Summary Australian Business Law - business law notes PDF

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Business Law Notes Chapter 1: Introduction to Law What is law – the legal and regulatory environment of business o Business law is made up of the laws that set out the rights, duties and obligations of people in business o Business law balances the interests of those in business and people like producers and consumers, buyers and sellers, lenders and borrowers o It regulates business transactions under the law of contract, which explains when an agreement will be legally enforceable as a contract and is updated by competition and consumer law o It regulates those engaged in business, their names, their funding, their banking and their insurance o Many aspects of criminal law and tort (law of negligence) impact on business What is law? o The law is a body of principles of principles established by parliament and by the courts o Law is made by parliamentarians and judges and is legally enforceable and developed to set standards of conduct between people, businesses and governments o If these standards are not followed, the law sorts the conflicts that arise and punishes those in breach of these standards of conduct o Law is made up of: - enacted law – law made by parliament known as statute law, legislation or Acts of Parliament and delegated legislation - unenacted law – the judegemtns, usually written, of judges in cases heard by them, known as cash law, precedent or sometimes common law Common Law o 1. Common to all of England o 2. Historic meaning of common law – administered through three royal courts of justice o 3. Not equity law – case law from common law courts o 4. Case law, not statute law – unenacted law written by judges in judgements not based on analysis on authoritative texts and not statute law enacted by parliament o 5. The common law world – statute law and case law o As the common law develops, it results in the development of common law

Civil and Criminal Law Involves matters between people regarding the enforcement of rights and carrying out of obligations o Civil cases result in remedies for the person winning and liabilities for the person losing o Criminal law includes all statute and case law which make certain conduct an offence – enforced by the government (federal, state and local)

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Common law and equity law o Main remedy of common law is an award of damages (compensation) o Maxims of Equity - equity – means the rules (equitable remedies) originally developed and administered by the court of Chancery which supplement common law rules and procedures. The maxims of equity are the rules which are applied by the equity courts such as: 1. Equity acts in personam 2. Equity aids the vigilant 3. Equity does nothing in vain 4. Equity follows the law 5. Equity never wants a trustee 6. One who comes into equity must come with clean hands 7. One seeks equity must do equity 8. The person who is first in time has the stronger legal claim and where the equities are equal the law prevails Australian Business Law Regulators and Business Law Enforcement o Regulation to improve the legal environment of business is in the hands of regulators and self-regulators, including: - Australian Competition and Consumer Commission (ACCC) - Australian Charities and Not for Profit Commission (ACNC) - Australian Crime Commission - Australian Prudential Regulation Authority (APRA) - Australian Securities and Investments Commission (ASIC) - Australian Tax Office (ATO) - Australian Transaction Reports and Analysis Centre (AUSTRAC) - Director of Public Prosecutions (DPP) - Insolvency and trustee Service Australia (ITSA) Industry Associations o Industry associations introduced include Franchise Council of Australia (FCA) and the Australian Banker’s Association (ABA)

Regulation o Regulation includes the legal rules including contract and competition and consumer law and all rules and legal restrictions imposed by government, courts, regulators and industry Compliance o The bottom line of regulatory compliance is to cimply with regulations The rule of law o Legal system built on rule of law that authority of government must be exercised according to law o Three aspects 1. No arbitrary power - rule of law excludes arbitrary power - official actions must be done in accordance with the law - no person can be punished unless there is a breach of the law - law must be public and published - power of government is separated among three branches of government 2. Equal before the law - all people are equal before the law - nobody is above the law - the rule of law is a prerequisite for democracy 3. Enforceable in court - the rights of citizens are enforceable in the courts - special constitutional safeguards and Bills of Rights Law and Justice o Principle of law suggests that law and justice are the same o Natural law – sees law as expressing a hugher truth and higher justice than contained in man made law o Positive Law – see law as the rules imposed by the sovereign power over the sovereigns subjects - Jeremy Bentham – claimed that because law is man made, it can be whatever man chooses to make it - John Austin – divorced law from justice, basing law on power of the superior as apposed to good and bad Law, morality and society o Areas covered by law and morals overlap - e.g. moral principle that promises should be kept in the foundation for the law of contract o Some conduct is immoral but not illegal o Some conduct is illegal but not immoral

o Without codes of conduct, there would be uncertainty o In a pluralist society where values aren’t universally shared, law plays a crucial role in maintaining social cohesion because it recognizes and gives effect to community values, provides settlement of disruptive disputes and provides for orderly adaptation of rules to social change E-Commerce and Australian Business Law o The enacted law and unenacted judge made case law that make up Australian business law have adapted to the internet o E-Commerce – means commerce by means of the computer, the internet and other telecommunications links like electronic data interchange (EDI) o More business is being done electronically rather than by traditional means o Australian business have adapted to e-commerce: - computer crimes - acceptance of offer by fax/email/sms - computerization of financial markets including Clearing Housing Electronic Sub register System - confirmation that email falls within the Commonwealth’s power over postal services - electronic banking – financial institutions have been involved in close system e-commerce with their customers for the transfer of funds including ATMs and EFTPOS o E-commerce refers to all business activity carried out with the aid of electronic devices which include transactions involving a card that uses electromagnetic data E-administration of the law o Information technology has revolutionized the administration of the law through: - electronic court allows paperless electronic filing, case and document management and imaging of court processes, including registration, document lodging, listing of cases, e-trials - internet access among and electronic data transfer between courts, tribunals, law enforcement agencies and legal professionals - complex information can be processed and recorded quickly - evidence can be taken from absent witnesses by audio-visual technology - judgement are published on the internet - courts and tribunals have their own websites Will IT make legal advice redundant? o Australian securities and investment commission aims to ensure that: - business regulation is technology neutral - regulatory requirements for e-commerce are no more onerous than those applying to traditional business - consumers have at least the same levels of protection as with traditional business

Geo-identification o Internet is borderless but a contract made online is sourced within a legal jurisdiction o Geo-identification helps to identify where the internet user is located Guidelines for E-Commerce o Aim to improve business awareness of the main issues to be considered when dealing with consumers through E-Commerce o Aims to increase consumer confidence in business to consumer e-commerce, focusing on protection, information, choice and redress, with guidance on: - accessibility, disability access - advertising and marketing - dispute resolution - engaging with minors - fair business practices - information , contractual - information – identification of the business - payment - privacy - security and authentication Spam Act 2003 o Development of E-commerce led to large amount of spam o Spam involves invasion of privacy, misleading or deceptive conduct and unfair practices under the Australian Consumer Law (ACL) and illegal or offensive conduct o Spam threatens effectiveness and efficiency of e-Commerce because it is illegal, offensive and unscrupulous and may involve tactics that wouldn’t be commercially viable if they were not electronic o Spam Act 2003: - regulates commercial email -bans unsolicited SMS - requires commercial electronic messages include accurate sender information - requires that commercial electronic messages contain a functional unsubscribe facility - prohibits the supplying, acquiring or using of address harvesting software and harvested address lists - provides for remedies for breach of the Act, including civil penalties, injunctions and enforceable undertakings o Courts will compensate business which have suffered as a result of spam o ACMA registered a code of practice for internet service providers and email service providers - aims to set up industry wide practices and procedures relating to spam to balance industry interests and viability and end user interests

Future directions o The world continues to shrink as people increasingly connect through internet, technology improves and e-commerce expands - more efficiency for less cost o Business law issues: - territorial, political and jurisdictional boundaries are irrelevant with ecommerce yet the authority is limited to home jurisdictions - free speech on internet - access to websites provide jurisdiction for legal disputes Australian Government Information Management Office (AGIMO) o A government agency set up to promote efficient and effective use of information and communications technology by Commonwealth Government departments and agencies Legal System and personnel o Legal system is the framework within which the law operates o People elect representatives to pass laws to make up the legal environment within which business is conducted o Legal system is built in the culture in which we live and absorbs value of culture o Culture supports and expects honoring of contracts, compensation of injuries and protection of person and property, peace and order o Effective legal system works when laws are: - certain – stability and predictability - flexible – able to adapt to new situations _ known – published - reasonable – having widespread acceptance as fair, just and necessary People in the legal system o Those who make the laws - made by members of the Commonwealth, six state and two territory parliaments - senior law officer of Commonwealth, state and territory is the Attorney General or MP o Those who apply the laws - judges, tribunal members, magistrates, judicial registrars and administrations apply laws o Those who enforce the laws - prosecution can be started by authorities such as Director of Public Prosecutions (DPP) - involves corrective agencies o Those who advise on the law - legal advisors, legal aid offices and community legal services

o Those who administer the law - the law is administered in areas such as debt collection and process service and by registration authorities such as registering companies o Those who research, write about and teach law - schools, universities, law reform commissions Legal Profession Judges o Top of legal profession are judges, tribunal members, magistrates and registrars who apply the law to make a judgement o Appointed by governments, usually from senior ranks of practicing barristers o Lawyers are eligible for judicial appointment and solicitors, law professors, senior public servants and politicians such as attorney generals have been appointed o Independence of judiciary and legal profession is reinforced by a judges appointment to retirement age or for life o Judges are independent branch of government and must be free from political interference Solicitors o Solicitors are legal practitioners who have offices which the public can go to for legal advice o Many solicitors are general practitioners of the law, giving legal advice to clients and doing work in areas such as: - business law - conveyancing (transfer of land) - court work – appearing for clients in courts and acting as an intermediary between client and barrister) - drafting wills and administering estates of deceased people - workplace relations Barristers o Usually specialize in advocacy and courtroom work, arguing cases in courts and tribunals o Barristers are independent sole traders, free from hierarchy of law firms - not allowed to form partnerships with barristers or solicitors Being a lawyer o There is a legal separation of legal profession in all jurisdictions o Solicitor briefs a barrister on behalf of the client and go to barristers chambers where barrister takes over running the case on behalf of

barristers client and act as intermediary between member of public and barrister o Direct briefing by the public is allowed by barrister o Advocacy is allowed, but it faces competition with solicitors Future direction of legal profession o National legal profession - moving towards national practice of law extending over state and territory borders with a travelling practicing certificate, uniform regulation and interstate recognition of qualifications o Non lawyers - e.g. accountants, conveyances and consultants compete with lawyers o Mergers of law firms nationally and internationally - mergers of law firms led to business law being dominated by a few national law firms o Increasing numbers - lawyers increasing rapidly and expected to increase further o Women in legal profession - proportion of women in law has risen o Non-legal work - legal profession was largely involved in private practice until 1970s - lawyers aren’t in legal practice and instead working in related areas such as administration, compliance, insurance and tax o Globalization - with local admission of foreign legal practitioners and further development of transnational legal practices and transnational multidisciplinary partnerships being made of lawyers and accountants Hierarchy of Courts o Legal matters and legal disputes are head in a wide variety of courts and tribunals - court structure provides serious and costly cases and handled at highest level by superior courts o Hierarchy of courts exists for four reasons: 1. Geographic factors lead to 90% of cases considered to be minor being dealt with locally in the local magistrates courts 2. For administrative convenience regarding specialization and economy of operation, cases of a similar nature are tried in similar courts 3. Because there is a hierarchy of courts, each court can specialize in certain types of cases 4. Judges and juries may make mistakes and the hierarchy of courts allow an appeal to a higher court to have an error of law correct o Diversity is compounded by courts and tribunals according to whether they are set up under Commonwealth legislation or state/territory legislation

Courts of Summary Jurisdiction o Magistrates courts are set up under Commonwealth, state and territory acts to handle small civil and criminal matters o They handle most legal disputes before Australian courts and provide an accessible location for civil and criminal cases Civil Jurisdiction o Civil jurisdiction of magistrates courts cover a wide range of disputes concerned with small debts and other matters o Small disputes may cover claims arising under contract, claims for compensation for injuries received in accident o Prerequisite is the need to fall within monetary jurisdictional level ACT: $250,000 NSW: $100,000 (General division), $60,000 (personal injury or death), $10,000 (small claims division) NT: $100,000 QLD: $150,000 SA: $100,000 Tas: $50,000 Vic: $100,000 WA: $75,000

Magistrates Court Act 1930 Local Court Act 2007 Local Court Act 1989 Magistrates Courts Act Magistrates Court Act Magistrates Court Magistrates Court Act Magistrates Court

Criminal Jurisdiction o Committal Proceedings - procedure where a preliminary hearing is held into cases of more serious crimes, such as murder, theft ad corporate crimes and conspiracy - proceedings aim to work out whether the prosecution has sufficient evidence to show that the accused may be guilt and should be remanded for trials - if so, accused will be sent to a higher court for trial by a judge or jury o Summary offences - matters are tried summarily by the magistrates and are disposed of in a summary manner by either the imposition of a fine or period in jail - can generally jail as well as impose fines Specialized Jurisdictions o Magistrates court may function as a coroner’s court to investigate unexplained deaths and fire o Magistrates court sits as a specialist drug court with adult and juvenile jurisdiction

o Magistrates court is that of children’s court involving hearing by persons under the age of 18 o Less formality and greater public access has been introduced to the magistrates court through introduction of: - compulsory arbitration for smaller matters, where the magistrate is released from the technicalities of the rules of evidence and the adversary system, can actively seek information and is bound only by the common sense rules of natural justice - in the case of larger matters over the arbitration limit, pre-hearing conferences conducted by a magistrate or senior court officer to promote settlement of the complaint or at least clarification of the issue - in areas of high Aboriginal populations o Appointments to the position of magistrate are made from ranks of barristers, solicitors, government and academic lawyers - Justice of the Peace (JPs) can carry out administrative functions normally performed by magistrates Federal Circuit Court o Has jurisdiction in federal areas such as appeals from administrative decisions, bankruptcy, family law and family property Intermediate courts o Exist in all jurisdictions except Tasmania, NT and ACT o Jurisdiction is between magistrates courts and Supreme court o Practice and procedure is virtually the same as the Supreme Court with the full range of pre-trial fact finding procedures such as interrogatories and discovery Civil Jurisdiction o Differences with Supreme Court include: 1. Upper jurisdictional level, which is the middle range but extends to the same jurisdiction as the Supreme Court in South Australia NSW: $750,000 District Court Act 1973 Qld: $750,000 District Court of Queensland ACT 1967 SA: same as supreme court District Court Act 1991 Country Court Act 1958 Vic: wide criminal jurisdiction over all indictable offences and unlimited civil jurisdiction WA: $750,000 District Court of Western Australia Act 1969 2. Some restrictions on exercising jurisdictions in equity, admiralty and probate 3. Usually administer justice quickly and are cheaper in less complex litigation

Criminal jurisdiction o Criminal jurisdiction of intermediate courts cover most indictable offences (where there is a trial by judge and jury) except capital offences like murder and crimes reserved from Supreme Court like treason and sedition o Intermediate courts also hear appeals from a magistrates court sitting in its criminal jurisdiction o Trials may be lengthy and protracted and in the Supreme Court, indictable criminal offences are tried by judge and jury Supreme Courts o State supreme courts are superior compared to inferior courts o Supreme courts have original and unlimited jurisdiction to hear all civil cases and they handle the most serious criminal cases such as murder and drugs o Common law division (negligence, contracts and land) and an equity division Appeal Courts o Appeals on questions of law go to intermediate appellate courts usually with three appellate judges o Courts of A...