lecture 1 introduction to business law and the australian legal system
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BUSL250
Welcome to BusinessLaw!
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BUSL250 Student Information
Course Convenor and Lecturer
Dr Verity Greenwood
Office: E4A Room 310
Telephone: 98507283
Email: [email protected] Hours: 3.00-5.00pm Monday in office
Deputy Convenor and Lecturer
Andrew Dahdal
Office: E4A Room 317
Telephone : 98508615
Email: [email protected]
Consultation Hours: 11.00-1.00pm Thursday in office
Verity Greenwood, Session 2, 2013
mailto:[email protected]:[email protected]:[email protected]:[email protected] -
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BUSL250 Information cont Prescribed Textbook (required): Business Law BUSL250 compiled by
Dr Verity Greenwood and Julian Dight-custom book, Pearson
Publishers,2013 plus ebookand access to MyLawLab.
BUSL250 Email : [email protected]
All email correspondence must be sent to this email. If highly personalor
confidential then contact the convenor personally.
Unit website http:/ilearn.mq.edu.au/
-BUSL250 Unit Guide
- Lecture slides
- ilecture
- Online Quizzes
- Announcements-
Verity Greenwood, Session 2, 2013
mailto:[email protected]://learn.mq.edu.au/http://learn.mq.edu.au/http://learn.mq.edu.au/http://learn.mq.edu.au/http://learn.mq.edu.au/http://learn.mq.edu.au/http://learn.mq.edu.au/http://learn.mq.edu.au/http://learn.mq.edu.au/http://learn.mq.edu.au/mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected] -
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How does Business Law affectour everyday life?
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Defining the law
Law is: the set of rules,
made by the state, and
enforceable by prosecutionor litigation.
statewhen state in lower case-means governmentgenerally
Stateif capitalised it means state within federatione.g NSW
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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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Characteristics of a legal system
Accessibility
Certainty
FlexibilityFairness Law's
ideals
Legal system
Characteristic
s
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A Classification of Law- Criminal and
Civil
CIVIL
Examples of laws
relevant to business
Contract Law
Torts
Property Law
CRIMINAL
Examples of
business crimesExtortion
Larceny
Arson
Stealing
Cyber attacks
On the balance of
probabilities
Beyond reasonable
doubt
Common Law
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Inherited legal system in Australia
Nowusually
work
together
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Common Law
Common law is the law created by the reported decisions of
judges
Common law is also known as:
case law;
precedent;
unenacted law;
unwritten law.
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Common Law
comprehensive system;
remedies not discretionary;
rights are enforceable at any time subject to statute of
limitations;
valid against the whole world;
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Statute Law
Statute law are the laws created by State and
Federal parliaments.
Statute law is also known as:
legislation;
Acts of Parliament;
enacted law.
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Statute Law
Statute law also includes laws made by other
government bodies.
This is known as delegated legislation and takes
the form of:
by-laws;
orders;
rules and regulations.
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Common Law v. Statute Law
Today, statute law is the most important source of
law as the great majority of law comes from the
parliaments.
Statute law overrules common lawin the event
of a clash between the two.
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Equity
Equity developed as a result of the growing inflexibility andrigidity of the common law.
Equity implies fairness and justice in the law.
Not comprehensive.
Remedies are discretionary.
Require prompt attention.
Valid only against those specified in court.Follows common law; it supplements it.
Only against individuals not property.
No application in criminal law. Verity Greenwood, Session 2, 2013
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Equity
Equitable remedies include:
Injunctiona court order directing a person to
stop doing something; and
Specific performancea court order directing
a person to carry out an obligation.
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Public v. Private Law
Another classification of law is into public and private
law.
Public lawthe organisation of government and itsrelationship with the people.
Private lawdeals with disputes over rights and
obligations between people or organisations.
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Categories of law
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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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The six key characteristics of the
Australian legal system
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MonarchyThe head of state is the Queen
Const i tu t ionalShe holds that position pursuant to
underlying constitutional arrangements
rather than by force of arms
Constitutional Monarchy
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Key characteristics
Liberal democracy:
Laws are made by, and executive government consists of,
elected representatives who exercise their power subject to
the rule of law and to the various Federal and State
constitutions.
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.
Law that has evolved through judicial decision and practice
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So how did common law
become a source of law inAustralia?
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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 legalsystem upon their arrival in the 1700s.
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Reception of English Law
Australia was declared to be terra nu l l iusat the time thecolony was established.
Australia was deemed to have been settledby Britainrather than conquered by Britain or acquired by treaty.
British settlers brought British law with them according tothe doctrine of reception.
CASE: Mabo v Queensland(No 2)(1992) 175 CLR 1
- The High Court acknowledged that Australia had not beenterra nullius and that common law recognises a form of native
title
to land.
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Origins of Australian Law
Customary law
The Mabodecision related specifically to Aboriginal
land rights.
In Walker v. New South Wales (1994) the High Court
discussed the validity of Aboriginal customary law
relating to criminal cases. The court decided thatcustomary law had been extinguished by the
criminal legislation passed by the states and
territories.
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Charting the history of Colonial legal systems
Date Event Effect
1787 First Charter of Justice Established colonial courts with civil & criminal jurisdiction
1788 First colonists arrived inNSW
Carried with them the English law
1814 Second Charter of
Justice
Established Supreme Court - civil jurisdiction & sub. structure
1823 New South Wales Act
1923 (Imp) and ThirdCharter of Justice
Established NSW as full colony
established comprehensive court system established Legislative Council appointed by the Crown
1828 Australian Courts Act
1828 (Imp)
Increased size of Legislative Council
Provided laws of England in force 1828 had effect in NSWonly if there were particular provisions to that effect
1850 AustraliansConstitutions Act (No 2)1855 (Imp)
Created colony of Victoria and allowed colonies to establishparliaments with two houses (bicameral)
1855 NSW Constitution Act
1855 (Imp)
Changed constitutional structure to create a bicameral NSW
parliament with representatives and responsible government
1865 Colonial Laws ValidityAct 1865 (Imp)
Confirmed ability of colonial legislatures to amend own
constitutions; Declared colonial parliaments have no power
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The Australian Constitution
1900
- The British Parliament passed theAustralian Constitution Act 1900(Imp)The Australian Constitution united the colonies in a federat ion
The Commonwealth of Australia came into existence on 1 January
1901.
Each of the colonies, now States, gave up certain powers, rights andduties to the new Federal government, and at the same time retainedtheir individual identities and substantial legislative authority.
Today, Federal, State and Territory governments in Australia are freefrom interference by the British Parliament.
Federation involves a division of powers between the States and theCommonwealth
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Separation of Powers
In the Constitution, the functions of government areallocated to different institutions:
- Legislat ivefunctions : Laws are madeby aparliament
- Execut ivefunctions :administeredby an ExecutiveCouncil or Governor in Council
- Judic ia lfunctions :interpretedand applied toparticular cases by a court system
Under the Westminster system the separation of powers isnot absolute
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The three arms of government
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COMMONWEALTH AND STATE POWERS
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COMMONWEALTH AND STATE POWERS
Commonwealth
State
Concurrent powers(Shared powers)
Exclusive powers(Commonwealth only)
Residual powers(State only)
Examples
s.52: Exclusive powers of
Parliament
s.90: Customs, excise and bountiess.92: Free trade between the States
s.105: Taking over state public debts
s.114: Military forces
s.115: Currency
s.122: Government of federal
territories
Examples under Section
51
Insurance
BankingIndustrial Relations
Examples
Education
Local Government
Transport
Exclusive, concurrent and residual powers
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COMMONWEALTH CONSTITUTION
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COMMONWEALTHCONSTITUTION
Commonwealth Constitution
Parliament hasLegislative power
Cabinet hasExecutive power The Courts haveJudicial power
The Ministry High Court
House of
Representatives
SenateOther federal courts
Doctrine of separation of powers
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STRUCTURE OF THE AUSTRALIAN
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STRUCTURE OF THE AUSTRALIANCONSTITUTION
33Verity Greenwood, Session 2, 2013
FEDERAL / STATE RELATIONS
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FEDERAL / STATE RELATIONS
If the Federal Parliament has not legislated inrelation to any of the matters listed in s 51, thenthat matter remains within the regulatory authorityof the States.
If a State parliament has made a law in relation toone of these matters, and the Federal Parliamentmakes a law in relation to the same matter, then s109 of the Australian Constitution provides that,the latter shall prevail, and the former shall, to theextent of the inconsistency, be invalid.
eg.Wall is v Downard-Pick ford (North Queens land) Pty
Ltd (1994) 68 ALJR 395
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THE STRUCTURE OF PARLIAMENT
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THE STRUCTURE OF PARLIAMENT
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Coming up next..
Australian Legal
SystemChapter 3
& Chapter 4
(pp.94-102)