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Online Resources for Business Laws and Regulations in Australia

For gathering information on business related laws and regulation, it is imperative to know the respective online source of the regulators that control the business scenario of a state as well as federally. For example: Business Queensland under https://www.business.qld.gov.au/   offers information related to businesses in Queensland, which follows the Corporations Act 2001 (Cth) for regulating the businesses, which is however, a federal legislation. On the other, the Australian Securities & Investment Commission under https://asic.gov.au/ is a federal government regulator of businesses, which is based on the Australian Securities and Investments Commission Act 2001, thereby following the Corporations Act 2001 for ensuring compliance of law by the business entities. Here, both Australian Securities and Investments Commission Act 2001 and the Corporations Act 2001 are federal legislations, which work all across the Australian territory, irrespective of the distinction of states.

The Corporations Act 2001 (Cth) is a the most significant federal legislation that governs businesses, especially regulating matters like formation and operation of companies, duties of the directors and officers, fundraising, takeovers, winding up, et cetera along with in compliance with the internal constitution of the company. It lays down the regulatory scheme for the companies, their acquisition of shares, derivatives and securities. It maintains the distinction between the companies, public and private, along with shaping the position of the officers who are vested with the responsibility to run the company, which is the most important function of any organisation.

The website of Business Queensland is quite compact in respect to guiding anyone who is visiting it for the first time. It methodically divides section between starting a business and running a business along with a distinguishing between industries. Most importantly, it offers specific information on the changes or additions that the state government has provided since the COVID 19 pandemic. The Australian Securities and Investments Commission’s website, as compared to the former one, is quite vast, complex and offers multiple links to different other websites that are associated with the commission. In addition, ASIC being the main business regulator of the registered companies in Australia, it provides for significant news in regard to the commission, other regulatory bodies and registered companies whom it regulates.

The term terra nullius signifying ‘nobody’s land’ is an important principle under international law, referring to the fact that a land may be acquired by the government subsequently by virtue of the law of the land formed on a later occasion. Australia being inhabited by Aboriginal peoples for more than 50,000 years, way before it was colonised by the Europeans since 1788. The indigenous laws and customs were unwritten at that point, leaving the colonial rulers to make their own written laws, for governing the territory, thereby declaring that Australia was terra nullius, also referred as the doctrine of discovery. In Milirrpum v Nabalco Pty Ltd (1971) it was discussed that Australia was a ‘desert and uncultivated’ land before it was discovered and turned into a settlement, thus giving the rights of occupancy to the colonial rulers along with the authority to make laws around it. However, in two subsequent cases, which is Mabo v Queensland (No 1) in 1982 and Mabo v Queensland (No 2) 1992, it was held that the Torres Strait Islander people from Mer held their lands long before any of the European ‘invasion’ and thus holding a genuine claim to their land rights.

The Corporations Act 2001 (Cth)

The rule of law is a political principle that suggests government and the people knowing the law of the land and being subject to it. It signifies that the law of the land is equally applicable to everyone, irrespective of their status or position. It limits arbitrary rule of the government, in order to protect the citizens. The two most important aspect of the principle of rule of law is that it clearly mentions that the government could be challenged for its actions against the citizen and media, through judiciary and that all citizens are protected by the principle of natural justice, which is the procedural fairness that rule of law offers.

Australia being a federation of six states, has its own Constitution, a federal government based on parliamentary system and an independently functioning judiciary. By virtue of federalism, it exhibits multiple levels of government, mostly one at the centre and another at the state level, namely, federal government and state governments. The Constitution of Australia is one of the most federal laws of Australia, followed by the Australian Human Rights Commission Act 1986 (Cth) which makes way for the incorporation of human rights in regard to equal opportunity in employment.

Contracts are binding agreements that every business has to enter, on a day-to-day basis, wither with individuals or with other businesses, in order to carry out its trade. It is on the basis of a valid contract that the actions of the parties to an agreement depends, which includes determination of their failure to perform their contractual obligation. Understanding whether a contract was valid and enforceable is thus significant for holding the other party liable to perform his part that he might have missed. In addition, it is the validity of a contract that helps in determining the remedy to be offered to the aggrieved party. Thus, it is imperative to understand why law of contract is essential to running a business.

As per the common law of contract, a condition is the most significant part of a contract, based on which the overall contractual terms are determined; while warranty is the lesser significant term to the same as seen in Associated Newspapers Ltd v Bancks. Legally, the breach of a condition allows the aggrieved party to terminate the contract, while the breach of warranties would only permit to recover damages, as seen in Koompahtoo Local Aboriginal Land Council v Sanpine Pty Limited. Commercially, conditions are the clauses to a contractual agreement, which needs to be adhered to in order to prevent breach, while warranties could be negotiated even on a later occasion.

In this regard, the methods of alternative dispute resolution come to the rescue, which helps the parties to a contract discuss the issues in regard to their binding agreement, instead of approaching the court. Arbitration and Conciliation are two prominent methods of alternative dispute resolution, which are different from the traditional court system, helping in resolving disputes between parties. Arbitration involves appointment of an arbitrator who acts as the middle-man to resolve the dispute between the parties, for his decision is binding upon them, which cannot be challenged in a court. Arbitration is beneficial for disputes that are facing a dead-end and the parties are unable to resolve it themselves, thus desperately needing a helping hand to firmly lay down a resolution that the parties shall be obliged to follow. While, the process of conciliation involves the appointment of a conciliator, however, the decision of whom is not binding upon the parties. Conciliation processes are fast, cheap and requires the parties to a common ground, starting with choosing a conciliator of their choice, unanimously.

Terra Nullius and Land Rights in Australia

Under the common law of contract, an exclusion clause is a contractual term that restricts parties to a contract from exercising their usual contractual rights. An inclusion clause could be of many kinds: incorporation by signature, incorporation by notice and incorporation by previous course of dealings. In this case, incorporation by notice is the chosen way to lay down an exclusion clause, by which Marvin intends to let go of his obligation of care towards the visitors. In Parker v South Eastern Railway, it was observed that a notice, when shared expressly with the target population, shall act as an exclusion clause, provided that the party took the reasonable steps to draw the utmost attention of the other party, in order to made him aware that he shall have no contractual right to exercise in this case. Legally, an exclusion clause is meant to relieve a party who otherwise holds certain contractual duties towards the other parties, entering into a contract with him. Thornton v Shoe Lane Parking Ltd holds the view that the wider an exclusion clause, the more a party shall be required to do to bring it to the opposite party’s notice. In addition, it must be ensured that such notice of exclusion was offered before a party entered into a contractual obligation as held in Olley v Marlborough Court Hotel. Commercially, an exclusion clause signifies that the party entering into contract with another, shall be required to look thoroughly into the clauses of the agreement, written or oral, in order to understand the limit of his protection guaranteed by the other party. Similarly, a seller, by way of a notice of exclusion, strives to inform the contracting party that he shall not be held liable for certain cases, particularly in regard to some of the terms of the contract.

In this regard, it is advised that Marvin must take all the necessary steps to make the notice of exclusion visible and known to the visitors before they enter into the premise and form a contractual relation with Velocity Shrubs Pty Ltd, Marvin’s business. A loud and clear sign board would do, along with an expressed warning notice in the bills or monetary receipts could be arranged in order to clear the perception that Marvin could be held responsible for any injury sustained within his business premise.

Thus, it is believed that the above-mentioned section could enlighten Marvin and quench some of his thirst to know about the Australian legal system.

Case law

Associated Newspapers Ltd v Bancks [1951] HCA 24

Koompahtoo Local Aboriginal Land Council v Sanpine Pty Limited (2007) 233 CLR 115

Mabo v Queensland (No 1) 1982

 Mabo v Queensland (No 2) 1992

Milirrpum v Nabalco Pty Ltd 1971

Olley v Marlborough Court Hotel [1949] 1 KB 532

Parker v South Eastern Railway [1877] 2 CPD 416

Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ 2

Legislation

Corporations Act 2001 (Cth)

Books and Journal articles

Crawford, Lisa Burton. The rule of law and the Australian Constitution. Federation Press, 2017

Krishnan, Loganathan. "Setting out a comprehensive legal framework to govern exemption clauses in Malaysia: Lessons from the United Kingdom and Australia." 2020 The Future of the Law of Contract. Informa Law from Routledge. 160-184.

Nicoll, Fiona. "De-facing terra nullius and facing the secret of Indigenous sovereignty in Australia." (2002) 1.2 Borderlands

Viven-Wilksch, Jessica. "Good Faith in Contracts: Australia at a Crossroads." (2020) U. of Adelaide Law Research Paper 2020-92.

Zeller, Bruno, and Leon Trakman. "Mediation and arbitration: the process of enforcement." (2019) 24.2 Uniform Law Review: 449-466.

"Infosheet 20 - The Australian System Of Government", Aph.Gov.Au (Webpage, 2022) https://www.aph.gov.au/About_Parliament/House_of_Representatives/Powers_practice_and_procedure/00_-_Infosheets/Infosheet_20_-_The_Australian_system_of_government

ASIC, "ASIC Home | ASIC - Australian Securities And Investments Commission", Asic.Gov.Au (Webpage, 2022) https://asic.gov.au/

Business Queensland, "Business Queensland", Business.Qld.Gov.Au (Webpage, 2022) https://www.business.qld.gov.au/

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