This week has been interesting as I have finally had a chance to look at legislation outside of Australia. We looked at the different tools and sources for legislation and case law in the United Kingdom, New Zealand and Canada. I could start rattling off the list of all the different sites you could go to, but that isn’t really relevant, and can be seen in the exercises for the week. Plus you can probably find all of them in a minute or two in any internet search engine!
In general, the process is now the same for all three jurisdictions. There is an authoritative site you can go to for the legislation. Then there is the parliamentary website where you can access the Hansard and explanatory material for the legislation. Then there is a court website which you can go to find cases that have been decided. And there is a Legal Information Institute website you can go to find both legislation and case law – whilst not authoritative, it is a good starting place. And once you know this process, it is a fairly easy task to find a piece of legislation that you are interested in, even if you don’t know what it is called! And if you aren’t sure there, you can probably Google using the keywords to get you started.
For the most part, each jurisdiction has a similar citation style, with Canada and the UK having chapter references, whereas Australia and New Zealand don’t. Each jurisdiction had an excellent online legislation presence, each with their own unique benefits. I liked New Zealand legislation website’s interface – you had access to information about amendments at a glance via a tab at the top of the screen, plus it showed you the table of contents of the act as a series of links you could click, or view the whole act via another tab. The United Kingdom legislation website was good as it warned you that amendments had not been incorporated into the version of the act you are looking at, and it also had annotations to indicate when the legislation commenced. The Canadian legislation (Justice Laws) website had a handy pop-out table of contents on the right side so you didn’t have to keep going back if you wanted to navigate their legislation. Also, if a section had been repealed, there was a link next to the heading so you could go back to see what the repealed section was, and when it had effect.
This weeks material was very interesting, and challenging at times when trying to find information from the different jurisdictions. Also putting a dampener on things is that some of the information sites listed in the textbook no longer exist, and some others are unavailable due to their subscription nature. Having said that, I have found enough sources that would allow me to be confident that I could find a piece of legislation that related to a legal issue in another jurisdiction within a reasonable period of time without an extraordinary amount of effort! I now also have an idea as to how to find cases in Australia that incorporate judicial decisions from other jurisdictions, thanks to Barnet Jade!
While both this week and last week have had moments of déjà vu due to revisiting material that I did in weeks 1 & 2 of Statutory Interpretation (oh so far away now!), it was still very interesting to find out that there were in fact sources for some on the information that I thought was lacking in legal research. As a result of this week’s reading, my opinion of the resources available for legal research has improved slightly, but I still believe there are some serious omissions in access to key points of information.
Finding legislation is (relatively) easy… do a Google search if you can’t be bothered going any further. But there are better tools out there such as AustLII, BarNet Jade, Westlaw and LexisNexisAU. I particularly like the first two, as they are within my budget as a poor university student – that is to say – free! The latter two services are both very comprehensive with case law, legislation, journal articles and commentary. Thankfully the university provides ‘free’ access to them for students. So once you choose a search tool (or three) to use, finding case law or legislation is as easy as getting your search terms right (if they have the information you’re after in their database). Finding out some other essential details can be tricky, and change from jurisdiction to jurisdiction. For example, when a new piece of legislation reaches assent. Or when it commences. What amendments have been made to it, and when. What amendments are about to be applied. And what about how judges and courts have interpreted the legislation? What is the case history? These are just some of the questions which makes life just that bit more challenging!
The outcome of this week’s materials was an understanding of the different sources of information regarding legislation and commentary. There are many different sources of information, and it’s just a matter of sifting through it all to locate what you need. And you’re using journal articles, you need to consider if they relevant to your topic, and is the writing level of the material suitable for your audience. How reliable is the journal and the author, and how current is the information? And this is before you consider how to incorporate the material into your own essay of work! Thankfully there is a short checklist at the end of the last chapter giving ideas as to what to avoid and what to make sure you include!
This week was the first week of reading material from the second textbook for the course, which has a much more practical methodology to presenting the information. As it is intended to be a practical guide, it uses fictitious examples to demonstrate the methodology or thinking that is being explained.
In this week, the focus was on legal research. A methodology to approaching a legal research problem. General search tips that span across all the different online sources. And also how to evaluate websites to ensure that they are authoritative and reliable. In general, this section of the reading was rehashing prior knowledge from previous study and work where rigorous checks as to the validity of the sources being used were required, and a structured approach to the research method was required. What was new was (yet another) structured approach to the research process, but with a law focus. There was also a series of questions which you can ask yourself to work out how authoritative a website is (for legal use).
After this introductory material, the focus was on some of the different citation databases and online resources that could be used to find case law. There was also a step-by-step explanation three different methodologies to find case law. Depending on what stage of your research you are at, you might use all three, or if you already know what you are after, but just need to locate it, you might only use one! Once I had read through the three approaches, I found it more intuitive to put them in the opposite order, as for the topic approach, you can have the least amount of knowledge of the relevant case law and legislation, the judicial consideration of legislation requires you to know the legislation (which you might have identified in the topic approach), and then the known case approach is when you know the case.
While I found this week quite different in style to the material to date, I quite enjoyed reading through the material and getting to know some of the sites I had already been using a bit better. Add to that a few new sources, and I now have a workable understanding of how to approach a new legal research problem, and know a few places to get me started!
The first chapter of reading was both a practical and philosophical / historical one. It was all about being realistic about our understanding of the law and how it operates. There was an examination of the formalistic and realistic methodologies of legal reasoning. Whilst a formalistic view would be considered to be the most ‘fair’ method of legal reasoning, it is not realistic to expect an individual to be able to completely formalistic – some elements of bias, prejudice, and own beliefs will also play a part in the decisions made. This is why there has been suggestion made that the only way for strictly formal outcomes to occur it would be better for a computer or robot to make the decision (although after watching Elysium, I don’t think I would want to be judged by a computer). The realistic legal view of legal operation is just that. It acknowledges that non-law biases and values will play a part in the decision-making process, but it is tempered by using pre-existing legal rules, provisions and precedents to validate the decision.
The remainder of this chapter was about the different legal theories that have been developed over the years which have informed and lead to the systems we have today. These included from Marxist legal theory, critical legal studies, and critical race theory. I particularity like the mention when talking about Marxism to that the capitalistic system uses the legal system to keep wealth, control and power with the elite. This is clearly demonstrated by some of the issues that are starting to become public knowledge in recent years (mainly through non-mainstream sources such as WikiLeaks, RussiaToday and the recent events such as the disclosures by Bradly Manning and Edward Snowden, and the mass demonstrations have swept the world on issues such as police brutality, racial discrimination and information privacy).
The second part of this week focused on the global legal context, and what this means for us as students, and as graduate / practicing lawyers. This section was quite interesting, as we briefly looked at the different forms of government (monarchies, presidential systems, one-party states, etc). Then we looked at the different types of legal systems used around the world; the common law system used in the UK, USA and Australia, among others; the civil law system which is more popular in European countries; and the religious legal system used in the Vatican City and Iran. We looked at international law, and how as a student, we need to be aware that there are international treaties and agreements that bind states, changing the legal requirements and processes in some cases. We need to consider how these international laws would impact on cases we deal with, such as a contract between businesses in two different states – which state has jurisdiction, and does something like the United Nations Convention on Contracts for the International Sale of Goods have any bearing on the case?
Lastly, the text focused on global opportunities as a student and as a lawyer. It suggested that as a student, we needed to ensure we developed the skills, knowledge attitudes that would help us work in a global context. And if we wanted to pursue legal work at a global level, rather than at a local or state level, that there were plenty of opportunities in private practice and government. And if that doesn’t provide the opportunities we see, we can always consider volunteer programs such as Lawyers Beyond Borders, which can be very rewarding and provide much-needed assistance to people in need.
In this week, we considered what justice is, and how ethics ‘fits in’ with our prospective profession. In order to fully understand what justice… we need to examine the theories and ‘nature’ of justice. There are many theories…. natural law, divine command, consequentialism and mutual agreement… just to name a few. The common thread with most of these theories about justice is that the literal or purest form of each leaves much to be desired. Instead, a blend of several types is needed… and I can see traces of all four in the current system we have today. Then we have to consider the three ‘types’ of justice – distributive (fair and proper distribution of wealth, resources and power), procedural (fair hearing or trial) and retributive (‘proper’ response by the state to a wrongful act) justice Unfortunately, there was little mention of restorative justice, where the focus is healing the victim and reintegrating the offender back into the community. Homelessness and immigration detention were also raised as areas of social justice issues.
Then we considered the three areas of which prevent equitable access to justice. Firstly, although ignorance of the law is no defence, it is still a valid area, as no one individual can know all aspects of the law. It is inaccessible to the layperson. It is constantly changing. And it is exponentially increasing in volume. And the media is unrealistic in its portrayal of the legal system and profession. Then we consider the next major barrier – cost. Not everyone has the financial resources to afford a lawyer or legal advice. In some cases, access to legal advice would have prevented the legal proceedings in the first place! Then we have discrimination and disadvantage. Examples of this barrier include, gender inequality, Indigenous Australians and persons from a non-English speaking background. Society in general has significantly disadvantaged women in the past. Whilst many improvements have been made in recent years, many industries remain male dominated, and incur cases of sexual harassment of women. Indigenous Australians have been discriminated against numerous times by Australian Law since settlement. Whilst this has been greatly improved, it is still far from equitable. It is not uncommon for situations to arise where Indigenous Australians are unlawfully discriminated against, and no provision for the likelihood that they will not be able to afford access to legal aid or representation. Finally, as English is the dominant language of Australia, people who do not speak or read English are at an immediate disadvantage. And while there are some translation services, government funded services are limited, and other services are prohibitively expensive.
In order to combat these barriers, several different solutions have been adopted. Law firms advertise in order to help remedy the public ignorance of when it is appropriate to engage a lawyer, and what lawyers actually do. Government is drafting new legislation in Plain English, in order to make it more accessible, and is progressively re-writing old legislation also. Governments fund community centres and legal aid in order to try and provide legal advice and representation to people from low socioeconomic backgrounds. Lawyers will offer unpaid ‘pro bono’ services, and in fact are encouraged to do so by their respective societies. Conditional costs agreements (so called ‘no win, no fee’) exist which are another option. Due to changing procedures and self-help documents available at some courts, people are now able to self-represent. Finally, alternative dispute resolution provides several methods which can resolve an issue between two parties before it reaches court, lowering the costs and improving the chances of a satisfactory outcome for all parties.
The second part of the reading for this week was focused on ethics. What is ethics (the study of the principles that guides people into choosing what is write and what is wrong) and what are morals (the rules or principles for distinguishing between ‘right’ and ‘wrong’). We examined the different sources and theories informing ethics – from the Greeks, to religion, to secular religion, and finally modern ethics. In modern ethics, just like with the different justice theories, strict adherence to any of the ethics theories results in impractical or unreasonable outcomes. Again, all of the different theories in moderation appears to be the best approach. Although some, like the virtue ethics and ethics of care are very practical on their own.
But how does this relate to the legal profession. Well, the tradition approach was to throw the lawyers personal ethics out the window, as they had a duty of care to their client, regardless of their views and opinions towards them. More recent times, alternative views such as responsible lawyering, moral activist lawyering and ethic of care lawyering have taken over. Lawyers have a duty to the court, their client, the law and their colleagues. Four separate areas which they must ensure they are practicing professional ethics. In order to make this practical, each state has a set of ethical rules and a regulatory body. In Queensland, these are the Australian Solicitors Conduct Rules (2012). These rules provide a framework which a lawyer or solicitor can refer back to ensure they are fulfilling all of their obligations, and as a result, begin to practice in an ethical manner. However, as John Briton said, ‘mere compliance with the rules will [not] make you an ethical person… [r]eflect on what’s happening around you at work, and to you’ (John Briton, Ethics in the Real World, 2008)
In the legal profession, just like with any profession, communication and collaboration with others is key. However, just like with professions such as customer service and education, the being able communicate and collaborate effectively with your clients make the different being success and failure. To succeed in the legal profession, you have to have excellent oral and verbal skills. That does not simply mean that you can read, write and speak English. You need to be able to clearly and concisely convey legal advice to your client in a manner understandable to them. You need to be able to present an argument to a judge and jury that persuades them to make a judgement that favours your client. You may need to negotiate with other parties to come to a mutually agreeable outcome, or to push your client’s interests, depending on the circumstances. You may even need to negotiate with your client, as their legal standing may not be what they have in mind. You need to be able to advocate for your client. This requires you to determine what the relevant facts of the matter are, what legislation is relevant, and specific courtroom procedures and rules of evidence.
In order to do your job, you need to have a clear idea as to who your audience is, and how to best communicate with them. For example, in a courtroom – your primary audience is the judge – not the clerk, not the other lawyer. The judge will make the decision on the case, so it is the judge your need to persuade and convince to make a favourable decision. Once you know your audience, you can then make changes to how you communicate to take into account their age, their level of education, their professional background, cultural and religious beliefs, or other biases that may be of relevance. Depending on the audience, you may use techniques such as summarising what they’ve said to ensure understanding and identify any gaps. You might use open ended questions, or perhaps closed questions are more appropriate. Using active listening and the ACTIVES skills will take you a long way. You also need to demonstrate empathy, as this will make your client more comfortable, more likely to disclose all the facts, and improve client satisfaction. In written communication, good grammar, plain English, headings and planning are the key points to remember. That and short sentences are good. And John does not like dot points.
On the topic of collaboration, I can’t say I learnt anything new. I have been involved in a few clubs in either membership or executive roles, have worked on group assessments and in team environments in the past. I suppose the important take home message is to always put in more than you intent to get out. That way everyone benefits. Having a clear idea as to goals, responsibilities, tasks and completion dates is important. Having regular meetings and specific goals or milestones to be able to report on at those meetings is effective. Plus simply keeping open the communications channels so that if a team member gets stuck, they feel comfortable asking for help.
The second chapter of this week’s reading was all about protecting our own well-being, and ensuring that there is an equal balance between study/work and family and ‘me’ time. If there is not enough ‘down-time’ then the chances of burning out are high, and you are of no benefit to anyone, let alone yourself! In other words, make sure you get enough sleep, have a hobby, and a good support network to help you!
The focus for this week’s study was on thinking skills, and how to think like a lawyer. To achieve, this I had to learn about some of the frameworks that can be used to think like lawyer. They all have acronyms like MIRAT and IRAC and CREAC. However, other than moving the step around they all consist of identifying the material facts, identifying the legal issues, identifying the legal rules, applying the rules, and coming to a conclusion. This process can be used for any aspect of legal practise, from reading a judgement and identifying the salient points, to developing a presentation of a legal issue, to preparing a response to a situation a client has asked to be analysed. The textbook focused on the CIRAC method where you state the conclusion, identify the material facts, identify the relevant rules, apply the rules to facts, and then restate the rules. And if you’re being creative, before applying the rule(s), you also identify the policies that informed the rules, so that when you apply the rules, you apply them in the way the legislature intended.
Next up was logical reasoning. This is also sometimes referred to as legalistic or literal thinking. The premise is simple and elegant, and therein lies the challenge. Making a proposition that is both valid and sound, and as a result, irrefutable. And naturally, valid reasoning trumps invalid reasoning, as does sound reasoning (as opposed to unsound reasoning). Examples of faulty thinking were demonstrated, so that the causes of invalid and unsound reasoning could be identified in opponent’s arguments and avoided in our own. Some such as hasty generalisation, bias and attacking the person are easily recognisable from everyday life and the media. However, some of the forms of faulty reasoning are more subtle and can be challenging to avoid (such as correlation and causation, some forms of bias and appealing to the majority or the person.
If you don’t apply critical thinking when considering a situation or argument, then it will be hard to clearly identify the real issues at hand, and what can be done to resolve them. You need to be able to identify and analyse the problem. You then need to be able to infer a reasonable and justifiable conclusion that takes into account all the rules and evidence you identified. Most importantly, you then need to be able to communicate this to others (who heard of lawyer who could analyse and solve problems but not stand up in court and explain it!?) And to be able to do this, you need to be able to self-regulate your thinking so that you don’t slip in faulting reasoning yourself. And if you can be creative at the same time, you will be able to present options to your client that they didn’t think they had, and you may be come up with unorthodox solutions and options. You may consider the purpose and policy considerations that lead to a specific piece of legislation, rather than just accepting that its literal interpretation is what the legislature intended. You might approach the problem from a different perspective, and as a result, be able to argue for a completely different outcome.
This week was an easier week as far as prescribed reading – only one chapter this week! However, I think this only a reprieve so that we have more time to work on the assignment! It is also the end of the first part of the textbook on ‘knowing’ the legal system. This week focused on two main areas – that of legislation and case law.
Outliers on these two issues, but still highly relevant, were the sovereignty of Parliament (which basically says Parliament holds the ultimate power – as defined by the Constitution) and the doctrine of precedent and why it is important. As part of learning more about the doctrine of precedent, it was good to finally see some arguments as to the advantages and disadvantage of this system – with one of the disadvantages being how hard it is to find relevant precedent to use in making another ruling! However, benefits such as the certainty, equality and consistency that the doctrine of precedent brings with it far outweigh its disadvantages.
For legislation, we needed to know about the parliamentary system that actually proposes, debates ad passes legislation. Different states and territories have different systems – but all have common elements due to a historical basis on the Westminster system. Most states and the federal parliaments have two houses of parliament (referred to as a bicameral system) whereas my home state (Queensland) and the Territories have only one house of parliament (unicameral system). The both the bicameral and unicameral systems have their advantages and disadvantages, but my personal view is that the bicameral system is more representative of the views, values and options of the general public, and ensures that all legislation is properly analysed before enacted. Bills have a specific format, and pass through the house in a very specific and lockstep manner, and if all the checks and balances are satisfied, the bill is passed by both houses of parliament, and then becomes an Act of Parliament upon assent by the Crown representative (Governor General in the instance of Federal legislation).
Whilst legislation is created and amended by parliament, case law is made by the judiciary through their interpretation of legislation and how it applies to a given circumstance. Whilst most areas of law are primarily legislation, there are still some areas, such as contract law, where the primary law is case law. And whilst legislation may exist that is applicable to a specific case, it is the role of the judiciary to determine that, and what the appropriate outcome should be. To make this system feasible, there is a tiered court system – both at federal and state levels. The severity (and financial limit) of the case will determine which court the issue will go to. And if the outcome is not to the desired outcome of the parties concerned, they can usually request an appeal, where the case may got to a court of the same level or higher court. I was surprised to find out how many courts and tribunals there were, and just like with our separation of powers – or overlap of power in the case of parliament and executive government – there is an overlap in the judicial hierarchy – in that the high court of Australia is the highest court of appeal for both the federal and state jurisdictions!
In Week 2, I learned about the history of the Australian Legal system, which also necessitated learning about the history of the British Legal system, which our legal system is based upon. I examined the importance of the concepts such as the Rule of law, and the Separation of Powers. I explored the doctrine of Terra Nullius, and how that affected the Indigenous Australians.
The British Legal system underwent many changes, which I remember some of from my school history studies – namely the Magna Carta and how it was a key change how the monarch ruled, and the hierarchy of power (monarch -> barons -> knights -> peasants). I didn’t realise that in conjunction with the monarch and ‘royal justice’ (and as a result of this, I suppose), that a system of Equity was being developed by the Court of Chancery. This is of significance today as Equity is one of the two aspects of modern day justice – the other being common law. After all the fighting between forces supporting parliament and various kings, the other important change in the British legal system was the introduction of the bill of rights – which recognised certain rights of citizens such as freedom from cruel and unusual punishments, freedom from fines and forfeitures without trial, and freedom of speech in parliament. It also established the Westminister system of parliament, which was a major shift in power.
In Australia, the initial form of law was legislature (law of the British Parliament) at the discretion of the Governor of the colony of New South Wales. Approximately 40 years after the colony was established, British Parliament passed the Australian Courts Act, which permitted Australia to use common law ‘as long as the circumstances of the colony would make it possible’ – which was an interesting decision as convicts did not have the right to appear in court. A major change in this would have been the Colonial Laws Validity Act of 1865, which allowed the colonies to make laws as long as they didn’t conflict with those created by the British Parliament. After the short space of a little more than 100 years, Australia’s legal landscape changed to have a three tier system of government (federal, state and local), made it possible for Federal parliament to override UK laws and finally separate from the British legal system in by making British Parliament unable to override State laws, and the highest court in Australia the High Court of Australia (instead of the Privy Council in London).
Not all changes in the legal system during this time period were good. The rights, values and customary law of Indigenous Australians were not acknowledge, and in fact were completely ignored and encroached on. The initial determination of ‘Terra Nullius’ when establishing the New South Wales colony meant that a treaty for land rights did not need to be negotiated, and in 1909, legislation was passed that gave legal authority for the children of Indigenous Australian to be removed from their families, without consent. However, Since the 1960s, there has been a reversal in this behaviour, beginning with legislature that acknowledges their right to vote, including them in the census, and recognising the native title rights of Indigenous Australians through reversing the doctrine of ‘Terra Nullius’. There has also been recognition of customary law, although this is contentious subject even today, and there was a formal apology for the ‘Stolen Generation’
Finally, with the establishment of an Australian Constitution, and the individual constitutions of the states, there is a formal separation of powers into three tiers – that of the Parliament, the Executive Government and the Judicature. The Parliament is responsible for enacting legislation, and the day to day administration of power, the Executive Government is responsible for the creation and amendment of legislation, and the Judicature is responsible for the interpretation of legislation. However, in Australia there is a crossover between the Parliament and the Executive Government, as members of parliament also make up the executive government. This highlights that fact that this is a separation of powers, not a separation of people.
The material for this week has been very interesting, and the focus on the history of the development of the legal system has made it easier to understand why some aspects of the system are how they are. And considering how the last remnant of the monarchs authority now rests with the Governor General (and the State Governors to a lesser extent), it is understandable why there have been calls for a change to a republic – as the current structure seems at odds which what we have been moving towards – which is a separation from the Commonwealth. Time will tell if that move is successful, and if it is a good idea in the first place.
Just in the first weeks worth of study and reading, my understanding of what law is has changed. No longer is it just an elephant in the room… it is now a concept that has a tangible meaning. It is no longer just a set of rules made by the ‘higher ups’ … but is actually a “system of rules made by the state, enforceable by prosecution or litigation”… which on its own sounds straightforward… until you dig down deeper into the meaning of even that definition… for instance… what is the state? What makes this set of rules different to any other?
This is where understanding what lawyers are, what solicitors and barristers do, and what the different theories behind the law are… not to mention all the different categories of law. When doing the readings on the different types of and different categories of law, it was gratifying to come across categories that I had heard of but didn’t fully understand what they meant… such as administrative law, or tort.
Now, as far as the theories behind law, and jurisprudence… for the most part that makes sense… after all, as the natural law theory posits… there are some things that we as a community had decided are just right and wrong… so the law ensures that these ‘wrong’ things don’t happen. And if they do, there are consequences. And I can also understand the legal positivism views towards law. After all, isn’t the law… the law? But this brings back memories of arguments like which is correct… religion or science… evolution vs creationism… the list goes on. And after reading the section on law and liberal values, all I can say is the positives are straight-forward… and the negatives are doing my head in! Just proves I am not a philosopher… yet!
My final thoughts on this first brief plunge in the depths of the legal system are that I didn’t realise how move variety there was, and how many options there are. I mean, there are the ‘obvious’ careers such as barrister, solicitor, legal academic (law teacher / tutor) and perhaps law librarian, but I hadn’t thought of legal consultants or paralegals (‘law clerks’). Nor had I thought of the community sector… I had really only thought of the high-priced private sector corporate lawyers, the public sector government lawyers, and a few other career areas… but, that is just the tip of the iceberg. There’s plenty more career options and paths… and now I just have to work out what one I want to pursue over the next few years!