In this introductory chapter, we first provide an overview of the whole book and discuss some global issues affecting legal practice and lawyers’ ethics. We then explore insights from general morality as an underlying framework for the four approaches to lawyers’ ethics explored in Chapter 2. This framework compensates, to some extent, for the lack of an explicit statement of values in our current rules of professional conduct. We consider the professional imperatives for ethical action (legal and cultural norms) and the ethical decision-making process, including the skills we need to put our ethics into action.

[17.1] In interpreting legislation, courts can take into account whether the provision in question comes within a ‘special category’ of legislation1 – in other words, its particular ‘character’.2 The categories most frequently mentioned are remedial, penal and taxing.

Lawyering in the 21st century is a complex mix of skills, knowledge, experience and ethics. While all these are obviously important for successful practice, it is the ethical zone that ultimately defines reputable lawyers and separates them from those who are merely successful in financial terms. Reputation is an elusive concept and hard to analyse in a short introduction. But one vital element of reputation is the notion of sound ethical judgement – the capacity of a lawyer to understand and choose wisely between contrasting ethical frameworks before making a difficult decision. In this task, it is vital to appreciate that there are several possible approaches to legal ethics. In this chapter, we explore those different approaches and explain why it is frequently appropriate to assess all alternatives for their possible impact.There are four main strands of ethical reasoning or considerations specific to lawyers in the context of Australian legal institutions: adversarial advocacy, responsible lawyering, moral activism and ethics of care. These four types are set out in this book as ideals, and we emphasise what is distinctive about each approach.

Lawyers’ fees are one of the main causes of complaint by clients and of continued public concern about the ethicality of the profession. Charging ‘fairly and reasonably’ and in compliance with the detailed legislative requirements imposed on a practitioner can be tricky. Even the most honest and conscientious lawyers may have trouble explaining fees to clients and controlling their increase. Organisational pressures and adversarial approaches can lead to questionable billing practices and place pressure on individual lawyers to behave unethically. This chapter begins by explaining the most common approaches and their ethical pitfalls. There is no one way of billing that is universally agreed to be free from risk of abuse. The predominance of an ethical approach of adversarial advocacy can also exacerbate costs to clients and diminish access to justice. The legislative requirements of costs disclosure are discussed later in the chapter. We argue that ethical billing practice requires much more than the specific disclosures legally required.

[23.1] The legislative history of a statute includes its legislative antecedents (chapter 21), the pre-existing common law (chapter 22) and pre-parliamentary and parliamentary materials (chapter 24). These tend to be readily identifiable aspects of a statute’s historical context. But the ‘wider context’ of a statute is more than just these matters and documents. It extends to the background of facts and circumstances that led up to and surrounded the enactment of a statute, such as the social, political, economic and commercial facts of that time. These facts and circumstances might be characterised as a residual category of a statute’s legislative history.

[5.1] Judges are required to be independent in statutory interpretation in two main senses. First, they are independent in the sense of sovereign. In Australian law, judges are the sole authoritative arbiters of the meaning of legislation.

[34.1] This chapter addresses the extent to which the courts are prepared to read legislation as if the statutory text is modified in order to address an apparent drafting error. This is known as ‘remedial construction’. The doctrine of the separation of powers and the notion of legislative intent are central to remedial constructions. Drafting deficiencies can be viewed on a spectrum. At one end of the spectrum are obvious and simple printing or grammatical errors, which courts will readily read as corrected. Further along the spectrum are less straightforward instances of drafting errors where determining the line between interpretation and legislation may involve the application of particular guiding factors. In these instances courts may be willing to read legislation as if it contained additional words, substituted words or omitted words.

[30.1] This chapter examines the use of binding and persuasive precedent in the interpretative task. Precedent here refers broadly to prior judicial decisions of courts on the meaning of particular legislative text, rather than precedent on the common law principles of statutory interpretation.The doctrine of precedent generally applies to statutory interpretation cases in the same way as it applies to common law cases. But there are some special considerations due to fundamental interpretative principles.

[14.1] Sources of doubt are socio-legal phenomena that are the root causes of interpretative doubt.

A quick glance through history demonstrates that it has not always been an unbroken chain of human happiness, to put it mildly.Different individuals, groups and peoples have faced persecution for any number of reasons: where they came from, how they looked, their perceived (dis)ability, who or what they believed in, who they loved, how they identified, the family they were born into, or, in some cases, for no reason at all. It is against this backdrop that our current set of human rights has emerged. While this chapter focuses primarilyon children’s rights and their relationship with education and educator obligations, it is necessary to understand the history of rights in order to understand why human rights, and particularly children’s rights, are so important to the work we do as educators.

[13.1] This chapter looks at the structure of Acts and their various components. An Act begins life as a Bill and its components flow through into the Act when passed. Certain components of a Bill are mandated by legislation1 or parliamentary standing orders.2 Others reflect the choices made by a jurisdiction about Act structure.

[19.1] Statutes often operate for many years. Yet the passage of time may mean that a statute is operating in circumstances quite different to the circumstances in which it was enacted. The question is how these changes affect the interpretation of the statute. The principle of interpretation that a statute is to be interpreted as ‘always speaking’ is typically invoked in this context. It provides that, where appropriate, a word or phrase in a statute is to be construed as speaking continuously in the present. This means that it may be possible for statutory text to apply to a state of affairs or a legal environment that was not known or understood at the time the statute was enacted. The potential to construe statutory text as ‘always speaking’ is a matter of construction. In this context courts have emphasised the distinction between the connotation, or ‘essential’ meaning, of text, which does not change, and its denotation, or application, which may. If the essential meaning can be expressed at a sufficiently broad level, consistent with statutory purpose, then it may apply to a class of things or a state of affairs that exists at the time of interpretation, but not at the time of enactment.

[29.1] ‘The statute book’ is a term commonly used to describe all Acts of Parliament in existence in a particular jurisdiction, whether or not commenced to operate.1 A law on the statute book may be an aid to interpretation. The same principle applies to the use of legislation of other jurisdictions; this includes other states and territories as well as other countries. But the statute book for a jurisdiction and the legislation of other jurisdictions (the wider legislative context) are not necessarily relevant, even if the same or a similar word is used.

Of all the ways in which humans have chosen to divide themselves, none has a history as problematic as race. This concept has significant implications for almost every aspect of contemporary human conduct, irrespective of what ‘race’ we identify with, or even are deemed to belong to. This is particularly so in the field of education.

This chapter will look at the complicated history of race as well as some of the current challenges being faced. In order to describe the complex issues within this important area, a wide range of interrelated terms are used. Probably the most important of these terms is the underpinning notion of ‘othering’ ߝ that is, thinking about a certain person or group as not ‘one of us’... as ‘the other’. This important concept is also very relevant to discussions of gender and sexualities, so it is discussed further in Chapter 3.

This chapter makes the case for the importance of philosophy as a discipline in its own right, as a subject area vital to the better understanding of education and as a set of self-reflective practices that can make us better teachers. Philosophy is largely concerned with those areas of study and speculation beyond the reach of empirical analysis, addressing problems about how we construct knowledge, how we produce a just society and how we determine ‘right’ from ‘wrong’. Its central research methodology is simply to think with clarity. The significance of this discipline has not been limited to answering abstract questions about the human condition; philosophy has been instrumental in both making us into rational and reflective citizens and framing the ideas behind our entire system of mass schooling.