Lecturers:
Professor Emeritus Wilfrid Prest A.M.

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 download the course readings from the course web site.

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 :

• Baker, An Introduction to English Legal History (5th ed., O.U.P., 2019)
• Kercher, An Unruly Child : A History of Law in Australia (Allen and Unwin, 2014)
• McKibbin/Connors/Harmes, A Legal History for Australia (Hart, Oxford 2021)
• Lemmings (ed.), The British and their Laws in the Eighteenth Century (Boydell Press, 2005)
• Kirkby/Colebourne (eds.), Law, History, Colonialism : the Reach of Empire (Manchester U.P., 2001)
• Oldham, English Common Law in the Age of Mansfield (U. of North Carolina Press, 2004)
• Prest, William Blackstone : Law and Letters in the Eighteenth Century (O.U.P., 2008)
• Macintyre, A Concise History of Australia (4th ed., C.U.P., 2016)
• Langford, Eighteenth-Century Britain : A Very Short Introduction (O.U.P., 2000)
• Prest, Albion Ascendant : English History 1660-1815 (O.U.P., 1998)
• Davison/Hirst/Macintyre, The Oxford Companion to Australian History (rev. ed., 2001)
• Fort/Prest/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 in accordance with the timetable.

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.

 

 

Day	Date	Topic	Readings
1	Monday 10/1	* 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.   * Phillips, “Why Legal History Matters” (2010) 41 VUWLR 293   * Baker, An Introduction to English Legal History (5th ed., O.U.P. 2019), chh. 1, 2   * 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	Wednesday 12/1	* Origins of the English legal system         * Blackstone and Bentham   (Guest lecturer : Prof. W. Prest A.M.)	Two presentations are available :   * 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   OR   * 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) : general editor’s introduction : pp. vii- xv, vol. 1; pp. 83-97 (ch. 1, “Of The Absolute Rights of Individuals”); pp. 176-78 (from ch. 17, “Of Injuries Proceeding from, or Affecting, the Crown”); iv. pp. 1-12 (ch. 1, “Of the Nature of Crimes, and of their Punishment”)
3	Thursday 13/1	* Married women’s legal status and property rights in the eighteenth century     * The arrival of settler law	Two presentations are available :   * Flikkers, “Early Modern Women in the English Courts of Law” (2018) 15 Literature Compass e12499; Greenberg, “The Legal Status of the English Woman in Early Eighteenth-Century Common Law and Equity” (1975) 4 Stud C18 Culture 181 OR   * Grand Jury Presentment re Aborigines, “South Australian Register”, 16 May 1851, p. 3, columns d & e (https://trove.nla.gov.au/newspaper/page/3933221); 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
4	Friday 14/1	* Aboriginal and Torres Strait Islander and Maori peoples and the law in comparative perspective     * Empire : colonial legal history in comparative perspective	Two presentations are available :   * Windschuttle, “The Fabrication of Aboriginal Voting : A Reply to Brian Galligan” (2017) 61:3 Quadrant 64; Galligan, “Fabricating Aboriginal Voting : A Reply to Keith Windschuttle” (2017) 61:4 Quadrant 50; Joseph, “The Maori Seats in Parliament”, available at : www.nzcpr.com/wp-content/uploads/2014/08/TheMaoriSeatsInParliament.pdf   OR   * Pike, Paradise of Dissent : South Australia 1829 – 1857 (2nd ed., Melbourne U.P. 1967), chh. 1, 2
5	Monday 17/1	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	Tuesday 18/1	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	Wednesday 19/1	* Legal history in action – the fallout from the Third Reich as an example of transitional justice   * Homo­sexuality and the law in Australia	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); Burleigh, The Third Reich : A New History (Pan, London 2001), pp. 154 – 177 (with fnn at pp. 832-840)   OR   * R v. Nation [1954] SASR 189; Bull/Pinto/Wilson, “Homosexual Law Reform in Australia”, available by downloading the p.d.f. at : https://aic.gov.au/publications/tandi/tandi29; Murdoch, Kamp Melbourne in the 1920s and '30s : Trade, Queans and Inverts (Cambridge Scholars Publishing, Newcastle upon Tyne 2017), pp. 4-5 and ch. 5 (note : contains some frank descriptions of sexual acts)
8	Thursday 20/1	* History of public international law         * Australian common law in the Imperial context before the Second World War – the example of nervous shock	Two presentations are available :   * 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   OR   * Lunney, A History of Australian Tort Law 1901 – 1945 : England’s Obedient Servant? (C.U.P., 2018), chh. 2, 6
9	Friday 21/1	* 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	Group/individual	Due date(s)	% weight	Length	Redeemable?	C.L.O.s
Active participation	Individual	N/A	10	N/A	No	1 – 6
Class presentation	Group presentation	In the class for the assigned presentation topic	20	Twenty minutes for the whole group	No	1, 2, 3, 4, 6
Essay (if examination not chosen)	Individual	Friday 11 February at 5 p.m.	70	Maximum of 5000 words	No	2, 3, 4, 5, 6
Examination (if essay not chosen)	Individual	in the summer-semester examination period	70	Three hours plus ten minutes’ 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.

 

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.  (Do not think that this is a goal you must reach at all costs; depending on your topic, 4000 words may well be sufficient.)  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, headings, quotations and footnotes.  Any separate cover page, table of contents, bibliography or list of sources is excluded from the word count.  If the word count 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 ten minutes’ 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.

 

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 but including the development of a personal view.

3.  Class presentation 20%

 

Compulsory and non-redeemable

 

The size of groups will depend upon the level of enrolment, but it may be that students will have to be grouped together.  Students will be required to prepare a twenty-minute group presentation on a topic from the list of presentation 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.

 

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

 

Marking criteria for the presentation 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 a group will suffer a marks penalty that adjusts their mark for this item of assessment to a level commensurate with their contribution.

 

4.  Active participation 10%

Compulsory and non-redeemable

 

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

 

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

All assessments will be submitted and monitored through text or code comparative software (e.g. Turnitin) where possible.

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.

Student feedback The course is constantly being updated and revised to reflect the evolution of the law, to respond to student feedback, and to engage with the latest teaching practices. Student feedback is collected each time the course is run, including through SELT reports. Previous SELT reports, and staff feedback on them, are posted on the course MyUni site for students to view and consider.

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 Integrity

All students must be familiar with the University’s Academic Integrity Policy. Academic Misconduct is a serious matter and is treated as such by the Law School and the University. Academic Misconduct (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 Integrity 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.