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Commercial Law > Week 1 Everything > Flashcards

Week 1 Everything Flashcards

1
Q

Law

A

The set of rules made by the state and enforceable by prosecution or litigation.

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2
Q

Business Law

A

The set of rules regulating businesses and business activities made by the state and enforceable by prosecution or litigation

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3
Q

Prosecution

A

Refers to the enforcement of legal rules in criminal matters.

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4
Q

Litigation

A

Refers to the enforcement of legal rules in civil matters.

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5
Q

The purpose of law

A

resolves disputes

maintains social order

preserves and enforces community values

protects the disadvantaged

stabilises the economy

prevents the misuse of power.

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6
Q

Categories of law photo

A

7/3/19

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7
Q

The categories of law are generally divided into four types:

A

Substantive law
Procedural law
Public Law
Private Law

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8
Q

Substantive law

A

Legal rules which apply in any legal dispute whether civil or criminal. E.g. whether a contract exists or whether someone has committed a crime.

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9
Q

Procedural law

A

A set of rules which deal with the process of how the rules are used in a legal dispute: E.g. whether the dispute should be heard by a jury or whether there is a right of appeal.

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10
Q

Public Law:

A

Laws which impact society generally and involve a relationship between Government and the individual. Examples include constitutional law and administrative law.

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11
Q

Constitutional Law

A

The implementation of the Constitution affects the rights every person in this country and is therefore referred to as public law.

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12
Q

Administrative law

A

Deals with the relationship between the Government (Federal or State) and an individual. Government Departments (Federal or State) make administrative decisions which impact the individual within society: E.g. refusing to grant a driver’s licence. If such a decision has a negative impact on the individual, that individual has the right to challenge the administrative decision made.

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13
Q

Private Law

A

This category of law deals with disputes whose result impacts the parties to the dispute only. Examples include contract law and Negligence suits involve disputes between two or more parties. The result of that dispute in either case is only relevant to the parties in the dispute and no one else.

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14
Q

Laws ideals

A

Certainty
Flexibility
Accessibility
Fairness

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15
Q

The law changes regularly because of:

A

political change,
the need to fix problems with the law

changing community values

pressure from lobby groups

changing technology

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16
Q

Law and Justice

A

Justice can be understood as fairness, such as fair compensation or punishment, a fair decision or a fair distribution of resources. The notion of fairness has influenced the development of business law in many ways. The relationship between law and justice may not be necessary, but it is desirable.

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17
Q

There are three types of justice:

A

Distributive justice

Procedural justice

Retributive justice

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18
Q

Distributive Justice:

A

Is concerned with the fair and proper distribution

of wealth, resources and power.

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19
Q

Retributive Justice

A

Concerned with the issue of the appropriate response to wrongful behaviour.

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20
Q

Procedural Justice.

A

Ensuring that the parties to a civil dispute or criminal prosecution receive a fair hearing.

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21
Q

Law and ethics

A

A legal choice is one that complies with the law; an ethical choice is one that is recognised as ‘good’ and ‘right’. Law and ethics generally correspond, but a decision that is legal may not be ethical, and
a decision that is ethical may not be legal.

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22
Q

Law and politics

A

While the law is more than merely politics, the law is shaped and influenced by power and politics. Particular laws are usually the expression of a political ideology. Legislation is made by politicians to implement government policies and achieve political objectives.

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23
Q

Civil law (Roman law)

A

Civil law (Roman law) legal systems are the most common type of legal system. The primary source of law is legislation in the form of codes, statutes and constitutions. Case law is generally not recorded and is not recognised as a source of law. Examples include France, Germany, Russia, China, Japan, Thailand and Korea.

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24
Q

Common law legal systems

A

Common law legal systems are based on the British legal system. The two main sources of law are legislation and case law. The judiciary is much more powerful and influential in common law countries than in civil law countries. Examples include the United Kingdom, Australia, Canada and New Zealand.

25
Q

The Australian Legal System

A

Australia is a representative democracy with a common law legal system. It is a constitutional monarchy.

26
Q

The six key characteristics of the Australian Legal System

A 
Responsible Government 
Liberal Democracy 
Common Law Legal System
Constitutional Monarchy 
Federation 
Separation of Powers
Responsible Government
27
Q

Liberal democracy

A

Laws are made by, and the executive government consists of, elected representatives who exercise their power subject to the rule of law and to the various Federal and State constitutions.

28
Q

Common law legal system

A

Our legal system is based on the British legal system, and can be contrasted with other forms of legal system such as the civil law legal system.

29
Q

The common law legal system has two sources

A

Case law

Statute law

30
Q

Case law

A

Also known as judge-made law and common law. It includes decisions made by Courts on a State or Federal level

31
Q

Statue law

A

Law made by parliament by way of legislation which is also known as Statute law. This also includes all laws made by parliament on a State or Federal level.

32
Q

Constitutional monarchy

A

The Head of State of the Commonwealth of Australia and of the various States is Elizabeth II, Queen of Australia. Representatives of the Head of State are Governor-General (Federal) and Governors (State).

33
Q

Federation

A

Saw the introduction of a Federal (Commonwealth) level of Government. This was in addition to the already existing State Governments (known as Colonies before Federation).
So after Federation, we have government on two levels: Federal and State. They operate side by side and subject to the provisions of the Australian Constitution.

34
Q

Separation of powers

A

Theoretically, the legislature, the executive and the judiciary should as far as possible remain functionally separate. : Laws are made by a parliament (legislature); administered by an Executive Council or Governor in Council (executive); and interpreted and applied to particular cases by a court system (judiciary)

35
Q

Separation of powers applied to Australia

A

Members of the executive (the Prime Minister / Premier / Chief Minister and the other Ministers) are also members of the legislature (the Parliament) which means that the legislature and the executive are not strictly separate.

36
Q

The 3 arms of powers

A

Legislature
Executive
Judiciary

37
Q

Legislature

A

The arm of government which makes the law. This includes every member sitting in a House of Parliament who has the right to vote on whether proposed law should become law.

38
Q

Executive

A

The arm of government which administers the law (puts it into practice.) The executive arm of Government is the government of the day which implements the government’s policies

39
Q

Overlap separation of powers

A

The executive generally forms the majority in the Lower House (Federal of State.)
The executive arm of government is part of the legislature. There is therefore an overlap between the legislative and executive arms of government.

40
Q

Responsible government

A

Government ministers are responsible to Parliament. The Ministers comprising the executive are elected representatives who are also members of and are answerable to the legislature

41
Q

The Judiciary

A

The court system in Australia (Federal and/or State.) The judiciary has the power to interpret and apply the law to particular cases. It is from this arm of government that the common law derives.

42
Q

The Australian Constitution Federal/ State Relations

A

The issue of which powers would be handed over to the Federal Government (either exclusive or concurrent) and which would be retained by the States is known as the Division of Powers.

43
Q

Division of powers

A

7/3/19

44
Q

Section 51 of the Constitution of Australia

A

It grants legislative powers to theAustralian (Commonwealth) Parliament. There are 39 subsections to s 51, each of which describes a “head of power”. The Commonwealth legislative power is limited to that granted in the Constitution.
“residual powers“ remain with the states.

45
Q

Residual powers

A

anything not expressly identified in the constitution is a residual power of the states. The powers which are NOT mentioned in the Constitution are powers which the Commonwealth Government cannot exercise. They remain with the States

46
Q

Federal/State relations

A

If the Federal Parliament has not legislated in relation to any of the matters listed in s 51, then that matter remains within the regulatory authority of the States. If a State parliament has made a law in relation to one of these matters, and the Federal Parliament makes a law in relation to the same matter, then s 109 of the Australian Constitution provides that the latter shall prevail and the former shall, to the extent of the inconsistency, be invalid.

47
Q

Exclusive powers

A

those powers exercised only by the Federal Parliament.

48
Q

Concurrent powers

A

most of the powers granted to the Federal Parliament under the constitution are concurrent powers with the states.

49
Q

s109

A

Federal and State laws can operate validly and independently of each other unless there is a clash between them. If there is s 109 provides that Federal Law will prevail.

50
Q

Levels of Government

A

Commonwealth
State
Local Government

51
Q

Commonwealth

A

which derives its powers from the Australian Constitution in the form of exclusive and concurrent powers.

52
Q

State

A

which derives its powers from the Constitution in the form of concurrent powers and which retains all powers NOT mentioned in the Constitution. These are referred to as residual powers.

53
Q

Local Government

A

which is established by State and Territory Governments and as such they are a branch of these Governments rather than a separate level of Government in their own right.

54
Q

Changing the Constitution

A

The proposed amendment must be passed by an absolute majority of both Houses of Parliament, and
be put to the Australian voters in the form of a referendum, and passed by: a majority of voters, and a majority of the States and receive Assent

55
Q

Executive power

A

Executive power is the power to administer the law, i.e. carry on the business of government and maintain order and security. According to the Australian Constitution, the executive power of the Commonwealth is vested in the Queen and exercisable by the Governor-General as the Queen’s representative.

56
Q

The Governor-General is to act on the advice of the

A

Federal Executive Council consisting of the various Ministers, members of Parliament appointed by the Governor-General on the advice of the Prime Minister to administer the various departments of the Federal public service.

57
Q

The executive government

A

7//3/19

58
Q

The public service

A

If a person is not happy with a decision made by a government department or agency, they may be assisted by the ombudsman, freedom of information legislation, the Administrative Appeals Tribunal, and/or judicial review.

59
Q

Delegated legislation

A

Often the parliament will pass legislation setting out the overarching principles and objectives of a particular regulatory scheme, but then delegate to a branch of the executive government the authority to make the detailed rules, regulations or by-laws, referred to collectively as delegated legislation.

Commercial Law (15 decks)

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