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MLC101 Business Law Final Essay - grade HD

Business Law (Deakin University)

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Unit Name: Business Law

Unit Code: MLC101

Assignment Title: Short Essay

Word Count: Plan 149 words

Assignment 1350 words

Due Date: 22nd August, 2016 at 11.59pm

Student Name: Nikki Richardson

Student Number: 21633298

MLC101 Business Law Assignment 1 Nikki Richardson 21633298

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Essay Plan
INTRODUCTION (100 words)
The Australian Legal System is based on being fair .. this, the rule of law was
introduced (reword the initial statement)
In the eyes of the law, a corporation is viewed the same as one individual and is treated the
same when it comes to legalities
Define Democracy Australia prides itself on being a Democratic Nation No special
consideration is .. or organizations.
Define rule of law The rule of law is the principal concept behind justice ., and everyone
is treated equally in the eyes of the law

PARAGRAPHS
Compare Democracy and the rule of law relationship
Democracy and the Australian Legal System
The rule of law and the Australian Legal System
Effects of lack of democracy
Discuss the fundamental principles of the Law from a business perspective in Australia
(PROVIDE EXAMPLES)

CONCLUSION (100-150 words)

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The effects of lack of democracy and the rule of law is a problem that does not
discriminate, whether you are corporation or a start-up, rich or poor, educated or illiterate,
employed or unemployed - Allan Amanyire

Critically evaluate this statement in the context of the Australian Legal System,
citing examples from a business perspective.

The Australian Legal System is based on being fair, impartial and just for all, regardless of an
individual or businesses standing within the community. Whether an individual is rich, poor, educated,
uneducated, employed, unemployed, or whether a business is in its early stages or a fully-fledged
corporation does not impact their accountability and access to the law (Przeworski and Maravall,
2003).
The rule of law was affirmed in the Universal Declaration of Human Rights (1948) and argues
that an impartial observance of law is at all times absolutely essential for a proper functioning
democracy. The rule of law is one of the fundamental pillars upon which any successful democracy
rests and some would say that it may well be the cornerstone of democracy, as it plays a paramount
role in that it requires that the population be subjected only to publicly promulgated laws It entails
the promotion of particular concepts and freedoms, with the purpose of preventing the abuse of
power.
The rule of law is made up of numerous elements which affirm that all laws must be written,
reasonable, and as transparent as possible and that they must not be contradictory in any form and
they must also be constant through time, whilst allowing for revision.

Applying the rule of law in Australia, which is a Democratic Nation that is influenced and run
by its population, sees no special consideration is given to any sub group of people or organisations
(Rich, 2001). Businesses controlled by Australian law are required to follow these strict equity
guidelines or be deemed to face serious consequences including but not limited to inprisionment.

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Democracy in Australia

Democracy is a political system in which the people of a country rule through an established
government of their choice (Patapan, 2000). In a democracy, the people assign authority to those that
are selected to govern. The purpose of democracy is to provide a government that is not only intended
to be fair and just, but also clear and transparent to all. The Eureka Stockade or the Eureka Rebellion,
is today viewed as the birthplace of Australia's political system (Walshe, 1953). It was a crucial
stepping-stone, as it was there that democratic ideals were first developed. This was the result of a
combination of grievances on the gold fields associated with the licensing of mining permits as well as
a lack of political representation. These events saw the birth of one of the greatest victories for equity
and fairness in Australias history.

In Australia, democracy effectively serves to aid the checks and balances that prevent unfair
or unaccountable abuses of power that ultimately serve to benefit a minority at the expense of the
majority. Historically, the idea of democracy has been so alluring to people from countries all over the
world, that so many were willing to sacrifice not only their livelihoods, but their lives in their pursuit
to fight for it.

We should ... say that democracy is the form of government in which the free are rulers, and
oligarchy in which the rich; it is only an accident that the free are the many and the rich are the few....
And yet oligarchy and democracy are not sufficiently distinguished merely by these two characteristics
of wealth and freedom. (Aristotle & Barker, 1946)

The Relationship Between Democracy and The Rule of Law

Over the course of Australian history, both The rule of law and democracy have formed our
perception of justice and, these perceptions have not only help to guide and shape the Australian
Legal System as we know it, they have been paramount in multiple landmark cases, including Mabo v
Queensland (No. 1 & 2) (1988; 1992) and Wik Peoples v Queensland (1996) (Mercer, 1997). All three
of these landmark cases continue to influence the status of Aboriginal land rights today. Democracy
and the rule of law are both essential concepts of justice, which, by their very nature, define our
implementation of law as well as our interpretation of it. The goal of our legal system is justice and
fair, equitable treatment for all. This would not be possible without these above mentioned essential
legal concepts.
The rule of law and democracy go hand in hand, and a superior democracy requires a highly
democratic rule of law that safeguards various aspects of accountability, political rights and civil
liberties, which in turn assure political equality for all citizens and limit potential abuses of state power
(Rigobon and Rodrik, 2005).

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Fundamental Principles of Law

The relevance of, or what is often referred to as the principles of the rule of law, is
demonstrated in multiple aspects of the Australian legal system and thoroughly discussed in a review
by Wheeler (1997). The separation of powers between the legislature, the executive and the judiciary
is a leading example of ensuring equality and preventing abuse of power in government. The law and
its administration are subject to open and free criticism by the people, who have the right to assemble
without any fear of retribution this is indicative of a representative government, where its people
are able to argue what they want in their communities.
The law is applied equally and fairly, so that no one person or entity can be deemed to be
above the law. No one is subject to action other than what is in accordance with the law and the
judicial system is to remain consistently independent, impartial and clear and all accused are
presumed to be innocent until proven otherwise in a court of law. No one can be prosecuted in a civil
or criminal manner, for any offence that is not known to the law at the time the offence occurred.
These concepts are just some of the key factors that collectively work to enforce an equal and fair
government in Australia.

Australian Corporate Law

Historically, Australian corporate law has heavily mirrored UK company law (Kiel and
Nicholson, 2003). Today, our legal structure is made up of a single, national statute known as the
Corporations Act 2001 (Cth) and this statute is administered by a single national regulatory authority
known as ASIC - the Australian Securities and Investments Commission (Craswell, Taylor & Saywell,
1997). The Corporations Act 2001 and Australian Securities and Investments Commission Act 2001
(Cth) are the federal statutes that underpin Australian business law. Provisions in the Act can often be
traced right back to pioneer legislation that is found in the United Kingdom, which is why reference to
this is o made in judgments of courts (Kiel and Nicholson, 2003). When applying the aforementioned
fundamental principals of law to Australian business law, you will see that many large scale
organisations have failed to navigate around the law to their benefit due to their high standing in the
business pyramid (Burki, 2015). In Burki (2015) the corner cutting tactics of company Volkswagen were
discussed, and similarly in the case of ACCC v Valve Corporation (No 3) (2016) where these high level
companies attempted to bypass Australian Consumer law. Although both companies pay a large sum
of money in taxes to Australia annually, in these cases they were to be treated no different to a
common thief and were to be held accountable for their intentional mistakes.

Conclusion

Although some countries have sought a shortcut to economic success by avoiding essential
values that Australia prides itself for; democracy and the rule of law have sought to ensure this does
not occur, and ensure that all businesses are treated equally and fairly in the eyes of the law. It is
imperative that the Commonwealth continues to reject the idea that it is possible to enrich its citizens
while bypassing the very building blocks of democracy, or the idea that freedoms are reserved only
for certain people. Australia as a nation is proud to embrace values that encumber democratic

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elections, the rule of law, independent judges and a free press. A lack of democracy has no room for
such important values and these values are the very back bones of our nations legal system and
therefore a lack of democracy has no place in the Commonwealth.

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Reference List

ACCC v Valve Corporation (No 3) [2016] FCA 196.

Aristotle., & Barker, E 1946, The Politics of Aristotle, Clarendon Press, Oxford.

Assembly, U.G., 1948. Universal declaration of human rights. UN General Assembly.

Australian Securities and Investments Commission Act 2001 (Cth).

Burki, T.K., 2015. Diesel cars and health: the Volkswagen emissions scandal. The Lancet Respiratory Medicine, 3(11), pp.838-839.

Corporations Act 2001 (Cth).

Craswell, A.T., Taylor, S.L. and Saywell, R.A., 1997. Ownership structure and corporate performance: Australian evidence. Pacific-Basin Finance Journal, 5(3),
pp.301-323.

Kiel, G.C. and Nicholson, G.J., 2003. Board composition and corporate performance: How the Australian experience informs contrasting theories of corporate
governance. Corporate Governance: An International Review, 11(3), pp.189-205.

Mabo and Another v The State of Queensland and Another (No. 1) [1988] HCA 69.

Mabo and Others v Queensland (No. 2) [1992] HCA 23.

Mercer, D., 1997. Aboriginal self-determination and indigenous land title in post-Mabo Australia. Political Geography, 16(3), pp.189-212.

Patapan, H., 2000. Judging democracy: The new politics of the High Court of Australia. Cambridge University Press.

MLC101 Business Law Assignment 1 Nikki Richardson 21633298

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Przeworski, A. and Maravall, J.M., 2003. Democracy and the Rule of Law (Vol. 5). Cambridge University Press.

Rich, R., 2001. Bringing democracy into international law. Journal of Democracy, 12(3), pp.20-34.

Rigobon, R. and Rodrik, D., 2005. Rule of law, democracy, openness, and income. Economics of transition, 13(3), pp.533-564.

The Wik Peoples v State of Queensland & Ors (1996) 187 CLR 1.

Walshe, R.D., 1953. The significance of Eureka in Australian history. Historical Studies: Australia and New Zealand, 6(1), pp.62-80.

Wheeler, F., 1997. The Doctrine of Separation of Powers and Constitutionally Entrenched Due Process in Australia. Monash University Law Review, 23, p.248.

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