Chapter 2 Notes PDF

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  PRIMARY AND SECONDARY SOURCES OF LAW  PRIMARY: is a document in which you can find the law itself, SOURCES include: legislation  (statutes, Acts of parliament), delegated legislation (rules, regulations, orders and by- laws of bodies to whom parliament has delegated authority), c  ourt judgements  SECONDARY: is something that could be used, or taken into account, by those who make statutes or decide cases. SOURCES include: international  law, especially treaties rati ed by Australia, law  reform commission reports, a  cademic commentary— journal articles, books and conference papers.  LEGISLATION  Legislation, in the form of a statute, also referred to as an Act of parliament, is a primary source of law  LEGISLATION- MAKING AUTHORITY  - Each of the 9 parliaments in Australia has the authority to pass legislation and that authority comes from the Australian Constitution (in the case of Federal Parliament), the state constitutions (in the case of the state parliaments) and self- governing legislation (in the case of the territories) - The legislation of each of the nine parliaments in Australia is an authoritative source of law. - One consequence of having a federation is that each individual is covered simultaneously by state or territory and federal legislation. - In situations where the applicable state legislation is inconsistent with the applicable federal legislation, the federal legislation will prevail, and the state law will be invalid to the extent of the inconsistency - Commonwealth legislative supremacy is guaranteed by s 109 of the Commonwealth Constitution. Commonwealth Acts can, however, be invalidated where the parliament did not have the legislative power (under the Constitution) to enact the legislation. E.g of where the High Court of Australia declared a territory law to be invalid due to inconsistency with federal law is Commonwealth v Australian Capital Territory deemed void and would not be recognised by Au  LEGISLATION AS A PREFERED SOURCE OF LAW  - Most law was created in England through the courts. - Legislation is now the dominant source of law - Indeed, there is so much legislation that parliaments cannot cope with the workload and

must delegate the power to legislate to other bodies with expertise in each particular area + do not have the capacity to review and update each piece of legislation every year - So why has legislation now become the preferred form of regulation in our legal system? 1. First, unlike courts, which have to wait for a dispute that raises particular issues of law before they can address them, parliament is a self- starting agent for legal change— it can pass new legislation, or amend or repeal existing legislation, at any time = It can be proactive, where courts can only be reactive. 2. Second, courts are retrospective  , in that they are limited to resolving disputes arising from past conduct, while parliaments can make new law that has a future, or prospective, effect 3. Third, if there is an inconsistency between statute and common law, the statute will prevail. This is in keeping with the doctrine  of parliamentary sovereignty— as parliament’s key role is to make law, it prevails over law- making effoorts by the courts and the executive  FUNCTIONS OF LEGISLATION  - Legislation may be used to make new law, repeal old law, or codify existing law. - Making  new law may be done to override  what parliament considers to be unsatisfactory common law, OR to cover an emerging  area that has not yet been subject to law— this happens with new technologies such as DNA testing - Repealing  old law means removing laws which are no longer necessary. - Codifying e  xisting law means bringing together the law in a particular area— which may presently be spread throughout a number of cases and statutes— into the one statute: easier for interested people to nd the law on that particular area, and it gives parliament the chance to streamline and improve the structure and operation of the law + serves to both clarify and simplify the law  CREATING NEW LEGISLATION  - It essentially involves a bill being passed through both houses of parliament, except in the ACT, NT, QLD where parliament is unicameral (one house) compared to NSW with a bicameral system (two houses). Once passed the Act then goes for assent to the Governor.  COMMENCEMENT OF LEGISLATION  - The general rule for NSW is that legislation comes into force 28 days from the date of assent unless the legislation itself says otherwise. - To determine when an Act comes into force, you usually n  eed to check the actual wording o  f the statute itself. - If it does not have a commencement provision, you  need to check the date of assent, which should be stated in the Act, and apply the relevant rule set out above, depending on which parliament has enacted the legislation.

- If the statute does have a commencement provision, it  will either specify an actual date upon which the legislation comes into force, or it will say that it commences on a date to be proclaimed.  FEATURE

DESCRIPTION

NUMBER

Each Act has a number that includes the year e.g Act No. 116, meaning that it was the 116th act of that year for the Commonwealth Parliament

DATE

- The date the Act was assented to is usually given in square brackets - Useful to check whether the Act was  in force at the time of the relevant conduct  or event  (and to do this requires checking the commencement provision - assented to on the 26th August 2015

LONG TITLE

- States the purpose of the Act, which can be useful when interpreting the statute e.g usually begins with ‘An Act to’ or ‘An Act for’

SHORT TITLE

- Usually contained in the rst section of the Act

PREAMBLE

Explains why the parliament has decided to enact legislation on the relevant topic. The above Act has quite a lengthy preamble, setting out parliament’s views on the longer term importance of medical research and innovation.

PARTS AND DIVISIONS

- Sections may be grouped into logical parts to make it easier for the reader to follow → an Act may be divided into chapters, which contain parts, and the parts may have divisions (and in some cases subdivisions), which contain the sections.

OBJECTS OR PURPOSE SECTION

Sums up the overall purpose in one sentence

SIMPLIFIED OUTLINE

- Introduction of a simplified outline has made legislation easier to read and understand. - It provides a useful overview of the legislation and the way it is structured, and some useful background and context, in a less formal tone and style than the substantive sections themselves - As the reader, it can guide you as you consider what you can skim over and what you should look at more closely

INTERPRETATION OR DEFINITIONS SECTION

- Interpretation: glossary in a book, or the ‘key terms’ section at the start of each chapter of this book within the legislation

FOOTNOTES, END - Can be used for the sake of explanation or to make the Act more NOTES, MARGIN NOTES user- friendly

SCHEDULES

- Schedules follow the main sections of the Act, and are usually used for detailed information in table form, or long lists

EXPLANATORY MEMORANDA

- Parliaments in an age where statutes are interpreted in the light of their purpose, and where statutes aim to be drafted in plain English language to make them comprehensible to non- lawyers

 DELEGATED LEGISLATION  - Parliament have the authority to delegate the authority to make law, and parliaments often do this where the main Act covers the law, and they want the relevant government ministry to devise suitable regulations that give effect to the Act. - In practice it is the relevant government department, consulting with the Office of Parliamentary Counsel, that develops the delegated legislation and advises the minister on its acceptance and implementation e.g Road safety legislation → Parliament may create a statutory body, such as a roads and transport authority, and may give it the power to make laws necessary or convenient to give effective application to the Act  BENEFITS and CRITICISIMS OF DELEGATED LEGISLATION  - It is quicker and cheaper than going through the formal parliamentary processes - Reduces pressure on parliament - Enables more complex pieces of legislation to be created by those with specic expertise.  - It is not subject to the same level of parliamentary democracy or parliamentary scrutiny asabill - It is often passed in secret and public does not have the capacity to scrutinise it or lobby against it— in fact people often don’t even know it has been passed until it comes in effect - It offends the doctrine of separation of powers because it involves government ministers (the executive) makinglaw - Makes it difficult to locate the law, because the primary legislation and regulations are in separate sets of rules. This can be bewildering for members of the public who may have a concern about the operation of the legislation but are unable to nd the law in the legislation because the detail is in the regulations. - Typically there is a committee of members that scrutinises delegated legislation, and if in its opinion the delegated legislation is problematic— perhaps because it breaches some fundamental principle— the committee can recommend that it be disallowed or redrafted. - Parliament usually has a limited time in which to disallow delegated legislation after it has been tabled in parliament. The exact number of days varies between six and 18 days at the federal level. In New South Wales it is 15 days; - In NSW, VIC and SA, delegated legislation commences on the day it is made unless the delegated legislation itself provides otherwise - Parliament is able, at any time, to repeal  delegated legislation.

- If there is any inconsistency between a piece of delegated legislation and primary legislation— that is, between a regulation and an Act of parliament— the Act will prevail  AMENDING LEGISLATION  - Legislation is amended by passing a new piece of legislation that contains amendments to the older Act. - Typically the title of such legislation is the same short title plus the word ‘Amendment’. - If the amendment is specically focused, the title of the amending legislation often includes a phrase in brackets to clarify the specic purpose of the amendment. - There can also be ‘omnibus’ amending legislation, which is one Act that amends a number of dierent Acts  REPEALING LEGISLATION  - Some legislation is automatically repealed as a result of a ‘sunset clause’ in the legislation— a clause which says that the Act has force for a denite period, or until a certain date. - Other legislation is repealed by a newer piece of legislation that names a certain Act or Acts and states that they are hereby repealed. - An Act may also be impliedly repealed if a new piece of legislation is enacted that is inconsistent with it, such that it would be impossible for both Acts to apply. This is less common today, as parliament's attempt to avoid confusion by expressly stating if an Act is to be repealed or not - Effect of repealed Act no longer has force - it still was valid law for the time it was in force. This means that rights and liabilities accrued under the legislation while it was in force may still be the subject of litigation before the courts. - However, if the legislation that repealed the former legislation is itself repealed, this does not revive the former legislation       CASE  - Judicial  decisions— or cases  , or precedents—  are a source of law in our common law system. - They may be common law cases (cases in which the legal principles themselves have developed across a number of decisions in an area where there was no relevant legislation on point) OR they may be case law (in  which courts interpret legislation).  AUTONOMY OF A CASE 

- A case  (judgment) contains the following main parts  PART

DESCRIPTION

CITATION  *Parts of citation: Title, Year, Law report

- It is a unique identifier that should enable the holder to locate the exact case.  TITLE: consists of the names of the parties. e.G ‘v’  in the title is pronounced as ‘and’  or ‘against’, not ‘versus’; that is, ‘Smith and Jones’ (common in civil cases) or ‘Crown against Jones’ (common in criminal cases), NOT ‘Smith versus Jones’. - The party initiating the action is named first  , and the responding party (or parties) is named second  e.g let’s say Smith is the plaintiff and Jones is the defendant. - If Jones then appeals the decision, the title of the case in the appellate court will be Jones v Smith. is is because the party initiating the action is named first, and Jones initiated the appeal. If Smith appeals from that decision, the title will become Smith v Jones again  YEAR: this is the year the decision was reported  , which is usually the same as the year of judgment. - If the year is written in square brackets, it means the law reports it is reported in are bound by the year, so there will be a 2014 volume that you can locate. - If the year is written in round  brackets, it means the law reports are bound by volume, from one upwards, and there may be more than one volume in each particular year.  LAW REPORT: This will include the name of the law reports, the volume and the page reference. In our hypothetical case example, it is volume 215 of the Queensland Law Reports (QLR).

COURT

- Includes not only the name of the relevant court, but the judge(s) who sat to hear the case. For example, our case would say ‘Supreme Court of Queensland’ and ‘Williams J’, which means it was heard before a single judge (if three judges had been listed, then we would say it was being heard before a Full Court)

DATE

- The date on which judgment in the case was handed down.

HEADNOTE

- Legal publishers arrange with lawyers or law graduates to write a brief note summarising the case. - Usually the headnote will give a short summary of the facts, and the court’s decision in the case. This is not socially part of the case itself, but is used by those who want a quick overview to see if the case is relevant, in which event they will read the whole case. - It is risky to rely on the headnote alone, without satisfying yourself that the

case really covers the legal point you think it does. LEGAL REP

- Common for judgments to list the main solicitor and barrister(s) who ran the case on behalf of each party. is does not usually appear in the reported (printed) judgment, but is included for example on AustLII.

JUDGEMENT

- If there is only one judge, there will be only  one judgment, which will start with the judge’s name, e.g ‘Williams J:…’. If there are three judges, there may still be only one joint judgment, in which case it will begin with all of their names, e.g ‘Williams, Brown and Adams JJ:…’. - Judgments are usually written in a logical order, with the facts, then the legal issues, then the analysis, and then the order that the court has made, but they tend to have few headings, and they do not have an ‘executive summary’ or ‘synopsis’ at the beginning. - However, lengthy judgments, usually by superior courts, are increasingly written with headings, to the relief of many a lawyer and law student. - Reported judgments also often have footnotes with details of sources used and cases cited.

 WRITING A CASE NOTE  A case note is a written summary and analysis of a case, which enables the reader, without having to read the whole judgment themselves, to know about the case, the reasoning and outcome, how it affects the relevant area of law and its signicance generally. It has two distinct parts— a  case summary and a case analysis.  - Case summary— this sets out the formal details of the case, including the citation, the court and the procedural history, along with the facts, the issues, and an outline of the court’s reasoning and orders made.  - Case analysis— t his contains comments on the case, critiquing the judgments made in the case in the context of other cases in this area, considering whether the case is likely to open up the law or narrow it, and the signicance of the case when looked at from various perspectives (e.g. social, political, ethical, moral).    A good case summary must ensure it has the following:   1. Citation 2. Court (name of court _ judges who heard the case) 3. Procedural history (this will give you a snapshot of where the case has come from) 4. Facts ( all the facts, only the material facts) 5. Issues: h  ere is where you identify each of the legal issues raised in the case,

6. Reasoning/decision ( is a summary of the court’s reasoning in answering each of the issues identified) - If there is more than one issue in the case, and you have numbered the issues, then it is useful to number the court’s analysis on each of those issues. is way, if you are returning to the case note to only look at one issue, it will be easy to locate that issue and the court’s analysis of i  7. Ratio— the ratio decidendi of the case is the answer to the main issue(s) in the case, and so in most instances the section above on reasoning/ decision will contain a statement of the ratio. - However, it can be useful to restate it in as short and clear a sentence as you can, as this will help when you refer back to the case note. e.g ‘You take the victim as you nd them, including not only physical susceptibilities, but also religious convictions’.  8. Obiter— if there was some useful discussion in passing by the court, it may be useful to refer to it here, and put in brackets the place in the judgment where the discussion can be found, in case you want to refer back to it. E.g in a case where the plainti has been injured by slipping on the oor of the defendant’s premises (where there was no warning sign), the court may state in obiter, ‘Had the defendant placed a warning sign on the slippery floor, she may not have been liable for breaching her duty of care to the plaintfi’.  • Order—  this will simply state what was held. For example, ‘e appeal was dismissed, and the appellant was ordered to pay the respondent’s cost  SECONDARY SOURCES  Secondary sources are documents that courts may use to guide  their decisions, and that parliament may take into account in drafting legislation; that is, secondary sources are resources that courts and parliaments use to create primary sources of law.  LAW REFORM COMMISSION REPORTS  - The aim of the law reform commission is to have an expert body dedicated to considering reform of existing laws. - This is particularly important where parliament is busy creating new law, and areas of law reform may need input from those with technical expertise or lived experience of the law and free from the vicissitudes of party politics  - At the federal level, the Australian Law Reform Commission (ALRC), which was established in 1975, is regulated by the Australian Law Reform Commission Act 1996 (Cth). - It is an independent statutory corporation that conducts ‘references’ (inquiries) into areas of potential law reform at the request of the Commonwealth Attorney- General. - It undertakes research and receives submissions, and ultimately provides a report to the Attorney- General containing recommendations for reform.

- Although many of the topics of law reform are federal laws, the ALRC also considers areas for harmonisation of state and territory laws, to promote a national approach. - Topics that have been addressed include privacy, consumer prot...