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Introducing Law and Justice

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Introducing Law and Justice INTRODUCING LAW AND JUSTICE CONTENTS Topic Page Number Statutory Interpretation 3 Overview of the Australian Legal System 9 The Court Hierarchy and Courts in Action 12 The Modern Lawyer and Professional Identity 14 Impact of Settlement on Indigenous Inhabitants 16 Development of Parliamentary Democracy 20 Classifying Law 33 Precedent and Change 36 Intentional Torts and the Rise of Negligence 41 CASE INDEX Case Page Number In Re Edith Haynes 5 Kingston v Keprose 5 Lawson v Dunlevy 6 Potter v Minahan 6 Royal College of Nursing 7 Mabo and Ors v Queensland (No 2) 9 The WiK Peoples v Queensland 10 R v Wedge 12 Namatjira v Raabe 16 Milirrpum v Nabalco Pty Ltd 17 Prisoners A-XX 20 Union Steamship Co 25 1 Kable 26 Cooper v Stuart 26 Dugan v Mirror Newspapers 27 Attorney-General v Trethowan 28 Viro v The Queen 29 Kable v Director of Public Prosecutions 31 R v WacKer 33 Harris v Digital Pulse 35 Dorset Yacht Co v Home Office 36 Donoghue v Stevenson 40 Hutchins v Maughan 42 Scott v Shepherd 43 Brion Rixon v Star City 44 Tuberville v Savage 44 Barton v Armstrong 45 ZanKer v VartzoKas 45 Balmain New Ferry v Robertson 47 Marion’s Case 48 George and Wife v SKivington 49 Langridge v Levy 49 Heaven v Pender 49 R v Wright 50 Trevorrow v State of South Australia 51 WilKinson v Downton 52 Williams v Milotin 52 Winterbottom v Wright 52 2 STATUTORY INTERPRETATION OVERVIEW - Society is becoming increasingly regulated by statute - Common law gives way to a statute where there is a conflict between them o Common law judges can interpret statutes differently, therefore, the rules of interpretation are important in ensuring stability in the system MODERN (PURPOSIVE) APPROACH - Fundamental rule is that the court must interpret the statute to give effect to the expressed intention of parliament o The strict nature of the three traditional rules must give way to a wider contextual approach - All Australian jurisdictions have statutes which govern the process of interpretation which overrule the traditional common law rules o Allow the use of material which is extrinsic to the statute to govern the interpretation Acts Interpretation Act 1901 (Cth) Feature Explanation Purpose The aim of this act is to give effect to the intention or purpose of the Parliament and now Overrules the traditional approaches of Common Law s 15AA “In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.” The act must be interpreted in light of the intended purpose of parliament in making the act. s 15AB Use of extrinsic material in the interpretation of an Act (1) Subject to subsection (3), in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material: (a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or (b) to determine the meaning of the provision when: 3 (i) the provision is ambiguous or obscure; or (ii) the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable. Extrinsic materials can be used to assist in determining the meaning of the act: - To confirm the meaning is the ordinary meaning of the text, taking context into account - Determining the meaning when the provision is ambiguous TRADITIONAL (COMMON LAW) APPROACH Literal rule Intent of the parliament that made the statute Examination of the language used in the statute Obey the meaning of the language directly Understanding of the words in their context Golden rule Court modifies the meaning under the literal rule where the result would be inconsistent with the rest of the legislation Mischief rule Essence of the purposive approach Interpretation according to the intended purpose of the act - Presumptions: o There is the presumption that parliament does not interfere with fundamental rights o Presumption against retrospective operation of the statute o Legislation does not bind the Crown o Parliament does not legislate extraterritorially o Presumption that later laws repeal earlier laws o Presumptions are rebuttable by evidence RESOLVING AMBIGUITY 1. Take the literal approach, which is the clear and ordinary grammatical meaning which will prevail, but in the case of ambiguity; 2. Take the purposive approach, by examining the purpose of the act in its context, but in the case of ambiguity; 3. Use extrinsic materials to determine the intended purpose of the act, but in the case of ambiguity; 4 4. Use common law rules and presumptions if and where relevant to the decision. IN RE EDITH HAYNES Case Citation In re Edith Haynes [1904] 6 WALR 209 Material Facts Edith Haynes sought to be admitted as a legal practitioner under the Legal Practitioners Act 1893. The Board refused to admit her on the grounds that she could not be admitted to practice under the Act. She obtained a rule nisi calling on the Board to show why a writ of mandamus should not issue directing the board to admit her to the examination. Legal Issues Can a woman be admitted as a legal practitioner? Legal Reasoning Parker J - The idea of a woman practicing in the Supreme Court seems to me quite foreign to the legislation which has prevailed for years past, not only here but in the mother country - I am not prepared myself to create a precedent by allowing the admission of a woman to the Bar of this Court - If the Legislature desired that a woman should be capable of being admitted as a practitioner of this court… that they should have said so in express language - The court has a perfect right to refuse Burnside J - The Common Law of England has never recognised the right of women to be admitted to the Bar - The Statute says “every person”… there is nothing conferring a right on women to be admitted as solicitors - The Medical Act says “every person, male or female, may be a doctor”. Those are different words to what are used in the Legal Practitioners Act Outcome/Ratio Haynes’ request was denied, and she could not obtain a writ of mandamus to direct the board to admit her to the examination KINGSTON V KEPROSE Case Citation Kingston v Keprose (1987) 11 NSWLR 404 Material Facts N/A Legal Issues Whether the grammatical meaning gives effect to the intention of parliament Legal Reasoning McHugh JA “The rule of law enacted by a statute consists of a proposition… the proposition may be neatly contained in a single sentence, or it may be deducible from a number of sentences in a number of sections or paragraphs.” Lord Reid “if the words ‘are capable of more than one meaning, then you can choose between those two meanings, but beyond that you must not go” Purposive approach: 5 - “Purposive construction often requires a sophisticated analysis to determine the legislative purpose and a discriminating judgement as to where the boundary of construction ends and legislation begins.” - “Once the object or purpose of the legislation is delineated, the duty of the court is to give effect to it in so far as, by addition or omission or clarification, the relevant provision is capable of achieving that purpose or object.” Outcome/Ratio N/A LAWSON V DUNLEVY Case Citation Lawson v Dunlevy [2012] NSWSC 48 Material Facts Mr Lawson was arrested for assault occasioning bodily harm. He was granted bail with specific requirements, one of which being that he was not to consume alcohol for any reason, and submit a breath test to a police officer at any time if requested. Mr Lawson appealed against this provision. Legal Issues Was the bail condition imposing a requirement to submit a breath test when requested by a police officer unlawful? Legal Reasoning Garling J - Preventing an individual from consuming alcohol as part of their bail conditions is lawful under the required statute - The lawfulness of the demand rests on the interpretation of “promoting effective law enforcement” in s 37 of the act o “A condition which is designed to enable a more ready proof of a breach of the agreement, or else to deter a breach of this agreement does not either directly or indirectly address any issue of law enforcement” o “It does not seem to me that either of the two purposes stated by the second defendant to justify the impugned condition fall within the purpose of ‘promoting effective law enforcement’” Outcome/Ratio The obligation is unlawful as it is not in accordance with the Bail Act 1978 (NSW), since it does not promote effective law enforcement. The judge found for the plaintiff, and ordered the second defendant to pay costs. POTTER V MINAHAN Case Citation Potter v Minahan (1908) 7 CLR 277 Material Facts - Respondent entered the Commonwealth from China and would not sit the dictation test o Illegitimate son of a British woman, born in Australia o Moved to China at age 5 with his father, who later died, and he sought entry into Australia - He was born in Australia Legal Issues - Definition of the word immigrant: not a word with a technical meaning, and must be used in its ordinary signification - O’Connor J: “the offense o failing to pass the dictation test was not proved” 6 - Justice Cussen in Ah Sheung v Lindberg: “In its ordinary
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