of government was to protect individual property rights. This concept was defined by the idea that a cohesive public culture could only be maintained if the individual citizens felt they were adequately represented and protected by their government.

For a law to be customary, its usage must date from ‘time immemorial’ (time out of mind). However the power of these laws did no manifest from their age. It was derived from the laws customary nature; its evolutionary progression demonstrated its importance in society. As such, the flexibility of the common law in dealing with changing historical contexts was the source of its superiority.

Hobbes argued that the law was ‘the dictate of a perfectly simple and universal “natural reason”’, and the custom was derived from the rule of a sovereign who was employed by his subjects to maintain a society in which natural reason governed.

THE COMMON LAW AS REASON Opinion of lawyers: The effectiveness of the common law

came from its dedication to customary law, and its strict adherence to reason. The common law was depicted as the most accurate description of natural law, from which all reason should be derived. Furthermore, this system was ‘tried’, and had passed the test of time, which would have revealed and inconsistencies or flaws if they existed.

 The supreme rationality of common law meant that it should be able to be applied by those without significant legal training, including the king and the commoners. This threatening notion was countered by the common lawyers who championed the idea that interpreting case law relied on artificial reason which could only be acquired by experience and study.

One of the founding principles of the parliament was the idea that the public should not be bound or affected by a new law without their consent. The parliament was made up of the King, the House of Lords and the House of Commons. The parliament was the only body which could legislate to restrict the rights of the people, as it was a body which was designed to reflect the will of the people. This concept was derived from the influence of the Magna Carta.

The Parliament was called on only when the king required something, usually money, and wasn’t divided into two houses until the 14th century.

The common law gave the parliament the power to legislate, making the common law a higher power than any law

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conceived by the parliament. The parliament was able to correct any inconsistencies in the common law, but the power of the common law remained supreme.

The superiority of the common law was well established, but the question of who should define what the common law actually embodied was disputed.

The Judges: Were thought to be the most thoughtful and dedicated personnel to the common law. Coke argued that common law could control Acts of parliament, and judges could therefore set aside statutes where they contravened the fundamentals of common law.

This idea contravened the idea of the parliament , as it gave judges the potential to add to and remove from laws enacted by representatives of the people. It therefore violated the concept of representative government.

Common law forbade the construction of legislation without the consent of the people to whom it concerned.

Moreover the judges were appointees of the crown, making them ideal powers to alter laws made by the parliament which didn’t favour the king.

The Parliament: The parliament should have the power to interpret laws, including the common law. The concept of unlimited sovereignty was continually challenged by the parliament, even during the civil war where the idea that statute law was inferior to common law was somewhat abandoned.

THE COMMON LAW AND THE ROYAL PREROGATIVE-Absolutists

Absolutists argued that the king’s power was directly derived from God, and the king should be able to immediately overrule common law and statute wherever they did not sufficiently serve the good of the people.

This opinion was disputed by many lawyers who argued that this royal prerogative was simply the power of the king as it was set out in law. The majority of these powers were fairly inconsequential (i.e. the king could design coins). However the power to ignore law in emergencies was prone to abuse. This was circumvented by lawyers who proposed that it was the law which defined these emergency situations and therefore the king couldn’t declare an emergency under unwarranted circumstances. The second dangerous royal prerogative, allowing the king to veto and legislation, was only challenged in the civil war.

KING, PARLIAMENT, AND COMMON LAW In Tudor times, the royal prerogative served as a practical

solution to the inconsistencies in law. The King could

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dispense with a law where it was defective or inconsistent. This power had practical advantages, i.e. when the parliament wasn’t sitting, contradictions in the law could be set aside temporarily. However the Stuarts abused this prerogative, and used is as a means of defining the monarchy as above the law and only answerable to God.

CASE OF PROHIBITIONS 1607 Coke ruled that ‘the King cannot take any cause out of any

of his Courts, and give judgement upon it himself.’ When the king argued that since the law was founded upon reason, and he was naturally endowed with reason, Coke replied that it was not natural reason but artificial reason (which must be studied and learned) which determined the judgement of law. This argument offended the king who said that it implied that he was under the law which was treasonous. Coke concluded that ‘the King ought not to be under any man, but under God and the law.’

CASE OF PROCLAMATIONS 1610

[The question arose as to whether the King could legally restrict the construction of new buildings and the making of starch.]Coke ruled that the King ‘by his proclamations cannot create any offence which was not an offence before,’ as this would effectively allow the king to change the law by proclamation. The law of England was derived from 3 parts, common law, statute law and custom and the King did not influence any of these.

PARLIAMENT AND THE CIVIL WAR-Charles I

1625: Charles I reign was characterised by the civil war. He attempted to govern without a parliament, but ran out of funds and was forced to recall it and as a consequence was forced to accept many of the parts of the Petition of Rights.

The most important demand which was placed on him was the restriction of the Kings ability to tax without the consent of the parliament. The petition of rights also restricted the King from imprisoning people without justification and imposing martial law unilaterally.

Charles Stuart was tried from the 20-27 January 1649, making him the first English monarch to be tried without being deposed. His defended himself by challenging the jurisdiction of the court to try him. He was executed on 30 January 1649 and over the next 11 years England was ruled by the parliament under Oliver Cromwell. The ‘interregnum’ was a period which asserted the ability of the parliament to legislate on anything.

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THE RESTORATION AND THE GLORIOUS REVOLUTION-Charles II

Charles II 1660 was invited by to the throne by the Rump parliament in ruled generally without incident.

His successor James II 1685 however, lacked his political awareness. He generally abused the Royal prerogative to progress the interests of the Catholic Church in England (used the dispensing power to allow Catholics to not take the Test Act oath, appointed judges who were sympathetic to the absolute power of the King, introduced the Declaration of Indulgence (1687) which destroyed any law which discriminated on a religious ground). However, his rule was tolerated as it looked likely that his successors would be Protestants. However, when his second wife conceived a male heir who was baptised catholic, it became clear that England could be facing a dynasty of catholic kings.

1689: William of Orange: was invited to invade England by and Assembly of Peers. James II fled England as his forces approached. Eventually William and Mary were made King and Queen of England and a Bill of Rights was drafted by a group of parliamentarians. The Bill of Rights restricted the Royal prerogative quite substantially; importantly the royal right to dismiss legislation was abolished. However the King could still dismiss ministers, summon and dissolve parliament and completely control foreign affairs.

The Bill of Rights of 1688-89 gave the king absolute control over foreign affairs. Therefore the royal prerogative was exercised in the English colonies including America and Australia. The governor in Australia acted as a vassal to the monarchy and could govern with very little interference from the Parliament. Eventually Australia formed a federation using very similar arguments to those used during the glorious revolution to restrict the arbitrary abuse of power.

THE RULE OF LAW, THE GLORIOUS REVOLUTION, AND THE COLONIESThe rule of law encompasses the notion that everyone is subject to the law. It is designed to prevent the arbitrary abuse of power.AV Dicey Definition of the Rule of Law:

1.       ‘Absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power.’

·  Prevents any member of government from exercising arbitrary power.

·  Prevents anyone from being punished for anything other than a breach of law.

2.       ‘Equality before the law.’

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3.       The rule of law demonstrates that the laws of the constitution and custom are not the source of our everyday rights and liberties, but the consequence of them.

Later definitions of the rule of law have emphasised that it is insufficient to simply ensure that the state is subject to the law (the state makes the law so it can easily alter it to facilitate oppression). Therefore it is necessary to ensure that governmental power is restricted.

From Glorious Revolution: Charters of Justice; Development of Governor’s Powers/Legal System;Trial by Jury;

The criminal law in the 1770’s:-  The death penalty applied to minor offences e.g. pickpocketing and

stealing animals-  The accused had no right to a defence counsel or to give evidence,

until 1882 for summary trials and 1891 for jury trials.-  Overcrowded legal system -> matters being dealt with formally and

despatched at great speed.

The first Charter of Justice (1786):-  Issued by the power of Letters Patent, a part of the Royal

Prerogative.-  Established a Court of Judicature to try criminal cases in the colony.-  Court of Civil Jurisdiction with a Judge-Advocate and right of appeal to

the governor, > 300 pounds -> appeal to Privy Council.

The Judge- Advocate and the Court of Judicature:-  the court was run along military lines-  This meant that the Judge-Advocate acted as both the prosecutor

and the judge- drew up indictments, sat on the bench, directed the jury and voted on guilt/innocence.

-  A guilty person could only be sentenced to death or corporal punishment.The role of the governor:

-  1788: the first Charter of Justice gave the governor extensive powers: the sole source of legislative and executive power and the final court of civil appeal.

-  1788-1823: the colony was under the personal rule of the governor, limited only by directions from Britain, which could take 6 months to arrive.Tickets of Leave:

- Issued by the governors from 1801.-  Meant that convicts could work for themselves and live in their own

accommodation.-  Pardons were issued, conditional on remaining in the colony until

their sentence had expired.  Land was often granted to encourage ‘emancipists’ to stay.

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-  Tickets of leave and pardons gave convicts the same rights as free people.

The Second Charter of Justice (1814):-  Issued by the power of the Letters Patent.-  Established Supreme Court with Civil, Criminal and Equitable

jurisdiction- had a judge and 2 magistrates.-  This court could review the governor’s actions.-  Parties could appeal to governor/Privy Council.-  Criminal cases heard by 6 military officers and Judge-Advocate.-  Governor could exercise the prerogative of mercy.

Trial by Jury:-  1819: petition to the monarch sent by emancipists, requesting trial

by jury for civil as well as criminal matters.-  1819: sent representatives to London to argue their case.-  Trial by jury was important- the right to serve on a jury was regarded

as symbolic of citizenship- a ‘birthright’ of Englishmen.-  1821: petition to reverse Eagar decision, which ruled that the civil

rights of convicts could only be restored with a pardon using the Great Seal.

The New South Wales Act 1823:-   Provided that the governor’s pardon had the effect of a pardon

under the Great Seal.-   Statutorily defined the institutions of government- Legislative

Council of 7, appointed by the governor and the Crown.-  Could make laws for ‘the peace, welfare and good

government’ of the colony so long as they weren’t repugnant to the New South Wales Act, Charters of Justice, of laws of England.

-  Established a new Supreme Court with equity and full civil, ecclesiastical and admiralty jurisdiction, judges were paid wages instead of salaries.

-   S 29: no law could be put before the new Legislative Council before the Chief Justice certified that the law wasn’t repugnant to the laws of England.

-  Appeal: governor -> Privy Council.-  Established the intermediate courts without mentioning juries-

governor made a proclamation allowing trial by jury in these courts.-  R v Magistrates [1824] NSWSC 20 (14 October 1824): Attorney-

General obtained an order compelling trials by jury -> magistrates published a list of jurors, excluded emancipists.

Australian Courts Act 1828:-  No appeal to the governor from the Supreme Court- direct to Privy

Council.-  Legislative Council was expanded to fifteen appointed members.-  Judiciary became entirely separate from the executive for the first

time.

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The governor’s powers and representation:-  Governor had no legislative power until New South Wales Act 1823

provided that he could make laws with the advice of the new Legislative Council.

-  1823 – 1828: Chief Justice was required to give a certificate that the legislation of the legislative assembly wasn’t repugnant to the law’s of England- see pg 170 for examples.

-   From 1828 judges were given 2 weeks to issue an order if the law was repugnant.

Reception of English Law: (repugnancy/paramount force)-  28 July 1828: the date of reception- all English law that was in force

at this date was in force insofar as it was applicable to the colony, according to the Australian Courts Act 1828 s 24.

-  Reception dates differ in other states (28 December 1836 for SA and 1 June 1829 for WA.)

-  At reception all applicable statutes and common law were taken to have been received into the jurisdiction, but changes in the common law could be incorporated.

-  Until 1865: the common law doctrines of repugnancy (if laws passed by colonial legislatures were repugnant to English law they were void) and paramount force (which new statutes of the imperial parliament applied to the new colonies) developed.

Constitutions:-       1842: The first New South Wales Constitution established by the

Australian Constitutions Act (No 1.)  Didn’t apply to Van Diemen’s Land or WA.

-       Increased the Legislative Council to 36, 24 of whom were elected (on property grounds.)

-       1850: Australian Constitutions Act (No 2) separated VIC from NSW.  Van Diemen’s Land and SA also had legislative councils (2/3 elected).  Legislative councils were given the power to set up bicameral legislatures.

-       1855: NSW Constitution was passed in the imperial parliament. All constitutions provided for two houses of parliament- an elected lower house (Legislative Assembly) and upper house (Legislative Council).

-       1890: WA’s constitution was granted- didn’t participate at the time of other states.

-       SA’s constitution was democratically ahead of most of the world- provided for universal male suffrage, secret ballot and prevented multiple voting.

Cooper v Stuart(1889) 14 App Cas 286Privy Council, 1889Pg 175 Vines

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Material Facts:1882: a park was created on land which was the subject of an original land grant in 1823.The grant included a cause ‘reserving to his Majesty…any quantity of land not exceeding ten acres, in any part of the said grant, as may be required for public purposes.’ cooper was the successor in title of the original grantee.

Prior Proceedings:The defendant’s suit was dismissed at trial and in the Supreme Court.He appealed to the Privy Council.

Arguments of the parties:Plaintiff: the reservation in the clause of 1823 was invalid because it was contrary to the rule against perpetuities.Defendant:  the rule again perpetuities was not a part of the NSW law in 1823 and therefore the grant was valid.

Legal Issues:Was the rule against perpetuities applicable to land grants in colonial Australia in 1823?

Outcome:The judgement appealed from should be affirmed, and this appeal dismissed- the rule against perpetuities was not applicable to the colony in 1823.

Legal Reasoning:In a settled colony, the extent to which English law was introduced to the colony, and the manner of its introduction, varied according to the circumstances of the colony.The rule against perpetuities is an important feature in the English common law, and there is no reason that its operation in the colony would be less beneficial than in England. However its suitability raises an entirely different question- what was the purpose of the government in granting land?Watson purports that the government granted land to attract other colonists.  It was impossible to determine what land would be required for publics uses before the ‘public’ immigrants arrived.  Therefore, a logical approach was to grant land and retain the rights to reclaim sections as necessary.

Ratio Decidendi:The rule of perpetuities was not applicable to the colony in 1823, because it was not applicable to the circumstances of the colony at the time.

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Obiter:While many principles of English law may not have been applicable to the colony in its ‘infancy’, they would become relevant as wealth, population and commerce increased.

Parliamentary Democracy- 1860: all Australian colonies except WA were governed much

like Britain. Governor represented the monarch, parliament had two houses and gov was formed in the lower house.

- Laws of repugnancy limited powers of parliament.- Many colonies passed radical legislation/ahead of Britain eg

suffrage legislation of SA, development of the no-liability mining company, Torrens Title system of registration of real property, abolition of dowry, protection of widows/children from being disinherited by their husband/father.

- UK doctrines of parliamentary sovereignty (parliament has the right to make/unmake any law- broad mandate) and responsible gov (ministers held accountable for their personal acts and those of their department) and independence of judiciary set basic framework.

- Doctrine of the separation of powers/ independence of judiciary: independent of parliament. Appointed by Attorney-General though- some question of influence.

- “Red Ted”- hostile legislative council. Tried to abolish upper house.

Bicameralism:- Having two houses of parliament- pattern at Westminster-

House of Commons and House of Lords.- About 1/3 of legislature’s in the world today have two houses

Powers of Parliament:- True roots of modern parliamentary power lie in 1688 Bull of

Rights.- Parliamentary sovereignty: can parliament bind itself?- Britain: parliamentary acts were more or less immune from

judicial scrutiny- aided by the absence of a single written constitutional document

- Australian parliaments had written constitutions- easier to scrutinise.

- All the state constitutions of Australia give the parliament power to make laws with respect to the ‘peace, welfare (or “order”) and good government’ of the state- the meaning of this phrase has been extensively legislated.

Union Steamship Co of Aust PL v King

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(1988) 82 ALR 43High Court of Australia pg 189 vines

Facts: - King was a seaman employed by the appellant company- He alleged that he developed boilermaker’s deafness as a

result of his work- His claim arose under s 46 Workers Compensation Act 1926

(NSW).- Nature of state power “peace welfare and good government.”- Conferring on parliament a plenary power- symbolic of full

power, breadth of power given to state parliaments.- Limiting power:- Until 1986 there were more limits on state parliamentary

power than exist today.- From 1865 the Colonial Laws Validity Act (UK) continued to

apply the doctrines of paramount force to the state parliaments

Manner and form:- specific procedural requirements that have to be adhere d to

in order to change/make laws- referendum to change constitution (cth)- state constitution sets out procedures- if a law is passed inconsistent with state constitution it can

still exist, until manner and form strikes it down- cth- a law can’t exist that is inconsistent with the constitution

Checks and balances- parliamentary sovereignty and representative democracy1968 Privy Council (Limitation of Appeals)1975 Privy Council (Appeals from High Court) Act (Cth) terminated all appeals to the Privy Council.

The Impact on the Indigenous Inhabitants/BarangarooWhat were the arguments for and against the view that the Aboriginal inhabitants of Australia were in possession of their land and how did this affect Aboriginal rights?

Significance of Barangaroo

Benelong’s wife a Cammeray woman whose lands were on the north side of present-day Sydney Harbour. Both were friends with Governor Phillip, and Barangaroo wished to give birth at Phillip’s residence. There were two ways this was interpreted:

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1. Barangaroo giving birth at Phillip’s residence would have established a land claim for the baby under Indig Law. She may have only recognised the superior power which the English colonists exercised not that they came from a proud legal tradition.2. Phillip saw this as a wish for help, reflecting his power as an Englishman and part of a great empire. Probably did not understand that Barangaroo had a legal system.Both represent different legal systems which thus pervaded their understanding of the whole world.

Terra Nullius: 2 Meanings 1: Land Belonged to No one 2: Country w/o recognizable sovereign or govt.

Sovereignty and Possession

The English admiralty said to James Cook in 1768 before sail, ‘you are also with the consent of the natives to take possession of convenient situations in the country…or if you find the country uninhabited take possession for His Majesty by setting up proper marks…as first discoverers’.

Cook neither sought nor obtained consent 22 August 1770 –entire eastern half of Australia.

By late eighteenth century-in North America treaties were signed with natives and had rights. Not in Australia. How? Relates to Mabo-look at doctrines of law and society.

According to Watkin Tench-Barangaroo produced by the ‘most polished circle’ but later revised when she grew distrustful of Benelong and his relations with the colony.

She brought land claim as Indig tribe had been destroyed by spallpox (Sydney Cove Cadigal people of the Eora nation who had no immunity and had been pushed out of lands by English)

Sovereignty and Proprietorship Conquered:

- In possession of a people- Invaders/conquerors bring law only when

conqueror says so- Lord Mansfield in Campbell v Hall: laws of

conquering country continue in force until they are altered by the conqueror, and all land could belong to the conqueror if the conqueror exterminated the inhabitants.

Settled- No one there

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- All laws of settling nation were regarded as coming into force in so far as they were applicable to circumstances

How was Australia ‘settled’ not ‘conquered’? Theories Locke-one law of nature was that labour was needed to

establish ownership of land. Better situation if Australia considered ‘conquered’? Vines

says no as better situation would still have been at whim of conqueror=illusory.

• Emerish de Vattell ‘The Law of Nations’-1758. Argued that nation could take possession of country which was vacant and so acquire its sovereignty and use of land. Saw people of Peru, Mexico and North America as ‘ranging through; rather than inhabiting their land: ‘Their unsettled habitation in those immense regions cannot be accounted a true and legal posession’.

• Hugo Grotius- natural law prescribed not only individuals but nations conduct. English used these laws to manage process of discovery and colonisation.

Vattel-when a nation took possession of a land which was in desert state, its title to possession respected only if followed by real possession, thus has to be in actual use after possession. Grotius discovery alone only weak claim, only possible if land was vacant. Thus Cook claiming eastern Aus, may not have been supportable. But once colonists landed and cultivated-vindicated their earlier claim to land.

• Blackstone-to be an occupier, one must present and manifest a will to possess the land as one’s own. Indigs in a state of ‘primeval simplicity’ only had transient possession at any one time.

Arguments

Argue that Ab did occupy land=to be occupier one had to be present to manifest a will to possess the land as one’s own.

Argue that Ab did not occupy=transient possession meant the moment Ab people left land-someone else owned it.

Sovereignty as right to govern, and Ownership of land Confusion from feudal system which combined ownership

and sovereignty in same person Neither meaning of T.N applied-look at Native Title There was an incapacity of settler to buy direct from native

owners as governments through their common law prerogative had consistently asserted a right of pre-emption over land so that the land that the Crown governed was also

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owned by the Crown and allowing Ab the right to sell the land –inconsistent with this ownership right.

‘Settled’ because incorrect narrative, Aus was not peacefully settled as there was resistance from the inhabitants and as Aus was regarded as settled-sovereignty nor land rights of Ab were recognised.

Aboriginal title was in perpetuity and inalienably held by a group of people. Was not merely a source of sustenance but also a living spiritual entity. English tradition-land titles were originally granted by the Crown after which they became transferable.

As a result of white invaders many Ab withdrew to further points of land, but less nourishing so moved back to white settled areas=attempts to wipe out black ‘nuisance’. Ab became ‘dying race’ + alcohol, tobacco, sugar and tea=dependency on whites.

Colonial Attitudes

Col attitudes about land title-ambivalent. In NSW many settles thought Ab should not be regarded as British subjects. The Letters Patent for setting up new colony in S. Aus 1836-provided rights for Ab people but commissioners of colony if noted this. In WA, Colonial Offices 70 Constitution Act 1889 (WA) =payment of annual sums of money to 1% of gross revenue of State to be appropriated to welfare of Ab BUT never paid (In 2001 claim for sum of money made, but said s 70 had been repealed so dismissed - Yougarla v Western Australia [2001] HCA 47.

Policies 1800s-Segregation-assumed Ab people would die out so

isolate them on reserves 1950s –Assimilation=erosion of any civil rights Ab people had.

Stolen generation=removed possibility of claiming native title later.

Some given exemption by Aboriginal Protection Board ‘by reason of character and standard of intelligence and development’

Namatjira v Raabe [1959] HCA 13

Facts

• Namatjira -Aborigine given exemption from laws barring Ab from drinking alcohol

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• Henoch Raberaba was Ab man to whom it was alleged Namatjira had given liquior. • Rab-ward under the Welfare Ordinance 1953-1957 (NT). • Namat convicted of supplying liquor=6 months in prison. This is an appeal.

Issue: The impact of settlement on the indigenous inhabitants - the power of the state to discriminate against aboriginals:

1. Is the state allowed to declare aboriginals as 'wards of the state' in bulk or does it need to be an individual process?2. Does the ward have the right to object? Reasoning1. Aboriginal people as a whole require special care – can declare class of people ‘wards’2. The legislation does not imply that there is a need to issue individual notices or deal with the subjects individually.3. Accordingly, the people which have become wards are declared so in the Gazette, and are then allowed to appeal. Raberaba did not appeal, and therefore he is a ward.

Ratio : Declaration of Rab was made in manner which was consistent and required by the Welfare Ordinance under which it was made. As Ab were a ‘class in such need’ (of protection) the Welfare Ordinance does authorize the ‘block’ declaration that persons are wards.

Milirrpum v Nabalco (1971) 17 FLR 141

Facts

• Federal Govt granted mining leases to the D [Nabalco] without consulting the Ps [Milirrpum, the Yurrkala people].• The Plaintiffs claimed that their sacred sites were in danger (submitted petition).• The Plaintiffs sued. They sought:o A declaration that they were entitled to occupy the land without interference and that they had land rights based on a common law doctrine of Aboriginal title.o That terra nullius be overturned

Issues

The impact of settlement on the indigenous inhabitants - land title:

1. Do the aboriginal people have land rights based on the common law?2. Was Australia actually a terra nullius?

Reasoning

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1. The aboriginals have a connection to the land, but not proprietary one:

• A proprietary relationship implied ‘the right to use or enjoy, the right to exclude others, and the right to alienate’.• This was not demonstrated by the Plaintiffs, who only had a ‘religious relationship’ with the land.

2. The court did recognise the existence of Aboriginal laws, which challenges the second criterion for terra nullius.

• Though no sovereign government existed, laws which regulated the lives of Indigenous Australians did exist.

• However, the court was not willing to overturn terra nullius.

Ratio: Aboriginal people do not have proprietary land rights based on common law, and terra nullius was not overturned as question of law not of fact.

Recognised that Ab customary law was ‘government of laws, not of men’.

Social Justice and the Legacies of 1788

• Estimation that indigenous people die at twice the rate of non-indigenous people is conservative acc to Bureau of Stats as it has been underreported. Ind people die earlier-2001=49. Non indig=79. • External causes of death (accidents, assaults, intentional self-harm) 17 percent of Indig deaths compared with 6 per cent of non-indig deaths. • Infant mortality=national was 5/1000. Ab was 11/1000• There is continuing lack of comprehension of the position and culture of indigenous people among non-indigenous people, contributes to difficulties with improving their position.

Prue Vines ‘When Cultures Clash’ 2003

Myths Aboriginal people in Aus are either traditional or non-

traditional In fact many move between cities and the country at different

stages in their lives. Stereotypes emph by census data that is one-off and the media.

Traditional Aboriginal People are all part of the same culture Central matters=idea that religion is basis for law and kinship

is vital for prescribing behaviour. BUT multiplicity of language

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groups=diversity in kinship structures and obligations and in ways of life.

Aboriginal people with urban lifestyles have the same values as non-Ab with urban lifestyles

Non-Ab is highly secular, while Ab law and religion is intertwined. Have urban Ab lost their cultural base? No as evidence of communalised method of child-rearing among others.

Aboriginal people are not interested in property or inheritance Have strong relationship with land, and although do not hold

land as ‘commodity’ Ab are concerned with inheritance of custodianship.

Inheritance usually unproblematic as held by group. The inheritance of intellectual property-relates to customary law with obligations concerned with kinship and ritual knowledge.

Ab people are defined by blood Since 1788 has ben by blood (half-caste, full blood, one-

quarter Ab blood, customary law marriage). Now person of Ab descent (no degree of descent required) who identifies themselves and is identified by Ab community as Ab.

The Impact of The English Heritage

Main point: Indigenous people, even when benefiting from Social Security (Centrelink) are still disadvantaged, and there is debate over whether they ‘deserve the benefits’ (they do).

SOCIAL SECURITY

Indigenous people were excluded from Social Security benefits scheme until 1966

During the late 1990s, some alleged that Indigenous people received greater benefits from social security than non-Indigenous people

However this is not true, as Indigenous persons are far more disadvantaged than nonindigenous people, and the reverse is true

Study of social security benefits focusing on Youth Allowance and New Start Allowance (unemployment benefit) carried out by Will Sanders from the Centre for Aboriginal and

Economic Policy Research, Australian National Uni showed that despite equal rights to these benefits:

Unemployment rate for Indigenous people is higher than non-Indigenous people

Indigenous people were ‘breached’ at a higher rate (Breaching: process where a

person is seen to be at fault in some way in relation to their benefit and suffers a penalty)

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1996-1998: 19.4% of non-Indigenous people were ‘breached’ (lost their payments for eight weeks with possible further penalties)

33.1% of Indigenous people were ‘breached’

Shaw’s observations of Indig Disadvantages of the study, in which he noted the reasons for higher rates of breaches and penalties:‘Higher illiteracy levels among Indigenous Australians mean that they are less likely to comprehend and respond to Centrelink letters’

‘Centrelink workers do not adequately consult with Indigenous liaison staff when interviewing or making decisions about Indigenous clients’

The level held by Centrelink staff and ‘decision makers’ of personal/individual prejudice against Indigenous Australians is less quantifiable Indigenous persons far less likely to lodge appeals with Social Security

Appeals Tribunal against adverse decisions than non-Indigenous persons Eg: of 3421 appeals lodged with the Administrative Appeals Tribunal between 1995 and 1997, only 3 were lodged by Indigenous people

Aboriginal Deaths in Custody

Main point: The reasons for high rate of Indigenous death in custody directly referable to the disproportionate numbers of Indigenous people in prison in the first place.

Royal Commission into Aboriginal Deaths in Custody Research Paper no 6 reported in July 1989: Aboriginal people seriously over-represented in prison compared to non-Indigenous people

Proportion of Aboriginal people in general population (in 1989): 1.46%, proportion of Aboriginal people in prison population (in 1989): 14.6%

State Percent Aborigines in Level of OverCommunity Prison Representation

NSW 1.04% 8.24% 7.92%VIC 0.31 2.69 8.68QLD 2.37 15.13 6.38WA 2.69 30.91 11.49SA 1.06 16.81 15.86TAS 1.54 2.82 1.83NT 22.44 71.52 3.19AUSTRALIA 1.46 14.76 10.11

Royal Commission into Aboriginal Deaths in Custody, 1991 found that:

Over representation of Aborigines in police custody caused by socio-economic pressures and ‘over’ policing

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Aborigines had the same rate of death in prison as non-Aborigines, but much more likely to be in prison in the first place

OVERREPRESENTATION IN PRISON TODAY:2o In 2005, December quarter: national rate of imprisonment for Aboriginal people was 2.024 per 100 000 in Indigenous populationo Highest were in WA: 4.437, and NSW: 2.183o In 2002: Indigenous women almost 20 times more likely to be imprisoned than non Indigenous womeno Today: rate of 1 in 4 women in prison being indigenous. Back in 1995, it was 1 in 5.o In a NSW Prison Inmate Consensus 2006: 19.9% of inmates were Indigenous, 78% non-Indigenous. Compare this to the proportion of the population of NSW which is Indigenous at 2.2%4• NUMBER OF DEATHS IN POLICE CUSTODY:o Remained relatively constant since 1990, and continued to increase until 1999, where it begins to reduceo 2005: rate of Indigenous deaths in custody in Aus. was 1.2 per 1000 Indigenous prisonerso non-Indigenous deaths in custody was 1.4 per 1000 non-Indigenous prisoners

Removing Children: The Stolen Generations

Main point: Aboriginal children were removed from their families through the unfair and rigid application of the law, and this had adverse and complex effects on Aboriginal people.

THE STOLEN GENERATION AND REMOVAL:• From Colonisation, Indigenous children were removed from their families:• Of Indigenous people aged 30 and over, 10% reported they were taken away from families• During Segregationist Policy Times, children were removed as a part of the policy allowing the Aboriginal race to die outo Especially if they were of mixed blood• LEGAL FRAMEWORK THAT ALLOWED THIS:o Removal took place in every Australian Jurisdictiono The Aboriginal Ordinance 1918 (NT) provided: ‘the chief protector may cause any Aboriginal or half caste to be kept within the boundaries of any reserve or aboriginal institution or to be removed and kept within the boundaries of any reserve or aboriginal institution’ pp 138

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• COMPLEX EFFECTS OF REMOVAL:o Barbara Cummings observes that not all children were removed (pp 138):o Effects are both personal and institutionalo Children were removed for their ‘safety’ and ‘protection’o Cummings observed that it was mostly female children that were removed, and a removed female woman was more likely to again have her children removed too, due to the legal status given to removed children: they became ‘wards’ of the stateo The White station owners were more interested in a cheap labour force rather than Commonwealth’s social engineering, so this gender bias was proliferatedo ‘The Coloured Problem:’ it was assumed that White men would only find halfcaste women attractive, and that halfcaste Aboriginal males would only marry Aboriginal women: this influenced who was takeno The unavailability of accommodation, child are, job vacancies and any form of women’s association meant that the effect of the policy was long lasting on women and their maintenance of Aboriginal child care customs and culture

NO MORE REMOVAL?• In the 1970s the systematic removal of Indigenous children ended: Community Welfare Act

1972 (SA); Aborigines Act 1969 (NSW)• Even after the policies were abolished, Indigenous children were more likely to be removed than non-Indigenous children for their ‘safety’• COMPENSATION FOR STOLEN GENERATION: Attempts to get compensation have been unsuccessful, as it was a government policy that allowed the children to be removed. For example, failed cases:

VALERY LINOW: The first person to get compensation for the consequences of her removal from the NSW Victims Compensation Tribunal was Mrs Valery Linow, in 2003. Linow was sexually assaulted at 14 yrs. whilst working as a domestic worker on one of the farms the Aborigines Welfare Board had placed her. She was awarded $35,000 compensation for the psychological effect of the assaults. The removal itself was not regarded as a compensable matter. (Compare this with Trevorrow, who was awarded $450,000 for the psych damage and illegality of his removal in the 2007 case

ADOPTION PRINCIPLE: An Aboriginal and Torres Strait Islander Placement Principle for the adoption of children now applies in most parts of Australia (the Indigenous community fought for this).

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LITTLE CHILDREN ARE SACRED report (Pat Anderson and Rex Wild QC): in 2007 the Commonwealth govt. put in place a plan to reduce domestic violence against Indigenous children in the NT, and the report showed how the domestic violence had reached a crisis point. The Aust. Parliament introduced a package of five bills to combat this, and the Commonwealth Parliament passed the Northern Territory National Emergency Response Act 2007 in August 2007. This act is controversial as it has little to do with children (the word ‘child’ and ‘children’ are not mentioned) and more about control, and may override the

Racial Discrimination Act. 1978 SORRY SPEECH: on 13th February 2008, PM Rudd made a formal

apology to the stolen generations. Apology was made on behalf of successive parliaments and lawmakers of 5Australia. Motion proposing the apology was unanimously passed by the House of Reps. The Rudd government also promised to halve Indigenous infant mortality in five years, and to generally seriously deal with the problems Indigenous people face.

Kruger v Commonwealth (1997) 146 ALR 126: Commonwealth child removal laws were held to be Constitutional.

Cubillo and Gunner v Commonwealth [2000] FCA 1084: this case concerned children removed from families in the NT during the 1940s-50s. The primary judge rejected their claims, held that they had failed to establish that they were removed without consent, and refused to grant an extension of time because he held the Commonwealth as a defendant had suffered ‘irremediable prejudice’ because of the delay in bringing the action. The plaintiff’s appeal to Full Federal Court was dismissed.

Trevorrow v State of South AustraliaPlaintiff: Bruce Trevorrow, defendant: State of South Australia

This is a successful case where compensation was granted after the removal of an Aboriginal child was proven to have had severe psychological repercussions on the plaintiff. Defendant was found guilty of misfeasance in public office, breach of duty of care, and false imprisonment of the plaintiff. Also was found negligent, and owed plaintiff common law duties of care.

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Damages granted to address the plaintiff’s psychological damage: $450,000 and exemplary damages of $75,000 Civil case, state jurisdiction, heard in South Australia Supreme Court

Federalism in Action

1. Federation

• PE Joske defines federation as: ‘[coming] about when independent political communities, co-ordinate in status, resolve to form a common government and bring themselves together for that purpose, but without desiring complete union, and intending to preserve in some degree a separate existence with separate rights. Basically the notion of federation as that of partnership in government with a central authority to look after matters of national and international import, and localised governments to deal with the differing conditions of the local communities.’

2. The Right to Vote s41

• Commonwealth Franchise Act 1902 (Cth) provided for universal adult suffrage (21 years+) for Cth elections for people on a state electoral role, except that “No Aboriginal natives of Australia, Asia, Africa or the Islands of the Pacific except NZ shall be entitled to have his name placed on an Electoral Roll unless so entitled under section 41 of the Constitution”

• Right to vote: >Women: women in SA and WA voted in the Federation referenda - but no such rights existed for women in other States >Aboriginal people: disenfranchised. It was not until 1962 that Aboriginal people were given the right to vote via the Commonwealth Electoral Act 1962 (however not compulsory for them to vote) - In 1983 it was made compulsory. • Section 245(1) of the Commonwealth Electoral Act 1918 (Cth) states: “It shall be the duty of every elector to vote at each election”. >Every citizen 18 years+ can vote if validly enrolled and not disqualified from voting >Disqualified if: Not Australian citizens, in prison serving a sentence of 3 years or more, of unsound mind (incapable of understanding the nature and significance of voting) and if they have been convicted of treason or treachery and have not been pardoned.

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3. The Commonwealth Constitution

• Purpose: establishes federate, sets limits on state and commonwealth power. Became a central reference point for determining the law in the Cth in 1942 when the Cth severed the control of the imperial parliament over the Cth - validity no longer a matter of looking to Britian but instead to the Constitution• Enshrines a system of representative government

>Section 7: The Senate shall be composed of senators for each State, directly chosen by the people of the State >Section 24: The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth

• Inconsistency of Laws (Between Commonwealth and State laws): [Mabo v QLD (No 1 demonstrates the operation of s109]>Section 109: When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid. • Changing the Constitution >Section 128 requires majority of each house of Parlimanet, then majority of electors as a whole, in the majority of states • Doctrine of the separation of powers: the first three chapters (Ch 1 Parliament, Ch II The Executive Government, Ch III The Judicature) have determined that the doctrine of separation of powers exists in the Cth. • Constitution protects very few rights and where there are rights, each has been read narrowly and has not provided a fertile ground for the protection of rights>Express rights: -Right to vote: s41: appears to guarantee it but only to people who are over 21 and who were entitled to vote in their own state in 1902 -Right to trial by jury: s80: this right has been read down to almost no right at all -Religious tolerance: s116: but read narrowly by the courts -Equal treatment to state residents: s117 -Acquisition of property on just terms: s51(xxxi) >Implied rights: -Political free speech: HC held this was implied in the Consti

• Thoughts that arise: >The right to vote in the Aust Commonwealth is not guaranteed in the Constitution. What are the dangers and advantages of an unguaranteed right to vote?>Bill of Rights?>Republic? [We are currently a constitutional monarchy. Although the HCA made it

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clear that the underlying power of the Constitution is now the will of the people, the Constitution continues to refer to the Imperial Act which created it originally. 1999 referendum failed to make Australia a republic.]>Does the Aust Consti framework remain the will of the people?

Kable v Director of Public Prosecutions (NSW) (1997)

• Issue: Did the Act give the NSW Supreme Court power which was incompatible with Chapter III of the Federal Constitution?• Facts: Community Protection Act 1994 (NSW) allowed the Supreme Court to order (upon application) preventive detention of one individual, Kable, for the purposes of ‘protecting the community’.

• Held: Community Protection Act was found to be invalid as it was incompatible with Chapter III of the Commonwealth Constitution

>Toohey J: (majority): “The function exercised by the Supreme Court under the Act offends Chapter III which...reflects an aspect of the separation of powers...The function offends that aspect because it requires the Supreme Court to participate in the making of a preventative detention order where no breach of the criminal law is alleged and where there has been on determination of guilt”

>Dawson J: (dissent): “The failure of the NSW Constitution to vest judicial power exclusively in the judicature must be fatal to any contention that the separation of that power from the other powers of government is a constitutional requirement.”

2. Fardon v Attorney-General for the State of Queensland (2004)

• Issue: Fardon challenged the constitutional validity of section 8 on the basis that it infringed Chapter III of the Commonwealth Constitution by requiring the Supreme Court to act non-judicially when exercising state jurisdiction contrary to Kable principles.

• Facts: Fardon was convicted of rape, sodomy and assault. Sentenced to 14 years imprisonment. The Dangerous Persons (Sexual Offenders) Act 2003 (QLD) came into operation shortly after the commencement of appellant’s sentence. Appellant subjected to series of interim detention orders pursuant to section 8 of the Act shorty prior to the expiration of the sentence.

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• Held: (6:1): Sections 8 and 13 of the Act did not infringe Chapter III of the Commonwealth Constitution by offending Kable principles. The Act was enacted for the legitimate, preventative and non-punitive purpose of protecting the community from dangers seual offenders. It achieved its purpose through a complete judicial process, including many of the safeguards of a judicial trial such as a preliminary and final hearing, a requirement for full disclosure and a mechanism for judicial review.

3.South Australia v Totani (2010)

• Issue: Is section 14(1) of the Serious and Organised Crime (Control) Act 2008 (SA) valid?

• Facts: >Attorney General made a declaration against the second respondent under section 10(1) Serious and Organised Crime (Control) Act 2008 (SA). Section 10(1) of the Act empowers the Attorney General to make a declaration if he is satisfied that members of an organisation associate for the purposes of organising, planning, facilitating, supporting or engaging in serious criminal activity and the organisation represents a risk to public safety and order in South Australia. Order made in relation to Finks Motorcycle Club Inc. >South Australian Magistrates Court then made an control order in respect of the second respondent under section 14(1) of the Act. Section 14(1) requires that the Magistrates Court, on application by the Commissioner, to make a control against a person if the Court is satisfied that the person is a member of a declared organisation. The control order prohibited the second respondent from associating with other members of declared organisations under the Act and prohibited him from possessing a dangerous article or weapon.

• Held: >Majority of the High Court (6:1) considered that section 14(1) authorised the executive to enlist the Magistrates Court in implementing decisions of the executive and that the manner in which that occurred was incompatible with the Magistrates Court’s constitutional integrity

>Per Hayne J (French CJ and Kiefel JJ agreeing): The function required of the SA Magistrates Court by section 14(1) was repugnant to the institutional integrity of the court. Accordingly, section 14(1) was invalid on the basis of the Kable principle.

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>Per Gummow J (Crennan and Bell JJ agreeing): The SA Magistrates Court failed to properly discharge its federal judicial responsibilities and its institutional integrity.

4. Mabo v Queensland (No. 1)

• Facts: In 1985, while the Mabo case was proceeding, the Qld Govt sought to circumvent the issue of whether rights of Indigenous peoples survived colonisation. The Qld Govt introduced the Queensland Coast Islands Declaratory Act 1985. The Act sought to declare, retrospectively, that the intention of the legislation passed in 1879 to bring the Murray Islands within the territories of Qld was not merely to acquire sovereignty but to extinguish land rights.

• Findings: The High Court struck down this state legislation because it was inconsistent with section 10 of the Racial Discrimination Act 1975 (Cth) (RDA). The judges assumed for the time being that the kind of rights claimed in the Mabo case did in fact exist. The state law contravened the RDA because it “impaired their [the Meriam peoples’] human rights while leaving unimpaired the human rights of those whose rights...did not take their origin from the laws and customs of the Meriam people” (Brennan, Toohey and Gaudron JJ)

Race and Justice-1970s-1990s

During 1970s-1990s Australian legal system distinguished itself:• Family Law Act 1975 (Cth)- no fault divorce• Trade Practices Act 1975 (Cth)- protection for consumers• Tort law became relatively protective of injured(Socially, Australia began to pride itself on multiculturalism and tolerance)

Mabo and Ors v Queensland (No 2) (1992) 175 CLR 1

Facts:

The Murray Islanders (led by Eddie Mabo) initiated an action claiming past and present ownership of the land. The Queensland Government passed the Queensland Coast Islands Declaratory Act 1985 providing that the Act of the same name passed in 1879, served not only to acquire sovereignty but also extinguish land rights of the Indigenous people. Issues:Terra nullius: land belonged to no one; court rejected the terra nullius because Mer people had pre-existing laws; cultivated land

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(connection to the land); nothing to indicate there was extinguishment of connection to land

*keep crown TITLE (acquisition of territory)(international law); crown OWNERSHIP (colonial land-acquisition of property)(common law)

Universal and Absolute Crown Ownership: ‘crown had absolute ownership and exclusive power of murray islands’-Brennan J: Radical v Absolute Title. (fallacy between connecting sovereignty and absolute beneficial ownership of land) (native title continues to exist unless it is extinguished) (abandonment of law and customs, or a clear intention to abandon-then radical title becomes full beneficial title) were not ‘barbarians’: doctrine of tenure -every parcel of land in England is held either mediately or immediately of the King who is the lord paramount; therefore, only applies to crown grounds (ie things that don’t own their xistence to crown grounds) therefore crown acquired a radical title as opposed to absolute title. That radical title can be subject to native title rights, as long as they have not been extinguished. They had not been extinguished, therefore could co-exist. --Could not co exist with absolute title (full beneficial ownership).

Ratio: The acquisition of sovereignty by the Crown purports to a radical title instead of an absolute title in the case when native title is not extinguished. If native title is not extinguishes, the rights and titles of the Indigenous people still exist.

Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 77 ALJR 356

o Determined “in what circumstances...Indigenous connection to land warrant recognition in Western law as native title” was applicableo There would need to be a “basic continuity of traditional identification with and connection to land” since sovereignty, while not implementing new social orders, laws or customso Yorta Yorta community had altered since sovereignty and thus had surrendered their ‘traditional’ character WA Law Reform Commission, Final Report The Interaction of WA Law with Aboriginal Law and Culture,

The Wik Peoples v Queensland

Facts: Wik Peoples and Thayorre People claimed native title over lands in Queensland where pastoral leases had been granted by the Crown to non-Aboriginal lessees in 1915, 1919, 1945 and 1973.

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Issues:[BRENNAN CJ] Whether “the pastoral lessees did...acquire a right to exclusive possession of the land the subject of the lease and” whether the right to exclusive possession precludes native title or whether it is the exercise of that right to specifically exclude the holders of native title.

Outcome: The appeal was allowed in part.

Legal Reasoning: It was determined that leases were granted for the exclusive right of “’pasturage for their cattle and of cultivating such Land as they may require...but...these Leases are not intended to deprive the Natives of their former right to...the manner [by] which they have been heretofore accustomed’”. Therefore there was no total exclusion of Indigenous people from their land and if proven, native title may still exist.

Ratio Decidendi: Pastoral leases did not confer total exclusive possession to lessees to the point that native title was extinguished at the time of the grant.

Obiter Dicta: [Postscript] “If inconsistency is held to exist between the rights and the interests conferred by native title and the rights conferred under the statutory grants, those rights and interests must yield...to the rights of the grantee [lessees]”. Brennan J found that if access to land is vital to native title, then there will be an inconsistency with the rights of the lessee as native title cannot be fully exercised at the same time

‘Recognition of Aboriginal Customary Law’

• Centrality of Aboriginal law to every respect of a person’s life (i.e. nature of relationships, marriage restrictions, travel restrictions, amount of cultural knowledge an individual may acquire)• What constitutes Aboriginal law? Who is bound by customary law?o The courts cannot implement an arbitrary test, it must be determined by the Aboriginal community itself, and the individuals who voluntarily form a part of these communities• Conflicts with international law:

o Specific recognition of laws for a section of society would violate the notion of equality before the law. However, Aboriginal people have been viewed differently as they are not simply an ethnic minority, they are the original inhabitants; and the inequality of the past suggest the need for affirmative actiono Customary practices may contravene international laws (i.e. spearing and nonconsensual child marriage)• Needs to be a ‘case-by-case basis’• Affirmative Action:

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o Statutory provisions for courts to take account of aboriginal customary lawo Whole-of-government approach to service deliveryo Models of self-governmento Recognition and removal of existing cultural biaseso Recognition of traditional Aboriginal marriageo Empowerment of Aboriginal Elders to play a role in the administration of justiceo Preamble to the Constitution recognising Aboriginal people as original inhabitantsAust. Signals different processes of legal reasoning and procedures.

Law v Equity

The rise of equity (Lord Chancellor)

• Equity arose from the first appointment of a Lord Chancellor- formerly: head of the king’s clerks or secretariat (chancery)o Royal writs and charters were written and authenticated by the Chancelloro Until 14th century if justice was not delivered, the litigant had a right of appeal to the King in Council (Chancellor was a dominant figure)o By 15th century, petitions went directly to the chancellor who sat in the Chancellor’s court also referred to as the court of conscienceo What the common law failed to achieve, Chancellor ensured justice was pursued; he had to work around the common law not contradict it- later: chancellor assumed the role of chief adviser- modern day: speaker of the house of Lords and a lawyer by practice• Lord Chancellor sought to address the adversary’s conscience – ‘compel him to do what justice or good conscience or ‘equity’ required of him- developed new rules and remedies that could supplement and combat the rigidity of common law in areas where it was unresponsive to social change• e.g. recognition and enforcement of ‘uses’o enabled the beneficiary (church or children) to obtain lands after deatho Lord Chancellor in 14thC enforced uses by ordering the trustees to exercise their rights as legal owners for the benefit of their beneficiaries• Equity continued to concern rights of private property and admin of wills and estates

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Women and equity – R Atherton and P Vines, Succession: Families, Property and Death…• Equity tried to safeguard women’s property rightso Recognition of married women’s separate estate and this recognised their rights of disposition (but limitation on her powers to deal with the property) and will-makingo However equitable procedures of marriage settlement and trusts were expensive hence only available to wealthier classes of women

-Exclusive (areas completely covered eg trusts, fiduciary duties/relationships (solicitor-client)(board of directors-shareholders)) =equity as its own course of action. (damages not sufficient remedy as cannot replicate )-Auxiliary (supplementary to common law, when common law remedy is inadequate(‘inequitable’))-in 1870-72, English Judicature Act reformed so law and equity could be done in the same court (NSW in 1972) -In many areas of law, equity works with common law to enforce matters of equity (eg, property, trusts, mortgages and charges, interests)-Doctrine of Conversion, ademption, satisfaction, performance, marshalling and equitable relief against forgeitures-recognises/enforces fidicuary (trust and confidence where fidicuary in position of trust, supposed to act solely in interest of other) relationship-Remedies given where equitable right is infringed or where common law is inadequate-equity is defined ‘accord to conscience’-‘common standard of civil right and experience combined…a judicial and not a personal conscience’ (National City Bank v Gelfert (194) 130 HR 1472, 1475).

Maxims of Equity Equity will not suffer a wrong w/o remedy Equity follows the law Where there is equal equity the law shall prevail Where equities are equal, first in time prevails He who seeks equity must do equity He who comes to equity must come with clean hands Delay defeats equity Equity looks to intention rather than form Equity looks on that as done which ought to be done Equity inputs an intentions to fulfil an obligation Equity acts in personam Equity does not assist a volunteer (no consideration, you

can’t get something for nothing)

Harris v Digital Pulse Pty Ltd (2003) 56NSWLR 298

Facts: Harris and Eden were employees of Digital Pulse. By contract they were obliged not to compete with Digital Pulse, however

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started a company, which took some of Digital Pulse’s clients whilst still employed by DP. The judge found they had breach their fiduciary and contractual duties, that Harris had misused confidential information causing losses to DP and produced unjustified gains for himself. They were ordered to pay equitable compensation and exemplary damages. They sought leave to appeal against the award of exemplary damages, normally a common law (tort) remedy.

Issue: Incompatibility b/w punitive/exemplary damages in the context of fiduciary obligations because of a contract of a specific character and principles applicable to contract at both common law and in equity.

Spigelman CJ:

-‘common law develops from the bottom up not the top down’ (specific facts are bottom, as opposed to civil law code, continuously applied)(distinct bodies of doctrine, interaction exists, lines blur, but remain distinct bodies) -historical continuity-case presents nothing ‘new’, no need to change operation of law (equity was entirely separate) -fusion fallacy, law and equity remained separate, does not exclude their interaction, just that they are ‘conceptually distinct’-Analogy with tort or contract: contract analogy, where punitive damages cannot be awarded (distinct from Canada).-(Equity requires) Balancing of rights and interests between two parties-not used in exemplary damages-Awarding punitive damages would be incompatible with the law applicable in contract and equity-particularly in equity. Law should not be developed with this kind of incompatibility.

Citicorp Australia LTD v Hendry (1985) 4 NSWLR 1, 39, ‘any discretionary element in the granting of the equitable relief against the enforcement of the penalty vanished’-applied.

‘Nothing suggests that, in the case of a contract enforceable at common law, equity would intervene to override the application of the common law doctrine of penalties on the basis of egregious behaviour on the part of the person seeking to set aside the hypothetical term as a penalty’.

Mason P: Dissent

-Balancing of rights and interests is not necessarily required-Fusion fallacy is fallacious and historically unsound-Equity and Common law could adopt and adapt each other’s principles -‘Fused administration’ = judges with understanding of both divisions

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novel manifestations of the ‘common law method’ happening to reside in equity’

‘the jurisdiction to remedy breaches of fiduciary duty extends to decreeing compensation to the person whose confidence has been abused’ McKenzie v McDonald [1927] VLR 134, 146

‘Equity protects many relationships, sometimes concurrently with common law sometimes exclusively’ 121

-Historical Consistency: ‘consistency and coherence’ ‘the idea that equity might be involved with latter

(punishment) is…unprincipled.’ ‘Remedies designed to strip improper gains’ ‘defaulting fiduciaries being restorative and compensatory,

not punitive’ Equitable remedies can vindicate public as well as private

rights ‘equity reveals itself readier to select a more stringent remedy

if the fiduciary’s default is deserving of punishment’

-Tort v Contract Analogy: tort: ‘fiduciary obligations are imposed by law…distinct from

merely giving effect to the negotiated private arrangement that is a contract’.

-‘it would be fallacious to hold in the present case that simply because the plaintiff could have sued in tort...and recovered exemplary damages, exemplary damages are automatically available in equity’.-‘the availability of exemplary damages should be coextensive with the rationale of the remedy’. -‘equity has embraced the role of supplementing common law…to achieving a just result’

HEYDON JA-equitable duty of skill and care is equitable compensation rather than damages, this is merely the product of history’-no difference from damages-Gray v Motor Accident Commission (1998) 198 CLR 1, ‘exemplary damages should not operate as a double punishment’. –Mason’s outcome would confuse function of civil law (compensate) with criminal (punish) -Trial judge was frank and correct in acknowledging he was making a new law…resulted in imposition of criminal sanctions never seen before- Aquaculture Corp v NZ Green Mussel Co LTD, ‘a full range of remedies should be available as approporiate, no matter where they originate in common law, equity or statute.’-No precedent/convincing reason to overturn the lack of law allowing exemplary damages in equity.

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Appeal allowed, as the law did not denote ‘revengeful’ purposes for equity and it was not the role of the court to change the law.

Doctrine of Precedent

Development of Reports·  Written reports began in 1260, initially for purpose of dictating ‘legal

chess’, to bring trial to one fact (joinder of issue) for the judge’s determination. (Example of Detinue writ, pg 71)

1. Deliver a count (first statement of complaint)(keeping strictly to writ)

2. Defendant made denial of writ, word for word, offering to prove it3. Defendant argued exceptions to writ or facts4. Plaintiff would respond (replication)5. If successful, defendant then had to traverse (deny facts) or ‘confess

and avoid’ (admit to some, deny others, put forward other facts)6. If plaintiff were defeated on one point, he was ‘non-suited’.

Therefore, early ‘doctrine of precedent’  (in year books) was created for the legal profession, and the cases themselves were not as relevant as terms of writs, focused on oral proceedings (as they became written).

1. Edmund Plowden first published law reports in 1571. He shifted to written, not oral proceedings. This began specific references to cases versus general recollections of judges. He eventually published cases an issue of law had been decided. (considered of highest quality for 200 years forward)

2. Sir James Dyer, Chief Justice of Common Pleas, published until 1582.3. Sir Edward Coke brought 11 volumes in 1600. In 1606, he was

appointed Chief Justice of Common Pleas.  (considered bias)4. 1640s/50s, lawyers’ notes (decided under Elizabeth and James)

were to be published.5. 1856, Council of Law Reporting set up in England6. In Australia, Council of Law Reporting in 1860

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Doctrine of Precedent-stare decisis et no quieta movere, ‘to stand by what has been decided and not to disturb settled points’.

Classic Formulation

-Must follow ratio decidendi (rule/reason for decision) of higher court.-Obiter is material said by the way-not binding-Follow/apply/distinguish-Reasonably distinguishable Nash v Tamplin & Sons Brewery Brighton LTD [1952] AC 231.-Ratio is expressly or impliedly treated by judge as necessary step in reaching conclusion, i) rule of law for which a case is binding ii) rule of law to be found in the actual opinion of the judge

What is Binding?-s23 Judiciary Act- outcome is determined by majority of judges-the opinion of the Chief Justice will prevail

Dorset Yacht Co Ltd v Home office-inductive (from the particular to the general), then deductive reasoning (general to particular, major premise goes to example, applies).‘The cases which are landmarks in the common law are instances of cases where the cumulative experience of judges has led to a restatement in wide general terms of characteristics of conduct and relationships which give rise to legal liability.’

Donoghue v Stevenson [1932] A.C. 562

‘it is very necessary in considering reported cases in the law of torts that the actual decision alone should carry authority, proper weight, of course, being given to the dicta of the judges’

Theories about Precedent -Natural Law: a belief in a system of law common to all people, derived from supreme force in the universe of God, recognising relationship between law and morality -Positivism: a belief in a system of law created by men-requires obedience. Positivists argued for law as science, for more investigative techniques.John Austin, law is ‘set by a sovereign person...to a member of that political society wherein that person or body is sovereign or supreme’- command theory –it is enforceable -Legal Formalism: continuity, objectivity and absence of controversy-induce public confidence.

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-if principles of law are deducible from past precedents, there is no place for personal predilections and values of the individual judge-complex separation of law from politics and policy. -Declaratory theory: judges investigate and find the law, declare what it is and has been. -Blackstone: ‘the decisions of courts of justice are the evidence of what is common law’-law is applied in new ways not created -Legal Realism-‘life of law has not been logic it has been experience; empirical law/truth. How do judges judge which cases are alike? Cases chosen by ‘categories of illusory reference’. Ratio is then a ‘perfect medium for creation of multiple and contempting references’-Critical Legal Studies (realism offspring)-deconstruction methodology shows there are always alternative arguments available in a case. Any privileging of argument is actually political. -Feminist theory: claims that law is neutral and objective are false. –tort law recognises & remedies certain harms but overlooks and marginalises others. Tort law is concerned with justice of the system. Dichotomy between rationality and masculine characteristics. -Declaratory law fault: the law cannot only be opened by judges. -Judicial activism: the court is not free to adopt rules 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 (mabo 29)-Death of rule of law? ‘often no cases are followed, though all are referred to. …the desire to litter judicial decisions with the judge’s opinions on every subject…the desire to state the applicable law in a manner entirely unconstrained by the way in which it has been stated before because of a perception that it ought to be different”-judges want to achieve immortality (Justice Dyson Heydon)

What restrains judges? -Skeleton of principle-‘Law is organised to preserve, maintain and draw systematically upon the legal of the legal past in its present. Judges are official interpreter and guardians…The tradition and its participants customarily govern values which are found appropriate, rather than the other way around’. -Actual writing/reading by peer group means readership may have some restraining influence. –prospect of appeal incites austerity -Ronald Dworkin, judges write each case as if it were a chapter in a ‘chain novel’, constrained to write it by the need to maintain coherence in the novel and the best interpretations of previous chapters.

Dugan v Mirror Newspapers [1978] HCA 54

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Jacobs J: That law would be that a person who had been sentenced to death for a felony committed in NSW kept in penal servitude was disables to bring action-the question to be decided is no wider than that. The death penalty was only abolished in 1955, only after that could the attained bring action. Murphy J: If a rule is inconsistent with judgment, you should not hesitate in abandoning it. (Moral force). Corruption of the blood: the prisoners family can’t inherit their property, their ‘blood’ is of the wrong type. CASE QUESTIONS ABILITY OF PRISONER TO BRING CIVIL ACTION-DENIED-KIRBY CONSIDERS THIS A THREAT TO THE FOUNDATIONS OF THE AUSTRALIAN LEGAL SYSTEM

Interpreting Statutes

Our society is being more and more regulated by statute. It’s estimated that 50% of cases require judges to interpret a statute and in 25% of cases the courts simply apply a statute without interpreting it.

Any legislation which is passed must be within the power of the parliament in accordance with the Constitution – otherwise the statute is ultra vires. High Court determines whether an Act is ultra vires by the process of judicial review.

How Does a Bill Go Through Parliament?

House of Representatives:1. Notice of motion by the minister (or private member)2. Introduction – 1st reading: the bill becomes a public document3. 2nd reading: very important for later interpretation of Act4. Debate on the bill about the general principles5. Committee stage (optional)6. 3rd reading

Senate:

1. 1st reading2. 2nd reading3. Committee of the Whole4. 3rd reading

The bill is then returned to the House of Representatives, and clerk gives it to the governor for Royal Assent. It then becomes an Act. In the Commonwealth, legislation comes into force 28 days after receiving Royal Assent.

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How Are Statutes Classified?

• Private & public – most statures are public that operate on the community at large.• Subordinate/Delegated legislation – there are small details of the operation of the law which have not been finalised so the Act contains authority for the governor to make delegated legislation to establish the details:o Ordinances (for territories)o By-laws (municipal councils)o Rules (to administrate gov departments)o Regulations (made by Cabinet)

Judicial review is available to determine whether the delegated legislation is within the power given by the Act (Namatjira!!).• Codes and consolidated statues – when statutes are amended parliament may issue a reprint of it. This is different from a consolidation, which brings together a number of statutes under the same subject umbrella. A code (used more in civil law countries) incorporates the statutes AND case law belonging to the same subject area.

How Is An Act Structured?

1. Long title – states its purpose2. Short title – for citation3. Words of enactment – words which authorises or legitimises the statute: “the Legislature of NSW enacts: Roger is awesome”

4. Definitions – what courts interpret

The Traditional Rules of Interpretation

Note: common law always give way to statute where there is conflict. The below rules are just guidelines rather than laws subject to the doctrine of precedent.

• Literal rule:o Judges are bound by the language of a statue – dictionary meaningo Lord Diplock: statute applies even though there is reason to think that if the Parliament had foreseen the situation before the court it would have modified the words usedo R v Ojibway –demonstrates absurdity of literal rule: “We are not iterested in whether the animal in question is a bird or not in fact, but whether it is one in law”• Golden rule:o Used when the application of the literal rule results in absurd situations or results in

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repugnancy with the rest of the legislationo Departing from the prime facie meaning of wordso Rejects Lord Diplock’s claim that statute can’t change if it doesn’t do justice• Purposive approach:o Used when legislative language is unclearo Developed from the mischief rule which looks at the ‘mischief’ parliament is trying to prevento However this approach is limited It doesn’t work with legislation to cover new policy. It’s hard to determine parliamentary intention from just looking at the words.

• The Latin maxims:o Noscitur a sociis – words are limited by its contexto Ejusdem generis – sets out a list to categorise items rather than stating every single1o Expression unius est exclusio alterius – an express reference to one thing ONLY indicates that others are excluded.

Presumptions of Stat. Interpretation

• Parliament does not interfere with human rights• No retrospectivity• Legislation doesn’t bind Crown• Parliament does not legislate extraterritorially• Later laws appeal earlier ones

Potter v Minahan

Facts – man born in Aus, mother is British and father Chinese. Moved to China after living here for 5 years. Upon return to Aus, he is subject to dictations test which he failed.

Legal Issues

– Interpretation of statute: Immigration Restrict Act 1901– Is the man an ‘immigrant’?

Legal Reasoning

- Literal interpretation: defined the words ‘immigrant’, ‘home’ and ‘domicil’, came to the conclusion that an absence, no matter how long, from a country still means that country is his home IF there is always an intention to return.

- Golden rule: counsel for appellant absurdly contended that the legislature had used the word ‘immigrant’ in a sense much wider

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than its everyday meaning, that every person entering Aus is prima facie an immigrant!

o Judge responds: expression unius est exclusion alterius: the statute does not intend to make any alteration in the law beyond what it explicitly declares.

- Purposive approach: the purpose of the Act is to prevent people whom the legislature has determined not permitted to become members of Aus community to enter Aus.

Outcome (based on purposive view) – it is prima facie evidence that his home in infancy was in Aus, he never did establish his permanent home in China.

Ratio – In returning to Aus he was coming back to the home which he never abandoned. The man was not an ‘immigrant’ within the meaning of the Act.

Royal College of Nursing of the UK v Department of Health and Social Security

Why are we studying this? – this is a case dealing with controversial subject of moral and social judgments where there’s very heated debates. [It’s ironic that we are using the objective machinery of ‘artificial reason’ that is the law in dealing with this sensitive issue]

Facts: the Abortion Act 1967 provided that no offence was committed when a pregnancy is terminated by a registered medical practitioner. The Department thought nurses give abortions under this law. The college of nursing disputed that view. The present is the Department’s appeal to the House of Lords.

Legal issue – are nurses included as ‘a registered medical practitioner’, and can they give abortions under this law.

Dissenting judgment (literal view)

• We shouldn’t extend expressed meaning of the statute if it’s clear that it was designed to be restrictive in operation.• We cannot ask the question ‘what would Parliament have done in this current case if they knew the facts when they made the law’• Stresses the distinction between construction of statute, and rewriting it.• Dissenting decision – an extension of the act can be affected by judicial decision.o Outcome: nurses CANNOT give abortion.

Majority Judgment (purposive)

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• Doctors’ job is a team effort – they might instruct nurses to perform things forming part of the treatment.

• RATIO – the Act applies not only to the registered medical practitioner (a doc) by whom a pregnancy is terminated, it extends to any person who takes part in the treatment.

What is the modern approach to interpreting statutes?

The literal rule has given way to the purposive approach, as Potter v Minahan demonstrates.

Legislation has been passed that allows the use of purposive view where there is an ambiguity, and further allows the use of extrinsic material to assist the interpretation of statute.

TORT During the 19thcentury, one of the ways that the British Empire protected its legal system was through the doctrine of freedom of contract. -Langridge v Levy-relationship b/w contract and sort (gun and son) A distinct fraud was committed on the plaintiff- the falsehood of the warranty was within the knowledge of the defendant who made it, and as such he is properly held liable for the consequences. Doesn’t seek to alter Privity of ContractA vendor who has been guilty of fraud or deceit is liable to whomsoever has been injured by that fraud, although not on of the parties to the original contract, provided that their use of the product was contemplated by the vendor.

-Winterbottom v Wright-privity of contract: The defendant Wright had a contract with PMG (Post Master General) to provide a coach to move mail-Atkinson had a contract with PMG to convey the coach and to supply horses and coachmen-The plaintiff Winterbottom was a coachman employed by Atkinson (contract of employment) who was lamed for life when a coach he was driving broke downOutcome or Decision:Judgement for the defendant- PMG had no obligation to maintain the coach“Unless we confine the operation of such contracts as this to the parties who entered into them, the most absurd and outrageous consequences, to which I can see no limit, would ensue.”

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- This was based off the idea that a contract was a meeting of minds between two free and equal parties.- This was to give contract law great primacy as a vehicle for business and commercial activities (important for industrialization)- The view came to prevail that where a contract existed between defendant and third party, the plaintiff could not be owed a duty in tort. (development of the doctrine of privity of contract)

Significantly curtailed the situations in which an action in tort could exist.

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