Wk1

Why do we need law?

To resolve disputes, maintain social order, enforce community values, protect the disadvantaged, stabilise the economy, and prevent misuse of power

Private law

Law regulating relationships between individuals, e.g. contract, tort, family, property, succession law

Public law

Law regulating relationships between individuals and the state, e.g. criminal, constitutional, tax, employment law

Criminal law

Law dealing with wrongs against society, prosecuted by the state, standard of proof is beyond reasonable doubt, aim is to punish

Civil law

Law dealing with wrongs between private individuals, brought by a plaintiff, standard of proof is balance of probabilities, aim is to compensate

Standard of proof in criminal law

Beyond reasonable doubt

Standard of proof in civil law

Balance of probabilities

OPP (Office of Public Prosecutions)

Brings criminal cases to trial on behalf of the State after police investigate and report findings

ASIC

Investigates breaches of the Corporations Act

ACCC

Investigates breaches of the Competition and Consumer Act 2010

Civil action remedies

Damages/compensation, injunction (stop order), restitution for breach of fiduciary duty

Civil law system

A legal system with one source of law - legislation/codes made by parliament (e.g. France, Germany, Japan, China)

Common law system

A legal system with two sources of law - legislation (parliament) and case law (courts) (e.g. UK, Australia, Canada, NZ)

Common law (as a source of law)

Legal principles made by judges deciding cases, also called case law or judge-made law

Statutory law

Law made by Parliament, also called legislation or Acts of Parliament

Equity

A body of rules developed to alleviate the harshness/unfairness of the common law, originating in ecclesiastical (church) courts of chancery

Rule when equity and common law conflict

Equity prevails, per s29 Supreme Court Act 1986 (Vic)

Equity follows the law (maxim)

Equity will not depart from the common law unless the common law result is manifestly unfair

Clean hands (equity maxim)

Equity will not help a person who is themselves guilty of misconduct

Equity acts in personam (maxim)

Equity provides a remedy to a specific person rather than laying down general law

Distributive justice

Justice concerned with how economic resources and power should be divided (e.g. egalitarianism, desert theory, utilitarianism)

Retributive justice

Justice concerned with the proper response/punishment to a wrongful act

Restorative justice

Justice concerned with restoring the victim and re-integrating the perpetrator into society

Procedural justice

Justice concerned with ensuring the process used to reach a decision is fair (e.g. timely notice, fair trial, right to legal representation)

Natural justice

Fairness expected from a person exercising administrative/government power

Egalitarianism

Distributive justice theory where everyone gets an equal share, regardless of need

Desert theory

Distributive justice theory where people get what they deserve based on effort or performance

Utilitarianism (distributive justice)

Distributive justice theory focused on maximising overall happiness/utility for the greatest number

Rule of Law

The principle that a nation is governed by law, not by the arbitrary decisions of individual officials; no one, including government, is above the law

Rule of Law requirements

Certainty, flexibility, accessibility, fairness

Magna Carta (1215)

Document forced on King John by barons at Runnymede; first time a monarch's power was restrained by law ('subject to the law'); introduced 'no taxation without representation'

Characteristics of a legal system complying with Rule of Law

Law applies equally to all; courts uphold legal rights; no punishment unless conduct is expressly illegal

Legal Positivism

Jurisprudence theory that law must be made properly according to the constitution; law is defined by what it IS, not what it ought to be; no moral content required

Natural justice (jurisprudence theory)

Theory that law is determined by universal standards of conduct, regardless of local/international law at the time (e.g. Nuremberg trials)

Law vs ethics

A legal decision may not be ethical, and an ethical decision may not be legal; law is a minimum standard, not an ethical aspiration

Utilitarianism (ethical theory)

Ethical theory focused on outcomes; the right action maximises happiness/utility for the greatest number

Kantianism

Ethical theory focused on principles and processes; some actions have intrinsic moral value/are inherently wrong, regardless of outcome

Virtue ethics

Ethical theory focused on the character of the decision-maker; asks 'what would a good person do?'

Terra nullius

Legal doctrine under which Australia was declared 'uninhabited' at the time of British settlement, despite Indigenous occupation for tens of thousands of years

Doctrine of reception

Doctrine under which British settlers brought British common law with them to Australia

Federation

The joining of 6 self-governing British colonies into the Commonwealth of Australia on 1 January 1901

Key features of the Australian legal system

Federation of states, constitutional monarchy, liberal democracy, representative democracy, responsible government, separation of powers (partial), common law system

Constitutional monarchy

System where the Head of State is the reigning British monarch, represented by the Governor-General (federal) and Governors (state)

Liberal democracy

System focused on individual rights (e.g. free speech, fair trial), free markets, and fair elections

Representative democracy

System where citizens elect a member to represent their electorate in Parliament, rather than directly electing the PM or Premier

Separation of powers

Principle (from Montesquieu) that legislative (Parliament), executive, and judicial (courts) power should remain functionally separate to prevent domination by one branch

Does Australia have a true separation of powers?

Not fully - the executive generally forms the majority in the Lower House, so parliament and executive overlap; courts remain separate (judiciary)

Responsible government

System (Westminster) where the executive government (ministers/cabinet) are elected MPs answerable to Parliament

Three levels of government in Australia

Federal Parliament, State/Territory Parliaments, Local Councils

Court hierarchy - top court

High Court of Australia, above both State/Territory courts and Commonwealth courts

The Australian Constitution

The fundamental rules of law governing the Commonwealth of Australia, in effect since 1901

Section 51 of the Constitution

Grants the Commonwealth Parliament legislative power over 39 listed 'heads of power', mostly concurrent powers

Exclusive powers

Law-making areas given solely to the federal government (e.g. customs, defence, currency)

Concurrent powers

Law-making areas shared between State and federal governments, mostly listed in s51 (e.g. taxation, marriage, banking, corporations)

Residual powers

Law-making areas not given to the federal government, remaining with the States (e.g. education, property, crime, health)

Tasmanian Dam Case (Cth v Tasmania 1983)

Case where Cth blocked a Tasmanian hydro-electric dam using the external affairs power (s51(xxix)) via an international environmental treaty; broadened federal legislative power

External affairs power

s51(xxix) - Commonwealth power to conduct Australia's international relationships, interpreted broadly by the High Court to expand federal power

NSW v Cth (1990)

Case where Cth's national corporations regulation legislation was found invalid, as it did not fall under the external affairs power or the corporations power at the time; States later voluntarily transferred power to Cth

Corporations power

s51(xx) - allows the Commonwealth to regulate companies, but originally not to create/register them (that was a State power)

Wallis v Downward-Pickford (1994)

Case establishing that under s109, where a State law and a Commonwealth law conflict, the Commonwealth law prevails

Section 109 of the Constitution

Provides that where a State law is inconsistent with a Commonwealth law, the Commonwealth law prevails

Section 128 of the Constitution

Sets out the process to amend the Constitution: absolute majority in both Houses of Parliament, then a referendum passed by a majority of voters AND a majority of States

How many constitutional amendments have succeeded?

Only 8 out of 45 attempts since Federation

Executive power

The power to administer and carry out the law; vested in the King, exercised by the Governor-General

Ombudsman

Independent office that investigates complaints about administrative decisions made by government departments

Freedom of Information (FOI)

The right for individuals to access documents and information held by government

Administrative Review Tribunal (ART)

Federal body that reviews administrative government decisions; replaced the Administrative Appeals Tribunal (AAT) in October 2024

Judicial review

Common law remedy where a court orders a government official to act, or stop acting, via prerogative writs

Defining business law - 4 elements

1) A set of rules 2) made by the state (courts or parliament) 3) enforceable in courts 4) relating to business activities