TABL 1710 Lecture 1 Semester 1 2015

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TABL 1710BUSINESS AND THE LAW

Lecture 1Government and law in Australia and the role of law in business

Lecturer: Dr Leela Cejnar© 2015 The University of New South Wales

Sydney 2052 AustraliaThe original material prepared for this guide is copyright. Apart from fair dealing for the purposes of private study, research, criticism or review, as

permitted under the Copyright Act, no part may be reproduced by any process without written permission. Enquiries should be addressed to the Head of School, Taxation and Business Law, UNSW, Sydney 22

TABL 1710 Business and the Law

• Lecturer-in-Charge: Dr Leela Cejnar

Email: [email protected]

• Other Lecturers may deliver some lectures during the semester

• Tutors

Tutors will provide their contact details to their individual tutorial classes in week 2

Consultation weeks: ONLY IN weeks 7, 8, 12 and 13

Tutors will advise their students of the times and location for their consultations in the week prior to a consultation week

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TABL 1710Business and the Law

Course AimsThis course aims to provide:• an understanding of the relationship of the law to business• an understanding of legal reasoning and argument• how to apply legal principles to problem situations that may arise in

the business context• an introduction to the legal method of writing, analysis and research• the knowledge and skills for study of other business law or taxation

courses (for those interested in undertaking other courses offered by the School of Business Law and Taxation)

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Course OverviewThis course deals with:• the Australian legal system and the similarities/differences other legal

systems• Parliament and statute law/the courts and case law• areas of substantive law relevant to business, including:

contract lawtort law (with particular reference to negligence)property lawconsumer lawcompetition lawbusiness organisations in Australia

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Lecture Times:

• Tuesday 9am-11am in CLB 8• Thursday 2pm-4pm in Physics Theatre

Students must attend either the Tuesdaymorning or the Thursday afternoon lecture inaccordance with their enrolment

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TABL 1710 Business and the Law

• Download course materials from Moodle• See http://www.telt.unsw.edu.au

Course OutlineTutorial ProgramLecture slides (on Moodle prior to lectures each week)Recordings of KEY POINTS for each lecture (on Moodle prior to lectures each week): THIS IS NOT A FULL RECORDING OF THE LECTURE – full recordings of 1710 lectures are NOT availableMajor AssignmentCourse AnnouncementsDiscussion Forum (one for each tutorial class – voluntary)Blog for PROPERTY LAW ONLY (one for each tutorial class – assessed)(The Fridge: DIY Self-Management – SCHOOL OF PSYCHOLOGY RESEARCH INITIATIVE, more information to come next week)

Students must check this site regularly

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LEGT 1710Business and the Law

Tutorials:• Tutorials commence in Week 2 and continue to

Week 13

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Tutorials – please NOTE:

• Tutorial allocations cannot be changed after the end of Week 2

• BUT WAIT…..SEE NEXT SLIDE!

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Tutorials• TUTORIAL ALLOCATIONS MIGHT NOT BE ABLE TO

BE CHANGED• Tutorials now have only limited availability – there

are vacancies only in a small number of classes

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Tutorials• Primary point of contact is your tutor• Administrative queries regarding tutorials should be

directed to the School of Taxation and Business Law office: [email protected]

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Tutorials• Please contact the Lecturer-in-charge if you are:

unable to attend your assigned tutorialare not enrolled in a tutorialhaving problems enrolling in a tutorial

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Tutorials• Students must attend their allocated tutorial and no other • Students attending other tutorials without

permission will not be marked for attendance at that tutorial

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Tutorials

• Topics and problems for each week are set out in theTutorial Guide

• Each topic/problem must be prepared for discussion in class by each student

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Tutorials• No written answers will be provided to any of the tutorial

questions• Do not ask for answers to the tutorial questions to be given out or

posted on Moodle • The purpose of a tutorial questions is not to simply learn a standard

answer • The focus of each question is on the process of how to apply your

understanding of the lecture materials to a problem situation to help you gauge your own level of competence

• Simply giving you standard written answers will defeat this purpose

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Course AssessmentIn order to pass this course, you must:• achieve a total mark of at least 50/100AND

• attend 80% of lectures and your allocated tutorialsAND• make a satisfactory attempt at all assessment tasks

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Course Assessment• Course Participation (20 marks), which is made up of the following:

a) Tutorial Presentation (5 marks): Presentations will begin in week 4 (week commencing 18 August)Tutors will place in you in groups for this taskTutors will provide you with further details in your first tutorial

b) Tutorial Blog (5 marks)Separate Blog for each tutorial classWill be available from week 9 (week commencing 4 May)Tutors will provide you with further details THE BLOG IS ONLY FOR ONE TOPIC: PROPERTY LAW

c) In-class discussions in tutorials (10 marks)A “participation” and NOT AN ATTENDANCE markMark will be for your participation in ALL class tutorials during the semester, from weeks 2-13

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Course Assessment (continued)• One Major Assignment (20 marks):

Due Monday 4 May (Week 9) This will be a Contract Law problem

• One In-class Tutorial Exercise (10 marks):15 minute CLOSED BOOK written exercise Covers Lecture Topics 1 and 2 only5 short questionsStudents will be permitted to work together during the exercise but they will not be allowed to refer to any materialsTo be done in class tutorials in the week commencing Monday 23 March 2015

• Final exam in exam period: Closed book (50 marks):More details in week 12

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Prescribed text• Paul Latimer, Australian Business Law (CCH, 34th

edition, 2015) • Students may also use the 33rd edition, 2014

NB: Students SHOULD NOT USE EDITIONS PRIOR TO 2013, due to significant changes in the law and to the textbook since 2013

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Overview of Lecture Plan

• Lecture 1: Introduction – Government and Law in Australia/Role of law in business

• Lecture 2: Legislation, Statutory Interpretation and Case Law • Lectures 3-6: Contract law• Lectures 7-8: Tort Law• Lecture 9: Property Law• Lecture 10: Consumer Law • Lecture 11: Competition Law• Lecture 12: Business Structures (to be co-taught with Partner from EY)

UNSW MID-SEMESTER BREAK 3 APRIL TO 12 APRIL 2015

2020

Readings

See Course Schedule in the Course Outline

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Lecture 1 Lecture• Sources of law

Statute lawCommon law

• Classification of lawsDifferent categories of law

• Origins of Australian lawInherited England’s Westminster systemFederation 1901The Australian ConstitutionCommonwealth/State powersSeparation of PowersParliament, the Executive and the Judiciary (next week)

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Lecture 1: OverviewOn completion of this week you should be able to:

Explain the nature of law in our society Identify the different ways laws can be classifiedDistinguish between the different types of legal systemsIdentify the different sources of Australian LawGive a brief history of Australian law and the Australian legal systemIdentify the main characteristics of the Australian legal system

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What is law?

the law is a systematic set of rules to regulate or control conduct within a societyA set of rules that will be enforced by the courtsThe law declares how we must behave

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What is it?

A means of maintaining the balance betweenpersonal freedom and legislative power in amodern democracy

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Sources of law in Australia

• Australia has adopted the English common law system

• The main types of laws in the English legal system are:

statute lawcommon law (judge-made law)

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Laws made in the parliament (enacted law)

Laws made by the courts (unenacted law)

May be changed by parliament and interpreted by the courts

May be changed by the parliament and developed by future court cases

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Common law

• Australia inherited the Common Law system from England

• Common law is the law created by the courts/reported decisions of the judges

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Equity• Equity is a body of legal principles or legal rules

developed by the Courts of Chancery (“Courts of Equity”) in England

• England had two parallel court systems: courts that could only award money damages

courts of "equity” that could issue broader range of remedies

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Equity

• Courts of Equity developed as a result of the growing inflexibility and rigidity of the common law

• Implies fairness and justice in the law

• Does not apply to criminal law

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Equity

• There are two types of equitable remedies sought:

Injunction: a court order directing a person to stop doing something; andSpecific Performance: a court order directing a person to carry out an obligation

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Classification systems in Australian law

There are a number of ways that the law canbe classified, including:• international/ domestic • public/private• substantive/procedural• common law/ civil law• civil actions/criminal actions

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International v domestic law

• International law is concerned with regulating the conduct between nation states

• It also applies to private individuals engaged in international transactions

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International law

• Two main sources of international law that can affect business within a nations’ boundaries are:

customary rules of international lawandtreaties and conventions (agreements)

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International law

• International treaties and conventions are not part of municipal or domestic law unless they are given express legislative approval by the Commonwealth Government and are ratified

• The ratification of international treaties and conventions fall within the ambit of the Commonwealth Constitution under the external affairs power: s 51(xxix)

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Domestic law

• Domestic (also known as municipal) laws come from statute or case law

• These laws regulate relations between people or organisations within the borders of the state (or country)

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Public law/Private law

• Public law – the organisation of government and its relationship with the people

• Private law – deals with disputes between individuals or organisations

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Public law

Different categories of public laws:• administrative• constitutional• criminal• industrial• taxation

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Private law

Different categories of private law:• contract• commercial• torts• property• business entities

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Substantive law/Procedural law

• Substantive law – the actual rights and duties of individuals and organisation under the law

• Procedural law – is concerned with the rules of evidence and the conduct of criminal and civil proceedings

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Common law/Civil law

• There many different legal systems throughout the world, including:

common law

civil law

moral and religious laws

customary law - rules of conduct that have been establised by long usage

- for example, accepted moral norms in indigenous societies that regulate human behaviour and connect people with the land and with each other, through a system of relationships

- are passed on by word of mouth and are usually not codified

• Common law and civil law are the two dominant systems in the western world

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Common law system

• System of law where laws are made by both the Parliament and by the Courts (ie: decisions of the judges/precedent)

• Distinct from civil law system which is ‘code-based’

• This is the legal system used in:All countries that trace their legal heritage to England as former colonies of the British empire (eg. UK, Australia, New Zealand, USA, Malaysia, Singapore, India, Sri Lanka, South Africa, Canada, Ireland)

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Civil law system

• The civil law system has its origins in Roman law

• Primary source of law is a legal code

• Written collection of rules/laws

• Tend to avoid factually specific scenarios

• All judges must follow the code – not “judge-made” law

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Civil law system

• For example, rather than being a collection of statutes or catalogue of case law, the the French Napoleonic Code (named after French emperor, Napoleon), sets out general principles as rules of law and comprises three components:

the law of personsproperty lawcommercial law

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Civil law system

• This is the legal system used in:

most of Europe (eg. France, Germany, Italy, Spain, Portugal, Greece)

some parts of Asia (eg. Japan, Korea, Thailand, Indonesia, the Philippines)

Central and South America

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Common law system

• The common law system can be further divided into:

civil cases/actions

criminal cases/actions

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Civil actions vs Criminal actions

• Civil an action brought by one individual/entity against another

emphasis is on remedies

• Criminal actions are brought by the crown (state) against an accused individualemphasis is on punishment

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Civil actions vs Criminal actions

• Standard of proof

Civil action: plaintiff to prove case on the balance of probabilities

Criminal action: prosecution to prove case beyond reasonable doubt

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Civil actions

Examples relevant to business:• Contract• Tort• Property• Business Entities• Trusts

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Criminal actions

Examples relevant to business:• Extortion• Embezzlement• Larceny/theft• Fraud• Forgery

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Development of the Australian Legal System (NSW)

• 1788 – arrival of the first fleet

• Australia inherits English system of law

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Origins of Australian law

The doctrine of receptionColonies established by England were classified as either:

• Territory acquired by treaty or military victory, in which case the existing institutions were retained

or• Territory that was terra nullius, i.e., the inhabitants

were not recognised and English ideas of justice and the English legal system applied

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Native title• In the case of Australia, terra nullius meant no

recognition was given to the rights of the indigenous people

HOWEVER• In Mabo v. Queensland (No. 2) (1992)

the High Court of Australia acknowledged that Australia had not been terra nullius and that common law recognises a form of native title to land

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• 1823 – Court system and legislative council established

• 1828 to 1853 – development of the NSW parliament

• 1901 – Federation• 1986 – Australia Act

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Establishment of the Commonwealth of Australia

Federation 1901

• The Commonwealth of Australia Constitution Act 1900 (Imp)

came in into effect on 1 January 1901can be changed by a referendum (s 128) which requires approval by absolute majority of both Houses of Australian Parliament

• The six colonies became the Commonwealth of Australia on 1 January 1901

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The Australian States/Territories

Federation 1901

• A new level of government was established:

Federal parliament with jurisdiction set down in the Commonwealth Constitution (with some exclusive powers)

State (and territory) parliaments with jurisdiction within their own borders on any matters not specifically reserved for the Commonwealth (residual powers)

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Responsibilities include:DefenceForeign AffairsImmigration/CustomsHealthTax

Responsibilities include:EducationHospitals/healthPolice/law and order/criminal lawFamily ServicesTax

Responsibilities include:Road maintenanceGarbage collection

Federal (or Commonwealth)

State (e.g. NSW)

Local (e.g. RandwickCouncil)

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Commonwealth/State powers

Legislative Powers: some examplesExclusive powers

• Peace, order, and good government of the Commonwealth• Defence• Foreign affairs• Immigration

Concurrent powers• Health• Education• Tax

Residual powers• Municipal/local laws

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Commonwealth vs State powers

Inconsistency between Commonwealth and State?

• Commonwealth law prevails

Where there is any inconsistency between laws madeunder the exclusive powers provisions of the Commonwealth Constitution and a State, section 109 of the Constitution provides that the State laws, to the extent of the inconsistency, shall be invalid

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• A constitutional monarchyThe Queen of England is the head of the Australian legal system, but her role is really only ceremonial: the Queen acts on the instructions of the elected Australian government

• Separation of powersThe functions of government are allocated to different institutions

• Responsible governmenta form of government which is responsive to public opinion and answerable to the electorate

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Separation of powers

• The Parliamentthe legislature

• The Executivethe government/public service

• The Judiciary (judges/ courts)interprets the law

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Separation of powers

• Under the doctrine of separation of powers

the legislature (Parliament) is the supreme law-maker

in reality there is no separation between the legislature (Parliament) and the executive (government)

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Parliament• See www.aph.gov.au

• Australia has a Federal Parliament and State Parliaments

• Role of Parliamentto make and change the statute law (legislation)

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Parliament

• In all Australian Parliaments there are Houses of Parliament

upper and lower (except Queensland and the Territories, where there is only one House, the Lower House)

legislation must pass both Houses of Parliament

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THE HOUSE OF REPRESENTATIVES

THE FEDERAL PARLIAMENT

THE SENATE

Elected representatives are called Members

Elected representatives are called Senators

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The House of Representatives

• Lower House• 150 Members• Each Member represents an electoral division which

contain approximately equal numbers of electors• Members elected by a system known as preferential

voting, under which voters rank candidates in order of preference

• The Government must have a majority in the House of Representatives

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The House of Representatives

• Term of candidature: up to three years, after which general elections for a new House must be held

• Main political parties represented in the House are the Australian Labor Party, the Liberal Party of Australia and the National Party of Australia

• In recent years there has been a number of independent parties and Members

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THE SENATE

• Upper House• 76 Senators, twelve from each of the six states and two

from each of the mainland territories• Term of candidature: six year terms on rotation (except

for the two senators from the territories, who have same term as Members of Parliament in the House of Representatives)

THE SENATE

• Plays an active role in making of legislation BUT cannot introduce bills into the Parliament that:

authorise government expenditure of public revenue; or bills that impose taxation

This can only be done by the House of Representatives • No constitutional requirement for the election of senators

to take place at the same time as those for members of the House of Representative, though the government usually tries to synchronise the election date

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THE SENATE

• The House of “review”:a function of the Senate, directly and through its committees, is to scrutinise government activitythe party in government has seldom had a majority in the Senate, so that Opposition and minor parties have been able to use their Senate numbers to conduct inquiries into government operationseffectiveness of the Senate in holding the government of the day accountable for its actions: the “balance of power”

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States and Territories

• Lower House is called the Legislative Assembly (or House of Assembly in South Australia and Tasmania)

• Upper House if called the Legislative Council (but no Legislative Council in Queensland or in the ACT or the Northern Territory)

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THE EXECUTIVE

Governor General

Prime Minister & Cabinet

Government Departments

Acts on advice of Prime Minister & Cabinet

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Important Government Agencies for Business

Some key examples• Australian Taxation Office (ATO) • Australian Securities and Investments Commission (ASIC)• Australian Prudential Regulatory Authority (APRA)• Australian Competition and Consumer Commission (ACCC)

Their roles• Each agency administers a particular Act(s)• Each agency is responsible/accountable to a particular government

Minister

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Review of Administrative Decisions

• Judicial ReviewAdministrative Decisions (Judicial Review) Act 1977 (ADJR)

• Administrative Review Tribunals Administrative Appeals Tribunal or AAT (Commonwealth) Administrative Decisions Tribunal or ADT (State)

• Freedom of Information (FOI)Right to access certain information held by government and semi-government agencies

• The Ombudsman

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In-class exercise

• In tutorials during week commencing 23 March• Covers Lectures 1 and 2• Closed book• Worth 10%• Students will be allowed to collaborate during the

exercise but no materials can be used

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Lecture 2:

• What is legislation• How laws are made• Statutory Interpretation• The process of using legislation to solve legal problems• What is the Judiciary

the court systemthe role of the courtsCourt hierarchyAlternative methods to courts

• Basic procedure in a court• Doctrine of Precedent• The process of using case law to solve legal problems• Legal Research

Next week

REMEMBER!

TUTORIALS START NEXT WEEK

TABL 1710 Lecture 1 Semester 1 2015

Documents

Transcript of TABL 1710 Lecture 1 Semester 1 2015