Enterprise law – week 3

1. What options are open to a Prime Minister if the Upper House continues to reject bills
passed by the Lower House?

The options that are open to the prime minister is that the Australian constitution, does not matter
which house you start in unless it is a money or taxation bill then it will start in the lower house,
majority of bills are passed in the lower house because most bills are government bills, and the
government oversees the lower house. If the upper house is not passing it then the constitutional
agreement is that there is a waiting period of 3 months to pass the bill again if the bill is rejected
again it becomes a deadlock bill, then the minister can go to the governor general and there will be
an election. The prime minister can also initiate a negotiation to the upper house.

2. What is delegated legislation, and why would it be used by any Government? Who
supervises delegated legislation?

Delegated Legislation is a term which covers the vast amount of legislation made by government
agencies and the Governor-General under authority of Acts of Parliaments, which delegate this
power to agencies. Law made by someone under the parliament but to someone who the
parliament delegates their power to, they delegate their power because they are busy, and they can
give power to other department which have more understand about the issue. The parliament and
courts supervise the delegated legislation.

3. With reference to legal cases, what is a ratio decidendi? What is its relationship with the
doctrine of precedent, and what happens when a lawyer ‘distinguishes’ their case from
other cases?

A ratio decidendi is Latin for ‘reason/rationale of the case’. It is used by the court to compose the
rationale of the judgement of the case, why did they win or lose what is the supporting decision to
produce that outcome

4. Discuss the jurisdictional limits of the NSW court hierarchy and the Federal hierarchies.

Two types of litigations, civil law and criminal law.

Two kinds of courts, summary court has a judiciary officer, divided law has a judiciary officer and jury

The jurisdictional limits of the court hierarchy start at the local court (summary court), with it
hearing matters of only up to $100,000 and hears summary offences such as speeding tickets,
trespassing, loitering etc, can only impose a sentence of up to 2 years anything higher goes to a
higher court. Has original jurisdiction only.

The next house is the district court which is the second higher up from the local court it can be a
summary and divided court. It involves summary offences and serious indictable offences such as
rape, assault, armed robbery and fraud, they also hear matters concerning up to $750,000. It has
both appellate and original jurisdiction.

The supreme court is the state’s highest court and has original jurisdiction, it is a divided court that
hears both civil and criminal law. It hears matters of serious indictable offences such as murder,
rape, murder, treason and serious drug offences. The jurisdiction for a civil law case they hear
matters above 750,000.

The high court is the highest court in Australia also known as the court of appeal, the federal court,
they are jurisdiction is to hear and determine legal disputes, they have original jurisdiction.
 5. 5. In 2019 a member of the New South Wales Parliament draws the attention of the
Government to the fact that a certain bookseller, X, is selling obscene books, frequently to
school children. The Attorney-General in answer to this states that he feels the bookseller
should be punished and the legislation to deal with the problem will be prepared. Later in
the year the following Act is passed:
An Act to regulate the Sale of Obscene and Indecent Books.
Whereas it is desirable that young and impressionable persons should be prevented from
purchasing obscene and indecent books be it enacted that:
1. No person shall sell or have in his possession any obscene or indecent book, pamphlet,
picture or other work.
2. Any person convicted of selling or having in his possession any such work shall be liable
to a penalty of a fine not exceeding $500 or imprisonment for 6 months or a fine not
exceeding $100 or imprisonment of 10 days.
3. In any prosecution under the preceding sections if the magistrate hearing the case is
satisfied that the work giving rise to the prosecution is obscene then whether he decides
that the person accused is guilty of an offence or not, he shall order the confiscation of the
work.
Consider the application of this Act to the following cases:
a. X, the bookseller whose activities led to the passing of the Act, is prosecuted in respect
of a sale which took place before the Act was passed. She is also prosecuted in respect
of her possession of another book after the Act became law. Both these books are
obscene and the magistrate convicts X on both counts, imposing a fine of $250 in
respect of each offence.
X appeals against her conviction in the first case and against the sentence passed in the
second case. Should she succeed?

Yes because she is not guilty this is due to her committing the act before the legislation was passed,

b. A book importer imports a consignment of books from abroad. On finding that the
books are obscene the importer sells them to a company so that they can be pulped.
The importer is charged under s 1 with selling obscene books. The magistrate states: “The
act of the defendant in selling the books which are undoubtedly obscene is within the
clear words of the section and I find him guilty under s 1. If the company were charged, I
should also find it guilty, but in any case, I must order the confiscation of the books.”

4. Write two short paragraphs on:

Explain what the burden and standard of proof means in a civil law matter.
Standard of proof is the level of certainty and the degree of evidence necessary to establish
proof in a criminal or civil proceeding. This means it is under the obligation of the prosecutor
to prove the accused committed that crime.
Burden of proof is the obligation of the plaintiff in a civil case to prove what is being alleged
on the balance of probabilities – balance of probabilities is the standard of proof required in
civil cases – it is the level to which something must be proved in court/the standard of proof
required by which a magistrate/judge is to be satisfied that the facts/evidence of a case exist
and are true