Summary LPC Notes CLIP (Commercial Law and IP) Revision
Notes (80% Distinction) 2022
Commercial Law Revision Notes
Law is: The set of rules, made by state, and enforceable by prosecution or litigation.
Business Law: The set of rules regulating businesses and business activities made by the
state and enforceable by prosecution or litigation.
Purpose of law:
• Resolve disputes
• Maintains social order
• Preserves and enforces community values
• Protects the disadvantaged
• Stabilizes the economy
• Prevents the misuse of power
Law
Public law
• Constitutional law
• Administrative law
• Criminal Law
• Taxation law
Private law
• Tort law
• Contract law
• Competition and Consumer law
• Property law
• Commercial law
• Employment law
• Company and Partnership law
Types of Legal systems
Civil law:
• Most Common
• Comes in forms of codes, statutes and constitutions
• Examples include France, Germany, Russia, China, Japan, Thailand and Korea
Common Law
• Main sources of law are legislation and case law
• The judiciary is much more powerful and influential in common law countries than in
civil law countries
• Examples include United Kingdom, Australia, Canada, New Zealand
,Summary LPC Notes CLIP (Commercial Law and IP) Revision
Notes (80% Distinction) 2022
Australian Legal System 6 characteristics
• Liberal democracy: Laws are made by, the executive government consists of, elected
representatives who exercise their power subject to the rule of law and to the
various federal and state constitutions
• Common Law legal system: Our legal system is based on the British legal system, and
can be contrasted with other forms of legal systems such as civil law legal system.
• Constitutional monarchy: The head of state is Elizabeth 2 Queen of Australia
• Federation: In addition to the commonwealth government there are various state
governments that are not subordinate to the federal government
• Separation of power: Laws are made by a parliament administered by an Executive
council or government in Council, and interpreted and applied to particular cases by
a court system.
• Responsible Government: The ministers comprising the executive are elected
representatives who are also members of an are answerable to the legislature.
History:
• The British settled Australia rather than conquered it because they did not recognize
the indigenous laws in place
• !901 Commonwealth of Australia came into existence each state giving certain
powers to the federal government and at the same time retained their individual
identities and legislative authority
• Today Federal, State and territory government are free from interference from British
parliament
• The final step is to become a republic
Exclusive Powers: (Powers only exercised by Federal parliament/government)
Federal parliament only, examples include customs, defense, currency and territories.
Concurrent Powers: (Most of the powers granted to Federal under the constitution)
Federal and state parliaments, examples include Taxation, Marriage, Banking and external
affairs.
Residual Powers: (Not expressed in constitution so state parliament)
State Parliament only, examples include education, Property, Crime and Health.
Federal/State Relations
• If Federal parliament has not legislated in relation to any matters listed in s51, then
the matter remains within the authority of the state.
• If the state parliament has made a law in relations to one of these matters and the
federal parliament makes a law on the same matter then s109, Australian
constitution provides that the latter shall prevail and the former shall be invalid.
,Summary LPC Notes CLIP (Commercial Law and IP) Revision
Notes (80% Distinction) 2022
Changing the Constitution
• The proposed amendment must:
o Be passed by an absolute majority of both houses of parliament and
o Be put to the Australian voters in the form of a referendum and passers by
▪ A majority of voters
▪ A majority of states
o 40 attempts only 8 have been successful
The legislature:
• Legislative power is the power to make law, and in Australia is exercised by the
federal parliament and the various state and territory parliament
• Parliament means that it is the ‘sovereign lawmaker’ within Australia
Federal Government:
Crown: Governor General
Upper house: Senate
Lower house: House of Representatives
State Parliament
Crown: Governor
Upper house: Legislative council
Lower house: Legislative assembly
Lower house- Federal Parliament:
• House of representatives is the ‘peoples house’ providing equal representation for
the people of Australia
• Australia is divided into electorates about 150, with roughly equal numbers of voters,
each of which elects a representative
• The political party with the majority of members in the House of Representatives
form executive government
• The prime minister is traditionally a member of the lower house
Upper House- Federal Parliament:
• The senate is the ‘states house’ if protects the rights of the states
• There is an equal number of Senators from each state (12) in order to protect the
interests of the less populous states: The territories are represented by 2 senators
each.
, Summary LPC Notes CLIP (Commercial Law and IP) Revision
Notes (80% Distinction) 2022
Parliament process
• Proposal
• Drafting of Bill
• Lower house
• Upper house
• Royal assent
• Commencement
Bill readings
• First reading
• Second reading and debate
• Committee
• Third reading
Once a bill has passed both lower house and upper houses it goes to Royal accent of the
Crown Representative
Traditionally the crown representative acts on the advice of the executive government.
Failure of passing bill
• If it fails to pass the upper house and then 3 months passes and the bill again fails to
pass the upper house the governor general has the power to dissolve both houses
known as double dissolution.
• If the new parliament has another deadlock the governor general can convene a joint
sitting of both houses
Types of legislation
• Original acts
• Amendment acts
• Repealing acts
• Consolidating or reported acts
• Reviving acts
The executive
The executive power is the power to administer the law, i.e. carry on the business of
government and maintain order and security
• Federal (Council)
This power is vested in the Queen or in the Governor General who acts on the Queens
behalf
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