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    • HI 6027 - Business and Corporations Law  1
    Week 1
    HI6027
    BUSINESS AND CORPORTIONS LAW
    Course Overview
    Introduction to Australian Legal
    System
    PART 1
    Chapter 1
    Legal Foundations
    3
    Course Overview
     Introduction to the course
     Outline the assessments
     Outline the importance of tutorials and
    preparation for tutorials.
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    What is law ?
    ―Law is basically a device to regulate the
    economic and social behaviour of society.‖
    Law has been defined as a set of rules,
    developed over a very long period of time,
    regulating people‘s interactions with one
    another.
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    Sources of law
     Two main sources of law in Australia:
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    Common law
     Common law is the law created by the reported
    decisions of judges.
     Common law is also known as:
     case law;
     precedent;
     unenacted law.
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    Statute law
     Statute law are the laws created by State and
    Federal parliaments.
     Statute law is also known as:
     legislation;
     Acts of Parliament;
     enacted law.
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    Statute law
     Statute law also includes laws made by other
    government bodies.
     This is known as delegated legislation and takes
    the form of:
     by-laws;
     orders;
     rules and regulations.
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    Common law v. Statute law
     Today, statute law is the most important source
    of law as the great majority of law comes from
    Parliament.
     Statute law overrules common law in the event
    of a clash between the two.
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    Common law system
     There are many different legal systems
    throughout the world.
     It is possible to roughly classify the world‘s legal
    systems into 2 main groupings under common
    law: civil law and criminal law systems.
     Both impact on business.
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    Common law system
     A basic classification of laws under the common
    law system in Australia:
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    Civil v. criminal law
     Civil – an action brought by one individual
    against another.
     Emphasis is on remedies
     Criminal – actions are brought by the Crown
    (state) against an accused individual.
     Emphasis is on punishment
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    Major and minor types of laws
     An overview of the main types of laws in the
    English legal system:
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    Statute law
     English law has come from the Parliament in the
    form of statutes.
     While statue law assumes the existence of
    common law, in the event of a conflict between
    common law and statute law, statute law will
    prevail.
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    Origins of Australian Law
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    Origins of Australian law
    The doctrine of reception
     Colonies established by England were classified as
    either:
    i  Territory acquired by treaty or military victory, in
    which case the existing institutions were retained;
    or
    ii Territory that was terra nullius—that is, the
    inhabitants were not recognised and English
    ideas of justice and the English legal system
    applied.
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    Origins of Australian law
    Native title
     No land rights under common law because of the
    type of society in which Aboriginals lived.
     No recognition was given to the rights of the
    Aboriginal people and the land was not owned by
    any group of people.
     In Mabo v. Queensland (No. 2) (1992)
    the High Court acknowledged that Australia had not
    been terra nullius and that common law recognises
    a form of native title to land.
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    Origins of Australian law
    Customary law
     The Mabo decision related specifically to Aboriginal
    land rights.
     In Walker v. New South Wales (1994) the court
    discussed the validity of Aboriginal customary law
    relating to criminal cases. The High Court decided
    that customary law had been extinguished by the
    criminal legislation passed by the states and
    territories.
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    Origins of Australian law
    Federation 1901
     The Commonwealth of Australia Constitution Act
    1900 (Imp) — the
    six colonies became six states and
    the federal system of government
    was created.
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    Origins of Australian law
    Federation 1901
     A new level of government established
    — a national parliament with jurisdiction set down in
    the Commonwealth Constitution (with some
    exclusive powers).
     State parliaments had jurisdiction within their own
    borders on any matters not specifically reserved for
    the Commonwealth (residual powers — customs,
    currency, trade, military).
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    From federation to today
    1901 to 1986
     The Statute of Westminster 1931 (Imp)
    — extended the operation of the Colonial Laws
    Validity Act to Acts of the federal Parliament.
     The Australia Act(1986) and the Australia (Request
    and Consent) Act 1985 (Cth)
    — marked the end of constitutional dependence on
    the British system.
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    Commonwealth & state powers
    Legislative Powers:
     exclusive powers of the Commonwealth —for
    example, defence and customs, where only the
    Commonwealth can legislate;
     concurrent powers, forming the bulk of the
    Commonwealth‘s powers, with both the
    Commonwealth and the states having the power
    to legislate in these areas; and
     residual powers, which are powers exclusive to
    the states as the Constitution is silent on
    particular areas—for example, education and
    transport.
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    Commonwealth & state powers
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     Where there is any inconsistency between
    laws made under the Exclusive Powers
    provisions of the Commonwealth Constitution
    and a State, section 109 provides that the
    State laws, to the extent of the inconsistency,
    shall be invalid.
     Most of the Commonwealth powers are held
    concurrently (shared) with the states (s 51).
    Commonwealth & state powers
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     To change the Constitution requires a referendum
    – which is set out in section 128.
     Approved by an absolute majority of both Houses
    of Parliament or passed twice in one house.
     Referendum (vote) approved by majority of the
    voters in at least four states.
     The Governor-General gives Royal Assent.
    Commonwealth & state powers
    Of the 44 proposals to change the Constitution
    – only 8 have been successfull (see table 2.4)
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    Separation of powers
     The doctrine of separation of powers seeks to
    confine the exercise of the legislative,
    executive and judicial branches of government
    exclusively to their respective institutions
    (Parliament, Cabinet and the courts).
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    Separation of powers
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    Separation of powers
     Under the doctrine of separation of powers, the
    legislature is the supreme law-maker but in
    reality there is no separation between the
    executive and the legislature.
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    The courts
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    The courts
    Original and Appellate Jurisdiction
     A court‘s jurisdiction is established by its
    enabling Act.
     Original jurisdiction is the authority to hear a
    case when the case is first brought before a
    court.
     Appellate jurisdiction is the authority of a court to
    hear appeals from decisions of courts of a lower
    level in the same court hierarchy.
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    State court system
    Inferior (Magistrate’s or Local) Courts
     Inferior or local courts are located at the bottom
    of the Court Hierarchy, possessing original
    jurisdiction only.
     Generally presided over by a Magistrate.
     The aim of these courts is to settle disputes
    locally, quickly and cheaply.
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    State court system
    Inferior (Magistrate’s or Local) Courts
     There is less emphasis on formality than in
    higher courts.
     Still expected to follow procedural
    rules and the laws of evidence.
     The jurisdiction of local courts differ from state to
    state.
    See Tables 3.1 & 3.2
    for more details…
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    State court system
    Intermediate courts
     Form the middle level court in most hierarchies
    with original civil jurisdiction.
     In their criminal jurisdiction they deal with
    the bulk of indictable offences except for
    the more serious crimes and, in NSW,
    Victoria and WA, they have limited
    appellate jurisdiction.
    NB. There is no intermediate court in Tas, the NT and the ACT
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    State court system
    Supreme Courts
     Highest court in each State or Territory, a court of
    record, presided over by a judge.
     They have unlimited original jurisdiction in both
    civil and criminal matters but hear only most
    serious cases.
     They have appellate jurisdiction.
    • Vic, NSW, Qld, the ACT and NT have
    established separate Courts of Appeal.
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    State court system
    Specialist Courts
    There are a number of other courts, set up with specialist expertise,
    in the various states and territories. These include:
    • Family Courts (Western Australia);
    – Family Violence Court;
    – Family Matters Court;
    • Indigenous Courts;
    • Drug Courts;
    • Compensation and Work Health Courts;
    • Land and Environment Courts;
    • Environment, Resources and Development
    Court – SA;
    • Liquor Commission – WA.
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    Federal court system
    Federal Magistrates Courts
    Established in 2000 to ease the workload on other Federal Courts
    and presided over by a magistrate. Jurisdiction concurrent with
    Federal Court and Family court.
    Deals with:
     minor family law, bankruptcy, migration, copyright, industrial law
    and matters relating to competition and consumer matters ;
     applications under the Judicial Review Act;
     appeals from the AAT;
     matters arising under HREOC.
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    Federal court system
    Family Court
     Established by the
    Family Law Act 1975 (Cth).
     Exercises both an original and appellate jurisdiction
    over all matrimonial matters.
     Appeals only lie on questions of law to Full Court of the
    Family Court.
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    Federal court system
    Federal Court
    Jurisdiction established by the Federal Court of Australia Act 1976
    (Cth).
     In its original jurisdiction the court hears matters relating to
    bankruptcy,copyright,competition and consumer practices,
    intellectual property and taxation, immigration and social
    services.
     Its appellate jurisdiction hears appeals from single judges of the
    Supreme Courts of the Territories, as well as appeals from
    decisions of single judges of the Federal Court.
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    Federal court system
    High Court
    Established under s 71 of the Australian Constitution.
     Limited original jurisdiction in those cases
    authorised by the Commonwealth Constitution.
     Appellate jurisdiction in both civil and criminal
    matters arising from the State Supreme Courts
    and Federal Courts.
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    Federal court system
    High Court
     Appeals do not lie ―as of right‖.
     Approval to hear an appeal must first be granted
    by the High Court.
     The High Court is the final court of appeal within
    the Australian legal system.
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    How law is applied by
    the Courts and
    Statute
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    Rules of precedent
    A court is part of the same ‗hierarchy‘
    if it is ‗linked‘ by a right of appeal.
    The position of the court of record in the
    court hierarchy will determine whether the
    ratio is binding or persuasive.
     For example, Vic and NSW Court of Appeal
    decisions bind their Supreme Cts.
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    Persuasive precedent
    Statements of principle not strictly
    necessary for a decision and not binding
    as such (obiter) by a court of record are of
    persuasive value only.
    Decisions of courts in other court
    hierarchies are only of persuasive value
    (influence a decision).
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    Persuasive precedent
    The persuasive value of obiter or a
    decision from a court in another hierarchy
    will depend upon:
     the status of the court, and
     the status of the judge.
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    Statute law
    Statute law is made by parliament and
    subordinate bodies to which it has
    delegated legislative power.
    Statute law can last forever or until it is
    changed.
    Where statute law and common law
    conflict, statute law will prevail to the
    extent of the conflict.
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    Statutory interpretation
    With the increasing complexity of
    legislation (Statute/Acts) sometimes the
    ‗real‘ meaning of a word or phrase
    requires clarification.
    Doubt arises because of ambiguities or
    even about the operation of the Act itself
    which create problems in applying any set
    of written rules.
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    Statutory interpretation
    Courts make use of a number of statutory
    rules and common law rules.
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    Statutory interpretation
    When a dispute arises, and if the
    definitions in the Act are of no help, there
    are a number of sources of guidance for
    the courts:
     Acts Interpretation Acts (a purposive
    reading directing the courts to interpret
    legislation in such a way that it reflects the
    intention of the legislators)
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    Statutory interpretation
    Common law rules:
     The literal or plain meaning approach
    The Act is read as a whole and, if its
    meaning is plain, that is the end of the
    matter. No attempt is made by the court to
    introduce extrinsic material.
    — see Fisher v. Bell (1961)
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    Statutory interpretation
    Common law rules:
     The golden rule approach
    An extension of the literal approach, and
    is used when the plain meaning results
    in an absurdity, an injustice or an inconsistency
    with the intentions of Parliament.
    — see Lee v. Knapp (1967)
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    Statutory interpretation
    Common law rules:
     The mischief approach
    Where words/phrases are ambiguous,
    vague or uncertain, look at the state of
    the law prior to the passing of the Act
    and compare with the overall intention
    of the Act, then ask ―what mischief is
    the Act aiming to remedy?‖
    — see Smith v. Hughes (1969)
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