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Chapter 1 - Introduction to the legal system. At the end of this chapter you should understand: the definition of the term ‘law’, why there is a need for law, the outline of the origins of the Australian legal system, the components of our legal system, the difference between public and private law,...
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Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-1 Introduction to the legal system Chapter Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-2 Learning objectives At the end of this chapter you should understand: • • • • • • the definition of the term ‘law’ why there is a need for law the outline of the origins of the Australian legal system the components of our legal system the difference between public and private law the historical development of the common law, equity and statute law • the process by which English law was received into the Australian colonies • the federal nature of the Australian legal system Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-3 Learning objectives (cont.) • the difference between exclusive and concurrent lawmaking powers of the Commonwealth • the process by which a statute is enacted and be able to identify those responsible for that process • delegated legislation, its purpose, advantages and disadvantages Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-4 What is the law? • There are many definitions of the term ‘law’ • One definition is: The law is a set of legal rules that govern the way members of a society act towards one another Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-5 Why we need law? Laws are required in society: to regulate the behaviour of the individual to correspond with what is acceptable to the majority of individuals Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-6 Components of the legal system Institutions Laws People Parliament Statute law Members of parliament Courts Common law Judges and magistrates Government departments Equity Barristers and solicitors Correctional institutions Delegated legislation Court officials Police officers Correctional service officers Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-7 The rule of law Our legal system is based on the ‘rule of law’—which requires the law to conform to minimum standards of fairness and to ensure that all persons are treated equally before the law Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-8 Branches of law • Private law allows individuals to take action against others (e.g to sue one another for breach of contract or negligence to obtain compensation) • Public law allows the state to take action to enforce the laws which support our society as a whole (e.g criminal law where a police prosecutor will proceed against a defendant) Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-9 Branches of law (cont.) TYPES OF LAW PUBLIC LAW CRIMINAL CONSTITUTIONAL PRIVATE LAW TAXATION PROPERTY Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev TRUST CONTRACT •2-10 The doctrine of reception To determine laws to be applied NEW COLONY SETTLED Laws of settlers (English) would apply CONQUERED Law of the conquered would apply Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-14 Legislation dealing with reception of English law • Geo IV c96 (1823) • This legislation: – created legislative council – provided that members were nominated by governor – empowered enactment of legislation consistent with English law – allowed for the creation of an executive council – authorised the issue of letters patent Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-15 Legislation dealing with reception of English law (cont.) • The Third Charter of Justice—1824 – Established the Supreme Court of New South Wales • The Australian Courts Act 1828 – Provided that all suitable statutes and common law in force in England as at 25 July 1828 should be applied in New South Wales and Van Diemen’s Land – Provided that laws passed after 25 July 1824 did not automatically apply to colonies and Van Diemen’s Land Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-16 Legislation dealing with reception of English law (cont.) • The Colonial Laws Validity Act 1865 (UK) – Provided that colonial legislation would be void only if it was repugnant with British laws extending to the colonies Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-17 Federation and the establishment of the Commonwealth of Australia • The colonies agreed to hand over certain powers to form a central government • Commonwealth of Australia Constitution Act 1900 (UK) – This legislation created the Commonwealth of Australia (the Commonwealth Parliament) Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-18 Federation and the establishment of the Commonwealth of Australia (cont.) • The Statute of Westminster 1931 (UK) – Ensured independence of Commonwealth Parliament from British Parliament – Was adopted in Australia by the Statute of Westminster Adoption Act 1942 (Cwlth) – Meant no British Act should extend to a dominion unless it had requested and consented to the statute Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-19 Separation from the British legal system Total separation did not come until 1986 • The Australia Act 1986 (Cwlth and UK): – Repealed Colonial Laws Validity Act 1865 – Abolished appeals from Australian courts (e.g state Supreme Courts) to the Privy Council in England – Provided that states could not legislate on foreign affairs • Privy Council (Appeals from the High Court) Act 1975 (Cwlth): – Abolished appeals from the High Court to the Privy Council Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-20 The Mabo case • Mabo v Queensland (No 2) (1992) 175 CLR – Overturned doctrine of terra nullius – Recognised the form of native title to land • Native Title Act 1993 (Cwlth) – Provided for the statutory recognition of native title – Established the Native Title Tribunal Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-21 The Wik Case • Wik Peoples v Queensland (1996) 187 CLR – Decided native title rights could co-exist with pastoral leases • Native Title Amendment Act 1997 (Cwlth) – Native title rights could co-exist with pastoral leases – Where there is conflict, the rights of pastoralists survive Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-22 Amendments to native title legislation • The Native Title Amendment Act 2007 (Cwlth) – Responds to government reviews and recommendations – Ensures native title processes are effective and efficient • The Native Title Amendment (Technical Amendments) Act 2007 (Cwlth) – Clarifies or improves existing provisions Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-23 The Commonwealth of Australia and law-making powers • Australia has a federal system of government • Both the federal government and the state governments have law-making powers • The Commonwealth of Australia Constitution Act 1900 makes provision for the division of law making • Section 51 lists subject matters in respect of which the Commonwealth Parliament has power to legislate, some being: – taxation – defence – currency, coinage and legal tender – marriages – external affairs Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-24 Law-making powers • Concurrent power – Section 51: allows Commonwealth and states to share powers, e.g taxation, banking – Section 109: if conflict, federal legislation stands • Exclusive power – Section 52(i): Commonwealth has sole authority to legislate in some areas – Section 90: specific areas of customs, excise and bounties • Residual power – States have sole power to legislate in other areas not prohibited by the Constitution Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-25 Laws made by parliament: stages in the passage of a Bill – – – – – – Bill Act Introduction of Bill by minister in first house First reading Name of Bill Date of second reading Second reading Minister explains general principles of Bill General debate Committee stage Committee formed to examine and debate Amendments made Third reading Vote on Bill Moves to second house of parliament Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev (cont.) •2-26 Stages in the passage of a Bill (cont.) Bill Act Second house of parliament Acceptance Royal assent > Act of Parliament Non-acceptance could lead to a double dissolution Notified in government Gazette Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-27 Delegated (subordinate) legislation • Made under the authority of an Act of Parliament: – Types Regulations By-laws Rules Ordinance – Due to: Time limitations Expertise limitations – May be overruled by the government that enacted legislation giving authority Copyright © 2014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev •2-28 ... McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev • 2-9 Branches of law (cont.) TYPES OF LAW PUBLIC LAW CRIMINAL CONSTITUTIONAL PRIVATE LAW TAXATION... accompany Barron, Fundamentals of Business Law 7Rev •2 -1 8 Federation and the establishment of the Commonwealth of Australia (cont.) • The Statute of Westminster 19 31 (UK) – Ensured independence of Commonwealth... Copyright © 2 014 McGraw-Hill Education (Australia) Pty Ltd PPTs to accompany Barron, Fundamentals of Business Law 7Rev TRUST CONTRACT •2 -1 0 Distinction between civil law and criminal law • Civil law =