AUSTRALIALEGAL ASPECTS

By: Lauren Baker

Marin DellThomas HaugenRobert Messer

AUSTRALIAN LAWS

Australia Day

AUSTRALIAN CONSTITUTIONHISTORY

•Legal system founded on: • the rule of law-no one is above the law• Common law (precedent)

•Constitution of 1901• Federal level

• Trade, commerce, taxation, defense, immigration

• State/Territory level• Matters not federal in nature; in the

event of inconsistency, federal law trumps

•Federal• Legislative (Parliament)• Executive (Prime Minister)• Judiciary

•State/Territory• Legislative (Parliament)• Executive (Governor)• Judiciary

AUSTRALIAN CONSTITUTION•Commonwealth of Australia Constitution Act of 1900 established the federal commonwealth (passed by U.K. Parliament)•Statute of Westminster 1931 (adopted in 1942)-made Australia fully independent on the federal level•Australia Act of 1986-fully removed U.K. Parliament’s ability to legislate over Australia

AUSTRALIAN CONSTITUTIONFRAMEWORK

•Preamble•Chapter I. The Parliament • Part I - General• Part II – The Senate• Part III – The House of Representatives• Part IV – Both Houses of the Parliament• Part V – Powers of the Parliament

•Chapter II. The Executive Government•Chapter III. The Judicature•Chapter IV. Finance and Trade•Chapter V. The States•Chapter VI. New States•Chapter VII. Miscellaneous•Chapter VIII. Alteration of the Constitution•The Schedule

AUSTRALIAN CONSTITUTIONARTICLES RELATING TO BUSINESS

•Section 51(xx) creates the “corporations power” granted to Parliament•This means:• Parliament can legislate with respect to foreign

corporations and trading or financial corporations formed within the Commonwealth

• Broad role for the federal

AUSTRALIA

SUBJECT TO INTERNATIONAL LAWS

• Active member since founding in 1945• 13th largest contributor to the UN budget• Areas of Key Involvement:

– UN reform – Disarmament and arms control – Human rights – Environmental issues – The Specialized Agencies – Economic and social issues – International economic cooperation – Global trade and finance – Regional organizations – Decolonization – Peacekeeping – Australia's Involvement in the Multilateral Treaty System – Permanent Mission of Australia to the United Nations in New York

• Australia has diplomatic missions in:

– New York– Geneva– Vienna– Paris– London– Nairobi– Rome– The Hague– Bangkok

United Nations

INTERNATIONAL CONVENTIONSINTERNATIONAL TREATIES

•Australia participates in most of UN conventions and has hosted several events• Most recent convention subjects include:

• Human rights• Maritime law• Intellectual property rights• Environmental protection

Australia is currently a party to over 1500 treaties including:49 in Aid & Development19 in Atmosphere & Outer space99 in Business & Finance42 in Citizenship & Migration59 in Communication142 in Criminal Matters41 in Defense & Security23 in Diplomatic & Consular Relations104 in Environment & Recourses12 in External Territories85 in Health & Social Services27 in Human Rights40 in Intellectual & Industrial Property178 in International Cooperation72 in International Law183 in International Organizations & Agencies189 in International Trade48 in Labor128 in Maritime & Law of the Sea127 in Transport125 in War & Peace

•Recent Business Developments:• Singapore Treaty on the

Law of Trademarks and the Patent Law Treaty

• Gulf Cooperation Council• Australian Cross Border

Solvency Law•Australia-United States Free Trade Agreement:• Based on NAFTA• Greatly reduced and in

some cases eliminated trade tariffs on goods traded between US and Australia

•Berne Convention for the Protection of Literary and Artistic Works:• Detailed Australian

copyright laws• International agreements

on protected subject matter, infringement, duration of copyrights, and exceptions

OTHER INT’LAGREEMENTS

AUSTRALIAN LAWS - SECURITIES

National Regulation

•Principle: “financial markets cannot function effectively unless participants act with integrity and there is adequate disclosure to facilitate informed judgments” •Broader framework of regulation encompassing multiple areas of financial concerns•Corporations Act of 2001 (Cth):• biggest piece of legislation which codifies

national and interstate business regulations• Largest corporations statute in the world

•Corporation Law Economic Reform Program Act of 1999•Financial Services Reform Act of 2001 (Cth)

AUSTRALIAN LAWS – COPYRIGHT

•Australian Copyright Act of 1968:

• Literary• Artistic • Design

•Berne Convention for the Protection of Literary and Artistic Works

•English law•Plus 70 Rule:• Any work that was published in the lifetime of the author who dies in

1956 or earlier, is out of copyright.

• Any work that was published in the lifetime of the author who dies after

1956, will be out of copyright seventy (70) years after the author’s

death. • Any work that was published after the death of the author, will be out of

copyright seventy (70)years from their first publication.

• Unpublished works hold copyright indefinitely.

AUSTRALIAN LAWS - CONTRACTS

•Rooted in English common law of contracts•Statutes added over time•Contract has 4 essential parts:• an agreement (rule of offer and acceptance)• consideration (a promise is given in return for a promise received;

generally, the supply of money, property, or services)• certainty in what the contract requires to be done, or restricts from

being done (parties must reach agreement on all of the essential elements or decide that an element should be determined by future arrangement; terms should not be vague or ambiguous; cannot be illusory); and

• intention by the parties to enter into legal relations (parties must manifest an intention to create legal relations)

•Interactive Gambling Act of 2001:• Online

wagering:• “real-

time”• Public place

exemption• Pubs• casinos

GAMBLING

• Australian Sports Commission Act of 1989• Main objectives:

– Provide leadership of development of sport – To encourage increased participation and improved performance– To Provide resources, services, and facilities to enable performance and

achievement– To improve sporting abilities of Australians– To foster cooperation in sport between Australians and other countries– To encourage the private sector to help in funding

SPORT LAWS

• Dumb Australian Laws

•A life sentence is 25 years.•Children may not purchase cigarettes, but they may smoke them.•You may never leave your car keys in an unattended vehicle.•It is illegal to roam the streets wearing black clothes, felt shoes and black shoe polish on your face as these items are the tools of a cat burglar.•It is illegal to walk on the right hand side of a footpath.•Under Australian Communications Authority (ACA) regulations, a modem can’t pick up on the first ring.•Taxi cabs are required to carry a bale of hay in the trunk.•Bars are required to stable, water and feed the horses of their patrons.•The legal age for straight sex is 16, unless the person is in the care/custody of the older person, in which case it is 18.•Only licensed electricians may change a light bulb.•It is illegal to wear hot pink pants after midday Sunday.•You must have a neck to knee swimsuit in order to swim at Brighton Beach.•Until the Port Arthur Killings it was legal to own an AK-47 but not legal to be gay.•Lawmakers are proposing a new law that will not allow anyone to come closer than 100 meters from a dead whale’s carcass.

RISK•Heavy financial investment in international lawyers•Impact on business operations-have to change to fit laws•Hurt open market and free competition • Example: similar business in

Taiwan does not have to comply with strict standard

REWARD

•Fair notice of expected practices•Protections and safeguards against other corrupt or fraudulent businesses•Legitimate country

OVERALL ANALYSIS