General legal rules and principles (week 1-3) Flashcards
Define the ‘law’
rules of conduct or organisation that are recognised, applied, and enforced by the power of state.
law powers of parliaments vs judges vs polices
parliaments = makes law
police = enforces law
judges = apply & enforce but sometimes makes law too
Define ‘Non-legal’ Rules and where its derived from
= rules of conduct or organisation that are enforced by things such as:
- peer pressure
- a need for co-operation
- feelings of goodwill
- or convenience.
derived from:
- moral or philosophical beliefs
- religious beliefs
- the ‘laws’ of nature
- social values
- rules that have become customary in a community
Why do Non-Legal Rules become inadequate in larger groups?
Because there’s no formal way of making and enforcing them. Hence rules enforced by the state are common in all larger societies as necessary means of regulating conduct.
2 ways in which laws chosen to enforce by the state are identified and made.
- states decides to enforce rules that originate as non-legal rules (eg: philosophical beliefs / established customs)
- new rules created in response to a need for regulation
Who makes the law?
2 main agencies of law-making at federal, state and territory level in Australia are:
- elected legislatures
- national legislatures (‘commonwealth parliament’ / ‘federal parliament’)
- state legislatures (‘parliaments’ ; group of politicians based in the same state/territory)
- local municipal councils (elected councilors representing a few suburbs bundled tgt - the courts (judges)
Different types of law
- criminal law (breaching of laws related to protecting the safety of others and their property)
- contract law (binding agreements between different parties)
- tort law (prevents wrongful behaviour btwn people, eg negligence; private disputes over careless or accidental behaviour that has harmed you or your property)
- property law (related to things)
- agency law (engaging someone else to act as your representative in certain situations)
- corporation law (statute laws; how companies can be formed, what these companies are allowed to do, internal responsibilities etc)
- constitutional law (fundamental laws, whether statutory or common law, governing the legislative, executive, and judicial functions of a state.; written document which sets out the rule in which parliaments operate / rule making powers; eg disputes btwn states/territories/
commonwealth gov - administration law (regulates the relationship between state and the poeple
- national and international law
What’s Business Law
= consists of selected rules of law that are particular relevance to business activities.
Business law includes aspects of:
- Contract Law
- Tort Law (negligence)
- Consumer Law
- Agency Law
- Property Law
- Corporations Law and Tax Law
The Anatomy of Law
- The Law (australian law, malaysian law etc)
- Areas of Law (eg: contract, property , tort etc)
- Concepts (eg: contract formation, contractual obligations, breaching, remedies)
- Principles (eg: contracts are created only when the parties to an agreement intent to be legally bound; offer & acceptance in contract formation)
- Rules (eg: an intention to be legally bound is to be inferred from the know circumstances at the TIME of agreement)
- Meaning (legal jargon)
Case Study 1: The coffee shop
KEY DETAILS:
- stella opens a coffee shop in melb
- she registers as the ‘owner’ of the business and acts on behalf of the company things (agency law in which determines Stella’s power to act on a behalf of the company. As an agent, Stella is not personally liable for these transactions: it is the company who is legally bound) to deal w business (contract law)
- she gets permission from local council to put chairs, tables and umbrellas on the pavement outside her shop.
PROBLEMS:
1. she doesn’t properly secure one of the umbrellas and a customer is injured when it blows over in a gust of wind. The customer demands compensation.
= tort law; stella’s failure of securing her umbrellas resulting in a customer being injured.
- The espresso machine she bought to make coffee turns out to be defective. Stella wants to return it.
= property law, contract law - Peter enters the shop and steals $1000 from the cash register. He is caught by the police.
= criminal law
- John owns the shop next door to the coffee shop. He claims that Stella’s tables are encroaching on his space and starts pushing the tables out of the way each day.
= property law
Law as a mechanism of Organisation and control (application to coffee shop case study)
- allows people to plan for the future w reasonable certainty
(entering into contracts for good and services/ lease/ employment/ loans) - lays down the rights, duties and powers of members of diff classes and groups
(employers & employees, lessors & lessees, borrowers & lenders, suppliers & consumers etc) - permits, encourages, forbids or discourages particular activities
(acquiring goods, operating as company, having unsafe equipments) - contracts the use of force and forbids unauthorised violence
(legal rights must be enforced through the courts; john must bring a legal action to stop stella placing her tables in his way) - creates rights and duties that can be enforced and provides remedies when rights are interfered with or when duties are not discharged
(if the contracts entered into are not performed; stella can seek legal remedies through courts)
Decision making in the courts
- the strictly logical application of existing rules promotes certainty and predictability
(we want judges to use the same principles and reasoning to get an outcome this is for consistency, if a dispute is in the community this is how it will be dealt with)
- the fair and just nature of judicial decisions promotes respect and support for the law
(treat the person the same way under the law, the dispute does not get influenced by a person’s personal characteristics but the legal precedents are adapted according to the facts in the case)
–> courts obtain balance btwn strict application of established rules AND the pursuit of fair outcomes
(in order to take proper account of significant diff of fact, & finding appropriate rules to apply to each type of case)
What type of governing structure does Australia have?
constitutional monarchy
(political power is shared btwn the monarch (the king / queen), AND a constitutional government, (eg: parliament)
Nature of Law
- law is dynamic; constantly changing
- changes made tend to be of details rather than the fundamental principles
- hence explains why Aus laws still similar to English laws
2 different sources of Australian Law
- the courts (judges )
- limited flexibility of decision-making & making new laws) - Legislatures and local government councils (parliament);
- Legislatures have a more creative role than judges; they are meant to be proactive and responsive to broader issues (socio-political environmental issues)
Different types of legislatures in Australia: (3 types)
- commonwealth (parliament)
- states (parliament)
- self-governing territories all have legislative bodies (legislatures)
Law-making powers of the Australian legislature
- State & territory legislature has a general legislative power
= “to make law for peace, order and good government.” (limited to their particular territory) - Commonwealth / Australian constitution has a more highly specific legislative power
= S 52, commonwealth constitution: list of stuff that federal can legislate on but state can’t ; (very little) - Similarities of state/territory and commonwealth legislation
= S 51, commonwealth constitution: list of stuff that both state and federal parliament can legislate on
what happens if there’s Inconsistency between commonwealth / federal and state
both state and federal parliaments can legislate at the same time, or one before the other on the SAME TOPIC
–> but IF contradiction arises, the dispute goes up to the high courts of Australia (judges) = S 109
1. first, check if both legislations are acting within their legislative powers (restrictions: state - S52, federal - S51)
- this is usually focused on whether the commonwealth is legislating within its SPECIFIC legislation powers
2. IF both federal and state legislations are VAID, federal legislation PREVAILS over the state legislation to the extent of inconsistency.
Law-making of local governments
- established by state and territory governments
- laws made by them are called ‘by-laws’
- ‘by-laws’ will be INVALID if they are inconsistent with state / federal law, or if they exceed their respective powers
Legislative Process
diagram
- bicameral parliaments = 2 separate rooms, both populated by different politicians. decisions are made by a majority vote from both rooms.
- Commonwealth - HOR - Senate
- NSW –> L Assembly –> L Council
- VIC –> L Assembly –> L Council
- Queensland –> L Assembly
- WA –> L Assembly –> L Council
- Tasmania –> L Assembly –> L Council
- Aus Capital Territory –> L Assembly
- Northern Territory –> L Assembly
Voting Styles in Lower House (House of Origin) vs
Upper House (House of Review)
- politicians voted slightly differently in both rooms
–> eg: in commonwealth, - lower house (HOR): politicians from diff geographical areas, and vote for one representative
- upper house (senate): 12 people are elected by each state through proportional voting
Outline of legislative process
most of Australian legislatures are BICAMERAL
- Proposals for new legislation
- Procedure in the House of Origin
- Procedures in the House of Review
- Final stages before the Bill becomes operational as law
(in unicameral, no step 3)
- Proposals for new legislation
(in house of origin)
- identifying the need for new law:
circumstances or beliefs give rise to particular ideas and policies that require change to the law - political processes:
a decision is taken by those with political power to introduce new proposals into the legislature - development of specific proposals:
a bill is drafted by parliamentary draftspersons
(a group of lawyers who convert politicians’ ideas into draft legislation in which if the minister likes it, it will be taken into parliament to seek a vote for whether this should be incorporated into the law )
- Procedure in the House of Origin
assuming this legislation is presented first in the HOR
- Initiation: The clerk of the house lists the Bill for its first reading
- First Reading: The house grants permission to introduce to Bill and its long title is read out. There is no debate at this stage.
- Second Reading: The relevant Minister makes a speech explaining the purpose of the Bill (justifying why they agree/disagree, and explaining how the bill works). A debate then follows and the motion is then voted on. If agreed to, the title of the Bill is read a third time and proceeds.
Committee: The members of the house form a committee to consider the Bill IN DETAIL / the house refers the Bill for consideration to a select committee.
Third Reading: It is moved that the Bill be read a third time. The house votes in the motion. If agreed to, the title of the Bill is read a third time and proceeds to upper house.
