Course Coordinator: Professor Greg Taylor

Lecturers:

Professor Emeritus Wilfrid Prest

On successful completion of this course, students will be able to:

1. Explain the development of Australia’s legal system, including the British background.
2. Analyse, evaluate and synthesise information from a wide variety of sources and experiences.
3. Be aware of the incompleteness of the law and the continuous state of development of legal principles
4. Appreciate the evolution of the roles of lawyers and judges, and the ethical dimensions of the development of law and legal systems.
5. Refine critical thinking and problem-solving skills, and develop skills to independently undertake historical research.
6. Demonstrate good inter-personal and communication skills in both written and oral communication.

Students will need to purchase a Course Reader from the Image and Copy Centre.

There is an extraordinary array of legal (and general) history material available. The following are just a few of the books you may find of assistance:

• J H Baker, An Introduction to English Legal History (Butterworths, 4th ed, 2002)
• Bruce Kercher, An Unruly Child: A History of Law in Australia (Allen and Unwin, 1995)
• Alex Castles, An Australian Legal History (LawBook Co, 1982)
• David Lemmings (ed), The British and their Laws in the Eighteenth Century (Boydell Press, 2005)
• Diane Kirkby and Catharine Colebourne (eds), Law, History, Colonialism: the Reach of Empire (Manchester University Press, 2001)
• James Oldham, English Common Law in the Age of Mansfield (University of North Carolina Press, 2004)
• Wilfrid Prest, William Blackstone: Law and Letters in the Eighteenth Century (Oxford University Press, 2008)
• Stuart Macintyre, A Concise History of Australia (Cambridge University Press, 3rd ed, 2009)
• Paul Langford, Eighteenth-Century Britain: A Very Short Introduction (Oxford University Press, 2000)
• Wilfrid Prest, Albion Ascendant: English History 1660-1815 (Oxford University Press, 1998)
• Graeme Davison, John Hirst and Stuart Macintyre, The Oxford Companion to Australian History (Rev ed, 2001)
• Carol Fort, Wilfrid Prest and Kerrie Round (eds), The Wakefield Companion to South Australian History (2001)

MyUni will be used to post announcements, post additional lecture materials (including slides, and where available, audio recordings of lectures) and announce assignment tasks. It will also contain electronic copies of the Course Outline, Lecture and Seminar Guides, and Course Materials. Students are expected to check MyUni regularly to keep up to date with these materials and additional learning resources throughout the course.

This course will be taught intensively from 15 - 25 January inclusive.

Students will be required to discuss, debate and defend their analysis of the relevant material set in the course readings.

There is no formal attendance requirement, except for your group presentation, but the participation mark will be based in
part on attendance.  The classes will not be recorded.

Contact time : attend classes as shown in the timetable.  This amounts to 36 hours of formal class time across the semester.

Preparation time : In addition to attending formal classes it is anticipated that students will do substantial independent work to prepare for classes and to complete the course assignments. The University expects full time students (those undertaking 12 units per semester) to devote a total of 48 hours per week to their studies.

Schedule

Day	Date	Teachers	Topic	Readings
1	Monday 15/1	GT WP	* Introduction to the course * Legal history : methodology and approaches * Legal history : questions and resources * Uses of history in law	* General discussion of course content, assessment etc. * Gummow J., “Law and the Use of History” in Gleeson/Higgins (eds.), Constituting Law : Legal Argument and Social Values (Federation, Annandale 2011), pp. 61-77; Phillips, “Why Legal History Matters” (2010) 41 VUWLR 293; Windeyer, “History in Law and Law in History” (1973) 11 Alberta LR 123 * Cole v. Whitfield (1988) 165 CLR 360, 383-395; Mabo v. Queensland (No. 2) (1992) 175 CLR 1, 16-58 No presentations will occur on this day.
2	Tuesday 16/1	GT WP	* Origins of the English legal system * Blackstone and Bentham	* Brooks, “The Longitudinal Study of Civil Litigation in England, 1200 – 1996” in Prest/Roach Anleu (eds.), Litigation Past and Present (U.N.S.W. Press, 2004), pp. 24-43 & Baker, An Introduction to English Legal History (4th ed., Butterworths, London 2002), preface (v) and pp. 1-10, 12-34 * Bentham (ed. Burns/Hart), “A Fragment on Government, Preface” in Collected Works of Jeremy Bentham (O.U.P., [1776] 1977), pp. 391-421; Blackstone, Commentaries on the Laws of England (Oxford, 1765-9; 2016), i. 83-97 (ch. 1, “Of The Absolute Rights of Individuals”); iii. 176-78 (from ch. 17, “Of Injuries Proceeding from, or Affecting, the Crown”); and iv. 1-12 (ch. 1, “Of the Nature of Crimes, and of their Punishment”) – with general editor's introduction at pp. vii- xv of the first vol.
3	Wednesday 17/1	GT WP	* The arrival of settler law * Aboriginal and Torres Strait Islander and Maori peoples and the law in comparative perspective	* Grand Jury Address [1851] SASupC 135; Banner, “Why Terra Nullius?   Anthropology and Property Law in Early Australia” (2005) 23 Law & Hist Rev 95; Borch, “Rethinking the Origins of Terra Nullius” (2001) 117 Aust Hist Stud 222 * Galligan/Windschuttle, “Fabricating Aboriginal Voting : Galligan vs. Windschuttle” (2017) 61:4 Quadrant 50-59; Joseph, “The Maori Seats in Parliament”, available at : http://www.nzcpr.com/wp-content/uploads/2014/08/TheMaoriSeatsInParliament.pdf
4	Thursday 18/1	GT WP	Empire : colonial legal history in comparative perspective	Two presentations are available : * Pike, Paradise of Dissent : South Australia 1829 – 1857 (2nd ed., Melbourne U.P. 1967), chh. 1, 2; OR * Smandych, “Mapping Imperial Legal Connections : Towards a Comparative Historical Sociology of Colonial Law” (2010) 31 Adel LR 187
5	Friday 19/1	GT	Responsible government in Australia	Two presentations are available : * South Australia : Castles/Harris, Lawmakers and Wayward Whigs : Government and Law in South Australia 1836 – 1986 (Wakefield, Adelaide 1987), ch. 4 OR New South Wales : Melbourne (ed. Joyce), Early Constitutional Development in Australia (U. of Queensland Press, St Lucia 1972), Part V except ch. IV
6	Monday 22/1	GT	Federation	Two presentations are available : * Federation in general : Irving, “Making the Federal Commonwealth, 1890 – 1901” in Bashford/Macintyre (eds.), Cambridge History of Australia (C.U.P., 2013), ch. 10 OR * Federation in South Australia : Bannon, “South Australia” in Irving (ed.), Centenary Companion to Australian Federation (C.U.P., 1999), ch. 3
7	Tuesday 23/1	GT	* Legal history in action – the fallout from the Third Reich as an example of transitional justice * Homo­sexuality and the law in Australia and Germany	Two presentations are available : * Oberlandesgericht Bamberg, (1951) 64 Harv LR 1005; the extracts at pp. 69 – 114 in Feinberg & Gross (eds.), Philosophy of Law(3rd ed., Wadsworth, Belmont 1980) OR * Bull/Pinto/Wilson, “Homosexual Law Reform in Australia”, available at : http://www.aic.gov.au/media_library/publications/tandi_pdf/tandi029.pdf; Taylor, “The East German Contribution to Equal Gay and Lesbian Rights in Germany” (2014) 54 Am Jo Leg Hist 303
8	Wednesday 24/1	GT	History of public international law	Cassese, International Law (2nd ed., O.U.P. 2005), ch. 2; Hershey, “History of International Law since the Peace of Westphalia” (1912) 6 Am Jo Int Law 30
9	Thursday 25/1	GT	* Australian legal innovation : the Torrens system * Australian legal innovation : the secret ballot and votes for women	Two presentations are available : * Raff, “Torrens, Hübbe, Stewardship and the Globalisation of Property Law Systems” (2009) 30 Adel LR 245 & Taylor, “The Torrens System – Definitely not German” (2009) 30 Adel LR 195 OR * McKenna, “Building a ‘Closet of Prayer’ in the New World : the Story of the ‘Australian Ballot’” in Sawer (ed.), Elections : Full, Free and Fair (Federation, Leichhardt 2001) & Tarrant, “The Women Suffrage Movements in the United States and Australia : Concepts of Suffrage, Citizenship and Race” (1996) 18 Adel LR 47

There are no additional requirements for completion of this course other than described elsewhere in this document.

Assessment Task	Task Type	Due	Weighting	Length	Redeemable	Learning Outcome
Participation	Individual	N/A	10%	N/A	No	1 – 6
Class presentation	Group presentation and individual written component	At the start of the class for the assigned presentation topic	20%	Twenty minutes for the whole group; 500 words for the written component	No	1, 2, 3, 4, 6
Essay (if examination not chosen)	Individual	Wednesday 7 February at 5 p.m.	70%	5000 words	No	2, 3, 4, 5, 6
Examination (if essay not chosen)	Individual	in the summer-semester examination period	70%	Three hours plus the usual reading time	No	2, 3, 4, 5

1.  Essay 70%
Compulsory (unless examination chosen) and non-redeemable

Topics are below.  Further topics may be approved.  Given the short period of time available, it is essential to choose a topic (or discuss an alternative with the course co-ordinator) in plenty of time to conduct the research for and write a good essay.

1.  When can legal history be beneficial in deciding cases, and when is it of little use, or even possibly harmful?

2.  What influence did Blackstone have on Australian law?

3.  Who is right on the “fabrication of Aboriginal voting” – Galligan or Windschuttle?

4a.  What reasons motivated Maori chiefs to sign the Treaty of Waitangi, and has history vindicated their decision – having
regard to the legal history of Australia’s indigenous peoples and the realities of power?

4b.  Assess the relative roles of idealism and greed in the foundation of South Australia.

5.  Would the Australian colonies have obtained responsible government as early as the 1850s had it not been for the Durham
Report (1838 – 1839)?

6a.  What was the significance of sentimental considerations, as distinct from hard-headed commercial considerations, in the
Federation movement?

6b.  What present-day features of Australian and Canadian constitutionalism can be explained by reference to the two countries’
contrasting histories of (con)federating?

7a.  Is there a natural law that renders grossly unjust “laws” void?

7b.  What, if anything, can other minorities learn from the history of law reform relating to homosexuality in Australia?

8.  What does the history of international law suggest about its future?  Choose useful examples to illustrate your conclusions.

9.  Was the achievement of women’s suffrage in South Australia a gift or a struggle?  In answering this question, compare the granting of female suffrage in Victoria.

10.  Devise your own question, and – if it is approved by the course co-ordinator – answer it.

Due Date : as above

The criteria for assessment are : extent of research going beyond the course materials provided; depth of understanding of the materials; articulation and defence of the student’s own view with reference to other possible views; correct use of the English language and adequate referencing (including a bibliography).

Submission – via Turnitin

When an assessment is submitted after the due date without an extension, 5% of the total mark possible will be deducted
for every twenty-four hours or part thereof that it is late, including each day on a weekend and public holidays.  For example, an essay that is submitted after the due date and time but within the first twenty-four-hour period, and that has been graded at 63%, will have 5% deducted, for a final grade of 58%.  An essay that is more than twenty-four hours late will lose 10%, etc.

Length : The assignment is to be a maximum of 5000 words, including footnotes.  Footnotes are to contain references only and substantive material in footnotes will not necessarily be read.  5% of the total mark possible for a written assessment will be deducted for every 100 words (or part thereof) by which it exceeds a stipulated word limit.  For example, a 3,000-word essay graded at 63% will have 5% deducted if it is between 3,001 and 3,100 words long for a final mark of 58%.  If the essay is between
3,101 and 3,200 words long, 10% will be deducted for a final mark of 53%, etc.  Word limits include all words in the text, in headings, in quotations, but exclude citations in footnotes.  Any separate cover page, table of contents, bibliography or list of sources is excluded from the word limit.  If the word limit is misstated, this may be regarded as academic dishonesty

 

2.  Examination 70%
Compulsory (unless essay completed) and non-redeemable.  Students must choose between the essay and the examination – it is not envisaged that both will be chosen!

The examination is an open-book examination of three hours’ duration with the usual reading time.  It aims to test students’ knowledge of the material in the readings, including the development of a personal view.  No further reading or research whatsoever will be needed.  Examples of questions (not the actual questions, but the style) include, “Outline and contrast the origins of responsible government in South Australia and New South Wales” and “Outline the various ways in which a legal history of gross injustice can be dealt with by a legal system using the example of Germany after Nazism, and state which
approach you think is preferable and why”.

There will be six questions of which students must choose any three.  Students will be assessed on their knowledge and understanding of the course materials.  As can be seen, the examination tests a greater breadth of knowledge than the essay; the essay allows students to select a single topic for in-depth study, while the examination surveys a larger portion of the course in less detail and without the need for any further research.



3.  Class presentation with written report 20%
Compulsory and non-redeemable

The size of groups will depend upon the level of enrolment, but it is expected that somewhere between three and five students will be the usual number.  Students will be required to prepare a twenty-minute group presentation on a topic from the list of topics (other than those listed for the first class) and using the reading(s) provided.  Students may contact the course co-ordinator with group names and a topic choice after enrolment, as long as the topic has not already been chosen by someone else. 
Remaining students will be allocated into groups when enrolments close using topics not already taken.

Each student must also individually, and before the class commences at which the presentation will occur, provide a written summary of the student’s own contribution to the presentation.  This report should be about 500 words long; penalties for late submission and excessive words are as for the essay.  In addition, if a report is handed in after the class occurs it will need to be marked on the basis that the student has benefited from the discussion in class.  Neither extensive footnotes nor any bibliography is required.

No research is expected for the presentation or the written report, but clearly students will need to read the materials thoroughly.  Visual aids for the presentation may be used.

Marking criteria for both the presentation and the written report are : a thorough understanding of the chosen topic and the development of a personal standpoint on the part of students.  (It is perfectly in order for students in one group to agree to disagree and take contrasting standpoints.)

A student who fails to contribute adequately to their group will suffer a marks penalty that adjusts their mark for this item of assessment to a level commensurate with their contribution.  The final mark for this assessment item will be an equal combination of assessment of the presentation and of the individual written report.

 

4. Class participation 10%
Compulsory and non-redeemable

Students will be assessed on their participation in seminars.  This means they must attend at and prepare for class by completing the readings.

Marking criteria : class participation will be assessed against the following criteria : attendance; preparation; quality of  contributions; listening and engagement with others.

1.  Essay 70%

Compulsory (unless examination chosen) and non-redeemable

Topics are below.  Further topics may be approved.  Given the short period of time available, it is essential to choose a topic (or discuss an alternative with the course co-ordinator) in plenty of time to conduct the research for and write a good essay.

1.  When can legal history be beneficial in deciding cases, and when is it of little use, or even possibly harmful?

2.  What influence did Blackstone have on Australian law?

3.  Who is right on the “fabrication of Aboriginal voting” – Galligan or Windschuttle?

4a.  What reasons motivated Maori chiefs to sign the Treaty of Waitangi, and has history vindicated their decision – having regard to the legal history of Australia’s indigenous peoples and the realities of power?

4b.  Assess the relative roles of idealism and greed in the foundation of South Australia.

5.  Would the Australian colonies have obtained responsible government as early as the 1850s had it not been for the Durham Report (1838 – 1839)?

6a.  What was the significance of sentimental considerations, as distinct from hard-headed commercial considerations, in the Federation movement?

6b.  What present-day features of Australian and Canadian constitutionalism can be explained by reference to the two countries’ contrasting histories of (con)federating?

7a.  Is there a natural law that renders grossly unjust “laws” void?

7b.  What, if anything, can other minorities learn from the history of law reform relating to homosexuality in Australia?

8.  What does the history of international law suggest about its future?  Choose useful examples to illustrate your conclusions.

9.  Was the achievement of women’s suffrage in South Australia a gift or a struggle?  In answering this question, compare the granting of female suffrage in Victoria.

10.  Devise your own question, and – if it is approved by the course co-ordinator – answer it.

Due Date : as above

The criteria for assessment are : extent of research going beyond the course materials provided; depth of understanding of the materials; articulation and defence of the student’s own view with reference to other possible views; correct use of the English language and adequate referencing (including a bibliography).

Submission – via Myuni

When an assessment is submitted after the due date without an extension, 5% of the total mark possible will be deducted for every twenty-four hours or part thereof that it is late, including each day on a weekend and public holidays.  For example, an essay that is submitted after the due date and time but within the first twenty-four-hour period, and that has been graded at 63%, will have 5% deducted, for a final grade of 58%.  An essay that is more than twenty-four hours late will lose 10%, etc.

Length : The assignment is to be a maximum of 5000 words, including footnotes.  Footnotes are to contain references only and substantive material in footnotes will not necessarily be read.  5% of the total mark possible for a written assessment will be deducted for every 100 words (or part thereof) by which it exceeds a stipulated word limit.  For example, a 3,000-word essay graded at 63% will have 5% deducted if it is between 3,001 and 3,100 words long for a final mark of 58%.  If the essay is between 3,101 and 3,200 words long, 10% will be deducted for a final mark of 53%, etc.  Word limits include all words in the text, in headings, in quotations, but exclude citations in footnotes.  Any separate cover page, table of contents, bibliography or list of sources is excluded from the word limit.  If the word limit is misstated, this may be regarded as academic dishonesty

 

2.  Examination 70%

Compulsory (unless essay completed) and non-redeemable.  Students must choose between the essay and the examination – it is not envisaged that both will be chosen!

The examination is an open-book examination of three hours’ duration with the usual reading time.  It aims to test students’ knowledge of the material in the readings, including the development of a personal view.  No further reading or research whatsoever will be needed.  Examples of questions (not the actual questions, but the style) include, “Outline and contrast the origins of responsible government in South Australia and New South Wales” and “Outline the various ways in which a legal history of gross injustice can be dealt with by a legal system using the example of Germany after Nazism, and state which approach you think is preferable and why”.

There will be six questions of which students must choose any three.  Students will be assessed on their knowledge and understanding of the course materials.  As can be seen, the examination tests a greater breadth of knowledge than the essay; the essay allows students to select a single topic for in-depth study, while the examination surveys a larger portion of the course in less detail and without the need for any further research.

 

3.  Class presentation with written report 20%

Compulsory and non-redeemable

The size of groups will depend upon the level of enrolment, but it is expected that somewhere between three and five students will be the usual number.  Students will be required to prepare a twenty-minute group presentation on a topic from the list of topics (other than those listed for the first class) and using the reading(s) provided.  Students may contact the course co-ordinator with group names and a topic choice after enrolment, as long as the topic has not already been chosen by someone else.  Remaining students will be allocated into groups when enrolments close using topics not already taken.

Each student must also individually, and before the class commences at which the presentation will occur, provide a written summary of the student’s own contribution to the presentation.  This report should be about 500 words long; penalties for late submission and excessive words are as for the essay.  In addition, if a report is handed in after the class occurs it will need to be marked on the basis that the student has benefited from the discussion in class.  Neither extensive footnotes nor any bibliography is required.

No research is expected for the presentation or the written report, but clearly students will need to read the materials thoroughly.  Visual aids for the presentation may be used.

Marking criteria for both the presentation and the written report are : a thorough understanding of the chosen topic and the development of a personal standpoint on the part of students.  (It is perfectly in order for students in one group to agree to disagree and take contrasting standpoints.)

A student who fails to contribute adequately to their group will suffer a marks penalty that adjusts their mark for this item of assessment to a level commensurate with their contribution.  The final mark for this assessment item will be an equal combination of assessment of the presentation and of the individual written report.

 

4. Class participation 10%

Compulsory and non-redeemable

Students will be assessed on their participation in seminars.  This means they must attend at and prepare for class by completing the readings.

Marking criteria : class participation will be assessed against the following criteria : attendance; preparation; quality of contributions; listening and engagement with others.

See previous heading.

Courses for which a result of conceded pass has been obtained may not be presented towards the degree requirements for the Bachelor of Laws or the Honours Degree of Bachelor of Laws programs, or any postgraduate law program, nor to satisfy prerequisite requirements within any law course.

Finality of Assessment Grades

Students are advised that Course Coordinators will not enter into negotiations of any kind with any student regarding changes to their grades. It is irrelevant, in any given circumstance, that only a minimal number of additional marks are required to inflate a student’s grade for any individual assessment item or course as a whole. Pursuant to the University’s Assessment for Coursework Programs Policyand the Adelaide Law School Assessment Policies and Procedures, grades may only be varied through the appropriate channels for academic review (such as an official re-mark).

Moderation

In accordance with the University’s Assessment for Coursework Programs Policy, course coordinators ‘ensure that appropriate marking guidelines and cross-marking moderation processes across markers are in place’ in each course. Procedures adopted by Adelaide Law School to ensure consistency of marking in courses with multiple markers include:

• assurance of the qualifications of markers, and their knowledge of the content covered in each course;
• detailed marking guidelines and assessment rubrics to assist in the marking of items of assessment;
• sharing of example marked assessments at various grade bands across markers;
• reviewing of selected marked assessments from each marker by the course coordinator;
• comparison of the marks and their distribution across markers;
• automatic double-marking of all interim assessment receiving a fail grade, and of final assessments where a student’s overall result is a fail grade;
• the availability of re-marking of assessments in accordance with Adelaide Law School’s Assessment Policies and Procedures.

Approval of Results by Board of Examiners

Students are reminded that all assessment results are subject to approval (and possible moderation/change) by the Law School’s Board of Examiners. Assessment results at the University are not scaled. Under the Assessment for Coursework Programs Policy, students are assessed ‘by reference to their performance against pre-determined criteria and standards … and not by ranking against the performance of the student cohort in the course’. However, under that same policy, the Board of Examiners (as the relevant Assessment Review Committee for courses at Adelaide Law School) is required to ‘ensure comparability of standards and consistency’ in assessment. On occasions, the Board of Examiners will form the view that some moderation is required to ensure the comparability of standards and consistency across courses and years, and accordingly provide fairness to all law students. All assessment results are therefore subject to approval (and possible change) until confirmed by the Board of Examiners and posted on Access Adelaide at the end of each semester.

The University Writing Centre provides academic learning and language development services and resources for local, international, undergraduate and postgraduate coursework students enrolled at the University of Adelaide.

The centre offers practical advice and strategies for students to master reading, writing, note-taking, time management, oral presentation skills, referencing techniques and exam preparation for success at university through seminars, workshops and individual consultations.

Lex Salus Program

Lex Salus (law and wellbeing) is an initiative of the Adelaide Law School aimed at destigmatising mental health issues; promoting physical, mental and emotional wellness; building a strong community of staff and students; and celebrating diversity within the school. It also seeks to promote wellness within the legal profession, through the involvement of the Chief Justice of the Supreme Court of South Australia, the Honourable Chris Kourakis, as the official Patron of the program.

Students can participate in the Lex Salus program by attending barbecue lunches, pancake breakfasts, knitting and crochet circles, seminars, guest speakers, conferences and other activities. Our Facebook page, website and regular all-student emails promote upcoming events, and have tips and information on wellness.

Our Lex Salus YouTube channel also includes videos on topics like managing stress, and interviews with LGBTQ lawyers and their supporters which celebrate diversity and individuality. Students who commit to 10 hours of volunteering with Lex Salus in one year can have their service recognised on their academic transcript and through a thank you morning tea with the Chief Justice and law school staff.

Student Life Counselling Support

The University’s Student Life Counselling Support service provides free and confidential service to all enrolled students. We encourage you to contact the Student Life Counselling Support service on 8313 5663 to make an appointment to deal with any issues that may be affecting your study and life.

Academic Honesty

Academic dishonesty is a serious act of academic misconduct. All students must be familiar with the University’s Academic Honesty Policy.

Academic dishonesty is a serious matter and is treated as such by the Law School and the University. Academic dishonesty (which goes beyond plagiarism) can be a ground for a refusal by the Supreme Court of South Australia to admit a person to practice as a legal practitioner in South Australia.

Academic honesty is an essential aspect of ethical and honest behaviour, which is central to the practice of the law and an understanding of what it is to be a lawyer.