Enterprise Law Flashcards
What are Australia’s 3 levels of government?
- federal government
- State/ territory Governments
- Local governments
what is the federal government also known for and what matters does the federal government deal with?
The federal government (also known as the Australian Government, the national government, the Commonwealth Government or simply the Commonwealth) deals with matters having a national concern, such as:
- immigration
- foreign affairs
- defence
Such matters are best dealt with by a national government
State and territory governments
The State and territory governments deal with matters of importance within each
state or territory. Such matters include:
- public housing
- school education
- roads and transport within the State or territory.
The State and territory governments occupy the ‘middle’ level of government in
Australia.
Local governments
The local governments deal with matters of concern within smaller geographical
areas called local government areas (there are many such areas within each State
and territory). The typical functions of local governments include:
- maintaining parks and gardens
- providing libraries, youth centres and other services to local residents
- removal of waste.
In Australia, local governments are commonly called councils.
Branches of government
The federal and State / territory levels of government are each further divided into
three branches of government. These are:
- the legislature
- the executive
- the judiciary.
Each branch of government performs distinct functions.
The legislature
The legislature is the branch of government responsible for creating and changing
laws. The body in which legislation is made is called parliament. There are
parliaments of the Commonwealth, each of the States, the Australian Capital
Territory and the Northern Territory. Each parliament is constituted by members of
parliament who are directly chosen by persons of voting age (called electors) within
the relevant geographical area. For example, members of the Commonwealth
parliament are chosen by electors throughout Australia, while members of the New
South Wales parliament are chosen only by electors within New South Wales.
The executive
The executive is the branch of government responsible for administering the laws
of parliament and managing the day‐to‐day tasks of government. In both the
Commonwealth and New South Wales, the executive consists of a number of
government departments. Each government department is headed by a member of
parliament called a minister. In Australia, we more often refer to the executive
branch as the ‘public service’.
The judiciary
The judiciary (also known as the judicature) is the branch of government
responsible for resolving disputes according to law. In order to resolve disputes
the judiciary must interpret and apply the law (both legislation and judge‐made law).
The courts are the bodies responsible for exercising judicial power.
what is common legal system?
The common law is the legal system that developed in England. This system of
law later spread to England’s colonies in North America, New Zealand and Australia.
Australia remains a common law country.
It is important for business people to recognise that the operation of the common law
differs greatly from the operation of other legal systems. Transactions that affect
businesses in more than one country can be significantly impacted by these
differences. In general, businesses should ensure that any agreement made with an
overseas entity includes a declaration that the law to be applied in the event of any
dispute will be the law of Australia. This will help to minimise the number of issues
under dispute.
what are the features of the common law?
Features of the common law system
The main difference between the common law system and other legal systems is the
manner in which the courts operate. The distinctive features of the common law
courts are outlined below.
Precedent
The doctrine of precedent is the principle that like cases should be decided
alike. Before making its decision, the court examines similar cases of the past
(known as precedents or authorities). It is the role of lawyers appearing before the
court to bring relevant authorities to the attention of the court.
An important aspect of precedent is that decisions of the higher courts are binding
upon the lower courts. This means that if a case decided in the higher courts is
legally or factually relevant to a case before the lower court then the lower court must
follow the reasoning of the higher court in coming to its decision.
The doctrine of precedent promotes consistency within the common law and fairness
between litigants. It also helps to uphold the authority of the higher courts and
ensures that the law develops in a principled manner.
Adversarial trial system
An adversarial trial system is one in which disputes are resolved by opposing
parties arguing their cases before an impartial court. Each party is usually
represented by lawyers. An important feature of this system is that the court does not
take an active role in the proceedings but limits itself to ensuring the proper and fair
conduct of the trial. Of course, the court is also responsible for deciding which party
wins. In an adversarial trial system, the parties have the sole responsibility for
preparing cases and presenting evidence to the court. This is in contrast to the
inquisitorial method observed by the Civil law system in which the courts take some
responsibility for these matters.
Trial by jury
Under the common law system a person accused of a serious crime is entitled to be
tried by a jury. In trial by jury a group of ordinary citizens (the jury) hears the
evidence and decides on the outcome of the trial. Criminal matters are the most
common to be tried by jury and at the conclusion of the trial the jury decides whether
the accused is guilty or not guilty. In civil matters (disputes not involving the criminal
law) jury trials are less common. In such trials the jury decides which side wins. In
Australia, jurors are chosen from the electoral roll (the official list of
eligible voters).
Fundamental principles of the common law
The way in which the common law operates today is the consequence of a number
of fundamental principles which have been developed over hundreds of years.
These principles may be thought of as the ‘bedrock’ that underlies the common law
system. The fundamental principles are upheld by the courts as they are necessary
for ensuring that the law achieves justice. The principles also find expression in
some of the institutions of the common law (such as the electoral system). The most
important of the principles are set out below.
Procedural fairness
Procedural fairness is the principle that government agencies should deal with
citizens using proper legal procedures and not some arbitrary process. The
principle applies not only to the courts but also to members of the executive (the
public service). The principle incorporates a number of specific requirements,
including:
o the requirement for an impartial decision-maker
o the right to be treated fairly.
In some countries, procedural fairness is called natural justice or due process.
The rule of law
The rule of law is the principle that power must be exercised in accordance
with valid laws and not otherwise. The principle applies to both individuals and
organisations (including governments). There are four specific aspects to the rule of
law:
o Persons are to be governed by valid laws and not by the arbitrary exercise of
power.
o Every person and organisation, including the government, is subject to the same
laws.
o A person may only be punished for breach of the law and not otherwise.
o The government must have legal authority for every action that it takes (this is
sometimes referred to as the ‘principle of legality’).
Representative government
A representative government is a system of government that requires members
of the legislature (parliament) to be directly chosen by the people. The
Australian Constitution requires this system of government.
Parliamentary sovereignty
Parliamentary sovereignty is the principle that the laws of the parliament are
supreme. This principle ensures that if the courts or the executive make a law that
the people do not agree with then the parliament may change or remove the law. As
all members of parliament are directly chosen by electors, parliamentary sovereignty
ensures that the people are ultimately responsible for the laws that govern them.
There is one major restriction on parliamentary sovereignty: a law of parliament must
itself be lawful. For example, in Australia, all new national laws must comply with the
requirements of the Australian Constitution.
Special features of the English and Australian legal systems
The legal system of England developed some additional features which have been
passed on to Australian law. The most important of these are outlined below.
- separation of powers
- judicial independence
- responsible government
Separation of powers
The separation of powers is the division of government into three separate
branches as a means of preventing abuses of power. In Australia, government is
divided according to the function of each branch: the legislature enacts laws, the
executive administers the laws and the judiciary interprets and applies the laws.
Each branch of government exercises separate powers. There are some exceptions
to this principle: for example, the Prime Minister is both the head of the executive
government and a member of the legislature. In other respects, however, the
separation of powers is adhered to, particularly in regard to the judiciary.
The Australian Constitution implies a separation of the powers of the national
government by dealing with the legislature, the executive and the judiciary in
different chapters (Chapter 1 deals with the parliament; Chapter 2 deals with the
executive and Chapter 3 deals with the judiciary).
Judicial independence
Judicial independence is the principle that the courts must operate
independently of the other branches of government (the legislature and the
executive). The rationale for judicial independence is to ensure that judges decide
cases according to law and not according to the wishes of other members of the
government. One important requirement of judicial independence is what is known
as security of tenure: judges may not be dismissed from office (except on proven
incompetence or misconduct) and may not have their salary reduced while in office.
Responsible government
Responsible government is the principle that the executive government (the
public service) is ultimately responsible to the electors. Such responsibility is
ensured by making the executive answerable to parliament. In practical terms this is
achieved by dividing the public service into separate departments and appointing a
member of parliament to the head of each department. The member of parliament
who heads a government department is known as the minister of that department.
The principle of responsible government is sometimes referred to as the
Westminster system of government.
distinctive features of the Australian legal system
The Australian legal system has a number of distinctive features. The most important
of these are outlined below.
Written constitution
Australia (unlike the United Kingdom) has a written constitution: the Australian
Constitution. The Constitution is a fundamental legal document that sets out the
powers of the Australian Government. All laws made within Australia must be
consistent with the powers conferred by the Constitution.
Federal system of government
As we have seen, Australia was formed from the union of six separate British
colonies. The resulting government structure, consisting of six State governments
joined to one national government, is called a federal system of government. One
characteristic of federal systems is that power is shared between the State
governments and the national government. In general, the national government (also
called the Australian Government, the federal government or the Commonwealth)
deals with matters of national significance (such as immigration, defence and
foreign relations) while the State governments deal with matters of significance
within each State (such as housing, health care and education).
the legislature
The legislature is the branch of government responsible for creating and
amending legislation (legislation is law created by the legislature). Legislation is
law created by parliament. It can be differentiated from judge-made law which is the
law declared by judges when they decide cases in the courts. (Judge-made law is
often referred to as ‘common law’ after the legal system in which it is created.) While
the law-making role of the courts remains important, most new laws are legislative in
character.
The parliament of the Commonwealth, and that of each of the States and territories,
is constituted by members of parliament. Members of parliament are directly
chosen by persons of voting age (called electors) in the relevant geographical area.
For example, members of the Commonwealth parliament are chosen by electors
throughout Australia, while members of the New South Wales parliament are chosen
only by electors within New South Wales.
The body in which legislation is made is called parliament. There are parliaments of
the Commonwealth, each of the States, the Australian Capital Territory and the
Northern Territory.
The Commonwealth Parliament is divided into two separate chambers or houses of
parliament informally known as the ‘lower house’ and the ‘upper house’ to describe
their main functions. The lower house is called the House of Representatives and
is the house in which most legislation originates. The upper house is called the
Senate and its main function is to review proposed legislation. The division of
parliament into two houses is matched in all of the State parliaments except
Queensland, which has a unicameral (single-house) parliament.
Legislation: nature and importance
Today, legislation is the dominant source of Australian law. Nearly every aspect of
our lives is affected by rights or obligations imposed by legislation. Parliament is
much better placed than the courts to make new laws for the following reasons:
• Parliament has a prospective (forward-looking) outlook and may therefore make
laws that anticipate future problems.
• No dispute is required in order for a new law to be declared.
• Different interests can be accommodated.
• Community input can be sought and acted upon.
The principle of parliamentary sovereignty (discussed earlier) ensures that the laws
of parliament prevail over inconsistent judge-made law. The courts nevertheless
remain very relevant to modern law-making. In particular, the courts:
• interpret and apply legislation, and
• determine the validity of legislation.
Much of the work of the courts today revolves around legislation. For example, in
many of the cases that come before it, a court will be required to decide what
legislation applies to the parties and how it affects the outcome of the dispute.
Sources of legislative power
The wellspring of legislative power in Western countries is the democratic belief that
the people should be able to determine the laws that are binding upon them. In
Australia, this is achieved through direct election of members of parliament. Since
members of parliament are chosen by electors, the electors are ultimately
responsible for determining the laws of Australia.
Nevertheless, each parliament must derive its law-making power from other laws.
The Commonwealth Parliament is empowered to enact laws by the Commonwealth
Constitution. The Constitution contains specific provisions as to the subjects upon
which the Parliament may legislate. The Parliament may not legislate on other
matters. The New South Wales Parliament is empowered to enact laws under the
Constitution Act 1902 (NSW). The New South Wales Parliament may legislate on a
much broader range of topics than the Commonwealth Parliament. Nevertheless, the
New South Wales Parliament may only enact laws that have operation within New
South Wales.
Acts of Parliament
An Act of Parliament (otherwise known as a statute) is a law made directly by the
parliament. Acts of Parliament are enacted (created) to address matters of
importance to all electors. For example, the Commonwealth Parliament has enacted
a number of Acts to enable it to collect taxation. Without this legislation, the
Commonwealth Government would not be able to collect taxation revenue to provide
essential services (such as the defence force, customs and immigration, etc.)
Delegated legislation
Delegated legislation (otherwise known as subordinate legislation) is law made by
members of the executive under the authority of parliament rather than by
parliament directly. Delegated legislation is made to address matters of detail that
are best dealt with by the public service. For example, officers of the New South
Wales Department of Fair Trading would be in a better position than members of
parliament to draft legislation imposing safety requirements for baby cots. Due to
the huge number of matters that modern governments must cover, most new
legislation is delegated legislation.
Why does parliament give the executive law‐making powers rather than make all
legislation itself?
There are a number of reasons. Some of these include:
o Time and resources. Parliament does not have sufficient time to make all
necessary laws so it concentrates on the ‘big picture’ (addressed by Acts), leaving
the details to the executive (addressed by subordinate legislation).
o Public servants are usually better placed to work out such details as they deal with
the administration of the law every day.
Limitations upon legislative power
Parliament’s law-making powers are limited. In creating new legislation, the
lawmaker (whether parliament or its delegates in the public service) must satisfy two
requirements:
- the legislation must not extend beyond the powers conferred upon the lawmaker;
and
- the legislation must be properly created.
If both of these requirements are met the legislation is said to be valid. The courts
have the task of deciding whether legislation is valid. If the courts find that either of
the above requirements have not been satisfied they will declare the legislation to be
invalid. If this happens the legislation will be of no further legal force.
Legislation beyond power
Legislation beyond power
Legislation cannot extend beyond the powers conferred upon the law-maker, whether that law-maker is a member of the executive or parliament itself. There are a number of specific requirements which are outlined below.
Commonwealth Parliament
The Commonwealth Parliament may not enact laws that are unrelated to one of the subjects mentioned in the Commonwealth Constitution. Most of these subjects are to be found under section 51 of the Constitution. A finding by the courts that a Commonwealth law is beyond the powers conferred upon Parliament by the Constitution will result in the law being declared invalid.
State parliaments
An Act of a State parliament may not be inconsistent with an Act of the Commonwealth Parliament. A finding by the courts that a State law is inconsistent with a Commonwealth law will result in the New South Wales law being declared invalid to the extent of the inconsistency (this is provided for by section 109 of the Commonwealth Constitution).
Delegated legislation
Delegated legislation must be consistent with the power that parliament has conferred upon the executive. This is the case in both the Commonwealth and the States. A finding by the courts that the delegated legislation extends beyond the powers conferred by parliament will result in the delegated legislation being declared invalid. If a court concludes that an Act or delegated instrument is defective the court may declare the legislation invalid, in which case the Act or instrument will have no further legal force. Consequently, parliaments (and their delegates) must draft legislation very carefully to prevent any finding of invalidity. A finding of invalidity by the courts can create enormous problems for a government, particularly when the law has been in force for some years. The following case from the courts provides an illustration.
