In Chapter 10 you were introduced to the IRAC framework for legal thinking, one of the most common fundamental approaches to working through a legal problem. On its own, IRAC seems quite simple — and it is, which is the beauty of it. However, if legal arguments were that simple, nobody would ever need to consult a lawyer! In this chapter, we take that basic IRAC process and start to add skills around it. By the end of this chapter you should have some idea about how to utilise IRAC and how to do so in a way that constructs compelling legal arguments.

Captain Cook claimed possession for the British Crown of what he called ‘New South Wales’ at Possession Island, Cape York (now Queensland) on 22 August 1770. British colonisation of Aboriginal lands, then a part of the European colonisation of the continent, began in January 1788.

Wow, that’s a massive call, right? You are going to read an awful lot of stuff in the next few years. How can we possibly suggest this is going to be the most important of all? For the moment, you will just have to trust such a bold claim. But what the authors of this text can tell you is that, together, we have marked many thousands of university assignments. We have seen the good, the bad and the very, very ugly. And from that experience we can guarantee that students who understand the material contained in this chapter invariably do better than students who do not.

Lawyers wear many hats and engage in a range of diverse, specialised work. However, regardless of the hat they wear or area of law they practice, a lawyer’s basic role is almost always the same: to provide legal services to a client. Whether appearing as an advocate in court, providing advice, preparing documents or any of the other countless services a lawyer may provide, the lawyer–client relationship is the jumping-off point.

This chapter completes discussion of the doctrine of separation of powers that began in Chapter 4. The doctrine of the separation of powers requires that the judiciary remains separate and independent of both the executive and the legislative arms of government. This separation is enshrined in the Australian Constitution. In this chapter we look more closely at the courts. In particular, we look at how the courts are created through their constitutional and statutory basis. We look at the nine separate hierarchies of the courts in Australia, and how courts within these hierarchies interact, yet create only one common law for Australia. We look at how the courts have changed in Australia since colonial times, to examine the rise of specialised tribunals and the introduction use of technologies over time.

People say things like ‘I try to obey the law’; ‘the law is on my side’; and ‘possession is nine-tenths of the law’. You could be forgiven for thinking of some monolithic beast called the law, rampaging around the countryside while demanding obedience!

Why is Australia able to deal with social unrest and not decline into a society where chaos, violence and deep corruption are constant? This chapter is about why and how Australia is a country in which there is order, security and safety. Beneath our relatively peaceful lives in Australia, there exist key elements that create this ‘peacefulness’. Australia’s institutions — Parliaments and courts — provide a way for people to express unhappiness and dissatisfaction; to improve laws and provide a mechanism to independently judge the laws.

What is ethics and, in any case, why worry about it? What has ethics got to do with law, anyway? Surely, if an activity or decision is legal, who cares if it is ethical or not? And why do I have to learn about morals and ethics before I know much law? These questions might seem to have obvious answers — and you may think that they all lead in the one direction: that ethics are not important. But you would be wrong. Many lawyers have found this out too late and paid a price.

To become a lawyer in Australia you need to be admitted by the Supreme Court as a member of the legal profession. Regulating who can be a member of the profession is a ‘safeguard’ to protect against ‘incompetent or fraudulent’ lawyers. Admission requirements make sure only ‘fit and proper’ individuals with suitable qualifications and training are able to perform legal services. This protects the community and the integrity of the legal profession.

A cherished common law notion is equality before the law. This notion has shaped and defined Australian laws, and is important to law’s capacity to produce justice because it requires that everyone is treated the same before the law. However, equality before the law has not produced effective social justice and equality in Australia: demographic and socio-economic indicators consistently paint a picture of broad social inequality and a growing poverty gap — rather than one of an egalitarian society in which everyone achieves the same justice.