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.............................................................................