Laying Down the Law
Eleventh edition
Creyke, Robin, et al. Laying down the Law, LexisNexis Butterworths, 2020. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6413182. Created from monash on 2021-02-01 22:26:48.
Copyright © 2020. LexisNexis Butterworths. All rights reserved.
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Table of Cases Table of Statutes Table of Exercises
Part 1: Introduction Chapter 1: Laying the Foundations
Introduction
Why study law Legal systems
The civil law
The common law Categories of law Technical language
xiii xvii xxix xliii
Chapter 2: The Origins and Historical Development of the Australian Legal System 17
Introduction 20 Roots of English law 21 Reform of court procedure in the 19th century 28 Foundations of modern constitutionalism 29 The foundation of the Australian legal system 36 Evolution of an independent legislature 40 Development of judicial independence 42 Continuing connection with English law 44 The path to constitutional independence 46
Chapter 3: The Australian Legal System 53
Introduction 55 Origins and institutions 55 Key constitutional principles 57 Australian legal institutions 60
Creyke, Robin, et al. Laying down the Law, LexisNexis Butterworths, 2020. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6413182. Created from monash on 2021-02-01 22:27:08.
Copyright © 2020. LexisNexis Butterworths. All rights reserved.
LAYING DOWN THE LAW
International law 67 Human rights law in Australia 71
Chapter 4: First Nations Australians and the Australian Legal System 81
Introduction
Native title
First Nations Australians and the criminal justice system Northern Territory Intervention
First Nations Australians and the Australian Constitution
Chapter 5: The Legal Profession and Professional Legal Practice and Ethics
Introduction
Legal profession
Understanding and practising law Professional conduct
Conclusion
Chapter 6: Going to Law: Legal Dispute Resolution Processes
Introduction
Overview of legal process
The adversarial trial
Finality and appeals
Costs, delays and access to justice
Distinction between matters of fact and matters of law
Part 2: Sources of Law: Case Law Chapter 7: Case Law and Precedent
Introduction
Reading and analysing a case Doctrine of precedent or stare decisis Judicial law-making
Law reporting
Chapter 8: Precedent in Australian Courts
Introduction
The High Court of Australia
Other Australian courts
Court hierarchies in the federal system
Creyke, Robin, et al. Laying down the Law, LexisNexis Butterworths, 2020. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6413182. Created from monash on 2021-02-01 22:27:08.
Copyright © 2020. LexisNexis Butterworths. All rights reserved.
Overview of the doctrine of precedent in Australian courts 266 Issues on the margins of the doctrine of precedent 266
Part 3: Sources of Law: Legislation 283 Chapter 9: Legislation 285
Introduction 289 Historical development 289 Terminology 290 Differences between legislation and case law 290 Legislation takes precedence over case law 292 Making statutes 293 The legislative process 293 Financial scrutiny of legislation 295 Legislation: frequently asked questions 296 Commencement of statutes 296 Amendment and repeal of statutes 302 Formal structure of a statute 305 Legislative dictionaries — interpretation statutes 316 Drafting statutes 320 Different types of statutes 322 Particular forms of legislation in the Australian territories 326 Delegated legislation 328
Chapter 10: Approaches to Interpretation of Legislation 337
Introduction 339 Summary of principles 341 The goal of interpretation 342 Common law approaches 342 Purposive approach under legislation 351 Context: the modern approach to interpretation 356
Chapter 11: Extrinsic Aids to Interpretation of Legislation 365
Introduction 367 Summary of principles 367 Use of extrinsic materials at common law 368 Use of extrinsic materials under statute 374
Chapter 12: Interpretation of Legislation in Context 385
Introduction 387 Summary of principles 387
Creyke, Robin, et al. Laying down the Law, LexisNexis Butterworths, 2020. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6413182. Created from monash on 2021-02-01 22:27:08.
Copyright © 2020. LexisNexis Butterworths. All rights reserved.
LAYING DOWN THE LAW
Interpretation with reference to accompanying words 388 Interpretation with reference to punctuation 390 All words are assumed to carry meaning 391 Interpretation with reference to other parts of the legislation 392 Consistent use of words is assumed 399 Express mention of something may draw attention to the intended absence of
something else 399 General provisions do not override specific provisions 401 Interpretation legislation 401 Dictionaries may be consulted 402 Words should be interpreted in accordance with their current meaning 402 Provisions may be interpreted with reference to other legislation 403 Provisions may be interpreted with reference to the audience 405 Provisions may be interpreted with reference to prior or existing law 406
Chapter 13: Presumptions Used in the Interpretation of Legislation 413
Introduction 415 Summary of principles 415 Presumptions of interpretation and a common law Bill of Rights 416 Presumption that Parliament does not interfere with common law rights 419 Presumption that statutes do not operate retrospectively 424 Presumption that Parliament does not abrogate the privilege
against self-incrimination 427 Presumption that Parliament does not abrogate legal professional privilege 428 Presumption that Parliament does not deprive people of access to the courts 429 Presumption that penal provisions are construed strictly and beneficial
provisions construed broadly 429 Presumption that property rights are not taken away without compensation 430 Presumption that re-enactment constitutes approval of previous judicial interpretation 432 Presumption that legislation does not bind the Crown 434 Presumption that legislation does not have extraterritorial effect 435 Presumption that Parliament intends to legislate in conformity with international law 436
Chapter 14: Statutory Obligations and Discretions 441
Introduction 443 Summary of principles 443 How to determine whether a provision is obligatory or discretionary 444 How to determine whether breach produces invalidity 448
Chapter 15: Applying Legislation to Complex Problems 455
Introduction
Creyke, Robin, et al. Laying down the Law, LexisNexis Butterworths, 2020. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6413182. Created from monash on 2021-02-01 22:27:08.
Copyright © 2020. LexisNexis Butterworths. All rights reserved.
Practical guide to interpretation of legislation 457 Interpreting the Wild Dog Destruction Act: question and answer 458
Part 4: Legal Research 465 Chapter 16: Legal Research — Approaches and Steps 467
Introduction 469 Why legal research skills are important 469 Goals and constraints 470 Strategic approach to legal research 471 Finding sources of legal information 478 Legal research exercises 479
Chapter 17: Searching for Secondary Sources 485
Introduction 487 Strategies and steps 487 Online legal research 488 Textbooks 495 Legal dictionaries 495 Legal encyclopedias 496 Journal articles 498 Other sources of commentary 501
Chapter 18: Searching for Case Law 505
Introduction 508 Researching case law: key tasks 508 Researching case law: how to perform the key tasks 512 Finding case law on a particular subject: principal research tools 513 Finding case citations 517 Finding full – text judgments 518 Finding judicial consideration of cases 519 Finding cases referring to specific legislation 520 Finding cases defining legal words and phrases 520 Finding case notes 521 Guide to using CaseBase 521 Guide to using FirstPoint 522
Chapter 19: Searching for Legislation 525
Introduction 527 Acts and delegated legislation 528 Finding known Acts and delegated legislation 528
Creyke, Robin, et al. Laying down the Law, LexisNexis Butterworths, 2020. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6413182. Created from monash on 2021-02-01 22:27:08.
Copyright © 2020. LexisNexis Butterworths. All rights reserved.
LAYING DOWN THE LAW
Tracking the history of Acts and delegated legislation 531 How to use the Federal Register of Legislation 531 Finding legislation by topic 533 Finding judicial consideration of legislation 534 Finding commentary about legislation 535 Finding extrinsic materials 535 How to use the Parliament of Australia: Bills and Legislation website (F) 537
Part 5: Legal Writing, Study and Exam Skills 541 Chapter 20: Legal Writing 543
Introduction 545 General principles of good legal writing 547 Specific principles of good legal writing 552 Writing conventions 557 Legal essay writing 560
Chapter 21: Referencing and Citation 565
Introduction 568 Conventions in legal citation 569 What sources should be referenced and when? 569 Subsequent references 571 Citing cases 572 Citing statutes 578 Citing books 581 Citing legal journals 582 Citing newspapers, magazines and non-legal periodicals 583 Citing material from the internet 584 Citing parliamentary and government material 584 Citing foreign material 585
Chapter 22: Study and Exam Skills 587
Introduction
What are study skills?
Organising study time
Reading efficiently
Taking notes and making the most of lectures Participating in seminars and tutorials Engaging outside of the classroom
Finding the right study methods
Critical thinking
Creyke, Robin, et al. Laying down the Law, LexisNexis Butterworths, 2020. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6413182. Created from monash on 2021-02-01 22:27:08.
Copyright © 2020. LexisNexis Butterworths. All rights reserved.
What are exam skills? 597 Exam preparation 597 In the examination 601
Part 6: The Essential Legal Toolkit 607 A. Court Hierarchies 609
Federal hierarchy 609 State courts and tribunals 612 Territory courts and tribunals 616 British courts and tribunals 617 Canadian courts and tribunals 618 courts and tribunals 619 US courts and tribunals 620
B. Abbreviations of Commonly Used Law Reports 622 C. A Guide to Law Reports of Courts 625
Australian report series 625 English report series 628 Canadian report series 629 report series 629 United States report series 630 International report series 630
D. Common Legal Abbreviations 631 E. Commonly Misspelt or Misused Words 635 F. Glossary 636
Creyke, Robin, et al. Laying down the Law, LexisNexis Butterworths, 2020. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6413182. Created from monash on 2021-02-01 22:27:08.
Copyright © 2020. LexisNexis Butterworths. All rights reserved.
The year 2020 marks the 35th year since the first publication of Laying Down the Law, now in its 11th edition. The longevity of this introductory law text is testament to a number of its features. Primary among these is the understanding its readers gain of the legal system in Australia. The law is a pillar of a civilised society; it shapes and is shaped by the society in which it operates and is, in turn, a product of its history and its institutions.
InAustralia,that inheritance comprised a common law legal system and a democratic and parliamentary system of government.The inherited law and those political and legal institutions, developed over a millennium, needed adaptation to this land, some 20,000 kilometres from the model of law and government in 18th-century Britain. Laying Down the Law charts the evolution of those changes since European settlement and the gradual reconciliation of that introduced system with the existing legal and cultural systems of Australia’s indigenous peoples.
From these beginnings emerged a federal system of parliaments and executive government to make laws,the establishment of a multi-tiered system of courts and tribunals to interpret and apply those laws, and a complex and sophisticated regulatory system to develop standards and maintain a watchful eye over the operations of its institutions. Laying Down the Law provides a succinct account of that history and of those institutions.
From its inception, the text has taken account of the need to efficiently introduce students of law to the knowledge and the skills needed to navigate their legal studies.This involves inculcating key substantive and procedural principles of the common law system, such as the doctrine of precedent which ensures consistency within the hierarchy of Australian courts, and to the processes that protect the less advantaged within the criminal justice system.The text also includes exercises to enable students to test their knowledge and to practise the skills they are taught.
The law’s edicts are imposed through words. The meanings of words are not immutable and change with context and as societies change. For this reason, Laying Down the Law gives prominence to the principles developed by courts and tribunals for the interpretation of words encountered in legislation and other documents.A student of law needs to understand this background and appreciate that subtlety of language in order to choose an appropriate meaning in the context of the legal problem they face.
Elucidating meaning and understanding context entails good research skills.The text is fortunate to have among its authors professional librarians trained to share those skills. In particular, ’Mara contributed the research chapters which are a feature of the text, with the invaluable assistance of , Law Liaison Librarian at the Australian Catholic University.
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LAYING DOWN THE LAW
Other features contributing to the value of this text are the continuing support and enthusiasm shown by those involved in its production.That support has been maintained during the decades by its publisher, LexisNexis, from its long-standing and dedicated commissioning editor, Jocelyn Holmes, and the skilful editing and insightful suggestions for improvement by its editor, . Together with the input of the authors, they ensure that Laying Down the Law accurately represents current law, and remains relevant to the law as it applies within Australia.
This edition marks another milestone with the departure of , the only remaining author from those involved in the first and earlier editions. Under the able and enthusiastic input of the authorial team, the text will continue to instil those skills and understandings of the law that will provide guidance to its readers during their law studies and thereafter, whether they join the legal profession or find other callings or occupations.We trust that gaining this knowledge and skills will develop our readers’ judgement, and enable them to become contributing and valued members of the society in which they live.
’ Taylor
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Introduction
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LAYING DOWN THE LAW
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Table of Cases
References are to paragraph numbers
1412960 (Migration), Re [2016] AATA 4193 …. 8.69
A v Boulton (2004) 136 FCR 420 …. 13.19 Abdi v Release on Licence Board (1987) 10
NSWLR 294 …. 12.35
Abebe v Commonwealth (1999) 197 CLR 510
Adler v George [1964] 2 QB 7 …. 10.13
AGS [2015] QCATA 189 …. 8.66
AJ v Western Australia (2007) 177 A Crim R 247
…. 21.19
Akiba v Commonwealth (2013) 250 CLR 209
…. 4.10, 4.12, 4.13, 4.15
Alberts v Pethick (Appeal No 19 of 1976) …. 7.12 Alcan Australia Ltd, Re; Ex parte Federation of
Industrial Manufacturing and Engineering
Employees (1994) 181 CLR 96 …. 13.28 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27
…. 10.6, 10.8, 10.21, 11.17, 11.18, 13.22 Alcoa Portland Ltd v Victorian
WorkCover Authority (2007) 18 VR 146
…. 11.29
Alfonso v Northern Territory (1999) 13 NTR 8
…. 12.33
Algama v Minister for Immigration and
Multicultural Affairs (2001) 115 FCR 253
Al-Kateb v Godwin (2004) 219 CLR 562
…. 12.39, 13.1, 13.10
Alqudsi v The Queen (2016) 258 CLR 203
…. 8.11, 8.12
Amalgamated Society of Engineers v Adelaide
Steamship Co Ltd (1920) 28 CLR 129 …. 10.6,
10.8, 12.11, 12.12, 21.22
Amatek Ltd v Ltd (1993) 176
CLR 471 …. 12.14
Anglican Care v NSW Nurses and Midwives
Association (2015) 231 FCR 316 …. 10.20 Antico v Australia Pty Limited
(1997) 188 CLR 652 …. 8.25
Anti-Doping RuleViolation Panel v XZTT (2013)
214 FCR 40 …. 12.16
Applicant A v Minister for Immigration and Ethnic
Affairs (1997) 190 CLR 225 …. 11.10
Application of Holland [2008] NSWSC 251 …. 6.35
Applications of Shephard, Re [1983] 1 NSWLR 96 …. 9.38
Ashford v Thornton (1819) 1 B & Ald 405; 106 ER 149 …. 2.17
Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436 …. 11.12, 12.15 — v Sillem (1864) 10 HLC 704; 11 ER 1200
…. 13.16
Attorney-General, Ex parte;Truth & Sportsman
Ltd, Re [1961] SR (NSW) 484 …. 7.30, 7.31 Attorney-General (NSW) v Brewery Employés
Union of Wales (1908) 6 CLR 469
…. 12.38
— v Mundey [1972] 2 NSWLR 887 …. 7.30 — v XX (2018) 274 A Crim R 30 …. 6.31 Attorney-General (NT) v Hand (1989) 25
FCR 345 …. 4.49
Attorney General of Wales v Melco
Resorts & Entertainment Ltd [2020]
NSWCA 40 …. 11.18
Attorney-General (UK) v Heinemann Publishers
Australia Pty Ltd (1987) 10 NSWLR 86
Austin v Keele (1987) 61 ALJR 605 …. 2.75 Australian Capital Television v Commonwealth
(1992) 177 CLR 106 …. 3.45
Australian Communist Party v Commonwealth
(1951) 83 CLR 1 …. 3.6, 3.47
Australian Education Union v Department of
Education and Children’s Services (2012) 248
CLR 1 …. 10.21, 11.24
— v General Manager of Fair Work Australia (2012)
246 CLR 117 …. 9.31
Australian Federation of Construction Contractors,
Re; Ex parte Billing (1986) 68 ALR 416
…. 11.21
Australian Oil Refining Pty Ltd v Caltex Oil
(Australia) Pty Ltd (Supreme Court of Wales,Yeldham J, 26 September 1986) …. 8.79
Australian Postal Corporation v Sinnaiah (2013) 213 FCR 448 …. 10.21
Australian Prudential Regulation Authority v Holloway (2000) 104 FCR 521
…. 12.18
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