Legal Research and Writing Assignment: Legal Writing

Appendix 1

R Edney and M Bagaric, Australian Sentencing: Principles and Practice (Melbourne: Cambridge University Press, 2007)

Dietrich V R [1992] HCA 177 CLR 292 (13 November 1992)

Jethro K. Lieberman, ‘Bad Writing: Some Thoughts on the Abuse of Scholarly Rhetoric’ (2004-2005) 49 New York School Law Review 649

Margaret Davies, Asking the Law Questions: The Dissolution of Legal Theory (2nd ed, LawBook Co. 2002) 257-286

Dr Julie Cassidy, ‘The Impact of the Conquered Distinction regarding the Acquisition of Sovereignty in Australia’ (2004) 8 Southern Cross University Law Review 1-50

Children (Protection and Parental Responsibility) Act 1997 NSW

Peace and Non-Violence Commission Bill 2007 (Cth)

1249 UNTS 13

Commonwealth, Parliamentary Debates, House of Representatives, 25 November 200, 1-2 (Anthony Albanese, Minister for Grayndler

LexisNexis AU, Halsbury’s Laws of Australia, (at 28 November 2010) 145 Defamation, ‘IV Malice’ 145-2420.

Bibliography

Articles/Books/Reports

R Edney and M Bagaric, Australian Sentencing: Principles and Practice (Melbourne: Cambridge University Press, 2007)

Jethro K. Lieberman, ‘Bad Writing: Some Thoughts on the Abuse of Scholarly Rhetoric’ (2004-2005) 49 New York School Law Review 649

Margaret Davies, Asking the Law Questions: The Dissolution of Legal Theory (2nd ed, LawBook Co. 2002) 257-286

Dr Julie Cassidy, ‘The Impact of the Conquered Distinction regarding the Acquisition of Sovereignty in Australia’ (2004) 8 Southern Cross University Law Review 1-50

Cases

Dietrich V R [1992] HCA 177 CLR 292 (13 November 1992)

Legislation

Children (Protection and Parental Responsibility) Act 1997 NSW

Peace and Non-Violence Commission Bill 2007 (Cth)

Treaties

1249 UNTS 13

Other

Commonwealth, Parliamentary Debates, House of Representatives, 25 November 200, 1-2 (Anthony Albanese, Minister for Grayndler

LexisNexis AU, Halsbury’s Laws of Australia, (at 28 November 2010) 145 Defamation, ‘IV Malice’ 145-2420

Task 2:

The Honourable Justice Michael Kirby, Justice of the High Court of Australia, surveys the existing function of the Doctrine of Precedent in Australia.

The Doctrine of Precedent has declined today but has been described as “the Hallmark of the Common Law" [1] and is still regarded as the core of the Australian Legal System.

There are two main views on the Doctrine of Precedent today:

Obedience from the stability, durableness and predictability of binding precedent is crucial to the public assurance in law and the ability to achieve its functions in a correct method.

Too rigid if stuck adherently to [2] Cutting of prescribed constitutional and legal ties with the Privy Council, which was, under the constitution Australia’s Highest Court, these ties were cut between 1970-1980. This according to Justice Kirby has been the ‘most significant’ phase that has affected the Doctrine of Precedent.

The High Court of Australia is the highest court in Australia, this is shown by the fact that Australian law at present almost entirely depends on decisions made by Australian courts and legislators who apply and develop Australian precedent.

Precedent does not signify that lower courts are bound by all that is said by a higher court in what has been decided or by what they have examined. Justice Kirby notes that it’s the ratio decidendi that binds, which is established from the majority of Judge’s examination of the grounds. Justice Kirby noted that this way of obtaining a binding precedent, stops dissent, obita dicta and judicial remarks etc becoming a part of the binding precedent [3] . Kirby also notes that it is important and required to have set rules when determining any binding law within in a higher court’s judgment. So in the High Court where the binding decision has been obtained by a statutory majority [4] it has been questioned as to whether these decisions are binding.

Justice Kirby expresses a territory where the High Court is vague. The High Court determines matters on constitution and is the last court of appeal, however Justice Kirby notes an interesting query, is the High Court rigorously bound “by legal holdings" enclosed in their own previous decisions. No established rules have been set for the instances where a previous decision can be overruled [5] . Decisions should only be overruled in outstanding instances and this should be done with prudence. Justice Kirby notes that this “rule" doesn’t automatically affect constitutional matters. The High Court in these occurrences willingly re-examines its previous decisions, as constitutional matters can’t be overruled by legislature according to Justice Kirby, Justice Kirby states they have an “obligation to the constitution" higher than obedience to a legal Doctrine of Precedence [6] . Human rights matters within the constitution issue, least apply the Doctrine of Precedent, as “individual rights and fundamental freedoms" are most vital.

The High Court does not regard itself bound by its previous decisions, Justice Kirby notes that it is good practice to seek leave before any dispute to previous ‘authority’ is looked into [7] .

Kirby suggests that there is a debate about the “judicial methods" which is between strict and complete legalism [8] and judicial restraint [9] in opposition to judicial activism [10] and judicial creativity. The different judicial methods and the tension between enduring with the processes or transform the law.

The creation of the internet. Justice Kirby suggests there is too much information available, that there must be a difference between “quantity and quality".

The increased utilization of international legal material is also a factor. This is shown by examples such as at Harvard Law School where international law is a compulsory subject in the first year.

Kirby notes that the most momentous change in law pertinent to the function of the Doctrine of Precedent is the enhanced use of statute law. The quantity and significance of legislation draw a parallel with the reduction of the Doctrine of Precedent. This change has happened in the United States of America and Kirby suggests that this will have ‘consequences’ for legal schooling in Australia due to the fact we share matching ‘social phenomena’.

Task A:

The debate is between strict and complete legalism and judicial restraint opposed to judicial activism and judicial creativity.

Strict and complete legalism was articulated by Sir Owen Dixon as the only way to preserve the assurance of all participants in Federal disagreements, and that there is no superior method to judicial decisions in disagreements.

Judicial activist or realist actually lets judges have a larger role and capacity in law making. It supports flexibility and more accepting of ‘community values’. Examples of where Australian cases have shown this type of judicial methodology is Mabo v Queensland (No 2) (1992) HCA 23; 175 CLR 1 and Dietrich v R [1992] HCA 57; 177 CLR 299 . Kirby states that it has helped with the development of constitution freedom of political communication, reversal of the doctrine of terra nullius and native title rights.

Task B:

Position on the judicial method debate goes towards the judicial creativity/activism side.

This is supported by growing examples of cases and decisions classified as judicial activism. It promotes society principles, rights to sovereignty, native title rights as seen in Mabo [11] and further rights for indigent persons such as the right to legal representation in a trial which was seen in the case of Dietrich [12] .

Task 4:

SLACK & SLICK SOLICITORS

Dear Madam,

We have been instructed by our client that your client’s offer has not been accepted.

Conduct of your client has gone against express representations, and they have not acted in good faith. We enclose a schedule which provides our client with statutory rights and remedies against your client.

Our client makes the following offer:

Your client grants our client a lease for 99 Compliance Lane, for not less than three years from the date of this letter. With an option for a further lease over the premises for a additional term of three years. Notice of this must be given in writing at least three weeks before the end of the lease.

The offer is valid for a period of three days from the date of this letter. If accepted, your client is to advise our client in writing and facsimile. Facsimile is to be received by 5pm on the last day of the acceptance period.

Please instruct us of your client’s reply within the three day period.

Yours respectfully,

Bibliography

Articles/Books/Reports

B Horrigan, “Towards a Jurisprudence of High Court Overruling" (1992) 66 ALJ 199

A F Mason, “The Use and Abuse of Precedent" (1988) 4 Australian Bar Review 93, at 93

M Kirby, “Precedent Law, Practice & Trends in Australia" (2007) 28 (3) Australian Bar Review 243

Cases

Dietrich V R [1992] HCA 177 CLR 292 (13 November 1992)

Mabo v Queensland (No 2) (1992) HCA 23; 175 CLR 1

New South Wales v The Commonwealth (2006) 231 ALR 1 at 215 [748]-[753]

Evda Nominees Proprietary Ltd v Victoria (1984) 154 CLR 311