barron 7e ppt_ch_01

Copyright © 2012 McGraw-Hill Australia Pty LtdPowerPoint slides to accompany Barron Fundamentals of Business Law 7e 1-1

This is the prescribed textbook for your course.

Available NOW at your campus bookstore!


Introduction to the legal system

Chapter 1


Learning objectivesAt 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


Learning objectives (cont.)• the difference between exclusive and concurrent law-

making 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.


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.


Why do 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.


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


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.


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).


Branches of law (cont.)

TYPES OF LAW

PUBLIC LAW PRIVATE LAW

CRIMINAL CONSTITUTIONAL TAXATION PROPERTY TRUST CONTRACT


Distinction between civil law and criminal law

• Civil law = private law

– Law of torts

– Contract law

– Property law

• Criminal law covers offences with which an individual can be charged.


Distinction between civil law and criminal law (cont.)

Parties Aims Outcome Proof

Civil law Plaintiff commences action against defendant

Compensation for the loss or injury suffered by the individual

Damages, specific performance, or an injunction

On the balance of probabilities

Criminal law

Government commences proceedings against defendant

Punishment of the offender, deterrence of the offender and others who may offend the community

Prison terms, fines, good behaviour bonds, community service orders

Beyond a reasonable doubt


Sources of lawThe current Australian legal system is the product of three distinct branches of English law.

• Common law– Judges follow decisions made and recorded in similar,

previously decided cases.– Remedy is damages

• Equity– Judges follow decisions that have been made in similar,

previously decided cases but may also consider issues of fairness.

– Remedies are broader

• Statute Law– Legislation or Acts passed by parliament


The doctrine of reception

To determine laws to be applied

NEW COLONY

SETTLED CONQUERED Laws of settlers Law of the conquered

(English) would apply would apply


Legislation dealing with reception of English law• 4 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.


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


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


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).


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


Separation from the British legal systemTotal 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


The Mabo case

• Mabo v. Queensland (No. 2) (1992) 175 CLR 1

– 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


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.


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


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.


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.


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 (cont.)


Bill Act

Stages in the passage of a Bill (cont.)

Second house of parliament

AcceptanceRoyal assent > Act of Parliament

Non-acceptance could lead to a

double dissolution

Notified in government

Gazette


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

barron 7e ppt_ch_01

Documents

public law

term law

branches of law private

english law

concurrent law

criminal law

mcgrawhill australia

powerpoint slides