Busl250 4c1o1m

BUSL250

Welcome to Business Law!

BUSL250 Student Information Course Convenor and Lecturer Dr John Selby Office: E4A Room 325 Telephone: 9850 7081 Email: [email protected]

Verity Greenwood & John Selby, Session 2, 2016

BUSL250 Information cont… Prescribed Textbook (required): Business Law BUSL250 compiled by Dr Verity Greenwood and Julian Dight-custom book, Pearson Publishers, 2016 plus ebook and access to MyLawLab.

Verity Greenwood & John Selby, Session 2, 2016

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• BUSL250 Email : [email protected] All email correspondence must be sent to this email. If highly personal or confidential then the convenor personally. • Unit website http:/ilearn.mq.edu.au/ - BUSL250 Unit Guide - BUSL250 Assessment Guide - Lecture slides - ilecture -ECHO - Online Quizzes - Announcements - Student workbook - Resources - Discussion Forum Verity Greenwood & John Selby, Session 2, 2016

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BUSL250 Participation Requirements • Lectures • Tutorial assessment • Online Quizzes

Verity Greenwood & John Selby, Session 2, 2016

Actual Participation (10%) In-class contract test (15%)

Three quizzes (10% each) -worth 30% final mark

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BUSL250 Assessments -check unit guide Item Description

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Value Date due

Three Tutorial Online Quizzes –Multiple Choice based on: • Lectures 1- 10 and tutorials 1-9 of 30% the course • Only open and available at specified times • 10 marks available each quiz • ABSOLUTELY NO EXTENSIONS

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Tutorial assessment - Tutorial Class participation (5%) - Presentation (5%) - Contract Law In-class test (15%)

25%

4 5 Total

Final examination

45%

Quiz 1: Tuesday 23 August - Thursday 25 August 2016 Quiz 2: Tuesday 4 October - Thursday 6 October 2016 Quiz 3: Tuesday 1 November – Thursday 3 November 2016 •

Class participation assessed throughout session • In-class test held in Lecture 9 (Monday 6.00-8.00pm) and Friday (8.00am10.00am) (one (1) double sided ‘cheat sheet’ permitted) Held in official examination period: TBA

Supplementary exam

100% Verity Greenwood & John Selby, Session 2, 2016

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Tutorials • • • • • • •

Must be ed in a tutorial No tutorials in Week 1 Presentations allocated in Week 2 tutorial (Week 2) Pre-read prior to tutorial Complete questions in BUSL250 student workbook Attend consultations as a follow up to tutorials No tutorial changes after Week 1

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Contract Law in-class exam -

Exam covers contract law and e-commerce topics only - Weeks 2 (Part 2) – Week 5 inclusive - Only one double sided handwritten A4 ‘cheat sheets’ written in English allowed in the exam (no typed or photocopies) - Only hard copy translation dictionaries allowed Important note: Enrolled ilecture students must to sit the exam in one of the two week 9 lectures available via the “Contract Law exam registration’ link

Final exam Exam comprising four (4) business law case studies. - Tort law - Agency law - Consumer Protection law - Property/Intellectual Property law Only two double sided handwritten A4 ‘cheat sheets’ written in English allowed in the exam (no typed or photocopies) Only hard copy translation dictionaries allowed. Must the final exam to the course!

How can you BUSL250? What you need to do: • Attend the lectures/tutorials • Take notes • Pre-read before lectures and prepare tutorial answers • Attend consultations regularly • Do online quizzes • Maintain revision • Seek help if any concerns • Attend PAL Verity Greenwood & John Selby, Session 2, 2016

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How does Business Law affect our everyday life?

Defining the law • Law is: – the set of rules, – made by the state, and – enforceable by prosecution or litigation. state – when state in lower case-means government generally State –if capitalised it means state within federation e.g NSW Verity Greenwood & John Selby, Session 2, 2016

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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.

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Characteristics of a legal system Certainty

Fairness

Legal system Law's ideal ideals characteristics

Flexibility

Accessibility

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A Classification of Law- Criminal and Civil Common Law Citizen v Citizen Compensation eg $$$

State v Accused (Punishment eg gaol)

CIVIL Examples of laws relevant to business

CRIMINAL Examples of business crimes Extortion Larceny Arson Stealing Cyber attacks

Contract Law Torts Law Property Law

On the balance of probabilities

Standard of proof Verity Greenwood & John Selby, Session 2, 2016

Beyond reasonable doubt 15

Inherited legal system in Australia

Now usually work together

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Common Law Common law is the law created by the reported decisions of judges. Also known as: case law; precedent; unenacted law; unwritten law. Common Law is: a comprehensive system; remedies not discretionary; rights are enforceable at any time subject to statute of limitations; valid against the whole world. Verity Greenwood & John Selby, Session 2, 2016

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Statute Law Statute law are the laws created by State and Federal parliaments. Statute law is also known as: legislation; Acts of Parliament; enacted law. Verity Greenwood & John Selby, Session 2, 2016

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Statute Law Statute law also includes laws made by other government bodies. This is known as delegated legislation and takes the form of: by-laws; orders; rules and regulations.

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Common Law v. Statute Law Today, statute law is the most important source of law as the great majority of law comes from the parliaments. Statute law overrules common law in the event of a clash between the two.

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Equity Equity developed as a result of the growing inflexibility and rigidity of the common law. Equity implies fairness and justice in the law. Not comprehensive. Remedies are discretionary. Require prompt attention. Valid only against those specified in court. Follows common law; it supplements it. Only against individuals not property. No application in criminal law.

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Equity Equitable remedies include: 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.

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Public v. Private Law Another classification of law is into public and private law. Public law – the organisation of government and its relationship with the people. Private law – deals with disputes over rights and obligations between people or organisations.

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Categories of law

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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.

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The six key characteristics of the Australian legal system Common Law legal system

Constitutional democracy

Liberal democracy

Responsible government

Federation

Australian Legal System

Verity Greenwood & John Selby, Session 2, 2016

Separation of Powers

Constitutional Monarchy

•

Monarchy – The head of state is the Queen

•

Constitutional – She holds that position pursuant to underlying constitutional arrangements rather than by force of arms

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Key characteristics • Liberal democracy: Laws are made by, and executive government consists of, elected representatives who exercise their power subject to the rule of law and to the various Federal and State constitutions e.g. The Cabinet • 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. • Law that has evolved through judicial decision and practice Verity Greenwood & John Selby, Session 2, 2016

So how did common law become a source of law in Australia?

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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. Verity Greenwood & John Selby, Session 2, 2016

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Reception of English Law • 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. • CASE: Mabo v Queensland (No 2) (1992) 175 CLR 1 and

The Wik People v Queensland: The Thayorre People v Queensland (1996) and Native Title Act 1993 (Cth) - The High Court acknowledged that Australia had not been terra nullius and that common law recognises a form of native title to land. Verity Greenwood & John Selby, Session 2, 2016

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Origins of Australian Law Customary law The Mabo decision related specifically to Aboriginal land rights. In Walker v. New South Wales (1994) the High Court discussed the validity of Aboriginal customary law relating to criminal cases. The court decided that customary law had been extinguished by the criminal legislation ed by the states and territories. Verity Greenwood & John Selby, Session 2, 2016

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Charting the history of Colonial legal systems Date

Event

Effect

1787 First Charter of Justice

Established colonial courts with civil & criminal jurisdiction

1788 First colonists arrived in NSW Carried with them the English law 1814 Second Charter of Justice

Established Supreme Court - civil jurisdiction & sub. structure

1823 New South Wales Act 1923 (Imp) and Third Charter of Justice

• Established NSW as full colony • established comprehensive court system • established Legislative Council appointed by the Crown

1828 Australian Courts Act 1828 (Imp)

• Increased size of Legislative Council • Provided laws of England in force 1828 had effect in NSW only if there were particular provisions to that effect

1850 Australians Constitutions Act Created colony of Victoria and allowed colonies to establish parliaments with two houses (bicameral) (No 2) 1855 (Imp) 1855 NSW Constitution Act 1855 (Imp)

Changed constitutional structure to create a bicameral NSW parliament with representatives and responsible government

1865 Colonial Laws Validity Act

Confirmed ability of colonial legislatures to amend own constitutions; Declared colonial parliaments have no power to laws ‘repugnant’ to English laws directly applicable to colony

1865 (Imp)

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The Australian Constitution 1900 - The British Parliament ed the Australian Constitution Act 1900 (Imp) The Australian Constitution united the colonies in a federation - The Commonwealth of Australia came into existence on 1 January 1901 with the enactment of the Commonwealth of Australia Constitution Act 1900 • Each of the colonies, now States, gave up certain powers, rights and duties to the new Federal government, and at the same time retained their individual identities and substantial legislative authority. • Today, Federal, State and Territory governments in Australia are free from interference by the British Parliament. • Federation involves a division of powers between the States and the Commonwealth Verity Greenwood & John Selby, Session 2, 2016

Separation of Powers •

In the Constitution, the functions of government are allocated to different institutions: - Legislative functions : Laws are made by a parliament -

Executive functions : istered by an Executive Council or Governor in Council

- Judicial functions : interpreted and applied to particular cases by a court system Under the Westminster system the separation of powers is not absolute

What does this mean? Verity Greenwood & John Selby, Session 2, 2016

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COMMONWEALTH CONSTITUTION Commonwealth Constitution

Cabinet has Executive power

Parliament has Legislative power

High Court

The Ministry

House of Representatives

The Courts have Judicial power

Other federal courts

Senate

Doctrine of separation of powers Verity Greenwood & John Selby, Session 2, 2016

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COMMONWEALTH AND STATE POWERS Exclusive, concurrent and residual powers State

Commonwealth

Exclusive powers (Commonwealth only)

Examples s.52: Exclusive powers of Parliament s.90: Customs, excise and bounties s.92: Free trade between the States s.105: Taking over state public debts s.114: Military forces s.115: Currency s.122: Government of federal territories

Concurrent powers (Shared powers)

Residual powers (State only)

Examples under Section 51 Insurance Banking Industrial Relations

Examples Education Local Government Transport

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STRUCTURE OF THE AUSTRALIAN CONSTITUTION

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FEDERAL / STATE RELATIONS 





If the Federal Parliament has not legislated in relation to any of the matters listed in s 51, then that matter remains within the regulatory authority of the States. If a State parliament has made a law in relation to one of these matters, and the Federal Parliament makes a law in relation to the same matter, then s.109 of the Australian Constitution provides that, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid. eg. Wallis v Downard-Pickford (North Queensland) Pty Ltd (1994) 68 ALJR 395 (see p.37 in text) Verity Greenwood & John Selby, Session 2, 2016

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THE STRUCTURE OF PARLIAMENT

Verity Greenwood, Session 1, 2016

Coming up next…..

Part 1:Australian Legal System Chapter 3/ Chapter 4

Part 2: Introduction to Contract LawIntention and Agreement Chapter 10,11 and 12

Verity Greenwood & John Selby, Session 2, 2016