Connecting With Law 4th Edition

Sanson
Visit to download the full and correct content document:
https://ebookmass.com/product/connecting-with-law-4th-edition-sanson/
More products digital (pdf, epub, mobi) instant
download maybe you interests ...

Connecting With Law 5th Edition Michelle Sanson

https://ebookmass.com/product/connecting-with-law-5th-edition-
michelle-sanson/

Commercial Law 4th Edition Eric Baskind

https://ebookmass.com/product/commercial-law-4th-edition-eric-
baskind/

Dynamic Business Law 4th Edition – Ebook PDF Version

https://ebookmass.com/product/dynamic-business-law-4th-edition-
ebook-pdf-version/

Consumer and Commercial Law 4th Edition Kudith Tillson

https://ebookmass.com/product/consumer-and-commercial-law-4th-
edition-kudith-tillson/
Incubating Creativity at Your Library: A Sourcebook for
Connecting with Communities Laura Damon-Moore

https://ebookmass.com/product/incubating-creativity-at-your-
library-a-sourcebook-for-connecting-with-communities-laura-damon-
moore/

Precalculus with Limits 4th Edition Ron Larson

https://ebookmass.com/product/precalculus-with-limits-4th-
edition-ron-larson/

A History of American Law 4th Edition Lawrence M.

Friedman

https://ebookmass.com/product/a-history-of-american-law-4th-
edition-lawrence-m-friedman/

Crime Analysis with Crime Mapping 4th Edition, (Ebook

PDF)

https://ebookmass.com/product/crime-analysis-with-crime-
mapping-4th-edition-ebook-pdf/

Counseling Children and Adolescents: Connecting Theory,

Development,

https://ebookmass.com/product/counseling-children-and-
adolescents-connecting-theory-development/
CONNECTING
WITH LAW
FOURTH EDITION

MICHELLE SANSON
THALIA ANTHONY
OXFORD
ASCEND
RESOURCES
Study, practise and succeed
Your Connecting with Law, fourth edition, resources include:
- Multiple-choice questions with instant feedback for
self-testing
- Definition matching exercises to develop your knowledge
of legal words and terms
- Problem solving exercises to prepare you for assessment
and exams
- Sample answers to case summary exercises to develop
your case analysis skills
- Discussion answers for reading and reflection exercises to
guide your application of legal concepts
- Fact sheets on goal setting, time management,
assertiveness, stress management, work-life balance and
more to help you transition to university life
- Activity sheets on achieving goals, time management, and
motivation to help you succeed
- Videos with tips and tricks for studying law, reading cases,
communication, and securing a job
- Weblinks to relevant sites to help with research and
assignments.

To access your resources go to oxfordascend.com

Register for an account
Activate the code within your account

This code can only be activated once.

Once activated, access is valid for 4 years.
For any technical issues, please contact:
digitalsupport.au@oup.com
CONNECTING
WITH LAW
CONNECTING
WITH LAW
FOURTH EDITION

MICHELLE SANSON
THALIA ANTHONY
1
Oxford University Press is a department of the University of Oxford.
It furthers the University’s objective of excellence in research,
scholarship, and education by publishing worldwide. Oxford is a registered
trademark of Oxford University Press in the UK and in certain other
countries.
Published in Australia by
Oxford University Press
Level 8, 737 Bourke Street, Docklands, Victoria 3008, Australia.
© Michelle Sanson and Thalia Anthony 2019
The moral rights of the authors have been asserted.
First edition published 2009
Second edition published 2010
Third edition published 2014
Fourth edition published 2019
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted,
in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly
permitted by law, by licence, or under terms agreed with the reprographics rights organisation. Enquiries
concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford
University Press, at the address above.
You must not circulate this work in any other form and you must impose this same condition on any acquirer.

ISBN 9780190310844
Reproduction and communication for educational purposes
The Australian Copyright Act 1968 (the Act) allows a maximum of one chapter
or 10% of the pages of this work, whichever is the greater, to be reproduced
and/or communicated by any educational institution for its educational purposes
provided that the educational institution (or the body that administers it) has
given a remuneration notice to Copyright Agency Limited (CAL) under the Act.
For details of the CAL licence for educational institutions contact:
Copyright Agency Limited Level 11, 66 Goulburn Street Sydney NSW 2000 Telephone: (02) 9394 7600 Facsimile:
(02) 9394 7601 Email: info@copyright.com.au
Edited by Trischa Mann
Text design by Jennai Lee Fai from Jenki
Typeset by Newgen KnowledgeWorks Pvt. Ltd., Chennai, India
Proofread by Naomi Saligari
Indexed by Trischa Mann
Printed in China by Golden Cup Printing Co. Ltd.
Links to third party websites are provided by Oxford in good faith and for information only.
Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work.
The statements of fact, data and opinions expressed in this book are those of the author or, in the case of the
Practitioner Profiles, the practitioner identified and do not necessarily reflect the views of Oxford University
Press or its editors. Accordingly, the editors, Oxford University Press and its respective employees, officers and
agents accept no responsibility or liability whatsoever for such statements of fact, data and opinions.
BRIEF CONTENTS

List of Figures xii

Table of Cases xiv
Table of Statutes xxi
Preface xxx
Guided Tour xxxi
Acknowledgments xxxiii
About the Book xxxiv

1 Learning Law: How Can I Develop a Legal Mind? 1

2 Sources: What Is the Law Itself? 57
3 Legal Institutions: How Is Law Made? 111
4 Classifying and Practising Law: How Are Cases Resolved? 157
5 Research: How Do I Find the Law? 187
6 Communication: How Do I Engage with Others about
the Law? 241
7 Jurisprudence: What Is Law? 301
8 History: How Did Australian Law Develop? 353
9 Australia: Where Do Indigenous Laws Fit In? 379
10 Precedent: How Do Judicial Decisions Become Law? 417
11 Statutory Interpretation: How Do Courts Interpret
Legislation? 465
12 The Profession: What Do Lawyers Do? 517
13 Law in Society: What Are the Problems and Remedies
for Accessing Justice? 564
14 My Law Career: How Can I Best Prepare for It? 595

Glossary 635
Index 645

v
 EXTENDED CONTENTS

List of Figures xii

Table of Cases xiv
Table of Statutes xxi
Preface xxx
Guided Tour xxxi
Acknowledgments xxxiii
About the Book xxxiv

1 Learning Law: How Can I Develop a Legal Mind? 1

1 Law as a discipline 2
Reflection exercise 3
2 Legal reasoning 4
Exercise: Inductive and deductive reasoning 7
Exercise: What’s your reasoning? 8
3 Outcomes of your legal education 10
Exercise: Priestley 11 requirements 13
Exercise: Critical thinking 26
Exercise: Assessing sources 29
4 Success in law school 42
Exercise: Basic IRAC application 47

2 Sources: What Is the Law Itself? 57

1 Primary and secondary sources of law 58
Exercise: Sources practice 59
2 Legislation 59
Exercise: Anatomy of an Act 69
3 Cases 76
Exercise: Reading a citation 81
Exercise: Case summary 1 92
Exercise: Case summary 2 93
4 Secondary sources 97

vi
 EXTENDED CONTENTS vii

3 Legal Institutions: How Is Law Made? 111

1 Government in Australia 113
Reflection exercise: Rule of law perspectives 117
2 Constitutions of the Commonwealth and the states and territories 117

3 Parliament’s role in creating law 125

4 The executive’s role in administering law 128

5 The judicature’s role in interpreting law 132

Problem exercise: Intra or ultra vires 143
6 Alternatives to courts 145

4 Classifying and Practising Law: How Are Cases Resolved? 157

1 Major legal classifications 159

2 Branches of substantive law 163

3 Aspects of procedural law 178

5 Research: How Do I Find the Law? 187

1 The importance of legal research 189

2 Legal research methodology 189

Exercise: Research types 190
Exercise: Research strategy scenario 192
Exercise: Ranking sources 199
3 Using a library catalogue or search engine 200
Exercise: Boolean searching 202
4 Finding legislation 203
Exercise: Finding a bill 209
5 Finding cases 212
Exercise: Using FirstPoint and CaseBase 220
Exercise: Searching phrases in CaseBase 222
6 Finding and using secondary sources 223

7 Legal referencing 234

viii EXTENDED CONTENTS

6 Communication: How Do I Engage with Others

about the Law? 241
1 The importance of communication 242

2 Formulation: Preparing to communicate 245

Exercise: Reading a case for a particular purpose 248
Exercise: Preparing to be excused from jury duty 250
3 Engagement: In-person communications 255

4 Engagement: Written communications 265

Problem exercise: Drone on, party people 273
Exercise: Drafting a submission 278
Exercise: Advising Alan 282
Exercise: Hitting the right tone 282
Exercise: Keeping it clear 283
5 Collaboration 284
Reflection exercise: Good team, bad team 287
Exercise: Group work scenario 292
6 Review: Continual improvement 296

7 Jurisprudence: What Is Law? 301

1 Introduction 303

2 Early and continuing jurisprudence: Indigenous jurisprudence 306

3 The birth of modern jurisprudence 307

4 Modernism, Marxism and socio-legal theory 324

5 Legal realism 329

6 Critical legal theories 331

7 Dominant jurisprudence today 342

Exercise: Applying jurisprudence 349

8 History: How Did Australian Law Develop? 353

1 Legal systems of Indigenous societies and their early exclusion
from the common law 356

2 Displacement of Indigenous laws 358

 EXTENDED CONTENTS ix

3 Reception of English law 363

4 Military origins of the Australian legal system 363

5 Key concepts from English legal and constitutional history 364

6 How English legal and constitutional history apply to Australia 369

7 Adoption of English common law—from the frontier to the

Australia Acts 371

8 Federation and British remnants today 376

9 Australia: Where Do Indigenous Laws Fit In? 379

1 Historical developments in official policies relating to Indigenous
people: Exclusion and inclusion 381
Exercise: The intervention 386
2 Recognition of Indigenous rights to land 389

3 Developments since Mabo 395

4 Other forms of recognition of Indigenous rights to land 399

5 Persistent non-recognition of Indigenous laws 405

6 Alternative paths for incorporating customary law into the

common law 407

7 Filling the legal gap—treaty and sovereignty rights 414

10 Precedent: How Do Judicial Decisions Become Law? 417

1 Introduction to precedent 418

2 Key concepts in the law of precedent 420

Exercise: Low blow for a high roller 422
Exercise: Finding more than one ratio 426
Exercise: The ratio of disturbance 431
3 Applying precedent 435
Exercise: Which judgment is which? 439
4 Judicial approaches to precedent 442
Exercise: Judging Sophie 442
x EXTENDED CONTENTS

5 Problem solving using precedent 449

Exercise: Which precedent takes precedence? 449
Exercise: Application of precedents 450
Exercise: Distinguish the precedent 455
Exercise: Jurisprudence in precedent 457

11 Statutory Interpretation: How Do Courts

Interpret Legislation? 465
1 Introduction to statutory interpretation 466

2 Modern statutory approach 470

Exercise: ‘Make poverty history’ 476
Exercise: ‘Penalty for possession’ 478
3 Traditional common law approaches 480

4 Other tools of statutory interpretation 485

Exercise: Applying ejusdem generis 491
Exercise: Latin maxims 492
Exercise: Getting out of military service 495
Exercise: Betel nut therapy 496
5 Applying the rules of statutory interpretation 498
Exercise: Jimbo and Baba visit Parliament House 499
Exercise: No standing 500
Exercise: Double jeopardy 501
Exercise: Danny and his motorbike 503
Exercise: Supergrass 509
Exercise: Olympic ring accessorising 510

12 The Profession: What Do Lawyers Do? 517

1 Overview of Australian legal practice 518

2 Solicitors 527
Exercise: Confidentiality and disclosure 539
3 Barristers 542

4 Judicial officers 554

5 Some other roles in the legal profession 556

6 Ethics 558
Exercise: Ethical decision making 560
 EXTENDED CONTENTS xi

13 Law in Society: What Are the Problems and Remedies for

Accessing Justice? 564
1 Access to justice—key issues 565

2 Access to justice for specific groups 570

Exercise 574
3 The role of legal aid 581

4 Other initiatives to promote access to justice 588

14 My Law Career: How Can I Best Prepare for It? 595

1 What is a law career ‘for’? 596

2 Is law really for me? How do I know? 599

Exercise: Am I suited to becoming a lawyer? 606
3 What kind of career can I expect as a lawyer? 608

4 Important choices of subjects and course structures 621

5 What can I do as a student to become the lawyer I want to be? 624

6 Maintaining wellbeing 628

Glossary 635
Index 645
 LIST OF FIGURES

Figure 1.1: Inductive and deductive reasoning 7

Figure 1.2: Relationship between the TLOs, Priestley 11 and graduate attributes 10
Figure 1.3: Interrelationship between the TLOs, Priestley 11 and graduate attributes 18
Figure 1.4: Tree diagram: Get a law-related job or volunteer position for the summer 32
Figure 3.1: The three arms of government 114
Figure 3.2: The federal court hierarchy 135
Figure 3.3: The state court hierarchy 135
Figure 4.1: Substantive and procedural law 163
Figure 5.1: The Laws of Australia user interface 193
Figure 5.2: The search refined using quote marks 193
Figure 5.3: Exploring the results 194
Figure 5.4: A useful lead 194
Figure 5.5: The AustLII user interface 195
Figure 5.6: Index page of an Act 196
Figure 5.7: Homing in on particular sections 196
Figure 5.8: Checking notations for extra information 197
Figure 5.9: The Noteup feature 198
Figure 5.10: Commonwealth legislation page at AustLII 203
Figure 5.11: Federal Register of Legislation home page 204
Figure 5.12: Browsing legislation by subject on Lawlex 206
Figure 5.13: Browsing Lawlex to WA legislation on adoption 207
Figure 5.14: Example of AustLII’s Point-in-Time facility 210
Figure 5.15: AustLII High Court case search options by year and starting letter 213
Figure 5.16: Cardiff Index example 214
Figure 5.17: CaseBase Cases search screen 214
Figure 5.18: CaseBase results screen for Engineers’ Case 215
Figure 5.19: CaseBase results screen for Tasmanian Dam Case 215
Figure 5.20: LexisNexis unreported judgments 216
Figure 5.21: CaseBase legislation judicially considered 217
Figure 5.22: AustLII Noteup function for legislation 217
Figure 5.23: LawCite home page on AustLII 218
Figure 5.24: LawCite results screen 218
Figure 5.25: The FirstPoint case search screen 219
Figure 5.26: The FirstPoint case citator results screen 219

xii
 LIST OF FIGURES xiii

Figure 5.27: The CaseBase case citator results screen 220

Figure 5.28: Browse and advanced search screen for IntelliConnect 221
Figure 5.29: Example entry from Australian Law Dictionary 225
Figure 5.30: The Informit search screen 225
Figure 5.31: The Australian Legal Journals Index search screen 226
Figure 5.32: Australasian Legal Scholarship Library on AustLII 226
Figure 5.33: HeinOnline example 227
Figure 5.34: Subject headings in Halsbury’s online at Lexis Advance® 228
Figure 5.35: Laws of Australia at Westlaw AU 229
Figure 5.36: Checking currency of Laws of Australia information 229
Figure 5.37: ALRC report download options 230
Figure 5.38: Australian Treaties Database treaty example 233
Figure 7.1: Jeremy Bentham 315
Figure 7.2: Karl Marx 325
Figure 7.3: Emile Durkheim 327
Figure 7.4: Relationships between schools of thought within critical legal theory 332
Figure 7.5: Michel Foucault 339
Figure 9.1: Colonial Frontier Massacres in eastern Australia 1788–1872 382
Figure 11.1: Depiction of case and statute development 469
Figure 11.2: An approach to statutory interpretation problems 499
Figure 12.1: Legal Profession Uniform Law Framework 520
Figure 14.1: Sources of fee income: other legal services 609
Figure 14.2: Sources of fee income: barristers 609
Figure 14.3: Some career options after a law degree 611
Figure 14.4: Engaged in first-year law 633
 TABLE OF CASES

The titles of case extracts appear in bold.

A (Children), Re [2001] 2 WLR 480 350
Aboriginal Lands Act 1995, Re, and Marianne Watson, Re (No 2) [2001] TASSC 105 354
Adani Mining Pty Ltd and Another v Adrian Burragubba, Parick Malone and Irene White on
behalf of the Wangan and Jagalingou People [2015] NNTTA 16 404
Adler v George [1964] 2 QB 7 481
Al-Kateb v Godwin (2004) 219 CLR 562 102
Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920)
28 CLR 129 214, 215, 481
Andrews v Henderson [2004] QCA 145 437
Assistant Commissioner Michael James Condon v Pompano Pty Ltd [2013] HCA 7 442
Astley v Austrust Ltd (1999) 197 CLR 1 534
Attorney-General (Cth) v The Queen (1957) 95 CLR 529 136
Attorney-General v Brown (1847) 1 Legge 312 363, 370, 371
Attwells v Jackson Lalic Lawyer Pty Ltd [2016] HCA 16 552
Australian Alliance Assurance Co Ltd v Attorney-General of Queensland [1916] StR Qd 135 480
Australian Broadcasting Corp (ABC) v Obeid (2006) 66 NSWLR 605 437
Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 122
Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd
(2015) 317 ALR 279 486
Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 439 445
Australian Federation of Construction Contractors, Re; Ex Parte Billing (1986) 68 ALR 416 475
Australian Municipal, Administrative, Clerical and Services Union (AMACSU) v Ergon Energy
Corp Ltd (2005) 149 IR 35 437

Barrett v Lets Go Adventures Pty Ltd v [2016] NSWDC 345 198

Bolton, Re; Ex Parte Beane (1987) 162 CLR 514 476
Brisciani v Piscioneri (No 4) [2016] ACTCA 32 436
British American Tobacco Australia Limited v Gordon (No. 2) [2009] VSC 77 537
British American Tobacco Australia Limited v Gordon (No. 3) [2009] VSC 619 537
Broome Helicopter Services Pty Ltd v Anderson [2014] WASCA 12 439
Bropho v Western Australia (1990) 171 CLR 1 488
Brown v Tasmania [2017] HCA 43 226
Bugmy v The Queen [2013] HCA 37 411, 412, 426–431
Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and
Warkworth Mining Ltd [2013] NSWLEC 48 337
Burch v South Australia (1998) 71 SASR 12 472
xiv
 TABLE OF CASES xv

Canavan, Re; Ludlum, Re; Waters, Re; Roberts (No 2), Re; Joyce, Re; Nash, Re;
Xenophon, Re [2017] HCA 45 135
Carr v Western Australia (2007) 239 ALR 415 472
Cattanach v Melchior (2003) 215 CLR 1 220
Chamberlain v The Queen (1983) 72 FLR 1 438
Chandra v Perpetual Trustees Victoria Ltd [2007] NSWSC 694 535
Cheatle v The Queen (1993) 177 CLR 541 185
Coco v The Queen (1994) 179 CLR 427 480
Coe v Commonwealth (1979) 24 ALR 118 379
Coe v Commonwealth (1993) 118 ALR 193 379, 406
Cole v Director-General of Department of Youth and Community Services
(1987) 7 NSWLR 541 484
Collins v Wilcock [1984] 1 WLR 1172 274
Commercial Bank of Australia v Amadio (1983) 151 CLR 447 81, 422, 423, 424, 425
Commissioner of Police v Eaton [2013] HCA 2 440
Commonwealth Minister for Justice v Adamas [2013] HCA 59 106
Commonwealth v Australian Capital Territory [2013] HCA 55 59, 446
Commonwealth v Tasmania (1983) 158 CLR 1 125, 214, 215
Commonwealth v Yarmirr (2001) 208 CLR 1 398
Conservation Council of SA Inc v Chapman (2003) 87 SASR 62 213
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation
(1981) 147 CLR 297 81, 488
Cooper v Stuart (1889) 14 App Cas 286 359
Cooper v Universal Music Australia (2007) 71 IPR 1 421
Council of the Law Society of New South Wales v Paul [2012] NSWADT 280 553
Council of the New South Wales Bar Association v Hart [2009] NSWADT 252 553
Council of the New South Wales Bar Association v Hart [2011] NSWCA 64 553
Cowell (Estate of McCabe decd) v British American Tobacco Australia Services
Ltd [2007] VSCA 301 537
Culleton (No 2), Re [2017] HCA 4 218
Curnuck v Nitschke [2001] NSWCA 176 534

D’Aguilar Gold Ltd v Gympie Eldorado Mining Pty Ltd [2006] QSC 326 471
Damjanovic v Sharpe Hume & Co [2001] NSWCA 407 578
Dean v Wiesengrund [1955] 2 QB 120 492
Delgamuukw v British Columbia [1997] 3 SCR (Canada) 1010 398
Department of Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 438
Dietrich v The Queen (1992) 177 CLR 292 122, 578, 584, 585
Diveva Pty Ltd v Nominal Defendant [2013] NSWCA 325 436
Donoghue v Stevenson [1932] AC 562 8, 45, 76, 171, 420, 445
xvi TABLE OF CASES

D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 551

DPP v Smith [1961] AC 290 376
Drake and Minister for Immigration and Ethnic Affairs, Re (No 2) (1979) 46 FLR 409 166
Duralla Pty Ltd v Plant (1984) 2 FCR 342 220

Earl of Chesterfield v Janssen (1751) 2 Ves Sen 125 422

Earl of Oxford’s Case (1615) 21 ER 485 161
Eisele v Commowealth of Australia [2018] FCA 15 436
Ellis v Newton [2012] NSWCA 22 436

Federal Commissioner of Taxation v Salenger (1988) 81 ALR 25 435

Fejo v Northern Territory (1998) 195 CLR 96 393
Fischer v Howe [2013] NSWSC 462 535
Fisher v Bell [1961] 1 QB 394 483
Fitzwood Pty Ltd v Unique Goal Pty Ltd (in liq) [2002] FCAFC 285 437
Foxtel Management Pty Limited v The Mod Shop Pty Limited [2007] FCA 463 79

Gacic v John Fairfax Publications Pty Ltd (2006) 66 NSWLR 675 220
Garcia v National Australia Bank (1998) 194 CLR 395 161
Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 436
Giannarelli v Wraith (1988) 165 CLR 543 546
Gibbs v Capewell (1995) 128 ALR 577 354
Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd 85
Google Inc v Australian Competition and Consumer Commission [2013] HCA 1 83
Grant v BHP Coal Pty Ltd (No 2) [2015] FCA 1374 493
Green v Brown (2002) 116 IR 21 437
Green v Burgess [1960] VR 158 489
Grey v Pearson (1857) 6 HL Cas 61 481

Haddad v Foxtel Management Pty Ltd [2008] FCAFC 11 79, 80

Hales v Jamilmira [2003] NTCA 9 (15 April 2003) 213
Hanna v Director of Public Prosecutions (DPP) (NSW) (2005) 62 NSWLR 373 437
Hawkins v Clayton (1988) 164 CLR 539 534
Herbert Adams Pty Ltd v Federal Commissioner of Taxation (1932) 47 CLR 222 483
Heydon’s Case (1584) 76 ER 637 482
Higgon v O’Dea [1962] WAR 140 481
Hudspeth v Scholastic Cleaning and Consultancy Services Pty Ltd [2014] VSCA 3 439

Institute of Patent Agents v Lockwood [1894] AC 347 480

 TABLE OF CASES xvii

Jango v Northern Territory of Australia [2006] FCA 318 395

Jeffrey Wayne Davie v The Queen [2008] NSWCCA 2 220
John v Federal Commissioner of Taxation (1989) 166 CLR 417 438

K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501 442
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 115
Kakavas v Crown Melbourne Limited [2013] HCA 25 422–426
Kartinyeri v Commonwealth (1998) 195 CLR 337 387
Kendirjian v Lepore [2017] HCA 13 552
Kingsley’s Chicken Pty Ltd v Queensland Investment Corporation & Canberra Centre
Investments Pty Ltd [2006] ACTCA 9 471
Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 472, 494
Koompahtoo Local Aboriginal Land Council v Sanpine Pty Limited [2007] HCA 61 94, 95, 110

La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201 438
Laemthong International Lines Co Ltd v BPS Shipping (1997) 190 CLR 181 493
Lake Macquarie Shire Council v Aberdare County Council (1970) 123 CLR 327 483
Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Limited [2010] FCA 29 237
Legal Services Commissioner v Bradshaw [2009] QCA 126 436
Li v Chief of Army [2013] HCA 49 431–434
Lipohar v The Queen (1999) 200 CLR 485 140
Louth v Diprose [1992] HCA 61 422, 425, 426

Mabo v Queensland (No. 1) (1988) 166 CLR 186 392

Mabo v Queensland (No. 2) (1992) 175 CLR 1 ix, 27, 81, 214, 353, 358, 360, 361, 370, 371, 377,
379, 391, 392, 393, 395, 401, 405, 406, 414, 435,
446, 448, 489
McAlister v State of New South Wales (No 2) [2017] FCA 93 150
McCabe v British American Tobacco Australia Services Ltd [2002] VSC 73 537
McCabe v British American Tobacco Australia Services Ltd [2002] VSC 112 537
McCabe v British American Tobacco Australia Services Ltd [2002] VSC 150 537
McCabe v British American Tobacco Australia Services Ltd [2002] VSC 172 537
McCabe v British American Tobacco Australia Services Ltd [2002] VSC 216 537
McKenzie v McKenzie [1970] 3 WLR 472 584
McLean v Kowald (1974) 9 SASR 384 492
Mandalidis v Artline (1999) 47 N SWLR 568 494
Mandurah Enterprises Pty Ltd v Western Australian Planning Commission
(2010) 240 CLR 409 235
Marwey v The Queen (1977) 138 CLR 630 450, 453
Mason v Tritton (1994) 34 NSWLR 572 213
xviii TABLE OF CASES

Members of the Yorta Yorta Aboriginal Community v Victoria (2002)

214 CLR 422 379, 393, 397, 398
Metropolitan Gas Co v Federated Gas Employees Industrial Union (1924) 35 CLR 449 473
Michael v The Queen [2014] NSWCCA 2 440
Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115 542
Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 317, 358, 371, 379, 389, 391
Mills v Meeking (1990) 169 CLR 214 484
Minister for Arts, Heritage and Environment v Peko-Wallsend Pty Ltd (1987) 15 FCR 274 213
Minister for Immigration and Citizenship v SZJXO [2009] 238 CLR 642 92, 110
Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 128 ALR 353 233
Minster for Resources v Dover Fisheries (1993) 43 FCR 565 480
Momcilovic v The Queen [2011] HCA 34 474
Moore v Hubbard [1935] VLR 95 468
Moromilov v Vojinovic [2013] ACTCA 6 440
Morris v The Queen [2006] WASCA 142 450, 454
Munungurr v The Queen (1994) 4 NTLR 63 411

NAAT v Minister for Immigration, Multicultural and Indigenous Affairs (2002) 170 FLR 177 438
Neal v The Queen (1982) 149 CLR 305 350, 431
Neat Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277 437
New South Wales Bar Association v Hart [2006] NSWADT 97 553
New South Wales Bar Association v Punch [2008] NSWADT 78 553
New South Wales v Commonwealth (1975) 135 CLR 388 359
Newcastle City Council v GIO General Limited (1997) 191 CLR 85 484

Onus v Alcoa (1981) 149 CLR 27 212

O’Rourke v Hoeven [1974] 1 NSWLR 622 162

Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249 483
Parker v The Queen (1963) 111 CLR 610 377
Pearce v The Queen [1998] HCA 57 501
Petreski v Cargill (1987) 18 FCR 68 220
Plaintiff M76-2013 v Minister for Immigration, Multicultural Affairs and
Citizenship [2013] HCA 53 102
Plaintiff S297/2013 v Minister for Immigration and Border Protection (2015) 255 CLR 231 166
Polyukhovich v The Commonwealth (1991) 172 CLR 501 217–219, 220
Post Office v Estuary Radio Ltd (1968) 2 QB 740 359
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 478, 479, 496
Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92 569
 TABLE OF CASES xix

Queensland v Wyvill (1989) 90 ALR 611 354

R v Allen (1872) LR 1 CCR 367 482

R v Ann Harris (1836) 173 ER 198 491
R v Anunga (1976) 11 ALR 412 572
R v Bonjon (Port Phillip Patriot, 16 September 1841) 353, 360, 363
R v Brown (1986) 43 SASR 33 450, 453
R v Craigie [2014] QCA 1 440
R v Dudley and Stephens [1884] 14 QBD 273 346–350
R v Fernando (1992) 76 A Crim R 58 412, 428–430
R v Fuller-Cust [2002] VSCA 168 213
R v Hanson [2003] QCA 488 237
R v Hudson [1971] 2 QB 202 450, 454
R v Jervis [1993] 1 Qd R 643 220
R v Minor (1992) 79 NTR 1 411
R v Murrell (Sydney Gazette, 6 February 1836) 353, 356–360, 364, 372, 406
R v Rogers (1996) 86 A Crim R 542 450, 454
R v Smith [2005] 2 Qd R 69 453
R v Smith [2014] SASCFC 6 439
R v Steel (1834) 1 Legge 65 363
R v Wilson Jagamara Walker (1993) SCC No. 46 380
Raptis v City of Melbourne [2017] VSC 488 436
Ravech v Amerena [2000] VSC 483 536
Retirements Benefits Fund Board v Elmore [2014] TASFC 1 440
Rizeq v Western Australia [2017] HCA 23 226
Rixon v Star City Casino (2001) 53 NSWLR 98 274
Roberts v Cashman [2000] NSWSC 770 534

Scott v Shepherd (1773) 3 Wils KB 403 274

Shalom v Health Services Commissioner [2009] VSC 514 493
Shaw v Wolf (1999) 163 ALR 205 354
Shop Distributive and Allied Employees Association v Aldi Foods Pty Ltd [2016] FCAFC 161 237
Smith v Hughes [1960] 2 All ER 859 482
Sons of Gwalia Limited (Subject to Deed of Company Arrangement) v Margaretic [2006]
FCAFC 92 200
Sons of Gwalia Ltd v Margaretic (2007) 231 CLR 160 199
Southern Rhodesia, Re [1919] AC 211 359
Spiers Earthworks Pty Ltd v Landtec Projects Corp Pty Ltd [2010] WASCA 43 436
Stack v Western Australia [2004] WASCA 300 213
xx TABLE OF CASES

State Chamber of Commerce and Industry v Commonwealth (1987) 163 CLR 329 482
State of Victoria v Construction, Forestry, Mining and Energy Union [2013] FCAFC 160 440
Stewart v Lizars [1965] VR 210 491
Stuardo bht Pinochet v Borsellino [2012] NSWDC 9 198, 248

Taiapa v The Queen (2009) 240 CLR 95 450

The Attorney-General of the NT v EE [2014] NTCA 1 440
Thomas v Mowbray (2007) 233 CLR 307 449
Thorne v Kennedy [2017] HCA 49 100
Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd 95
Trevor Roller Shutter Service Pty Ltd v Crowe (2011) 31 VR 249 436
Tufton v Sperni [1952] 2 TLR 516 101

Ucar v Nylex Industrial Products Pty Ltd (2007) 17 VR 492 436

Valentine v Eid (1992) 27 NSWLR 615 437

Villella v Telstra Corp Ltd [2014] VSCA 263 436
Viro v The Queen (1978) 141 CLR 88 377

Wakim, Re; Ex parte McNalley (1999) 198 CLR 511 141, 439
Walden v Hensler (1987) 163 CLR 561 379, 410
Walker v New South Wales (1994) 182 CLR 45 353, 360, 379, 406
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 109, 174
Western Australia v Ward (2002) 191 ALR 1 379, 398
White v Designated Manager of IP Australia (No. 2) [2008] FCA 816 199
Wik Peoples v Queensland (1996) 187 CLR 1 353, 379, 396, 439, 448
Wilkie v The Commonwealth; Australian Marriage Equality Ltd.
V Cormann [2017] HCA 40 124
Williams v Attorney-General for New South Wales (1913) 16 CLR 404 370, 371
Wurridjal v Commonwealth (2009) 237 CLR 309 489

X7 v Australian Crime Commission [2013] HCA 29 440

Yates Property Corporation (in liq) v Boland (1998) 157 ALR 30 523
Younger v The Queen [2017] VSCA 199 219
TABLE OF STATUTES

COMMONWEALTH Agricultural and Veterinary Chemicals Code

Act 1994 478
A New Tax System (Goods and Services Tax) Appropriation Act (No 1) 2017–2018
Act 1999 63 S10(1)(b) 124
Aboriginal Land Rights (Northern Territory) Australia Acts 1986 120, 376
Act 1976 390, 399, 401 Australian Capital Territory (Self-Government)
s 4 400 Act 1988 163
s 19 399 s 28 60
s 67B 399 Australian Citizenship (Transitionals and
Aboriginal and Torres Strait Islander Heritage Consequentials) Act 2007 75, 76
Protection Act 1984 400, 401 Australian Constitution
Aboriginals Ordinance 1918 383 s 41 121
Acts Interpretation Act 1901 62, 471, 475 s 51 125, 127, 163–164
s 3A(2) 477 s 51(ii) 122
s 5 62 s 51(iii) 122
s 7 76 s 51(x) 128
s 13 69 s 51(xxi) 60
s 13(1) 474 s 51(xxvi) 164, 386, 388
s 13(2)(d) 474 s 51(xxxi) 121, 488, 489
s 15AA 471, 472, 484 s 52 125
s 15AB(1) 474. 475 s 57 126
s 15AB(1)(a) 475 s 62 121
s 15AB(1)(b) 475 s 64 121
s 15AB(2) 474 s 71 135
s 15AB(3)(b) 476 s 72 555
s 22(1)(c) 274 s 80 121, 184, 185
s 23(a) 477 s 81 125
s 23(b) 477 s 90 125
s 33(2A) 478 s 92 125
s 35 477 s 109 122
s 36 477 s 114 125
s 37 477 s 116 121
Administrative Appeals Tribunal Act s 117 121
1975 76, 145 s 122 122, 388, 489
Administrative Decisions (Judicial Review) Act s 127 386
1977 165 s 128 123
Admiralty Act 1988 Australian Law Reform Commission Act
s 19 493 1996 97
Affirmative Action (Equal Employment Australian Security Intelligence Organisation
Opportunity for Women) Act 1986 571 Act 1979 165
Age Discrimination Act 2004 76 Biological Control Act 1984 62
Aged Care Act 1997 Border Protection (Validation and Enforcement
s 2.1 473 Powers) Act 2001
Aged or Disabled Persons Care Act 1954 473
xxi
xxii TABLE OF STATUTES

s 4 486 s 33(b) 433, 434

s 5 487 s 60(1) 431
s 6 487 Defence Force Discipline Appeals Act
Broadcasting Services Act 1992 79, 479 1955 432
s 3 479 Designs Act 2003 73
s 10(1) 79 s 149(1) 73
s 11 79 Designs Regulations 2004 73
s 16 79 Environment Protection and Biodiversity
s 19 79 Conservation Act 1999 402
s 160 479 Evidence Act 1995
Census and Statistics Act 1905 123, 124 s 59 (1) 46
Civil Aviation Act 1988 275 s 118 537
s 3 275 s 119 537
s 20A 275 Extradition Act 1988
Civil Aviation Safety Regulations 1988 s 3 106
reg 101.025 276 s 11 106
reg 101.245 276 Extradition (Republic of Indonesia)
Civil Dispute Resolution Act 2011 151 Regulations 1994
Child Support (Assessment) Act 1989 ss 3–5 106
s 107 278 Fair Work Act 2009 139
s 143 278 Families, Community Services and Indigenous
Classification (Publications, Films and Affairs and Other Legislation Amendment
Computer Games) Act 1995 127 (Northern Territory National Emergency
Constitution Alteration (Retirement of Judges) Response and Other Measures) Act 2007 489
Act 1977 555 Family Law Act 1975 136
Copyright Act 1968 79 Pt I 104
Corporations Act 2001 46, 177, 178 Pt XIIIAA 104
Crimes Act 1914 168 s 111B(1) 104
s 4AA 277, 477 Family Law (Child Abduction Convention)
s 16AA 411 Regulations 1986 104
Crimes Legislation Amendment (Torture Federal Court of Australia Act 1976 134,
Prohibition and Death Penalty Abolition) Act 136, 557
2010 168 s 53A 149, 179
Criminal Code Act 1995 168 Federal Court Rules 2011 151
Ch 2 433 Federal Magistrates Act 1999 136
Div 104 449 Freedom of Information Act 1982 164
s 10.2(2) 454 Genocide Convention Act 1949
sched 6.1 276 s 3 103
sched 9.2 276 International Arbitration Act 1974 109
Damage by Aircraft Act 1999 s 16 109
s 4 274 Judiciary Act 1903
s 9 274 s 23 439
s10 275 s 69(3) 584
s11A 275 Jurisdiction of Courts (Cross-vesting) Act
Defence Act 1903–1912 266 1987 139
Defence Act 1914 Jury Exemption Act 1965 184
s 135A 266 Legal Profession National Law 520, 531,
Defence Force Discipline Act 1982 541, 617
s 33 432 Legislative Instruments Act 2003
 TABLE OF STATUTES xxiii

s 12 72 Racial Discrimination Act 1975 392, 393,

s 42 74 395, 396
s 73(2) 75 s 8 385
Low Aromatic Fuel Act 2013 s 18C 570
s 8 267 Referendum and Subsequent Constitution
Marriage Act 1961 60, 61, 236 Alteration (Aboriginals) Act 1967 387
s 16 236 Sex Discrimination Act 1984 571, 576
Medical Research Future Fund Act s 23(3)(c) 569
2015 64, 67 Statute of Westminster Adoption Act
s 1 65–67 1942 120
s 2 65, 66 Stronger Futures in the Northern Territory Act
s 3 63, 66, 68 2012 385, 386
s 4 66 Stronger Futures in the Northern Territory
s 5 67, 68 (Consequential and Traditional Provisions)
s 21(2) 74 Act 2012
s 63 67, 74 Sch 4 411
Migration Act 1958 102 Telecommunications Act 1997 204
Migration Act 1988 420 Therapeutic Goods Act 1989
Native Title Act 1993 75, 395, 398, 401, s 3 498
402, 405 Trade Practices Act 1974 82–4
s 39 404 Pt V 90
Native Title Amendment Act 1998 396, 397 Pt V(5) 83
Native Title Amendment Act (Indigenous Land Pt VC 90
Use Agreements) 2017 75 Pt VI 83
Navigation Act 2012 69, 70 s 51AA 422
ss 1–3 70–1 s 52 83–85, 87–90
s 14 70–1 s 52(1) 84
s 23 70, 72 s 85(3) 84, 85, 88–91
ss 108–10 70, 72 s 85(6) 84
Norfolk Island Act 1979 163 Uniform Evidence Act 1995 178
Northern Territory (Self Government) Act War Crimes Act 1945 216, 217
1978 163 Witness Protection Act 1994 509
Northern Territory National Emergency Workplace Gender Equality Act 2012 571
Response Act 2007 384–386, 396, 489, 571
s 90 411 AUSTRALIAN CAPITAL
s 91 411 TERRITORY
Offshore Minerals Act 1994 63
Olympic Insignia Protection Act 1987 511 Civil Law (Wrongs) Act 2003 173
Schedule 513 Classification (Publications, Films and
Ch 2 511 Computer Games) (Enforcement) Act
Ch 3 511–513 1995 127
ss 6–8 511 Criminal Code 2002 168
s 22 511 Freedom of Information Act 1989 164
s 23 511–512 Human Rights Act 2004 125
s 24 512 Juries Act 1967 184
s 28 512 Legal Profession Act 2006 520, 562
s 30 512–513 Legislation Act 2001 471
s 36 513 s 12 75
Ombudsman Act 1976 165 s 65 74
s 73 62
xxiv TABLE OF STATUTES

s 73(2) 72 s 56 181
s 84 76 s 59 181
s 86 76 Classification (Publications, Films and
s 127(1) 69 Computer Games) Enforcement Act 1995 127
s 133 478 Classification (Publications, Films and
s 137 485 Computer Games) Enforcement Amendment
s 137(3) 488 (Uniform Classification) Act 2004 127
s 139(1) 471 Coal Mine Subsidence Compensation Act
s 140 473 2017 128
s 141(2) 476 s 3 129
s 141(2)(b) 476 s 4 129
s 142 474 s 15(6) 130
s 145(a) 477 s 21(1) 130
s 145(b) 477 s 21(2) 130
s 146(1) 478 s 27(2) 130
s 146(2) 478 s 50(2) 130
s 150 477 s 51 129
s 151 477 s 57 130
s 151A 477 Community Protection Act 1994 115
s 156 473 Constitution Act 1855 118
Limitation Act 1985 170 Constitution Act 1902 118
Magistrates Court Act 1930 140 Crimes Act 1900 168
Marriage Equality (Same Sex) Act 2013 60 s 33(1)(b) 426
s 3 60 s 60A(1) 426
Ombudsman Act 1989 165 s 316(1) 539
Self-Government (Citation of Laws) Act s 316(4) 539
1989 119 Crimes (Appeal and Review) Act 2001 501
Standard Time and Summer Time Act 1972 Crimes (Appeal and Review) Amendment
s 7 477 (Double Jeopardy) Act 2006 501
Supreme Court Act 1933 137 ss 98–100 502
Victims of Crime (Financial Assistance) Act s 102 502
1983 167 ss 104–105 502
Crimes (Criminal Organisations Control) Act
NEW SOUTH WALES 2012 503–504
ss 2–3 504
Aboriginal Land Rights Act 1983 94, 400
ss 4–5 505
s 36(5) 400
s 7 505–506
s 36(9) 399
s 19 506
s 36A 401
s 26(1) 503
s 40 399
ss 26–27 506–508
Aborigines Protection Act 1909 382
Crimes (High Risk Offenders) Act 2006 64
Anti-Discrimination Act 1977 569
Crimes (High Risk Offenders) Amendment Act
Civil Liability Act 2002 173, 195–198, 246
2017 64
s 55 191
Crimes (Sentencing Procedure) Act 1999
s 57 196 246
s 17 478
s 58 195–198, 246
Criminal Appeal Act 1912 430
s 58(2)(a) 247
Deer Act 2006
s 58A 496
s 36 487
S 58C 497
District Court Act 1973 138
Civil Procedure Act 2005
Food Act 2003 496
s 26(1) 179
 TABLE OF STATUTES xxv

s 5 497 Sydney Public Reserves (Public Liability) Act

s 8 497 2017 327
Government Information (Public Access) Act Terrorism (High Risk Offenders) Act 2017 64
2009 164 Uniform Civil Procedure Rules 2005 149,
Imperial Acts Application Act 1969 363 151 181
Interpretation Act 1984 Victims’ Rights and Support Act 2013 167
s 39 75
Interpretation Act 1987 471 NORTHERN TERRITORY
s 4 487
Aboriginals Ordinance 1911 383
s 6 473
Building Act 1993
s 8(a) 477
s 5 487
s 8(b) 477
Classification of Publications, Films and
s 8(c) 477
Computer Games Act 127
s 9(1) 478
Criminal Code Act 168
s 9(2) 478
Fisheries Act 1988
s 23 62
s 53 411
s 28 76
Information Act 2003 164
s 30 76
Interpretation Act 1978 471
s 33 472, 494
s 3(2) 487
s 34 475
s 6 62
s 34(1) 475
s 11 76
s 34(2) 474
s 12 76
s 35(1) 474
s 17 473
s 35(2) 474
s 24(1) 477
s 35(2)(c) 69
s 24(2) 477
s 36 477
s 27 477
s 38 477
s 28(2) 477
s 41 74
s 55(1) 474
Judicial Officers Act 1986 250
s 55(5) 474
Jury Act 1977 184, 250
s 55(6) 69, 474
Sch 2 251
s 62A 472
Law Enforcement (Powers and
s 62B(1) 475
Responsibilities) Act 2002 182
s 62B(2) 474
s 99(3) 182
s 63 75
Law Reform Commission Act 1967 98
s 63(9) 74
Law Reform (Miscellaneous Provisions)
Juries Act 184
Act 1946
Legal Profession Act 2008 520, 562
s 6 483
Limitation Act 1981 170
Legal Profession Act 2004 553
Local Court Act 140
s 331 551
Magistrates Act 140
s 332A 551
Northern Territory Aboriginal Sacred Sites Act
Legal Profession Regulation 2005
1989 400
reg 176 532
Northern Territory (Self-Government) Act
Legal Profession Uniform Law Application Act
1978 119
2014 520
Ombudsman Act 2009 165
Legal Profession Uniform Law 2015 562
Penalty Units Act 2009
Limitation Act 1969 170
ss 4–6 478
Local Court Act 2007 140
Personal Injuries (Liabilities and Damages)
National Parks and Wildlife Act 1974 400
Act 173
Ombudsman Act 1974 165
Radiation Protection Act 204–205
Supreme Court Act 1970 137, 367
xxvi TABLE OF STATUTES

Standard Time Act 2005 Community Services (Aborigines) Act 1984

s 4 477 Constitution Act 1867 118
s 5 477 Constitution Act Amendment Act 1922 118
Supreme Court Act 137 Constitution of Queensland Act 2001 118
Victims of Crime Assistance Act 2006 167 Criminal Code Act 1899 168, 453
Work Health Act 1986 s 31(1)(d) 450, 451
s 78 514 s 31(1)(d)(ii) 453, 455
Criminal Organisation Act 2009 442
QUEENSLAND District Court of Queensland Act 1967 139
Fauna and Conservation Act 1974–79 410
Aboriginal Land Act 1991 400
Judicature Act 1876 367
Aboriginal Protection Act and Restriction of
Jury Act 1995 184
the Sale of Opium Act 1897 383
Law Reform Commission Act 1968 98
Aboriginal and Torres Strait Islander Affairs
Legal Profession Act 2007 520, 562
Act 1965 383
Limitation of Actions Act 1974 170
Acts Interpretation Act 1954 471
Magistrates Courts Act 1921 140
s 19 76
Nature Conservation Act 1992 400
s 20 76
Ombudsman Act 2001 165
s 35C 69
Parliament of Queensland Act 2011 118
Acts Interpretation Act 1965 471
Penalties and Sentences Act 1992
s 5 487
s 5 478
s 13 487
s 9(2)(o) 413
s 14(1) 474
Queensland Coast Islands Declaratory Act
s 14(2) 474
1985 392
s 14(7) 474
Queensland Heritage Act 1992 400
s 14A 471, 485
Right to Information Act 2009 164
s 14A(1) 471
Statutory Instruments Act 1992
s 14B(1) 475
s 32 75
s 14B(2) 476
s 50 74
s 14B(3) 474
Supreme Court Act 1995 137
s 15A 62
Supreme Court of Queensland Act 1991
s 32 75
s 101 179
s 32A 473
s 102 179
s 32AA 473
s 126 179
s 32B 477
Torres Strait Islander Land Act 1991 400
s 32C 477
Uniform Civil Procedure Rules 1999 149
s 32CA(1) 478
Victims of Crime Assistance Act 2009 167
s 32CA(2) 478
s 35C 69
s 37 477
SOUTH AUSTRALIA
s 38 477 Aboriginal Heritage Act 1988 400
Civil Liability Act 2003 173 Aborigines Act 1911 383
Classification of Computer Games and Images Acts Interpretation Act 1915 471, 475
Act 1995 127 s 7 62
Classification of Films Act 1991 127 s 10A 75
Classification of Publications Act 1991 127 s 14A(2)(d) 75
Coal Mining Safety and Health Act 1999 494 s 16 75, 76
s 39(1) 494 s 17 76
Coal Mining Safety and Health Regulation s 19(1) 474
2001 494 s 19(2) 474

s 19(2)(b) 69
s 20 488
s 22(1) 472
s 26(a) 477
s 26(ab) 477
s 26(b) 477
s 26(c) 477
s 27 477
s 28 477
s 34 478
Civil Liability Act 1936 173
Classification (Publications, Films and
Computer Games) Act 1995 127
Constitution Act 1855 118
Constitution Act 1934 118
Courts Administration Act 1993 114
Criminal Law Consolidation Act 1935 168
District Court Act 1991 138
Freedom of Information Act 1991 164
Goods Act 1895 281
Hairdressers Act 1988 210
Juries Act 1927 184
Legal Practitioners Act 1981 520, 562
Limitation of Actions Act 1936 170
Liquor Licensing Act 1997 442
s 28A 442
Magistrates Court Act 1991 140
Maralinga Tjarutja Land Rights Act
1984 400, 405
Offenders Probation Act 1913 492
Ombudsman Act 1972 165
Pitjantjatjara Land Rights Act 1981 400
Real Property Act 1857 375
Road Traffic Act 1961 492
Supreme Court Act 1935 137
Victims of Crime Act 2001 167
TASMANIA
Aboriginal Lands Act 1995 400
Aboriginal Relics Act 1975 400
Acts Interpretation Act 1931 75, 471
s 5 75
s 6(2) 474
s 6(3) 474
s 6(4) 69, 474
s 6(6) 487
s 8A 472
s 8B(1) 475
s 8B(2) 476
TABLE OF STATUTES xxvii
s 8B(3) 474
s 9 60, 75
s 10A(1)(a) 478
s 10A(1)(b) 478
s 10A(1)(c) 478
s 14 76
s 16 76
s 24A 477
s 24(d) 477
s 28 477
s 29 477
Civil Liability Act 2002 173
Classification (Publications, Films and
Computer Games) Enforcement Act 1995 127
Constitution Act 1855 118
Constitution Act 1934 118
Criminal Code Act 1924 168
Juries Act 2003 184
Legal Profession Act 2007 520, 562
Limitation Act 1974 170
Magistrates Court Act 1987 139
Ombudsman Act 1978 165
Penalty Units and Other Penalties Act 1987
s 4 478
Right to Information Act 2009 164
Supreme Court Act 1856 137
Supreme Court Act 1887 137
Supreme Court Act 1959 137
Victims of Crime Assistance Act 1976 167
VICTORIA
Aboriginal Heritage Act 2006 400
Aboriginal Lands Act 1970 399
Adoption Act 1984 206
Charter of Human Rights and Responsibilities
Act 2006 125, 474
s 32 490
Classification (Publications, Films and
Computer Games) (Enforcement) Act
1995 127
Constitution Act 1855 118
Constitution Act 1975 118
s 1A 386
Court Services Victoria Act 2014 114
Crimes Act 1958 168, 206, 585
s 397 585
Criminal Procedure Act 2009
s 197 585–586
s 197(2) 586
xxviii TABLE OF STATUTES

s 197(3) 586 Victoria Law Reform Commission Act

Evidence Act 1958 206 2000 98
Fisheries Act 1928 489 Wrongs Act 1958 173
Food Act 1984
s 6 487 WESTERN AUSTRALIA
Freedom of Information Act 1982 164
Aboriginal Heritage Act 1972 400, 488
Infertility Treatment Act 1995 206
Aborigines Protection Act 1886 383
Interpretation of Legislation Act 1984 471
Civil Liability Act 2002 173
s 5 487
Classification (Publications, Films and
s 11 62
Computer Games) Enforcement Act 1996 127
s 14 76
Constitution Act 1889 118
s 15 76
Constitution Act 1890 118
s 35 484
Constitution Acts Amendment Act 1899 118
s 35(a) 472
Criminal Code Compilation Act 1913 168
s 35(b) 474
Criminal Injuries Compensation Act 2003 167
s 36(1) 474
Family Court Act 1997 136
s 36(2) 474
Freedom of Information Act 1992 164
s 36(3) 69, 474
Interpretation Act 1984 471
s 37(a) 477
s 4 487
s 37(c) 477
s 10(a) 477
s 37(d) 477
s 10(c) 477
s 43 477
s 18 472
s 44 477
s 19(1) 475
s 45(1) 478
s 19(2) 474
s 45(2) 478
s 19(3) 476
Juries Act 2000 184
s 20 62
Justice Legislation Amendment Act
s 31(2) 474
2012 63, 75
s 32(1) 474
Legal Profession Uniform Law Application Act
s 32(2) 69, 474
2014 520, 562
s 34 76
Limitation of Actions Act 1958 170
s 37 76
Magistrates’ Court Act 1989 140
s 41 75
Magistrates’ Court (KooriCourt) Act 2002 413
s 42(2) 74
Marriage Act 1958 206
s 56(1) 478
Monetary Units Act 2004
s 56(2) 478
ss 5–7 478
s 61 477
Motor Car Traders Act 1986 63
s 65 477
Ombudsman Act 1973 165
Juries Act 1957 184
Police Offences Act 1928
Land Administration Act 1997
s 5(10) 468
s 161 235
Property Law Act 1958 206
Law Reform Commission Act 1972 98
Subordinate Legislation Act 1994
Legal Profession Act 2008 520, 562
s 16 75
Limitation Act 2005 170
s 23(2) 74
Magistrates Court Act 2004 140
Summer Time Act 1972
Parliamentary Commissioner Act 1971 165
s 4 477
Police Act 1892
Supreme Court Act 1986 137
s 84 481
Supreme Court (General Civil Procedure)
Safe Cladding Act 2018 143
Rules 2005 149
s 8 143
Victims of Crime Assistance Act 1996 167
s 12 143
 TABLE OF STATUTES xxix

Safe Cladding Regulations 2018 143 GERMANY

Supreme Court Act 1935 137
Town Planning and Development Act 1928 Criminal Code 1871 343, 344
s 13 235
INTERNATIONAL
UNITED KINGDOM Agreement on Sanitary and Phytosanitary
Australian Constitutions Act (No. 1) 1842 374 Measures (SPS Agreement) 103
Australian Constitutions Act (No. 2) 1850 374 American Convention on Human Rights
Australian Courts Act 1828 160, 363, 373 (1969) 475
s 24 363, 364, 370, 372 Declaration on the Rights of Indigenous
Australian States Constitutions Act 1907 376 People (2007)
Colonial Laws Validity Act 1865 375, 376 Art 34 397
Commonwealth of Australia Constitution Act Arts 25–28 397
1900 376 European Convention for the Protection of
cl 9 119 Human Rights and Fundamental Freedoms
English Judicature Act 1873 162 (1950) 475
English Judicature Act 1875 162 Extradition Treaty between Australia and the
Increase of Rent and Mortgage Interest Republic of Indonesia (1995)
(Restrictions) Act 1920 492 Art 1 105
New South Wales Act 1823 369, 373 Art 2 105
New South Wales Courts Act 1787 364 Art 9 105
Offences Against the Person Act 1861 Art 9(2)(b) 106
s 57 482 Hague Convention on the Civil Aspects of
Offical Secrets Act 1920 International Child Abduction 104
s 3 481 International Bill of Rights 124
Restriction of Offensive Weapons Act International Convention on the Elimination of
1959 483 Racial Discrimination (CERD)
Statute of Westminster 1931 120 Art 5 396
s 4 376 International Covenant on Civil and Political
Street Offences Act 1959 482 Rights (1966) 124, 396, 475
Western Australia Act 1829 373 International Covenant on Civil and Political
Rights (ICCPR) 1966
CANADA Art 9(1) 101
Art 27 396
Canadian Charter of Rights and International Covenant on Economic, Social
Freedoms 475 and Cultural Rights 124
Art 1 396
HONG KONG Pornography Victims Compensation Act
Bill of Rights Ordinance 475 (USA) 345
Statute of the International Court of Justice
NEW ZEALAND Art 38(1) 103
Art 59 103
New Zealand Bill of Rights Act 1990 475 UNCITRAL Model Law on International
Commercial Arbitration 109
EAST GERMANY Universal Declaration on Human
Border Law Rights 124, 396
Art 27 344 Art 17 396
 PREFACE

A fundamental and primary aim of this book is to provide a logical, easily understandable
introduction to our law and legal system in Australia. Recognising that university students come
from diverse backgrounds, this book does not assume that students studying law at an Australian
university have a background in legal studies, or indeed any knowledge of Australia’s history and
system of law and government. We also recognise that students come with different perspectives
and perceptions of law, and challenge these as a pathway towards complex, multi-dimensional
thinking skills that can make the difference between an average and an exceptional lawyer.
Our focus of this book is practical—for example, we provide background on key events
and developments in English legal and constitutional history only where those events and
developments are instrumental in creating the system we have today in Australia; and we discuss
theoretical underpinnings of law and judicial reasoning without taking the new law student into
jurisprudential terrain that can only be understood with time and experience in law. We focus
upon what students studying law need to know and be able to do.
The book is structured according to the typical questions that a new law student may ask—
What is law? Where did it come from? How is it made? How can I find it? How do I use it?
What do lawyers do? How can I develop a legal mind? And when I am finished, what can
I do with my law degree? It also creates an opportunity for students with particular interests—
such as human rights law, Indigenous legal rights or commercial law—to begin to consider
specialised content knowledge, and to hear from practitioners with diverse career paths on how
they have used their legal studies.
The authors of this book have significant first-hand experience in teaching and mentoring
first-year law students and have written this book to maximise ease, engagement, and learning
outcomes. They can accommodate ‘blended learning’ and ‘flipped classroom’ approaches.
Chapter design includes a recommended approach to learning the topic, key terms, tip boxes,
discussion questions, and places to find further information. The chapters are backed up with
an online resource called ‘Oxford Ascend’ with teaching and learning resources, plus plenty
of opportunities for students to practise applying what they have learned. There is also an
Instructor’s Resource Manual for academics with additional ideas for class discussions and
activities.
Michelle Sanson and Thalia Anthony,
August 2018

xxx
GUIDED TOUR
LEARNING LAW: HOW CAN I
1
DEVELOP A LEGAL MIND?

What we will cover in this What we will cover in this chapter:

• How learning law is different from other disciplines
chapter: • Inductive, deductive and analogical reasoning

Opens each chapter, and

• Threshold Learning Outcomes (TLOs) in law and graduate attributes
CHAPTER 1 LEARNING LAW: HOW CAN I DEVELOP A LEGAL MIND? 7
• How to succeed in law school

provides an overview of the • Being an ethical student

subtopics covered RECOMMENDED APPROACH TO LEARNING THIS TOPIC

Recommended approach to
This chapter helps you understand what it means to have a legal mind, to ‘think like a lawyer’. This is
unlimited
something you will develop acrosspotential
the course conclusions. In practice,
of your studies and beyond, andweyouoften usethatboth
will see this forms of reasoning, and move
learning this topic:
‘forensic’ skill can bebetween the various
applied across two infieldstheofprocess ofYou
endeavour. reasoning onwhat
will also see an you
areacanofexpect
law. The legal profession treats the
to achieve from your law studies—in terms of the areas of knowledge you will have, and the skills and
‘law’ as deductive, but in reality Australia’s system of precedent
attributes you will develop. This book, and the subject it is being used with, will begin the development
A guide for students on how
is based on inductive reasoning
of that knowledge and (Figure 1.1;those
skills, and see also Chapter
attributes. 10).
We recommend you read through the material
under headings 1, 2 and 3, and then spend quite a bit of time reflecting on each of the outcomes and
to approach the topics in the
attributes you will find under heading 3. To what extent do you already possess them, based on your
experience in life, studies and the workplace so far? The more you can link what you are learning to chapter
what you already know, the better it will be anchored in your mind. Then it’s time to look at the material
FIGURE 1.1 INDUCTIVE AND DEDUCTIVE REASONING
under heading 4: ‘Success in law school’. You can start to try out techniques for being productive in
your studies straight away. Experiment with different options and then use what suits you best—there
Key Terms: is no one ‘right’ way. In your first year of law school you will have the opportunity to develop your legal
writing and problem-solving skills, and you may have your first exams as well. We recommend that,

A glossary of legal terms once you have completed your first term or semester, you come back to this chapter and also look
KEY TERMS
at Chapter 14 and give some further thought to what you could be doing outside the classroom to

used in the chapter

increase your development of these attributes.
Critical analysis = using powers of observation, reasoning, reflection and questioning to interpret
information and make findings or form opinions based on it.
Deductive reasoning = using a general theory to test specific facts. For example, ‘All dogs bark. Rufus
is a dog. Therefore, Rufus barks.’
Diversity = the coexistence of differences in gender,
Inductive reasoning age, culture,
Deductive capacity and perspectives.
reasoning

Ethics = a field of thinking about what is morally right, appropriate

1 and acceptable.

Exercises: Graduate attributes = generic skills, attitudes and values, plus specific content knowledge, expected
of students who have completed a tertiary course of study.
Throughout the text, exercises
01_SAN_CWL4E_10844_TXT_4pp.indd 1 EXERCISE: INDUCTIVE
Independent AND DEDUCTIVE
learning = taking REASONING
the primary responsibility
8/16/18 4:13 PM
and initiative for one’s learning, including Go to Oxford
give students a chance to apply Identify whether
being the
able to followinggaps
recognise statements
in their use inductive
learning or deductive
and where to find reasoning.
the information to fill them.Ascend for
answers
1 Taking a person’s
Inductive reasoning life =isusing
always wrong.
specific Capital punishment
examples involves taking
to create generalisations. a example,
For person’s ‘Apples rot. to this
what they have learnt, check their life. Therefore,
Pears rot. Bananascapitalrot.
punishment
Therefore,isall always wrong.
fruit rots.’ exercise.
2 The right to CHAPTER
self- determination 4 CLASSIFYING
of minority AND
peoples PRACTISING
is a core part LAW:
of HOW
international ARE
law. CASES RESOLVED? 171
understanding and practise their Information literacy = knowing what information is available, when it is needed, and how to find it and
164Therefore, if a majority
CONNECTING
use it effectively; of
andWITH Indigenous
LAW
recognising Australians
its vote for self-
inherent strengths andgovernment,
limitations. they must be
CHAPTER 1 LEARNING LAW: HOW CAN I DEVELOP A LEGAL MIND? 23
problem-solving skills allowed to govern themselves.
Lifelong learning = a perspective that holds that continuous learning is a fundamental part of one’s
3 Six in 10 children who are allowed to drink at home with their parents become alcoholics
personal and professional life.
later in life. Therefore, attitudes towards drinking are formed by others near to us.
4 EverySelf-human
managementbeing has = strategies
rights. John andisprocesses by which
a human being; a personJohn
therefore, manages their time, thoughts,
has rights.
feelings, goals and actions.
TIP 5 Every
of the offertime
Appreciating
willMr Ahmed be
usually
diversity
hasvalid
and
taughtifContract
supporting
it is
the
Law, of
properly
scope
rights
students
section
of groups
have
communicated,achieved good
51 provisions;
that are
unless
which
exposed
results
some on consideration
jurisdiction
to injustice
has the powerwas
Threshold
the exam.
Students often learning
This semester,
get confused outcome =
Mr Ahmed
about the executive the minimum
is teaching discipline-
Contract based
Law. learning
Therefore, outcome
students ofwill
a course and
of how the
paid (such
are part of asinofastudies.
social
dotertiary
administrative arm
well
deposit)
justice.For
government
the exam. Ain
law
that
order
lawyertherewhoto(thehas
are
implements
keep
six—
tothe
enact
aknowledge,
commitment
legislation
offer open. in relation
to and
ethics social
to particular
justice believes
professional
matters;
that all thinking
responsibility, Go to Oxford
Contracts
parliament’s skills,
individuals, do
research
decisions).
in all not
their typically
Theskills,
executive
diversity, have
communication
is equal
have to
the be
and in writingOxford Ascend margin notes:
rights in the constitution are interpreted.
collaboration,
rights, and whereto be
and legally
there self-
is valid
management.
social (an exception
disadvantage or is a contract Ascend for
6 A’s oral contract for sale of land was invalid in Case A. B’s oral contract for sale of land
for sale of land). If the contract is in writing, though,These directeasierstudents
to prove thattoa contract related a contract
embodiment of the monarch: the Queen. It includes the Constitutional interpretation is primarily conducted by
inequity,
waslawyers should
invalid in Case do something
B. C’s oral contract
Governor-General (and the governors of the states) and
to address
for saleit.ofSocial justice
land was is about
it is usually
invalid in Casetaking individual
C. Therefore,
the High Court of Australia, which is able to decide whether exercise.
public all oral contracts foractions
the sale of Itland areobligations
invalid.
allresponsibility
online material on Oxford AscendA scenario
for our own
existed, and the scope of its terms.
servants, including the police and
force. for our
also towards others and society as a whole.
the Commonwealth Government or relevant state government
Not7 allmembers
includes Red carsofwill
lawyers gothefast.
be Juanita’s
actively
governing car
engaged
party whois make
red.
on aTherefore, Juanita’s
full-time basis car goes fast.litigation, but they
in public-interest
Where there are problems that commonly arise in a particular kind of contract, it is useful to is posed and
policy
can8and runall
We government
nonetheless thedepartments,
havehave right to equal
a commitment andtreatment
who
to are
had the power to make the relevant piece of legislation that has
socialunder theItlaw.
justice. mayTherefore, Janeasand
be as simple Mary should
recognising that a
responsible to parliament for such administration.
agree come before the court. an open-air you are asked
personinbe advance
ablelegal
needs to adopton athe
help, way
child,
and justthey
referringas Johnwilland
them tobelegal
resolved.
Mary a For
areorable
aid to. example,
community law if someone
centre arranges
for advice. It
event
may alsothat depends
involve uponafine
recognising weather,
litigant’s language it isdifficulties
useful to andspell
needout in the contract
for interpreter assistance. what will happen to work out
whether a
Problem Exercise Examples: if it rains on thePROBLEM intended EXERCISE
date—will the event beCONSTITUTIONAL
EXAMPLE: rescheduled, or cancelled LAW and, if so, will any valid contract
Examples of problem exercises cancellation
Lawyers often feeAssume
apply?
reason bytheanalogy,
Commonwealth
arguing Government
that the current enacts casetheisPaperless
similar inClassroom Act 2019 to reduce
some material exists.
BIOETHICS
way Terms that case,
to another AND
have byPROFESSIONAL
deforestation.
sobeen It requires
clearly
analogy, that be
itthought
should every
aboutRESPONSIBILITY
student
treated and bring
included
in the sametheirmanner.
own (TLO
iPad
(expressed)
This 2)aAcontract
to class.
in
notion student who
of areiscalled
in different branches of law give ‘like should
‘express be
terms’.of 1
an ardent
decided
On LAW
alike’follower
occasion AS
underpinsof the
a court the Faith
Ademonstrate:
DISCIPLINE
doctrineof Neo-
of Luddism discussed
precedent is seekingintoChapter
challenge10. the
It legislation on
is
hismayright also implyhisterms into a contract. Take for example a
Graduates the Bachelor of Laws will
linked to fairness the andbasis that it violates to exercise religious
seen asfreedoms under section
path of 116 of the
students an idea of the scope of situation whereCommonwealth
a An understanding
Law,
the rule of law. Analogical
thereofisapproaches
a contract
in contemporary
to lease
Constitution,
to ethical
Western
reasoning
which aincludes
decision-
societies
two-
can be
bedroom
making;
such
the right to
as Australia, isdoes
a step in the
apartment—
avoid use of all
formally
butforms
an autonomous
when the tenant
of modern
discipline.
technology. The student argues that the Commonwealth not have the power to enact
the subject and the types of legal movesb An in they find
abilityThis the landlord
to recognise
means
legislation
andwhile
that,
in relation
living
reflect upon,
ourschool
to lawthere.
and be
may aIndeveloping
such case,
affected
education. Assume
the tocourt
by ability
morality,
you are or
respondwould
to or
thepolitics,
follow
legal
judge. What religion, statute
will youitdecide?
law on
is separate
issues;
residential tenancies, theor general property
we maylaw haveprinciples,
a law againstand imply butathe
term into the contract that
problems they may encounter c An ability Was
the property
from them.
would
in cases and
For example,
legislation
to recognise
beand
vacant
valid?
and reflect
andtoready
legislation, not in for the tenant
the Bible or the Ten
murder,
upon the professional responsibility of lawyers in
basis for that
to use. Another example is where a8/16/18
Commandments, the Qur’an or
law is found
the court4:13 PM
hadiths,
promoting
01_SAN_CWL4E_10844_TXT_4pp.indd 7 justice in service the community; and
implies
d Ainto the Sutras,
a consumer
developing the Vedas
ability to transaction or the Torah.
the consumer
exercise professional Thus, this secular system is different from
judgement. protection laws that are there to protect the religious systems
of law, where the holy text is also the text of the law. For example, the basis of Shari’ah, which
public and cannot RESEARCH-
beinexcluded. BASED ESSAY QUESTION EXAMPLE:
Legal ethics applies some countries
is a fundamental as thepart
and crucial lawofbetween
being aMuslims, is the Qur’an
lawyer. Broadly, actingitself.
ethically
CONSTITUTIONAL LAW
means doing the right A benefit
thing of law being
morally. treated
Ethical legalas professionals
an autonomous actdiscipline
honestly, isare
that one legal system applies to
accountable,
Essay Question Examples: value personal, all
What is the scope of the race power under s 51(xxvi) of the Constitution? Has it provided
people inand
intellectual a country, from many
professional different
integrity, backgrounds
and take and religions.
responsibility for theirAactions
consequence, though,
justice for Indigenous Australians? Critically consider debates on the amendment and
Examples of essay questions in andESSAY
2 impact
the QUESTION
they may have EXAMPLE:
on others.
removal of the race power. This CONTRACT
TLO requires a LAW
demonstrated understanding of
approaches to ethical decision making, of how to recognise, reflect upon and respond to ethnical
different branches of law give ‘Contract law has gone too far in protecting the rights of vulnerable individuals and not far
issues, and how to exercise professional judgment.
enough in upholding free-market capitalism.’ Critically discuss.
students an idea of the scope of Ethical situations commonly law
Administrative
01_SAN_CWL4E_10844_TXT_4pp.indd 2
arise in practice. For example, we may come across confidential
8/16/18 4:13 PM
information about
Just aascompany we holdlaw
constitutional shares in, and
limits thewe may beoftempted
powers to usethe
parliament, thispowers
information
of the executive in
the subject and the types of essay for our own benefit. We may and
administering haveapplying
clients wholawaskareuslimited
to lie, by
or to mislead the other
administrative partybranch
law. This or the of law governs
questions they may encounter court as to certain
Tort law the way facts people
or points
practitioner is accountability
canofchallenge
still technically mechanism
law. The challenge
within the letter
decisions arises in the greydepartments
of government areas, where the
TIP
andlegal
bodies. It is a key
overofthe thepowers
law, butofnot its spirit. ministers,
governors, local councils, boards,
A tort is a civil wrong. The aims of tort law are to deter certain Most non-lawyers don’t use the word ‘tort’ in normal
government business enterprises and public servants. It is particularly important given the
conversation, and so this area may seem unfamiliar.
behaviour; toextensive
compensatenature offorgovernment
loss caused by others’
decision making.wrongful
Reflection: REFLECTION
behaviour; to return the injured party to the position before
But they do use the names of particular torts—such as
If you wish to challenge a government decision that affects you, suchor as
negligence refusal of
trespass— an regularly; so if you just
quite
Questions are posed as an the loss;you
Imagine to are
appease
a lawyer
application theforvictim;
acting
permanent andresidency,
for a major to provide
Australian here justice
company
are some between
that is suedfor
options byaction,
anremember
individual who
using the Commonwealth
that ‘torts’ is the umbrella term to cover all
used the company’s
invitation for students to the parties.15 systemproduct and suffered loss. Consider the following.
as an example: these types of action, you will feel more comfortable
• Is it ethical to use the knowledge that the individual has limited resources to drag out the with this areadocuments
of the law.under
Key torts• include
Freedom trespassof information (FOI)—
(entering you can apply
someone’s for access to government
property
stop, think and engage with litigation into a multitude of procedural steps so that the individual eventually drops the case
the Freedom of Information Act 1982 (Cth) and the equivalentstate and territory FOI Acts.5
without
becausepermission),
they cannot afford defamation
to continue?(spreading false and offensive
the topic • Say the injury
information
The FOI
being someone
about
Acts
complained thatprovide that
of is aaffects access
psychological
their
should
one, be granted to
where the individual
reputation), nuisance
documents
goes(an a state possession
in the
intounlawful of
interference
where they cannotgovernment,
function ifincluding ministers,
their stress departments
levels become and public
too great. authorities,
If you used which contain
this knowledge personal
withinaanperson’s usemanner
aggressive or enjoyment
to defend the of land, or of
litigation, some unreasonable
enforcing other right over it) and and
requirements negligence.
Negligence
timeframes5 such
ethical?
isFreedom
the
thatofmost
the far-Actreaching
individual
Information could
1982 not
(Cth); tort and
continue
Freedom is acase
the
of Informationrelatively
due (ACT);
Act 1989 recent
to poor health,branch
Government is that of (Public
Information the Access)
law. The
Act 2009 (NSW); Information Act 2003 (NT); Right to Information Act 2009 (Qld); Freedom of Information Act 1991 (SA);
xxxi
modern law of Right
negligence
to InformationisActfrequently traced
2009 (Tas); Freedom to theActlandmark
of Information caseof Information
1982 (Vic); Freedom of Donoghue v Stevenson
Act 1992 (WA).
[1932] AC 562. Mrs Donoghue drank a bottle of ginger beer that contained the decomposing
remains of a snail. She sued the company that produced the ginger beer, seeking damages for
the shock and gastroenteritis she suffered as a result. The problem was that there was no contract
 afterwards—either way, they rarely achieve an optimal outcome.
4 An assertive communicator uses a relaxed stance with their shoulders back, an air of confidence
and a neutral voice at a middle volume. They make appropriate 308 eye CONNECTING
contact, listenWITH LAW
without
interrupting, and when speaking, they speak calmly and clearly, with a respectful tone. They

xxxii GUIDEDasking TOUR

speak honestly and sincerely, and often use ‘I’ statements (‘I can see that …’, ‘I feel …’, ‘I am
that …’). When there is an issue to resolve, they do not attack the person (‘You are
so slack and have let us all down’), but rather they focus on the problem at hand (‘We need
Pre-Socratic philosophers observed the material forces that operated in their world.
to get this assignment in on time, and we still need to do …’). They do not allow others to
Accordingly, they are described as materialist in their philosophical orientation. Materialists
manipulate them; they express their views and stand up for their rights. When others behave
believe that any change is due to the physical world, rather than ideas. The thinkers of Ancient
passively, they gently seek out the person to find out what they feel and need, and when
Greece referred to basic phenomena such as water (Thales), air (Anaximenes), numbers
others behave aggressively, they maintain their calm and ‘name’ the emotion (‘I sense you’re
(Pythagoras) and opposites (Heraclitus) as ‘basic principles’ that could explain the composition
frustrated and I understand your reaction’); if need be, they opt to take a break and return to
and workings of all things.
the communication at another time, when hopefully the aggressive person has calmed down
In the Classical era of the fifth and fourth centuries bce, a notable division arose between
(‘I’d like to think about what you have said and speak further tomorrow’).
materialism (Aristotle) and idealism (Socrates/ CHAPTER Plato). Idealism,
3 LEGAL broadly, gives
INSTITUTIONS: HOW primacy to
IS LAW MADE? 115
Tips: Good lawyers are able to ‘flex’ their style to suit the circumstances.
TIP In most instances they
ideas, as opposed to material forces, as the bases of society and change. Aristotle (384–322
communicate assertively, but there may be times when Students it is appropriate to adopt some aspects
Marginofnotes that explain
the passive or aggressive styles. They may, for example, often bce) advanced the theory of natural justice or natural law. This theory holds that law is
assess that there is a low likelihood
associate derived from higher, aspirational principles and values. It is timeless and knowable by human
aspectsof of thea topic
moving that in the meeting, and indeednatural
matter forward therelawis a risk that being assertive will
reason. Law is not made, but discovered by observation and contemplation of the nature of
move things backwards, so they choose to sit back and allow with purely
the other person to talk for the
are rest
students may
of the find
session, difficult
without or them. They do notreligious
contradicting
judges;
things.
allow their ego togovernment
courts
get in the way
administered by government justice departments in most states and territories;
and are part of both the executive and the parliament; and parliament delegates
ministers
ideas. In fact, Aristotle developed the idea of natural law by considering, on the one hand, specific laws For a reading
confusing
trap them into defending themselves. They are confident that,
natural lawby remaining
that
silent
thevaried
law-making they
among role
have to the city-
the Greek executive
states (specifically
and, on the the Cabinet),
other hand, thewhich drafts
natural lawmostthatbills.
was more exercise
avoided losing ground, and perhaps by being passive thearose other person has felt heard, which can
from titled ‘Judicial
essential and could be applied universally. He distinguished the general (natural law) from the
Aristotle’s the lawyer Independence
be a positive outcome ahead of the next meeting. Alternatively, may express anger
belief in particular (state law). Today we regard a reliance on analysing state (or judge-made) law as a and
or indignation, as a strategy to ensure that the other party human
is fully cognisant of their sense of Administrative
moral outrage or understands the strength of their conviction reason. that the PARLIAMENTARY
positivist
situation is
view of law.
unacceptable. SOVEREIGNTY Control over
For Aristotle, state law would, in a perfect world, translate natural law into ‘concrete norms
However, while doing so, they may not feel particularly angry. In other words, Thethey do notof
doctrine allowparliamentary sovereignty provides that, because the role of parliament Resources’ see
governing peoples and nations’. However, Aristotle conceived natural law as a higher and Oxford Ascend.
their emotions to control them; rather, they use emotions as strategic toolsisthat help toto
primarily achieve
make law, parliament is supreme—or sovereign—over the executive and the It involves
612 ethically more pure
CONNECTING WITHformLAW of law, which transcended ordinary and everyday state law. Natural
a desired outcome. courts in the law- making role, despite the principle of separation of powers. This means that if reading a
law was based on a ‘natural order to the human world’ that is good and eternally true. Neither
parliament does not like the law the courts are making, or the way the courts are interpreting critique
human actions nor human laws should offend natural law. This law is not simply a principle that of court
legislation, parliament may make a new law, and this new law will override the legal principles administration
IN DEPTH is invoked in courts or in the resolution of legalIn Depth:
disputes, but forms the centre of humankind’s
propounded by the courts. It also means that if the executive makes law (such as regulations) by the Hon
CULTURAL FLEX ethical existence. Hence, the laws of a society, even if they are enacted by its rulers, must
under
beingto
conform
authority
done, and
the higher
delegated
the by Lawyers
place.
natural
parliament,
law. Aristotle may andThese
haveparliament
accordingly a city sections
does
role,
believed athat
suburbandelve
not agree
defiance role, deeper
with country
of unjust laws in into
the law role, the
made,an Marilyn
Warren AC,
It is important to have cultural flex—to adjust our communications to take into account
parliament may the
override it with new
role.legislation.
cultural background of our audience. To have cultural flex it is necessary
interstate
the pursuit
have of
toThere
role,
natural
ais,degree
an law
however,
international
of an important
It can
is morally justified. The
exception topic
bestory
to
ofdiscussed,
criminal
the
law work,
Antigone
doctrine
(below)
of providing
corporate
is a representation
parliamentary real-life
and commercial, Chief Justice
sovereignty. of Victoria, and
cultural literacy,10 which is an understanding of a culture’s language, signs of theand so
conflict
and on.between state law and natural law.
symbols.
and main types of work: applications (researchingofthe law. Some legal include
The High
ThereCourt is given, by virtue of the Australian
are three advisory Constitution, and power
drafting to interpret the considering
advice),
A good starting point is ‘what is culture’? Culture is more than just language, dress four questions
Constitution and to rule on whether the laws created by the Federal Parliament are within
food customs, although these are manifestations of it. Culture is essentially
morals, values and practices expected of individuals as members of the
transactional
powers
acase).
particular
Some (intra vires)inorspecialised
society.
lawyers outside the powersmay
practice
questions
(ultra
do vires)
andtoofexamples
(preparing contracts and other agreements), and litigious (acting for a party in a about it.
the customs,
granted
a combination the Federal
these, Parliament in
CHAPTER 3 LEGAL INSTITUTIONS: HOW ISfor
LAWexample
MADE?if they 141
Cultural messages within the groups we belong give us information about EXAMPLE:
the Constitution.
what
are andA probate
is meaningful
a wills TRAGIC
WherelawyertheSTORY
High ABOUT
theyCourt
may rules
be THE
that aCONFLICT
involved piece
in BETWEEN
of federal
transactional legislation
work (preparingis invalid,
willsthe
and
NATURAL
Federal LAW
Parliament AND
cannot STATE
in turn LAW:
override ANTIGONE—
that decision byA THEBAN
issuing PLAY
further
transferring property), advisory work (advising on the legality and effect of a will) and litigious legislation on the
BY
point.
workSOPHOCLES
In this matter,
(acting the High
for a party Court ais will).
challenging supreme over the Federal Parliament.
Ancient
10 E D Hirsch Jr, Cultural Literacy: What Every American Needs to Know (Houghton Mifflin, 1987). TheGreek
most philosophers believed
common business that natural
structure law is
in private not always
practice is thereflected in state law.
‘sole practitioner’, meaning
Although
lawyers who positivism
work (which held thatwhile
for themselves, state law is the only law)
a ‘partnership’ developed
involves two orasmore a formal
legaltheory
practitioners
Context: CONTEXT: more thanCOMMON
a thousand LAW
years JURISDICTIONS
later, very early
and on Greek intellectuals had include
demonstrated the
THEworking RULE together OFand LAW sharing profits liabilities. Other options an ‘incorporated
Takes an important point in the chapter If there
conflict between a positivist approach and natural law. Therefore, the positivists’ obedience
to
arepractice’
legal
state
A fundamental
numerous
law conflicted
courts in nine
(a corporation
principle with the
engageddifferent
Aristotelian
of law and
in legalcourt
notion
government
hierarchies
practice),
of natural
is there
in Australia issuing
an ‘unincorporated
law.
TIP This could lead to
judicial(which
legal practice’
grave
decisions may that form both
provide part legalof 8/16/18
ourand common
non-
PM legallaw,services),
does thisa mean ‘chambers are nine(where
practice’ different common
legal practitioners
and puts it into context to reinforce
06_SAN_CWL4E_10844_TXT_4pp.indd 256 5:36
injustice.
laws the inwork rule of law.
Australia? No,in The
it does nation
not. is governed
The High Court bysits laws,at thenottop ofWhen all the we say ‘the’ rule of law we mean something
courtservice’
hierarchies, and
Thistogether
by brute conflict
force, on is rooms
thuggeryillustrated and share
in thefacilities)
or nepotism. play and
All Antigone,
people
a ‘community
written by the
different legal
from fifth- century
‘a’ rule (which
of law. Greek includes
The rule of law is how we
on all are
understanding that court’scommunity
playwright
decisions the common
legal centres
Sophocles (497/and
Lipohar v The Queen (1999) 200 CLR 485, 505 (Gleeson CJ).
bound by the law— including
law are binding
497–Aboriginal
406/405 bce).
the prime
andThe
minister
Torres federal,
following
and
is
state and
Strait Islander a summary
describe Legal
an
territory
of
overarching
courts:
Services).
Antigone
see
thatwhereas ‘a’ rule of
principle,
reflects Under the discrepancy
the Legal Profession between Uniform state lawLaw, and naturalwhich law. applies lawin
(Note is that
just
NSW one particular
although atlegal
and Victoria, rule.
the timestructures
54 the government. CONNECTING No person is above the law; it applies
for the provision ofWITH legalLAW services are not prescribed (s 32). It has to be a ‘qualified entity’
equally to everyone at all times.
Cross-(svesting 10(1)) such as an Australian legal practitioner, foreign lawyer, law practice, etc. A ‘law firm’ is
Cross-vesting is the granting, or vesting, defined
of powerin s 6inasa astate partnership
court to of Australian
exercise legal practitioners
Commonwealth
TIP judicial power. In 1987 legislation was(and introducedcan to include Australian-
allow federal courts registered
to hear state foreign
matters,lawyers).
Case Examples: The best way and Case
to work
state out
courtsexample:
whether privatefederal
to•hear Kable
practice is v Typically
Director a of cases
law Public
firm includesProsecutions
partners (who (NSW)
own equity in in a
matters.
Re Liveri—A commerce law student was found by her universityboth
This enabled that raised issues under state
17
to have handed
These case examples help for you is to get some work experience. There was
(1996)
and federal
recently an article about
07_SAN_CWL4E_10844_TXT_4pp.indd 308
189
jurisdictionCLR 51
to
published
staff at the RSPCA, how
avoidarticle,
having the to firm
with commence
only and
minor share
two profits) proceedings:
separate
amendments, and
as employed
her own onesolicitors
work before
for an (who
aassignment.
8/16/18 7:12 PM
court with state Her
jurisdiction, previousand law
one assignments
receive
before a salary
court were
for
with reviewed
their
federal work). and Thetwo
jurisdiction. other
most incidents
common
Instead of
route
parties plagiarism
for
students learn about the facts and stressed and dissatisfied
could
didn’t realise
Kable stabbed
their jobsimply
based
they were
wouldcommence
onoften
acute involve
because
his wife
were the
they and pleaded guilty to manslaughter with diminished responsibility,
to death
discovered,
action
euthanising
depression in including
arising a from
thelawmost another
graduate
convenient
a bitter is instance
to get
custody court, ofand
a job
dispute. using a an
inthat
He law academic’s
firm
court
was would
sentenced commentary
(sometimes
decide after aas her
to prison,
significance of a case animals, when
about TIP
they took
matters andunder
the job because
duringboth
animals. How much do you know about the
state and
his sentence
theyfederal
care jurisdiction.
wrote threatening own,
clerkship, and using
discussed
letters
giving the
to the
source.
words
carersfrom
below),
She
of hisatwo
gather
disclosed
government
experience
young children.
the198findings
publication
and work
when
hiswithout
As their
sheto sought
reality Don’t
of being In sentence
1999
a lawyer, theneared
day to validity
day?an end,
of
It is to fears
this grew
legislation
notunderstand
like wayabout
up
was what
to he
becoming
challenged might in do
a Re if released.
partner
Wakim According
(although
(1999) many to
CLRlongstanding
are content
511.
panic!
legal
Use your
principle,
best efforts
once to be admitted in New South Wales and was rejected. She then
The
on television, weHigh
referencing can Court
andassure
avoid held
you! that
Best
plagiarism. toIfafederal
person
get has forego
are courts
you some unsure,
served
had no their
thepower sentence
potential they
underofChapter
shared must IIIbeofreleased
profits which
the from prison.
comes
Commonwealth with theBut risk
the New South Wales Government appliedthe
enacted forCommunity
admission in Queensland
Protection Act and
1994 was unsuccessful.
(NSW), which Two
experience and find
Constitution out. to exercise the
ask your tutor or lecturer. In first-year law, if you power of of sharing
state courts. losses).
Chapter III only allowed federal courts to
years later she reapplied, admitting her conduct and taking full
madestated:
have exercise a clear
federal‘The
effort object of this
to reference
jurisdiction. Act is toany
correctly,
Therefore protect the community
the legislation was held by providing forandtheitpreventive detention
errors you (bymake order of the Supreme
will generally not be a Court pathway made responsibility, but to wasbeagain
invalid, refused
for on the application of the Director of Public Prosecutions) of
was necessary
admission.
for parliament to pass legislation to retrospectively • In validate theof decisions that had Thebeen made
assignments
240 CONNECTING WITH LAW disciplinaryGregory
action. Wayne Kable.’ Here was the whole forcethe ofMatter
the state’s OG,
law- amaking
Lawyer— power being directed of two
over the 12 years the legislation had been in place. business Since law1999,
students federal were foundhave
courts to benotsignificantly
been similar,
Practitioner Profiles: Practitioner profile: Annette and both students receivedboth a zero mark.
able to exercise state jurisdiction, but state courts remain able to exercise state and When
federalit came time
Showcase a diverse array of careers in the TIP Musolino for them
jurisdiction, because the state courts are established under the state constitutions and they allow
Ethics is really about what you do when nobody can
to apply for admission, one of them decided to
disclose the matter and was refused admission. The other
legalWEBLINKS
profession and beyond
AND FURTHER READING
theorexercise
see you, Chief
when of the
nobody
03_SAN_CWL4E_10844_TXT_4pp.indd Counsel,
else
right thing only when there is a risk of being found
federal
will
115 know.
jurisdiction.
Department
If you do the of Human
initially did not disclose the matter fully, describing it as a 8/16/18 4:20 PM

Services
out, it’s only calculated action. If you do the right thing
‘misunderstanding’ and saying it was minor and was not
Bott, Bruce and Talbot-Stokes, Ruth, Nemes and Coss’ Effective Legal Research (LexisNexis
even APPEALS
where I am the
nobody Chiefbecause
will know, Counsel it isand found to
General Manager,
important be services
legal plagiarism. He was consequently admitted to
Butterworths, 6th ed, 2015) to you and your own sense of self, that is the
division, Department of Human Services (‘the mark practice. However, he was found by the Supreme Court of
department’).
Hutchinson, Terry, Researching and Writing in Law (Thomson Reuters, 4th of ed,
anWhere
ethical
2018) individual.
a party
In this toThis may
a civil
role require
or being
criminal
I personally case
provide Victoria
firm is strategic
not satisfied toadvice
with
legal have misrepresented
the outcome,
and they may theappeal
true to
circumstances;
a
on some things that non-law student friends and
Sanderson, Jay, A Practical Guide to Legal Research (Thomson Reuters, 4th higher
ed, 2017) assistance
court thattohas theappellate
secretary of the department,
jurisdiction. Forthethe court
the matterordered
executivetoand that he there
be the
appealed, be struck
must off the roll of legal
be some
relatives may think is acceptable—signing a family practitioners.
level
member’s of Minister
name ambiguity
on a for Human
form, in the
nominating Services.
law as it
someone I am
stands,
withregularly
or called
perhaps uponcontradiction
some to advise between two bodies of
Stuhmcke, Anita, LexisNexis Guides: Legal Referencing (LexisNexis, 4th ed, 2011) These cases demonstrate the importance of the utmost
morelegal onthe
as issues
pointsprinciple driverasinvolving
they
for political
apply
a speeding to thesensitivities
ticket, and reputational
present case.
signing The appeal risks.
court is therefore likely to consider
Watt, Robert and Johns, Francis, Concise Legal Research (Federation Press, 6th ed, 2009)a As the head of the legalwitnessing integrity, ahonesty and good referencing in law school—the
a document
mattersasof witness
principle without
and actually
policy inservices
shaping division
the I lead
area team
of law
consequences
of more
under question.
of plagiarism \ being found, and receiving a finding
the signature— than
and 200
the listlegal
goesandon. operational staff located in offices around
Appeals are generally limited to questionsofofacademic law, which means a purported
misconduct as a result,legal
are error in the
significant.
decision (as opposed to a factual error, such as incorrectly believing one witness over another).
ONLINE TUTORIAL
However, you can have a full rehearing (a hearing de novo) if a matter goes on appeal from a
Boolean searching tutorial <http://internettutorials.net/boolean.asp> Local or Magistrates Court to a District or County Court, except in South Australia. In South
Discussion Questions: Australia, the DISCUSSION QUESTIONS
14_SAN_CWL4E_10844_TXT_4pp.indd 612 District Court generally ‘reviews’ civil appeal 8/16/18 6:29 PM
TIP
At the end of each chapter are self-directed
PATHFINDER SITES (SITES THAT CONTAIN USEFUL LINKS
cases based 1on aThere
TO LEGAL
can often
maximum of abesix-
anpage
imbalance of power
submission frombetween
the parties to litigation. Do you think lawyers
A rehearing de novo is a ‘hearing on the merits’ of the
have greater ethical
applicant. It does not permit lawyers obligations where
to represent the their client
parties in is more
wholepowerful thanisthe opposing lawyers’
or class-based discussion questions that
case. An appeal made on one or more specific
INFORMATION) court. Only veryclient? Why, orwill
occasionally whythenot?South Australian District points.
2 The Constitution of Malaysia allows for a combination of secular law (civil and criminal law)
helpAustLII
students apply their
<www.austlii.edu.au> learning
(provides links to legal information from Australia,
Courtand useful
allow a rehearing.
and Islamic law, which applies only to Muslims. There is a Syariah Court (sharia) which has
websites)
civil jurisdiction over matters such as marriage and criminal jurisdiction with power to impose
17 See Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) and mirror state legislation.
Australian Parliamentary Library <www.aph.gov.au/About_Parliament/Parliamentary_ fines and prison sentences. What are some advantages and disadvantages of this approach?
CHAPTER 1 LEARNING LAW: HOW CAN I DEVELOP A LEGAL MIND? 55
Departments/Parliamentary_Library> (provides links to useful resources) 3 Why is lifelong learning important? Do you think it is becoming more, or less important? Why?
4 Obtain a copy of the statement of graduate attributes at your place of study. What additional
attributes are listed there (above the minimum standards as set out in the TLOs, and the
LAW FIRMS WITH USEFUL SITES, INCLUDING ARTICLES minimum substantive areas of law in the Priestley 11)? How do you think you can best develop
Weblinks and Further Reading:
ON DEVELOPMENTS IN LAW
03_SAN_CWL4E_10844_TXT_4pp.indd 141 WEBLINKS AND FURTHER READING
these attributes across your course of study? Will you be doing anything beyond formal
8/16/18 4:20 PM

A list of& further resources to explore

Baron, Paula
instruction and Corbin,
by your Lillian, Ethics and Legal Professionalism in Australia (Oxford University
lecturers?
King Wood Mallesons <http://www.kwm.com/ en/AU/knowledge> 5
Press, 2014)
Think back to the exams and essays you have done in previous studies. What aspects have you
Behrendt, Larissa, Achieving Social Justice: Indigenous Rights and Australia’s Future (Federation
Allens Linklaters <www.allens.com.au/pubs/index.htm> found easy
Press,and
2003)difficult? Have you had trouble with running out of time in exams, or leaving
Ashurst <https://www.ashurst.com/en/news-and-insights/> too much
Brogan,of the work
Michael on anDavid,
and Spencer, essay until the
Becoming last minute?
a Lawyer: YouSchool
Success at Law can learn
(Oxford from these and avoid
makingUniversity
the same mistakes
Press, in law school.
3rd ed, 2014)
Diestler, Sherry, Becoming a Critical Thinker: A User-friendly Manual (Pearson, 6th ed, 2011)
Evans, Adrian and Palermo, Josephine, ‘Australian Law Students’ Values: How They Impact On
OXFORD ASCEND RESOURCES FOR THIS CHAPTER Oxford Ascend resources for this chapter:
Ethical Behaviour’ (2005) 15 Legal Education Review 1
Farrar, John H, ‘Reasoning by Analogy in the Law’ (1997) 9(2) Bond Law Review 149
• Video: How to find the law—tips from a student
A list of accompanying material available online
Goleman, Daniel, Emotional Intelligence: Why It Can Matter More Than IQ (Bloomsbury, 2009)
• Answers to ‘Research Types’ exercise
• Answers to ‘Ranking sources’ exercise on Oxford Ascend
Hutchinson, Allan C, Legal Ethics and Professional Responsibility (Irwin Law, 2nd ed, 2006)
Hutchinson, Ian, 52 Strategies to Work Life Balance (Pearson Education, 2003)
01_SAN_CWL4E_10844_TXT_4pp.indd 54 8/16/18 4:14 PM
• Answers to ‘Boolean searching’ exercise Jarvis, Peter, Adult Education and Lifelong Learning: Theory and Practice (Routledge, 4th ed, 2010)
Keyzer, Patrick, Legal Problem Solving: A Guide For Law Students (Butterworths, 2nd ed, 2003)
• Sample answer to ‘Finding a bill’ exercise
Krever, Richard, Mastering Law Studies and Law Exam Techniques (LexisNexis Butterworths,
• Answers to ‘Using Firstpoint and Casebase’ exercise 9th ed, 2016)
• Multiple-choice questions LawNerds.com, ‘Learn the Secret to Legal Reasoning’ (2003) <www.lawnerds.com/guide/irac.
html#TheIRACFormula>
University of North Carolina at Chapel Hill, ‘Logic and Legal Reasoning: A Guide for Law
Students’ (2002) <www.unc.edu/~ramckinn/Documents/NealRameeGuide.pdf>
Macken, Claire, The Law Students’ Survival Guide: 9 Steps to Law Study Success (Lawbook Co,
2nd ed, 2009)
ACKNOWLEDGMENTS

The authors would like to express their appreciation to Oxford University Press for their excellent,
highly professional approach and support, and especially to Emily Wu and Trischa Mann.
Thanks also to academics and law graduates who have emailed their feedback, especially Aidan
Ricketts, Dorothea Anthony, Nicole Graham, Christine Black, Angela Dwyer and Ashleigh
Best, and to all the academics who have had the confidence to set our text. We look forward
to any comments you may have so that our next edition is even better! If you have scenarios or
exemplars you feel would benefit first-year students across the country you’re welcome to send
them to us, for the online resources, Instructor’s Resource Manual, or body of the book, with
appropriate acknowledgment given.
The author and the publisher wish to thank the following copyright holders for reproduction
of their material.
Cover: Shutterstock (all); Extract, ‘Federal Court judge says pressures of legal profession are
“toxic”’ by Di Martin, Australian Broadcasting Commission (ABC), 20 February, 2015, 598;
Alamy/ART Collection, 315/Pictorial Press Ltd, 327; AustLII 195, 196, 197, 198, 203, 210,
213, 217, 218, 226, 233; Australian Law Reform Commission website – www.alrc.gov.au,
230; The Department of Education and Training, 11; Dreamstime.com/Mike Nettleship,
361; Sourced from the Federal Register of Legislation. For the latest information on Australian
Government law please go to https://www.legislation.gov.au. 204, 267, 274, 276, 486, 509, 510;
Getty Images/Bettmann, 339; HeinOnline, 227; High Court of Australia, 92, 94, 106, 422,
426, 431: Lawlex, 206; Lexis Nexis Australia, 220, 228; RMIT Training Pty Ltd for screenshot
from https://search.informit.org, 225; SAI Global, 207; James Spigelman, 597; Shutterstock,
325, 633; © State of New South Wales (Department of Justice). For current information go
to www.justice.nsw.gov.au. Creative Commons Attribution 4.0 licence, 520; Reproduced with
permission of Thomson Reuters (Professional) Australia Limited, legal.thomsonreuters.com.
au, 115, 193, 194, 219, 226, 229, 350, 450, 479, 584; Ryan, Lyndall, Debenham, Jennifer,
Brown, Mark, Pascoe, William Colonial Frontier Massacres in Eastern Australia 1788 – 1872,
v1.0 Newcastle: University of Newcastle, 2017, this project has been funded by the Australian
Research Council (ARC), 382; Wolters Kluwer, 221.
Every effort has been made to trace the original source of copyright material contained in this
book. The publisher will be pleased to hear from copyright holders to rectify any errors or
omissions.

xxxiii
 ABOUT THE BOOK

Before you embark on reading this book from cover to cover, or by chapter as allocated
throughout the teaching semester, it is useful to get an overall framework for learning and
understanding.
Each chapter contains distinct pedagogical features, and these are set out in the Guided Tour
on page xxxi.
The following is a brief snapshot and overview of each chapter.

LEARNING LAW: HOW CAN I DEVELOP A LEGAL MIND?

Chapter 1 provides foundational guidance in how to study law. It considers the extent to which
studying law is different from studying other disciplines, such as the arts or sciences. It also
tackles the fundamental question, What does it mean to have a legal mind? Graduating from
law school and being able to work as a lawyer is one thing, but successful law graduates possess
superior problem-solving skills, which are useful in every work environment. They also possess
many other attributes, which make them highly suited to a wide variety of occupations. These
include an ethical mindset, a broad understanding of culturally and socially diverse clients and
their circumstances, and proficiency in self-management, including wellbeing and having the
capacity to update their legal knowledge through lifelong learning. As law graduates we should
also have a concept of service—service to our clients, service to the legal profession, and service
to the community.

SOURCES: WHAT IS THE LAW ITSELF?

It is important to identify the instruments in which the law can be found—cases and legislation.
Chapter 2 explains how a case can create a new legal principle, or apply a narrow or broad
interpretation of a piece of legislation. The chapter explains how cases and legislation interact
with one another in practice, and looks at other sources that can contribute to the creation of
new law, such as law reform commission reports, academic commentary and international law.

LEGAL INSTITUTIONS: HOW IS LAW MADE?

Chapter 3 covers the federal system of government in Australia and the main arms of government
at federal and state levels, namely the legislature (parliament), the executive (government
administration) and the judicature (the courts). It focuses on each of the arms of government,
and gives examples of the way they operate, with parliament creating legislation, the executive

xxxiv
 ABOUT THE BOOK xxxv

bringing it into effect and administering its operation, and the courts interpreting it and
resolving disputes under it. Chapter 3 also considers the practical reality that the separation of
powers between these arms of government is often blurred. Finally, as courts are not the only
place for resolving disputes, Chapter 3 also introduces tribunals and alternative methods of
dispute resolution such as arbitration and mediation.

CLASSIFYING AND PRACTISING LAW: HOW ARE CASES

RESOLVED?
Chapter 4 examines the way cases are resolved in various areas of substantive law including
constitutional law, criminal law and property law. It also considers the difference between
substantive law (a law itself ) and procedural law (the legal processes for applying it in specific
case situations). The two main areas of procedural law—civil and criminal procedure—are
explained, as are fundamental legal principles such as due process (fair and equal procedures).

RESEARCH: HOW DO I FIND THE LAW?

It is a fundamental lawyer skill to be able to locate relevant law and establish, through legal
research and analytical techniques, what the current state of law on any conceivable legal issue
is. Chapter 5 explains how to go about legal research, and where to find legal information in
libraries, electronic databases and online. Given the wealth of information available, the chapter
also guides you through the process of identifying which resources carry greater weight and
significance than others, and gives you a technique to help you assess the hierarchy of authority
between various sources. Finally, this chapter explains one of the most time-consuming
but essential processes—preparing footnotes and a bibliography, so that others’ ideas and
publications are properly referenced and you can feel comfortable that you will avoid allegations
of plagiarism while at law school and beyond.

COMMUNICATION: HOW DO I ENGAGE WITH OTHERS ABOUT

THE LAW?
Communication is a core skill in law, which includes communication in person (through
words and body language) and in writing (using paper and electronic mediums). Legal
communications can be prepared individually or in collaboration with others, and delivered
to an individual, group or to the public at large. Chapter 6 covers both the formulation and
delivery of the communication, both of which are usually analytic and strategic (but can also be
‘plain English’ for effective advice of non-technical clients). It connects to Chapter 5 in that the
information identified through research is the ammunition for a legal argument—having the
best information means nothing if it is not communicated in an effective manner to achieve a
desired outcome.
xxxvi ABOUT THE BOOK

JURISPRUDENCE: WHAT IS LAW?

Chapter 7 considers conceptual ideas on what is law, what gives it authority and what role does
or should it play in society. Jurisprudence is the theory of law, and many of the ideas about law
were developed from the earliest times in history. This chapter draws attention to non-Western
notions of law in the forms of Indigenous Jurisprudence and emerging Earth Jurisprudence. It
covers the Western jurisprudential debates between, on the one hand, natural law theory that
perceives law as based in nature and on inherent human understandings of right and wrong or
justice and injustice, and on the other hand, it outlines legal positivists’ challenge to natural law
on the basis that law is something made by humans to serve their purposes; it could thus be
changed and added to at will. Legal positivism is the current dominant model of law in Western
societies, including Australia. It holds that a rule is not a law unless and until it is created
by legislation or a court decision. Chapter 7 also looks at the theoretical critiques of laws,
suggesting that they reflect dominant interests and thus oppress marginalised groups, including
non-English speakers, people of colour, women, and workers.

HISTORY: HOW DID AUSTRALIAN LAW DEVELOP?

Chapter 8 considers the Indigenous laws and legal systems that existed in Australia before British
occupation and continue to operate in many Indigenous communities. It discusses how English
law and legal principles disregarded Indigenous law systems. The British colonisation of Australian
territories led to the universal application of English laws. Chapter 8 shows how English cases
and statutes played a role in the development of Australian law, and how Australia achieved legal
independence in the 1980s, notwithstanding the continuation of a constitutional monarchy.

AUSTRALIA: WHERE DO INDIGENOUS LAWS FIT IN?

In Chapter 9 we ask the question, If Indigenous laws and legal systems were formally displaced upon
British colonisation, where do Indigenous laws fit in today and how can they be better accommodated?
Despite colonial attempts to segregate and assimilate Indigenous peoples, many Indigenous
societies in Australia continue to practise their laws. There have recently been limited attempts
to recognise these practices. Chapter 9 outlines how native title law allows for the recognition
of ongoing Indigenous land systems where Indigenous claimants can meet legal requirements.
By contrast, recognition of ongoing Indigenous ‘criminal’ laws and punishment has lagged.
Chapter 9 addresses the arguments regarding constitutional recognition of Indigenous people
and for a treaty between the Indigenous people and the Australian Government, as occurred in
New Zealand and some parts of Canada and the USA.

PRECEDENT: HOW DO JUDICIAL DECISIONS BECOME LAW?

Chapter 10 focuses on the common law, which is law created by judges. It shows how the main
point of each case, the ratio decidendi, may be applied as a precedent in future cases that have
similar facts and legal issues. It considers situations where a court may have to follow binding
precedents, and where precedents that are not binding may still be highly persuasive. It shows
 ABOUT THE BOOK xxxvii

that courts may conceivably take into account any previous decision of any court, but that the
decisions of certain courts, particularly appeal cases from superior courts, have greater precedent
value. The different types of judgments of appeal courts are considered, including unanimous,
majority and minority judgments, and there is a discussion of how judges view their role—some
see themselves as applying the law as it is, and others see their role as doing justice between the
parties. Chapter 10 considers whether it is possible for judges to strictly interpret precedent
or whether judges’ values and backgrounds invariably have a bearing on their law making or
the adjudication process. A snapshot of how judges are selected is included to highlight the
politicised nature of judicial appointment.

STATUTORY INTERPRETATION: HOW DO COURTS INTERPRET

LEGISLATION?
Chapter 11 focuses on the role of courts in applying and interpreting legislation in the context of
particular cases that come before them. It considers that the key task of courts is to give effect to
legislation through applying the text of a statute in the light of its context and purpose. Courts
look at components of the text (referred to as ‘intrinsic’ materials) such as the relevant section
that applies to the facts, the section defining key terms, and the place setting out the purpose or
objects of the Act. Courts also look outside the text of the legislation (referred to as ‘extrinsic’
materials) to assist with understanding the broader context and purpose of the legislation.
This may include documents and debates accompanying the bill during its process towards
becoming an Act, as discussed in Chapter 3. Chapter 11 presents statutory interpretation as
a toolkit, including a number of techniques, principles and presumptions courts may also use
in interpreting legislation. A process for solving legal problems that have issues of statutory
interpretation is presented, and you have the opportunity to apply your problem-solving skills
to some statutory interpretation practice exercises.

THE PROFESSION: WHAT DO LAWYERS DO?

Chapter 12 considers the role lawyers play in the legal profession in assisting clients to resolve
disputes and, where cases are litigated, in preparing the case so that the relevant facts and law can
be convincingly presented before the court. The two main types of legal practitioners in Australia,
solicitors and barristers, are considered, along with their main roles, in which solicitors tend to
prepare cases in the lead-up to court, including filing of pleadings, and preparation of witness
statements, while barristers, being expert in court procedures and oral advocacy techniques,
typically ‘run’ cases in court. The role of legal professional organisations such as law societies
(for solicitors) and bar associations (for barristers) is discussed, as is the importance of a strong
commitment to ethical and professional practice. The role of judges in each of the major courts
in Australia is also covered. Additionally, because the legal profession comprises more than just
solicitors, barristers and judges, this chapter includes consideration of other legal roles such as
paralegals, law librarians, legal consultants and support services. Recognising that in practice
many law graduates choose not to enter the legal profession, other professional roles using a law
degree are covered later, in Chapter 14.
xxxviii ABOUT THE BOOK

LAW IN SOCIETY: WHAT ARE THE PROBLEMS AND REMEDIES

FOR ACCESSING JUSTICE?
Chapter 13 looks at the issues that certain individuals and groups in society face in accessing
the court system. These issues include the cost of bringing legal proceedings, including paying
for legal costs, and the system of legal aid that is in place, as well as the pro bono work that
some committed legal practitioners offer, often through community law centres. Although,
on the face of it, the rule of law means that the law applies equally to everyone, it nonetheless
creates injustice and entrenches inequality, particularly for minority and disadvantaged groups
within the community such as people with disabilities, homeless and indigent people, culturally
and linguistically diverse people, especially Indigenous people. Where most law studies involve
looking at the law and the way it is applied, this chapter focuses on the broad impact that
law has in society. You are particularly encouraged to consider whether there is a connection
between law and social justice.

MY LAW CAREER: HOW CAN I BEST PREPARE FOR IT?

Chapter 14 enables you to give some thought to what you might want to do with your law
degree once you graduate, and what you can be doing in the meantime (apart from studying
hard!) to ensure you are in a good position to obtain the role you seek. This includes part-
time work in a legal-related field and participation in extra-curricular activities such as law
journal editorial assistance, mooting, law student societies, social justice programs and the
Australasian Law Students’ Association (ALSA). This chapter also provides practical guidance
on the structure of a law degree in Australia, including compulsory subjects, and how to choose
between a plethora of elective subjects as well as, in some universities, practical legal training. It
includes an overview of some typical jobs that law graduates do, both in the private and public
spheres—from becoming a legal aid lawyer, to working for the government to becoming a
corporate counsel or working as a law lecturer. A great many different career paths are open to
law graduates, and this chapter will help you think about where you may, in the future, make
best use of your legal studies in a way that you will find interesting, challenging and rewarding.
1
LEARNING LAW: HOW CAN I
DEVELOP A LEGAL MIND?

What we will cover in this chapter:

• How learning law is different from other disciplines
• Inductive, deductive and analogical reasoning
• Threshold Learning Outcomes (TLOs) in law and graduate attributes
• How to succeed in law school
• Being an ethical student

RECOMMENDED APPROACH TO LEARNING THIS TOPIC

This chapter helps you understand what it means to have a legal mind, to ‘think like a lawyer’. This is
something you will develop across the course of your studies and beyond, and you will see that this
‘forensic’ skill can be applied across various fields of endeavour. You will also see what you can expect
to achieve from your law studies—in terms of the areas of knowledge you will have, and the skills and
attributes you will develop. This book, and the subject it is being used with, will begin the development
of that knowledge and skills, and those attributes. We recommend you read through the material
under headings 1, 2 and 3, and then spend quite a bit of time reflecting on each of the outcomes and
attributes you will find under heading 3. To what extent do you already possess them, based on your
experience in life, studies and the workplace so far? The more you can link what you are learning to
what you already know, the better it will be anchored in your mind. Then it’s time to look at the material
under heading 4: ‘Success in law school’. You can start to try out techniques for being productive in
your studies straight away. Experiment with different options and then use what suits you best—there
is no one ‘right’ way. In your first year of law school you will have the opportunity to develop your legal
writing and problem-solving skills, and you may have your first exams as well. We recommend that,
once you have completed your first term or semester, you come back to this chapter and also look
at Chapter 14 and give some further thought to what you could be doing outside the classroom to
increase your development of these attributes.

1
 KEY TERMS
Critical analysis = using powers of observation, reasoning, reflection and questioning to interpret
information and make findings or form opinions based on it.
Deductive reasoning = using a general theory to test specific facts. For example, ‘All dogs bark. Rufus
is a dog. Therefore, Rufus barks.’
Diversity = the coexistence of differences in gender, age, culture, capacity and perspectives.
Ethics = a field of thinking about what is morally right, appropriate and acceptable.
Graduate attributes = generic skills, attitudes and values, plus specific content knowledge, expected
of students who have completed a tertiary course of study.
Independent learning = taking the primary responsibility and initiative for one’s learning, including
being able to recognise gaps in their learning and where to find the information to fill them.
Inductive reasoning = using specific examples to create generalisations. For example, ‘Apples rot.
Pears rot. Bananas rot. Therefore, all fruit rots.’
Information literacy = knowing what information is available, when it is needed, and how to find it and
use it effectively; and recognising its inherent strengths and limitations.
Lifelong learning = a perspective that holds that continuous learning is a fundamental part of one’s
personal and professional life.
Self-management = strategies and processes by which a person manages their time, thoughts,
feelings, goals and actions.
Threshold learning outcome = the minimum discipline-based learning outcome of a course of
tertiary studies. For law there are six—knowledge, ethics and professional responsibility, thinking
skills, research skills, communication and collaboration, and self-management.

1 LAW AS A DISCIPLINE
Law, in contemporary Western societies such as Australia, is formally an autonomous discipline.
This means that, while our law may be affected by morality, or politics, or religion, it is separate
from them. For example, we may have a law against murder, but the basis for that law is found
in cases and legislation, not in the Bible or the Ten Commandments, the Qur’an or the hadiths,
the Sutras, the Vedas or the Torah. Thus, this secular system is different from religious systems
of law, where the holy text is also the text of the law. For example, the basis of Shari’ah, which
applies in some countries as the law between Muslims, is the Qur’an itself.
A benefit of law being treated as an autonomous discipline is that one legal system applies to
all people in a country, from many different backgrounds and religions. A consequence, though,
2
 CHAPTER 1 LEARNING LAW: HOW CAN I DEVELOP A LEGAL MIND? 3

is that legal reasoning often appears to exist in a vacuum, and to a person not trained TIP
Law is not completely
in legal reasoning it may seem that arguments can follow a path of mental gymnastics
apolitical. For example,
to generate an outcome. For example, someone who has not studied law may Chapter 12 will consider
immediately conclude, as a matter of opinion, that a person who kills a child should the political process of
be ‘imprisoned’ as ‘punishment’ for a ‘crime’. A legal thinker resists reaching these judicial appointment,
Chapter 3 will look at
direct conclusions, but instead follows a process of reasoning that involves addressing the relationship between
whether the person has committed a crime, considering the relevant legislation and sovereign power and the
its interpretation, and then considering whether a punishment of imprisonment is rule of law, and Chapter 7
will examine theoretical
warranted and appropriate, and within the scope of penalties provided in legislation. understandings of law as a
Applying a process of legal reasoning may result in a child killer walking free, and this political domain.
can be difficult for non-lawyers to comprehend or accept.

REFLECTION EXERCISE
Assume these comments were made about law by first-year law students from other countries.1
What does it tell us about their perception of the law, and legal studies?
‘At the moment we need to execute criminals, because it’s the only way we can change people’s
behaviour, by sending a strong message. Maybe in the future once our system of law and order is
established more effectively, like police and courts and prisons, then we can move to other forms
of punishment but for now, fear of punishment has to be the main deterrent.’
‘It is not for a law student to question the law, it is for the law student to learn the law. That is
the purpose of legal training, and the good law graduate is someone who knows the law and can
correctly apply it. In my country, thinking critically about it will only get law students into trouble.’
‘Completing law will put me in good standing and enable me to represent the needs of people
in my village. Our people have a lot of discrimination and suffering from the central government
because we are not educated, we don’t know our rights. Our practice of turning away and saying
the government is not our government, and just doing what we have always done? It’s not working,
the government won’t leave us be. If we are to have any chance to protect our way of life, we must
understand and use the system.’

HOW LAW IS DIFFERENT FROM OTHER DISCIPLINES

Every discipline—be it law, science, arts or theology—has its own style and way of thinking.
Lawyers tend to throw around ideas in an abstract manner, focusing more on the law and how
it could be applied to a particular problem or situation than on what that application may
actually mean for the lives and fortunes of those involved. Sociologists tend to adopt a holistic
approach to reasoning, always bearing in mind the bigger picture, including predicted and
potential/unpredicted consequences. Scientists and mathematicians seek a final answer from
their reasoning processes, and indeed when people with a science background come to study

1 These comments are ‘based on a true story’ in that they are derived from real conversations with law students and
practitioners in other countries, but have been edited for the purposes of this reflection exercise.
4 CONNECTING WITH LAW

law, they can often find it frustrating that there may be several ‘correct’ answers to a legal
problem—it is all about the way you reason, not just the outcome that your reasoning produces.
Journalists focus on the stories of cases and their significance and newsworthiness, and a student
with a background in journalism often writes a law essay like an article, usually with a ‘top’ that
is linked to the ‘tail’. A person with an arts background may throw in a quote from a poem or
famous person at the beginning or end, and engage in a flowing discussion of its relevance to
the topic at hand.
Law is different—it is a narrow, focused, succinct, judicious and frill-free process of thinking
and writing. Formal legal writing is rarely flowery prose, and there should be no unsupportable
presumptions. There is often no one ‘right’ conclusion, and merit in arguing both sides. At
the same time, it is important to reach clear conclusions. It can be infuriating for others that
lawyers think everything ‘depends’—which, of course, it does. But despite the law being based
on ‘abstract principles’, it is an applied discipline that requires careful consideration of how the
facts of a case affect the legal outcome.
In recent years there has been a shift away from purely legal reasoning and towards
interdisciplinary approaches. This can, for example, involve the analysis of a particular problem
such as drink-driving from a legal and sociological perspective; or consideration of sentencing
from a legal and psychological perspective, mortgage default from a legal and economic
perspective, or evidence from a legal and scientific perspective. There have been innovative
steps taken in some law schools where students from different disciplines have the opportunity
to work together in a clinic setting, assisting real clients in trouble with the law in areas such
as social work and financial planning, as well as legal assistance. The proliferation of ‘double
degree’ studies in Australia will also help to create a generation of interdisciplinary thinkers.
There has also been a proliferation of critical legal studies (see Chapter 7) that engage alternative
philosophical, sociological, economic, cultural, gendered and even psychotherapeutic approaches
to understanding the practice of law.

2 LEGAL REASONING
THINKING LIKE A LAWYER
Legal reasoning is so different from reasoning in other disciplines that the phrase ‘thinking like
a lawyer’ has been coined. It was famously used in the 1973 Hollywood movie The Paper Chase,2
where a law professor says to his students: ‘You come here with minds full of mush, and leave
thinking like a lawyer.’ However, students rarely have minds of mush; they mostly have open
minds that will take to thinking like a lawyer in a diligent and yet critical manner.
What exactly does it mean to ‘think like a lawyer’? From a narrow perspective, it means
being able to read cases and statutes and use them to develop legal arguments based on
issues identified from a factual matrix. From a broad perspective, it is about precise, rational,

2 A dramatisation of John J Osborn’s novel, The Paper Chase (Cengage Learning, 1971).
 CHAPTER 1 LEARNING LAW: HOW CAN I DEVELOP A LEGAL MIND? 5

dispassionate and analytical thinking. A critical perspective may see this approach as the legal
profession’s way of justifying its existence by making the law appear scientific and denying its
human underpinnings. Other more cynical commentators may claim that lawyers make the
most obvious and simple conclusion complicated; and twist and manipulate facts and words,
and find loopholes, to achieve an outcome that furthers the client’s interests.
In essence, we consider that there are six key aspects to thinking like a lawyer:3
1 Non-assumptive thinking—resisting jumping to conclusions, or making assumptions. For
example, a lawyer would not consider whether their client is liable for breach of contract
without first examining whether the contract was validly formed in the first place. Similarly,
if a person was charged under crimes legislation, the lawyer would first look at the date the
legislation entered into force and the place where the law
applied, before considering whether the provision applied
TIP
or not. There is a difference between thinking like a lawyer
2 Facts over emotions—being able to detach from personal and becoming that thinking. Let’s say, by analogy,
opinions, and personal notions of what is right and wrong. someone worked as a clown at children’s parties—
they can perform the role of a clown without becoming
Instead, the facts are considered objectively, and the client’s
the clown. They do of course have the opportunity to
case is assessed against the law. The focus is on the strategy bring some aspects of being a clown into their broader
and the outcome that is sought, rather than on feelings of life, such as the skill of using humour to cope with
justice or fair entitlements. difficult times, but they recognise that this is not the
answer to everything. Similarly, a person working as a
3 Tolerance of ambiguity—being able to handle the fact that lawyer may bring their finely honed logical reasoning
there is no black-and-white answer; that the answer depends skills to make good decisions in their lives, while also
recognising that in life being ‘right’ is sometimes
on how you frame the question; and that the advice you less important than being kind,4 and that, although
give the client can never be given with absolute confidence, technically illogical, investing time into ‘uncertain’
because everything depends on everything else and laws can dreams and ‘unproductive’ passions, into spontaneity
and adventure, can generate joy. (And indeed, there
change at any time.
are some lawyers who are also stand up comedians!)
4 Ability to make connections between facts, documents and
laws—when the average person comes across information that they cannot understand
and therefore cannot fit into their current knowledge, they tend to switch off from it and
reject it. Lawyers are instead able to store surplus material somewhere in their brain, and
in the future, when the missing piece that links it to something they know already comes
along, they are able to make the connection. This is essential, for example, in litigation,
where the significance of communications or documents may not be apparent, but later in
the litigation process, links may be made when more information comes to light or when
a witness gives evidence.
5 Verbal mapping and ordering—being able to structure thoughts and opinions, and express
them orally in a manner that is more typical of written communication, for example: ‘I
have three points to make. First …, second …, and third …’ Most people would not have
three structured thoughts, but would instead have a ‘stream of consciousness’, where they
would raise thoughts as they had them. The mental process of verbal mapping and ordering
involves being able to create mental lists, or mental diagrams of relationships.

3 For an example of how these can be applied, see Chapter 6 under ‘Form: How are you going to say it?’.
4 This idea is from Wayne W Dyer, who famously said: ‘When given the choice between being right or being kind,
choose kind.’
Another random document with
no related content on Scribd:
we have some interest. I think that as white men we have. Do we not
wish for an outlet for our surplus population, if I may so express
myself? Do we not feel an interest in getting at that outlet with such
institutions as we would like to have prevail there? If you go to the
Territory opposed to slavery and another man comes upon the same
ground with his slave, upon the assumption that the things are equal,
it turns out that he has the equal right all his way and you have no
part of it your way. If he goes in and makes it a slave Territory, and
by consequence a slave State, is it not time that those who desire to
have it a free State were on equal ground? Let me suggest it in a
different way. How many Democrats are there about here [“A
thousand”] who left slave States and came into the free State of
Illinois to get rid of the institution of slavery? [Another voice—“A
thousand and one.”] I reckon there are a thousand and one. I will ask
you, if the policy you are now advocating had prevailed when this
country was in a Territorial condition, where would you have gone to
get rid of it? Where would you have found your free State or
Territory to go to? And when hereafter, for any cause, the people in
this place shall desire to find new homes, if they wish to be rid of the
institution, where will they find the place to go to?
Now irrespective of the moral aspect of this question as to whether
there is a right or wrong in enslaving a negro, I am still in favor of
our new Territories being in such a condition that white men may
find a home—may find some spot where they can better their
condition—where they can settle upon new soil and better their
condition in life. I am in favor of this not merely (I must say it here
as I have elsewhere) for our own people who are born amongst us,
but as an outlet for free white people every where, the world over—
in which Hans and Baptiste and Patrick, and all other men from all
the world, may find new homes and better their conditions in life.
I have stated upon former occasions, and I may as well state again,
what I understand to be the real issue in this controversy between
Judge Douglas and myself. On the point of my wanting to make war
between the free and the slave States, there has been no issue
between us. So, too, when he assumes that I am in favor of
introducing a perfect social and political equality between the white
and black races. These are false issues, upon which Judge Douglas
has tried to force the controversy. There is no foundation in truth for
the charge that I maintain either of these propositions. The real issue
in this controversy—the one pressing upon every mind—is the
sentiment on the part of one class that looks upon the institution of
slavery as a wrong, and of another class that does not look upon it as
a wrong. The sentiment that contemplates the institution of slavery
in this country as a wrong is the sentiment of the Republican party. It
is the sentiment around which all their actions—all their arguments
circle—from which all their propositions radiate. They look upon it as
being a moral, social and political wrong; and while they contemplate
it as such, they nevertheless have due regard for its actual existence
among us, and the difficulties of getting rid of it in any satisfactory
way and to all the constitutional obligations thrown about it. Yet
having a due regard for these, they desire a policy in regard to it that
looks to its not creating any more danger. They insist that it should
as far as may be, be treated as a wrong, and one of the methods of
treating it as a wrong is to make provision that it shall grow no
larger. They also desire a policy that looks to a peaceful end of
slavery at some time, as being wrong. These are the views they
entertain in regard to it as I understand them; and all their
sentiments—all their arguments and propositions are brought within
this range. I have said, and I repeat it here, that if there be a man
amongst us who does not think that the institution of slavery is
wrong, in any one of the aspects of which I have spoken, he is
misplaced and ought not to be with us. And if there be a man
amongst us who is so impatient of it as a wrong as to disregard its
actual presence among us and the difficulty of getting rid of it
suddenly in a satisfactory way, and to disregard the constitutional
obligations thrown about it, that man is misplaced if he is on our
platform. We disclaim sympathy with him in practical action. He is
not placed properly with us.
On this subject of treating it as a wrong, and limiting its spread, let
me say a word. Has any thing ever threatened the existence of this
Union save and except this very institution of slavery? What is it that
we hold most dear amongst us? Our own liberty and prosperity.
What has ever threatened our liberty and prosperity save and except
this institution of slavery? If this is true, how do you propose to
improve the condition of things by enlarging slavery—by spreading it
out and making it bigger? You may have a wen or cancer upon your
person and not be able to cut it out lest you bleed to death; but surely
it is no way to cure it, to engraft it and spread it over your whole
body. That is no proper way of treating what you regard a wrong. You
see this peaceful way of dealing with it as a wrong—restricting the
spread of it, and not allowing it to go into new countries where it has
not already existed. That is the peaceful way, the old-fashioned way,
the way in which the fathers themselves set us the example.
On the other hand, I have said there is a sentiment which treats it
as not being wrong. That is the Democratic sentiment of this day. I
do not mean to say that every man who stands within that range
positively asserts that it is right. That class will include all who
positively assert that it is right, and all who like Judge Douglas treat
it as indifferent and do not say it is either right or wrong. These two
classes of men fall within the general class of those who do not look
upon it as a wrong. And if there be among you any body who
supposes that he, as a Democrat, can consider himself “as much
opposed to slavery as anybody,” I would like to reason with him. You
never treat it as a wrong. What other thing that you consider as a
wrong, do you deal with as you deal with that? Perhaps you say it is
wrong, but your leader never does, and you quarrel with any body
who says it is wrong. Although you pretend to say so yourself you
can find no fit place to deal with it as a wrong. You must not say any
thing about it in the free States, because it is not here. You must not
say any thing about it in the slave States, because it is there. You
must not say anything about it in the pulpit, because that is religion
and has nothing to do with it. You must not say any thing about it in
politics, because that will disturb the security of “my place.” There is
no place to talk about it as being a wrong, although you say yourself
it is a wrong. But finally you will screw yourself up to the belief that if
the people of the slave States should adopt a system of gradual
emancipation on the slavery question, you would be in favor of it.
You would be in favor of it. You say that is getting it in the right
place, and you would be glad to see it succeed. But you are deceiving
yourself. You all know that Frank Blair and Gratz Brown, down there
in St. Louis, undertook to introduce that system in Missouri. They
fought as valiantly as they could for the system of gradual
emancipation which you pretend you would be glad to see succeed.
Now I will bring you to the test. After a hard fight they were beaten,
and when the news came over here you threw up your hats and
hurrahed for Democracy. More than that, take all the argument
made in favor of the system you have proposed, and it carefully
excludes the idea that there is any thing wrong in the institution of
slavery. The arguments to sustain that policy carefully excluded it.
Even here to-day you heard Judge Douglas quarrel with me because I
uttered a wish that it might some time come to an end. Although
Henry Clay could say he wished every slave in the United States was
in the country of his ancestors, I am denounced by those pretending
to respect Henry Clay for uttering a wish that it might some time, in
some peaceful way, come to an end. The Democratic policy in regard
to that institution will not tolerate the merest breath, the slightest
hint, of the least degree of wrong about it. Try it by some of Judge
Douglas’s arguments. He says he “don’t care whether it is voted up or
voted down” in the Territories. I do not care myself in dealing with
that expression, whether it is intended to be expressive of his
individual sentiments on the subject, or only of the national policy he
desires to have established. It is alike valuable for my purpose. Any
man can say that he does not see any thing wrong in slavery, but no
man can logically say it who does see a wrong in it; because no man
can logically say he don’t care whether a wrong is voted up or voted
down. He may say he don’t care whether an indifferent thing is voted
up or down, but he must logically have a choice between a right thing
and a wrong thing. He contends that whatever community wants
slaves has a right to have them. So they have if it is not a wrong. But
if it is a wrong, he cannot say people have a right to do wrong. He
says that upon the score of equality, slaves should be allowed to go in
a new Territory, like other property. This is strictly logical if there is
no difference between it and other property. If it and other property
are equal, his argument is entirely logical. But if you insist that one is
wrong and the other right, there is no use to institute a comparison
between right and wrong. You may turn over every thing in the
Democratic policy from beginning to end, whether in the shape it
takes on the statute books, in the shape it takes in the Dred Scott
decision, in the shape it takes in conversation, or the shape it takes in
short maxim-like arguments—it everywhere carefully excludes the
idea that there is any thing wrong in it.
That is the real issue. That is the issue that will continue in this
country when these poor tongues of Judge Douglas and myself shall
be silent. It is the eternal struggle between these two principles—
right and wrong—throughout the world. They are the two principles
that have stood face to face from the beginning of time; and will ever
continue to struggle. The one is the common right of humanity and
the other the divine right of kings. It is the same principle in
whatever shape it develops itself. It is the same spirit that says, “You
work and toil and earn bread, and I’ll eat it.” No matter in what
shape it comes, whether from the mouth of a king who seeks to
bestride the people of his own nation and live by the fruit of their
labor, or from one race of men as an apology for enslaving another
race, it is the same tyrannical principle. I was glad to express my
gratitude at Quincy, and I re-express it here to Judge Douglas—that
he looks to no end of the institution of slavery. That will help the
people to see where the struggle really is. It will hereafter place with
us all men who really do wish the wrong may have an end. And
whenever we can get rid of the fog which obscures the real question—
when we can get Judge Douglas and his friends to avow a policy
looking to its perpetuation—we can get out from among that class of
men and bring them to the side of those who treat it as a wrong.
Then there will soon be an end of it, and that end will be its “ultimate
extinction.” Whenever the issue can be distinctly made, and all
extraneous matter thrown out so that men can fairly see the real
difference between the parties, this controversy will soon be settled,
and it will be done peaceably too. There will be no war, no violence.
It will be placed again where the wisest and best men of the world
placed it. Brooks of South Carolina once declared that when this
Constitution was framed, its framers did not look to the institution
existing until this day. When he said this, I think he stated a fact that
is fully borne out by the history of the times. But he also said they
were better and wiser men than the men of these days; yet the men
of these days had experience which they had not, and by the
invention of the cotton-gin it became a necessity in this country that
slavery should be perpetual. I now say that, willingly or unwillingly,
purposely or without purpose, Judge Douglas has been the most
prominent instrument in changing the position of the institution of
slavery which the fathers of the Government expected to come to an
end ere this—and putting it upon Brooks’s cotton-gin basis—placing
it where he openly confesses he has no desire there shall ever be an
end of it.
I understand I have ten minutes yet. I will employ it in saying
something about this argument Judge Douglas uses, while he
sustains the Dred Scott decision, that the people of the Territories
can still somehow exclude slavery. The first thing I ask attention to is
the fact that Judge Douglas constantly said, before the decision, that
whether they could or not, was a question for the Supreme Court.
But after the court has made the decision he virtually says it is not a
question for the Supreme Court, but for the people. And how is it he
tells us they can exclude it? He says it needs “police regulations,” and
that admits of “unfriendly legislation.” Although it is a right
established by the Constitution of the United States to take a slave
into a Territory of the United States and hold him as property, yet
unless the Territorial Legislature will give friendly legislation, and,
more especially, if they adopt unfriendly legislation, they can
practically exclude him. Now, without meeting this proposition as a
matter of fact, I pass to consider the real Constitutional obligation.
Let me take the gentleman who looks me in the face before me, and
let us suppose that he is a member of the Territorial Legislature. The
first thing he will do will be to swear that he will support the
Constitution of the United States. His neighbor by his side in the
Territory has slaves and needs Territorial legislation to enable him to
enjoy that Constitutional right. Can he withhold the legislation which
his neighbor needs for the enjoyment of a right which is fixed in his
favor in the Constitution of the United States which he has sworn to
support? Can he withhold it without violating his oath? And more
especially, can he pass unfriendly legislation to violate his oath?
Why, this is a monstrous sort of talk about the Constitution of the
United States! There has never been as outlandish or lawless a
doctrine from the mouth of any respectable man on earth. I do not
believe it is a Constitutional right to hold slaves in a Territory of the
United States. I believe the decision was improperly made and I go
for reversing it. Judge Douglas is furious against those who go for
reversing a decision. But he is for legislating it out of all force while
the law itself stands. I repeat that there has never been so monstrous
a doctrine uttered from the mouth of a respectable man.
I suppose most of us (I know it of myself) believe that the people of
the Southern States are entitled to a Congressional Fugitive Slave law
—that is a right fixed in the Constitution. But it cannot be made
available to them without Congressional legislation. In the Judge’s
language, it is a “barren right” which needs legislation before it can
become efficient and valuable to the persons to whom it is
guarantied. And as the right is Constitutional I agree that the
legislation shall be granted to it—and that not that we like the
institution of slavery. We profess to have no taste for running and
catching niggers—at least I profess no taste for that job at all. Why
then do I yield support to a Fugitive Slave law? Because I do not
understand that the Constitution, which guaranties that right, can be
supported without it. And if I believed that the right to hold a slave in
a Territory was equally fixed in the Constitution with the right to
reclaim fugitives, I should be bound to give it the legislation
necessary to support it. I say that no man can deny his obligation to
give the necessary legislation to support slavery in a Territory, who
believes it is a Constitutional right to have it there. No man can, who
does not give the Abolitionists an argument to deny the obligation
enjoined by the Constitution to enact a Fugitive Slave law. Try it now.
It is the strongest Abolition argument ever made. I say if that Dred
Scott decision is correct, then the right to hold slaves in a Territory is
equally a Constitutional right with the right of a slaveholder to have
his runaway returned. No one can show the distinction between
them. The one is express, so that we cannot deny it. The other is
construed to be in the Constitution, so that he who believes the
decision to be correct believes in the right. And the man who argues
that by unfriendly legislation, in spite of that Constitutional right,
slavery may be driven from the Territories, cannot avoid furnishing
an argument by which Abolitionists may deny the obligation to
return fugitives, and claim the power to pass laws unfriendly to the
right of the slaveholder to reclaim his fugitive. I do not know how
such an argument may strike a popular assembly like this, but I defy
any body to go before a body of men whose minds are educated to
estimating evidence and reasoning, and show that there is an iota of
difference between the Constitutional right to reclaim a fugitive, and
the Constitutional right to hold a slave, in a Territory, provided this
Dred Scott decision is correct. I defy any man to make an argument
that will justify unfriendly legislation to deprive a slaveholder of his
right to hold his slave in a Territory, that will not equally, in all its
length, breadth and thickness, furnish an argument for nullifying the
Fugitive Slave law. Why, there is not such an Abolitionist in the
nation as Douglas, after all.
 MR. DOUGLAS’S REPLY.

Mr. Lincoln has concluded his remarks by saying that there is not
such an Abolitionist as I am in all America. If he could make the
Abolitionists of Illinois believe that, he would not have much show
for the Senate. Let him make the Abolitionists believe the truth of
that statement and his political back is broken.
His first criticism upon me is the expression of his hope that the
war of the Administration will be prosecuted against me and the
Democratic party of this State with vigor. He wants that war
prosecuted with vigor; I have no doubt of it. His hopes of success,
and the hopes of his party depend solely upon it. They have no
chance of destroying the Democracy of this State except by the aid of
federal patronage. He has all the federal office-holders here as his
allies, running separate tickets against the Democracy to divide the
party, although the leaders all intend to vote directly the Abolition
ticket, and only leave the greenhorns to vote this separate ticket who
refuse to go into the Abolition camp. There is something really
refreshing in the thought that Mr. Lincoln is in favor of prosecuting
one war vigorously. It is the first war I ever knew him to be in favor
of prosecuting. It is the first war I ever knew him to believe to be just
or Constitutional. When the Mexican war was being waged, and the
American army was surrounded by the enemy in Mexico, he thought
that war was unconstitutional, unnecessary, and unjust. He thought
it was not commenced on the right spot.
When I made an incidental allusion of that kind in the joint
discussion over at Charleston some weeks ago, Lincoln, in replying,
said that I, Douglas, had charged him with voting against supplies for
the Mexican war, and then he reared up, full length, and swore that
he never voted against the supplies—that it was a slander—and
caught hold of Ficklin, who sat on the stand, and said, “Here, Ficklin,
tell the people that it is a lie.” Well, Ficklin, who had served in
Congress with him, stood up and told them all that he recollected
about it. It was that when George Ashmun, of Massachusetts,
brought forward a resolution declaring the war unconstitutional,
unnecessary, and unjust, that Lincoln had voted for it. “Yes,” said
Lincoln, “I did.” Thus he confessed that he voted that the war was
wrong, that our country was in the wrong, and consequently that the
Mexicans were in the right; but charged that I had slandered him by
saying that he voted against the supplies. I never charged him with
voting against the supplies in my life, because I knew that he was not
in Congress when they were voted. The war was commenced on the
13th day of May, 1846, and on that day we appropriated in Congress
ten millions of dollars and fifty thousand men to prosecute it. During
the same session we voted more men and more money, and at the
next session we voted more men and more money, so that by the
time Mr. Lincoln entered Congress we had enough men and enough
money to carry on the war, and had no occasion to vote for any more.
When he got into the House, being opposed to the war, and not being
able to stop the supplies, because they had all gone forward, all he
could do was to follow the lead of Corwin, and prove that the war was
not begun on the right spot, and that it was unconstitutional,
unnecessary, and wrong. Remember, too, that this he did after the
war had been begun. It is one thing to be opposed to the declaration
of a war, another and very different thing to take sides with the
enemy against your own country after the war has been commenced.
Our army was in Mexico at the time, many battles had been fought;
our citizens, who were defending the honor of their country’s flag,
were surrounded by the daggers, the guns and the poison of the
enemy. Then it was that Corwin made his speech in which he
declared that the American soldiers ought to be welcomed by the
Mexicans with bloody hands and hospitable graves; then it was that
Ashmun and Lincoln voted in the House of Representatives that the
war was unconstitutional and unjust; and Ashmun’s resolution,
Corwin’s speech, and Lincoln’s vote, were sent to Mexico and read at
the head of the Mexican army, to prove to them that there was a
Mexican party in the Congress of the United States who were doing
all in their power to aid them. That a man who takes sides with the
common enemy against his own country in time of war should
rejoice in a war being made on me now, is very natural. And in my
opinion, no other kind of a man would rejoice in it.
Mr. Lincoln has told you a great deal to-day about his being an old
line Clay Whig. Bear in mind that there are a great many old Clay
Whigs down in this region. It is more agreeable, therefore, for him to
talk about the old Clay Whig party than it is for him to talk
Abolitionism. We did not hear much about the old Clay Whig party
up in the Abolition districts. How much of an old line Henry Clay
Whig was he? Have you read General Singleton’s speech at
Jacksonville? You know that Gen. Singleton was, for twenty-five
years, the confidential friend of Henry Clay in Illinois, and he
testified that in 1847, when the Constitutional Convention of this
State was in session, the Whig members were invited to a Whig
caucus at the house of Mr. Lincoln’s brother-in-law, where Mr.
Lincoln proposed to throw Henry Clay overboard and take up Gen.
Taylor in his place, giving, as his reason, that if the Whigs did not
take up Gen. Taylor the Democrats would. Singleton testifies that
Lincoln, in that speech, urged, as another reason for throwing Henry
Clay overboard, that the Whigs had fought long enough for principle
and ought to begin to fight for success. Singleton also testifies that
Lincoln’s speech did have the effect of cutting Clay’s throat, and that
he (Singleton) and others withdrew from the caucus in indignation.
He further states that when they got to Philadelphia to attend the
National Convention of the Whig party, that Lincoln was there, the
bitter and deadly enemy of Clay, and that he tried to keep him
(Singleton) out of the Convention because he insisted on voting for
Clay, and Lincoln was determined to have Taylor. Singleton says that
Lincoln rejoiced with very great joy when he found the mangled
remains of the murdered Whig statesman lying cold before him.
Now, Mr. Lincoln tells you that he is an old line Clay Whig! Gen.
Singleton testifies to the facts I have narrated, in a public speech
which has been printed and circulated broadcast over the State for
weeks, yet not a lisp have we heard from Mr. Lincoln on the subject,
except that he is an old Clay Whig.
What part of Henry Clay’s policy did Lincoln ever advocate? He
was in Congress in 1848–9, when the Wilmot proviso warfare
disturbed the peace and harmony of the country, until it shook the
foundation of the Republic from its centre to its circumference. It
was that agitation that brought Clay forth from his retirement at
Ashland again to occupy his seat in the Senate of the United States,
to see if he could not, by his great wisdom and experience, and the
renown of his name, do something to restore peace and quiet to a
disturbed country. Who got up that sectional strife that Clay had to
be called upon to quell? I have heard Lincoln boast that he voted
forty-two times for the Wilmot proviso, and that he would have voted
as many times more if he could. Lincoln is the man, in connection
with Seward, Chase, Giddings, and other Abolitionists, who got up
that strife that I helped Clay to put down. Henry Clay came back to
the Senate in 1849, and saw that he must do something to restore
peace to the country. The Union Whigs and the Union Democrats
welcomed him the moment he arrived, as the man for the occasion.
We believed that he, of all men on earth, had been preserved by
Divine Providence to guide us out of our difficulties, and we
Democrats rallied under Clay then, as you Whigs in nullification time
rallied under the banner of old Jackson, forgetting party when the
country was in danger, in order that we might have a country first,
and parties afterward.
And this reminds me that Mr. Lincoln told you that the slavery
question was the only thing that ever disturbed the peace and
harmony of the Union. Did not nullification once raise its head and
disturb the peace of this Union in 1832? Was that the slavery
question, Mr. Lincoln? Did not disunion raise its monster head
during the last war with Great Britain? Was that the slavery question,
Mr. Lincoln? The peace of this country has been disturbed three
times, once during the war with Great Britain, once on the tariff
question, and once on the slavery question. His argument, therefore,
that slavery is the only question that has ever created dissension in
the Union falls to the ground. It is true that agitators are enabled
now to use this slavery question for the purpose of sectional strife.
He admits that in regard to all things else, the principle that I
advocate, making each State and Territory free to decide for itself,
ought to prevail. He instances the cranberry laws, and the oyster
laws, and he might have gone through the whole list with the same
effect. I say that all these laws are local and domestic, and that local
and domestic concerns should be left to each State and each
Territory to manage for itself. If agitators would acquiesce in that
principle, there never would be any danger to the peace and harmony
of the Union.
Mr. Lincoln tries to avoid the main issue by attacking the truth of
my proposition, that our fathers made this Government divided into
free and slave States, recognizing the right of each to decide all its
local questions for itself. Did they not thus make it? It is true that
they did not establish slavery in any of the States, or abolish it in any
of them; but finding thirteen States, twelve of which were slave and
one free, they agreed to form a government uniting them together, as
they stood divided into free and slave States, and to guaranty forever
to each State the right to do as it pleased on the slavery question.
Having thus made the government, and conferred this right upon
each State forever, I assert that this Government can exist as they
made it, divided into free and slave States, if any one State chooses to
retain slavery. He says that he looks forward to a time when slavery
shall be abolished everywhere. I look forward to a time when each
State shall be allowed to do as it pleases. If it chooses to keep slavery
forever, it is not my business, but its own; if it chooses to abolish
slavery, it is its own business—not mine. I care more for the great
principle of self-government, the right of the people to rule, than I do
for all the negroes in Christendom. I would not endanger the
perpetuity of this Union, I would not blot out the great inalienable
rights of the white men for all the negroes that ever existed. Hence, I
say, let us maintain this Government on the principles that our
fathers made it, recognizing the right of each State to keep slavery as
long as its people determine, or to abolish it when they please. But
Mr. Lincoln says that when our fathers made this Government they
did not look forward to the state of things now existing; and
therefore he thinks the doctrine was wrong; and he quotes Brooks, of
South Carolina, to prove that our fathers then thought that probably
slavery would be abolished by each State acting for itself before this
time. Suppose they did; suppose they did not foresee what has
occurred,—does that change the principles of our Government? They
did not probably foresee the telegraph that transmits intelligence by
lightning, nor did they foresee the railroads that now form the bonds
of union between the different States, or the thousand mechanical
inventions that have elevated mankind. But do these things change
the principles of the Government? Our fathers, I say, made this
Government on the principle of the right of each State to do as it
pleases in its own domestic affairs, subject to the Constitution, and
allowed the people of each to apply to every new change of
circumstances such remedy as they may see fit to improve their
condition. This right they have for all time to come.
Mr. Lincoln went on to tell you that he did not at all desire to
interfere with slavery in the States where it exists, nor does his party.
I expected him to say that down here. Let me ask him then how he
expects to put slavery in the course of ultimate extinction every
where, if he does not intend to interfere with it in the States where it
exists? He says that he will prohibit it in all the Territories, and the
inference is, then, that unless they make free States out of them he
will keep them out of the Union; for, mark you, he did not say
whether or not he would vote to admit Kansas with slavery or not, as
her people might apply (he forgot that as usual, etc.); he did not say
whether or not he was in favor of bringing the Territories now in
existence into the Union on the principle of Clay’s Compromise
measures on the slavery question. I told you that he would not. His
idea is that he will prohibit slavery in all the Territories and thus
force them all to become free States, surrounding the slave States
with a cordon of free States and hemming them in, keeping the
slaves confined to their present limits whilst they go on multiplying
until the soil on which they live will no longer feed them, and he will
thus be able to put slavery in a course of ultimate extinction by
starvation. He will extinguish slavery in the Southern States as the
French general did the Algerines when he smoked them out. He is
going to extinguish slavery by surrounding the slave States, hemming
in the slaves, and starving them out of existence, as you smoke a fox
out of his hole. He intends to do that in the name of humanity and
Christianity, in order that we may get rid of the terrible crime and sin
entailed upon our fathers of holding slaves. Mr. Lincoln makes out
that line of policy, and appeals to the moral sense of justice and to
the Christian feeling of the community to sustain him. He says that
any man who holds to the contrary doctrine is in the position of the
king who claimed to govern by divine right. Let us examine for a
moment and see what principle it was that overthrew the Divine
right of George the Third to govern us. Did not these colonies rebel
because the British parliament had no right to pass laws concerning
our property and domestic and private institutions without our
consent? We demanded that the British Government should not pass
such laws unless they gave us representation in the body passing
them,—and this the British government insisting on doing,—we went
to war, on the principle that the Home Government should not
control and govern distant colonies without giving them
representation. Now, Mr. Lincoln proposes to govern the Territories
without giving them a representation, and calls on Congress to pass
laws controlling their property and domestic concerns without their
consent and against their will. Thus, he asserts for his party the
identical principle asserted by George III. and the Tories of the
Revolution.
I ask you to look into these things, and then tell me whether the
Democracy or the Abolitionists are right. I hold that the people of a
Territory, like those of a State (I use the language of Mr. Buchanan in
his letter of acceptance), have the right to decide for themselves
whether slavery shall or shall not exist within their limits. The point
upon which Chief Justice Taney expresses his opinion is simply this,
that slaves being property, stand on an equal footing with other
property, and consequently that the owner has the same right to
carry that property into a Territory that he has any other, subject to
the same conditions. Suppose that one of your merchants was to take
fifty or one hundred thousand dollars’ worth of liquors to Kansas. He
has a right to go there under that decision, but when he gets there he
finds the Maine liquor law in force, and what can he do with his
property after he gets it there? He cannot sell it, he cannot use it, it is
subject to the local law, and that law is against him, and the best
thing he can do with it is to bring it back into Missouri or Illinois and
sell it. If you take negroes to Kansas, as Col. Jeff. Davis said in his
Bangor speech, from which I have quoted to-day, you must take
them there subject to the local law. If the people want the institution
of slavery they will protect and encourage it; but if they do not want
it they will withhold that protection, and the absence of local
legislation protecting slavery excludes it as completely as a positive
prohibition. You slaveholders of Missouri might as well understand
what you know practically, that you cannot carry slavery where the
people do not want it. All you have a right to ask is that the people
shall do as they please; if they want slavery let them have it; if they
do not want it, allow them to refuse to encourage it.
My friends, if, as I have said before, we will only live up to this
great fundamental principle, there will be peace between the North
and the South. Mr. Lincoln admits that under the Constitution on all
domestic questions, except slavery, we ought not to interfere with the
people of each State. What right have we to interfere with slavery any
more than we have to interfere with any other question? He says that
this slavery question is now the bone of contention. Why? Simply
because agitators have combined in all the free States to make war
upon it. Suppose the agitators in the States should combine in one-
half of the Union to make war upon the railroad system of the other
half? They would thus be driven to the same sectional strife. Suppose
one section makes war upon any other peculiar institution of the
opposite section and the same strife is produced. The only remedy
and safety is that we shall stand by the Constitution as our fathers
made it, obey the laws as they are passed, while they stand the
proper test and sustain the decisions of the Supreme Court and the
constituted authorities.
Speech of Hon. Jefferson Davis, Senator from
Mississippi,
 On retiring from the United States Senate. Delivered in the Senate
Chamber January 21, 1861.
I rise, Mr. President, for the purpose of announcing to the Senate
that I have satisfactory evidence that the State of Mississippi, by a
solemn ordinance of her people in convention assembled, has
declared her separation from the United States. Under these
circumstances, of course my functions are terminated here. It has
seemed to me proper, however, that I should appear in the Senate to
announce that fact to my associates, and I will say but very little
more. The occasion does not invite me to go into argument; and my
physical condition would not permit me to do so if it were otherwise,
and yet it seems to become me to say something on the part of the
State I here represent, on an occasion so solemn as this. It is known
to Senators who have served with me here, that I have for many years
advocated as an essential attribute of State sovereignty, the right of a
State to secede from the Union. Therefore, if I had not believed there
was justifiable cause; if I had thought that Mississippi was acting
without sufficient provocation, or without an existing necessity, I
should still, under my theory of the government, because of my
allegiance to the State of which I am a citizen, have been bound by
her action. I, however, may be permitted to say that I do think she
has justifiable cause and I approve of her act. I conferred with her
people before that act was taken, counseled them then that if the
state of things which they apprehended should exist when the
convention met, they should take the action which they have now
adopted.
I hope none who hear me will confound this expression of mine
with the advocacy of the right of a State to remain in the Union and
to disregard its constitutional obligations by the nullification of the
law. Such is not my theory. Nullification and secession so often
confounded are indeed antagonistic principles. Nullification is a
remedy which it is sought to apply within the Union and against the
agents of the States. It is only to be justified when the agent has
violated his constitutional obligation, and a State, assuming to judge
for itself denies the right of the agent thus to act and appeals to the
other States of the Union for a decision; but when the States
themselves and when the people of the States have so acted as to
convince us that they will not regard our constitutional rights, then,
and then for the first time, arises the doctrine of secession in its
practical application.
A great man who now reposes with his fathers and who has been
often arraigned for a want of fealty to the Union advocated the
doctrine of Nullification because it preserved the Union. It was
because of his deep-seated attachment to the Union, his
determination to find some remedy for existing ills short of the
severance of the ties which bound South Carolina to the other States,
that Mr. Calhoun advocated the doctrine of nullification, which he
proclaimed to be peaceful, to be within the limits of State power, not
to disturb the Union, but only to be a means of bringing the agent
before the tribunal of the States for their judgment.
Secession belongs to a different class of remedies. It is to be
justified upon the basis that the States are sovereign. There was a
time when none denied it. I hope the time may come again when a
better comprehension of the theory of our government and the
inalienable rights of the people of the States will prevent any one
from denying that each State is a sovereign, and thus may reclaim
the grants which it has made to any agent whomsoever.
I therefore say I concur in the action of the people of Mississippi,
believing it to be necessary and proper, and should have been bound
by their action if my belief had been otherwise; and this brings me at
the important point which I wish, on this last occasion, to present to
the Senate. It is by this confounding of nullification and secession
that the name of a great man whose ashes now mingle with his
mother earth, has been invoked to justify coercion against a seceding
state. The phrase “to execute the laws” was an expression which
General Jackson applied to the case of a State refusing to obey the
laws while yet a member of the Union. That is not the case which is
now presented. The laws are to be executed over the United States,
and upon the people of the United States. They have no relation with
any foreign country. It is a perversion of terms, at least it is a great
misapprehension of the case, which cites that expression for
application to a State which has withdrawn from the Union. You may
make war on a foreign State. If it be the purpose of gentlemen they
may make war against a State which has withdrawn from the Union;
but there are no laws of the United States to be executed within the
limits of a Seceded State. A State finding herself in the condition in
which Mississippi has judged she is; in which her safety requires that
she should provide for the maintenance of her rights out of the
Union, surrenders all the benefits, (and they are known to be many)
deprives herself of the advantages, (they are known to be great)
severs all the ties of affection (and they are close and enduring)
which have bound her to the Union; and thus divesting herself of
every benefit, taking upon herself every burden, she claims to be
exempt from any power to execute the laws of the United States
within her limits.
I well remember an occasion when Massachusetts was arraigned
before the Bar of the Senate, and when then the doctrine of coercion
was rife, and to be applied against her because of the rescue of a
fugitive slave in Boston. My opinion then was the same as it is now.
Not in the spirit of egotism, but to show that I am not influenced in
my opinion because the case is my own, I refer to that time and that
occasion as containing the opinion which I then entertained and on
which my present conduct is based. I then said, if Massachusetts,
following her through a stated line of conduct, chooses to take the
last step which separates her from the Union, it is her right to go, and
I will neither vote one dollar nor one man to coerce her back; but will
say to her, “God speed,” in memory of the kind associations which
once existed between her and the other States. It has been a
conviction of pressing necessity, it has been a belief that we are to be
deprived in the Union, of the rights which our fathers bequeathed to
us, which has brought Mississippi into her present decision. She has
heard proclaimed the theory that all men are created free and equal,
and this made the basis of an attack on her social institutions; and
the sacred Declaration of Independence has been invoked to
maintain the position of the equality of the races. That Declaration of
Independence is to be construed by the circumstances and purposes
for which it was made. The communities were declaring their
independence; the people of those communities were asserting that
no man was born—to use the language of Mr. Jefferson—booted and
spurred to ride over the rest of mankind; that men were created
equal—meaning the men of the political community; that there was
no divine right to rule; that no man inherited the right to govern;
that there were no classes by which power and place descended to
families, but that all stations were equally within the grasp of each
member of the body politic. These were the great principles they
announced; these were the purposes for which they made their
declaration; these were the ends to which their enunciation was
directed. They have no reference to the slave; else, how happened it
that among the items of arraignment made against George III. was
that he endeavored to do just what the North has been endeavoring
of late to do—to stir up insurrection among our slaves? Had the
Declaration announced that the negroes were free and equal how was
it the Prince was to be arraigned for stirring up insurrection among
them? And how was this to be enumerated among the high crimes
which caused the colonies to sever their connection with the mother
country? When our constitution was formed, the same idea was
rendered more palpable, for there we find provision made for that
very class of persons as property; they were not put upon the footing
of equality with white men—not even upon that of paupers and
convicts, but so far as representation was concerned, were
discriminated against as a lower caste only to be represented in a
numerical proportion of three-fifths.
Then, Senators, we recur to the compact which binds us together;
we recur to the principles upon which our government was founded;
and when you deny them, and when you deny to us, the right to
withdraw from a government which thus prevented, threatens to be
destructive of our rights, we but tread in the path of our fathers when
we proclaim our independence, and take the hazard. This is done not
in hostility to others, not to injure any section of the country, not
even for our own pecuniary benefit, but from the high and solemn
motive of defending and protecting the rights we inherited, and
which it is our sacred duty to transmit unshorn to our children.
I find in myself, perhaps, a type of the general feeling of my
constituents towards yours. I am sure I feel no hostility to you,
Senators from the North. I am sure there is not one of you, whatever
sharp discussion there may have been between us, to whom I cannot
now say, in the presence of my God, “I wish you well,” and such, I am
sure, is the feeling of the people whom I represent towards those
whom you represent. I therefore feel that I but express their desire
when I say I hope, and they hope for peaceful relations with you,
though we must part. They may be mutually beneficial to us in the