Business Law Week 1

What legal system does Australia use?

Australia uses a common law system, where law is developed through both legislation made by Parliament and case law created by judges. This system emphasises precedent, meaning past decisions influence future cases.

What are the two main sources of law in Australia?

The two sources are legislation (laws made by Parliament, which is the primary source) and common law (judge-made law developed through court decisions). Both are essential in business law, especially in areas like contracts and disputes.

What is a federation?

A federation is a system where government powers are divided between the Commonwealth (Federal) and State governments, each operating independently within their areas of authority. This affects which laws apply to businesses depending on the issue.

What is the separation of powers?

It is the division of government power into three branches: Legislative → makes laws, Executive → enforces laws, Judicial → interprets laws. This prevents any one branch from having too much power.

Why is the Australian Constitution important in business law?

The Constitution is the supreme law of Australia, meaning all legislation must comply with it or be declared invalid. It also determines which level of government can make laws affecting businesses.

What are exclusive powers?

These are powers that only the Commonwealth Parliament can legislate on, such as trade, commerce, and corporations, which are highly relevant to business law.

What are concurrent powers?

These are powers shared by both Federal and State governments. If there is a conflict between the two, Commonwealth law prevails, which is important for resolving legal inconsistencies.

What are residual powers?

These are powers not listed in the Constitution and therefore belong to the States, such as contract law, property law, and criminal law, all of which are important in business operations.

Who resolves disputes between State and Federal law?

The High Court of Australia, which has the authority to interpret the Constitution and determine whether laws are valid.

What is executive power?

Executive power is the authority to administer and enforce laws, including regulating businesses, collecting taxes, and ensuring compliance with legislation.

What is delegated legislation?

Delegated legislation occurs when Parliament gives authority to ministers, government departments, or agencies to create detailed rules and regulations. It is important in business because it allows flexible and technical regulation of industries.

What is legislative Power

Power to make law vested in Parliament, comprising the monarch, Senate, and House of Representatives.

What is the structure of Parliament?

Australia has a bicameral system: Lower House (House of Representatives) → forms government; Upper House (Senate) → reviews and scrutinises legislation.

What are the steps in the law-making process?

A bill is introduced (usually by a minister) → It is drafted by legal experts → Passed through the Lower House (3 readings and debate) → Reviewed by the Upper House (may amend) → Given Royal Assent → Becomes law (commences).

What is a double dissolution?

A mechanism under the Constitution used to resolve deadlocks where both houses are dissolved and an election is called, followed by a possible joint sitting.

What is judicial power?

Judicial power is the authority of courts to interpret and apply the law in legal disputes, ensuring laws are applied fairly and consistently.

What is the difference between civil and criminal law?

Civil law → disputes between individuals or businesses (e.g. contracts, negligence); Criminal law → offences against the state, prosecuted by the government.

Do judges make law?

While Parliament is the primary law-maker, judges effectively create law through interpretation and precedent, especially where legislation is unclear or absent.

What is the doctrine of precedent?

A legal principle where courts follow previous decisions in similar cases to ensure consistency, predictability, and fairness in the legal system.

What is a binding precedent?

A precedent from a higher court in the same hierarchy that must be followed when the facts of a case are similar.

What is a persuasive precedent?

A precedent that courts may consider but are not required to follow, such as decisions from other jurisdictions or lower courts.

What does "following precedent" mean?

Applying an existing legal rule from a previous case when the material facts are similar, ensuring consistency.

What does "distinguishing precedent" mean?

A judge decides a case differently because the facts are materially different, allowing flexibility in the law.

What does "overruling precedent" mean?

A higher court rejects a previous legal rule, meaning it is no longer binding for future cases.

What is judicial activism?

Judicial activism occurs when judges actively interpret or expand the law, sometimes going beyond strict interpretation to address gaps or modern issues.

Why is the separation of powers important?

The separation of powers is important because it ensures no single branch of government can wield absolute power. By dividing responsibilities among the Legislative, Executive, and Judicial branches, it promotes a system of checks and balances that protects individual rights, prevents abuses of power, and facilitates fair governance.