Introduction to business law

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