You are on page 1of 13

TABL 1710

Business and the Law

TABL 1710
BUSINESS AND THE LAW

Lecturer-in-Charge: Dr Leela Cejnar

Email: L.Cejnar@unsw.edu.au

Lecture 1

Government and law in Australia


and the role of law in business

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

Lecturer: Dr Leela Cejnar


2015 The University of New South Wales
Sydney 2052 Australia
The 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

TABL 1710
Business and the Law

TABL 1710
Business and the Law
Course Overview

Course Aims
This 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

This course deals with:

the School of Business Law and Taxation)

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 law
tort law (with particular reference to negligence)
property law
consumer law
competition law
business organisations in Australia

TABL 1710
Business and the Law

TABL 1710
Business and the Law

Lecture Times:
Tuesday 9am-11am in CLB 8
Thursday 2pm-4pm in Physics Theatre
Students must attend either the Tuesday
morning or the Thursday afternoon lecture in
accordance with their enrolment

Download course materials from Moodle


See http://www.telt.unsw.edu.au

Course Outline

Tutorial Program

Lecture 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 available

Major Assignment

Course Announcements

Discussion 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


5

LEGT 1710
Business and the Law

LEGT 1710
Business and the Law
Tutorials please NOTE:

Tutorials:
Tutorials commence in Week 2 and continue to
Week 13

Tutorial allocations cannot be changed after the end


of Week 2
BUT WAIT..SEE NEXT SLIDE!

LEGT 1710
Business and the Law

LEGT 1710
Business and the Law

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

Tutorials
Primary point of contact is your tutor
Administrative queries regarding tutorials should be
directed to the School of Taxation and Business Law
office: tbl@unsw.edu.au

LEGT 1710
Business and the Law

10

LEGT 1710
Business and the Law

Tutorials
Please contact the Lecturer-in-charge if you are:
unable to attend your assigned tutorial
are not enrolled in a tutorial
having problems enrolling in a tutorial

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

11

12

LEGT 1710
Business and the Law

TABL 1710
Business and the Law

Tutorials

Topics and problems for each week are set out in the
Tutorial Guide

Each topic/problem must be prepared for discussion in


class by each student

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

13

14

TABL 1710
Business and the Law

TABL 1710
Business and the Law
Course Assessment

Course Assessment
In order to pass this course, you must:
achieve a total mark of at least 50/100
AND
attend 80% of lectures and your allocated tutorials
AND
make a satisfactory attempt at all assessment tasks

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 task
Tutors will provide you with further details in your first tutorial
b) Tutorial Blog (5 marks)
Separate Blog for each tutorial class
Will 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 mark
Mark will be for your participation in ALL class tutorials during the semester,
from weeks 2-13

15

TABL 1710
Business and the Law

16

TABL 1710
Business and the Law

Course Assessment (continued)


One Major Assignment (20 marks):

Prescribed text
Paul Latimer, Australian Business Law (CCH, 34th
edition, 2015)
Students may also use the 33rd edition, 2014

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 only
5 short questions
Students will be permitted to work together during the exercise
but they will not be allowed to refer to any materials
To be done in class tutorials in the week commencing Monday
23 March 2015
Final exam in exam period: Closed book (50 marks):

NB: Students SHOULD NOT USE EDITIONS PRIOR TO 2013,


due to significant changes in the law and to the textbook
since 2013

More details in week 12


17

18

TABL 1710
Business and the Law

Readings

Overview of Lecture Plan

Lecture 1:

Lecture 2:
Lectures 3-6:
Lectures 7-8:
Lecture 9:
Lecture 10:
Lecture 11:
Lecture 12:

Introduction Government and Law in Australia/Role of law


in business
Legislation, Statutory Interpretation and Case Law
Contract law
Tort Law
Property Law
Consumer Law
Competition Law
Business Structures (to be co-taught with Partner from EY)

See Course Schedule in the Course Outline

UNSW MID-SEMESTER BREAK 3 APRIL TO 12 APRIL 2015


19

20

TABL 1710
Business and the Law

TABL 1710
Business and the Law

Lecture 1: Overview
On completion of this week you should be able to:
9 Explain the nature of law in our society
9 Identify the different ways laws can be classified
9 Distinguish between the different types of legal systems
9 Identify the different sources of Australian Law
9 Give a brief history of Australian law and the Australian
legal system
9 Identify the main characteristics of the Australian legal
system

Lecture 1 Lecture
Sources of law
Statute law
Common law

Classification of laws
Different categories of law

Origins of Australian law

Inherited Englands Westminster system


Federation 1901
The Australian Constitution
Commonwealth/State powers
Separation of Powers
Parliament, the Executive and the Judiciary (next week)
21

22

What is law?
What is it?
 the law is a systematic set of rules to regulate
or control conduct within a society
* A set of rules that will be enforced by the
courts
1 The law declares how we must behave

A means of maintaining the balance between


personal freedom and legislative power in a
modern democracy

23

24

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 law
common law (judge-made law)

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

25

Common law

26

Equity
Equity is a body of legal principles or legal rules
developed by the Courts of Chancery (Courts of Equity)
in England

Australia inherited the Common Law system


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

England had two parallel court systems:


courts that could only award money damages
courts of "equity that could issue broader range of remedies

27

Equity

28

Equity

Courts of Equity developed as a result of the


growing inflexibility and rigidity of the common
law

There are two types of equitable remedies


sought:
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

Implies fairness and justice in the law


Does not apply to criminal law

29

30

Classification systems
in Australian law

International v domestic law


International law is concerned with regulating
the conduct between nation states

There are a number of ways that the law can


be classified, including:
international/ domestic
public/private
substantive/procedural
common law/ civil law
civil actions/criminal actions

It also applies to private individuals engaged in


international transactions

31

32

International law

International law

Two main sources of international law that can


affect business within a nations boundaries are:
customary rules of international law
and
treaties and conventions (agreements)

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)

33

Domestic law

34

Public law/Private 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)

35

Public law the organisation of government


and its relationship with the people
Private law deals with disputes between
individuals or organisations

36

Public law

Private law

Different categories of public laws:


administrative
constitutional
criminal
industrial
taxation

Different categories of private law:


contract
commercial
torts
property
business entities

37

Substantive law/Procedural law

38

Common law/Civil 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

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
39

Common law system

40

Civil 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 codebased
This is the legal system used in:

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

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)
41

42

Civil law system

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 persons
property law
commercial law

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

43

Common law system

44

Civil actions vs Criminal actions


Civil

The common law system can be further divided


into:

an action brought by one individual/entity against another


emphasis is on remedies

civil cases/actions
criminal cases/actions

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

45

Civil actions vs Criminal actions

46

Civil actions

Standard of proof

Examples relevant to business:


Contract
Tort
Property
Business Entities
Trusts

Civil action: plaintiff to prove case on the balance of


probabilities
Criminal action: prosecution to prove case beyond
reasonable doubt

47

48

Development of the
Australian Legal System (NSW)

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

1788 arrival of
the first fleet
Australia inherits
English system
of law

49

Origins of Australian law

50

Origins of Australian law

The doctrine of reception

Native title

Colonies 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

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

51

52

Establishment of
the Commonwealth of Australia

Origins of Australian law


1823 Court system and legislative council
established
1828 to 1853 development of the NSW
parliament
1901 Federation
1986 Australia Act

Federation 1901
The Commonwealth of Australia Constitution Act 1900 (Imp)
came in into effect on 1 January 1901
can 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
53

54

The Australian States/Territories


Federation 1901

Federal (or
Commonwealth)

A new level of government was established:


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

State (e.g.
NSW)

State (and territory) parliaments with jurisdiction


within their own borders on any matters not
specifically reserved for the Commonwealth (residual
powers)
55

Commonwealth/State powers

Local (e.g.
Randwick
Council)

Responsibilities include:
Defence
Foreign Affairs
Immigration/Customs
Health
Tax
Responsibilities include:
Education
Hospitals/health
Police/law and order/criminal law
Family Services
Tax
Responsibilities
include:
Road maintenance
Garbage collection

56

Commonwealth vs State powers

Legislative Powers: some examples

Inconsistency between Commonwealth and State?

Exclusive powers

Peace, order, and good government of the Commonwealth


Defence
Foreign affairs
Immigration

Commonwealth law prevails


Where there is any inconsistency between laws made
under 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

Concurrent powers
Health
Education
Tax

Residual powers
Municipal/local laws
57

58

Separation of powers
A constitutional monarchy

The Parliament

The 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

the legislature

The Executive

Separation of powers

the government/public service

The functions of government are allocated to different


institutions

Responsible government

The Judiciary (judges/ courts)


interprets the law

a form of government which is responsive to public


opinion and answerable to the electorate
59

60

Parliament

Separation of powers

See www.aph.gov.au

the legislature (Parliament) is the supreme law-maker

Australia has a Federal Parliament and State


Parliaments

in reality there is no separation between the


legislature (Parliament) and the executive
(government)

Role of Parliament
to make and change the statute law (legislation)

Under the doctrine of separation of powers

61

Parliament

62

THE FEDERAL PARLIAMENT

In all Australian Parliaments there are Houses of


Parliament

THE HOUSE OF
REPRESENTATIVES

THE SENATE

upper and lower (except Queensland and the


Territories, where there is only one House, the Lower
House)
legislation must pass both Houses of Parliament

63

The House of Representatives

Elected representatives
are called Members

Elected representatives
are called Senators

64

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

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

65

66

THE SENATE

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)

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

67

States and Territories

THE SENATE
The House of review:
a function of the Senate, directly and through its
committees, is to scrutinise government activity
the 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 operations
effectiveness of the Senate in holding the government
of the day accountable for its actions: the balance of
power

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)

69

70

71

72

THE EXECUTIVE
Governor General
Acts on advice of
Prime Minister &
Cabinet

Prime Minister & Cabinet

Government Departments

Important Government Agencies


for Business

Review of Administrative Decisions

Some key examples

Australian Taxation Office (ATO)


Australian Securities and Investments Commission (ASIC)
Australian Prudential Regulatory Authority (APRA)
Australian Competition and Consumer Commission (ACCC)

Judicial Review
Administrative Decisions (Judicial Review) Act 1977
(ADJR)
Administrative Review Tribunals

Their roles

Each agency administers a particular Act(s)


Each agency is responsible/accountable to a particular government
Minister

Freedom of Information (FOI)

Administrative Appeals Tribunal or AAT (Commonwealth)


Administrative Decisions Tribunal or ADT (State)
Right to access certain information held by government and
semi-government agencies

The Ombudsman

73

74

In-class exercise

Lecture 2:

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

75

Next week
REMEMBER!
TUTORIALS START NEXT WEEK

What is legislation
How laws are made
Statutory Interpretation
The process of using legislation to solve legal problems
What is the Judiciary
the court system
the role of the courts
Court hierarchy
Alternative methods to courts
Basic procedure in a court
Doctrine of Precedent
The process of using case law to solve legal problems
Legal Research
76