Law Chapter 1 - Summary Concise Australian Commercial Law PDF

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Summary

Chapter 1 notes of the textbook and lecture combined...

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Concise Australian Commercial Law: Chapter 1: The nature and concept of law: Law: The body of rules of conduct, made by parliaments and/or the courts, that regulates or controls the behaviour or relations between individuals and groups.  Natural law: Universal understanding of what is wrong/right and fair/unjust  Religious law: Codes of context often recorded in holy text  Customary law: Rules of conduct widely observed as a part of the tradition of a particular race or culture Four universal principles of law:  The government and its officials, including Heads of government and Ministers, as well as individuals and private entities, are accountable under the law.  The laws are clear, publicised, stable and just and applied evenly.  The process by which the laws are enacted, administered and enforced is accessible, fair and efficient.  Justice is delivered in a timely manner by competent and ethical judges who are free from interference, particulary from government. The Australian constitutional system: The United Kingdom parliament passed the constitution bill in 1900 and became active in Australia as of 1901. This resulted in six colonies becoming part of a federal government. The constitution created commonwealth parliament consisting of;  The queen  The senate  The house of representatives A constitution is the legal document which tells the government what it can and cannot do. It also gives people their rights (Called Bill of rights). Federal government: Government which creates laws for the entire country. States have powers to also create their own laws. The constitution states what type of laws the federal government can create and implement within the country. Anything else that is not stated in this the state government can create and implement within this state. (Residual powers) If there is a conflict between the state and federal law on the same issue, the federal law takes priority. Sources of law: Australia’s constitutional system of government comprises three main branches. These branches work separately. a) The legislature- the body which makes the laws, usually in the form of statutes/legislation (parliament) b) The executive – the body which administers and polices the law. Can also propose laws ro the parliament (Queen, governor general and the cabinet c) The judiciary- the body which declares what the law is and interprets the law, resolves disputes concerning its application, and determines the sanctions for its breach. Judges in the courts. Judge has the power to create a new a law if it is not in the statute and requires it to solve a case- only possible in common law countries (Australia) Common law countries: Countries that used to belong to the British empire. Businesses tend to prefer common law countries because the judges can provide businesses with a new solution. Repealed statutes: Laws that are no longer active/used Difference between common law and civil law

Can the constitution be changed? Yes, a referendum must occur. This is where the citizens must vote and if a majority occurs (at least all 4 states must say yes) the law can be changed. How do we create a statute? o Member of parliament will present and propose a bill (idea) o The bill will be voted in the house of representatives and the senate o If this has been approved and passed through both houses it goes to the governor general o The governor general will then pass this law on behalf of the queen o Published in the commonwealth government Gazette. Statute Law and judge made law: Statute/legislation: A codified law. Has different sections that deals with different things. Eg. Australian consumer law that protects consumers. Judge made/ case laws: Judges can create common law (case law) and equity (fairness and justice) laws  Customary law: The law of the merchant (business, traders etc) o Codified- Has been created as a statute/legislation o Common law- has been created by a judge in a law case or by a merchant o Role of the courts and interpretation of statues: The role of judges to interpret the statute: If there is no law that relates to the case the judge can create a new law. Decisions made by higher courts bind lower courts in the same hierarchy cases with identical and similar facts. Ratio decidendi: The law and reasons given by the judge Obiter dictum/dicta: Passing comment- statement given by the judge that provides guidance to future judges who deals with similar situation/act. Classification of law and legal proceeding: Laws can be classified as public & private law or civil & criminal. Public laws: Constitutional law, criminal law Private law: Contract law, torts Civil laws: Contract law, Torts Criminal laws: Summary and indictable offences (always punished by the state) Alternative methods of dispute resolution: Methods used to avoid/limit costly court proceedings. Business will try to avoid using the courts as it is very costly and can cost a lot of money.  Commercial arbitration: Settling dispute out of court. Hire an arbitrator to solve a problem with another business.  Negotiations: Cheapest way to come to a solution- depends on the issue  Mediation: Using a 3rd party to reach an agreement  Conciliations: Mediating a dispute between 2 or more people or parties....