Comparative Study of Relevant Cases and Materials
1. Religious or charitable organizations can be registered as not for profit organization in Australia with AustralianCharities and Not-for-profits Commission (the ACNC). The organizations have to confirm that they are working for a charitable purpose so that they can continue to receive tax benefit and be eligible for being a religious charity. The organizations also need to report to the ACNC about their “responsible person” the name and position of the persons would be recorded with the ACNC. There are the members of the governing body and have the responsibility of operations of the charity and ensuring that its operations are directed towards the achievement of its charitable purposes. In case the charity is incorporated than the governing documents of the charity provides that who are its responsible persons.
The charity also needs to provide the ACNC the copies of its trust deeds, rules and constitution collectively known as the governing documents. In case of churches and NFP organizations who do not have identifiable documents they must provide documents which can prove that the charity is not for profit, it has a charitable purpose and provide information about the governance of the charity. In case the governing documents are a reference from a church or Canon latw than only such reference needs to be sent to the ACNC. The charitable organizations are exempted from complying with government standards, submit annual financial report and answer financial questions. If a charity is a part of a group it cannot be regarded as a basic religious charity.
2. The doctrine of precedent is also known as the doctrine of Stare Decisis. This is a doctrine based on the principles of common law. An authority or precedent is a rule or principle provided through a previous case. Such precedent or authority is either persuasive or binding on other courts or tribunals when they deal with the same kind of cases which means cases having similar issues and facts. The system off common law emphasizes on deciding cases on a consistent basis so that predictable outcomes are achieved from similar cases. Stare decided is the principle through which judge of the lower court is bound by the decision by a judge of a higher court within the same jurisdiction (MacCormick, Summers & Goodhart, 2016).
Through the use of the doctrine of precedent the judicial system ensure that equity, apprehension of justice, efficiency and consistency of results is achieved by it. The doctrine allows lawyers to advice their clients about the probable outcome of a case. Precedents are majorly of two types horizontal (persuasive) and vertical (binding).
Covering Religious Charities, Fair Work Acts and Selwyn’s Law of Employment
According to horizontal precedents the judge may only be persuaded by the decision of a court at a same level or by another judge of the same court. Horizontal precedent is not mandatorily binding on the judges. Example the judge of a high court can only be persuaded by the decisions of the judge of the same court.
According to vertical precedent principles the decision of a higher court is binding on the judges of the lower court in the same jurisdiction. That means that the decision of the Supreme Court is binding on the judges of the district courts (Branting, 2013).
3. The Australian law consists of many layers of codified as well as uncodified law (Smyth and Mishra 2014). The steps of the government includes the constitution of Australia, the legislations codified by the Federal court of Australia, and the house of state level and territorial parliament, regulations and the common laws that are formed from the judge’s decisions. Commonwealth is the intergovernmental organization. Australian commonwealth is comprised of Australian mainland, Tasmania and various smaller islands.
The commonwealth Act formed the federal government of Australia in the year 1901. There is a combination of British legality and traditional democracy of Australia in the constitution. According to section 51 of the Australian constitution, the federal powers of Australia are limited within the enlisted subject matters (Summers and Lowe 2013). The state legislatives have the power to enact laws on the enlisted subject matters. However, if there is any inconsistency arises in between the state legislative and the federal law, the laws of federal will prevail on the states. It is the jurisdictional power of the High Court of Australia to resolve the dispute between the power and constitutional consistency. Chapter III of the constitution of Australia confers power on High Court (Saunders and Foster 2014). In Australia, there are a few number of bill of rights are present that are allowed by the constitution. In Australia, constitutional rights are protected by way of separation of power. One of the most positive sides of separation of power is that the courts can perform its duties independently. The common law of Australia and the statutes are work as a shield for the protection of human rights.
The constitution of Australia confers power on the federal and the state government so that there should be a freedom in between the both governments and a separation regarding the power can be possible. Judicial structure of the Australia’s state legal authority is the federal courts. Corporation, industrial disputes, bankruptcy, immigrations, customs and trade practice are the main subject matter of the federal courts. The federal courts have both original as well as appellate jurisdiction. The family courts of Australia are mainly deals with the family problems and were established by the Family Law Act 1975. The commonwealth law has widened the power of the family courts by way of including the matters regarding the disputes over the children of non-married couples. The subject matter of Federal Circuit Court is a combination of both Federal court and Family court (Douglas, Atkins and Clift 2015). It has the jurisdiction over issues of multiple natures, like family disputes, child protection, administration law, copy rights, human rights and all that are within the scope of other two courts. The Australian constitution has given the authority to deal more complicated case to the Federal and Family courts with a view to decrease the burden on the Federal Circuit Court very recently.
The most amazing factor of Australia’s legal structure is that each state has its own jurisdictional court and territory. One of the most unique parts of the judiciary system is that the decision of the High Court is binding upon the Supreme courts of Australia. Any steps by the states as well as commonwealth legislation that snatch away the judicial power of the Federal courts are unconstitutional. The federal and the state courts can hear all the cases related to the federal nature by way of the doctrine of accrued jurisdiction.
4. Exclusive powers- Powers which are only granted to the commonwealth by the constitution are known as exclusive powers. They can be exercised only by the federal government. For example according to section 51(vi) and 114 of the constitution only the federal government can make powers in relation to military defense of the country. Another example of exclusive powers is that the only the federal government has power to make laws in relation to the currency. No state has the power to exercise exclusive powers.
Concurrent Powers- powers which are shared by both the commonwealth and the states are known as concurrent powers. A few examples which denote concurrent powers are divorce, bankruptcy and marriage. Both the state and the commonwealth have the authority to make laws in these areas. Another area where law making is concurrent is taxation. Section 109 of the constitution provides restrictions of the powers of the state and the commonwealth at the time of conflict.
Separation of powers- according to the doctrine of separation of powers the authority in Australia is divided into three organs which are kept independent of each other. In Australia the three organs are judiciary, legislature and executive. The executive imposes the law, the legislature enacts the laws and the laws are interpreted by the judiciary. In Australia the doctrine of separation of powers is not imposed strictly.
5. An offer is one of the first essentials required to formulate a legally binding agreement. A contract cannot be made by a valid offer. In order to be valid an offer has to be complete having the intention to bind the other party to its clauses. If the person who has made an offer does not have to intention to bind the party to who it has been bade to its clauses than the offer is not valid. The offer moreover has to contain elements like, price, description of goods and services, place and time of delivery in order to be complete, as provided in the case of Hyde v wrench (1840) a person has made an valid offer or not would be based on the fact that a reasonable person would be lured into acceptance because of its description or not (Knapp, Crystal & Prince, 2016).
An invitation to a treat on the other hand is merely the prospect provided by a person to invite another to make an offer. It has no legal significance and cannot be accepted by any person. It is an incomplete offer. The case of Pharmaceutical Society of Great Britain v Boots ruled that if it would be inconvenient to treat a statement as an offer it is an invitation to an offer (McKendrick, 2014).
Examples of invitation to an offer are invitation to tender, goods displayed in a shop and a few auctions as provided by the case of AGC (Advances) Ltd v McWhirterSupreme Court of New South Wales (1977) 1 BLR 9454.
6. In order to have a successful claim for negligence it must be established by the plaintiff according to the case of Donoghue v Stevenson 1932 AC 522 that the defendant owed him a duty of care, the defendant was negligent in complying with his duty, as the duty was not complied with the plaintiff had suffered harm which would not have been the case otherwise. In order to establish a duty of care the plaintiff must be able to prove according to the neighbor principle that the actions of the defendant could foreseeably harm him and the defendant was reasonably aware of the foreseeability. In order to prove negligence in observation of the duty of care the plaintiff must show that the defendant failed to take necessary precautions which would have otherwise been taken by a reasonable person. Finally to prove the harm caused the plaintiff must show that if the duty would not have been breached their would have been no harm caused to plaintiff (Epstein& Sharkey, 2016).
Further the defense which might be claimed against negligence is that of contributory negligence where the defendant has to prove that the plaintiff himself was negligent towards the harm caused to him to a certain to full extent.
The remedies in negligence is provided to compensate the plaintiff for the harm caused to him. If the harm caused to the plaintiff was foreseeable than he would be entitled to damages. However the plaintiff cannot seek damages for more than what he has lost (Henderson,Kysar & Pearson, 2017).
7. The question is based on the principle of contract. It is the rule that in a contract, all the contracting party should have to agree on the contractual terms. Unilateral mistakes take place, where one of the contractual party signed the contract without understanding the true meaning of it. In a simple word, when one of the party signed the contract without knowing the real fact or real subject matter of the contract, unilateral mistake take place. The main particular of that case is this type of mistake takes place only when the error is occur by only one party. The other party has not done any mistake.
In fraudulent transfer, the contract is not valid at all. In fraudulent transfer, there should be a fraud takes place by either of the party. Any of the party has the knowledge that the subject matter of the contract is false and there is an intention to defraud the other party. In this case, the other contracting party suffered from loss by such agreement.
In a case of such contractual case, if any case is arose, the plaintiff prefers the former one because of such reason as mentioned below:
The party that signed in any contract agreement must be made a written agreement. In this agreement, all the terms are clearly mentioned. The parties in this case are review all the terms of the contract and have an option to double check the terms of that contract. There is a little scope to defraud the other party of the contract. For an instance, if the subject matter of the contract is screw, and if one of the contractual party misunderstood the subject with the like nature subject, the Unilateral mistakes take place. The conditions of the misrepresentation are totally vice versa in case of fraudulent transfer. Thus, it will be easy to prove the burden of fact to a plaintiff in a case based on unilateral contract. If it is proved that the plaintiff made a mistake regarding the nature of the contract, the agreement can be made void. If any party signed a contract with a third party believing him to be the second party, the first party has an option to rescind the contract. In such case, the plaintiff has an option to file a case on specific performance.
8. The employees and the employers relationship is governed by both statutory provisions and through the principles of common law. At common law even if the employees do not have a written contract or work on a part time basis they have responsibilities towards their employers. These responsibilities include to execute the work they have been hired to execute, to observe diligence and care in their operations and work in the best interest of the employers, to conduct their activities in such a way as to not harm themselves or others and to follow the instructions of the employer within the workplace. They also have the fiduciary duty of loyalty towards their employers and must abide by the behavioural code of the workplace. They could be dismissed from work and may be subjected to further proceedings if they do not comply with the duties.
The employers on the other hand must provide a safe working environment to the employees along with all necessary equipment needed for the work. They must provide them with proper payments and leaves when needed and make arrangements in case of disability to help them adopt to the working environment. They must ensure that they provide equal opportunity of work and do not indulge in any form of discrimination. They must observe respect while treating the employees. They must also pay them redundancy pay at the time of redundancy. In case they do not observe such duties they might be challenged by the employees in court and may have to pay them compensation (Selwyn & Emir, 2014).
The Fair Work Act 2009 and the Fair Work Commission are the main federal set of laws which regulate employment law in Australia.
References
Branting, L. (2013). Reasoning with rules and precedents: a computational model of legal analysis. Springer Science & Business Media.
Constitution (2017) aph.gov.au <https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n…/Constitution.aspx>.
Epstein, R. A., & Sharkey, C. M. (2016). Cases and materials on torts. Wolters Kluwer Law & Business.
Factsheet – Religious Charities (2017) Acnc.gov.au <https://www.acnc.gov.au/ACNC/FTS/Fact_RelChar.aspx>.
Fair Work Act 2009
Henderson, J. A., Kysar, D. A., & Pearson, R. N. (2017). The torts process. Wolters Kluwer Law & Business.
Knapp, C. L., Crystal, N. M., & Prince, H. G. (2016). Problems in Contract Law: cases and materials. Wolters Kluwer Law & Business.
MacCormick, D. N., Summers, R. S., & Goodhart, A. L. (Eds.). (2016). Interpreting precedents: a comparative study. Routledge.
McKendrick, E. (2014). Contract law: text, cases, and materials. Oxford University Press (UK).
Selwyn, N. M., & Emir, A. (2014). Selwyn’s law of employment. Oxford University Press, USA.
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