Part 5 Faculty of Law    

The Faculty Charter

The Law degrees

General

Compulsory units and units required for admission to practice

Electives

The Faculty of Law

Dean:  Professor M Coper

The Faculty Charter

We are a centre for excellence in legal education and scholarship distinguished by the national and transnational focus of our work.

We serve the Australian and international communities by promoting imaginative and critical debate about, research into and understanding of law and its role in achieving justice and social and institutional change.

We commit ourselves:

• To teach in a highly innovative, critical and diverse learning environment
• To promote and nurture creative research, traditional scholarship, policy oriented projects and endeavours which benefit the community, particularly those without resources
• To ensure that our research influences Government, the legal profession and the wider community
• To take full advantage in all our activities of our unique opportunities in relation to Government
• To provide teaching, conference and consultancy services for the legal profession, the private sector and non-government organisations
• To sustain and develop our strong and diverse postgraduate program
• To sustain our special strength in public and international law, to further promote environmental law and to nurture commercial law and other emerging areas of expertise
• To develop and utilise information technology in all aspects of our work

The Law degrees

The Faculty of Law offers undergraduate courses for the pass degree of Bachelor of Laws and for the degree of Bachelor of Laws with honours. At graduate level courses leading to the degrees of Doctor of Juridical Science, Master of Legal Studies and Master of Laws and Graduate Diplomas in Law and Legal Studies are offered.

The Faculty offers supervision of candidates for the degrees (by research) of Master of Laws, Master of Legal Studies and Doctor of Philosophy.

The Legal Workshop, which is part of the Faculty of Law, offers a Graduate Diploma in Legal Practice course to students who have been admitted to, or who have successfully completed the course of study for, the degree of Bachelor of Laws or an equivalent degree at an Australian university or other approved tertiary institution.

Application for enrolment

Applicants for enrolment in the Faculty of Law must first meet the University’s admission requirements. There is a quota, determined from year to year, for new undergraduate enrolments in the Faculty. Admission to the University does not guarantee admission to the Faculty of Law.

Applicants will be advised towards the end of January 1999 whether they have been accepted for entry. Those selected will then be given a time limit in which to notify the University whether or not they wish to take up the offer of a place.

There are no prerequisite school subjects for law studies. The most important skill of the intending law student is an ability to write clear, concise and correct English.

A student admitted to a combined course will be required to complete that study on a full time basis. Part-time enrolment can only be undertaken in exceptional circumstances with the permission of the Sub-Dean. A student admitted to the LLB or the LLB(G) may elect to undertake either full or part-time study.

Normal Duration (in years)

Changes to course structures and credit point values

You will note that undergraduate degrees are now being expressed in terms of credit points. For a full explanation of the changes to course structures, credit point values and course legislation, please see the General Information section of this Handbook.

The degree of Bachelor of Laws

(Course code 4300)

In 1999 the Faculty of Law will introduce a new curriculum for the Bachelor of Laws (LLB) degree. This curriculum will consist of compulsory and elective units, each worth 6 credit points (with the exception of Research Unit, worth 12 credit points) and one semester in length, with 48 credit points per year being the standard adopted by the University. The normal load in each semester will be 24 credit points. The compulsory units are designed to ensure that every student gains a sufficient grounding in the fundamental branches of the law, and the elective units provide an opportunity to develop particular interests and to deepen understandings.

The new curriculum applies to all students enrolled in a Bachelor of Laws course in 1999. Current students should see the LLB Handbook 1999 for information about transition arrangements.

In summary, the Bachelor of Laws course consists of the following:

12 compulsory units (named below), worth 72 credit
points;
18 law elective units, worth 108 credit points, which
may include the 3 elective units for admission to
practice, named in italics below, and
2 non-law elective units, worth 12 credit points.
192 credit points in total.

Compulsory Units consist of:

Administrative Law LAWS2201
Australian Public Law LAWS1205
Commonwealth Constitutional Law LAWS2202
Contracts LAWS1204
Criminal Law and Procedure LAWS1206
Equity and Trusts LAWS2205
Foundations of Australian Law LAWS1201
International Law LAWS1207
Lawyers, Justice and Ethics LAWS1202
Legal Theory LAWS1208
Property LAWS2204
Torts LAWS1203

Elective units required for admission to practise law:

Civil Litigation LAWS2206

Corporations Law LAWS2203

Evidence LAWS2207

A full-time student may complete the course in four years. A suggested pattern for Bachelor of Law students is as follows:

It is suggested that LLB students could undertake this degree in a modified pattern if they wished, beginning with 6 units in first year. This would ensure that they remained full-time (at 3 units per semester) in the first year, and carried a heavier load, and therefore incurred a heavier HECS cost, in the later years.

Not all elective units are offered each year and the list is subject to change from time to time. Electives are not studied in the first year and there is no requirement for newly-enrolling first-year students to specify the elective units they intend to study in later years. By the time choice of electives is required students are usually well informed of the factors which should guide their choices; in any case the Sub-Dean or Assistant Faculty Executive Officer are happy to assist those who need help in choosing electives.

The degree of Bachelor of Laws for graduates of other disciplines

(Course code 4303)

Graduates of non-law disciplines may apply to undertake a shortened course referred to as the LLB(G) course. In summary:

12 compulsory units, worth 72 credit points;
12 law elective units, worth 72 credit points, which may
include the 3 elective units for admission to practice.
144 credit points in total.

The LLB(G) course is intended to be completed in three years full-time.

The standard pattern of subjects for full-time students taking the LLB(G) course is:

It is suggested that LLB(G) students could undertake this degree in a modified pattern if they wished, beginning with 6 units in first year. This would ensure that they remained full-time (at 3 units per semester) in the first year, and carried a heavier load, and therefore incurred a heavier HECS cost, in the later years.

The Faculty is conscious that students taking the law course for graduates of other disciplines have a more concentrated course of study than other law students. Part-time students in this course particularly face greater difficulties than other students. They have to undertake a work load of up to eight lecture hours a week. There are weekly or fortnightly tutorials in most units. Students also need to devote a considerable amount of time to reading, private study and written exercises. Intending students are therefore urged to consider all their commitments very carefully before applying and, more especially, before accepting the offer of a place in the law course for graduates of other disciplines.

Previous law studies

A student who enrols in an ANU LLB degree after completing law studies at another university will not be granted status for more than half of the units prescribed for the ANU degree. Nor may a student repeat in the LLB course a unit the syllabus of which is substantially similar to that of a subject passed for the award of another degree or diploma.

With respect to combined degree courses, a newly-enrolling graduate whose previous degree studies included law units (eg a degree of Bachelor of Jurisprudence or a degree in Arts, Economics, Commerce or Science undertaken as part of a combined degree course with law) will not normally be enrolled in the three-year LLB(G) course. Instead, enrolment will usually be in the four-year LLB course, with status for ANU law units which the Faculty deems to be equivalent to law units previously passed and, if necessary, with additional status for unspecified elective units such that the graduate may, without an unduly heavy work load, complete the requirements of the LLB degree in the equivalent of a further two years of full-time study. The intention of this provision is to treat the graduate who has undertaken sufficient law studies in the previous degree in a manner similar to a student enrolled ab initio in an ANU five-year combined degree course.

The degree of Bachelor of Laws with honours

The length of the course of study for the degrees of Bachelor of Laws and Bachelor of Laws with honours is the same. The degree may be awarded at first class; second class, division A; or second class, division B level.

The final honours examination comprises two parts, Part A and Part B. 70% is allotted to Part A and 30% to Part B. The mark for the final honours examination is a mark on a 10 point scale. More information is contained in the LLB Handbook. For the award of First Class Honours, a candidate must obtain a minimum mark of 7 in the Final Honours examination. For the award of Second class Honours, Division A, a minimum mark of 5.5 in the Final Honours examination is required, and for the award of Second Class Honours, Division B, a minimum mark of 4 is required.

Part A consists of the weighted average mark of all law units (with the exception of the Research Unit) taken by the student as part of the pass degree course, except that in determining the weighted average mark, the mark obtained in the lowest 18 credit points will be discarded.

Part B is a research paper undertaken in fulfilment of the requirements of the Research Unit. The Research Unit paper is of not less than 9000 nor more than 11,000 words on an approved topic and is supervised by a member of the Faculty. The object is to enable the honours candidate to undertake sustained, intensive work on a specific piece of legal research. (See Details of units for unit descriptions.)

Any student wishing to graduate with an honours degree must enrol in and complete the Research Unit in one semester of the final full-time year of the Bachelor of Laws degree. To be eligible to enrol in the Research Unit, students require an overall law unit average mark of 4 or above. In addition, a prerequisite unit Research Unit Methodology must be completed. It is offered each semester.

Combined courses

The University offers combined courses in the Faculties of Arts and Law, Asian Studies and Law, Economics & Commerce and Law, and Science and Law. A student may gain two degrees, either Bachelor of Arts and Bachelor of Laws; Bachelor of Asian Studies and Bachelor of Laws; Bachelor of Asian Studies (Specialist) and Bachelor of Laws; Bachelor of Commerce and Bachelor of Laws; Bachelor of Economics and Bachelor of Laws; or Bachelor of Science and Bachelor of Laws; in a period of five years full-time study. The Faculty of Law encourages students other than graduates to take one of these combined courses. One of the reasons is to widen the students education and understanding by studying society from a viewpoint outside that of legal scholarship. Please refer to the Combined Courses section of this Handbook.

Internship Program

The Faculty has approved a program that enables students in their ultimate or penultimate years of the law course to obtain an internship with a senior law professional. The program allows the selected student to spend up to eight weeks in the office, under the supervision of a professional, while undertaking an agreed research project that will give 6 credit points towards the degree. Students from universities other than the ANU, in Australia or overseas, are welcome to enrol, either as part of a broader course or for the internship alone. Enquiries should be directed to the Faculty Office.

General

Work loads

The Faculty suggests the number and order of units, compulsory or elective, which a student may take in any year. Generally a full-time student will have a contact work load of 16 hours a week and a part-time student 8 hours.

Lectures are timetabled to start at 8 am and end at 6 pm. Part-time students should, therefore, ascertain before they register their enrolment or apply to re-enrol whether they will be able to obtain leave of absence from their employment to attend lectures.

Except with the permission of the Faculty a student pursuing the degree course on a full-time basis shall not engage in paid employment for more than 15 hours in any week in which lectures are conducted by the Faculty in a subject taken by the student.

Students who are receiving Austudy should be aware that varying their enrolment may have implications for their Austudy eligibility. It is the students responsibility to ensure that their course load is full time in each semester.

Summer and Graduate Employment

An interview scheme for summer and graduate employment is conducted during the year for students in their penultimate and final years of study. The participating employers include the major Sydney corporate law firms, a diverse range of middle-sized and smaller firms in Sydney, Canberra and other areas, and public authorities of the Commonwealth, New South Wales and the Australian Capital Territory. The Sydney part of the scheme involves cooperation with law schools in NSW.

The scheme provides a standard application form and period for interviews for which the Careers and Appointments Service in liaison with the Faculty acts as coordinator and conduit and encourages participating employers to provide information to students by way of written profiles and Careers Day presentations.

Information about participating employers, dates for employer presentations, and deadlines for student applications is available from the Careers and Appointments Service.

The ANU Law Students’ Society

The ANU Law Students’ Society is a student organisation to which all law students are eligible to belong. Its program is directed by a committee of 15 elected by student vote in the third term of each year.

Throughout the year the Society sponsors a number of extra-curricular academic activities, such as talks by leading members of the profession, debates and career forums, and an extensive social program.

Perhaps the Society’s most important function is its contribution to staff/student relations. Members of the Society sit on Faculty committees which meet regularly to discuss matters of mutual concern and to consider suggestions from the students.

The Law Society has an office on the Ground floor. Messages may be left in the letterbox.

Faculty Education Committee

The Faculty Education Committee consists of equal numbers of staff and students and is chaired by the Dean. It considers and reports to the Faculty of Law on educational matters relating to law courses, including the means of assessment in each unit.

Faculty Officers

At the head of the Faculty is the Dean, assisted by Associate Deans (one of whom is designated the Sub-Dean), the Faculty Executive Officer and the Assistant Faculty Executive Officer. Students should speak to the Assistant Faculty Executive Officer in the Faculty Office in the first instance on matters concerning degree rules, regulations, courses and general administration. Members of the teaching staff are always willing to advise students on problems arising from the courses in general or from particular subjects.

Academic performance

The University has introduced minimum academic performance criteria which will apply across all Faculties. The policy is outlined in the General Information section of this Handbook.  However, students in the Faculty of Law continue to be subject to the existing academic performance criteria. This policy is currently under review. Details of any changes will be available on the Web.

The Faculty’s current policy on academic performance is set out in the Academic Performance Rules. A summary of that policy is detailed below. The policy applies to any student studying one or more units in an LLB degree, including a combined degree course. It also applies to students studying law units on a non-degree basis. In applying this policy the Faculty considers each individual case on its merits.

The Faculty may review the academic performance of any person who fails a unit, including a non-law unit.

In the following situations a student will not be permitted to enrol in a subject or in a course unless special circumstances are shown. Examples of special circumstances are given later.

The situations vary between the first year of enrolment and later years.

In the first year of enrolment:

• failing two or more units, including non-law units, and obtaining an average of less than 50% in first-year units
• failing two or more law units

In a later year of enrolment:

• failing one or more units, bringing the total number of failures for all years of enrolment to 3 or more units (or, where semester units have been failed, to 4 or more units). Here, units include non-law units
• failing a law unit having previously failed that unit
• failing a unit, including a non-law unit, having previously failed a law unit twice.

Note that failing a unit includes failing to sit for an examination in that unit and withdrawing from a unit without the approval of the Sub-Dean. Failures in law units in a previous course at the ANU will be counted as failures in the current course, and failures in units at any other higher education institution may also be taken into account. Students in a combined law degree course whose performance is reviewed by another Faculty will then be reviewed each year by that Faculty and the Law Faculty.

Special circumstances include:

• a record of satisfactory results during the later years of study
• evidence, supported by medical certificates, of a record of illness during the course.

If the Law Faculty decides that a student’s academic performance is unsatisfactory, then rather than directing that the student not be permitted to re-enrol in a unit or a course, the Faculty may:

• limit or prescribe the number of units for which that person may enrol in any subsequent year
• specify particular units for which that person must enrol in any subsequent year
• refuse permission for that person to enrol in any unit offered by the Faculty for a specified period
• where the person is enrolled as a non-degree student, direct that the person not be permitted to re-enrol in a unit if he or she is not admitted to the annual examination in that unit or fails that unit twice.

Unsatisfactory performance in a combined degree course may lead to exclusion from one or both Faculties.

Admission of ANU graduates to legal practice

The Bachelor of Laws degree of the University is recognised for admission throughout Australia so long as students cover all the units required under the Uniform Admission Rules. As well as the compulsory units in the Bachelor of Laws, these Rules require Evidence, Civil Litigation and Corporations Law for admission. When graduates apply for admission to practice they will need to give evidence of having completed the units prescribed by the Uniform Admission Rules. This evidence is usually in the form of a certificate by the Dean of Law. Inquiries concerning admission to practice in the ACT should be directed in the first instance to the Faculty Executive Officer to obtain the relevant extract from the ACT Act concerned with admission. Inquiries concerning admission to practise in other jurisdictions should be directed to the Sub-Dean.

Once admitted to practice in any state or territory of Australia, graduates may have their names entered on the High Court register, which entitles them to practise in all Federal jurisdictions.

For admission to some courts, but not others, it is necessary to be an Australian citizen or a British subject. Students with any doubts on their eligibility for admission should consult the Secretary of the appropriate Admission Board as early as possible.

A graduate in law of The Australian National University may be admitted to practise in the Australian Capital Territory or New South Wales upon satisfactory completion of the Graduate Diploma in Legal Practice course of the ANU Legal Workshop. Articles of clerkship were abolished in the Australian Capital Territory in 1987.

Legal Practice Course

The Legal Workshop offers the Graduate Diploma in Legal Practice (GDLP). Students can choose from several formats for the GDLP:

• full-time attendance over five months
• a part-time option involving one, two or three week attendances over up to three years
• a flexible option involving two, two-week attendances with a series of distance modules, usually over the period of one year.

Students who have graduated or qualified to graduate as Bachelor of Laws from an Australian university or diplomates of the Solicitors Admission Board of New South Wales are eligible to enrol.

Details of the courses are in a separate brochure obtainable from the Legal Workshop, Faculty of Law.

The course provides common training for all practitioners, whether they ultimately propose to practise as barristers or solicitors or both. It consists mainly of instruction in common legal office procedures and skills training followed by a work program of exercises and simulated legal transactions, for students to practise procedures and skills. The GDLP includes trust accounts and legal ethics units which the Uniform Admission Rules require for admission.

Law Library

The Law Library, as part of the ANU Library system, provides access to a wide range of legal material in both print and electronic form. The library houses a significant collection of cases, legislation, books and journals that is both supportive of academic research and relevant to the course curriculum offered by the Faculty of Law. In addition to the traditional print collection, legal resources are also available to ANU staff and students via the internet and through legal databases such as LEXIS and Westlaw.

Law library staff are pleased to provide assistance in using all aspects of the law collection and offer a variety of training sessions on accessing legal databases.

Compulsory Units and Units Required for Admission to Practice

Administrative Law    LAWS2201

(6cp)

Prerequisites: Foundations of Australian Law; Australian Public Law

Syllabus: This unit examines the legal framework for controlling decision-making by Commonwealth, State and local government agencies in Australia. The focus of the unit is upon the legal restraints upon government, and the way in which the principle of government accountability is maintained. Particular attention is paid to the role played by courts, tribunals, Ombudsman and other agencies in reviewing government decision- making, and to the opportunities available to the public to question government activity. Control of govern- ment information practices is another distinct theme. The unit covers the core administrative law material required for admission purposes and for work in the area of law and government. The following topics will be covered:

• theories of administrative justice;
• accountability in an administrative state;
• the administrative law framework for review of government decision-making;
• concepts of administrative and judicial review;
• judicial review principles;
• administrative review principles;
• standing;
• remedies;
• other administrative law avenues including information access rights; ombudsman; human rights and anti-discrimination bodies; investigative bodies and royal commissions.

Australian Public Law    LAWS1205

(6cp)

Syllabus: This unit examines the structure and themes of Australian public law, and in that way provides a bridge to all other public law study in the curriculum. In essence, the unit examines a prominent feature of the Australian legal system, namely how power is structured, distributed, and controlled in Australia. The distinctive roles played by the legislature, the executive and the judiciary receive special attention. Subsidiary themes in the unit are protection of individual rights in the Australian legal system, and constitutional change and evolution in Australia. The following topics will be covered:

• the constitutional and legislative framework for Australian public law;
• major concepts and themes in Australian public law, including federalism, separation of powers, representative democracy, rule of law, liberalism, and citizenship;
• the Legislature, including the structure of Australian legislatures, parliamentary supremacy, and express and implied constitutional limitations on legislative power;
• the Executive, including the structure of Executive government, executive power, and liability of the Crown;
• the Judiciary, including the constitutional separation of judicial power, and the administrative law implications of judicial separation;
• protection of individual rights in Australian public law;
• constitutional change and evolution, including constitutional amendment.

Civil Litigation    LAWS2206

(6cp)

Syllabus: The aim of the unit is to reveal the principles underlying the rules of civil procedure in superior courts. The unit will focus on the Rules of the ACT Supreme Court, but comparative material will also be introduced. There will be consideration of the interlocutory steps in civil litigation as well as appropriate tactics and ethical considerations. The unit does not cover the hearing itself, but does deal with some evidentiary matters which must be considered at the pre-trial phase. The unit is structured to meet the admission requirements for practice as a legal practitioner in the Australian States and Territories. The following topics will be covered:

• parties to proceedings ie who should sue or be sued;
• when and how to commence proceedings;
• service of process;
• pleadings ie how the case must be presented to the court;
• disposing of litigation prior to a full hearing;
• disclosing documentary material or withholding it due to privilege;
• some aspects of documentary and expert evidence relevant to preparation of a matter for hearing;
• urgent applications and enforcement of court orders.

Commonwealth Constitutional Law    LAWS2202

(6cp)

Prerequisite: Australian Public Law

Corequisite: Administrative Law

Syllabus: Building on previous public law studies, particularly Australian Public Law, this unit aims to deepen student understanding of key aspects of the Commonwealth Constitution and its judicial interpretation by the High Court. Particular attention will be paid to the historical, social and institutional forces which have helped shape the Constitution and the High Court’s reading of it. Topics to be covered include:

• the formation of the Commonwealth Constitution; the historical, social and institutional context of Australian constitutional law;
• the scope of Commonwealth legislative power, including a detailed examination of the trade and commerce power (s.51(i)), the corporations power (s.51(xx)) and the external affairs power (s.51(xxix)); the process of characterisation and the principle in the Communist Party Case;
• inconsistency between Commonwealth and State laws (s.109);
• federal financial powers and economic union;
• general principles and theories of interpretation; the Engineers Case and implied intergovernmental immunities;
• an introduction to implied constitutional “rights”;
• the nature of judicial review, the role of the High Court and formal constitutional change (s.128).

Contracts    LAWS1204

(6cp)

Syllabus: The contracts unit is one of the foundation subjects in the law course and examines a central aspect of the law of obligations. The evolution of contract, its central role in a market economy and the criteria for making legally enforceable promissory obligations are explored before embarking on the requirements for the formation of contract. The content of agreements and the associated rules and doctrines for ascertaining the meaning and scope of the obligations expressly or impliedly undertaken by the parties are discussed. The invasion of contract by new rules, in particular estoppel and the prohibition on misleading or deceptive conduct, makes it clear that the commercial relationship is multi-faceted and that the study of contract law ranges more widely than the traditional rules. Equitable doctrines, such as duress, undue influence and unconscionability as excuse areas for escaping contractual commitment, are examined. The unit finishes with breach and its consequences, including a discussion of the common law and equitable remedies.

Corporations Law    LAWS2203

(6cp)

Syllabus: This unit imparts an understanding of Australian corporate law. The unit is structured to meet the admission requirements for practice as a legal practitioner in the Australian States and Territories. The following topics will be covered:

• incorporation and the concept of separate legal personality;
• the corporate constitution;
• membership of the corporation and share capital;
• corporate contracting;
• duties and liabilities of directors and officers;
• basic features of the management of companies;
• shareholders’ remedies;
• company credit and security arrangements;
• winding up.

Criminal Law and Procedure    LAWS1206

(6cp)

Syllabus: A student who successfully completes the unit should have:

• a sound knowledge and critical understanding of the relevant legislation and case law;
• an ability to apply this knowledge and understanding in such a way as to identify the legal issues presented by a factual problem;
• a familiarity with the important debates about the purpose of the criminal law and the fundamental concepts it embodies.

Topics will include: the nature and purposes of criminal law, theories of criminal culpability; elements of criminal offences; offences against the person (including homicide, assaults, sexual offences); offences against property; attempts, conspiracy and complicity; and the law of criminal procedure.

Equity and Trusts    LAWS2205

(6cp)

Prerequisite: Property

Syllabus: The objective of the unit is to provide students with an overall understanding of the law of equity with special emphasis on undue influence, unconscionable dealings, equitable estoppel, trusts, fiduciary obligations and equitable remedies. The unit will examine:

• the history of equity, basic principles which dominate its jurisprudence and the relevance of equity today;
• undue influence, unconscionable transactions and equitable estoppel;
• the nature and changing function of trusts, the creation of express trusts, the variation and termination of trusts, illegality, the duties, powers, rights and liabilities of trustees, the rights of beneficiaries and resulting trusts;
• the nature of fiduciary obligations, recognised categories of fiduciaries and the extension of these categories in recent times, breach of fiduciary obligations, defences and remedies for the breach of fiduciary obligations; and
• equitable proprietary and personal remedies including the rule in Barnes v Addy, constructive trusts, tracing, specific performance, injunctions, declarations and damages under Lord Cairns’ Act;
• equitable assignments.

Evidence    LAWS2207

(6cp)

Syllabus: Participants should gain a good understanding of the basics of the law of evidence as it is stated in the Evidence Act 1995 (Cth). The unit is structured to meet the admission requirements for practice as a legal practitioner in the Australian States and Territories.

The unit will begin with a consideration of the process of fact-finding, the concept of relevance (including tendency and co-incidence evidence), and the judicial discretions to exclude evidence. It will then turn to documentary evidence, opinion evidence and the hearsay rule and its exceptions. Topics relating to the course of the trial will be a major focus. Other topics will include the onus and standard of proof, the position of a defendant in a criminal trial, the question of illegally obtained evidence and the admissibility of admissions in criminal matters.

Reading

• Waight, P and Williams, C R, Evidence: Commentary and Materials (5th ed, 1998) (plus some Supplementary materials)

Foundations of Australian Law    LAWS1201

(6cp)

Syllabus: The unit is designed:

• to acquaint students with the various elements of the Australian legal system, including constitutions, case law, legislation and customary law;
• to consider the historical, social, economic and political context in which the Australian legal system has developed;
• to introduce students to various techniques and methods of legal analysis and legal research;
• to teach students to evaluate critically legal and contextual material;
• to introduce students to the art of legal writing in its various forms.

The broad aim of this unit is to provide students with an introduction to Australia’s rich legal tradition, and to help them acquire the skills needed to succeed in the study of law. Stated another way, Foundations of Australian Law is intended to lay the groundwork for the remainder of one’s legal studies. Topics to be covered include: legal history and the common law tradition; the modern-day elements of the legal system and their interplay; the concepts of responsible government and the rule of law; the role and powers of the legislature; federalism; case law and legislation; legal reasoning and problem solving; the position of the Aboriginal Peoples within the legal system.

International Law    LAWS1207

(6cp)

Syllabus: This unit explores the role of international law in regulating inter-state relations and in the develop- ment of Australian Law. The institutional framework, theoretical basis and legal processes of international law will be discerned through a practical and conceptual analysis of relevant Australian Law. Topics to be covered include:

• The constitutional framework: the nature of international law, international institutions and international legal process; separation of powers, the rule of law and sovereignty; hard and soft law, the international court of justice, UN institutions.
• The impact of international law on Australian law: case and legislative studies on the impact of customary international law and treaty law (particularly international human rights and international environmental law) on the development of many aspects of Australian law eg Mabo and its impact on constitutional and property law; Teoh and its impact on administrative law & family law.
• Treaties as contractual relations in international law: the law of treaties with particular emphasis on Australia’s federal system; the external affairs power eg Tasmanian Dams and the effect of international legal obligations on federalism and on Australian democratic processes.
• Legal personality: recognition of foreign states and the rights of peoples (including the right of self-determination) in Australian courts, and the position of corporations in an international legal context.
• Enforcement: international and Australian mechanisms for enforcement of international legal obligations; delict, dispute resolution in international trade law; international criminal law.

Lawyers, Justice and Ethics    LAWS1202

(6cp)

Syllabus: The unit

• helps the student to gain insight into the realities and diversity of legal practice;
• imparts an awareness of the social, political and economic contexts of legal process and law reform;
• introduces the structure and workings of the legal profession from a political and sociological perspective;
• explains the nature of legal processes and procedures and the problems of gathering and assessing relevant evidence;
• encourages discussion of the ethical issues which lawyers confront;
• promotes the acquisition of interpersonal skills required for problem solving in a legal setting.

This unit focuses on the range of activities in which lawyers are involved, the different roles they are called upon to play, the ethical choices they face and the skills required to carry them through successfully. The unit will include case studies which will allow students to explore these issues, leading into discussions about access to justice, the law reform process, the realities of litigation, and the nature of the legal profession. Special attention will also be given to the impact of gender, race and class on the way in which legal problems are dealt with. The student will be introduced to skills such as those involved in the analysis of a problem, clear communication, interviewing, legal writing, negotiating, and dispute resolution.

Legal Theory    LAWS1208

(6cp)

Syllabus

• to familiarise students with the main types of justificatory and critical argumentation about law and legal systems.
• to teach students to read cases thoughtfully, critically and with an awareness of current interpretive practice and theory.

This unit examines the nature and function of law through a number of philosophical studies and practical examples. The implications of different theoretical perspectives on law (eg natural law, positivism) are explored through a series of case studies. The areas of law considered include war crimes trials, judicial review/implied rights and anti-discrimination legislation. The unit is also about how we read cases and about how judges interpret legal materials. This part of the unit considers how judges should decide cases and what judges do in deciding cases. Here, we evaluate judicial reasoning in the light of theories of democracy and competing assumptions about the rule of law.

Property    LAWS2204

(6cp)

Prerequisite: Contracts

Syllabus

• to examine basic concepts and principles of property law relating to personal and real property, with greater attention to interests in land;
• to develop an understanding of the role of property law in providing tools for the myriad of property dealings for commercial and private purposes, including transfers, securing of loans, leasing land, sharing of ownership and regulating land use;
• to examine the values and policy considerations in the legal regulation of such property transactions, including efficiency, security, certainty, equity and social justice;
• to acquire skills in problem solving in relation to property disputes.

This unit provides an overview of the law governing personal and real property, emphasising the concepts of possession and title, the fragmentation of proprietary interests, and the various ways in which common law and legislation resolve disputes between competing interests. The greater part of the unit is devoted to the nature, creation, acquisition, exercise, and remedies for the protection, of interests in real property (land). The unit covers legal and equitable interests in land, the acquisition and transfer of such interests by purchase, gift and adverse possession, priority rules, leases, mortgages, easements, and concurrent ownership. Particular attention is paid to the Torrens system of registration of title.

Torts    LAWS1203

(6cp)

Syllabus

• to provide knowledge and understanding of the tort of negligence and other related areas of the law of torts.
• to gain an insight, from the perspective of a particular branch of the law, into the way in which the law develops, and the advantages and disadvantages of judicial development of the law.

The tort of negligence is the principal means by which the law provides compensation for a loss caused by another’s carelessness, whether that loss be physical injury, damage to property, or financial harm. A study is made of the essential features of the tort of negligence, the way in which the tort is applied in particular situations, and the principles by which damages are assessed for one who has suffered personal injury by another’s negligence. A further subject of study is the torts relating to trespass to the person — battery, assault and false imprisonment — together with trespass to land and the tort of nuisance.

Electives

Banking and Finance    LAWS2208

(6cp)

Prerequisite: Contracts

Syllabus: The unit deals with the legal aspects of banking and finance transactions in a dynamic way which balances theoretical perspectives, business context and the principles contained in statutes, cases and commercial custom.

The unit begins by discussing the role that banks play in the economy and the legal regulation of banking activity. It focuses on financing and payment facilities in a commercial setting. It covers conventional financing methods, such as bank term loans and bond issues, as well as modern methods such as loan syndication and participation. The specific topics covered include bill facilities, promissory note issues, commercial and standby letters of credit, and bank guarantees. The payment facilities covered include cheques and large-value electronic payments. Finally the unit deals with selected topics on the banker-customer relationship which complement the study of financing and payment services.

Bankruptcy and Insolvency    LAWS2209

(6cp)

Prerequisite: Corporations Law

Syllabus: This unit deals with the law relating to personal and corporate insolvency. This will include examination of the Bankruptcy Act 1966 (Cth) and Chapter 5 of the Corporations Law.

With regard to personal insolvency (ie bankruptcy), the topics to be covered include the initiation and termination of the bankruptcy process; the functions and powers of the trustee in bankruptcy; the ascertainment of the bankrupt’s debts; the determination of the assets available for distribution to creditors, and alternatives to formal bankruptcy.

The topics to be covered in relation to corporate insolvency include the appointment, powers, and duties of receivers; schemes of arrangement and reconstruction; voluntary administration; the initiation of the winding-up process; the effects of winding-up; the proof and ranking of creditors’ claims; and the appointment, powers, and duties of liquidators.

Commercial Law    LAWS2210

(6cp)

Prerequisite: Contracts

Syllabus: The unit deals with two related aspects of commercial law: sales and secured transactions. The study of sales focuses on aspects of the contract of sale of goods which are not covered in the Contracts unit. The study of secured transactions relates to the legal aspects of credit and security. Specific topics will include:

Sales

• the contract of sale: its nature and function;
• the passing of property;
• the allocation of the risk of loss;
• the passing of title: nemo dat quod non habet;
• standards of fitness and quality.

Secured Transactions

• functions of credit and security;
• attachment and perfection of possessory securities;
• attachment and perfection of non-possessory securities (including charges, reverse securities, mortgages);
• financing against stock and receivables;
• Priorities ¾ contests among secured parties, and between secured parties and purchasers, and between secured and unsecured parties.

Comparative Legal History    LAWS2211

(6cp)

Prerequisite: none

Syllabus: This unit has four objectives: to introduce students to the use of history as a tool for legal analysis; to introduce students to the comparative legal method; to increase students’ depth of understanding of the legal system; and to increase students’ proficiency at writing and research.

The unit takes as its focus the experience of Australia and Canada, the two most similar of the settler colonies established by Great Britain in the latter half of the eighteenth century. After an introduction to historical comparative method, topics will include: patterns of reception of English law in the colonies; the development of colonial legal institutions; constitutional evolution and growth to nationhood; crime, punishment and policing; anti-discrimination law; gender, family and the law; Indigenous peoples and the law; and trade unionism and industrial relations.

Note

This unit is jointly taught with the University of British Columbia and the University of Victoria (Canada).

Conflict of Laws    LAWS2212

(6cp)

Not offered in 1999

Prerequisites: Torts and Contracts

Syllabus: This unit is concerned with the way in which the law deals with cases in which not all of the facts are referable to one State or Territory of the Commonwealth. Topics include:

• jurisdiction of Australian courts over defendants either outside Australia or elsewhere within the country;
• the jurisdiction of the High Court and the Federal Court;
• recognition and enforcement in Australia of judgments delivered overseas;
• the grounds on which foreign laws and institutions will not be recognised in Australia;
• the law applicable to actions in contract, with particular emphasis on international business transactions;
• the recognition and enforcement of foreign arbitral awards;
• the law applicable to actions on torts committed outside the State or Territory in which the proceedings are heard;
• the effect given in one State or Territory to rights of action created by the state law of another State or Territory;
• the law applicable to succession on death.

Contemporary Issues in Constitutional Law    LAWS2213

(6cp)

Not offered in 1999

Prerequisite: Commonwealth Constitutional Law

Syllabus: The unit builds on the compulsory public law units, in particular Commonwealth Constitutional Law, to explore in depth aspects of constitutional interpretation, theory and practice. Selection of topics will reflect contemporary perspectives and debate.

Criminal Justice    LAWS2214

(6cp)

Not offered in 1999

Prerequisite: Criminal Law and Procedure

Syllabus: This unit examines the process, institutions and contexts of criminal justice. It is designed to develop a critical understanding of the theoretical, legal and policy issues relating to crime, punishment and the criminal process, and to introduce students to interdisciplinary perspectives through an examination of contemporary topics in criminal justice

The first part of the unit will examine the role and place of punishment in the criminal justice system. Theoretical perspectives on criminology and criminal justice, both explanatory and normative, will be evaluated. The second part of the unit will explore theoretical, legal and policy issues through an examination of a range of substantive topics, such as policing, the “new investigators” (eg NCA, ICAC), diversionary conferences, criminal investigation, electronic surveillance, the fair trial, entrapment, mode of trial, prosecution, the impact of the criminal justice systems on indigenous peoples, miscarriages of justice, domestic violence, multiculturalism, sentencing and prisons.

Environmental Law    LAWS2215

(6cp)

Prerequisite: none

Syllabus: This unit is concerned with the institutional arrangements and legal principles that underpin the practice of environment and planning law.

The unit examines environmental law from theoretical and practical perspectives, taking a broad national and thematic approach. The unit commences with an introduction to concepts relating to defining the “environment”, including philosophical/ethical bases for environmental protection and the notion of “ecologically sustainable development”. It then considers environmental protection in a federal system. This is followed by consideration of the role of local and state/territory governments in the implementation of environmental protection objectives through statutory land-use planning and other measures (including consideration of techniques for development control such as environmental impact assessment). The final component of the unit covers regulatory strategies and techniques for pollution control and the enforcement of environmental protection measures (including the topics of standing and access to justice).

Environmental Law Elective    LAWS2216

(6cp)

Prerequisite: none.

Syllabus: This will vary from year to year. In any given semester the elective will provide intensive coverage of a topic or topics in a substantive area of law relating to the environment.

Environmental Law Elective: Regulation and Environment    LAWS2216

(6cp)

Prerequisite: none

Syllabus: This unit examines the structure, strengths and limitations of traditional forms of environmental regulation by government agencies, and explores a range of alternative policy instruments and institutional arrangements for environmental protection. The focus is on ways of achieving smarter, innovative and effective environmental policy. Particular attention is paid to the “next generation” of environmental regulation strategies, including environmental audit, enforced self-regulation, financial instruments such as lender liability and environmental insurance, and the role of economic instruments and incentives. The unit aims:

• to explore the strengths and limitations of the existing regulatory approaches to environmental protection;
• to identify the contribution that broader innovative forms of regulation can make to environmental protection;
• to explain the interrelation between such mechanisms;
• to provide a theoretical framework for understanding the relative efficacy of different regulatory regimes;
• to examine these issues from a policy-orientated and interdisciplinary perspective.

Family Law    LAWS2217

(6cp)

Prerequisite: none

Syllabus: The unit is designed to consider a selection of law as it relates to “the family” in Australia, to place the law in its political, economic, constitutional and other contexts, and to encourage evaluation of the law and proposals for its reform.

The unit explores the nature of “family” relationships and what happens when there is a separation of the adults within such relationships, both in terms of financial/property outcomes and decisions about parenting. The unit commences with a discussion of “the family”, including the difficulties of defining “family” and what the law’s role in this is and should be. It then moves to place family law in various contexts, by examining theoretical perspectives, constitutional and jurisdictional issues and the Family Court and dispute resolution. The following topics are then covered:

• violence by men against women in the home;
• de facto/domestic relationships;
• nullity and dissolution of marriage;
• economic aspects of marriage breakdown (including child support, spousal maintenance and property distribution);
• parenting orders/agreements.

Feminist and Critical Legal Theory    LAWS2218

(6cp)

Not offered in 1999

Prerequisite: none

Syllabus: This unit introduces students to critical and transformative theories about law and legality. Students draw on these theories to analyse current legal problems. The unit has three major themes. The first is the study of a variety of feminist challenges to the dominant legal orthodoxies. The different and intersecting approaches to theorizing the law and the state taken by liberal feminists, radical feminists and postmodern feminist theory are addressed. The critique of feminist theories by critical race feminists is considered. Second, the work of post-marxists is discussed — is their vision of a radical or redistributive legal order attractive? Third, the unit draws on scholarship both inside and outside the discipline of law in order to study legal practices and images of law and legality. This includes law and literature, cultural studies, critical race theory and postcolonial theory.

These theoretical approaches are used to interpret current legal debates in areas such as free speech, native title, sexual harassment, euthanasia, legal education, republicanism, representations of law, privatization and intellectual property.

Health Law and Ethics    LAWS2219

(6cp)

Prerequisites: Torts and Criminal Law and Procedure

Syllabus: The unit examines the system for the regulation of health care in Australia, involves analysis and development of moral argument about the development of health law in Australia, and addresses the principal legal issues which arise in the practice of health care law.

The unit begins with an overview of the health system, its regulatory framework and the policy issues involved, with emphasis on the concepts of health ethics, patients rights and efficiency and equality in health care. The particular topics which are covered include: confidentiality, consent, negligence, accountability, health records, expert evidence, research and experimentation, organ donation, emergency treatment, intensive care, abortion, reproductive medicine, and death and dying. Some consideration is also given to the law relating to mental health and public health.

Human Rights Law in Australia    LAWS2220

(6cp)

Prerequisite: Commonwealth Constitutional Law.

Syllabus: This unit is concerned with the recognition and establishment in Australia of legal norms protective of human rights as founded in constitutional, statutory and common law. It aims to provide students with an in-depth understanding of Australian human rights law and practice. A contextual approach to the teaching of the subject is adopted, drawing on human rights theory, constitutional theory and the perspectives of comparative and international law. As far as possible, the unit will deal with current issues. The practical means and skills to protect human rights will also be developed.

Topics to be covered include:

• theories of rights
• historical background to constitutional protection of human rights in Australia; the doctrine of parliamentary sovereignty
• express constitutional rights
• implied constitutional rights: the implied freedom of political discussion, the notion of an implied guarantee of legal equality and implied rights flowing from Chapter III of the Constitution; the role of interpretative theory in the recognition of implied constitutional “rights”
• institutional mechanisms for the protection of rights, particularly the Human Rights and Equal Opportunity Commission
• discrimination law
• common law and statutory protections of rights, which will include some of the following rights: indigenous rights, right to life issues arising from the abortion and euthanasia debates; right to freedom of expression; right to privacy; and right to an adequate standard of living
• the comparative merits of constitutional, statutory and common law human rights protection; a Bill of Rights for Australia?

Income Tax    LAWS2221

(6cp)

Prerequisite: none

Syllabus: This unit introduces students to the main concepts of Australia’s income tax system. The unit begins by examining the tax criteria of equity, efficiency and simplicity used to evaluate a taxation system. This includes consideration of the criteria for evaluating tax expenditures.

The unit then considers:

• how a taxpayer’s taxable income is determined ¾ the concept of income is considered from both the legal and economic perspectives;
• the tax distinction between income and capital;
• the deductions that are available to taxpayers and the distinction between expenditure incurred in deriving income and non-deductible private expenditure;
• the statutory extensions to the income tax base, such as the fringe benefits tax and the taxation of capital gains;
• the taxation of trusts, partnerships and companies, including the dividend imputation system;
• the legislative measures to counter avoidance and what constitutes legitimate tax planning;
• tax administration;
• the features of the self assessment system; and
• the process for seeking a review of the decisions of the Commissioner.
• This course has been accredited by both the Institute of Chartered Accountants in Australia and the Australian Society of Certified Practicing Accountants.

Indigenous Australians and the Law    LAWS2238

(6cp)

Not offered in 1999

Prerequisites: Criminal Law and Procedure, Property and Australian Public Law

Syllabus: This unit aims to arm students with an understanding of, and a critical approach to, the law as it applies to Aboriginal people and Torres Strait Islanders. It presents that law in its historical and cultural context, highlighting problems which stem from that context for the definition of “Aboriginality” itself and for the relationship between indigenous Australians and the state.

Intellectual Property    LAWS2222

(6cp)

Prerequisite: none

Syllabus: The unit provides an overview of the different areas of law that relate to the protection and exploitation of ideas, information and knowledge. It covers copyright, design, trade secrets, patents, trade marks and passing off.

In broad terms copyright deals with the protection of literary, dramatic, musical and artistic works and other subject matter like films. Trade marks and passing off cover the law relating to the protection of reputation in goods and services (can you trademark a song?). Patent law explores the law relating to invention and discovery (can you patent a gene?). Design law deals with the protection for industrial designs (can you register a design for jeans?). Trade secret law deals with the protection of private and commercially valuable information (can you protect an algorithm?).

International Dispute Resolution    LAWS2223

(6cp)

Prerequisite: none

Syllabus: The unit examines the role of international law and, in particular, international organisations in restoring and maintaining peace and providing mechanisms for the peaceful settlement of disputes (eg arbitration, good offices).

Topics include: the development of legal doctrines, notably state responsibility for international harm and the regulation of the use of force in international law (self-defence, humanitarian intervention, war crimes); the evolution of the United Nations system and its work in the realm of collective security (Somalia, Haiti, Yugoslavia), with particular attention to the United Nations Security Council, the proposed International Criminal Court, and the International Court of Justice.

This unit is an exercise in applied international law and politics. The objective of the unit is to train students to use inte