BUSL250

Welcome to Business
Law!
BUSL250 Student Information
Course Convenor and Lecturer
Dr Verity Greenwood
Office: E4A Room 310
Telephone: 98507283
Email: verity.greenwood@mq.edu.au
Consultation Hours: 3.00-5.00pm Monday in office

Deputy Convenor and Lecturer
Andrew Dahdal
Office: E4A Room 317
Telephone : 98508615
Email: andrew.dahdal@mq.edu.au
Consultation Hours: 11.00-1.00pm Thursday in office
Verity Greenwood, Session 2, 2013
BUSL250 Information cont
Prescribed Textbook (required): Business Law BUSL250 compiled by
Dr Verity Greenwood and Julian Dight-custom book, Pearson
Publishers,
2013 plus ebook and access to MyLawLab.

BUSL250 Email : BUSL250@mq.edu.au
All email correspondence must be sent to this email. If highly personal
or
confidential then contact the convenor personally.

Unit website http:/ilearn.mq.edu.au/
- BUSL250 Unit Guide
- Lecture slides
- ilecture
- Online Quizzes
- Announcements
- Resources
- Discussion Forum

Verity Greenwood, Session 2, 2013
How does Business Law affect
our everyday life?
Defining the law

Law is:
the set of rules,
made by the state, and
enforceable by prosecution or litigation.

state when state in lower case-means government
generally
State if capitalised it means state within federation
e.g NSW
Verity Greenwood, Session 2, 2013
The purpose of law

Law:
resolves disputes,
maintains social order,
preserves and enforces community values,
protects the disadvantaged,
stabilises the economy, and
prevents the misuse of power.
Verity Greenwood, Session 2, 2013
Characteristics of a legal system
Accessibility
Certainty
Flexibility Fairness
Law's
ideals
Legal system
Characteristic
s
Verity Greenwood, Session 2, 2013
A Classification of Law- Criminal and
Civil
CIVIL
Examples of laws
relevant to business

Contract Law
Torts
Property Law
CRIMINAL
Examples of
business crimes
Extortion
Larceny
Arson
Stealing
Cyber attacks
On the balance of
probabilities
Beyond reasonable
doubt
Common Law
Verity Greenwood, Session 2, 2013
Inherited legal system in Australia
Now
usually
work
together
Verity Greenwood, Session 2, 2013
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;
unwritten law.
Verity Greenwood, Session 2, 2013
Common Law
comprehensive system;

remedies not discretionary;

rights are enforceable at any time subject to statute of
limitations;

valid against the whole world;
Verity Greenwood, Session 2, 2013
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.
Verity Greenwood, Session 2, 2013
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.
Verity Greenwood, Session 2, 2013
Common Law v. Statute Law
Today, statute law is the most important source of
law as the great majority of law comes from the
parliaments.


Statute law overrules common law in the event
of a clash between the two.
Verity Greenwood, Session 2, 2013
Equity
Equity developed as a result of the growing inflexibility and
rigidity of the common law.
Equity implies fairness and justice in the law.
Not comprehensive.
Remedies are discretionary.
Require prompt attention.
Valid only against those specified in court.
Follows common law; it supplements it.
Only against individuals not property.
No application in criminal law.


Verity Greenwood, Session 2, 2013
Equity
Equitable remedies include:

Injunction a court order directing a person to
stop doing something; and

Specific performance a court order directing
a person to carry out an obligation.
Verity Greenwood, Session 2, 2013
Public v. Private Law
Another classification of law is into public and private
law.

Public law the organisation of government and its
relationship with the people.

Private law deals with disputes over rights and
obligations between people or organisations.
Verity Greenwood, Session 2, 2013
Categories of law
Verity Greenwood, Session 2, 2013
The 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.
Verity Greenwood, Session 2, 2013
The six key characteristics of the
Australian legal system
Verity Greenwood, Session 2, 2013






Monarchy The head of state is the Queen

Constitutional She holds that position pursuant to
underlying constitutional arrangements
rather than by force of arms


Constitutional Monarchy
Verity Greenwood, Session 2, 2013
Key characteristics

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

Common law legal system:
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.
Law that has evolved through judicial decision and practice
Verity Greenwood, Session 2, 2013
So how did common law
become a source of law in
Australia?
Verity Greenwood, Session 2, 2013
History of the system

For tens of thousands of years prior to British
settlement there was in existence in Australia a
sophisticated and effective legal system: the
Indigenous Australian legal system.

Unfortunately, the British did not recognise or
acknowledge the Indigenous Australian legal
system upon their arrival in the 1700s.
Verity Greenwood, Session 2, 2013
Reception of English Law

Australia was declared to be terra nullius at the time the
colony was established.

Australia was deemed to have been settled by Britain
rather than conquered by Britain or acquired by treaty.

British settlers brought British law with them according to
the doctrine of reception.

CASE: Mabo v Queensland (No 2) (1992) 175 CLR 1
- The High Court acknowledged that Australia had not been
terra nullius and that common law recognises a form of native
title
to land.




Verity Greenwood, Session 2, 2013
Origins of Australian Law
Customary law
The Mabo decision related specifically to Aboriginal
land rights.

In Walker v. New South Wales (1994) the High Court
discussed the validity of Aboriginal customary law
relating to criminal cases. The court decided that
customary law had been extinguished by the
criminal legislation passed by the states and
territories.
Verity Greenwood, Session 2, 2013
Charting the history of Colonial legal systems
Date Event Effect
1787 First Charter of Justice
Established colonial courts with civil & criminal jurisdiction
1788 First colonists arrived in
NSW
Carried with them the English law
1814 Second Charter of
Justice
Established Supreme Court - civil jurisdiction & sub. structure
1823 New South Wales Act
1923 (Imp) and Third
Charter of Justice
Established NSW as full colony
established comprehensive court system
established Legislative Council appointed by the Crown
1828 Australian Courts Act
1828 (Imp)
Increased size of Legislative Council
Provided laws of England in force 1828 had effect in NSW
only if there were particular provisions to that effect
1850 Australians
Constitutions Act (No 2)
1855 (Imp)
Created colony of Victoria and allowed colonies to establish
parliaments with two houses (bicameral)
1855 NSW Constitution Act
1855 (Imp)
Changed constitutional structure to create a bicameral NSW
parliament with representatives and responsible government
1865 Colonial Laws Validity
Act 1865 (Imp)
Confirmed ability of colonial legislatures to amend own
constitutions; Declared colonial parliaments have no power
to pass laws repugnant to English laws directly applicable to
the colony
Verity Greenwood, Session 2, 2013
The Australian Constitution
1900
- The British Parliament passed the Australian Constitution Act 1900
(Imp)
The Australian Constitution united the colonies in a federation

The Commonwealth of Australia came into existence on 1 January
1901.

Each of the colonies, now States, gave up certain powers, rights and
duties to the new Federal government, and at the same time retained
their individual identities and substantial legislative authority.

Today, Federal, State and Territory governments in Australia are free
from interference by the British Parliament.

Federation involves a division of powers between the States and the
Commonwealth


Verity Greenwood, Session 2, 2013
Separation of Powers

In the Constitution, the functions of government are
allocated to different institutions:

- Legislative functions : Laws are made by a
parliament

- Executive functions : administered by an Executive
Council or Governor in Council

- J udicial functions : interpreted and applied to
particular cases by a court system

Under the Westminster system the separation of powers is
not absolute
Verity Greenwood, Session 2, 2013
The three arms of government
Verity Greenwood, Session 2, 2013
COMMONWEALTH AND STATE POWERS
Commonwealth

State
Concurrent powers
(Shared powers)
Exclusive powers
(Commonwealth only)
Residual powers
(State only)
Examples
s.52: Exclusive powers of
Parliament
s.90: Customs, excise and bounties
s.92: Free trade between the States
s.105: Taking over state public debts
s.114: Military forces
s.115: Currency
s.122: Government of federal
territories
Examples under Section
51
Insurance
Banking
Industrial Relations
Examples
Education
Local Government
Transport
Exclusive, concurrent and residual powers
Verity Greenwood, Session 2, 2013
COMMONWEALTH CONSTITUTION
Commonwealth Constitution
Parliament has
Legislative power
Cabinet has
Executive power
The Courts have
Judicial power
The Ministry
High Court
House of
Representatives
Senate
Other federal courts
Doctrine of separation of powers
Verity Greenwood, Session 2, 2013
STRUCTURE OF THE AUSTRALIAN
CONSTITUTION
33
Verity Greenwood, Session 2, 2013
FEDERAL / STATE RELATIONS
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.
eg.
Wallis v Downard-Pickford (North Queensland) Pty
Ltd (1994) 68 ALJR 395

Verity Greenwood, Session 2, 2013
THE STRUCTURE OF PARLIAMENT
Verity Greenwood, Session 2, 2013
Coming up next..






Australian Legal
System
Chapter 3
& Chapter 4
(pp.94-102)
Verity Greenwood, Session 2, 2013