Chapter 1

Introducing the law

 Chapter 1 | Introducing the law

1. Law and life

2. The nature of law
3. Justice, ethics and politics
4. The sources of law
5. The Australian legal system
 Law and life
Chapter 1
Introducing the law
 You already know about the law ...

•... from your personal life.

•... from your business activities.
•... from the media.
•... from popular culture.

•There are very few aspects of life that are not

regulated by law.
The nature of law
Chapter 1
Introducing the law
 Defining the law

•Law is:
– the set of rules,
– made by the state, and
– enforceable by prosecution or litigation.

•Business law is:

– The set of rules regulating businesses and
business activities made by the state and
enforceable by prosecution or litigation.
 Law’s ideals

FLEXIBILITY ACCESSIBILITY

CERTAINTY FAIRNESS
LAW’S
IDEALS
 The purpose of law

•Law:
– resolves disputes,
– maintains social order,
– preserves and enforces community values,
– protects the disadvantaged,
– stabilises the economy, and
– prevents the misuse of power.
Categories of law

Figure 1.2
 The changing law

•The law changes regularly because of:

– political change,
– the need to fix problems with the law,
– changing community values,
– pressure from lobby groups, and
– changing technology.
Justice, ethics and politics
Chapter 1
Introducing the law
Law in context

Figure 1.3
 Law and justice

•Justice can be understood as fairness, such as fair

compensation or punishment, a fair decision or a fair
distribution of resources.

•The notion of fairness has influenced the development

of business law in many ways.
 Law and justice

•The relationship between law and justice may not be

necessary, but it is desirable.

•There are three types of justice:

– Distributive justice;
– Procedural justice; and
– Retributive justice.
 Law and ethics

•A legal choice is one that complies with the law; an

ethical choice is one that is recognised as ‘good’ and
‘right’.

•Law and ethics generally correspond, but:

– a decision that is legal may not be ethical, and
– a decision that is ethical may not be legal.
 Law and politics

•While the law is more than merely politics, the law is

shaped and influenced by power and politics.

•Particular laws are usually the expression of a political

ideology.

•Legislation is made by politicians to implement

government policies and achieve political objectives.
The sources of law
Chapter 1
Introducing the law
The three arms of government

Figure 1.8
 Separation of powers

•Theoretically, the legislature, the executive and the

judiciary should as far as possible remain functionally
separate.

•In Australia, members of the executive (the Prime

Minister / Premier / Chief Minister and the other
Ministers) are also members of the legislature (the
Parliament) which means that the legislature and the
executive are not strictly separate.
 Responsible government

The Australian legal system is similar to the

British legal system in that is seeks to
incorporate separation of powers, but also the
doctrine of responsible government.
Forms of government

Figure 1.7
 Types of legal system

•Civil law legal systems are the most common type of

legal system.

•The primary source of law is legislation in the form of

codes, statutes and constitutions; case law is generally
not recorded and is not recognised as a source of law.

•Examples include France, Germany, Russia, China,

Japan, Thailand and Korea.
 Types of legal system

•Common law legal systems are based on the British

legal system.

•The two main sources of law are legislation and case

law; the judiciary is much more powerful and
influential in common law countries than in civil law
countries.

•Examples include the United Kingdom, Australia,

Canada and New Zealand.
 The Australian
legal system

Chapter 1
Introducing the law
The six key characteristics of the
Australian legal system

Figure 1.6
 Key characteristics

•Liberal democracy: Laws are made by, and the

executive government consists of, elected
representatives who exercise their power subject to the
rule of law and to the various Federal and State
constitutions.

•Common law legal system: Our legal system is based

on the British legal system, and can be contrasted with
other forms of legal system such as the civil law legal
system.
 Key characteristics

•Constitutional monarchy: The Head of State of the

Commonwealth of Australia and of the various States is
Elizabeth II, Queen of Australia.

•Federation: In addition to be the national Federal (or

Commonwealth) government there are various State
governments that are not subordinate to the Federal
government.
 Key characteristics

•Separation of powers: Laws are made by a parliament;

administered by an Executive Council or Governor in
Council; and interpreted and applied to particular cases
by a court system.

•Responsible government: The Ministers comprising

the executive are elected representatives who are also
members of and are answerable to the legislature.
Division versus separation of powers

Figure 1.9
 History of the system

•For tens of thousands of years prior to British

settlement there was in existence in Australia a
sophisticated and effective legal system: the Indigenous
Australian legal system.

•Unfortunately, the British did not recognise or

acknowledge the Indigenous Australian legal system
upon their arrival in the 1700s.
 History of the system

•Australia was declared to be terra nullius at the time

the colony was established.

•Australia was deemed to have been settled by Britain

rather than conquered by Britain or acquired by treaty.

•British settlers brought British law with them

according to the doctrine of reception.
 History of the system

•The New South Wales colony and the other colonies

subsequently established in Australia were initially
controlled directly by the British government as
represented by the colonial Governor.

•As time passed, the British government granted the

Australian colonies increasing levels of independence.
 History of the system

•By the late 1800s, six relatively independent self-

governing colonies existed on the Australian continent,
each with its own constitution, legislature and court
system.
 History of the system

•The Commonwealth of Australia came into existence

on 1 January 1901.

•Each of the colonies, now States, gave up certain

powers and rights to the new Federal government, and
at the same time retained their individual identities and
substantial legislative authority.
 History of the system

•Today, Federal, State and Territory governments in

Australia are free from interference by the British
Parliament.

•The final step will be changing from a constitutional

monarchy to a republic: but are we ready?
 Next
Chapter 2 – Understanding the
Australian legal system