Introduction to law &

The Australian legal system

Lecture 1:
Fajar Satria, MSc., Mhum
CHRP CPMP CIRP CHCM
 Introduction:
Fajar Satria, MSc., MHum.
CHRP CPMP CIRP CHCM

Work History:
• Now – Sept, 2015 General Manager, Global Products Group
Managing Director, Satria Consulting &
Partners
Guest Lecture, Law, Management &
Business Administration Subjects
Counsel, Gehrson Lehrman Group, US
• 2015 – 2012 Country Sales Head. Member of Senior
Executive Committee of Sandoz
Contact: • 2012 – 2011 Sales and Strategy Commercial
fajar.satria@ymail.com Excellence Director – A Takeda company
(Japanese Co), Apex Pharma & Nycomed
0817171103 • 2011 – 2007 Regional Process Owner Asia Pacific
GlaxoSmithKline Asia Pacific
Education: Business Development Lead
2009 INSEAD Executive Education Director, Strategy Commercial Excellence
2007 Magister Commercial Law, GlaxoSmithKline Indonesia
UGM Law School • 2007 – 2006 Director, Strategy Business Development
1995 Fulbright Exchange Student Merck Sharp & Dohme Indonesia
Shimane University • 2006 – 2005 Franchise Head, Johnson & Johnson
• 2005 – 1996 Several Marketing and Sales
1994 Master of Science, Oklahoma positions
State University • 1996 International Intern, Tyson Foods
1993 Economics, UNPAD School of USA
Business & Economics • 1994 Graduate Research Assistant,
Introduction
• Human Race is socialistic in nature
• Early Civilizations started in settlements
• Man learnt Business to make his/her life
comfortable
• Need arose for a uniform code of conduct
Meaning
Law is a rulebook, containing a list of
Code/Rules/Procedures, which tells us what should be
done and what should not be done.

Law is a system of rules, usually enforced through a set of

institutions

Law is a force. It consists of rules and regulations to

provide firmness to mutual relations.
Definition of Law
“Law is a body of Principles recognized and applied by
the state in the administration of justice” - Salmond

“Law is a rule of civil conduct, prescribed by the supreme

power of a state, commanding what is right and
prohibiting what is wrong” - Blackstone
What is a Law?
• A set of rules
• Made by Parliaments or Courts
• Enforceable by prosecution or litigation
• Bill vs Law
• A bill is a form or draft of a proposed statute
presented at a legislature, but not yet enacted or
passed and made law
• A law is an exercised bill, prescribed under the
authority of the state or nation, as by the people in
its constitution. It is recognized and enforced by
judicial decision
Not All Rules Are Law…
• Some rules or code of conduct are treated as binding,
but not passed on as law:
• Sporting rules
• Ie. Rules set for games and sports acivities
• Family rules
• Ie. Tradition (eg. Arranged marriage, etc)
• Industry codes of conduct
• Ie. A set of rules stipulated by a certain industry / company,
usually contained within the employee guidebook
• Rules of a religion
• Ie. Syariah law
Law & Justice
• Justice can be understood as fairness
• Fairness is one goal of the legal system
• The law tries to find the balance between justice in
each individual case and having a stable, predictable
system
• Not every legal decision will be accepted as a fair
decision
Law, Ethics, and Moral

• Ethics and morals are the principals and standards

which are used to determine whether particular
actions are right or wrong

• Some conduct may be unethical but not illegal, or

illegal, but not unethical
Think about these examples…

• 3 sailors and their cabin boy are ship wrecked and

on a lifeboat, and don’t know if or when they will be
rescued

• As the all become dehydrated, starving, and ill, the

sailors decided to kill and eat the cabin boy who is
nearly dead

• Are their actions legal? Are they ethical?

Source: 1884 Case of R v. Dudley & Stevens
Think about these examples…
• A law in ancient Athens stated that the city gates
must not be opened after dark

• Opening the gate after dark was punishable by

a harsh penalty

• One night, there was a fire in the city and a man

opened the gates to help people escape

• Should he be punished? The law is very clear

Two ways of making law
1. Statute Law
• Statute law is made by politicians in parliament
(government)
(Politicians are elected by the people)
Two ways of making law
2. Common Law
• Common law is made by judges when they make
decisions in court cases
(also referred to as case law)
Sources of Law

Legislature Makes law

Administers
Government Executive law

Judiciary Interprets law

Who Makes the Law?
• Legislature: The arm of government responsible for
making law. In most countries, the legislature takes
the form of a parliament
• Executive: The arm of government responsible for
administering the law. In most countries
the executive government takes the form of
a council of ministers overseeing a public service
• Judiciary: The arm of government responsible for
interpreting the law. In most countries, the judiciary
takes the form of a system of courts
Branches of Law
• Growth of Civilization led to development in diverse
fields
• As result a Uniform Code of Conduct did not make
sense
Hence,
i. Civil Law
ii. Criminal Law
iii. Constitutional Law
iv. International Law
v. Industrial Law
vi. Business law-Part of Civil Law
Different types of law
Criminal and Civil
Criminal law
• Set out in the Crimes Act and enforced by the police.
The government acts for everyone against (versus)
a person who breaks the law.
Aim
• to punish the person who broke the law
• (called the accused before decision by the court)
Criminal law-examples
• Crimes against the person – assault, manslaughter,
murder
• Crimes against property – theft, vandalism, robbery,
fraud
• Crimes against morality – illegal drugs, prostitution
• Traffic Law – speeding, drink-driving.????
Different types of law
Civil Law (part of Common law)
• Used by individuals or companies who have a
problem (dispute) with other individuals,
companies or governments – often involves money
Aim
• to solve the problem by restoring rights to the
person who has lost them or who has suffered in
some way e.g. negligence by an employer
(person who starts the action is called the plaintiff)
Civil law-examples
• Negligence- not taking reasonable care to prevent
injury or loss to another person e.g. employers
• Defamation – attacking someone’s reputation
 Different outcomes
Criminal law Civil law

• Prison sentences e.g. for • Compensation (also called

damages) e.g. to pay you back
murder or major theft
for an injury caused by others
• Fines and/loss of licence or destruction of property
e.g. for driving offences • Court orders e.g. to make
• Warnings, good someone do something;
remove something from their
behaviour bonds, land
community service • Mediation- a trained
mediator may help people
solve their disputes without
going to court
Some more differences - proof
(information used to ‘win’ the case)
Criminal law Civil law
The burden of proof is on the The burden of proof is on the
police/government plaintiff i.e. the plaintiff has to
The standard of proof prove the case
• The police have to prove The standard of proof
their case 100% i.e. beyond • The plaintiff doesn’t have to
reasonable doubt prove their case for sure –
they have to prove that it is
‘more likely than not’
Plaintiff & Defendants
• Plaintiff v Defendant

• What is a Plaintiff?
• A person or a company who brings suit into
a court
• Also known as a Complainant / Claimant

• What is a Defendant?
• A person or a company against whom a claim or
charge is brought in a court
• Also known as the Accused
Meaning of Business
All those activities which are aimed at transfer of goods &
services from the production centre to consumption centre
carried out by an entrepreneur by optimally utilizing
resources at his command i.e. money, man, material &
machine with a view to maximize profit.
Meaning of Business Law

Laws relating to business, commercial activity,

trade or commerce.
Why Study Business Law?

• Protect your business, and YOURSELF!

• Know what is legal and what is illegal
• Understand the Commonwealth legal issues in
business
• Conduct your business legally & ethically
Objectives of Business Law
• Complex Business environment has given rise to the
need for a code of conduct
• IGNORANTIA JURIS NON EXCUSAT
• ---ignorance of Law is no excuse.
• Develop an understanding of the legal framework
• Understand the purpose and logic of Law-Meaningful
when understood
• Preventive Law
• The Success of lawyer depend upon the well informed
client
• Build a better society
 State courts
Supreme Court Jurisdiction
The highest court, hears
• Serious criminal cases – murder,
attempted murder
• Civil cases involving large
amounts of money
Supreme Court
• Appeals on decisions made in
the County Court
State courts
County Court Jurisdiction
• Less serious criminal cases – drug
trafficking, serious assaults, rape
• Civil cases which involve
substantial amounts of money
• Appeals against decisions by the
Magistrates’ Court
State courts
Magistrates’ Court
Jurisdiction
• Less serious criminal cases- robbery, theft
• Less serious civil cases – up to $100, 000-
negligence, contract disputes,
neighbourhood disputes
• deals with over 90% of criminal and civil
matters. The first stop for most cases and
then refers them to higher courts if there is
enough evidence
• Summary offences – traffic fines, minor
assaults, property damage, offensive
behaviour
• No jury, one judge
 State courts
Magistrates’ Court
Has special courts and tribunals
• Children’s Court
• Drug Court
• Infringements Court
• State Coroner’s Office
• Family Violence Programs
• State Coroner’s Office
• Victims of Crime Assistance Tribunal

www.austlii.edu.au

http://multimedia.justice.vic.gov.au/egov/virtu
al_tour/magistrates-court-vic.html
 A quick test
A criminal case A civil case
Scenario Scenario
You come home and find that
someone has stolen $2000 from your You lend someone $200 and they
bedroom cupboard say that they do not owe you the
Questions money. Can you get it back?
1. Who can help you with your
case? Questions
2. What do you need to win your 1. Who can help you with your
case? What are some case?
examples?
You can find answers here 2. What do you need to win
Remember, even if you win a your case? What could be
criminal case, you might not get your some examples?
money back!
A quick test
• A criminal case
Scenario
You come home and find that someone has stolen
$2000 from your bedroom cupboard
Questions
1. Who can help you with your case?
2. What do you need to win your case? What are
some examples?
You can find answers here
Remember, even if you win a criminal case, you might
not get your money back!
 A quick test
• A civil case
Scenario
You lend someone $200 and they say that they do not
owe you the money. Can you get it back?

Questions
1. Who can help you with your case?
2. What do you need to win your case? What could be
some examples?
Quick test-Answers
Criminal case
1. The police. If the police
are involved it is a criminal
NOT a civil matter. The
police could charge the
person with theft. The
government will provide
lawyers as well.
2. You need evidence e.g. a
witness (someone who
saw the money taken)
Civil case
1. You could pay lawyers
to help you.
2. You need evidence e.g.
• A receipt for the money
• A signed contract in which
the other person agrees to
pay you back
• Witnesses to the loan
A scenario – is this a civil or a
criminal case?
You have just returned home after shopping at the local
shopping centre. You were walking home but tripped and
fell and much of the shopping fell on to the road and has
been spoiled.
You have hurt your back. Just before you fell, you were
distracted by a dog that jumped up on you before it was
called away by its owner (you are frightened of dogs).
The footpath where you fell was uneven. You are not sure
whether you fell because the footpath was uneven or
because of the dog. You were probably carrying too much
shopping and you already have back problems.
Is this a civil or a
criminal case?
Answer
Is this a civil or a criminal case?
Answer
• It is a civil case – you might be able to sue (make a claim
against) either the council for not looking after the
footpath OR the dog owner for not controlling their dog
What do you need to sue?
Good evidence- for example:
• A doctor’s report after the accident
• A witness (someone who saw the incident),
maybe they saw the dog off the leash?
• Did you get the dog owner’s name?
(evidence)
• A report of the uneven footpath to local
government – maybe there had been other
complaints?
Deciding to sue

Questions to ask
• Why sue? To get a legal outcome
Do you remember the legal outcomes for civil law?
• Will I be successful? Do you remember what is needed
to win your case?
• Is it worth it? Even if you think you might win, it might
cost you more money to pay lawyers than you get back
in compensation.
Terms & Definitions
• Solicitor / Attorney
• A lawyer who advises clients, represents them
in the lower courts, and prepares cases for
barristers to try in higher courts
• Barrister / Barrister-at-law
• A lawyer who has been called to the bar and is qualified
to plead in higher courts
• Subpoena
• A writ for summoning of witnesses or the submission of
evidence, as records of documents, before a court or
other deliberative body
Conflicts in Law
• Law vs Tradition
• Which one to follow?
• What happen when Syariah Law comes into
conflict with the Commonwealth Law?

• State Law vs Federal Law

• Law vs Ethics
• No man should have the power to take over that of
another’s.
Types of Legal Systems

• Most common type of system

Civil Law • Primary source of law is legislation
• Parts of Europe, Latin America, Asia, and Africa

Common • Has 2 sources of law – Legislation & Case law

• Places great emphasis on the judiciary
Law • United Kingdom, Australia, USA, Singapore

Other • Religions (Islamic, Hindu, Catholic, etc)

• Socialist
Law • Indigenous Systems
Legal System in our region

Common Law
Civil Law System
System
• Japan • Australia
• China • New Zealand
• Thailand • Malaysia
• Vietnam • Singapore
• Indonesia • India
• Vanuatu • Papua New Guinea
• East Timor • Samoa
Federal State Relations

Commonwealt State
h Parliament Parliament

Exclusive Powers
Concurrent Powers Residual Powers
(Commonwealth
(Shared Powers) (State Only)
Only)

Examples: Examples:
Examples:
Taxation Property
Customs
Marriage Transport
Defence
Banking Crime
Currency
Insurance Contracts
Territories
External Affairs Health
Federal State Relations

• Australian Constitution Section 109:

• When a law of the State is inconsistent with a law of
the Commonwealth, the latter shall prevail, and the
former shall, to the extent of the inconsistency, be
invalid.
Hierarchy of Courts

High Court

State &
Federal Courts Territory
Courts

Federal Court

Family Court
The Rule of Law
• The law is predictable
• It is passed by a proper authority in a proper
manner
• Everyone (government included) is bound by
the law
• The law is not arbitrary
• The law is not retrospective
• The law is enforceable