LSU100 combined notes

Theories of law

• natural law

• Human law

• Legal positivism

Types of law

• religious

• Customary

• Civil

• Common

• Statute

Simplified general explanation of law

A system of rules which have consequences for non-adherence

Primary sources of law

Legislature and judicature

Secondary sources of law

International law, law reform commission reports and academic commentary

Dominant legal traditions in the Western world

Civil law tradition and common law tradition

Examples of countries who use common law

• USA

• Australia

• Canada

• India

• NZ

• Singapore

Where is the civil law tradition prominent?

Europe. 26/28 member states in the European community use civil law.

Role of judges in civil law tradition

Interpret and apply codified law

Role of judges in common law tradition

Interpreting legislation and acting as custodians to case law

2 types of international law

Public and private

Are countries legally obligated to adopt suggestions from conventions and treaties?

No. It is a voluntary obligation, not compulsory. In Aus, suggestions can be adopted through the parliamentary process.

Sources of international law

• international conventions

• International customs

• General principles of law

• Judicial decisions

Historical background of the civil law tradition

Started in Ancient Rome with a labour code that was later called “corpus juris civilis” by emperor Justinian. It was rediscovered in Italy (late 11th century) and became the basis of the civil law system.

State courts

• Local/magistrates court

• District/county court

• Supreme court

• Supreme court of appeal

• tribunals

• specialist courts

Is the Commonwealth judicature constitutional?

Yes. Chapter 3 vests judicial powers to the HCA, federal court and FCFC with federal jurisdiction

What are the 2 jurisdictions of the high court?

• original

• appellate

When can the HCA declare laws invalid?

If they fall outside of the S51 powers and someone brings a challenge or question for determination.

How many justices in HCA?

7 justices. Appointed by the Governor General on the advice of the Government.

What is judicature?

The system of judges and courts

What is jurisdiction? What are the different jurisdiction?

The court’s power to hear a certain matter or a certain type of matter.

• Original jurisdiction is the power to hear a case on the first instance

• Appellate jurisdiction is the power to hear appeals from lower courts. Examines whether the judge erred from the law, rather than look at evidence again

• Criminal jurisdiction is person vs state

• Civil jurisdiction is everything not criminal or administrative

How to take appeal cases to the HCA?

Have to appeal from the Supreme Court of Appeal or the Federal Court of Appeal. Have to gain special leave.

What is the original jurisdiction of the Federal Court?

Bankruptcy, trade practices, administrative law, immigration law and industrial law

What is the FCFoA?

Federal circuit and family court of Australia. Created in 2021.

How many divisions of the FCFoA?

Two. Div 1 for more complex matters and division 2 for other matters.

Which cases go to the local court?

Civil disputes involving up to $100,000. Criminal matters where maximum penalty is 2 years imprisonment or less.

What are the specialist courts?

• Children’s court

• Drug court

• Land and environment court

• Koori court

• Coroner’s court

• Tribunals

Stare decisis

Means “let the decision stand”. Courts shouldn’t change the law unless they absolutely have to.

Who was Sir William Blackstone?

A professor who studied all the judgements that judges had previously made and attempted to clarify them into legal principles.

Ratio decidendi

The grounds on which a judge reasons in a case

Obiter dicta

Comments made by the judge that are not strictly relevant to the outcome of the case.

Res Judicata

Means “that which is decided is closed”

Distinguished meaning in precedent

The court decided the case was materially different and decided not to apply it

Overruled meaning in precedent

A higher court has decided the decision of a lower court shouldn’t be precedent

Considered meaning in precedent

The court has thought about the case but didn’t use it

Cited meaning in precedent

The court has referred to the case but didn’t consider it

Is the decision of the federal court binding on a Supreme Court?

No. But the decision of the HCA is binding for a Supreme Court.

What are the judicial approaches to precedent?

• legal correctness

• Legal formalism

• Legal realism

• Judicial activism

Legal correctness

The answer is in the law because the law is consistent and timeless.

Legal formalism

Strict separation between powers is necessary and it’s the parliament’s job to make laws. Thus, the law must be applied regardless of whether it is fair or not. Used in Australia until 1970s.

Legal realism

Acknowledges that judges always have some sort of bias. Judge may acknowledge the law is unfair and ask parliament to amend it.

Judicial activism

Judges are the promoters of justice and take a contextual approach on law. If a law creates injustice, don’t apply it. Sometimes necessary when legislation is poorly drafted.

How many parliaments are there? What are they?

9 parliaments

6 state, 2 territory and 1 commonwealth.

Where does the authority for each parliament to pass legislation come from?

• respective constitutions

• Self-governing legislation

• Commonwealth constitution

What is the preferred source of law?

Legislation (parliamentary sovereignty;

Functions of legislation

• make new law

• amend existing law

• repeal old law

• codify existing law

Which state/territory parliaments are unicameral?

• ACT

• NT

• QLD

Process for bill to become legislation

• presented to the lower house, read twice and voted on

• If passed, goes to upper house and is voted on

• If passed, goes to lower house and is voted on again

• Goes to the relevant governor/administrator/governor general for assent

After how long does federal legislation come into force after assent?

28 days

What is delegated legislation?

Legislation created by people or groups other than parliament. Takes the form of regulations, rules and by-laws.

Reasons for delegated legislation

• Saves parliamentary time

• Allows for technical expertise

• Allows parliament to focus on important matters (rather than council matters)

Amendment titles

Amendments will typically have the same name as the og act + “amendment”

Sunset clause

A set date the act will be repealed automatically written in the act itself.

Main approaches to statutory interpretation

• modern approach

• Common law approach

Tools used in modern approach

• Interpretation acts (Acts Interpretation Act 1901 for federal legislation; depends on jurisdiction)

• Intrinsic materials (long title, objects clause, definition sections, headings and schedules)

• Extrinsic materials (explanatory memoranda, second reading speeches, records of parliamentary debates and more)

Common law approaches

• Literal approach (apply the ordinary meaning of words)

• Golden rule (modify ordinary meaning of words if it creates an absurd outcome)

• Mischief rule (to fix inconsistencies that come from applying the literal rule)

Examples of legal practictioners

Solicitors, barristers, judges, magistrates, tribunal members and employed legal officers

How do I become a lawyer?

1. Complete a law degree

2. Complete PLT (coursework + supervised workplace learning)

3. Apply to Supreme or High Court Roll for admission and prove you are a “fit or proper person”

4. Obtain a practicing certificate from the law society in your jurisdiction and maintain it

Note that barristers have seperate additional steps to complete

What is the difference between a barrister and solicitor?

Solicitors work with clients directly and prepare cases for court. Barristers argue in court.

This is not rigid tho.

What is a specialist lawyer?

A lawyer who has an area of expertise (banking, family, crime, property etc). They tend to reduce time and costs because they can work efficiently in their area of law.

What is a generalist lawyer?

A generalist lawyer doesn’t have a specialisation. They are more common in suburban areas and make law more accessible.

What are law societies?

They represent the interests of the profession (assisting members, professional development, standards of professional practice, practicing certificates and more).

Peak bodies are the Law Council of Australia and the Australian Bar Association.

What are the Solicitor’s Conduct Rules?

Rules governing the conduct of solicitors. Each jurisdiction has their own but they reflect the rules set by the Australian Solicitors’ Conduct Rules 2025.

Legal Profession Uniform Legal Practice (Solicitors) Rules 2015 for NSW.

What is the Barristers’ Conduct Rules?

A set of rules for how barristers should conduct themselves - unique to each jurisdiction.

Legal Profession Uniform Conduct (Barristers) Rules 2015 for NSW.

What is professional misconduct?

• unsatisfactory professional conduct where a lawyer fails to reach or maintain a reasonable level of competence and diligence

• Conduct of lawyer that proves they are not a fit or proper person to practice.

Career options after an LLB

• Law

• Politics

• Business

• Other options