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Lecture Fundamentals of business law (4th): Chapter 1 - Margaret L. Barron, Richard J.A. Fletcher

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Chapter 1 - Introduction to the legal system. After reading chapter 1, you should be able to do the following: Distinguish different philosophies of law-schools of legal thought - and explain their relevance, identify the various aims that a functioning legal system can serve, explain how politics and law are related, identify the sources of law and which laws have priority over other laws.

This is the prescribed textbook for your course Available NOW at your campus bookstore! Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning Copyright © 2000 McGraw-Hill Australia Introduction to the legal system Chapter Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning The law • The law is a set of legal rules that governs the way members of a society act towards one another Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning Copyright © 2000 McGraw-Hill 1-3 Australia The need for laws • Laws are required in society to regulate the behaviour of the individual, to correspond with what is acceptable to the majority of individuals, Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning Copyright â 2000 McGraw-Hill 1-4 Australia Classification ã Private Law allows individuals to take action against others (i.e to sue one another) • Public Law allows society (via the Public Prosecutor) to take action against others Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning Copyright © 2000 McGraw-Hill 1-5 Australia Classification • Civil Law - laws falling into the private law category – Law of Torts – Contract Law – Property Law • Criminal Law - laws covering offences with which an individual can be charged Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning Copyright © 2000 McGraw-Hill 1-6 Australia Person commencing the action: Outcomes: Civil Criminal Plaintiff Government Damages Specific performance Injunction Imprisonment Fines Good behaviour bonds Community service order Standard of proof: On the balance of probabilities Beyond a reasonable doubt Burden of proof: Plaintiff Prosecutor Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning Copyright © 2000 McGraw-Hill 1-7 Australia Doctrine of reception • To determine laws to be applied NEW COLONY SETTLED Laws of settlers (English) would apply Copyright CONQUERED Law of the conquered would apply 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning Copyright © 2000 McGraw-Hill 1-8 Australia Legislation dealing with reception of English law Geo IV c96 - 1823: • Created legislative council • Members nominated by governor • Enact legislation consistent with English law • Executive council created • Authorised the issue of letters patent Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning Copyright © 2000 McGraw-Hill 1-9 Australia Legislation dealing with reception of English law (continued) The Third Charter of Justice - 1824: • Established Supreme Court of New South Wales Australian Courts Act 1828: • All suitable statutes and common law in force in England as at 25 July 1828 should be applied in New South Wales • Laws passed after 25 July 1824 did not automatically apply to colonies and Van Diemen’s Land Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning Copyright © 2000 McGraw-Hill 1-10 Australia Legislation dealing with reception of English law (continued) Colonial Laws Validity Act 1865 (UK): • Colonial legislation would be void only if it was repugnant with British laws extending to the colonies Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning Copyright © 2000 McGraw-Hill 1-11 Australia Legislation dealing with reception of English law (continued) Commonwealth of Australia Constitution Act 1900 (UK): • Created the Commonwealth of Australia • Created Commonwealth Parliament Section 51: Subject matters in respect of which the Commonwealth Parliament has power to legislate (State Government has these powers also.) • Taxation • Defence • Currency, coinage and legal tender Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning Copyright © 2000 McGraw-Hill 1-12 Australia Legislation dealing with reception of English law (continued) Commonwealth of Australia Constitution Act 1900 (UK) (continued): • Bills of exchange and promissory notes • Bankruptcy and insolvency • Copyright, patents of inventions and designs, and trade marks • Marriages • External affairs Section 109 of Federal legislation overrules State legislation Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning Copyright © 2000 McGraw-Hill 1-13 Australia Legislation dealing with reception of English law (continued) Statute of Westminster 1931 (UK): • Adopted in Australia by the Statute of Westminster Adoption Act 1942 (Cwlth) Statute of Westminster Adoption Act 1942 (Cwlth): • Independence of the Commonwealth Parliament from the British Parliament, as no British Act should extend to a dominion unless it had requested and consented to the statute Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning Copyright © 2000 McGraw-Hill 1-14 Australia Legislation dealing with reception of English law (continued) Privy Council (Appeals from the High Court) Act 1975 (Cwlth): • Abolished appeals from the High Court to the Privy Council Australia Act 1986 (Cwlth and UK): • Repealed Colonial Laws Validity Act 1865 • Abolished appeals from Australian courts to the Privy Council in England • States could not legislate on Foreign Affairs Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning Copyright © 2000 McGraw-Hill 1-15 Australia Legislation dealing with reception of English law (continued) Mabo v Queensland (No.2) (1992) 175 CLRI: • Overturned Doctrine of terra nullius • Form of native title to land recognised Native Title Act 1993 (Cwlth): • Statutory recognition of native title • Established the Native Title Tribunal Native Title Amendment Act 1997 (Cwlth): • Native title rights could co-exist with pastoral leases • Where conflict, the rights of pastoralists survive Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning Copyright © 2000 McGraw-Hill 1-16 Australia Law making power Concurrent power • S51: Allows Commonwealth and States to share powers e.g taxation, banking • S109: If conflict, Federal legislation stands Exclusive power • S52 (i): Commonwealth has sole authority in some areas to legislate • S90: Specific areas of customs, excise and bounties Residual power • States have sole power to legislate in other areas not prohibited by Constitution Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning Copyright © 2000 McGraw-Hill 1-17 Australia Sources of law Case law/judge-made law • Common law - Judges follow decisions that had been made in similar, previously decided cases, with the remedy of damages • Equity - Judges follow decisions that had been made in similar, previously decided cases, with remedies based on fairness Statute law • Acts passed by Parliament Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning Copyright © 2000 McGraw-Hill 1-18 Australia Bill Act Introduction of Bill by Minister in 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 • Second House of Parliament Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning Copyright © 2000 McGraw-Hill 1-19 Australia Bill Act • Second House of Parliament • 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 Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning Copyright © 2000 McGraw-Hill 1-20 Australia Bill Act Second House of Parliament Acceptance - Royal Assent > Act of Parliament Non acceptance - could lead to a Double Dissolution Notified in Gazette (Govt bulletin) Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning Copyright © 2000 McGraw-Hill 1-21 Australia Delegated legislation Made under the authority of an Act of Parliament subordinate legislation • Due to: – Time limitations – Expertise limitations • May be: – Overruled by Government which enacted legislation giving authority Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning Copyright © 2000 McGraw-Hill 1-22 Australia Case law • Interpretation of statute • Apply common law principles Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning Copyright © 2000 McGraw-Hill 1-23 Australia ... 2000 McGraw-Hill 1- 5 Australia Classification • Civil Law - laws falling into the private law category – Law of Torts – Contract Law – Property Law • Criminal Law - laws covering offences with... McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning Copyright © 2000 McGraw-Hill 1- 17 Australia Sources of law Case law/ judge-made... of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning Copyright © 2000 McGraw-Hill 1- 11 Australia Legislation dealing with reception of English law (continued) Commonwealth of

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