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Discuss about the Business Law for Legislative and Executive Wing.

    1. The provisions of making law have been provided to the Australian parliament via the Australian constitution. The powers of law making are set out under section 51 of the Australian Constitution.  There are various power heads under the section via which the Australian federal parliament may make laws. If such laws do not fall within the provisions of the section they are to be considered as invalid by the High Court of Australia (Beck et al. 2018).
    2. The doctrine of separation of power signifies the division of the powers of the government in three different wings which are Legislative wing, Executive wing and Judicial Wing. The powers of all these winds are divided and independent from one another. For example, the parliament makes the laws which are applied by the judges and are executed by the executive wings such as police.
    3. Yes the doctrine of precedent is suitable for all situation including businesses in terms of claims such as contract and negligence. This is because the doctrine of precedent provides consistency in decision making.  In case of businesses which the same problem may repeat itself, through the doctrine the parties are fairly aware that the courts would deal with the situation in a way how it has been dealt previously by the higher courts
    4. The process of Alternative Dispute resolution provides various advantages to the parties to the dispute as compared to that of traditional litigation. This is because processes like mediation or arbitration are concluded quickly unlike litigation which is time consuming. In addition the cost which is involved in the process of litigation is much more than the process of mediation and arbitration. By the use of these methods the parties are able to resolve disputes with low costs.
  1. (a) The Australian Securities and Investment Commission is the corporate regulator of Australia which has the role of ensuring that the corporations which are registered in the country are acting in compliance of the Corporation Act 2001(Cth). The Australian Competition and Consumer Commission is the Competition and Consumer regulator in Australia ensuring compliance with competition and consumer laws under Australian Competition and Consumer Act 2010 (Cth)

(b) A business may register / subscribe to be alerted about current media releases, policy changes, regulatory changes or cases by registering themselves for the free of cost with the ASIC and ACCC via their official websites.

Section 2

  1. The term perpetual succession signifies that as the company is has a different existence from its owners it does not come to an end with the death of its owners and even continues to exist where its owners are no longer alive unless it is wound up.  The feature may help the parties as unlike a partnership which comes to an end when a partner is dead even where an owner is dead the business will not come to an end.  
  2. The creation of companies in Australia is governed by  the provisions of section 112 of the Corporation Act 2001(Cth). A proprietary limited company is created by making an application to the ASIC through filling of form 201. The major differences between the public and a  proprietary limited company are as follows
  • The proprietary limited company will not be able to raise funding from the public but a public limited company would be able to issue a prospectus for raising public finding.
  • The proprietary limited company can have a minimum of one director whereas a Public Limited Company would require a minimum of three directors.
  • The Proprietary Company is provided certain relief in relation to financial records disclosure but public companies have to make full disclosure.
    1. No, in case john, Paul and George choose to operate the business as a partnership than even if one party signs a contract with the supplier the contract would be binding as the partners are the agents of a business under the provisions of the Partnership Act 1963 (Cth). In relation to agency law an agent has the right to bind the principle to its actions
    2. There is a significant difference between the limited liability of shareholders in case of a proprietary limited company and unlimited liability present in case of partnership for the partners. In relation to limited liability rules the liability of a person is limited to amount invested in the shares of the company and not their personal liability. Thus if any loss which a company faces it members are only liable to the amount which is paid or unpaid on the shares. On the other hand in relation to an unlimited liability in a partnership in case of a loss the partners are liable personally and their personal assets can be attached by the creditors (Mann and Roberts 2015).

  1. A franchise is a business method through the use of which a person caller the franchisor allows the franchisee to use their trademark and business name to sell their products. The provisions in relation to a franchise are governed by the provisions of Australian Competition and Consumer Act 2010 (Cth). All information in relation to the products and profits made has been disclosed under the legislation (Beatty, Samuelson and Abril 2018).
  2. In relation to the given situation they must chose a company from of business structure which is known as non profit organizations or charities. Under the use of this business structure the company may raise money from the public through donations.
  3. The primary characteristic in relation to a common law trust is that of dual ownership. The concept provides for a distinction on relation to the legal ownership of the assets by the trustee and the equitable title which the beneficiaries have in the property. There are four main elements for the creation of an express trust which includes capacity, certainty, formality and constitution (Kubasek et al 2015) 
  • In the given situation the type of negligent action which can be brought by Josie in the situation is that of negligence for physical injury. In relation to a physical injury there are three elements of negligence. The first element is that of a duty of care followed by a breach of the duty and finally an actual damage being caused. These provisions had been provided through the case of Donoghue v Stevenson [1932] AC 562. To show that there was negligence on the part of the defendant, Josie needs to provide before the court that the defendant could have foreseen the damages to her and thus owe a duty of care which has been breached by not taking reasonable care and thus injury was resulted to the defendant.
  • In case liability has been established in the situation the damages which can be claimed be her are based on the provisions of the Civil Liability Acts and the principles of remoteness in common law. As per the case of The Wagon Mound no 1 [1961] AC 388 only damages which are not very remote and are foreseeable can be claimed. Here Josie would be entitled to claim compensation in relation to the injury which has been caused to her and medical expenses in relation the injury. However it is not reasonably foreseeable that the defendant would know that if Josie is injured she will not become a famous singer and miss he audition. Thus these damages cannot be claimed  
  • In the case of Revill v Newbery [1996] 2 WLR 239 the court stated that the obligation of a person having a duty of care is to takes reasonable steps to prevent an injury and not to prevent a person from getting injured. In addition as per the case of Nettleship v Weston [1971] 3 WLR 370 a party may who has been injured can be liable for his own injury because of “contributory negligence”. Contributory negligence is a defence which may be used as a defence when the plaintiff has himself been negligent to cause the injury. Here a reasonable person in the position of Josie seeing the sign which prohibited entry would not have entered the area and thus Josie is herself negligent. The defendant took all reasonable care to avoid the injury so they will not be liable.
  • In the given situation the claim which can be brought by Luther is that of a negligent misstatement.  In the case of Hedley Byrne & Co v Heller [1963] 3 WLR 101 it has been stated by the court that a person has the right to make a claim for compensation in relation to financial losses caused in case the loss has been caused because of an advice provided by a professional in a negligent manner. Here the person who provides an advice in professional capacity has a duty of care to those who may rely on such advice. The advice has to be provided by taking care which a reasonable professional would have taken in such circumstances. Here it is clear that Betsy who was a financial advisor has a duty of care to Luther as she is providing advice in professional capacity. A reasonable financial advisor in the position of Betsy would not have made the serious mistake in relation to the identity of the companies. The loss caused to Luther would not be caused if there was no negligence on the part of Betsy. Thus Luther can make a claim under negligence.
  • In the given situation through the application of Agency law it can be stated that Luther has a right to make a claim from Deep Pockets Pty Ltd. This is because under the principles of agency the employer is liable for the actions which have been committed by the employee as discussed in ACCC v Flight Centre Travel Group Ltd(2016) 339 ALR 242. Thus as Betsy is the employee of Deep Pockets Pty Ltd her actions would be binding on then under the rules of Actual authority. 


Section 3

    • In general a major person who has an income of $450 before tax every month form the employer is entitled to get superannuation guarantee (SG) contributions from the employer
    • The current rate of superannuation guarantee contributions as provided by the ATO is 9.5% at the minimum after july 2014.
    • The payments in relation to superannuation guarantee contributions to be made to the employees have to be done at least four times a year and are generally made in the way of quarterly payments.

  • Superstream is a standard of the federal government which is used for the purpose of processing superannuation payments and data electronically. The primary purpose of the Superstream is to enhance the efficiency of the superannuation system and has to be mandatorily used by the APRA-regulated funds, self-managed super funds and employers.
  • No the superannuation obligations in relation to a partnership and sole trader is not the same in relation to trusts and companies. This is because a sole trader or in partnership superannuation is not required to be paid to the owners where as the trusts and companies superannuation has to be paid to directors and trustees.
  • TFN and ABN has to be registered by any person who is conducting a business in Australia regardless of the business structure which has been selected by them.
  • Any business which has the turnover is over the $75,000 threshold or is likely to exceed it has the obligation to the get itself registered for Goods and services Tax.
  • Businesses pay tax to the ATO for themselves and their employees by deducting PayG  or paying for fringe benefits tax for the employers as well their own income tax
  • Generally businesses have to keep a record of taxes for a period of five years.

References

Beatty, J.F., Samuelson, S.S. and Abril, P.S., 2018. Essentials of Business Law. Cengage Learning.

Beck, L., Adams, A.M., Emmerich, C.J., Anderson, A.W., Arnstein, W., Aroney, N., Aroney, N., Aroney, N., Aroney, N., Richard Baker, A. and Balkin, J.M., 2018. Parliament. In Religious Freedom and the Australian Constitution: Origins and Future (Vol. 137, No. 3, pp. x-xv). Canberra: State Library of New South Wales.

Kubasek, N., Browne, M.N., Dhooge, L.J., Herron, D.J., Williamson, C. and Barkacs, L.L., 2015. Dynamic business law. McGraw-Hill Education.

Mann, R.A. and Roberts, B.S., 2015. Business law and the regulation of business. Nelson Education.

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