1 TABL1710 - Business & the Law Terminology: affirm/approve, reverse/overrule, applied, followed, distinguished 1| Introduction Law is a: Systematic set or rules that control conduct within society Enforceable by courts The principle of rule of law is that no one is above the law, including those who make and enforce the law i.e. legislators, judges, police, lawyers. A means of maintaining balance between personal freedom and state/government's legislative power. In Australia, the constitution outlines the powers of the government and they must act within these powers. Sources of Law As Australia adopted the English common law system, there are two main types of sources of law: Statute Law (made by the parliament) - enacted Common Law (judge-made i.e. in courts) - reported decisions of the judges final judgement in cases Note : statute law overrides common law Both sources of law may be changed by the parliament. The courts interpret statute law, and further develops common law through future court cases. Note : Not all law can be altered by the parliament. The Constitution cannot be changed by the parliament, it has to go through a referendum ( s 128 ) "Courts of Equity " was developed as a result of the growing inflexibility and rigidity of the common law system Implies fairness and justice in the law There are two types of just remedies. These remedies can apply more equitable measures where monetary compensation cannot fully rectify eg. A restraining order o Injunction - a court order directing a person to stop doing something o Specific Performance - a court order directing a person to carry out an obligation Classification of Laws There are a number of ways in which law can be classified. (They overlap) International/domestic International law is concerned with governing the legal relationship between countries. o It enables nations to participate in trade and commerce and provides mechanisms for the maintenance of peace and security and the reduction of conflict. o Sources: International customary law, treaties and declarations o Eg. Universal Declaration of Human Rights (1948) International treaties and conventions are not part of domestic law unless they are ratified. Within Australia, the external affairs power, s 51 (29) of the constitution, allows the Australian government to ratify international law into domestic legislation Public/private Public law deals with legal relationships between individuals (public) and the state (government) o Eg. administrative, constitutional, criminal, industrial (OHS), taxation Private law deals with disputes between individuals (and businesses) o Eg. tort, contracts, commercial, property, business entities Colour Code: Legislation Cases International law/treaties
2 TABL1710 - Business & the Law Substantive/procedural Substantive law defines the rights and duties of individuals and organisations under the law Procedural law is concerned with the correct procedures in carrying out enforcement eg. Rules of evidence, conduct criminal and civil proceedings (eg. Police have to follow correct procedures in gathering evidence, or else evidence becomes inadmissible, and therefore useless, in court) Common law system/civil law system Common law system is used in Australia o Adversarial - two parties (prosecution or plaintiff vs. defense) given equal standing to defend their position in front of an impartial third party, i.e. the judge o Further divided into criminal cases/actions, and civil cases/actions Civil law system is used in countries such as Italy o Inquisitorial - the court i.e. judge plays an active role in investigating the facts of the case Note: civil law system is not the same thing as civil cases/action Common vs moral, religious laws (eg. Indigenous customary law) o Main concern is the difference in dispute resolution and sanctions o The indigenous view of punishment may be spearing the offender, which is not in line with our common law system. o Also, resolution and decision of punishment would involve elders as well as the whole community, as opposed to the common law system sentencing which may appear as foreign and unacceptable to the indigenous offender. A way to overcome this is through circle sentencing . Civil actions/criminal actions Civil actions: plaintiff; prove on balance of probabilities o Examples: contract, tort, property, business entities, trusts Criminal actions: prosecution; prove beyond reasonable doubt o Examples: extortion, embezzlement, larceny/theft, fraud, forgery Origins of Australian law Australian inherits English system of law in 1788 Doctrine of reception: Concept of terra nullius - "no man's land" o A lack of tangible ownership of the land led the British to believe that the land was 'terra nullius' hence preoccupying it (Indigenous believed the land was sacred and not owned) Later overturned in Mabo v. Queensland (No. 2) (1992) (HCA) Native title Act 1993 (Cth) - recognition of indigenous rights Establishment of the Commonwealth of Australia (away from England): The Commonwealth of Australia Constitution Act 1900 (Cth) s128 - power of referendum to change Came into effect: 1 Jan 1901 - Federation The 6 colonies became the Commonwealth of Australia New level of parliament - federal - bicameral (House of Rep, Senate), state Constitution was established, and the High Court of Australia was established - interprets constitution Legislative powers (division of powers) Exclusive - only federal government (eg. Defence, immigration) Concurrent - shared between state and federal government (eg. Education, health, tax) Residual - remaining powers for state government, but state can delegate to local Note: If there is inconsistency between commonwealth and state laws, the Constitution prevails ( s 109 ) We follow the Westminster system Constitutional monarchy - the Queen (but mainly ceremonial role) Separation of powers (federal level) Responsible government
3 TABL1710 - Business & the Law Separation of powers Legislature (parliament), judicature (courts), Executive (government) Important because to avoid any one branch misusing or having too much power But in reality, there is no real separation between executive and legislature in Australia The executives: governor general, PM and cabinet, Government Departments o Executive can make delegated legislation - bylaw, regulation Houses of Parliament - bicameral Senate (upper house) - 76 senators (12 from each state, 2 from each territory); 6 years term except territory o The 'house of review' - scrutinise bills, government activity o Has the power to call in people for queries o Ensures a balance of power - make sure the government is accountable for its actions House of representatives (lower) - 150 members; holds up to 3 years office o Can introduce bills that impose taxation, expenditure of public revenue; and other legislation Review of Administrative Decisions Judicial review Administrative review tribunals the Ombudsman Freedom of Information (FOI) 2| Legislation and Case Law Legislation Laws created by parliament (ie. Federal or State/Territory) Can last for ever or until it is changed Also known as: statute law, Acts of Parliament, enacted law How are laws made? Parliamentary Draftsman (Cabinet, Ministers, Backbench) draft a Bill. It is then put forward to Parliament by the party/person who wants to see it become law. The Bill has to be passed through and approved by both the House of Representatives and the Senate, before it goes to the Governor General to be enacted into law. Delegated Legislation Consists of: rules, regulations, by-laws, orders and administrative guides Does not need to be passed by both houses Made by the Governor General on the advice of the Executive Statutory interpretation Courts apply (valid and clear) and interpret (ambiguous, unclear) legislation If it is unclear, courts can make common law to clarify the legislation (i.e. decisions in cases), thus setting precedent for future cases (eg. Interpreting meaning of words in the statute) BUT, if common and statute laws are inconsistent, statute law prevails To assist interpretation of statutes, judges created a common set of rules: Literal rule: court gives effect to the literal meaning of the legislation Golden rule (n/a): court gives effect to literal meaning of the legislation, unless it leads to some absurdity Mischief rule: words are ambiguous, inconsistent - court interprets the legislation to overcome 'mischief' Rules of statutory interpretation: Acts Interpretation Act 1901 (Cth) Interpretation Act 1987 (NSW) The Parliament created the Interpretation statutes to deal with: o How to interpret statutory provisions (the purposive rule) o Define commonly used terms
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