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Chapter 1-5

COMLAW 101 Chapter 1-5: Week 1


Department
Commercial Law
Course Code
COMLAW 101
Professor
Philip
Chapter
1-5

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Questions to think about
If a business follows the law that business is acting ethically? Depends - Fair Trading Act 1986, ethical
acts are forced. A business could be acting within law but not ethically - sweat shops, no regulation
saying you can't. Law is different from ethics but there can be overlaps
1.
Ethical breaches can lead to greater consequences than breaching the law? Yes - example, an
accountant may breach the NZ institute of Chartered Accountants code of ethics and be struck off as a
member. Also plagiarism - copyright can lead to being kicked out of uni or losing job, not necessarily a
breach of law
2.
Parliament is the supreme law making body - but is not that only one, courts can also make law, but
courts can always be overruled by parliament. Judge made rule being overruled - law of negligence
(Donoghue V Stevenson - snail in the bottle case)
3.
Legislation overrules some judge made laws related to personal injury why? Accident compensation
Act 1972/2001. judge made law of negligence overruled.
There are TWO types of legislation 1. made by parliament 2. Delegated legislation made by others
4.
But parliament must give the power to another for delegated legislation, must be authorised
Delegated legislation can be challenged whereas legislation cannot be challenged
Even when an act of parliament is against the constitution, courts cannot challenge, because of the
sovereignty of parliament. This is unlike America. Even if it is against fundamental rights e.g.. Not to
be discriminated against under the NZ Bill of Rights Act
5.
Simply reading the act cannot decide infringement - The act must be interpreted e.g. what is copying
"substantial" amount really, the courts decide how much is 'substantial' You look at past cases and
see what they did (Case precedents)
6.
Involves history, politics, law
Why do businesses need to understand the constitution - need to know what gov can and cannot do,
how to influence change,
What is a constitution? In a democracy "the state" has obligations to its citizens, has limited power. A
constitution regulates the behavior of state and scope of gov power. Government power is limited by
the constitution. State - political community under one government. State != Gov. Gov changes but
state does not change, state had legal monopoly on force, gov controls state
The NZ constitution is UNWRITTEN, it is scattered - conventions, found in statutes, court decisions
The constitution is not a higher law above parliament unlike US. E.g. NZBORA section 4 and Quilter V
Attorney - General (Page 7) lesbian couple wanted to get married, Human Rights Act 1993
Statue
Bill of Rights Act 1688
1)
(England, pg 10) - This Act gave power to parliament as in the past there was a
power struggle between the parliament and monarchy/crown in the end
parliament won. Is less about citizens this gave the sole right to make or
unmake legislation and complete freedom of speech for MP in parliament no
risk of defamation MP can challenge anyone. Example Fitzgerald v Muldoon,
the court could challenge the prime minister as PM is not MP but executive
NZBORA 1990
2)
Rights such as: not be unreasonably detained/false imprisonment, not be
searched without just cause, freedom of expression and association. If conflict
occurs between NZBORA, parliament statutes prevail. Example, Amendment act
2010 disqualification of sentenced prisoners, prisoners not allowed to vote
Constitution Act 1986
3)
Not a constitution, consolidates statutory rules governing the structures of gov
NZ'S constitutional law is found in statutes, doctrines and conventions
Week 1
Friday, 5 January 2018
1:59 PM
COMLAW 101 Page 1
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