Foundations of Laws notes:

CHAPTER 1:

Law = means of ordering society and resolving disputes

Mcbain can be seen as:
o A story about individual stories and private lives
o Chronicle of conflicting values and social change
o A political story about conflict between state and
commonwealth
o Legal dispute
The Role of Clasification
o Branches of Law
Once it is legal it is divided into types of branches,
depending upon the purpose of the classification
o Civil and Criminal Law
Criminal law = conduct that is harmful to society in
some way
Prohibits certain acts givibg procedures for
punishment
Mcbain = doctor would have commited a
criminal offence if he had provided IVF to a
single woman in breach of s(1) of the intfertility
Treatment Act 1995 (Vic) + compliance with the
state act meant unlawful conduct under the
commonwealth legislation
Civil law = concerned with regulating relationsh
between individucals
However distinctions are vague
Same behaviour might be civil AND criminal
o Thus it is not the behaviour that defines
its status but the kind of legal processes
invoked in response
o Public and Private Law
Public = individuals relationship with the state
Eg. Criminal, constitutional, administrative law
Mcbain = public law because it concerns the
relationship between state and federal
legislation
Private = indivuals relationship with other individuals
Mcbain = difficulties in a purely private realm
because the private nature of having kids did
not prevent the interference by the state in this
case
This distinction comes from liberalism:
Its key ideas are liberty, individualism and
equality
Privledges the individual over the state
o Eg. Contract law
o Classification by source
Law made by parliament = act/statute/legislation
Law made by judges = common law

Meanings of common law

Common law = type of legal system -> Australia
has a common law system because it was
colonised by Britain a commonlaw country
Two principle sources of law -> common law
(courts) and statute (parliament)
Court law is then grouped according to different
principles and rules called equity and common
law
The Focus on Procedure
o Substantive and Procedural law
Substanitive lawconsists of written statutory rules
passed by legislature that govern how people behave.
These rules, or laws, define crimes and set forth
punishment.
They also define our rights and responsibilities
as citizens. There are elements of substantive
law in both criminal and civil law.
Procedural Law is a branch of law which creates,
defines, and regulates peoples rights, duties, powers
and liabilities; the actual rules and principles
administered by the courts, including legislative and
common law principles.
The rules that govern the directly the way in
which a dispute will be determined by the court.
o E.g. contract law has rules about when an
agreement is legally enforceable and the
consequences if a term of the contract is
breached.
Standing - Derives from the Latin term locus standi
and refers to the entitlement of a person or
organisation to invoke (request) the jurisdiction
(influence) of a court to hear a case.
Mcbain -> Ms meldrum Didnt have standing
didnt have the legal right against the law- the
commonwealth law was binding mcbain and not
meldrum it was not legally affecting her.
o The Rule of Law
Power should be exercised according to the law, not
arbitrarily or on the basis of personal whim
All people are subject to the law and before the law all
persons are equal
o Mcbain
Issue:
The major legal issue was the conflict between
the state and commonwealth law through which
commonwealth law of the section 22 of the
sexual discrimination act stated that there could
not be refusal to provide service on grounds of
marital status and the state law stated only
women who were married or in a defacto

relationship could obtain IVF thus giving single

women less favourable treatment.
Arguments:
The applicant (McBain) seeks a declaration that
s8 of the infertility Treatment Act 1995 (Vic) is
inoperative on the ground that it is inconsistent
with s22 of the Sex Discrimination Act 1984
(Cth).
The state and the minister adopted a neutral
position on the question of inconsistency.
The Catholic Church in fact contended that there
was no inconsistency.
o The Catholic Church submitted that the
central case (conventional manner) of
becoming pregnant is intercourse
between a man and woman. (Section 10
and 11).
o A child must have and know their parents
of either sex.
o The church argued that no service is
provided through the act of intercourse
between a man and woman.
o Argued the discrimation of gender, if we
allow single woment IVF then it is unfair to
single men because they cant attain IVF

CHAPTER 5
JUSTICE
a belief fundamental to morality that people ought to get what
they deserve (Oxford Companion to Philosophy).
Idea of equality
Substantive Justice = concerned with the merits of a situation and
whether the actual law and outcome seem to be right.
o you get what you deserve -> just deserts
o it is concerned with the outcome is the outcome fair is an
innocent man going to jail and whther or not we think that is
fair or equitable
Formal/ Procedural Justice = focuses on rules and procedure.
Concerns not the outcome of the law but the general characteristics
of laws and the process by which outcomes are achieved.
Distributive Justice = the law is distributed equally
Retributive justice = an eye for an eye
McBain V Victoria
o Equality of women and marital status
o Procedure to achieve justice
o Change in social values substantive justice
Miranda v Arizona
o Miranda was charged for kidnap and rape
o Did not understand his rights but knew them.

Creation of Miranda Rights which must be read out to

arrestees
Rule of Law
o No one is above the law and everyone is equal under the law.
o Includes the results of judicial provisions of individual persons
o Everyone is regulated by the law and suffer consequences at
the occurrence of a breach of law
Access to justice -> relatively equitable access to the legal process.
Involves three key elements;
o Equality of access to legal services
o National equality
o Equality before the law.
o

BARRIERS TO ACCESS
Cost
o Litigation is expensive
o High cost of litigation and scarcity of legal aid funds ->
growth of private litigation funding/investments
o Variety of expenses e.g. evidence -> documentation
(DISBURSEMENTS). Expenses of using court and involved
services.
o Opportunity costs (time spent in court proceedings which
could be used otherwise).
o Individuals can be disadvantaged to businesses in litigation
stakes as income-related legal expenses are tax deductable.
Delay
o Varies between courts and can be affected by changes in
substantive and procedural law, technology and social
changes.
Legal Aid
o Significant feature in justice from 1973
o In practise, very poor are assisted with legal representation,
grants mostly being applied to criminal and familial law
matters involving children.
o Applicants for aid must pass a merit test assessing their
prospects of success.
o A ceiling can be applied to the funds available.
Self-Represented Litigants
o Litigants in person
o Without lawyers explanations, litigants may feel alienated
from the legal process and the courts decisions.
Adversarial Culture
o Adversary System -> judicial officers play a passive role as
parties a responsible for shaping the conduct of proceedings.
Framed as a contest between two or more parties and
emphasises confrontation. Requires equality between
litigants.
Which Courts, What Practise?

Australian Magistrates

ALTERNATIVE INSTITUTIONS AND PROCESSES

Tribunals
o Civil and Administrative
o Tend to be less formal and adversarial than courts and
determine disputes more quickly and cheaply.
o More likely to use mediation and other alternative processes
to resolve disputes.
o Parties are usually liable for their own costs
Alternative dispute resolution
o Traditional means by which our legal system r3esolves
disputes is a formal courty hearing presided over by an
impartial judicial officer with power to impose a binding
decision.
o Alternative dispute resolution, or ADR, encompasses any
means of resolving disputes which falls outside the traditional
model.
o Focus on negotiation and consensus opposed to
confrontation, and an imposed outcome.
o Mediation -> involves a neutral third party, and instead of
imposing a decision, the mediator assists the parties to find a
solution that is satisfactory to both. Assistance in clarifying
issues and identifying resolution options. At agreement, it is
embodied in a formal agreement approved by court or
tribunal.
o Enhances access to justice through providing a less formal
and confrontational approach to dispute resolution.
o Lead to quicker and cheaper outcome.
o Yet also involves disadvantages-> equality of parties may be
assumed, certain circumstances may also find ADR
inappropriate.
Other dispute resolution agencies
o Ombudsman -> complaint concerns the government. A
statutory office with wide powers to investigate
administrative action by government officials. Only has power
to make recommendations.
INEQUALITY
Difficulties in accessing the law are magnified for those that are
physically, socially or economically disadvantaged and/or have
suffered inequality.\
In 1994, Access to Justice An Action Plan recognised that certain
groups face particular barriers by reason of their gender, race,
disability, living quarters/areas, lack of English, age or other socioeconomic disadvantages.
Inequality and Reform
o Over time through various reports and cases, multiple
strategies have been adopted to reduce inequality and
improve access to court processes.
The most common legal problems reported included consumer
(21% of respondents), crime (14%), housing (12%) and
government (11%) problems.

 Respondents consulted a wide variety of non-legal professionals

to try to resolve their problems as well as friends and family. A
legal professional was used for only a minority of problems16%
of all legal problems.
The survey demonstrates that access to justice for
disadvantaged people must remain a priority. The research
concludes that no single strategy will successfully achieve
justice for all people. It calls for a holistic approach to justice,
comprising multiple, integrated strategies, to cater for the
different needs within the community, and suggests tailored,
targeted intensive assistance for people with complex legal and
non-legal needs.
People with a disability and single parents were twice as likely to
experience legal problems. The unemployed and people living in
disadvantaged housing (low socioeconomic status) also had
heightened vulnerability.
Indigenous people were more likely to experience multiple legal
problems including government, health and rights related
problems.
Taking no action to resolve legal problems was more prevalent
among some disadvantaged groups including people with a nonEnglish main language, people with low education levels and the
unemployed.

LAWYERS: EDUCATION AND ETHICS

Lawyers sustain several obligations through which they must
followset guidelines and requirements must be met. In reference to
the Legal Profession Act, Regulation and Professional Rules.
Unsatisfactory Professional Conduct
Professional Misconduct
In regards to ethical issues, legal practitioners must most commonly
pronounce their good fame and character declaration.
o To act competently and diligently in service to their clients
o To act confidentially
o To act together for the mutual benefit of their profession
o To maintain a strict duty to the court
o Conduct in respect for which there is a conviction for a
serious offence, tax offence or an offence involving
dishonesty is prohibited.
o Conduct which consist of failure to comply with relevant laws
and legislation.
o To charge fairly for their services.
o Unsatisfactory professional conduct is prohibited.
Chapter 2
BRITISH COLONISATION
Terra Nullius
Under the international legal rules during the 18thC, sovereignty
could be acquired over land in three ways;
o Conquest taking land be force
o Cession the surrender of land by treaty

Discovery and Occupation land was terra nullius.

Uninhabited and populated by people too primitive to have a
system of law.

The Reception of English Law

Terra Nullius was the legal fiction which allowed Britain to treat
Australia as a settled colony. This classification had the result of
importing English law into NSW. In turn;
o This resulted in the development of a legal system based on
English laws, principles and institutions
o It had disastrous repercussions for Aboriginal law and society.
EVOLUTION OF REESPONSIBLE AND REPRESENTATIVE
GOVERNMENT
S 24 of the Australian Courts Act 1828 provided that English laws in
force on 25 July 1828, both common law and statute, applied to
New South Wales and Van Diemens land (the two existing colonies).
Other colonies received English law on the date of their foundation.
The New South Wales Act 1823 created a legislative council for New
South Wales and made provision for Van Diemens Land as a
separate colony with its own legislative council.
The supreme courts (which had the same powers as courts at
Westminster) in NSW and Van Diemens Land had power to
determine the matter in the event of a dispute.
Responsible Government
Multiple imperial acts allowed the progression towards a civil society
opposed to a military society.
The Australian Courts Act (1828) UK - fixed the date of reception of
English law in Australia, increased the size of the legislative council
and diminished the power of the governor in relation to it.
Australian Constitutions Act 1842 further enlarged the New South
Wales legislative council and provided for the election of 24 of its 36
members. This Act also differentiated the Governors function from
that of the legislative council, resulting in the creation of the three
branches of government; a legislature, an executive arm and a
judiciary.
New South Wales Constitution Statute 1855 Britains formal
approval of New South Wales request for a new bicameral
legislature consisting of an appointed Upper House and a Lower
House.
By 1890, all six Australian colonies had acquired a system of
responsible government.
Representative Government
Representative Government requires that members of Parliament be
popularly elected thus laws made by Parliament may be seen as
an expression of the peoples will.
Women were first granted the right to vote in SA in 1895, and in
federal elections in 1902. Victoria was the last state to enfranchise
women in 1908.

Not until 1962, was voting extended to Aborigines at federal

elections.

FEDERATION
Being subjected to two levels of government.
The Australian Constitution was not the product of a legal and
political culture, or of historical circumstances, that created
expectations of extensive limitations upon legislative power for the
purpose of protecting the rights of individuals Gleeson CJ in
Roach v Commissioner (2007). The colonial politicians, however,
were concerned not to sacrifice too much of their existing legislative
power to a new national government. The compromise was to
create a federal system in which the central government shared
powers with the newly-established states.
Australia looked to the United States federal system for inspiration,
limiting the legislative power of the federal government to specific
matters enumerated in its Constitution.
Australia also borrowed key principles of English Law, particularly
the doctrine or responsible government.
IMPERIAL LIMITS
The 1823 New South Wales Act gave the Governor power to make
local laws with the advice of an appointed Legislative Council
provided the laws were consistent with English Law, as Britain still
retained its imperial capacity.
The enactment of the Colonial Laws Validity Act 1865, prompted by
South Australian Supreme Court, judge Benjamin Boothby, outlined
that local legislature could pass laws which conflicted with English
Law. However a local law was made inoperative or void if repugnant
to an English statute, order or regulation which extended to the
colony. Key source of gaining independence from Britain.
AN INDEPENDENT NATION
The push for legal change came from world affairs and the
emerging political independence of the members of the British
Empire.
The enactment of the Statute of Westminster 1931 by the British
Parliament, gave statutory force to the sentiments contained within
the 1926 Balfour declaration which was a result of a series of
Imperial Conferences that began to rethink the relationship between
Britain and the Empire following World War 1.
Section 2 made the Colonial Laws Validity Act inapplicable to any
future acts of a dominions Parliament and provided that no such
laws would be void on the basis of repugnancy.
Section 4 outlined that Britain could still legislate for the dominions
but only at their request and with their consent.
It took 11 years and World War 2 for Australia to take up the
opportunity for independence offered by the Statute of Westminster.
In 1942 the Statute of Westminster Adoption Act (Cth) applied the
Statute of Westminster Act to Australia, however English laws which

had previously applied to Australia by paramount force still

continued to have effect in the States. It was not until the Australia
Act 1986 (Cth) that the limits on the States legislative powers were
swept away; Britain could no longer legislate for Australia with or
without Australias consent.
___________________________________________________________________________
SOVEREIGNTY AND LAND
Sovereignty
Defined as supreme legal authority.
Mabo [No 2]
Mabo [No 2] (1992) 175 CLR 1 found that terra nullius was invalid
and was therefore legal fiction
It therefore recognised that native title exists
Britain while having sovereignty over the land did not have
absolute ownership through which radical rights meant that any
prior interests or rights were still allowed
o Thus Native title was a prior interest and the ownership by
Britain d aborigianls could co exists
o Another point was that under Mabo they were not asking for
a absolute ownership but wanted to have the rights to the
customary rights to occupy and use the land.
This decision was criticised as involving the high court too overtly in
the law making role which is a legislative role that the constitutions
hold
IMPACT OF NON-INDIGENOUS LAW AND POLICY
Dispossession
Protectionism & assimilation
o Protectionism was a policy because they thought aborigines
were a dying race and thus had to be protected by being
segregated in reserves and subject to almost total control
from the state
Subject to control where they lived, where and for how
much they worked, whom they mixed with and married
o Assimilation came about as there was an increasing
population of mixed descents and half castes were forcibly
removed to be absorbed into the general population.
NATIVE TITLE ACT
Native Title Act 1993 (Cth) enacted after Mabo case
Act was amended in 1998 after the case Wik Peoples v Queensland
(1996) 187 CLR 1.
o Were pastoral leases extinguishing native title?
o Found that native title and pastoral leases could coexist
The amendment eroded native title rights and increased the
complexity of making claims under the legislation
CHAPTER 3
CONSTITUTIONS AS CULTURAL SYMBOLS
indigenous received only 2 negative references in the constitution
drafts

these negative references relact the cultural aspect of the

constitution values and beliefs of the time
preamble = symbolic introductory statement that reflects the
values, history and politics of the nation at the time the constitution
was formed
rights
when constitution was drafted on 1890s, human rights were not
accorded the same priority as they are today thus there is no bill
of rights
high court held that the constitution contains an implied freedom of
legislative power not as a personal right
Statutory Charters
December 2008, federal attorney-general established a national
Human Rights committee to engage in a process of public
consultation about the protection and promotion of human rights
A FRAMEWORK FOR GOVERNMENT
INSTITUTIONAL ARRANGEMENTS
Constitutions set out the institutional arrangements by which
nations or association or other groups or bodies are governmed
Statutes and court decisions set out rules about specific matters but
the constitution contains the rules about how these other rules are
to operate who ahs power to determine them and how the
constitution itself can be changed
In creating this framework the constitution divides power inL
o By establishing a federal system
o By creating three arms of commonwealth government with
specific functions vested in each

A FEDERAL CONSTITUTION
LEVELS OF GOVERNMENT
To live in a federal system is to be subject to two sets of laws and to
be governed at two levels within Australia this includes the
commonwealth and the states.
DIVISIONS OF LEGISLATIVE POWERS
The commonwealth is limited to the matters which it can legislate.
The States have a general power to legislate for the peace, welfare
and good government of their respective areas; by contrast, the
Commonwealths legislative power is limited to those matters
enumerated in the Constitution (as a result of the politicians
resistance to create a federal government with wider legislative
powers than the proposed states in the 1890s).
The Commonwealth is said to have specific legislative power
while the States legislative power is described as general or
residual.
Most of the Commonwealths powers are not exclusive but
concurrent (shared with the states). An example of activity
governed by both NSW and commonwealth laws is the practice of
sexting. Section 109 of the Constitution gives paramountcy to
commonwealth laws in the case of inconsistency and thus the

commonwealth law prevails provided it is valid. Exclusive powers

are set out in section 90 of the constitution.
When the courts take a wide view, it expands the commonwealths
power into the States.

POWERS AND POLITICS

The well-known McBain case illustrates how the Constitution may be
invoked by individuals in controversial circumstances which seem
far removed from constitutional issues.
Governments rely on constitutional arguments to resolve important
political questions.
Most of the Commonwealths legislative powers are set out in
section 51 of the Constitution. This is known as the head of power
the commonwealth relies on to enact legislation.
THE TASMANIAN DAM CASE
The key issue in this case was the validity of Commonwealth
laws, in the form of both statute and delegated legislation, which
enabled the Federal Government to prevent the construction of a
dam in the fragile environment of south-west Tasmania.
The voice of the nation (however fickle it may prove to be) can
only prevail over the voice of one of its units (however constant it
may prove to e) if the same voice of the nation speaks on a subject
on which it is entitled to be heard. As we have seen, a law of the
commonwealth must first be valid before any question of
inconsistency can arise, and to be valid it must be on a subject
specifically allocated to the Commonwealth under the Constitution.
Franklin, my dear, I dont give a dam Michael Cooper.
It was argued that the Commonwealth had no legislative power with
respect to conservation or environmental matters. The
Commonwealth relied on other constitutional powers to support its
legislation under challenge in this case one of these heads of
power being section 51(xxix) of the Constitution, the external affairs
power. The Commonwealth argued that the relevant laws were a
valid exercise of the external affairs power because they
implemented an international treaty, the Convention for the
Protection of World Cultural and Natural Heritage, which Australia
ratified in 1974. The wide view of s 51(xxix) enables the
Commonwealth to legislate to give effect to a treaty and the
relevant laws must be appropriate and adapted to this end. On this
basis, some of the Commonwealth legislation in the Tasmanian Dam
case was held to be invalid by a majority of the High Court.
Nevertheless, enough of the Commonwealths legislation survived
the Tasmanian challenge to prevent the dams construction.
Since WWII, international cooperation has increased enormously, as
has the number of international treaties and agreements on a wide
range of subjects. In Australia, ratification of an international treaty
is the responsibility of the executive arm and, in constitutional
terms no approval of this process is required by Parliament. It is this
combination of factors which gave the High Courts decision in the
Tasmanian Dam case so much punch.

THE WORKCHOICES CASE

In 2006 the High Court was asked to determine the validity of the
Workplace Relations Amendment (Work Choices) Act 2005 (Cth).
This Act had given legislative effect to the Howard Governments
industrial relations reforms, in particular the creation of Australian
workplace agreements.
As s 51(xxxv) only confers limited power with respect to conciliation
and arbitration, the Workchoices legislation had relied on s 51(xx),
the corporations power, to support most of its provisions.
Five Australian States and various union bodies challenged the
Commonwealth reliance on s 51(xx) to enact its wide-ranging
workplace laws (New South Wales v Commonwealth (2006)),
however by a 5:2 majority the High Court held that the
corporations power could be used to regulate the workplaces of
corporations. Challenged the validity of the Workplace Relations
Amendment Act 2005.
LEGAL PRINCIPLES AND CASES
The Tasmanian Dam case is relevant to McBain despite their factual
differences. This is because the significance of a case lies not in its
facts but in the legal principle or rule it establishes and for which it
is an authority.
McBain sex discrimination act is based on CEDAW (external affairs)
Td case world heritage act based on convention for the protection of
world cultural and natural heritage (external affairs).