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
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 meaning immigration implies leaving an old home in one country to settle in a new home in another country” à considering someone an immigrant who is returning to their country of birth is a contradiction of the term - Bryant (on behalf of the appellant): immigrating into Australia must be taken to mean entering Australia - O’Connor J – “What is the scope and purpose of the act?” o To prevent the entry into Australia of persons from other countries whom the legislature has determined ought not… to be permitted to become members of the Australian community o “The foundation of law of the respondent’s case is the unimpeachable proposition that a person cannot be an immigrant into the country which is his home.”
Legal Reasoning - O’Connor J – the respondent was not an immigrant by the definition of the word, and was not subject to the dictation test therefore the appeal failed - O’Connor J – “I therefore agree in the conclusion on the facts that the respondent never did establish his permanent home in China, and that in returning to Australia he was coming back to the home which he had never abandoned….in my opinion the respondent was not an ‘immigrant’ within the meaning of the Immigration Restriction Act.”
Outcome Appeal failed, since the respondent was not an immigrant
ROYAL COLLEGE OF NURSING OF THE UNITED KINGDOM V DEPARTMENT OF HEALTH AND SOCIAL SECURITY
Case Citation Royal College of Nursing of the United Kingdom v Department of Health and Social Security [1981] AC 800; [1981] 1 All ER 545; [1981] 2 WLR 279
Material Facts - Abortion Act 1967 (UK) provided that no offense was committed when a pregnancy is terminated by a registered medical practitioner in certain circumstances - When the method changed from surgical to chemical termination in 1972, this involved a doctor inserting a catheter into the uterus and a nurse administering a fluid drip through the catheter (the fluid caused the termination not the catheter itself) o A circular was issued by the Department of Health and Social Security to nurses which stated that no offense was committed by nurses who carried out this procedure (as they thought a nurse was considered under the title medical practitioner) - The Royal College of Nursing disputed the view that a nurse was considered a medical practitioner as the act required
Legal Issues The definition of medical practitioner
- The appellants contend that the Act is framed in sufficiently wide terms to authorise what the department says is lawful à their contention was that the words ‘pregnancy is terminated by a registered medical practitioner’ mean ‘pregnancy is terminated by treatment of a registered medical practitioner in accordance with recognised medical practice’ - For a nurse to engage in abortifacient acts cannot… be in accordance with recognised practice - Lord Wilberforce – “I am unable to read the words ‘pregnancy terminated by a registered medical practitioner’ as extended or extensile to cover cases
7 where other persons, whether nurses, or midwives, or even lay persons, play a significant part in the process of termination” o “A new dimension has been introduced: this should not be sanctioned by judicial decision, but only by Parliament after proper consideration of the implications and necessary safeguards”
Legal Reasoning - Note: Wilberforce dissenting Diplock - Lord Wilberforce – “I am of opinion the development of prostaglandin induction methods invites, and indeed merits, the attention of Parliament… I agree with the judgments in the Court of Appeal that an extension of the Act of 1967 as to include all persons, including nurses…is not something which ought to, or can be, effected by judicial decision. I would dismiss the appeal.” - Lord Diplock: “In my opinion in the context of the Act, what it requires is that a registered medical practitioner, whom I will refer to as a doctor, should accept responsibility for all stages of the treatment for the termination of the pregnancy… the doctor need not to do everything with his own hands… carried out in accordance with his directions and of which a registered medical practitioner remains in charge throughout… I would accordingly allow the appeal and restore the declaration by Woolf J.”
Outcome/Ratio Appeal allowed
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