Welcome to Introduction to
Business Law
Lecturer name : Paul Milne (Paul)
Email : buslaw@live.com
Outline of today's lecture
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Introduction & classroom rules
Course outline and unit guide
homework & tutorial questions
The Australian legal system
Sources of law
The Australian Constitution (next week)
Classroom Rules
• No talking to others during class unless
asked to do so by the lecturer.
• No using cell phones during class.
• No sleeping during class.
• Be polite and courteous to the lecturer and
other students.
Course outline
– Prescribed Textbook – page 2
– Unit description - page 3
– Learning and assessment – page 4-7
– Course assessment – page 8
– Lecture and Tutorial Schedule – p 17–19
Questions due for next week’s
tutorial
1.
2.
3.
4.
5.
6.
What are the two main sources of law in Australia? How do
Courts make law?
What is the rationale ( reason) for the doctrine of precedent
system in Australia?
Explain the basic court structure in Australia
What is the role and responsibility of the High Court of
Australia and ( if any ) the Privy Council?
What is meant by the literal , golden and mischief rules
What are the functions of tribunals for settling disputes and
why may some disputes be better settled outside of Court?
Homework question due for the
tutorials next week.
• Question : “what does the word “law” mean
to you?
Give an example of a time when the law has
influenced your life?” – 100 words
maximum (may be hand written or typed)
Where to get the lecture notes
• “Lecture notes (PPs) posted on the OUP
(Oxford University Press) website:
• Students can access the website via the following
URL:
• http://www.oup.com.au/titles/higher_ed/law/com
mercial__and__business_law/9780195553536
• Students should follow click on the 'Student
Resources' tab.
1
The Australian Legal System
© Oxford University Press, 2007. All rights reserved.
Learning Objectives
• Understand the way that the Australian
system operates having regard to our
common law heritage and federal system of
government
• Understand the basic Court structure at both
State and Federal levels
• Understand the Sources of our Laws and the
operation of the Doctrine of Precedent.
THE HIERARCHY OF COURTS IN AUSTRALIA
Tribunals
• Functions of tribunals
– Jurisdiction is narrow to a particular area of the law i.e.
insurance law.
– Tribunals are designed to provide a speedy and cost
effective dispute resolution system.
– A tribunal can be heard by experts who have expertise
in their relevant field of work.
• Advantages of tribunal proceedings.
– Often cheaper than Court
- Easy access and faster than the Court
– Expert knowledge ( see above)
© Oxford University Press, 2007. All rights reserved.
Sources of Law
Three regimes:
1. common law (judge-made law)
eg. CBA v Amadio (1983) 151 CLR 447( see p9-10)
2. statutory law (Law made by Parliament) both:
federal eg. Trade Practices Act 1974 (Commonwealth)
and
state eg. Goods Act 1958 (Victoria State)
3. sources arising from the globalisation of contract.
Sources of Law cont…
The Common Law: There are 3 Meanings ( p8 course book)
1-System of law from England
2-case law – principles or rules from cases decided by
judges also called “Ratio Decidendi” see Mabo’s case
at page 9.
3-common law is different from the law of equity.
The doctrine of precedent ( The foundation on which
our common law system is based)
“Like cases should be decided alike”
Why do we have the doctrine of Precedent ?
• rationale: certainty, predictability and consistency
Sources of Law cont...
Equity:
• The law of equity aims to prevent unconscionable (unfair)
conduct. In other words, conduct that is not based on good
conscience.
- The Law of equity was developed at a time after the
common law to provide more flexibility than the common
law and also remedies that the common law could not
provide.
- The common law interprets or explains the law that is made by
parliament. However , this law was applied strictly by judges and
became less flexible and often did not have appropriate remedies.
- In the past the Law of Equity operated separately from the
Common Law but today the two systems are used by the same
judge in the Court.
Sources of Law cont…
Legislation - our major source of law today enacted
at both federal and state level by parliament.
Legislation means the law that is enacted (created)
by Parliament and is often called an “Act”
-The major source of commercial law is found in
commonwealth and state regulation ( which called
“legislation” or “statute law”)
• note the relationship between common law and statute
If the common law (judge made law) is inconsistent with
legislation then legislation overrides the common law.
Question !
Why, would Legislation ( Act) be preferable
to the Common Law ( judge made law)
Ask : Does legislation override the Common
law?
Answer : Yes , if legislation and common law
conflict with each another then legislation
remains.
Sources of Law cont ...
Legislation - rules of statutory interpretation:
When the Courts or judges are interpreting
legislation they make seek guidance to interpret or
find out what the words of a statute means.
Example : An Act may have a definition section to
define particular words or a precedent (or legal
principle) from a previous case may be useful
Examples :Acts Interpretation Acts, Hansard reports,
explanatory memoranda
The common law rules- A guide for the Courts to
interpret Legislation (statutory interpretation)
(i) Literal rule- The words of a statute are to be interpreted
exactly as it is written in the statute.
(ii) golden rule- Where the literal interpretation of
legislation would lead to an absurd result , the Court
may take a more sensible approach and consider the
original intention of the legislation.
(iii) mischief or purpose rule – where the meaning of
legislation is ambiguous ( unclear) the court may
consider parliaments overall intention and the social
purpose of the statute before it was passed
The Court asks “what mischief was the statute designed to remedy?
Sources of Law cont ...
Delegated (subordinated) legislation:
- Delegated or subordinated legislation is where Parliament
gives a limited amount of their powers of decision making
of detailed regulations to a subordinate body
- Usually for technical legislation or those which change
frequently.
Examples :
Rules; regulations; orders; ordinances; by-laws; statutory
instruments; notices; proclamations
Law in a global context
• International law – International treaties and
conventions are incorporated or included
into Australian domestic law through
commonwealth or state legislation.
• Example : International arbitration Act
(1974)
• See page 15 for more examples.