Lecture Content Flashcards
What is law?
Set of rules to regulate behaviour and interactions
Laws should (4 points):
- Be clear, predictable and accessible
- Be publicly made; community able to participate in the law-making process
- Be publicly adjudicated in courts that are independent from executive arm of government
- Allow for fair and efficient dispute settlement
What types of law systems are there?
Common Law Systems
Civil Law Systems
Who do laws apply to?
Laws should apply to everyone regardless of status or position
Where does the Common Law System operate?
Common law system operates in countries
influenced in their development by England
Common Law systems can be made by (2 points):
by Parliament (Parliamentary law / statute law / written law) by Judges (case law / unwritten law)
What do you know about Civil Law Systems (4 points)?
Relies on statutory rules, often in a code,
e.g. Napoleonic Code
• Parliament / Government makes law
• Judges interpret and apply the law, but do
not make law
• Largely developed from Roman law
What legal system does Australia have?
Australia has a common law system
Written law and unwritten law
Where did Australian Law come from (4 points)?
- Originally based on law of England
- 1788 British declared Australia terra nullius – ‘empty land’
- Did not recognise existing rights of ownership over the land
- English law assumed to be in force
When was Australian Constitution established and why?
As the six Australian colonies of NSW, Vic, Qld, WA, SA and Tas were formed, each had power to
make laws as long as they did not contradict English law
• The six colonies decided to federate, and on 1 January 1901, Commonwealth of Australia Constitution
Act 1900 (UK) established Australia as a nation and established the Australian Constitution, with the
power to make and apply law in Australia
What do you know about the Australian Constitution?
1 January 1901
Set up legal framework for governance at national level
Established federal (Commonwealth) parliament and government, responsible for national decision-making and law-making
Established six state governments
Established power sharing arrangements between federal and state parliaments
Section 51 gives federal parliament power to make laws about specific matters
State parliaments retain all powers not handed over to Commonwealth; power to make laws which apply only within the state
What is the High Court?
interprets the Constitution
• decides its meaning
• settles disputes between federal and
state governments
What is in Section 109?
in a conflict between state and
federal law, federal law will prevail
Where did Australia establish the Constitution?
The High Court
What are the 3 groups of governance in the Constitution?
Parliament (Senate and House of
Representatives) makes and amends written
law
• Executive (government departments) puts
written law into action
• Judiciary (judges/High Court) interprets and
makes judgments about written and unwritten
law
What is in place to prevent corruption between the governing groups?
• Checks and balances to ensure no group holds
too much power
• Judicial independence is cornerstone
What is the Federal government responsible for?
Commonwealth
What is the State government responsible for?
All 8 Australian states
What is the Local government responsible for?
In QLD: Brisbane City Council, Sunshine Coast Council etc.
What are State Constitutions?
• established state level courts • provided for system of local government by councils
What do State Parliaments do?
• State parliaments set out functions and powers of local councils • Local Government Acts delegate to local councils power to make by -laws for matters such as use of roads, public land, development and building approvals • Powers only apply within the council boundaries
Explain what a Territory is (5 points)
Land in Australia which does not belong to
any State
• Australian Constitution: federal parliament
has power to make laws for government of
Territories
• Federal government granted limited right of
self-government to NT and ACT
• NT has established regional councils
• In ACT, responsibilities usually handled by
local government are administered by a
department of the territory government
What are the two territories in Australia
ACT and NT
The Australian common law is made up of:
Written law and unwritten law
Written law is made up of (3 points):
Constitution, Acts of Parliament (primary legislation) and Delegated legislation (subordinate legislation)
Unwritten law is made up of: (2 points
Case law (judge-made law) which consists of the Common law and Equity
What is primary legislation?
Law made by Parliament
(Federal, State or Territory) in the form of Acts of Parliament (known as
Acts, Statutes, Primary Legislation)
What is subordinate legislation?
Law which is enacted under delegated powers, such as statutory instruments.
An Act can delegate power to make law in form of statutory instruments (legislative instruments)
• Regulations
• often the technical detail relating to an Act
• By-laws
• State and Territory local government Acts delegate to local councils power to make by-laws
for matters such as use of roads and public land
• Only apply within the council boundaries
What is Written law - harmonisation?
Australia has nine parliaments
• Inconsistency between various state and territory Acts, e.g. building and construction industry
security of payment legislation
• Harmonisation options:
• Council of Australian Governments (COAG) – committee agrees a unified model Act, and
each state and territory parliament enacts the model Act, e.g. work health and safety
legislation and Australian Consumer Law
• States can surrender law-making power in a certain area to Commonwealth, e.g. industrial
relations law (except WA)
What is unwritten law?
Case law or judge-made law
• Made by judges in courts when they hand down decisions
• Example is Dunlop Pneumatic Tyre Co Ltd v New Garage & Motor Co Ltd [1915] AC 79, setting
ground rules for distinction between liquidated damages and penalties
• Process of adaption and development of existing rules to handle new situations, e.g. law of
negligence
• Strict constraints on what judges can do:
• Courts only decide law in context of resolving a dispute
• Courts decide only legal points necessary to resolve the dispute
• Can interpret legislation (written law) but not override it
• Must follow doctrine of precedent
What is unwritten law
Case law or judge-made law (also referred to as common law)
• Judges must follow doctrine of binding precedent
• Courts bound to follow previous decisions of other judges in cases of similar facts
• Case law continually evolves as judges issue their judgments
• Consistency in decision-making
• Court bound by decisions of higher courts in same hierarchy
• Decisions of courts at same level in the hierarchy not binding, but generally followed for consistency
• High Court not bound to follow its own decisions, but generally will for consistency unless convinced of
error in previous decision
• Decisions of higher courts in other jurisdictions (other common law countries or other Australian states) not binding but may be persuasive
• Only the ratio decidendi (legal reasons supporting the decision) is binding; obiter dicta (sayings by the way) not binding on future cases
What is Unwritten law – common law and equity
The phrase Common Law has various
meanings:
• Legal system using written and unwritten
law
• The unwritten law, or case law
• One of the two categories of case law,
which are common law and equity
• Common law concerned with rules, Equity
concerned with behaviour
• Equity includes additional remedies such as
specific performance, injunctions, equitable
rescission of contrac
How does unwritten and written law work together?
Parliamentary law overrides any case law which is inconsistent with parliamentary law
• But sometimes parliament will make new laws to give effect to case law
• Mabo v Queensland (No 2) (1992) 175 CLR 1
• High Court of Australia overturned application of legal doctrine of terra nullius to Australia
• Established right to native title
• Native Titles Act 1993 (Cth) codified right to native title, and established National Native Title
Tribunal to administer and make decisions regarding native title claims
What does criminal law do?
• Objective is to punish persons guilty of
committing crime
• Punishment is monetary fine, community
service or imprisonment
• Criminal Code Act 1899 (Qld)
• Breach of obligations under Work Health and
Safety Act 2011 (Qld) is criminal offence
• Director of Public Prosecutions (on behalf of
state or Commonwealth) prosecutes the
defendant
• Guilty or not guilty of offence
What does Civil Law do?
Objective is to compensate person for loss or
damage caused due to wrongful conduct of
another
• Remedy is monetary damages (or equitable
remedies, e.g. injunction)
• The person alleging harm initiates civil court
action against the defendant
• Liable or not liable for harm or damage
What is a contract?
An agreement which is enforceable, i.e. which the law will enforce
• An agreement between two or more persons
- in law can mean “natural persons” and corporations
• The persons who enter into the contract are partiesto the contract
• Each of the parties to a contract obtains rights and owes obligations under the contract
Does a contract have to be in writing?
• A contract does not have to be in writing to be enforceable, unless specifically required by legislation • Can be difficult to prove existence of an oral contract, or what the contract says (the terms of the contract)
What do contracts need to include to be enforceable?
Contracts which must be in writing to be enforceable under Queensland law include:
• Contracts for the sale of land: Property Law Act 1974 (Qld), s 5
• Domestic building contracts: Queensland Building and Construction Commission Act 1991 (Qld), Sched 1B, s13 & s14
• Non-domestic building contracts: Queensland Building and Construction Commission Act 1991 (Qld), s67G
What happens if a party fails to perform according to their contract?
• If one party to the contract fails to perform (breaches) their obligations under the contract, the other party may take action in court to enforce the contract • In practice this usually means the party who suffered damages or incurred loss as result of the other party’s breach will sue the breaching party for compensation, i.e. damages, i.e. money
For party A to successfully sue party B for breach of contract, in contract law party A must prove:
A legally enforceable contractual agreement exists between A and B;
A term of that contract has been breached by B;
The loss or harm suffered by A was caused by B’s breach
What do we need to make a contract?
Offer (Has an offer been made?)
Acceptance (Has the offer been accepted?)
Consideration (Was consideration provided?)
Intention (to create legal relations) (Did the parties intend to make a contract?)
Beside the 4 key elements, what else do we need to make a contract?
Capacity - Is the person recognised in law as able to enter into a legal contract?
Meeting of minds - Do the parties have the same understanding of the key terms?
What is an offer?
An indication made by one person (the offeror) to another (the offeree) of the offeror’s willingness to enter into a contract with the offeree on certain terms
• A proposal to which the person making the proposal is prepared to be contractually bound
• Most common example:
- the offeror promises to perform an act or supply goods or services in return for a sum of money
• An offer must be clear and certain
• An offer must be communicated to the offeree
What are key questions to ask in an offer?
- Is the person intentionally communicating the terms on which they are prepared to enter into a contract?
- If the offeree ‘accepts’ the offer, is the offeror prepared to be contractually bound?
What can happen to an offer?
Offerer may withdraw offer
Offeree may reject or accept offer
Offer may lapse with time, death, or failure of condition precedent
When is an offer accepted?
Communication by the offeree of their unqualified intent to be bound by the precise terms of the offer
• If an offer has not been withdrawn or rejected it may be accepted • Once acceptance occurs, the offer comes to an end and an agreement, the contract, exists
• Once acceptance has been communicated it cannot be revoked
What are the rules for Acceptance of an offer?
Generally, an acceptance must meet these rules:
Only offeree can accept the offer
Acceptance must be absolute, final and unqualified Acceptance must be communicated to offeror, i.e. actually received by offeror, unless one of the exceptions applies
Silence cannot generally be acceptance Acceptance can be verbal, written or by conduct
If the offer prescribes a particular method of acceptance as the only method, offeree should accept by that method
Otherwise, offeree may choose method of acceptance provided it is reasonable
What acts are involved in acceptance by electronic communication
• Each state has passed electronic transactions legislation in line with the Electronic Transactions Act 1999 (Cth)
• Electronic Transactions Act 2001 (Qld) s24 specifies deemed time of receipt of electronic communications: unless otherwise agreed between the parties, an electronic communication is received:
when it enters an information system which is designated by the addressee as the system for receipt of electronic communications
or, if no system is designated, when it comes to attention of the addressee
• Therefore, acceptance by email to an email address designated by offeror probably deemed as communicated when it arrives in offeror’s inbox
What is ‘Consideration’ in a contract
Some act or forbearance of one party, being the price for which the promise of the other is bought
Both parties to a contract must provide something of value in return for the promise made to them:
• A promise to do something
- e.g. a promise to pay money or carry out building works
• A promise to refrain from doing something, i.e. a promise to not do something
- e.g. a promise by a person to forgo the right to build on their own land
• Actually doing (or refraining from doing) something, under a unilateral contract
- e.g. Carlill v Carbolic Smoke Ball Co, where Mrs Carlill provided consideration by following the instructions set out in the advertisement
What are the Rules for Consideration in a contract
• Consideration must be legal
cannot be an illegal act
• Consideration must be real, but need not be adequate
must have some real value but not necessarily equal value to the promise given
• Consideration may be executory(future consideration) or may be executed(present consideration), but must not be in the past
consideration must flow with or after the agreement
• Consideration must move from the promissee
only the person who gave consideration for a promise (promissee) can enforce the promise
• Performance of an existing duty is no consideration
performance of an act in return for other party’s promise not valid consideration if the promissee was already under existing public or contractual duty to perform the act
What is involved with the ‘Intention’ part of a contract?
• Did the parties intend their bargain to be enforceable in court? Did they intend to create a legally binding agreement?
• Courts use objective test:
considering all relevant circumstances, would a reasonable person conclude the parties had intended to contract?
• Social or domestic arrangements:
presumption that parties did not intend to make a contract unless clear evidence that they did intend to contract
• Commercial arrangements:
presumption that parties did intend to make a contract unless clear evidence that they did not intend to contract
• Letters of intent:
generally not binding but depends on the terms
What does Meeting of Minds mean?
• Parties must have the same understanding of the key terms of the contract
• Court not concerned with parties’ own subjective interpretation of the terms
• Court applies objective test:
what meaning would a reasonable person have given to the terms if placed in the situation of the parties?
• If court can give objective meaning to the terms, it will enforce them with that meaning
• If court cannot give objective meaning, those terms will be unenforceable as there is no meeting of the minds
• Where the disputed terms affect the fundamental nature of the contract, there is no meeting of the minds with respect to the contract, therefore there is no valid contract
What are the terms of the contract?
Contents of the Contract
• Essence of contract is that the parties make their own rules; contract law simply provides a framework that enables this to occur
• Contracts contain statements of rights (what the parties will receive) and statements of obligations (what the parties must do or give)
What statements are terms enforceable by law?
• Express terms
statements made, and included in the contract, by the parties
may be oral or written
• Implied terms
inserted into the contract by law
exist in contracts even if not expressly stated
What is an express term?
• Conditions
important or essential term, going to the heart of the contract
e.g. a party would not have entered into the contract if it had not contained that term
failure to perform it would make performance of the rest of the contract something different in substance from the original contract
sometimes called material breach
if breached, the other party can sue for damages and terminate the contract
• Warranties
less important terms
if breached, the other party can sue for damages only
