An Introduction to the Law and its Sources

1. An Introduction to the Law and its Sources Susan Carter

2. Legal sense v ‘Common sense’ • Pepper Finance Corporation v Williams [2008] NSWSC 4 Law v Politics • “Judges are bound by legal texts and their own prior precedents to a degree that political actors are not. And crucially, judges have an obligation to explain their results as the product of legal judgement.” Michael C. Dorf

3. To remember: • Law is both a body of knowledge and a way of thinking about that knowledge: it is important to master both. • You are expected to know not just what the law is, but why. Anytime you think about the answer to a legal question – ask yourself, why do I know that this is the answer? What is my legal source or authority? • You may disagree with some or indeed all of the substantive law which you are studying. But you cannot change it simply by disagreeing with it. If you want to change the law – that is turn your policy into law – you need to understand the law and its processes first.

4. Law v Policy “Courts and judges are not meant to have agendas, and judges are not meant to seek popularity. They are expected to administer justice according to law, regardless of the consequences for their approval ratings. A judicial decision that pleases one side or the other of a partisan conflict will always attract applause or blame from some of the partisans, but people expect judges to attend to the task of administering justice and to leave politics to politicians.” Gleeson CJ, speech to the Judiciary of the Commonwealth of the Bahamas

5. Law v Politics “Behind the legal issues that the Court must decide there often are intensely political concerns. Yet the Court is expected to resolve those issues according to law, and adhering to legal methodology. We expect judges to decide issues after hearing argument in specific cases.” Gleeson CJ

6. Legal approach v personal opinion “In Australia, one of the responsibilities of the High Court is to decide the constitutional validity of federal or State legislation. The public would be outraged if the Justices advanced, as a reason for holding legislation to be valid or invalid, their approval or disapproval of the policy of the legislation.” Gleeson CJ

7. Latham CJ, First Uniform Tax case "[T]he controversy before the Court is a legal controversy, not a political controversy. It is not for this or any court to prescribe policy or to seek to give effect to any views or opinions upon policy. We have nothing to do with the wisdom or expediency of legislation. Such questions are for Parliaments and the people ... The Court must consider and deal with ... [the] legal contention. But the Court is not authorized to consider whether the Acts are fair and just as between States - whether some States are being forced, by a political combination against them, to pay an undue share of Commonwealth expenditure or to provide money which other States ought fairly to provide. These are arguments to be used in Parliament and before the people. They raise questions of policy which it is not for the Court to determine or even to consider."

8. Statute Law and Case Law

9. Sources of law • Statute –laws made by Parliament • Case law – laws made by judges

10. Statutes v Case law Statutes operate from the general to the particular, whereas cases operate from the particular to the general.

11. CITATION OF STATUTES • Statutes are always cited: Title/Year/(Jurisdiction) • Flags Act 1953 (Cth) • Parramatta Methodist Cemetery Act 1951 (NSW) s3 • Offshore Minerals Act 1994 (Cth) s26(2)(b)

12. STRUCTURE OF AN ACT • NUMBER • DATE • LONG TITLE • SHORT TITLE • PREAMBLE (OR PURPOSE CLAUSES INSTEAD OF A PREAMBLE) • Preamble always starts with “Whereas” • TABLE OF CONTENTS • PARTS OR CHAPTERS, DIVISIONS AND HEADINGS

13. SYDNEY TURF CLUB ACT 1943 As at 13 November 2007 Act 22 of 1943 TABLE OF PROVISIONS Long Title An Act to constitute and incorporate a Sydney Turf Club and to declare its objects, functions and powers; to provide for the acquisition by that club of certain racecourses and the equipment thereof; to provide for the discontinuance of the licences of certain racecourses; to provide for the establishment of a Racing Compensation Fund in the Treasury; to amend the Gaming and Betting Act 1912 and certain other Acts; and for purposes connected therewith. PART 1 - PRELIMINARY 1 Name of Act and commencement (1) This Act may be cited as the Sydney Turf Club Act 1943 . (2) This Act shall commence on a day to be appointed by the Governor and notified by proclamation published in the Gazette.

14. (Repealed) • Definitions 3A. Notes PART 2 - SYDNEY TURF CLUBDivision 1 - Incorporation and constitution 4. Constitution etc 5. Application of income etc 6. First members, directors and auditors

15. Division 2 - Objects, functions and powers 7. Objects and functions of Club 8. Acting secretary Division 3 - Financial 9. Temporary accommodation 10. Power to borrow 11. Insurance, and payments out of funds Division 4 - (Repealed)None PART 3 - RACING COMPENSATION FUND 15-18. (Repealed)

16. PART 4 - GENERAL 19. Members defaulting in payment of bets not eligible to continue as members 20. Rights of member personal 21. By-laws 22. Commencement of by-laws 23. Public notification of by-laws 24. Offences etc 25. Exclusion of undesirable persons 26. Directors may fix tolls and charges 27. Power to let lands, buildings or tolls 28. Inspection

17. 29. Club to repair etc 30. Indemnity 31. (Repealed) 32. Regulations SCHEDULE 1 Schedule 2 (Repealed) SCHEDULE 3

18. Three good sites for finding legislation: • http://www.comlaw.gov.au • http://www.austlii.edu.au • www.legislation.nsw.gov.au

19. The Sectionis the most important part of an Act Sections are sub-divided into: SECTION s1 SUB-SECTION (2) PARAGRAPH (a) SUB-PARAGRAPH (v)

20. TRADE PRACTICES ACT 1974 - SECT 52 Misleading or deceptive conduct (1)  A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

21. Elements of s52(1) • Corporation • Trade or commerce • Engage in conduct • Misleading or deceptive

22. Case law • Decision: relevant only to the parties • Ratio decidendi : reason for decision : this answers the legal question for decision : creates the binding law

23. CASE CITATION PLAINTIFF’S NAME v DEFENDANT’S NAME(Civil case) OR R v PERSON CHARGED WITH OFFENCE/DEFENDANT OR ACCUSED (Criminal case) THEN

24. YEAR in which the case was decided (in square or round brackets depending on the reporting system used) • VOLUME in which the case has been reported • ABBREVIATION of the particular report • PAGE NUMBER at which the report begins, and • PAGE NUMBER from which you are quoting (and name of judge)

25. Examples: • Behrens v Bertram Mills Circus Ltd [1957] 2QB 1 • Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2002) 208 CLR 199 • R v Brown [1994] 1 AC 212

26. Structure of a case • Headnote • Note as to argument of the parties • Judgement itself • Either single, or multiple – depending on how many judges sat in the matter • The decision and any orders

27. Vocabulary • Ratio decidendi • Rationes decidendi • Obiter dicta • Obiter dictum

28. Mary v Tom Mary and Tom are neighbours. Mary erects a dividing fence between the properties made out of cedar inlaid with ivory. She then seeks to recover half of the cost of the fence from her neighbour Tom pursuant to the Dividing Fences Act. Tom declines to pay, as he didn’t want a fence at all, certainly not a cedar fence as it clashes with his Tuscan landscaping, and doesn’t want to pay for the ivory inlays as they are all on Mary’s side. Mary sues Tom. Tom defends the suit claiming that the fence Mary erected is not a ‘dividing fence’ within the meaning of the Act.

29. DIVIDING FENCES ACT 1991 - SECT 6 (1) An adjoining owner is liable, in respect of adjoining lands where there is no sufficient dividing fence, to contribute to the carrying out of fencing work that results or would result in the provision of a dividing fence of a standard not greater than the standard for a sufficient dividing fence. (2) This section applies whether or not a dividing fence already separates the adjoining lands.

30. Issue? • What does “sufficient dividing fence” mean, within the Dividing Fences Act 1991? Decision? • Tom must pay Mary for half the fence

31. Ratio decidendi • Ratio • The reason for the decision • The answer to the question or issue of law raised by the facts put before the court • The most important part of the case (cf section in legislation.)

32. Fact or law? The best way to tell the difference is to ask yourself, could a witness give evidence to answer this question? • If yes – it is an issue of fact. • If no – it is an issue of law.

33. Multiple rationes • The ratio is the answer to each issue of law before the court • Some cases raise multiple issues, and therefore stand as authority for more than one proposition.

34. How do we use the ratio? • The common law is built on the concept that the same answer to the same legal question – even if it arises in the context of a different set of facts – can be applied to solve that question. • The ratio from one case is applied to solve the same issue when it arises in different contexts.

35. Case reading exercises • Merritt v Merritt [1970] 2 All ER 760 • Thornton v Shoe Lane Parking [1971] 2QB 163 • Pepper Finance Corporation v Williams [2008] NSWSC 4

36. Case notes • Case notes – save time and help you refresh your memory • Serve different purposes • The case reading questions are a good guide to analyse a case – and you can build your case note based on these questions

37. 1.2What is law? The Scope of Jurisprudence

38. What is ‘law’? Osborn’s Concise Law Dictionary tells us that “law” means: “an obligatory rule of conduct. The commands of him or them that have coercive power (Hobbes). A law is a rule of conduct imposed and enforced by the Sovereign (Austin). But the law is the body of principles recognised and applied by the State in the administration of justice (Salmond). Blackstone, however, maintained that a rule of law made on a pre-existing custom exists as positive law apart from the legislator or judge”

39. Four answers: • NATURAL LAW • POSITIVISM • COMMON LAW • LEGAL REALISM

40. NATURAL LAW • Aristotle • Cicero • St Thomas Aquinas • Finnis • Dominated Western thought until the 18th Century • Assertions about natural law were often the basis of the argument for individual or human rights and for imposing limitations on government • Groundwork for the principles of international law

41. Cicero, De Re Publica “True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting. It summons to duty by its commands, and averts from wrongdoing by its prohibitions….It is a sin to try to alter this law, nor is it allowable to repeal any part of it, and it is impossible to abolish it entirely.We cannot be freed from its obligations by Senate or people, and we need not look outside ourselves for an expounder or interpreter of it. And there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and all times, and there will be one master and ruler, that is, God, over us all, for he is the author of this law, its promulgator, and its enforcing judge. Whoever is disobedient is fleeing from himself and denying his human nature, and by reason of this very fact he will suffer the worst penalties, even if he escapes what is commonly considered punishment”

42. Thomas Aquinas: 4 types of law • The Eternal – God’s plan for the universe • The Natural- that part of the eternal law which is discoverable by reason and which is to be found in the human mind • The Human - the law created by humans on the basis of natural reason, (or positive law) and • The Divine – that law revealed in scripture.

43. The problem of “unjust laws” • Lex iniusta non est lex: an unjust law is not a law • A just law : • is consistent with the requirements of natural law • Does not exceed the authority of the law maker • Imposes burdens on citizens fairly.

44. Finnis’ basic goods • life (and health) • knowledge • play • aesthetic experience • sociability (friendship) • practical reasonableness • religion

45. POSITIVISM • Jeremy Bentham • John Austin • HLA Hart • Very influential over last 200 years and in current legal thinking; a critique of common law and natural law thinking

46. Positivism • Is and ought or is and should are separate questions. • “The existence of law is one thing; its merit or demerit is another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry. A law, which actually exists, is a law, though we happen to dislike it, or though it vary from the text, by which we regulate our approbation and disapprobation.” John Austin

47. Positivism • Legal systems are created by (posited) by people rather than having some natural or metaphysical existence.

48. Law as a command: Austin • Features of a command: • a wish or desire of one rational being directed to another • this intention is communicated • if the command is not obeyed a punishment of some sort will result

49. Command theory • Austin: A law is a general command made by a sovereign • Problem: how could sovereigns – who make commands – be subject to the rule of law. • Rejected by HLA Hart

50. HLA Hart • Laws exist in two groups: • primary rules (substantive law – eg road rules) • Secondary rules (rules about rules – eg constitutions, procedural rules.) • “rule of recognition”.