week 1 - intro to aus commercial law

• what is law

  • The law is a body of enforceable rules, made by the state (the parliaments and the courts) and enforceable by the state
  • features: source (parliament and courts), enforceability by the state
• functions of law

  • regulatory function: tells us what we can do and must not do
  • provides rules and structures for dispute resolution: it resolves disagreements between parties
  • reinforces basic community values
  • promotes equality and the rule of law: everyone is human
  • promotes stability and cohesion: behaviour
• The rule of law

  • referes to how everyone should be ruled by the law and obey it
  • the law should have everyone being willing and able to abide by it
  • a strong rule of law is essential for the flourishing of commerce (ie. preventing corruption..)
• The australian legal system
• History of Australian legal system

  • before Jan 1st 1901, Aus was a set of British colonies
  • Australia became a country on Jan 1st 1901 establishing itself as a constitutional monarchy (separate from UK)
  • 1900 - aus constit. was passed down by UK
  • 1901 - aus constit. was imposed in Aus
• parliaments and courts have their own jurisdictions and the constitution allocates their responsibilities

  A) make

  B) judgements

  C) government

  
• Commonwealth parliament of Australia

  • the national legislative body responsible for making and passing laws at the federal level in Australia
  • consists of two houses
  • house of representatives (MP's): elected by public through voting
  • senate (senators): elected to represent each state, reviewing legislation propose by the house
• legislation

  • process of making, passing or enacting laws
  • also refers to the laws themselves that are created
• commonwealth vs state

  • commonwealth (federal govt.): big boss, deals with important matters affecting and applying the whole country (ie. matters specified in the constitution)
  • state: each state has a little boss, handles thing more local, the rules apply and affect people living in the particular state (ie. matters not specifically mentioned in constitution - residual powers)
• sources of law

  1. parliament: the laws made here are called statues/acts/legsilation (after it's passed) but called bills (before it's passed)
  2. court
• parliament (legislative) vs court (judicial)

  • parliament is where laws are made (by MP's)
  • courts are where laws are applied to ensure the nation abides by it
• statues

  • are formal written laws enforced by parliament
  • Bring new laws into existence, repeal old laws (statutes or common law), and codify law (bringing statutory and common law together)
  • primary source of law
• statutory interpretation

  • statutory and common law rules guide courts when interpreting legislation
• Australian courts

  A) high court

  B) supreme

  
• case law (precedent)

  • the collection of written decisions made by judges
  • these decisions become a source of law that guides potentially similar cases
• ethics

  • Making good business decisions requires bare minimum compliance with the law, but also a consideration about whether the decision is also ‘right’
  • decisions can be legal and ethical, legal but not ethical, not legal but ethical, or not legal and not ethical
• function of law in society

  1. it regulates what we may do, if we do, how we should do it & what we cannot do without having consequences
  2. it provides clear rules for dispute resolution (so there's no need to go to court)
  3. it maintains stability and social cohesion. laws must be fair and uncorrupted, hence respected by the community.
  4. it reinforces community values. it draws upon the values that are important to the community, aiding social cohesion
  5. it promotes equality before the law and upholds the rule of law. equality is an indicator of justice
• Rule of law importance to commercial life

  • Without firm and clear adherence to the rule of law, commercial life is dysfunctional - drive for profit means leaving law behind for short term gain
  • Pursuit of long-term advantage means preserving and enhancing the reputation of the enterprise by engaging in the activities it pursues efficiently, honestly and fairly
• customary law

  • a body of unwritten legal norms which have developed within a community overtime
  • based on traditions of a community, not laws
  • eg. Aboriginal customary law involves a deep connection to the land. Different clans have specific territories. Ownership is communal, and the land is seen as a fundamental aspect of cultural identity.
• common law

  • It means that decisions made in previous cases are a guide for deciding similar issues in future cases


  judge made law

  • a type of common law
  • specifically on the decisions made by judges in individual cases to shape the law
• doctrine

  • Legal doctrines are guiding principles that shape legal reasoning, decision-making, and the development of the law over time
  • ie. basically qualitative characteristics but for law
• mabo vs queensland 1992

  • mabo challenged the doctrine of terra nullius, which was used to justify the British colonisation (ie. saying the land belonged to no one before European arrival)
  • the mabo judgement rejected concept of terra nullius
  • in a 6-1 decision, meriam people of Murray islands had native title rights to their traditional land
  • mabo died months before high court handed down its decision
• Commonwealth of Australia Constitution Act 1900 (Imp)

  • stated that on and after 1 January 1901, the colonies of New South Wales, Victoria, South Australia, Queensland and Tasmania would be united and known as the Commonwealth of Australia.
  • 2 weeks after, WA agreed to join the other colonies in a referendum on 31 July 1900.
• constitution

  • establishes the framework for the govt of comm. Aus
  • Pre-amble: outlines the purpose & desire to unite as one nation


  1. legislative power - parliament, senate, HOR
  2. executive power - queen/govenor general
  3. judicial power - high court of Aus & its jurisdictions
• separation of powers

  A) makes

  B) statutes

  C) parliament

  D) applies

  E) common

  
• section 109

  • "When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid."
  • It establishes a way for resolving conflicts between laws enacted by the federal government (Commonwealth) and those enacted by a state or territory government
  • the federal law prevails over the state law
• powers

  • exclusive power: only the commonwealth parliament can make these laws (eg. national defense, foreign affairs)
  • residual power: only the state parliaments can make these laws (eg. education, transport, police..)
  • concurrent power: shared by both, both can make these laws but without conflict(eg. income taxes..)
• high court

  • 7 judges: chief + 6 justices
  • each justice is appointed by the governor general
• how to amend the constitution

  1. it must be approved by an absolute majority in both the House of Representatives and the Senate
  2. national referendum: majority of votes nationwide & majority of votes in a majority of states (at least four out of six states)

• sources of law

  A) courts

  B) statute

  C) common

  
• stages of making statutes

  • 1st reading: formal stage where the title of bill is read aloud, copies are made to members and no debate occurs
  • 2nd reading: members of the house debate principles and purpose of bill, a vote is taken to see if it proceeds.
  • committee stage: members examine and propose amendments to the caluses of the bill
  • 3rd stage: the House votes on the bill, final vote

  A) HOR

  B) senate

  C) governor general

  
• "deadlock"

  • when the senate refuses a bill having passed the HoR

  1. if senate rejects the bill, 3 months later, the bill is reintroduced to the house of representatives
  2. if it still gets rejected from the senate, then the governor general may dissolve both houses and call an election
  3. if, after election, senate still rejects, both houses meet for a majority vote, which is then up to governor general to decide