Business law week 1: The AUSTRALIAN legal system
Law is a body of enforceable rules, made by the state – the parliaments and the
courts – that is enforceable by the state. [CALC 1.20]
The defining features of law: source or where it comes from (parliaments and courts)
and enforceability by the state.
Functions of law [calc 1.30]:
Provides rules and structures for dispute resolution
reinforces basic community values (for example, change in sentiment about the
institution of marriage such as gay marriage)
promotes stability and cohesion
promotes justice and the rule of law
regulatory function
Rule of law [1.40]: people, including in the government and parliament, should be
ruled by the law and obey it and the law should be such that people will be able and
willing to be guided by it. Summary: “no one is above the law.”
Law binds commerce (buying and selling) and business to flourish.
Pre and post colonisation shape how law is enforced today.
Mabo v Queensland [No 2] [CALC 1.110]
- The high court recognised that Australia had not been terra nullius (belonging
to no one)
- Recognised concept “native title” post colonisation law: indigenous exercised
traditional rights over land before colonisation, therefore based on traditional
laws and customs, the law would recognise those rights.
- The Native title act 1993 of the Commonwealth was passed to regulate the
ongoing operation of native title rights within Aus. Legal system
Two sources of law: coming from courts (Mabo v Q) and coming from parliament
(Native Title)
Australian constitution: 1 Jan 1901 as own country and establishes Australia as a
constitutional monarchy – before it was a part of British colonies.
Federal government and then separate governments operate at individual
jurisdictions depending on state or territory. (individual laws depending on state).
Australia: Parliament, Executive, Judiciary. Parliament makes the law; executive
administers the law and judiciary applies the law in the case of dispute.
Exclusive powers: parliament makes law
Concurrent: commonwealth and parliament make law
Residual: state makes law
,Parliament: statutes, acts, legislation, sovereign law maker, dominant law maker
(source of new law)
Courts: common law, case law etc
Statutes are when bills are passed through parliament but interpreted by the courts.
Statutory interpretation [calc 1.300]: consumer law s 18(1); a person must not, in
trade or commerce, engage in conduct that is misleading or deceptive or is likely to
mislead or deceive. Rules come from statutes but how it is applied depends on
interpretation.
The law (statute law and common law) tells courts how to interpret legislation.
Primary rule: Acts interpretation Act 1901. Interpretation must best achieve the
purpose or object of the act – considers intrinsic materials (preambles) and extrinsic
(purpose or object clauses, second reading speech, explanatory memoranda)
Common law: judge made law
The doctrine of precedent: differentiates ratio decidendi (reason for deciding, legal
rule applied) and obiter dicta (statements made by the way; aren’t necessary for the
court to resolve the case; only persuasive not binding). When a precedent is applied
in case, it is applied in all future cases. common law is prospective and retrospective.
Blue arrows below indicate precedents being carried out throughout the levels of
court.
Advantages of Parliament passing legislation:
- Can act and respond at will
- Seek advice on policy and can consult with community
, - Representative; laws reflect current community needs
Disadvantages of common law:
- Cannot make a decision unless matter arises in court
- Law making powers are limited to facts and disputes before them
- Are bound by precedents set by higher courts (even if these precedents don’t
seem relevant today)
Advantage of common law: never a situation where there is no law. Fills holes in the
law.
Classify law and legal proceedings;
1. Public and private law (public: business eligibility for subsidy)
2. Substantive and procedural law (substantive = rights are, procedural = how
rights are enforced)
3. Civil law and criminal law (private rights and obligations = civil)
4. Domestic and international law (domestic = aus. Law making institutions)
Business law is any part of the law that has a relationship to the conduct of
business. It is a practical categorisation.
, Business Law week 2: The Law of Contract
- Contract life cycle: are formed, performed and terminated
- Contract is a legally binding agreement. Agreement between two or more
parties under which legal rights and obligations are created which can be
enforced, if necessary, in the courts: legally enforceable promises: “you do
this and I will do that” [CALC 2.10]
- Comes in all shapes and sizes: simple or complex, high or low value, written
or oral or a combination of the two
- Question: what would a reasonable person think or do?
- To protect individuals and small businesses from conduct that is unfair or
misleading: the competition and consumer act 2010 (cth)
What do contracts do? [CALC 2.20]
- Promote certainty
- Facilitate planning
- Establish the market value for goods and services
- Provide for formal dispute resolution, if and when required
- Allocate risk
Elements of a binding contract
- Offer + acceptance + certainty = agreement
- Intention to make a contract
- Consideration
- Capacity
- Formalities (if any)
- Genuine consent
Types of contracts
Simple contract: oral, wholly or partly in writing or may even be implied by the
conduct of the parties.
Contracts under seal: take a certain form or is invalid. Wholly in writing, must be
signed by the person executing the deed and must be witnessed.
Express contracts: either orally or in writing. All terms agreed upon and expressed in
the written contract.
Implied contracts: terms of the contract are inferred from the conduct of the parties
and the surrounding circumstances.
Bilateral contract: each party has made a promise to the other to do something at a
future date. Such a contract, consisting of a “promise for a promise” is a bilateral
contract.
Unilateral: an offer is made inviting acceptance by actual performance rather than by
a promise. For example, the Carlill case. Communication of acceptance is not
expected or necessary
Law is a body of enforceable rules, made by the state – the parliaments and the
courts – that is enforceable by the state. [CALC 1.20]
The defining features of law: source or where it comes from (parliaments and courts)
and enforceability by the state.
Functions of law [calc 1.30]:
Provides rules and structures for dispute resolution
reinforces basic community values (for example, change in sentiment about the
institution of marriage such as gay marriage)
promotes stability and cohesion
promotes justice and the rule of law
regulatory function
Rule of law [1.40]: people, including in the government and parliament, should be
ruled by the law and obey it and the law should be such that people will be able and
willing to be guided by it. Summary: “no one is above the law.”
Law binds commerce (buying and selling) and business to flourish.
Pre and post colonisation shape how law is enforced today.
Mabo v Queensland [No 2] [CALC 1.110]
- The high court recognised that Australia had not been terra nullius (belonging
to no one)
- Recognised concept “native title” post colonisation law: indigenous exercised
traditional rights over land before colonisation, therefore based on traditional
laws and customs, the law would recognise those rights.
- The Native title act 1993 of the Commonwealth was passed to regulate the
ongoing operation of native title rights within Aus. Legal system
Two sources of law: coming from courts (Mabo v Q) and coming from parliament
(Native Title)
Australian constitution: 1 Jan 1901 as own country and establishes Australia as a
constitutional monarchy – before it was a part of British colonies.
Federal government and then separate governments operate at individual
jurisdictions depending on state or territory. (individual laws depending on state).
Australia: Parliament, Executive, Judiciary. Parliament makes the law; executive
administers the law and judiciary applies the law in the case of dispute.
Exclusive powers: parliament makes law
Concurrent: commonwealth and parliament make law
Residual: state makes law
,Parliament: statutes, acts, legislation, sovereign law maker, dominant law maker
(source of new law)
Courts: common law, case law etc
Statutes are when bills are passed through parliament but interpreted by the courts.
Statutory interpretation [calc 1.300]: consumer law s 18(1); a person must not, in
trade or commerce, engage in conduct that is misleading or deceptive or is likely to
mislead or deceive. Rules come from statutes but how it is applied depends on
interpretation.
The law (statute law and common law) tells courts how to interpret legislation.
Primary rule: Acts interpretation Act 1901. Interpretation must best achieve the
purpose or object of the act – considers intrinsic materials (preambles) and extrinsic
(purpose or object clauses, second reading speech, explanatory memoranda)
Common law: judge made law
The doctrine of precedent: differentiates ratio decidendi (reason for deciding, legal
rule applied) and obiter dicta (statements made by the way; aren’t necessary for the
court to resolve the case; only persuasive not binding). When a precedent is applied
in case, it is applied in all future cases. common law is prospective and retrospective.
Blue arrows below indicate precedents being carried out throughout the levels of
court.
Advantages of Parliament passing legislation:
- Can act and respond at will
- Seek advice on policy and can consult with community
, - Representative; laws reflect current community needs
Disadvantages of common law:
- Cannot make a decision unless matter arises in court
- Law making powers are limited to facts and disputes before them
- Are bound by precedents set by higher courts (even if these precedents don’t
seem relevant today)
Advantage of common law: never a situation where there is no law. Fills holes in the
law.
Classify law and legal proceedings;
1. Public and private law (public: business eligibility for subsidy)
2. Substantive and procedural law (substantive = rights are, procedural = how
rights are enforced)
3. Civil law and criminal law (private rights and obligations = civil)
4. Domestic and international law (domestic = aus. Law making institutions)
Business law is any part of the law that has a relationship to the conduct of
business. It is a practical categorisation.
, Business Law week 2: The Law of Contract
- Contract life cycle: are formed, performed and terminated
- Contract is a legally binding agreement. Agreement between two or more
parties under which legal rights and obligations are created which can be
enforced, if necessary, in the courts: legally enforceable promises: “you do
this and I will do that” [CALC 2.10]
- Comes in all shapes and sizes: simple or complex, high or low value, written
or oral or a combination of the two
- Question: what would a reasonable person think or do?
- To protect individuals and small businesses from conduct that is unfair or
misleading: the competition and consumer act 2010 (cth)
What do contracts do? [CALC 2.20]
- Promote certainty
- Facilitate planning
- Establish the market value for goods and services
- Provide for formal dispute resolution, if and when required
- Allocate risk
Elements of a binding contract
- Offer + acceptance + certainty = agreement
- Intention to make a contract
- Consideration
- Capacity
- Formalities (if any)
- Genuine consent
Types of contracts
Simple contract: oral, wholly or partly in writing or may even be implied by the
conduct of the parties.
Contracts under seal: take a certain form or is invalid. Wholly in writing, must be
signed by the person executing the deed and must be witnessed.
Express contracts: either orally or in writing. All terms agreed upon and expressed in
the written contract.
Implied contracts: terms of the contract are inferred from the conduct of the parties
and the surrounding circumstances.
Bilateral contract: each party has made a promise to the other to do something at a
future date. Such a contract, consisting of a “promise for a promise” is a bilateral
contract.
Unilateral: an offer is made inviting acceptance by actual performance rather than by
a promise. For example, the Carlill case. Communication of acceptance is not
expected or necessary
