Introduction to Law
› The Importance of Law in Business
› ‘No-one can venture upon business
activities, or undertake the tasks of professional advising for those who do,
without at least a general grounding in the law.’ Hon Justice Michael Kirby
(2003)
› ‘The law is not simply peripheral to
commerce. The transactions and relationships that constitute commerce are
embedded in the law. The entire fabric of commerce is woven from a complex
legal regime.’ Terry and Guigni (2003)
A. What is Law?
› 1. Some definitions:
› ‘Law is a body of rules by which
both the affairs of a community are organised and the general order and
well-being of the community are maintained’ Chisholm and Nettheim (1997)
› Law is ‘a complex system of social
control essential to the orderly conduct of human affairs’...’a body of
principles, standards and rules which the courts apply in the resolution of
disputes brought before them.’ Turner (2001)
› ‘The principles and regulations
emanating from a government and applicable to a people, whether in the form of
legislation or of custom and policies recognised and enforced by judicial
decision.’ Macquarie Dictionary
› ‘The law is the true embodiment
Of everything that’s excellent
It has no kind of fault or flaw
And I, my lords, embody the
law.’
Iolanthe, Sir William Gilbert
‘A set of
rules, developed over a long period of time regulating people’s interactions
with each other and that sets standards of conduct between individuals and
other individuals, and individuals and the government and that are enforceable
through sanction.’ Gibson and Fraser (2013),
2. The nature and
role of law
› Legal system – it is the totality of
laws that regulate a state (a legally organised community).
3. The purpose of law
› The need for rules in everything we
do, e.g. Sport
› Most sports would not work without
rules
› Also there is the need for somebody
to interpret and apply those rules which apply to sports
› Sometimes the rules are not enforced
rigorously, e.g. for example shirt pulling and diving in soccer (and everybody
knows this).
› Or a rule has not been developed yet
to deal with a situation, e.g. video evidence to determine whether a ball has
crossed the goal line
› Sometimes rules come about because
of custom and practice, e.g. passing the ball back to the opposition when the
ball is kicked out because of an injury
› No ‘attacking’ other riders on the last day of the Tour De France or
in circumstances where a pile up occurs during the race
› Sometimes players/clubs act outside
of the rules and must be punished.
› Even within football there is a
sense of the rule of law.
› However, you cannot always get
justice with rules (rules and law are just tools that can be used by society):
› Justice is wider than the law
› It is unrealistic to expect the law
to provide justice at all times and on all occasions
4. The ‘rule of law’
What does this mean?
› 1. Equality before the law, i.e.
every body must answer to the law no matter their station in life.
› 2. Nobody can be punished unless
they are charged with breach of a specific law that already exists, i.e. nobody
is subject to the whim of, for example, a dictator. The law, not rulers, is
supreme.
› 3. Fundamental freedoms are
protected by the courts, e.g. freedom of speech, freedom of assembly, the right
to be brought before the court.
› The law is culture:
› ‘...law is a concentrated expression
of the history, culture, social values and the general consciousness and
perceptions of a given people. No two national legal systems are exactly alike.
Law is a form of cultural expression and is not readily transplantable from one
culture to another without going through some process of indigenization.’
Glendon, Gordon and Osakwe.
5. Classification of
Law
› Public Law v Private Law
› Public law protects state interests,
e.g. criminal law, taxation law, industrial law, constitutional law
› Private law protects private
interests, e.g. contract law, tort law, employment law, property law, law of
succession
› Criminal Law v Civil Law
› Criminal law-the body of legal rules
that impose obligations on individuals and that is enforced by the state which
imposes sanctions or punishments
› Civil law-the laws of a state or
nation regulating ordinary private matters
Differences
› Criminal matters are brought by the
state v. civil matters are brought in the name of the person seeking a remedy
› Criminal sanctions are in the from
of penalties, e.g. gaol v. civil sanctions are in the form of compensation,
e.g. damages
› The state bears the burden of proof
beyond a reasonable doubt in a criminal matter v. the plaintiff bears the onus
of proof on the balance of probabilities in a civil matter
› Substantive Law v Procedural Law
› Substantive law regulates the rights
and duties that people have
› Procedural law consists of those
legal rules constituting the machinery by which rights and duties are enforced,
e.g. rules of evidence.
B. Sources of law in
Australia
› The Development of Australia’s Legal
System
› We will be looking at Australia’s
legal system, i.e. the totality of laws that regulate Australia (a legally
organised community)
› Practical difficulty: Australia is a
Federation, therefore it has a number of legal systems
1.The Introduction of
English Law into Australia
› Why Is English Law the Basis of
Australian Law?
› a. The Distinction Between Settled
and Conquered Places
› The doctrine of reception, i.e.
English colonists carry with them the laws of England
› But note: the distinction between
settled places and conquered places has to be made first
a. The Distinction Between Settled and
Conquered Places
› In a settled place, i.e. one that is
uninhabited or desert and uncultivated, English law is transplanted
› In a conquered or ceded place, the
laws that are already in existence in that place remain but can be modified by
the conquerors
› Australia was considered to be terra
nullius, i.e. a settled place, e.g. Cooper v Stuart (1889) 14 AC 286
Important - What Law
Was Inherited?
› “…such colonists carry with them
only so much of English law as is applicable to their new situation and the
condition of the infant colony…What shall be admitted and what rejected, at
what times and under what restrictions, must in the case of dispute be decided
in the first instance by their own provincial judicature, subject to the
decision and control of the King-in-Council; the whole of their constitution
being also liable to be newly modelled and reformed by the general
superintending power of the legislature in the mother country.” William
Blackstone
Importance of This Statement?
› It explains that English law was
only the basis of our legal system
› English law could always be modified
by the government in the settled place
› The British government had, in the
beginning, a supervisory role as to what happened in the colonies
The Current Situation
› Concept of terra nullius rejected by
the High Court decision of Mabo v Queensland (1992) 66 ALJR 408
› Current situation, Australia is now
considered to be a conquered place
› Note: this has not had any practical
affect to the basis of our law, only of theoretical importance.
Development of
Australian Legal Systems
› Australia is, to all intents and
purposes, an independent country
› The same argument could be made for
the States of Australia
› Note again: We have a federal system
of government
› Our only link to the United Kingdom
is that the head of state for the Commonwealth and the States is the monarch of
the United Kingdom
b. The Development of
Legal Institutions in NSW
› Because NSW was a penal colony the
Governor was the three arms of government, i.e. the legislature, the executive,
and the judiciary (what is now known as the Westminster system of government)
The Westminster System
Legislature – (Parliament) Vested with function of law
making.
The Executive – (Ministers)Vested with function of
administering and carrying out the law. (administrative)
The Judiciary – (Court)Vested with the function of
interpreting the law
b. The Development of
Legal Institutions in NSW
› NSW’s legal history is the story of
the change from one individual being the government to a fully fledged
Westminster system of government. This transformation was accomplished by a
series of Acts
b. The Development of
Legal Institutions in NSW
› New South Wales Act 1823 (Imp).
› Legislature-created the Legislative
Council (L.C) consisting of 5-7 members appointed by the Governor. Limited
powers
› Executive-the Governor, special
powers with regard to rebellion and insurrection. Laws had to agree with UK
laws
› Judiciary-comprehensive court system
established
› Australian Courts Act 1828 (Imp)
› Executive- Governor could no longer
act alone. Had to act on the advice of an Executive Council
› Legislature-Legislative Council was
increased to 15 members. No law could come into force unless the L.C. agreed
with it
› *Judicature-English laws which
existed as of 25 July 1828 were now the foundation of laws in NSW
› Australian Constitutions Act 1850 (Imp)
› Gave Legislative Councils of
colonies the power to create local legislatures
› Legislatures could regulate the
right to vote, grant membership of the councils and make laws for ‘peace,
welfare and good government of the respective colonies.’
› Provided a basic format for drawing up constitutions
for NSW, Vic, SA and Tas
› Effected separation of Victoria from
NSW
› NSW Constitution Act 1855 (Imp)
› Gave NSW its own Constitution.
Provided a legislature, an executive, a judiciary.
› The beginning of responsible
government
› N.b The United Kingdom still had
links to each arm of government, e.g. UK parliament could pass laws
specifically applicable to NSW, the Governor was appointed by the UK monarch,
the highest NSW court of appeal was the Privy Council (a court in the UK)
› The Colonial Laws Validity Act 1865 (Imp)
› NSW parliament could not pass any
laws that were inconsistent with UK laws that had been made to apply
specifically to NSW
› Apart from that NSW parliament could
pass any laws, e.g. they could even draw up a new Constitution
› Constitution Act 1902 (NSW)
› NSW parliament drew up a new
constitution to create the sort of Westminster system of government we have
today
› Australia Acts 1986-established independence from
UK, e.g.
› Legislature-the UK could no longer
pass laws with regard to NSW or other states after 3 March 1986
› Executive-the premier chooses the
Governor of NSW. Situation the same in other states
› Judiciary-all appeals from NSW
courts and other state courts to the Privy Council have been abolished
c. The Development of
Legal Institutions for the Commonwealth of Australia
› N.b the development of the
Commonwealth’s Government is separate to the State Governments development
› Why necessary?
› unified
defence, customs and excise, railways etc.
› Created by
› -Commonwealth
of Australia Constitution Act 1900 (Imp)
› Severing of the Commonwealth Arms of
Government From UK
› Legislature - Statute of
Westminster Adoption Act 1942 (Cth) adopted the Statute of Westminster
Act 1932 (Imp)- retrospective to 3 September 1939
› Executive - This arm of government
did not have to be severed from the UK, s.61 Constitution
› Judiciary
› Privy Council (Limitation of
Appeals) Act 1968
(Cth)-appeals from the High Court on federal (Commonwealth) matters not allowed
› Privy Council (Appeals From High
Court) Act 1975
(Cth)-all appeals from the High Court to the Privy Council not allowed
*N.B The Australia Acts 1986 did not
affect the Commonwealth Government
