In Australia Federal government was established by the constitution of Australia, and this Federal government consists of the Parliament, the Executive Government and the Judicature. These three parts of the government are known as three arms of the government, and these arms are defined below:
Legislature- it is also known as parliament and constitution imposed legislative power of commonwealth in the parliament that is power to make laws. Legislature is responsible to debate and vote on new laws.
Executive- it is also known as Australian government and this arm of the government is responsible for enacting and upholding the laws framed by legislature. However, it must be noted that various members of legislature are also the members of executive, and they have special responsibilities for certain areas of the law.
Judiciary- this arm is considered as the legal arm of the Federal government and this arm of the government is independent of the other two arms of the government. This arm is also responsible for enforcing the law and they also keep check on the other two arms whether they are acting within their powers or not (Parliament of Australia, 2017).
A tort is considered as legal wrong which is committed by one person one person or entity against the other person or entity, and under tort usual remedy provided by Court is damages. Generally, torts protect the fundamental liberties which include personal liberty and also tort protects fundamental rights of person such as property rights, and protects a person from interferences by other people or entities and by the Crown (ALRC, 2017). Following are the common type of torts:
Defamation- this type of tort is related to the reputation of the person, and it is divided into two parts that is slander (defaming someone orally), and Libel (defaming someone through written statements). Example- fiction love story published in newspaper about a girl from her name.
Negligence- when any person owns duty of care towards another person and breached such duty which causes injury to another person, then it is considered as tort of negligence. Example- driver fail to follow traffic light rules and cause accident of road user.
Nuisance- it is a common law tort, which cause injury, offence, annoyance or trouble to another person. Example- person omit to discharge his legal duty (Law Vision, 2017).
Tort is considered as civil wrong and it is different from breach of contract, and under tort plaintiff has right to claim for civil damages. Tort is considered as legal wrong which is committed by defendant towards the plaintiff. Under tort of law generally, court awarded damages to plaintiff. General form of tort is defamation, negligence, and nuisance. Torts are of two type direct tort and indirect tort, and difference between two is sated below:
Direct tort- direct tort are also known as intentional tort, and thee torts are based on an action such as trespass. In other words, direct torts are those torts in which defendant intentionally commit wrongful act and such act directly cause harm to the plaintiff.
Indirect tort- these torts are known as unintentional tort, and they are based on legal action known as the action on case such as negligence (Outlaw, 2011).
Contract is an agreement which is enforceable by law, and following are some essential elements of contract:
Offer- there is no particular for to give an offer, and it is considered as an communication which includes promise to do something if other person to whom offer is directed does something or not do something. Person who gives an offer is known as offeror and to whom offer is given is known as offeree.
Acceptance- acceptance is a statement or conduct through which offeree agreeing to the offer given by offeror.
Consideration- Consideration is considered as price paid for the promise of the other party, and it is necessary that consideration must have some value.
Intention- parties to contract must have intention to create legal relations at the time of making the contract.
Consent- parties must have free consent at the time of making the contract.
However, it must be noted that contract is not enforceable if any of the above element is not present at the time of making the contract (ACL, n.d.).
Following are the three basics of contract law:
Offer and acceptance- it must be noted that contract is formed when offer given by one party is accepted by other party. A gives an offer to B for purchasing the car, and B gives his acceptance to A for purchasing the car.
Intention- just because there is an agreement between the people that does not mean contract is existed. In other words, parties must have intention to enter into an agreement which is legally binding on them. Example- Mere offer for selling a car is not enough parties must decide that offeror repair the car so that offeree purchase it.
Consideration- consideration means price paid for the promise made by other party. A offer to sell the car for $500 to B, and B agreeing to pay price of $500 to A for purchasing the car (Law handbook, 2017).
Contract of service generally defines the relationship of employer-employee and it also includes the terms and conditions of employment. This contract includes some important terms and conditions such as hours of working, clause related to vicarious liability, duty of care owned by employee towards employer, remuneration, method of salary and wages.
On the other hand, Contract for services defines the relationship of employer and contractor and this contract generally states that contractor is not liable for the acts of employer, and methods of payment such as lump sum per job.
For example- contract between A and B states that A is liable for the acts of B, and on the other hand contract between A and C states that A is not liable for the acts of C. therefore, in this contract between A and B is contract of service and between A and C is contract for service.
The difference between the two is important for the protection of employment legislation (Work cover, 2017).
Independent contractor is the person who runs their own business, and provides their services to other organizations. Contractors negotiate their own fees and arrangements related to their work, and they deal with various clients at single time. Whereas, on the other hand employee is the person who follows the directions of their employers and they get salary for their work. In case of employees work for particular hours and in case of independent contractor works are not fixed.
For example- A works for 7 hours in the company and receive $8000 per month and working hours of B are not definite and he receives 7% of the project he handled. Therefore, in this A is the employee of the company and B is independent employer.
For the purpose of deciding the remuneration policy and leave policy of the person, it is important to determine the status of person in the organization (Business, 2016).
There are four consumer guarantees related to contract under the Australian consumer law:
Guarantee related to the title- in case person supplies goods to a consumer then guarantee is relates with the goods that supplier has right to dispose of the property in the goods when such property is pass to the consumer.
Guarantee as to undisturbed possession- if person supplies goods to a consumer then there is guarantee which states that consumer has right to undisturbed possession.
Guarantee as to undisclosed securities- when goods are supplied from supplier to a consumer then there is guarantee that goods are free from charge, security, and encumbrance.
Guarantee as to acceptable quality- when goods are supplied from supplier to a consumer then there is guarantee that goods are of acceptable quality which means goods must be of standard quality and capable of use for which they are manufactured (ACL, 2017).
Difference between criminal law and civil law:
There are some differences between the criminal and civil law such as in criminal law states brings the action whereas in civil cases individual or plaintiff brings the action.
The main aim of criminal law is punishment, retribution, deterrence and rehabilitation whereas the main aim of civil law is to provide compensation.
It must be noted that end result in criminal law is conviction or penalty such as imprisonment, court order, Fine, and Bond, and on the other hand end result of civil cases is awarding of damages or restraining order.
In case of criminal law standard of proof is beyond reasonable doubt and in case of civil cases standard of proof is balance of probabilities (Lawgov pool, 2017).
Existence of Criminal law is thee for the purpose of sanctioning penalties such as fines and imprisonment on those citizens whose conduct is not acceptable and they are liable to deserve punishment by state. Criminal law has been developed from both common law and statutes framed by the government such as Crimes Act 1900 (NSW).
On the other hand, civil law resolves all other disputes which are not fall under the category of criminal law. Generally, civil law covers cases related to accidents, contract disputes, dividing on will, and cases related to torts such as defamation and negligence. Generally civil law deals with the disputes which are private in nature and between the private people or organization.
It must be noted that comparison between the two can be done on the basis of punishment and standard of proof (CSCJA, n.d.).
In the Judiciary system of Australia, numbers of Courts are there both at the state as well as Federal level and state level. Because of this particular hierarchy system is formed which starts from the highest authority Court and then both level of jurisdiction and power is decreasing when we move down from the hierarchy pyramid.
Doctrine of precedent is considered as fundamental constraint in Australia on judicial decision making. Generally, doctrine of precedent is that judges at the time of making the decision must pay proper respect to judicial decisions make in past. In other words, judges are bound to apply the reasons provided in past decisions to their decisions, and they must follow past decisions while deciding the case which have similar facts (Harding, 2013).
However, if any business operates with a substantial degree of power in the market then they are not allowed to use their power for the purpose of eliminating or substantially damaging a competitor or to prevent any person to initiate business by entering into market. If any business conducts any such action then it is considered as misuse of market power. However, it must be noted that possession of market power for itself is not considered unlawful. For the purpose of determining whether there has been misuse of market power following questions are considered by Court:
References:
Parliament of Australia. Infosheet 20 – The Australian system of government. Retrieved on 14th June 2017 from: https://www.aph.gov.au/About_Parliament/House_of_Representatives/Powers_practice_and_procedure/00_-_Infosheets/Infosheet_20_-_The_Australian_system_of_government.
Australian Government. How Government Works. Retrieved on 14th June 2017 from: https://www.australia.gov.au/about-government/how-government-works.
ALRC. Authorising what would otherwise be a Tort. Retrieved on 14th June 2017 from: https://www.alrc.gov.au/publications/right-sue-tort.
Law vision. The Law of Torts. Retrieved on 14th June 2017 from: https://www.lawvision.com.au/uploads/PDFs/Tort%20Law%20.pdf.
Outlaw.com, (2011). Direct and indirect loss for contractors. Retrieved on 14th June 2017 from: https://www.out-law.com/en/topics/projects–construction/construction-claims/direct-and-indirect-loss-for-contractors/.
ACL. Agreement. Retrieved on 14th June 2017 from: https://www.australiancontractlaw.com/law/formation-agreement.html#offer.
Law handbook, (2017). Elements of Contract. Retrieved on 14th June 2017 from: https://www.lawhandbook.org.au/07_01_02_elements_of_a_contract/.
Business, (2016). Independent contractors. Retrieved on 14th June 2017 from: https://www.business.gov.au/info/plan-and-start/start-your-business/independent-contractors.
Work cover. Step 4 Contract of services versus contract for service. Retrieved on 14th June 2017 from: https://www.worksafe.qld.gov.au/insurance/which-insurance-product-is-right-for-you/accident-insurance/who-should-i-cover/worker-determination-from-1-July-2013/contract-of-services-v-contract-for-service.
ACL. Misleading or deceptive conduct. Retrieved on 14th June 2017 from: https://www.australiancontractlaw.com/legislation/cthacl.html#guarantees.
Lawgov pool. The Difference Between Criminal And Civil Law. Retrieved on 14th June 2017 from: https://lawgovpol.com/difference-between-criminal-civil-law/.
CSCJA. Criminal and Civil Law. Retrieved on 14th June 2017 from: https://www.cscja-acjcs.ca/criminal_civil_law-en.asp?l=4.Harding, M. (2013). The High Court and the Doctrine of Precedent. Retrieved on 14th June 2017 from: https://blogs.unimelb.edu.au/opinionsonhigh/2013/07/18/harding-precedent/.
DLSweb. Overview of the Australian Legal System. Retrieved on 14th June 2017 from: https://www.dlsweb.rmit.edu.au/toolbox/legal/OFFICE/T00/T00_A/t0_lesy.html.
ACCC. Misuse of market power. Retrieved on 14th June 2017 from: https://www.accc.gov.au/business/anti-competitive-behaviour/misuse-of-market-power.
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