Commerical Law
MarcusC1995
Topic1BusinessandthelawAustralianlegalsystem43.pptx— Topic 1: Business and the law; the Australian legal system
Commercial Law
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Overview of this topic:
The nature of law;
Justice, ethics and politics;
The Australian legal system; and
The executive government
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Learning Outcomes: Business and the Law
In what ways does the law relate to business?
What exactly is meant by the word ‘law’ anyway? Why is it so important? What sorts of things does the law regulate? And why does the law keep changing?
Does the law have anything to do with ethics, justice, and politics?
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Learning Outcomes: The Australian Legal System
What are the main features of the Australian legal system, and why is it so complicated given our relatively small size?
How does the Australian Constitution regulate the relationship between the Federal government and the various State and Territory governments?
What is the role of the executive government?
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Reading materials
Chapter 1 of Nickolas James's Business Law (Wiley, 5th ed, 2020)
Chapter 2 of Nickolas James's Business Law (Wiley, 5th ed, 2020)
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Law and the business person
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The Scales and Sword of Justice
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You already know about the law ...
... from your personal life.
... from your business activities.
... from the media.
... from popular culture.
There are very few aspects of life that are not regulated by law.
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Be careful with the media
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The nature of law
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Defining the law: What is law?
Law is:
the set of rules,
made by the state, and
enforceable by prosecution or litigation.
Business law is:
The set of rules regulating businesses and business activities made by the state and enforceable by prosecution or litigation.
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Criminal ctr Civil law
Rule of evidence: beyond reasonable doubt ctr on the balance of probabilities
Remedies
Business law: overlaps: individual and business (negligence/ contract)
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Defining the law
Rules: Means a set of legal rules
State: The term is used in this context to refer to a Government on either a State or Federal level.
This refers to the Government which passes legislation to make the rules legally enforceable.
Prosecution or litigation: Refers to the ways in which the legal rules are enforced in a court of law.
Prosecution: Refers to the enforcement of legal rules in criminal matters.
Litigation: Refers to the enforcement of legal rules in civil matters.
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Defining the law
So what does the definition mean?
A set of legal rules
made by a Government on either a State or Federal level
which are enforceable in either a criminal or civil context in a court of law
and which relate to business activities
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The purpose of law
Law:
resolves disputes,
maintains social order,
preserves and enforces community values,
protects the disadvantaged,
stabilises the economy, and
prevents the misuse of power.
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Categories of law
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How to help yourself remember to differentiate between private and public law – who will initiate court proceedings if you break the law?
Constitutional – relationship between various arms of the gov, gov-citizens
Admin Law –admin activities of government
Criminal law – Crimes Act 1958 (Vic)
Tax – collection of tax
Comp – prevents misuse of market power business org
Commercial – commercial matters
Employment law – relationship of employee and employer
Other categorisation: criminal (Public)and civil (Private)
International contra domestic
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Categories of law
The categories of law are generally divided into four types:
Substantive Law:
Legal rules which apply in any legal dispute whether civil or criminal.
E.g. whether a contract exists or whether someone has committed a crime.
Procedural Law:
A set of rules which deal with the process of how the rules are used in a legal dispute: E.g. whether the dispute should be heard by a jury or whether there is a right of appeal.
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Categories of Law
Public Law:
Laws which impact society generally and involve a relationship between Government and the individual. Examples include
Constitutional Law: The implementation of the Constitution affects the rights every person in this country and is therefore referred to as public law.
Administrative law: deals with the relationship between the Government (Federal or State) and an individual.
Government Departments (Federal or State) make administrative decisions which impact the individual within society: E.g. refusing to grant a driver’s licence. If such a decision has a negative impact on the individual, that individual has the right to challenge the administrative decision made.
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Catgeories of law
Private Law:
This category of law deals with disputes whose result impacts the parties to the dispute – only.
Examples: Contract law and Negligence suits involve disputes between two or more parties. The result of that dispute in either case is only relevant to the parties in the dispute – and no one else.
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Law’s ideals
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Connected to society and the individual
Respect/ reflect our values
Fairness – Equity, remedies
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LAW’S IDEALS
CERTAINTY
FLEXIBILITY
ACCESSIBILITY
FAIRNESS
The changing law
The law changes regularly because of:
political change,
the need to fix problems with the law,
changing community values,
pressure from lobby groups, and
changing technology.
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Economy
Lobby groups – feminists/ Greenpeace etc
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Justice, ethics and politics
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Law and Philosophy (Jurisprudence)
Legal Positivism law must be made properly and in accordance with the constitution - what the law is, not what it ought to be
Natural justice universal standards of conduct
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Law in context
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What is justice?
What is fairness?
Is law and justice connected?
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What is justice?
Lady Justice (Themis, Roman goddess of justice)
on top of the Old Bailey, London
on top of the old Supreme Court Singapore
What do the scales & sword represent?
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What is justice?
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Authoritative command
Objective standard – wrong and right guided by moral principles
What the law says as laid down by legislators
What we agree on
Whether an act is right or wrong depends only on the results of that act. The more good consequences an act produces, the better or more right that act
The action that has the best consequence for the community as a whole (utilitarianism)
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Law and justice
Justice can be understood as fairness, such as fair compensation or punishment, a fair decision or a fair distribution of resources.
The notion of fairness has influenced the development of business law in many ways.
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A strong Influence but it is individual
Equity – e.g. where the remedies of contract law would not provide fairness other remedies are provided through equity (developed through case law) – e.g. specific performance, injunctions.
specific performance (requiring performance of contractual acts)
injunction (requiring a party not to perform an act that would breach the contract)
Both remedies are discretionary; the court is not obliged to award either of them, even where breach is established.
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Law and justice
The relationship between law and justice may not be necessary, but it is desirable.
There are three types of justice:
Distributive justice;
Procedural justice; and
Retributive justice.
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Fair distribution of wealth, resources, power – law designed to achieve this (desert theory, utilitarianism) >< restorative
Fair hearing/ trail process
Proper/ fair response to a wrongful act
Restorative justice…
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Types of justice
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Types of Justice
Distributive Justice:
Is concerned with the fair and proper distribution
of wealth, resources and power.
Distributive – when economic resources & power are to be divided: chocolate cake analogy
Egalitarianism
Desert theory
Utilitarianism
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Types of Justice
Retributive Justice
Concerned with the issue of the appropriate response to wrongful behavior.
Examples:
Is punishment appropriate?
How severe should the punishment be?
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Types of Justice
Procedural Justice.
Ensuring that the parties to a civil dispute or criminal prosecution receive a fair hearing.
Examples:
Being made aware of the allegations made against the defendant.
The right to have a matter heard before a jury.
Testing the truth of the evidence of the opponent.
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Law and ethics
A legal choice is one that complies with the law; an ethical choice is one that is recognised as ‘good’ and ‘right’.
Law and ethics generally correspond, but:
a decision that is legal may not be ethical, and
a decision that is ethical may not be legal.
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Similarities – helps you make a decision
The law contra your own values
Are they always the same?
EX: unethical and illegal
EX: ethical and legal
EX: ethical but illegal
EX: unethical but legal
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Law and politics
While the law is more than merely politics, the law is shaped and influenced by power and politics.
Particular laws are usually the expression of a political ideology.
Legislation is made by politicians to implement government policies and achieve political objectives.
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The law:
Society
Economics
Justice
Fairness
Culture
Development
Technology
History/ tradition
Politics/ power
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The Australian legal system
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Types of legal systems
Civil law (Roman law) legal systems are the most common type of legal system.
The primary source of law is legislation in the form of codes, statutes and constitutions. Case law is generally not recorded and is not recognised as a source of law.
Examples include France, Germany, Russia, China, Japan, Thailand and Korea.
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Types of legal systems
Common law legal systems are based on the British legal system.
The two main sources of law are legislation and case law. The judiciary is much more powerful and influential in common law countries than in civil law countries.
Examples include the United Kingdom, Australia, Canada and New Zealand.
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Legal systems of the world
Civil Common law Mixed civil & common law Sharia
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The Australian Legal System
Representative democracy
with a common law legal system
constitutional monarchy
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The six key characteristics of the Australian legal system
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Key characteristics
1. Liberal democracy: Laws are made by, and the executive government consists of, elected representatives who exercise their power subject to the rule of law and to the various Federal and State constitutions.
2. Common law legal system: Our legal system is based on the British legal system, and can be contrasted with other forms of legal system such as the civil law legal system.
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Rule of law: Dicey provides that government, as established in the law, can only act if it has legal authority to do so, and that an individual may only be punished if they have broken the law
Democracy – right to participle[ate in the political decision-making (elections etc)
Who cannot vote?
What is the difference between the civil law tradition and common law tradition? Not to be confused with Civil and criminal law
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The Australian Legal System Key Characteristics
The common law legal system has two sources:
Case law – also known as judge-made law and common law. It includes decisions made by Courts on a State or Federal level.
Statute Law – law made by parliament by way of legislation which is also known as Statute law. This also includes all laws made by parliament on a State or Federal level.
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Key characteristics
3. Constitutional monarchy: The Head of State of the Commonwealth of Australia and of the various States is Elizabeth II, Queen of Australia.
Representatives of the Head of State are:
Governor-General (Federal) and
Governors (State).
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This power is expressed in the will of AU citizens – Constitution
1901
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The Australian Legal System Key Characteristics Federation
Federation:
Saw the introduction of a Federal (Commonwealth) level of Government. This was in addition to the already existing State Governments (known as Colonies before Federation).
So after Federation, we have government on two levels: Federal and State.
They operate side by side and subject to the provisions of the Australian Constitution.
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Federation: In addition to be the national Federal (or Commonwealth) government there are various State governments that are not subordinate to the Federal government.
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Key characteristics
Theoretically, the legislature, the executive and the judiciary should as far as possible remain functionally separate.
Separation of powers: Laws are made by a parliament (legislature); administered by an Executive Council or Governor in Council (executive); and interpreted and applied to particular cases by a court system (judiciary)
Australia: Members of the executive (the Prime Minister / Premier / Chief Minister and the other Ministers) are also members of the legislature (the Parliament) which means that the legislature and the executive are not strictly separate.
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P41
Why do we separate powers?
How relevant will this be for you? MCQ week7 and exam
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Key characteristics
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P41
Why do we separate powers?
How relevant will this be for you? MCQ week7 and exam
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Division versus separation of powers
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The Australian Legal System Key Characteristics Separation of Powers
Separation of powers:
Refers to the three arms of government: (either Federal or State).
(i) Legislature:
The arm of government which makes the law.
This includes every member sitting in a House of Parliament who has the right to vote on whether proposed law should become law.
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Key Characteristics
(ii) Executive:
The arm of government which administers the law (puts it into practice.)
The executive arm of Government is the government of the day which implements the government’s policies:
Example: Labor or Liberal government.)
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Key Characteristics
The executive generally forms the majority in the Lower House (Federal of State.)
The executive arm of government is part of the legislature.
There is therefore an overlap between the legislative and executive arms of government.
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6. Responsible government
Government ministers are responsible to Parliament
Both Australian & British legal systems incorporate
separation of powers,
doctrine of responsible government.
Responsible government:
The Ministers comprising the executive are elected representatives who are also members of and are answerable to the legislature.
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Key Characteristics
(iii) The Judiciary:
The court system in Australia (Federal and/or State.)
The judiciary has the power to interpret and apply the law to particular cases.
It is from this arm of government that the common law derives.
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History of the system
For tens of thousands of years prior to British settlement there was in existence in Australia a sophisticated and effective legal system: the Indigenous Australian legal system.
Unfortunately, the British did not recognise or acknowledge the Indigenous Australian legal system upon their arrival in the 1700s.
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The Mabo case
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History of the system
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History of the system
Australia was declared to be terra nullius at the time the colony was established.
Australia was deemed to have been settled by Britain rather than conquered by Britain or acquired by treaty.
British settlers brought British law with them according to the doctrine of reception.
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1788: NSW
Doctrine of Reception: AU declared Terra nullius – a land that doesn’t belong to anyone AU was settled by the British and not conquered/ acquired by treaty British law
1992: Mabo case: AU not terra nullius recognition of Aboriginal customary laws (native title) but doctrine of reception was not rejected (AU settled) and so the AU laws continue to derive their validity from Eng law.
Relevance? This is why we in this course sometimes refer to English case law
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History of the system
The New South Wales colony and the other colonies subsequently established in Australia were initially controlled directly by the British government as represented by the colonial Governor.
As time passed, the British government granted the Australian colonies increasing levels of independence.
By the late 1800s, six relatively independent self-governing colonies existed on the Australian continent, each with its own constitution, legislature and court system.
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History of the system
These colonies recognized the need for a central, unifying system especially in relation to issues such as defense of the country, customs issues and a consistent immigration policy.
These needs eventually gave rise to a federation. The Commonwealth of Australia came into existence on 1 January 1901 by virtue of the creation of the Australian Constitution in 1901.
Each of the colonies, now States, gave up certain powers and rights to the new Federal government, and at the same time retained their individual identities and substantial legislative authority.
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The Berne Convention 1886
Commonwealth of Australia Constitution Act
But AU legislation remained heavily influenced by British law
The difficulties of transitioning from colony to independence
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History of the system
These powers are now contained in The Australian Constitution in the form of either exclusive or concurrent powers.
Powers which were not given to the Federal Government remain with the State Governments and are known as residual Powers.
Today, Federal, State and Territory governments in Australia are free from interference by the British Parliament.
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Republic: A state in which supreme power is held by the people and their elected representatives, and which has an elected or nominated president rather than a monarch
Constitution says head of state is the queen (constitutional monarchy)
The Australian Constitution can be changed by referendum according to the rules set out in section 128 of the Constitution
A referendum is a national ballot on a question to change the Australian Constitution. In a referendum the Parliament asks each Australian on the electoral roll to vote. If a majority of people in a majority of states and a majority of people across the nation as a whole vote 'yes' (called a double majority), then the proposal to amend the Constitution is agreed to. Otherwise the Constitution remains unchanged.
Simple majority – more than 50% of the voters
Referendum in 1999: republic (failed)
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The Australian Constitution Federal/ State Relations
The issue of which powers would be handed over to the Federal Government (either exclusive or concurrent) and which would be retained by the States is known as the Division of Powers.
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Federal/State relations
| Exclusive powers | Concurrent powers | Residual powers |
| Federal Parliament only | Federal and State Parliaments | State Parliaments only |
| Examples Customs Defence Currency Territories | Examples Taxation Marriage Banking External affairs | Examples Education Property Crime Health |
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MCQ –pp 53-57
Concurrent power - clash
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Structure of the Australian Constitution Federal/State Relations
Section 51 of the Constitution of Australia:
grants legislative powers to the Australian (Commonwealth) Parliament
When the 6 colonies joined together in Federation in 1901, they became the original States and handed over some of their powers to the new Commonwealth Parliament.
There are 39 subsections to s 51, each of which describes a "head of power"
The Commonwealth legislative power is limited to that granted in the Constitution.
"residual powers“ remain with the states
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Structure of the Australian Constitution Federal / State relations
Generous interpretations of s 51 by the High Court have seen a steady expansion in Federal power at the expense of the States: Koowarta v Bjelke-Petersen (1982) and Commonwealth v Tasmania (1983)
Residual powers – anything not expressly identified in the constitution is a residual power of the states.
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Structure of the Australian Constitution
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Federal/State relations
If the Federal Parliament has not legislated in relation to any of the matters listed in s 51, then that matter remains within the regulatory authority of the States.
If a State parliament has made a law in relation to one of these matters, and the Federal Parliament makes a law in relation to the same matter, then s 109 of the Australian Constitution provides that the latter shall prevail and the former shall, to the extent of the inconsistency, be invalid.
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Federal/State relations
Exclusive powers
those powers exercised only by the Federal Parliament.
Concurrent powers
most of the powers granted to the Federal Parliament under the constitution are concurrent powers with the states.
Federal and State laws can operate validly and independently of each other unless there is a clash between them. If there is s 109 provides that Federal Law will prevail.
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S 52
S51
Why is this relevant?
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The Australian Constitution Federal/State Relations Division of Powers
As discussed, generous interpretations of s 51 by the High Court have seen a steady expansion in Federal power at the expense of the States:
Koowarta v Bjelke-Petersen (1982)
Commonwealth v Tasmania (1983)
The powers which are NOT mentioned in the Constitution are powers which the Commonwealth Government cannot exercise. They remain with the States
Residual powers
anything not expressly identified in the constitution is a residual power of the states.
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Levels of Government
Commonwealth: which derives its powers from the Australian Constitution in the form of exclusive and concurrent powers.
State: which derives its powers from the Constitution in the form of concurrent powers and which retains all powers NOT mentioned in the Constitution. These are referred to as residual powers.
Local Government: which is established by State and Territory Governments and as such they are a branch of these Governments rather than a separate level of Government in their own right.
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3 levels of government in Australia
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Changing the Constitution
The proposed amendment must:
be passed by an absolute majority of both Houses of Parliament, and
be put to the Australian voters in the form of a referendum, and passed by:
a majority of voters, and
a majority of the States
3. And receive Assent
Note: Of the more than 40 attempts to amend the Constitution made since Federation, only 8 have been successful.
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Referendum s 128 of the Consitution:
Absolute majority - More than half the total votes of all those eligible to vote; in a house of Parliament, one more than half the votes of the total number of members of the house, whether they are present or not, as opposed to a simple majority
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1999: republic (failed) – no queen, +president
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https://www.youtube.com/watch?v=LXmSa1A2EzI
Today, Federal, State and Territory governments in Australia are free from interference by the British Parliament. The final step will be changing from a constitutional monarchy to a republic: but are we ready? ... on 6 November 1999 the answer was no!
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The executive government
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The executive government
Executive power is the power to administer the law, i.e. carry on the business of government and maintain order and security.
According to the Australian Constitution, the executive power of the Commonwealth is vested in the Queen and exercisable by the Governor-General as the Queen’s representative.
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The executive government
The Governor-General is to act on the advice of the Federal Executive Council consisting of the various Ministers, members of Parliament appointed by the Governor-General on the advice of the Prime Minister to administer the various departments of the Federal public service.
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The executive government
The various State constitutions vest executive power in the Governor as advised by the Premier and the Ministers, known collectively as the Governor in Council.
In the Territories executive power is vested in the Administrator as advised by the Chief Minister and the other Ministers, also known collectively as the Executive Council.
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The executive government
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The public service
The policies and decisions of the Executive Council / Governor in Council and of the Cabinet are implemented by the various departments and agencies of the Federal, State or Territory public service.
If a person is not happy with a decision made by a government department or agency, they may be assisted by:
the ombudsman,
freedom of information legislation,
the Administrative Appeals Tribunal, and/or
judicial review.
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Delegated legislation
Often the parliament will pass legislation setting out the overarching principles and objectives of a particular regulatory scheme, but then delegate to a branch of the executive government the authority to make the detailed rules, regulations or by-laws, referred to collectively as delegated legislation.
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Takeaways from today?
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