enterprise law IMPORTANT Flashcards
rule of law & 4 aspects
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’).
tera nullius
territory belonging to no one
common law
Derived from case law (or precedent) and statute, it is accusatorial in form with an emphasis on remedies. It forms the basis of English law and can be found in the United States, as well as in Commonwealth nations, including Canada, Singapore, Malaysia, Australia, New Zealand, parts of Africa, India and Pakistan.
legislative process pg 82
1 Notice. Notice is given on one day for the presentation of a bill on a subsequent day. Notice is not required for appropriation and supply bills or bills dealing with taxation matters.
2 Presentation and first reading. This is a formality: the Minister presents the bill to the House and its title is read by the Clerk of the House.
3 Second reading. Immediately after the first reading, the Minister usually moves that the bill be now read a second time. The Minister then outlines its purpose in general terms, usually in the form of an explanatory memorandum. The explanatory memorandum is quite a useful tool for finding out what the intention of the party bringing forward the bill was, and what the various sections of the bill might have been intended to mean. At the end of the second reading speech, the debate is adjourned on a motion usually put forward by an Opposition member. This enables the members to study the provisions of the bill, and the debate, when resumed, is on the broad principles involved. If the House agrees, the whole bill with amendments (if any) is read through a second time at the end of the debate. However, the Opposition may oppose the bill in this second reading and vote against it.
4 Committee. When the bill passes its second reading, the House then resolves into the committee of the whole, or it may dispense with the committee stage and go straight to the third reading. The committee consists of the whole House without the Speaker. In committee, the bill may be examined in close detail, clause by clause, or it may be taken as a whole. Amendments to clauses may be moved, and a vote may be taken on each clause and on the suggested amendments.
5 Report, recommittal and adoption. The bill is then reported to the House, with or without amendments, and a motion is moved for the adoption of the report.
6 Third reading. The motion for the third reading is moved by the Minister and is usually only a formality.
7 Transmission to the Senate. When the bill has passed all stages in the Lower House it is sent to the Senate, where it must pass a similar sequence of stages. If the bill is amended in the Senate, the amendments are referred back to the Lower House for its agreement.
8 Presentation for Royal Assent. Once the bill has passed both Houses, it is sent to the Governor- General (the Governor in the states) for Royal Assent. Under s 57 of the Commonwealth Constitution, a bill must be passed by both Houses in complete agreement before it can be presented to the Governor-General; the states have a similar requirement. Assuming that there is no disagreement between the two Houses at the federal level, the bill is now an Act of Parliament (enacted law) and becomes effective after the date of the Royal Assent (usually 28 days in the case of the states and territories), unless another date is stipulated in the bill itself. The date of commencement of the Act will also be announced by the government in the Commonwealth or the respective state Government Gazette.
federation
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).
separation of power/ division of power
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).
parliamentary sovereignty
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.
precedent
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).
division of legislative power between commonwealth and statutes
the division of powers under the Australian Constitution is divided into three categories: -
Exclusive powers are those granted under the constitution to federal parliament exclusively and, if there is a state law that conflicts with a federal (or commonwealth) law, s109 of the Constitution provides that the state law, to the extent of the inconsistency, will be invalid. -
concurrent powers are powers that the commonwealth shares with the states, of which s40 of the constitution is the most important, and
- residual powers are those powers the states exclusively hold because the Constitution says nothing about them - for example, local government, education and transport
concurrent powers
those powers able to be shares between the federal and state parliaments
section 51
Section 51 of the Constitution of Australia grants legislative powers to the Australian (Commonwealth) Parliament only when subject to the constitution. When the six Australian colonies joined together in Federation in 1901, they became the original States and ceded some of their powers to the new Commonwealth Parliament. There are 39 subsections to section 51, each of which describes a “head of power” under which the Parliament has the power to make laws. The Commonwealth legislative power is limited to that granted in the Constitution. Powers not included in section 51 are considered “residual powers”, and remain the domain of the states, unless there is another grant of constitutional power (e.g. Section 52 and Section 90 prescribe additional powers). Matters covered in section 51 may be legislated on by the states, but the legislation will be ineffective if inconsistent with or in a field ‘covered by’ Commonwealth legislation (by virtue of s109 inconsistency provision).
native title
the term used to describe the common law rights and interests of indigenous peoples in land according to their laws, traditions and customs. it is a pre-existing right that evolved over thousands of years and is not a grant or right created by governments, but can be extinguished by the crown or if the traditional title holders lose their connection with the land.
court systems
the role of the courts is administration of the law and resolution of disputes, which involves imposing a legally binding decision on the parties to the dispute. They have a criminal and a civil jurisdiction. The more serious the case of matter, the higher within the court hierarchy will be the court hat you hear it. Criminal and civil jurisdiction
binding precedent
in the case of a binding precedent (the ratio decidendi of an earlier case decision). each court is bound by the decisions of courts higher than it in the same hirarchy of courts, whether or not it believes that decision is correct. Courts at the same level reserve the right to reconsider their own earlier decisions, but it must be stablished that the earlier decision was manifestly wrong. to determine whether a court is part of the same hierarchy, consider whether it is linked by a right of appeal.
methods to interpret statutes pg 85 -88
need to further look into this
