Managing the Legal Environment

1. Managing the Legal Environment Topic Three Obligations & Promises An Overview

2. Obligations introduced by law Standards of conduct required by society & enforced by the State - crimes - occupational health & safety - environment protection - anti-competitive behaviour by trading corporations - working with children laws

3. Obligations introduced by law (cont�d) Standards of conduct to prevent harm to other persons and their property used by the �victim� - trespass to the person (assault) & to their property - negligence - defamation - discrimination

4. Obligations voluntarily undertaken Contract - in all its forms - the parties agree to the contents - BUT the law intrudes to regulate some forms of contract - the law is called upon to enforce if necessary

5. Criminal Law A legal wrong that the State investigates, prosecutes and carries out the punishment Regarded as an offence against the public in general Most crimes require the element of intent (including recklessness), but some only require carelessness and others require no mental element at all (strict liability)

6. Criminal Law � some general points Presumption of innocence Proof beyond reasonable doubt Minor charges in Magistrates� Court � no jury More serious charges (indictable offences) usually in County or Supreme Courts with a jury

7. Criminal Law � the States Criminal law is primarily State law Vic, NSW, SA & ACT have legislation (Crimes Act) that repeats the common law crimes and adds others Other States have enacted Criminal Codes that replace the common law

8. Types of Crimes Offences against persons & property Drug offences & the like Public order offences Regulatory offences Attacks against the State

9. Corporations & Crime Distinction between a corporation and the people who work for it Can a corporation commit a crime given that intent usually has to be proved? Difference between breaches of requirements of legislation that are not crimes and those that are.

10. Officers of a Corporation Crimes against the corporation Theft, fraud, embezzlement, etc Breach of directors duties (see later) Against others - theft etc - personal liability when acting outside their authority - when both the officer and the corporation may be liable

11. Director�s Duties Breach of some duties treated as being liable for a civil penalty � & fines only Some involve criminal offences - s184 Corporations Act - fail to act in good faith or for proper purpose - use position dishonestly to gain advantage - use information dishonestly to gain advantage Penalties: Fines &/or jail

12. Directors & crime (cont�d) Insider Trading - criminal offence

13. General defences in crime Insanity � Mental illness to the degree that the accused was not capable of forming the requisite intention Diminished responsibility � An abnormality of the mind that impaired the accused�s understanding of right and wrong, perception of events or willpower to control actions (only available as a defence to murder)

14. General defences (cont�d) Necessity CASE: R v Dudley and Stephens (1884) Self-defence � The accused believed, on reasonable grounds, that the criminal conduct was necessary to defend themselves.

15. General defences (cont�d) Duress � The accused committed the offence in response to threats of immediate death or serious personal violence. Automatism � The accused committed the offence without conscious volition, i.e. without knowledge of it and without memory of having done it.

16. General defences (cont�d) Intoxication CASE: R v O�Connor (1980) 146 CLR 64 Infancy A child under 7 (under common law) or 10 (under some legislation and Codes) is incapable of criminal guilt. In relation to a child between that age and 14, there is a rebuttable presumption that the child is incapable of crime. A child over 14 incurs criminal liability in the same way as an adult.

17. Occupational Health & Safety State legislation Different from claims for compensation for injuries at work by workers or others Involves State officers �policing� workplaces to make them safe for all System to encourage all to co-operate in being safe at work Provision for civil and criminal liability Moves to make company owners & directors personally liable for gross negligence causing death or serious injury

18. Environment Protection Similar idea to OHS State & Federal government systems to regulate our activities & their affect on the environment Penalties for offences In some instances managers & directors of companies may be personally liable

19. Working with Children Legislation Victorian legislation (some other States have �similar� legislation) To regulate who can have contact with children in providing services or activities Includes all education facilities, clubs, associations, coaching, tuition �contact� widely defined Checks and assessment notices Breaches are Criminal offences

20. Trade Practices Act Government regulation to prevent anti-competitive behaviour - primary boycotts - price fixing - certain conditional sales - resale price maintenance - substantially lessening competition - secondary boycotts, misuse of market power, etc

21. Anti-Discrimination Legislation State & federal Grounds of race, sex, marital status, impairment, etc Covers employment, housing, education, provision of goods and services, clubs, sport Provision in some circumstances for recompense Sexual harassment & victimisation Employers/principals can be vicariously liable