Question 1: Explain the roles of legislative, executive, and judicial arms of the government in Australia
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Question 1: Explain the roles of legislative, executive, and judicial arms of the government in Australia. Government of Australia is divided into three parts i.e. Parliament, Executive government, and Judicature. Thus traditionally the law making body is the Legislature, the one responsible for executive functions is the Executive, and the one responsible for determining the meaning of law is the Judiciary. The historical reason for separating the functions was to secure freedom for the individual by controlling abuse of public power exercised by authoritarian rulers. Practically, this separation of powers cannot apply in Australia because of the close relationship of the Executive and the Legislature. Parliament: In Australia, the nine Parliaments, as Legislatures, are the principle law-making authorities. Thus, law-making power of the Commonwealth is exercised by parliament. Parliament has two principle functions: the making of Legislation and the supervision of Executive. The parliament of Australia is not sovereign because of the division of legislative powers between the Commonwealth and States. The constitution divides total law making powers into specific powers, which is granted to Commonwealth parliament and general law making powers are retained by states, both the powers are limited by constitution by imposing prohibitions. The main function of Parliament is to make laws, which is called as an "Act" - which means Parliament has acted in its capacity as legislature. The two general terms used to refer to laws made by parliament are "statutes" and "legislation", the former refers more to Acts whilst latter covers Acts. These Acts are formulated, passed and then brought into operation by Parliament1. Executive: Just like nine parliaments Australia has nine Executives arms. This arm is referred to as 'the Government'. Governor-General as Queen's representative exercises this power. Executive council has two forms, Cabinet and Executive Council. 1 D.K. Srivastava, T. Deklin, P. Singh, Introduction to Australian law (1996) 21-27. The Cabinet comprises of group of ministers from the Parliament, their responsibility includes making political decisions and to decide matters of legislation to place before parliament.
The case of Ebay Inc. V Bidder's Edge Inc. 100 F Supp 2D 1058 (2000) proves that the traditional contract law didn't cover the modern aspect like Trespassing through websites, where website is the means of business15. The cases where there is no contract between two parties, negligence takes cares of protection of person, property or economic interest from damage caused by another person's failure to take reasonable care16. As a result in the case of Donoghue V Stevenson (1932) AC 562 the court held manufacturer liable to the consumer because of the fact that there was negligence in manufacturing of product, even though there was no contract between them17. 12 P. Gillies, Business Law, (9th ed, 1999) 572. 13 L. Griggs, E. Clark, I. Iredale, Managers and the Law: A Guide for Business Decision Makers (2nd ed, 2003) 94. 14 Ibid 116. 15Ibid 118. 16 Ibid 118. 17 Ibid 118. Breach of duty states that once the duty of care has been shown to exist, the focus of attention shifts to the issue of whether the defendant breached his duty that is whether his/her conduct was negligent. A defendant, whose conduct falls below the acceptable standard of care, is by definition negligent18. Lets take the case of Rogers v Whitaker (1991) 23 NSWLR 600, where a medical practitioner was found to have been negligent in failing to advice the patient as to the risk of a proposed operation, designed to improve the sight of one eye. The other eye was good but she was not advised the potential complications involved in the operation. But she finally developed that condition and became blind and due to the fact that he had not told the patient court held the surgeon responsible by showing negligence on his part19. Thus tort law with Trade practices act has proved itself far better than the traditional contract act in coping up with the modern business trends.
29 D. Khoury, Y. Yamouni, Understanding Contract Law (5th ed, 1998) 46. 30 B. Sweeney, J. O'Reilly, Law in Commerce (2001) 78. 31 R. Vermeesch, K. Lindgren, Business Law of Australia (8th ed, 2001) 139. In the second case, the two parties have completely agreed upon all the terms of their bargain and intend no departure from or addition to that which their agreed terms express or imply, but nevertheless have made performance of one or more of the terms conditional upon the execution of formal document32. In the third case in which the intention of the parties is not to make a concluded bargain at all, unless and until they execute a formal contract33. In the first two cases it's a binding contract whereas in the third case the terms of the agreement are not intended to have, and therefore do not have any legal binding effect of their own. Thus this question depends upon the intention disclosed by the language employed by the parties34. Thus in order to have a contract according to the rules stated above, the acceptance towards terms and conditions is shown from both the sides. Lets see the case of Masters v Cameron (1954) 91 CLR 353 35 the court decided that the parties were doing the formal requirements governing the sale of land which shows no intention to be immediately bound as and that their was not contract between them. Thus we conclude that the act done by Tom and Croyton would not be considered as an acceptance and that there is no contract between them. And to have a contract they have to go to the seller and offer him a price, if accepted they have to get legally bound through certain terms and conditions. 32 R. Vermeesch, K. Lindgren, Business Law of Australia (10th ed, 2001) 39. 33 Ibid 139. 34 Ibid 140. 35 Ibid 140.
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