Fundamentals of Law II – Global Homework Experts

LAWS11030 Foundations of
Business Law
Fundamentals of Law II
Sources of Law
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Lecture Overview
A. Indigenous Law
B. Categorising Law
C. Statutory Law
D. Common Law

A. Indigenous Law
Australia’s First Nation Peoples
• Indigenous peoples have inhabited Australia for over 60,000 years and owned the land through
customs and laws until colonisation – made up peoples from Aboriginal and Torres Strait Island
tribes and are Australia’s first nation people
Map of Indigenous Australia
– Aboriginal and Torres Strait Islander groups included in the map based on published resources available
between 1988 and 1994 and based on the cultural, language and trade boundaries and relationships
between groups
• Aboriginal peoples may choose to identify with their language groups and traditional country (eg.
Gunditjamara people are traditional custodians of western Victoria) and some aboriginal people
prefer to be referred to by their regional identity eg. Koori, Murri, Nunga or others
– Aboriginal people have a deep connection with the land or Country and land is central to their spiritual
identity which remains despite the many Aboriginal people who no longer live on their land.
– Aboriginal people describe the land as sustaining and comforting, fundamental to their health, their
relationships and their culture and identity
• Torres Strait Islanders generally define themselves as being from specific islands, tribes, family
groups and/or sea country. In the Torres Strait people may live in one community but have
historical ties across multiple islands

British Colonisation of Australia
• In 1770 Captain Cook claimed Australia on behalf of England à the
First Fleet arrived in 1788 and created a penal colony in Sydney
– British settlers claimed
terra nulius (the land belonged to no one)
applied to Australia
à imported British law to the colonies,
thereby displacing indigenous law and land ownership
• Settlement or invaders?
– Occupied: laws can only be enforced with consent of conquered
people
– Unoccupied: all laws of settling nation were regarded as coming
into force

Recognition of Indigenous Laws
• The doctrine of terra nullius failed to recognise
indigenous law and land rights until…
Mabo v State of Queensland (No 2) (1992) 175 CLR 1
– Recognition of laws and customs of indigenous Australians
– Recognised that Aboriginal and Torres Strait Islander peoples have rights
to the land – rights that existed before the British arrived
– Led to the creation of the
Native Title Act 1993 (Cth)
Development of Indigenous Land Ownership Rights
• In The Wik Peoples v The State of Queensland & Ors [1996] HCA 40 the High Court
held that native title rights could coexist on land held by pastoral leaseholders.
• The High Court decided that:
1. A pastoral lease does not confer rights of exclusive possession on the pastoralist
2. The rights and obligations of the pastoralist depend on the terms of the lease and the law under
which it was granted
3. The grant of a pastoral lease does not always extinguish any remaining native title rights
4. If there is inconsistency between the rights of the native title holders and the rights of the
pastoralist then the rights of the pastoralists must prevail
• The Wik decision is important in that indigenous land ownership can co-exist with
pastoral leases
à principle applies to mining leases
The Uluru Statement from the Heart
• 250 representatives of Indigenous peoples from across Australia held a
Constitutional Convention at Uluru in 2017
• On 26 May 2017 indigenous Australians released the Uluru Statement from
the Heart and called for substantive Constitutional and structural change to
recognise the sovereignty of indigenous peoples
1. Constitutional reforms to empower indigenous peoples so they can take their rightful
place in their own country
2. Establishment of a First Nations Voice in the Constitution – permanent institution that
will provide advice to the Parliament and Government on important issues
3. The Voice to Parliament will empower Aboriginal and Torres Strait Islanders to have
a say on the laws and policies that impact them
4. Create a Makarrata (coming together after a struggle) Commission to supervise a
process of agreement-making between governments and First Nations and truthtelling about Australian history

B. Categorising Law
Categorising Legal Systems
1. Common law
2. Civil law
3. Indigenous law
4. International law

Public Law v Private Law
1. Public law
– Involves the organisation of the government and the relationship
between government and the people
– Eg. constitutional law, administrative law, criminal law, taxation
law
2. Private law
– Governs relationships between private persons or organisations
– Eg. contract law, property law, consumer law
Ø Overlap can exist – eg. property law
Civil Law v Criminal Law
1. Civil law
– Action between citizens
– Equates to private law
2. Criminal law
– State action against a citizen
Ø Different procedures, remedies, penalties, etc apply to each
category of law
Ø Some offences incur civil and criminal penalty eg. breach of
some director duties

Substantive v Procedural Law
1. Substantive law
– The actual rights and obligations of individuals and the
state in a specific law eg. formation of contract and what
constitutes a criminal offence
2. Procedural law
– The formal procedures that govern legal proceedings
– Procedural law regulates processes in civil litigation and
criminal prosecution eg. rules of evidence, the right to a
jury, the right to appeal

Domestic v International Law
1. Domestic law
– Laws that govern persons within a particular jurisdiction eg. Queensland and
Commonwealth/federal laws apply to a person living in Brisbane or Rockhampton
– This unit focuses on domestic Australian law contained in state or federal legislation,
common law and equity
2. International law
– Australian law is increasingly influenced by obligations under numerous international
laws that attempt to harmonise key business, employment and human rights laws
– Public international law: rules regulating relationships between states that involve a
mix of custom, treaties and conventions passed by bodies such as the UN, WTO, ILO
and IMF. Australia has obligations if it signs up to an international law and ratification
of law generally requires adoption of the international law in Australian legislation but
this does not always happen in Australia and other countries
– Private international law: is also known as conflict of laws and is a system of rules that
determine which state laws apply to disputes between people from different nations
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Can the Law Change?
• The need for and rate of change in law varies depending on the area of law and factors
that include changes in industry practice, innovation and technology
Political change: different political parties focus on different policies and a change in
government can lead to new legislative agendas
Fixing problems: typically laws are introduced to address a specific problem and laws may
be ineffective if they do not evolve to meet new economic, social, industry, technology and
normative practices
Changing values: the values of society change over time and law must keep pace eg.
women’s rights and gender equality or segregation in the southern states in the United
States
Lobby groups: various lobby groups push for legal change eg. unions, industry
associations, religious groups, community groups, charities and environmental groups
Change in technology: technological changes can necessitate the need for new laws or law
reform eg. the regulation of information and free speech on social media platforms

The Regulatory Burden
• Modern regulation in countries like Australia have been
described as ‘the regulatory state’ due to the volume and
complexity in regulation
• State and federal governments volumes of new and
amended laws that create a complex system of
regulation with other non-government forms of regulation
and create a ‘regulatory burden’
• The regulatory burden involves the time, cost, resources
and difficulty of complying with complex laws
à
frequently involves specialist employees, consultants or
advisers

C. Statutory Law
What is a Modern Statute?
• Legislation now consists of:
– An Act passed by both houses of parliament; and
– Legislative instruments – regulations, codes,
standards and statutory authority directives
• The form of the statute provides information on
the regulated activity, the year it was passed and
the jurisdiction eg.
Corporations Act 2001 (Cth),
Transfer of Land Act 1958 (Vic)
Functions of Statutes
• General functions of statutes :
1. Create new laws.
2. Repeal old laws created by earlier statutes or common law.
3. Codify the law by incorporating previous statutory provisions
and common law principles.
Ø Recent decades have seen a fourth function – nationalising the law to
create a uniform law across all States and Territories eg.
Personal
Property Securities Act 2009
(Cth); National Consumer Credit
Protection Act 2009
(Cth).
The Statutory Mix in a Federation
• Businesses in Australia are governed by a
regulatory mix of State/Territory and federal
legislation.
• The regulatory burden is the cost (time and money)
in complying with law – need for legal advice.
• Non-compliance can result in enforcement by
customers, other businesses and statutory
authorities.

Complying with Statutes
• Citizens and businesses must understand their obligations under an
Act to ensure certainty and compliance.
• Conflicting views or uncertainty about the meaning or effect of a
provision of an Act may need to be resolved by the courts.
• Assistance in interpreting Acts is provided by:
1. Commonwealth, State and Territory Acts Interpretation Acts;
2. Common law rules and maxims of statutory interpretation.

Rules of Statutory Interpretation
• The literal rule
– Courts interpret the words in legislation literally – natural, ordinary and grammatical
meaning
• The golden rule
– Used when the literal rule would lead to an absurd, capricious or irrational
interpretation
à also when literal interpretation contravenes legislative intent
• The mischief rule
– When a literal interpretation is not possible the court may consider the ‘mischief’ the
parliament intended to remedy
• Purposive approach
– Courts must consider the objects and purpose of an act in interpreting its provisions
– Legislated in state and federal interpretation acts: eg. s 15AA
Interpretation Act 1901
(Cth)
Finding Legislation and Parliamentary Information
• Legal databases
Austlii Database
– Library databases: eg. LexisNexis, Westlaw, etc
• Parliament websites
Parliament of Australia
Queensland Parliament
City of Melbourne
D. Common Law (Judge-Made
Law)

What is Judge-Made Law?
• Judge-made law consists of:
1. Common law – the principles of law developed by judges in
deciding particular cases eg. contract and tort
2. Equity – developed in England in response to the strict nature
of common law rules
Ø These laws are no longer exercised by separate courts – courts in Australia
can apply both common law and equitable principles and remedies.
• An act of parliament can revoke or amend a rule common law or
equitable rule – legislation is viewed as democratic in that it is
passed by elected representatives.

The Doctrine of Precedent
• Justice requires consistency and predictability
– The doctrine of stare decisis (precedent) – the decision of a court in a case binds judges
lower in the same court hierarchy in deciding cases of a similar nature.
• Cases decided in one hierarchy are not strictly binding on the courts
in another but will be of persuasive authority only.
• The precedential value of the decisions of the appellate courts of
other States is very strong.

The Doctrine of Precedent
• The High Court “has never regarded itself as bound by its own previous
decisions”:
Nguyen v Nguyen (1990) 169 CLR 245 but will only reconsider a
previous decision with caution and for strong reasons:
Lange v Australian
Broadcasting Corporation
(1997) 189 CLR 520
• The Full Court of the Federal Court will depart from its own previous
decision if convinced that it is “clearly erroneous” –
Endeavour Energy v
Communications, Electrical, Electronic, Energy, Information, Postal,
Plumbing and Allied Services Union of Australia
(2016).
• A State or Territory Court of Appeal will normally follow its own previous
decisions.
• A single judge of a lower court is not bound by an earlier decision of another
judge of the same court.

Is an Entire Judgment Binding?
• Not all of a judgment is binding precedent
Ratio decidendi is the reason(s) for a decision by the majority of judges and is
the law which creates a binding precedent – see Brennan J in
O’Toole v Charles
David Pty Ltd
(1991) 171 CLR 232 at 267.
Obiter dicta are statements in a case that were not strictly necessary for the
decision and are generally non-binding
à lower courts are now bound by the
High Court’s ‘seriously considered dicta’:
Farah Constructions Pty Ltd v Say-Dee
Pty Ltd
(2007) 230 CLR 89.
– Obiter dicta are also the decisions of the minority judges
• Lower courts may attempt to not apply a precedent if the facts of the
later case can be differentiated

Does Common Law or Statute Prevail?
• The supremacy of parliament means that it is the
‘sovereign lawmaker’ within Australia.
– Basis is the democratic nature of legislation through
the election of parliamentarians
• Legislatures have the power to change the
common law through legislation.
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