PRINCIPLES OF BUSINESS LAW
PRINCIPLES OF BUSINESS LAW LEGISLATION
ORIGIN OF LAW Roman Law – European ‘Civil Law’ English Law – UK and AUS ‘Common Law’. (Replaced Indigenous Law in Australia) Dynamic. That is, law is constantly evolving in the details (rather than fundamentally different principles)
LAW MAKING BODIES The Courts Legislatures and Local Councils Leg. Council, Leg. Assembly SA, TAS – Leg. Council. House of Assembly QLD + T’s – Leg. Assembly ONLY Note. The legislatures of territories are not called Parliaments
LAW MAKING POWERS OF THE LEGISLATURES States and T’s – no limitations on their power to make law for peace and good government, except for areas of power exclusive to the Cth Govt. BUT, only applies within jurisdiction. Some powers are shared between the Cth and the States, these are called concurrent powers – Section 51 of the Constitution Laws will co-exist unless they overlap and are challenged under section 109 Exclusive powers are exercisable only by the Cth – Section 51 and parts of 52 of the Constitution Local Councils are established by the states and have the power to make ‘by-laws’ These will be invalid if they are inconsistent with state or Cth law, or is they exceed the jurisdiction established for the Council by the state
THE LEGISLATIVE PROCESS Initiation First Reading Second Reading Committee Stage / Consideration in Detail Third Reading Passed by First House Repeat AMENDED Royal Assent Publication Commencement
Clerk lists the Bill for first reading The long title is read, no debate Minister’s speech, debate, vote Form committee to examine detail The title is read again Voted by majority of first house Same as above in second house If amended, back to first house GG must sign on behalf of Crown Published in Government Gazette Now operates as law (28 Days)
INTERPRETING LEGISLATION Legislation needs to be interpreted if the wording of an Act is ambiguous or unclear Literal Approach Dictionary meaning Golden Rule Modify the literal meaning to avoid absurdity Purposive Approach Interpret the meaning of the Act so that it complies with the ‘purpose’ section of the Act. Use this if the literal approach is inadequate. Intrinsic Evidence – Other sections, the structure, the long title Extrinsic Evidence – Parliamentary papers, the second reading speech, Committee reports, background documents (treaties, etc) Noscitar Each word in a provision should be understood in the light of the surrounding words Ejusdem generis The more general words should be limited to the same category as the specific thing stated by the provision Expressio unius If specific things are mentioned in a provision, other specific things not mentioned are excluded Ex abundanti In reference to above, in some instances, the specified thing may be intended as an example, rather than a limit Leges posteriors If more than one statutory provision applies, the later provision abrogates the earlier provision Generalia If a general provision follows a specific one, the general provision does not override of limit the previous. Unless clearly intended to do so The rules of natural justice must always be adhered to Eg, right to fair trial, right to be heard, etc
APPLYING LEGISLATION Must be of the same jurisdiction Commencement Date must be prior to crime Must be relevant to the act Concluding statement that covers the ratio decidendi, obiter dictum, and the process of interpretation
ORIGIN OF LAW Roman Law – European ‘Civil Law’ English Law – UK and AUS ‘Common Law’. (Replaced Indigenous Law in Australia) Dynamic. That is, law is constantly evolving in the details (rather than fundamentally different principles)
LAW MAKING BODIES The Courts Legislatures and Local Councils Leg. Council, Leg. Assembly SA, TAS – Leg. Council. House of Assembly QLD + T’s – Leg. Assembly ONLY Note. The legislatures of territories are not called Parliaments
LAW MAKING POWERS OF THE LEGISLATURES States and T’s – no limitations on their power to make law for peace and good government, except for areas of power exclusive to the Cth Govt. BUT, only applies within jurisdiction. Some powers are shared between the Cth and the States, these are called concurrent powers – Section 51 of the Constitution Laws will co-exist unless they overlap and are challenged under section 109 Exclusive powers are exercisable only by the Cth – Section 51 and parts of 52 of the Constitution Local Councils are established by the states and have the power to make ‘by-laws’ These will be invalid if they are inconsistent with state or Cth law, or is they exceed the jurisdiction established for the Council by the state
THE LEGISLATIVE PROCESS Initiation First Reading Second Reading Committee Stage / Consideration in Detail Third Reading Passed by First House Repeat AMENDED Royal Assent Publication Commencement
Clerk lists the Bill for first reading The long title is read, no debate Minister’s speech, debate, vote Form committee to examine detail The title is read again Voted by majority of first house Same as above in second house If amended, back to first house GG must sign on behalf of Crown Published in Government Gazette Now operates as law (28 Days)
INTERPRETING LEGISLATION Legislation needs to be interpreted if the wording of an Act is ambiguous or unclear Literal Approach Dictionary meaning Golden Rule Modify the literal meaning to avoid absurdity Purposive Approach Interpret the meaning of the Act so that it complies with the ‘purpose’ section of the Act. Use this if the literal approach is inadequate. Intrinsic Evidence – Other sections, the structure, the long title Extrinsic Evidence – Parliamentary papers, the second reading speech, Committee reports, background documents (treaties, etc) Noscitar Each word in a provision should be understood in the light of the surrounding words Ejusdem generis The more general words should be limited to the same category as the specific thing stated by the provision Expressio unius If specific things are mentioned in a provision, other specific things not mentioned are excluded Ex abundanti In reference to above, in some instances, the specified thing may be intended as an example, rather than a limit Leges posteriors If more than one statutory provision applies, the later provision abrogates the earlier provision Generalia If a general provision follows a specific one, the general provision does not override of limit the previous. Unless clearly intended to do so The rules of natural justice must always be adhered to Eg, right to fair trial, right to be heard, etc
APPLYING LEGISLATION Must be of the same jurisdiction Commencement Date must be prior to crime Must be relevant to the act Concluding statement that covers the ratio decidendi, obiter dictum, and the process of interpretation
