BUSN 2400: Business Law Course Overview

• BUSN 2400 is a course in Business Law

Course Lecturer

• The lecturer for this course is John Tretola
• Contact information for John Tretola:
• NDS15, Room 2.07
• Phone: (02) 8204 4249
• Email: [email protected]

Course Blueprint

• Week 1: The Australian Legal System
• Week 2: Statutory Interpretation, Contract Law Formation Agreement
• Week 3: Contract Law Formation Intention & Consideration; Consent & Capacity
• Week 4: Contract Law Terms
• Week 5: Contracts: Discharge and Remedies
• Week 6: Tort of Negligence
• Week 7: Tort of Negligence
• Week 8: Consumer Law-Misleading Conduct & Unconscionable Conduct; Unfair contract terms; Statutory guarantees
• Week 9: Consumer Law- Unsafe Goods; Manufacturer's Liability; Data Privacy
• Week 10: Employment Law & The Law of Agency
• Week 11: Business Organisations- Partnerships & Companies
• Week 12: Choice of Business Entities & Business Ethics
• Week 13: Revision

Course Assessment

• The course has three pieces of assessment:
• Early Assessment Task: Case Summary of a Contract Law case (5%), due week 4, March 14, 11:59 p.m.
• Online Quizzes: (20%= 4 x 5% each)- wks 3, 4, 6 & 7- due 11.59pm Thursday of that week
• Assignment: (25%) due at end of week 10, (Sunday 1 May 2025)

Lectures

• There is one 2-hour face-to-face lecture each week
• There are different tutorial classes per week and these are held on (to be advised)

Week 1: The Australian Legal System

• Explored in chapters 1-3

Law and the Business Person

• Laws are derived from personal life, business activities, media and popular culture
• Very few aspects of life are not regulated by law

What is Law

• Law is a system of rules that a country or community recognizes as regulating the actions of its members
• The law can be enforced by imposing penalties
• Business law is a system of rules regulating businesses and business activities that is created by the state
• Business law is enforceable by prosecution or litigation
• The function of legal rules is to guide human behavior
• To define acceptable standards within the community
• Facilitate punishment for those that infringe those standards
• Adapt to changing circumstances and values

Rule of Law

• The principle that every person and organization, including the government, is subject to the same laws
• The law is universally applicable to all
• The law is fairly enforced
• The law is reasonable and predictable

Classification of Legal Systems: Common Law vs. Civil Law

• Common law countries base their legal system on that of England
• Common law countries include: Australia, New Zealand, US, New Zealand, Canada, India, and many Commonwealth countries
• Common law is a mixture of statutory law, judge-made law, and customary law
• Litigation is largely run by the parties and judges play an adjudicatory role
• The doctrine of precedent plays a key role in common law systems
• Civil law countries encapsulate their laws in 'codes'
• Laws are typically contained in comprehensive written documents known as 'codes', e.g., Uniform Commercial Code (US)
• The judge plays more of an active, inquisitorial role
• There is no doctrine of precedent

Categories of Law

• Public law includes constitutional, administrative, and criminal law
• Private law includes tort, contract, competition & consumer, property, commercial, employment, and company & partnership law
• Criminal law establishes criminal offenses and the penalties for their infringement
• The dispute is between the state and an individual
• Civil law regulates dealings between private parties and the dispute is between two or more individuals
• Domestic law regulates persons within a jurisdiction, e.g. Australia
• Public international law regulates the relationship between states, e.g. the European Union and Australia
• Private international law determines which state's law will be applied in a dispute

Key Characteristics of the Legal System

• The Australian legal system is a liberal democracy where laws are made by elected representatives
• The executive government consists of elected representatives and exercises its power subject to the rule of law
• Australia has a common law legal system based on the British legal system
• Australia is a constitutional monarchy with Elizabeth II as the Head of State
• Australia is a federation with a national (Federal or Commonwealth) government and State governments
• State governments share powers with the Federal government

Primary Sources of Law

• Primary sources of law are legislation (statutes from the Parliament) and case law (law made by judges in the courts)
• The one common origin is the English legal system

Brief Legal History of Australia

• In 1717, English jails were overcrowded, and the Imperial Parliament passed a statute permitting judges to commute death sentences of prisoners to exile to penal colonies
• The American Revolution in 1765 forced the British Government to locate alternative destinations to dispatch convicts
• English explorer Captain James Cook, in 1770, 'discovered' Australia and claimed its eastern coast for England
• In 1786, Orders in Council designated New South Wales as a new penal colony
• The First Fleet (11 ships) departed England in May 1787, carrying 717 convicts and 290 free persons
• The First Fleet arrived in Botany Bay on January 26, 1788
• Captain Arthur Phillip became the first Governor of New South Wales

Reception of English Law in Australia

• Australian Courts Act 1828 was passed by Imperial Parliament
• All laws and statutes in force at that time were deemed to apply in New South Wales and Van Diemen's Land insofar as they were applicable to the conditions
• Colonial Laws Validity Act 1865 was passed by Imperial Parliament, confirming the supremacy of English law
• Colonial law would not be invalidated unless inconsistent with an English statute that expressly or impliedly extended its operation to the colony

Terra Nullius

• British settlers applied the doctrine of Terra Nullius (literally 'empty land') to justify their ownership of the land
• Under the belief system, land was considered uninhabited, unless people in an area were civilized, i.e. they had a recognisable legal system in place
• Terra Nullius applied in Australia until 1992
• The doctrine of Terra Nullius was rejected by the High Court in the landmark decision of Mabo v Queensland (No 2) (1992) 175 CLR 1
• Land rights of Indigenous Australians were also partly recognised
• The recognition paved the way for Native Title legislation
• The Wik peoples case (1996) made it clear that a pastoral lease did not extinguish any native title

Changing Law

• The law changes regularly because of political change, the need to fix problems with the law, changing community values, pressure from lobby groups, and changing technology

Federation

• Constitutional conventions were held amongst the colonies during the late 19th Century
• Agreement was reached to federate, and the Imperial Parliament passed the Commonwealth of Australia Constitution Act 1900
• The Act, and the new federation, came into force on 1 January 1901 and is the Commonwealth Constitution
• Federation imposed a power-sharing structure between the Commonwealth and State Governments
• The Constitution stipulates the structure of the government

Key Sections of Commonwealth Constitution Act 1900

• Section 51 sets out the legislative powers of the Commonwealth Parliament i.e. the heads of power under which the federal Government can make laws
• Examples: Trade and commerce (s 51(i)); Taxation (s51(ii); Postal, telegraphic, telephonic, and other like services (s 51(v)); Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth (s 51(xx)); Marriage (s 51(xxi)); Immigration and emigration (s 51(xxvii)); External affairs (s 51(xxix))
• Section 109: Tie breaker rule, where inconsistency exists between a State law and a Commonwealth law. State law is invalid to the extent of the inconsistency and federal law prevails
• Section 128 provides that the Constitution can only be amended by referendum
• Proposed changes must be passed by an absolute majority in both houses of Parliament (limited exception applies)
• Referendum succeeds if approved by a majority of voters in a majority (4/6) of States
• There have been 19 referenda in which 44 questions have been put, but only 8 have been successful

Separation/Division of Powers

• Separation of powers is a system where laws are made by a parliament, administered by the executive, and interpreted and applied by the judiciary
• Responsible government means that the Ministers are elected representatives who are members of the legislature, and are answerable to that legislature
• Doctrine stipulates the three arms of government: the legislature, executive and judiciary - are separate with exclusive rights and powers
• Three kinds of legal power exist in any country
• Legislative: Power to make the law
• The Executive: Power executing the law
• The Judicial: Power applying and enforcing the law

Separation of the Powers

• Power to make law is vested in the respective parliaments and its delegates, and subject to the Constitution
• Power to execute and administer the laws, is vested in the government and ministers/government departments
• Power to interpret and enforce the law, is vested in the courts

The Division of Powers

• Describes the allocation of jurisdictional power between the Commonwealth and State governments within the Australian federal system
• Australia is a federal system owing to the nature of legislative powers shared between the Commonwealth and State parliaments
• Exclusive powers are exclusive to the Commonwealth Parliament
• S 90 for power to make laws on customs and excise duties
• S 51 (xii) (power to legislate with respect to "currency, coinage, and legal tender)
• Concurrent powers are those shared by both the Commonwealth and State Parliaments
  • S51(ii) gives power to makes laws with respect to taxation, but operation of s 109 applies in the event of any inconsistency
• Residual powers are those powers that remain the responsibility of the States, such as transport and education

Federal/State Relations

• Federal Parliament only exercises exclusive powers and includes: Customs, Defence, Currency, Territories
• Federal and State Parliaments have concurrent powers: Taxation, Marriage, Banking, External affairs
• State Parliaments only exercise residual powers: Education, Property, Crime, Health

Common Law

• Depends on the context in which the term is used
• Can be seen as system of law based on the English system
• Common law is a mixture of statutory, judge-made and customary law
• Can be seen as a source of law describing the origin or source of particular law
• e.g. distinguish from statute law, delegated legislation and international law

Australian Court Hierarchy

• The High Court of Australia forms the top of the hierarchy
• Then State/Territory Courts and Commonwealth Courts
• State/Territory Courts include Supreme Court, Intermediate Courts (County/District Courts), Lower Courts (Local/Magistrates Court)
• Commonwealth Courts include Federal Court and Family Court, Federal Magistrates Court

Federal Court Hierarchy

• High Court of Australia (Appellate) located at the top
• Hgh Court of Australia (Original jurisdiction)
• Full court of the Federal Court of Australia and the Family Court of Australia (Appellate)
• Federal Court of Australia and Family Court of Australia (Original jurisdiction)
• Federal Circuit Court

Court Processes

• Dispute resolution in modern Australian courts uses the adversarial system
• The parties 'fight it out' until one of them is a winner
• The referee is an impartial judge
• Parties have complete responsibility for the conduct of their case within strict rules

Doctrine of Precedent

• Latin maxim: stare decisis ('to stand by things decided')
• Courts are bound to follow previous decisions from courts higher in the judicial hierarchy
• Cornerstone is the doctrine of precedent
• Requires cases to be treated in a similar manner
• Influenced by the court hierarchy
• Promotes certainty, equality, efficiency, and the appearance of justice
• Supreme Courts, Courts of Appeal and High Court are the only courts of record for formally recorded decisions in writing
• Binding precedent applies to courts lower in the chain in the same hierarchy
• It is necessary for lower courts to observe decisions of higher courts in the same hierarchy where the facts are similar
• Persuasive precedent applies to courts in other hierarchies who do not have to follow higher courts in different jurisdictions
• Decisions of higher courts in other jurisdictions, will be of persuasive value
• Judges can distinguish a decision by a higher court, even within the same jurisdiction, by finding material differences

Ratio Decidendi

• Translates as 'reason for deciding,' i.e., judge's reason(s) for the decision they reached
• Focuses on determining binding_legal rules from those that are, at best, persuasive

Obiter Dictum

• All other legal statements which provide some context are known as obiter dictum
• Statements made in obiter are not binding, statements from superior courts are often highly influential for courts of equal or lower standing

Proof

• Burden of proof is on the party beginning the case to prove their case
• Civil cases require standard of proof of the balance of probabilities
• Criminal cases require standard of proof of beyond reasonable doubt
• The People v OJ Simpson (1995) Californian Superior Court demonstrates the beyond reasonable doubt standard of proof and acquits OJ Simpson of murder

Structure of Parliament

• In British Parliament: Crown=Queen, Upper House=House of Lords, Lower House=House of Commons
• In Federal Parliament: Crown=Governor-General, Upper House=Senate, Lower House=House of Representatives
• In State Parliaments: Crown=Governor, Upper House=Legislative Council, Lower House=Legislative Assembly
• In Territory Parliaments: Crown=Administrator, Upper House=N/A, Lower House=Legislative Assembly

Parliament Chambers

• Members of the government sit to the right of the Speaker or President while other members sit to the left
• Members of minor parties and Independents sit on benches at the curve of the chamber
• Seating area above chambers or press gallery is set aside for the media
• Visitors galleries allow the public to view proceedings
• Sound Proof sections are for the public, and is for special interest groups
• TV cameras and microphones are used to broadcast proceedings

Lower House

• House of Representatives provides equal representation for people of Australia
• Australia is divided into electorates (about 151) which each elect a representative
• The political party with the majority of members forms executive government
• Prime Minister is traditionally a member of the lower house

Upper House

• Senate is the ‘States’ house’ and protects the rights of the States
• There are an equal number of Senators from each State (12) to protect the interests of the less populous States and the Territories are represented by 2 Senators each
• The Constitution recognised potential favour for popular States in the Lower House so composition of the Upper House addressed that risk by giving rights to other states