3. 1-3
Law and business
Laws and regulations exist in all
countries in various forms and are
paramount to protect and facilitate
business and economic outcomes
Laws determine what can be done
and what cannot be done
They protect property and other
rights allowing certainty in
economic pursuits
4. 1-4
Law involved in many everyday pursuits
• Contracts for mobile phones
• Insurance contracts for travel
• Employment contracts
• Lease agreements
• Contract with University
• Buying goods and services
In event of injury or damage involving;
• Motor vehicles
• Slippery floors, work accidents etc.
• Storm damage, bush fires
5. 1-5
Laws that affect business
Examples include
• Employment law
• Contract law
• Consumer law
• Tort Law
• Health and safety laws
• Environmental laws
• Criminal law
9. 1-9
State Powers
(NSW, Victoria, Queensland, South Australia,
Western Australia, Tasmania)
The states in Australia still have significant powers to
legislate under their own constitutions that is a result of
the independence they achieved from England
during the 1800’s
Their law making powers are generally
wider than the powers of the
Commonwealth government
10. 1-10
Areas of importance for state governments
Health
Criminal law
Education
Transport
Industrial law
Business
11. 1-11
More powers moving to the
Commonwealth Government
In a globalised economy in order to compete, laws need to be
uniform across the country
State governments have ceded powers to the Commonwealth to
allow this to occur in the following example areas;
• The Corporations Act (regulates all companies, private and public)
• Securities Law (regulates companies on the stock exchange)
• Fair work Act (regulates working conditions, rates of pay)
• Australian Consumer Law 2010 (very important recent consumer
protection law that substantially affects business)
12. 1-12
Jurisdiction of Courts
1. Federal Courts
2. State Courts
State jurisdiction generally stops at the
borders
That causes problems particularly with
business
13. 1-13
Court System
Both federal and state system are adversarial
• Solicitor to prepare evidence and documentation
• Barrister to appear in court
System is expensive and the higher the court the more it costs
• Moves by governments to have alternative dispute resolution
processes (discussed in later lectures) have been implemented
14. 1-14
The role of the courts
Criminal Jurisdiction
Civil Jurisdiction
15. 1-15
Criminal Jurisdiction
• Minor offences known as summary offences
• Shoplifting, dangerous driving, failure to pay parking fines,
• Serious offences known as indictable offences
• Murder, rape, armed robbery, terrorism
Prosecutions brought by the Crown (DPP)
or other government bodies e.g. (ASIC, APRA)
Onus of proof “Beyond reasonable doubt”
16. 1-16
Civil Jurisdiction
A civil case can be bought
where a person, property or economic
interests are damaged through
the fault of another party
Law of Torts-
There are many torts,
the main one being,
Negligence.
Onus of proof in a civil case
“on the balance of probabilities”
17. 1-17
Origins of the courts
• The industrial revolution in England saw the agrarian
economy transformed as farmers moved from the country to
the city
• Living conditions were poor and many turned to crime
• Tougher laws were implemented. The Waltham Black Act in
1723 made 50 offences punishable by death
• By 1800 Parliament this had grown to 220 different offences
that were capital offences (death penalty). Some offences
such as stealing cattle, pickpocketing or cutting down trees
attracted the death penalty.
• Between 1770 and 1830 35,000 people were sentenced to
18. 1-18
Transportation
Transportation started to NSW
Convicts were transported for a number of
reasons;
• Australia was a long way from Britain
• More humanitarian than execution
• Source of cheap labour in the colony
19. 1-19
Doctrine of reception
At the time of European settlement it was determined
that Australia was “terra nullius”
Meaning that the country was practically unoccupied,
without settled inhabitants or settled law.
It was mainly because the lifestyle of the aborigines was totally alien to the
English that this definition came about
This allowed English law to be imposed rather than the alternative of a treaty
or military victory (the doctrine of reception)
It wasn’t until the case in 1971 of Mulirrpum v Nabalco Pty Ltd (1971) that
the evidence established that the aboriginals had a set of sophisticated
social customs that could be recognised as law
20. 1-20
The Mabo decision
The decision in Mabo v Queensland (no2) [1992] HCA 23
establishes that Australia was not terra nullius at the
time of settlement and indigenous peoples
had rights to land via native title under the common law
The principle of “terra nullius” in so far as inhabited land was
concerned was laid to rest by the High Court in this case
The Native Title Act was passed in 1993 cementing the common law
right in legislation that there was native title if there had been a
“continuous connection” with the land .
21. 1-21
The separate
colonies
The colonies of NSW, Victoria, Queensland, South Australia, Western
Australia and Tasmania were subject to English law including English
statutes
In 1823 New South Wales became a separate colony and the
Supreme Court of NSW was established
A legislative council was also established, though the governor had
the sole right to initiate legislation and override the legislative council
effectively still allowing England to retain control of the colony.
But after 1828, for English statutes to apply they had to specifically
state that they applied to Australia.
24. 1-24
State
Constitution
s
In 1850’s England allowed NSW, Victoria, South Australia and
Tasmania to draw up their own constitution and make laws via a two
house legislature
The colonies separated. They still inherited English law until 1828
then NSW law up until separation from NSW around 1855
In 1865 the Colonial laws validity Act allowed colonies to amend
their own constitutions. England however could still make laws to
override the colonies as long as it specifically stated that the Act
25. 1-25
Forming a federation
The six self governing states decided by
referendum in 1899 to adopt a national
constitution
The Commonwealth of Australia Constitution Act was enacted
on 1 January 1901
The High Court of Australia was also established
A bi cameral parliament was set up.
A lower house (House of Representatives, 151 members) and an
upper house (The Senate, 12 representatives each state and 2 from
each territory)
26. 1-26
Commonwealth exclusive powers
The Commonwealth had exclusive powers in certain matters
(e.g)
• Customs
• Free trade between the states
• Military forces
• Currency
Other powers were shared with the states concurrent powers
The powers left with the states are known as residual powers
27. 1-27
Detaching from
England
• Statute of Westminster 1931 marked the beginning of the final
stages of Australian independence. It was adopted in 1942
• The effect was that the Commonwealth (not the states) could amend
or repeal English law and the British parliament could no longer
make laws specifically for Australia
• In 1968 Privy Council (Limitation of appeals) Act 1968 (Cth) meant
no more appeals could go from the High Court to England.
• However it was not until 1986 that the Acts to stop all English
influence on Australian law including appeals to the privy council
from State courts occurred
28. 1-28
Examples of Areas of law made by the
Commonwealth (Australian government)
The Corporations Act
• Regulates companies
Securities Laws
• Regulates companies listed
on the Stock exchange
The Competition and Consumer Act (2010)
• Important business legislation regulating consumer law and fair
trading practices
29. 1-29
Commonwealth
and State Powers
Prior to federation the six independent
colonies had separate governments and
legal systems and were reluctant to hand
over their powers
The Constitution handed over some powers to the
Commonwealth Government in the areas of defence, customs
and excise. These are known as Exclusive powers set out in
Section 51.
There are shared (Concurrent powers) in areas such as
insurance, banking and industrial relations
(40 shared areas set out in Section 107 of the Constitution)
Residual powers such as education, health, transport and local
government remain with the states or where the constitution says
nothing about it they also remain with the states.
31. 1-31
The Constitution
The Commonwealth government does have some major powers
set out in section 51 of the constitution.
The main areas include industrial relations,
consumer protection, customs, defence
One of the most litigious sections of the constitution
is SECTION 109 that provides that;
“when a state law is inconsistent with a
commonwealth law the latter shall prevail”
32. 1-32
The Constitution
• Chapter 1 the Parliament
• Chapter 2 The Executive Government
• Chapter 3 The Judicature
• Chapter 4 Finance and Trade
• Chapter 5 The States
• Chapter 6 New States
• Chapter 7 Miscellaneous
• Chapter 8 Alteration of the constitution
33. 1-33
Conflict between State and Federal Law
Section 109 provides that of there is an inconsistency between state and
commonwealth law the state law will be invalid and the commonwealth law
will stand
See Wallis v Downard Pickford[1994] HCA case of removalist and damaged
goods. Qld act conflicted with Commonwealth act. Commonwealth Act
prevailed.
The bulk of the powers are held concurrently with the states and are set out
in Section 107 of the Constitution
• There are 40 areas of concurrent (shared powers )
• Residual powers from colonial days remain. The powers that the states
had as colonies are preserved unless the constitution has expressly taken
away those powers
• Where there is nothing referring to a power in the Constitution, the states
can legislate in that area.
34. 1-34
How the Commonwealth government gains more
power
1. Interpretation by
High Court is broad
2. Tax powers and GST help negotiations as terms can be
imposed on states
3. Referral, e.g.South Australia and Tasmania transferred their railways
4. Foreign obligations including treaties can allow federal
legislation to prevail see Commonwealth v Tasmania[1983]
HCA
Case involving the Franklin River Dam
in Tasmania and Unesco as a World heritage site
The Commonwealth used the
external affairs power in Section 51
35. 1-35
Separation of powers
The doctrine of separation of powers provides for separation
between
The legislative power the making of law through parliament
The executive power the formulation of policy and administration
through cabinet
The judicial power the interpretation application and enforcement
of the law through the court system
In reality there is limited separation between the legislative and
executive powers (the politicians make the laws) but a very
important notion is that the judiciary is separate and independent
from the legislative power
