RMIT commercial law MCQ Test bank Part 2
The head of state of the Commonwealth of Australia and of the various States and Territories is the:
Prime Minister.
King or Queen of England.
Constitution.
Chief Justice.
B
Contract law regulates:
The relationship between the various arms of government.
Agreements and promises.
The compensation of victims for another's carelessness.
Criminal liability.
B
Ideally the law should:
Be certain, flexible, accessible and fair.
Remain unchanging.
Be followed regardless of whether it or not it is seen by most to be fair.
Not be enforced where a wrongdoer was unaware of its existence.
A
The purpose of the law is to:
i. Resolve disputes.
ii. Keep the peace.
iii. Preserve and enforce community values.
iv. Ensure that resources and opportunities are distributed fairly within a community.
i, ii, iii.
i, iii, iv.
i, iv.
i, ii, iii,iv.
D
Private law is concerned with the relationships between persons within the community. Which of the following types of law do not fall within this category?
Tort law and property law.
Commercial law and employment law.
Company law and partnership law.
Criminal law and taxation law.
D
When answering a legal problem you must support any statement of legal principle with a legal authority, that is, either a case or a provision of an Act. Assume you are using the following case as an authority to support your argument: ACCC v C G Berbatis Holdings Pty Ltd (2003) 214 CLR 51.
Which answer correctly explains what the parts of the reference mean?
a. This is a case. The parties’ names are followed by the citation. The case was decided in 2003, by the High Court and can be found at volume 214, on page 51 of the CLRs.
b. This is a case reference. The names of the parties in the case are separated by a ‘ v’ for ‘and’. The parties’ names are followed by the citation. The case was decided in 2003 by the High Court and can be found in volume 214 on page 51.
c. This is a reference. There are two parties involved in the case and their names are followed by the citation. The citation helps to find the case. The case was decided in 2003, that the case was decided by the High Court and that the case is reported in volume 214 commencing at page 51.
d. This is a case reference. The names of the parties in the case are separated by a ‘v’ meaning ‘versus’ and said as ‘and’. The parties’ names are followed by the citation, which explains how to find the full text of the case. According to the citation, the case was decided in 2003, by the High Court (CLR stands for the Commonwealth Law Reports which report High Court decisions) and it is reported in volume 214 commencing at page 51.
D
When used in a legal context the term 'bicameral' refers to:
The parliament consisting of two Houses, an Upper House and a Lower House.
The separation of power between federal and state governments.
The authority of the Governor General.
The ban on the filming of parliamentary sessions.
A
The Australian Constitution was established by the:
Colonial Laws Validity Act.
Constitution Act.
Australia Act.
Commonwealth of Australia Constitution Act.
D
Private law is concerned with the relationships between citizens within the community, and includes:
i. Contract law and tort law.
ii. Competition law and consumer law.
iii. Commercial law and partnership law.
iv. Employment law.
i, ii, iii.
ii, iii, iv.
i, iii, iv.
i, ii, iii, iv.
D
The doctrine of precedent is essential to the development of the common law. Which of the following answers best describes the difference between binding and persuasive precedent?
a. A precedent from a superior court is binding on lower courts in the same court hierarchy where the facts of the two cases are identical or materially similar. A precedent that is not binding might be persuasive if it has sufficient weight due to the reputation and standing of the deciding court and the similarity of the material facts.
b. A decision of any court in Australia will be binding on all other Australian courts if that decision is well reasoned and fair. A decision that leads to an unfair or unjust outcome need not be followed by any court.
c. A precedent from a superior court is always binding on lower courts in all court hierarchies whereas a precedent that is not binding will have persuasive value only on courts in the same hierarchy.
d. A precedent that is binding on lower courts in the same court hierarchy must be followed regardless of the quality of the decision, whereas a precedent that is persuasive may be followed only if the lower court chooses.
a
Which of the following statements best describes the difference in how statute law and common law are made?
a. Statute law is enacted law, made by the Commonwealth and state Parliaments, through a rigorous process of scrutiny, parliamentary procedure, debate and agreement. The common law, which includes equity, is the body of principles which have come from decisions made by judges, who interpret and apply the law to cases brought before the courts.
b. The common law, also called case law or statute law, is made by judges who apply past court decisions to new cases. Statute law is developed by parliament’s attempt to anticipate disputes and prevent them from going to court.
c. As statute law is made by Australian society’s elected representatives, it takes precedence over the common law which is made by judges applying the law to cases brought before the courts.
d. Case law is developed by applying past decisions to current cases, whereas statute law anticipates future disputes.
A
The following extract is part of a section of the Competition and Consumer Act 2010 (Cth). Which answer best explains why Acts contain a definitions section?
95AB Definitions
In this Division:--
authorisation means an authorisation granted under this Division
Business day means a day that is not a Saturday, a Sunday, or a public holiday in the Australian Capital Territory.
a. The legal meaning of words in an Act are not the same as the ordinary dictionary meaning of words. A definitions section provides technical legal meanings of certain words to explain how these words should be read in that Act or part of that Act.
b. To help lawyers understand the meaning of words in the Act.
c. To help judges understand the meaning of words in the Act.
d. To give the reader the option to use that definition if they choose.
A
Which of the following answers best explains whether the Victorian Supreme Court can decide on a case that involves a Commonwealth constitutional issue?
a. The Victorian Supreme Court cannot hear a case involving a Commonwealth constitutional issue because Supreme Court judges do not have the expertise in the area of constitutional law required to interpret theAustralian Constitution.
b. The Victorian Supreme Court can hear a case involving a Commonwealth constitutional issue where it sits in conjunction with one other state Supreme Court.
c. The Victorian Supreme Court cannot hear a case involving a Commonwealth constitutional issue because it is a Victorian court.
d. The Victorian Supreme Court cannot hear a case involving a Commonwealth constitutional issue because the Australian Constitution vests that jurisdiction solely in the High Court of Australia.
D
Which of the following answers best explains what a judge does when she or he distinguishes a case on its facts?
a. If a judge in a later case is obliged but reluctant to follow the precedent of an earlier case, that judge may distinguish the later case on its facts, that is, state that the precedent does not apply to the facts of the later case.
b. The reason or ratio for a decision in an earlier case will only be binding on a court in later cases if the judge in the later case approves the precedent. If not, that judge may distinguish the later case on its facts in comparison with the facts in the earlier case.
c. The doctrine of binding precedent, whereby courts in later cases in the same court hierarchy must apply the ratio or reason from an earlier decision, only applies if the facts of the later case are identical or sufficiently similar to the earlier case. If the facts of the cases are sufficiently different, the later case may be distinguished on its facts and the judge need not follow the precedent. Distinguishing a case on its facts is a method of legal reasoning that explains why a precedent does not apply to a particular case.
d. Distinguishing a case on its facts is a method of legal reasoning that allows a judge to disregard a binding precedent that is clearly unjust.
C
The Australian Constitution gives the Commonwealth government power to make legislation in the area of taxation. This is a concurrent power shared with the state and territory governments, which means that the Commonwealth, states and territories may make laws regarding taxation. If the Victorian Parliament passed the fictitious Taxation of Bike Riders Act 2011 (Vic) and parts of this Act were inconsistent with the fictitious Taxationof Recreational Walkers Act 2009 (Cth), which law will prevail: that of the Commonwealth or Victoria?
Which is the best answer?
a. Neither law will prevail. Because the fictitious Acts potentially discourage people from pursuing healthy activities, the courts are unlikely to apply the Acts to cases that are brought before them, thus rendering the Acts ineffective.
b. Both laws will prevail. The Australian Constitution, s 109, states that Commonwealth legislation prevails over state legislation. However, because Victoria has a separate constitution, Victorian legislation will always operate in Victoria. Therefore, the Commonwealth law will apply to all recreational walkers in Australian and the Taxation of Bike Riders Act 2011 (Vic) will operate to tax bike riders using Victorian bike paths.
c. The Victorian law will prevail. As Victoria has its own constitution, it is a sovereign state with its own parliament with the power to pass legislation. Therefore, Victorian legislation passed in an area of concurrent power, even if it is inconsistent with Commonwealth legislation, will still operate, and will prevail with regard to any bike rider riding a bike in Victoria.
d. The Commonwealth law will prevail. The Australian Constitution s 109 states that, regarding concurrent legislative powers, where there is any inconsistency between Commonwealth and state laws, the Commonwealth law will prevail.
D
To help understand the different functions of law it is useful to classify laws according to subject matter, how laws are made, the purpose of a law, or who the law affects.
Which of the following answers best explains where commercial law fits within a classification that distinguishes public law from private law?
a. Commercial law, which involves areas such as contract, tort and property law, can be broadly classified as public law, where disputes between individuals are adjudicated in public, that is, the courts.
b. Commercial law, which involves areas such as contract, tort and property law, can be broadly classified as public law, where private individuals and business entities establish rights and responsibilities between each other which are enforceable by laws made by government.
c. In the public-private classification of law, the areas of law associated with commercial law, such as contract and tort, can be broadly classified as private law where individuals or business entities establish relationships with each other that involve establishing and enforcing private legal rights and responsibilities. In contrast, areas of public law such as constitutional, administrative and taxation law involve the relationship between the state and the individual, the functions of the state and the power of the state to establish rights for and impose responsibilities on members of society.
d. Commercial law, which involves areas such as contract, tort and property law, can be broadly classified as public law, where members of the public are free to establish rights and responsibilities with each other.
C
Randall works as a plumber in the eastern suburbs of Melbourne and he has paid a $10,000 deposit to a car dealer for a new Nissan utility, which will cost $50,000 in total, a very good price for that model car. He has been waiting for the car to be delivered by the manufacturer for two months and recently the car dealership closed its business. Worried that he has lost his money, Randall wants to take the dealer to court.
Which of the following answers best explains where Randall should take his case?
a. This is a matter involving a potential breach of contract, which is a civil matter. Randall has potentially lost $10,000. He should take his case to the Magistrates Court in Melbourne, which hears civil matters involving up to $10,000.
b. This is a matter involving a potential breach of contract, which is a civil matter. Randall has potentially lost $10,000. He should take his case to the Supreme Court in Melbourne, which has unlimited jurisdiction in civil matters.
c. This is a matter involving a potential breach of contract, which is a civil matter. Randall has potentially lost $10,000. He should take his case to the Magistrates Court in Melbourne, which hears civil matters involving up to $100,000.
d. This is a matter involving a potential breach of contract, which is a civil matter. Randall has potentially lost $10,000. He should take his case to the Magistrates Court in Melbourne, which hears civil matters involving up to $15,000.
C
The 'residual' powers of the State parliament are:
Matters in relation to which both the Federal and State parliaments may make laws.
Matters in relation to which only the Federal parliament may make laws.
Unimportant matters which do not necessitate the making of laws.
Matters in relation to which only the State parliaments may make laws
D
According to the doctrine of responsible government:
Persons convicted of an indictable offence are not eligible to contest a parliamentary seat in an election.
The members of the legislature are also judicial officers.
The ministers comprising the executive council are elected representatives who are also members of the legislature.
The members of the executive government are not answerable to citizens, as they are not elected to their positions.
C
The phrase 'division of power' refers to:
The separation of legislative, executive and judicial power within each level of government.
The notion that laws are made by the legislature, administered by the executive and interpreted by the judiciary.
The separation between the three arms of government.
The division of law-making power between the Federal government and various State governments.
D
The subcategories of public law include:
Criminal law, administrative law, tort law, and constitutional law.
Constitutional law, criminal law, tort law, and commercial law.
Administrative law, constitutional law, taxation law and contract law.
Criminal law, administrative law, constitutional law and taxation law.
D
Which of the following statements is incorrect? The doctrine of precedent:
Is sometimes referred to by its Latin name stare decisis.
Is important in ensuring consistency in case law.
Provides that a judge deciding a question of law must decide that question in the same way as was done previously by an earlier court.
Contributes to the unpredictability of the law.
D
In his country of origin Nigel is not permitted to exercise any legal rights because of his racial heritage. It appears that his country is not governed in accordance with:
The rule of law.
The doctrine of reception.
The separation of powers.
The doctrine of precedent.
A
Which of the following would not be regarded as a purpose of the law?
Keeping the peace and preventing chaos.
Ensuring community values are applied equitably.
Ensuring fair distribution of resources.
Encouraging the arbitrary exercise of power.
D
Tort law:
Is the law that regulates agreements and promises.
Seeks to ensure businesses do not misuse their power in the marketplace.
Provides a remedy for those harmed by the acts or omissions of another.
Governs the relationship between employers and employees.
C
Maurice slipped on a lettuce leaf left on the supermarket floor. He injured his ankle. He intends to bring a claim for damages against the owner of the supermarket. Which of the following facts will be least relevant to Maurice proving his claim?
The lettuce leaf fell from a display of iceberg lettuces at the front of the store.
The pair of rubber thongs Maurice was wearing at the time of the fall were bright pink.
The supermarket owner employed a full time cleaner to inspect the floors at 30-minute intervals.
The supermarket owner did not offer Maurice any assistance after his fall.
D
The application of the doctrine of reception in Australia meant that:
The laws of the indigenous Australians remained in place and were recognized by the British.
Native title laws were recognized by the British.
The British settlers brought British laws with them.
British laws and laws of the indigenous Australians were assimilated.
C
When a contract is breached, the other person can sue the person who breached the contract for:
Monetary compensation.
A fine.
Imprisonment.
An apology.
A
Public law is concerned with the relationship between the citizen and the state, and includes:
Contract law and criminal law.
Administrative law and tort law.
Taxation law and property law.
Constitutional law and administrative law.
D
Which of the following provides the most complete definition of law in Australia?
a. Law is a system of enforceable rules established, administered and applied by the Commonwealth, state and territory governments with the aim of creating cohesive behaviours and standards in society.
b. Law establishes the legal relationship between Australian citizens on the one hand and the Commonwealth, state and territory governments on the other.
c. Law is a system of rules that the courts apply to the facts of cases to provide consistent outcomes to disputes between individuals, individuals and government or between governments.
d. Law is created by government to exercise power over its citizens.
A
Which of the following statements best describes the main purpose of laws made to regulate the commercial environment, such as the Competition and Consumer Act 2010 (Cth)?
Laws that regulate the commercial environment are made with the aim of:
a. promoting an efficient and predictable business environment for the good of the nation’s economy.
b. improving living conditions in third-world countries by preventing the sale of unethically-produced goods.
c. protecting members of the community from entering into unsound business transactions.
d. promoting fairness, efficiency and certainty in business, balancing the rights and responsibilities of parties to business transactions, and deterring and resolving disputes.
D
Which of the following statements about the function of law in Australian society is incorrect?
a. The Commonwealth government has the power to make laws for the purpose of achieving unequal treatment of individuals.
b. Law is used by the Commonwealth, state and territory governments to exercise unlimited power over members of society to control behaviour and prevent disputes.
c. Law is the means by which the democratically elected Commonwealth Parliament represents the will of Australian society.
d. Law functions as a system of formal social and behavioural guidelines that promote social stability.
A(x) B
The Australian Constitution established the High Court of Australia and sets out the Court’s powers. Which of the following statements best describes the role of the High Court?
a. The role of the High Court is to hear matters in its original jurisdiction relating to foreign affairs and constitutional issues, and to hear appeals by a court exercising federal jurisdiction or state Supreme Courts, and to interpret the Australian Constitution
b. The role of the High Court is to ensure that the Commonwealth Parliament does not act beyond its legislative powers.
c. The role of the High Court is to create binding precedents for all Australian courts to follow.
d. The role of the High Court is to act as guardian of the Australian Constitution
A
The Commonwealth Parliament may delegate its legislative power to the executive and other specific bodies and people. This legislation is referred to as delegated, subordinate or secondary legislation. Examples of delegated legislation include regulations, by-laws and rules.
Which of the following answers best explains why Parliament would give up some of its power to make legislation?
a. To provide an efficient mechanism of adding detail to the general provisions of a principal Act, without going through the legislative process of amending the Act.
b. Parliament is required to give away some of its legislative power to the executive so that Parliament does not have unlimited legislative power.
c. Parliament is best placed to write the broad provisions of an Act whereas the executive is best placed to write the detailed regulations that give effect to the principal Act.
d. Parliament gives up some of its legislative powers to both the executive and the courts, where the executive or the courts have better knowledge of the subject matter of the principal Act.
A
Not all precedents are binding on future courts. A precedent might be followed due to its persuasive value.
Which of the following answers best explains what makes a precedent persuasive?
a. A persuasive precedent is a judgement that is old, was reserved, decided by a highly regarded judge, with a strong dissenting judgement and on identical or very similar facts as the present case.
b. A precedent will have persuasive value if it is no more than one year old, made by the highest court in the hierarchy, and was a reserved judgment.
c. A precedent will have persuasive value to later courts if it has been followed by many other courts, the deciding judge is held in high regards and the court is in another common law legal system such as England or New Zealand.
d. Factors that are taken into account when determining the persuasive value of a precedent include: the level of the deciding court in its hierarchy; the regard in which the deciding judge is held; when the decision was made; the time the court took to consider the decision; the strength of any dissenting judgment; and the similarity of the material facts of the case to the case being decided.
D
Democratically elected governments do not have unlimited power over their citizens. The Australian Constitutionis based on the doctrine of separation of powers, which is a mechanism to limit the power of each branch of the Australian government. Which of the following statements best describes how the Constitution does this?
a. The Australian Constitution established the three branches of the Commonwealth government, each with separate and different powers beyond which it cannot act. This separation of governmental powers reduces the ability of government to rule with tyranny. Each branch of government also functions as a check on the exercise of power of the others. For example, the High Court may declare legislation to be unconstitutional due to the Commonwealth Parliament acting beyond its legislative power when passing the legislation.
b. The Australian Constitution established the three branches of government, each with similar powers that are exercised separately. Each branch of government may check on the actions of the others. For example, the High Court has the power to amend legislation where it considers that Parliament has exceeded its legislative power. In turn, Parliament may ignore a High Court decision that Parliament considers to be incorrect.
c. The Australian Constitution established the three branches of the Commonwealth government, each with similar but separate powers. It also established the states, with their own parliaments, executives and judiciaries. The Commonwealth government checks on the actions of the states and the states oversee the actions of each other.
d. The Australian Constitution established the three branches of government, each with separate powers beyond which it cannot act. Each branch of government may check on the actions of the others. For example, where Parliament considers a case to be constitutionally significant, it has the power to order the High Court to hear the case even though the Court has refused to hear the case.
A
Constitutional law is a category of public law concerned with:
Regulating the administrative activities of the government.
Making government departments accountable to citizens for their actions.
Regulating the relationship between the government and its citizens and granting human rights and liberties.
Giving citizens the right to seek judicial review of administrative decisions.
C
The phrase 'distinguishing the precedent' refers to:
Highlighting the similarities between a precedent and the present case in order to justify following the precedent.
Presenting a persuasive argument at trial in order to convince a trial judge that a precedent should be followed.
The decision of the trial judge to follow a precedent and apply it to the facts of the case before him or her.
The decision of a judge to deviate from a precedent because of significant differences in the material facts of the present case.
D
Australia was initially regarded terra nullius at the time of British settlement, which means:
'Land to be settled'.
'Land belonging to no-one'.
'Inhabited land'.
'Conquered land'.
B
Australia's legal system is a common law legal system based on the:
Indigenous Australian legal system.
British legal system.
Roman legal system.
US legal system.
B
Ideally the law should:
Be certain, flexible, accessible and fair.
Remain unchanging.
Be followed regardless of whether it or not it is seen by most to be fair.
Not be enforced where a wrongdoer was unaware of its existence.
A
The doctrine of precedent states that:
When making a decision on a question of law, the court must do so consistently with the earlier decisions of other courts in cases with similar facts.
When making a decision on a question of law, the court must do so consistently with the earlier decisions of superior courts in the same court hierarchy in cases with similar facts.
When making a decision on a question of law, the court must do so consistently with the earlier decisions of lower courts in the same court hierarchy in cases with similar facts.
When making a decision on a question of law, the court must do so consistently with the earlier decisions of other courts.
B
In courts within a common law legal system, dispute resolution is carried out in accordance with:
The inquisitorial system.
The adversarial system.
Trial by combat.
Alternative dispute resolution.
B
Which of the following is not a proper description of a stage through which a Bill must successfully pass in order to be passed by the Lower House?
The first reading, a formal reading of the Bill's title by the Clerk of the House.
The second reading, where the Minister delivers an explanatory speech, proceedings are adjourned for members to consider the Bill and the Bill is debated when the House resumes sitting.
The committee stage, where the Bill is considered by a committee of House members usually comprised of members from each of the major political parties. The Chair of the committee then advises the House about the Bill.
The third reading stage, where members are allowed full debate and given an explanatory memorandum to assist their understanding of the Bill.
D
Which of the following statements best explains why it is necessary for the Victorian government to make a law that prohibits the killing of another human being when most people know it is wrong?
a. Making murder a crime has at least two purposes: prohibition of certain behaviours establishes expectations regarding the standard of behaviour of each member of a community; and punishing a murderer goes some way to providing justice for the victim’s loved ones and society as a whole.
b. Government must legislate to prohibit murder because it cannot rely on people’s morals to prevent murder.
c. All socially unacceptable behaviour must be prevented by laws.
d. The prohibition of any antisocial behaviour establishes moral standards and prevents the behaviour from occurring.
A
Which of the following answers best describes the general steps involved in making an Act?
a. An Act is presented three times to the upper house in the relevant parliament, where it is debated on its general terms, purpose and specific effect. Once approved by the upper house, and the Governor-General or State Governor, the Act becomes effective law.
b. A Bill becomes an Act when the lower house in the relevant Parliament debates and agrees on its general terms and the Queen’s representative in the relevant jurisdiction gives it Royal Assent. It is effective from its commencement date.
c. The draft of a proposed new statute, called a Bill, is presented three times to each house of Parliament, where it is debated on its general purpose and specific effect. Once approved by both houses and given Royal Assent by the Queen’s representative in the relevant jurisdiction, the Bill becomes an Act and is law from its proclamation or commencement date.
d. A Bill becomes an Act once it has been given Royal Assent by the Governor-General and applied by the courts to cases.
C
Which explanation best describes the difference between the ratio decidendi of a decision and obiter dicta?
a. The ratio decidendi is the principle of law that the judge would have applied if the facts of the case had been different. Obiter dicta are the statements of principle that lead to a court's decision.
b. The ratio decidendi forms the binding precedent on lower courts in the same court hierarchy, whereas obiter dicta are the comments made by judges that are not binding.
c. The ratio decidendi of a judgment forms the precedent that is available to lower courts in the same court hierarchy to follow, whereas the obiter dicta of a judgment are the statements made by judges that are essential to the reason for the decision and are binding on lower courts in the same hierarchy to follow in factually identical cases.
d. The ratio decidendi, also called the ratio, is the part of a judgment that gives the principle of law that is the reason for the decision. Only the ratio will be binding precedent. Obiter dicta, also called obiter, are the statements in the judgment that are not specifically relevant to the decision and are not binding on lower courts.
D
Delegated legislation is:
Legislation made by parliament pursuant to powers delegated by the Governor-General.
Legislation enacted pursuant to powers delegated by the Constitution.
Rules, regulations or by-laws established by a local authority or government department pursuant to authority delegated by parliament.
Legislation enacted by State and Territory parliaments.
C
Tort law may be classified as:
i Public law.
ii Criminal law.
iii International law.
iv Civil law.
v Domestic law.
vi Private law.
i, iii, vi.
ii, iv, v.
iii, iv, v.
iv, v, vi.
D
Under Australia's federal system of government:
i. There are two levels of government: the Federal government and the various State governments.
ii. Power to govern is shared between the Federal and the State governments.
iii. The two levels of government are not subordinate to each other, but are 'partners'.
i, ii.
ii, iii.
i, iii.
i, ii, iii.
D
The Australian Constitution was established by the:
Colonial Laws Validity Act.
Constitution Act.
Australia Act.
Commonwealth of Australia Constitution Act.
D
Which of the following is a difference between natural law theory and legal positivism?
Natural law theory denies that there is a set of higher values.
Natural law theory maintains there must be a connection between laws and principles of morality and justice.
Legal positivists consider what the law ought to be, not what it is.
Legal positivists focus on universal standards of morality and justice.
B
The Australian legal system is:
i. A constitutional monarchy.
ii. A liberal democracy.
iii. A federation.
iv. A democratic republic.
i, ii, iv.
i, ii, iii.
i, iii, iv.
ii, iii, iv.
B
According to the literal rule of legal interpretation:
When reading a text we should try to work out what the author intended to say rather than focusing on the actual words used.
When interpreting a text the intention of the author should be preferred over the ordinary, natural meaning of words.
If reading a text literally produces an interpretation not intended by the author it is appropriate to interpret language in the spirit that it was intended.
We should always read a legal text literally, with words and phrases given their ordinary and natural meanings.
D
Which if the following is not a key feature of law?
A set of rules.
Approved by the court.
Made by the state.
Enforceable by prosecution or litigation.
B
The Federal government compulsorily acquires Tom's land as the proposed site for a new freeway. He is not compensated. Tom may be able to challenge the acquisition on the ground that:
According to the Australian Constitution he is entitled to 'just compensation'.
The Federal government does not have the power to compulsorily acquire land.
It is not fair.
The Constitution gives the power of compulsory acquisition to the State governments not to the Federal government.
A
In the event of a conflict or inconsistency between case law and a statutory rule:
The statutory rule prevails.
The case law takes precedence.
Both rules are ignored.
The rule that was created first in time takes precedence.
A
Paul bought a new television for $5000 from David Jeans, a large retailer in the centre of Melbourne. The television has never worked properly but David Jeans will not refund the money because it appears that the television does not work because it has been dropped. Paul wants to sue David Jeans to get the $5000 back. Should he take his dispute to the Magistrates Court or the Victorian Civil and Administrative Tribunal?
Which is the best answer?
a. Paul should take his dispute to the Victorian Civil and Administrative Tribunal, which has no limit on the cost or value of a dispute. The Magistrates Court could also hear the dispute, but it would cost Paul less in terms of time and money to take his claim to the Victorian Civil and Administrative Tribunal.
b. Paul should take his dispute to the Magistrates Court in Victoria, which has jurisdiction to hear disputes where the claim is up to $100,000. The Victorian Civil and Administrative Tribunal has no limit on the cost or value of a dispute, but Paul should spend the extra money to get a proper lawyer to represent him in the Magistrates Court.
c. Paul should take his dispute to the Supreme Court, which has unlimited jurisdiction to hear civil disputes.
d. Paul should avoid all legal avenues to resolve his dispute with David Jeans. He should accept that he is not going to get his money back and forget about it.
A
One function of law is to encourage behaviour that benefits society as a whole. With this is mind, how many areas of law impacted on you this morning, as an RMIT University student, if you got dressed, ate breakfast, caught a train to Melbourne while listening to music and texting your friend for the answers to your Commercial Law tutorial questions, used a Library computer to look at Facebook and attended your tutorial?
Which is the best answer?
a. At least six areas of law impacted on me.
I must wear clothing in public;
I established rights and responsibilities regarding the purchase of my clothes, breakfast cereal, train ticket, Ipod and phone service;
the quality of my breakfast cereal is subject to health and tort laws;
the cereal packaging is subject to advertising laws;
my behaviour on the train and Internet use were subject to criminal law;
and the safety of the train and RMIT’s buildings and grounds is subject to occupational health and safety law.
b. One area of law impacted on me. I potentially breached RMIT’s codes of conduct when I used a Library computer to look at Facebook and texting my friend for help with tutorial questions.
c. No area of law impacted on me. The law is only applied when there is a dispute and I stayed out of trouble all day.
d. No area of law impacted on me because my clothes, cereal, train ticket, Ipod and phone all fulfilled my requirements and I had no complaints.
A
To help understand the different functions of law it is useful to classify laws according to subject matter, how laws are made, the purpose of a law, or who the law affects.
Which of the following answers best explains where commercial law fits within a classification that distinguishes public law from private law?
a. Commercial law, which involves areas such as contract, tort and property law, can be broadly classified as public law, where disputes between individuals are adjudicated in public, that is, the courts.
b. In the public-private classification of law, the areas of law associated with commercial law, such as contract and tort, can be broadly classified as private law where individuals or business entities establish relationships with each other that involve establishing and enforcing private legal rights and responsibilities. In contrast, areas of public law such as constitutional, administrative and taxation law involve the relationship between the state and the individual, the functions of the state and the power of the state to establish rights for and impose responsibilities on members of society.
c. Commercial law, which involves areas such as contract, tort and property law, can be broadly classified as public law, where members of the public are free to establish rights and responsibilities with each other.
d. Commercial law, which involves areas such as contract, tort and property law, can be broadly classified as public law, where private individuals and business entities establish rights and responsibilities between each other which are enforceable by laws made by government.
B
The following extract is a part of the Competition and Consumer Act 2010 (Cth), (CCA). Which answer best explains what the numbers mean and how this should be cited?
20 Unconscionable conduct within the meaning of the unwritten law
(1) A person must not, in trade or commerce, engage in conduct that is unconscionable, within the meaning of the unwritten law from time to time.
Note: A pecuniary penalty may be imposed for a contravention of this subsection.
(2) This section does not apply to conduct that is prohibited by section 21 or 22.
a. To make Acts manageable to read, they are arranged by numbered parts. This is part 20 of the Competition and Consumer Act 2010 (Cth), (CCA). This part should be cited as p 20(1) and p 20(2).
b. To make Acts manageable to read, they are arranged by numbered sections which are divided into subsections. Each section represents a legal rule and has a heading that indicates the content of that section. This is section 20, subsection (1) and subsection (2) of the Competition and Consumer Act 2010 (Cth), (CCA). This section should be cited as s 20 and the subsections as s 20(1) and s 20(2).
c. Acts are typically large documents and to make them manageable to navigate and read they are divided into numbered chapters, parts, divisions, sections and subsections.
d. Acts are arranged by numbered sections. This is a section 20, subsection (1) and subsection (2) of theCompetition and Consumer Act 2010(Cth), (CCA)
B
Which of the following answers best explains whether the Victorian Supreme Court can overrule a decision of the Victorian Civil and Administrative Tribunal that approved a liquor licence that allowed a King Street night club to sell alcohol twenty-four hours a day?
a. The Victorian Supreme Court can hear appeals from, and overrule the decisions of, all Victorian courts and tribunals below it in the Victorian court hierarchy.
b. The Supreme Court of Victoria can hear appeals from the decisions of VCAT. However, it would be better to go straight to the Federal Court, sitting in Victoria, because it is higher than the Supreme Court in the Victorian court hierarchy.
c. The Victorian Supreme Court cannot overrule decisions of the Victorian Civil and Administrative Tribunal because the Tribunal is not in the Victorian court hierarchy.
d. The Victorian Supreme Court does not hear liquor licensing matters and therefore cannot overrule VCAT’s decision in this case.
A
This morning you got dressed, ate breakfast and caught a train to RMIT while texting your friend for the answers to your Commercial Law tutorial questions, which, after attending your tutorial, you discovered were hopelessly wrong.
Which of the following rules that impacted on you is least likely to be legally enforceable?
a. The rule that breakfast cereal must be fit for human consumption.
b. The rule that students have a duty to provide each other with accurate information.
c. The rule that you can be arrested for not paying your train fare and refusing to show proof of identity.
d. The rule that your clothing should be of a quality to perform as you expected and for the purpose for which you bought it.
B
As an employer Johnny must pay payroll tax to:
The Federal government.
The State government.
The Local government.
All of the above.
B
Public law is concerned with:
Prosecution of crimes committed by members of the public.
Matters that do not involve privacy issues.
The relationship between the citizen and the state.
The maintenance of parks and other community venues.
C
The Golden Rule is to be applied when:
Reading the legal text we are able to give words and phrases their ordinary and natural meanings.
Interpreting the legal text literally would lead to a result that is absurd or inconsistent with the rest of the document.
Interpreting the legal text literally would be inconsistent with the purpose or object underlying the text.
Necessary to ascertain the mischief behind the text.
B
Ash promises to meet Johnny for a beer, but never shows up. Ash's conduct is:
Ethical and legal.
Unethical but legal.
Ethical but illegal.
Unethical and illegal.
B
A legal system that complies with the rule of law will ensure that:
i. All citizens have legal rights enforceable in the courts.
ii. The law will be applied equally to all.
iii. All citizens are entitled to legal representation.
iv. People will only be punished for conduct that is expressly made illegal.
i, ii, iii.
i, iii, iv.
i, ii, iv.
ii, iii, iv.
A(x) C
Private law is concerned with the relationships between persons within the community. Which of the following types of law do not fall within this category?
Tort law and property law.
Commercial law and employment law.
Company law and partnership law.
Criminal law and taxation law.
D
The term ratio decidendi refers to:
The part of a judge's written decision that states the legal principle upon which the decision is based, which part becomes binding law.
That part of the judge's decision not relevant to determination of the legal question upon which the judgement is based.
A judge's remarks concerning matters other than the legal principle upon which the final decision is based.
The part of the judge's decision that is not binding precedent.
A
Which of the following statements best describes what a court does when it uses a purposive approach to interpret the meaning of a provision of an Act?
a. A court declares what Parliament intended the purpose of an Act to be, whether that purpose was what Parliament actually intended or not.
b. A court looks at the words of a provision and applies the ordinary dictionary meaning of the words.
c. A court gives a meaning to a provision of an Act that will achieve the purpose or object of the Act, that is, the intention that Parliament had in mind when it made the Act.
d. A court amends the Act where Parliament has failed to consider all the possible outcomes that might result from its words.
C
A function of Australian customs law is to discourage behaviour that adversely affects the flora and fauna of Australia. What behaviour is the main target of the law that punishes travellers with fines or imprisonment when they do not declare plant products that they bring into Australia?
a. Importing heroin into Australia.
b. Importing into Australia foreign weeds, plant diseases and insects.
c. Importing tobacco in bulk to evade Australian tax laws.
d. Selling illegal drugs in Australia.
B
When answering a legal problem you must support any statement of legal principle with a legal authority, that is, either a case or a provision of an Act. Assume you are using the following case as an authority to support your argument: ACCC v C G Berbatis Holdings Pty Ltd (2003) 214 CLR 51.
Which answer correctly explains what the parts of the reference mean?
a. This is a reference. There are two parties involved in the case and their names are followed by the citation. The citation helps to find the case. The case was decided in 2003, that the case was decided by the High Court and that the case is reported in volume 214 commencing at page 51.
b. This is a case reference. The names of the parties in the case are separated by a ‘ v’ for ‘and’. The parties’ names are followed by the citation. The case was decided in 2003 by the High Court and can be found in volume 214 on page 51.
c. This is a case reference. The names of the parties in the case are separated by a ‘v’ meaning ‘versus’ and said as ‘and’. The parties’ names are followed by the citation, which explains how to find the full text of the case. According to the citation, the case was decided in 2003, by the High Court (CLR stands for the Commonwealth Law Reports which report High Court decisions) and it is reported in volume 214 commencing at page 51.
d. This is a case. The parties’ names are followed by the citation. The case was decided in 2003, by the High Court and can be found at volume 214, on page 51 of the CLRs.
B(x) C
The following extract is part of a summary of a case on appeal. Which of the following correctly identifies this case as a civil or a criminal matter and best explains why?
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11
HIGH COURT OF AUSTRALIA
FRENCH CJ, GUMMOW, HEYDON, CRENNAN AND BELL JJ
Torts > Negligence > Essentials of action for negligence > Duty of care > Reasonable foreseeability of damage > Dangerous things or substances
Duty of contractor supplying and maintaining equipment > extent of duty > to whom duty owed
a. This case must involve a civil matter because it does not involve the crown as a party.
b. This case is about an issue in the area of tort law, and more specifically, dangerous things or substances, which is a criminal matter.
c. This case is about an issue regarding torts law and more specifically about negligence. Negligence is a civil matter because it involves one individual asserting private legal rights over another individual. Criminal matters involve the Crown, acting for the state, taking action against an accused.
d. This case was heard in the High Court and involved an appellant, so it is a civil matter.
C
Which of the following answers best explains whether the Victorian Supreme Court can decide on a case that involves a Commonwealth constitutional issue?
a. The Victorian Supreme Court cannot hear a case involving a Commonwealth constitutional issue because Supreme Court judges do not have the expertise in the area of constitutional law required to interpret theAustralian Constitution.
b. The Victorian Supreme Court can hear a case involving a Commonwealth constitutional issue where it sits in conjunction with one other state Supreme Court.
c. The Victorian Supreme Court cannot hear a case involving a Commonwealth constitutional issue because the Australian Constitution vests that jurisdiction solely in the High Court of Australia.
d. The Victorian Supreme Court cannot hear a case involving a Commonwealth constitutional issue because it is a Victorian court.
B
Which of the following statements is not correct? Legislation commences:
On the date expressly set out in the legislation.
On a date fixed 'by proclamation', that is, when announced by the executive government in the Government Gazette.
If the legislation is silent on commencement and it is Federal legislation, 28 days after receiving the Royal Assent of the Governor-General.
If it is State or Territory legislation and the legislation is silent on commencement, within 28 days of receiving the Royal Assent of the Governor-General.
D
A particular law might be changed because of:
i. A change in government.
ii. Changing social and moral values.
iii. Old legislation automatically expiring.
iv. The invention of new technologies.
i, ii, iii.
i, iii, iv.
i, ii, iv.
ii, iii, iv.
C
Public law is concerned with the relationship between the citizen and the state, and includes:
Contract law and criminal law.
Administrative law and tort law.
Taxation law and property law.
Constitutional law and administrative law.
D
The law is a living, growing thing that constantly changes. Which of the following cannot be regarded as a force for change?
A change in government.
The need to remedy a defect in a law.
Pressure exerted by lobby groups on the government.
The notion of certainty that maintains that people should be reasonably certain of their legal rights.
D
The 'burden of proof' is:
The obligation of the plaintiff to produce sufficient evidence to establish the truth of his or her version of the facts.
The amount of proof required in a trial for the plaintiff or Crown to prove their case.
The requirement in civil trials that the Crown must prove the defendant's guilt beyond all reasonable doubt.
The requirement in criminal trials that the court must find on the balance of probabilities that the plaintiff has proven his or her version of facts.
A