Business Law Week 1

What is the basis of the common law system?

Judicial decisions (case law) rather than solely on legislation.

Which country primarily uses a common law system influenced by the British model?

Australia

What are the two main sources of law in Australia?

Common law (judge-made) and legislation (parliament-made).

What characterizes a civil law system?

Legislation (codes, statutes, and constitutions) is the primary source of law.

In which regions is civil law predominantly used?

Western Europe, Central America, and parts of South-East Asia.

How is the distinction between common and civil law systems changing?

Civil law countries now value precedent, while common law countries increasingly rely on legislation.

What is meant by 'federation' in the context of Australia?

Power is shared between the Federal Government and State governments as equal partners.

What does the Australian Constitution outline regarding powers?

It divides powers into legislative, executive, and judicial types.

When did the Australian Constitution come into force?

1 January 1901.

What are exclusive powers in the context of the Australian Constitution?

Powers that belong only to the Federal Government, such as customs and military.

What are concurrent powers?

Powers that can be legislated by both Federal and State parliaments.

What are residual powers?

Powers that belong only to the States, such as education and health.

How are disputes between Federal and State governments resolved?

By the High Court of Australia.

What is the role of executive power in Australia?

To administer and enforce laws, run government operations, and maintain social order.

Who exercises executive power in Australia?

The Governor-General on advice of the Federal Executive Council.

What is the concept of responsible government?

Ministers must maintain confidence in the Lower House, linking executive and legislative powers.

What are the formal powers of the Governor-General?

To open/close parliament, grant Royal Assent, and appoint judges.

What is the purpose of the Ombudsman in the context of executive decisions?

To investigate unfair administration.

What is delegated legislation?

Authority given by Parliament to create detailed rules, often by unelected officials.

What is parliamentary sovereignty?

Parliament can make or unmake any law and cannot bind future parliaments.

What limitation does the High Court impose on legislative power in Australia?

It can declare laws invalid if they are ultra vires (beyond the powers granted).

What historical documents influenced the development of parliamentary sovereignty?

The Magna Carta and conflicts between the monarchy and Parliament.

What is the main function of the legislative power in Australia?

To make laws, vested in the Parliament which includes the Queen, Senate, and House of Representatives.

What is the significance of the 1986 Australia Acts?

They established that only Australia can amend its Constitution, removing British authority.

What is the role of the Cabinet in the Australian government?

It is the real center of policy-making, composed of senior Ministers.

What is the function of the Public Service in relation to executive decisions?

To implement decisions and provide expertise to the government.

What are 'Henry VIII clauses' in the context of delegated legislation?

Provisions that allow delegated legislation to override existing laws, often controversial.

What is the structure of the Australian parliamentary system?

It is a bicameral system with an Upper House (Senate) and a Lower House (House of Representatives).

What is the primary role of the Lower House in the Australian Parliament?

It represents the population and forms the government, with the Prime Minister usually coming from this house.

What is the function of the Upper House (Senate) in Australia?

It represents states, reviews bills, and has the power to reject or amend laws.

What is Royal Assent in the context of Australian law-making?

It is the formal approval given by the Governor-General or State Governor for a bill to become law.

What is the first step in the law-making process in Australia?

Proposal: Bills are usually introduced by a Minister on behalf of the executive.

What are Private Member's Bills?

Bills proposed by individual parliament members that rarely succeed without government support.

What is the purpose of drafting bills in the law-making process?

Bills are drafted to ensure they align with legal standards and human rights obligations.

What happens during the three readings of a bill in the Lower House?

The first reading is formal, the second involves debate, and the committee stage allows for detailed review.

What occurs if a bill is rejected twice by the Senate?

Section 57 allows for a double dissolution, leading to a joint sitting of both houses.

What is judicial power in Australia?

The authority to interpret and apply law in disputes, vested in the High Court and other federal courts.

What is the court hierarchy in Australia?

Courts are arranged hierarchically, allowing for appeals and specialization in handling cases.

What distinguishes criminal law from civil law?

Criminal law prosecutes breaches on behalf of the Crown, while civil law resolves disputes between private parties.

What is the doctrine of precedent?

It ensures courts follow earlier decisions in similar cases, providing consistency and predictability in law.

What is a binding precedent?

A past decision that judges must follow when deciding a case with similar material facts.

What is a persuasive precedent?

A previous decision that judges may consider but are not obliged to follow.

What does it mean to follow a precedent?

Courts apply a precedent when the material facts of a case are similar to those of an earlier decision.

What does it mean to distinguish a precedent?

Judges identify sufficient differences in facts to reach a different decision from a previous case.

What is judicial activism?

It refers to judges actively creating or changing legal rules beyond mere interpretation of the law.

How do judges contribute to law-making?

Judges construct new legal rules when no relevant legislation or precedent exists to resolve disputes.

What is the significance of the 1975 constitutional crisis in Australia?

It involved the dismissal of PM Gough Whitlam by Governor-General Sir John Kerr, illustrating deadlock resolution.

What is the role of the Governor-General in the Australian Parliament?

The Governor-General represents the Crown and gives Royal Assent for bills to become law.

What is the final step in the law-making process?

Commencement: The law begins on a specified date or retrospectively to address legal uncertainties.

What does it mean to overrule a precedent?

Courts may reject a precedent if they disagree with its reasoning, removing its authority for future cases.

What is the significance of the High Court in Australia?

It is the highest court, responsible for interpreting the Constitution and resolving significant legal disputes.

What is the purpose of human rights compatibility statements in bill drafting?

To ensure that proposed legislation aligns with human rights obligations.