Kinh tế học - Chapter 1: Introduction to the legal system

This is the prescribed textbook for your course.Available NOW at your campus bookstore!Copyright © 2000 McGraw-Hill AustraliaIntroduction to the legal system Chapter 11Copyright © 2000 McGraw-Hill AustraliaThe lawThe law is a set of legal rules that governs the way members of a society act towards one another.2Copyright © 2000 McGraw-Hill AustraliaThe need for lawsLaws are required in society to regulate the behaviour of the individual, to correspond with what is acceptable to the majority of individuals,3Copyright © 2000 McGraw-Hill AustraliaClassificationPrivate Law allows individuals to take action against others (i.e. to sue one another).Public Law allows society (via the Public Prosecutor) to take action against others.4Copyright © 2000 McGraw-Hill AustraliaClassificationCivil Law - laws falling into the private law categoryLaw of TortsContract LawProperty LawCriminal Law - laws covering offences with which an individual can be charged5Copyright © 2000 McGraw-Hill Australia6Copyright © 2000 McGraw-Hill AustraliaDoctrine of receptionTo determine laws to be appliedNEW COLONYSETTLED CONQUEREDLaws of settlers Law of the conquered (English) would would apply apply7Copyright © 2000 McGraw-Hill AustraliaLegislation dealing with reception of English law4 Geo IV c96 - 1823: Created legislative councilMembers nominated by governorEnact legislation consistent with English lawExecutive council createdAuthorised the issue of letters patent8Copyright © 2000 McGraw-Hill AustraliaLegislation dealing with reception of English law (continued)The Third Charter of Justice - 1824:Established Supreme Court of New South WalesAustralian Courts Act 1828:All suitable statutes and common law in force in England as at 25 July 1828 should be applied in New South WalesLaws passed after 25 July 1824 did not automatically apply to colonies and Van Diemen’s Land9Copyright © 2000 McGraw-Hill AustraliaLegislation dealing with reception of English law (continued)Colonial Laws Validity Act 1865 (UK):Colonial legislation would be void only if it was repugnant with British laws extending to the colonies10Copyright © 2000 McGraw-Hill AustraliaLegislation dealing with reception of English law (continued)Commonwealth of Australia Constitution Act 1900 (UK):Created the Commonwealth of AustraliaCreated Commonwealth ParliamentSection 51: Subject matters in respect of which the Commonwealth Parliament has power to legislate. (State Government has these powers also.)TaxationDefenceCurrency, coinage and legal tender11Copyright © 2000 McGraw-Hill AustraliaLegislation dealing with reception of English law (continued)Commonwealth of Australia Constitution Act 1900 (UK) (continued):Bills of exchange and promissory notesBankruptcy and insolvencyCopyright, patents of inventions and designs, and trade marksMarriagesExternal affairsSection 109 of Federal legislation overrules State legislation.12Copyright © 2000 McGraw-Hill AustraliaLegislation dealing with reception of English law (continued)Statute of Westminster 1931 (UK):Adopted in Australia by the Statute of Westminster Adoption Act 1942 (Cwlth)Statute of Westminster Adoption Act 1942 (Cwlth):Independence of the Commonwealth Parliament from the British Parliament, as no British Act should extend to a dominion unless it had requested and consented to the statute.13Copyright © 2000 McGraw-Hill AustraliaLegislation dealing with reception of English law (continued)Privy Council (Appeals from the High Court) Act 1975 (Cwlth):Abolished appeals from the High Court to the Privy CouncilAustralia Act 1986 (Cwlth and UK):Repealed Colonial Laws Validity Act 1865Abolished appeals from Australian courts to the Privy Council in EnglandStates could not legislate on Foreign Affairs14Copyright © 2000 McGraw-Hill AustraliaLegislation dealing with reception of English law (continued)Mabo v Queensland (No.2) (1992) 175 CLRI:Overturned Doctrine of terra nulliusForm of native title to land recognisedNative Title Act 1993 (Cwlth):Statutory recognition of native titleEstablished the Native Title TribunalNative Title Amendment Act 1997 (Cwlth):Native title rights could co-exist with pastoral leasesWhere conflict, the rights of pastoralists survive15Copyright © 2000 McGraw-Hill AustraliaLaw making powerConcurrent powerS51: Allows Commonwealth and States to share powerse.g. taxation, bankingS109: If conflict, Federal legislation standsExclusive powerS52 (i): Commonwealth has sole authority in some areas to legislateS90: Specific areas of customs, excise and bountiesResidual powerStates have sole power to legislate in other areas not prohibited by Constitution16Copyright © 2000 McGraw-Hill AustraliaSources of lawCase law/judge-made lawCommon law - Judges follow decisions that had been made in similar, previously decided cases, with the remedy of damages.Equity - Judges follow decisions that had been made in similar, previously decided cases, with remedies based on fairness.Statute lawActs passed by Parliament17Copyright © 2000 McGraw-Hill AustraliaBill Act Introduction of Bill by Minister in House 1First reading Name of BillDate of second readingSecond readingMinister explains general principles of BillGeneral debateCommittee StageCommittee formed to examine and debateAmendments madeThird readingVote on BillSecond House of Parliament18Copyright © 2000 McGraw-Hill AustraliaBill ActSecond House of ParliamentFirst reading Name of BillDate of second readingSecond readingMinister explains general principles of BillGeneral debateCommittee StageCommittee formed to examine and debateAmendments madeThird readingVote on Bill19Copyright © 2000 McGraw-Hill AustraliaBill ActSecond House of ParliamentAcceptance- Royal Assent > Act of ParliamentNon acceptance - could lead to a Double DissolutionNotified in Gazette (Govt. bulletin)20Copyright © 2000 McGraw-Hill AustraliaDelegated legislation Made under the authority of an Act of Parliament - subordinate legislationDue to: Time limitationsExpertise limitationsMay be:Overruled by Government which enacted legislation giving authority21Copyright © 2000 McGraw-Hill AustraliaCase lawInterpretation of statuteApply common law principles22Copyright © 2000 McGraw-Hill Australia