o Conflict of interest
o Stand to obtain a benefit
o Not believing your clients innocence
The Victorian Bar Incorporated Practice Rules
The duties of a lawyer
To the client.
o You must follow your clients instructions and act in their best interests.
To the law.
o You must at all times act within the law and uphold the law, whether you
agree with it or not.
To the court.
o You are an officer of the court and thus, when engaged in legal proceedings,
must not mislead the court, and act with integrity, honesty and candour.
To your colleagues.
o You must be fair and honest in your dealings with other legal professionals.
The Admission to Practice requirements in Victoria
Educational requirements
o Successful completion of an LLB or JD
o Practical Legal Training
Character-based requirements
o Good fame and character
o Non-disclosure of prior impropriety upon admission
Barons
Knights
Loyalty
Land
Monarch
Peasants
The monarch is the source of all political power. They had the divine right of kings.
They had the absolute right to rule from God and could do no wrong.
Magna Carta
The Magna Carta is a constitutional document in which a range of fundamental rights
held by English citizens are acknowledged.
With the signing of the Magna Carta, the rights of individuals began to be officially
acknowledged.
It imposed a requirement upon the monarch that they summon and consult with the
Council prior to making certain laws.
Executed by King John in 1215.
Bill of Rights
The Bill of Rights granted English citizens certain rights and established Britain as a
constitutional monarchy, a system of government whereby the monarch acts on the
advice of the parliament (the Westminster system).
The rights it granted included:
o Freedom of speech in parliament
o Freedom from cruel and unusual punishments and excessive bail
o Freedom from fines and forfeitures with trial
Executed by King William III in 1689.
Constitutional monarchy
A system whereby the head of state is a king or queen and they hold their position
not by force of arms but according to the will of the people.
Separation of powers doctrine
There is a distinction between the power to make law, the power to administer law
and the power to interpret law.
Government
Legislature
Makes law
Executive
Administers
law
Judiciary
Interprets law
Executive power is exercised by the executive government, i.e. the Prime Minister
and other ministers within the Federal Government, the Premier etc.
Judicial power is exercised by the judiciary (the system of courts).
The three arms of government should as far as possible remain functionally separate
in that:
o The same person should not form part of more than one of the three arms.
o One arm should not control or interfere with the functioning of another.
o One arm should not exercise a function of another.
Social contract theory
Recognition that the people in a community choose to submit to the authority of the
sovereign in order to avoid anarchy and to live peaceful lives and in return the
sovereign is expected to rule with justice and wisdom.
Initially theorised by Thomas Hobbes in his 1651 book and developed by John Locke
in 1689.
Common law and equity
In the 12th century, judges began travelling around the country to administer royal
justice, initially basing their rulings on local customary law. A consistency with
previous decisions in accordance with the doctrine of precedent was desired and thus
by the 14th century a nationally consistent set of rules and principles had begun to
emerge.
At first, common law could only be initiated by a writ of command from the king,
then standard writs were issued which did not require the consent of the king.
Due to the rigidity of the common law and its inability to resolve many legal
problems and provide justice, equity was developed.
English citizens unable to obtain a remedy from the common law courts could
approach the monarch and seek royal justice directly.
Responsibility was designated to the Lord Chancellor, the monarchs chief adviser,
who would make decisions based on his own ideas of fairness and justice and in the
1300s his own court had been established (the Court of Chancery).
A number of equitable principles were developed including:
o Equity follows the (common) law
o One who seeks equity must do equity
o One who comes into equity must come with clean hands
o Equity aids the vigilant
o Equity does not assist a volunteer
Development of contemporary Australian legal system
The origins of the contemporary Australian legal system are found in British law.
When the British first settled in Australia they brought with them their laws as a
result of the doctrine of reception.
As time passed, Australian parliament passed laws built on the British law which has
led to an emergence of a uniquely Australian system of law.
The British government, represented by the Governor, controlled the colonies in
Australia and applied British law to colonial problems and disputes as appropriate.
In 1865 the Colonial Laws Validity Act was passed by the British Parliament. This
stated that only Acts of the British Parliament that were expressly stated to apply to
E.g. Vicroads.
The doctrine of precedent
The doctrine of precedent requires that a judge who has to decide a question of law
and who knows that the question has already been considered by an earlier court
must decide the question in the same way as was done previously.
Only intermediate and superior courts can establish binding precedents.
A binding precedent is a previous decision about a question of law that the judge
must follow.
A persuasive precedent is a previous decision about a question of law that a judge
may follow, but does not have to follow.
If the judge decides that it is appropriate to deviate from the precedent, this is known
as distinguishing the precedent.
Judges also have the ability to overrule or reject a previous decision about a question
of law, provided the precedent was established by a court at the same or lower level.
The doctrine of precedent:
o Ensures coherency
o Promotes certainty
o Promotes equality
o Is efficient
o Promotes the appearance of justice
Telstra Corporation v Treloar (2000) 102 FCR 595
Ratio decidendi and obiter dicta
The actual reason for the decision about the main question of law, the legal principle
upon which the courts final decision was based, is known as the ratio decidendi.
The balance of the written decision, which makes up the majority of the written
decision, is known as obiter dicta.
Judicial activism
The rulings based on a judges personal opinion rather than precedent.
It is useful to refer to the policies underlying legal rules if there is more than a single
legal rule applicable to the factual scenario or of the applicability of the legal rule is
otherwise unclear.
Critical thinking
Critical thinking does not necessarily lead to a rejection of or disagreement with the
object of critique.
Critical thinking is informed criticism.
It is careful and thoughtful questioning of a claim, argument, rule, doctrine, decision
or action according to an explicit set of criteria or standards.
Critical thinking can be defined as criteria-based judgement.
Objects of critique: it is not only claims and arguments about which you can think
critically. You can think critically about almost anything. These include:
o Legal claims
o Legal arguments
o Legal rules
o Legal doctrines
o Legal decisions
o Legal actions
Criteria for judgement: critical thinking is judgement of the object of critique in
terms of some explicit criteria or set of standards. These include:
o You can judge the object of critique according to the criterion of truth value.
o You can judge the object of critique according to the criterion of
reasonableness.
o You can judge the object of critique according to the criterion of objectivity.
o You can judge the object of critique according to the criterion of consistency
with particular ideological standards or ideals.
o You can judge the object of critique according to the criterion of consistency
with theoretical standards.
o You can judge the object of critique according to the criteria of fairness and
equity.
There are three categories of critical thinking:
o Type 1: judgement of law according to consistency with legal authority.
o Type 2: judgement of the law according to consistency with theoretical,
ideological and ethical standards.
o Type 3: judgement of law according to equity of outcome.
These types are not formed in a hierarchy.
Critical thinking is skilful judgement. Uncovering unstated presumptions, interests
and ideologies within a legal claim or argument is a challenging process because
these characteristics of the object of critique are often carefully concealed and even
actively denied. There are 6 critical skills:
o Interpretation: ability to identify the surface meaning of the object of critique.
o Analysis: ability to identify the hidden elements and structures of the object
of critique.
o Evaluation: ability to assess the object of critique.
1 Short title
This Act may be cited as the Radio Licence Fees Amendment Act 2007.
2 Commencement
This Act commences on the day after it receives the Royal Assent.
3 Schedule(s)
Each Act that is specified in Schedule to this Act is amended or repealed
as set out in the applicable items in the Schedule concerned, and any other
item in a Schedule to this Act has effect according to its terms.
Number: The number of Acts that have been passed in that year so far.
o E.g. No. 69, 2007. This means that this Act was the 69th Act passed by the
Commonwealth Parliament in 2007.
Title and purpose: The long title sets out the purpose of the Act. The short tittle is
what the Act is usually known and referred to.
o E.g. The long title of the Act is 'an act to amend the Radio License Fees Act
1964, and for related purposes'. The short title is the Radio Licence Fees
Amendment Act 2007.
Date of assent: The date the act received assent from the governor-general. It is not
the same as the date of commencement.
o E.g. The Act was assented to on 28 may 2007.
Enacting words: Enacting words are a formality and not necessary for the validity of
legislation.
o E.g. The words 'the parliament of Australia enacts' are the enacting words.
Commencement: Not every act contains an explicit commencement date.
o According to s 2 of the act, the act commences operation on the day after
receiving assent; that is on May 27, 2007.
Sections, subsections and paragraphs: acts are usually divided into numbered sections
for convenience. The sections are numbered consecutively.
Parts and divisions: larger acts are usually divided into parts and divisions. A part
may contain a number of divisions and a division contains a number of sections.
Marginal notes: older acts often included marginal notes. These were small notes that
appeared in the margin of the page next to a section. They briefly described the
contents of the section. They were not an official part of the act thus could not be
used in interpreting the act.
Definitions sections: many acts contain a definitions or interpretation section. This is
a section early on in the Act that sets out definitions of the term frequently used in
the Act. Definitions may be:
o Comprehensive: X means Y. The description of Y is complete and anything
that does not satisfy Y is not X.
o Inclusive: X includes Y. The description Y is an example of X but the
definition of X is otherwise left open and something that does not specify Y
but still be X.
Schedules: A parliamentary draftsperson may move procedural provisions, such as
fees and charges, forms, technical descriptions and lists into a schedule of the act.
Role of the courts in interpreting legislation
A number of rules and presumptions regarding the reading and interpretation of legal
texts have been developed in the context of statutory interpretation.
Statutory interpretation is the interpretation by the courts of legislation when called
upon to decide whether the legislation applies to a particular set of facts or whether a
particular statutory rule has been contravened.
These various rules and presumptions are not always consistent. They are best
understood as a set of tools to be used as required by judges when applying
legislation to particular facts or by lawyers when advocating and arguing on behalf of
a client.
Judges have been interpreting and applying legislation for centuries, and since
legislation today forms the major source of law, a large proportion of judges time is
not spent engaged in statutory interpretation.
Statutory
interpretation
Literal
approach
Contextual
approach
Purposive
approach
Common law
presumptions
Statutory rules
o The literal rule: When reading a statue, a court should interpret the statute
literally, giving the words and phrases in the statute their ordinary and natural
meanings.
E.g. If an author were to write Jims hands were freezing cold one
would interpret this to mean that his hands were rather cold. A literal
reading would take it to be that Jims hands were a temperature below
zero and were in fact frozen solid.
Fisher v Bell [1961] 1 QB 394
o The golden rule: If a literal reading leads to a clearly absurd result or does not
clarify the meaning of the text at all then the court should modify the literal
meaning so as to avoid the absurdity.
Adler v George (1964) 2 QB 7
Lee v Knapp [1967] 2 QB 422
The contextual approach: Rather than interpreting the words used in the Act
individually and in isolation from each other; a court takes into account the various
contexts of those words.
o Immediate context: The other words and phrases used in the same section or
surrounding sections in the Act. The class rule, part of the immediate context,
also states that where two or more specific words are followed by general
words, the general words should be interpreted to accord with the class
created by the specific words.
The People (DPP) v Farrell [1978] IR 13
R V Ann Harris (1836) 173 ER 198
o The Act as a whole: A statutory provision should be interpreted in the context
of the Act in which it appears. The court takes into account various elements
of the Act including the long and short titles, the preamble, the objects clause,
the definition section, other sections of the Act, schedules to the Act and so
on.
o Other legislation: If a word or phrase is interpreted in a particular way in one
statute, it is not necessarily interpreted as having the same meaning in another
statute. However, where the parliament passes a series of statutes all dealing
with the same or similar issues, the court is likely to interpret words or
phrases common to all of the statutes in a similar way.
o The prior law: Occasionally, consideration is given to the law that existed
prior to the passing of the statute in question when interpreting a particular
statutory provision. This is more likely to occur when the statute has been
passed to replace a body of common law rules.
o The mischief being remedied: In the event of an ambiguity in a statutory
provision, the court should consider the problem or mischief the statute was
intended to address.
Heydons Case (1584) 76 ER 637
Smith v Hughes [1960] 2 All ER 859
The purposive approach: When interpreting a statutory provision, the court should
refer to the apparent purpose of the parliament when passing the statute. This
approach was created and is promoted by the legislature.
The parol evidence rule applies only if the written contract appears to be a complete
record of the agreement.
o Van den Esschert v Chappell [1960] WAR 114
Courts have in recent years demonstrated a greater willingness to adopt a contextual
approach to the interpretation of contracts and to take into consideration the
surrounding circumstances when interpreting the terms of the contract.
Courts generally prefer to interpret contracts so as to find them valid and enforceable,
rather than invalid and unenforceable, and are frequently willing to imply a term or
terms into a settled contract to fill the gaps, as long as it is obvious that the parties
would have included the term themselves if they had only thought about it.
o Codelfa Constructions Pty Ltd v State Rail Authority of NSW [1982] HCA
24
Presumptions made by courts when interpreting statutes
Common law presumptions:
o Words have their current meaning: Where the meaning of a particular word or
phrase has changed over time, the court presumes that the meaning intended
by the legislature is the contemporary meaning rather than the meaning
applicable at the time the statutory provision was drafted.
o Words have their technical meaning: Words and phrases in a statutory
provision are presumed to carry their technical meaning rather than their
ordinary meaning. Where a word or phrase has acquired a technical legal
meaning that differs from the ordinary meaning, the courts presume that the
technical legal meaning was the meaning intended by the legislature.
o Words have consistent meanings: Where a statute uses the same word or
phrase more than once, the courts presume that the legislature intended that
the word or phrase have the same meaning each time.
o There is no surplusage: The court presumes that every word in a statutory
provision was intended by the Parliament to have some meaning. Therefore, it
favours an interpretation that does not render any word meaningless.
o The provision is constitutional: Where two interpretations of a provision in a
statute are possible, one which is in accordance with the Constitution and the
other which would make the provision unconstitutional, the court presumes
that the interpretation that would make the provision constitutional to be the
one intended by the parliament.
o The provision is consistent with international law: If Australia is a signatory
to an international agreement, such as a treaty or a convention, and has
enacted domestic legislation to give effect to that international agreement, and
there is ambiguity in the domestic legislation, the court can resolve that
ambiguity by referring to the international agreement and assuming that the
domestic legislation was intended to be consistent with the international
agreement.
o The provision is not extra-territorial: The court presumes that the statutory
provision was not intended to apply outside the limits of the relevant
jurisdiction.
The rationale for the ratio and not the obiter being binding on other courts is that a
court is more likely to take greater care when formulating the reason for its decision
than when commenting upon the facts of the case, the history of the law etc.
The ratio decidendi is worked out by identifying the material facts and the legal issue
or main question of law.
o E.g. (I)n the case of the ordinary shop, although goods are displayed and it is
intended that customers should go and choose what they want, the contract is
not completed until, the customer having indicated the articles that he needs,
the shop-keeper or someone on his behalf accepts that offer.
Pharmaceutical Society of Great Britain v Boots Cash Chemists
(Southern) Ltd [1953] 1 QB 401
o The rest of the decision of each judge, including the explanations of the
consequences of their decision and the possible consequences of deciding that
a contract is formed as soon as the customer takes the goods from the shelf, is
obiter dicta.
The court had to decide whether it was possible to appeal a decision on questions of
fact or questions of mixed law and fact.
This was not expressly excluded by the Act.
Judgement
The court applied the rule expression unius est exclusion alterius and the appeals
were not permitted.
Fisher v Bell [1961] 1 QB 394
Facts
The defendant had a flick knife displayed in his shop window with a price tag on it.
Statute made it a criminal offence to 'offer' such flick knives for sale.
His conviction was quashed as goods on display in shops are not 'offers' in the
technical sense but an invitation to treat.
Judgement
The court applied the literal rule of statutory interpretation.
Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465; [1963] UKHL 4
Facts
Hedley Byrne was a firm of advertising agents.
A customer, Easipower Ltd, put in a large order.
Hedley Byrne wanted to check their financial position and subsequently asked their
bank to get a report from Easipowers bank, Heller & Partners, who replied in a
letter.
Easipower went into liquidation and Hedley Byrne lost 17,000 on contracts.
Hedley Byrne sued Heller & Partners for negligence, claiming that the information
was given negligently and was misleading.
Heller & Partners argued there was no duty of care owed regarding the statements,
and in any case liability was excluded.
Judgement
The disclaimer was found to be sufficient enough to discharge any duty created by
Heller's actions.
Heydons Case (1584) 76 ER 637
Facts
In an action determining the validity of a lease the court formulated the mischief rule.
In applying the mischief rule the court must discern and consider:
o What was the common law before making the Act?
o What was the mischief and defect for which the common law did not
provide?
o What was the remedy Parliament passed to cure the mischief?
o What was the true reason for the remedy?
The role of the judge is to suppress the mischief and advance the remedy.