Introduction to Business Law PDF

Introduction to Business Law Learning Outcome 1:Explain the formation of the legal system and how laws are developed in Australia. 1-1 Law and busi...

Introduction to Business Law Learning Outcome 1:Explain the formation of the legal system and how laws are developed in Australia. 1-1 Law and business Laws and regulations exist in all countries in various forms and are paramount to protect and facilitate business and economic outcomes Laws determine what can be done and what cannot be done They protect property and other rights allowing certainty in economic pursuits 1-2 Law involved in many everyday pursuits Contracts for mobile phones Insurance contracts for travel Employment contracts Lease agreements Contract with University Buying goods and services In event of injury or damage involving; Motor vehicles Slippery floors, work accidents etc. Storm damage, bush fires 1-3 Laws that affect business Examples include Employment law Contract law Consumer law Tort Law Health and safety laws Environmental laws Criminal law 1-4  A Federation Australia today is a Federation, or a group of states with some independence and a Central Government, also known as the Commonwealth Government, that makes laws for the whole country Six States Two Territories Each has its own government 1-5 Forming a federation The six self- governing colonies decided by referendum in 1899 to adopt a national constitution The Commonwealth of Australia Constitution Act was enacted on 1 January 1901 The High Court of Australia was also established A bi- cameral parliament was set up. A lower house (House of Representatives, 151 members) and an upper house (The Senate, 12 representatives each state and 2 from each territory) 1-6 Australian Constitution Sets out powers of the Commonwealth government 1-7 The Constitution Chapter 1 the Parliament Chapter 2 The Executive Government Chapter 3 The Judicature Chapter 4 Finance and Trade Chapter 5 The States Chapter 6 New States Chapter 7 Miscellaneous Chapter 8 Alteration of the constitution 1-8 The Constitution The Commonwealth government does have some major powers set out in section 51 of the constitution. The main areas include industrial relations, consumer protection, customs, defence One of the most litigious sections of the constitution is SECTION 109 that provides that; “when a state law is inconsistent with a commonwealth law the latter shall prevail” 1-9 Commonwealth exclusive powers The Commonwealth had exclusive powers in certain matters (e.g) Customs Free trade between the states Military forces Currency Other powers were shared with the states concurrent powers The powers left with the states are known as residual 1-10  Areas of importance for state governments Health Criminal law Education Transport Industrial law Business 1-11 Examples of Areas of law made by the Commonwealth (Australian government) The Corporations Act Regulates companies Securities Laws Regulates companies listed on the Stock exchange The Competition and Consumer Act (2010) Important business legislation regulating consumer law and fair trading practices 1-12 More powers moving to the Commonwealth Government In a globalised economy in order to compete, laws need to be uniform across the country State governments have ceded powers to the Commonwealth to allow this to occur in the following example areas; The Corporations Act (regulates all companies, private and public) Securities Law (regulates companies on the stock exchange) Fair work Act (regulates working conditions, rates of pay) Australian Consumer Law 2010 (very important recent consumer protection law that substantially affects business) 1-13 Commonwealth and State Powers Prior to federation the six independent colonies had separate governments and legal systems and were reluctant to hand over their powers  The Constitution handed over some powers to the Commonwealth Government in the areas of defence, customs and excise. These are known as Exclusive powers set out in Section 51.  There are shared (Concurrent powers) in areas such as insurance, banking and industrial relations (40 shared areas set out in Section 107 of the Constitution)  Residual powers such as education, health, transport and local government remain with the states or where the constitution says nothing about it they also remain with the states. 1-14 Conflict between State and Federal Law Section 109 provides that of there is an inconsistency between state and commonwealth law the state law will be invalid and the commonwealth law will stand See Wallis v Downard Pickford HCA case of removalist and damaged goods. Qld act conflicted with Commonwealth act. Commonwealth Act prevailed. The bulk of the powers are held concurrently with the states and are set out in Section 107 of the Constitution There are 40 areas of concurrent (shared powers ) Residual powers from colonial days remain. The powers that the states had as colonies are preserved unless the constitution has expressly taken away those powers Where there is nothing referring to a power in the Constitution, the states can legislate in that area. 1-15 Australian Legal System Common law Statute Law 1-16 Common Law Case law decisions of judges in the higher courts ( State Supreme Courts and High Court of Australia) known as “judge made law” 1-17 Statute Law Laws made by parliaments, either state or federal 1-18 Jurisdiction of Courts 1. Federal Courts 2. State Courts State jurisdiction generally stops at the borders That causes problems particularly with business 1-19  How the Commonwealth government gains more power 1. Interpretation by High Court is broad 2. Tax powers and GST help negotiations as terms can be imposed on states 3. Referral, e.g.South Australia and Tasmania transferred their railways 4. Foreign obligations including treaties can allow federal legislation to prevail see Commonwealth v Tasmania HCA Case involving the Franklin River Dam in Tasmania and Unesco as a World heritage site The Commonwealth used the external affairs power in Section 51 1-20  Court System Both federal and state system are adversarial Solicitor to prepare evidence and documentation Barrister to appear in court System is expensive and the higher the court the more it costs Moves by governments to have alternative dispute resolution processes (discussed later ) have been implemented 1-21 The role of the courts Criminal Jurisdiction Civil Jurisdiction 1-22 Criminal Jurisdiction Minor offences known as summary offences Shoplifting, dangerous driving, failure to pay parking fines, Serious offences known as indictable offences Murder, rape, armed robbery, terrorism Prosecutions brought by the Crown (DPP) or other government bodies e.g. (ASIC, APRA) Onus of proof in criminal matters“Beyond reasonable doubt” 1-23 Civil Jurisdiction A civil case can be bought where a person, property or economic interests are damaged through the fault of another party Law of Torts- There are many torts, the main one being negligence. Onus of proof in a civil case “on the balance of probabilities” 1-24