We need to be specific when refer to 'the law' as there are two types of law in Australia: LEGISLATION, and
CASES, also called ‘judge-made law’ or ‘common law’. These are also known as authoritative sources of law.
Each type of law has a different origin.
LEGISLATION is created by parliament. It’s also called ‘Acts’ or ‘statutes’. Legislation may also be changed or removed by parliament. Legislation may be made about any subject for which the parliament has power to make laws. For example, in New South Wales, the parliament has made laws about everything from Aboriginal housing to zoos.
CASES: Also called ‘judge-made law’ or common law, case-law is the law made by judges in the course of deciding cases before the courts. The law-making role of the courts is much more limited than that of parliament. For example, a judge may only create a principle of law that is relevant to the case before the court.
How cases and Legislation interact
The principles we will be looking at in this Unit all come from legislation or otherwise from cases. Today, the main source of law in Australia is legislation (Acts of Parliament or ‘statutes’). Nevertheless, many laws of significance to businesses come from the cases, and we can learn a lot from them. In the Online Modules, and also in lectures, we will be looking at a selection of cases decided in the past. These are an important part of the course - we look at them to see how regular business situations ended up in court cases, and so we can think about what could be done differently and, hopefully, avoid making the same mistakes in our own businesses. The Online Modules have about 40 case studies of this kind, which contain an ‘advice to business’ section setting out the lessons businesses can learn from each case.
Purpose of the law
maintains social order,
preserves and enforces community values,
protects the disadvantaged,
stabilises the economy, and
prevents the misuse of power.
The totality of laws that regulate a state
(a legally organised community).
Roman-Germanic system, civil law system
Emphasis on legislation and theory
Common law system
Developed on cases and experience
Adversarial vs. Inquisitorial
An adversarial trial method is one in which disputes are resolved by opposing parties arguing their cases before an impartial court. An inquisitorial trial method is one where the court takes an active role in the proceedings.
Government refers to the system by which laws are created, administered and applied. Although most people say 'the government' to mean any person or body responsible for these functions, it is important for business people to realise that there are different types of government. Specifically, in Australia, we have:
distinct levels of government, and also
distinct branches of government.
Levels of Government
Levels of government
In Australia we have three levels of government. These are:
Commonwealth government (also called the federal government, the national government or simply, the Commonwealth) State and territory governments
Each level of government has responsibility for different matters.
The Commonwealth government deals with matters of national importance such as: defence
The State and territory governments deal with matters of importance within each State or territory such as: health
The local governments deal with matters of importance to particular areas within a State or territory (called local government areas). The functions of local government include: maintenance of local parks
provision of services such as libraries and community centres. In Australia, local governments are usually referred to as councils.
Branches of government
The Commonwealth and State / territory levels of government are further divided into three branches of government: legislature
Each branch of government performs a different function.
The legislature is responsible for creating laws. These laws are referred to as legislation. The body that creates the laws is called parliament. There are separate parliaments in the Commonwealth and in each of the States. Three of the territories also have their own parliament.
The executive is responsible for putting legislation into effect. In Australia, we usually refer to the executive as the 'public service'. The executive is subdivided into government departments, each specialising in the administration of a particular subject area (for example, the Commonwealth has the Department of Defence which deals with all matters in relation to the Australian Defence Force).
The judiciary is responsible for interpreting, applying and upholding the laws, both legislation and judge-made law (also known as common law or case law; the difference is explained below). The bodies that exercise judicial power are called courts. There are separate (though linked) court systems in the Commonwealth and each of the States. Three of the territories also have their own court system.
The term regulation has a number of meanings. The definition that we will use in this subject is 'the act of controlling the performance of some action by the creation and / or enforcement of a law’. For example, we say that the sale of baby cots is regulated in New South Wales as there are laws in force that prescribe the requirements for these products (most of these requirements relate to safety, such as the design and construction of the cots).