Welcome to Introduction to Business Law Lecturer name : Paul Milne (Paul) Email : buslaw@live.com Outline of today's lecture • • • • • • 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.