Assessment OverviewAssessment Task Description Due Date Weighting

Assessment OverviewAssessment Task Description Due Date Weighting

1 Case study assignment (1000 words or so) End of teaching week 5

25%

2 An Introductory problem solving assignment on statutory interpretation (1000-1200 words) End of teaching week 8 25%

3 Problem solving assignment on statutory interpretation (advanced)(2000 words or so) End of teaching week 12 50%

The due date is the LAST date an assessment item can be submitted without a late penalty being applied. There is nothing preventing earlier submission if the work is completed.

Assessment 1Attached Files:

Assessment One LWZ115.docxAssessment One LWZ115.docx - Alternative Formats(12.61 KB)

rubric.docxrubric.docx - Alternative Formats(12.936 KB)

Legal Systems - Case note

Due date: 11.59pm Sunday 25 September

Value: 25%

Details of each of the assessments and assessment criteria for this unit are located in the Unit Information.

Criteria Description Mark To gain high marks for this section:

1: Content Describe and demonstrate understanding of the relevant law 10 Demonstrate an accurate and comprehensive knowledge of the relevant law, and a high ability to analyse and apply it and other relevant material to answer the question; demonstrate originality or flair; work is interesting, well read or scholarly.

2: Style Write using correct citation and referencing, free from plagiarism 5 Use correct AGLC citation and referencing for all relevant points.

3: Language Style and structure 10 Writing logically structured using subheadings. Sentence and paragraph length assist readability. Language is clear, concise and precise. Writing free of spelling errors and grammatical mistakes.

Assessment 2Attached Files:

Assignment question.docxAssignment question.docx - Alternative Formats(16.205 KB)

Legal Systems - An Introductory statutory interpretation problem solving exercise

Due date: 11.59pm Sunday 23 October

Value: 25%

Details of each of the assessments and assessment criteria for this unit are located in the Unit Information.

*The following Rubric is a guide only: students will not be able to receive a mark to each criteria.

Criteria Description Mark To gain high marks for this section:

1: Content Describe and demonstrate understanding of the relevant law 10 Demonstrate an accurate and comprehensive knowledge of the relevant law, and a high ability to analyse and apply it and other relevant material to answer the question; demonstrate originality or flair; work is interesting, well read or scholarly.

2: Referencing Write using correct citation and referencing, free from plagiarism 5 Use correct AGLC citation and referencing for all relevant points. Back up all discussion with reference to relevant law.

3: Language Style and Structure 5 Writing logically structured using subheadings. Sentence and paragraph length assist readability. Language is clear, concise and precise. Writing free of spelling errors and grammatical mistakes.

Assessment 3:Attached Files:

Assignment 3 final.docxAssignment 3 final.docx - Alternative Formats(17.465 KB)

An advanced Statutory Interpretation Problem

Due date: 11.59pm Sunday 20 November 2022

Value: 50%

Length: 2000 words or so

Presentation: You must comply with the Australian Guide to Legal Citation. Use a logical structure that follows the IRAC method as provided in the learning materials.

BONUS LECTURE TWELVE NOTES:

-

LECTURE ELEVEN NOTES:

- Can we actually put down 'literal approach is used here', 'ejusdem generis' presumption is created here'...

- If you put down literal approach is used here is not necessarily answering the question. A better answer would be its advocated that the literal approach should be used here. Or it is submitted that the literal approach is the most appropriate approach to use and then explain.

- These words suggest that there may be an application for ejusdem generis.

- Substantive sections of the act: of substance to the situation, why we are in court, that create a right or responsibility.

- Look at example questions, especially Bobs example where tips about giving authority are given.

- For a legal term need statute or case definitions not legal dictionary definitions.

- Only use the dictionary for non-legal terms, and for a literal approach.

- Context: words must be read in their context: R v Wilson; Ex Parte Kisch (1934).

- Act read as a whole: Scott v Federal Commissioner of Taxation (1966)

- Considered at first instance, not merely at some later stage: CIC Insurance v Bankstown Football Club (1997), K&S Freighters Pty Ltd v Gordon & Gotch (1985).

- Literal Approach: Engineers Case.

- Dictionary: State Chamber of Commerce and Industry v Commonwealth (1987).

- Golden Rule: Adler v George [1964].

- The three steps of application.

- Examples of Golden rule v purposive approach.

- Golden rule: A) must not is missing, C) wording needs to be assessed, supposed to be use not is.

- Purposive: D), B) not absurd, just difficult to interpret.

- Ambiguity does not mean an absurdity.

- Acts Interpretation Act s15AA

- Acts Interpretation Act s62A

- Purposive approach at common law: Mills v Meeking (1990) Mischief Rule.

- CIC Insurance Ltd v Bankstown Football Club Ltd (1997)

- Mischief rule Heydons Case (1584)

- Errors and the purposive approach: Bermingham v Corrective Services Commission of New South Wales (1988). Three step rule.

- The modern approach: Project Blue Sky Inc v Australian Broadcasting Authority (1998).

- Look at literal meaning first, grammatical meaning, context, consequences, then purpose invoked.

- Extrinsic materials; CIC Insurance Ltd v Bankstown Football Club Ltd (1997)

- Second Reading Speech etc. But only if they help your argument.

- s15AB (Acts Interpretation Act Cth), s62B (Interpretation Act NT).

- Provide authority and how you are using them.

- Re Bolton; Ex Parte Beane (1987), words of minister not substituted for the text of the law.

- Do not use extrinsic material to raise ambiguity.

- Contextual Presumptions

- All words carry meaning (Project Blue Sky)

- Noscitur a sociis; known from its associates.

- Ejusdem generis; of the same kind (R v Ann Harris).

- Expressio unius exclusio alterius; express reference to one thing and excludes others (Salemi v MacKellar).

- Generalia specialibus non derogant; specific prevails over general (White v Mason).

- Principles of Legality, strong presumptions.

- Presumption against retrospectivity where rights and liabilities affected: DPP v Keating (2013).

- Presumption legislation does not interfere with common law rights.

- Human rights common law presumptions.

- Freedom of speech; Evans v State of New South Wales (2008)

- Right to liberty; Al-Kateb v Godwin (2004).

- Right of access to the courts; Plaintiff s157/2002 (2003).

- Right against self-incrimination; Pyneboard Pty Ltd v Trade Practices Commission (1983). *

- Right to legal professional privilege; Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission. *

- Penal provisions will be construed narrowly Beckwith v R (1976).

- To resolve a case in favour of the accused. Example attempting to possess narcotics case.

- Presumption that parliament intends to legislate in conformity with Australias obligations under international law; Minister for Immigration and Ethnic Affairs v Teoh (1995).

- Putting into practice (suggested method checklist).

LECTURE TEN NOTES:

- Principle of legality: Presumption that penal provisions will be construed in favour of the accused; is a last resort defence to defend the accused.

- Presumption that legislation does not have extra territorial effect.

- Commit of nations; a coherence of laws amongst nations.

- The Crown is her majesty, or the commonwealth, the executive arm of the government (ministerial side of things), bureaucrats.

- The Crown acting more in a corporate manner results in them being bound by more and more legislation.

- Non-originalist approach is modernised, means legislation is always speaking and evolving with the times.

- R v Brislan; federal offence of not having a radio licence. Chose to apply a non-originalist approach, and fit radio in to other like services which did not exist at the time of the original constitution.

- Broad enough to cover futuristic changes.

- Street v Queensland Bar Association (1989) s 117. Street wanted to practice in Queensland, they had a provision saying you had to practice a majority in Queensland, he stated that this was discrimination under s117. Indirect discrimination. Court ruled that yes that provision did discriminate, however s117 should be interpreted in a non-originalist approach.

- DOGS Case is originalist approach to s116. Argued that providing financial funding to religious schools is not okay.

- Court used mischief rule, this provision was regarding setting up a state church or state religion, not about funding education.

- Cheatle v R; wanted a unanimous verdict with a jury in accordance with s80 as it was a commonwealth offence. High Court agreed, as per originalist approach. Intention to have a trial by jury and reach a unanimous verdict, a constitutional guarantee.

- Sue v Hill; concerned the validity of an election. Respondent, a one nation candidate, she was sill a citizen of the UK. S44 applied. Applies to dual citizens as well.

- Defendant argued originalist approach should be given as in the 1900s, the UK was not considered a foreign power.

- Court decided against this and went with a non-originalist approach.

- ACT Marriage Case.

- Commonwealth law overrides state law.

- ACT argued the originalist approach, which they argued would not have contemplated same sex marriage.

- Marriage act was intended to cover the field.

- Acquisition of property on just terms; give adequate compensation.

- Dickfoss v DPP & Ors [2012]; plain packaging on tobacco reduces sales, court held no that this is in regard to propriety value not intellectual property.

- Nationwide News Pty Ltd v Wills (1992), involved legislation that made it an offence to bring Industrial Relations Commission into disrepute. The media company alleged that this was an infringement.

- 1. Does it in fact infringe on free political communication.

- 2. Is it reasonably adapted to a legitimate purpose?

- Cannot advocate violence and say it is political communication.

- s7 and s24, implied right to vote.

- However, there are restrictions, e.g.; over 18s, non-incarcerated people, mental capacity.

- In 1900, it would have been rich white men.

LECTURE NINE NOTES:

- Incorporate common law presumptions into Assignment 2.

- The principle of legality.

- Potter v Minahan (1908).

- Bropho v Western Australia (1990).

- Because in Australia human rights are not part of the constitution, the acts can be overridden and challenged.

- Standing orders of parliament can be suspended or changed.

- Attorney-General for South Australia v Corporation of the City of Adelaide (2013).

- Presumption against retrospectivity (looking back).

- R v Kidman (1915).

- Conviction of fraud case, constitutional for the fraud act to act retrospectively.

- Polyukhovich v Commonwealth (1991).

- Charged with war crimes, prior to 1945, court can create retrospective criminal offences.

- DPP v Keating (2013).

- Social security legislation, people had been convicted of not declaring their earnings to Centrelink, did not criminalise omission in conjunction with the criminal code. They put in legislation that added the backdating clause. Court said parliament created a statutory fiction.

- Rodway v R (1990).

- Sexual offence case, after he was charged but before his court case the laws in his jurisdiction changed, to do with procedural judges warning to the jury. Held, not the case.

- Examples:

- Coco v R (1994).

- Invasion of Privacy Act (QLD).

- Freedom of speech and expression: Evans v State of New South Wales (2008).

- s7(1)(b) Youth Day Act would generally be considered unconstitutional, so considered invalid.

- Al-Kateb v Godwin (2004) example.

- Born in refugee camp in Kuwait of Palestinian heritage, came on a boat to Australia, did not have citizenship considered a state-less person. Spent years locked up in detention centre, asked to be sent somewhere else as his citizenship was denied.

- 4:3, majority decided yes that Al-Kateb must be kept in indefinite detention.

- Plaintiff s157/2002 v Commonwealth (2003).

- Self-incrimination pleading the 5th amendment aka a right to silence: Crafter v Kelly [1941].

- Pyneboard Pty Ltd v Trade Practices Commission (1983).

- Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002).

- What is legal professional privilege; a lawyer cannot testify against their client is a part of it, what the client tells their lawyer is confidential.

- Penal provision: Beckwith v R (1976). Something that issues a penalty, codified stuff, fines, and imprisonment etc.

- Beckwith, attempting to possess narcotics. Not convicted.

- Purposive approach generally cannot be used to extend criminal liability.

- Do we need a bill of rights in our constitution?

- Could it actually lead to more court cases, rather than less?

LECTURE EIGHT NOTES:

- Citation mistakes: case name not italicised, the year does not necessarily need to be there, only need CRC citation in footnotes the other ones can be left out, no jurisdiction for the Act and needs to be italicised, not the high court, footnote 2 does not need to be there as it is in the text, no reference for the constitution, the convention also needs to be cited as per the AGLC.

- Check the next slide for corrected errors.

- Extrinsic materials:

- Basically, a purposive approach, s15AB Acts Interpretation Act (Cth).

- 1) Reference the second reading speech if it supports your argument.

- 3) It has to be similar to the interpretation to the rest of the act, it cannot be outside the scope. If the act is very clear courts may not consider extrinsic material if it is contrary to the intention. In NT, this section is not explicitly stated but used at their own discretion.

- Do not use extrinsic material if they do not assist in your argument; do not support intention of the act, should adhere to literal meaning, should not be considered as it will prolong or over complicate the matter.

- Can use them to confirm the natural and ordinary meaning: NAQF v Minister for Immigration & Multicultural & indigenous Affairs [2003].

- Deeming provision.

- The appellant argued that the extrinsic material should not be applied as it is overcomplicating the issue.

- To determine the meaning: Parrett v Secretary, Department of Family and Community Services (2002).

- Farmers application under Farmers Assistance Act.

- To assist farmers who were financially suffering due to the drought.

- An ambiguity was created. Read Madgwick Js quote. Courts created a two-part test: to identify ambiguity, then refer to extrinsic materials to resolve it.

- Repatriation Commission v Vietnam Veterans Association of Australia NSW Branch (2000).

- The Ombudsman v Commissioner of Police (1987).

- Re Shingles and Director-General of Social Security (1984), what does manifestly absurd mean, that it is unreasonable.

- Constant care and attention, absurd to provide care all the time.

- Limitations of the use of extrinsic materials: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009).

- Re Bolton; Ex Parte Beane (1987).

- Do not over state the importance of extrinsic material.

- CIC Insurance Ltd v Bankstown Football Club (1997).

- Give two examples: second reading speech, treaty etc.

- 3 ways: s62B of the Interpretation Act or s15AB of the Acts Interpretation Act.

- Difference between common law and s15AB/s62B approach to extrinsic materials: used to ascertain a mischief in common law, statutory approach is much stricter and more specific.

- How not to use extrinsic materials: to create ambiguity, when the act is clear on its face.

- International Agreements:

- s15AB(2)(d) can be considered as extrinsic materials.

- E.g. Migration Act, International Arbitration Act, Racial Discrimination Act.

- Contextual presumptions.

- Minister for Immigration and Ethnic Affairs v Teoh (1995).

- Teoh applied for residency, before the decision had been made, he was convicted for drug importation offences, decision was made to deport him after the sentence was served, he was a father and step father, best interests of children had to be taken in to consideration.

- Putting into practice example.

- Sample Week 8 Answers, comparing good and bad.

- Bad: not set out in an IRAC format, no legal reasoning just a statement, do not say in my opinion, the act and offences are not clear, there is no law identified, looks to another case for the definition of a word, uses extrinsic material to create ambiguity, makes no reference to the act at hand, no statutory interpretation either.

- Good: follows IRAC; issue, sub-issues, rule, application, conclusion. Refers to the Interpretation Act and the relevant section of the Act in question.

- You need to cover all your bases, do not just say that something does not apply.

LECTURE SEVEN NOTES:

- R v Wilson; Ex Parte Kisch: natural and ordinary meaning. Kisch was an activist before the war, Jewish journalist, speaking out against the Nazis was invited to speak in Australia. He was a communist, which seemed radical and threatening at the time. Arrived on passenger ship in Sydney, they tried to stop him from getting off the ship, he jumped off the side and broke his leg, taken to the police station and questioned by an immigration officer. Directed to write out a passage in Gaelic, in conjunction with s3 of the act (immigration restriction act). Question is about legality of the event.

- Statutory interpretation issue: it is absurd and unfair. Was Scottish Gaelic a European language under this provision? Is a person who is unable to write in Gaelic intended to be a prohibited person? The language had to have political prominence in Europe. Gaelic is not really written.

- In this case it was decided it was not a European language.

- K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985).

- s133 Motor Vehicles Act 1959; you cannot contract out the negligence of another person.

- Freight vehicle, negligently driving, caused damages to the freight. Does it cover third party insurance, or goods being freighted?

- Minority: should only apply to third party insurance liability.

- Majority: focused on words of the provision any right to claim damages, what these words meant.

- Headings can be a part of the context of the act.

- Legal presumption examples: assumptions. Presumption of innocence.

- Contextual presumptions are highly rebuttable.

- Each part of the provision must have some kind of effect.

- Words have to have consistent meaning throughout an act.

- Legislation is consistently updated to the modern context. For example; writing and a letter also includes emails.

- Inflict; modern meaning to cover intentional HIV infection too. Aubrey v The Queen (2017).

- Syntactical presumptions; very easily rebuttable.

- Ejusdem generis

- Wound means to injure the skin and draw blood, does this apply to biting? Apparently not.

- Other goods, explosives, weapons etc not just any random thing.

- Other property; includes apartment, excludes a car.

- Other vehicle; includes a truck but excludes a boat.

- Stewart v Lizars [1965]; no category created; specific words created were so broad it was meant to include anything.

- Allen v Emmerson [1944]; only one specific word preceding so it is too general.

- Practice ejusdem generis examples.

- E.g. 1; specific words are commercial sale and lease, genus of those words they are agreements about real property, other agreement should be read down to be about property.

- Expressio unius est exclusion alterius.

- An alien: resided in Australia without citizenship.

- Prohibited immigrant: not here in a lawful sense.

- s18 contradicted 12, only applicable to aliens not prohibited immigrants.

- Hypothetical Example: professional members, do not need to be Australian citizens is the expressio unius.

- A weak presumption; use it with care, can be manipulated, needs to be considered in some further context, subject to a purposive interpretation.

- Generalia specialibus non derogant. Specific over general provisions.

- s317 is specific provision.

- Deeming provisions are interpreted strictly. E.g. certain number of drugs, the statute deems them to be for trafficking purposes.

- EXAMPLES:

- 1) Presumption that legislation is always speaking, so it would apply to electronic signatures as well as actual written signatures.

- 2) Generalia specialibus non derogant.

- 3) All words carry meaning.

- 4) Ejusdem generis.

- How can you override any of the above presumptions: Stewart v Lizars, if it conflicts with the purpose, by the genus classification to what type of stalls etc.

LECTURE SIX NOTES:

- The assignment is only 1,000 words so just stick to the basics.

- Split the issues up, do not lump them all together.

- Real case example: purposive approach: incurred expenses what does this mean in a literal sense, what they spent to recover for the clean-up. The expenses associated with the spillage.

- What is the purpose of this provision? The phrase was given a broader application.

- Pari Materia, deals with the same or very similar subject matter, is rarely used, and will not apply to the assignment.

- Limit the amount of research you do outside of the course materials, it may confuse you.

- It is only about applying the basic principles.

- s22(2) The SA Acts Interpretation Act 1915, why is it different?

- The accused cannot get in trouble for a badly worded act, they should be able to read it and understand it plainly. Makes it fair.

- Mills v Meeking (1990), considered the Victorian interpretation Act. A drink driving case, given two breath tests over the limit, for technical reasons he argued only the first applied. He was charged with s49(1)(f). He argued he should have been tried under (1)(b) instead. He actually won the case, (1)(f) applied if you could not do (1)(b).

- Criminal law, double jeopardy, can only be charged once for the one offence.

- So, this broadens the application of the Purpose approach beyond the boundaries of Heydons case. This one is more preferable to the Heydon case.

- Bermingham v Corrective Services Commission of New South Wales (1988).

- Re: sentence of imprisonment. Prisoners to not suffer detriment during transfer, the non-parole period to not be transferred was an absurdity.

- Limitations: Avel v Attorney General of NSW (1987) in regard to gaming legislation.

- Carr v Western Australian (2007): Carr arrested on suspicion for committing a bank robbery, asked to be interviewed by the police, he refused and asked for his lawyer, they took him in to a back room which was under constant video surveillance, he started to speak about his part in the robbery, his lawyer then arrived.

- What is an interview, questions, and answers, under caution, does the person need to be aware of the interview recording. 6:1 majority held, interview was given a broad definition, means any interaction and discussion, ensure the integrity of the record, police could not manufacture admissions. Held to be admissible.

- Justice Kirby disagreed, partly to ensure integrity of the record, and lends some sort of formality to the interaction. Not a friendly chat. Also protecting the rights of an accused person, their rights are also respected, especially when they have requested a lawyer.

- What is the purpose of the provision.

- Look at her IRAC example, very helpful for the assignment.

- Bold is the Issue, Green is the Rule, Blue is the application and the Purple is the conclusion.

- Brenda; can use different legislation to fight her case, such as the Discrimination Act.

- (b) is the live issue, the others are issues too, but this is the main one.

- Mention facts in relation to application, but do not restate the material facts.

- Heydon (Purposive), Engineers (Literal) etc. Section of Interpretation Act that says look at the purpose.

- Rule section needs references, application and conclusion do not, as they are based on the question facts.

- Do not define parts of the material facts, like shop, bakery etc.

- Dont go into council regulations etc.

LECTURE FIVE NOTES:

- Statutes save time in looking up the law, easier than case law.

- Fast changes are brought about by statutes.

- Statutes and legislation reduce confusion, provide clarity about the application.

- Harder to overturn, transparent debate, more democratic.

- Can pre-empt problems.

- Statutes only have application in their relevant jurisdictions (states and territories, commonwealth statutes apply all over Australia).

- Explanatory Memorandum: outlines the bill and explains what it is for.

- SA: Acts Interpretation Ac 1915.

- When does a statute come into effect? May vary depending on the jurisdiction.

- In Cth generally 28 days after it receives royal assent by the Governor General.

- In NT on the day it receives assent by the administrator, on the day it is gazetted.

- Operative provisions: they require something to be done, or the absence of something being done.

- Correct definitions constructed by the parliament in legislation.

- Hypothetic examples:

- Home owner: clean is ambiguous and what is the offence?

- Offensive language: ambiguous, vicinity, offensive language. Only hours are the clear aspect. Mischief rule: protecting children, vicinity is within earshot.

- Visa: ambiguous, what is good character. Mischief rule: do they have a criminal record, reference to community expectations, relates to laws of our country (illegal homosexual example).

- The Engineers Case.

- The Golden Rule: Grey v Pearson (1857). If you use this an absurdity needs to be demonstrated, and what steps you will take to overcome absurdity. In R of IRAC.

- Tenancy Act: lessor not lessee that refunds the bond.

- Mental Health Act: himself/herself. The word and, should be or.

- Marriage Act: cannot be lawfully married to two people anyway, purports to marry another person, or take the word lawfully out.

- Purposive approach problems: kind of ambiguous and subjective. Mischief rule.

- Are the interpretation approach principals hierarchal? That is, do we apply the Literal approach and if that creates absurdity, we will then apply the Golden Rule and only after that turn to the Purposive approach?

- Subordinate legislation; for example, minister can change working holiday rules without changing the actual legislation.

- Minister sets amount for defamation damages to $0 is ultra vires.

LECTURE FOUR NOTES:

- Three arms of government under the separation of powers: Legislative (parliament), Judiciary (judges and courts) and Executive (administrators of government, ministers).

- The parliament makes the law, the executive implements the law, the judges interpret that law.

- s 52 of the constitution: Defence, Trade between states and internationally, immigration, border protection, taxation.

- High Court is the final court of appeal for all of the 9 jurisdictions.

- The reasoning is binding. For example, in regard to shared property.

- Tribunals and Precedent:

- Decisions not really binding on lower tribunals, but decisions in higher courts are binding on them in the tribunal.

- Cannot interchange and use other legislation to prove your point.

- Why has privy councils persuasive force been diminished: we have developed our own body of law.

- Cattanach v Melchior (2003): 4:3 decision, compensation should be awarded. Lady had de-fertilisation procedure, was not warned that she could still become pregnant, so she ended up suing the doctor for damages. Promise or reliance on doctor.

- Harriton v Stephens (2006); rubella virus case, the child using for damages for living a disabled life. Here plaintiff was not entitled to compensation.

- One is compensating the mother, the other is the child bringing the case (it is a loss that cannot be determined).

LECTURE THREE NOTES:

- If the case is a common law case, the ratio needs to be explained. Ratio is the reasons for the decision.

- Example: fence built at $20,000, asked neighbour to pay half, they refuse. Take them to court. The decision is yes, they do need to pay $10,000. Reasoning is both properties share the fence and it increases the value of both properties. Might be different for residential vs residential properties and business vs residential properties.

- Dissenting judgements: judges that disagree with the overall judgement, may be obiter (which are remarks in passing). Ratio is binding on lower courts, obiter is persuasive lower courts should follow it but dont have to, if they do not that need to give reasons as to why not.

- Decisions from different state courts are persuasive in other state courts but not binding.

- QUIZ ONE:

What is a source of law? Why do we need to refer to them?

Name the two primary sources of law

What is the legal difference between a state and a territory?

What is the separation of powers?

What is the foundational source of law in Australia?

How is commonwealth legislative power different to state legislative power?

Name three areas in which the commonwealth may legislate

What happens if there is a conflict between a state law and a valid commonwealth law?

Name a right that has been implied in the Australian constitution

- QUIZ TWO:

What does it mean to say something is an issue in a case?

What is ratio?

What is obiter?

How is obiter of the High Court to be treated?

What does it mean to distinguish a case?

If a person disagrees with a decision of the NT Supreme Court (single judge) where would they need to appeal?

What is original jurisdiction? Does the High Court have an original jurisdiction?

Which courts are bound by the ratio of the full bench of the NT SC?

Is a court bound by its own past decisions?

LECTURE TWO NOTES:

PART A:

- Law Search Guide (go through this one day when you have the time).

- 1066: William the Conqueror, unifies the law amongst the different regions and villages and produces common law. 1200: First law students, development of a new profession.

- Because of the sensational story telling and different versions of the same course in 1865 they decided to start writing an official version law reports of the case. Now law reports are online and hard copies.

- Authorised reports are confirmed, written down and published. Better to use this than the unauthorised report, so there is uniformity/consistency.

- Q. What tool would you use to find cases from the Commonwealth Law Reports? A. FirstPoint.

- Q. You can access the Case Law databases via? A. The Law Guide.

- Q. What is a law report? A. A collection of published chosen cases.

- Q. Does every matter that comes before the court get reported? A. No, only some cases will be selected.

- Q. What is a case pinpoint reference? A. Reference to a page or paragraph.

- Q. What is the name of the preferred report series for Australian cases? A. Authorised.

- Q. What is the correction citation for Mabo from the Commonwealth Law Reports? A. (1992) 175 CLR 1.

- Q. The library can help you? A. Learn how to use a case law database. Identify credible information sources. Use the AGLC.

- Q. The library is closed, and you need help finding a case! What should you do? A. Email askthelibrary@cdu.edu.au. Go to FAQs on the Library Website.

- Q. Librarian or serial killer? A. Serial Killer. H.H. Holmes.

- http://libguides.cdu.edu.au/cdureferencing/aglc - has examples and video tutorials.

- Procedural History: different stages the case has been through, how did this case get to this court?

- Material Facts: facts relevant to the case (relevant to the decision). Does this fact have a bearing on the decision?

- Legal Issue: the issue, why is this matter in court, what questions are they asking the court?

- Judgement: how did the judges answer this question, why did they arrive at this decision? Their reasoning for this decision.

- Is it still current law? Has it been applied, give an example of how it has been applied currently? What did the later case take from the earlier case?

- Footnotes and bibliography are not counted in your word count. Assessment criteria is in your unit outline (have a look at this).

PART B:

- What is law? It is made by judges and certain institutions that have authority like the parliament.

- Primary sources of law: cases, statutes, and legislation.

- Secondary sources: journal documents, policy articles from government bodies, analysis and commentary, textbooks etc

- Neither primary nor secondary: Wikipedia (do not use these). Law dictionary definitions. Ask.com. Newspapers (use more reputable/authoritative sources).

- Sources are used to strengthen and demonstrate your argument.

- Uniform legislation: States and Commonwealth agree that its illogical to have different legislation. E.g. The defamation act, the evidence act. But for most things there are differences.

- The legislation of territory parliament can be overturned by the commonwealth government e.g. in the case of euthanasia. Which is different from the states where this cannot happen.

- How is the constitution amended? Referendum needs to pass both houses of parliament, then the majority of states. If it affects one particular state it depends on the majority of voters within that state. What the majority rules, in the majority of states.

- Amendments that have been passed: giving indigenous people the right to vote. The republic was voted down in 1999. Judges to retire at 70, was passed.

- Plebiscite: Same sex marriage, not legally binding just asking everyones opinion.

- The states do have constitutions but do not need acts of referendum to amend them, just acts of parliament of the state.

- Small claim vs large claim: how do we find this out? This will be lodged at the court website.

- NT does not have the district court, however most states do.

- High Court is the final court of appeal for every jurisdiction. For states and territories and for federal jurisdiction.

- Need special leave to appeal to the High Court.

- Question of facts vs law (who pulled the trigger vs is it self-defence?). Cause of death (what is the legal requirement for this?)

LECTURE ONE NOTES:

- AGLC: Australian Guide to Legal Citation have a read of this (see if you have an older textbook for this).

- There are clashes with aboriginal customary law and common commonwealth law.

- Customary law was not initially recognised, the Europeans imposed their own system English common law.

- William the Conqueror brought the feudalism system to England (at the battle of Hastings) and consolidated the legal system. He unified the legal system, established a special Kings Court.

- William would travel around and conduct hearings listening to the grievances of the people. His courts were popular as he was seen to be more impartial as opposed to people already in power in the villages.

- Henry II (his Son) expanded the legal system, he appointed officials to make decisions in his place they travelled and conducted the hearings instead.

- Like cases should be decided in a like manner which developed into the doctrine of precedent (the decision the comes before applies).

- King John (Henry IIs youngest son and famous for Robin Hood and Shakespeare). Raised taxes on nobility, to fund his battles.

- He was forced in 1215 to sign the Magna Carta (granted rights to free men).

- Make fines proportional to the degree of the offence, clause 39 and 40 are still applicable today.

- The Magna Carta restricted the Kings ability to raise taxes, the council oversaw this which later became the parliament.

- 15th Century: Kings court had become bogged down with rules and precedents. Needed a court of Chancery which birthed the court of equity.

- He who seeks equity must come to the court with clean hands, equity is centred more around justice and fairness.

- 16th Century: like a parliament was in place until Henry the VIII brought in a reformation, to marry more wives (the Church of England).

- Charles I and Oliver Cromwell; as parliament grew, there was conflict with the power of the King. Charles was tried and beheaded because he believed Kings to be above the law, and that they did not need the parliaments approval to raise taxes.

- Charles I rule started a civil war, the monarchy became patchy and even more control was given to the parliament.

- The Bill of rights was produced in 1689 which is still enforced today aka the Constitution of England.

- Formal development of the law in Australia: for the English to settle in Australia they used the method of Terra Nullius which means that the land was uninhabited, giving them legal precedence to settle here.

- Mabo (an entitlement to land case): Terra Nullius was partially overturned, only partially as the Europeans completely disregarded the customary laws.

- European laws applied to White on White crime, White on Aboriginal crime, and Aboriginal on White crime. But what about Aboriginal on Aboriginal crime?

- 1836 The Crown v Jack Congo Murrell: defendant argued: honour/revenge killing enforced by his customs, defence argued: we have come to reside among them, we are bound by their laws not them by ours. Court argued the argument was novel, the court upheld the murder conviction stating, serious cases might arise if these people can murder one another with impunity.

- Impunity: freedom from consequences. Jack Congo Murrell was executed for his crime. Aboriginal law was subsumed by English common law.

- Aboriginal law is only recognised in land title cases, but not for any other sentencing.

- How did Australia become separate from England: each colony developed as a separate and distinct legal entity until federation. At federation the commonwealth government was created.

- English government had a right to legislate Australian law till 1931 when the statute of Westminster was passed. Not fully separate till 1986 (the right of appeal to privy council was abolished and high court of Australia became final court of appeal).

- Symbolically we are linked but not so much legally anymore.

- No tutorial in week one, they commence in week 2.

Week 1 Reading Exercises:

EXERCISE 1: TIMELINES

Construct two timelines of Australias journey to legal independence, one for the judiciary and one for the legislature. Mark on each timeline the most important steps on the journey. Indicate in each case the means by which the step was taken, whether through legislation or some other event. In the case of legislation, note whether it is colonial, Imperial, British, state or Commonwealth. Briefly explain the significance and impact of each step. To complete this examination of the Australian legal system there follows a discussion of human rights law and the impact of international law in Australian domestic law.

EXERCISE 2: BILL OF RIGHTS AND PARLIAMENTS ROLE

Professor James Allan, a regular academic commentator on human rights matters, says he was tempted to entitle his presentation to Parliament on the Bill of Rights debate, Whaling is for Scientific Purposes; Homeopathy Actually Works; and a Bill of Rights Will Enhance the Role of Parliament. What threat does a Bill of Rights pose to Parliament? How might the threat be mitigated? Is Allans dripping sarcasm warranted?

Tutorial Week 12 Notes:

- Contextual presumption: legislation is always speaking.

- The language of the statute can be interpreted in its modern sense, e.g. communication via mail can be contextually interpreted to cover email communication as well even if email was not invented when the statute was passed.

- Karam Defence:

- Did Karam breach s3, s4 or s5 of the legislation, when he partook in teaching lessons, smoking, and chatting in front of the unit.

- All sections start off by saying an apartment resident must not, so the issue is, is Karam an apartment resident?

- Literal interpretation of resident: resident includes owner or lessee or any, or any person in charge of an apartment. Therefore, Karam is just a visitor and would not be charged/convicted under any of those three provisions. Has not committed an offence under the act.

- Kate Defence:

- Is Kate considered a resident? Literal definition, any other person in charge, as she is a sub-lessee, she is a resident. Using ejusdem generis as well.

- Did she cause a nuisance by smoking?

- Did she conduct business activities?

- Did she cause a nuisance by making noise?

- Did she carry a dangerous weapon?

- s3; literal approach to interpreting undue noise, consultation of a dictionary in accordance with the engineers case. Undue definition means excessive or disproportionate. Conclusion is that it was a normal conversation not undue noise.

- Prosecution could argue purposive approach, considering the ministers Second reading speech the purpose of the act is to promote harmony amongst residents and do not upset others in the unit. Smoking and talking late at night could be a nuisance/annoyance to people trying to sleep late at night.

- Smoking: definition is offensive odours, literal approach, what is considered offensive definition, cigarette smoking has annoyed the neighbour so yes, she has breached it literally.

- Could there be a reasonable test? Nowadays is cigarette smoke considered offensive, to many, yes, it is.

- Purposive approach is to make sure everyone gets along, the cigarette smoke is wafting to the neighbours, is not considerate and is annoying the neighbours. Therefore yes.

- The timing is also after the curfew time, so it would be hard to defend Kate on this breach.

- Subjective interpretation, reasonable test, does not mean everyone finds cigarette smoke annoying.

- Business activities, meaning it is an offence to conduct business activities at any time.

- But what are considered business activities? What does it mean: running a commercial enterprise or customer related activities. Includes but not exclusive.

- Literal approach: Looking and or intending to make a profit, Kate is a volunteer so is not conducting a commercial enterprise.

- Penal provisions to be construed in favour of the accused.

- Is it considered a customer related activity even though no money is being exchanged?

- The mischief of the act is to weed out people being a nuisance to their neighbours by running some sort of enterprise out of their homes.

- Is the English class breaching the purpose of the act?

- Not fair to convict somebody when there is ambiguity about commercial activities.

- Not fair to a lay person to understand that it does not only apply to business but has a broader meaning because normally would interpret it to mean business in the literal sense i.e. money in exchange for a service. People in the community would not know to look for a purposive approach or the ministers second reading speech for clarification.

- She would not be convicted as it is not considered a commercial enterprise.

- s5, the weapon issue.

- An apartment resident must not possess a dangerous weapon in the vicinity of the apartment. But the heading says it is an offence to carry a dangerous weapon.

- Possess v Carry.

- Carry: literal approach literally carrying in ones hands or backpack etc.

- Possess: means to have as a belonging, look up in the dictionary, spear gun was in a cupboard in the unit, it was not owned by Kate and she has no knowledge of it being there. Essentially, it was not her belonging, and was not in her possession.

- Is the spear gun considered a weapon though? Ejusdem generis would say yes, it is, as the act states other objects capable of causing serious harm.

- Hence no conviction.

- Vicinity issue: would inside the apartment be considered in the vicinity? It means near/around.

- Adler v George (authority about absurdity, not about wording), this gives rise to an absurdity, vicinity means in as well as near/around.

- In this particular act however because it is about harmonious living, inside may be okay, but vicinity may not be. Absurd, but could be argued.

- Ben Defence:

- Did he possess the weapon? Yes, we can say he possessed the weapon.

- In the vicinity? However, he was not in the vicinity of the property.

- Is he an apartment owner? He is an apartment owner, however at that time was he in charge of the apartment? He temporarily had no control of the unit as he was sub-letting.

- His belongs are still there though, but he is not.

- Look at the mischief of the act, its hard to charge him for it, as at the time he was not even there. Look at the definition in context.

- Need to infer that the owner is in possession of the property.

- Owner, does he have overall responsibility/charge of the property.

- Prescriptive, you could argue at this point he is not in charge, as he is sub-letting, he cannot just allow himself into the apartment at any time.

- Mischief, owner in possession of the property, which was technically not him at the time?

- Do not take literal approach, take contextual, mischief approach. He is not in charge of the apartment at this time, even though he is the owner, as he is not legally allowed to be there.

Tutorial Week 10 Notes:

- Victorian Charter; freedom of movement (curfew) (5km) s12.

- Equality before the law s2.

- Discrimination, letting some people in to the state and not others.

- Could also look at the housing commission unit blocks that had been locked down with police monitoring as part of the discrimination application; freedom of movement, right to personal liberty, protests.

- Enacted legislation.

- Suing the MP who signed the order in to effect, suing for malfeasance of public office. Being sued for the mismanagement of the hotel quarantine.

- s28 compatibility statements (have not done these) (directions).

- WA; constitutional, freedom of movement, freedom of political communication is constitutional.

- s 38 Conduct of public authorities (1) Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.

- Jill Prosecution

- Did Jill breach s3 of the Act? Under s2 definition of parents and using ejusdem generis presumption, the specific words being carers and guardians and the general word being persons responsible for children, this can be read down to grandparents as well. Also using ejusdem generis presumption that a day care does provide learning to children so can therefore be considered a school as the specific word is primary or secondary schools with the general being a place where learning occurs further to that, under s2 definitions are clear that abusive language is considered mistreatment. Jill uses threatening language and she also uses the motion of her fist being raised that any reasonable child would understand as a potential physical assault The Second Reading speech (extrinsic material) states that the purpose of the Act is to protect kids from any form of abuse from parents or other family members, which Jill is.

- Jill Defence

- Did Jill breach s3 of the Act and mistreat a child when she threatened to slap Callan and shouted at him in a raised voice?

- Did Jill mistreat? hit/smack, ejusdem generis, means physical harm, therefore no physical harm. Abusive language defined in the dictionary is harsh words/ill treatment, little monster is not abusive, shut up is no abusive, on flow effect there was no trauma as he was happily playing after and therefore not mistreated.

- Is Jill a parent? Conceded ordinary and natural meaning, a grandparent, regular carer that lives with the family.

- Is the family day care a school? Plain and ordinary, primary, ejusdem generis, day care, potentially, akin to university etc. Family day care not akin to a school, an early leaning centre may be, not a prescribed school, no learning outcomes under AQF framework.

- Is Callan a child under the act? Extrinsic materials, school children, the title of the act says any child, yes, he is a child as he is dependent on a parent or guardian?

- Referencing

- Engineers Case/Project Blue Sky; literal.

- Cth Act, Acts Interpretation Act s3A, 10th Feb 2016, 28th day after.

- Purpose of the act, looking after kids, s15AA, s15AB second reading speech.

- (2) An Act (other than an Act to alter the Constitution) commences on the 28th day after the day on which that Act receives the Royal Assent.

- Case authority for ejusdem generis.

- Can still concede on facts even if your argument is against them.

- Janet Defence:

- Issue did she breach s5 by not reporting the events.

- Human rights, lawyers owe their clients confidentiality; legal professional privilege (principle of legality).

- Question says using IRAC, do not bring in any constitutional law.

- Can form practice of statutory interpretation?

- Suspects, interpret what suspect means?

- No indication that Janet suspected anything.

- Presumption: Daniel Corp international v Australian competition and consumer commission.

- Clear words or necessary implication, presumption has not been rebutted.

- No clear words/necessary implication unless the act explicitly states that this act overrides legal professional privilege.

- Concluding not covered.

- Janet Prosecution:

- Did Janet breach s5 of the Act? S5 clearly states that if you suspect child abuse in accordance with the Act you must report it to authorities which was not done. Presumption that common law right to legal professional privilege does not apply as the legislation uses clear words and necessary implication. As someone that practices law, should be aware of the requirement to report when legal privilege is no longer valid. While it can be argued that Janet may not have known the seriousness of the situation with Raylene, it is assumed that she knows the facts as we do because the facts do state that Raylene explained the whole scenario to Janet.

- Raylene:

- s4 breach for Callan?

- Definition of neglect, due attention to the child.

- Concede no problems, everyday occurrences.

- PL application of the act, an hour.

- Play in the yard unsupervised?

- In an unkempt but clean house?

- s4 breach for Jack?

- Allowing Jack in a soiled nappy?

- Sunburn?

- Could be sunburned from another day?

- Neglect failed to provide adequate care.

- Has failed to put sunscreen on her child, physical impact, soiled nappy for hour is he in a clean state?

- What is the actual purpose of the act?

- Does his age matter? Does the act only apply to school children? He is only 2 .

- Ordinary and natural meaning, dependent, no definition of child in the acts interpretation act.

- NT Interpretation Act does define a child, but you need to focus on the right jurisdiction and here It is federal.

- Words of the minister do not replace the text of the law.

- EM second reading s62B, children not showing up to school due to neglect.

Tutorial Week 11 Notes:

- Wendy:

- Charged with 2 offences, resulting in 3 issues.

- 1) Did Wendy commit a terrorist act at the abattoir.

- Literal approach terrorist activity definition is in s2.

- Unlawful for furtherance for political or religious ideology.

- Damaging property, a purposive approach.

- Look to the second reading speech, the acts needing to be for extremists planning attacks against Australian citizens. Do not think the break in was deliberately damaging for ideology.

- Conceded the act was about furthering an ideology.

- This was not damaging property or life to that end.

- Presumption penal provisions construed narrowly.

- Context deliberately damage property, which is what the act refers to.

- She was breaking in, not to highlight the issue, did not breach s3. She broke in to highlight an unjust act, rather than to deliberately damage a property. Avoid an unjust application of the act, so did not break s3.

- 2) Did Wendy breach s5 of the act?

- Did she breach s5 by distributing information on behalf of or promoting terrorist activities?

- Did Wendy form a terrorist group under s5 of the act?

- Literal interpretation, was not terrorist act initially (the break in), was live streaming the animal cruelty then a terrorist act?

- Look at common law presumptions, freedom of speech and expression.

- Has not been rebutted sufficiently.

- Wendy has a right to freedom speech.

- No breach, not terrorist act, and common law presumption.

- She is simply communicating what is happening.

- What does form a group actually mean, dictionary definition of form and group.

- So therefore, yes, they did get together and form a group.

- Words to be given consistent meaning, contextual presumption, no terrorist act is against the people aimed at injuring people. So therefore no, did not breach s5.

- Principle of legality.

- Act starts 28 days after the assent, so anything that happened before the 23rd of August is prior to the act commencing.

- Presumption against retrospectivity, no specific words to apply retrospectively.

- Travis:

- We determined that the act came into place on 23 August 2020 (28 days after Royal Assent). No words stating that it applies retrospectively. We addressed the absurdity in s5 and inserted the word prohibited For mostly the same reasons as Adrians group we determined that it was not a prohibited group or a terrorist act. Additionally, we determined that the group was formed before act came into place nor for a terrorist act.

- Absurdity in s5.

- Discuss the word prohibited.

- Golden rule/Bermingham case.

- Retrospectivity, Freedom of speech/expression.

- No harm was caused to the citizens (Second Reading Speech).

- Second Reading Speech, intention of parliament when they refer to a terrorist/group/act.

- Use purposive approach to extremists planning attacks against Australian citizens. Heydons Case.

- Extrinsic material can be referred to in accordance with Acts Interpretation Act (Cth) s15AB.

- Linda:

- Look at weapons and dangerous goods; literal approach.

- Members of a terrorist group; purposive approach. This is not a terrorist group.

- Has provided weapons to a terrorist group s4.

- s5 promoting terrorist activities, mischief rule.

- Terrorist or prohibited group.

- Principle of legality, freedom of speech, freedom of expression.

- Freedom to protest.

- Freedom to express a political opinion.

- Were the bolt cutters etc, prohibited items?

- Use ejusdem generis.

- Bolt cutters are like the others.

- Can be used as cutting and stabbing instruments, in terms of issue.

- Oxy torch and bolt cutters are both prohibited but were not being given to a terrorist group.

- Or could argue that bolt cutters are not prohibited items in the definition of this act.

- What is a dangerous good? Or a weapon?

- Literal interpretation, tools such as bolt cutters are not considered a weapon.

- Purposive interpretation, ejusdem generis, knives, spears, swords are stabbing implements and bolt cutters could fall into this category or they may not (argue to whatever suits your argument defence v prosecution).

- Typically, their purpose is not the injure others.

- Oxy torch is a dangerous flammable good.

Tutorial Week 9 Notes:

- Preliminary matters: jurisdiction, legislation, and the date that it came into effect.

- Northern Territory, 2014, does not specify exact date. If the act does not specify a date, it is on the date of assent declared in the gazette s6 Interpretation Act.

- Let us assume it came into effect 1st Jan 2014 and has been in effect the whole time.

- Separate the two people, Malcolm, and Albert.

- Did Malcolm breach s3?

- and s4 of the Act? Separate the questions.

- Did Albert commit an offence under s5.

- Then break these down into sub-issues.

- Prosecution Map of issues for Malcolm:

- Did Malcolm breach s3 of the act?

- Is the pipe considered to be part of the wharf?

- The pipe is considered a wharf as it was used to unload goods from the ship.

- General description; is a jetty, pier etc.

- Generally, people would come off and on a ship.

- This is a piece of structure on the wharf,

- Has been used in this way, so yes, it is part of the wharf.

- Are the knife and petrol offensive and dangerous?

- No definition for offensive/dangerous.

- QT causing a health risk.

- Yes, was dangerous because it can be used as a weapon. Leaving it on the wharf is a breach.

- Risk is intention of the act.

- Intention of the act is to eliminate risks via foot traffic.

- Petrol not safe in a container, so probably not a safe item.

- Is the boat considered a ship?

- Yes, although not a big one it could still be considered a ship.

- It is a boat that can carry goods or passengers.

- Used for fishing trips and can bring passengers on board.

- Second reading speech: for fishing and recreation.

- Defence for Malcolm:

- Is the concrete pipe a wharf under s2 of the Act?

- The ejusdem generis presumption is weak and that the concrete pipe is to disperse materials into the water, not to dock ships as per other items listed under s2 of Act.

- Ejusdem generis applies; any other landing place with pier or jetty. Other landing place read down to be of the same category. What is the category? Something built for the purpose of docking or disembarking from the ships, man made things that extend out into the harbour, can be creative with this adjusting to your argument. They are talking about wharves.

- Issue 1 is the wharf? R s2 definition ejusdem generis, weak, accords purposive reading (s62A), s62B (Question Time is extrinsic material).

- Was Malcolm given prior approval to dock on pipe as per requirements of s3 of the Act?

- Technically no, but as he had seen others use it for this purpose that he has assumed the owner was comfortable with this use of his equipment.

- He assumed that there was some sort of prior approval.

- Was the material left by Malcolm on the concrete pipe considered offensive or dangerous under s3 of Act?

- Using the extrinsic materials, the purpose of Act is to stop health risks to transport and recreation areas and the concrete pipe cannot be classified as an area for either of these purposes as is an equipment piece for dispersing materials.

- Dangerous

- Dictionary definition would be the literal approach.

- Contextual approach.

- Prosecution did Malcolm breach s4 of the act?

- s4(a)

- Is the buoy a navigational aid?

- Yes, it is, as it used to mark a channel. Purposive approach or the literal approach, device used for navigation. Purpose is to keep harbour safe.

- Can the buoy and timber be considered as navigational aids under s2 of the Act?

- Yes, the buoy can be considered as a navigational aid under s2 of Act as purpose is to deter boats from hazards (shallow waters, rocks, etc), however the timber should not be as the colour (black) is not appropriate for visual aid and was only part of device that was removed by Malcolm (this is about him damaging it so the next sub-issue).

- Definition of navigational aids, s2. Ejusdem generis applies.

- All words carry meaning.

- Did Malcolm damage/destroy a navigational aid by removing the cross?

- Natural and ordinary meaning of words.

- Negative action, degrading, defacing etc.

- Made useless, he has taken it off, therefore breached the act.

- Define destroy/damage a bit more. What does it mean in relation to the act?

- Extrinsic material prevent wilful purposeful damage, his was accidental.

- He has taken a part of the cross but there is no evidence that it does not still function.

- Extent of the damage is not sufficient enough to be endangering the safety of people. S62A Safety. The rest of the series of buoys will still work effectively.

- s4(b)

- Did Malcolm interfere with the effective functioning by putting his t-shirt over it.

- Did Malcolm interfere with the buoy and timber navigation aid when removing his shirt under s4(b)?

- While Malcolm did remove timber from the buoy, the facts do not state that this affected the buoys ability to float and prevent hazards.

- Effective functioning, prosecution will say yes, defence will say it was just one in a series. Not wilful damage, accidental, not endangering safety.

- Is there evidence to say that just covering one will make a massive difference to the safety? Purposive approach.

Tutorial Week 8 Notes:

- Prosecution:

- Adam: did Adam breach s3 of the act by taking a photo?

- Under s3 of Act; any person who transmits an image, s2 definition an image, an example of a typo or the golden rule, would be manifestly absurd, golden rule.

- Means prohibited images.

- Three things: Was he on aboriginal land, yes, he is.

- Was it transmitted? Literal approach ejusdem generis.

- Can taking a photo be considered transmitting.

- Ejusdem generis; definition of transmit.

- Based on prior, Bluetooth, infrared.

- Weak presumption.

- Photo does not fit, not using telecommunication protocol.

- Look at broader purpose of the act.

- About preventing the distribution of images, this is distributing the image.

- Rule: purposive approach.

- Yes, was distributing.

- Then sexual content, interpret what that means.

- Anything with sexual connotations.

- Natural and ordinary meaning; sexuality to it.

- What cheeks is she licking? If bum, yes. If face, no.

- Is a bum sexually arousing, yes, it is.

- In conclusion, yes Adam did breach s3 of the Act.

- Defence:

- Adam: Did Adam breach s3 of the Act?

- Is NH considered aboriginal land, yes, it is.

- Did he transmit the image? No, as he did not send it.

- Taking a photo is not sending it.

- Literal approach.

- Was the photo a prohibited image?

- Sexual content no definition but does say whatsoever.

- Look it up in the dictionary.

- PL, pornographic/things are in common circulation.

- Prosecution for Will:

- 1) Did Will breach s3 of the act by auto emailing phone pictures to the laptop?

- Literal approach (engineers or project blue sky).

- Was his phone on aboriginal land?

- Yes, as he is the sender/receiver.

- 2) Did Will breach s3 by replying to his girlfriend and including the image in his reply.

- Literal approach.

- Using technology protocol.

- Sexual content, bum, and cheek photo.

- Defence for Will:

- 1) Did will breach s3 of the act by replying to the email including the attachment?

- According to the act, mobile phone, transmit, technology.

- Yes, did accidentally reply but the act specified a mobile device.

- They have narrowed down the definition.

- It is quite specific to mobile devices.

- It is not inclusive of laptops.

- Will does have his phone set up to auto email, did not necessarily send the data.

- Second Reading Speech s62A interpretation, talks about mobile device.

- Purposive approach.

- SEND, did he actually send the data? Look at send in context.

- Dictionary definition of send: cause to go or be taken to a particular destination; arrange for the delivery of, especially by post.

- Has to be a purposeful act.

- Otherwise every one that facilitated the sending of this image would be liable, like Telstra and google etc.

- Need an awareness to send. Unlikely to be convicted.

- He is not really distributing, is he distributing further to another party. Purposive.

- He was sending it back to the sender.

- Is the girlfriend on aboriginal land?

- Not considered sexual content.

Tutorial Week 7 Notes:

- Preliminary matters: when does the act apply, when does the act come in to affect, date assented or gazetted. 15th August 2014. Put in a reference to the interpretations act of ACT s 5 and s 6 (NT).

- Issue being asked (part of IRAC), break up the issues.

- Did Alice breach section 4(1) of the Animal Welfare Act.

- Prosecution: I: is the bird considered an animal under the act, in a state of captivity.

- She had various shrubs planted to attract the birds, she recognised them, hence probably in a state of captivity.

- I: has she ill-treated the bird?

- Did she cause the broken wing, if arguing yes. She injured the bird, she ill-treated it by removing the bird bath causing unnecessary suffering.

- Defence: I: did she injure the bird by hosing and removing the bird bath and food.

- Literal approach, words are straight forwards, in captivity, bird is in the wild.

- What is the purpose of the act? Looking at pet owners according to the ministers speech, not about wild animals. To prevent unnecessary suffering. Was wounded, not injured by her. C: no offence under s4(1)

- s4(1): ill-treat, not cause unnecessary suffering. Broad/narrow meaning of the word.

- Purpose/s62A Interpretation.

- Suffering: cruelty.

- Unnecessary; was it necessary to use the hose.

- Can be under separate headings: hose heading, removing bird bath heading.

- Did Alice breach s4(2) of the Act?

- Prosecution: I: Does Alice support the bird? Definition supports that she is caring for it by providing food and water. Therefore, she should have provided for the broken wing, removing the food and water source injured the bird. Could she have done something else to help it?

- Defence: in control of, vet treatment, not caring for or putting food out for. Emphasis on owners, bird is wild, removing the bird bath is not contravening the legislation, any farmer moving crops from a field is taking away from birds it becomes too much.

- s4(2): is the bird an animal, do not repeat if you have already spoken about it above.

- creature in a state of captivity, literal approach if it suits your argument.

- However, if you were prosecution go for the broader approach. Purposive approach.

- Extrinsic materials should not be considered if this suits your argument. Literal approach is the best one, however.

- Project Blue Sky quote.

- Even if the bird is not considered an animal, the ill-treatment needs to be addressed separately.

- Caring for, a statutory interpretation principle needs to be used, purposive approach s62A.

- What did parliament mean by this statement; animal is relying on you to survive.

- Did Bill commit an offence under s4(1) of the Act? Did Bill breach s4(1) of the Act?

- s4(1); definitely an animal in a clear state of captivity.

- Prosecution: Did Bill ill-treat the goldfish? Did not wound the animal but putting it in to the air and into his mouth has caused it unnecessary harm (literal approach).

- s4(2); not relevant as he is not the owner, he owed it no duty of care, is not providing for the animal.

- Defence: he committed the offence in 2004, act was gazetted in 2014 so no offence was committed under this act.

- s4(1): prevent mischief by pet owners, did not harm the fish in any way, was clearly safe and not wounded.

- Defence, could argue the level of suffering, mischief of act is being cruel and not treating animals humanely.

Tutorial Week 6 Notes:

- When did the legislation actually come into effect, especially if it is new legislation.

- Preliminary matter: when does the act come into effect?

- This scenario: 1st October 2016, it was gazetted Interpretations Act 1978 NT s6.

- Prosecution: Issue: The Bill gained assent from the Administrator and was Gazetted on 1 October 2016. Fred also explains to the official that he had been given oral permission by the Department to release odours and smells from his bakery. That statement there Fred should have gotten a written permission. The issue is that Fred exhaust fans broke down on the 10 October 2016. Fred broke the rule by having an "offensive odour" in a public place.

- Does anyone else see an issue with the case.

- Rule: This Act may be cited as the Control of Busking and Noxious Odours Act.

Offensive smell means an odour, fragrance, or discharge of gas into the air whereby such discharge is offensive to public sensitivities. Public Place means any park, street, laneway, or area open to the public. Offensive Odours: It is an offence to cause an offensive smell in a public place without an offensive smell permit issued under this Act. Penalty: $500 s 4 of the Act.

- Analysis: Fred runs a bakery in the Smith St Mall. (This is a perfect meaning of a public place)

Secondly, many complaints have been received from the public in relation to factories and small businesses releasing pollutants and other noxious gasses into the atmosphere, ruining Darwins lovely clean air. The government introduces this bill to tighten control of unauthorised busking and to control air pollution. Fred when baked the loaf gives off a strong garlic smell. Unfortunately for Fred, his exhaust fans broke down on 10 October 2016, and the strong smell is wafting into the mall. S4.

- Did not get written permission, broken exhaust fan, a noxious smell, in a public place.

- Defence: the relevance of the date of the fan breaking down. Does Fred own the shop? Or is it private property? Offensive smell in a private property. Smell obnoxious as described by the minister. Customers are still coming into the store. The smell came out into the public place.

- The meaning of offensive odour is too broad. Act about health and safety. Does not mention it in relation to food. Subjective. Work health and safety act?

- Prosecution: s2, s4, s6.

- s2 clear definition of an offensive smell, garlic is highly fragrant, may be considered offensive to the public.

- s4 no offensive smell permit, spilled out into a public place, oral permission, but no written permit had been required.

- s6 a written permit is required. Does not state how formal that permit needs to be, could be an email.

- Is Fred in breach of the Ac for causing an offensive smell? Is the oral statement is it valid? Is s6 clear enough? Did Fred have prior knowledge of the requirement to have a permit?

- Has Fred committed an offence under s4 of the act?

- Is the smell offensive under the act?

- Was it a public place? Whether the owner or lessee, it is still public property. Public can come and go, and the smell wafted into the mall.

- Did he have a permit?

- For the paper these would be the headings.

- Discussion of the fans can be left out altogether.

- EPA Act + Work Health and Safety Act are not relevant to this act. Unless it is in regard to interpretation of this act.

- His notice has been given under s4 of this Act.

- I: Is the smell offensive under the act?

- R: definition in s2. How do we even interpret that? What are public sensitivities, very subjective. Interpretations Act will probably not help here. How can this be made not subjective? Reasonably considered to be offensive. Dictionary (literal approach, instinctively you know it is too broad so it will not help us). Purposive approach/mischief rule; noxious gases and pollutants (minister), offensive and really offensive not just strong smells. Broad; a little bit offensive or narrow; very offensive. We need to decide the scope parliament meant by this. Ministers approach seems like a narrow definition. Mall does have every day unpleasant smells, in public places. Broad; smoking, rubbish. Context/mischief; suggests we are talking about the high end of offensive.

- A: not a pollutant, no one complained. It is a normal food smell. Customers were still coming in, did not deter them. Intent would not [assumed] have been to impose costs on small businesses.

- I: Did he have a permit? (regardless of whether the smell is considered offensive or not)

- R: s6, needs to be in writing.

- A: he did not have one in writing,

- C: technically no permit (all of this is using a strict literal approach)

- A: Purposive approach: why is it needed in writing. Did he contact them, and they said he did not need one? Then C would be not required.

Tutorial Week 5 Notes:

- VERY IMPORTANT FOR ASSIGNMENT 1 PART B.

- You are Johns lawyer. John is prosecuted in Court. With reference to the Act, the facts set out above and the principles of statutory interpretation, you are instructed to make relevant submissions to the Court in your clients defence.

- Prosecution: act of busking, whilst soliciting (was just sitting), okay yes he is just sitting but once people started giving money he should have declined and returned the money, he says later he knew of the permits, soliciting (dictionary definition, asking entreating or urging).

- Defence: 1) John was not expressly soliciting money from tourists/was not harassing them as stated by the Minister when introducing the Act. 2) Act was only in place for 9 days before penalties applied gracing period. 3) Definition of musical instrument is too broad almost anything can make rhythmic harmonies or sounds. 4) John is not clear on what the Act was - says he was told permits were optional.

- Statutory Interpretation: Golden Rule.

- Absurd result, general words get meaning from specific words.

- Drumming on box, is this even considered an instrument.

- A bit absurd, can we use the golden rule? (What is the golden rule, research this).

- Prosecution. 1) John is aware of what busking is as he uses it as defence towards the Council Official claims he is not busking. 2) Verbally compared to a "lagerphone player". 3) Aware that he is performing in a public place. 4) does not refuse the money being given even though he claims to not be busking.

- These would be the main issues/areas of dispute.

- Think about the arrangement of the argument.

- I, issue: questions to be determined. R, rule: statutes, cases, the laws, statutory interpretation law as well. A, application: how the rule applies to the current situation, which bits are relevant, applying the law to the facts (in the problem). C, conclusion (outcome of the case, the answer to the issues, from defence or prosecution perspective).

- Do not use as headings for your paper, do it for every single individual issue.

- Issues in the problem:

- MAIN: Was John breaching s3 of the Control of Busking and Noxious Odours Act when playing music in public and accepting Money on 9 Oct?

- SUB-ISSUES: Was John busking as per s3 of the act?

- Rule: defined in s2 as soliciting (dictionary definition is acceptable and part of the rules; asking) and musical instrument (is the definition too broad, but because it says includes it means it is not an exclusive definition it is an open elaborative definition). Need to pay close attention to statutory words. Is it absurd?

- Application: Prosecution: he accepted the money, he then kept the money, (he said he was told he did not need a permit, he claimed it was optional, is this an admission?). Defence: he just grabbed a box, he clearly did not intend to busk (no real state of mind), impromptu, he was there for another reason, he did not expressly ask for the money, no collection tin in sight (no receptacle).

- Conclusion: Yes, he was busking for prosecution. Or no he was not for the defence.

- Elements of the offence: busking, no permit (does not need to be discussed, as he has already admitted to not having the permit), public place (he is in the mall, cannot argue that it is not a public place or the issue would be: was the mall a public place?).

- IRAC: Issue: was the mall a public place? Rule: s2 definition, area open to the public. Application: is an accessible place that had members of the public present at the time. Conclusion: Yes, it is a public place.

- Keep it relevant to the issues. Issues such as act only in place for 9 days, or verbally compared to a lagerphone player are not relevant here.

- Can you use Ministers speech to back up your argument? In the rule section, this can be discussed.

Tutorial Week 4 Notes:

- Brightwater Care Group (Inc) v Rossiter [2009] WASC 229. Please read the case and consider the facts and points of law argued in the case. READ THIS CASE WHEN YOU HAVE TIME!

- a)What were the facts of the case? Material/nonmaterial?

- Material: Rossiter was a quadriplegic, he had sufficient funds to support himself (not in Brightwaters charge/leave Brightwater), mentally coherent and of a sound mind, wants to end his life on his terms, conscious decision to refuse the treatment, wants to keep PEG in to administer pain relief and medication. He became a quadriplegic after three accidents, was not born in this way. He required PEG as he could not take nutrition orally. Not terminal (can be both material and nonmaterial). Brightwater Care Group are his carers. His condition wont be improved. Not euthanasia. Was he given all the information about what would happen if his wishes were complied with? He is an adult and not a child, can make his own decision.

- Nonmaterial: not terminally ill/not dying. Detail/nature of his accidents. Can move his little toe.

- Laws (not a material fact): Any precedents (no reference of any prior judgements). Previous decisions, provisions of the statute are matters of law and not facts.

- b)What was the procedural history of the case?

- Original jurisdiction Supreme Court of WA.

- c)What arguments were made by the respective parties? Legal issues: questions answered in the case, the area of dispute? Questions/areas of dispute/need clarification?

- A medical service provider who has assumed treatment of a mentally competent patient. - are they obliged to continue when they asked to stop?

- How does ss 259 and 262 of crim code interact with common law right to self-determination?

- What does ss 259 and 262 mean? How is it interpreted?

- Is PEG medical treatment?

- Requested palliative care when body shuts down, are they liable to do so in situation when they have brought about death? are they covered by the criminal code, duty of care.

- Legal obligations under WA law for a patient which is of sound mind who does not want to receive further medical assistance

- d)What did the court decide?

- If he is given all the information, then Bright Water cannot be held responsible, they must comply.

- s259 cc not responsible for palliative care, based on his informed decision.

- e)Describe the legal reasoning in this case- did it set any new precedents? If so what? Ratio.

- Legislation talks about in charge, BWC not in charge he is mentally competent. He can withdraw himself from their care whenever he wishes.

- Individual of full capacity not obliged to give consent. Illegal to treat someone against their will.

- Common law/trespass interacts.

- Consistent with similar principles with previous common law positions in Australia and overseas.

- PEG medical issue was a yes.

- BWC if they do proceed; they were worried that they are trespassing against Rossiter and they could be sued for this. If they do not: provisions in the Criminal Code.

- Example of how this case has been distinguished: paragraph 28 outlining requirement for informed decision. Paragraph 29, they distinguished Hunter from this case, because of his mental competence.

- Cases sightings: H Ltd v J (similar case, with similar facts in SA supreme court). Judgement text page 2: paragraph 41, 42 and 43 (hunter case mentioned and BWC). Here the judge says, the reason for the refusal of consent is irrelevant. Not necessary that refusal be informed. Differences between SA and WA. Hunter (VIC says it does not as well) and common law view that refusal does not have to be informed, does not matter what the reason is, just must matter that it is genuine.

- Complexity; some doctors are against euthanasia, as they do not want to be responsible for that decision. Rossiter has the option to starve to death (no PEG).

- Should the human aspect be considered?

- Legislation is proactive, whereas cases are reactive (this happened in the past, so let us use it for the current issue too)

- f)Was there any obiter dicta in the case discussion? Give some examples. Direct obiter/legal remarks in passing?

Tutorial Week 3 Notes:

- Look at the actual case, only talk about your case not any previous proceedings they are not part of the discussion (try not to even read them to not confuse yourself). Make sure you have the judgement and not the transcript.

- CDU library, subject guides, business, and law and look at that. Went through it in this tutorial.

- High Court of Australia is not an authorised report, so always use the authorised version.

- The flagging system West Law uses is unique to the database and is not actually technical legal terms, it is how they categorise cases. The yellow flag means a certain part of this case has been overturned in later cases (discovered by someone that works for West Law). A red flag means that the whole case has been overturned, it is then our job as lawyers to find out why and where the point of disagreement is. A green flag means that it has not been changed.

- First Point link gives you a summary, which is useful in familiarising yourself with the case. However still read the full case.

- Litigation history for a history of the case, cases citing you only need to pick one of these for your assignment to show how your case has been later applied.

- Look at government databases over AUSTLII (not always authoritative) as these are more current.

- Halsburys Laws of Australia (a useful online encyclopaedia) (Lexis Advance).

- The Law Handbook (on the homepage) is a simple starting point and good to use for clients initially. Make sure what is in the handbook matches up to the actual act.

- Encyclopaedia Legal Dictionary (not to be used as a source) but good place to search up legal terms. Actual Act and Cases are the sources, which will come up in the encyclopaedia.

- AGLC resources on the CDU library law guide are available, use these.

- Exercises: find case Brightwater Care Group v Rossiter (searched for it in West Law and use the reported version). Citation: Brightwater Care Group (Inc) v Rossiter [2009] WASC 229.

- Exercise: battery/trespass to a person in Halsburys tell me what the elements are of the offence. Abatteryis an act1of the defendant which directly2and either intentionally3or negligently4causes some offensive physical contact with the person5of the plaintiff. The hyperlinks are links to acts or cases that explain these terms further.

- Google is good too for initially finding a case/legislation, citation of case is D'Arcy v Myriad Genetics Inc 258 CLR 334.

- Australian Law Reform Commission, search up key words and you will see the differences between the different states and territories.

- Primary source of law: Cases and Legislation. Secondary: Journals, Authoritative books, and Law Reform Commission Reports.

[preliminary matters]

Will

Did Will commit an offence under s3?

The issue to be determined is whether Will has committed an offence under s3 of the Prohibited Images Act 2008 (NT) (hereafter the Act). The offence sets out a number of elements which will be discussed in turn.

Were the pictures images prohibited under the act?

The first issue arising is that the s3 provision prohibits the transmission of an image. The literal interpretation of this provision gives rise to an absurdity, in that the act is clearly intended to prohibit the transmission of images with sexual or pornographic content. Courts have used the golden rule to enable them to depart from the ordinary and natural meaning of the words, where it is clear that parliament has made an error in drafting a provision. It is clear from the purpose and context of the act that this provision should read a prohibited image, it would be absurd if the transmission of all types of images were banned. The following argument will proceed on the assumption that the proper construction of this provision is a prohibited image.

Prohibited image is defined in the act under s2, as an image with any sexual content whatsoever. Sexual content is not further defined, however the Macquarie Dictionary defines sexual as of relating to or associated with sex. s62A of the Interpretation Act 1978 (NT) provides that a statute needs to be interpreted in accordance with its intended purpose. The purpose of this act, as demonstrated by the title, stated objects, as well as the Second Reading speech is to deter the distribution of pornography in Aboriginal communities.

The cheek licking picture

The cheek licking picture is not of a sexual nature, in that it does not depict sex or anything to do with sex, nor is it in any way pornographic. For this reason, it is argued that the cheek licking picture is not of the type prohibited under s3.

The bottom pictureThe bottom picture, whilst arguably more offensive than the cheek licking picture, is also arguably not of the class of images envisaged to be prohibited by this act. Parts of the anatomy are not of themselves sexual in nature and pictures of this type may be viewed in many types of freely available magazines and on television.

It is therefore concluded that neither of the pictures were prohibited images under the act.

b)Did Will transmit the pictures for the automatic transmission?

In the event it is decided that the picture is prohibited, the next issue to be considered is whether the automatic transfer of the picture amounts to a transmission under this act. transmit is defined under s2 as sending data... Whilst it is clear that the technology specified in this definition has been used, it is arguable that Will did not send any data. The words of the provision also need to be read in their context. The provision provides Any person who transmits an image... It is arguable that by setting up an automatic transfer system, Will has not personally sent the image, and the words of the act read in their context suggest a person would need to at least have knowledge of the image and take action to send it. Further, it is unlikely that Parliament would intend this provision to operate unfairly to penalise people for acts done without their knowledge or participation. For those reasons it is unlikely Will has transmitted the image in this sense.

c)Did Will transmit the pictures in the reply email?

[further headings to be discussed]

[overall conclusion as to whether Will has committed an offence under s3]

Adam

Did Adam commit and offence under s3?

Was the picture a prohibited image?

See above discussion [refer to paragraph]

Did Adam transmit the image?

[overall conclusion as to whether Adam has committed an offence under s3]

Will and Adam are both building houses in Nhulunbuy. Judy and Mandy send them pictures which they did not ask to be sent and they did not agree with. Will replied to Judy What is this? meaning he did not ask for the images to be sent to him and therefore he should not be penalised.

These images are not sexual in nature and therefore they have not committed any offence. In the first image, Judy is pretending to lick Mandys cheek. In the second picture, Judy took a photo of Mandys bottom. In my opinion these images are not sexual because they are things that people do everyday and therefore my clients should not be charged. Pornographic is defined in the dictionary as sexually explicit videos, photographs, writings, or the like, whose purpose is to elicit sexual arousal. Pornography is also defined in the Criminal Code Act as material depicting a person or people in a sexual context, including for example, engaging in a sexual activity; or in an offensive or demeaning context. These pictures were not designed to arouse Will and Adam, their whole purpose was to make them laugh and respond to pictures that Will and Adam had sent the week before as a joke.

We do not know whether the police officer had the power to seize Wills laptop. The Police Powers (Search and Seizure) Act governs the police power to confiscate someones personal property. Under that act, police should only confiscate something if it has been used in a crime and the laptop hasnt. Also, Will and Adam are working on Aboriginal land and they have the permission of the community to be there. The police should return the laptop to Will while he is doing this important work, building houses for the community.

I submit your honour that my clients Will and Adam have done nothing wrong and therefore they should be set free.

Consider the following hypothetical scenario:

The Commonwealth government recently introduced the Prohibited Groups (Anti-Terrorism) Bill in response to public calls for specific legislation to deal with the threat of terrorism. The Minister introducing the bill said in the second reading speech:

The government understands the insidious threat of terrorism in Australian society and this bill creates strong legal sanctions against groups that advocate violence, or seek to pursue their goals through violence. This bill is being introduced to provide very serious penalties to extremists planning attacks against Australian citizens and in doing so will prevent civilian casualties on Australian soil. The government is doing everything it can to keep the people of Australia safe and to stop extremist violence in its tracks. This bill is about protecting the people of Australia from injury, death or harm.

The Bill was passed and received royal assent from the Governor General on 26 July 2017. It was gazetted the next day.

Prohibited Groups (Anti-Terrorism) Act 2017

1. Short Title

This Act may be cited as the Prohibited Groups (Anti-Terrorism) Act.

2. Definitions

Terrorist Act means any unlawful act done in the furtherance of political or religious ideology for the purpose of damaging property or life.

Prohibited Group means any group formed for the purposes of committing terrorist and related acts.

Weapon includes knives, spears, swords and other tools.

Dangerous goods means explosives, highly flammable liquids, or any material capable of causing an explosion.

3. Commission of a Terrorist Act

Any person who, whilst a member of a prohibited group, commits a terrorist act is guilty of an offence.

Penalty: Up to 10 years imprisonment.

4. Supply a Terrorist Group

Any person who knowingly supplies weapons or dangerous goods to any member of a terrorist group is guilty of an offence.

Penalty: $10000 fine or up to 1 year imprisonment.

5. Promote Terrorist Activities

Any person who forms, joins, distributes information on behalf of, or promotes, the activities of a group is guilty of an offence.

Penalty: Up to 18 months imprisonment

FACTS:

On 18th September, Wendy, Travis and Linda come to your office to ask for assistance. They tell you that last year, Wendy and Travis watched a gruesome documentary about the meat industry and after that they both decided to become vegan. They advise that ever since that time they have felt very strongly that it is morally wrong for people to eat meat and animal products.

On 1st August 2017 Wendy and Travis made a pact with each other to do everything in their power to stop the killing of animals for food. They set up watch out the front of the local abattoir. Every morning and evening for a couple of weeks they would sit at the gate and watch the trucks coming and going. When the trucks were leaving, they recorded the noise from the trucks and on the recordings they say you can hear some of the animals still making noises as if they were still half alive.

Wendy and Travis tell you that on the 18th of August they decided to take some concrete action about this, so Travis sent a message to all of his friends on Facebook telling them they need to start protesting. The only person who replied was his friend Linda. The three organised to meet the next day and at that discussion they planned action for the next weekend on the 26th August.

The plan was for Linda and Travis to keep a watch outside while Wendy carried out the plan. She would use some bolt cutters and cut a hole into the wire fence at night. She would then use an oxyacetylene welder to burn the lock off the front door and then set up a camera inside. When the cameras were working Lind and Travis would set it up to stream what was happening inside the factory the next day on Facebook and let the media know that the streaming was happening. The next Saturday everything went to plan. Linda worked at a hardware store and so she bought the bolt cutters and the welder and gave them to Wendy on the night. She also let her friend know at the ABC that the streaming was going to happen.

The streaming showed extreme instances of cruelty in the abattoir and resulted in a media outrage and criminal charges against the owner. Unfortunately for your clients, the Federal police were also called in and decided to charge them with offences under the Prohibited Groups (Anti-Terrorism) Act. Wendy was charged under s3 and 5, Travis was charged under s5, and Linda was charged under s4 and s5.

Using the law of statutory interpretation only, use IRAC to advise your clients whether, in your opinion, they have committed any of the offences for which they have been charged.

Do not discuss criminal law principles (including defences), constitutional law or any other area of law. Refer to statutory interpretation law only.

Tutorial Week 2 Notes:

- What makes a good argument? Evidence, facts, statistics, research, structure, reasoning, knowledge, consider the audience (dont use technical legal terms meant for court, for your clients), non-emotional (or emotional when need be to strengthen your point), language used persuasive, succinct, personality, communication, precedent (previous cases on point), stay with one opinion, rebuttal, analysis, confidence, address the weaknesses in your argument, consider the opposing side, closing the argument, organisation, relevance.

- Tutorial First Task: Group 1: Youth Justice; not enough representation of kids (example Tiananmen Square, youth marching in protest). Everyone is impacted by political decisions. Army conscripts change in voting age from 21 to 18. Cant expect to be bound by body with no capacity to influence. Can work (consent to medical service, become parents), need to be able to be held responsible, not a radical change just want to be included. Positive effects on political participation. Increase the youths engagement in politics. Strengthen the mechanism of accountability (youth and politicians). Might bring youth issues that are ignored, to the forefront.

- Tutorial First Task: Group 2: Old and Wise; the development of the brain, not fully developed fully until 25. Even at 18 people act on careless decisions. Lack of interest and knowledge on the political system, political studies not taught in school or until in year 10, no basic education. Statistics only 86% voter turnout 18 25-year olds, lowest turnout of all age groups. Younger generation does not have an interest (general articles on government websites, journal articles, aph.gov.au). Emotional maturity is still being developed, so it might be unnecessary pressure. Water down the validity of educated voters, increase donkey votes resulting in skewed results. Workshops and education may be a better approach rather than letting them vote straight out. 39% of 14 16-year olds are working; however, it is more about spending rather than saving or investing. At 16 kids need approval and guidance from parents and are still influenced by their parents.

- In a legal setting we need to focus on legal information not scientific or moral statements. Cases, statutes, and interpretations of those.

- Second Task: drafting of a bill? Look at examples online.

Assignment One Part B:

Mary and Wallace have several legal rights in contention under the general provisions of the Preservation of Significant Historical Buildings Act 2020 (NT) (hereafter, the Act). To determine whether they have a valid defence against the relevant charges laid, the provisions must be read in conjunction with the relevant principles and doctrines relating to statutory interpretation.

Mary:

Did Mary commit an offence under s 4 of the Act?

To determine whether Mary has committed an offence in contravention of s 4 of the Act, the following issues must be considered:

Did the gallows and the shed constitute a building and if so, did the gallows and the shed have cultural or historical significance;

Was demolition of the gallows and the shed prohibited under the Act?

Historical or cultural significance is defined in the act under s 2 as having historical or cultural value to a significant proportion of the population. Historical and cultural are not further defined, however the Macquarie Dictionary defines historical as representing a landmark in history and cultural as of or relating to culture or cultivation. S 62A of the Interpretation Act 1978 (NT) states that a construction that promotes the purpose or object underlying the Act is to be preferred to a construction that does not promote the purpose or object. The purpose of this act, as demonstrated by the title, stated objects and the Second Reading speech is to deter the destruction of precious historical buildings and retain the preservation of cultural heritage.

The Gallows:

If the Court were to apply a purposive approach to interpretation, it would not convict Mary of the charge relating to the destruction of the gallows. The gallows are not a precious historical building and unfavourably represents Australias cultural heritage. Alternatively, a literal approach to interpretation would define the gallows as a building under the Act s 2 because it is known to be a wooden cross beam structure on the Alice Springs property. However, s 4 of the Act indicates that a building cannot be destroyed if it is of historical or cultural significance. Given that the wooden structure was used as gallows over 100 years ago, and was in a state of disrepair, it is unlikely that an ancient execution site has any positive historical or cultural significance. The gallows were not known to be famous nor has it been identified to be used infamously in colonial Australia. On this basis, a court would not convict Mary under s 4 of the Act.

The Shed:

Under s 2 of the Act, a shed is defined as a building. However, it can be argued that the shed is also not considered to be a precious historical building as it is only 10 years old. The shed is new and has no historical significance, it can be argued that it may have some sort of cultural value to some members of the population (s 2) due to Prince Williams visit to the site. However, the mischief of the act is to deter the destruction of precious historic buildings, not just any building. Because the historical and cultural significance of the shed cannot be definitively demonstrated, it is unlikely that Mary would be charged with the demolition of the shed as it would not be prohibited under s 4 of the Act.

Wallace:

Did Wallace commit an offence under s 4 of the Act?

To determine whether Wallace has committed an offence in contravention with s 4 of the Act, the following issues must be considered:

Did the homestead have historical or cultural significance under the Act;

Was renovating the homestead and installing a skylight prohibited under the Act?

In addition to the historical or cultural significance paragraph above, there is no contention about the homestead having historical and cultural significance under the Act as it was one of the first homes ever built in Central Australia. However, the issue of the renovation of the homestead and installation of the skylight is more complex and needs further discussion.

Renovating Homestead:

The Interpretation Act 1978 (NT) s 6(2) provides that a statute is effective when ... the Act is published in the Gazette. If Gazetted on the same day when assent is given, the Act comes into force immediately following publication of that gazette.

The Preservation of Significant Historical Buildings Bill 2020 was passed and given assent by the Administrator on 2 February. However, it was not published in the gazette until the following day. Therefore, in this case although the bill gained assent from the Administrator on 2 February 2020, the Act did not come into effect until it was gazetted the following day on 3 February 2020.

Wallace commenced extensive renovations of the homestead on 15 January 2020 and these renovations were completed on 2 February 2020. As the Act did not come into effect until 3 February 2020, Wallace would not be in contention with s 4 of the Act.

Installing Skylight:

S 2 of the Act states that damage includes causing permanent and significant alterations to a building. The literal interpretation of this provision gives rise to an absurdity, in that the act is clearly intended to prohibit the destruction of precious heritage buildings. Courts have used the golden rule to enable them to depart from the ordinary and natural meaning of the words, the grammatical and ordinary sense of the words may be modified so as to avoid that absurdity and inconsistency. It would make more sense in regard to the purpose of this act for this to be altered to something along the lines of: significant alterations which alter the historical aesthetic and heritage of a building. It would be absurd to not allow a person to make any renovations at all to their property, especially if they are not altering the overall aesthetic of the heritage building. The skylight was installed into the roof of the kitchen and was not a significant structural change, it did not alter the overall aesthetic of the homestead in any way. On this basis, it is highly unlikely that a court would convict Wallace of breaching s 4 of the Act.

Mary is likely to be acquitted of both counts under s 4 of the Act, as the historical and cultural significance of the gallows and the shed cannot be sufficiently demonstrated.

Wallace is also likely to be acquitted of both counts under s 4 of the Act, as his renovations were conducted and completed before the Act came into effect. Plus, his installation of the skylight has in no way damaged the overall heritage aesthetic of the homestead.

Word Count: 1,109

Note: Extension Approval Number [200918-000340]

Bibliography:

B Cases

Adler v George [1964] 2 QB 7.

Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) CLR 129.

Heydons case (1584) 3 Co Rep 7a, 7b; 76 ER 637, 638.

State Chamber of Commerce and Industry v Commonwealth (1987) 163 CLR 329, 348.

C Legislation

Interpretation Act 1978 (NT) s 6(2), s 62A, s 62B.

Assignment One Part B

Mary and Wallace have several legal rights in contention under the general provisions of Preservation of Significant Historical Buildings Act 2020 (the Act). To determine whether they have a valid defence against the relevant charges laid, the provisions must be read in conjunction with the relevant principles and doctrines relating to statutory interpretation.

Mary

Did Mary commit an offence under s 4 of the Act?

To determine whether Mary has committed an offence in contravention with s 4 of the Act, the following issues must be considered:

Whether the gallows and the shed constituted a building and if so, whether the gallows and the shed had cultural or historical significance;

Whether Mary demolishing the gallows and the shed was prohibited under the Act?

The Cultural/Historical Significance of the Gallows and the Shed

Law: Historical or cultural significance is defined in the act under s2 as having historical or cultural value to a significant proportion of the population. Historical and cultural are not further defined, however the Macquarie Dictionary defines historical as representing a landmark in history and cultural as of or relating to culture or cultivation. s62A of the Interpretation Act 1978 (NT) states that a construction that promotes the purpose or object underlying the Act is to be preferred to a construction that does not promote the purpose or object. The purpose of this act, as demonstrated by the title, stated objects and the Second Reading speech is to deter the destruction of historical buildings and retain the preservation of cultural heritage.

The Gallows - Destruction

Law:

Application: If the Court were to apply a purposive approach to interpretation, it would not convict Mary of the charge relating to destruction of the gallow. The gallow is not a precious historical building and unfavourably represents Australias cultural heritage. Alternatively, a literal approach to interpretation would define a gallow as a building under the Act because it is known to be a wooden cross beam structure on the Alice Springs property. However, s 3 of the Act indicates that a building cannot be destroyed if it is of historical or cultural significance. Given that the wooden structure was used as a gallows over 100 years ago, and was in a state of disrepair, it is unlikely that an ancient execution site has any positive historical or cultural significance. The gallows was not known to be famous nor has it been identified to be used infamously in colonial Australia. On this basis, a court would not convict Mary under s 4 of the Act.

Historical or cultural significance is defined in the act under s2 as having historical or cultural value to a significant proportion of the population. Historical and cultural are not further defined, however the Macquarie Dictionary defines historical as representing a landmark in history and cultural as of or relating to culture or cultivation. s62A of the Interpretation Act 1978 (NT) states that a construction that promotes the purpose or object underlying the Act is to be preferred to a construction that does not promote the purpose or object. The purpose of this act, as demonstrated by the title, stated objects and the Second Reading speech is to deter the destruction of historical buildings and retain the preservation of cultural heritage.

The Shed - Demolition

Law:

Application:

10 years not a long period of time, within public interest to update the shed. Purposive approach. Not historically significant.

Wallace

Did Wallace commit an offence under s4 of the Act?

The issue to be determined is whether Wallace has committed an offence under s4 of the Preservation of Significant Historical Buildings Act 2020 (NT). The offence sets out a number of elements which will be discussed in turn.

Was the homestead considered to have historical or cultural significance under the Act?

Law:

Application: Similar to paragraph 1a above. FUCK YES.

Was renovating the homestead and installing a skylight prohibited under the Act?

Renovating Homestead:

Yes, under this act, however act came into effect 3 February 2020. 15 January was way before the act commenced, and his renovations were complete a day before on the 2 February 2020.

The Interpretation Act 1978 (NT) s 6(2) provides that a statute is effective when ... the Act is published in the Gazette. If Gazetted on the same day when assent is given, the Act comes into force immediately following publication of that gazette. However, where it is gazetted on the following day, the law.

The Preservation of Significant Historical Buildings Bill 2020 was passed and given assent by the Administrator on 2 February. However, it was not until the following day when it was published in the gazette. Therefore, in this case although the bill gained assent from the Administrator on 2 February 2020, the Act did not come into effect until it was gazetted the following day: 3 February 2020.

Installing Skylight:

The installation of a skylight is an internal amendment. No, could argue a reasonable state of repair that did not mess up the overall heritage aesthetic of the building. Absurd to not be able to make any renovations at all. Could I apply the golden rule here?

significant structural changes. it would be absurd to assume that one cannot make any repairs to ones property. In the roof of the kitchen. He is trying to save electricity.

LWZ115 Legal Process Assignment Two

Bob, Will, and Dan have several legal rights in contention under the general provisions of the Prohibited Organisation Crime Prevention Act 2020 (NT) (hereafter, the Act). To determine whether they have a valid defence against the relevant charges laid, the provisions must be read in conjunction with the relevant principles and doctrines relating to statutory interpretation.

Bob:

Did Bob commit an offence under s 3 of the Act?

To determine whether Bob has committed an offence in contravention of s 3 of the Act, the following issues must be considered:

Did the bracelet and the jacket constitute as prohibited items and if so, has Bob violated s 3 of the act by wearing these items;

Is Bob considered a participant of a prohibited organisation and if so, has he violated s 3 of the act by wrestling outside?

The Bracelet:

The Jacket:

Participation:

Wrestling:

Will:

Did Will commit an offence under s 3 of the Act?

To determine whether Will has committed an offence in contravention of s 3 of the Act, the following issues must be considered:

Did the t-shirt constitute as a prohibited item and if so, has Bob violated s 3 of the act by wearing the item;

Is Will considered a participant of a prohibited organisation and if so, has he violated s 3 of the act by wrestling outside?

The T-shirt:

Participation:

Wrestling:

Dan:

Did Dan commit an offence under s 3 of the Act?

To determine whether Dan has committed an offence in contravention of s 3 of the Act, the following issues must be considered:

Is Dan considered a participant of a prohibited organisation and if so, has he violated s 3 of the act by wearing an LME t-shirt in his campaign photo?

Participation:

Campaign photo:

Assessment One Part A

A Solicitor v Council of the Law Society of New South Wales (2004) 216 CLR 253.

Procedural History

Paragraph 7

Paragraph 17

Appealed to the HC by A Solicitor

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2007/288.htmlOriginally instituted Commenced in Court of Appeal. Who sued who? At first instance, in which Court?

- Appealed in the High Court of Australia 2004.

- Originally heard before the New South Wales Court of Appeals 2002.

Material Facts:

Paragraph 23

- The appellant (A Solicitor) pleaded guilty to four counts of aggravated indecent assault on persons under the age of sixteen years (the victims were the children of a woman whom he is currently married to), contrary to s 61M of the Crimes Act 1900 (NSW). put paragraph numbers in.

- He was convicted and sentenced to three months imprisonment.

- On appeal, the solicitor was instead required to enter a recognisance to be of good behaviour for three years.

- The solicitor underwent rehabilitation of his own accord.

- Years later, following another complaint by one of the victims, further similar charges were laid.

- While those charges were pending the Respondent (Law Society of New South Wales) advised the solicitor that it was considering disciplinary action regarding the previous four admitted offences.

- The solicitor did not inform the Society of the additional charges.

- The Society commenced proceedings, invoking the inherent jurisdiction of the Court of Appeal of the Supreme Court, alleging that the conduct constituted by the four admitted offences was professional misconduct, for the removal of the solicitor's name from the roll of legal practitioners on the ground that he was not a fit and proper person to be a practitioner.

- Before the determination of those proceedings the solicitor was found guilty of the additional charges and sentenced to two years imprisonment.

- Those convictions were quashed on appeal. The solicitor then filed an affidavit in the disciplinary proceedings disclosing the further convictions and the decision on appeal.

- At the hearing of the disciplinary proceedings the Society alleged that the solicitor's failure to disclose the later convictions was a breach of his duty of candour amounting to professional misconduct.

- It argued that because of the conduct comprising the admitted offences and the breach of duty of candour, he was not a fit and proper person to be on the roll of practitioners.

- The Society applied for a declaration and an order that he be removed from the roll.

- The Court made the declaration and order, finding that the conduct in committing the acts of indecency (the subject of the first conviction) and that the conduct in failing to disclose the second conviction were both acts of professional misconduct and that in the light of the combined effect of these acts the solicitor was not a fit and proper person to be a legal practitioner.

Legal Issues:

- (1) That professional misconduct did not simply mean misconduct by a professional person. But even though conduct was not engaged in directly during professional practice, it might be connected to such practice as to amount to professional misconduct. Even when it did not involve professional misconduct, a person's behaviour might demonstrate qualities that require a conclusion that the person was not a fit and proper person to practise.

- (2) That in determining whether the personal misconduct constituted professional misconduct it was appropriate to consider the circumstances in which that conduct occurred and whether the instances were isolated.

- (3) That the solicitor's personal misconduct which was the subject of the convictions had not occurred during the practice of his profession, and it had no connection with that practice. The breach of the trust reposed in the solicitor in his parental like role, and the circumstances of the breach, were so remote from anything to do with professional practice that the characterisation of the conduct as professional misconduct was erroneous.

- (4) That when the solicitor was aware that the Law Society was considering disciplinary action for conduct which was the subject of the first convictions frankness required him to inform the Society of the further convictions and sentences for similar offences, even if he regarded them as unjust and hoped that they would be overturned on appeal, and his failure to inform the Society was professional misconduct.

- (5) That in determining whether the solicitor was a fit and proper person to be a legal practitioner it was correct to consider the combined significance of the misconduct which was the subject of the first convictions and the separate conduct constituted by the subsequent breach of candour to the Society.

The declarations made by the Court of Appeal were in the following terms:

1.[The appellant] is guilty of professional misconduct in that:

(a)he engaged in conduct for which he was, on 20 February 1998, convicted of four counts of aggravated indecent assault on [a] person under the age of 16 years contrary to s 61M of the Crimes Act 1900 (NSW).

(b)prior to serving his affidavit sworn on 31 August 2001 in these proceedings he failed to disclose to the respondent that he had been convicted on 7 November 2000 of further charges of aggravated indecent assault on a person under the age of 16 years contrary to s 61M of the Crimes Act 1900 (NSW) notwithstanding that at the time of that conviction the [appellant] was aware that the [respondent] was actively considering whether disciplinary action should be taken against the [appellant] in respect of previous similar convictions as set out in the [respondent's] letter dated 9 October 2000.

2.in the light of the matters in Paragraph 1 above the [appellant] is not a fit and proper person to be a Legal Practitioner of the Supreme Court of New South Wales. (judgement)

Judgment/s:

The duty of a legal practitioner to be candid in their dealings with their professional association is a professional duty. The breach of this duty amounts to professional misconduct. The appellant's professional obligations to the Law Society of New South Wales required him to disclose facts that were material to the respondent's decision about what, if any, action would be taken against him. The fact that his convictions for aggravated indecent assault were quashed was no excuse.

Per curiam. The Court of Appeal gave insufficient weight to the isolated nature of the admitted offences and the subjective case made on behalf of the solicitor. Making allowance for the need to consider the combined effect of the earlier misconduct and the breach of duty of candour, the appropriate order was that the solicitor should be suspended from practice for five years, not that he was unfit to practise. By reason of the first convictions, the appellant has not renewed his practising certificate since the 1998-1999 year. In effect, he has been unable to practise for more than five years. It would have been appropriate for the Court of Appeal to make an order for his suspension, but an appropriate order would not have extended beyond the present time. The Court of Appeal made an order for costs against the appellant, and that should stand. In those circumstances, no further sanction is required. The order that the name of the appellant be removed from the roll of legal practitioners was set aside.

The appeal should be allowed in part. Declarations 1(a) and 2 made by the Court of Appeal, and the order that the name of the appellant be removed from the Roll of Legal Practitioners should be set aside.

1.Appeal allowed in part.

2.Set aside declarations 1(a) and 2, and the order that the name of the appellant be removed from the Roll of Practitioners, made on 12 March 2002 by the Court of Appeal of the Supreme Court of New South Wales.

The Court of Appeal was right to treat very seriously the breach of the duty of candour involved in the conduct the subject of declaration 1(b). Even so, the circumstances in which it occurred were extraordinary. Making full allowance for the need to consider the combined effect of the 1997 conduct and the conduct the subject of declaration 1(b), it should not be concluded that it had been shown that, at the time of the decision of the Court of Appeal in March 2002, the appellant was unfit to practise. Declaration 2 should be set aside.

Address my issues.

(1)The term professional misconduct should not be interpreted as being limited to misconduct by a professional person. The fact that a person engages in misconduct during professional practice does not necessarily mean that it amounts to professional misconduct. Equally, the fact that the misconduct under consideration was not engaged in directly during professional practice is not decisive; the misconduct may be so connected to such practice as to amount to professional misconduct.

(2)The declaration made by the New South Wales Court of Appeal that the appellant was guilty of professional misconduct in relation to the 1998 convictions was in error.

The Court of Appeal gave insufficient weight to the isolated nature of the 1998 convictions and the powerful subjective case made on behalf of the appellant, including evidence of the appellant's character and rehabilitation and the extensive support he was receiving from his family. Further, the nature of the breach of trust relating to the 1998 offences was so remote from anything to do with professional practice that the characterisation of the appellant's personal misconduct as professional misconduct was erroneous.

Is the case still current law? If so, give an example of how it has been applied since:

The case is still current law as it was applied by the New South Wales Court of Appeal in Prothonotary of the Supreme Court of New South Wales v Thomson [2018] NSWCA 230 on 17/10/2018. (see if it was followed)

Word Count: 1609

Ratio: 51 In exercising its inherent jurisdiction to discipline legal practitioners the Court is not bound by any statutory definition of professional misconduct. Rather it has the capacity to determine, and act on the basis of, unfitness, where appropriate, without any need to stretch the concept of professional misconduct beyond conduct having some real and substantial connection with professional practice (A Solicitor v The Council of the Law Society of NSW [2004] HCA 1; (2004) 216 CLR 253 at [21]).

Assessment One Part A:

A Solicitor v Council of the Law Society of New South Wales (2004) 216 CLR 253Brief Procedural History:

The Law Society of New South Wales (Respondent) originally instituted a complaint against A solicitor (Appellant) (under Pt 10 Div 3 of the Legal Profession Act 1987 (NSW) (the Act)) with the Administrative Decisions Tribunal, Legal Services Division (the Tribunal), however it was decided that the Tribunal had no jurisdiction (due to a failure to comply with s 171J of the Act).

The Respondent then invoked the inherent jurisdiction of the Supreme Court of New South Wales referred to in s 171M of the Act and the case went to the Court of Appeal in 2002.

The Appellant then obtained required special leave and requested for appellate review of an adverse decision to the High Court of Australia in 2004.

Material Facts:

The Appellant was admitted as a solicitor in 1987.

1998: The Appellant was convicted on four charges of aggravated indecent assault on two children (aged twelve and ten respectively) and was sentenced to three months imprisonment.

Upon appeal the sentence was quashed, and instead the Appellant entered a recognisance to be of good behaviour for three years.

July 1998: The Respondent began disciplinary proceedings against the Appellant under Pt 10 of the Act, based on his four convictions.

Ultimately, those proceedings came to an end because of a procedural deficiency, the Tribunal found that its jurisdiction had not been properly invoked.

In 2000, further allegations of a similar nature were made against the appellant. He was convicted and sentenced to imprisonment for two years.

He appealed to the District Court. The Judge upheld the appeal and quashed the convictions and sentences.

The Tribunal's decision that it had no jurisdiction to deal with the respondent's proceedings against the appellant was given in October 2000.

At the time the new charges were pending, the Respondent wrote to the Appellant referring to the four convictions for the 1997 offences, indicating that it was considering further action and seeking any submissions he wanted to make.

On 7 November, the appellant was convicted on the new charges, and sentenced. He appealed.

On 17 and 21 November 2000, in further correspondence the Appellant did not mention the new charges against him, or his convictions and sentence.

In April 2001, the convictions and sentences were quashed.

In May 2001, the Respondent, still not aware of the new criminal proceedings, or the successful appeal, commenced proceedings in the Supreme Court under s 171M of the Act alleging that the 1997 conduct was professional misconduct, and seeking the removal of the Appellant's name from the roll of legal practitioners.

In August 2001, the Appellant filed an affidavit in the Supreme Court proceedings in which he referred to the charges of 2000, and the successful appeal.

The Respondent then added a further charge of professional misconduct, being the failure of the Appellant, to disclose the further charges and convictions.

Although those convictions were ultimately set aside, the failure to disclose them was said to be a breach of the Appellant's duty of candour to his professional association.

Legal Issues:

The decision in Ziems' case:

Was the appellants behaviour considered professional misconduct?

Professional misconduct may not necessarily require a conclusion of unfitness to practise, and removal from the roll. In that regard, it is to be remembered that fitness is to be decided at the time of the hearing. The misconduct, whether it amounts to professional misconduct, may have occurred years earlier. At the same time, personal misconduct, even if it does not amount to professional misconduct, may demonstrate unfitness, and require an order of removal. In a statutory context where the power of removal depends upon a finding of professional misconduct, it may be appropriate to give the expression a wider meaning, like that in s 127.

Disciplinary jurisdiction of the Supreme Court

In exercising its inherent jurisdiction to discipline legal practitioners is the Court bound by any statutory definition of professional misconduct? The present case was conducted on the basis that the definition of professional misconduct in s 127 of the Act did not apply, because the proceedings were brought in the inherent, not the statutory, jurisdiction. Was the court of appeal correct in removing the appellants name from the roll and stating that he was unfit to practise?

The declarations made by the Court of Appeal:

1.[Appellant] is guilty of professional misconduct in that:

(a)he engaged in conduct for which he was, in 1998, convicted of four counts of aggravated indecent assault on [a] person under the age of 16 years contrary to s 61M of the Crimes Act 1900 (NSW).

(b)prior to serving his affidavit sworn in 2001 in these proceedings he failed to disclose to the Respondent that he had been convicted in November 2000 of further charges of aggravated indecent assault on a person under the age of 16 years at the time of that conviction the [Appellant] was aware that the [Respondent] was actively considering whether disciplinary action should be taken against the [Appellant] in respect of previous similar convictions as set out in the [Respondent's] letter dated October 2000.

2.in the light of the matters above the [appellant] is not a fit and proper person to be a Legal Practitioner of the Supreme Court of New South Wales.

Judgment/s:

1. In the result, that leaves standing the finding of professional misconduct in declaration 1(b), and the facts of the 1997 conduct. The parties joined in submitting that, if this Court were to disagree in a significant respect with the Court of Appeal, it should not remit the matter to the Court of Appeal, but should, as was done in Ziems, form, and give effect to, its own view as to the appellant's present fitness in considering what consequential orders to make.

2. By reason by the events of 1997, the appellant has been unable to practise for more than five years. It would have been appropriate for the Court of Appeal to make an order for his suspension, but an appropriate order would not have extended beyond the present time.

3. Appeal allowed in part. Set aside declarations 1(a) and 2, and the order that the name of the appellant be removed from the Roll of Practitioners, made by the Court of Appeal of the Supreme Court of New South Wales.

Is the case still current law? If so, give an example of how it has been applied since:

Yes, it was applied by the New South Wales Court of Appeal in Prothonotary of the Supreme Court of New South Wales v Thomson [2018] NSWCA 230 on 17/10/2018.

Word Count: 1080

Bibliography:

B Cases

A Solicitor v Council of the Law Society of New South Wales (2004) 216 CLR 253

Prothonotary of the Supreme Court of New South Wales v Thomson [2018] NSWCA 230

Assignment 1 Part B:

Consider the following hypothetical scenario:

In the aftermath of a recent cyclone that left many buildings destroyed in Darwin, the Northern Territory Government introduced the Preservation of Significant Historical Buildings Bill 2020. In the Second Reading speech to the bill, the Minister for Planning and the Environment stated:

We in the Government are saddened by the recent destruction in Darwin and are committed to preserving what remains of our precious heritage buildings throughout the Northern Territory. This legislation will introduce hefty fines and potential imprisonment for people who degrade our heritage buildings. It is not our intention to prevent owners from doing repairs, but we do want historical buildings preserved in a state that maintains their cultural heritage.

Through these measures we will ensure we can protect our precious historical buildings and other structures of significant cultural value in our communities.

The bill was passed as follows. It gained assent from the Administrator on 2 February 2020, and was gazetted the following day:

Preservation of Significant Historical Buildings Act 2020

1) Object

The object of this Act is to protect buildings of historical significance in a state that retains their cultural value.

2) Definitions

In this act, unless the contrary intention appears, the following definitions apply:

building means a house, shed, or other structure.

damage includes causing permanent and significant alterations to a building.

historical or cultural significance means having historical or cultural value to a significant proportion of the population.

3) Failure to maintain a historical building

It is an offence for an owner of a building of historical or cultural significance to fail to maintain or keep that building in a reasonable state of repair.

Penalty: Maximum $5000 fine

4) Causing damage to a historical building

It is an offence for any person to damage, destroy or otherwise interfere with a building of historical or cultural significance.

Penalty: Maximum $20 000 fine or up to 2 years imprisonment.

Consider the application of the Preservation of Significant Historical Buildings Act 2020 (NT) in relation to the following hypothetical set of facts:

Wallace and Mary own a large cattle property and homestead on the outskirts of Alice Springs. The homestead was one of the first homes ever built in Central Australia. On 5 February, Mary demolished a wooden cross beam structure on the property that had been used as a gallows over 100 years ago and had been in a state of disrepair for many years. She also demolished a shed nearby, which was just 10 years old and had been in good repair, to make way for a new and bigger shed. The shed had been the site for a sheep shearing demonstration for Prince William and family on their visit to Australia in 2014.

On 15 January 2020, Wallace commenced extensive renovations of the homestead, including removing an external wall and replacing it with a glassed-in balcony. These renovations were completed on 2 February 2020. On 2 March 2020 he put a skylight into the roof in the kitchen.

Mary has been charged with 2 counts under s4 of the Act; one for demolishing the gallows and one for the shed. Wallace has been charged with 2 counts under s4; one for the homestead renovations on the 15 January and the other for the skylight on 2 March.

As lawyer for Mary and Wallace, outline the defence you would make on behalf of your clients.

Please use IRAC and statutory interpretation law only. Do not refer to any other kinds of law including council regulations, criminal law, constitutional law or any other kind of law.

1000 words.

Due date: 20.09.20

Assignment 2

Consider the following hypothetical situation:

In response to increasing violence in Darwin, the Northern Territory government introduced new legislation into the Legislative Assembly to attempt to curb the problem. At the second reading speech of the Concealable Weapons Bill the Minister said:

The Government has recognised the ever-growing problem of violence associated with dangerous and concealable weapons in certain areas of the Northern Territory. In response to community concern the government has introduced this Bill to provide stiff penalties for people found with concealable weapons on their person, or those who use such concealable weapons to cause harm. However the government recognises that some people may have legitimate reasons to carry such weapons and there is a mechanism to allow for that.

The Bill gained assent from the Administrator and was Gazetted on 1 June 2022.

Concealable Weapons Act

An Act to reduce concealable weapons in the community

1. Short Title

This Act may be cited as the Concealable Weapons Act.

2. Definitions

concealable means reasonably capable of being concealed.

harm means physical harm to a person by cutting, stabbing or wounding that person.

possess includes having custody, control or power.

weapon means a firearm, knife, spear or other item.

3. Offence to possess a concealable weapon

It is an offence to be in possession of a concealable weapon whilst in the vicinity of a public place.

Penalty: $5000 fine or 2 years imprisonment.

4. Offence to transport a concealable weapon into the Northern Territory

It is an offence for a person to transport into the Northern Territory a concealable weapon.

Penalty: $2000 or 1 year imprisonment.

John is returning from a trip to Thailand. In Thailand he purchased some ornamental brass knuckles (brass knuckles are pieces of metal, shaped to fit around the knuckles and designed to deliver the force of punches through a smaller and harder contact area). On arrival at Darwin Airport, on 10 June 2022, he declares he is not carrying any weapons. On a search by Customs he is found with the brass knuckles in his suitcase. He states they are a paper-weight and not a weapon. He is not believed and is charged with a breach of section 4 of the Act.

Advise (with reference to the principles of statutory interpretation and using IRAC) as to Johns possible liability under the Act.

Betty is of a nervous disposition. One day she decides to order a small can of self defence pepper spray from the internet, designed to be carried in a ladys purse. She doesnt have a credit card to make the order so asks if she can borrow her friends credit card. On 11 June 2022, Betty fills out the order form with her friends details. The spray is ordered in her friends name, it is delivered to her friend who gives it to Betty. A week later Betty is stopped by police in a public car park. On a search of her hand bag the police find the can of pepper spray. Betty is charged with breaches of sections 3 and 4 of the Act.

Advise (with reference to the principles of statutory interpretation and using IRAC) as to Bettys possible liability under the Act.

Please answer using the IRAC method. Discuss statutory interpretation law only, do not discuss issues of criminal liability (eg mens rea, defences to criminal liability, etc), do not discuss constitutional law or any other area of law except statutory interpretation.

1000 words. Due date: Sunday 23rd October 2022.

Criteria Description Marks To gain high marks for this section:

1: Content Describe and demonstrate understanding of the relevant law 10 Demonstrate an accurate and comprehensive knowledge of the relevant law, and a high ability to analyse and apply it and other relevant material to answer the question; demonstrate originality or flair; work is interesting, well read or scholarly.

2: Style Write using correct citation and referencing, free from plagiarism 5 Use correct AGLC citation and referencing for all relevant points.

3: Language Style and structure 10 Writing logically structured using subheadings. Sentence and paragraph length assist readability. Language is clear, concise and precise. Writing free of spelling errors and grammatical mistakes.

Assessment One:

Choose one of the following cases to read and summarise.

Dietrich v The Queen (1992) 177 CLR 292

Roach v Electoral Commissioner (2007) 233 CLR 162

Secretary, Department of Health and Community Services (NT) v JWB and SMB (Marions Case) (1992) 175 CLR 218

Briefly outline the procedural history, material facts, legal issues and judgment/s (focusing on reasons for the decision and dissenting judgments if there are any). Is the case still current law? If so, give one case example of how it has been applied since.

(1000 words: 25%)

Due date: Sunday 25.09.22

Assignment 3

Consider the following hypothetical scenario:

The Commonwealth Government recently introduced the Prohibited Groups (Anti-Terrorism) Bill in response to public calls for specific legislation to deal with the threat of terrorism. The Minister introducing the bill said in the second reading speech:

The government understands the insidious threat of terrorism in Australian society and this bill creates strong legal sanctions against groups that advocate violence, or seek to pursue their goals through violence. This bill is being introduced to provide very serious penalties to extremists planning attacks against Australian citizens and in doing so will prevent civilian casualties on Australian soil. The government is doing everything it can to keep the people of Australia safe and to stop extremist violence in its tracks. This bill is about protecting the people of Australia from injury, death or harm.

The Bill was passed without amendments. It received Royal Assent from the Governor General on 31 January 2021 and was gazetted the next day.

Prohibited Groups (Anti-Terrorism) Act 2021

1. Short Title

This Act may be cited as the Prohibited Groups (Anti-Terrorism) Act.

2. Definitions

Explosive goods means explosives, highly flammable liquids, or any material capable of causing an explosion.

Prohibited Group means any group formed for the purposes of committing terrorist and related acts.

Terrorist Act means any act done in the furtherance of political or religious ideology for the purpose of damaging property or life.

Weapon includes knives, spears, swords and other tools.

3. Commission of a Terrorist Act

Any person who, whilst a member of a prohibited group, commits a terrorist act is guilty of an offence.

Penalty: Up to 10 years imprisonment.

4. Supply a Terrorist Group

Any person who knowingly supplies weapons or explosive goods to any member of a terrorist group is guilty of an offence.

Penalty: $10000 fine or up to 1 year imprisonment.

5. Promote Terrorist Activities

Any person who forms, joins, distributes information on behalf of, or promotes the activities of a group is guilty of an offence.

Penalty: Up to 18 months imprisonment

FACTS:

On 1st February 2021, sitting at their home in Alice Springs, Wendy and Travis watched a gruesome documentary about the meat industry and after that they both decided to become vegan. They tell you that ever since that time they have felt very strongly that it is morally wrong for people to eat meat and animal products.

On 7th February 2021, Wendy and Travis made a pact with each other to do everything in their power to stop the killing of animals for food, and decided to take action against the local abattoir. They formed a kind of secret club; calling themselves the guerrillas and agreeing that their mission was to undertake civil disobedience action and public disturbances aimed at preventing cruelty to animals. They decided on their first action; to expose the practices at the abattoir via live streaming. Travis sent a message to all of his friends on Facebook telling them they needed to start planning a break-in. The only person who replied was his friend Linda. The three organised to meet the next day on the 8th February. At that discussion they made their plan. The plan was for Linda and Travis to keep a watch outside the abattoir while Wendy broke into the facility. She would use some bolt cutters and cut a hole into the wire fence at night. She would then use an oxy acetylene welder to burn the lock off the front door of the shed and then set up a camera inside. When the cameras were working she would set them up to stream what was happening inside the factory to Facebook and Linda would let the media know that the streaming was happening. The planned day of action was the 28th of March.

Linda worked at the local hardware store so on 15th March she bought the bolt cutters and a welder and gave them to Wendy. On the same day she let her friend, at the ABC know that the streaming was going to happen.

On 28th of March everything went as planned. The streaming showed extreme instances of cruelty in the abattoir and resulted in a media outrage and criminal charges against the owner. Wendy, Linda and Travis were also charged. Wendy and Travis were both charged under s5 for the events on 7th February, and Wendy was charged under s3 and s5 for the events on 28th March. Linda was also charged under s5 for telling her ABC friend about the plan and s4 for supplying the oxy acetylene and bolt cutters.

Using the law of statutory interpretation only, use IRAC to advise your clients whether, in your opinion, they have committed any of the offences for which they have been charged, and what arguments (if any) could be made in their defence.

Do not discuss criminal law principles (including defences and mens rea), constitutional law or any other area of law. Refer to statutory interpretation law only. 2000 words max.