Sources of Law
Christopher Enright
Clare Cappa
Second Edition
Sinch for smarter lawyers ! Sinch Business Name Sinch Firm Name Sinch Software Pty Ltd Seminars www.sinch.com.au Products www.sinch.com.au Books www.legalskills.com.au Email [email protected] ! Copyright © Christopher Enright 2015
National Library of Australia ‘Cataloguing in Publication’ Author Enright, Christopher 1947 – author Title Sources of Law / Christopher Enright, Clare Cappa Edition 2nd edition ISBN 9780994371195 (paperback) Notes Includes bibliographical references and index Subjects Law – Australia Other Creators / Cappa, Clare, author. Contributors Dewey Number 340.11
Cover Design and Editing Cover Design Howard Randell Eye for Image www.eyeforimage.com.au
Authors
Christopher Enright Christopher Enright is qualified as a barrister, solicitor and chartered accountant. Chris has a Master of Commerce (Management) from the University of New England. In a former life Chris lectured in law and management at various universities. Much of his research time as an academic was working in the much-neglected field of legal skills. This research was directed to the major tasks with law, especially those that involved reasoning. These tasks are organising law, making law, interpreting law, applying law to facts, proving facts, exercising a discretion, researching law and writing law. The aim was to simplify and systematise these tasks by developing a step-by-step guide to performing them. The ideal was that this guide was as close as possible to an algorithm. The ultimate goal was to enable law schools to train lawyers so that they could understand these tasks and, when required, perform them effectively and efficiently.
Clare Cappa Clare Cappa is a Senior Lecturer at the TC Beirne School of Law at the University of Queensland where she teaches in a variety of public law areas. Clare has vast experience in teaching introductory law subjects to both first year law students and to non-law postgraduates. For this reason, Clare has an abiding interest in ensuring that readable and accurate information about the Australian legal system is easily available. Clare’s research areas include less adversarial outcomes within the criminal justice system (her doctoral research was on the efficacy of drug courts) and as well as the process of incorporating ethical understanding throughout the law school curriculum.
iii
Legal Skills Series
This book is part of a series of textbooks that explain legal skills. The table below sets out the books in the series.
Authors Title Christopher Enright Legal Reasoning Christopher Enright Legal Method Christopher Enright Legal Writing Christopher Enright Proof of Facts Christopher Enright A Method for Interpreting Statutes Christopher Enright Drafting Readable Statutes Christopher Enright & Clare Cappa Fundamentals of Legal Research
v
Preface
Students who are beginning their law studies need to become familiar with the various sources of law that operate in the Australian legal system. For two reasons the task of explaining these sources is difficult to simplify. First, by their nature sources of law incorporate a considerable amount of detail.
Second, the amount of detail has expanded due to the structure of the Australian Constitution. The key is this. When the Commonwealth of Australia Constitution Act established a federal system of government for Australia it made possible the creation of 16 legal systems. It is true that six of these are the legal systems of minor territories but the other ten legal systems – those of the Commonwealth, the six states and the three major territories (Norfolk Island, the Northern Territory and the Australian Capital Territory) – account for substantial detail with a consequent complexity.
The first edition of this book covered all jurisdictions. However there was a price in that there was sacrifice of some detail plus the fact that for reasons of space and readability the account was abbreviated. In this second edition the book focuses only on the Commonwealth with only passing and occasional references to the position in the other jurisdiction. This allowed a simpler account. It enables us to be more detailed. It enabled us to set out the structure of many of the provisions in preference to a ‘once over lightly account’.
There are some obvious ways in which law teachers and readers can offset the lack of detail for sources of law in the States and territories. The most basic and obvious response is to prescribe the various pieces of legislation that deal with sources of law in the relevant State or territory. Them there are two approaches that will then be helpful. First, note where the Commonwealth law and the equivalent law in the State or territory are similar. Second, where the equivalent law in the State or territory is not similar to that of the Commonwealth set exercises for students that involve making a structured account of the equivalent law in the State or territory – this furnishes double value because it wises the students to the relevant provision and gives them supervised practice at one of the basic skills for working with law.
This book endeavours to set out the detail of the sources of law in a structured and coherent way. We hope that this will enable readers more readily to grasp these details and in so doing, take an important step in equipping themselves for the study of the Australian legal system.
vii viii Preface
For the most part the book describes sources of law by reference to their function as sources. There is, however, an exception with regard to common law. The reason for this exception is that it is difficult to separate common law as a source of law from the processes of making common law. This process is based on precedent, so the discussion of common law covers the twin pillars of precedent namely ratio decidendi and stare decisis.
Christopher Enright Clare Cappa Newcastle University of Queensland 25 July 2015
Date of Law
Commonwealth Statutes Last Amendment Acts Interpretation Act 1901 Statute Law Revision Act (No 1) 2015 Legislative Instruments Act 1901 Statute Law Revision Act (No 1) 2015 Legislative Instruments Regulations 2004 SLI No 187, 2014
ix
Contents
Authors ...... iii Legal Skills Series...... v Preface...... vii Date of Law...... ix Contents...... xi Table of Legislation...... xvii Table of Cases...... xxxix Table of Latin and French Expressions ...... xli Table of Diagrams...... xliii Table of Websites ...... xlv
Chapter 1 Law...... 1 Regulating Society...... 1 Law ...... 1 Basic Matters ...... 3 Tables...... 12
Chapter 2 Legal Terms...... 13 Introduction...... 13 1. Terms ...... 13 2. Special Cases ...... 15 Persons...... 16 Parties ...... 22 Constitutional Law...... 25 Latin and French Terms...... 28
Chapter 3 Legal Abbreviations ...... 31 Introduction...... 31 Use of Abbreviations ...... 31 Meaning of Abbreviations ...... 32 Variations in Abbreviations...... 32 Punctuation in Abbreviations ...... 33 Table of Abbreviations ...... 33
Sources of Law Chapter 4 Sources of Law...... 35 Introduction...... 35
xi xii Contents
Primary Sources...... 36 Secondary Sources...... 47 Tertiary Sources...... 47 Executive Instruments...... 48
Primary Sources of Law Chapter 5 Common Law...... 49 Part A. Introduction ...... 49 Part B. Features of Common Law ...... 51 Part C. Making the Rule ...... 63 Part D. Identifying the Rule...... 74 Part E. Obeying the Rule ...... 80 Part F. Altering the Rule...... 84 Part G. Common Law in Australian ...... 97 Part H. Commentary ...... 100
Chapter 6 Statutes...... 103 Introduction...... 103 Legislatures...... 107 Language of Statutes...... 108 Statutes in Australia...... 109 Interpretation Acts ...... 115 Basic Concepts...... 122 Classification of Statutes ...... 124 Parts of a Statute ...... 135 Definitions ...... 161 Commencement of Statutes ...... 170 Proof of Statutes...... 176 Duration, Amendment and Repeal...... 177 Statutory Instruments...... 185 Interpretation of Statutes...... 186 Explanatory Material ...... 189 Publication of Statutes ...... 190
Chapter 7 Delegated Legislation: Basics...... 193 Part A. Introduction ...... 193 Part B. Types of Delegated Legislation...... 197 Legislative Instruments...... 198 Rules of Court...... 205 Part C. Applicable Law...... 206 Legislative Instruments Act 2003...... 207 Contents xiii
Acts Interpretation Act 1901 ...... 207 Miscellaneous Statutes...... 208 Enabling Act ...... 208 Common Law ...... 209 Caution...... 209
Chapter 8 Delegated Legislation: Process of Making ..... 211 Outline ...... 211 Enabling Provisions ...... 212 Parts ...... 216 Drafting...... 217 Explanatory Statement...... 220 Consultation...... 222 Assent ...... 223 Registration...... 223 Review by Parliament...... 226 Commencement ...... 230 Proof ...... 232
Chapter 9 Delegated Legislation: After the Making...... 235 Introduction...... 235 Interpretation...... 235 Judicial Review...... 237 Duration ...... 240 Amendment...... 240 Repeal ...... 242 Remaking...... 247
Secondary Sources of Law Chapter 10 Secondary Sources of Law ...... 249 Introduction...... 249 Textbooks ...... 259 Encyclopedias ...... 261 Dictionaries...... 265 Services...... 266 Journals ...... 269 Restatements...... 272 Theses ...... 273 Internet...... 273 Tables...... 274 International Numbering System...... 279 xiv Contents
International Standard Book Number (ISBN) ...... 279 International Standard Serial Number (ISSN)...... 281
Tertiary Sources of Law Chapter 11 Tertiary Sources of Law...... 283 Introduction...... 285 Publications Related to Law ...... 285 Working Documents...... 285
Executive Instruments Chapter 12 Executive Instruments...... 287 Introduction...... 287 Sources...... 287 Regulating Law...... 288 Names ...... 290 Makers ...... 290 Classification ...... 290 Illustration...... 291
Laws in Territories Chapter 13 Laws in Territories...... 293 Introduction...... 293 Northern Territory...... 294 Australian Capital Territory...... 297 Norfolk Island...... 303 Ashmore and Cartier Islands...... 307 Australian Antarctic Territory ...... 309 Christmas Island ...... 311 Cocos (Keeling) Islands...... 316 Coral Sea Islands Territory...... 321 Heard Island and McDonald Islands...... 322 Publication of Laws ...... 323
Other Sources of Law Chapter 14 Other Sources of Law...... 325 Introduction...... 325 Prerogative Law...... 325 Custom...... 325 Conventions ...... 327 Law for the Conduct of Parliament...... 328 Aboriginal Law...... 328 Contents xv
Commonwealth Places...... 331 Seat of Government ...... 331 International Law...... 332 Industrial Awards...... 333 Executive Instruments ...... 333 Equity...... 334
Citation Chapter 15 Citation...... 337 Part A. Introduction ...... 337 Part B. Cases...... 338 Name of the Case...... 341 Law Reports...... 346 Electronic Database ...... 352 Citation by Plaintiff ...... 354 Citation by Popular Name ...... 354 Part C. Statutes...... 355 Part D. Delegated Legislation...... 366 Part E. Books ...... 368 Part F. Articles ...... 369
Appendix Appendix: Tables...... 371 Table 1 Kings and Queens of England ...... 371 Table 2 Abbreviations for Kings and Queens...... 372 Table 3 Abbreviations for Jurisdictions...... 373 Table 4 Abbreviations of Names ...... 373 Table 5 Abbreviations of Judicial Titles...... 374 Table 6 Statutes Regulating Statutes ...... 375 Table 7 Statutes Applying by Paramount Force ...... 376 Table 8 Statutes Regulating Delegated Legislation...... 378 Table 9 Abbreviations for Delegated Legislation...... 378
Bibliography and Index Bibliography...... 379 Index...... 387
Table of Legislation
Australian Capital Territory Canada Commonwealth New South Wales New Zealand Norfolk Island Northern Territory Queensland Scotland South Australia Tasmania Victoria Western Australia
Note This table locates the Commonwealth of Australia Constitution Act (1900) (UK) and the Constitution that it enacts in s9 in the section labelled Commonwealth because together this document is the primary source of Australian constitutional law.
Australian Capital Territory Amendments Incorporation Act 1929...... 378 Evidence Act 2001...... 378 Imperial Acts Application Act 1986...... 300, 376 Imperial Acts (Repeal) Act 1988 ...... 300, 376 Imperial Acts (Substitution Provisions) Act 1986...... 376 Interpretation Act 7...... 298 Legislation Act 2001...... 116, 298, 303, 376, 378 s1...... 141 s4(2) ...... 118 s7...... 299, 300, 301, 302 s7(1) ...... 300 s11 ...... 172 s17...... 364 s17...... 299, 300, 301, 302 s40...... 239 s83...... 241 s90...... 357, 364 s97...... 355, 364, 366 s98...... 355, 364, 366 s99...... 355, 364, 366 s100...... 355, 364, 366 s101...... 355, 364, 366 s102...... 355, 364, 366
xvii xviii Table of Legislation
s103...... 355, 364, 366 s104...... 355, 364, 366 s105...... 355, 364, 366 s106...... 355, 364, 366 s107...... 355 s132...... 159 s138...... 118, 158 s139...... 118, 158 ss140-143...... 119, 152 s160...... 16 Magistrates Court Act 1930...... 298 s4...... 298 New South Wales Acts Application Act 1984 ...... 299, 376 New South Wales Acts Act 1986 ...... 299, 376 Self-Government (Citation of Laws) Act 1989 ...... 300, 364, 376 Subordinate Laws Act 1989 ...... 303, 378 Supreme Court Act 1933 ...... 298 s3...... 298
Canada Interpretation Act 1989...... 116
Commonwealth Acts Citation Act 1976 ...... 179, 375 s5...... 179, 180 s6...... 358 Acts Interpretation Act 1901 ...... 107, 115-123, 136, 138, 141, 145, 170, 187 ...... 201, 206-208, 215, 235, 247, 359, 375, 376 s1...... 141 s2(2)...... 117 s2(1)...... 116 s2B...... 189, 214 2K(1)...... 205, 207, 208 2K(2)...... 205, 208 2B-2L...... 16, 121, 170 s3...... 171, 173, 231 s3A...... 171, 173 s4...... 171, 174-176, 231 s5...... 231 s6 ...... 136, 171, 231 s7...... 179, 183-184, 241, 247 s7(1)...... 184 s7(2)...... 183 s7(3)...... 184 s7(4)...... 184 s8...... 179 s8A...... 179 s9...... 179 Table of Legislation xix
s10...... 179, 184-185, 357, 362 s10A ...... 179, 185 s11...... 179, 180 s11A ...... 185 s11B ...... 170 s12...... 119, 136, 148, 149 s13...... 119, 136, 149, 152-154 s14...... 179 s14A ...... 179 s14B ...... 179 s15...... 179, 362, 366 s15A ...... 119, 187 s15AA ...... 118, 158, 187, 207, 236 s15AB ...... 118, 123, 153, 187, 189, 236-237 s15AC ...... 119, 188 s15AD ...... 119, 159 s15AE...... 119, 199 s15B ...... 119, 188-189 s15B(3)...... 189 s15B(4)...... 189 s15C ...... 119, 121 16...... 119, 121, 152,154 16A...... 119, 121, 215 16B...... 119, 121 16C...... 119, 121 s17...... 215, 294 17A...... 119, 121 18A...... 119, 121 18B...... 119, 121 s19...... 215 19A...... 119, 121, 215 19B...... 119, 121, 215 19BA...... 119, 121, 215 19BAA ...... 119, 121, 215 19BB ...... 119, 121, 215 19BC ...... 120, 121, 215 19C...... 120, 121, 215 20...... 120, 121, 215 21...... 120, 121 23...... 120, 121 25A...... 120, 121 25B...... 120, 121 25C...... 120, 121 25D...... 120, 121 28A...... 120 29...... 120 s33...... 120, 122, 188, 215, 216, 240 ss33-34A ...... 238 33AB...... 218 xx Table of Legislation
ss33-34C ...... 120, 122, 188, 215 34AA ...... 215 34AAA...... 215 35 ...... 121, 186 36 ...... 121 37 ...... 121 38(1)...... 315 38(3)...... 315 37A ...... 121 s38...... 356, 362, 366 s39...... 138, 362, 366 s40...... 366 s39 ...... 136, 138 s40...... 355, 360, 362, 368 s40(1)(a)...... 356, 362, 368 s40(2)...... 357, 368 s40A...... 366 s46...... 194, 218, 237, 239, 289 s46(1)...... 288 s46(1)(a)...... 117, 289 s46(1)(b) ...... 289 s46(1)(c)...... 289 s46(2)...... 289 s46AA...... 219 s46AA(1) ...... 288 s46B...... 289-290 s46B(1) ...... 288 s48A...... 366 s49A...... 219 s50...... 240, 247 Acts Interpretation Act Amendment Act 2011...... 294 Administrative Decisions (Judicial Review) Act 1977 ...... 358 s3(5)...... 169 s13...... 129, 181 Advisory Council Act 1986...... 297 Air Navigation Act 1920 ...... 202 Amendments Incorporation Act 1905 ...... 136, 144, 179, 180, 241, 375 Antarctic Treaty Act 1960 ...... 311 s3...... 311 s4...... 311 s40...... 181 s40(5)...... 129, 181 s40(6)...... 129 Ashmore and Cartier Islands Acceptance Act 1933...... 308 s4...... 308 s5...... 308 s6...... 308, 309 s6(1)...... 308 s6(2)...... 308 Table of Legislation xxi
s8(1) ...... 308 s8(2) ...... 308 s9...... 309 s10...... 309 s10A ...... 309 s10B ...... 309 s10C ...... 309 s10D ...... 309 s10D(1) ...... 309 s10D(2) ...... 309 s10D(3) ...... 309 s10D(3) ...... 309 s11...... 308 s11A ...... 309 s12...... 309 s13...... 309 Ashmore and Cartier Islands Acceptance (Amendment) Act 1978...... 308 Audit Act 1901...... 21 s3...... 21 Australia Act 1986 ...... 80, 99, 359, 364 Preamble ...... 147 s2(1) ...... 109 s8...... 173 s9...... 173 Australian Antarctic Territory Acceptance Act 1933 ...... 308 Australian Antarctic Territory Act 1954...... 309-310 s4...... 309 s5...... 310 s6...... 310 s7...... 310 s8...... 310 s8(2) ...... 310 s9...... 310 s10...... 310 s11(1) ...... 310 s11(2) ...... 310 s12...... 310 s12A ...... 310 s12B ...... 310 s12C ...... 310 s12D ...... 310 Australian Capital Territory (Self Government) Act 1988...... 203, 293, 297 s3...... 300 s7...... 297 s8...... 298 s22...... 298 s22(1) ...... 298 s22(2) ...... 298 s23...... 298, 302 xxii Table of Legislation
s30...... 298 s34 ...... 298, 300, 302 s34(4)...... 299, 302 s34(4)(b) ...... 299-300 ss36-48...... 298 ss48A-48D...... 298 s69A...... 301 Australian Consumer Law...... 167 s236...... 167 Australian Federal Police Act 1979...... 202 s38...... 202 Australian Industries Preservation Act 1906...... 127 Australian Law Reform Commission Act 1996 ...... 285 Australian Security Intelligence Organisation Act 9...... 202 s8A...... 202 Christmas Island Act 1958 ...... 311, 312 Preamble ...... 147, 311 s5...... 311 s6...... 311 s7...... 312, 313 s7(1)...... 312 s8...... 312, 313, 314 s8(1)...... 312, 313, 315 s8(2)...... 313-314 s8(3)...... 312, 323-314 s8(4)...... 312, 313 s8(5)...... 315 s8A ...... 314, 315 s8A(2) ...... 315 s8A(3) ...... 315 s8A(4) ...... 313, 315 s8A(6) ...... 314, 315 s8B...... 314, 315 s8C...... 314, 315 s8D...... 314, 315 s8E ...... 313, 314 s8E(1)...... 313, 314 s8E(2)...... 313, 314 s8G...... 315 s8H...... 315 s8I ...... 312 s9...... 313 s9(1)...... 312 s9(2)...... 312, 313 s9(3)...... 312 s10...... 312, 313 s10A...... 312, 313 s10B...... 312, 313 s10C...... 312, 313 Table of Legislation xxiii
s10D ...... 312, 313 s11...... 316 ss11AAA...... 316 ss11AA...... 316 ss11A ...... 316 s12...... 316 s12A ...... 316 s12B ...... 316 s13...... 316 s14...... 316 s14G ...... 316 Christmas Island Agreement Act 1958...... 311 s6...... 311 Christmas Island (Request and Consent) Act 1957 ...... 311 Cocos (Keeling) Islands Act 1955 ...... 316 s5...... 316, 317 s6...... 316 s7...... 317 s7A ...... 318 s8...... 317, 319 s8(1) ...... 317, 318, 319 s8(2) ...... 319 s8(3) ...... 319 s8(4) ...... 318, 319 s8E...... 318 s8E(1)...... 318 s8E(2)...... 318 s8I...... 318 s9...... 317 s10(2) ...... 317 s12...... 317, 319 s12(1) ...... 317 , 319 s12(2) ...... 317, 319 s12(3) ...... 317, 319 s12(4) ...... 317, 319 s13...... 317, 319 s13A ...... 317, 319 s13B ...... 317, 319 s13C ...... 317, 319 s13D ...... 317, 319, 321 s16...... 317 s18...... 317, 318, 321 Cocos (Keeling) Islands (Request and Consent) Act ...... 316 Commonwealth Authorities and Companies Act 1997 ...... 202 S7 ...... 202 s34...... 202 xxiv Table of Legislation
Commonwealth of Australia Constitution Act (1900)1 ...... 5-6, 147, 359, 376 Preamble ...... 147 S5...... 176-177 s9...... 26 Commonwealth Places (Application of Laws) Act 1970 ...... 331 Competition and Consumer Act 2011 ...... 8, 127, 359 Conciliation and Arbitration Act1904 ...... 357 Conciliation and Arbitration (Amendment) Act 1977...... 357 Constitution ...... 5-6 s7...... 44 s52(i)...... 294 s51(xxv)...... 177 s51(xxxi)...... 178 s52...... 109, 294 s109...... 233 s116...... 178, 294 s118...... 176-177 s122...... 44, 109, 189, 294 s125...... 179, 297 Coral Sea Islands Act 1969 ...... 321-322 s3...... 322 s4...... 322 s5(2)...... 322 s6...... 322 s6(2)...... 322 s7...... 322 s7(2)...... 322 s7(3)...... 322 s7(4)...... 322 s7(5)...... 322 s7(5A) ...... 322 s7(5B) ...... 322 s7A...... 322 s7B...... 322 s7C...... 322 s7D...... 322 s7D(1) ...... 322 s7D(2) ...... 322 s7D(3) ...... 322 s8...... 322 Corporations Act 2001...... 17, 202 s114-125 ...... 18 s124(1)...... 17, 19-20 s125...... 20 Customs Act 1901 ...... 202
1. The United Kindgom parliament enacted this statute following a request from Australia. The authors have located this statute under the heading ‘Commonwealth’ because it sets out the Constitution of the Commonwealth. Table of Legislation xxv
s273...... 202 Defence Act 1903 ...... 202 s9A ...... 202 s58B ...... 202 s58H ...... 202 Evidence Act 1995...... 176 s5...... 176, 232 s143...... 176-177, 232-233 Fair Work Act 2009 ...... 203 Fair Work (Registered Organisations) Act 2009 ...... 22 Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 ...... 203 Family Law Act 1975 ...... 81 s21...... 81 s48...... 165 Federal Court of Australia Act 1976...... 206 59(4)...... 206 59(4)(a) ...... 206 59(4)(b) ...... 206 59(4)(c) ...... 206 s59(5) ...... 218 s59A ...... 206 Freedom of Information Act 1982 ...... 157 s3...... 157-159 s4(1) ...... 168 s15(1) ...... 168-169 Heard Island and McDonald Islands Act 1953...... 323 s2...... 324 s3...... 323 s4...... 323 s5...... 323, 324 s5(1) ...... 324 s5(2) ...... 324 s5(4) ...... 324 s6...... 324 s7(1) ...... 323 s7(2) ...... 323 s8...... 324 s9...... 324 s10(1) ...... 323 s10(2) ...... 323 s11...... 323 s11A ...... 323 s11B ...... 323 s11C ...... 323 s11D ...... 323 Indian Ocean Territories (Administration of Laws) Act 1992...... 311, 317 Jervis Bay Territory Acceptance Act 1915...... 298 s4...... 298, 299, 300 ss4-4L...... 297 xxvi Table of Legislation
Judiciary Act 1903...... 202 s55ZF(1)(b)...... 202 Legislative Instruments Act 2003...... 179, 194, 197, 206, 211, 235, 243-244, 376 s2...... 201, 224 s3...... 207 s4...... 197, 198, 200, 223, 224, 241 s4(1)...... 201 s5...... 198, 200, 206 s5(1)...... 199, 200, 201 s5(1)(a)...... 199 s5(1)(b) ...... 200 s5(2)...... 200 s5(3)...... 200 s5(4)...... 200 s6...... 198, 199, 201, 206 s6(a) ...... 201 s6(b)...... 201 s6(c) ...... 201 s6(d)...... 201 s6(e) ...... 201 s7...... 194, 198, 199, 202, 206 s7(1)...... 204 s7(1)(a)...... 198, 202 s7(1)(b) ...... 198, 205 s7(2)...... 204 s7(3)...... 204 s8...... 200 s9...... 198, 199, 205 s10...... 199, 206 s10(6)...... 199 s11...... 206 s11(1)...... 199 s12(1)...... 230-231 s12(1)(a)...... 230-231 s12(1)(b) ...... 230-231 s12(1)(c)...... 230-231 s12(1)(d) ...... 230-231 s12(2)...... 230-231 s12(3)...... 231 s13(1)...... 116, 207 s13(1)(a)...... 207, 235, 289 s13(1)(b) ...... 207-208, 237, 289 s13(1)(c)...... 207-208, 237, 289 s13(2)...... 237, 289 s13(3)...... 218 s13(4)...... 218 s14...... 219 s14(1)...... 218-219 s14(2)...... 218-219 Table of Legislation xxvii
s16...... 206, 217 s16(1) ...... 217 s16(2) ...... 217 s16(3) ...... 218 s17...... 222, 223 s18...... 223 s19...... 223 s20...... 200, 201, 223, 224 s24...... 224, 225, 227 s25...... 224, 225 s26...... 224, 225 s24...... 224, 240, 250 s25...... 224, 250 s25(2) ...... 224 s26...... 220, 224, 225 s26(1) ...... 220 s26(1A)(a)...... 220, 221 s26(1A)(b)...... 220, 221 s26(1A)(c)...... 221 s26(1A)(d)...... 221, 222 s26(1A)(e)...... 221, 222 s26(1A)(f) ...... 222 s26(1A)-(1D)...... 220, 221 s26(1B)...... 221 s26(1C)...... 221 s27...... 224, 240 s28...... 224, 225 s29...... 224, 225 s30...... 224, 225 s31...... 225-226 s32...... 225-226 s33...... 241 s35...... 241 s35A ...... 241 s38...... 228, 240 s38(3) ...... 229 s39...... 221, 227-228 s40...... 228 s41...... 227, 228 s42...... 228, 229, 240 s42(1) ...... 229 s42(2) ...... 229 s44...... 228 s45...... 229 s45(1) ...... 229 s45(2) ...... 229 s46...... 230 s47...... 230 s48...... 230 xxviii Table of Legislation
s48A...... 229, 242 s48D...... 242 s48B...... 242 s48C...... 229, 242 s49...... 243 s50...... 244, 245 s50(1)...... 244 s50(2)...... 244 s50(3)...... 244 s51...... 244, 245 s51A...... 244 s53...... 245 s54...... 179, 245 s55(2)...... 224, 230, 245 s59...... 207 s60...... 25 s62...... 207 Legislative Instruments Regulations 2004 ...... 204, 205, 207 reg 5 ...... 224, 225 reg 6 ...... 225 reg7 ...... 204 reg8 ...... 228 reg9 ...... 245 Schedule 1...... 204 Nauru Independence Act 1975 ...... 294 Native Title Act 1993 ...... 329 s10...... 329 s13...... 329 s223...... 329 Norfolk Island Act 1913...... 303 Norfolk Island Act 1957...... 303 s18...... 307 Norfolk Island Act 1979...... 203, 293, 303, 304, 307, 364 Preamble ...... 147 s4(1)...... 304 s5...... 304 s5(1)...... 304 s6...... 304 s7...... 307 s8...... 307 s9...... 307 s11...... 307 s12...... 307 s12A...... 307 s13...... 307 s14...... 307 s14A...... 307 s15...... 304, 307 s15A...... 307 Table of Legislation xxix
s16...... 304, 306 s17...... 304, 306 s18...... 306 s19...... 305, 306, 307 s19(1) ...... 304, 305 s19(2) ...... 304, 305 s19(2A) ...... 304 s20...... 304 s21...... 305 s22...... 305 s23...... 305 s24...... 305 s25...... 305 s26...... 305 s26A ...... 305 s27...... 203, 304, 306, 307 s27(1) ...... 306 s28...... 306 s28A ...... 302 s28AA ...... 306 s28AB ...... 306 s28AC ...... 306 s28AD ...... 306 s29(1) ...... 307 s29(2) ...... 307 s30...... 305 s31...... 304 s52...... 307 s52(1) ...... 307 s53...... 307 s53A ...... 307 s54...... 307 s55...... 307 s56...... 307 s57...... 307 s58...... 307 s59...... 307 s60...... 307 Northern Territory Acceptance Act 1910 ...... 295 s6...... 295 s7...... 296 Northern Territory Administration Act ...... 296 s4U ...... 297 s5...... 296 Northern Territory (Self-Government) Act 1978 ...... 293, 295 S5 ...... 295 s6...... 295, 296 s7...... 295 s8...... 295 xxx Table of Legislation
s9...... 295 s10...... 295 s11...... 295 s12...... 295 s13...... 295 s18...... 295 s24...... 295 s31...... 295 s32...... 295 s33...... 295 s34...... 295 s35...... 295 s36...... 295 s37...... 295 s38...... 295 s39...... 295 s40...... 295 s41...... 295 s42...... 295 s43...... 295 s44...... 295 s45...... 295 s46...... 295 s47...... 295 s48...... 295 s51...... 296 s57...... 296 s73...... 297 Ombudsman Act 1976...... 21 s4...... 21 Ordinances and Regulations Notification Act 1972...... 377 Ordinances and Regulations Notification Act 1978...... 377 Papua New Guinea Independence Act 1975 ...... 294 Parliamentary Counsel Act 1970...... 218, 375 s2(1)...... 218 Parliamentary Service Act 1999...... 203 s23...... 203 s24(3)...... 203 Payment Systems (Regulation) Act 1998...... 202-203 s11...... 202-203 Privacy Act 1988 ...... 39 s100...... 39-40 Privacy (Private Sector) Regulations 2001...... 40 Privy Council (Appeals from the High Court) Act 1975...... 80, 99 Privy Council (Limitation of Appeals) Act 1968 ...... 80, 99 Public Service Act 1999 ...... 203 S23...... 2003 S24(3) ...... 203 s72...... 203 Table of Legislation xxxi
Remuneration Tribunal Act 1973 ...... 203 s7(7) ...... 203 Restrictive Trade Practices Act 1971...... 127 Rules Publication Act 1903 ...... 377 Rules Publication Regulations 1913 ...... 377 Sea and Submerged Land Act 1973...... 188 s2B ...... 188 s3...... 188 Seat of Government Act 1908...... 297 Seat of Government Acceptance Act 1909...... 297 s6...... 298, 299, 300, 301, 323 Seat of Government (Administration) Act 1910...... 20 s3...... 298, 299, 300, 301, 323 s4...... 298, 299, 300, 301, 323 s5...... 323 s6 ...... 299 s7...... 323 s12(1) ...... 203, 302 s12(1A) ...... 302 s12(1B)...... 302 s12(1C)...... 302 s12(2) ...... 303 s12(2)(a)...... 302 s12(2)(c)...... 302 s12(2A) ...... 302 s12(2B)...... 302 s12(2C)...... 302 s12(2D) ...... 302 s12(3) ...... 302 s12(4)-(6B)...... 302 s12AA ...... 302 s12AB ...... 302 s12AC ...... 302 s12AD ...... 302 s12AE...... 302 12C...... 323 Schedule...... 299 State and Territorial Laws and Records Recognition Act 1901 ...... 177 Statutory Rules Publication Act 1903 ...... 201 s5(1) ...... 201 Statutory Rules Publication Regulations 1903 ...... 366, 377 s5...... 366 Superannuation Industry (Supervision) Act 1993 ...... 203 Supreme Court Ordinance [Cocos Islands]...... 317 Taxation Administration Act 1953 ...... 203 Territories Law Reform Act 1992...... 311, 312, 314, 316, 317 s8(1) ...... 320 s8A ...... 319, 320 s8A(2) ...... 320 xxxii Table of Legislation
s8A(3) ...... 320 s8A(4) ...... 320 s8A(5) ...... 320-321 s8A(6) ...... 319, 320 s8B...... 319, 321 s8C...... 319, 321 s8D...... 319, 321 s8G...... 319, 321 s8H...... 321 s15AAB ...... 321 s15AAG...... 321 Territories Law Reform Act 2010 ...... 311, 312, 316 Trade Practices Act 1965...... 127 Trade Practices Act 1974...... 127, 143 S46...... 167 Trade Practices Act 2010...... 127 Workplace Relations Act 1996...... 203
New South Wales Associations Incorporation Act 2009 ...... 22 Commonwealth Places (Administration of Laws) Act 1970...... 331 Constitution Act 1902...... 26 Consumer Protection Act 1969...... 38 Cooperation Act 1926...... 22 Dog Act 1966...... 40 s27...... 40 Fair Trading Act 1987 ...... 38-39 Imperial Acts Application Act 1969...... 113, 375 S5...... 113 s6...... 113 s7...... 113 s8...... 113 s11...... 113 Interpretation Act 1897...... 115, 162, 375, 377 s6...... 162 s21...... 16 s23...... 172 s30B...... 241 s33...... 118, 158 s34...... 118, 153 s41A...... 196 s66...... 355 s67...... 366 s68...... 366 Legislation Review Act 1987 ...... 375 Regulations Review Act 1987 ...... 375 Reprints Act 1972...... 375 Subordinate Legislation Act 1989 ...... 242, 243, 245, 247, 377 s10(1)...... 245, 248 Table of Legislation xxxiii
Subordinate Legislation (Repeal) Act 1985...... 242, 243, 377
New Zealand Interpretation Act 1999...... 116 Poultry Act 1968...... 164-165
Norfolk Island Court of Petty Sessions Act 1960 ...... 308 Enactments Reprinting Act 1980...... 305, 307, 376, 378 s4...... 307 s5...... 307 Interpretation Act 1979...... 116, 304, 305, 376, 378 s7...... 306 s9...... 306 s10...... 357, 364 s10C ...... 118, 158 s10D ...... 118, 153 s16(1) ...... 306 s28...... 357, 364 s29...... 357, 364 s33...... 306 s34...... 306 s41...... 306
Northern Territory Interpretation Act...... 116, 376, 378 s4...... 296 s17...... 16 s24AA ...... 16 s49(1)(c)...... 297, 364 s49-58...... 355, 364 s58...... 357, 364 s57...... 366 s62A ...... 118, 158 s62B ...... 119, 153 s63...... 296 s64...... 296 s65...... 296 s66...... 296 Local Court Act...... 296 s4...... 296 Sources of Law Act 1985...... 296 s2(2) ...... 296 Statute Law Revision Act ...... 296 s5...... 296 Supreme Court Act ...... 296 s10...... 296
xxxiv Table of Legislation
Queensland Acts Interpretation Act 1954 ...... 115, 375, 377 s14A...... 118, 158 s14B...... 119, 153 s14F ...... 355 s15...... 145, 146 s21...... 246 s22...... 357 s36...... 16 Commonwealth Places (Administration of Laws) Act 1970...... 331 Constitutions Acts 1867-1972 ...... 26, 365 Constitution Amendment Act 1934...... 108 Constitution of Queensland 2001 ...... 26 Imperial Acts Application Act 1984...... 375 S5...... 113 S6...... 113 S7...... 113 Ss8-14 ...... 113 Imperial Acts (Termination of Application) Act 1973...... 375 Legislative Standards Act 1992...... 375, 377 Queensland Statutes (1962) Reprints Act 1962...... 375 New South Wales Acts (Termination of Application) Act 1968...... 110 Regulatory Reform Act 1986 ...... 242, 243, 247, 377 Reprints Act 1992...... 375 s18...... 358 Statutory Instruments Reprint Act 1992...... 377, 377
Scotland Union with England Act 1707...... 27
South Australia Acts Interpretation Act 1915 ...... 115, 375, 377 s4...... 16 s4A...... 98, 112 s11...... 246 s14A...... 366 s14B...... 357, 358, 366 s22...... 118, 158 s26...... 16 s52...... 197 Acts Republication Act 1967...... 375 Commonwealth Places (Administration of Laws) Act 1970...... 331 Constitution Act 1934...... 26 Northern Territory Surrender Act 1907...... 294-295 Subordinate Legislation Act 1978 ...... 242, 243, 247, 377
Tasmania Acts Custody Act 1858...... 375 Table of Legislation xxxv
Acts Enumeration Act 1947 ...... 139, 375 Acts Interpretation Act 1931...... 115, 375, 377 s8...... 357 s8A ...... 118, 158 s8B ...... 119, 153 s13...... 357 s15...... 246 s41...... 16 Acts Reprinting Act 9 ...... 375 Commonwealth Places (Administration of Laws) Act 1970 ...... 331 Constitution Act 1934...... 26 Legislation Publication Act 1996...... 375, 377 Rules Publication Act 1953 ...... 366, 377 s6...... 366 Subordinate Legislation Act 1992 ...... 242, 243, 247, 377 Subordinate Legislation Committee Act 1992...... 377
United States Sarbanes-Oxley Act of 2002...... 142
United Kingdom Acts of Parliament Commencement Act 1793...... 171, 173 Acts of Parliament Numbering and Citation Act 1962...... 139, 362 Act of Settlement 1700 ...... 140, 365 Acts of Union 1706...... 27 Australia Act 1986 ...... 99,376 S1 ...... 115 S2 ...... 115 S3 ...... 115 S3(2)...... 114 Australian Constitutions Act 1850...... 57, 97, 376 Australian Courts Act 1828 ...... 57, 97, 376 s24...... 112, 306 Christmas Island Act 1958...... 311, 376 Charter Act of 1833 ...... 284 Cocos (Keeling) Islands Act 1955 ...... 316, 376 Colonial Laws Validity Act 1865 ...... 376 S2 ...... 114 S3 ...... 114 County Courts Act 1959 ...... 362 Crimes by Governors of Colonies Act 1698-1699 ...... 376 Criminal Jurisdiction Act 18022...... 376 Dockyards & Co Protection Act 17723 ...... 376 Government of Ireland Act 1920 ...... 27 Government of India Act 1833 ...... 284 His Majesty’s Declaration of Abdication Act 19364 ...... 372
2. The official title of this statute is The Criminal Jurisdiction Act 1802. 3 The official title of this statute is The Dockyards & Co Protection Act 1772. xxxvi Table of Legislation
Interpretation Act 1889...... 23, 208 s14...... 208 Interpretation Act 1978...... 116 s22(1)...... 27 Sch 2 para 5(a)...... 27 Law Commission Act 1965 ...... 284 Laws in Wales Act 1536...... 27 Local Government Act 1958 ...... 139, 140, 143 Lord Campbell’s Act 1847 ...... 143, 358 Magna Carta ...... 108, 329 New South Wales Act 1823...... 140 Peerages Act 1963 ...... 139 Prisoners of War (Escape) Act 18125 ...... 376 Quia Emptores 1290 ...... 108, 143, 358 Short Titles Act 1896...... 140, 362 Slave Trade Act 18246 ...... 376 Singapore Order in Council 1946...... 311 Statute Law Revision Act 1948...... 140, 362 Statute of Marlborough ...... 143, 358 Statute of Proclamations 1539...... 197 Statute of Westminster 1931...... 143, 376 S2...... 114 The Criminal Jurisdiction Act 1802 ...... 376 The Prisoners of War (Escape) Act 1812 ...... 376 The Slave Trade Act 1824...... 376 Dockyards & Co Protection Act 1772...... 376 Theft Act 1968...... 362 Torts (Interference with Goods) Act ...... 90 s2(1)...... 90 s2(2)...... 90 Union with Ireland Act 1800...... 27 Union with Scotland Act 1706 ...... 27 Statute of Proclamations 9...... 6
Victoria Acts Enumeration and Revision Act 1958 ...... 375 Amendments Incorporation Act 1958 ...... 375 Commonwealth Places (Administration of Laws) Act 1970...... 331 Constitution Act 1975...... 26 Evidence Act 1958...... 359 Health (Amendment) Act 1985 ...... 139 Imperial Acts Application Act 1922...... 112, 375 Imperial Acts Application Act 1980 ...... 112, 375 s3...... 112 s4...... 112
4. This was 1 Edw VIII, c 3. 5. The official title of this stattue is The Prisoners of War (Escape) Act 1812. 6. The official title of this stattue is The Slave Trade Act 1824. Table of Legislation xxxvii
s5...... 112 s6...... 112 Imperial Laws Re-Enactment Act 1980...... 112, 375 Interpretation of Legislation Act 1984...... 115, 375, 377 s9...... 138, 139, 355 s10...... 355 s11(3) ...... 145, 146 s17...... 357 s19...... 148 s9...... 355 s10...... 355 s33...... 366 s34...... 366 s35...... 118, 119, 153, 158, 366 s38...... 16 s39B ...... 149 Subordinate Legislation Act 1962 ...... 242, 243, 377 Subordinate Legislation Act 1994 ...... 242, 243, 247, 377 s19...... 366 Subordinate Legislation (Revocation and Review) Act 1984...... 243, 377 The Constitution Act 1855...... 365
Western Australia Commonwealth Places (Administration of Laws) Act 1970 ...... 331 Constitution Act 1889...... 26 Interpretation Act 1984...... 115, 376, 378 s5...... 16 s6...... 163 s16...... 357 s18...... 118, 158 s19...... 119, 153 s26...... 355, 358, 366 s38...... 246 Legislation Review and Advisory Committee Act 1976 ...... 378 Reprints Act 1984 ...... 376, 378 s73...... 112
Table of Cases
Abbreviation Meaning Ad. Steam. Co. Adelaide Steamship Company Commonwealth Commonwealth of Australia DPP Director of Public Prosecutions FCT Federal Commissioner of Taxation MPC Metropolitan Police Commissioner NSW New South Wales
Amalgamated Society of Engineers v Ad. Steam. Co. (1920) 28 CLR 1291...... 352-355 Anton Piller KG v Manufacturering Processes [1976] 1 Ch 55 ...... 73 Appleton Papers Inc v Tomasetti Paper [1983] 3 NSWLR 208 ...... 77, 79 Arantzazu Mendi, The [1939] AC 256 ...... 332 Archer v Howell (1992) 7 WAR 33...... 79 Aristoc Industries v RA Wenham (Builders) [1965] NSWR 581...... 15, 88 Ashbury Carriage & Iron Co v Richie (1875) HL 653 ...... 20 Attorney General for Northern Ireland Ref. (No 1 of 1975) [1977 AC 105...... 208 Attorney General v Deans of Windsor2 (1860) 8 HLC 369, 11 ER 472...... 75 Australian National Airways v Commonwealth (1945) 71 CLR 29...... 21 Azevedo v Department of Primary Industries (1992) 35 FCR 284 ...... 117 Bird v John Sharp & Sons (1942) 66 CLR 233 ...... 246 Blashill v Chambers (1884) 14 QBD 479...... 116, 208, 237 Bole v Horton (1673) Vaughan’s Reports382 ...... 76 Bone v Commissioner of Stamp Duties [1972] 2 NSWLR 651 ...... 77, 79 Boys v Chaplin [1968] 2 QB 1 ...... 77 Bowtell v Goldsborough Mort & Co (1996) 3 CLR 444...... 147 Brebner v Bruce (1950) 82 CLR 161...... 232, 350 Buretsi v Beveridge (1998) 158 ALR 445...... 117, 162 Chaff and Hay Acquisition Committee v JA Hemphill (1947) 74 CLR 375...... 21 Chew Yee v The Queen (1962) 3 FLR 177 ...... 312 Chong v The Queen (1989) 40 A Crim R 22...... 312 Church of Scientology v Woodward (1982) 154 CLR 25; 43 ALR 587...... 21 Close v Steel Co of Wales [1962] AC 367 ...... 75 Cochrane v Moore (1890) 25 QBD 57 ...... 56, 250 Collector of Customs v Agfa-Gearet (1996) 141 ALR 59...... 236 Commonwealth v Mewett (1997) 191 CLR 471 ...... 100 Commonwealth v Tasmania3 (1983) 158 CLR 1, 46 ALR 625...... 333 Cook v Sprigg [1899] AC 572...... 332 Cooper v Southern Portland Cement (1972) 128 CLR 427...... 102 Cordell v Second Clayfield Properties [1968] 3 WLR 864 ...... 259 David Securities v Commonwealth Bank (1992) 175 CLR...... 92 Davis v Commonwealth (1988) 166 CLR 79; 82 ALR 633 ...... 21 Dawson v Commonwealth (1946) 73 CLR 157 ...... 147
1. Engineers’ Case 2. The full description of the defendants is ‘Deans and Canons of Windsor’. 3. Tasmanian Dam Case, or alternatively, Franklin Dam Case xxxix xl Table of Cases
Deputy Federal Commissioner of Taxation v WR Moran (1939) 61 CLR 375...... 147 Dilworth v Stamps Commissioner [1899] AC 99 ...... 166 Donoghue v Stevenson [1932] AC 562...... 11, 52, 68, 70, 71 Douglas v Minister for Aboriginal Affairs (1994) 34 ALD 192 ...... 164 Dugan v Mirror Newspapers (1979) 22 ALR 439...... 84 Electricity commission v Plumb (1992) 7 WAR 33...... 79 Esso Australia Resources Ltd v FCT (1999) 201 CLR 49 ...... 100 Fielding v Morley Corporation [1889] 1 Ch 1 ...... 141 Fourth South Melbourne Building Society, Re (1883) 9 VLR (E9) 54 ...... 117, 162 Garrett v Overy (1966) 88 WN 184...... 113 GC Wood & Son v Cullen [1991] 2 VR 214...... 166 Genders v Ajax Insurance Co (1950) 81 CLR 470 ...... 163 Gill v Donald Humberstone [1963] 3 All ER 180...... 236 Goodwin v Phillips (1908) 7 CLR 1...... 180 Great Northern, Piccadilly & Brompton Railway v Attorney General [1909] AC 1 ....125 Groves v Commonwealth (1982) 40 ALR 193 ...... 98 Guinn v United States 238 US 347, 35 SCt 926, 59 LEd 1340 (1915) ...... 161 Hallett’s Estate, Re (1879) 13 ChD 696...... 76 Haseldine v Daw [1941] 2 KB 343, [1941] All ER 524...... 44 HC Sleigh v South Australia (1977) 136 CLR 475...... 76 Hedley Byrne v Heller [1964] AC 465...... 74 Heydon’s Case (1584) 3 Co Rep 7a ...... 158 Hollis’ Hospital and Hague’s Contract [1899] 2 Ch 540 ...... 56, 250 Hynes v NYCRR (Springboard Case) (1921) 231 NY 229...... 44 Jankovic v Minister for Immigration (1994) 35 ALD 261...... 163 John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503...... 100 John v FCT 89 ATC 4101 ...... 76 Kable v DPP (NSW) (1997) 189 CLR 51 ...... 100 Kaurareg People v Queensland [2001] FCA 657 (23 May 2001) ...... 292 King Gee Clothing Co v Commonwealth (1945) 71 CLR 184 ...... 236 Kioa v Minister for Immigration (1984) 53 ALR 658...... 332 Kornhauser v Wilson (1990) 50 A Crim 366 ...... 79 Lamont v Commissioner for Railways (1963) 80 WN (NSW) 1242...... 166 Lane v Wilson, 307 U.S. 268, 59 S. Ct. 872, 83 L. Ed. 1281 (1939)...... 161 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520...... 100 Lee v Lee’s Air Farming [1961] AC 12 ...... 18 Leonard v Creswell [1920] SALR 165...... 232 Lipohar v The Queen (1999) 200 CLR 485 ...... 100 Long v Darling Island Stevedoring Co Ltd (1957) 97 CLR 36...... 232 Longmead’s Case (1795) 2 Leach 694...... 106 Lord Pitsligo’s Case (1750) Fost 79...... 106 Mabo v Queensland (No 2) (1992) 175 CLR 1; 107 ALR 1...... 100, 329 Marcolongo v Chen [2011] HCA 3 ...... 10, 354 Marshall v Wettenhall Brothers [1914] VLR 266...... 232 Miller v Minister for Mines [1961] NZLR 820, [1963] NZLR 560...... 44 Millirrpum v Nabalco (1971) 17 FLR 141 ...... 329 Minister for Immigration v Mayer (1985) 157 CLR 290 ...... 11, 347-349, 351 Morton v The Union Steamship Co of New Zealand (1951) 83 CLR 402 ...... 213 Table of Cases xli
Newberry v The Queen (1965) 7 FLR 34...... 303 North Eastern Dairy Co v Dairy Industry Authority (1976) 50 ALJR 121 ...... 196 Ombudsman v Moroney [1983] 1 NSWLR 317...... 153 Osborne v Rowlett (1880) 13 ChD 774 ...... 79 Owen v South Australia (1996) 66 SSR 251 ...... 187 Parker v The Queen (1963) 111 CLR 610...... 99 Parry v Osborn [1955] VLR 152 ...... 236 Pilmer v Duke Group Ltd (2001) 207 CLR 165...... 100 Piro v W. Foster (1943) 68 CLR 313...... 99 Playa Larga v I Congreso Del Partido [1983] 1 AC 244 ...... 332 Polites v Commonwealth (1945) 70 CLR 60...... 332, 333 Provera, Ex parte, Re Wilkinson (1952) 69 WN (NSW) 242...... 213 Qualcast (Wolverhampton) v Haynes [1959] AC 743...... 76 R v Bara Bara (1992) 87 NTR 1 ...... 330 R v Binollo [1981] VR 633...... 102 R v Dudley and Stephens (1884) 14 QBD ...... 326 R v Harm (1975) 13 SASR 84 ...... 232 R v Kelly, ex parte Waterside Workers’ Federation (1952) 85 CLR 601 ...... 246 R v Kidman (1915) 20 CLR 425...... 98 R v L (1991) 174 CLR 379...... 92 R v McN (1963) 63 SR (NSW) 186...... 166 R v Phillips (1970) 125 CLR 93, 44 ALJR 497...... 11, 331 R v Tahau [1975] 1 NSWLR 479 ...... 76, 77 R v Taylor [1950] 2 KB 368...... 11 R v Walker [1875] LR 10 QB 355...... 185, 334 RG Capital Radio v Australian Broadcasting Authority (2001) 185 ALR 573...... 200 Roberts Petroleum v Bernard Kenny [1983] 2 WLR 305...... 347, 349, 351 Robins v National Trust Co [1927] AC 515 ...... 99 Robinson v Local Board of Barton-Eccles (1883) 8 App Cas 798...... 166 Rottman v MPC UKHL 20 ...... 10, 354 Roxborough v Rothmans of Pall Mall (2001) 208 CLR 516...... 100 Ryan v Australian Iron & Steel [1956] SR (NSW) 329, (1957) 97 CLR 89 ...... 232 Saloman v Saloman [1897] AC 22 ...... 18 Saunders v Borthistle (1904) 1 CLR 379...... 152 Scruttons v Midland Silicone Ltd [1962] 1 AC 446...... 87, 102 Shanahan v Scott (1956) 96 CLR 245 ...... 213 Sharpe v Wakefield [1891] 1 AC 173...... 214 Sherritt Gordon Mines v FCT (1976) 10 ALR 441 ...... 164 Silk Bros v State Electricity Commission of Victoria (1943) 67 CLR 1...... 152 Skelton v Collins (1966) 115 CLR 94 ...... 98, 99 Slack v Leeds Industrial Co-operative Society [1923] 1 Ch 431...... 79, 80 Southern Foundries v Shirlaw [1940] 1 AC 701 ...... 44 Stokes v R (1961) 105 CLR 279, 43 ALJR 422 ...... 299-301 Strickland v Rocla Concrete Pipes (1971) 124 CLR 468 ...... 102 Thompson v Bankstown Corporation (1953) 87 CLR 619...... 44 Tomlinson v Bullock [1879] 4 QBD 230...... 173 Trade Practices Commission v Abbco (1994) 123 ALR 503 ...... 88 Transport Accident Commissioner v Treloar [1992] 1 VR 447 ...... 163 xlii Table of Cases
Trendtex Trading v Central Bank of Nigeria [1977] QB 529 ...... 332 Unit Construction v Bullock [1960] AC 351...... 102 Utah Construction and Engineering v Pataky [1966] AC 629 ...... 213 Victorian Chamber of Manufactures v Commonwealth (1943) 67 CLR 347 ...... 246 Victorian Stevedoring General Contracting Co v Dignan (1931) 46 CLR 73 ...... 247 Vigolo v Bostin (2005) 221 CLR 191 ...... 100 Viro v The Queen (1978) 141 CLR 88...... 100 Wakim, Re (1999) 198 CLR 511, 163 ALR 270...... 100 Watson v George (1953) 89 CLR 409...... 88 Watson v Lee (1979) 144 CLR 374...... 223 Western Australia v Commonwealth4 (1975) 134 CLR 201, 7 ALR 159...... 44 Widgee Shire Council v Bonney (1907) 4 CLR 977...... 237 Willingale v Norris [1909] 1 KB 57...... 195 Willocks v Anderson (1970) 124 CLR 293...... 213 Worthing v Rowell (1970) 44 ALJR 230 ...... 331 YZ Finance Co v Cummings [1964] ALR 667 ...... 166
4. Territorial Senators Case
Table of Latin and French Expressions
ab initio ...... 246 ad litem ...... 24 banco...... 81 certiorari...... 59, 345 communis error facit lex...... 14, 256 contra proferentum...... 125, 126 coram ...... 58 cur. adv. vult...... 60 curia advisari vult ...... 60 de bonis asportatis...... 90 de facto...... 121, 330, 371 decim...... 14, 266 dicta...... 74 en banc ...... 81 et al...... 342 et alii ...... 342 ex parte...... 345 ex rel ...... 345 ex relatione...... 345 ex tempore ...... 60, 77 generalia specialibus non derogant...... 44 habeas corpus...... 59, 345 ibid ...... 32 ibidem ...... 32 in banco...... 81 in bonis...... 90, 345 intra vires ...... 123, 214, 237-238 leges posteriores priores contrarias abrogant...... 43, 180-181 lingua franca ...... 28 mandamus...... 59, 345 mutatis mutandis...... 367 obiter dicta ...... 61, 74, 79-84 obiter dictum...... 74, 79-80 omnia praesumuntur rite et solemniter esse acta ...... 239 passim ...... 350 per ...... 11-12 quo warranto ...... 345 R...... 10, 23, 343
xliii xliv Table of Latin and French Expressions
ratio decidendi...... 52, 82-84 rationes...... 74, 82 reddendo singula singulis...... li regina ...... 10, 23, 343 rex ...... 10, 23, 343 stare decisis...... 55, 65, 79-83 sub nom...... 346 sub nomine...... 346 terra nullius ...... 22, 329 ultra vires ...... 19, 123, 237-242, 247 ut res magis valeat quam pereat...... 237, 239 venez m’aider...... 29 versus ...... 10, 342, 344
Table of Diagrams
Labels Labels Diagram 1. Symbols for Relationships ...... liii Labels Diagram 2. List of Meanings...... liii Labels Diagram 3. Meanings and Effects ...... liv Labels Diagram 4. Symbols Used for Probability ...... lv
Chapter 1 Law Diagram 1.1 Nature of Law ...... 1 Diagram 1.2 Citation of a Statute by Name...... 8 Diagram 1.3 Illustration of Neutral Citation ...... 10 Diagram 1.4 Components of Citation of Reported Cases...... 11 Diagram 1.5 Citation of a Case...... 12 Diagram 1.6 Tables in Appendix...... 12
Chapter 5 Common Law Diagram 5.1 Features of Common Law...... 51 Diagram 5.2 Parts of a Case...... 60 Diagram 5.3 Rules ...... 64 Diagram 5.4 Stages in Making a Common Law Rule ...... 65 Diagram 5.5 Facts and Case Facts ...... 67 Diagram 5.6 Versions of Elements ...... 69 Diagram 5.7 Determining the Consequence of a Rule ...... 72 Diagram 5.8 Terminology: Ratio Decidendi, Obiter Dictum and Related Terms...... 74 Diagram 5.9 Hierarchy of Major Australian Courts ...... 82 Diagram 5.10 Case Annotations: Alphabetical List ...... 93 Diagram 5.11 Case Annotations: Functional List...... 96
Chapter 6 Statutes Diagram 6.1 Composition of Legislatures...... 108 Diagram 6.2 Interpretation Acts in the Australian Jurisdictions...... 116 Diagram 6.3 Purpose and Object Rule: Statutory Provisions...... 118 Diagram 6.4 Extrinsic Material Rule: Statutory Provisions ...... 119 Diagram 6.5 Section Headings for General Rules of Interpretation...... 120 Diagram 6.6 Section Headings for Specific Rules of Interpretation ...... 121 Diagram 6.7 Section Headings for Definitions...... 121 Diagram 6.8 Classification of Statutes...... 124 Diagram 6.9 Illustration of Versions of a Statute ...... 127 Diagram 6.10 Illustration of Editions of a Statute ...... 128 Diagram 6.11 Illustration of Consolidations & Editions of a Version of a Statute ..134 Diagram 6.12 Parts of a Statute ...... 135 Diagram 6.13 Illustration of Royal Assent ...... 145 Diagram 6.14 Illustration of a Table of Provisions...... 146
xlv xlvi Table of Diagrams
Diagram 6.15 Parts of a Statute: Low to High ...... 150 Diagram 6.16 Parts of a Statute: High to Low ...... 151 Diagram 6.17 Illustration of the Legislative History of a Statute ...... 156 Diagram 6.18 Illustration of the Legislative History of Sections...... 157
Chapter 7 Delegated Legislation: Basics Diagram 7.1 Provisions Defining ‘Legislative Instrument’ ...... 198 Diagram 7.2 Defining Legislative Instrument...... 198 Diagram 7.3 Defining Legislative Instrument: Specific Inclusions ...... 201 Diagram 7.4 Defining Legislative Instrument: Specific Exclusions ...... 204
Chapter 8 Delegated Legislation: Process of Making Diagram 8.1 Parts of Delegated Legislation...... 216
Chapter 9 Delegated Legislation: After the Making Diagram 9.1 Table of Sunset Rules for Delegated Legislation ...... 244 Diagram 9.2 Exceptions to Sunsetting ...... 245 Diagram 9.3 Illustration of Staged Repeal ...... 246
Chapter 10 Secondary Sources of Law Diagram 10.1 Legal Encyclopedias...... 264
Chapter 12 Executive Instruments Diagram 12.1 Sections Regulating Executive Instruments ...... 288 Diagram 12.2 Parallel Provisions for Interpretation...... 289
Chapter 13 Laws in Territories Diagram 13.1 Territories of Australia ...... 293
Chapter 15 Citation Diagram 15.1 Formal Methods of Citation of Cases...... 340 Diagram 15.2 Informal Methods of Citation of Cases ...... 340 Diagram 15.3 Citation of a Case ...... 352 Diagram 15.4 Neutral Citation of a Case ...... 354 Diagram 15.5 Citation by Year and Number...... 359 Diagram 15.6 Citation of Part of a Statute: Lowest to Highest...... 361 Diagram 15.7 Citation of Part of a Statute: Highest to Lowest...... 361 Diagram 15.8 Abbreviations for Parts of a Statute...... 361
Appendix Table 1 Kings and Queens of England ...... 372 Table 2 Abbreviations for Kings and Queens ...... 372 Table 3 Abbreviations for Jurisdictions...... 373 Table 4 Abbreviations of Names...... 374 Table 5 Abbreviations of Judicial Titles...... 375 Table 6 Statutes Regulating Statutes ...... 376
Table of Diagrams xlvii
Table 7 Statutes Applying by Paramount Force ...... 376 Table 8 Statutes Regulating Delegated Legislation...... 378 Table 9 Abbreviations for Delegated Legislation...... 378
Labels
Introduction Describing Items Listing Items Diagrams Probability
Introduction Discussion in this publication refers to items such as a statute or a meaning of an ambiguous provision. Often these are part of a collection, list, range or set of items. Frequently the text puts them in a diagram where they represent a model or a step on the way to explaining a model. The purpose here is to explain the labelling system used to refer to these items.
Describing Items Labelling Items There are several aspects to labelling the items in a set, range, list or collection. These are name, number, letter and designating a set of items.
Name The name of an item commences with a capital letter. Some examples are Element, Statute and Meaning.
Number Items in a set, range, list or collection are generally numbered. For example, the elements of a legal rule are labelled Element 1, Element 2, Element 3 and so on. These numbers are ways of identifying elements and distinguishing one from another. They are generally not intended to create any list according to preferences or values.
Letter Items in a set, range, list or collection can be lettered. For example a list of statutes can be Statute A, Statute B and so on.
Designating a Set of Items It is useful to designate a set of items with a single and simple tag. Here is an outline. The basic proposition is that a simple and obvious tag has two aspects: 1. Description. Use a written label on the items as a tag or description. Put it in plural form. Thus a tag for a set of statutes would be ‘Elements’.
xlix l Labels
2. Numbers. After the tag add a space then a compound numerical tag consisting of three items: 2.1 The number of the first item in the set. 2.2 A hyphen. 2.3 The number of the last item in the set. Here are two illustrations: 1. A set of six elements would be Elements 1-6. 2. A set of elements where the number can vary from situation to situation is written as Elements 1-n.
1. Naming the Items The item has a name, which is usually obvious. For example each statute in a set of statutes would bear the name ‘Statute’, and each elements in a set of elements would be ‘Element’.
2. Numbering the Items There are two possibilities for the numbering of a set, list or range of items: 1. There can be a fixed number in the set. 2. There can be a variable number in the set.
2.1 Fixed Number in the Set In a particular instance there may be a specific number of items in a set. For example a particular legal rule might be composed of five elements. In this case the first and last numbers designate the number of items in the set or range. In this example of a set of five elements, one would designate the set as ‘Elements 1-5’.
2.2 Variable Number in the Set Sometimes the text refers to a set or a list in general terms in cases where the number of items in the set can vary from situation to situation. In this event, the way to go is to number the last item with the symbol ‘n’. To refresh readers, ‘n’ stands for however many there are on a particular occasion. An example would be a general discussion about elements of a legal rule. In this case the possibilities vary from legal rule to legal rule. Thus the designation of this set of items is Elements 1-n.
Null Option There is a special case with options where one of the options is to do nothing and leave things as they are. This occurs, for example, with the proposed making of a statute where one option is just not to enact a statute. In a case such as this the option is labelled with the symbol for nought, namely ‘0’. Thus the
Labels li
option not to enact a statute is designated as Statute 0. Statute 0 represents the null option – it is the option for a legislature not to enact a statute on a topic whereas Statutes 1, 2 3 and so on are options for different versions of a statute on a topic (on the basis that there is no form of a statute that can better present conditions). Given this the full set or range of possible statutes for a legislature to enact consists of Statutes 0-n.
Corresponding Items Sometimes there are sets with corresponding items. This can occur for a number of reasons. Here are two examples: 1. For making and interpreting law, items correspond because of causation. Each version of a statute on a subject and each meaning of an ambiguous provision will cause an effect if a legislature enacts the statute or if a court declares the meaning to be legally correct. 2. In the model for litigation, elements and facts correspond because each element delineates a category of facts so that in a particular case the element is satisfied by a fact that falls within that category. Similarly, facts and evidence correspond because each fact is proved or potentially provable by some evidence.
Single Relationships Corresponding items are labelled with the same number or letter. Here are some illustrations: 1. Statutes, Meanings and their Predicted Effects. Statute 0 is predicted to cause Effect 0, Statute 1 is predicted to cause Effect 1, Statute 2 is predicted to cause Effect 2 and so on. Meaning 1 is predicted to causes Effect 1, Meaning 2 is predicted to cause Effect 2 and so on. Similarly, Statute X (or Meaning X) is predicted to cause Effect X while Statute Y (or Meaning Y) is predicted to cause Effect Y. 2. Facts Satisfying Elements. Fact 1 is the label given to a fact that fits within or satisfies Element 1, Fact 2 is the label given to a fact that fits within or satisfies Element 2 and so on. 3. Evidence Proving Facts. Evidence 1 is the label given to evidence that might prove or has proved Fact 1, Evidence 2 is the label given to evidence that might prove or has proved Fact 2, and so on.
Collective Relationships It is possible to use labels of correspondence to make collective statements. Here are some examples: Statutes 0-n are predicted to cause Effects 0-n, while Evidence 1-n is capable of proving Facts 1-n. To construe these collective statements properly it is necessary to apply the maxim reddendo singula
lii Labels
singulis. Literally this says that each is rendered on their own. In plainer language, the items are to be taken singularly so the each item in the first list is paired with the corresponding item in the second list. The adverb ‘respectively’ captures this notion.
Two or More Version of an Item There may be two or more versions of an item. Additional letters or numbers can distinguish the different versions. For example: 1. If Element 2 is ambiguous because it has two meanings, the versions of Element 2 can be designated Element 2A and Element 2B. 2. There can be two versions of a fact. There are two major possibilities: 2.1 In a case there may be two versions of Fact 2 because the plaintiff propounds one and the defendant propounds the other. These can be designated ‘P’ and ‘D’ to signify the plaintiff and defendant’s version. Thus the two versions are Fact 2P and Fact 2D. 2.2 After investigating the facts of a case the defendant may find that there is evidence to support two versions of one of the facts in their case. These are facts that the defendant could use to rebut the plaintiff’s satisfying Element 3. The defendant or the court could designate these as Fact 3D.1 and Fact 3D.2.
Subdivisions of Items It is possible to designate subdivisions of an item with a numbering system that invokes the form but not the meaning of decimal points. Thus if Element 2 has three sub-elements, one can designate them as Element 2.1, Element 2.2, and Element 2.3. If Element 2.2 has three sub-elements we can designate these as Element 2.2.1, Element 2.2.2 and Element 2.2.3. Obviously this form of numbering adapts to any number of levels of subdivision.
Possibilities: ‘X’, ‘Y’, Etc Sometimes the text needs to refer to any option, that is, to an option in general terms. Conveniently this is labelled with a capital letter. Commonly, this is the letter X, so that a general option for a legislature wishing to pass a statute is Statute X. Naturally, if there is a need to refer to more than one option additional letters may be used. For example, there could be reference to Statute X and Statute Y; in this case Statute X is one possible statute and Statute Y is another possible statute.
Signifying Relationships Sometimes it is necessary to signify a relationship between two items. This can be done using standard symbols. This table sets out the major possibilities:
Labels liii
Symbol Relationship Illustration < Less than X
Listing Items Where there is a list, for example a list of the meanings of an ambiguous provision, we can set these out in the text as a series – Meaning 1, Meaning 2 ... Meaning n. In the text, as we have noted, the range can be efficiently represented as Meanings 1-n. In a table they are set out as a list in the following way:
Meanings Meaning 1 Meaning 2 Meaning n Labels Diagram 2. List of Meanings
In this presentation it is not strictly necessary to include Meaning 2. Indeed, it is actually redundant, when n=2. However, it usefully emphasises the sense of a list that sets out the range of options or possibilities.
Diagrams Lists in a table can connect corresponding item to become a diagram or figure. In the diagram below, one main column sets out the meanings of an ambiguous provision in a statute in Statute X while the other sets out the effect for the whole statute that each meaning is predicted to cause:
1 2 3 Meanings → Effects 1 Meaning 1 Effect 1 2 Meaning 2 Effect 2 3
liv Labels
Meaning n Effect n 4 Labels Diagram 3. Meanings and Effects
This diagram functions in the following way: * Column 1 shows the meanings of the ambiguous provision, being Meanings 1- n. * Column 3 shows the effect of the statue that each meaning is predicted to cause if a court chooses them as the legally correct meaning of the ambiguous provision. Let us flesh this out. Every statute that is enacted causes a number of outcomes. The author refers to the full collection of outcomes that a statute is predicted to cause as an effect. When a court interprets a statute it is faced with the basic options in terms of the range of meanings of the ambiguous provision that gives rise to the need to interpret the statute. The diagram labels these meanings as Meanings 1-n. If a court decides that Meaning 1 is the legally correct meaning of the ambiguous provision that decision is likely to have an impact on the effect that the whole statute will cause. Column 3, as stated, sets out this effect, the effect of the whole statute, for Meaning 1. In a similar way it sets out the effect for each other meaning of the ambiguous provision. This method of identifying the effects of each meaning caters for the constitutional rule in each Australian jurisdiction that requires a court to interpret a statute in the way that will ‘best achieve’ the purpose and object for which the legislature enacted the statute. Now the purpose or object of a statute is to cause some effect or outcome. Hence the term ‘Effect’ aligns directly with purpose and object (which of course is why the table includes it). * Column 2 contains an arrow pointing from the Column 1 to Column 3, thereby indicating that each meaning in Column 1 is predicted to cause the statute to have the corresponding effect in Column 3. * Columns 1-3 indicate meanings and their predicted effects. Assume for the purposes of the explanation that a court is interpreting an ambiguous provision in Statute X that has Meanings 1-3: 1. If a court chooses Meaning 1 as the legally correct meaning the prediction is that Statute X will cause Effect 1. 2. If a court chooses Meaning 2 as the legally correct meaning the prediction is that Statute X will cause Effect 2. 3. If a court chooses Meaning 3 as the legally correct meaning the prediction is that Statute X will cause Effect 3.
Probability A number of symbols are used for probability. This diagram shows the common symbols and their meanings:
Labels lv
Symbol Meaning P(A) probability that event A occurs P(B) probability that event B occurs P(A B) probability that event A or event B occurs (A union B) P(A B) probability that event A and event B both occur (A intersection B) P(A’) probability that event A does not occur P(A | B) probability that event A occurs given that event B has occurred already (conditional probability) P(B | A) probability that event B occurs given that event A has occurred already (conditional probability) P(B | A’) probability that event B occurs given that event A has not occurred already (conditional probability) φ the empty set = an impossible event S the sample space = an event that is certain to occur Labels Diagram 4. Symbols Used for Probability
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Regulating Society Law Basic Matters Tables
Regulating Society Society, and the conduct of humans that make it up, need some sort of regulation in order to function. Law, which is our concern, is one means of regulation. Yet there are other means of regulation that contribute to social good and progress, even if it is hard to track and measure their influence. Obvious examples are institutions that control behaviour with both private rules and institutional culture, the ethics and religion that people espouse, market forces and various forms of social pressure. To illustrate, just think of the popular concept that is typically put in a question: ‘What would the neighbours think?’
Law Introduction A useful explanation for students commencing their studies is to conceive law as having both a wide and a narrow scope depending on how one wants to look at it. The narrow scope is law as a set of rules, while the broad scope is law as it enmeshes with social science. The following diagram will illustrate this:
Law as a Social Science Philosophy ↑ ↓ History ←→ Law as Rules ←→ Management Psychology ←→ Statute law ←→ Linguistics Common law Sociology ←→ ←→ Literature ↑ ↓ Economics Diagram 1.1 Nature of Law
This diagram indicates the two aspects of law. Law consists of rules. Law is also enmeshed with the social sciences:
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1. Law as Rules. In this diagram law is located in the centre as a set of rules, labelled ‘Law as Rules’. As the diagram indicates, there are two major types of law or legal rules: statute law and common law. 2. Law Enmeshed With Social Sciences. Eight sets of two-way arrows surround the diagram ‘Law as Rules’. These arrows point to and from law as rules on the one hand and eight disciplines on the other hand. These disciplines are sociology, philosophy, economics, psychology, linguistics, literature, management and history – here they are representatives for all of the social sciences. The two-way arrows portray the two aspects of law – law is a social force while also being a product of social forces.
Law as Rules Rules A common and major focus of lawyers, and law students in law schools, is to portray law as a set of rules that they need to know and understand. Law in this form is sometimes called black letter law. It is also sometimes called positivist law. This latter description derives from the theory of law labelled positivism. In simple terms, the legal philosophy labelled natural law said that the only valid law was a law that conformed to a permanent and comprehensive set of values that pervaded human life. Positivism as a legal philosophy denied that there was such a set of values and said, in simple terms, that law is any command or prescription that issues from or is ‘posited’ by a body that is accepted as possessing law-making authority. (As is obvious, the label ‘positivism’ derives from the notion that law is ‘posited’ by law makers.)
The study of law as a set of rules is largely a matter of English comprehension. To a considerable extent this is how law is conceived as a profession that people practise. Know the rules and use them to help your clients. It is also the view of law that is and must be dominant in the syllabus of law schools that train students to be practising lawyers.
However, in studying these rules or using them in the practice of law it is impossible to insulate them entirely from their wider role as social phenomena. For example, it is almost inevitable that some unstated value or unformulated premise of human behaviour underlies how law is used, especially in litigation.
Law Subjects Like most other disciplines, law is divided into subjects according to commonly used labels. These subject names are used for textbooks, university courses, digests, indexes and fields of specialty. Some of the more common subject names are criminal law, torts, contract, real property, personal property, commercial law, industrial law, company law, taxation, constitutional law and Chapter 1 Law 3
administrative law. Although division into subjects has advantages for teaching and writing, like most other labelling systems it exposes some relationships and hides others. Nevertheless, students need to understand these labels since they are commonly used.
Finally, it is necessary to explain the relation between subjects and sources of law: if we take any traditional area of law, it is likely to be a mixture of both of the major types of law, namely statute law and common law.
Law Enmeshed with the Social Sciences In the diagram above, law as a set of rules is surrounded by eight disciplines – sociology, philosophy, psychology, economics, linguistics, literature, management and history. These eight disciplines are chosen as some of the major human or social sciences that affect law. They represent, by way of illustration, the full panoply of disciplines that bear down on and intermesh with law.
There is a simple reason that law meshes with social and human sciences. People make law for people and law affects people’s behaviour; or as stated above law is a social force while being itself a product of social forces. Therefore to understand it fully it is necessary to bring to bear an understanding of these connected human disciplines when one learns the rules.
Basic Matters In the ideal world one could describe a subject by taking its components in a logical sequence so that to the extent necessary the text laid the ground work for one topic in its discussion of one or more previous topics. Unfortunately nature did not deal law students a good hand in this regard. Some topics have a mutual interdependence in that to study B you need A and to study A you need B. A way to overcome this is to give an overview of the interdependent topics to lay a foundation, then proceed to explain the interdependent topics in more detail. Two major topics that have this interdependence are government and sources of law.
Government Great Britain Government in Australia is very much a derivative of the British system, which is often referred to as the Westminster system (because the main institutions of government in Britain were in the City of Westminster which is a borough of London).
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Modern terminology classifies the business of government as legislative, executive and judicial. Formerly in Britain the Crown exercised these functions as part of its constitutional role. The King (as the Crown usually was) made law, decided cases in his own court and the King’s personal servants administered those laws. In short, the Crown was the source of power. Thus the King not only reigned but ruled. Table 1.1 in the Appendix sets out a list of the Kings and Queens of England along with the dates that marked their reign.
Today the Crown no longer performs these functions personally. Instead the real actors and decisions makers are the parliament, the executive and the courts. This happened over centuries of constitutional change. In formal terms much of British constitutional history is the devolution of legislative, executive and judicial power from the Crown personally, to the King in parliament, to the King’s Ministers and to the King’s judges. In the process the Crown was eclipsed, and its powers and functions came to be exercised by parliament, the executive and the courts. Now the position is that the source of power in the United Kingdom is the sovereignty of parliament, although the former position of the Crown is reflected in the use of the term sovereign to refer to the Crown. This devolution of powers of the Crown (called prerogative powers) to institutions of government occurred by two means. First, the Crown actually lost some of its power. Second, constitutional conventions arose that required the Crown to exercises its powers on the advice of the organs of government. Two major examples are these: 1. Legislature. Parliaments in a Westminster system typically consist of two houses and the Crown. When the two houses of parliament pass a statute the convention requires the Crown to give its assent to the statute so that it becomes law. The qualification is that in a rare case there may be extreme circumstances that might justify refusal of assent. 2. Executive. Many of the powers of executive government are formally vested in the Crown. In practice, though, the Crown exercises its powers on the advice of its Ministers in the absence of extreme circumstances that might justify refusal to do so.
Australia: Colonies Great Britain colonised Australia, eventually establishing six colonies – New South Wales, Queensland, Victoria, Tasmania, South Australia and Western Australia. In the nineteenth century Britain gave these colonies self government, subject to Britain’s position as overlord of an empire. In doing this it set up governments whose institutions, rules and practices were modelled on those of Britain’s Westminster system. Each colony had four major institutions of government: Chapter 1 Law 5
1. Crown. The Crown was the head of state. A Governor represented the Crown in each of the six colonies. 2. Parliaments. Each colony had a parliament that consisted of a lower house, an upper house and the Crown. Queensland, however, abolished its upper house in 1921. 3. Executive. The colonies implicitly adopted the conventions of the Westminster system. The chief convention is that the party that obtains a majority in the lower house becomes the Government. The Ministers of state come from its ranks. The Governor commissions Ministers on behalf of the Crown. 3.1 Cabinet. Cabinet is the central political decision making body. It consists of Ministers or an inner group of them. Ministers in Cabinet are also members of the Executive Council, which is a formal body. Its function is to advise the Governor as to how to exercise the powers vested in them by the prerogative, common law and statute. 3.2 Ministers. Generally a Minister is the political head of one or more government departments. They also administer the statutes dealing with the business of those government departments. (When a parliament enacts a statute it commonly confers powers on the relevant Minister to take various actions or make various decisions.) Public servants staff each government department. In addition to government departments, there are other agencies that do government business. These are offices and bodies created by statute. The common reason for a government to create these bodies is to insulate the task from day-to-day politics as could be the case if a government department performed the task. 4. Courts. Each colony had a Supreme Court that exercised wide criminal and civil jurisdiction. Each colony established other courts to lessen the workload of the Supreme Court in less serious matters. There was an appeal from the Supreme Court to the appellate level of the Supreme Court and then to the Crown. Appeals to the Crown from colonies were heard by the Queen’s Privy Council (composed of Councillor who hold high judicial office), which advised Her Majesty on how to resolve the dispute.
Australia: Federation In the late 1890s there was considerable organised discussion and debate on a proposal to unite the Australian colonies into one nation based on a federation of the six colonies. Eventually the parties agreed and at the request of the colonies the United Kingdom parliament enacted the Commonwealth of Australia Constitution Act in 1900. This statute performed the following functions: 1. Commonwealth of Australia. It established a new legal and political entity being a nation known as the Commonwealth of Australia. 6 Chapter 1 Law
2. Institutions of Government. It established or provided for the establishment of the four major institutions of government for the Commonwealth: 2.1 Head of State. It provided for a head of state in the form of the Crown represented by a Governor General 2.2 Parliament. It established a Parliament that consisted of the Crown, a Senate (upper house) and a House of Representatives (lower house). 2.3 Executive. It provided for Ministers to administer government departments. It provides for an Executive Council to advise the Crown on the exercise of its powers. 2.4 Courts. It established the High Court and conferred some jurisdiction on it. It authorised legislation for other federal courts and other jurisdiction. 3. Federation. It created a federation. The Commonwealth government was the central or national government. The colonies became States of the federation. 4. Division of Power. It divided legislative, executive and judicial power between the Commonwealth and States, while also providing for them to exercise some powers concurrently. 5. Territories. It authorised the Commonwealth to acquire territories over which it can rule. There are three territories with self-government (including their own legislatures) namely the Northern Territory of Australia (Northern Territory for short), the Australian Capital Territory (so called because it includes the nation’s capital, Canberra), and Norfolk Island.
Australia: Legal System One cost of federation is that the legal and political system is complex. In outline this is the landscape: 1. Head of State. Each government has its own head of state. In the Commonwealth this is the Governor General. In each of the States it is a Governor. 2. Legislatures. The Commonwealth parliament can legislate for the whole of Australia on some subjects. Each state parliament can legislate for the state on some subjects. Each of the three territories with legislature can legislate for their territory on some subjects. 3. Executive. Each government has its own executive with an Executive Council, Ministers, government departments, statutory bodies and statutory offices. 4. Courts. Each entity – Commonwealth, states and territories – has its own court system. However, the High Court of Australia is the highest court of appeal for all jurisdictions. (There used to be appeals to the Privy Council but statutes have abolished these.) One reform worth considering would be to abolish the separate court systems and replace them with a unified court system for the whole of Australia.
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Sources of Law Introduction Law has a number of sources. These are classified as primary, secondary and tertiary sources. The distinction is a bit ill fitting but nevertheless has some use: 1. Primary Sources. Primary sources are law itself. There are two major types: § statutes, which include delegated legislation § common law, which consists of rules of law created by the judges and located in cases 2. Secondary Sources. Secondary sources of law refer to second hand accounts of primary sources of law by way of description and analysis of law in various types of legal texts. Examples of these texts are textbooks, encyclopedias and journal articles. 3. Tertiary Sources. Tertiary sources refer to other materials that relate to law in some way. These include, but are not limited to, documents that lawyers create when they work with law.
Statutes Nature Each statute is a collection of written legal rules that regulate society and the people in it in some way. Statute law is the means that a government possesses for active and spontaneous intervention in the lives of its people.1 A statute may authorise some body and some official to make delegated legislation thus creating a second tier or level of legislation. In principle the idea of delegated legislation is to flesh out details of items contained in the statute that authorises it.
Legislatures All the major legislatures in Australia enact statutes. These legislatures consist of the Parliaments of the Commonwealth and States and the legislative chamber in each of the Northern Territory, the Australian Capital Territory and Norfolk Island.
Name and Citation Statutes have a name, which is also called the short title. Referring to a statute by name is described as citation. The name of a modern statute typically has four components: 1. Function. There is a description of the function of the statute. 2. Act. The name includes the word ‘Act’.
1. Chapter 6 explains statutes in more detail. This part of the chapter mentions some basic matters that will help readers to get by in reading the text until they have an opportunity to digest Chapter 6. 8 Chapter 1 Law
3. Year. The name includes the year in which the statute was passed. 4. Jurisdiction. Citing a statute by reference to the three items above (function, Act and year) may leave a reader up in the air as to the jurisdiction that enacted the statute. Two cases will illustrate the point: 4.1 A book is describing the Queensland law of real property. Here one assumes that any statute the book cites is a Queensland statute unless the text says otherwise. 4.2 A book is describing the law of real property in Australia. In this case it is necessary to include in each citation the abbreviation of the jurisdiction that enacted the statute.
There are standard abbreviations for each jurisdiction. Table 1.3 in the Appendix explains these abbreviations. It is customary to put the name of a statute, but not the jurisdiction, in italics in the text of a publication. In a table of statutes, however, the practice is not to use italics.
To illustrate citation, here is a citation of a Commonwealth statute: Competition and Consumer Act 2010 (Cth). This diagram will explain and thus highlight the components of this citation:
Competition and Consumer Act 2010 (Cth) Part of the Citation Illustration Function Competition and Consumer Act Act Year that the Act was Enacted 2010 Jurisdiction Cth (= Commonwealth of Australia) Diagram 1.2 Citation of a Statute by Name
Citation of Part of a Statute Sometimes it is necessary to cite a part of a statute: 1. The cited part of the statute may be a part, division or chapter. In this case cite it by number, for example ‘Part 3’ or for more information, by number and name, for example ‘Part 3 Powers of the Commission’. 2. The cited part of the statute may be a section. You can cite this using ‘s’ for section and the section number: for example ‘s56’. The abbreviation for sections (plural) is ‘ss’. So, for example, one would refer to ‘ss 5 and 12’. 3. The cited part of the statute may be a part of a section. There are two ways to do this – lowest to highest and highest to lowest: 3.1 Lowest to Highest: Bottom Up. An example is ‘sub paragraph (iii) of paragraph (a) of subsection 1 of section 5’. Chapter 1 Law 9
3.2 Highest to Lowest: Top Down. An example, using the provision above, is ‘s5(1)(a)(iii)’. This top down method of citation is simplest and quickest to use. In practice, though, the lowest to highest form (bottom up) form is more commonly used.
Number and Citation Statutes have a number. Current practice is that a statute is numbered by the year in which it is passed and within that year it is numbered by a calendar number reflecting the order in which it was passed. Thus Act No 35 of 2012 refers to the 35th Act the legislature enacted in 2012. Sometimes a text will cite a statute by its number but this is usually done as a space saving mechanism and is done in special circumstances where a reader can easily find the short title of the statute as well.
Delegated Legislation As noted, a statute may have a section that authorises an official or a body to make further legislation. This is generically known in Westminster jurisdictions by any of four labels – delegated, secondary, subordinate or subsidiary legislation. A statute may authorise delegated legislation in general terms, with regard to specific items or use a combination of general and specific terms. Various labels are used to categorise delegated legislation, although there is not much logic involved in the classifications. Some common labels are rules, by- laws, regulations and ordinances. Delegated legislation functions in an analogous way to statutes.
Cases Making Law Cases make law in two ways: 1. Common Law. In ancient times cases made new law, called common law, when the courts responded to a gap in the law by making a new rule of common law or amending an existing rule. In other words the court stated the rule of law in the case and then used it for resolving the case. Now that parliaments can rectify gaps in the law courts only rarely make new common law. Courts can also amend and interpret common law, as explained below. 2. Amendment and Interpretation. Courts make law when they interpret a statute law or amend or interpret common law. Obviously the court states the amendment or interpretation in the text of a case.
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Citing a Case There are two methods of citing a case depending on where the case is published. It can be published in an electronic database. It can also be published in a printed law report.
Citation: Parties Whichever method is used, it is necessary to include the names of the parties in the citation. A common form for a civil case, if Smith is plaintiff and Brown is defendant, is Smith v Brown. In a criminal case, where the Crown brings proceedings, the Crown is abbreviated to R (for Rex or Regina, the Latin for King or Queen) and the case is written R v Brown. The ‘v’ stands for the Latin versus meaning against, but by convention it is only ever written in abbreviated form. When one says the name of a civil case out loud, although ‘v’ means against, one says ‘and’. Hence, when referring to the case of Smith v Brown, one would say it as ‘Smith and Brown.’ However, one refers to a criminal case such as R v Brown in speech as ‘the Crown against Brown.’
Citation: Electronic Data Bases Courts now publish their judgments in electronic form in a database. The form of citation for these is called neutral citation. The key components are the following: 1. Name. The name of the case, which derives from the names of the parties. 2. Year. The year in which the court gave its judgment. 3. Court. The name of the court in abbreviated form. For example HCA refers to the High Court of Australia and UKHL refers to the United Kingdom – House of Lords (which used to function as a court). 4. Number. The number of the case (by reference to the year). 5. Location. The location of the relevant part of the judgment by reference to paragraphs (where relevant). Paragraph is abbreviated to ‘para’.
To illustrate here are two cases: # Marcolongo v Chen [2011] HCA 3, pars [5]-[7] # Rottman v MPC [2002] UKHL 20 This diagram identifies the components of neutral citation by reference to these citations:
Name Year Court Number Location Marcolongo v Chen [2011] HCA 3 pars [5]-[7] Rottman v MPC [2002] UKHL 20
Diagram 1.3 Illustration of Neutral Citation Chapter 1 Law 11
Citation: Printed Law Reports Cases are also published in printed law reports. The key components of this are the following: 1. Name. The citation gives the name of the case, which derives from the name of the parties. By convention the name of the case is generally put in italics in text but not in a table of cases. The names of the parties are discussed above. 2. Law Report. The citation gives the name of the law report, which is written in abbreviated form. 3. Volume Number. The citation gives the volume number of the law report. There are two possibilities: 3.1 Number by Consecutive Number. Volumes of the law report are numbered 1, 2, 3 and so one. 3.2 Number by Year. Volumes of the law report are numbered by reference to the year of publication. In this case the year is put in square brackets. If there is more than one volume of the law reports for a year they are also numbered by reference to the year as 1, 2, 3 etc. 4. Year. Where the law report is numbered by consecutive number the citation gives the year of the case in round brackets. 5. Location. The citation gives the location of the relevant part of the judgment by reference to pages or paragraphs (where relevant).
Three cases will illustrate this method of citation including the different ways of numbering law reports:
# R v Phillips (1970) 125 CLR 93 # Donoghue v Stevenson [1932] AC 562 # R v Taylor [1950] 2 KB 368 This Diagram shows the components of each method:
Name of the Case Year: Year: Volume Number Report Page Decision Law Report R v Phillips 1970 125 CLR 93 Donoghue v Stevenson [1932] AC 562 R v Taylor [1950] 2 KB 368 Diagram 1.4 Components of Citation of Reported Cases
Citation: Judicial Quotation Sometimes a citation includes a reference to part of the text and possibly to the name of the judge who wrote that judgment. An illustration is: Minister for Immigration v Mayer (1985) 157 CLR 290, 305-306, per Brennan J. This illustrates a part of the text and the name of a judge in the following way: 1. The numbers ‘620-621’ indicate the pages where the passage that is being cited is located. If the case had paragraph numbers it would be preferable to use 12 Chapter 1 Law
these instead of page numbers. 2. The words ‘per Brennan J’ indicate that the cited passage or proposition was written or stated by Justice Brennan. The word ‘per’ is Latin for through or by.
This citation is made up in the following way:
Plaintiff or Appellant Minister for Immigration Defendant or Respondent Mayer Year 1985 Law Report CLR. This stands for Commonwealth Law Reports. Volume Number 157 Commencing Page The report of the case commences on page 290 Pages Cited The passage or principle cited is found on pages 305-306 Judge The judge who wrote the cited passage was Justice Brennan. Diagram 1.5 Citation of a Case
Tables This book has an appendix. It is entitled Appendix: Tables. These tables gather information that readers are likely to find helpful. These tables are as follows:
Table 1 Kings and Queens of England Table 2 Abbreviations for Kings and Queens Table 3 Abbreviations for Jurisdictions Table 4 Abbreviations of Names Table 5 Abbreviations of Judicial Titles Table 6 Statutes Regulating Statutes Table 7 Statutes Applying by Paramount Force Table 8 Statutes Regulating Delegated Legislation Table 9 Abbreviations for Delegated Legislation Diagram 1.6 Tables in Appendix