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Laws RW Week 2 Notes

  • AUSTRAL • NOTRE TRE DAME UNIV

  • THE UNIVERSITY OF NOTRE DAME AUSTRALIA

  • LAWS1000

  • Legal Research and Writing

  • Week 2: Sources

  • Reading Basic Cases

  • Introduction to (F)IRAC and legal hypotheticals

  • Fremantle

  • Broome

  • Sydney

  • nd.edu.au

Sources of Law in Australia
Legislation/Statute

Legislation refers to the primary source of law comprised of rules formally enacted by a Parliament or other legislative body. These laws are typically known as Acts (or Statutes) of Parliament and represent the supreme will of the democratically elected representatives.

  • Rules set down by Parliament: These are codified laws passed through a formal legislative process, debated and approved by both houses of Parliament (where applicable) and assented to by the Governor-General (Commonwealth) or Governor (State). They cover a vast array of subjects, from criminal law to environmental protection.

  • Delegated legislation: This refers to laws made by bodies other than Parliament, but under the specific authority granted to them by an Act of Parliament. This includes:

    • Regulations

    • Rules

    • By-laws (often made by local councils)

    • Ordinances
      Delegated legislation allows for greater flexibility and efficiency, enabling experts to create detailed rules necessary for the practical implementation of broader statutory frameworks without Parliament having to legislate on every minute detail.

  • Jurisdictional Levels: In Australia, legislative power is divided between the Commonwealth Parliament and the Parliaments of each State and Territory. Each operates in parallel, meaning both Commonwealth and State laws apply within their respective spheres.

    • Commonwealth Legislation: Deals with specific matters enumerated in the Australian Constitution (e.g., taxation, defence, external affairs, marriage, corporations).

    • State Legislation: Covers all residual and general matters not exclusively assigned to the Commonwealth (e.g., education, health, criminal law, property law, civil procedure).

  • Conflict of Laws: Should a State law be inconsistent with a valid Commonwealth law on a concurrent matter, Section 109 of the Australian Constitution dictates that the Commonwealth law will prevail to the extent of the inconsistency. However, this supremacy only applies if the Commonwealth Parliament has the constitutional power to make that law.

  • Statutory Interpretation: Since legislation can be complex and its application to specific facts uncertain, courts employ specific rules and principles of statutory interpretation (a key topic in LAWS1010). This ensures a consistent approach to determining Parliament's intent and how an Act applies to a given case.

  • Legislation prevails over common law: In the hierarchy of legal sources, validly enacted legislation holds supremacy over common law. This means that if a common law principle developed through judicial decisions conflicts with a valid statute, the statute will override the common law rule. Parliament, as the democratically elected body, has the power to modify or abolish common law rules through legislative enactment.

Sources of Law in Australia
Case Law/Common Law/Precedent

Case law, also known as common law or precedent, refers to the body of legal principles derived from the historical decisions of judges in individual cases, rather than from legislation. These rules have developed over centuries of judicial decision-making.

  • Rules that have developed over time: The common law system acknowledges that the legal framework extends beyond written statutes. It encompasses a vast collection of rules and principles that have evolved through judicial interpretation and application of law to diverse factual scenarios. This includes fundamental principles governing contracts, torts (civil wrongs), and property law, as well as the various principles that guide the interpretation of legislation itself.

  • Encourages COHERENCY and CONSISTENCY in decision making: This is achieved through the doctrine of stare decisis (Latin for "to stand by things decided"), which is the bedrock of common law systems. It mandates that courts must follow the legal principles established in previous decisions by higher courts in the same judicial hierarchy when dealing with cases that have similar material facts. This stability ensures fairness, predictability, and efficiency in the legal system.

  • Identified through reading cases: Understanding common law requires careful analysis of judicial judgments to extract the legal rules and principles applied by the courts.

Sources of Law in Australia
Precedent: Binding and Persuasive

The doctrine of precedent, also known as stare decisis, is fundamental to common law systems, ensuring consistency and predictability in legal decisions. It dictates that courts must follow the legal principles established in previous cases by higher courts in the same hierarchy. Precedent can be either binding or persuasive.

  • Binding Precedent:

    • Ratio decidendi: This Latin term means "the reason for the decision." It refers to the essential legal principle or rule upon which the court's decision is based. It is the crucial part of a judgment that directly resolves the legal issue before the court. The ratio decidendi is binding on later, lower courts within the same judicial hierarchy when confronted with cases that have similar material facts. Identifying the ratio requires careful analysis of the judgment to distinguish the essential reasoning from incidental comments.

  • Persuasive Precedent:

    • Obiter dicta: Meaning "things said by the way," obiter dicta are legal statements or observations made by judges that do not form part of the ratio decidendi. These include hypothetical scenarios, general remarks on the law, or comments not directly relevant to the core legal issue. While obiter dicta are not legally binding, they can be highly persuasive due to the eminence of the judge or the court, potentially influencing future decisions.

    • The reasons given by the minority judges or by dissenting judges: When a court decision is not unanimous, judges who disagree with the majority's conclusion write dissenting judgments. These judges articulate their own reasoning and legal principles, often constructing arguments as if they were in the majority. However, since their reasoning did not form the basis of the court's actual decision, it is not binding precedent. Nevertheless, dissenting judgments can be highly persuasive, offering an alternative legal perspective that may later be adopted by future courts, sometimes leading to a change in the law.

    • Ratio or reasoning from non-binding courts: This includes:

    • Lower courts: Decisions from courts lower in the same hierarchy (e.g., a Magistrate's Court decision is not binding on a Supreme Court) are generally not binding on higher courts, but their reasoning can be persuasive if well-articulated and relevant.

    • Courts in different jurisdictions: Reasoning from courts in other legal systems, such as other Australian States (if not the High Court), or common law countries like the United Kingdom, Canada, or New Zealand, is not binding in Australia. However, where there is no direct Australian precedent, or to draw upon comparative legal insights, such decisions can be highly persuasive, particularly if from superior courts in those jurisdictions.

Sources of Law go ‘hand in hand’

  • They operate in conjunction with each other: Legislation and common law are not isolated but are deeply intertwined and continuously interact.

    • The most obvious example is that cases are referenced as authority when interpreting legislation: Judges constantly interpret statutes, and their interpretations become part of the common law principles surrounding that legislation. This happens in several ways:

    • For general rules of interpretation: Courts rely on common law principles (e.g., the literal rule, the golden rule, the mischief rule, purposive approach) to ascertain Parliament's intent when drafting legislation.

    • With regard to decisions regarding specific legislation or similarly worded legislation: Previous judicial decisions on the meaning of specific words or sections within an Act, or comparable Acts, provide precedents that guide future interpretations.

    • Legislation can modify or abolish common law rules, and common law can fill gaps where legislation is silent or provides broad principles. This dynamic relationship ensures the legal system remains comprehensive and responsive.

  • Magna Carta, provided by the British Library in the Public Domain at https://commons.wikimedia.org/wiki/File:MagnaCartaconfirmedbyHenry_III.jpg

FIRAC/IRAC – Who gives an ‘F’?

  • You will sometimes see this method written as FIRAC and sometimes as IRAC:

    • This is a personal preference of the author/lecturer/source. They are, fundamentally, the same analytical process. You might also see ILAC (Issue, Law, Application, Conclusion) or IPAC (Issue, Principle, Application, Conclusion) or similar variations.

  • The ‘F’ is sometimes left off because facts are woven through a lot of the process:

    • In particular, facts will often (almost always) arise in the context of ‘A’ (Application/Analysis). The initial "F" is not meant to be a comprehensive summary of all facts.

  • The ‘F’ at the beginning are THOSE FACTS THAT TRIGGER AN ISSUE:

    • Not ALL FACTS. This is a big mistake that students make when thinking of ‘(F)IRAC’ – they give too many non-material facts at the beginning and then are repetitive or poorly structured in their analysis. The initial facts should be limited to those essential for understanding the core legal problem.

(F)IRAC: A Structured Approach to Legal Problem Solving

(F)IRAC is a widely used methodology for organizing legal arguments and problem-solving. It provides a structured framework for analyzing legal hypotheticals and case scenarios.

  • F Facts: This section presents the key facts from the scenario that are legally relevant and point to the PROBLEMS facing the characters. Focus only on the material facts – those that are essential for applying the law or determining the outcome. Non-material facts should be omitted to maintain clarity and focus.

  • I Issues: These are the specific legal QUESTIONS that need to be resolved to provide a solution to the problem. Issues should be framed as questions, often beginning with "Does…" or "Is…". They identify the ambiguity or dispute regarding:

    • What is the precise meaning of the rule/exception?

    • Does the rule/exception apply to the particular facts at hand?

    • Are there any defenses or counter-arguments that need to be addressed?
      Well-formulated issues delineate the scope of your legal analysis.

  • R Rules/Relevant Law: This section outlines the LAWS (statutory or common law) that will be used to answer the identified issues. It's crucial to state the legal rules accurately and precisely. These rules may include:

    • Established legal principles or statutes.

    • Exceptions to general rules.

    • Broad legal principles rather than specific rules.

    • The elements of a cause of action or defense.
      For each issue, present all applicable rules before moving to the application.

  • A Application/Analysis/Argument: This is the most crucial part of the (F)IRAC method, where you apply the identified legal rules to the specific facts of the scenario to answer the Issue questions. It involves a logical and reasoned discussion, demonstrating how the law applies (or does not apply) to the facts. Remember, in law, there are (almost) always two plausible positions; therefore, you must:

    • Argue both sides where possible, anticipating and addressing counter-arguments.

    • Use connecting phrases to link facts to legal rules.

    • Explain why certain facts satisfy or do not satisfy the elements of a rule.

    • This section is where your legal reasoning and critical thinking are demonstrated, not just a restatement of facts or rules.

  • C Conclusions: After applying the law to the facts, you must reach a definitive conclusion for each issue. Unlike in some academic exercises, in legal practice, you do not have the luxury of stating "there are arguments on both sides" without resolution. Your conclusion should be a clear, concise answer to the issue questions, based on your analysis.

    • How this is expressed will depend on the context:

    • Advice to a client: Your conclusion might be framed as advice regarding their chances of success (e.g., ‘your chances of success are/are not strong,’ or ‘the court is likely/unlikely to find that…’).

    • Argument to a judge: Your conclusion aims to convince the judge to follow a particular argument or reach a specific outcome.
      A strong conclusion synthesizes your analysis and provides a clear resolution to the legal problem.

Problem Questions/Reading Cases

  • Answering problem questions and reading cases are THE SAME process: Both activities require you to employ the same analytical skills and structured approach, typically involving the (F)IRAC method.

    • With a problem question: You are provided with a set of facts (a hypothetical scenario) and must identify which facts are important and legally relevant. You then need to determine the legal issues, identify the applicable rules through research or recall, and finally, set out a reasoned answer or hypothetical judgment by applying the rules to the facts. You will need to autonomously work out all the other aspects – either from among the rules discussed in your classes or via independent legal research.

    • With a judgment: When reading a judge's decision, you begin with the factual problem the judge was presented with. What you read is (usually) a High Distinction-quality answer written by a judge. Your task is to work backward to identify each of the (F)IRAC elements within the judge's reasoning: recognizing the material facts, discerning the legal issues the judge addressed, identifying the rules applied, analyzing how the judge applied those rules to the facts, and understanding the ultimate conclusion reached. This process helps internalize effective legal reasoning.

Quick Example (1)

  • One day, Sarah is in the park, she falls over and skins her knee. It hurts and her new trousers are torn… She instinctively and without thought says: ‘Bugger’.

  • A police officer, Constable Clean happens to overhear Sarah. So do many small children and an elderly lady named Ethel. Ethel, who is present in the park with her grandchild complains to the Constable Clean.

  • Constable Clean comes over to Sarah – he issues Sarah with a fine for 1000 on the basis of a valid Council Regulation which indicates ‘Anyone who uses obscene language in the Park will be subject to a 1000 fine’.

  • You have the FACTS and the RULES…what is the ISSUE? How would you go about making the ARGUMENT?

  • Note – Laws such as this still exist and are debated: Lim v Regina [2017] NSWDC 231 (29 ext{ August } 2017)

Quick Example (2)

  • With each ‘novel’ fact we have a new ‘issue’ or legal question to examine.

  • You need to be careful – you should not guess or purport to decide based on a moral or personal determination of what the law should be. That is for the legislature!

  • That is in part why we are not drawing conclusions on this scenario … we have not yet looked at what the law is.

  • NOTE that you will be given the opportunity to engage in this type of discussion in Law School but you should not confuse the two. In your case note, you might want to engage in this discussion but you MUST FIRST understand what the law is before engaging in discourse as to what it SHOULD BE.

Quick Example (3)

  • Sarah has a pet Macaw – Martin – that she inherited from her uncle. Martin is very tame, and even speaks several phrases. Sarah often walks around with Martin on her shoulder.

  • One day, Sarah is in the park with Martin and some young boys are admiring him. One of them trips over and says “ouch”. To the surprise of everyone, Martin starts saying some rather inappropriate words… apparently Sarah’s uncle would ‘swear like a sailor’ whenever he hurt himself and Sarah suspects hearing the ‘ouch’ triggered Martin’s reaction.

  • A police officer comes over – he issues Sarah with a fine for 1000 on the basis of a valid Council Regulation which indicates “Anyone who uses obscene language in the Park will be subject to a 1000 fine”.

  • You have the FACTS and the RULES…what is the ISSUE? How would you go about making the ARGUMENT?

  • Inspired by: Miles v City Council of Augusta, Georgia, 710 ext{ F2d } 1452 (11th ext{ Cir, } ext{ 1983})

  • Millard H. Sharp Scarlet Macaw. Photography. Britannica ImageQuest, Encyclopædia Britannica, 25 ext{ May } 2016. quest.eb.com/search/1391962855 /1/1391962855 /cite. Accessed 11 ext{ Feb } 2019 .