Framework of Australian Laws - Assignment Example

Fundamentals of Australian Law Student’s Name Institution Outline A. Framework of Australian Laws B. Contract Laws C. Tort Laws D. Business Structures Framework of Australian Laws The Australian law covers a lot of aspects, which it addresses through its chapters. The aspects that are covered within the Australian law include legal systems, business, family law, business agreements and international relations. This paper will discuss and analyse the various aspects of Australian law including the legal systems, contract laws, tort laws and business structures as they exist within the law. The legal system in Australia was developed from the United Kingdom’s common law system, which places a heavy importance on separation of power. The country has a federal governance system, which distributes power from the federal government to the states. These states can make laws on business, tax, policing, and issues regarding citizenship. The country’s states and territories have their own legislative authority on matters, which do not touch on the federal government (Gamble, Du Plessis, & Neal, 2008, p. 42). The country has eight states and one territory system, which make up the legal system. The federal and state systems of Australia consist of the executive, the legislature and the judiciary arms of government. The courts system consists of the High Court, the Federal Court, the Family Court and the Federal Magistrates Court. The High Court rules on federal related issues and interprets the constitution regarding cases that challenge the validity of federal laws. The High Court is headed by the Chief Justice together with other six judges and it serves as the highest appellate court in Australia. The Federal Court rules on matters regarding civil and criminal matters. It also has appellate powers over rulings made by the Federal Magistrates Court. The Family Court rules over intricate family disputes, child rights issues and other matters that are related to inheritance and marriage. The Federal Magistrates Court handles matters relating to crimes, family, business practices and employment issues that are brought before it (Gamble, Du Plessis, & Neal, 2008, p. 49). There are also state and territory courts, which handle various legal matters, which happen within their jurisdictions. Contract Laws Contract law in Australia originates from English common laws and the country defines it as an agreement between two parties, which can be enforced by the law. The contract is taken as valid under the established law if it contains a promise that is intended to be achieved by both parties to it, who are bound by its terms. The contract can be simple or formal; a formal contract has a clear structure and purpose it seeks to serve. Examples of formal contracts include contracts of records such as court records and contracts that are valid under seals such as deeds. Simple contracts are those that are done with the intention to create an agreement between two parties (Gamble, Du Plessis & Neal, 2008, p. 77). The contracts can either be oral or in written form and they must be agreed to and formed with the consent of both parties after they have agreed on the terms governing it. The parties to a contract have rights and responsibilities regarding the way a contract is supposed to be enforced. These rights and obligations are determined by the terms, which exist within a contract. The express terms are those conditions that the parties to a contract discuss before or during the time they sign a contract. Implied terms are those that are implied by contract law even if they have not been highlighted by the parties to the contract. Some of the terms can be modified by the parties (Gamble, Du Plessis, & Neal, 2008, p. 82). The failure by one of the parties to observe the stipulated terms can render it unenforceable. If one of the parties fails to execute his or her promise as stipulated in the contract, it becomes null and void. The termination of a contract occurs as a result of different issues; for example, a contract can be terminated after both parties have performed their obligations as stipulated in the contract. Termination of the contract can also take place after both parties have agreed to it through a provision within it or through a separate agreement between them. A contract can also be terminated as a result of a breach of the agreement by one of the parties. The party who is not responsible for the breach can terminate it if its terms allow for it as a result of a contravention by the other party involved (Gamble, Du Plessis, & Neal, 2008, p. 91). The non-breaching party can also terminate the contract if the other party does not show willingness to perform his or her obligations as stipulated in the agreement. Furthermore, the non-breaching party has the right to terminate it if the breaching party has done a serious act that makes it difficult for both parties to be bound by the agreement. Tort Laws A tort is a civil offence that is committed by an individual and is different from a breach of contract. The tort laws in Australia are mainly concerned with civil offences that are done because of the actions of an individual or the failure to act in a certain manner. A tort of negligence can be enforced in cases where a defendant fails to perform his or her duties, leading to a harmful experience to another person. The act of a defendant causing public nuisance in an area at the detriment of the other people, is taken as a contravention of the tort of negligence. Giving out advice that one knows is wrong is also covered by the tort of negligence under the Australian laws (Gamble, Du Plessis, & Neal, 2008, p. 112). The losses that are experienced are considered by the court of law in the course of making a ruling on the matter. The tort of liability discharges responsibility to a defendant for a wrongful action committed irrespective of whether the act was accidental or not. The torts of negligence and liability affect people and private businesses in different ways. The foreseeable actions of a defendant as regards performing a duty in some cases do not always make him or her responsible for the negligent actions that occur. There has to be enough proof to determine that the duty that was to be performed was allocated to the defendant legally. The tort of professional negligence makes experts to be held liable in case of damage and other losses that occur within their work stations (Gamble, Du Plessis, & Neal, 2008, p. 117). The professional is held liable for his negligence and is responsible under the law to bear the resulting consequences. However, there should be enough proof to show that a duty of care existed before the negligent action took place. This is especially so where personal harm or injury is said to have been experienced as a result of the negligent actions that take place. The proximity to the plaintiff who experiences a harmful incident is always taken into consideration by a court. The economic loss that is experienced is also factored in by the tort. A person who is liable for a tort of professional negligence can be made to pay damages to the plaintiff who suffers personal injuries or an economic loss as a result of that act (Gamble, Du Plessis, & Neal, 2008, p. 119). Professional negligence in a court can only be proven by the foreseen ability of harm, closeness and reasonable grounds to grant the defendant a duty of care. Vicarious liability is a form of secondary liability that apportions responsibility to a superior for the actions of a subordinate by the tort laws. This form of liability affects employers who are held liable for negligent actions carried out by their employees while they are doing their assigned duties. This doctrine also transfers liability to a parent in a situation where a negligent act is done by his or her child. A parent who allows his child to drive his car, yet he or she has no driving licence, is liable for the negligent actions of that child that result in the injury of other people (Lambris, 2008, p. 65). However, an adequate assessment must be done to establish if the actions of the employee are in any way connected to the duties assigned to him within that workstation before vicarious liability is imposed. There has been a review of the negligence torts because of the increase in unnecessary litigation. Laws concerned with personal injuries have been reviewed to determine if they are effective in resolving various torts of negligence in different territories of the country. The introduction of the new laws was as a result of the high number of claims that were made against the insurers in the past, which placed a heavy burden on them. This has seen the number of negligence and personal injury torts reduce sharply in the country (Gamble, Du Plessis, & Neal, 2008, p. 71). The plaintiffs have more difficulties in proving personal injury and negligence against defendants. The conditions for payments to be made to the plaintiffs for damages that have been experienced have also been made more stringent. Business Structures The main business structures that are recognised legally within Australia are: sole proprietorship, partnerships, private limited liability companies and public companies. The main elements that identify these business ownership structures vary from each other. These include sharing of profits and losses, taxation, responsibility for liability and performance of duties. Other criteria include ownership structure and legal obligations of the owners of a company. A sole proprietorship has the advantage of enjoying all the profits alone but a disadvantage of bearing all the risks related to his business alone (Lambris, 2008, pp. 111-114). Partners share the liabilities and risks that are experienced but they take a long time to make crucial decisions. The owners of private limited companies do not experience high liability risks but have to undergo more procedures before they are allowed to operate. References Gambler, R., Du Plessis J. J., & Neal, L. (2008). Principles of business law. Auburn, VIC: Lawbook Company. Lambris, M. (2008). First principles of business law. Sydney, NSW: CCH Australia Ltd. Read More