Migration Law Report Sample

Scenario

Hans Meyer arrived in Australia from Germany two years ago on a Temporary Skill Shortage Class GK Subclass 482 visa, sponsored by his Australian employer. His wife, Frieda, and his three step-children accompanied him to Australia.

1. (a) What visa is it most likely that his wife and children were granted?

Explain your answer, making sure to support your answer by reference to relevant provisions of the legislation.

2. (b) What condition(s) would be found on Hans’ visa?

3. (c) What condition(s) would be found on Frieda’s visa?

While in Australia, Hans committed several drug offences. He was arrested and charged. Hans did not have his passport taken from him. He managed to leave Australia before the charges were due to be heard in court next month. He left his wife and children in Australia.

Frieda comes to see you. She tells you that Hans’ employer is not yet aware he has left the country. However, she thinks that the Department of Home Affairs must know he has left Australia as he left through an international airport.

Frieda informs you that she does not want to return to Germany and to Hans, and would like to remain in Australia. She explains that over the past 6 months she has been in a relationship with another man and that she and the children are moving in with him next week.

Frieda is aware that because Hans left his employment, his visa could be cancelled by the Department of Home Affairs. She also understands the fact that if his visa is cancelled, her visa would also be cancelled. However, she has not received any notification about this yet.

4. (d) Outline the advice you would give Frieda about whether she and her children can make a valid application for a Partner Class UK/BS Subclass 820/801 visa in Australia. Be precise.

5. (e) Would your answer be different if Frieda informed you that she has now received notification that her visa has been cancelled? You must support your answers by reference to the specific legislative provisions. (10 marks) (Maximum Word Limit: 1100 words)

Solution

Answer 1a

Hans Meyer was sponsored for a Temporary Skill Shortage Class GK Subclass 482 visa, which allowed him to enter Australia and begin working for his Australian company. The wife and children of the visa holder also possess Subclass 482 visa . For Assignment Help, Subclass 482 Family Visas were anticipated to be issued to Hans's wife Frieda and his three stepchildren. The purpose of the Subclass 482 Family Visa is to facilitate family members of Subclass 482 visa holders joining their primary visa holders in Australia for the length of their work. The Australian government aims to preserve family unity without sacrificing the economic benefits of attracting and retaining competent people. Spouses, domestic partners, dependent children, and stepchildren all qualify as family members under this category. "Family unit members" include spouses, de facto partners, and dependent children, as defined by Section 31 of the Migration Act 1958 .

Answer 2b

Conditions would be placed on Hans Meyer's Subclass 482 visa. Subclass 482 visa holders are subject to certain requirements, the precise nature of which may vary depending on their circumstances and the company that sponsors their visa. Reference is made to Section 29 of the Migration Act of 1958, particularly the criteria and conditions for Subclass 482 visas . The conditions for employment, the length of stay, and other visa-related regulations are outlined in this section, as is the Minister's power to award visas.

Work Condition: According to 482 Visa General Eligibility, Hans would only be allowed to work for his sponsoring employer in the selected profession included in his visa application . He must inform the Department of Home Affairs before accepting a new job offer.

Duration Condition: The visa would be valid for a certain time, often between one and four years. Hans must watch the expiry date on his visa and not overstay his welcome.

Location Condition: If the employer nomination were for regional sponsorship, he would be needed to reside and work in the designated regional area .
Health Insurance: Hans and his family members may be obliged to have sufficient health insurance coverage while they are in Australia.

Answer 3c

A Subclass 482 Family Visa will be issued to Frieda, Hans Meyer's wife. The normal terms of her visa would be as follows:

Family Unit: Hans Meyer, the principal visa holder, would be permitted to keep Frieda in Australia as a family member. This suggests that she is still legally married or living in a de facto marriage with him.

Work Rights: Subclass 482 Family Visa holders may be restricted from working and studying in Australia . Depending on her age and the terms of her visa, Frieda may be able to work without restrictions or be subject to limits.

Duration: As long as their relationship is real and continuing, her visa would typically be valid for the same term as Hans' Subclass 482 Duration visa.
The Subclass 482 Family Visa is the most probable option for the three stepchildren of Frieda and Hans Meyer so that they may join Hans in Australia during his job, provided that they satisfy all of the necessary visa requirements .

Answer 4d

Several considerations must be considered when determining whether Frieda and her children may successfully apply for a Partner Class UK/BS Subclass 820/801 visa in Australia. The timeline, bridging visas, and eligibility criteria for applying for a Partner visa for Frieda in Australia align with the rules outlined in Section 2.07A (Subclass 820/801), which deals with applications not valid for bridging visas under certain circumstances .

Eligibility Criteria: Frieda must be in a real and continuous spousal or de facto relationship with her present partner, an Australian citizen, permanent resident, or eligible New Zealand citizen, to apply for a Partner Class UK/BS Subclass 820/801 visa . Since she disclosed that she was seeing another guy, she must ascertain if their connection satisfies the prerequisites set out by the Department of Home Affairs.

Previous Partner's Visa: Frieda's present visa status, which depends on her husband Hans, may influence her eligibility for this visa. Frieda's chances of applying for and being granted a Partner visa may be hampered if Hans's visa is revoked.

Application for a Visa: Frieda must provide proof of her connection with her present partner, such as joint financial records, proof of shared housing, and letters of support from extended family and friends. Applying for a Partner visa is a lengthy procedure requiring extensive paperwork .
Professional Guidance: Frieda should choose an immigration lawyer who focuses on partner visas because of the complexity of her case. A qualified attorney can evaluate her situation, suggest further actions, and help her craft a compelling application.

Timing and Bridging Visa: Frieda must also consider when to apply for her bridging visa. A bridging visa may be required to keep her in legal status if her present visa is in danger of being revoked while the Partner visa application is being processed .

Answer 6e

According to Section 2.07(Application for visa—general), Frieda's chances of being granted an Australian Partner Class UK/BS Subclass 820/801 visa are severely diminished if she receives a cancellation notice .

Impact of Cancellation of Visa Status: Frieda's legal status in Australia is jeopardised when her visa is cancelled. Her visa would become invalid, putting her in danger of being detained and removed from the country. Because of this, it will be difficult for her to apply for any visa to Australia, including a Partner visa .
No Bridging Visa: Frieda would lose the related Bridging Visa if her current visa were to be cancelled. Bridging visas are often issued to enable people to stay in Australia while their new visa application is being processed. Frieda would breach Australian law if she attempted to remain in the country without the appropriate or bridging visa.

Partner Visa Reconsideration: Frieda's visa cancellation significantly influences her ability to apply for a Partner Class UK/BS Subclass 820/801 visa. Partner visa applicants must be physically present in the United States . Frieda's application may be subject to different criteria and processing periods if she applies outside Australia after her visa was cancelled and has already departed the country.

Assessment of Eligibility Abroad: If Frieda wants to apply for the Partner visa from outside Australia, she must show that she is eligible according to Australia's guidelines for those applying outside the country . For example, she may need to prove she is in a genuine and long-lasting relationship with an Australian citizen.
Possible Reentry Ban: Frieda may be prohibited from reentering Australia depending on the specifics of her visa cancellation. It would be far more difficult for her to return to the country if the cancellation of her visa resulted in a reentry restriction for a certain length of time .

Legal Representation: Frieda should speak with an immigration lawyer to fully grasp the ramifications of her visa cancellation and her next steps. A lawyer may help her determine whether she can file for a Partner visa while she is overseas and how to deal with any problems, such as reentry prohibitions if they arise .
It will be far more difficult for Frieda to apply for a Partner Class UK/BS Subclass 820/801 visa in Australia if she has received information that her visa has been cancelled. To make sense of the complications of her immigration position and determine whether or not she may reapply from overseas, she should consult with an attorney. 

References

M21764 Business and Employment Law Assignment Sample

Task

This is an individual assessment. This piece of coursework which comprises 50% of the total marks for this module, consists of questions based on a case study and requires you to demonstrate problem-solving skills and undertake, and communicate clearly, objective analysis of complex factual situations in the context of employment law; access and critically analyse paper or electronic primary and other legal sources; conduct independent research on legal topics.

Please read the case study below and ANSWER QUESTIONS 1 and 2.

AVO is a company that provides financial management and auditing services for businesses.

Due to profits made from last year, AVO did set up new branches and hired more staff. Ms

Ariana was recently appointed at AVO as a sales and marketing representative.

Ms Ariana’s contract included a 6-months probationary period. Ms Ariana’s contract also allows her to leave work at a time she chooses once her work for the day is done. Her contract says she is an Independent Contractor, and that either party can terminate the contract by giving one month’s notice. She is paid £600 per week via the AVO’s PAYE Payment system. Although she has some flexibility with her working pattern, she is required to seek permission for any holiday or annual leave and inform her line manager. Ariana is also required to dressin the Company’s uniform and to work exclusively from the premises of the company. At the end of the month, she noticed that her salary was shortened by the deducted period she was on holiday. When she raised it with the HR, she was told that her contract specifies her as an Independent Contractor, and so, she is not entitled to holiday pay.

Ms Ariana is so excited with her new job and although she has worked for 3 months so far, she is already well spoken of by other colleagues and the line manager. Ms Ariana is also a

Christian who loves to share her faith whenever the opportunity arises. One day, Ms Ariana asked her line manager for permission to use one of the office rooms during lunch break to share her faith, for which she was granted permission. Many of her colleagues attended the talk she hosted during their lunch break and gave her positive feedback, with some of her colleagues even wanting to learn more about her faith.

Two weeks later, Ms Ariana was called unto the office by her employer, and in the presence of two other senior staff, and a HR personnel, was handed a letter explaining that they will no longer need her working for the company, and that she should take her personal belongings and leave the office premise immediately. When she asked why this sudden decision, she was told that this company is not a place for sharing religious beliefs, as it is distracting to the work of the company.

Question 1

Ms Ariana also feels she is being discriminated against on the basis of her religion. Advise Ms Ariana on the scope of the law relating to religious discrimination under the Equality Act 2010.

Question 2

Before Ariana was fired, she had taken a three weeks holiday. However, AVO has noted that they will not pay her for those holidays as she is an independent contractor. Advise AVO on what is the employment status of Ms Ariana, and whether Ms Ariana has a legal claim for the unpaid holiday.

Solution

Question 1

Issue

The question that has to be answered in this instance is whether Ms Ariana's employer, AVO, engaged in unlawful discrimination against her on the basis of her religion or belief. Such conduct is forbidden under the Equality Act of 2010. For Assignment Help, The most important issue that has to be addressed is whether or not the acts that were performed by AVO were discriminatory.

Law

The Equality Act of 2010 makes it illegal to harass, intimidate, or otherwise victimise someone on the basis of their religion or belief in any way, whether directly or indirectly . Someone is given less favourable treatment due to the fact that it is directly related to their religion or belief in the event of direct discrimination. When a law, criteria, or practice is used that places persons who share a specific religion or belief at a disadvantage relative to others, this is an example of indirect discrimination. Direct discrimination happens when an individual is treated differently because of their religion or belief. When an employee is exposed to undesired behaviour connected to their religion or belief that violates their dignity or produces an intimidating, hostile, degrading, humiliating, or offensive environment, this is considered harassment . Harassment may also occur when an employee is subjected to conduct that is objectionable. The term "victimisation" refers to the situation in which an employee suffers a negative consequence as a result of having filed a complaint of discrimination or harassment at work or having supported the filing of such a complaint by another employee. Moreover, a worker is guaranteed the right under Section 39(2)(c) of Employment Act 1996 not to have their employment terminated in an unjust manner by their employer . When an employer terminates an employee's job without completing the appropriate processes, when the termination is based on discriminatory grounds, or when the termination is otherwise unjustified, these are all examples of the kind of situations that might lead to an unfair dismissal. In addition, An employee who is terminated in a manner that is inconsistent with their rights as outlined in the Employment Rights Act of 1996 has the ability, as outlined in Section 136 of the Act, to file a claim with an employment tribunal. Before bringing a claim, the worker is required to go through the procedure of early conciliation with the Advisory, Conciliation, and Arbitration Service (ACAS) .

Application

Ms Ariana claims that her job at AVO was terminated because of her religious convictions and the fact that she was prepared to communicate those opinions with her colleagues during lunchtime breaks. If what you say is accurate, then you are engaging in direct discrimination on the basis of religion or belief, which is against the law according to the Equality Act. In the case of Grainger plc v. Nicholson [2010], it was determined that a person did not need to be of the same faith as others who were treated more favourably in order for them to be considered a victim of discrimination . This was one of the key findings of the case. In the situation with Ms Ariana, her religious beliefs played a part in her obtaining care that was less than ideal.

Ms Ariana may also have a claim for indirect discrimination if the policy of not allowing religious conversations in the workplace impeded her ability to convey her religious views in a manner that was disproportionately more difficult for her than it was for other workers. In the case of Essop and Others v. Home Office (UK Border Agency) [2017], it was decided that a law, criteria, or practise that places persons at a disadvantage relative to others on the basis of a protected trait, such as religion or belief, is considered to be indirectly discriminatory . This case was cited as the case that established this principle. The onus of proving that a particular provision, criteria, or practise is a proportional method of accomplishing a lawful purpose lies squarely on the shoulders of the employer.

In addition, if Ms Ariana was terminated after requesting time off to communicate to her colleagues about her beliefs over lunch, she may have a claim for being a victim of workplace discrimination. It was established in the case of the City of York Council v. Grosset (2018] that victimisation might occur when an employee is exposed to a disadvantage for filing a complaint regarding discrimination or harassment or for supporting the complaint of another individual . If Ms Ariana can provide evidence that she was the victim of wrongdoing, she may be eligible for compensation for the injuries she sustained as well as other forms of relief.

If Ms. Ariana encountered any inappropriate behaviour linked to her religion or belief that violated her dignity or produced an intimidating, hostile, degrading, humiliating, or offensive atmosphere, then this case may also include harassment as a factor. It was decided in Khan v. G4S Cash Solutions (UK) Ltd. [2018] that harassment may take place even if the person responsible for it does not intend to harass the person who is the target of the harassment . It is important to consider how the conduct affects the victim, namely if it is unwelcome, whether it breaches the victim's dignity, or whether it creates an environment that is frightening, hostile, demeaning, humiliating, or otherwise unpleasant.

Lee v. Ashers Baking Company Ltd [2018] is another case that could be cited in this context because it deals with discrimination based on a customer's sexual orientation and political beliefs when the bakery refused to decorate a cake with a message supporting same-sex marriage . Case studies like this one show why it's crucial to protect people from prejudice based on their religious or other identities. It also highlights the need of companies to be cautious not to break discrimination laws while offering their products and services to the general public.

Regarding an employer's duty to accommodate a worker's religion, the case of Chondol v. Liverpool City Council [2018] is instructive . An employee in this case claimed she was discriminated against because of her religion when she was forced to work on Fridays, a day of worship for Muslims. The Court of Appeals ruled that the company engaged in indirect discrimination against the employee because of her religion since it did not offer any "reasonable accommodations" for her religious views. It is clear from this case that businesses cannot afford to wait for complaints about discrimination based on employees' religion before taking corrective action.

Conclusion

It is possible that Ms Ariana has a claim for religious discrimination against AVO if she is able to prove that she was treated less favourably by AVO due to the fact that her religion or beliefs were taken into consideration. It is possible that she was subjected to prejudice in this situation since she was fired shortly after informing her colleagues about the opinions she had during a lunch break. It is possible that Ms Ariana is qualified for a variety of compensations.

Question 2

Issue

AVO's potential liability for unpaid holiday pay to Ms Ariana based on her employment status

Law

The employment status of a person is dependent on a number of variables, including the type of job that is done, the amount of control that is exerted by the employer, the degree to which the worker assumes financial risk, and the general working relationship between the parties. The stipulations of the contract are taken into account as well, although they are not the deciding factor. Under the Working Time Regulations 1998 and Employment Rights Act 1996 , a person is eligible for a number of employment rights, one of which is paid for time spent on holidays if that individual is regarded to be an employee.

Application

Regarding the situation between Ms Ariana and AVO, the contract that Ms Ariana signed indicates that she is an independent contractor. In order to evaluate her employment status, the courts will go beyond the terms of the contract and investigate the actual working relationship that exists between the parties. According to Employment Rights Act 1996, section 4, there are a number of indications that point to the possibility that Ms Ariana is an employee rather than an independent contractor . The section implies that a person is considered to be an employee if they have engaged into a contract of employment or are working under the terms of such a contract, regardless of whether the contract is stated, implicit, written, or oral.

For instance, she is obliged to do all of her duties at the facilities owned and operated by AVO, to wear the uniform provided by AVO, and to get authorisation before taking any vacation time or yearly leave. A standard weekly wage is also sent to her via the PAYE payment system on a consistent basis. The fact that she is required to work entirely from AVO's premises and get permission before taking time off hints at a greater degree of control than one would anticipate for an independent contractor . Her employment agreement states that after her job for the day is over, she is free to leave work at any time she chooses, but she must do so after obtaining permission beforehand.

The defendant in Pimlico Plumbers Ltd and Mullins v Smith (2018) was a plumber who had worked as an independent contractor for Pimlico Plumbers for some time . Mr. Smith, the plumber, claimed that he was entitled to a wide range of benefits as an employee of the firm. The court ruled that Mr. Smith was not a contractor as stated in his contract but rather an employee. The court reached its decision after considering evidence suggesting that Mr. Smith was subject to significant supervision by Pimlico Plumbers, that he was required to conduct his services in person, and that he wore a uniform supplied by the company.

In the case of Ms. Ariana, AVO is able to exercise some control over her employment by requiring that she do all of her tasks inside their premises and wear clothing that conforms to their requirements. Given this, it's more probable than not that she is an employee, not an independent contractor, even if her contract says otherwise.

The firm that employed the valets for the vehicles in Autoclenz Ltd. v. Belcher and Others (2011) claimed that the valets should be classified as independent contractors rather than employees . The valets, on the other hand, insisted that they were employees who were due a number of protections under the law. As the court said, the valets' contractual contracts did not reflect the reality of their working relationship with Autoclenz Ltd, hence the court found in their favour. The court's ruling was affirmed, and the valets received their pay. The court's conclusion was based on the fact that the valets were required to do the job themselves and that Autoclenz Ltd retained substantial control over the valets' performance.

Ms. Ariana's situation with AVO is similar to the Autoclenz case in certain ways. Despite the fact that she is technically an independent contractor, AVO has a great deal of say in her day-to-day operations since she must use only AVO equipment and wear AVO uniforms. Moreover, she has no choice but to work within AVO's regular business hours. This evidence suggests that Ms. Ariana is an employee, contrary to the terms of her contract.

Uber drivers claimed they should be considered employees rather than independent contractors in the high-profile litigation Aslam and Others v. Uber BV and Others (2018) . The court sided with the drivers, ruling that they were employees entitled to a number of protections under the law, including the entitlement to a minimum wage and paid vacation. The judge's decision was based on many factors, including Uber's extensive control over the drivers' work and the fact that the drivers had little input over how they were expected to carry it out.

In the case of Ms. Ariana, AVO's tight control over her job is shown by the fact that she is required to do all of her work at their offices and in their uniform. The fact that she is required to do all of her work at AVO headquarters further suggests that privacy is highly valued there. Given the company's involvement, this fact suggests she may be an employee rather than an independent contractor. Like the claim that Uber drivers are entitled to minimum salary and paid holidays, the fact that Ms. Ariana was not reimbursed for her time off during the holidays may be considered as an infringement of her employment rights.

Evidence that Ms. Ariana may be an employee rather than an independent contractor is bolstered by the case laws of the United Kingdom. To ensure they are fulfilling their duties as an employer in compliance with employment law, AVO should speak with an attorney to determine whether or not Ms Ariana is entitled to any unpaid holiday compensation.

Conclusion

To ensure that they are in full compliance with all applicable employment laws, AVO should speak with a lawyer. It seems that Ms. Ariana may be an employee entitled to holiday pay, based on the results of the research into her employment status and the applicable case statutes. The proper classification of AVO's employees is crucial to avoiding legal liability for things like unpaid vacation and other employment protections. 

Bibliography

Primary sources

UK Cases

Grainger plc v Nicholson [2010] IRLR 4
Essop and Others v. Home Office (UK Border Agency) [2017] IRLR 986
City of York Council v. Grosset (2018] ICR 629
Khan v. G4S Cash Solutions (UK) Ltd. [2018] IRLR 80
Lee v. Ashers Baking Company Ltd [2018] UKSC 49
Chondol v. Liverpool City Council [2018] EWCA Civ 474
Pimlico Plumbers Ltd and Mullins v Smith [2018] UKSC 29.
Autoclenz Ltd v Belcher and Others [2011] UKSC 41.
Aslam and Others v Uber BV and Others [2018] EWCA Civ 2748.

UK Primary Legislation

Working Time Regulations 1998, SI 1998/1833
Equality Act 2010 (c 15).
Employment Rights Act 1996, s 39(2)(c)
Employment Rights Act 1996, s 4
Employment Rights Act 1996, s 136
Secondary sources

Book

Smith, I., Baker, A. and Warnock, O., Smith and Wood's Employment Law (Oxford University Press 2017).

BUS3004 Corporations Law T1 2023 Essay 1 Sample

Essay

An essay on contemporary issues of corporation law.

Assessment 1 Detail

This is an individual task, and student must complete the task individually. The Topic will be given in week 3 which is like a real-life case which a company may face. Based on multiple legal issues which the company is facing, students must prepare the essay including introduction, body paragraphs, recommendations, conclusions, and references.

Solution

Introduction

The Annual general meeting is supportive of allowing the shareholders to the selection of the board of directors and also for voting on the company issues. For Assignment Help, Most of the large companies in Canada arrange the Annual General Meeting at a specific time of the year, in which the executives and shareholders interact with each other (Aguilera et al, 2021). However, the rules and regulations of the Annual General Meeting vary based on the country's jurisdiction. The Law of Corporation provides the outline of AGM in country Canada for both public and private companies.

The respective essay aims to identify various legal issues that are faced by the company Norda Stelo regarding the Corporation Law and related principles and discuss that in the Annual General meeting. Norda Stelo is an industrial-based company. The company has successfully managed its business in the sector of Construction and Materials for almost sixty years. The headquarters of the company is in Quebec City, Canada (norda.com, 2023).

The essay is not only focusing upon the legal issues in AGM, but it is also going to enlighten various principles of Corporation Law for solving the issues that are facing the respective company in current days. There are appropriate recommendations that will be listed in the essay before concluding the final findings.

Body Paragraph

Identifying the issues and understanding the relevant Corporation laws and principles to the topic
The company is nowadays facing some legal issues, increasing the chances of various lawsuits against the company. That is, it is needed to solve the issues on an urgent basis. The issues are as follows:

Dissatisfied Customer

Customers have the right for filing lawsuits against the company if they face inadequate services and unfulfilled promises. Previous few days the company Norda Stelo was facing some queries and trying to prevent the management team from continuously trying to prevent those from going out of hand for maintaining the company's reputation. As per the view of Poturak and Softic (2019), customers have the power of breaking the reputation of the company. Most importantly one disappointed customer can gather a group of customers against the company and grab the media attention. Other competitors of Norda Stelo can benefit from all of this. Various mechanisms are already adopted by the company like assisting customers through calls and emails for keeping the business in touch with the customer and for providing time-to-time solutions.

Copyrights and Patent

Copyright and patent are other issues due to the digitalization and introduction of new technologies within the company (Komljenovic, 2022). The company research and development department is still struggling to appropriately manage the respective rights for avoiding potential lawsuits of infringement as well as to protect their own copyright and related intellectual property rights.

Competition Related Issues

As per the Canadian Corporation Act, Business organizations are supportive of the development and economic growth of the country Canada. The Canadian institutional structure and use of policy instruments are examined in the Role of Competition Policy in Regulatory Reform (Oecd.org, 2020). Additionally, it contains the country-specific policy suggestions created by the OECD throughout the review process. However, the directors of the company are failing to comply with this. The changes in competition policy and related Competition Act of the country is amended, it is right but still, the directors do not take any steps for allowing this Act within the system of the company.

Fiduciary Duty Related Issues

Post pandemic era changed the whole system regarding communication. It is right, but it can not deny the maintenance of fiduciary duties of a company like Norda Stelo. The history of the company clearly shows that the cooperation of the stakeholders, shareholders, and directors equally contributes to the company's success (norda.com, 2023). The business judgment rule is not supported and is developing the chances of elimination of liabilities. As the pandemic era develops a huge economic loss for every business organization throughout the world, therefore, improper and unscrutinized decision processes need to be checked on an urgent basis.

Disgruntled Employees

Post pandemic era also evolved the issues of lack of proper workforce for the company. There are already many projects going on and there are requirements for a continuous flow of the workflow. However, the employees of Country Canada as per the Corporation Act and related employment act have various rights (Canada.ca, 2023). Hence, at the time of hiring the company needs to understand this as asking any employee to give their resignation increases the risk of a lawsuit against the company. The documents that are drafted on the dismissal still need to be approved for avoiding any kind of future controversies.
Application of the corporations’ law principles (based on the Corporations Act and Case law) to solve the legal issues of the given topic

The Annual General Meeting provides a chance to discuss all other issues that the company is facing since last year and also for exploring some new ideas and also of existing ideas for solving those issues properly.

The Corporation Act of Canada Clearly States That

As per section 71 of the Canadian Corporation Act, every business organization in the country of Canada is needed to comply with the delivery of security. It is also stated that the selling to customers must be followed with the delivery duty. However, the selling can be direct to the customer or a broker. According to Fourcade and Kluttz (2020), a broker is the assigned person or organization by a company that has the rights of selling company products or services. There are clear instructions that the selling broker and other correspondent brokers also fulfill the duty to deliver.

The case law of “Martel Building Ltd. v. Canada” (2000) is one of the most important examples in which the court clearly states that it is not only related to the tort of contract, if the customer is not satisfied and the organisation fails to maintain its promise about delivery of security then that is a breach of the Corporation Act (Scc-csc.lexum.com, 2022).

The Corporation Act of Canada clearly states that the director of the company or business organisation has to maintain some particular role within the organization. The managing of duties as well as supervising the activities of the organisation such as proper compilation of relevant laws for doing business in country Canada and so on (Laws-lois.justice.gc.ca, 2021). The respective act also clearly states that acting honestly and always trying to be in a good faith to implement the best interests of the organisation is also the duty of a director. However, acting within the power and promoting the success journey of the company also falls under the duty of a director.

Governments, regulators, and proxy advisors have increased their focus on ESG issues, and major investors continue to place sustainability at the center of their investment decisions. Such areas of focus continue to be of major interest as the world emerges from the COVID-19 pandemic, despite growing criticism of corporate attention to social factors.

The Canada Business Corporations Act (CBCA) amendments that took effect on 1 January 2020 mandate that public companies incorporated under the CBCA provide shareholders with certain prescribed diversity information about the directors and senior management, as well as disclosure regarding board renewal initiatives, at each annual shareholders meeting, hence that is also needed to be managed (Laws-lois.justice.gc.ca, 2021).

Appropriate management of the duty of the directors of Norda Stelo is effective in avoiding situations like customer dissatisfaction, and unethical dismissal of employees. Directors need to take the opinion of the shareholders and some of the internal stakeholders like the team members of the company before proving any judgment within a private limited company as per the Corporation Act of the country Canada. As opined by Directors' duties (2020), the exercise of independent judgment is important for the company, but as the company is running upon the money of shares then the decisions of the shareholders play the most important role otherwise there are the chances of dissolving the position of director.

Acting based on reasonable care also came under the duty of the director and was effective in managing the internal and external stakeholders as well as the shareholders of the company. The duty of loyalty and duty of care is also associated with the role of director in Canada. Duty of Disclosure is important for directors to maintain the copyright and patent issues and related lawsuits of the company.

All the fiduciary duties also a director needs to maintain. The Fiduciary duties include the duty of care, the duty of obedience, the Duty of Loyalty, and the Duty of Disclosure. Proper implementation of the duty of the board of directors is supportive for avoiding the situation of lawsuits for the company Norda Stelo as the company is expanding with time and the territory of the organization is also increasing day by day.

The issues of the company regarding the law develops due to changes and a new addition of policies regarding the Company Act of country Canada. However, appropriate steps and compilation with the law support the company to avoid lawsuits related to the Employment Act, Duty of Care, Duty of Negligence, Duty of obedience, Duty of loyalty, and so on.

Use The Relevant Resources and Literature Review To Support The Issues

Requirements and Annual General Meeting

According to the Danoshana, and Ravivathani, 2019, the economic crisis all over the world has created a special ground for corporate governance(Danoshana and Ravivathani., 2019). Corporate governance helps the company to achieve the performance metric required by the company. In this study, the author has taken a financial institution to understand the requirement of corporate governance within a workplace. In this particular study, the requirement of corporate governance has been highlighted. To proceed with corporate governance annual general meeting is required to be fulfilled. In the annual general meeting, the objectives of the firm are discussed and every company has different notions regarding the objectives they want to fulfill. The whole board member of the audit committee is required to be present in the annual board meeting. The objective and all the dilemmas are discussed and solved through this annual general meeting. Despite having such a positive notion regarding the annual general meeting, there is a negative relationship based on the meeting frequency. Annual general meetings are important to ascertain the issues and set corporate goals, however, frequent meetings can create negative situations.

Pandemic and Annual General Meeting

In the words of Khatib and Nour, 2021, corporate governance is crucial in determining the firm's performance. The recent COVID-19 situation has changed the structure of the economy as well as the organization (Khatib and Nour, 2021). In this particular study, the authors have noticed that during the pandemic notion of the corporate structure, performance metric, leveraging and so on has changed significantly. In this order, corporate governance has also changed in a significant manner. In this scenario, the size of the board members does not matter, but the diversity of the board matters the most. During the time of crisis, corporate governance changed from a matter of employee management to a feudal crisis. In this respect, companies need to change their way or structure or the objectives of corporate governance to ensure stability within the workplace.

Relationship Between Board Size and Performance

According to Rikka, 2020, there is a positive correlation between the board size and the performance of the meeting. The board meeting is required to set the objectives and its process visualization(Rikka, 2020). In this aspect, the authors have concluded that board size and performance are positively correlated. Annual general meetings and other meetings are important to determine the performance and its process toward the objective of the firm. The author has studied the Nordic region for analysis of the requirements of corporate governance. This is a proven circumstance that the frequency of meetings results in negative circumstances. The study has suggested that the company needs to address frequent meetings under volatile situations only. Pandemic, recession, and other unforeseen events. Frequent meetings in these events have given the results of positive improvements within the organizations. The performance during these unforeseen events has the possibility of creating negative influences(Iliev et al. 2021). Getting frequent meetings will solve the problems and help the company to reach its goals.

Recommendations

The importance of the annual general meeting is non-negotiable; through these meetings, the company can resolve its issues in a non-disruptive manner. The annual general meeting is different in every company. Every company is different and according to its location, the rules and regulations vary (Cao et al. 2019). The appropriate corporate governance is crucial to determine the problems and dissolving their issues effectively. As mentioned earlier, disgruntled employees are the reason for developing corporate governance. Without the appropriate corporate governance, the company cannot function and restore its more functional assets. This essay is based on the company Norda Stelo and its corporate principles. This company belongs to a different region, as its principle is also different from the other companies situated in different locations. Despite the different locations, the problems of the companies like disgruntled employees and competitive issues are likely to be the same. Corporate governance needs to be stable enough to understand the critical aspects of these problems, but according to the regional differences, the dissolving methods are different (Dat et al. 2020). The Canadian government has different laws and perspectives which do not match the principle and corporate governance objectives which other countries follow. In this scenario, the company is recommended to use the basic empathy methods to deal with the common problem, but with different principles. Corporate patents and copyrights are the same problems dissolved with different principles. The reasons for taking up copyrights are the same, however, every region has different principles and corporate rules to solve these problems. Through these empathetic methods, companies all over the region solve the problems effectively. The cultural differences may have provoked different corporate governance, but with the same mindful principles, the companies are capable of solving their issues with due diligence.

Conclusion

Understanding the above points has given the conclusion that the maintenance of corporate governance is crucial for maintaining decorum among the stakeholders. Every company belonging to different areas has different corporate objectives completely based on the regional taste and attitudes. The problems are the same and relevant with every religion and cultural difference. Due to the different tastes of people and their different perspectives, the corporate rules and regulations tend to be different also. In this context the corporate meetings generally the annual general meeting should be conducted on a particular interval basis. Annual general meetings help to clarify the corporate objective delicately. Despite its positive characteristics, the annual general meeting needs to be conducted on a limited basis (Abdullah et al. 2019). Frequent meetings can deliver a negative perspective on corporate governance and objectives. To understand corporate governance in a significant manner, a Canadian company has been taken into consideration. This company is situated in the Nordic region based on different cultures and beliefs. Analysis of this company has derived that the problems are the same but this company dissolves these issues based on its corporate beliefs. Furthermore, this aspect has helped the company to achieve its goals effectively.

References List

LAW6001 Taxation Law Case Study Sample

Task Summary

In response to the issues raised in the case study provided, research and develop a 3000-word tax advice that addresses (a) assessable income (b) allowable deductions (c) tax calculations and (d) your conclusions and recommendations that arise from a fact scenario and to give appropriate advice to clients. Please refer to the Task Instructions for details on how to complete this task.

Context

This assessment allows students to solve practical problems that arise from various scenarios and to give appropriate advice to clients. This assessment assesses your research skills, your ability to synthesise an original piece of work to specific content requirements and your ability to produce a comprehensible piece of advice which addressing the client’s needs.

It also assesses your written communication skills. The ability to deliver to a brief is an essential skill in the workplace. Clients may well approach advisors seeking a combination of specific information needs and advice on the tax implications of a particular arrangement in the Australian tax jurisdiction. It is therefore important to be able to identify all the issues presented by an arrangement and to think about the potential consequences of different approaches to addressing the client’s needs.

Task Instructions

• This case study must be presented as a group effort. The case study requires collaboration of effective team work. It is expected students will take parts and survey the relevant literature, including decided cases, and select appropriate additional resources.

• Your case study is not just a list of answers. Your reasons for your conclusions and recommendations must be based on your research into the relevant cases and legislation.

• With respect to each case study:

• Advise the best investment option for clients from the facts of the case study

• Identify the appropriate legal principles that requires discussion in the case study

• Apply the law to the facts of the case study

• After reaching a relevant conclusion, provide practical advice to your client(s).

• Your case study needs to identify and discuss the tax implications of the various issues raised.

• A report (word document, approx. 3,000 words) must be submitted for the calculations of the assessable income; allowable deductions and taxable income of the taxpayer including identifying and discussing them. E.g., how the amounts of income & deductions have been derived. If any receipts and payments are not assessable or deductible, the reasoning for non-inclusion of these in assessable income or deductions as per relevant legislation or cases. After all analysis, you must provide the best solution to save income tax payable.

• Your case study is not just a list of answers. Your reasons for your conclusions and recommendations must be based on your research into the relevant cases and legislation.

Solution

Case 1

Working Notes

Notes 1 Total sale

In case any item of business trading stock is used for private purpose then in accordance with assertions provided by Australian taxation office; it is considered to be sold and its value is accounted in business assessable income. For Assignment Help, In present case as coffee machine has been taken to home for personal use it would be recognized as part of business income (Using trading stock for private purposes, 2020).

Note 2: Total purchases

In accordance with Para 9 of AASB 102, inventories are required to be measured at lower of cost or net realisable value. In present case the cost of inventory in 2000 and net realisable value of same is 1800; thus it would be recognized at 1800 i.e. lower of net realisable value or cost (AASB 102 Inventories, 2020).

Note: 4 PAYG withholding

As per ATO provisions, employers does have responsibility to assist payee in accomplishing their tax liability and same is done through withholding payments from the amount paid to employees; thus it is part of salary or wage and deductible expense as well (Creighton, 2017).

Note 5: PAYG for personal tax commitments

When income or business receipts a certain amount as per taxable provisions; one is required to make payment of income tax instalment which could be quarterly or monthly. PAYG instalment assist in avoiding large bill; thus it is not a business expense hence no deduction would be available regarding same (Wollner, Barkoczy & Murphy, 2020).

Note 6: Other deductible expense

Other deductible expenses include decline in value of assets. It is assumed company complies with policy of accounting assets at market value, thus decline in values is being written off year. Hence same is deductible expenditure (Mather, 2018).

Note 7: Depreciation

Depreciation of coffee machine on straight line basis for each year

62000/10 =6200

For year 2020/21; it would be charged for 11 months i.e. 6200/12*11 =$5683

Depreciation of BMW motor vehicle on straight line basis for each year

89000/8 i.e. 11125

As vehicle is purchase on 1st May 2021, depreciation would be charged for 2 months and 40% only as it is used for business to specified extent only.

11125/12*2*40%
= 742

Total depreciation = 5683+742 =6425

Other notes and assumption

• It has been provided that cash receipts have been received as contribution by Michael to expand the business; thus it is a capital receipt and not considered as part of business income.

• Further cash drawings of $3000; are personal drawing thus same would be reduced from capital and not considered while calculating business profits.

• Payment of penalty for breach of Australian Customer regulation of $900 is not allowable as business expenditure; thus same would not be considered while evaluating business income.

• It has been assumed that company complies with straight line method of depreciation on its assets; thus same has been applied for calculating depreciation for motor vehicle and machine.

STATEMENT PRESENTING CALCULATION OF OTHER INCOME

Notes: In accordance with Australian taxation office provisions, insurance payout in context with personal items is not taxable. It includes insurance recovery received for family home or personal injury is not taxable. Thus, in present case recovery for medical relating to injury of Michael would not be taxable. However, other recovery i.e. receipts regarding business or income producing assets is to be taxed. Thus, compensation for loss of income as well as recovery against recovery of shop would be considered in assessable income as it is relating to personal.

STATEMENT PRESENTING CALCULATION OF CAPITAL GAIN ON SALE OF MOTOR VEHICLE

Note: An assumption has been made that motor vehicle has been used for more than one year and adjustable amount represents amount after making adjustment in context with depreciation and other deductions. In accordance with taxation provision of Australian taxation provision, gains on assets which are held by individuals for minimum period of twelve months would be considered as long term capital gains and they are subject to 50% exclusion.

STATEMENT PRESENTING NET TAX LIABILITY OF MICHAEL PAYABLE FOR YEAR 2020/2021

Working Note:

Tax liability on ordinary income

Tax on capital gain

References

LAW6000 Business and Corporate Law Case Study Sample

Context:

This assessment allows students to solve practical problems that arise from a fact scenario and to give appropriate advice to clients.

Instructions:

There are five case studies you are required to critically analyse.

With respect to each case study:

 - Identify the legal issue(s) arising from the facts of the casestudy
- Identify the appropriate legal rules that requires discussion in the case study
- Apply the law to the facts of the case study
- Reach a conclusion/ give practical advice to your client.

Your analysis should refer to appropriate cases and statutes and be referenced using the APA

Reference system.

Question 1

James has recently decided to open up a consultancy business near the city. He has identified appropriate premises and immediately gets into negotiation with Bradley, the landlord. He wishes to lease the commercial property for a period of five years. James proposes to demolish some of the interior walls to allow for better lighting and to then fit out the space to suit the modern image that he desires for his business. James and Bradley agree that the work would be completed in one month. It is agreed that once a lease agreement is signed James can commence the work in preparation to move into the premises. James signs his part of the agreement and sends it to the offices of Bradley’s solicitors. He then commences the work to demolish the walls and fit out the premises. Three weeks later as James was about to complete the fit out of the premises, he learns that Bradley has yet to sign the agreement and has in fact entered into negotiations with Simon with a view to leasing the premises to Simon.

James has completed a substantial amount of work and is preparing to move in. He has in fact printed all his stationery. He approaches Bradley who says that there was in fact no contract and that he is likely to lease the premises to Simon. James is distraught and seeks your advice.

REQUIRED:

With reference to relevant legal principles, use the IRAC legal problem-solving approach to advise James on whether he is able to enforce the agreement with Bradley and the remedies that may be available to him. Use appropriate case law in support of your answer.

Question 2

Elizabeth is a major shareholder in Millennial-Relics Pty Ltd. Elizabeth and has noted that the company maintains the old-fashioned ‘memorandum of association’ which has been prepared for Millennial-Relics Pty Ltd.

The objects clause as drafted, limits the objects of the company to the development, manufacture and sale of motor vehicle batteries. Elizabeth believes that the research work that Rahim is doing (and future technology which may be developed as the full implications of Rahim’s work are realised) may have spin- offs into a number of related areas including dynamos for driver-less electric cars.

Elizabeth has spotted an opportunity that may allow the company to enter into a contract with like-minded companies for the development of state of the art dynamos that will be compatible with all types of electric cars. She is however concerned that the narrowness of the ‘memorandum’ may hamper the company’s ability to move into the emerging lucrative area and also the development and commercial exploitation of the dynamos which the company’s ongoing research may uncover may not be pursued lawfully. Elizabeth has read that there is no legal reason to have a memorandum or articles, even if they are now called a corporate constitution. The company’s research may also expose potentially exploitable products or secret processes in other areas related to artificial intelligence. When Elizabeth raised these concerns with the company’s other shareholders, they told her that they had been advised by the lawyers that this was the standard form for their companies, and that there was no cause for concern. Elizabeth is not convinced.

REQUIRED:

With reference to relevant legal principles use the IRAC legal problem-solving approach to advise Elizabeth of the company’s position regarding any new contracts that it may enter in connection with the development of dynamos for driver-less electric cars and also explain how the replaceable rules may be of use to the company in the future.

Question 3

In December 2020 Greg Napole was driving along a busy street with his spouse and two children in the car. As they approached a busier section of the road Greg had to slow down significantly and as he was driving past a nearby park, a southern blue gum tree fell onto the car that he was driving killing wife Marsha and seriously injuring his two children and himself. Greg and his two children were hospitalised for two months with several broken bones. Upon recovery, Greg learnt that the tree had fallen because its root system had been destroyed by underground water leaking from a water channel that had been constructed by the local council, City of Small-town Council, in the year 1998. Greg is keen to have the council compensate him for the injuries he and his children have suffered and for the loss of his wife.
The local council has denied liability. They claim not to have a duty of care to Greg and his family. Greg wishes to pursue his claim and has now come to you for advice.

REQUIRED:

With reference to relevant legal principles use the IRAC legal problem-solving approach to advise Greg as to whether he would be successful in negligence against City of Smalltown Council. Please explain fully, using relevant case law.

Question 4

Jaswant and his two friends, Davinder and Lachlan have been in a partnership for the last three years. Their business has grown and they now wish to expand into other states and territories. Their other friend Nicholas is a solicitor and he advises them to incorporate their business under the Corporations Act 2001 (Cth) to take advantage of the principle of separate legal entity and to allow them to trade in any state without having to comply with local partnership legislation. Jaswant, Davinder and Lachlan have brought in some of their own assets into the business and their partnership agreement specifically states that the assets will remain their individual property. They are concerned that they may not be able to do this after incorporation. They are also concerned about whether they will be able to contract with the company for the provision of some of the services the national business will be delivering. They each have specialist skills and are hoping to be remunerated by the business for their skills. The three friends have also agreed to appoint Nicholas as the company solicitor and would be the only solicitor used by the company. This would be set out in the constitution that Nicholas would draw for the company. Lachlan is however concerned that if their relationship with Nicholas becomes strained, it may be difficult to use another solicitor if he chooses to enforce the constitution. Lachlan now approaches you for advice.

REQUIRED:

With reference to relevant sections of the Corporations Act 2001 (Cth) and appropriate case law, use the IRAC legal problem-solving approach to advise Lachlan of the effect and consequences of converting their partnership into a company and further whether Lachlan would be able to enforce the envisaged constitution if they wanted to use a different solicitor.

Question 5

Rahab is an executive working for a large pharmaceutical company which has recently transferred her to an overseas branch to manage the roll out of a global vaccine. She decides to leave the apartment where she lives and to put her household goods in storage. She contacts a company known as KingStore Pty Ltd, which specialises in the storage of goods. The company agrees to store Rahab’s goods for the period she will be away.

Before signing the contract of storage, Rahab asks about the condition of the building in which her goods will be stored. She has heard about recent floods in the state and just wants to be sure that her goods will be safe. The company manager replies: “Our building is in excellent condition. We built it only two years ago and we used the best building materials. Your goods are safe with us.”

Rahab decides to enter into a written contract with the company and stores her goods with them. The contract which she signs does not, however, say anything about the condition of the building, nor does it make any reference to the other statements made to Rahab by the company manager concerning the quality of the building materials.

Some months later, the company telephones Rahab at her new place of work and advises her that her goods have been badly damaged due to recent heavy rainfall which caused water to enter the building in which Rahab’s goods have been stored, and to damage them. The reason for the entry of the water into the building is that the building was badly built and poor building materials were used. As a result, the building’s foundations sank when the heavy rainfall fell, thereby causing a large gap between the bottom of the doors to the building and the floor of the building where the goods were stored. Rahab now wants to sue the KingStore Pty Ltd for the loss she has incurred as a result of the damage to her goods.

REQUIRED:

With reference to relevant legal principles use the IRAC legal problem-solving approach to advise Rahab of her legal position at common law against the storage company and discuss what remedies would flow from them. Give full reasons and use any relevant case law. Do not consider any statutory rights.

Solution

Question 1

Issue

The main issue is to assess enforceability of contract in case terms and conditions have been agreed by both the parties but not signed by one of the party.

Rule

Enforceability of contract

The elements necessary for enforcing agreement between two parties in accordance with provision of Australian contract law is as follows:

• It is necessary to have clear offer from one party and another party must have provided acceptance against same.

• It is necessary that consideration must have been provided against promise.

• The evidence of mutual intention of legally enforcing contract should exist.

• The terms of contract should be certain (Australian contract law, 2019).

• The parties of contract should be capable to enter into contract or agreement.

Remedies for breach of contract

The two remedies available for breach of contract is as follows:

Common law remedies: This refers to damages and liquidation claims provided as ‘substitute’ for performance. For Assignment help Further, liquidation damages can be claimed in can specified sum has been provided in contract in context with breach of contract (Australian contract law. 2019).

Equitable remedies: The two equitable remedies are specific performance i.e. making order to perform contract and second is injunction i.e. giving order to not to do contract.

Applicability

The decision provided in case of Australian Woollen Mills v The Commonwealth (1954) 92 CLR 424 could be considered for clarifying existence of offer as it asserts same as expression of a party for being bound to stated terms i.e. it is something more than declaration of person stating his or will to negotiation (Australian Woollen Mills v The Commonwealth (1954) 92 CLR 424). In others actual terms should be accepted by the party. In present case both the parties have accepted to the terms of contract and do have mutual intentions to be enforcing the contract legally. As it has been clearly provided that both the parties accepted the terms and agreed that work would complete in one month. Further, only formality of signing is left and no objection has been made after receipt of agreement signed by Bradley till three week where on the other has substantial amount of work has been completed. Further case of Empirnall Holdings v MachonPaull (1988) could be applied in present case which asserts that no specific form of acceptance is required for enforceability of contract.

Conclusion

It can be concluded that above specified remedies i.e. common law remedies and equitable remedies can be claim as contract has been breached by Bradely.

QUESTION 2

Issue

In present case existing position of company in context with making new contract is to be accessed along with explanation relating to replacing rules which may be use to company in future.

Rule

Memorandum of Association (MOA)

As per section 125 of Corporation Act 2001 MOA refers to document which regulates company’s external affairs such as form, structure and objects. Further it has been provided that company can choose to include objects clause in its constitution (Corporations Act 2001).
Section 141 of Corporations Act 2001

It asserts that company registered before 1st July 1998 would require memorandum of association and article of association. However, companies registered after 1st July 1998 may be governed by replaceable rules as per section 141 of Corporation Act 2001. Replaceable rules refer to set of minimum rules in context with management of company and its employees (Graw, 2017). These rules are replaceable in case an organization makes decision to adopt a constitution i.e. it can either incorporate or replace provision with its own.

Applicability

In present case as existing object clause is limited to manufacture and sale of motor vehicle batteries and does not include electric cars; thus before making any contract relating to same it is necessary to amend memorandum of association in order to continue business operations in smooth manner. Further regarding replaceable rules, in case company is registered after 1st July 1998 than it does not require MOA and AOA and it can govern its operations in accordance with ‘Replaceable Rules’ as per section 141 of Corporation Act 2001 (Memorandum of Article of Association, 2020).

Conclusion

It can be concluded that decision of use of replaceable rules depends on date of registration of company and contract which are not covered in existing object clause can be made after making appropriate amendment in object clause of memorandum of association.

QUESTION 3

Issue

To assess where claim can be made in context with negligence against City of Smalltown Council as heavy loss has been suffered by Greg due to same.

Rule

Provision for ‘Tort of Negligence’

Negligence occurs in case one party fails to take reasonable care in order to avoid causing damage to another person. Thus, the four factors necessarily to be proven for claiming loss due to negligence is availability of duty of care, breach of duty, damage and causation (Stevens, 2017, p 17).

Damages for Negligence

Damages are considered as prime remedy for tort action of negligence i.e. nominal damages, aggravated damages, punitive damages and compensatory damages. These can be claimed on the basis of nature of negligence (Tort of Negligence, 2020). Nominal damages are provided in case plaintiff does not succeed in proving any injury or damage and compensatory damages are provided in case of serious invasions. Punitive damages are awarded in case of breach of confidence or tort relating to misuse of personal information as in case of Weller v Associated Newspapers Ltd [2014] EWHC 1163 (QB).

Applicability

In present case loss has been suffered by Greg due to accident as the tree fell while he was driving. The main reason behind accident was felling of tree; the incident occurred as the root system of tree was destroyed due to underground water leaking channel which has been constructed by local council, City of Small town council. Thus, it would be appropriate to state that it was their duty to ensure that it is maintained appropriately and no loss has been occurred to general public due to same. The recent decision provided in case of Libra Collaroy Pty Ltd v Bhide [2017] NSWCA 196 could be considered where decision was provided that landlord is responsible for collapsed balcony as it was his responsibility to provide appropriate structural integrity of the balcony (Libra Collaroy Pty Ltd v Bhide [2017] NSWCA 196). Further, the decision provided in case of Thistle Co of Australia Pty Ltd v Bretz (2018) asserts that it is responsibility of innocent person to prove negligence in order to claim damages as remedy, thus Breg would require proving that he has suffered heavy loss due to negligence of City of small town council.

Conclusion

It can be concluded that in present case all the four variants for proving negligence are available i.e. of duty of care, breach of duty, damage and causation. As City of small town council was responsible for management of water channel and due to its leakage the tree fell down which eventually resulted in accident. Further, breach has been made by not maintain water channel appropriately and damage has been borne by Greg in form of accident due to the accident. Thus, Greg would succeed in claiming damages in context with accident against City of small town council for its negligence.

QUESTION 4

Issue

In present case Lachlan is dealing with issue regarding effect and consequences of converting their partnership into company. Another issue to be considered is to assess whether Lachlan would succeed in enforcing envisaged constitution in case they wanted to use different solicitor.

Rule

Consequence and effect of converting partnership into company

• As per Australian provisions, in order to convert partnership into company, it is necessary to dissolve partnership as it cannot be transferred into company. Even it is necessary to cancel Australian Business Number (ABN) relating to partnership.

• It is necessary to ensure whether it would be proprietary or public company and it is to be registered with ASIC (Lopes et al, 2020).

• Further, existing assets should represented as owed to company; as it will have separate legal entity assets owned by same would only be part of business.

• The key principle required to be considered is that in case directors of company does not accomplish their responsibility appropriately than they would be responsible personally for debt incurred by company.

• Directors are liable for remuneration in accordance with their skills and experience i.e. their contribution to the business operation (Ndzi, 2017, p1).

Applicability

In present case the three partners are Davinder, Jaswant and Lachlan wanted to convert their partnership into company. Thus, initially they would require dissolving their partnership in order. Further, as the business structure would be of company; thus they would be able to operate in overseas market or change product function in order to accommodate this growth as advantage of corporate structure. It can be accessed from above analysis that as company does have separate entity; thus the assets which would be in name of company would be considered as business asset only. In present case as all the three partners have bought some of their assets in partnership and now they wanted same to remain their individual property; hence they would not be able to claim expenses relating to same as it is no more part of business. In context with remuneration it would be appropriate to state that they would be able to claim remuneration only if they are appointed as director of the company (Ndzi, 2017, p 1). Lastly, main perception to be considered in case of corporation business structure is they require accomplishing their obligation with business perception rather than personal else they would be responsible for debt or damages relating to specific transaction.

Conclusion

It can be concluded that above specified effects and consequences are to be considered by all the three partners regarding transforming partnership into company. Further, Lachlan would not be able to enforce envisaged constitution in case they distinct to different solicitor as in corporate business structure decision are taken by majority of shareholders by passing appropriate resolution.

QUESTION 5

Issue

Assessment of remedies in present case loss has been occurred by Rahab as damage to her goods as the building in which goods were kept was damaged.

Rule

Provision relating to misrepresentation

Misrepresentation refers to providing wrong information to one party by another between which contracts has been made (Australian contract law, 2019). Further, it has been provided that in case one of the parties of contract relies on misrepresentation and suffers loss then they can claim damages or cancel the contract.

Remedies for misrepresentation

Rescinding the contract: The claimant can rescind the contact in case the party who has suffered opt for same.
Damages: It is alternative of rescission i.e. to claim for loss due to relying on misrepresentation. However, the person could not succeed in claim in case they fail in proving that they do have reasonable grounds for believing that they do have reasonable grounds to believe that misrepresentation statement was true (Stevens, 2017).

Applicability

The decision provided in case of Google Inc V ACCC [2013] asserts that in case it has been appropriately stated that the party of contract is not responsible for facts or statements provided in advertisement than they cannot be held responsible for same. Thus, it is necessary that decision has been made on the basis of statement provided by one of the party and claimant is not aware that these are untrue (Google Inc V ACCC [2013]). In present case as Rahab made contract after ensuring that goods were kept in storage which was having good condition and was not aware that another party was providing false statement knowingly. Hence, he would claim damages in context with goods provided to another party.

Conclusion

In accordance with above provisions as King Store Pty Ltd. has provided misrepresentation and contract has been dependent on same; thus Rahab would succeed in claiming loss in context with damage relating to goods.

REFERENCES

HI6027 Business and Corporate Law Case Study Sample

Purpose of the assessment (with ULO Mapping)

The purpose of the Group Assignment is to provide students with an opportunity to work in a collaborative environment in solving three case problems by citing the relevant legal rules and cases and applying these to the facts of the case.

In this Group Assignments, students are required to:

- Critically analyse the main features of the Australian Legal System and the foundations of company law. (ULO 1)

- Critically analyse the basic principles of Contract, Tort, and privacy law and apply them in resolving legal issues arising in commercial transactions. (ULO 2)

- Research and advocate the appropriateness of the different types of business structures and the legal environment in which they operate and their advantages and disadvantages in various commercial contexts. (ULO 4).

Purpose:

The Group Assignment aims to provide students with an opportunity to work in a collaborative environment in solving three case problems by citing the relevant legal rules and cases and applying these to the facts of the case. Students are to form groups, with a minimum of 2 and a maximum of 4 students per group. The assignment consists of a 2,000-word written report.

Instructions: Please read and re-read carefully to avoid mistakes.

Group Report

1. This group assignment consists of 3 parts. Part A is a question on Contract Law, Part B is a question on Negligence and Part C is a question involving Corporations Law. All questions must be answered.

2. Question A is worth 20 marks, while Question B and Question C are worth 10 marks each.

3. The total word limit for the group report is 2,000 words (+/- 10% allowed)

- Word limit for Question A – 1,000 words
- Word limit for Question B – 600 words
- Word limit for Question C – 400 words

Word count limits are strictly enforced. A deduction of two (2) marks will be imposed for every 50 words over the word count for either part of the report. Anything over the word count will not be read by your lecturer.

4. The total word count for the report as well as each part must be clearly written on the cover
sheet of the assignment. A paper will not be marked if the word counts are not written on the cover sheet.

Solution

Part A

Issue

Issue in the given case scenario is based on contract law. In this case, it is required to give advice to Sierra Foxtrot Airport with respect to its contractual position in connection with three tenders, such as Green Grow, Sow This, and Grassy Plains.

Legal rules and regulations

A contract is referred as binding agreement in a legal manner. Formation of the valid contract is based on the following elements –

Agreement: For creation of valid contract, first requirement is the agreement that usually includes the element of offer and acceptance and consists ‘meeting of minds’ between more than one people (Ridoan and Sifat 2018, p. 70(2)). In order to create offer, not any particular form is needed, and it could made to a single person or public at large, which is explained in case of Carlill v Carbolic Smoke Ball Co. Further, offer must be distinct from invitation to deal. For Assignment help In the legal case, Backpool & FLyde, it was stated by court that, invitation to tender are also normally regarded as invitation to deal, with the tenders themselves creating offers that may be rejected or accepted (Australian Contract Law, 2019). Although, invitation to tender may run with it distinct offer to take into account all tender submitted. Further, acceptance is refereed as unequivocal statement through the offeree assenting to the offer.

Consideration: It is the amount asked by one party from another party for exchange of their promises (Valcke 2019, p. 292(3)). It could be anything that is stipulated by the promisor except it should not be illegal. In the case of Dunton v Dunton, giving up freedom is also considered as adequate consideration.

Intention of parties for creating legal connection: In order to building valid contract, parties to an agreement should have intention to create legal relationship. At the time of assessing every case, usually court implements some presumptions to distinct types of contracts. Therefore, in the domestic and social type of contract, it is presumed that, contract has not been formed with the intention to enter into any legal relationships (Bagheri, Kamal and Mansour 2017, p. 512(2)). On the other side, in the commercial type of contract, it is presumed that intention of parties is to make legal connection, and the same aspect has been observed in the case of Rose & Frank.

Capacity: There are some people or class of individuals that do not possess adequate capacity to formation of contract, and as a result thereof contract would not be enforceable against them(Zottola et al, 2018, p. 12(1)). For example, person of unsound mind is not have capacity of contract and therefore any contract made with them is considered as valid contract and therefore contract will not be enforceable against them.

It has been noted that, communication between two parties plays significant role in order to form valid agreement (Hart, 2020, p. 22(3)). As a general rule, communication would be effective only when it is send by one party and received by another party. However, by application of the postal rule of communication, it has been observed that, communication would be effective from the date when a valid post is posted, and not from the date when post is received by offeree. However, a contract cannot be creates until the post has been examined that their offer has been accepted by this act and it cannot be made by complying with the postal rule of acceptance (Korolev et al, 2018, p. 1008 (3)).

Application

In the prevailing case scenario, Sierra Foxtrot Airport has called for tenders for supply for green seeds with a closing date of 1 June. In this, there are three companies, namely Green Grow, Sow this, and Grassy Plains, has been applied. By above rules and regulations, it has been noted that, calling of tender is invitation to offer, and therefore there is not any obligation on the Sierra Foxtrot Airport to accept the minimum tender.

By considering the tender of Green Glow, it has been noted that, company has submitted this application in timely manner; therefore it is eligible tender application. Although, Foxtrot Airport do not want to give this contract to the cited organization because of unreliability of goods and services provided by Green Glow. Therefore, there is not any contract has been formed between Green Glow and Foxtrot Airport. The reason behind the same is that, in order to create valid contract, there must be valid agreement between two parties, and the same aspect is not exist in the given case.

Along with this, by considering the tender of Sow This, it has been seen that, company has submitted tender application within prescribed time, and application has been also received by Foxtrot Airport. However, such application is not considered by Foxtrot Airport at the time of discussion about giving contract to anyone company. Therefore, it can be said that, there is not any valid contract has been formed between them.

Lastly, by considering the tender application of Grassy Plains, tender application has been filed by company before the closing date but it was received by Foxtrot Airport on 2nd June and is spite of this, it was considered by company. Further, Foxtrot Airport has granted its acceptance on this tender, but this acceptance has not been received by the Grassy Plains. It is because, postal worker has destroyed the application, and without any actual communication, it is not possible to form the contract. The above analysis reflects that, communication may be performed by verbal or written manner, but it must be effective. In the absence of any effective communication, formation of the valid contract would not be possible.

Conclusion

To sum-up, it can be ascertain that, Sierra Foxtrot Airport has not formed any legal and valid contract with any of three companies. Due to this, it is advisable to the Airport Company that there is not any contractual liability occur with other companies.

Part B

Issues

In the prevailing case analysis, issue is concerned with the claiming of damages for the negligence. It is required to provide advice to Darcie on whether or not her case against Madeleine would be successful in the context of negligence aspect.

Legal rules and regulations

Negligence is referred as failure to exercise reasonable care. There are certain elements that should be proved by plaintiff in order to make claim against negligence. Such elements are duty of care, violation of duty of care, and causation ( Fhloinn, 2017, p. 180 (3). If all three elements have been proved by plaintiff successfully, then an ultimate part of a negligence claim consists of damages. Analysis of such three elements is as follows –

Duty of care: It is the first element that should be proved by plaintiff that, duty of care present between the plaintiff and the negligent individual. It usually consists of care not to assist injury to other people through actions or inactions (Dutescu, 2017, p. 218(1). There is not any single factor to explain about whether or not there is existence of duty of care. Although, mostly cited test for ascertainment of duty of care present is the neighbor principle, which was also explained in legal case of Donoghue v Stevenson. In the cited case, it was stated that, person should take reasonable care for avoidance of act or omission that could reasonably foresee will be probably to injure their neighbor (Legal Service Commission of South Australia, 2020).

Breach: Whether or not breach of duty has been occurred would be based on what is regarded as ‘reasonable’. In this aspect, it is required by plaintiff to demonstrate-

- There was a major risk of harm.

- Such risk was foreseeable.

- A normal person would have taken safeties against the risk in the similar situations(Miller and Antonucci 2016, p. 145(2)).

It should be noted that, in case of obvious risk, there will be not any liability arise on defendant as the risk was quite obvious to a normal individual and therefore the plaintiff has obligation for their own actions (Civil Liability Act 2002 NSW, 2020).

Causation: It should be required to prove that, as a result of violation of duty of care, damages have been suffered by plaintiff. In the absence of this, negligence claim could not be established as given in case of Amaca Pty Ltd v Ellis (Taylor & Scott Lawyers, 2021).

Damages: If all above three elements has been proved by plaintiff in successful way, then they would be eligible to get compensation for their harm that has been caused.

Application

In the given case scenario, property of Madeline at which garage sale has been conducted included a concrete driveway comprised sections of joined in an expansion joint that extended across its length. It is expected by Madeline that significant number of purchaser will attend the sale and she reasonably knew about the variation in the extent of adjoining concrete slabs in the forecourt of her home. When Darcie (buyer) has entered into premises, she does not have any idea regarding such disparity in slabs and due to this she fell towards the grounds.

The relationship between seller and purchaser give rise to a duty of care. Such care has been breached by Madeline as she knew about the disparity in the level of adjoining concrete slabs, and which may create injury to other person. Darcie has suffered from injury because of such breach of duty of care as if Madeline has taken adequate steps to remove disparity in the concrete slabs then it is probable that she may not suffered from injury.

Conclusion

To sum-up, it is advisable to Darcie that her case against Madeline would be successful as there is existence of all elements of establishment of negligence claim.

Part C

Issues

The prevailing case scenario is concerned with analysis and discussion of the director’s duties as per common law and corporation Act. It is required to ascertain whether the directors of Bluff Solutions Pty Ltd have breached their duty of care.

Legal rules and regulations

According to section 180 of the Corporation Act, director of company possesses to carry activities with an extent of care and diligence that a normal person will be predicted to demonstrate in that role (Roles and Responsibilities of directors, 2020). At the time of taking any decision, directors are required to be applying an enquiring mind, and take into account the overall position of company (Australian Securities and Investment Commission, 2021). In practice, this duty require every director to –

- Become familiar with the basics of business organization.

- Observation of policies and affairs of company (Chaffee, Davis-Nozemack 2017, p. 1428(2)).

- Stay informed and makes suitable enquiries with respect to activities of company.

- Possess an informed opinion regarding financial capacity and solvency of company (General duties of directors, 2020).

Further, section 180(2) of the cited Act states that a director who make business judgment is taken to satisfy the duty of care requirement for judgment, if they –

- Judgment has been taken in good faith and proper reason.
- Not having any material interest in subject matter (Ponta, 2018, p. 645(2)).
- Inform themselves up to the extent they believe to be suitable in reasonable manner (Corporation Act 2001).
- Rationally believe that it is in the interest of company (Yoshikawa and Hu 2017, p. 100(1)).

Application

In the given case scenario, director Jerry has directly provided his opinion about the report that it is correct even if some of the information has not been examined and supported by up to date data, which shows that duty of care has been breached by Jerry definitely. Further, it can be said that, remaining directors of the company also rely on the report and invested the money of company in the new software application, which creates foreseeable risk of harm to the company. But, by application of business judgment rule, it has been taken in good faith by the remaining directors and they rationally believe that it was in the interest of company.

Conclusion

Based on above analysis, it can be concluded that, Jerry Robinson, directors of Bluff Limited has breached duty of care as stated in Corporation Act 2001 and common law.

References

LAW6001 Taxation Law Case Study Sample

Task Summary

In response to the issues raised in the case study provided, research and develop a 3000-word tax advice that addresses (a) assessable income (b) allowable deductions (c) tax calculations and (d) your conclusions and recommendations that arise from a fact scenario and to give appropriate advice to clients. Please refer to the Task Instructions for details on how to complete this task.

Context

This assessment allows students to solve practical problems that arise from various scenarios and to give appropriate advice to clients. This assessment assesses your research skills, your ability to synthesize an original piece of work to specific content requirements and your ability to produce a comprehensible piece of advice which addressing the client’s needs. It also assesses your written communication skills. The ability to deliver to a brief is an essential skill in the workplace. Clients may well approach advisors seeking a combination of specific information needs and advice on the tax implications of a particular arrangement in the Australian tax jurisdiction. It is therefore important to be able to identify all the issues presented by an arrangement and to think about the potential consequences of different approaches to addressing the client’s needs.

Task Instructions

- This case study must be presented as a group effort. The case study requires collaboration of effective team work. It is expected students will take parts and survey the relevant literature, including decided cases, and select appropriate additional resources.

- Your case study is not just a list of answers. Your reasons for your conclusions and recommendations must be based on your research into the relevant cases and legislation.

- With respect to each case study:

- Advise the best investment option for clients from the facts of the case study

- Identify the appropriate legal principles that requires discussion in the case study

- Apply the law to the facts of the case study

- After reaching a relevant conclusion, provide practical advice to your client(s).

- Your case study needs to identify and discuss the tax implications of the various issues raised.

- A report (word document, approx. 3,000 words) must be submitted for the calculations of the assessable income; allowable deductions and taxable income of the taxpayer including identifying and discussing them. E.g., how the amounts of income & deductions have been derived. If any receipts and payments are not assessable or deductible, the reasoning for non-inclusion of these in assessable income or deductions as per relevant legislation or cases. After all analysis, you must provide the best solution to save income tax payable.

- Your case study is not just a list of answers. Your reasons for your conclusions and recommendations must be based on your research into the relevant cases and legislation.

Solution

Question 2

In the given case scenario, it is required to determine net tax payable by the beneficiaries of trust for the tax year 2020-2021.

The taxable profit of the trust is referred as assessable income generated during the year after getting deduction of allowable expenses, which is worked out of the notion that the beneficiary are resident of the country. Since, the profit of the trust is ascertained as per the trust deed and its net profit is ascertained as per the taxation laws and therefore both amounts are not same. Usually, tax is charged on the net profit of the trust in the hands of the beneficiaries on the basis of their share in the net profit of trust notwithstanding of the fact that whether or not the profit is actually paid to them (Australian Taxation Office, 2021). For Assignment help For instance, if share of the beneficiary was 50% in the net profit of trust, then they would be assessed for 50% share in the net profit of trust, which is considered as proportionate mechanism. It is required by trustee to give details about every beneficiary of their proportion in the net profit by which they could include such amount in the taxation return.

Rules for franked distributions:

Unless not restricted through the trust deed, franked distribution is particularly entitled by the beneficiary, assisting in taxed is charged on the beneficiary with respect to the franked distribution (Mather, 2017). In such manner, franked distribution could be allocated to the particular beneficiary for the purpose of tax. if not any beneficiary is particularly entitled for the franked distribution, then in such case, tax is charged on proportionate manner for entire beneficiaries on the basis of their entitlement to the profit of trust, which suggests that in the same manner as of other net profit of the trust. Moreover, if any beneficiary has right to off-set of franking credit then in such case, they are also required to include this amount in the assessable profit (Millar, 2017).

Apart from the above aspects, a loss occurred by trust in the financial year could not be divided among beneficiaries. Although, it could be carried forward and implemented for deduction of the net profit in the subsequent year.

Rules for capital gains:

Unless not restricted through the trust deed, capital profit of the trust could be streamed to beneficiaries for the purpose of tax by creating them particularly entitled to the profit. This would allow permission to beneficiary to balance the capital profit with their capital losses, application of applicable discount and subject to the condition of integrity rules, obtain the advantage of any franking credit connected to a franked distribution (Slott, 2020).

Capital profit and franked distribution to which not any particular beneficiary is specifically permitted are allocated in the proportionate manner on the basis of their current share to the net income of trust as per Division 6 Part III of ITAA 1936.

Rules of taxation:

Individuals aged more than 18 years and company beneficiary are required to make payment of tax on their portion on net profit of trust at the rates of tax applicable to them. Further, beneficiaries are required to pay tax on behalf of minors on the basis of their share in net profit of trust. Some special norms are applicable of income generated by minor less than age of 18 years. Under such norms, they are required to pay higher amount of tax rates on particular types of profit like distribution from a family trust.

Rates of income tax for individual less than age of 18 years:

If an individual is less than 18 years, some of the profit may be changed to higher tax rates as compared to an adult. Although, they are required to make payment for the same rates as an adult for –

- All profit they receive if they are an excepted individual, this might be applicable if they have completed full-time study and engaged in work in full time or they have disabilities. Or they are permitted to a double orphan pension (Boadway, Brooks, & Macnaughton, 2019).

- Profit they receive as excepted profit, it consists business profit or employment profit, centrelink payment, and profit from estate of deceased person.

If there is any element of net profit of the trust for which there is not any beneficiary is exist, then in such case, tax is charged on the trustee on the corresponding share of the net profit. Further, if there is not any existence of net profit then tax is charged on trustee on any net profit. It should be noted that, trustee is usually levied tax on the net profit of trust at the greatest marginal rates applicable on the individual apart from some types of trusts that are charged to tax at altered individual rates (Australian Taxation Office, 2021).

Computation of Net Profit of Trust

Table 1 Computation of net income of trust

It has been noticed that, total capital gain from sale of shares 20000 and 7000 respectively and capital loss from prior years of $50000. By setting off capital loss from capital gain on sale of shares, in this year, not any capital gain is generated by trust. Further, remaining capital loss is 23000 (50000-27000), which would be carried forward in the subsequent year.

Shares of beneficiary –

Table 2 Computation of share of beneficiary in net income of trust

In the above case, it has been noticed that, share of the beneficiary was 95%, and therefore tax on the 5% net income would be charged in the hands of trustees.

Table 3 Computation of tax payable by beneficiaries

References

LAW1081 The Individual and the State Formative Assignment Sample

John is a playwright and political activist living in the state of Triland, a state party to the European Convention on Human Rights. Terence is the director of a local theatre club in Triland’s capital city, Stereopolis, and has asked John to write a play about contemporary life and society in Triland. John’s script portrays various national politicians and religious figures as lascivious, immoral, and corrupt. The play includes a very lurid satirical depiction of Mathilda, the mayor of Stereopolis. Mathilda, who is a deeply religious, married mother of four, is portrayed in the play as an adulterer who regularly receives sexual favours in return for preferential treatment in tenders for local contracts.

After several months of rehearsal in Terence’s home, the theatre club is ready to put the play on for the public. They hire a large room in the local town hall and invite their friends and family to watch a private preview of the play, as well as Tina, who is a journalist for the newspaper ‘The Triland Daily’ and a few local dignitaries, including the mayor of Stereopolis and her family. Terence has already sold a number of tickets for the play, which is due to be performed to the paying public two weeks after the preview has taken place.

Mathilda is deeply offended by the play. She complains to the Triland Police Force and John and Terence are arrested under the Triland Police Force’s common law powers of arrest. They are subsequently prosecuted under the ‘Protection of the People from Public Immorality Act’ for the offence of ‘offending public morality’ and they are both sentenced to a 500 Trilandese dollar fine and a 6-month suspended prison sentence for this offence. Mathilda also informs Terence that the play is cancelled and that the Triland Police Force will break up any gathering at which the play is to be performed to the public.

Tina publishes an article about the play, including the controversy surrounding its cancellation by the Mayor of Stereopolis, in the ‘Arts and Society’ inside pages of the Triland Daily. The article contains a detailed account of the dispute, alongside photos of the actors dressed in costume and a reproduction of the most offensive quotations, including those that concern Mathilda. Mathilda sues John and Tina in defamation and succeeds before domestic courts, obtaining sizeable compensation for injury to her feelings and reputation and an injunction against the further publication of the offensive material. Please advise John, Terence, and Tina on the likelihood of making a successful application to the European Court of Human Rights under Article 10 ECHR. Please assume that all the applicants have exhausted domestic remedies and that their claims are admissible.

Solution

In the present case scenario for assignment help , it has been noticed that, Mathilda has been significantly offended because of the play and therefore she sued John and Teena in defamation and obtains success prior to domestic court, availing significant amount of compensation in relation to the damages to her feelings and reputation. Further, she also availed injunction order in contrary to the further publication of the violent material. Therefore, in the prevailing case scenario, it is required to provide advice to John, Terence, and Tina on the probability of filing application in successful manner as per Article 10 of ECHR (European Court of Human rights).

The European Court of Human Rights has taken into account the freedom of expression and right of information, which is part of Article 10 of European Convention of Human Rights, a significant basis for advancement of democratic community and every individual. The European Court of Human Rights is applicable on wider definition of the idea of ‘information’ specifically that could play vital role in advancement of democratic community .

European Court of Human Rights Rules as per Article 10 is considered as primary aspect of the Convention. It explains about the right to freedom of expression, however it could be observed from Para two, it is not regarded as absolute right. As per explanation in the cited Article –

1. Every person possesses the right of freedom of expression. This right should consists of freedom to embrace opinions and to obtain and communicate information and plans without any interfere by the public authorities and notwithstanding of frontier. The Article must not restrict States from needing the license for broadcast, cinema enterprises, and TV.

2. The application of such freedoms, as it runs with rights and duties, might be dependent on conditions, rules, limitations or drawbacks as are explained under laws and regulations and are essentially in a democratic community, in the advantage of safety of nation, territorial disorder or offence, for the security of ethics or health, for the safeguarding of rights or image of others, for security of the information obtained in confidential manner, or for keeping the authority and fairness of judiciary .

The range of application of above Article 10 has been taken into account by European Court of Human Rights in the latest case of Zarubin and Others v. Lithuania. In the cited case, expulsion of Lithuania and restriction on re-entry of Russian Journalist in order to engage in work of broadcasting in state-owned Rossia-24 subsequent to their activities at meeting in Vilnius. In this, it has been decided by European Court through majority that applications were not admissible. It was the ultimate decision. The court was ready to admit the measures implemented alongside candidates has considered as an intervention with the right of expression as given in Article 10. Although, further it has been held and reflected by authorities that measures taken by court had been essential in the benefit of security of country and has been equivalent . Specifically, the behavior of applicant at the meeting, demonstrated by authorities as stimulating and hostile, has not been as per the tenets of dutiable journalist.

On the basis of above aspects, it can be said that, freedom of rights of expression has been given in the Article 10 of European Court of Human Rights, but it was subject to several exceptions that should be construed in narrow way. In some case, rights under ECHR also compete with each other in a provided case. For instance, it could occur with Article 10 and Article 8. As per Article 8 of ECHR, every person possesses rights with respect to their privacy and family life, their home, and their correspondence. In a condition in which balancing exercise is considered between Article 10 and Article 8, significant emphasis is applied by the court in relation to the proportional position of the particular rights being requested in the case. Reasoning for intervention with or restriction on every right should be considered. There should be application of equivalent principle as applied in the legal case of Zarubin and Others v. Lithuania.
Elements and benchmark of the reasoning of court particular to defamation case (Safeguarding of reputation)

In establishment of factors of defamation, it is required by court that there must be objective connection between the impugned statement and the individual suing in defamation. In the legal case of Reznik v Russia judgment, it was held by the court that only subjective opinion of the publication as defamatory is not considered as sufficient element for establishment of the aspect that individual directly or indirectly affected through the publication . Further, it is considered by court that protection of reputation must be restricted to that of living individual and not to be based upon the reputations or image of deceased person except in some particular conditions. Further, the main factor of defamation is the harm on reputation. For Article 8 to come into play, harm on image of person should capture particular extent of significance and in a way assisting unfair to the personal satisfaction of the right to respect for personal life . In the legal case, Karako v Hungary, the extent of seriousness of the intervention needed for Article 8 of the ECHR to be implemented in the context of safeguarding of reputation is explained as such a significant intervention in the personal life that personal integrity of person is compromised . It has been noticed that, in the several cases in relation to defamation, it has been found by court in explicit manner or implicit manner, that the extent of seriousness has been grabbed and there would be application of Article 8 that reflects about right to privacy of person. In the legal case of Fuchsmann v Germany, decision related to claim of defamation brought by the applicant for offensive comments against him on internet portal, court held that article 8 was applicable .

In some cases, small group of individuals like board of directors of the company could also take defamation actions in which the target is the group, where the members could be identified as a reasonable person. This condition was occur in the legal case of Ruokanen and Others v Finland, which is related with allegation of rape in the course of party for team of basketball players .

It can be said that, court understands right of protection of every person with respect to their image, focusing that image of individual consists of one of the main element of their personality. The reason behind the same is that, it shows unique elements of person and differentiates the individual from their partners. Therefore, the right to protect image of person is one of the main element of personal advancement and primarily assumes the right to control of individual with respect to use their image, consisting of right to refuse publication thereof . The right with respect to private life, consisting the right to secure reputation as an important aspect of private life. It has been held by the court that reputation of person is supposed to be an independent right usually when realistic assertions were significantly in violent nature that their publication would create unavoidable impact on the life of plaintiff.

By going through the given case scenario, it has been observed that, John is required to write play with respect to contemporary life and community in Triland. Script written by John reflects several local politicians and religious pictures as non-ethical, lascivious, and dishonest. This play also includes significant lurid satirical portray of Mathilda, who was mayor of city. She has been noticed that, Mathilda was very religious, and had four children, is depicted as an adulterer who continuously obtains sexual favors in profit for favorable treatment in tenders for national contract. This depiction actually defames reputation of Mathilda. Although, as per Article of 10 of European Convention of Human Rights, individuals possess right to freedom of expression, and according to this, any person can express their opinions and expressions in free manner, but it is not considered as absolute right and subject to some terms and conditions only. Since, as per Article 8, it has been seen that, person has right to respect privacy, and defamation is considered as main element of personal life. This article contains detailed account of the conflicts, along with the images of actors in costumes and production of major violent lines, consisting of those related to Mathilda. It is considered as attack on reputation of Mathilda, which is considered as central element of defamation and it also includes significant level of seriousness. Therefore, it can be said that, by application of Article 10 with addition to Article 8, John, Terence, and Tina would not probably get success in filing application to the Article 10 of European Convention of Human Rights.

References

MGT608 Business Law and International Contexts Assignment Sample

Your task is to prepare a written document appropriately referenced, that address the following matters:

1. State the nature of business your company is involved in. Be as creative as possible. For example, you may decide that you are a manufacturer who wishes to export goods to the chosen country. Alternatively, your company may provide services which can be offered in the chosen country or your company may wish to import goods and/services from the chosen country.

2. Explain in as much details as possible the business opportunity that has arisen for the company. Making contracts is fundamental to business practice. Your company will need to make contracts in the scenario country. Please ensure you

• Identify the types of contracts that your business would need to enter in order to do business successfully in the scenario country. Explain why these contracts are necessary.

• Identify and explain the sources of contract law in the chosen country.

• Identify and explain the legal requirements for the creation of a valid contract in the chosen country.

• Explain the remedies for breach of contract in chosen country.

• Discuss whether it would be necessary to appoint an agent in the chosen country and an explanation for your decision.

• Identify whether Australia has a Free Trade Agreement with chosen country and explain the implications of this.

• Identify any specific regulations that apply in the chosen country based on the nature of your company’s business.

Solution

Introduction

Globalization has provided opportunities to organizations to expand their business activities in different markets and add value to the present market position. To ensure the proper utilization of the globalization effect for assignment help, it is also important for organizations to evaluate the trading relationship between foreign countries and host countries so that the risk of potential conflict can be reduced. On the other hand, it is also necessary for businesses to gather information about the relevant rules and regulations in the foreign market that will help in avoiding any type of complication in business performance. Premium cars is an Australian based automotive organization that has decided to export automobile products and different automotive parts to the local market of Japan and enhance the business outcome. The organization is selling a different range of cars that range from premium to luxury. Affordability rate of their cars is high, enabling the organization to reach 350 million revenue generations. Japan is one of the important markets for automobile companies but the rate of competition is high in the country. Therefore, instead of opening an organizational facility in the country, Premium cars has decided to export advanced automobile parts in the market that will minimize the risk in business and add advantage to the overall financial outcome. On the other hand, to establish a successful business venture, it is also important for the automobile organization to gather information about different types of law that can influence their business practice. The report will shed light on the importance of involving legal requirements that enable the organization to conduct their business in Japan in a successful manner. In addition to this, it will also evaluate the decision of involving a trading agent with the organization to buy and sell automobile parts to the customers directly.

Discussion

Identify the type of contracts

Different types of contracts have been practiced in Japan that mainly apply to employees. Three main employee contract laws have been introduced such as Sei-sha-in to form permanent contact with employees. Employers mainly focus on developing permanent contact with the employees as it is stable in nature and less risky in comparison to other contracts. Keiyaku sha-in refer to the short and specific term contracts with employees and it provide opportunity to the employer to hire workers based on the need of the business. This type of contract mainly forms for 3, 6 or 12 months based on the requirement of the business (Sono et al. 2018). In this type of contract, employers hold a minimum amount of obligation towards the employees. Lastly, there is Haken sha-in, which refers to the outsourced or temporary employees and they mainly work as personnel for a very short term period.

Premium cars need to know about the different types of contract before starting employing workers for the organizational function. The organization is also responsible for knowing the advantages and disadvantages of the different types of contract so that they can involve personnel based on the needs of their business.

Identification and explanation of the source of contract law

Contract law is an integral part of Japan's regulatory system and the Japanese contract law is one of the influential models of law in the East Asian jurisdiction. The Japanese contract law needs to be seen in the context of private law and to understand the importance of the Japanese contract law, it is necessary to put focus on the Pandectist civil law system where rules of the private law system are interconnected. Civil law in Japan has mainly used the 3 important status of the fundamental law and the basic rule of the contract has been described in the Civil code. On the other hand, special rules related to merchandise are described in the Commercial code. Different types of special laws have been formed for the protection of customers and regulate the business conduction of operators (Lexology.com, 2022). In the particular section of the article 526 of Civil code, reflect that contract form between two parties who are situated in long distance shall be accepted upon the dispatch of the notice of acceptance. Under this type of rule, a contract will be formed without the reach of the acceptance. On the other hand, it also provides an opportunity to the parties who do not want to bear such risk can mention a definitive time limit for the acceptance of the offer.

Identify and explain the legal requirements for the creation of a valid contract in Japan

The basic binding of a contract requires involvement of four key elements such as offering, consideration, acceptance and intention to develop legal relations. It is important for an organization to fulfill the legal criteria of valid contract formation. One of the basic requirements of valid contract formation is the legal promise that must be mutually exchanged between involved parties. Two important elements in the Japanese contract are consideration and mutual acceptance. In the case of Japan, there is essentially no requirement of documents to form contracts with each other and to enter into the legal agreement. Japanese mainly followed traditional approaches that require an agreement and an offering that can match acceptance. After an offer becomes active, Japanese Civil code restricts the revocability (Tamaruya, 2020). On the other hand, the offeree's acceptance becomes active after the dispatch. It has been seen that the Japanese contract has no doctrine consideration and it has eschewed formal requirements due to the prerequisite of the enforceability of the contract. An important feature of Japanese contract law is the strong duty of negotiation that performs in good faith.

Explain the remedies for breach of contract in Japan

The Civil code has provided three different types of remedies upon breaching any type of contract in Japan. The primary remedy is the right to performance under contract (“riko seikyu ken”) in which an obligee only needs to prove the non performance on the due date. While principle remedy is the right to performance, secondary remedies refer to the damages. On the other hand, seeking performance does not disallow the obligee to seek damage simultaneously. The next remedy is the Right to Damages (“son gaibaisho seikyu ken”) that allow the obligee to recover the damage under the Japanese Civil code law (Karaiskos, 2018). The right to damage remedy is also available at the time of contact rescinded. In this type case, oblige may obtain the damage as a form of substitute or in the conjunction of other contracts. Right to Rescission (“kaijo ken”) remedy is available to the obligee in terms of non performance of the contract. When a contract is revoked, both the involved parties are invoked for their contractual duties. The revoked contact does not seem to have existed from the beginning. However, after the revoke of the contract, any party gains any type of benefit from other parties, they have lost the right to retain it and need to give it back (Young et al. 2002). After losing the right of retain, the parties need to give back any type of money or property that they gain under the agreement.

Importance of appointing an agent in Japan

Appointing an agent is of utmost importance in international business expansion so as to carry forward the intermediaries of products and services in the international chain. Premium cars need to appoint a tradeagent who can work as import-export agent so as to buy items from the firm and sell directly to the customers (Drieghe&Potjomkina, 2019). They prepare necessary documents to carry on the overseas business of car manufacturing and distribution inventories to likely succeed in the Japan market. Tracking and coordinating shipments of products along with the compilation of data associated with importing or exporting items are necessary to minimize the risks in business. While exporting different automobile parts, the trade agent of Premium cars needs to obtain a license to establish a successful business venture in Japan and optimize a different range of cars that includes premium cars as well as luxurious ones. A sales agent also needs to be appointed in Premium cars in the Japan market to act on the behalf of the overseas market and attract potential customers. It is crucial to appoint a sales agent in the car manufacturing company not only to have solid relationships with potential buyers but also to exploit opportunities in the new trade market (Cremona, 2018). The agent can also avoid training, recruitment and payroll costs by appointing Australian employees in the Japan market that can reduce their operations constraint while entering an overseas market. Using an agent for Premium cars in Japan can allow them to maintain more control over financial matters and brand proposition compared to that of intermediary options by using a distributor. Therefore, appointing an agent is necessary in Japan to influence a strong business practice over car manufacturing and automobile parts in a successful manner.

Identification and implications of Free trade agreement in Australia with Japan

Free trade agreement is an international agreement between two or more nations to reduce challenges in exports and imports of goods and services. Australia has a free trade agreement with Japan through The Japan-Australia Economic Partnership Agreement (JAEPA) that allows them to improve market access in goods and services through substantial improvement in investment protections (dfat.gov.au, 2022). By providing valuable preferential access in Japan through Australia's exporters, Japan supports positive growth in the economy through two-way investment measures. The agreement between Australia and Japan helps to bring their economies and societies even closer and strengthen their relationship for many years. A major implication of free trade agreement policy is outsourcing of products or services through international context that might add advantage to Premium cars in Japan for a short-term period. Implementation of JAEPA in Premium cars is effective to receive preferential access or enter duty-free environment during imports and exports of automobile parts. The organization can utilize JAEPA agreement to provide enhanced protections in their automobile parts and impart certainty for bilateral investments. An extended benefit of Premium cars in the Japan market is full-time enjoyment of customers on lower prices of automobiles and automobile accessories by gaining a greater choice on high quality products. Application of free trade agreement policy in the organization can enable immediate tariff elimination and reduced levies for polarity on Australian products (Bhagwati, 2021). Premium cars can gain guaranteed cross-border access to Japan while providing portfolio management services and investment advice.

Regulations of the organization to be followed in Japan

Premium car is a popular Australian based automotive organization that has decided to export advanced automotive parts in Japan. Based on the nature of their business, Premium cars need to implement different regulations while opening their new business venture in the Japan market. For instance, Foreign Exchange and Foreign Trade Act (FEFTA) needs to be practiced by Premium cars to enable proper expansion of foreign transactions and maintain peace or security in Japan (cas.go.jp, 2022). It is of utmost importance to ensure equilibrium of international balance of trade in the Japan market to coordinate foreign transactions and contribute to the sound development of the Japanese economy. In accordance with the FEFTA act, Premium cars need to measure "foreign currency" and "means of payment" by offering a legal promise of valid contract formation in Japan. On the contrary, Premium cars need to assess the Ministry of Economy, Trade and Industry (METI) policy to develop Japan's economy and promote economic vitality (meti.go.jp, 2022). This is crucial to secure a stable and efficient supply chain across international borders of Australia and Japan along with the proper utilization of resources and capabilities. Application of METI regulations is beneficial for Premium cars in the Japan market so as to promote free international trade from the Australian market regarding the acquisition of automobile parts and services. Therefore, the automobile organization needs to follow such legal interventions to enhance their business outcomes in automobile manufacturing and selling in the international market.

Conclusion

From the above analysis, it can be summarized that Premium Cars need to form contracts with the other party only after gathering important information about their activities. Once the legal contract has been formed between the parties, there is no possibility to withdraw unless both of the parties agree to revoke the contract. Multiple types of contract have been found under the Japanese Civil code that needs to be understood before involving employees within the organizational activities. On the other hand, the legal system has also defined different type remedies upon the breaching of contract. Mainly 3 types of remedies have been evaluated in the report that will allow the organization the negative effect of breaking legal binding. Premium Cars also need to appoint trading agents within their activities in overseas functions so that they can guide the organization on importing and exporting activities. It can be concluded from the above that appointing a trade and sales agent in Premium cars in Japan is effective to carry out the ongoing tasks of import and export services from Australia. Application of free trade agreement through JAEPA is crucial to support positive growth in the automobile organization in Japan during the overseas operations of import and export. It is beneficial not only for maintaining a healthy relationship between the stakeholders of two countries but also to increase the affordability rate of their cars that is already high in the former market.

Reference list

HDS310 Human Rights and Advocacy Assignment Sample

Assignment Task: Policy brief

A Policy Brief should:

- Have a clear and specific purpose or focus - You choose one of the topics below and assume you are writing the brief as a human rights advocate to influence government and other stakeholders about the need for advancement of rights in your area of focus.

- Your policy brief should be practical and based on evidence. The evidence should be used to indicate that there is a gap in existing policy and/or practice, and to support the recommendations you make. A policy brief is a practical tool that has real world implications.

Assignment Instructions

Your Policy Brief will contain the following elements:

- An Executive Summary (It should include a brief description of the issue being addressed, a key message stating why the current policy or situation needs to be improved, and key recommendations)

- A Purpose (Why are you writing this brief? This section aims to convince the target audience of the importance of the issue being addressed and why it requires action. It usually will include a brief description of the issues or problems, , a short overview of the causes, and how this relates to current policy or legislation.)

- A Critical Analysis (describes the current policy or legislative environment, and identify gaps in policy, legislation, or practice, using evidence to highlight the areas that need development for this group in terms of human rights.)

- A Recommendations section (listing the policy, legislative, and/or practical actions required to improve the human rights situation in your topic area)
These 4 sections will make up the whole policy brief – there is no need for an introduction or conclusion

Assignment Topics

Choose one of the following topics:

a. Advancing the Rights of Asylum Seekers and Refugees in the Australian context with reference to Asylum Seekers and Refugees with disability

b. A Human Rights Act/Charter for Australia? (Present the arguments for and against and make recommendations according to your view)

Solution

Purpose

Importance of the issue

The purpose of this study is to analyse the current position of the asylum seekers in Australia and the legislation that the Australian Government has passed for their protection. An asylum seeker is one who has taken a flight from the home country and has taken shelter in another country in the form of a refugee. Australia has a significant history of accepting refugees and offering them shelter in the nation along with employment and payments for their sustenance. It is significant to note that most of the asylum seekers in Australia are unlawful citizens as they arrive in Australia without any valid visa (Blackmore et al., 2020). However, as per the laws of Australia, it is not a criminal offence by seeking shelter in Australia as a refugee. Earlier, refugees used to arrive in Australia with the help of boats without having valid authorisation in entering the country. Moreover, in the present scenario, all the unauthorised asylum seekers are taken to Christmas Island and interrogated about the reason behind their arrival. It is to note that if the government official found that the claims of the asylum seeker may be involved in the protection regulations of Australia then, the refugee is examined based on the non-statutory status assessment of the nation (Satinsky et al., 2019).

Action plans

The Australian Government has formed an association named Asylum Seeker Resource Centre with the help of which the asylum seekers and the refugees are getting food. As per a report, ASRC is presently offering food to around 1,000 refugees daily. The government is also trying to offer accommodations to asylum seekers and employment opportunities so that refugees can sustain their lives (Mukumbang, Ambe & Adebiyi, 2020). Both the government and non-governmental organisations in Australia are developing and adopting national coordinated obligations and procedures for offering comprehensive health care opportunities to asylum seekers and refugees.
Problems of the issue

There are several problems that asylum seekers are facing in the current circumstances. One of the biggest challenges is that of settlement. For assignment help it is important to note that as the refugees leave their homeland and come to other countries, accommodation becomes one of the biggest issues. Moreover, finding suitable employment in the host land is another challenge that asylum seekers face. Even young asylum seekers also face certain challenges due to their ages as they carry the scars of displacement and wear along with them. As a result, they are affected by psychological trauma and have issues of identity crisis (Campomori & Ambrosini, 2020). Moreover, asylum seekers are also facing huge challenges of cultural gaps and language barriers. Financial scarcity and separation from their family members due to displacement lead to the development of mental and physical trauma among the refugees. However, the government of Australia is trying to offer to counsel to the students of asylum seekers regarding a settlement. Trauma Rehabilitation Centres are also established for providing proper treatment to asylum seekers and refugees in Australia. Furthermore, there is complexity in the requirements of healthcare facilities for the asylum seekers and they live in a holistic condition without financial support, in hunger, lack of education, accommodation and healthcare amenities (Mukumbang, 2020).

Overview of The causes

There are various reasons due to why a refugee is bound to leave the homeland and flee another country. One of the persisting reasons behind their plight is the violence and atrocity of war. Even on grounds of religious violence and racial slurs are also some of the reasons why people fled their own nations and settled to seek shelter in another country. Furthermore, the seekers with disabilities generally flee their own countries as a result of violence and they seek refuge in other nations by receiving protection through certain legal actions and material abetment (Silove & Mares, 2018).

Figure 1: Australia Refugee Population from other countries
Source: (Aph, 2022)

Referring to the records of the United Nations it is observed that in Australia there are a total of 1.7 million asylum seekers. It is also observed that most of the asylum seekers in Australia were migrated from Syria and Afghanistan due to terrorism and 1.1 million people also fled away from Myanmar (Ziersch, Due & Walsh, 2020).

Relation with The Current Legislation

Australia has formulated a Refugee Law for protecting the rights and interests of the refugees and Asylum seekers. It is a key fundamental regulation that helps in protecting the refugees fleeing from the process of persecution. Moreover, Act 1(2) of this act is concerned with the protection of the rights of the asylum seekers and offering them food, shelter, education, healthcare and other basic amenities. Another important law is the Migration Act which is concerned with the obligation that the country must not send any refugee back from the nation and the country is responsible to save their lives from threats irrespective of their colour, creed, race and nationality (Smith-Khan, 2020). Moreover, Article 36(2) describes that the refugees and asylum seekers are also given visas to protect them from persecution. Article 91R (2) of the Migration Act relies on the fact that asylum seekers must be given significant facilities for treatment and to protect them from financial hardship that threatens the capacities of these people for subsistence. There is legislation associated with the assessment of the refugee status and providing them with a visa on the humanitarian background. The asylum seekers with disability have certain rights which the Australian Government has provided them to protect them from the hands of several harms like discrimination, racial slur and right to speech, information, education and many more.

Critical analysis

Description of the Legislation

According to the Migration Act of 1958, Australian ministers generally issue visas for refugees with disabilities. However, they can even refuse to provide if they are not satisfied after assessing the refugees through a character test. As per the Refugee Convention of 1967, Australia is concerned with non-refulgent that is none of the asylum seekers and refugees must be returned to the nation (Smith-Khan, 2020). Moreover, it is described in the Convention that it is difficult in processing and settling refugees. Under this Convention, refugees enjoy certain rights which are quite helpful for their sustenance in the hostand.

Figure 2: Asylum seekers in Australia
Source: (Tradingeconomics, 2022)

According to this law, it is important to note that refugees with disabilities enjoy a special position in international Law in recognising the facts that they once have lost after leaving their homeland. As per this convention, whenever an asylum seeker puts foot in a country they are able to enjoy certain rights (Briskman, 2020). Article 3 of this convention has stated that asylum seekers do not face discrimination in the host countries. As per article 17, refugees and asylum seekers are allowed to do work in the nations in which they are seeking shelter after their plight (Smith-Khan, 2020). Article 4 of the same convention has included a point that in the hostland a refugee can be able to propagate any religion without any restriction. Moreover, there are other articles as well in this convention as well that help in protecting the interests of the asylum seekers and refugees in Australia. It is observed from the Convention that Article 21 has given these refugees the right to accommodate anywhere in the country.

Gaps in the Policy

Apart from all such rights, the Convention also has certain gaps. One such gap is that the Convention has not allowed these asylum seekers to take the nationality of the host country in which they seek shelter. However, at times there is tightened control and patrolling over the borders that prevent the entry of asylum seekers into Australia (Roberts, Ong & Raftery, 2018). Hence, the nation must receive the refugees and must offer them all the basic amenities for their subsistence. It is also significant to note that there are meagre Memorandum of Understanding between the Government of Australia and the Non-Governmental Organisations in protecting the refugees and their interests. The Government is also not providing enough financial help to the refugees so that they can improve their living conditions and give better education to their wards.

Areas that require Development

The 1951 Convention of Refugee provides a narrow concern for the term refugee and asylum seekers with disabilities. Development required in one area, that is the Government must make certain amendments in the Convention and must allow the refugees to enter other states of the nation. Article 91R (1) talks about persecution which refers to discrimination and harm to the refugees and hence this Article must be amended for the betterment of disabled asylum seekers (Gleeson et al., 2020)

Recommendations

Following are the recommendations with which the condition of the asylum seekers and refugees in Australia can be improved:

- The Australian Government must bring more legislation that will help in protecting the rights and interests of disabled seekers and refugees in the country. The legislation must bring certain laws that will help the seekers in receiving better civic amenities in the hostland so that they can be able to fulfil their essential requirements (Sheikh, Koc, & Anderson, 2019). Moreover, legislation must be formulated so that the disabled seekers can get nationality of Australia so that they can be able to participate in the electorate procedure of the country, and receive various government schemes of educational and healthcare facilities.

- Moreover, there must be an interlink age between refugee protection and international migration. Hence, it is necessary for the Australian Government to provide better accommodation facilities and better employment opportunities to the asylum seekers so that they can earn a livelihood that will help them in fulfilling their basic requirements in life (Führer et al., 2020). The government must provide certain approaches that help in looking for suitable durable options for refugees in the arena of international protection (Sheikh, Koc, & Anderson, 2019). The Australian Government must also provide facts and advice to the refugees regarding the condition of the country so that if there will be any political turmoil in the country they can leave the country and seek shelter in another nation.

- A proper monitoring of the expatriates and the process of resettlement must be properly administered by the Australian Government so that the asylum seekers can be able to live out of the atrocious condition and can get relief from the traumatic condition of war, terrorism and violence. It is important to note that proper healthcare facilities must also be provided so that they can be able to shed their trauma (Due, Aldam, & Ziersch, 2020).

Reference List

BMP4002 Business Law Assignment Sample

Assessment Details

Individual Report (weighting) - 50 %
Words - 2000 words)
Assessment Name - Business Organizations

Learning Outcomes Assessed:

Explain sources of law, business transactions, the nature and management of a company, the concept of business liability in negligence, the vicarious liability of an employer and also individual employment rights.

Assessment Brief:

Sam operates as a sole trader (IOM Solutions) selling electrical parts to local garages. Sam has run the business for eight years. Over the last two years, Sam has found that the business has grown in terms of demand and employees. This has placed a number of pressures on Sam whilst also presenting a number of opportunities. As of October 2020 Sam, has decided to expand the business. However, Sam is not sure of the most appropriate form of business ownership for IOM solutions.

Explain to Sam, what types of business organisations are potentially available in terms of reorganising IOM Solutions, and the legal consequences for each option. Ensure you support this explanation with a recommendation of the most suitable organisation type for Sam to choose for IOM Solutions.

Secondary Research Level HE4 - It is expected that the reference list will contain between five and ten sources. As a MINIMUM the reference list should include one refereed academic journal, two academic books and case law.

Additional Submission Instructions:

You are required to submit a soft copy via “Turn-it-in UK” on the module Moodle page. The software will allow you to check your work against other material on the internet. It will also compare your work against other students work.

Solution

Introduction

There are many business laws and policies present in the UK region. There are four types of business structure present inside the UK such as sole trader and partnership and also the limited ability of partner as well as a limited company. When an entrepreneur starts a company, they need to follow some steps and those steps are very much important for the UK organisation. Choosing the right type of business is very much important to run the business for a long period. This report is focused on the business and organisation in the UK markets also, the legal business structure of UK companies that are sole traders, and general partnership and partnership also limited liability. The recommendation and IOM solution are also briefly included in this report for best assignment help.

Businesses & Organisations in the UK

The nature of management is involved several things for organising the companys people in a team and managing them properly. As suggested by Singh et al. (2019), It needs multiple levels of empathy and understanding them properly. Also, businesses care about well-being as well as society. The organisation is focused on the employee's development and gives the motivation to them to retain. There are various functions in the organisation, such as proper planning and organisation. As mentioned by Urbanski et al. (2019), the people also recruit employees as well as direct them in the proper way. The last one is to build strong communication between the organisation and employees and properly control them. In the organisation, there are three types of management levels, top and middle also lower. In this modern era, managers have several types of skills and run a successful business. The companies act (2006), according to this act parliament of the United Kingdom, forms many primary sources in the UK company law (Legislation, 2022). This act creates many modernised and simple corporate laws and creates some rules and regulations.

Insolvency act 1986, this act if a company cannot pay their debts, then it will be due. Employment act 2002 mainly focused on introducing a new friendly work culture in the UK business market and gave equal treatment to every employee (Legislation, 2022). It gives many advantages to the employees, and the last is it helps to give motivation to organisation employees and give the proper space to the employees that they can comfortably work in their company. Employment act 2008, according to this act, the compensation is provided to the employees for the financial loss in the unlawful underpayment or other non-payment options. Under this law, it helps to give the minimum wages to their employees (Legislation, 2022). Vicarious liability is a specific situation in which one party is responsible for the unlawful act which is done by the third party. The other third party also has their own liability, which belongs to their own share. As mentioned by Antcliff et al. (2021), Vicarious liability comes with the employees and employers’ relationship, which represents the respondent superior. Business liability is negligence that represents professional negligence when the professionals cannot perform their roles and responsibilities and decrease the work standards as well as breach the duty of care. As per the view of Malagila et al. (2021), it can lead to many cruises such as financial loss and can damage physically and can also lead to the injury of the customer and other employees and clients. Negligence in business cannot achieve the targets. Also, it cannot meet the high work standard. Directors have several roles in the UK organisation; they have the powers, and they need to make sure that all powers work in the right way, and they have the duty that exercises the independent judgement. Also, they have the responsibility they bring success to the enterprise, and they have the proper skills and right knowledge, which gives the success to their organisation and help to run a successful business in the UK market (Keogh-Brown et al., 2020). Directors have other roles that are needed to avoid the interest in all conflicts, and directors are to avoid the advantages from the third party. A Memorandum of association is the proper statement that is signed by all stakeholders and other guarantors, and they belong to the company. This association writes the rules for a successful running company which are agreed upon by the company's stakeholders and directors of the company. The article of the association is to create a p[roper document which identifies all rules and regulation for the organisation's purposes and describe the organisation's operations (Olenina et al., 2022). These documents make sure that all tasks are complete in the organisation and properly handle the financial statement.

The legal business structure of UK companies

Sole Trader

Sole traders run their business individually, and they are self-employed in their business. Any person can be a sole trader, and they can keep their business profit after giving all taxes to the UK government (Kindylidi, 2020). If any person faces any losses in their business, then they are solely responsible for the losses, and sole traders need to follow some rules and regulations. Solr4 traders need to maintain all business records and other financial records and need to send a tax return to the UK government every year. Sole traders need to pay a certain amount of income tax and must register for the VAT. Sole traders do not need any licence in the UK market (Yousef, 2019). A business licence is needed for businesses operating with the private security sector with the proper supervision and other surveillance. Sole traders need to follow some steps that they are self-employed, and they need to show the company name that they run the business and also show the proper financial statement which needs to be legal and follow some rules and regulations and the latest one shows the proper tax statement. Sole traders have many limitations, such as they have personal liability, and many customers do not want to deal with the sole traders; for this reason, sole traders cannot make that much profits (Fiandrino et al., 2018). Sole traders need to do proper planning for their taxation. Also, they cannot share their ideas with their colleagues, and they cannot innovate new things, which is the most liable part of the business.

General Partnership

The general partnership represents the framework that partners are equally responsible for all consequences in the business market. If the business faces some losses, then all partners are equally responsible for losses, and they can share business profits as well. Partners share all stock and equipment which they buy for the business (Cabaj, 2019). A general partner agrees with all business terms and rules and regulations and builds more policies which they agreed and runs a successful business in the UK market. A general partnership does not have any legal bodies for other employees in their organisation. As suggested by Rahman et al. (2021), general partners get the payments throughout the management fees, and they share the carries interest also distribution from the capital. If any partners are run by someone, then they follow the general partnership structure and all partners are agreed with all assets and profits and other liabilities in the enterprise. A general partnership is the simplest legal business structure, and the most important part, every partner is responsible for the consequences, including all debts and other legal factors (Tawiah et al., 2021). A business run under a general partnership is the better option to run a successful business, and it gives many advantages like this business has double resources. It has some limitations, such as general partners having some responsibility for the other partner's actions. Also, there are many disagreements that could be arisen, and general partners are liable to other partners for the company's debts and liabilities.

Partnership

There are three types of partnerships such as ordinary partnership and limited partnership also limited liability partnership. Company partners run the business under their name. Also, they can choose another name to run the business in the UK market (Kostruba, 2021). Partners need to include all partners' names and the business names. Partners need to take all the responsibilities for their business as well as need to share all profits and losses. The ordinary partnership does not have any legal existence; also, if any partners resign and bankruptcy also dies, then the business can still continue. The ordinary partnership is simple and flexible when two more people are running the business (Filatova et al., 2021). A limited partnership is made with a mixture of ordinary partners and other limited partners. Limited partnerships need to register the companies; also, they do not have the annual return also other accounts files. When partners receive the registered company, then they inform the HMRC and make sure that limited partnerships are set.

Limited Liability

Limited liability of partnership has various entities in the UK business market, and they need to register their company. Also, in this partnership, they have a minimum of two designated members, and they take all important decisions for the company and also perform important administrative duties. A limited liability partnership is the same as an ordinary partnership, and they do have not any responsibility for their actions (Akey and Appel, 2021). In this partnership, if any partners make some mistakes, then other partners will support them, and their partnership structure is too flexible than the other company. Also, all partners are to protect each other. In the limited liability, partnership partners are not liable for the organisation's debts and other liabilities. Limited liability partnership has the hybrid entities also merge with all characteristics in the organisation with all sole proprietorship. Limited liability partnership has separate legal entities from their partners who are liable for their money depending on how much amount they invest in the business. The partnership is connected with the companies and used for profit-making business. All partners need to give the proper address for their business and include all registered members of the business. This partnership needs two designated members who perform all-important duties as well as there is no limited maximum number. Limited liability can be individual or other company which can be dormant. Also, it has some disadvantages, such as partners can face many taxation rules and regulations, and it does not have any privacy. It also eli9mi8nate the partner's personal exposure and increases the financial risk.

Recommendations for IOM Solutions

IOM represented the international organisation for migration and was created in 1951; and it is the leading intergovernmental organisation which is based on the migration, and it works with the given market and intergovernmental also non-governmental partners. It has some principles which give many advantages to the migration people (Kemoli et al., 2022). IOM promotes the migration issue in the international business field and also gives humanitarian assistance that migrants need. Refugees and internally displaced people are also included in this part. IOM promotes all issues which are related to the migration of people and works on those problems, and tries to solve those issues (Garay et al., 2021). IOM management has some wide areas where they can manage the migrant people, such as migration and development and facilitating migration also, regulation migration as well as forced migration (Unbrussels, 2022). Migrant people face much discrimination in the UK organisation, and they cannot use all their advantages and also do not work properly on the work premises. In the UK, there are some acts which protect the rights of migrant people rights. Isle of Man Act 1979, This act is to help to protect their rights as well as to give them proper motivation and also help them to properly work on their work premises (Legislation, 2022). At this time, there are no barriers in the Isle of Man and the United Kingdom. Most of the company belongs to the partner company, and they have many employees who belong to different backgrounds and multiple cultures. Inside the partnership company, IOM is more appropriate than the other business structures.

Conclusion

Thus, it can be concluded that organisations have four types of market structure such as sole trader and partnership and also the limited ability of partners as well as a limited company. This report identified UK based laws which are applied in the organisation and also give some benefits to other corporations. Sole traders are specific or individual businessmen who have all responsibility for their business, and a general partnership is liable for other partners' actions. Also, partnership companies do not have any liability to other partners, and they are only liable for their invested money. Limited liability partnerships have two designated partners who perform essential duties in the organisation. Also, IOM is the most important part in the organisation, and it protects the migrants’ rights.  
References

LST2001 Introduction to Business and Company Law Assignment Sample

Legal Writing Task

INSTRUCTIONS

Please read the instructions BEFORE you start writing your assignment!

1. This assignment is worth 10% of your final mark for this subject.

2. All questions MUST be answered.

3. With regards to formatting, your assignment must be typed with 1.5 or double spacing, and with margins of at least 2cm on all sides. Size 12 font MUST be used.

4. It is essential that you cite relevant authorities (cases) wherever possible to support your reasoning in each answer. We strongly recommend students to use IRAC when answering the assignment questions.

5. Your work MUST be appropriately referenced, using footnotes. Where you state a legal principle, which comes from a case, you must provide a citation to the relevant case. If you are stating a legal principle that is covered in the textbook or lecture and which does not have a relevant case provided in the textbook, you should cite the textbook. You are not expected to use any materials beyond them lectures and the set textbook. But if you do, you must provide appropriate citations. No separate bibliography is required. Format your citations according to the citation guide at the end of this document.

6. Your assignment must be 1000 words or fewer, excluding all footnotes. You must state the word count on the front page of your assignment. (If you fail to provide this, the marker will be forced to estimate the word count, and this may lead to penalties.)

7. You must also state the details of your seminar on the front page of your assignment. This includes the day and time of your seminar, and the name of your seminar leader.

10. You can only submit your assignment once. Submission is final. You will not be able to access your Turnitin originality report. Teaching staff will be checking these reports ourselves.

11. You MUST not plagiarise. To avoid plagiarism, make sure you acknowledge all your sources with appropriate citations

FACTS

Bilal was contacted by a TV Production company about a new position of Producer that they were advertising.

In the email that the CEO sent to Bilal, the company asked about his availability and qualifications.

Bilal responded by email the same day indicating that he met the qualification requirements, was interested and available.

Bilal was then contacted by the Human Resources department and told that he was ‘just the person’ they were looking for. The company told Bilal they would pay for his relocation costs from Sydney to Melbourne.

On the basis of that discussion, Bilal declined the lucrative position he was considering in Sydney and arrived in Melbourne. He preferred to live in Melbourne because most of his extended family was located here.

He opened his email when he arrived in Melbourne (his email had not been functioning for the last week properly as his inbox was overfull and he had been too busy to have it fixed).

An email had been sent by the company one week ago but due to the malfunction of his inbox Bilal was only able to read it now. The email indicated that the position Bilal had come to Melbourne for was no longer available. Bilal was extremely upset and told the company that they had breached the contract Bilal had agreed with him.

The company stated to Bilal that in their view that no written contract existed. They admitted that there had been some oral discussion and email exchanges but denied that any contract was made between the parties.

The company indicated that if Bilal wished to work for the company a more junior position, then the role of ‘assistant’ producer was available. The pay and hours were much less than the original position.

Bilal wants to sue the company for breach of contract. The University claim no contract ever existed and that the parties had only engaged in discussions.

QUESTION

Please advise Bilal whether or not a contract existed between him and the company and what defences that company might put forward.

Solution

Issue

In the given scenario the legal issue has been identified is the existence or entering of any contract between Bilal and TV production Company or any breach of contract has been made by Company. The issue is also to identify if the communication of revocation has been effectively communicated.

Rule

According to Australian Contract law , there are some key elements for formation of contract. The key elements are offer, acceptance, intention to create a legal relation, capacity to contract and sufficient consideration. The acceptance of the contract can be orally, in writing, by performance such as in unilateral contracts and must be communicated to offeror. The means of communication for acceptance of offer is phone, SMS, email, post, or any method specified by offeror. However, acceptance does not take place when there is silence, inaction, counter offer, or no response has been received to the offer. Some invitations such as advertisement, auction bids, shop displays are invitations to treat but cannot be called as offer. Advertisements are invitation to others to make an offer for assignment help.

Furthermore, a mental decision to accept is not sufficient and acceptance need to be communicated. The general rule of agreement states that an agreement is only concluded when communication of acceptance has been received. In the case of using instantaneous mode of communication, the acceptance is said to be received even when it is not read by offeror. There is need to use clear language to call an agreement to be accepted and if no clear language is existed then effective and fast method of communication is effective.

As in the case of Crown v Clarke High court, Australia, the issue was acceptance and valid requirement for acceptance to be there in response to offer. There was no agreement formed between parties as the information was given but not in response to the offer.

In the case of Byrne & Co v Leon Van Tienhoven & Co , court held that offer can only be revoked when revocation is directly communicated to offeree except postal communication. An offer can be withdraw before accepted and it is not relevant if the offer is expressed to remain open to be accepted in stipulated time or not unless the promise includes any consideration.

Application

Email has been considered as instant mode of communication. Production Company used the email as mode of communication of non-acceptance as no such method of communication has been clarified between parties. There are no universal rules apply to every cases and need to be resolved by checking the intention of the parties to the Contract . The law clearly says that the acceptance is always required to be clearly communicated. In the case Production Company did not accepted the offer as only discussions were going on. Production Company only showed the advertisement of producer position as a treat to make an offer. TV Production Company communicated their non-acceptance through email which was instantly received by Bilal but was not read.

A contract will only be formed when both parties accepted the contract. Company was only mentioning its terms and conditions but did not accept the offer. However, Bilal communicated his acceptance of the offer that he is interested and available but still Company’s acceptance was pending. The non-acceptance of the offer has been sufficiently communicated by Company to Bilal but he could not read the email due malfunctioning of his email. As per specific rule of acceptance the communication of acceptance through email is said to be received immediately irrelevant if the email has not been seen.

The contract is said to take place when all key elements have been existed to form the Contract . The parties carried intention to enter into contract where Company advertised for the new position of producer and Bilal applied for the position respectively which was a treat to invite offers. Though, both parties were capable to legally enter into contract but, the acceptance was only from Bilal side and Company did not accept the offer either orally or in written as the human resource department of the Company only explained the terms of the offer to Bilal. Bilal assumed the acceptance of the Company in mind and took action by declining position in Sydney which does not form a valid contract. There is no agreement took place between Company and Bilal as human resource department of Company was only performing their duty to provide information but that was not in respect of the offer.

Email is direct and instant communication and revocation will be considered as valid. Production Company sent the email a week before but due to malfunctioning of email of Bilal for a week, Bilal could not read the revocation. However, Company was successful to directly communicate to Bilal conveying an intention to not bind by offer is sufficient in eyes of law.

Conclusion

In the given case, the contract has not been conducted as there was no acceptance and consideration. Bilal was invited by Company to offer and Company discussed terms and conditions with Bilal. However, Company decided to revoke the offer and communicated Bilal through email which was not read by Bilal. Company did its direct communication of withdrawing of intention to get into contract and thus no contract could be form. There was no acceptance and agreement thus there was no contract between Company and Bilal except discussion of the terms and conditions of the Contract. Bilal did not wait for Company’s acceptance and assumed in his mind that the contract took place within such oral and written discussion of terms of condition. A contract need to be valid will all key elements and were missing in the eyes of law. Therefore, there was no valid contract and no breach of contract by Company as alleged by Bilal.  

Bibliography

Australian Contract law, 2019. Overview of Agreement. [Viewed 25 March 2022]. available at https://www.australiancontractlaw.info/law/agreement
bosslawyers, 2019. Formal execution of contract. [Viewed 25 March 2022] https://www.bosslawyers.com.au/will-contract-not-formally-executed-will-considered-binding-concluded/

Legislation
Australian Contract Law
Legal Cases
Crown v Clarke (High Court, 1927)
In the case of Byrne & Co v Leon Van Tienhoven & Co [1880] 5 CPD 344

LAW301 Business and Corporation Law Assignment Sample

Assessment Task

Read the following case scenario and answer the question -

You are an intern in the corporate office of MicRonalds Pty Ltd which runs fast food outlets in different cities around Australia. You have received instructions from Kylie Eagle, the company’s corporate counsel to write a Memorandum of Advice in relation to potential claim by Lizzy Grant, a customer who was recently injured in their MicRonalds’ 24-hour city restaurant.

In the early hours of the morning on 4th January 2022, Lizzy Grant was on her way home from a long and tiring night shift. She decided to stop at the MicRonalds’ 24-hour outlet at 5:30 a.m. to purchase some breakfast. While at the restaurant she ordered her food and as she was waiting, she decided to use the toilets at the far end of the outlet. They were usually very clean. As she approached the toilets, she saw a sign that had been placed at the entrance and which read “Caution: Wet Floor. Cleaning in progress”.

She did not wish to wait for the cleaning to be completed and she went into the toilets. When she was leaving the toilets, she slipped on the wet floor and fell. She suffered a broken wrist and a bruised head. She was not able to return to work for eight weeks. Kylie has informed you that the cleaning of the restaurant toilets on that morning was being done by one of the employees, Lance, who had stepped away to get a dry mop to complete the cleaning. He was also in charge of spot cleaning throughout the day. Lizzy has now threatened to commence proceedings against both MicRonalds Pty Ltd and Lance.

Kylie would like you to write a memorandum of advice on whether there are grounds to hold

MicRonalds Pty Ltd liable. Required With reference to relevant legal principles, use the IRAC legal problem-solving approach to draft a suitable Memorandum of Advice that addresses the nature of the claim that Lizzy Grant may make against MicRonalds Pty Ltd and whether in fact they can be held liable in any way.
Ensure you incorporate relevant case law principles and case law support in your brief?

Solution

1. Legal Issue

Lizzy Grant is a customer of MicRonalds. After a long night shift, Lizza Grant decides to stop at the MicRonalds for breakfast. When Lizzy Grant was in the restaurant decided to use the toilet; however, there was a caution sign that the floor was wet and cleaning was in progress. However, Lizza Grant neglected the warning sign and slipped on the wet floor. The issue is whether Lizzy Grant can claim damages from MicRonalds Pty Ltd and Lance.

2. Relevant Law

In the case of Arabi v Glad Cleaning Service Pty Limited (2010), the plaintiff fell and slipped on a pedestrian ramp in the shopping centre at Bankstown. The plaintiff's right knee was injured after the accident occurred. The plaintiff's evidence is that they were talking on the phone while walking up the ramp. It is an occupier's duty to take reasonable care in the commercial premises to avoid a foreseeable risk of injury for both the lawful entrant and their own safety. In this case, a proper system of cleaning and inspection should be considered as per section 5B(1)(B) and Section 5B(2) of the Civil Liability Act 2002, with other relevant things. The court held that if the plaintiff proves the defendant's liability in case of maintenance of insufficient duty of care, then this case will be remitted to the district court for reassessment.

In the case of Vairy v Wyong Shire Council (2005), the High Court dismissed the plaintiff's appeal as the possibility of a man being hurt while jumping from the cliff was not beyond the realm of possibility (foreseeable risk). It would be unreasonable to expect the Council to post warning signs at every location within its jurisdiction from where such an accident may occur. Because of its potential for confusion, the idea of "obvious risk" is not to be utilised to adjudicate concerns of breach of duty. Injury predictability must be determined prospectively, considering the state of affairs prior to or during the damage.

In the case of Sleiman v Franklin Food Stores Pty Ltd (1989), the plaintiff went shopping with family in the local shopping centre. The plaintiff found a special product while moving along to the shopping centre. When the plaintiff reached the refrigerator slipped and fell on the floor due to water spillage. The plaintiff's feet were badly injured because the accident occurred. The court held that the occupier breached the duty of care. This incident occurred at a shopping mall, and the plaintiff was a customer. It was the defendant's duty to prevent harm on the commercial premises.

3. Application of the relevant law

Based on the case law mentioned above, MicRonalds Pty Ltd. is not liable for the damages as no negligence was determined under section 5B subsection (1) (a) and (c) of the Civil Liability Act 2002 No 22. The caution sign was placed by Lance, responsible for cleaning the toilet, taking the necessary precaution against the risk of harm under section 5B subsection (2) (a). Moreover, section 5C subsection (a), (b), and (c) further substantiates that the burden of taking precaution, doing an act and taking action to avoid the risk of harm was present in the case. It can be further stated that Lizzy contributed to negligence under section 5R subsection (1) by ignoring Lance's warning sign at the toilet's entrance. Hence, Lizzy was aware yet failed to take precautions against obvious risk under section 5F subsection (2) and section 5G subsection (1).

4. Conclusion

In conclusion, Lizzy cannot claim damages as the incident occurred due to her negligence. 

References

Legislation
Civil Liability Act 2002 No 22
Cases

Arabi v Glad Cleaning Service Pty Limited [2010] NSWCA 208
Sleiman v Franklin Food Stores Pty Ltd [1989] Aust Torts Reports 80-266
Vairy v Wyong Shire Council [2005] 223 CLR 422

LAW2442 Commercial Law Assignment Sample

Background

You are a graduate working in the procurement and logistics department of Wineglass Bay Seafood Pty Ltd – a company specialising in supplying fresh seafood directly to restaurants. The company also sells seafood direct to the public at its marine farm situated on the east coast of Tasmania and has three outlets at nearby towns. In your interview for the graduate position, you highlighted your knowledge of business law completed as part of your RMIT degree. See attached memorandum from your team manager, along with an invoice, company search extract, and relevant email correspondence.

Task

You are required to address your team manager’s questions in the form of a memorandum of advice. Refer to the RMIT Learning Lab resources for advice on the structure.

Wineglass Bay Seafood
Memorandum

Disputed Purchase – Launceston Printing and Design

Jemma, our outlet manager in Bicheno, has received an invoice from earlier this year. It appears there is a disagreement between her and a signage company about whether or not things were properly ordered or not. The dispute is above $5,000 so Jemma has escalated the matter to us at head office in line with company policy. I am away on leave next week. In my absence, I am tasking you with reviewing the enclosed materials and providing me with a memorandum containing your critical analysis in response to the following questions:

- Is there a valid contract for the banners?
- Is there a valid contract for the outdoor sign?
- Is Wineglass Bay Seafood bound by the so-called “terms and conditions”?
- Are there any other legal issues arising from the materials?

Please give legal reasons for your answers and keep your analysis to a maximum of 1,500 words. I need this back no later than Monday 12 September 2022, so that I have enough time to consider whether to pay the invoice or send it to our lawyers. If you have any questions or need further information to complete your analysis, please just include this in your memorandum – don’t bother Jemma with any questions yet. If any other relevant information comes through while I’m away, I’ll forward it to you.

Solution

To
Ms Jemma Fishburne
Senior Manager
Customer Complaints
Date: 10th September 2022

Dear Ms Jemma Fishburne,

R.E: Customer Complaint - Jemma Fishburne

We are very thankful for the email dated 29th August 2022, as I have viewed all the emails and factors related to the case. The impact of the matter is very much interesting as the main agenda is the fault of both sides. Though there are many factors that are needed to be looked into for the evaluation of the cases and the fault from both sides and the impact are necessary for the improvements of the study.

1. Is there any valid contract for the banners?

In the case study, Ms Jemma offered to build a banner for her organisation Bicheno for seafood. But the case was disturbed when you cancelled the order. Our company has charged around $5000 which is very high in case of the development of the laws. I personally considered all of the malls that have been provided to you by is and there are huge mistakes from our sides too. But the main impact is generally from your side as there are many factors that are effective for the disclosure of the case.

1.1 Scenario

There are many issues that are being created from both sides. As per the email from you on 2nd September 2022 two of our boys have left a huge hole in the preparation of the banner and they left the banner incomplete in the section which is a huge mistake. On other hand, you have suddenly cancelled the order which affected our company as the improvements are legally effective for the matter of the different aspects. These mistakes are very effective from our point of view and it needs to be resolved by us properly.

1.2 Regulations and Laws

There isn’t any valid contract for the banners but the Australian contract law is the main factor for the contract violation and the violation of the contract needs to be impacted by the registered factors for the implementation in this case. The case law of “A v Hayden” in 1984 is the main factor for the contract violence which is registered under “156 CLR 532”. It is a similar case for assignment help as per the case including the case study. In this case, members of “The Australian Security Intelligence Services” acted beyond the law during the training and they suffered punishment for this case . In this case, the company should get the advantage as you violated the contract. The case study of “ACCC v, Quantum Housing” filed in 2021 under “FCAFC 40” stated that Quantum housing has violated the law and contract of NRAS in dealing with the investors. It is very effective for the country as the country delivers a huge impact on the chase . This case also has similarities to this case and the order should support the company.

1.3 Conclusion

The discussion stated that there is no legal contract for the banners but the contract needed to be fulfilled at any cost either by any of the sides in the country. Here the company gets the advantage as the contract is violated by Ms Jemma Fishburne.

2. Is there a valid contract for the outdoor sign?

From our side, the contract will be fulfilled but the contract violation is generally caused by you so there is no violence that you can make or cause for the filling of the case as there are no issues from our side.

2.1 Scenario

The email from September 2 also stated that the two workers from our company had violated the contract and had made a huge impact on the company's financial aspects. The two workers made a huge mistake by not sealing the whole for the banners which resulted in the destruction of private property in this case.

2.2 Rules and Regulations

In this context, Australian contract law will be also applicable as the two workers did not complete the task for the day and left the work unfinished. They have paid for the task to date and still, they left the task unfinished. There are many similar case laws related to the factor including the case of “Australian Competition and Consumer Commission v Kimberly-Clark Australia” which is filed in 2019 under “FCA 992”. In this case, Kimberly-Clark Australia has faced a penalty of $200,000 for misleading consumers . In this concept, our company also misled Ms Jemma and this is very effective for you as you can file a case and the fine cannot be paid for the penalty in this concept. “Mackie v Central Coast leagues Club” is the case that is very much relevant to the case under the section of “NSWSC 960” in 2010. In this case, the company has to face a huge amount of penalty for damaging the property . In this case, The Company also destroyed the whole property for which the company has to pay a huge amount of fine to Ms Jemma Fishburne.

2.3 Conclusion

The discussion generally delivered the vision of Jemma Fishburne for which the fine is not needed to be paid. The case studies that are discussed here are supporting Ms Jemma Fishburne as the company could not provide the proper system of methods for the development of the article. In this context, all the cases are supporting Ms Jemma Fishburne.

3. Is Wineglass Bay Seafood bound by the so-called “terms and conditions”?

In this case study, several “terms and conditions” the promise has been made by Wineglass bay Seafood has not been fulfilled as the fine has not been paid by Ms Jemma. There has been an issue in building a banner by this company. In this case, Jemma has not been able to keep the promise and hence, an issue has occurred.

3.1 Scenario

Several issues have been raised in the case of terms and conditions by this specific company. According to the email that has been sent on August 19, 2022, there has been an observance of liability in the case of this particular company. The appreciation of prompt payment that will be done by Jemma, has been done by Accounts Department of Launceston Signs and Designs. In the email of the above mentioned date, it has been clearly mentioned that a force will be exerted on the company for the consideration of the legal options.

3.2 Regulations and Laws

It is quite difficult in the case of the company to maintain the terms and conditions as a huge amount of charge has been exerted on them. An example of this can be taken from the law of “ ACCC vs LG Electronics Pty Ltd”, that has been registered under ‘FCAFC 96” there has been an issue of misleading conduct. In addition to that, there has been an issue of acceptance of the quality by the consumers. Hence, LG Electronics has to maintain terms and conditions to guarantee the quality of its products to the customers of Australia. However, in this case, though hard attempt has been made by ACCC, the judgement of primary judge has not provided any chance for it to exert the terms and conditions in the case of LG Electronics even when it has been prepared for it. Similarly, like LG Electronics, there will be a fair judgement for Wineglass Bay Seafood so that it can avoid the so-called terms and conditions.

3.3 Conclusion

From the side of the company, an effective attempt will be made to fulfil the demands of the Launceston Signs and Designs. With the help of this, the position of the company will not deteriorate.

4. Are there any other legal issues arising from the materials?

There has been a presence of legal issue in the case of the contract as there has been a presence of denial of paying the invoice. This email has been sent by Jemma to the Accounts Department of Launceston Signs and Designs.

4.1 Scenario

It has been clearly mentioned by Jemma that she will not pay any sort of invoice. The causes that she has mentioned in the email of 15th August, 2022 is that order of the banners that are the pull up in nature has not been done. She has made it clear that there has been a delivery of order and she has directly said that the order can be taken back by Launceston Signs and Designs as per its desire. Cancellation of order of outdoor sign has been done and a disagreement has been mentioned by Jemma in the case of delivery fee.

4.2 Regulations and Laws

In this case, there can be a case that can be filed by Launceston Signs and Designs on Jemma for not giving the payment of invoice and no contract will be made between them. In addition to that, she has directly uttered that she is responsible for the delivery fee. As per the case of “PNG vs Leahy”, under 105 CLR 6 failure has been observed in the case of PNG. As per the decision of High Court, no contract will be further made between them.

4.3 Conclusion

From the side of Jemma, there is a requirement of payment of invoice. There has been a requirement of getting contract for the good reputation of the company in future.

Reference List

LML6003 Migration Law Assignment Sample

SCENARIO

You are a registered migration agent and operate a busy and popular practice. You rely heavily on your client co-ordinator, Anna, to organise your consultations every day and to obtain some brief information about the clients you are scheduled to see. Anna has a very good way of eliciting information from the clients, ensuring they proceed with the booking, but she is careful to never provide any immigration assistance in the process. You look at your calendar and you only have one appointment for today. You look at an email from Anna and it states the following:

Cheryl Lim from Singapore is coming into the office at 1pm today (please remember you have a CPD seminar from 12 noon to 1pm).

You may recall Cheryl as you helped her with obtaining a Student Class TU subclass 500 visa last year to complete a Bachelor of Laws at Victoria University. She has completed 6 months of this course. Cheryl completed the Graduate Diploma in Migration Law at Victoria University and decided at the time she wanted to pursue a law career.

Cheryl is coming into the office today and she wants to know whether she can change her course to a Certificate IV in Cookery instead at Swinburne University in light of her recent passion for cooking which she developed during the lockdown. I have attached her visa grant notice from her file.
You open up the visa grant notice and note that conditions 8105, 8202, 8501, 8516, 8517, 8532, 8533 and 8534 are attached to her visa. Her visa is valid until September 2023.

QUESTION

Prepare a checklist of issues, including visa options, that you would consider in advance of your meeting with Cheryl, based on the limited facts. You must support your answers by reference to the specific legislative provisions.

SCENARIO

You are a registered migration agent. You receive an email from a client, Stan, who wants to meet you for advice about his migration matter. You recall Stan’s name as you met him and his wife very briefly once at a party you attended, and they were very friendly and seemed to be completely smitten with each other. Your receptionist books an appointment for him to meet you at your office at 11am. You decide to review his matter and prepare a memo before you meet with him. An extract of the client’s email is below. “I hope you remember me, I met you at Susan’s birthday party. Susan recommended that I contact you. I think you may have met my wife, Cindy too. It is probably best I give you some background information about Cindy and my relationship. I know many people commented that our relationship was picture perfect, but sadly it is not. I met Cindy in my hometown of Sicily and yes I instantly fell in love with her. I arrived in Australia on a temporary Prospective Marriage Class TO subclass 300 visa about one year ago having been sponsored by Cindy, an Australian citizen. We had a beautiful wedding with a small number of family and friends. Cindy’s brother never liked me, and he heavily influences Cindy’s actions. One evening during a family dinner, we had a disagreement over the results of a soccer game. As you may assume, being Sicilian, I am a passionate supporter of my team. Things escalated and he punched me for no reason other than expressing my views about the referee’s decision which resulted in my team winning. After this, Cindy appeared to take her brother’s side and her temper worsened each day and I was subjected to constant verbal abuse and sometimes physical abuse. Cindy would lose control of her temper over things as minor as leaving the milk out of the fridge for more than 5 minutes whilst I made my coffee. A few weeks ago, she smashed a bottle over my head screaming at me that she hoped that would knock some sense into me. I started bleeding and went to the local doctor/general practitioner (GP), who told me I needed to go to the hospital to get stitches. When the nurse asked me what happened for the medical report, I said that I had accidently tripped over. I did not want to get Cindy into trouble, and I was also fearful of what she and her brother would do if I told anyone what had actually happened. There was a very kind nurse who insisted I call a friend of her’s named Steve. I called Steve not really knowing why, and he was a great support to me as a friend as he had been through a similar situation in his homelife. I found out last week he is also a social worker. Steve encouraged me to let other people know what was going on, so I told Susan who told me to inform you. Cindy’s behaviour is escalating, and yesterday I decided to leave her forever. I am still awaiting a decision on my Partner Class UK/BS subclass 820/801 visa and am unsure what my current visa status is as Cindy has all my immigration papers. I really want to stay here as I feel like there are some wonderful people in this country and after COVID, there are more opportunities here than Italy. If possible, I would like to visit my family in Sicily for a week just to recoup.”

QUESTION

Prepare a memo in advance of your meeting, outlining the following:

(a) What is Stan’s current visa status and can he travel and why?

(b) Is there is anything Stan can do to seek permanent residence and explain the steps required and what additional information you would require to support the application? You decide to do some additional research and come across the following case: Thaworn v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2133 (27 August 2021).

(c) What are the implications of this case, if any? You must support your answers for assignment help by reference to the specific legislative provisions.

Solution

Several issues may occur in case of the meeting that will occur with Cheryl as a Registered Migration Agent. As per the “Visa Grant Notice”, several conditions have been attached to the visa of Cheryl. The checklist of issues that have been made in accordance with the issues for the visa of Cheryl is below:

As per the issues that have been briefly explained in the checklist, Cheryl will have to acknowledge the issues with respect to the c conditions that have been attached to the visa that she acquired. Condition 8105 has been applied when there has been an absence of any individual in Student 500 visa. The demand of Condition 8105 is that the holders of student visa can work only less than 40 hours each half month at the time in of their course which is within session. This is the principal condition that has been known by several students.

However, several titbits are still present that are essential for every student to know. A permission has not been provided to the student who is the holder of visa to work till the course that has been done by them has commenced and has been within session. The student who is the holder of a visa cannot have the permission for working un limitedly when there has been an absence of their course within the session. The student who is the holder of a visa by whom master has been commenced by research or by whom there has been a persuasion of doctorate course, can be capable of working for unlimitedly after the commencement of research course which is postgraduate.

Therefore, it can be said that Cheryl Lim will not be able to complete any other course that she has chosen for as she has to complete the course of “Bachelor of Laws at Victoria University” as per the titbits of Condition 8105. This comes under the” Migration Act 1958”. The restrictions that come under this Condition will not allow Cheryl to do any sort of work in Australia before the completion of “Graduate Diploma in Migration Law at Victoria University.” While considering the second condition that is Condition 8202 on the student visa, any breach of this specific condition makes it vulnerable in the case of student who possesses the visa to its cancellation.

If there has been an occurrence of cancellation of visa, it will be quite difficult in case of that particular student who possesses the visa and has done breach of Condition 8202. This condition is important in the case of an entire student visa as per the” “Migration Act 1958”. There should be an enrolment of the student within any sort of registered course there should be an enrolment of the student in any sort of registered course which possesses same or higher level as compared to registered course in the case of which visa has been granted to the student.

There should be the maintenance of satisfactory attendance by the student in the course that has been pursued. In addition to that, progress of course in the case of each period of study should be maintained as per the requirement of the education provider of the student. There may be a difficulty while applying for Student Visa 500 as there has been an absence of enrolment in registered courses by Cheryl. Condition 8501 specifically states that there has been a requirement of health insurance in case of the student who has to apply for a visa.

Exact wording that this condition possesses is that there should be a maintenance of adequate arrangements by the holder in the case of health insurance while holder resides in Australia. The association of visas with those visas that are working are “The Temporary Work (Skilled) subclass 457 visa, “The Temporary Graduate Subclass 485 visa and “Most temporary working visas where the primary purpose is to work”. In the case of Cherlyn, the second working visa has been important. This is due to the matter that there has been a desire of change in the course by Cherlyn.

This is against the rules of acquiring a visa in the case of the student who wants to pursue higher studies in Australia by switching from one course to another. In the matter of Condition 8516, there has been a requirement of satisfaction of either the primary, or the secondary criteria as per the requirement of the case so that the visa can be granted. In the case of Cherlyn, she has to meet the requirements that are essential for the switching of one course to another and from one University to another in Australia.

In this case, the requirement is that Cherlyn should possess Student Visa 500. With the help of this, she is able to change her course, however, after completion of the first year of that course that has been pursued by her. Especially, if there has been an initial satisfaction of criteria by any student in the grant of Student Visa 500, then criteria cannot be met on time. However, when there has been a satisfaction of criteria later, there has been a continuation by the student in the satisfaction of criteria. The satisfaction of criteria has been associated with the issues that may be encountered at the time of issuance of visa.

Condition 8517 has been imposed on the visa holders who are students on the student visa that they possess. In the case of Cherlyn, there has been an applicability of Student Visa 500. There must be a maintenance of adequate arrangements by the holder in the case of education of the School Age-dependent of that holder who lives in Australia above 3 months. In this case, adequate arrangement refers to proof of financial stability. As per the Condition 8532, if the age of the holder of student visa is not 18 years, then, the holder has to reside with parents whose age is 21 years and have a good character.

Arrangement of accommodation, general wellbeing, as well as, support of holder should have to be approved by education provider possessed by the holder. There should not be any entrance by the student in Australia before nominated date given with the help of education provider. Hence, age of Cherlyn has to be checked otherwise there may be an issue in entering Australia as per this condition. As per the Condition 8534., only Subclass 485, 590 and Protection Visaswill be granted. In the case of Condition 8533, no issue will be there for Cherlyn.

Question A

To Immigration council
From XYZ
Date: 05/09/2022
Sub: Memo for requesting permanent residency in Australia

Respected sir/ madam

I would like to inform you that I am very happy to submit this reference letter that I am able to immigrate to Australia. I met Cindy in my hometown of Sicily and yes I instantly fell in love with her. One evening during a family dinner, we had a disagreement over the results of a soccer game. r. I am still awaiting a decision on my Partner Class UK/BS subclass 820/801 visa and am unsure what my current visa status is as Cindy has all my immigration papers. I hope that will you feel free to contact me with any additional questions or concerns.

Yours sincerely

XYZ

In this case, Stan cannot be able to travel as the current visa status has been dependent upon the “Form-I 765 “. In this case, the person who wants to travel to any other country from Australia to any country has to carry the immigration papers with him or her. However, in the case of Stan, there has been a difficulty in carrying those papers as they are in the hands of his wife. It will be quite difficult for him to be in another country as there has been a continuation of conflict in the middle of his wife and him. In addition to that, as per case scenario, it has been understood that the brother-in-law of his wife, Cindy will not allow her sister to give the papers to her husband. This may occur as he may want to harass Stan in case of visiting Sicily with his family. If Stan is able to visit his family in Sicily, then, the matter of conflict in the middle of both his wife and him may get sorted out. However, the brother of Cindy has not no intention to sort out the conflicts that have already existed in the middle of them.

In addition to that, there may be a possibility of filing a case against Cindy and her brother by their family members of Stan. This may happen as Stan has been tortured both mentally and physically by his wife and his brother-in-law regularly. Moreover, in order to get the immigration papers back from his wife, Stan has to file a case against her under the “Australian Visa Classes''. However, Stan does not want to do that and hence, it will be troublesome for him to travel to Sicily and to meet his family for recouping.

Stan cannot be able to travel as the visa about which he has given the description allows both the partners to travel together. Hence, in the case of Stan, it is mandatory to take Cindy to the palace where he wants to and has to travel. In addition to that, another condition in the case of this visa is that there has been a requirement of the permission of the partner for traveling to any other part of the world as the partner has equal rights as the holder has. In the case of Stan, Cindy will definitely not provide any sport of permission to meet to family who reside in Sicily. Moreover, there has been an issue in the case of Stan if he has a thought of asking permission for travel from Cindy. The issue is that Cindy will get to know the fact that there will be a matter of recouping in the mind of Stan with his family which is the only reason for him to meet his family. After knowing the fact, Cindy will not give permission to Stan which will become problematic for Stan to meet his family members in future.

Question B

There are three ways to get a permanent residency: the provincial nominee program, the express entry system and family sponsorship, which is the simplest way to get permanent residence in Australia. Stan can do any of them to get a permanent residency which is registered by an individual migration agent. The express entry system has initiated in the year 2015 which also required job offers. During the same time, migration agents are checking the eligibility which leads to permanent residency. According to section 318 of the migration act, individual applicants are lawfully admitted to the country when their residence status is more than 5 years. Apart from that, the eligibility criteria are checked by the migration agent and after completing the criteria they are eligible for the visa confirmation. During the same time, designated authorities are trying to evaluate several PR processes in the processing time.

Required Steps:

In order to, get permanent residency in Australia migration programs and some other rules are necessary which have to be fulfilled by the individual applicants. Applicants have to be more than 45 years and the work streamand applicant have to pass the English language test to get a proficiency certificate.There are five crucial steps to getting a permanent residence which is listed below:

Figure 1: Process of migration law
(Source: Stevens, 2019)

Skills assessment

In order to, ensure the work experience and educational skills of the applicants' a skill assessment is mandatory. Each occupation has different skills such as trade occupation, engineering occupation and migration agent can check the criteria as per requirement . Educational and work experience are required which have to pass by the applicants. Apart from that, employment skill assessment is a crucial stage that has to be passed for permanent residency. An individual applicant can apply for lawful admission to the country if their residence has been in the country for over five years, according to section 318 of the migration act.

Visa requirements

A specific test is crucial for individual applicants who are nominated by the regional nominated visa. The territory government is choosing the nominee for a visa holder and who has to be filled these roles. There are some important steps of visa requirements such as occupation lists, family stream, and work stream or other options which have been considered by the Australian employer sponsorship. A skills assessment report has been tested during the application and government-certified authorities are examining the health and character of the applicants. In order to, pas the key requirements are mandatory to get permanent residency in a specific country.

Occupation

Occupation is the important and first step which is required for permanent residency which is educational and work experience. All positive skills are required, which are checked by the government authority. The general skilled migration visa is eligible after identifying which occupation matches at a certain time. The legal residence status is five years for permanent residence which is not applicable not all citizens. LPR (Lawful permanent residence) isAlso known as who is lawfully authorized to permanently live within the country.

Lodge visa application

After receiving the state nomination actual visa application through the immigration account government are trying to checking the current status of applicant. All the personal documentation such as work experience, and educational documents are the main evidence that is needed to provide to lodge a visa application which is considered the final application.

Additional information

Besides the application history, some additional information is also required to support individual applications such as relocating to the city, and company-based information. Educational criteria are required for a personal reason which is additionally supporting the individual documents. Sometimes professional certificate references from colleagues as well as technical and language skills are also important. Apart from that, it is the important conditions that are considered by the holistic approach that sometimes secure a position which is represented by accurate professional certificates. In 2015, the express entry system was launched, and job offers were also required. Client testimonials are positively supported by the individual who is considered a formal recommendation for full-time employees. Sometimes formal details of the individual clients are used as legitimacy proof which is important to develop the professional careers of the applicants.

During the same time, employment duration is mandatory as an additional information system which is effectively leading to a successful work permit. The minister for immigration, citizenship, migrant services and multicultural affairs first respondent administrative appeals tribunal is the second respondent which is evaluated by the Migration act 1958. The ministry for implications and multicultural affairs is trying to identify the same reason such as good character, which comes under the refugee review tribunal of 1998. In order to, seek permanent residency this additional information is required for individual applicants and there are explain some crucial steps to identify the progress of the permanent residency.

Question C

Eligibility to apply for citizenship

The major benefits of being a permanent resident such as there are no boundaries to keep renewing a residency permit, and continuously checking the legal status. Apart from getting confirmation applicants easily access the job market, full-time location in the country as well as the right to return to Australia. Three are some major benefits of social security such as employment benefits, and an advantage during sickness, which is comes under the social security act of Australia. Unemployment is considered a major difficulty for the individual residents as well as visa category overseas individual skilled workers. The industrial laws are equal for the permanent resident, compensation benefits are easily got for the same reason and more job opportunities in the future. During sickness, entitlement to Medicare is considered a crucial facility for permanent residents.

Access to the “primary and secondary government scheduling” is not applicable for the temporary resident however that might be depending on the government or the other migration authorities. The implementation strategy has been considered by the government of the country after confirming the permanent resident. This implementation strategy has been considered by the government or migration authority to identify or improve the major benefits. Skilled workers are trying to identify the major benefits which are engaged by employer sponsorship. As a permanent residency, there are some pathways that have to be followed by the individual resident that can able to maximize the future scope. Under the refugee review tribunal of 1998, the ministry for implications and multicultural affairs is trying to identify the same reasons under the category of good character.

Eligibility to receive future scope

There are some legal pathways that have to be followed by the applicants to get a permanent president. Skilled workers are required to identify the benefits which areneeded to be followed by the resident such as the legal pathway which is mandatory to receive future scope from the government. The major benefits are required to involve the implication strategy and that need to be followed to improve the relationship among the legislative committee. Apart from that, the eligibility criteria have been explained for permanent residents and that is able lead to get economical opportunities over the country. The future scope is received from the government is to improve public service skills during the same time. The final implications are considered when a resident is permanent or involved in the multicultural society which is contributed to a wonderful living experience.

For the permanent resident, several legal pathways have to be followed by the individual and that can able to identify how to maximize the major benefits and government has complete the specific process after issuance of the permanent visa. A skilful person is trying to identify all the opportunities which have been provided by the government and that are needed to improve the business benefits of the country in the future. There is some time needed some time to identify how to maximize future opportunities after getting permanent residence. Individual testimonials are considered formal recommendations for full-time employees when they are positively supported by the client. Some mandatory registrations are defined by the state authorities and that can able positively lead to future benefits. In order to, get permanent residency some internal authorities find out the major benefits which are usually required for future opportunities.

Improved multicultural environment

A multicultural environment is able to be identified by the permanent resident and that can be involved by the individual governments. A multicultural environment is required to entertain individual residents which are provided by the government after completing the migration process. During the same time, higher education loans have been guaranteed for the permanent resident which is including basic benefits to encourage individuals.

Reference list

LAW3700 International Trade Law Assignment Sample

Topic: China — Anti-Dumping measures on stainless steel products from Japan

- We have write on international trade law as well which how wto applies on that and all, and china-japan and southkorea are already on a free trade agreement.

- Please include things about the free trade agreement between china japan and south korea

Wto rules and regulation for anti dumping International trade policy regarding antidumping Which economy will be impacted more (And last but not least, discuss all the things related to agreement and antidumping and how will it affect, please i am just tensed thats why i am more emphasizing that all the crucial info is there for international trade law, have a look on research paper as an example how the info is presented)

Requirements

1. I have submit a research paper, I have to write on trade law topic which includes atleast two countries and their should be a product on which we have to write about.

2. There is sample which was submitted by another student on the topic please let me know, if you can finish it as i cant afford to get less than 70% on the paper. Please see there should not be any plagiarism.

3. Please ensure there is some kind of product or service involved in this trade law with appropriate reference and citing. Please ensure there is minimum page requirement of 8 pages so make it atleast 10 pages worth of extensive quality writing, with appropriate reference and in-depth analysis of trade law instruments.

4. ensure the apa guidelines and other paper format mentioned in this

5. And please make sure that the references should be included in the footnotes of the
paper

Solution

Introduction

In the following research paper for assignment help the discussion about the international trade of the dumping of stainless steel between two major countries Japan and China had been performed. The international trade law between both the countries has been discussed. Also, FTA known as Free Trade Agreement that has been covering three major countiries South Korea, Japan and China has also been mentioned. The WTO rules and regulation for anti dumping of stainless steel has been described with the overview of panel estabilishmentrequestes. The economical impact from the dumping of product and international trade laws and policies regarding antidumping has been summaried.

Questions within the anti-dumping place are probable to proscribing debate agreement earlier than the DSB (Dispute Settlement Body) of the WTO, as in keeping with the arrangements of the DSU ("Dispute Settlement Understanding ") (Article 17). Individuals may project the burden of adverse to unloading measures, at instances may task the inconvenience of the fundamental enemy of unloading measures, and might raise all troubles of consistence with the prerequisites of an agreement which is before the establishment of a panel. In questions beneath the agreement of AD, a unique norm of the survey is cloth to a board's audit of the assurance of the general public specialists forcing the movement. The well-known incorporates a specific degree of appreciation to public experts of their foundation of realities and expertise of the regulation and is predicted to stop question settlement forums from going with choices structured simply upon their views. The norm of the survey is for disputes of AD, and a decision by the minister offers that it is going to be checked in the following three years for determining if it is suited for standard application.

International trade law between China and Japan

On January 1, 2022, the RCEP (Regional Comprehensive Economic Partnership) is in effect. It has critical monetary importance since it's far the main complete financial company in East Asia including South Korea, Japan, and China. RCEP is supposed to increase monetary courting in East Asia by using making extra coordinated delivery chains. Despite the reality that RCEP's 91% lower in taxes is a lower stage of development than the assessed 98% deduction of tariffs in the CPTPP (Comprehensive and Progressive Agreement for Trans-Pacific Partnership), RCEP extra than compensates for this in quantity. Enveloping around 2.3 billion individuals and a consolidated GDP of approximately US$29 trillion, it is the sector's largest global alliance and data for roughly 30% of world GDP and population. RCEP ought to urge Japan and China to collaborate on their ventures and attain shared gain circumstances within the district, like in Southeast Asia. Japan's maximum effective enterprise affiliation, the Japan Business Federation (Keidanren), has looked to grow the tasks of Japanese agencies inside the big Chinese market and it is probably going to provide extra open doors.

After the USA withdrawal, China shockingly carried out CPTPP enrolment. Its advertising might shift the monetary normal and have an impact inside the Asia Pacific toward

China. However, there are as yet some impediments. The Chinese government offers sizable appropriations to nation-claimed endeavors (SOEs), which maintain profound political institutions with the general public authority. It thoroughly might be challenging for China to fulfill CPTPP section conditions by way of lessening those appropriations. China's constrained painting conditions are every other obstacle, alongside the conditions with the expectancy of complimentary information circulation and herbal guarantee. It is muddled the way that the dictator Chinese government can clear up these troubles in a manner CPTPP individuals view as acceptable.

Whether there may be a genuine opportunity for China to join the CPTPP, China's utility for participation gives a method for comparing US expectancies to recapture an influential position inside the Asia Pacific. Albeit America has predicted to develop a free as well as an Open Indo-Pacific to comprise for containing a rise of China and proposing a framework of economic known as the IPEF (Indo-Pacific Economic Framework), the IPEF is honestly not a restricting worldwide alliance and does not supply an adequate economic structure to US-drove commitment within the locale. China was the principle to sanction RCEP similarly suggests China's stable obligation toward the world's most huge uber monetary accord. Moreover, China has additionally chosen to seek after an "RCEP in addition to" rendition of the CJK FTA.Likewise, the Blue Dot Network sent off by way of theUSA, Australia, and Japan to increase the 'first-class' framework task has seen extensively less improvement than the BRI.

Free Trade Agreement (FTA) between South Korea, Japan, and China

In 2013, the largest economies of continent Asia that are South Korea, Japan, and China, sent off talks for a trilateral FTA (Free Trade Agreement). As of 2022 January, a sum of 16 rounds of talks among the parties were held, but without good-sized advancement. As of late, with the main FTA covering each one of the three international locations - the RCEP (Regional Comprehensive Economic Partnership) - going into force, the CJK FTA (China-Japan-South Korea FTA) has again acquired consideration.

The stale advancement on the CJK FTA may be credited to 3 variables. To begin with, resistance from homegrown financial areas vulnerable to experiencing the sick outcomes of the arrangement, mainly horticulture, stays solid. As indicated via a sectoral examination carried out using specialists from South Korea, farming is considered because of the foremost hindrance to the completion of the CJK FTA. The concerns of industry comprise the deficiency of a piece of the pie, but in addition to IPR (Intellectual Property Rights) on technology related to agriculture, observing quarantines and safety of food.

The countries South Korea, Japan, and China have each embraced a trade FTA method. China is understood for its gradualist and unique approach to forming FTAs. All the extra severely, China doesn't need a plain degree CJK FTA. All things taken into consideration, it leans toward a slight-level three-sided FTA, which is targeted round trade products. South Korea favors an extensive FTA regarding each diploma and content, together with administrations, hypothesis, government obtainment, IPR, and specialized principles, however, trade merchandise. However, Japan is brief to bar horticulture and fishery introduction from the knowledge, the nation - being prepared via the maximum compelling business agencies - rejects a low-widespread CJK FTA. All matters are taken into consideration, and Japan advocates for expertise that carries a vast levy lower in addition to the development of administrations, IPR, ecological protection, and policies of labor.

WTO rules and regulations for anti-dumping

On 19th August, in the year 2021 the country Japan requested the establishment of such type of committee or a panel (by which the following issue will be disputed) under the agreement of WTO which is regarding the measures of imposing duties of anti-dumping on products of stainless-steel regarding China which has taken place since 2019, July.In 2019,July China started imposing anti-dumping duties on the products of stainless steel that has been imported from the Republic of Korea, the European Union, and Japan and claims that their domestic industry has been injured by the dumping of such type of products.

Japan had considered the measures of anti-dumpingas inconsistent with the GATT (General Agreement on Tariffs and Trade) as well as the agreement of the implementation of article 6 of GATT and the trade law of 1994 (which is also known as the anti-dumping agreement of WTO) which is due to the flaws in the investigation procedures and determination of the authorities of China.According to the rules of the WTO,anti-dumpingJapan will be going to pursue a solution for the following issue.

Panel establishment request under the agreement of WTO

Under the agreement of WTO, the concerned parties are required for having bilateral consultations which are regarding the measures in the following issue between both the parties which is to request the establishment or making of a committee or panel under the agreement of WTO.However, if in any case the bilateral consultations are not able or failed for settling the following dispute within the provided time which is after the date of request of a recipient for the consultations, the party that has made a complaint will be able to request the establishment of a committee or a panel for the DSB (Dispute Settlement Body).According to the measure of anAD, in the year 2021 on 11th June, a request has been made by Japan for consultation with the country China under the agreement of WTO.In the year 2021, on the 19th of July China and Japan are available for consultation but the settlement had not been resolved or disputed.

Products of stainless steel that are dumped

The measures of AD covered the coils of stainless steel, the sheets of stainless steel (which are plates and cut sheets), and slabs of stainless steel that are hot rolled.The slabs of stainless steel are semi-processed productsthat can be obtained from the process of casting refined steel (which is melted into the sheets of stainless steel) which is hot rolled and can be used in machinery for industrial purposes and as a raw material for the construction of structures or buildings such as bridges and ships. The coils of stainless steel can be used asa raw material or a product that is Semi finished for the appliances of the household that are electric and parts of automotive.

International trade policy regarding antidumping

In an Agreement, the dumping is characterized with the Article VI implementation of the GATT 1994 (the ADA) as a presentation of an item into the enterprise of one extra us of an at no longer exactly it's not sudden worth. Under the ADA (the Anti-Dumping Agreement) and according to the Article VI of GATT 1994, the members of WTO can force adverse unloading measures, if, after the exam as according to the Agreement, assurance has been made (a) that unloading is going on, (b) the homegrown enterprise handing over the like item within the bringing in the nation is experiencing material harm, and (c) there may be a causal connection between the 2. Notwithstanding big ideas administering the guarantee of a causal link, injury, and dumping, the Agreement provides exact procedural requirements for the inception and direct examinations, the inconvenience of the following measures, and the review and duration of the measures.

The panel or the Committee, which will have a meeting two times in a financial year, gives Members of the WTO the treasured risk to talk approximately any problems connecting with the ADA (Article 16). The Committee has embraced the audit of public rules cautioned to the WTO. This gives the brilliant danger to convey up troubles regarding the hobby of a public enemy of unloading guidelines and recommendations, and questions regarding the consistency of public exercise with the ADA. The panel or the Committee likewise surveys warnings against unloading actions made through Members, giving the chance to take a look at problems raised concerning specific cases.

Without massive US commitment in provincial financial becoming a member, Japan has replied to the ascent of China by gambling a role of authority within the making of the CPTPP. In any case, Japan's administrative function is probably undermined on the occasion that China's enrollment application is mentioned. India's withdrawal from RCEP may likewise subvert Japan's endeavors to maintain the initiative. Eventually, China would possibly become the triumphing economic power in the district using laying out change and hypothesis regulations gainful to it. While Japan will in preferred consider contention with China even as advancing territorial economic becoming a member, Japan may want to likewise accomplish crucial blessings. As properly as securing less complicated admittance to the splendid Chinese marketplace with reduced or no obligations on its commodities, Japan can also likewise have the choice to instigate China to be aware of greater liberal worldwide alternate and challenge policies. Eventually, economic participation with China might toughen security inside the district.

Economic Impact

While Japan would not venture China's warranty that unloading is going on, the Japanese authorities call attention to the violation that is nine in number by using China in its solicitation for counsels. The important mainstay of its case is China's inability to direct a valid damage warranty underneath the ADA. In particular, that's what Japan guarantees (I) China inappropriately reasoned that the challenge imports in fashionable fundamentally affected the expenses of like homegrown gadgets general, without thinking about the intrinsic contrasts within the problem imports, on this way with the violation of the ADA; (ii) China's aggregate appraisal of the influences of a subject that are imported from South Korea, Indonesia, Japan and EU became unseemly considering the distinctions in states of the contest, therefore dismissing the ADA; and (iii) the country China left out to lead a goal assessment of all crucial factors of economy and documents having a direction at the situation of the homegrown business and to give a pondered and nice explanation of the assurance of materialistic harm to its domestic industry with the violation of ADA.

Because of the public assertion of the Ministry of Economy, the industry and trade in country Japan, the whole worth of commodities of stainless steel from the country Japan to the country China is approximately $636 million each year, out of which commodities of the situation of the gadget to the anti-dumping measure represent around USD 84 million (the 2 figures beginning round 2019). Inferable from that enemy of unloading levies, shippers of those Japanese items need to pay USD 10 million in more taxes every year. The government of Japan and the government of China will go into conferences absolutely in no less than 30 days, and on the occasion that the counsels forget to clear up the controversy in 60 days, Japan will need to demand the foundation of a board. The board might be laid out this Autumn at the earliest.

Agreement and antidumping policies and their affects

If any type of a company is exporting any type of a product at a low price, then the price of that specific product will be changed on the market availability of that specific product of their own country or it depends on the market of their own and it can be defined as the dumping of product.Under the agreement of WTO, it cannot regulate the company’s plans or actions that are engaged in the process of dumping.The main focus is on how the government will react to the dumping of products and provides the laws, disciplines, or principles regarding the actions of anti-dumping and this can be called the agreement of anti-dumping.

Conclusion

The following research paper discuses about the international trade of the dumping of stainless steel between two major countries Japan and China. As there are various types of laws that has to be followed by both the countries that can be defined as trade law. A FTA (Free Trade Agreement) has also been discussed which is a trade agreement between three major countries that are South Korea, Japan and China. However, due to the dumping of stainless steel Japan has raised a complaint against China at WTO (World Trade Organisation) and a panel has to be made for looking into this dispute.

RCEP addresses a cut of the difference between South Korea, Japan, and China concerning FTA techniques. For example, RCEP isn't unquestionably the most important FTA that China has encouraged to this point, but at the identical time is the only one with great expectations and the biggest diploma. For example, RCEP is each time that China first has vowed to make use of a poor rundown approach even as marking a territorial change settlement. Essentially, it's miles likewise on every occasion that China first has consented to not forget articles for government acquirement in an FTA. Every such a show that China will sign up to a truly higher exceptional FTA contrasted with the past.

References

CL4303 Legal Foundation Assignment Sample

Question

1. Section 7 of the Public Libraries and Museums Act 2021 (fictitious) provides that ‘it shall be the duty of every library authority to provide a comprehensive and efficient library service for all persons desiring to make use thereof’. Last month, Casterbridge Library Authority reopened its central library after a period of closure owing to the coronavirus pandemic. ‘Everyone who has been vaccinated against SARS-Cov-2 (the coronavirus at the centre of Covid-19) will be welcomed, announced Peter Hardy, the Authority’s head of library services.

Advise:

Dan Morgan is a local journalist and regular user of the library. He was recently refused entry to the library, despite being fully vaccinated against the virus. Morgan wrote to Hardy asking for an explanation, but his request was declined. Morgan suspects that the decision is connected with tweets from his twitter account alleging that Porter breached lockdown rules.

The Casterbridge Butterfly Society have learned that Hardy ordered the destruction of the ‘Frederick Sassoon Special Collection on Butterflies of Africa’, on grounds of the author’s associations with the African slave trade. The Society seeks to preserve this irreplaceable record of natural history for the benefit of the public. After being approved access to the library, Emily Wing is informed that there is a new membership fee of £1000 a year to borrow books. Dan Morgan, The Casterbridge Butterfly Society, and Emily Wing seek your advice on grounds and remedies available to them under the judicial review process.

Solution

Introduction

In the given discussion, there will be advice given to Dan Morgan, Casterbridge Butterfly Society, and Emily Wing. The advice would be given to these parties based on the fact that they should be able to have judicial remedies. In the case of Dan Morgan, he is not allowed to use the library even though he is vaccinated. The Casterbridge Butterfly Society has faced the challenge of stopping the demolition of Frederick Sassoon's Special Collection on Butterflies of Africa. Finally, Emily Wing will be advised that she has been informed about a new membership fee of 1000 pounds to borrow books from the library.

Discussion

 Advice to Dan Morgan

In the per given case for assignment help, Dan Morgan, a local journalist and a user of the library has been denied the usage of the library under the grounds of vaccination. However, Dan Morgan has claimed that he has been fully vaccinated and that he has been refused to enter the library because he had alleged Porter to have breached the rules of lockdown. Hence, Dan Morgan has insinuated that since he had alleged Porter, who is likely to be an ally of Peter Hardy, breaking the lockdown rules, he has been refused to use the library services. According to Section 7 of the Public Libraries and Museums Act 2021, every library authority has to provide a library service that is not only efficient but also comprehensive to every individual. However, due to Covid-19, the rules have changed, and people are compelled to vaccinate before using the library. Hence, people who are not vaccinated are not allowed. Therefore, if Dan Morgan had not been vaccinated, then refusing him the services of a library could have been understandable. However, he has been vaccinated; therefore, the refusal of Dan Morgan is a breach of the Act. Therefore, Dan Morgan can take three actions to resolve the situation, and the three options have been discussed below:

Responding to the consultation of the council on the proposals for library services.

Raising questions at the council meetings.

Making an official complaint to the Secretary of the State (GOV.UK, 2022).
Since Peter Hardy has refused to explain to Peter Hardy, he should complain to the Secretary of the State and tell him that his refusal to attend the library services can be because of a personal vendetta that Peter Hardy has against him. Advice to Casterbridge Butterfly Society According to this case, the Casterbridge Butterfly Society has learned that Peter Hardy has ordered the collapse of the Frederick Sassoon Special Collection on the Butterflies of Africa.

The grounds for complaint are that Peter Hardy has claimed that Fredrick Sassoon had an association with the slave trade in Africa. Society seeks to preserve the irreplaceable record because it is a part of history that is very important. Therefore, the records are being kept as a historic site. The Casterbridge Butterfly Society has to claim that natural history records show African history. Even if Frederick Sassoon had associations with the African Slave trades, the historical records would not qualify to be demolished because the records do not concern the association with Frederick Sassoon.

Furthermore, the law for protecting heritage in the UK states that historical sites must be retained and explained. Therefore, the records must be retained. It must be explained. Also, as per the current law in the UK, the people who want to remove a historical place will require planning permission or building consent. However, even if the government has granted the site's demolition, the society to which the records belong will be held questionable (Legislation.gov.uk, 2022). When the Casterbridge Butterfly Society is questioned, they will have to explain how the association of Frederick Sassoon does not necessarily demean the status of the records. There is another method by which the Casterbridge Butterfly Society can prevent demolition. That is to prove that Frederick Sassoon did not have any kind of association with the slave trade in Africa.

Advice to Emily Wing

The given case states Emily Wing, who has applied for the books borrowing services from the library, has been given access. However, after being approved, she has been informed that the new membership will cost 1000 pounds per annum to borrow the books. One thousand pounds per annum is a huge sum of money that might not be accepted from the part of Emily to pay the library for borrowing the books. Considering that Emily Wing was not informed about the fees and after getting access to the library, she was asked to subscribe 1000 pounds per annum to borrow books; she can have a judicial remedy.

As per the memberships provided by British Library, the normal membership fee per annum is 80 pounds, the joint membership fee is 120 pounds, and benefactor member fees is 500 pounds (The British Library, 2022). Therefore, it can be concluded by saying that the library whose access Emily has gotten is charging excess of membership fees. Therefore, giving Emily access before making her aware of the membership fee of 1000 pounds per annum qualifies to be a fraud. The UK library policies tolerate zero fraud policy therefore, Emily Wing should report the incidents to the Action Fraud either on the Action Fraud website or by calling in the number 03001232040 (Actionfraud.police.uk, 2022). The Action Fraud centre is where Emily Wing would receive advice on the scam or the fraud that had taken place with her.

Conclusion

As per the above discussion, it is fair to state that Dan Morgan and Emily Wing would easily get the justice they deserve. However, in the case of Casterbridge Butterfly Society, it might not be the case because it will depend on the intensity to which the society can convince the judiciary about the non-association of Frederick Sassoon with the slave trade in Africa.

Question

Describe and analyse the case for reform of the Human Rights Act 1998.

Solution

Introduction

Human rights act 1998 is the law in the UK promoting the equality and fair treatment of all the people. It includes various rights that need to be followed by all the people. The important principles included are treating all people fairly with dignity, equality, respect, and independence. The government in the UK wanted to take steps regarding protecting human rights and the implementation of the Act led to change in the political and legal system. The main reason for reforming the Human Rights Law in the UK is that the framework had various flaws. There was an increase in the right culture which removed the importance of responsibility toward the individuals and the public. There was a presence of uncertainty in the legal environment and also confusion. 1
Discussion

Analysis of the case for reform of the Human Rights Act 1998

In the case of Abu Qatada, the person was from Jordan and was arrested and they wanted to send him to Jordan about the case. Still, he was not deported because the human rights act under article 6 stated that the people who argued against him were tortured to speak against him. In another case, Strasbourg Court provides the prisoners the right to vote. The Human Rights Act also aims to support the living instrument to increase the importance of rights and article 8 of the human rights gives a lot of importance to the private and human life. Various conventions are brought in by the Human rights act to protect children from abuse. 2 The Human right act 1998 has all the cases setting up the substantive right listed in the convention. The human right act has made it mandatory for the courts in the UK to take the advice of the European human right for taking all types of decisions, or judgments. In the case of Lourd Tucson, who served as the supreme court judge, the court started considering the earlier decision taken by the court of Strasbourg. Still, it does not apply to all cases and taking the same decision may not be favorable. In the case of the human rights act 1998 it is argued that the people promote the various human rights changes regarding human rights like voting or others but they have not followed and causing harm to others is the main problem. 3 In the case of one human rights case was filed by the prisoner about the community worship and another on medically fit food was not provided all this cost huge legal fees being paid.

There are various cases filed with the human rights similarly but some of the cases files wasted the time and found that they were not so this led to the people not trusting the Human rights law. In the case of the Turkish National, there was physical harm caused his appeal was allowed on deportation in consideration of him married to a UK national and has residenceunder the law article 8 of Human right he was approved his appeal. 4 The main reason for the UK Human right Act to be replaced is to reduce the problems and it is thinking to bring the Bill of Rights in place to replace the old system. The UK has updated the Human right Act and provision in 2020 and analyzed if any changes need to be done. It wants to reform the law after analyzing all the factors it wants to separate the power of courts and the parliament.

It wants to make diverse changes in the legal system. The UK is asking for the point of view of all the nations of the UK to protect the rights of humans and have diversity in the formulation of decisions. 5 The UK government has promised to consider all the responses that will be given. The human rights laws established in 1998 are a bit old and now require the application of common sense to be faithful and follow human rights principles. The replacement of human rights, which is the Bill of Rights, will help protect the right of humans and the right to life, which are the fundamental rights. The Human right Act is considered to function better today than before because before people had to take all their cases to the Strasbourg court only but today the people can take their cases to other courts as well. The Act of human rights is set by respecting the parliament as well. The court started the review of human rights in the year 2020. The various cases can be filed with the Human Right Act against government organizations, police, or others for treatment in an unfair manner, violating human rights. These rights are not only for the people of UK citizens but they also apply to all the people whether their citizens of the UK or not. The human rights laws have European conventions to be followed by the courts while giving the judgments about the various types of cases. The judges of the court need to decide according to conventions and it will be unlawful if any public authorities do not follow the conventions. 6

Conclusion

The Human rights act established in the UK and came into force in the year 2000 was mainly to make sure that the various authorities, the public, central, or the local government, try to protect the human rights of all the people leaving in the UK. This reform has helped the various individuals approach the UK court and fight against human rights. The human rights act does not come under the control of any political party and has over 16 human rights.

Human rights apply to all people including children and it has become successful in the UK as it has a positive impact on all the people living in the UK. The Human rights law has brought into practice the rights which are included in the European human rights conventions into the domestic laws the government is in a plan to introduce the Bill of Rights as the replacement for Human rights law.

References

LAW5398 Construction Law Assignment Sample

You have been approached by Mrs Jacintha Mernda who is aware of your recent enrolment in the Construction Law Unit at Swinburne University of Technology. Mrs Mernda asks you for advice on a planned construction project. Her intention is to build a four storey apartment building in one of the suburbs in Melbourne. The apartment would have private residences, ready to rent or purchase on the second, third and fourth floors; a restaurant, coffee shop, and other shops on the ground floor; and a carpark in the basement. The carpark will be for only the residents or workers in the building. Visitors will park along the road.

Mrs Mernda needs advice with the following:

What is the building classification for her project and why is he building classified that way (See National Construction Code)?

What is the best type or types of contracts she needs for the project?

Will she need to employ an engineer? If so, what will be the Engineer’s role?

Will she need a liquidated damages clause and if so, can you provide her with a sample of a good clause she can use?

Will she be able to request a variation to the project once the construction has commenced? If so, what are her rights and obligations in case of a variation?

How can she ensure that her construction project is Covid-19 safe?

NB: Although the project is in Victoria, Mrs Mernda is happy for you to use examples and even laws from overseas or interstate, if you want to. She does not require you to entirely rely on Victorian Law, but you may do so, if you’re able to.

Solution

Introduction

Construction project is determined as the activities through which different projects are made such as buildings, apartments, house and many other things in which people can easily live or conduct their business activities. The following case study is also based on the construction law and it aims to determine the construction of a four storey building that is located in Melbourne. The following case study for assignment help will provide an analysis of the classification of the project and the best type of contract that is suitable for the project. On the other hand, the role of engineer and safety of project from the COVID-19 impact will also be analysed in the following .

Main body

What is the building classification for her project and why is he building classified that way

As per the national construction code, following are the building classification that is based on the building made or approached by Mrs Jacintha Mernda:

• Residential building

One or more family residences, boarding or shacking up houses, seminaries, residences, apartment houses, and individual garages of such structures are all examples of a "residential building" that provides sleeping accommodations for regular residential purposes. One or more rooms in a structure used as a residence, with the required amenities and utilities to meet the needs of an individual or family (Ahmed, 2019).

• Business building

Offices, banks, professional businesses, and courthouses are all considered to be business buildings since their primary purpose is the conduct of business or the maintenance of books and records. The term "business building" refers to any structure used for commercial, retail, or wholesale operations, as well as service agencies. This list is not intended to be exhaustive; rather, any structure or location used for commercial, retail, or wholesale operations, as well as service agencies, should be considered a business building.

• Multi storey building

The phrase "multi-story building" is used to describe a structure with numerous stories above ground. The term "multi-story" refers to a building with more than four levels. Living in such a building has both benefits and downsides. A multi-story building is a three-dimensional or light-weight steel structure with numerous levels and vertical circulation (Ingle and Mahesh, 2020).

What is the best type or types of contracts she needs for the project?

There are different types of project contract that can be implemented for the current project of four storey building. Following are certain similar contracts for the project:

Contract with a Cost-Plus Subscription

Contractors get compensated for all of their construction-related expenditures when they enter into a cost-plus contract. That's the component of the name that refers to the price. Direct expenditures such as labour, materials, and supplies, among other things, might be included in the total cost. These expenses also include overhead charges, which might include things like insurance, travel, and a percentage of their office rent. In addition, they earn a certain amount of profit on the sale of the product. That is the "advantage." Contractors tend to see this form of building contract as being very favourable in general (Owusu et al., 2019).
Material expenses are unlikely to go above budget, at least for the time being. Furthermore, they are confident in their ability to make a profit. When the scope of the project is unclear or there isn't enough material to produce an accurate estimate, this kind of arrangement is ideal. Quality is also important to them.

Contract for the design and construction of a building

Traditionally, finished drawings are sent to the owners before construction bids are solicited. This results in two different contracts as well as a lengthier overall procedure. When it comes to the design-build contract, things work a little differently. In accordance with its name, a design-build contract tackles both the design and building expenses at the same time. According to this sort of contract, the building process really starts before the final design has been finalised and approved. To save both time and cash, the owner benefits from this method since the civil and structural projects are delivered under the same contract. It also assists in the simplification of contacts and the establishment of repeatable processes (Kim et al., 2020).

With the design-build contract, architects and contractors are able to work together more quickly and prevent disputes. Companies who want to expedite project delivery, take advantage of the advantages of collaboration, and simplify procedures are embracing it in increasing numbers. As a result, designers have more involvement into the building drawing process, which reduces the need for revisions (Oswald et al., 2019).

Will she need to employ an engineer? If so, what will be the Engineer’s role?

Yes, she will need to employ an engineer for the construction project of four storey building. Among civil engineers' most important responsibilities is their work on architectural projects as well as the improvement of building infrastructure. They assist in the development of systems surrounding the facility in order to address site problems related to utilities and guarantee that the project is viable. Because of the wide range of skills and knowledge they possess, they are able to create building designs from the ground up and supervise their implementation as they see proper. In such cases, they assume responsibility and work in collaboration with physical labour and other engineers who are in charge of the technical procedures associated with the project (Heigermoser et al., 2019).

It is expected by the customers who employ contractors for tasks that they would include environmentally friendly and energy-efficient elements into their freshly built structures. It is at this point that energy engineers come into the open and offer other techniques of generating electricity for buildings to those now in use. In order to satisfy these needs, they include alternative energy sources, such as solar energy, into their designs.

This not only makes the structure more energy efficient, but it also helps to reduce the rising cost of utilities. Because of this, the construction becomes more valuable, making it a highly sought-after project. Additionally, the cooling and circulation of buildings are two other utility difficulties that have arisen throughout these development projects (Karimi et al., 2018). Mechanical engineers are responsible for installing these HVAC systems as early in the design process as possible to guarantee the safety of the building's occupants. They also, as previously said, help to enhance the quality of the money spent on its energy requirements.
Residents are at danger of inhaling toxic chemicals and contracting serious diseases or mutations if they do not have access to these services. In addition, if a building does not have a functional ventilation system, the State Board of Health may impose a punishment on the owner. As a result, it is no longer a question of choice, but rather a requirement for contractors to take into consideration (Wei et al., 2019).

Will she need a liquidated damages clause and if so, can you provide her with a sample of a good clause she can use?

Arbitration clauses contain a provision for liquidated damages in the event that a party breaches the contract. Liquidated damages are often based on the company's inability to fulfill identified objectives if the project does not meet the completion date stated in the agreement (i.e. handing over the site to the customer). It is common to utilise daily or weekly rates in their calculation. It's important to note that liquidated damages are not fines; rather, they're a pre-determined amount of money due to the customer if the contractor misses the completion date. Temporary housing fees, moving expenses, and the like are all examples. Fixed daily or weekly sums, however more complex equations may be used if the job is phased, where there is partial ownership, and so on. It is critical that the calculating process be described in detail and in a formal manner (Sun et al., 2019).

Clients may sue for unliquidated (reality) damages if their actual losses vary significantly from those anticipated at the moment of the agreement's signing, unless the provisions of the contract specifically specify otherwise. These damages are not pre-agreed upon, and are normally assessed by the courts in the event of a lawsuit since liquidated damages are not a punishment, they must have been established based on an accurate assessment of losses. They may be seen as a punishment by the courts and so unlawful, although this is rare since courts are very hesitant to meddle in financial agreements made freely by two business parties of comparable standing (Martinez et al., 2020).

Will she be able to request a variation to the project once the construction has commenced? If so, what are her rights and obligations in case of a variation?

As soon as building has begun, she might seek a change in scope. Due to the fact that her rights and responsibilities in the event of a variance are significant, she will be in a better position to handle it. On the other hand, the construction will be acknowledged as a part of the project and thus, it will be easy for the development of the construction. Once the project is started it will become easier for the project manager to focus on the successful execution of the business objectives in order to complete a project on time and achieve all the goals (Mohandes and Zhang, 2021).

On the other hand, the rights and obligations in the case of variation will also be focused towards the completion of the project through which the activities of the development of the four-storey building can be easily made and it can be made as per the construction law. Moreover, the laws will also be focus in order to determine the execution of the construction activities and it will be commenced as a part of the variation to the project (Owusu et al., 2019).

How can she ensure that her construction project is Covid-19 safe?

It was addressed at a recent RICS webinar entitled COVID-19: influence on the building sector, which brought together specialists in the construction industry as well as company owners, managers, and legal representatives. Personal protective clothing, cabins spaced wider apart than normal, delayed start times, additional washing sites, and the establishment of a social distancing coordinator post were all recommended as possible practical solutions.

While dealing with the COVID-19 situation, it has become clear that trust is one of the most critical factors of success. Creating a professional atmosphere that encourages unity and trust allows for the development of reaction plans and procedures that safeguard staff and customers. However, the process of creating that culture begins at the very top (Townsend and Gershon, 2020). In order to be effective, executives must include the whole firm and provide help to people working on the ground. All participants must listen attentively and clearly explain their goals, their openness, and their expectations for the scenario, as well as what they think will or won't work. When everyone is on the same page, it is easy to create a consistent culture and a site response plan that reduces the risk of COVID-19 contamination for company employees, trade partners, customers, and the general public. For safety and compliance reasons, it's a good beginning step.

Communication is essential for every construction firm, and this is truer more than ever. It is essential to maintain open lines of communication between company project management team, trade partners, and customers. Even when staff are present on-site, meetings may be conducted by video or teleconferencing. If meetings must be done in person, make sure they are held in a space large enough to allow for six feet of distance, or consider conducting them outdoors if the weather permits (Lotfi et al., 2022).

Conclusion

From the analysis of the above report, it is concluded that contract with a cost plus subscription is the best type of contract for the current project and designing all construction activities implemented photo development of the apartment. On the other hand, it is concluded that role of engineer is very important in the construction project and it must be focus on the basis of liquidated damages clause.

References

CRIM2024 Discipline of Criminology and Justice Assignment Sample

Assessment Details and Instructions

Choosing one transnational crime from the list provided below, examine:

A. The nature of this offence, including what it involves, the role played by organised crime
groups in the commission of this offence, and the effects/harms caused by this offence

B. Attempts by authorities to combat this offence and the difficulties and issues experienced by authorities when attempting to combat this offence

C. Possible strategies to more effectively combat this offence.

Select from the following offence types/trades:

- Arms trafficking - Human Trafficking
- Cocaine trade - People smuggling
- Heroin trade - Trade in animals/animal parts
- Money laundering - Maritime piracy

Concentrate on select nations (e.g. two or three countries connected by your chosen offence) or a specific region (e.g. Eastern Europe, Northern Africa, South East Asia) relevant to your chosen offence to focus discussion and maximise opportunities for in-depth analysis.

Solution

Introduction

This study focuses on the impact of the cocaine trade in West Africa. Cocaine trading is a globally proven illegal trade, including the manufacturing, sale, cultivation and distribution of importance, which can be subjected to the law for drug prohibition. It is considered illicit trading of drugs or trafficking of drugs, a black market globally devoted to producing prohibited drugs (Sumnall et al. 2021). Cocaine trade in West Africa is the main focus. All three questions for assignment help are solved depending on the crime type and location.

Answer A

For narcotics trades, an ideal geographic choice is West Africa. It acts as a centre of mechanical transit for drug traffickers. Its location, specifically Guinea Bissau, with its countless unpopulated archipelagoes and islands, made identifying drugs difficult and reduced transit. The region is considered the most well-developed network of West African crime and smugglers alliances, which led international critics to conclude in 2004 that many traditional African criminal networks were occurring in that specific year (Aning & Pokoo, 2014).

It is believed that when a place has a weak political environment ultimately creates more chances for cocaine trading. In numerous countries, coups d’etat, civil war, and insurgency operations have destroyed the assets of productive national development, human capital, and social infrastructure. They have also caused fluctuations which led to an increase in the number of armed groups working in a specific region and an increase in the outpours of SALW or small arms and light weapons (Vigh, 2019). Fluctuation in North Africa also seeks outpours of much heavier weapons entering the region of Sahel. Similarly, in a case that took place in Mali, fluctuations have always been exploited by drug traffickers to promote their interests.

This case study analyses the effect of cocaine trafficking on regional and national trafficking in West Africa (Aning & Pokoo, 2014). Recently and as stated by the reports, the usage of drugs in this region has been increasing. Experts have also highlighted that the threats to human security by drug trafficking are the reason why policymakers and other institutions are specifically not prepared to respond. The primary issue lies in the prevailing approach to cocaine trafficking in the region of West Africa concentrates on controlling the supply of drugs via lawfully enforced efforts (Vigh, 2019).

The limited focus is placed on the aspects of development and health, which are highly affected due to the overabundant effects of cocaine trafficking, which in the coming time can cause a bigger security threat to the people of West Africa than is presently accepted. The UN Security Council, over the past few years, with time, have discussed the increasing threat produced by cocaine traffickers in Africa and, more lately, in the regions of West Africa (Aning & Pokoo, 2014). Later it will lead to the assumption of numerous essential UN PRSTs or UN Security Council Presidential Statement where the UN Secretary-General was encouraged to believe that the issue of mainstreaming was the foremost issue of drug trafficking as an element of conflict analysis, peacebuilding support, dispute precluding strategy, assessment for integrated missions’, and planning support (Vigh, 2019).

Answer B

In Africa, drug trafficking has become a matter of serious concern. The increase in the flow of illicit drugs threatens peace and security, public health, good governance and economic growth (Aning & Pokoo, 2014). To combat the issue, the international narcotics control regime focuses on the supply of drugs by enforcing various laws. The Economic Community of the West African States and the United Nations Office for West Africa stated their concern about drugs and related crimes in West Africa. About 30 tons of cocaine and 400 kg of heroin were trafficked in response to which the ECOWAS claimed that drug trafficking is one of the perils of the state (Aning & Pokoo, 2014).

Furthermore, drug trafficking is regarded as a rival of the constitutional system. Thus the ECOWAS and UNODC have taken responsibility for drug trafficking in west Africa. The Praia declarations show a strong political commitment to combat drug trafficking in West Africa (Bisong, 2022). In addition, the UNODC’s response showed efforts in peacebuilding by reducing drug trafficking, thereby bringing in the socio-economic development of Africa.

The regional programme reinforces initiatives at the national and regional levels by focusing on certain sub-programmes (Aning & Pokoo, 2014). These are drug prevention and sound health, justice, illicit trafficking and awareness creation programmes. In addition, the ECOWAS commission is also supported by the UNODC in its potential as a regional leader to safeguard regional ownership in acting as an authority against drug trafficking. Another authority that has taken action against drug trafficking in West Africa Coast Initiative (WACI) is to help implement the regional plan (Chevalier et al. 2019). In addition, WACI aims to build regional capacity by ensuring that no such drug trafficking occurs.

While combatting drug trafficking, the authorities encountered several issues. This is because policies concerning drug users are mainly based on punitive measures. Only severe sentencing prevails for the persons who are convicted the first time. Limited measures are taken to treat prison offenders and support rehabilitation efforts (Popescu, 2018). Studies have shown that repressive drug enforcement measures refrain users from availing of public health services. As a result, the person who cannot avail of the services becomes the victim of severe diseases, including HIV (Okunade & Ogunnubi, 2021). In this respect, situations arise for increasing treatment rather than the imprisonment of drug traffickers. It is not only the youths who become drug traffickers.

To make matters worse, the police of West Africa have also become a part of the heinous crime. Another issue the authority faces is encountering the Ghanaian police officers arrested in September 2012 (Aning & Pokoo, 2014). This is because they were caught transporting 1.5 tons of cannabis priced at 4.3 million UD dollars to the United Kingdom. Moreover, the authorities also faced issues when they found traditional leaders engaged in drug trafficking (Aning & Pokoo, 2014). In West Africa, the government resources and services are limited, which would otherwise have helped the authorities deal with drug trafficking issues.

Answer C

UNODC collaborates with Brazil to implement the National Operational Plan for combatting drug trafficking and its related crimes (Raineri, 2018). Guinea Bissau, a country in West Africa, has been plagued by drug smugglers that have posed a major threat to the nation's security. To mitigate the issue of drug trafficking, a Training Center of Security Forces was established with the support of Brazil. The main aim of this centre was to make the security forces' capacity more vigilant. This would further help to encounter narcotics and the drug trafficking activity that is carried on in West Africa.

Another strategy to mitigate the issue is the AIRCOP programme which the European Commission supports (Gallien, 2020). This is implemented with the INTERPOL and the WCO with an aim to strengthen intelligence and cooperation within the airports on three continents, Europe, Latin America and West Africa. As most heroin and cocaine traffickers come through airports, a strong vigilance in the airports would help in effective cocaine seizures. In addition, several strategies are formulated by ECOWAS as an obligation of commitment to various international norms of narcotics control (Francis et al. 2019). The earlier drug control measures taken by ECOWAS are resolutions concerning the control and prevention of drug abuse and the establishment of a fund at the regional level for drug control activities.

The police shall be provided adequate training to have the knowledge and skill to investigate and disrupt drug trafficking. This training can be coupled with operational support to help the neighbouring countries in taking stern actions against drug trafficking. For instance, the police of Papua New Guinea and Timor Leste have learned how to give an analysis of the composition of drug packages (Morojele, 2019). The first global conference of INTERPOL on illicit drugs brought together representatives of over 100 countries. These members are educated about the implications of drug trafficking and various criminal activities. In future, it is necessary to organise more such global conferences and educate the members about the impacts of drug trafficking. It is also necessary to strengthen the sanctions on drug traffickers, which in turn will lessen the drug trafficking activity in the nation (Campana, 2020). Moreover, the border security forces also need to be increased as this will help in mitigating the issue. As the trespassers are subjected to strict checking, the chances of criminals entering the country will slowly lessen. The authorities who will be in charge of combating offence will not have to take trouble anymore, as the trespassers will go through scrutiny on the border itself.

Conclusion

It is evident from the report that drug trafficking is a serious issue prevalent in West Africa. The country has faced an exacerbated influx of drugs coming through the desert regions, ports and airports. Moreover, the resources are barely available for the treatment of drug users. Thus various authorities have taken strenuous measures to bring down the intensity of drug trafficking in West Africa. UNODC and ECOWAS have implemented various measures to combat the serious issue of drug control. In doing so, they have faced certain challenges. For instance, they had to deal with police drug abusers who were a part of the drug trafficking team. Moreover, the drug control policies in Africa had to be taken care of as the authorities faced challenges, suitable measures, such as strict border checking, global conferences on drug trafficking and various other norms, to mitigate the issue.

Reference

COMM2024 Media Law and Ethics Assignment Sample

Assignment Brief

You need to write 600 words, formatted in the same way as your chosen publisher (i.e. include an intro Para like your publisher, an image etc.). You are only asked to use Word for this formatting.

Length: 600 words

Curriculum Mode: Report

Aims/objectives

This task is designed to address the first learning outcome of the unit - in other words, it is designed to get you to apply your understanding of the legal framework of the media and the ethical context of the media. You will apply this understanding by creating a piece of publishable content in one of the following genres: report writing/ journalism; strategic communication/spin/PR/blogging; non-fiction writing/long-form current affairs pieces/opinion- pieces. By ’publishable’ we mean that you should hypothetically be able to publish your content online or in print without legal/ethical problems.

Also, this task is designed to give you the opportunity to practice writing skills relevant to professional communication.
Assessment description

1. Overview

Given the social distancing requirements in our community and recent restrictions on attendance in local court, for this assignment you will watch a televised recording of real court proceedings (in the past, students have attended local court in person.)

Please choose one case from one of the episodes of the American TV show Judge Judy, available from the In format database, EduTV. Instructions for finding the TV shows are below. You will use the court case to write a piece of content. Your aim is to write a piece of (hypothetically) publishable content. Depending on the genre of writing you choose you might refer directly to the court case, or your court case might be the inspiration for your piece of writing.

Your content must be one of the following genres:

Strategic communication

Sometimes this kind of writing is referred to as communication management, spin, or persuasive/influential writing. It is often the domain of public relations. There are two ways you could approach this task:

1) Imagine you are a PR organisation and your client is the defendant in court. Your objective is to write a piece of positive spin designed to improve your client’s reputation. It is likely this content would be published on your organisation’s website, or perhaps on another news/current affairs website, or a print publication.

2) Choose a broader issue related to your court case. You are the voice of a specific organisation. Your objective is to write a PR piece convincing the public of the importance of the organisation’s perspective on the issue (of which your court case is an example). It is likely this content would be published on your organisation’s website, or perhaps on another news/current affairs website, or a print publication.

Report writing

- You might write a court report or a longer form piece of journalism;
- Your report would be (hypothetically) published by a newspaper;
- Your longer form piece of journalism might be published by a newspaper or magazine.

2. Detailed instructions

(i) You are to treat the case on Judge Judy as a real case that you attended in person. But, all the information you can refer to is contained in the episode. That is, the case you experience is exactly as it is presented on the TV show. You can only talk about what you see and hear in the episode.

(ii) You are to disregard the fact that the case is on Judge Judy. Do not consider this, or mention/discuss this fact or let it impact your work. Your focus is writing content about what happened in the case, as if you were there. You might talk about what happened specifically, or you might talk more generally about certain themes/issues raised. If your approach requires you to specify that the case occurred in the US, that is OK. Most importantly, you need to ensure that what you write about the case is legal and ethical. Your textbook and course material is your primary source for applying legal and ethical standards when writing content about court cases.

(iii) Watch case and take detailed notes. Pay specific attention to the facts of the case. Now, after you have taken lots of notes:
- Choose a genre of content to write about your court case. Find some examples of the genre that write about the same or similar issue. Read them closely. Think about the objective of your writing, its style and layout.

Solution

1. Covering Court

What is a part of Domestic Abuse?

There is a certain level of vagueness regarding what actually falls under the purview of domestic abuse in the USA (Hunter, Barnett &Kaganas, 2018). All of us have faced or have heard about certain instances where we have been left stumped as to the categorisation of the instance. Was it just something normal? Was that an accident? Was that just a spur of the moment heated action? Or was that a case of domestic abuse? These are questions which all of us have faced or have heard in our daily lives. Here lies the importance of clarifying the legalities and the definitions of such things (Robinson, Pinchevsky& Guthrie, 2018). Let us dive into understanding domestic violence through the exploration of what are the types of domestic violence.Furthermore the discussion on abuse seeks prime linkage with a “S25E185 Felony Suspect Surprise?; Mother and Son Rock Fight!; The Case of the Missing Furniture!” from Judge Jury episode (thetvdb.com, 2022).

Figure 1: Domestic Violence in the USA
(Source: Ywcaweekwithoutviolence.org, 2021)

Physical Abuse is the most common form of domestic violence in the USA and it is the most predominantly noted and reported form of domestic abuse in the country . Physical Abuse is legally defined in the USA as the physically violent actions that one person in a domestic relationship perpetrates on the other (Alradhawiet al. 2020). The most commonly recorded cases of physical abuse in the country has women as the recipient of the physical abuse which is an alarming trend. The women involved in domestic relationships such as marriages are most common victims of physical abuse. “NSW Bureau of Crime and Statistics and Research” have discovered that within July 2014 and June 2019, there have been over 58,939 cases of Domestic Violence recorded in NSW (Jetelina, Knell &Molsberry, 2021). Of this volume over 42,627 cases involved a female as the victim.

The less discussed aspect of domestic violence is emotional abuse which involves the verbal abuse of one party by the other party involved in a domestic relationship. Emotional abuse is hard to identify and thus most of the times it is not identified or reported to the authorities. Though it is hard to identify, it is equally damaging and leaves a long term impression on the abuse victim. Psychological Abuse is another form of domestic violence which is closer to emotional abuse and it involves psychologically abusing one party in a domestic relationship by invoking negative emotions such as fear and hopelessness in the victim through the means of isolation and threats of infliction of harm or damage (Leitão, 2021). This type of abuse can have a long term impact on the victims and permanently affect their psychological state for assignment help.

One such remarkable case was the complication the judge found herself in during the trial of a case that involved a complicated series of incidents. Patrick’s mother had thrown a rock at him regarding a domestic dispute about taking care of an infant in the house. In the flair of the movement, Patrick picked up the rock and attempted to throw it back at his mother but accidentally caught his sister instead. This case highlights the nuances of domestic violence. According to the definitions, the action that Patrick took was violent in nature and not in self defence. Also, the intended target and the affected person were both in different types of domestic relationships with Patrick (Jetelina, Knell &Molsberry, 2021). There is a consensus that this is a case of domestic violence and the physical nature suggests that it is a case of physical abuse. It is urgent to understand that in spite of the nature of the incident, both parties can seek reparations and penalisations in court for such domestic violence.

Anyone threatened with Domestic Violence should call Triple Zero (000). For any support or help, anyone can call the “24 hour Domestic Violence Line” on 1800 65 64 63. 

References

Cyberwar and International Law : An English School Perspective Assignment Sample

Chapter One:

Introduction

According to an article in Information Week, there were 41,776 malicious cyber events reported in 2010, up 39% from the previous year (Montalbano, 2011). According to Clarke and Knake, "a new type or variety of malware was entering cyberspace every 202 seconds on average in 2009." (Clarke and Knake, 2010). The significance of the problem in today's rapidly globalising society has increased as technology capabilities and information access have both increased. Cyberwar is an illustration of how technology development will complicate national security efforts in the future. Cyberwarfare is defined as "activities by a nation-state to access the computers or networks of another nation with the intent to cause harm or disruption" (Clarke and Knake, 2010). As more people have access to technology, cyberwar and its importance in international security issues continue to be a crucial concern.

In addition to briefly examining various cyberattack kinds for research reasons for law assignment, I aim to provide an important response: Is international law currently able to effectively advise nation-states on the subject of cyberwarfare, or are new standards of international law necessary in order to address the problem of cyberwar against nation-states? The notion that disruptive situations—worse than those already experienced—could materialise in today's technologically advanced times if international agreements are not established to bring nation-states to agreement on essential protections on this issue will be emphasised. In view of this risk, one would wonder if international law presents a chance for international community members to come to an understanding about defences against various forms of cyberwarfare and proper responses to cyberattacks once they have occurred. In this project, case studies of various examples of cyberattacks against nation-states will be analysed. I examine the Russian-Georgian conflict of 2008, the Estonian cyberattack of 2007, the Stuxnet and Flame infiltrations of Iranian networks, and the Estonian cyberattack of 2007. Case studies of recent cyber-related situations involving nation-states show its applicability in the current global environment and aid in identifying and classifying cyber-attacks. Case studies "provide for a fuller knowledge of causal processes, the explanation of general explanatory theory, and the creation of hypotheses regarding challenging phenomena" (Johnson, Reynolds and Mycoff, 2008). Since that is a whole different endeavour, this analysis cannot credibly claim to account for every aspect of the cyberattacks in question. The goal is to classify the sorts of assault and any visible objectives in the attempted attack by providing assessment of the examples.

This study poses the possibility that a future standard will go beyond existing regional cooperation initiatives and become a convention under international law. I investigate state behaviour in relation to cyber-related assaults and sabotage through case studies. I contend that in the shape of newly established rules of international law, the international community will be compelled to reach agreement on the problem of cyberwar between nation-states. Without any governing legal framework for cyber warfare today, Kanuck claims, there is still a lot of leeway for maneuver—both diplomatically and militarily (Kanuck, 2010). Since state behaviour plays a significant role in how international law is interpreted, the absence of agreement first leads one to believe that cyber-related attacks are a recent phenomenon. As a result, the issue lacks a sufficient historical background, and it requires a clear definition of the norms that characterise the phenomenon and what can constitute acceptable solutions (retorsion, retaliation, sanctions).

This course of action has been taken before. "Those who support adoption of a multilateral approach to deal with this quintessentially transnational problem must be encouraged by the fact that states have consistently adopted multilateral solutions to deal with technologies that affect populations across national boundaries," Sofaer and Goodman write in their article (Sofaer and Goodman, 2001). Nations are being urged to debate "norms for state behaviour in cyberspace," according to British Foreign Secretary Hague (Farnsworth, 2011). Lacking a previously agreed-upon reaction to such an occurrence, the North Atlantic Treaty Organization (NATO) was unable to respond to the reported cyberattack on Estonia in 2007. However, at the 20th NATO Summit in 2008 in Bucharest, the organisation publicly addressed cyberattacks (Hathaway, et al. 2012). Hughes points out that two new NATO divisions were established after the summit to focus on the threat of cyberattacks: the Cooperative Cyber Defence Centre of Excellence and the Cyber Defence Management Authority (Hughes, 2009). The 2008 Bucharest Summit's creation of NATO's cyber defence measures may not necessarily qualify as a widespread and inclusive activity. However, it does show that multilateral collaboration and consensus among states on the subject of cyberwar is a possibility. The application is still up for debate, but members are still talking about it (Center for Strategic and International Studies, 2012). There are thirty signatory nations to the Budapest Convention on Cybercrime, which became operative in 2004. This agreement was made so that member states may work together more closely and interoperate their national legislation. However, much like the NATO projects, development has been gradual and the overall direction has remained unclear. In addition, a large number of other nations, including China, Brazil, and Russia, have not ratified it, which calls into question its practical applicability.

The United Nations (UN) Charter also states that nothing in the current Charter "shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security" (Article 51). Benatar demonstrates that a broad reading of UN Charter Article 2(4) in the context of cyberattacks could "...suggest that cyber-attacks are possibly not a new kind of force but rather a new sort of armed force" (Benatar, 2009). It's interesting to note that the jus ad bellum (the right to wage war) does not specify the types of weapons that are permitted, and Benatar claims that it is challenging to determine whether cyber force is permissible. Benatar does, however, mention the International Telecommunications Convention, the laws of neutrality, and international humanitarian law as those principles that may be challenged by the use of cyber force (citing Schmitt, Harrison, Dinniss, Wingfield, and Kelsey).

On the other hand, some opponents make the case against a global agreement on cyberwarfare. These opponents contend that state initiatives that are independent and autonomous should be the major goal. Any international agreement merely serves to restrict a state's ability to develop its own framework for dealing with cyber war. There is also the issue of "...ambiguities that will preclude any substantive international conversation and resolution" (Muir, 2011). Being the global leader in cyber operations, Muir approaches the problem solely from an American standpoint. According to Muir, taking unilateral action by the US is the best course of action for achieving the following four objectives for the creation of a legal framework for cyber warfare:

1) Preserve all available property rights
2) Reduce the number of cyberattacks and the collateral damage they cause
3) Prevent proxies from being used in the execution of cyberattacks.
4) Provide injured parties with legal recourse

Muir's claim that the United States would lose out from an international accord and that the country should act alone to achieve the aforementioned objectives obviously belongs in the camp of the classical realist. However, realistic realists would counter that it might serve the state's interests to sign international agreements on cyberwarfare. Later on in this essay, a brief description of the realism viewpoint will be provided.

On the other hand, some contend that the topic of cyberwar is unimportant. Rid contends that cyberwar is not at all a distinct threat. Subversion, espionage, and sabotage, he asserts, are only "advanced versions of three behaviours that are as old as battle itself" (Rid, 2012). Rid asserts that prior cyberattacks did not fit the requirements of an act of war: violent character, instrumentality as a means to an end, and political nature. He bases this assertion on Clausewitz's "the most compact notion of war." According to Rid, there won't be any similarly significant events comparable to the Hiroshima or Pearl Harbor attacks of World War II, and it would be "misplaced and hazardous" to compare cyberwar to nuclear war (Rid, 2012). I contend that Rid's argument is naive and that his position is minor.

Others will consider Ride to be an outlier. They contend that as the world's nations continue to develop their technological skills, dependence on these capacities increases. Critical infrastructures can be put in a very difficult situation, and "it is simple to imagine far more momentous and malicious information attacks that, by causing infrastructures to malfunction or be disabled, could impose economic hardship on citizens, physically harm them, impair military operations, or undermine confidence in global and national financial and commodities markets by introducing false information" (Grove, Goodman and Lukasik, 2000). The authors contend that the availability of inexpensive computer processing equipment, faster network speeds, and growing infrastructure interdependence only serve to increase the likelihood and scope of such possibilities. They suggest employing active defences by imposing sanctions in accordance with international law and making failure an expensive proposition by, for example, destroying the attacking apparatus. For the defence of critical infrastructure pieces like nuclear power facilities, active defence systems may be helpful. The authors further contend that in order to account for the unique definitions of the use of force that these attacks require, "Interpretations of the UN Charter and of the laws of armed combat will have to adapt accordingly" (Grove, Goodman and Lukasik, 2000). The potential for agreement and the creation of legal norms on this subject are the outcomes of this process. In order for international law to provide any direction, such consensus is essential.

Kanuck claims that "efforts to study 'information warfare' under international law' took shape' in the 1990s" (Kanuck, 2010). States attempt to "assert their dominion over cyberspace," according to him (Kanuck, 2010). The attempt to exercise sovereignty is a special endeavour because cyberspace challenges the notion of physical boundaries that is so ingrained in international law. It is not just a matter of state government influence; private firms and occasionally a combination of the two are also at play. "Once one understands that governments aspire to extend their sovereign authority into this new area, then it becomes vital to assess how their objectives may align or clash with regard to nonexclusive resources," Kanuck writes (Kanuck, 2010). Kanuck therefore defends collective standards when unilateral action is not the solution.

Hollis justifies these standards by stating that attribution is a difficult task. According to Hollis, "A duty to assist, or DTA, is a new norm for cybersecurity that international law needs to adopt" (Hollis, 2011). This kind of thinking eliminates the necessity for attribution and elevates the importance of harm reduction by using the traditional "SOS" marine concept. Attackers may be discouraged from trying in the first place if standards were in place that might govern cyber risks through a mutually acknowledged duty to help.

As previously said, the study's main goal is to make the case for the value of international law in addressing potential responses to cyberwar. This type of thinking would theoretically encompass liberal principles. The protocol utilised to address the issue of cyberwar would be cooperation rather than direct competition or confrontation, as seen from the perspective of the realism party. It should be acknowledged, however, that states do engage in an anarchical system. The fact that states acknowledge their shared interests in many areas to foster cooperation, or at the very least adhere to a set of conventions that maintain peaceful patterns of behaviour, is part of this arrangement as well.

This line of investigation will adopt an English School viewpoint in response to the backdrop mentioned above. The English School emphasises using a global society as the study's subject (Linklater, 2009). Scholars associated with the English School of thought include Hedley Bull, Martin Wight, Nicholas Wheeler, and Barry Buzan more recently. The best way to understand the English School is as a synthesis of liberalism and realism. On the one hand, the English School believes that the global order is more civil than realists are willing to admit. In contrast, the English School regards war as being both possible and actual in a global society, "at odds with utopians who believe in the prospect of permanent peace" (Linklater, 2009). The theory of international society does, in fact, "provide an alternative to realism and idealism in the study of international relations, according to Martin Wight" (Griffiths, Roach and Solomon, 2009). Bull continues by saying that preserving international order depends on the "institutions" of the society of states (war, great powers, manoeuvres, international law, diplomacy, and the balance of power) (Griffiths, Roach and Solomon, 2009). In an endeavour to provide a basis based on accepted social values, international law seeks to promote peaceful international relations. This would reduce the chance of interstate tensions rising.

Nations may disregard the rules established by states in an international society if they believe their interests conflict with a peaceful solution or if they do not want to collaborate or engage in conversation. Yes, that would fit the description of an anarchical system. One could argue that the United States' recently announced unilateral reaction to an attack on its digital infrastructure qualifies as a response that realists would unquestionably see as rational. The goal of this research is to show areas of potential agreement and consensus and to make the case that, in this case, the international community must consent to communication and cooperation.

Chapter Two:

Realism, Liberalism and the English School: Competing Perspectives on International Law

Two of the most important theories in international relations studies, liberalism and realism, are expressed at diametrically opposed extremities of the discipline. On the one hand, realism emphasises the anarchical nature of state politics, in which no authority has control over how states pursue their own self-interests. As a result, a self-help framework permeates the global environment. Liberal politics, on the other hand, place more emphasis on cooperation and advancement than on rivalry between states. In light of this knowledge, how do the opposing parties view international law? Regarding nations in a cyber-world, how do the perspectives see international law?

Realism

Among the proponents of realism and its more contemporary variant, neo-realism, are Thomas Hobbes, Niccolo Machiavelli, Hans Morgenthau, and Kenneth Waltz. These Real Politik visionaries asserted that power and the never-ending pursuit of it rule the world rather than some supranational authority. The only goal is to protect one's own interests. The "one" in this instance is the State, and amid numerous contending powers, the State is the supreme authority. Realists concur that such a system would result in anarchy. This idea of anarchy is not to be mistaken with complete disorder, but rather with a state in which no one entity has ultimate control over a large number of agents (states). Realism asserts that states are driven towards their goals by the previously mentioned component of self-interest in addition to the absence of governable authority over states. Since no one else can be relied upon to take care of them, a state that is selfish looks out for itself and, as Waltz puts it, "puts itself in a position to be able to take care of itself" (Waltz, 1979). Furthermore, it has been maintained that morality itself should not be the goal of the state. Consequently, morality should not be used to evaluate states. According to Morgenthau, "The actions of states are decided by considerations of interest and power rather than by moral standards and legal commitments" (Morgenthau, 1970).

What does this mean for the realist viewpoint in terms of the idea of international law and, more especially, the legality of cyber war under a global normative system? Waltz and Morgenthau unmistakably advocate for a viewpoint that rejects the pursuit of moral goals as ends in and of themselves. The statesman will always base his decision on what is best for the state, according to Russell. "Unlike the lonely individual who may claim the right to judge political conduct by universal ethical norms," he writes (as cited in Donnelly, 2000). Schwarzenegger also underlines how international morality and legality are both "subordinate to power politics and...flourish best when they do not interfere with the global fight for power" (as cited in Donnelly, 2000). No ethical principles, according to Carr, "apply to relations between nations" (as cited in Donnelly, 2000). "...universal moral norms cannot be applied to the activities of governments," concurs Morgenthau (as cited in Donnelly, 2000). Under these presumptions, for a realist to even contemplate abiding by normative rules unless those rules serve their perceived self-interest would be short sighted. A state that has the ability to use force to further its objectives is not best served by rules. Any international treaty that restricts or forbids a state from engaging in such cyber operations could be viewed as meaningless in the context of cyber warfare and hence unreasonable to adhere to. Other enlightened realists would contend that signing international accords on cyber warfare is in the state's best interests. Realistically speaking, states would act in accordance with their own best interests and, if they saw it necessary, would disregard or uphold any international treaties.

On the other hand, according to Carr, "it is an unreal form of realism which rejects the element of morality in any world system" (as cited in Donnelly, 2000). Furthermore, "...the principles of international law constitute treaties, which by enabling the establishment of international obligations respond to one of the most serious shortcomings of Hobbesian anarchy...and regulatory institutions of various kinds can significantly alter the interactions of even powerful states." 2000) (Donnelly This particular claim casts doubt on a key tenet of realism: that the international system is anarchically organised with no checks on the participating states. There are behaviours that governments are prepared to agree on, as seen by the restrictions and obligations found in an international society, such as those of treaties found in international law. Strong states may be prevented from acting in a way that is disagreeable to other parties to the agreement by treaties. Such restraint barely fits with a completely chaotic system.

Liberalism

Liberalism, which "emphasises individual rights, constitutionalism, democracy, and constraints on the powers of the state," is another important tenet of international relations theory (Burchill, 2009). Supporters of liberalism include Michael Doyle, Francis Fukuyama, Robert Keohane, and Karl Deutsch. Fukuyama advocates an inside-out strategy as opposed to realism's outside-in strategy. According to Fukuyama, liberal-democratic domestic political systems are considered as the best means of resolving global conflicts (Burchill, 2009). Indeed, liberalism observes that there is peace rather than war in the liberal-democratic society. A world of liberal democracies, according to Fukuyama, "should have far less of an incentive to go to war, since all nations would reciprocally accept one another's legitimacy" (Fukuyama, 1992).

In contrast to realism, liberalism does not accept the idea of a "zero-sum" game. "The mitigation, channelling, balancing, or control of power has arguably prevailed more frequently than the inevitable existence of power politics would lead one to expect," writes Herz (as cited in Donnelly, 2000). Burchill explains: "States are not necessarily focused with relative profits, thus the chances for establishing regimes around issues and regions of shared concern" (Burchill, 2009). States, as participants in international organisations, can expand their understanding of their own self-interests in order to better foster possible collaboration, according to Keohane and Nye. Furthermore, Keohane and Nye contend that upholding these international organisations' demands may restrict the pursuit of national interests, undermining the "meaning and attractiveness of state sovereignty" (as cited in Burchill, 2009).

There are obstacles for liberal mentality proponents as well. One excellent illustration of such a challenge is globalisation. Hobsbawm contends that three aspects of state power have been affected by globalisation: the state's monopoly on the use of force, citizen allegiance to the state, and finally, the government's ability to provide public services as a result of liberal market forces. Overall, Hobsbawm observes that "popular opposition to globalisation is growing while the state as a fundamental unit of liberal democracy is diminishing" (as cited in Burchill, 2009).

What does this mean for the liberal viewpoint on cyberwar as it relates to international law? Is it necessary a good thing, as liberals advocate, for the state to intervene less in the face of market liberalisation? Can the market be trusted to provide solutions to global issues? One could contend that because state authority has been undermined by globalisation, liberalism does not provide a viable alternative to realism. This flaw continues to undermine state sovereignty and, hence, involvement in the application of international law. Liberal internationalism may be defended by some for its support of democracy, free commerce, and fundamental human rights.

Realists could refute Keohane and Nye's claim that state sovereignty is eroding by making the crucial point that only states have the authority to act as agents that can affect international law. The state is subject to a variety of globalising influences that are beyond its control as an agent under the purview of international law. Despite the fact that these outside influences put the state's sovereignty in jeopardy, there is yet to be a genuine challenger to the state's dominance as the fundamental analytical unit. International law has been put in place to give states a foundation for stable international relations. Any necessity for such a framework to even exist is undermined by cooperation, which is a well-known tenet of the liberal mindset. As a result, this paradigm for stability suggests that cooperation is insufficient to enable states to agree peacefully on crucial matters. In fact, cooperative measures have been developed, including, among others, The Budapest Convention on Cybercrime. However, the main argument of this thesis, which calls for international law to promote agreement on the subject of cyberwarfare, supports the premise that bare-bones collaboration and unrestricted market liberalisation alone are unable to address this widespread issue.

As two of the major tenets of international relations studies, realist and liberal perspectives have been briefly discussed in this chapter, as well as the polarised character of their positions. With the knowledge mentioned previously, the opposing sides have extremely different perspectives on how international law applies to states in a cyber-world. A set of normative laws and practises that states are expected to abide by are inimical to realism. The concept immediately opposes the self-help philosophy that realism champions. In contrast, liberalism believes that international institutions may offer a solution whereby duties under international law provide excellent opportunities for collaboration, but at the risk of potentially undermining national sovereignty. Liberalizing the market may make it more difficult for the government to exercise its power, especially when market pressures make it more difficult for the government to offer services to citizens who may already have a tenuous sense of allegiance. Power becomes less tangible in a liberal environment because borders are blurred, whereas realism has been much more certain about where power lies. Additionally, it has already been mentioned that organisations like international law and the UN only acknowledge states as agents, reinforcing the state's significance.

With these concepts in mind, another hybrid approach is offered that combines the perception of moral behaviour and international cooperation found in liberalism with the knowledge of an anarchical arrangement of states and power found in realism, without undermining state sovereignty. Customs can develop because an international community of nations expects certain things of each of its members, which is a key component of international law. States are required to comply with the norms established by its members under the framework of international law. The English School theory of international relations is based on such an international society made up of sovereign nations.

The English School

The English School provides a viewpoint that could be viewed as a "middle ground" between the opposing liberal and realist ideologies. In English School philosophy, the phrase via media is widely used to describe this "middle ground." In fact, the English School may be seen as the synthesis between liberalism's antithesis and realism's thesis. The English School's central thesis, according to Link later, is that sovereign states create societies, although anarchic ones since they are not required to bow to a superior authority. Members of the English School are drawn to aspects of both realism and idealism, but they tend to lean toward the centre ground, never fully accepting either viewpoint (Linklater, 2009). The absence of an overarching government in global society is emphasised by The English School.
The English School essentially contends that international relations are more civil than realists prefer to admit.

According to Bull, this sense of sociability occurs between nations "because of their sense of shared interests and values, because they abide by the standards of international law, and because they participate in international institutions to oversee the behaviour of international actors" (as cited in Keene, 2009).
They consequently consider the idea of eternal peace to be naive and idealistic.

The English School's main goal is to comprehend "processes that change systems of states into societies of states and in the norms and institutions that prevent the breakdown of civility and the emergence of uncontrolled power," according to its supporters (Linklater, 2009). It's crucial to understand Linklater's argument regarding "unbridled power" and how the English School attempted to reduce it in a society of states. The English School contests the notion of power inherent in realism, such as Muir's earlier claim that the United States should act unilaterally to accomplish what, in his opinion, an international treaty cannot be accomplished. It's also crucial to remember that in a global society of states, the state continues to be the main player, which puts the liberalist viewpoint to the test.

Wight makes reference to the "Grotian Tradition" (as cited in Linklater, 2009), from which the English School emerged. Hugo Grotius envisioned a global community that would encourage peace during a time of tension between Catholics and Protestants. In reality, Wight himself expressed regret that "debates between realism and utopianism...had overlooked the via media with its special concentration on worldwide society" (Linklater, 2009). Bull agrees with the significance of a global society, saying that "educated and sensitive citizens" should take seriously aspirations of "a universal society or community" (as cited in Linklater, 2009). Hedley Bull, one of the English School's visionaries, has advocated for the global society that can exist in a mostly anarchic setting. Anarchy is ultimately "what states make of it" (Wendt, 1992).

One of the distinguishing characteristics of the English School, according to Wilson, is the importance it focuses on normative principles, particularly the rules of international law (Wilson, 2009). Wilson quotes James as well, saying that "for members of the English School, international law'stands at the very centre of the normative framework of the international society'" (as cited in Wilson, 2009). "It should be understood as a body of rules, deemed by those to whom it applies as binding, the objective of which is to facilitate regular, continuous, and generally orderly international relationships," is how the realist approach is characterised in comparison (Wilson, 2009). Wilson is elaborating on the importance that English School scholars place on an international society and the idea that governments' behaviour is governed by norms. It is implied that these principles are necessary to control how competitive states behave in a chaotic system. The English School recognises the anarchical system in place and works to foster an atmosphere in which states are respected as persons with significant perspectives on topics. States may be better equipped to distinguish between what is acceptable and what is not acceptable by giving each member of the community a voice and giving each voice equal weight. States are also informed about potential responses to actions based on traditional traditions. The presence of such expectations "helps lower the level of uncertainty in international relations... Therefore, understanding international law requires understanding international society (Wilson, 2009). According to Mayall (Mayall, 2000), international law is "the fundamental institution on which the idea of international society stands or falls."

With regard to the issue of legitimacy, realists and neorealists disagree with English School scholars. This is because realism downplays the challenges to legitimacy that exist both within the state and on a global scale among nations. Bull maintained that preserving national sovereignty would provide countries comfort in the knowledge that they could advance whatever domestic policies they desired while still enjoying international legitimacy (Linklater, 2009). However, the English School places a lot of emphasis on the conflict between order and justice, which causes the theory to stumble. Since the issue of sovereignty has been successfully resolved, nations can agree on the international order of things. However, one's perception of justice may differ from another's.

The example of human rights and its somewhat metamorphic definition that varies depending on who you question can help to explain this ambiguous notion of justice. According to Bull, "the long-term trend over the past few decades has supported the development of solidarity measures to promote the international protection of human rights" (as cited in Linklater, 2009). Bull refers to "solidarist" measures when he advocates for stronger interstate cooperation and consensus on a wider variety of topics that are more in line with the liberal viewpoint. He also refers to individual rights. Pluralism refers to the above-discussed issue of sovereignty as well as the absence of intervention and cooperation on the part of the members of the world society, in contrast to realism and in sympathy with it. Although members must mutually accept each other as equals—a need for international law—this does not always decrease the significance of sovereignty. The basic fundamental human right to be free from starvation can be qualified in the context of human rights, according to Vincent's argument. Even if there may be stark disparities between negative and positive human rights claims, practically everyone can agree that raising awareness of malnutrition on a worldwide scale can inspire action among all of humanity (as cited in Linklater, 2009). As cooperation on matters like human rights becomes the norm, the debate over order, which is typically a Western ideal, and justice, which is generally non-Western, may be rendered moot. The International Declaration of Human Rights is an example of how international law can be utilised to bring people together in agreement on such crucial issues.

As was said above, the English School provides a viewpoint that embraces the aspirations of a global society of states, including the upholding of international law as the standard for state behaviour. As an order develops, standards are discovered to lessen global irrationality. International law serves to improve the order among states and, to some extent, convey a sense of justice among members, even though such capricious behaviour among states is merely diminished and not totally abolished. Nations that help maintain order amidst anarchy are given legitimacy under international law. International law does provide consensus on how states should behave in the context of international cooperation, with the issue of state interests being a part of the dynamic world of international relations. It is in this setting that significant worldwide agreement has been noted. In this regard, it is highlighted that examples include the Universal Declaration of Human Rights and the Convention on the Prevention and Punishment of the Crime of Genocide, among others. With this framework for international law in place, it will be easier to assess whether the matter of cyber warfare should even be thought of as being relevant to international relations and international law.

Chapter Three:

Classifying Cyber – Attacks

Now that the theoretical line of investigation has been abandoned, it is crucial to define cyber-attacks. I'll demonstrate in later chapters of this work what a cyber-attack is capable of using actual case studies. How can such action achieve such lofty goals is the current query. What types of cyber-attacks are there today, and what are their objectives? While entire volumes of academic research are accessible on this subject alone, I aim to provide a very quick overview of current cyberattack strategies in order to foster a general level of comprehension. This lays the groundwork for further investigation and helps the reader understand the hazards present in this location.

Defining Cyberwar

It can be difficult to define cyber war. Although the terms "information war," "net war," and "cyber war" have differences in problem areas, all of them are regularly employed in tandem with the aim of adapting in mass consciousness of various social levels, from government officials to the general people. ", according to Azarov and Dodonov (Azarov and Dodonov, 2006). To put it simply, the interchangeable usage of these phrases is there to help the general public get more comfortable with the problems raised by the conversation. According to Richard A. Clarke, a former Special Advisor on Cyber security for President George W. Bush, cyber war is defined as "...activities by a nation-state to access another nation's systems or networks with the intention of causing damage or disruption," as was previously said (Clarke and Knake, 2010). The attack's method, such as the Distributed Denial of Service (DDoS) attack that aims to seriously hamper operations, is only its means. Understanding the size of these attacks and the intended goal is crucial for defining the different forms of cyber-attack.

When considering the word "cyber," Arquilla and Ronfeldt say, "...we need to consider the Greek root kybernan, which means to control or to govern" (Arquilla and Ronfeldt, 1997). Consequently, a cyber-attack is an attempt to rule or control. This implies that the eventual effect may not always be destruction. Azarov and Dodonov concur that "...the purpose of cyberwar is not destruction but control interception of information resources, systems, and channels, which can be formally expressed as a process of changing of adversary control vectors according to the attacker's reference vectors...the modern information systems in cyberspace will be attacked with purposes not only for the destruction of information in the adversary information infrastructure but also for the control interception of information in the attacker's information infrastructure" (Azarov and Dodonov, 2006).

The Department of Defense has stated that an information system is "the complete infrastructure, organisation, personnel, and components that collect, process, store, transmit, display, disseminate, and act on information," according to Azarov and Dodonov. This word is now more recently defined as "the organised gathering, processing, transmission, and distribution of information, in line with prescribed protocols, whether automated or human" in Joint Publication 1-02. (Azarov and Dodonov, 2006).

A cyber-attack is an effort to take over or rule information systems, to put the basic definition of a cyber-attack in more everyday language. Power grids and other information-based products are examples of how these information systems act on information to make it available. Controlling or governing information has an impact on both the security of the information and what can be done with it. Cyber-attacks could target systems including automated electricity and telecommunications systems, air traffic and traffic control systems, nuclear power systems, defence systems, and private information systems, among others.

Cyber-attacks can be used for a variety of purposes. Sometimes the project is just espionage, like in the case of the Flame cyber-attack that was uncovered in Iran in 2012 and will be addressed later in Chapter Four. Other times, like in Estonia in 2007 and Georgia in 2008, the objective is to control or disrupt entire networks, regulate who has access to that information, or both. Other intrusions might aim to undermine data in an effort to damage or even destroy not only data but also the application of data manifested in physical, "real-world" systems. An instance of a cyberattack that destroyed actual Iranian uranium enrichment equipment and was directly related to the Natanz nuclear plant was the Stuxnet invasion in 2010. Chapter Four will also analyse this instance.

Types of Cyber-Attack

The cyber-warrior has access to a wide variety of cyberattacks. Consequently, a general explanation of the tools at their disposal should be part of any worthwhile understanding of cyberwar. The reader is given a starting point for further investigation of the subject with a succinct summary of significant types of cyber-attack.

Botnets. The word "robot network" has been combined to create the botnet method of cyberattack. "[A] network of Internet-connected end-user computing devices infected with bot software, which are remotely controlled by third parties for nefarious purposes," is the definition of a botnet. A certain "botherder" or "botmaster" has authority over a particular botnet. A botnet could contain a small number of botted hosts or millions (U.S. Federal Communications Commission, 2012). In a wide-scale operation, botnets can be used to recruit a huge number of computers without the normal user being aware of the auxiliary purpose or even the subversion of their computer. Botnets can spread among other vulnerable computers, supervise the distribution of Distributed Denial of Service assaults (DDoS), which I will explore in a moment, and collect sensitive information from those participating systems. Botnets were employed to increase the extent of Distributed Denial of Service assaults during the 2008 cyberattack that hit the country of Georgia (detailed in the following chapter), which rendered government websites and other information sources inoperable.

Denial of Service (DoS) and Distributed Denial of Service (DDoS) attacks.). Attacks that "block authorised access to resources or delay time-critical operations" are known as denial of service (DoS) attacks (U.S. Department of Commerce, National Institute of Standards and Technology, 2004). The attacker can restrict or even forbid the usage of the aforementioned by exhausting all resources available for the network, system, or apps in issue, thereby halting activities until a solution is found. Attacks known as Distributed Denial of Service (DDoS) use worms or botnets to launch massive DoS attacks (which will also be discussed shortly). Attackers choose DDoS because of its enormous scope, which gives them the chance to shut down a whole network or website by overwhelming the target system with incoming network traffic (IT Law Wiki, 2012).

Additionally, even while the attack can be linked to a wide variety of sources in numerous nations, the majority are unintentional participants who are unaware that they are contributing. This makes reasonable denial possible. The Denial of Service assault that took down Kyrgyzstan's primary internet servers and email system on January 18, 2009 is a case in point for the use of DoS or DDoS. Coincidentally, this took place on the same day that Russia's government urged Kyrgyzstan to discontinue using an airbase in Bishkek (Ashmore, 2009). Although the DDoS was linked to Russia, this does not necessarily imply that Russian meddling is to blame.
Logic Bombs. Programmers can sabotage software by inserting code that causes it to operate destructively when a certain event triggers it. This is known as a logic bomb (U.S. General Accounting Office, 2004). If a circumstance arises that triggers the malicious computer code to start, the immediate effects manifest as compromised data. A Logic Bomb is typically used to erase data or at the very least make it useless or unusable. Through this scrambling or destruction of the evidence, an attacker trying to "cover his tracks" could utilise a Logic Bomb to undermine the implicating data bits. Sometimes logic bombs can even be used to disable hardware, jeopardising the attached system components. On a smaller scale, a dissatisfied employee may use this kind of attack to remove data from business servers. A more pertinent illustration would be if China were to implant "Logic Bombs" on the military informational infrastructure that the United States uses, crippling American military capabilities in the event of a confrontation (Clarke and Knake, 2010).

Trojan Horses. The Trojan horse cyber-attack, which is related to the Logic Bomb, is a computer programme that hides malicious code. Typically, a Trojan horse impersonates a helpful programme that a user would like to run (U.S. General Accounting Office, 2004). The Trojan's hidden purpose, which the attacker built, is exposed after it has been put to use. In fact, it is the same as self-sabotage in the context of cyberattack. Trojan horses frequently give attackers "back door" access to a system that was previously only accessible through an authorised user.

The usage of a Trojan can be explained using the earlier example of Chinese asymmetrical warfare utilising cyber-attacks. Security professionals frequently update a network with more protections, such as the adoption of a more capable Intrusion Detection and Protection System (IDPS), to thwart incoming threats. However, if a Trojan were to enter the system before an IPS was installed, it might seem to be a legitimate entry. As a result, a back door has been set up, providing access for intruders to instal devices like Logic Bombs in order to get around security measures.

Viruses. Although viruses are actually software applications, they have the same dangerous goal as Trojan horses. Viruses can also spread by unintentional (or intentional) human behaviour, such as opening emails that contain the virus or sharing infected files. A virus, in further detail, is "a programme that 'infects' computer files, typically executable programmes, by injecting a copy of itself into the file. According to the US General Accounting Office (2004), "These copies are typically executed when the 'infected' file is loaded into memory, allowing the virus to infect other files.

The usage of viruses can range from routine computer activities (such as the ILOVEYOU virus in 2000) to use against nation-states.

Their motives might likewise vary, from spying to devastation. Iran employed the "Flame" malware, which will be examined later, as a spying device. The virus propagated due to careless use of infected files, giving its creators access to data stored on Iranian networks as well as the networks themselves.

Worms. When a computer programme copies itself from one machine to another across a network, it is referred to as a worm (U.S. General Accounting Office, 2004). Worms' ability to self-proliferate is the fundamental distinction between them and viruses. Worms are typically employed for a variety of purposes, including resource depletion on network systems, "back door" accessibility creation, DDoS attacks, and more. Although the self-propagation capacity sounds sinister, it is actually only applicable to networks with connectivity. Therefore, the worm is concentrated in one place and rendered unable to spread by disconnecting from all networks.

Although a worm can be contained, if its existence is unknown, it is free to spread at will. A highly appropriate illustration of what a worm is capable of is "Stuxnet" (noted later). Stuxnet was used in ways that went beyond what its creators had planned. The initial purpose of the worm, however, was to establish control within a system, allowing a different set of guidelines to be followed based on what the worm creators had established. The control interception outside the initial scope was essentially rendered worthless once the worm had spread beyond its initial scope because the conditions embedded in the worm code were not met.
Examples of Cyber-Attack Usage

The aforementioned techniques can be used in cyberattacks to exert a wide range of control. Ingenious tales are used by Clarke and Knake to provide the reader with an illustration of what such control is capable of. Although the specifics of the cyberattacks utilised and the timing of these events are vague, their practical significance is not diminished by this, especially given that the instances come from the former Special Advisor on Cybersecurity under President George W. Bush (Clarke and Knake, 2010).

Clarke and Knake, looking back on the Second War in Iraq, describe the circumstances in Iraq before to the conventional attack, where the US had penetrated the purportedly "closed-loop" military network. A network that is operating independently from external influences that can compromise the information system is referred to as a "closed loop" network.

There were numerous Iraqi military officers who had received emails telling them what to do (most notably, do not participate and you will be reconstituted once the regime has been replaced). The communications implied that taking these steps would ostensibly protect them from the impending American assault (Clarke and Knake, 2010). The authors may conjecture as to what was actually contained in the emails, but the availability of material to cyber-warriors and their freedom to spread it however they see fit can be dangerous formidable opposition to face.

Another instance cited by Clarke and Knake is when Israel "possessed" Syria's air defence system and attacked one of their nuclear facilities. In essence, the Israelis used a pseudo-cloaking technique, substituting a signal of quiet (intended to convey clear skies to the observers) for the air defence signals Syria should have picked up (incoming Israeli planes) (Clarke and Knake, 2010). Israel was able to enter Syrian airspace and eliminate what it believed to be a possible threat by degrading the air defence intelligence system Syria could have used to monitor its airspace and safeguard its carefully guarded nuclear facilities.

A military invasion of another country's airspace could be seen as a violation of that country's sovereignty and a justification for war. However, Israel's denial would be sufficient to prevent a local or regional crisis since there is no proof to back up the claim of an invasion, aside from presumably apparent motives. After all, the infiltration might have been mistaken for an accident at the facility since Syria's first-alert air defence systems failed to detect it. There may be other explanations for Syria's silence, but without proof, it was impossible to determine the identify of Israeli military aircraft in Syrian airspace.

These hypothetical situations are not the result of a creative excess. These are actual instances where a nation's information system is taken over, usually for military or defense-related purposes, and the breadth of the breach goes beyond just that. Civilian entities, like a state's informational or resource infrastructure, could likewise be the target of a cyberattack. If sabotage of the system could be contained, or worse, brought down, infiltration of a networked power grid might financially and logistically devastate a state. According to Schmitt, "[CNA] can prove a high gain, low risk alternative for a state outclassed militarily or economically due to the potentially devastating impact on a state's infrastructure (Schmitt, 1999). It is crucial to examine past instances of these cyberattacks on governments.

Chapter Four:

Case Studies

Case studies are challenging to establish because cyberwarfare is a relatively new technique. This effort is made more difficult by the lack of specific instances in which governments have collaborated in cyberattacks on other nations. The difficulty of assigning responsibility for cyberattacks to a specific state makes this task much more complex. Hacking agents and "cyber-warriors" invariably use a variety of techniques to conceal their identity and shield themselves from their sponsors. It might be difficult, if not impossible, to pinpoint where cyberattacks originate and who is responsible for them. There have been several occurrences that have, however, directly impacted state functioning. We can look at situations that better explain what happened if we have a basic understanding of the cyber-attacks that the cyber-warrior can use.

To provide the reader a greater understanding of the practical significance of cyberwar against states, several case studies are given. I review state cyberattacks that have occurred recently in the last five years. In these situations, I search for evidence that there was state involvement in the attack and determine whether that evidence increased over time. In essence, nation-states could be implicated in these situations, which is why they were picked for analysis. I also try to comprehend the cyberattack's intended impacts and the people or things they were supposed to harm.

As previously noted, the two case studies—the 2007 Estonian cyberattack and the 2008 Georgian cyberattack during their confrontation with Russia—will be briefly discussed. Additionally, it will be important to pay attention to the Stuxnet computer virus from 2009 and the Flame malware, which affected Iran's nuclear centrifuges at the Natanz plant and was discovered in 2012.

Estonian Cyber-Attack of 2007

The cyberattack that hit the tiny country of Estonia in 2007 is regarded as the first cyberattack in history to put a state's national security in jeopardy (Beidleman, 2011). Botnets "seized more than a million machines from 75 countries and directed them to attack targets in Estonia," according to Beidleman (Beidleman, 2011). The botnets flooded websites that were linked to the government, the banking industry, and other crucial components of Estonian life with information requests using distributed denial of service assaults. All Estonian informational infrastructure components connected to regular internet use were damaged by the disastrous information overload caused by the distributed denial of service attacks. ATMs (Automated Teller Machines) no longer gave out cash. Additionally, websites were vandalised. The news media was unable to provide the public with any updates.

According to Ashmore, the Estonians were able to react well, which limited the consequences of momentary blackouts. Furthermore, the information infrastructure did not sustain any long-term harm (Ashmore, 2009). The possibility for disaster was successfully reduced through Estonia's use of its Computer Emergency Response Team (CERT) and collaborative efforts between government and civilian professionals. The International Telecommunication Union's (ITU) head of corporate strategy, Alexander Ntok, praises Estonia's countermeasures and recovery efforts: "It was creative solutions that allowed Estonia to emerge from the spring cyber-attack relatively undamaged" (as cited in Ashmore, 2009). In fact, Estonia, according to Ashmore, is playing a leadership role in NATO's information technology structural defence. Along with providing skilled employees, Estonia helped staff the NATO Cyber Defense Centre in Tallinn when it opened in May 2008. (as cited in Ashmore, 2009).

Estonia has also worked to advance the global legal agenda and strengthen legislation to safeguard IT infrastructures. The Estonian Ministry of Defense claims that Estonia has tried to promote international collaboration in order to safeguard global systems (as cited in Ashmore, 2009). Additionally, the CERT for Estonia launched a global call for support among experts and businesses from around the world during Estonia's response to the attack (Jenik, 2009).

Although Estonia's response to a state security issue that was otherwise novel has been lauded, the questions of why the response was required and who was responsible for the intrusion remain.

Because Russian internet protocol (IP) addresses were used in the attack, it has been widely assumed that Russia is to blame. Russians celebrate their victory in World War II on May 9, and according to Lauri Almann, the Permanent Under-Secretary of State for the Estonian Ministry of Defence, "The idea was to have a huge gathering on 9 May that was combined with a huge cyber-attack," tensions between ethnic Russians living in Estonia at the time and the country itself were at an all-time high (Mansfield-Devine, 2012). It has been discovered that paramilitary organisations, such the Russian Business Network, were responsible for the cyberattack (as well as in the Georgian cyber-attack in 2008). According to Gervais, "the connection between the Russian State and the Russian Business Network should be sufficient to assign state guilt" (Gervais, 2012). Additionally, the Estonian government requested a bilateral probe under the Mutual Legal Assistance Treaty (MLAT), however Russia refused to cooperate in the search for the botnets' origins (Shackelford, 2009).

Despite the smoking gun and a possible motive being present, the scope of in this case, Russian guilt has not been established. However, there have been more cyberattacks in former Soviet satellites like Lithuania, Kyrgyzstan, and Georgia (to be discussed shortly). Allegations of Russian participation in these incidents have been numerous (Ashmore, 2009).

Georgian Cyber-Attack of 2008

Georgia was another country targeted by a cyberattack. In contrast to the Estonian model, this incident took place in August 2008, just as Russia invaded South Ossetia. This was the first time a cyberattack coincided with an armed battle, said Milikishvili (as cited in Ashmore, 2009). The website of the president of Georgia, along with other government websites, was subject to a denial of service attack (Ashmore, 2009). Websites have also been defaced, with Adolf Hitler imagery being added to web pages linked to the president of Georgia, Mikheil Saakashvili (as cited in Ashmore, 2009).
Georgia's information infrastructure had much less limited international connectivity than Estonia's. Additionally, the majority of the available international connectivity was through Russian soil (Stapleton-Gray and Woodcock, 2011). So it was simpler to try and block outgoing messages, including news reports. Georgia was not nearly as involved in e-commerce and information technology infrastructure as Estonia was.
In place of the cyberattack, Stapleton-Gray and Woodcock highlight an intriguing instance of external parties "mirroring" Georgian web information. This mirroring is a representation of the external assistance provided by nations and businesses sympathetic to the state's pressure, such as Poland and Google (Stapleton-Gray and Woodcock, 2011, Ashmore, 2009). Information Technology was sent by Estonia It will use security experts from its own CERT to help tackle the cyberattacks (Ashmore, 2009).

Similar to Estonia, there was no clear connection between the cyberattacks and Russian government involvement. However, the cyberattacks in Georgia and Estonia (as well as additional attacks in Kyrgyzstan and Lithuania that are not included here) were started in response to antagonism with Russia (as cited in Ashmore, 2009). "Opposition to the Russian government might result in a cyber-attack which could impair crucial government infrastructure," claims Ashmore, whether there was any Russian involvement at all (Ashmore, 2009). The claim made by Shackelford that "states retain the focus of restricting IW (information warfare) as the Estonia incident and the Russian-Georgian armed conflict expose more and more of a cyber-dimension to international conflicts" is significant (Shackelford, 2009). If this pattern persists, as many predict it will, it will be necessary to take a deeper look at the effects of state-to-state cyberattacks.

Stuxnet

Moving from Eastern Europe to the Middle East, we discover further evidence of state-to-state cyber-warfare, though the evidence was not initially as apparent. A "Stuxnet"-style worm had infected the Natanz nuclear complex in Iran. Over 60,000 machines have been revealed to be infected by Stuxnet, with the Iranian state hosting half of them (Farwell and Rohozinski, 2011). Ralph Langner refers to Stuxnet as "an all-out cyber offensive against the Iranian nuclear programme" (Langner, 2010) despite the fact that there are still other infections outside of Iran, including those in countries like India, China, the United States, and Australia.
Stuxnet was a worm meant to penetrate systems, take over, and altering commands in distant systems (Farwell and Rohozinski, 2011). Stuxnet was a "zero-day assault" that aimed to take advantage of a previously unidentified software flaw using a penetration approach that had never been utilised before (Clarke and Knake, 2010). In fact, the writers Clarke and Knake assert that the cyberattack consisted of four zero-day assault approaches, ostensibly so that it could try the next one if the first one proved unsuccessful.

The Stuxnet worm faced difficulties since, in reality, the infection's target, according to Farwell and Rohozinski, was not connected to any public infrastructure. Therefore, using an external device, like a USB memory stick, would be necessary for the infection. When infected, Stuxnet sought for and gained access to specific programmes known as Programmable Logic Controllers (PLCs) using Siemens' default passwords (McMillan, 2010). Fararo Paya, an Iranian business, produced the PLCs at Natanz (Clarke and Knake, 2010). This truth has significant implications that will be covered later.

SCADA (Supervisory Control and Data Acquisition) systems are also crucial. They are employed to manage massive industrial systems in establishments like factories, power plants, and military bases (McMillan, 2010). To put it simply, the SCADA system instructs and monitors the machines. Stuxnet
not only got entry but also changed the SCADA software. It then started to alter the cycle drive speeds in Natanz's gas centrifuges, which damaged the rotors and effectively rendered the centrifuge inoperable (Langner, 2010). Nearly 1,000 centrifuges at the Natanz complex, according to Clarke and Knake, were taken out as a result of the sabotage.

As was previously mentioned, the worm had entered other countries in addition to Iran. This was not on purpose. The worm is made to look for Siemens software that controls Fararo Paya PLCs (Clarke and Knake, 2010). The worm kept searching outside of this area, nevertheless, for the Siemens software. If the software and PLC recipe were not found, the infection spread to other networks while remaining dormant. As a result, the worm was now in the open, where hackers and cyber-warriors from all over the world could examine and decipher its intricate programming. Since it was never intended to be public, it amplifies the risks associated with cyber operations.

Who could be the perpetrator of this cyberattack? Four Iranian organisations were infected in June 2009, according to Clarke and Knake. Although the CIA or Mossad were aware of their connections to Natanz, none of the four were publicly known to have any (Clarke and Knake, 2010). This implies cooperation between the United States and Israel, if not direct action. Roel Schouwenberg, a researcher at Kaspersky Lab, concurs that a nation-state was most likely responsible for this cyberattack (McMillan, 2010). Sanger asserts that President Barack Obama sought to expedite former President George W. Bush's plans to increase the use of cyberweapons by the United States (Sanger, 2012). According to Sanger, confirmation of American and Israeli involvement came from conversations with current and former American, European, and Israeli officials. The following section on "Flame" will discuss claims of American involvement in another cyberattack in the Middle East. According to Langner, the attack required possibly years of planning because it was so sophisticated. At the time, this amount of complexity was thought to be unattainable, which suggests expert handling. Langner says, "let's just HOPE the US is the driving power behind Stuxnet" in light of the terrifying alternative (Langner, 2010). Langner suggests that another nation-state or maybe a private hacker group could have produced this level of intricacy in the absence of the United States.

Flame

The potential for control, disruption, and destruction of cyber-attacks was hinted at in the earlier case studies. These need not be the only tools available for accessing state resources, though. A nation-state may benefit from using cyber resources in ways that human intelligence may find implausible or unprofitable. The "Flame" computer virus would be a perfect illustration of this scenario.

Flame was not intended to cause harm. Instead, espionage was its main purpose. The initial outbreak, also known as Flamer and Skywiper, was thought to be in Iran, while other Middle Eastern countries also reported illness. Infections afterwards spread to neighbouring countries. According to experts, it's possible that tourists brought infected laptops abroad (Constantin, 2012). The compromised computers belonged to private persons, educational institutions, and government-related entities (Nakashima, 2012).

Researchers have determined that Flame is similar to Stuxnet, despite being about twenty times larger and more intricate than Stuxnet (Nakashima, 2012). (Constantin, 2012). Flame was created to be difficult to detect and was written in a computer language called LUA due to its stability (unusual for most malware campaigns) (Tsukayama, 2012). This implies that the creators wanted it to continue functioning as an espionage tool. In fact, the infection wasn't discovered until two years after the system was first activated, after the Iranian Oil Ministry noticed problems and looked into them (Nakashima, Miller and Tate, 2012).

According to Schouwenberg, this is the first virus that can send and receive commands and data using Bluetooth wireless technology (as cited in Nakashima, 2012). However, the principal methods of infection were through printer flaws and self-copying to portable USB devices (Constantin, 2012). Flame was allegedly capable of "recording keystrokes, activating microphones to record conversations, and collecting screenshots," according to CrySys, a cryptography and security lab (Nakashima, 2012). Flame is one of the most complicated threats ever detected, according to Alexander Gostev (Gostev, 2012).
Later, researchers discovered that Flame had also abused Windows.

Windows-powered machines should be updated. This indicates that the fully-patched workstations were infected by what appeared to be genuine code since the authors of Flame had in some way stolen the digital signatures of the code that allowed the malicious code to pass for code "authorised by Microsoft." Due to this, Microsoft decided to provide a repair right now rather than waiting for the scheduled patch date, just days after the cyberattack was first reported (Keizer, 2012).

Again, attribution proved difficult at first. According to Gostev's analysis, "hacktivists, cybercriminals, and nation-states are the three known kinds of players who generate malware and spyware" (Gostev, 2012). Given the difficulty, hacktivism is unlikely to be the source. Additionally, Flame did not intend to steal money from bank accounts, reducing the likelihood of cybercrime (Gostev, 2012). Finally, this intricacy leaves the evident conclusion that Flame was a tool utilised by nation-state(s), in addition to the geographic target of the attack (Iran, but also including Palestinian regions of Israel, Sudan, and Syria, among others) (Gostev, 2012).
In fact, Kaspersky Labs eventually concluded that a particular piece of computer code was used in both the aforementioned Stuxnet and Flame. However, Gostev notes that "part of the code from the Flame platform was used in Stuxnet," despite the fact that "conclusions indicate to the existence of two different developer teams" (Gostev, 2012). The results show that although two teams may have been separate, there was some coordination.

The Washington Post verified that Israel and the United States,"...co-created the sophisticated computer virus known as Flame" (Nakashima, Miller and Tate, 2012). The large piece of software also "secretly mapped and monitored Iran's computer networks, feeding back a steady stream of intelligence to prepare for a cyber-warfare operation" (Nakashima, Miller and Tate, 2012). It seems plausible to believe that Flame actually predated Stuxnet in light of this discovery. Schouwenberg claims that due to Flame's knowledge of networks connected to nuclear facilities, Flame let Stuxnet to destroy Natanz (Nakashima, Miller and Tate, 2012). An elaborate first strike on Iranian nuclear capacity resulted from what started as an intelligence operation.
Evaluation of Cases

The incidents show some fundamental goals of cyberattacks, including espionage, control, disruption, and destruction. Although nation-states were implicated in each and every case, it is crucial to remember that no case provided proof linking the suspected nation-cyberattack state's to it. Russian involvement or at the very least Russian backing is suspected in both the Estonian and Georgian instances. Suspicion is placed on the United Powers and Israel in both instances where Iran was the target of cyberattacks, with certain media "insiders" asserting proof of the states' involvement. The perpetrators of the cyberattacks are still unknown, despite accusations from some government officials and the media. This discovery has implications for the discussion of the attribution of cyberattacks in Chapter 5 further on.

The question of intended effects and the identity of the impacted entity or entities was another significant factor considered in these cases. Informational infrastructure was a target in both the Estonian and Georgian incidents. This left civilian and government organisations in a crippled state for a very long time. Additionally, there are reasons to believe that the military intervention into Georgia and the cyberattack by Georgia are connected. Both of the Iranian cyber-attacks, the final goal of which may or may not have been for military purposes, were targeted at locations thought to be engaged in uranium enrichment. These situations pose concerns about whether to target combatants or non-combatants and whether to target dual-use targets, which I also evaluate in Chapter Five.

Chapter Five:

International Law and Its Applications to Cyber war upon Nation-states

The risks of state-to-state cyber-war go beyond the everyday inconveniences that the average person faces. The majority of the populace is aware of the risks posed by viruses, worms, and other malware since they are so frequent among computer users. The majority of people have taken reasonable precautions to protect their assets from outside attack. Knowledgeable users are aware that malware protection is available, and it is their responsibility to maintain their security updated to stay on top of the most recent infestations. Companies that make malware protection software are likewise working very hard to do their best to stay up with the steady influx of new threats. Despite this effort, difficulties still exist. The national defences of states are mostly out of the hands of the average person. States must continue to speak with one another as members of the international community and safeguard their infrastructure. The domestic security measures mentioned above are essentially insufficient. States have a responsibility to safeguard and support all civilians, not just those who reside within their borders. Cyber-attacks, associated words, and the behaviours between states that are to become commonplace in a cyber-world must all be clearly defined by international conventions and accords. I contend that these standards should encompass international law governing cyberwar in addition to the current use of jus in bello.

Comparison to Nuclear Weapons

International law is "involved with law that functions primarily among sovereign countries (or "states"), emerging from sources such as treaties and the customary practise of states," according to authors Damrosh, Henkin, Murphy, and Smit (Damrosch, Henkin, Murphy and Smit, 2009). According to the authors, "from the Peace of Westphalia (1648) onward, international law was viewed as the law of the international community of nations, the fundamental elements in the global political system" (Ibid, 2009). However, after the First World War, a significant transformation emerged. In a "effort to organise the international community and to restrict the use of force," Malanczuk refers to this as "modern" international law (Malanczuk, 1997).

Article 2(4) of the United Nations Charter contains this prohibition on the use of force. Article 51, which serves as a qualification, grants states the right to collective and individual self-defense against armed attacks (United Nations, 1945). However, there is no instruction on the subject of cyberwar under the UN Charter. This makes sense given that the original UN Charter was established in 1945, a long time before this problem emerged. Swanson states unequivocally, "At the moment, neither customary international law (CIL) nor international humanitarian law (IHL) include any provisions that expressly forbid cyber-warfare or computer network attacks, whether they are carried out on their own or in times of conflict (Swanson, 2010). Swanson discovers that, despite shifting dynamics and capacities in conflict, international law has been able to address these issues. A legal foundation for resolving cyber-warfare challenges is provided by the Geneva Conventions as well as the international humanitarian law concepts of proportionality and unnecessary suffering (Swanson, 2010).

One can contend that cyber weapons are comparable to nuclear bombs. Their special abilities and traits necessitate special laws (Swanson, 2010). According to Shackelford, the cyberattacks on Estonia "do not differentiate between combatants and non-combatants, nor do they pass the test of proportionality," just like nuclear warfare (Shackelford, 2009). Nuclear weapons would "usually be antithetical to the rules of international law applicable in armed conflict, and in particular the principles and regulations of humanitarian law," according to the International Court of Justice (ICJ) (I.C.J., 1996). Cyber warfare used as a full-scale strike has the same potential for catastrophic results as nuclear warfare. Critical infrastructures being destroyed or otherwise rendered worthless due to a cyberattack is an example of how such an event could render a state powerless and result in unnecessarily suffering for its population. Cyber-attacks should be governed by the same principles of international humanitarian law as the deployment of nuclear weapons (Shackelford, 2009).

During the 20th century, the development of nuclear weapons among major states altered the nature of conflict. It was clear that nuclear weapons should not be regarded lightly after the world saw what they were capable of. The same, I would contend, may be said about the employment of cyber war remaining relevant in the twenty-first century. With this exception, nuclear weapons are less accessible to the general public, whereas anyone with the motivation and aptitude can learn how to hack. This may not be taken seriously unless a catastrophic cyber war-like event occurs because the world has not yet witnessed the enormous potential of cyber war on a large scale.

Shortcomings of Conventional Jus In Bello Application to Cyberwar

The Geneva Conventions provide guidelines on how combatants should behave. The Jus in Bello, or law of war, establishes limitations on the severity of harm to noncombatants. By enlisting in the military, non-combatants have not given up the same privileges that soldiers have. There must be a distinction made between civilians (and their entities) and combatants (and their entities). Therefore, the primary targets of an attack should be military goals (U.N.T.S. Protocol additional to the Geneva Conventions of 12 August 1949, Additional Protocol I, 2009).

Any items that are essential to the civilian population are also covered by the protections offered to civilians. But Hollis points out a problem with cyberwar: "The irony of information operations (IO) is that the less likely it is that a specific IO acts as an attack, the more likely it is that its deployment against civilians and their objects is legal." In other words, by enhancing militaries' ability to target (but not strike) civilians, IO progress may paradoxically cause conflict to have a greater impact on civilians. 2007 (Hollis). Any force that is used in a dispute must be matched with a commensurate reaction. For instance, Nation B does not automatically have permission to deploy a cyberattack to completely take down Nation A's national electrical infrastructure in response to a Nation A strike on a military facility in Nation B. Economic, health, and public safety sectors, as well as other public and commercial sectors dependent on electrical networks, would unavoidably be impacted by such an intensified response. That goes against both the Geneva Conventions' non-combatant rights and the proportional part of the current jus in bello.

In fact, another component of the law of war permits the military to target entities with "dual-uses." For instance, it is perceived that civilian employees at a military armaments production are acting in a "dual-use" capacity. As a result, military targeting would be appropriate for this institution. Almost all computer networks are susceptible to this threat. Hollis points out that as of 2000, civilian telecommunication and computer systems handled 95% of U.S. military traffic (Hollis, 2007). According to the "dual-use" criterion, any adversary might theoretically attack any communication system (if they are to be treated as military targets), and they could do so either by employing conventional weapons OR cyberwarfare. Through the usage of the digital infrastructure, attempts to obstruct military or governmental communications would also obstruct civilian use of the same infrastructure.

In fact, according to Schaap, "Cyber-warfare operations...create greater options for attacking dual-use devices" (Schaap, 2009). Although up to this point, efforts to support a rule of war have been well-intentioned, it is obvious that the use of just in bello to effectively cover the many details of cyberwar is oversimplified and naive. Cyberwar and its humanitarian repercussions on the non-combatants of the targeted state provide complications. This topic poses challenging issues and falls far short of allaying worries about asymmetric cyberwarfare between states and non-state entities or involving non-international areas and territories. To put it briefly, current international law is insufficient to cover all the complexities and situations that may lead to cyberwar (Hollis, 2007).

The Challenge of Attribution

According to Shackelford, the foundation for a robust international framework is the ability to attribute a cyberattack to a state (Shackelford, 2010). While a nation-state has been linked to some cases of government-sponsored cyber-attacks employing transnational networks, this is not always the case.

There are two worldwide standards that could provide direction on the subject of attribution. First, according to the idea of effective control, a state has authority over paramilitary organisations and other non-state actors if they operate "completely dependent" on it (as cited in Shackelford, 2010). On the other hand, the operational control concept discovered that if the state plays a role in providing assistance and coordinating on behalf of a specific group, there is enough overall control to ascribe a group's activities to the supporting state (as cited in Shackelford, 2010).

The notion of effective control, the first and more restrictive interpretation used more frequently by the International Court of Justice, may not be workable in the current cyberattack situation. Due to the difficulties in identifying the source of any cyberattacks, nations may conveniently conceal themselves under the idea of effective control. In many situations, it will be challenging to impose total government authority. But if the second, more permissive operational control paradigm is applied to the analysis of cyberattacks and their attribution, any country that merely coordinated and supported an assault would be attributed. The concept of operational control interpretation would undoubtedly decide that the involvement of Russia in the Estonian case, which was previously mentioned, was sufficient to award Estonia compensation (Shackelford, 2010).

It may take many years of practise for customary international law to become clear, hence it is crucial to have clarity on the issue of attribution. Even with a more solid foundation for attributive law, the broader problem still persists. If a hacker has the necessary expertise, they can use the advanced techniques of today and maintain their anonymity. Even worse, they might bring a nation-state or other independent entity into the fray. Without knowing for sure who launched the attack, the United States could interpret a cyberattack as an act of war and use force to defend itself if it destroyed critical infrastructure or killed enough people (Hollis, 2011). Therefore, even the most determined attempts to link cyber-attacks to a specific offender or perpetrators may fail or, worse still, assume a successful outcome.

Future of Cyber war Under Norms of Potential International Agreement

What is perhaps one of the most complicated, confusing, and potentially disastrous concerns the world faces today must be adequately governed by a future framework of standards that govern cyber war. Sadly, the international community is just now beginning to understand the implications of the threat this poses to global security and peace. Being reactive puts one at risk in the quick-paced cyber realm. To give nation-states and their domestic and international entities the chance to neutralise the potential risks that are inherent within the expanding cyber-world, a proactive approach to cyberwar is required. In order to avoid uncertainty and possibly disorder among governments in their responses to cyber-attacks, clear delineations of rules must be achieved.

There should be new international accords on the subject given the dangers and difficulties of cyberwar. The current systems in place to control warfare will not be adequate. The law of war was established to provide fighting a humanitarian component, but in cyberwar, the line between fighters and non-combatants is less clear. To prevent a modern catastrophe, non-combatants and the facilities they depend on on a daily basis must be preserved.

There are now regional cooperatives, such the NATO Cyber Defence Centre in Tallinn. To improve NATO's strength in cyber defence, the "NATO Cooperative Cyber Defence Centre of Excellence (NATO CCD COE) was formally formed on May 14, 2008. The Centre, which is based in Tallinn, Estonia, is a global initiative that now counts Germany, Hungary, Italy, Poland, Slovakia, Spain, the Netherlands, and the United States as Sponsoring Nations (CCD DOE, 2012). Their goal is to "improve NATO, NATO members, and partners' capability, collaboration, and information sharing in cyber defence through teaching, research, and development, lessons learned, and consultation" (CCD DOE, 2012). The centre, which is situated in Estonia, is a reminder of what can be done when lessons are learned from challenging situations. The cyberattacks of 2007 took place there. Unfortunately, it was because of these challenging circumstances that the problem became apparent. Before such a disruption occurs, the international society of states must reach a consensus on the issue. After all, a nation may not always be responsible for such acts. States should cooperate diplomatically on this crucial subject if they want to further their own domestic cyber-protections. Perhaps a global system akin to local cooperatives like the NATO Cooperative Cyber Defense Centre is required. "Any national government in the Information Age must rank the fight against cyber-terrorism, computer hacking, and economic cyber deception as a common strategy. This demands continuous coordinated engagement between groups of national governments" (Azarov and Dodonov, 2006).

The international community's responses to the conflict in Georgia and the Estonian cyberattack appear to show that friendly nations are ready to provide a hand in times of need. As was previously mentioned, the Estonian CERT issued a global request for assistance during the Estonian incident. As a result of friendly nations and businesses helping Georgia during the crisis, crucial information was posted online as Georgia was unable to do it. In addition, Estonia had sent IT security experts to Georgia during the cyberattacks to assist in getting the country back online. While customary international law can take some time to establish, there is precedent for aiding struggling units in times of crisis. In fact, if a party is under duress and properly requests aid, it must be provided if it is possible to do so under existing international law. There may be some parallel applications for cyber war in the United Nations Convention on the Law of the Sea.

Duty to Assist. The features of cyber-attacks and an SOS at sea share some similarities, according to Hollis, who writes: "Strikingly, the three components giving birth to the SOS at sea—incapacity, severity, and urgency—also characterise cyberthreats" (Hollis, 2011). Complex cyberattacks have the ability to "overwhelm the most intelligent individuals, groups, and even states" (Hollis, 2011). As was the case in Estonia and Georgia, the state became powerless until things were under control, and there is little doubt that outside help played a role in bringing the crises to an end.

Hollis contends that in terms of severity, cyberattacks have the potential to create systemic issues rather than just regional repercussions. Due to the intrinsic interdependence of many systems, even though economic impacts could happen, the entire system could become unpredictable. Effects that are sensed collectively affect the system, its users, and maybe an entire country. In fact, infrastructures that influence the distribution of resources, like water and power networks, can have substantial effects on living that go beyond simple system and economic considerations.

Without a doubt, the issue of urgency needs to be addressed. Threats from the internet can and can appear suddenly. There are occasionally hidden dangers, like logical bombs embedded in informational infrastructures. These potential crises are just waiting for the "all clear," so they can develop into serious problems.

Any international policy regulating the use of cyberattacks should adopt the duty to assist (DTA) paradigm. With specialists stepping in to help those in need on a global scale, the earlier issue of attribution becomes less important. Attackers might be discouraged from launching attacks in the first place if social norms emphasised the need to reduce harm rather than assign blame through a mutually agreed-upon duty to help. This is especially true if a state receives calls for assistance when it is being attacked itself. After being the victim of a cyberattack, Estonia asked the Russian government for help in stopping DDoS attacks coming from its territory. Russia claimed not to be in charge of the actual account and remained unhelpful. However, under the DTA rule, Russia might not be able to do nothing and instead might be required to help by the international standard. Of course, states must agree on the threats to be addressed, the legal recipients and expectants of support, the assistance-providers, and the assistance-recipients themselves (Hollis, 2011).

Nation-states have numerous reasons to agree on this proposal given the circumstances, but the agreement must include well defined protocols on this issue. According to Hollis, the Internet has grown to be essential. Realizing that everyone on the Internet is at danger while also having a stake in its success demonstrates a shared and vested interest in it (Hollis, 2011). People who discover they were unknowingly a part of a botnet might disconnect from it. Every small effort helps in the highly interconnected cyberspace, often with immediate results. As in the future, the converse may be true and the latter may need support from the former, individual nations can rely on their fellow states to help.

The key issue raised by this entire topic is whether or not cyberattacks should always be prohibited. States will wish to continue their strategies of cyber-espionage and possibly even cyber-warfare on military targets, therefore this universal ideal may be mistaken. Any international standards controlling cyberattacks must, however, be explicit about the types of cyberattacks that fall under the purview of any cyberjus in bello standard that nations may agree upon. From the standpoint of international law, cyber threats that result in needless human suffering must continue to be prohibited.

There is still the perception that there is still international anarchy in force, despite the fact that the international community may frequently continue to function under the guise of shared interests. In a global society, governments have equal standing and voice, but there is still the expectation that they may disregard laws if they believe doing so is in their best interests. A country that does not adhere to a set of international conventions that regulate cyberwar would be considered an unreliable member and would find themselves isolated. Nevertheless, I contend that if it serves their best interests, states will frequently find areas of agreement and should negotiate a deal on this global network known as the Internet. Since most states share a similar informational, networked infrastructure, maintaining its security until something better comes along to take the place of the Internet is in their best interests. Everyone is in the same precarious predicament till that time.

Chapter Six:

Conclusion

Cyberspace is referred to by Beidleman as "the world's nervous system; the control system of contemporary society." An international existential concern is its protection (Beidleman, 2011). Such a lofty emotion is shared by users who have grown to depend on the internet to carry out daily tasks. The need to use cyberspace for communication and growth is a result of the current, globalised environment. Future national and international security are hampered by the issue of cyber war. Although cyber war as we currently knows it is a relatively recent phenomenon, its transformation through technology development has placed a notable strain on international affairs.

I contend that now is not the time for unilateralism after examining the flaws of the realist and liberalist perspectives on international norms pertaining to cyber war and viewing the matter via the English School perspective. Instead, I contend that a global consensus must be reached on the issue of cyber war. An international society of states can continue regional and worldwide collaboration in the face of threats that have only lately come to light thanks to the atmosphere provided by the English School worldview. International customary law might be too slow to keep up with the rapid-fire pace of the internet. The hazards that exist in cyberspace require that states take preventative action rather than reacting. Those in the minority who think that this problem does not require immediate action just need to speak with experts in this field. While an umbrella would be useful and everyone should have access to one, this is not meant to be a figurative "the sky is falling" mentality.

The featured case studies have demonstrated that states (as well as competent individuals and other actors) are capable of fostering an environment that renders those who are impacted helpless and damaged. The possibility of a global agreement may be consoling, but it must be transparent and address the numerous complexities and dangers that are inherent to the problems of cyberwar. I advise that the international community seek some clarity and consensus among its members through recently created principles that may be enshrined in treaties. A new system of international law must be approved and put into effect to start regulating cyber war in the twenty-first century and beyond, much as the nuclear threat people faced in the twentieth century. Less is more when it comes to cyber security.

References

The Australian Solicitors Conduct Rules?

Question

Task: Describe the Australian Solicitors Conduct Rules?

Answer

Introduction

Australian lawyers provide legal services to a variety of clientele in a variety of settings. The Australian Solicitor Conduct Rules are applicable to all solicitors, regardless of their involvement with community centres, legal aid groups, private practice, in-house legal counsel, government law, or volunteering. According to the Australian Solicitor Conduct Rules, a solicitor shall never deal with or benefit any other party that is represented by or compensated by an insurer in the solicitor's knowledge unless both the party and the insurer have indicated their willingness to do so. All Australian solicitors must abide by these regulations given in law coursework assignment samples and others in order to practise their profession. All Australian states and territories have accepted the guidelines to guarantee that all Australian solicitors are committed to and bound by a common set of professional duties and ethical standards when working with clients, courts, other attorneys, regulators, and other connected parties. The goal of introducing these regulations is to help the acting solicitor perform to the best of their ability within a regulated environment. These regulations are written in a way that makes it easy to determine whether a lawyer has participated in improper behaviour or professional misconduct. The Australian Solicitors' Conduct Rules were initially resolved by the Law Council in June 2011. In March 2015 and April 2015, the Law Council of Australia accepted a number of minor modifications to the rules. Any violation of the regulations by a solicitor may be considered professional misconduct or unsatisfactory professional misconduct. However, the appropriate regulating authority may decide to discipline the solicitor in response to this; no other party may impose them (Doulman Vs. ACT Electronic Solutions Pty Limited & Anor, 2011). If any common law or law prescribes higher criteria than these regulations, a solicitor is required to follow them. Similar to this, if a rule has higher requirements than the common law or legislation, it needs to be compiled. The acting solicitor must be aware of these additional regulations.

A council has a fundamental obligation to the court and the government, according to Rule 3. Additionally, the rule states that if there is any inconsistency, the duty extends to the extent of that inconsistency. Although Rule 4 stipulates the core ethical obligations of a solicitor. According to Rule 4.1, the lawyer must act in the client's best interests because the client is being represented by the lawyer. When responding to inquiries about the legal profession, the solicitor must maintain their integrity and politeness. The solicitor should offer knowledgeable and thorough legal services. These services should, however, be provided as quickly as is practical given the situation. While Rule 4.1.4 states that a solicitor may not participate into any agreement that jeopardises their professional independence and integrity. According to Rule 4.1.5, solicitors are required to abide by all applicable laws and regulations (Bufalo Corporation Pty Ltd Vs. Lend Lease Primelife Ltd. 2010).

The relationships between a solicitor and their clients are outlined in Rules 7 to 16. Communication of advice, client instructions, confidentiality, conflicts with current clients or former clients, conflicts with a solicitor's own interests, completion or termination of the engagement, client documents, liens over crucial documents, and charging for document storage are a few examples of these. A solicitor is required by Rule 8 to abide by the client's legal, competent, and appropriate directions. According to the common law presumption, every adult has the capacity to make an independent decision, excepting cases of old age, mental disability, suspicion of fraud, having the power to exert undue influence, incapacity, or situations in which the client is unable to communicate. The presumption of legal ability must exist in the client, and the lawyers must be persuadable convinced that the client is mentally capable of giving the instructions. The lawyer shall refuse to represent a client whose mental health the lawyer finds to be unsatisfactory. The issue of incompetence and the solicitor's liability under negligence will arise in the event of any failure or carelessness on the side of the solicitor (Walker Vs. D'Alessandro, 2010). In accordance with Rule 9.2.3, a solicitor who is uncertain about a client's ability to give suitable directions or a response in a certain circumstance may seek confidential guidance on the ethical or legal duty of the solicitor.

The solicitors must exercise the utmost caution when using the court's procedures and privileges, according to Rule 21. According to Rule 21.2, the solicitor must make sure that the proofs that are already in his possession can properly support the accusations that he has made against any person. This is necessary for the case's active advancement, and it should be established that the accusations are not being made solely to annoy or shame a person (Pont, 2013).

The 2011 Barrister's Rule included certain new regulations without altering the ethical standards, such as Rule 12. This rule acknowledges the importance of barristers in the administration of justice. The Advocacy Rules are introduced with the goal of maintaining communication between solicitor advocates and the bar. Rule 27.1 makes it clear that the solicitor may not represent the client at the hearing if doing so could require the solicitor to provide material for his testimony. While the same conditions as Rule 27.1 apply, Rule 27.2 allows the solicitor to present the client but not as the client's attorney as long as it doesn't interfere with the administration of justice.

A lawyer has obligations to the court, such as acting independently when it is in the best interest of the administration of justice. A barrister has a duty not to intentionally or unintentionally mislead the court (Pont, 2013). If the barrister learns that a statement of this nature has been made in error, they must immediately take all necessary action to rectify the situation. The regulation further states that if the barrister grants relief to an ex-parte application, the barrister must disclose all the facts and legal issues that are in his or her knowledge to the opposing party. Because the underlying legal issues in such a case are not shielded by the legal profession and because there are plausible grounds for the barrister to think that granting the relief is appropriate.

A barrister is also required to fulfil obligations to clients, which are outlined in Rules 37–40. In accordance with Rule 37, a barrister must diligently and fearlessly protect the client's interests. A barrister is required by Rule 38 to tell the client of the alternatives to a fully disputed adjudication. According to Rule 39, a lawyer must try his utmost to help a client understand their rights and responsibilities in a particular case as well as the issues that are at stake. In accordance with Rule 40, the attorney must inform the client (who has been accused of a crime) of any benefit, method, or practise made possible by the applicable body of legislation. The barrister is also required to use the legal system and privileges honestly and responsibly. The Rules 59-67 define these responsibilities.

References

G E Dal Pont, 2013, Lawyers Professional Responsibility, 5th ed.
Case Law

Doulman v ACT Electronic Solutions Pty Limited & Anor [2011] FMCA 232

Australian Solicitors Conduct Rules, 2012

Bufalo Corporation Pty Ltd v Lend Lease Primelife Ltd [2010] VSC 672

Walker v D’Alessandro [2010] VSC 15

The Independent Director and Effective Corporate Governance Assignment Sample

PART 1

CHAPTER ONE

INTRODUCTION

The phrase "corporate governance" has been in use for almost twenty years.

It has attracted a lot of interest recently, and like many popular notions, it is a little vague and, to some, has devolved into a cliché. It is an abstraction that has almost universal acceptance but is subject to varying interpretations. According to others and law dissertation help the phrase "came into mainstream use in the United States in the mid to late 1970s as a result of the Watergate crisis and the revelation that significant American firms had participated in covert political donations and corrupt payments overseas. A notion distinct from corporate management, business law, or corporate organisation eventually gained popularity in Europe.

The separation idea, as put forward by Adolf Berle and Gardener Means in their eminently renowned book "The Modern Corporation and Private Property," is, nevertheless, the source of the basic issue with corporate governance.

According to this idea, a "separation of ownership by passive shareholders from control by a tiny self-perpetuating management group" has developed in contemporary business. The tiny number of managers have a fair amount of discretion in how they run the publicly traded company (for their own interests, not that of the helpless and passive shareholders). According to Berle and Means, there is a considerable conflict of interest between who owns and controls the contemporary company. At the start of the 1930s, the writers looked at the kind of control that was being used over the 200 biggest American firms. They came to the conclusion that the management or a legal mechanism (such as voting trusts or non-voting shares) with a tiny fraction of ownership controlled 65% of the enterprises and 80% of their total value.

CORPORATE GOVERNANCE: AN OVERVIEW

Corporate governance experts, academics, and critics have all proposed several definitions of corporate governance. It is referred to as "the system of rules and institutions that establish the management and direction of the business and that define interactions among the organization's key actors" in a more restrictive definition. 9 To put it another way, corporate governance is the process by which businesses are managed and directed, with shareholders—those who provide the majority of a company's funding—being the main focus. According to this perspective, the corporate goal should be to preserve and maximise shareholder investment. This philosophy of corporate governance is also known as the "shareholder hypothesis."

In nations like the United States and the United Kingdom, where the idea is that the issue with corporate governance is making sure the company is run in the shareholders' best interests, this "shareholder-centric" approach to corporate governance is prevalent. The shareholders are the corporation's primary recipients of its earnings, which are intended to be made. Corporate governance in these nations, which are characterised by a widely distributed share ownership structure, focuses primarily on defining the relationship between the three main stakeholders in a corporation: shareholders, the board of directors, and business management. Once again, the Anglo-American model of corporate governance is occasionally used to describe this.

In a broader sense, corporate governance has been described as "the organisations and regulations that alter expectations about the exercise of control of resources in enterprises" and "the rules and the Institutions that determine how commercial corporations divide resources and returns." It covers the complete web of official and informal relationships affecting business and their effects on society at large. To put it another way, corporate governance focuses on maintaining a balance between social and economic objectives and managing the business as a community for the benefit of all stakeholders, such as shareholders, workers, creditors, suppliers, and the general public. The goal of corporate governance is to harmonise the interests of the corporation and the broader community. The "stakeholder theory" of corporate governance is another name for this.

This "stakeholder" approach of corporate governance is quite common in Japan and Continental Europe, particularly in nations with corporate systems characterised by a more concentrated share ownership structure. According to them, corporate governance entails society regulating firms for the benefit of society (corporate social responsibility). Companies are seen as social entities with obligations and responsibility, and in addition to the conventional category of shareholders, corporate aims also include serving the interests of other groups, such as workers and the larger society.

The current wave of high-profile scams and scandals that have rocked organisations has contributed to the increased focus on corporate governance.

Corporate governance had been a growing concern for those who control and direct companies, as well as society at large, ever since the failures of Polly Peck, Guinness, Maxwell, and BCCI in Europe, but the corporate failures and wrongdoing that have come to light since late 2001 have significantly increased the temperature of the international corporate governance debate. Investor confidence in the honesty of those responsible for the oversight and management of our larger companies has been severely impacted by the scandals at Enron, Arthur Anderson, Tyco, Global Crossing, Adelphia, and WorldCom in the United States, as well as at Ahold, Parmalat, One.Tel, HIH, Equitable, and currently Shell in Europe and other parts of the world.

Factors including executive avarice, dishonesty, accounting errors, insolvent trading, ineptitude, high executive remuneration, a lack of responsibility, and executive hubris are at the heart of numerous company disasters. These collapses are also caused by inactive boards of directors, subpar management and auditing procedures, directors who violated their fiduciary duties, ostentation, and waste. The main catalysts for the worldwide reactions to and efforts at corporate governance changes, especially from late 2001, were these events and the repercussions that followed.

The Public Company Accounting Reform and Investor Protection Act, also known as the Sarbanes-Oxley Act, was swiftly passed in the United States in the wake of the Enron scandal in 2002. This law "tightened regulations on a public company accounting oversight board, auditor independence, corporate responsibility, white collar crime penalties, and fraud and accountability"16. In other words, it was created to make it easier to tighten accounting standards and increase the independence of external auditors from management. It was the first brand-new piece of corporate regulatory legislation in in than 50 years and is regarded by many as the most significant revision to U.S. securities laws. New regulations were also enacted by the NASDAQ and NYSE, giving independent directors of listed businesses a bigger role.

In the UK, which has seen its fair share of company failures, a number of committees were asked to identify best practises for various areas of business activity. In response to the recommendations of these committees, corporate governance practises and structures inside UK corporations have undergone substantial modifications. The Cadbury Committee on the Financial Aspects of Corporate Governance, the first corporate governance committee, was established in 1991 as a result to concerns about lax corporate governance standards. "To assess those areas of corporate governance especially relevant to financial reporting and accountability," said the committee's mandate. 19 In 1992, it released a report that included a code of best practises (the Cadbury Code of Best Practice) for all publicly traded firms.

The Study Group on Directors' Remuneration (also known as the Greenbury Committee) was established in response to public complaints over excessive amounts of director compensation. Its goal is to find best practises for setting director compensation. In July 1995, it released a study and code of best practises on the factors affecting directors' compensation. 20In addition, the Committee on Corporate Governance (also known as the Hampel Committee) was founded in November 1995.

The Cadbury and Greenbury committees' suggestions were included in a set of principles and a code that this committee issued. The London Stock Exchange, which requires corporations to report on their compliance with the code under its listing requirements, has accepted the so-called "Combined Code."
The "King Report on Corporate Governance" was published in November 1994, institutionalising corporate governance in South Africa.

21 Under the aegis of the Institute of Directors of Southern Africa, the King Committee on Corporate Governance was established to examine corporate governance in the context of South Africa. 22 The report's goal was to advance the highest standards of corporate governance in South Africa, and it included a Code of Corporate Practices and Conduct that was meant to be followed by all significant public corporations in South Africa as well as firms listed on the JSE Securities Exchange. 23 In 2002, a revised version of the King report—referred to as King II—was published.

EMERGENCE OF THE INDEPENDENT DIRECTOR

The idea of the independent director has taken on a life of its own among corporate governance experts and pundits all over the globe. The commercial and corporate sphere has also widely embraced the idea. In fact, it has been suggested that independent directors make up the whole board of a corporation, with the exception of the chief executive officer. While some would go thus far, many think that the board should at the very least include a sizable number of independent directors. Frederick Lipman advises that completely independent directors should be included on the governing bodies of all organisations, whether they are referred to as boards of directors or not, and ideally should make up the majority of all directors, in his book on the best practises for corporate governance.

A review of laws and other corporate governance tools throughout the world indicates the broad support that this concept of an independent director has. The Combined Code of the UK and the Australian Corporate Governance Code, for example, both mandate that the board be made up of a sizable number of independent directors. The two regulations also foresee a significant role for such directors by mandating that the majority of independent directors serve on specific board committees, such as the audit, nominating, and compensation committees. In Australia, nine of the top 12 institutional investors agreed that it was crucial for listed companies to have some independent members on their board. They said that they want a majority of independent directors on the board.

The New York Stock Exchange's (NYSE) corporate governance guidelines in the US mandate that the majority of the directors on the boards of listed businesses must be independent. According to the guidelines, requiring a majority of independent directors would improve board supervision and reduce the likelihood of detrimental conflicts of interest. In accordance with the regulations, every listed company must have nominating, compensation, and audit committees that are wholly made up of independent directors. Similar to this, the South African corporate governance code (King 11) mandates that business boards be made up mostly of independent non-executive directors. The corporate governance code for Nigerian banks, which was published in April 2006, stipulates that there must be more non-executive directors on the board than executive directors, and that at least two of these non-executive directors must be independent.

The International Corporate Governance Network (ICGN) recommends that each board include a "strong presence of independent non-executive members with suitable capabilities" in its statement on global corporate governance standards. In a similar vein, the Organization for Economic Co-operation and Development (OECD) states in its corporate governance principles that the board must be able to exercise objective judgement on corporate affairs in order to carry out its responsibilities of monitoring managerial performance, preventing conflicts of interest, and balancing competing demands on the corporation. This implies that a sufficient number of board members must be free from managerial influence. It is important to have a sizable percentage of independent directors on the board, according to the French Principles of Corporate Governance, not only to meet market expectations but also to elevate the standard of proceedings. This is despite the fact that the effectiveness of the board of directors cannot be assessed solely in terms of the proportion of independent directors on the board.

Whatever the advantages, there is a tendency toward increased independence on corporate boards, which is praised by the majority of analysts. Major institutional investors do believe that independent directors add value, and have been vocal supporters of them. Examples include the California Public Employees' Retirement System (CalPERS), the largest public pension fund in the US, and institutional investor representative bodies Alternative Investment Management Association (AIMA) and Investment and Financial Services Association (IFSA), both in Australia. According to CalPERS's corporate governance principles and guidelines: The basis of accountability is independence... Independent boards are now universally acknowledged as being crucial to a strong governance system throughout the US. The number of independent directors on the board should be at least a majority. Boards should seek to have a significant majority of independent directors on their board.

The question of whether adding more independent members to boards will inevitably improve corporate performance is very different and will be addressed in a later section of this investigation. However, it is important to consider the justification for the addition of independent members to corporate boards.
RATIONALE FOR INDEPENDENT DIRECTORS

In the contemporary public corporation, there is a separation of ownership (a firm is seen to be owned by its shareholders) and control (a company is governed by managers who do not own it), which has resulted to agency costs that obstruct effective corporate decision-making. These agency costs include I the expenses shareholders expend in monitoring management to reduce the gap in their interests; (ii) the managers' bonding expenses; and (iii) the residual loss arising from the remaining divergence in shareholders' and managers' interests. Indeed, the contemporary corporation's organisational structure offers clear benefits to both managers and shareholders who act as capital providers. Owners of shares may benefit from business endeavours even if they lack management abilities. Managers, on the other hand, might pursue lucrative company prospects while having little personal wealth. The labour is divided in a way that benefits both parties.

However, shareholders want their agents—the firm's managers—to maximise wealth since they are residual claims on the revenue stream of the company. Managers don't have as much motivation to maximise wealth as they would if they were the principals since they can't keep all the profits if the business succeeds and won't take all the losses if it fails. Instead, managers have a motivation to spend more money on leisure and perks than they otherwise would, and to generally be less committed to the objective of wealth maximisation. One commenter asserts that as management seldom owns a large portion of shares in such organisations, they often only earn a little portion of the profits produced by their operations. As a result, they tend to behave selfishly. As a result, they operate in their own best interests rather than making an effort to maximise shareholder value. And to the degree that senior executives pursue their own goals rather than working to increase the company's profitability, they charge investors what are often referred to as "agency fees."

A variety of strategies were developed to balance the interests of non-owner management with those of shareholders in an attempt to lower these agency expenses. One such technique was the addition of the independent director. This agency-cost justification for the introduction of the independent director is based on the idea that outside directors must be independent of executive management and free from any business or other relationships with the company that could compromise their autonomy in order for the board to properly exercise its oversight and monitoring role over management decisions and activities. Independent directors are seen to be in a better position to efficiently supervise the senior management.

Many advocates for board independence have used this agency-cost justification for adding independent members to corporate boards. Despite their lack of significant personal wealth, the Cadbury Committee has access to commercial prospects. The labour is divided in a way that benefits both parties.

However, shareholders want their agents—the firm's managers—to maximise wealth since they are residual claims on the revenue stream of the company. Managers don't have as much motivation to maximise wealth as they would if they were the principals since they can't keep all the profits if the business succeeds and won't take all the losses if it fails. Instead, managers have a motivation to spend more money on leisure and perks than they otherwise would, and to generally be less committed to the objective of wealth maximisation.

One Analyst stated:

"Management develops the predisposition to operate in a self-serving way since they seldom hold a significant number of shares in such businesses and only earn a small proportion of the profits created by their operations. As a result, they operate in their own best interests rather than making an effort to maximise shareholder value. And to the degree that senior executives pursue their own goals rather than working to increase the company's profitability, they charge investors with what are known as "agency charges."

A variety of strategies were developed to balance the interests of non-owner management with those of shareholders in an attempt to lower these agency expenses. One such technique was the addition of the independent director.

This agency-cost justification for the introduction of the independent director is based on the idea that outside directors must be independent of executive management and free from any business or other relationships with the company that could compromise their autonomy in order for the board to properly exercise its oversight and monitoring role over management decisions and activities. Independent directors are seen to be in a better position to efficiently supervise the senior management.

Many advocates for board independence have used this agency-cost justification for adding independent members to corporate boards. Independent directors, according to the Cadbury Committee of the United Kingdom, are particularly helpful in reducing agency costs associated with takeovers, boardroom succession, and executive compensation. Non-executive directors also have two crucial contributions to make to the governance process as a result of their independence from executive responsibility…. The first step is to evaluate the executive's and board's performance…. The second is when someone takes the initiative, which might lead to conflicts of interest. Recognizing that there may sometimes be conflicts between the senior management's specialised objectives and the company's larger interests, such as when it comes to takeovers, boardroom succession, or director compensation, is a crucial component of successful corporate governance. Independent non-executive directors are in a good position to assist in resolving such issues since their interests are less immediately impacted.

The Organisation for Economic Co-operation and Development's (OECD's) corporate governance principles concur, stating that independent board members may considerably influence the board's decision-making. They may provide an unbiased perspective to the assessment of the board's and management's performance. Additionally, they may be crucial in areas where management, the firm, and shareholders' interests may not align, such as CEO compensation, succession planning, changes in corporate control, takeover defences, significant acquisitions, and the audit function.

In Australia, the Alternative Investment Management Association (AIMA) published corporate governance guidelines in 1997 that state "if the majority of the board are genuinely independent they have the power to implement board decisions even contrary to the wishes of management or a major shareholder, if the need arises."

When it asserts that non-executive directors contribute an external judgement on matters of strategy, performance, resources, standards of behaviour, and performance assessment, the South African Corporate Governance code likewise reflects the same topic.

Another justification for the independent director that originated from the OECD is that, as a vehicle of good corporate governance, their presence on the board is required for accessing global capital markets. The OECD claims that investors "rely increasingly on the corporate governance of the firms they invest in or lend to to offer accountability and responsibility to the investors and, a failure to adapt to efficient governance standards may possibly lead to limited access to capital markets." The OECD recommendations state:

The extent to which firms obey fundamental principles of good corporate governance is an increasingly essential element for investment choices, echoing the same subject and correctly highlighting the significance of excellent corporate governance practises. The connection between corporate governance procedures and the increasingly global nature of investment is particularly pertinent. Companies are able to get finance from a much bigger pool of investors because to international capital flows. Corporate governance structures must be trustworthy and widely understood in order for nations to fully benefit from the global capital market and to draw in long-term "patient" capital.

CHAPTER TWO

COMPARATIVE ANALYSIS OF THE CONCEPT OF INDEPENDENT DIRECTOR

As was already said, corporate governance has received a lot of attention recently on a worldwide scale. This is mostly attributable to the several recent company failures, which in turn prompted improvements in corporate governance. The rise of the independent director is a result of these changes. According to some, the creation of the independent director notion is what makes corporate governance tick. There is no question that achieving effective corporate governance depends on independence. High levels of independence and impartiality are necessary for the board of directors to properly carry out its responsibility of efficiently overseeing the actions and decisions of management. Therefore, it is impossible to overstate the importance of the independent director in corporate governance.

It is helpful to examine other definitions of the idea before doing a comparative study of the independent director definition found in a few corporate governance Acts and recommendations. Indeed, the term "independent director" defies easy explanation since it is rather vague. For many commentators, it has diverse meanings. The words outside director, non-executive director, non-interested director, non-management director, non-employee director, disinterested director, etc. have all been used interchangeably. Despite the fact that each of these titles has a unique definition and suggests a distinct job for the director it refers to, they are commonly used interchangeably.

The independent director is defined by the Council of Institutional Investors as a person "whose directorship is his or her sole tie to the business." The only nontrivial professional, family, or financial tie an impile has to the company, its chairman, CEO, or any other executive officer is his or her directorship, according to the definition given in the definition.

The Council members acknowledge that a director's impartiality and devotion to shareholders are dependent on all of the ties the director has, including relationships with other directors. According to the Organisation for Economic Co-operation and Development (OECD), an independent director is a person who does not work for the firm and is not in a close familial or personal relationship with it or its management. In addition to earning director compensation, he or she is a non-executive director who, "apart from having such skills for being regarded as an independent director, does not have any substantial connection or transaction, of such amount as may be required, with the business."

Independent directors are a subset of non-executive directors (not all non-executive directors are independent), who are free from management, powerful shareholders, and other competing interests including those of the company's employees and suppliers of products and services. The independent director is one who "has no link of any type whatsoever with the company, its group, or the management of either that is such as to colour his or her judgement," according to the French code of Corporate Governance for Listed Companies. He or she should also be considered to be "one devoid of any special ties of interest" (major shareholder, employee, etc) with them in addition to being a non-executive director. In his work titled "The Independent Director in Chinese Corporate Governance," Donald C. Clarke provides a fascinating description of the independent director. He claims that an independent director will be able to speak out both within and outside of the boardroom in the face of management wrongdoings in order to safeguard the interests of shareholders since they have no need or desire to maintain good relations with management.

KING II, AUSTRALIAN CODE, COMBINED CODE UK

The corporate governance standards examined in this research are from countries with various cultural traditions, ownership structures, historical financial practises, and legal foundations. The German and French codes, for example, indicate the two-tier board system, whereas other codes represent the unitary (or one-tier) board system. Despite having different historical roots, the rules are very similar, particularly in the way they see the important functions and obligations of the board and provide suggestions for improving its composition, structure, and procedures. For instance, although though the functions are more clearly defined in the unitary rules, both the supervisory and management roles of the board are recognised in all of the codes. The guidelines advise the selection of non-executive (or outside) directors who are independent from the board's administration in order to emphasise the distinction between the two roles. Additionally, they advocate for the separation of the CEO and board chairman responsibilities (or managing director). They advise that distinct people fill the two jobs.

The guidelines also advocate for the appointment of a senior (or lead) independent director to function as a point of contact or mediator amid major conflicts between executive and non-executive directors, as well as when the chairman and board are being evaluated for their performance. Some, like the Australian code, advocate having an independent director serve as the chairman. They suggest that each director's independence be regularly evaluated, and in this respect, each director is to tell the board of his personal interests. The names of the directors who the board believes to be independent must be revealed, together with the board's justifications, in the company's annual report. With this strategy, it is hoped that investors would be better informed and able to evaluate the level of the board's independence and its requirements for independence. The regulations also acknowledge that a committee structure allows the board to perform its supervisory function more successfully. This is especially true in areas like audit, nomination, and pay where there may be a conflict between the company's and management's interests. The guidelines suggest that independent directors serve a substantial role on the audit, nominating, and pay committees in addition to advising the formation of these committees. For instance, each listed firm must have audit, nomination/corporate governance, and pay committees, and these committees must be made up completely of independent directors, according to the NYSE corporate governance guidelines.

This section of the paper makes an effort to compare how different corporate governance instruments define a "independent director." We begin by contrasting the definitions of the term found in the South African code (King II), the Australian code, and the combined code from the UK, which are all examples of the "unitary board" structure that is common in the Anglo-American corporate system. The definition given in the French code, which is a representation of the "two-tier board" structure that is prevalent in Continental European corporate systems, is then compared to these. The concept of an independent director as stated in the NYSE corporate governance guidelines is the last term we will examine.

Most of these regulations take a two-pronged approach to bolstering board independence. They support increasing the number of independent directors serving on the board and its committees, on the one hand. They instead use a broader but more constrained concept of independence. This appears to demonstrate a strong conviction in the independent director's ability to address the issue of corporate governance that permeates the business sector. Expectations of independent directors are rising as a consequence, while it is yet unclear if more board independence leads to improved company performance. A key finding from a review of these definitions is that they are negative in nature and include criteria that rule out a director from being regarded as independent. They describe the factors that make it impossible for a filmmaker to be autonomous. They often provide a list of situations or connections that suggest non-independence rather than a clear description of what independence entails.

The exceptions to this rule are the definitions of the Combined Code and the French code. What they do is provide a list of many factors that may be important in deciding whether a director meets the requirements for independence. They describe some situations whose presence could be important in figuring out a director's independence. As a result, they provide corporate boards some discretion to assess director independence by taking into account each director's unique circumstances and affiliations. This implies that a director would not instantly become independent or cease to be regarded as independent simply because any of the situations stated above existed. Each director's unique situation and affiliations would need to be taken into account separately by the board when reaching a decision.

The definitions' structural approach to the idea of independence, where "independence appears to imply being consistently in a position free of any conceivable conflict of interest," is another thing to note. They seem to adopt a more formal strategy. Character, attitude, and judgement are other independent-related elements that have not been taken into account. Instead, the emphasis is on the conditions and events that might lead to conflicts between the independent director's personal interests and those of management. When it states that "the board should determine whether the director is independent in character and judgement and whether there are relationships or circumstances which are likely to affect, or could appear to affect, the director's judgement," the combined code appears to acknowledge the significance of these other "soft" components of independence. Some of the other codes also recognise that independence cannot be determined only by adherence to their formal specifications. In fact, certain recent corporate scandals have shown that only having nominally independent directors present without these "soft" components, such as an independent mindset and a solid character, would not shield companies from future governance violations. No code of corporate behaviour and ethics, in accordance with NYSE regulations, can substitute for the considerate actions of an ethical director, officer, or employee. However, a code of conduct like this may direct the board and management to areas of ethical risk, provide advice to staff to assist them recognise and handle ethical difficulties, give channels to report unethical behaviour, and help to develop a culture of honesty and responsibility.

The definitions of independent directors in South Africa, the United Kingdom, and Australia may be closely compared and found to have a very similar structure. Each one of them has seven distinct situations or components that, if present, would make a director autonomous. The three definitions agree that an independent director is a non-executive director as a starting point. To put it another way, an independent director isn't a full-time paid worker of the business or group and isn't responsible for day-to-day management. Since the idea of independence implies separation (independent) from executive management, this is, of course, the foundation upon which independence may be evaluated in the first place. Additionally, it should be remembered that not all non-executive directors may be regarded as independent.

While the King II and Australian definitions concur that an independent director must not have worked for the company or group in an executive capacity in the three years prior to being appointed as a director, the combined code states that whether he has worked for the company or group within the last five years is a factor that is relevant to whether the board should consider the director to be independent. It is evident that the obligation under the combined code has a greater reach. The definition offers the board some discretion in assessing a director's independence. In other words, even though this director may have worked as a corporation executive, they might still be regarded as independent.

Ironically, it makes sense to infer that a director who had held a senior executive position within the recent three to five years would not be independent. Indeed, given the nature of the position, there would very certainly be conflicts of interest, and it is difficult to see how such a director, who has previously served as an executive "insider," could continue to function objectively. Although it could be assumed that a director would be independent if the prior employment was in a non-executive capacity, the board is expected to consider the specific circumstances of that prior employment in order to make that determination. The key factor is the director's prior executive employment.

It should be noted that the combined code provides for a five-year period, which is consistent with the five-year look-back period of the Council of Institutional Investors 2006 director independence standards. King II and the Australian definitions only allow for a three-year (financial) look-back period. An independent director cannot have served as a director after leaving any such employment with the firm, according to the Australian definition. This might imply that a director who served as a non-executive director of the same firm for the previous three years would not be regarded as independent.

An independent director is one who has no substantial contractual tie with the firm or group and who is not a significant supplier to or client of the company or group, according to King II and the Australian code. The Australian definition goes further by stating that the director in question cannot be an official of, connected to, or a client of a material supplier of the firm or group. This might imply that, under King II, a non-major supplier or customer independent director could yet serve as an executive of or be connected to a significant supplier or customer of the business. In this aspect, the Australian definition is more useful since it aims to minimise any circumstances that can compromise a director's independence of judgement. The director's personal interests and those of the firm might potentially collide via such indirect relationships with customers or suppliers.

An independent director must be free from any business interests or relationships that could reasonably be seen or perceived as interfering with his ability to act independently or in the best interests of the company, according to both King II and the Australian definitions, which could be referred to as a "omnibus criteria." This clause's crucial component is not necessarily the existence of such a connection or interest; rather, what matters is how significant such a relationship or interest is. Is it such that it could obstruct the director's ability to make autonomous decisions? This clause seems to include all such indirect relationships that are not covered by the other parts. An illustration of this would be if a director was involved with or had a connection with a political or philanthropic organisation that the firm supported. In this situation, it would be necessary to assess how much the director's connections would impair his capacity to act impartially and in the best interests of the firm. There doesn't seem to be any such clause in the definition of the combined code.

A large shareholder's representative may not be an independent director, according to the unified code. In accordance with King II, a non-representative director is one who is not a controlling shareholder's agent; in accordance with Australian law, a non-representative director is one who is not a substantial shareholder of the company, an officer of the company, or otherwise directly connected to a substantial shareholder of the company. This may be taken to suggest that independent directors could be substantial shareholders themselves or officers of significant shareholders under the criteria of the unified code and King II. The purpose of this portion of the definition is to guarantee that the independent director does not act to safeguard the interests of merely a constituency of shareholders, namely controlling shareholders. If this were the objective of the drafters of these regulations, the goal would be thwarted. In order to safeguard the interests of all shareholders and not just a subset of them, he is supposed to be independent of management. Where the director is a large shareholder or an officer of a significant shareholder, it would be challenging to do this. In such case, there would undoubtedly be a conflict of interest. By no means does this imply that the independent director should have a stronger motivation to operate in the best interests of the shareholders. Independent directors should not vary from other directors based on their personal characteristics. All directors should ideally act in the best interests of all shareholders.

The King II definition further stipulates that an independent director cannot serve as a group or company's professional adviser. The Australian code is more specific in stating that he must have served as a principal or employee of a significant professional advisor or consultant to the firm or group during the three years before. The term "material" implies that there are experts who are deemed to be non-material consultants and counsellors. To put it another way, keeping connections with them may not be bad for the business or the director's feeling of independence.

Since he is a principal or employee of a non-material professional advisor or consultant to the firm, such a director may still be regarded as independent. Again, it would appear that the goal of this component is to avoid the potential conflict of interest issue and resulting lack of impartiality that would undoubtedly develop if a director also serves as a corporate advisor or consultant. On this subject, the Combined Code is quiet.

The Combined Code, however, stipulates that an independent director cannot have, or have had during the previous three years, a substantial commercial involvement with the firm, either directly or as a partner, shareholder, director, or senior employee of a body that does. The issue with this is that it is difficult, if not impossible, to define what may be considered a "material business connection" since it could encompass a relationship that is professional, commercial, consultative, or even family. To ascertain if a particular director's commercial contacts are significant enough to interfere with his feeling of independence or result in a conflict of interest, all pertinent facts of those relationships must be taken into account. The Australian definition stipulates that an independent director must not have served on the board for a time period that might, or could reasonably be considered to, significantly impair the director's capacity to act in the best interests of the firm. This requirement is absent from King II. What is an acceptable time frame that might negatively impact a director's feeling of independence is the question that emerges. In certain situations, what is acceptable may not be reasonable in others. The Combined Code is more clear when it states that a director's independence will be considered after they have served for more than nine years from the date of their initial election. This is compatible with the NAPF68's definition of an independent director, which specifies that they cannot have served as a non-executive director for more than three periods of three years (nine years).

According to King II, an independent director cannot be a member of the immediate family of someone who is or has been an executive employee of the firm or group for any of the previous three financial years. The combined code similarly states that a director's independence would be affected by having close familial relationships to any advisors, directors, or senior employees of the firm. There is no equivalent clause in the Australian definition. Family connections and cross-directorships, however, may be seen as interests and relationships that threaten independence, according to other statements.

It is difficult to define precisely what "family relationships" are. It is a somewhat vague and general phrase. Does this refer to simply members of the immediate family or does it also include members of the extended family? King II is clearer when it says that the person "...is not a member of direct family." Another issue is the definition of "immediate family." According to some definitions, it includes anybody who lives in the same house as the individual, including their spouse, parents, siblings, children, parents-in-law, sons, daughters-in-law, brothers, and sisters-in-law.

However, it may be reasonable to conclude that, for this purpose, what is to be examined are such family relationships that are capable of interfering with a director's independent judgement, whether they be extended or intimate family ties. In this case, the board would have to take into account the unique circumstances of each director.

In accordance with the provisions of the unified code, an independent director is also prohibited from receiving compensation other than director's fees and from taking part in the company's share option or performance-based pay programme. Additionally, he cannot be enrolled in the company's pension plan. Receiving compensation in addition to the director's fees or other compensating advantages may have an impact on the director's judgement. However, it is difficult to understand how exercising his share option would compromise his independence. If anything, share options should serve as a motivator for directors to align their interests with shareholders' interests, resulting in greater independence from management. The agency issue in corporate governance caused by the separation of control from management may also be addressed by this.

The independent director cannot have substantial connections to other directors via membership in other organisations or firms, which is another requirement of the Combined Code definition of an independent director. The Australian concept also includes the cross-directorship component. It seems plausible to claim that having many directorships might jeopardise a director's feeling of independence. For instance, it is without a doubt a symptom of possible conflict of interest when a director concurrently serves on the board of a rival firm. It is difficult, if not impossible, to see how such a director could uphold his fiduciary obligation of acting "at all times" in the company's best interests without encountering friction and eventually losing his independence. This is where having many directorships might be risky. However, it might be difficult to foresee or plan for all scenarios or connections that would constitute "substantial ties" with other directors. In today's corporate world, it is common knowledge that directors are involved in several firms and have a variety of commercial contacts. This is especially true in nations where there are just a few people who may serve as company directors. In such nations, it is typical to see one person holding up to four or five directorship posts concurrently. The same group of people often hold board positions, which leads to the development of professional and social ties among them. Some of these connections are considerable, and they do in fact have a detrimental effect on the directors' ability to exercise objective judgement in situations when vested interests need to be preserved. Indeed, a director's independence should be based on all of their interactions, including those with other directors, since these ties might affect their impartiality and commitment to the firm.

FRENCH CODE VS NYSE RULES

The purpose of this section of the research is to compare and contrast the definitions of independent director found in the NYSE Corporate Governance Rules and the French Code of Corporate Governance for Listed Corporations. The NYSE regulations are of a mandatory nature, thus businesses listed on the exchange are expected to abide by its terms. This is a crucial fact to keep in mind.

Unlike the French code, which has a voluntary nature, this is different. The requirements of the French code and the majority of other codes are suggestions that are, at best, of a persuasive nature, but the NYSE may penalise corporations that do not comply with its corporate governance regulations. Companies may decide whether or not to follow their advice. However, this pattern is quickly shifting since corporations are now required by stock market laws in many countries to report their degree of compliance with the criteria outlined in these codes. Companies who do not adhere to these regulations risk punishment in these countries for failing to implement generally recognised corporate governance standards. This is in addition to the fact that capital owners like investing in businesses with sound corporate governance policies.

Another finding is that the NYSE definition often equates a director's independence with the amount of money the firm pays him. The amount of income a director or a member of his family gets from the firm, or his affiliation with another business that pays his company or receives payments from it, are key factors in assessing a director's independence. The recent increase in CEO compensation in the US and other countries may not be unrelated to the attitude of the NYSE definition. Indeed, some of the root reasons of recent company failures have been linked to elements like exorbitant executive compensation, CEO avarice, and executive ostentation. These laws, which define an independent director (for audit committee purposes only) as someone who accepts no compensation from the company other than director's fees and is not a "affiliated person" of the company or any of its subsidiaries, reflect the same attitude. The Sarbanes Oxley Act76 and the Securities Exchange Act77. The French and other definitions, which tend to concentrate more on the director's ties with other stakeholders or bodies connected to the firm in some manner and which may or may not necessarily entail monetary remuneration, are significantly different from the NYSE's position in this regard.

The fact that each of the criteria in the NYSE independent director definition has a three-year "look-back" term is another point that should be made. In other words, the board must take into account the director's affiliations or interests in the three years before to the finding when deciding whether a director is independent with respect to a specific criteria of the definition. On the other hand, the French definition includes a five-year "look-back" period. Whether the connection or interest in question has a duration of five or three years, what matters is its materiality and whether it may prevent the director from acting independently.

In this respect, the board must look at each director's unique circumstances. This is required since a director's independence won't be assured by just meeting the "look-back" criteria. Even if a director meets the statutory requirements, they may not be able to act independently or with objectivity while making company decisions. As was previously noted, independence entails more than only meeting a set of statutory requirements.

The fact that the NYSE definition includes the director's immediate family members is an additional intriguing aspect of the term. In other words, the board must take the circumstances and ties of a director's immediate family into account when establishing that director's independence. This feature passes practically all of the definition's requirements. The definition of "immediate family member" in the commentary to the first criterion states that it includes a person's spouse, parents, children, siblings, mother and father-in-law, son and daughter-in-law, brothers and sisters-in-law, and anyone who lives in the same household as that person, excluding domestic workers. This definition of an immediate family member is actually quite comprehensive, and other rules should use it to define "family relations." Other definitions don't emphasise ties between members of the close family as much.

The sole requirement that unites the French and NYSE definitions is that an independent director cannot also be a corporate employee. The French definition adds that he cannot now be and cannot have been a corporate official, employee, or director of the firm, its parent company, or a company that it consolidates. On the other hand, the NYSE definition adds that a director's immediate family member cannot now serve as an executive officer of the business or have served in such capacity within the preceding three years. The NYSE definition indicates that references to the firm also include its parent or a subsidiary of the same group in the comments on this criterion. Furthermore, it emphasises that serving as a temporary chairman or CEO does not preclude a director from later being regarded as independent.

First of all, it is confusing to comprehend the apparent difference between an employee and an official of a corporation. In fact, it is reasonable to wonder if becoming an executive or corporate officer is conceivable without first holding a job. Although it is true that not all firm workers hold corporate or executive officer positions, is it conceivable for a non-employee to do so? Being in such a position would imply that one works for the firm, since even executive directors are often thought of as workers. Therefore, it is redundant and perhaps confusing to employ both words in the French definition. All other codes under examination appear to recognise this viewpoint since they refrain from using the phrases in such a monotonous manner. In addition, it is unclear why a director who has served as a temporary chairman or CEO would still be regarded as independent. This is especially true in the US, where it is typical to see the same person holding both posts. It goes without saying that the CEO serves as the firm's "chief executive director" and that executive directors are engaged according to a contract with the company serving as their employer, thus their designation as "inside directors." Many board chairs participate in the executive and daily operations of the firm, thus they would not meet the barest requirements for independence in this area. Some may argue that the reason such directors are seen as autonomous stems from the position's transience (as interim chairman or CEO). However, the fact still stands that such a director would have been so deeply connected with the company's senior management that it would have been almost impossible for him to act independently in the future. The least that might be done in such a circumstance, disregarding all other factors, would be to apply the three-year look-back rule to establish the absence of any possible conflict of interests.

The French definition adds another requirement that an independent director cannot be "a corporate officer of a company in which the corporation holds a directorship, directly or indirectly, or in which an employee appointed as such or a corporate officer of the corporation (currently in office or having held such office going back five years) is a director." The justification for this clause seems to be that a director having such ties to the firm would be unable to utilise his independent judgement when making choices that might have an impact on the other company. He would undoubtedly be an insider and have access to inside knowledge about the firm as a corporate official of that other company. His interests as a director on the one hand, and those of a corporate officer of the other firm on the other, would undoubtedly collide in such a circumstance. This criterion's second leg seems to be discussing cross-directorships. Cross-directorships may impair an independent director's ability to make unbiased decisions. It may result in connections or conflicts of interest that would jeopardise the director's independence. Because of this, it is seen as being crucial to assessing a director's independence.

An independent director cannot be (or be tied to) a substantial client, supplier, investment banker, or commercial banker for the company or its group, or for whose business the corporation or its group accounts in a significant way, according to the French definition. Similar clauses are included in both the Australian definition and King II. The inclusion of the investment or commercial banker component makes a difference in this situation. It is assumed that these components were included as an extra measure of safety to secure and encourage independence. However, caution must be used to prevent making the standards so onerous or onerous that it becomes almost impossible for directors to comply with them. The significance of the connection or interest under consideration—specifically, whether it might be harmful to or compromise the director's independence—should be taken into account.

A director cannot be deemed independent under the first criteria of the NYSE definition unless he has no significant connection, either directly or indirectly, to the firm. Such a connection can be as a shareholder, partner, or official of a group that works with the firm. The question of whether the connection to the corporation is substantial comes up once again. In fact, the commentary to this criteria notes that it is impossible to foresee or expressly account for every situation that could indicate potential conflicts of interest or that might affect how substantial a director's connection to a listed business is. Therefore, it is recommended that boards carefully analyse all pertinent information before making "independence" conclusions. The board should, in particular, take into account the viewpoints of the people or organisations that the director has an association with when determining whether a director's relationship with the firm is material. Commercial, industrial, financial, consulting, legal, accounting, charity, and family ties are just a few examples of material interactions.

Additionally, materiality should be taken into account in regard to the director's independence. To put it another way, the inquiry should not just focus on whether a connection is substantial but also on whether it could indicate future conflicts of interest. Because not all material links may jeopardise the independence of the director. Therefore, the strategy should focus on two questions: Is the director's connection important to the business? Second, is it one that would be harmful to the director's ability to exercise independent judgement? It is impossible to foresee every situation that can lead to a conflict of interest, as the commenter noted. This is likely the reason why certain codes, such as the French and Combined codes, provide the board the discretion to decide whether a director is independent or not, regardless of any affiliations or other circumstances that would seem to be significant.

In this respect, a board is expected to establish its own independence criteria and is required to provide justification when a specific director is considered independent despite not having complied with the company's requirements.

A director is not considered independent, according to the NYSE definition, if he or a member of his immediate family gets more than $100,000 in direct income from the firm each year, in addition to director's fees and pension benefits. As was already said, the amount of direct pay the director or a member of his family gets from the firm seems to be the main point of interest in this case. According to this standard, a director may be regarded as independent if he earns more than $100,000 annually, provided that it is in the form of indirect pay. Similarly, he can be regarded as independent even if his annual direct remuneration totals $99,999. As a result, a director may be regarded as independent of the corporation as long as their salary does not exceed $100,000 per year and is not direct. This is clearly ludicrous.

Another requirement of the definition is that a director is not independent if he or a member of his immediate family works for or is connected to the company's current or previous internal or external auditors. The same clause appears in the French definition. According to this rule, an independent director cannot have served as the corporation's auditor during the past five years. The addition of the phrases "associated with" and consideration of the director's immediate family member in the NYSE definition is what distinguishes the two definitions. In fact, generally speaking, the inclusion of such a criteria seems to be fairly rational, since it would be difficult, if not impossible, for a director who, for example, sits on the audit committee to function independently if he had previously served as the company's auditor. The same rule applies if he or a member of his immediate family is connected to or employed by a current or previous auditor of the business.

The challenge in this situation is figuring out what type of connection would qualify as an affiliation. Additionally, since there are several levels of connection, it can be difficult to foresee every relationship or set of events that might lead to such. The board must carefully evaluate the circumstances of the director to determine whether he could be described as "affiliated" because it has been said that where affiliation exists, independence vanishes. The goal is to eliminate, or minimise as much as possible, all potential causes of a conflict of interest between the director and the company. A director who "is employed, or whose immediate family member is employed, as an executive officer of another company where any of the listed company's present executives serve on that company's compensation committee is not independent," according to another criterion in the NYSE definition, "is not independent." Due to the mention of the "compensation committee," this definitional term is particularly intriguing. Why specifically mention the "compensation committee" as opposed to the "nomination committee" or the "audit committee," one would wonder. It is debatable if these three are the most important board committees, in which case the independent director's position is crucial. The three committees are crucial to the smooth operation of the board and have evolved into crucial mechanisms for ensuring compliance with independence and other corporate governance standards, even though the audit committee is occasionally viewed as more significant and is therefore given more prominence by many commentators (likely due to the numerous accounting and auditing scandals).

A director's perception of independence could be damaged by membership in one of these three important committees. A director should not be considered an independent director under the conditions outlined in the definition if they serve on the nominating, pay, or audit committees. Even if the CEO and other executives of the firm are subject to recommendations from the compensation committee on pay and benefits, the definition's particular mention of this committee (and exclusion of the other committees) raises some questions. The NYSE's approach toward independence is greatly compensating, as was already noted. It links a director's remuneration or other significant financial incentives to the independence norm. A director is less likely to be independent the more remuneration he earns. The explicit reference to the compensation committee may have been used for this purpose. However, this should not be taken to imply that it is the most important body on the board.

According to the final clause of the NYSE definition, "a director who is an executive officer or an employee, or whose immediate family member is an executive officer, of a company that makes payments to, or receives payments from, the listed company for property or services in an amount which, in any single fiscal year, exceeds the greater of $1 million, or 2% of such other company's consolidated gross revenues, is not independent.... The NYSE definition, which measures independence by the amount of financial rewards provided to or received by a director or firm, is once again reflected in this. Why nonprofit organisations are not regarded as "businesses" for the purposes of this criteria is a mystery. Ties with charity organisations have to be taken into account when considering conditions that might result in conflicts of interest, as the first leg of the definition acknowledges, because such relationships may be substantial. A listed firm must, however, disclose in its annual proxy statement "any philanthropic donations made by the listed business to any charity organisation in which a director serves as an executive officer" according to the commentary on this criteria.

PART 2

CHAPTER THREE

INDEPENDENT DIRECTOR AND FIRM PERFORMANCE

It's possible that independence advocates' cries for more autonomy on corporate boards have mostly been heard. As was already said, the majority of analysts welcome the movement toward more board independence. 88 Today, corporate governance campaigners call for boards on which independent directors constitute a "substantial majority," while observers refer to the "norm" of a supermajority independent board. The need for a "independent watchdog" is proclaimed by academics, who contend that "an active and independent board of directors working for shareholders clearly would seem to benefit the corporation by reducing the losses from misdirected "agency" inherent in the separation of ownership from control that is fundamental to the modern corporation." These days, a "supermajority" of big American public corporations have independent boards with only one or two inside directors. For instance, a 1997 study of 484 S&P 500 companies revealed that 56% of those companies had only one or two internal directors. "Only nine firms (2%) had an internal director majority, while the typical business had almost 80% outside directors," according to the study. In 2001, independent directors made up a majority of the boards of almost 75% of NYSE-listed businesses and 65% of S&P 1500 corporations. By the time the Sarbanes-Oxley Act was passed in 2002, the majority of public businesses had independent boards with supermajorities, and just one or two inside directors. Some independent director supporters admit that inside directors perform a significant, if not essential role on a company's board of directors despite the current trend toward higher independent director participation. 94 It is said that inside directors are better positioned to make choices at the board level that will affect the company's short- and long-term orientation because of their close participation with day-to-day business activity. In fact, there is some evidence that increased profitability is associated with having a reasonable number of inside directors (let's say three to five on a normal eleven-member board). On the other hand, studies of overall business performance have not uncovered any strong evidence that companies with majority-independent boards outperform those without. One can argue that having independent outside members on a board of directors really makes them less effective. "Because of their limited exposure to corporate activities, outside independent directors might prove to be a hindrance to management in their efforts to supervise and monitor the operations of the business," the report states.

Independent directors "frequently turn out to be lapdogs rather than watchdogs," according to some analysts. It is said that despite having mostly independent boards, firms like Enron, Hewlett-Packard, GM, IBM, Kodak, Chrysler, Sears, and Westinghouse fared horribly for years. Others have been tarnished by controversy, including WorldCom, Apple, Converse, and United Health, to mention a few. Additionally, despite the recent trend toward supermajority-independent boards and independent pay committees, "chief executive salary increased throughout the same time that independent directors became dominant on big firm boards." The function of the independent director in connection to managing the company, evaluating managerial performance independently, and finally in relation to the success of the company has therefore been called into question by these and similar occurrences. As a result, the subject of whether more board independence leads to better corporate performance has been raised repeatedly. This chapter covers data obtained from several empirical research carried out by chosen academics and others. These will demonstrate that there is mixed and sometimes contradictory data about the effect of independent directors on corporate performance. While some studies provide evidence that independent directors do not improve business performance, others provide some evidence that independent directors add value in certain areas, such as the accomplishment of particular board responsibilities. (This data tends to show that majority independent boards perform some tasks better but others worse.) In order to determine whether independent directors (or majority-independent boards) have any impact on the performance of particular board tasks, such as making or opposing a takeover bid, CEO replacement, executive compensation, and financial reporting, the first part of this chapter reviews evidence from studies. It also briefly reviews research-based information about the potential advantages on company performance of certain mechanisms, such as the separation of the CEO and board chair roles and the usage of nominating, pay, and audit committees made up completely of independent directors. The second section of this chapter looks at concrete evidence that independent directors (board composition) and overall business performance are correlated.

DO INDEPENDENT DIRECTORS ADD VALUE?

TAKEOVERS

The board of directors of a firm plays a crucial role in big investment decisions like the purchase or takeover of another business. Independent directors' impact should be seen in the takeover process if they really represent the interests of shareholders and work to maximise shareholder value. Indeed, some empirical data does imply that independent directors do play an essential role as a shareholder advocate (the stock price response to the news of a takeover proposal gives a gauge of whether shareholders believe the acquirer has gotten a bargain or has overpaid). According to a study by Byrd and Hickman, when independent directors make up the majority of the board in tender offers for bidders, shareholders are better rewarded. They discovered that, for a sample of 128 takeover bids from 1980 to 1987, bidders with a majority of independent directors earned an announcement-date abnormal return of 0% on their acquisitions while bidders with a majority of executive and affiliated non-executive directors lost, on average, a statistically significant amount. This seems to be due to the lower takeover premia offered by bidders with majority independent boards. It also seems to demonstrate that independent directors were not as willing to overpay as non-independent directors, while allowing their firms to overpay when purchasing another company. According to certain research, target firms for tender offers with majority-independent boards see stronger stock price returns than target companies with majority-nonindependent boards. This tends to demonstrate that targets with majority-independent boards are more effective at obtaining larger acquisition premia from an acquirer, hence enhancing shareholder returns.

Bhagat and Black contend that if the target business has a majority-independent board of directors, there cannot be larger efficiency improvements. They contend that if the target firm has a majority-independent board, a higher takeover price is merely a transfer of wealth from the bidder's shareholders to the target's owners, and there is no evidence of improved returns to both the bidder and target companies. Since there is some evidence that this might result in fewer takeover offers for businesses with majority-independent boards, they come to the conclusion that better returns to shareholders of actual target companies may not help owners of prospective target companies.

In light of the implementation of takeover defences, it may not be true that independent directors are more effective at maximising shareholder value. According to several research, when the company had a majority-independent board, the stock market's response to the implementation of poison pill defences was considerably favourable, and when it didn't, it was significantly negative. On the other hand, some studies suggest that when there is a larger share of independent directors, there is a negative stock market response to the adoption of poison pills and other takeover defences. Others have seen no connection between the percentage of independent directors and the propensity of the firm to use a poison pill defence. Regarding the use of greenmail as a takeover defence, businesses with a high percentage of outside directors are more likely to use greenmail to bribe a prospective bidder into withdrawing their offer. Overall, there isn't much proof that independent boards adopt and use takeover defences in a much more (or less) shareholder-friendly manner than other boards do.

CEO REPLACEMENT

It is widely acknowledged that the board's primary duty is to remove or discipline a CEO who is not operating up to par. There is minimal data suggesting that independent and inside directors have different attitudes on the hiring of a new CEO. Weisbach showed that a board with at least 60% independent directors was more likely to terminate an underperforming company's CEO than a board with fewer than 60% independent members in a thorough research on how board composition corresponds with CEO replacement. 118 According to other research, CEOs are replaced at a greater rate in companies with a large percentage of outside directors than in other companies. There is some evidence that, generally speaking, a CEO change results in a minor improvement in a company's performance. Other observers counter that the increased firings by 60% independent boards have no economic impact. They contend that the data shows that independent directors, who are probably less familiar with a company than inside directors, may be faster to remove a CEO when things are going badly, but may take too long to do so when things are going well for the company's stock price.

EXECUTIVE COMPENSATION

It is commonly acknowledged that the board of directors' responsibility to decide on and assess the compensation of the company's CEO and other senior executive officers is crucial. It is often advised that the pay (or remuneration) committee of the board be constituted mostly, if not fully, of independent directors to strengthen the board in carrying out this role. The pay committee may put in place compensation plans that will aid in attaining the business' long-term performance goals and make sure that shareholders' interests are not put on the back burner in favour of management's immediate concerns. However, according to some research, CEO pay is often greater in companies with majority independent boards. Other research finds no proof of a connection between CEO salary and the percentage of independent directors on the compensation committee. In contrast, several other studies have shown that the bigger the percentage of independent members on the board, the higher the average CEO compensation. In other words, the CEO gets compensated more the bigger the percentage of independent members on the board.

CEO salary was found to be higher in businesses with linked non-executive directors (insider-influenced compensation committees) than in those with compensation committees made up of of independent directors in a study of 161 of the 250 biggest U.S. listed corporations (independent compensation committees). According to the research, "with everything else being equal, the CEO of a business with an insider-influenced pay committee got around 20% higher compensation than the CEO of a company with an independent remuneration committee." 127 The likelihood of a company implementing a stock-option plan for outside directors is greater when the board is predominated by independent outside members and when institutional equity ownership is substantial, according to a research by Fich and Shivdasani. A separate research involving 167 American companies found that the CEO's pay and bonuses increased in proportion to how much influence he or she had on the board of directors. Additionally, a research of the banking sector found a negative correlation between the percentage of outside directors and pay expenditures, indicating that outside directors may have assisted in reducing exorbitant salaries.

Lawrence and Stapledon stated that the pay practises of Australian firms do not seem to differ in line with the makeup of the remuneration committee in their research of the value of the independent director in Australia. They also found no evidence that merging the CEO and chairperson duties or having fewer independent members on the board increases CEO remuneration. Overall, these research show that there is conflicting data about the link between CEO pay and independent directors (or board composition). There is no question that an independent compensation committee can strengthen corporate boards by successfully managing and evaluating the level of executive compensation, even though the evidence has failed to conclusively dispel questions about independent directors' ability to rein in excessive executive compensation. Occasionally, the pay committees of businesses like Enron, Global Crossing Ltd., etc. are mentioned. These committees were made up solely of independent directors, yet they were unable to oversee and regulate excessive executive salaries.

FINANCIAL FRAUD AND FINANCIAL REPORTING

Since the Sarbanes Oxley Act was passed in the US, all publicly traded firms are obliged to set up audit committees that are wholly made up of independent outside directors. The trustworthiness of the company's financial statements is crucially maintained by the audit committee. In fact, it is generally accepted that an independent audit committee may strengthen the board of directors by policing how management discloses financial information. Conflicting empirical data exists about the connection between the independence of the audit committee and the accuracy of the financial accounts.

While some studies show that organisations with independent audit committees are more likely to have trustworthy financial information, others show that having an independent audit committee does not improve the dependability of financial data. According to one research, businesses without an audit committee and with a majority of inside (executive) directors are more likely to perpetrate financial fraud. 135 According to a related research, fraud-committing companies had fewer independent directors than their matched control companies. However, a second research found no proof that the makeup of the board of directors had an impact on the overall quality of financial reporting by American businesses.

INDEPENDENT DIRECTOR AND FIRM PERFORMANCE

Now, we review the empirical data that currently exists (much of it based in the US) on the association between independent directors (or board composition) and business success. Again, the findings are conflicting and inconclusive. ‘ The question of whether board composition affects the firm's performance in any way is at the centre of the debate. While some research claim that increasing the number of independent directors on a board enhances company performance, other studies have not shown a connection between independent directors and corporate success. One research by Baysinger and Butler is among several that suggests a connection between independent directors and company success, finding a positive correlation between the percentage of independent directors in 1970 and return on equity in 1980. Early in the decade, companies with a larger proportion of independent directors had, on average, better performance records by the conclusion of the decade. Financial performance was shown to be better in organisations with a relatively high number of independent directors than in those with a relatively small number of independent directors, according to a study of 100 small listed U.S. corporations. A number of other studies, including Gautchi and Jones (1987), Cochrane et al. (1985), Zahra and Stanton (1988), Rosenstein and Whyatt (1990), and Donaldson and Davis (1991), discovered a strong correlation between board composition and the firm's performance and managers' accountability to shareholders.

The research by April Klein, which examined the makeup of the boards' committee structures of companies listed on the S & P 500, is one of those studies that discovered a negative link between having a lot of independent members on a board and future business performance. She discovered that the percentage of independent directors had no discernible impact on the success of the company. Additionally, she discovered that "inside directors are more likely to be found on the boards of corporations that require the inside director's knowledge, suggesting that these directors might be helpful if utilised." In a different research by Agrawal and Knoeber, it was shown that having more independent directors negatively affects the success of the company. In other words, more board independence has a bad impact on business success. Bhagat and Black conducted one of the most thorough and extensive research ever conducted in this field, and they found no indication that companies with a majority-independent board outperform those with more inside than independent directors. Instead, it was shown that slower growth was associated with a large percentage of independent directors. They also discovered that having a sizable number of internal directors may be advantageous for businesses.

They looked at 957 major U.S. public firms' financial and stock price performance between 1985 and 1995. Additionally, they looked at the ownership of shares by the management, the board of directors, and the top 5% of shareholders in these businesses. They discovered that although some independent directors may contribute value, others do not. Donald Clarke states that there isn't much empirical basis for the idea that independent directors in China improve business performance in a study of the independent director in Chinese corporate governance. Another research of the top 100 ASX-listed businesses revealed no compelling proof that the percentage of independent directors affects corporate success, whether accounting performance or share price returns are used as the primary metrics. The research were unable to provide conclusive proof for the claim that independent directors increase or decrease value. 151 The number of inside directors and the market-based measure of company success were shown to be positively correlated in a comparable analysis of the link between board demography and corporate performance in 348 of Australia's top publicly listed corporations. In contrast, no such association was seen with regard to the performance metric based on accounting. In a separate research, Millstein and McAvoy took an alternative tack by putting more of an emphasis on board behaviour than board composition. They discovered a strong and statistically significant link between having a functioning board of directors and better organisational success (measured by operating profit excess of costs of capital over the industry average). In their own words: "Our experience is that boardroom behaviour is what is critical, and that the professional board is an active monitoring (but not meddling) organisation that participates with management in formulating corporate strategy in the interests of the shareholders, creates the right incentives for management and other employees to harness their interests to achieve the mutually agreed-upon strategic plan, and then judges management performance against the strategic plan." In light of this, it is impossible to assess a board's effectiveness using general structural factors like the number of outside directors, the frequency of board meetings, and the like. Being present in the boardroom is the only certain method to determine how well a board is functioning, and we are unable to do that. However, certain board procedure components show that there is a setting where active monitoring is present. Additionally, we think specific process representations may be employed to show performance monitoring in order to identify well-governed boards. Millstein and McAvoy referred to the independent board leadership, whether through a non-executive chairperson or a lead independent director, periodic meetings of the board's independent directors without management present, and formal guidelines to regulate the board's relationship with management as process representatives. According to Millstein and McAvoy, these members demonstrated board conduct that might be used to determine if a board is independent, has likely embraced a professional culture, and is therefore well controlled. It is clear from the several studies we have studied here that there is no apparent agreement among academics and researchers about the connection between board makeup and business success. There is little evidence to support the claim that the appointment of independent directors affects company performance. Additionally, there is conflicting data to support the idea that performance levels rise when there are more independent members on a board. Similar to that, there is conflicting information about whether or not having a majority of inside directors on the board improves the success of the company. Overall, there's no denying that a larger proportion of corporate governance proponents seem to favour giving the outside independent director a bigger role in the organization's administration and control. This is in line with the agency cost theory, according to which independent directors serve to lessen the expense caused by the conflict between the interests of corporate managers and those of shareholders by monitoring and supervising the administration of the company's operations.

CHAPTER FOUR

TOWARDS MORE EFFECTIVE CORPORATE GOVERNANCE

The increased global focus on corporate governance in recent years is proof that there are problems with our corporations' leadership. No company can be too big (financially or otherwise) to fail, as Enron, Parmalat, WorldCom, and other businesses demonstrated. Their poor corporate governance culture, including poor management, fraud, insider abuse by the board of directors and management, poor asset and liability management, poor regulation and supervision, was a recurring theme in these massive corporate failures. These incidents, along with other examples of poor corporate governance, have been named as the main reasons for the investing public's loss of faith in the stock markets and the general lack of trust that has afflicted the business world. Indeed, the success of our commercial institutions is entrusted to corporate directors by shareholders, employees, creditors, and the general public. Sadly, it took the current wave of corporate fraud and abuse to draw our attention to the board of directors and corporate governance in general. These corporate wrongdoings have had a negative impact on investor and public confidence in the honesty of corporate institutions and leadership.

The majority of surveys on the state of trust around the world reveal low levels of public confidence in business institutions and leadership. Corporate governors have consistently fallen short of our expectations, and ineffective boards have persisted in raising questions about the effectiveness of the entire system of corporate governance. The majority of studies have found little to no correlation between the presence of independent directors (or board composition) and firm performance, despite the proliferation of numerous codes, guidelines, and other instruments of corporate governance best practises and the ongoing call for increased director independence. In other research, the connection between the two components has even been shown to be negative. The difficult question that needs to be addressed is, how do we ensure that independent (outside) directors are empowered to effectively perform their role as independent and active monitors of management, for the benefit of the shareholders, in light of the growing scepticism regarding the relevance and impact of the independent director? To put it another way, "how can we make sure that directors are responsible and operate in the best interest of the business and its shareholders, particularly given that shareholders' legal and actual control over the organisation is limited?" It is so obvious that the question is how to increase the effectiveness and responsiveness of independent directors to their obligations. The contradictory results of the research mentioned above and the corporate wrongdoings at Enron and other businesses throughout the globe remind us that independence is insufficient. It's noteworthy to note that the majority of the outside independent directors on Enron Corporation's board of directors were independent outsiders. Only two of the 14 directors were insiders. They represented a broad spectrum of expertise in business, finance, accounting, and government. ‘ An executive committee, finance committee, audit and compliance committee, nominating and corporate governance committee—all the committees one could like to see—were all present on the board. The Enron audit committee had a model charter and was led by a former accounting professor who had previously served as the dean of the Stanford Graduate School of Business. This may have been most significant to the board's oversight function. Finally, the board convened five times annually on a regular basis, with additional sessions called as required. It is obvious that the presence of such a "wonderful" board did nothing to stop the accounting and auditing scams that caused the company to fall. It seems that the board was only "checking the boxes and going through the motions." The usefulness of the independent director is one key point that has been brought up as a consequence of these developments.

Independent directors are often accused of lacking the time, knowledge, and drive necessary to run the firm efficiently. They often have no idea what is going on within the business. Independent directors are, by definition, outsiders to the company who often have time-consuming day jobs and other obligations that prevent them from investing a lot of time in board activities. For instance, directors may serve on many boards or have executive positions with different businesses. Some of them could occupy governmental office, teach at universities, or work in the commercial sector as professionals. For information and direction in carrying out their jobs, they depend on insiders and other staff members who are more educated about the business's operations. Additionally, these directors who must oversee management are often chosen by the managers they are supposed to be overseeing.

The director will undoubtedly lose their impartiality as a result of this circumstance. Additionally, if directors are appointed due to executive generosity, there is no motivation to aggressively supervise management, which encourages apathy and compliance to its ambitions. At its worst, such a board of directors reduces to little more than a rubber stamp for the boss.

The fact that the majority of independent directors do not get sufficient incentives has also been brought up as an issue about their efficacy. When there are no real rewards for doing so, directors are unable to aggressively supervise management. The claim is that in order to align the interests of directors with those of shareholders, incentives like equity-based pay are necessary. Through substantial director stock participation, the aim is that ownership and control of the firm would be linked, leading to improved managerial oversight. Some have asserted that directors' stock ownership does lead to more active supervision. There is some indication that more shareholders may perform better as independent directors. Bhagat and Black found some evidence of a relationship between outside director ownership and company performance in their analysis of board composition and firm performance. They draw the conclusion that their data suggests higher stock-based incentives may improve the performance of independent directors. The claim that option-based remuneration helps align directors' interests with those of shareholders does seem to have some merit. Directors have alternatively been referred to as the shareholders' representatives. By receiving higher compensation based on stock options, independent directors in particular can play a significant role in assisting in the reduction of managerial agency costs. Stock options may seem like a good idea because they not only directly align directors' interests with shareholders' interests, but they also indirectly align directors' share returns with the company's performance. In addition to being totally impartial toward management, independent directors must also be sufficiently driven and compensated to uphold the interests of the shareholders and oversee management with objectivity. ‘While independence fosters objectivity, the board also must have an incentive to exercise that objectivity effectively. Granting independent directors stock ownership in the business may assist accomplish this goal’. There is simply no personal financial motive for directors to actively oversee management when they have no investment in the company other than their board membership. The question of whether an independent director is "really" independent has also been brought up in relation to their efficacy. Some contend that the independent director model developed by proponents of corporate governance is insufficiently independent. There are worries about persistent "soft" conflicts of interest and "institutional prejudices" that might jeopardise the independence of directors. Some directors who are considered independent are, in the words of one critic, "beholden to the firm or its incumbent CEO in too nuanced a fashion to be captured in conventional notions of independence." In this sense, the Enron example is quite instructive. Due to political and charity contributions, there were indirect connections between its management and board. The independence and impartiality of the directors were undoubtedly undermined by these interactions. For instance, two of Enron's directors served as president of an organisation, to which Enron and its CEO and Chairman donated about $600,000. Additionally, Enron donated more than $50,000 to a charity that hired an Enron director. The National Tank Company, whose board an Enron director served, reported over $2.5 million in income from sales of equipment and services to Enron businesses in 2000, and Enron paid one of its outside directors over $490,000 for consultancy work. Could it be stated that the Enron outside directors were "really" independent?

The personal responsibilities of directors are a different issue that has just come up. Directors, particularly independent directors, are held to very high standards nowadays for the efficiency of their monitoring duties. A larger need for director duty, accountability, and liabilities has arisen as a consequence of the push for more independence from outside directors. The legal and regulatory environment in which directors must operate has been tightened as a result of broad pressure. Any losses brought on by a director's violation of their fiduciary obligations to the business may subject them to personal liability. For instance, the American corporate structure "allows shareholders to sue directors and officers for injuries they have sustained either directly by corporate action or derivatively, on behalf of the corporation, for injuries done to the corporation because of wrongful actions by its officers or directors." Directors are being expected to be more responsible. Because of the increasingly dangerous legal environment in which they operate, there may be a shortage of non-executive directors in the market.

Many competent people are becoming more hesitant to accept vacant directorships because of the demanding workload demands on their time and the associated danger to their reputations. Therefore, as it becomes more difficult to locate people who would be ready to undertake the personal responsibility risks associated with board participation, the market for outside independent directors shrinks. Directors and officers believe they are "under a microscope" and that "severe repercussions would follow if they make a mistake," according to one author. Other effects on business performance and strategy result from the complexity and risk of board duties growing. Companies could, for instance, set more specific rather than more general requirements for the qualifications needed to be appointed as an outside director. On the other side, for fear of violating the responsibility standards, directors could become less meticulous in their monitoring and assessing of management choices and actions. Additionally, management can develop a fear of taking calculated business risks, which would be detrimental to the expansion of the firm as no organisation has ever prospered without taking some chances. If they behaved in good faith, directors and managers shouldn't have to worry about facing legal repercussions every time they make a mistake.

IS INDEPENDENCE OVERRATED?

What constitutes "genuine" independence has been debated by commentators from a variety of angles. While some define independence by the formal qualities and standards that may entitle a filmmaker to be called independent (structural approach), others approach independence from the perspective of how and how well a certain director performs his or her function as director (behavioral approach). Whatever strategy one chooses, most proponents of independence agree that "simple" independence is insufficient. In addition to focusing on the formal qualities that directors must possess, emphasis should also be made on additional informal aspects that can be important in this context in order to improve director independence and maximise board performance. Moving beyond the existing "box-ticking" approach to director independence is necessary to increase confidence in the abilities of independent directors and the board as a whole. As was previously mentioned in this research, a more comprehensive yet "soft" strategy is required rather than the formal or "hard" one used by many recent reform projects. If the lessons from Enron and other business catastrophes are any indication, then the idea of director independence has to be seen from a different angle, particularly if the objective is to increase board effectiveness. The idea of "freedom of thought" was put out by Van Den Berghe and Baelden.

They claim that rather than being a structurally formal term, the concept communicates the sense that independence is about the character and spirit of the individual being considered. The definitions of the corporate governance regulations and guidelines do not ensure the capacity or desire to reach an impartial decision. They claim that a director should possess "something more" than the qualities outlined in the corporate governance regulations and guidelines in addition to being in the proper position legally. They differentiate between official freedom and mental independence. According to him, having legal independence and mental independence are not goals in and of themselves, but rather a means to the aim of attaining board efficiency. They state that attentive oversight and impartial decision-making are essential to effective board performance and that the board should concentrate on these. The board would need both components of formal independence and mental independence in order to ensure attentive oversight and impartial decision-making. According to Richard Leblanc, independence is difficult to control since it is a mental condition. He contends that a large portion of what constitutes independence is only discernible in the boardroom, in the context of particular decision-making circumstances and the persons involved. In the boardroom, a director "may be conflicted and yet independent" or "may not be conflicted and not independent," according to him. In an effort to appease regulators in their overzealous pursuit of "independence," he continues, there is a tendency to appoint directors who are distant and ignorant of the company's operations and incapable of offering management concrete and meaningful strategic input or holding management accountable for achieving corporate goals. He comes to the conclusion that in order to create an effective board, the company or nominating committee must pay close attention to I the competencies required for the board and which ones, if any, are lacking, and (ii) the mix of behavioural types of the potential candidates. They must determine whether the candidate they are recommending to the board for membership is a behavioural type that will contribute to making the board process more effective. These are the criteria that ought to guide the choice of potential directors.

Effective corporate governance, according to another author, depends on the board of directors acting independently as a whole rather than on the independence of any one specific group of directors. According to him, board independence serves three main purposes: enhanced shareholder voice in corporate decision-making, explicit responsibility to shareholders, and informational openness. He claims that "not only do these tasks produce practical guidance for improving the procedures by which a board does its work, but also more effectively encapsulate the monitoring and oversight standards envisioned by present independence regimes." He depends on Professor Donald Langevoort's tripartite board structure, which calls for a board to be made up of managers, traditional independent monitors, and quasi-independent or "grey" mediators. 200 While board structure, makeup, and independence "condition board performance," Roberts, McNulty, and Stiles contend in their own study that "board effectiveness is really determined by the behaviour of the non-executive relative to the executive." They contend that "independence" should be viewed as a valuable resource for executives rather than simply requiring that non-executives remain distant and wary of the executives because, when enacted in the form of suspicion, "independence" emphasises the distinction between executive and non-executive directors. When used as a tool for the company's success, "independence" just enhances the unitary board's capacity to manage the risks and problems that are inextricably linked to decision-making. As long as there is a need for better board performance and corporate governance, the discussion on director independence will undoubtedly continue. Commentators will keep putting forward various ideas of what they believe to be "genuine" independence. It is widely acknowledged that a strong board is still a necessary component for achieving excellent corporate governance. The diverse ideas of independence must thus be included in governance changes, whether from the perspective of officially defined standards or from the perspective of individual director qualities. However, while doing so, the emphasis should be on enhancing the efficacy of each individual independent director. Such changes would need a departure from the legal and structural framework that most corporate governance principles now use to define director independence.

IMPROVING INDEPENDENT DIRECTOR EFFECTIVENESS

In this last section of the research, suggestions are offered in an effort to increase the efficacy of independent directors. As previously mentioned, the majority of research on the effect of the independent director on business performance provide conflicting results. Even the many formal and informal attempts implemented so far to improve board performance have not lessened the rising uncertainty over what function independent directors must serve in the organisation and how they should be best prepared to carry out this function. Without a question, independence is essential to good corporate governance, particularly in terms of preventing conflicts of interest and promoting impartial oversight and decision-making. Enron and many other scandals that followed it made clear that more needs to be done to improve board performance. Nominally independent directors on the board do not guarantee that the board will function effectively. In other words, a board that is independent is not the same as a board that is active. An active or productive board is a result of appropriate incentive and rewards. It has been claimed that altering incentives is one method to enhance the effectiveness of independent outside directors. The claim is that independent directors will be more motivated to carry out their duties of unbiased monitoring and supervision of management for the benefit of the shareholders if given the right incentives. The independent or outside director is a person who is said to have no material connection to the firm other than his directorship, and as a result, may not have any personal motive or interest to adequately oversee management. This justification seems pretty rational. Boards of directors have often come under fire for failing to exercise the type of active management supervision that enhances business success. As a result, recommendations have been made for the creation of improved incentive systems for directors, such as pay, replacement opportunities, and the chance to hold other board directorships. However, equity-based pay for directors, or forcing directors to actively participate in the ownership of the firm, has recently received increased attention.

The present demand for outside directors to receive pay based on stock options or equity is justified on the grounds that doing so would allow directors' interests and shareholders' interests to align. In other words, "through significant director stock ownership and therefore greater management supervision, the objective is to reconnect ownership and control." The claim is that the outside directors' significant stock participation generates a personally-based motive to actively supervise. Evidence from Enron and similar situations suggests that independent outside directors should be more active in their monitoring responsibilities. This, it has been said, is because there aren't enough compelling reasons for them to become engaged and dedicate themselves to fulfilling their position. Accordingly, it has been claimed that "the board of directors is responsible for ensuring that the firm has a strong strategy in order to safeguard the interests of shareholders. Many non-executive directors, however, hold relatively little stock in the firms they supervise, thus the profitability of such businesses has a little influence on their own wealth. According to the agency hypothesis, these non-executive directors are 'agents' of the 'principals' (the shareholders), not the 'principals' themselves, much like the executives they supervise. There should be a significant need to create incentives for another group of agents, the nonexecutives, if there is a strong need to do so for one group of agents, the executives. The idea behind this is that providing independent directors with higher equity-based pay would both ensure their independence from management and enable them participate in good governance. Indeed, there is some empirical support for the idea that providing independent directors with equity-based pay improves both business performance and the ability of directors to align their interests with those of shareholders. The market to book ratio and the existence of a stock option plan for outside directors were shown to be positively and significantly correlated in one research by Fich and Shivdasani. According to their findings, equity-based pay for outside directors increases business value. Bhagat, Carey, and Elson discovered in another research a substantial relationship between stock ownership by individual outside directors and company success (based on a variety of performance measures). They provide stock ownership as the reason for this finding, arguing that it enhanced the board's ability to supervise management, leading to better outcomes. This supports their claim that greater director share ownership and improved monitoring are related in some way. It may be challenging to definitively concur with these findings, which show that independent directors' equity-based pay does have some favourable effects on business performance. Like other evidence presented before, this is also inconclusive. However, it is impossible to deny that the idea that such pay aids in bringing the independent director's interests into line with those of the shareholders has some value. Outside independent directors must be driven to maintain their independence from management in order to be effective monitors and promote these shareholder interests. Equity ownership will make directors more sensitive to the company's performance as well as align them with shareholder interests. The outside directors now have a personal interest in the company's success or failure by becoming stock owners. Directors have an incentive to keep a closer eye on management's performance when they actively participate in the stock market since ineffective monitoring might directly harm their own financial interests. Without stock ownership, independent directors have little to no motivation to actively oversee management. Therefore, it is argued that long-term stock ownership for independent directors is a crucial tool for attaining successful corporate governance, in addition to objective oversight. ‘ Although independence may foster the objectivity required for effective oversight, equity ownership combined with independence creates the incentive for objective directors to act ultimately in shareholders' interest – to produce the kind of corporate productivity that justifies past and future public investments.

One of the methods for developing successful corporate governance has also been recognised as proper and ongoing performance review and assessment of the board of directors. A framework for routinely assessing the board of directors' actions has been suggested by several corporate governance regulations and recommendations to guarantee the efficient discharge of their duties. They advise businesses to implement procedures and controls that will allow for the efficient and thorough assessment of directors. The fact that the periodic review procedure discloses the calibre of the board and the directors on it is a significant benefit. It also helps in determining how successful the board has been in attempting to carry out its duties. Both the board as a whole and each director individually should be evaluated. The board must have a system in place for evaluating the performance of each director specifically. The board has the chance to delve further into specific concerns during individual assessment, which may be done either by self- or peer-evaluation. Peer review will allow directors to recognise each other's unique skills and limitations. Self-evaluation will inspire directors to consider their own contributions to board activities. It is feasible to have a more objective understanding of each director's strengths and limitations and how they contribute to the success of the board by having board members assess one another.

Directors may gain a clear grasp of their job and duties by regularly evaluating the board. Non-executive directors will already have the necessary qualifications upon appointment, according to the statement. However, a non-executive director's reputation and success in the boardroom will rely not only on their current skill set but also on their capacity to grow and update it. The King II corporate governance code of South Africa suggests that the chairperson conduct the board's informal evaluation and that the board, through the nomination committee or a similar board committee, regularly review the required combination of skills and experience as well as other factors like its demographics and diversity to gauge its effectiveness. The need for ongoing training and education for directors, particularly independent outside directors, is comparable to a regular review and appraisal of directors. Independent directors, as was previously said, are often external individuals who are not engaged in the day-to-day operation of the organisation. Because of this, it's possible that they lack the type of in-depth understanding of the company and entrepreneurial abilities that may be required for them to carry out their monitoring function successfully. They are not as intimate with the inside workings of the company as the executive directors (insiders), which might undoubtedly limit their capacity to make the type of impartial choices that are required of them. There is little question that the duties of the independent director will continue to grow given the current attention paid to them in the search for more efficient corporate governance procedures. Companies must put in place enough training and other educational procedures to equip independent directors in fulfilling their position if they are to use the sort of independent and objective decision-making necessary for effective supervision and monitoring of management. The need of objectivity, honesty, and other high ethical standards from independent directors is insufficient; in fact, without these personal qualities, an independent director cannot be considered to be "really" independent and will not be able to exercise objectivity when necessary. However, in order for boards to function as effectively as they should today, directors must be able to advance their understanding of business, entrepreneurship, and other corporate strategies. The shareholders themselves may also be a powerful weapon for enhancing the performance of directors. Because of the widely distributed ownership structure in many huge enterprises, stockholders had little influence over how these businesses were operated. Even as institutional investing has become more popular, particularly in the US, there has been a persistent desire for shareholders to participate more directly in corporate governance. At many instances of corporate misconduct, shareholders suffer because their long-term interests are always in jeopardy. An example is Enron, where executives such as directors and other senior management made significant financial advantages after the company filed for bankruptcy, while investors and employee stockholders suffered significant losses. Therefore, enhancing shareholder engagement, especially in the appointment of independent directors, is one approach to safeguard the lawful rights and interests of shareholders.

Between the shareholders and the management, independent directors serve as a liaison. They are expected to report to shareholders on management behaviour and hold managers responsible. Therefore, processes should be put in place so that a specific director who fails in his tasks may be discovered and, with the approval of the shareholders, removed from his position. They should also include them directly in the nomination and election of directors. The board's routine review and assessment process need to have this as its goal. Instilling a feeling of responsiveness in each director and preventing board inertia will go a long way toward creating a strong accountability framework where each individual director is accountable to the shareholders for his behaviour and activity on the board. Shareholder participation serves as a check on management and board operations.

After Enron, many people began to seriously question the skills of the directors of other top firms. At the same time, directors started to face more obligations, risks, and demands. Public expectations for directors started to grow at the same time that public confidence in directors' competence began to decline. Just as shareholders began to expect responsibility from their elected representatives, the public started to demand more active and effective performance from directors. The board of directors was held largely responsible for the many company failures. Numerous boards have been criticised for being inactive and ineffectual. Lack of independence on the boards was one of the main causes of these catastrophes. It has been extensively advocated to separate the roles of CEO and board chairperson, designate a lead independent director, and other structural best practises to promote board and director independence. Boards should implement a system that would allow independent directors to meet frequently without management present, nevertheless. Additionally, a process should be in place so that the board may obtain independent expert counsel as needed. Additionally, independent directors' reappointment should not be a given; rather, it should rely on their performance being rated favourably and the vote of the shareholders. These are only a few concrete actions that, if taken, may lead to more independence and effectiveness on the board.

CONCLUSION

The first section of this paper compares several definitions of an independent director found in corporate governance instruments and rules from various nations. The organisation and substance of these definitions vary. Most definitions emphasise on a systematic set of standards by which independence may be evaluated, adopting a more formalised approach to independence. Others have put more of an emphasis on the individual director and those inborn qualities and traits, like honesty, professionalism, etc., that serve to provide the individual director impartiality and professional judgement needed for diligent corporate monitoring and leadership. According to one school of thought, an independent director must not only be legally in the appropriate position but also have a "additional individual characteristic" that goes beyond the standards outlined in corporate governance regulations and guidelines. The importance and usefulness of this class of directors to company success were closely examined in the second phase of this research. As this research has shown, there is conflicting data about how independent directors affect business performance. While some studies claim that the independent director has a favourable influence on corporate performance, particularly with respect to certain board duties, others claim that there is no solid proof of this. Despite the contradictory findings, this research has attempted to show that the independent director's importance to contemporary corporate leadership cannot be overstated. In fact, it is generally accepted knowledge that this type of directors exists. Since they serve as a conduit between the company's owners (shareholders) and management, they are, or ought to be, the guardians or gatekeepers of the corporation. Therefore, the independent director's responsibility may be summed up as providing impartial and unbiased oversight of management and making sure corporate leaders and managers are accountable to shareholders for the ongoing operations of the organisation. Therefore, future research and studies in this field should concentrate on the best ways to increase the independent director's effectiveness, particularly in the more dynamic global business context.

BIBLIOGRAPHY

BOOKS

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ARTICLES

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INTERNET SOURCES

LAW1507 Tort Law Assignment Sample

1. Please write an answer to the question overleaf. Your answer should be no more than 1500 words long including footnotes (but excluding your bibliography).

2. This assessment is a formative, so the mark will not count towards your final grade. It is also optional but recommended for assignment help

3. The Preliminary Honours UG assessment criteria can be found in the Undergraduate Handbook. Presentation of your answer:

4. Clear and accurate referencing is essential.

Q1. Sneezy, Bashful and Dopey are old work colleagues. For the last 15 years they have met up once or twice a year for a reunion dinner at a local restaurant. One time, after dinner, Dopey offers Bashful a lift home in her new sports car, joking that it is “at his own risk”. Bashful is reluctant to accept because he knows that Dopey had drunk large quantities of alcohol that evening, but nonetheless accepts because it is raining and he wishes to avoid the very long walk home. As Dopey pulls out of the restaurant car park, she crashes into a passing car. Dopey did not see the car as she was trying to change the channel of her car radio. Bashful, who was not wearing a seatbelt, is thrown through the windscreen, and severely injured. Dopey is killed instantly.

Sneezy, who was in his car just behind Dopey’s waiting to leave the car park sees the accident and rushes to help Bashful and Dopey. The scene is particularly gruesome. He later develops Post-Traumatic Stress Disorder (PTSD).

Grumpy was driving the car Dopey crashed into. He suffers serious injuries and is forced to take six months off work, losing out on a significant promotion. He becomes depressed. He appears to be successfully managing his condition. However, about a year after the accident, as he is walking home from work he ‘snaps’ and stabs a passer-by. He is later sentenced to 12 months in prison and loses his job.
Advise the parties.

Solution

Question 1

The Government of the UK has legalized so many regulations during the past years in order to prevent road accidents and measure long term recurrence for the driver as well. In the common law justification, Sneezy, Bashful and Dopey were more or less responsible for the tremendous incident that happened with them. Firstly, according to the Road Safety Act 1986, it is clearly stated that a driver is not allowed to drive a car or any type of vehicle if they are over the legal blood alcohol limit. Therefore, it is clearly stated that Dopey, who is one of the victims in this case, had drunk larger quantities of alcohol. As a tort lawyer, it is suggested that it was the responsibility of two other friends who were present at that situation to drop her in another secure way. The UK’s Road act and other vehicle regulations also mentioned that drivers or other members in the same cars must be alert while driving on the road.

As per the statement it is also clearly mentioned that Dopey was unable to see the passing car as she was busy in changing radio channels on the mid-off the road and it clearly indicates that Dopey was driving the car carelessly. Although, she got killed instantly, as most of the UK’s residents are aware of the penalty for careless driving and dangerous driving. For careless driving the nominal fine charge is up to £ 5,000 and the driver license also gets disqualified. According to recent studies, if a person dies due to own driving lack the insurance company of the responsible person must pay the damages. Based on the present situation, Dopey is not alive; the penalty should be paid by her respected insurance company. The name of the driver who was passing on the same road is Grumpy. Grumpy’s car crashed into Dopey’s car while Dopey’s car was pulling back from the restaurant parking zone.

The 1984 Road Tariff Act is the legalization in UK which currently enforces all the limits. Therefore, the last changes in the act occurred in 2015, and the act mentions that limits of large HGVs on single and dual carriageways were raised up to 50mph and 60 mph respectively. It is assumed that the speed of Grumpy’s car must be above 60 mph and due to that reason, he was not unable to see Dopey’s car. Most of the roads which are built nearest any restaurants or hospitals in the UK are under “A” category. Consequently, it is also analysed that Grumpy was not following the preliminary rules of driving in “A” roads. A UK based driver must follow this rule while driving in such roads which is near to a crowd and those are such as taking most of the safety measures while driving in rainy season or on a wet road, keep a check around using the mirrors, lane changing, appropriate signalling and aim high in steerin.

It is also suspected that Grumpy did not use any of these safety measurements in order to alert Dopey or signal her and also, he did not change lanes when he was seeing the car from very far away. Section 3 under the road Tariff act would be applicable for this driver as well and as the driver causes a death to one of the victims the penalty would be charged also under dangerous driving. In this case as the victim of this act did not obey the rules of road tariff and the other driver is seriously injured as well and as per the record after that incident, he had mental illness and is currently in prison for stabbing a co-worker.

The court must understand his mental situation and requested to admit Grumply in a mental health hospital for getting better. However, as per the Law RTOO Arts 49 & 50, the other charge will be penalized from Grumpy as he returned from the prison and further mental hospital, a minimum fine of £ 1,000 would be charged, penalty charge would proceed for next 3 to 5 months and the license would be in Discretionary for a period until the patient is fully recovered.

As per the statement of recent writers, In the UK wearing a seatbelt for the driver and as well as for the other members inside the car is compulsory. Even if a car or any vehicle includes 3 passenger seatbelts a driver is not allowed to have four passengers. It is the driver's responsibility to make sure that everyone in the car is wearing a seatbelt and if any passenger or driver did not follow such rules and regulations then the law has full authorization to penalize and take other compensation charges. In this case, while Dobby has taken overconsumption of alcohol it was Bashful’s responsibility to take the charge of driving and as well to ensure that everyone was wearing a seatbelt by then. Due not wearing a seatbelt Bashful got thrown through the wide screen and got severely injured. A driver is only allowed to take off or remove their seatbelts while reversing the vehicle and as soon as it is reversed the driver must put back or wear the seatbelts again.

However, if a person is diagnosed for such medical reasons, they need to provide proper medical certificates and other reports. In this case if Bashful has such medical reasons for not wearing seatbelts at that time he must prove it in the court in order to get free from being penalize. The seat belt wearing law came into force in the UK’s law from 31st January 1983.The act says for preventing risk or accidents in roads and highroads from small vehicles to large vehicles drivers it is compulsory to wear a seatbelt and hence it is proved that almost a quarter of car drivers and passengers got injured or killed for not wearing seatbelts. Depending on the current situation an amount of £ 500 will be charged from Bashful due to seat belt offences and the penalty would proceed for the next three months and it is also suggested that from next time while using a car to wear seatbelt properly and maintain all the safety measurements. The further notification would also provide if in future Bashful did not follow any road tariffs and regulations the court will take strict action against him.

Lastly, Sneezy who’s the only eye witness of this accident and immediately develops a Post-Traumatic Stress Disorder after seeing the death of his friend. Under the common law of Tort recognizes only those damages for mental harm which were only recoverable under these types of torts such as false imprisonment, battery and assault. Several researchers argue that the court only recognizes physiological injury or any infliction as their own independent cause of actions and even without any accompanying harm to a person or their property. Hence, in today’s situation most of the Tort courts also allow such emotional impacts that do not cause any harm to the owner or the other members who are surrounded by the act. Sneezy who has reported as the patient of PTSD is advised to take proper health analysis and take proper medications. It is also suggested to the family members and friends of him to take proper health care and mental care. The accident had made a serious impact on his mind, as for now the court and other board members of the court would not ask any questions or any other supportive evidence regarding the accident. Sneezy, would be only allows in the court after he is completely recovered and out of the post trauma situation.

Apart from advising, it is a responsibility of a tort lawyer in order to protect the mental health of the client or the victim who suffers from mental dis-balance due to the traumatic situation that has been made in front of them. Tort law also provides the support to prevent the victim from any harm that causes any mental illness or any dis balance. The final judgement or the advice for all the victims in this case who have been survived in different ways and that would be to take and maintain all the secure and safety measurements regarding driving a car or any vehicle on the roads. Wearing a seatbelt is compulsory for the drivers and passengers as well. Do not drive a car, motorcycle or cycle after high consumption of alcohol, follow all the traffic rules and road tariffs. As per the statements of multiple writers, victims of road accidents mentally suffer more than by causing any physical injury and the mental injury hurts more than a victim. The current tort law is focusing on taking safety measurements on the mental health of the victims as it causes and spreads harm to the family members or to the friends of victims.

Reference List

LAW500 Business Law Assignment Sample

Week 7- 11.55 p.m.
Weighting: 30%

Answer all the questions for assignment help

Question 1

Dave is a bachelor who lives in Sydney. He was a loner and in ill health. He contacted his sister, Keren, in Oxford, England and asked her to move to Sydney to help look after him. He promised that if she did, that he’d leave all his property to her on his death. Keren agreed.

She resigned from her job, sold her house, and moved away from her friends. She arrived in Sydney and began to care for her brother. A few months later, they had a falling out. Dave sold his property and disinherited his sister. His sister sued for breach of contract.

Question 2

An elderly Lebanese couple, with little understanding of English or formal education, signed a mortgage over their home to Cheatem Bank, as security for payment of the debts of their son’s business. Their son, Ali, led them to believe that his company was sound when in fact it was in serious financial trouble. When Ali’s business went into liquidation, Cheatem Bank tried to exercise its rights under the
mortgage/guarantee.

Question 3

Brad and Jane operate a pizza business. The wood-fired oven has just blown up and it needs to be replaced. Brad and Jane immediately contact an oven wholesaler, Angie, and tell her that they require a wood-fired oven installed right away because they need it to make pizzas, their core business. Angie tells them it will be delivered and installed within 24 hours, by Friday before a long weekend. Angie then goes to a long lunch with lots of wine and forgets about Brad and Jane’s urgent phone call. When they call again on Tuesday Angie is very apologetic and sends the oven around to be installed. Brad and Jane have had to close their business for 4 days and nights, losing a great deal of money. They want to sue Angie for their loss of profits.

Question 4

Gulliver went on an organised bus tour for his annual holidays. The length of the tour was 23 days. The first 11 days were fantastic and more than exceeded his expectations. However, on the twelfth day the bus crashed, trying to avoid a wombat waddling across the highway, injuring Gulliver so he could not continue his tour on a replacement bus. Gulliver wants to sue the bus tour company for the full amount of his tour cost.

Question 5

Amelia owes Biggles $1,000 plus interest of $120 under a loan contract. The money is due for payment on Friday. On Wednesday Amelia tells Biggles she has lost her job and cannot pay the money. Biggles tells Amelia if she sells her new Apple notebook (laptop) he will take the proceeds of the sale in full satisfaction of the debt – and will not take legal action to recover any shortfall. Amelia was using her notebook to retrain for another job, but reluctantly agrees to sell it. Amelia gives the proceeds of the sale, $900, to Biggles. Biggles then demands the balance of $220. Is Biggles legally entitled to go back on his promise?

a) Explain the common law position.
b) b) Explain any equitable defense Amelia may have to action by Biggles. Cite a relevant
c) case in your answer.

Solution

Question 1

The context is very much related to the case study of the property breach for the various aspects as the reason is very much effective in terms of the various aspects. The property breach is very much effective for making a huge impact on the cases. In this context, Keren sold her property in order to serve his brother. Her brother Dave promised her to give his entire property to his sister. Keren sold all the properties and came to Sydney to serve her brother. The contract was made by his brother and the contract cannot be breached. But when the consequences were made for making a huge impact on the prospect of the property, her brother sold the entire property to another person and Keren sued for the breach of contract. A similar case happens in the case of Farley vs Skinner where the travel company breaks the contract and fails to provide the planned holiday to the plaintiff (Parizi and Dehghantanha, 2018). The case is very famous and the concept of the case depends on the breach of contract. Similarly, this case also depends on this factor for providing support for the different revolutionary aspects as well.

The case can be handled with various aspects as there are many projects that the organization has to take on for the various impacts. The anticipation of the one party is the main factor that can help in the evaluation of the breach of contract. According to “section 37 of the contracts act the contract” has to be performed or the breach of the contract can be very much effective in accordance with the law against the various aspects as well (Li, Barenji, and Huang, 2018). According to “section 243 of the contracts act”, the police can arrest or anyone can accuse and raise a case if the law was not properly met in the aspect of the case law of the different factors (Rouhani and Deters, 2019). Besides, there are many steps that Keren can take like the straight refusal that the various aspects can be effective for making a huge impact on the opposite party. Keren can make a huge impact on the contract by making an effective approach in regard to the deviation of the contract or making a hugely effective approach for the brother can be also effective. If the other party grants what he is accused of and the other party cancels the case from the court, which can be also helpful for the brother and sister. So every matter has to be taken into consideration and taking the proper decision rightly is the main factor.

Question 2

The case study is totally based on the harassment of the different case studies that are related to the various aspects. The Lebanese couple is not properly educated and various factors need to be maintained such as the bank loan for making the business of their son Ali more effective. In this aspect, the cases of the law can be helpful for making a huge impact on the situation of parents of Ali. The parents are very much hurt by the behaviour of the son as the business of the son is totally devastated by the case. There is a case for Vijay Maliya whose house is being mortgaged by the UK court as the loan cannot be paid in time. This context is also similar to the aspect of the case study that is being discussed (Watson, 2019). The evaluation of the case study is very much effective for making a huge impact on the parents as the parents now have nowhere to go and their son already cheated on them.

As per the “National Loan Act 1968”, the Cheatem bank is doing the proper thing that they need to do. The loan is not given back to the bank in time and the bank is needed to mortgage the property until the loan is needed to be given back to the bank (Watson, 2019). In this aspect, there are many things that the bank can do but it is needed to be proper in the aspect of the various factors. The parents of Ali have to pay the entire loan to get back the mortgage from the property and they can perform many aspects related to various means. According to the “Mortgage interest regulation act 2017”, they have to pay back a huge amount of money to the bank including interest (Hafiz et al., 2020). They have made her son work properly to make a huge impact on the cases and the loan has to be paid back in time for getting the house back from the bank. They both have to work including their son as the number of loans from the bank has touched a huge figure and there are many aspects that are needed to be maintained for getting the house back from the mortgage.

Question 3

In the case study, Brad and Jane conduct a business of serving pizza to their customers. The wood-fired oven is the main factor for making the pizza as without the oven pizza delivery cannot be possible. They asked for an oven from a wholesaler Angie. But Angie was so careless that he completely forgets about the order. Their pizza service has to be stopped for a huge amount of time, nearly 4 days. They suffered a huge loss in the business and that is affecting the profitability rate of their business. The wholesaler was the main reason that their business is suffering a huge amount of loss. There are many examples that state the business has suffered a huge loss in the business as well. In this context, the main approach is the reason for making huge. The case of Tesco in the disruption in the supply chain is very much related to the effective approaches as the cases are very much related to the impact. The evaluation of the studies and the interruption of the studies is generally supporting the important factors of the laws and the laws are meant to be supported with the proper effective approach as well.

As per the “consumer right act 2015”, Brad and Jane can file a case against Angie for not giving supply in time. The acts are very effective as this is enough for making a huge consolation on the various needs as well (Rutkowska-Tomaszewska, 2020). On the other hand, it can also be said to be the main impact of the various affections as well. The “Consumer Contract Regulation Act 2015” also states that various factors can be effective in making a huge impact on businesses. The act mainly states the supply needed to be supplied on time for any urgent situation. Angie makes a huge impact on the various reasons as there are many aspects that are very much related to the cases (Dowuona-Hammond, 2018). Through the help of these laws, Brad and Jane can be helpful for the different factors and the acts can be helpful for making the aspect more effective. The wholesale business of Angie can be ruined by filing the case as he acts against the regulations. The various factors can be effective in ruining a business Angie and different aspects.

Question 4

The case study is mainly based on the loan approaches for the various factors as the reason for the improvements needed to be guided for the various aspects. Gulliver is mainly based on the various reasons in the different reasons and the tour travels are very much effective as there are many reasons that are realized for the various factors and the different reasons and the various impacts can be made for the reason that needs to be maintained for the various reasons. Gulliver wants to sue the traveling company as the whole travel plan for the rest of the holiday was cancelled. The impact of the tourism company is very much effective in the different aspects and the bus company is generally impassive for making a hugely effective approach for various reasons (Sharpley, 2020). The company is mainly accused of destroying the whole holiday plan of Guliver and the pal for the impressive aspects can be made as well. The cases can be filed for suing the company and getting the total cost of money back. The task is going to be a little bit difficult for the company as there are many factors that can be related to the impacts of the strategies as well.

As per the “development tourism act 1969", the travel company has to return the whole money in case they ruin the whole factor for the improvement of the different aspects (Hussin and Buchmann, 2019). Tourism has harassed the total aspect of the study and this can be made for different reasons as well. In this concept, it can be also informed that the tour company is mainly responsible for making the impact on the various factors. The case for not completing the tour can be filed but it is very difficult to win the case. This is due to the accident or the crash of the bus did not happen intentionally. It was stated as an act of nature and the tourism company is not responsible for making a huge impact on the processes of the legislation. The "Tourism Act of 2009” and “The Tourism Act of 2005" states that there are many factors that the traveler also has to look after for making a huge impact on the different approaches to development (Sharpley, 2020). It can be also stated that the information for the improvement can be used for the various processes and the modification of the actions needed to be applied as well.

Question 5

Yes, Biggles is very much entitled to go back to his promises as his condition of Amelia was not so good. Besides, the law is also stating that he should be making a progress in getting back to the promises that Amelia's sales are only iPhones in which she would have found jobs.

a) The common law position for the improvements of the country is generally situated among the different aspects. According to “National Loan Act 1968”, Amelia has to return her loan within time, or her property of her will be mortgaged by Biggles. He does exactly the same and sells her iPhone to get his money (Gentryand Cook-Davis, 2021). But the demand for the rest of the balance is the proper aspect to do as she has given the main property of her. On the other hand, Biggles demands the rest of the money which is illegal. So the fact is that the common law position for the situation is very much in support of Amelia. There are several aspects that amelai can do0 for self-defence. The impact of the law is so effective that Amelia is scared of the situation.

b) There was a case of Amelia that states that she has to defend against Biggles who have already got the maximum amount by selling the property to Amelia. She was promised that the money will be enough in return for the loan but now Biggles is demanding the aspen for the evaluation of the concept. In this aspect, the main factor that could be helpful in the demand of the process is the evaluation of the cases. According to "Mortgage interest regulation act 2017”, Biggles cannot claim the rest of the money from Amila, and the rest of the money is not needed to pay by Amilia (Bonvoisin et al., 2020). In this aspect, there are many factors that could be helpful in the making of the defence strategy for Amelia. The defence strategy with the act can be useful for Amila as she will be able to take legal steps against Amilia for making this impact on the Biggles and can fight for the money that is demanded illegally.

References

Intellectual Property Rights Law Implementation Assignment Sample

Question

"Thou shalt not appropriate other people's intellectual production" is one of the Ten Commandments of Computer Ethics.

Please talk about the IPR (intellectual property rights) issues that businesses must deal with in the digital age. Discuss the results and consequences of certain IPR-related court cases in order to update the IPR legislation.

Answer

Introduction: People are granted intellectual property rights (IPR) over their creations. In essence, the creator receives an exclusive right to use, exploit, and profit from his product. Intellectual property (IP) rights are meant to encourage the creation and the advantages gained from its use in the creator's favor. These rights have moral as well as monetary worth. It is also referred to as monopoly rights of exploitation and has a constrained age range, geographic reach, and duration [4].

IP rights are divided into two groups: industrial property and copyright.

Books, music compositions, paintings, sculptures, poems, films, computer programs, and other artistic creations are all covered by copyright. These are all covered by copyright for a period of 50 years following the creator's demise. Additionally, "neighboring" rights, such as those of actors, musicians, singers, and phonogram makers, as well as broadcasting organizations, are included in this category. The basic goals of the copyright are to protect the owners and compensate the creators for their ingenuity.

Industrial property is defined as the defense of distinguishing trademarks, monograms, signs, logos, and other identifiers that set one company's goods and services apart from another. Patents, trade secrets, and industrial designs are examples of other types of industrial rights [7].

Identifying the main IPR concerns or difficulties

Lyrics, music compositions, sculptures, paintings, designs, literary works, and other works of art are examples of intellectual property. These works of art can be purchased, sold, or licensed just like any other tangible property. IPR grants the creator the right to profit financially from his creations. The protection of the intellectual property is becoming essential for large corporations investing. Ideas and knowledge are gaining tremendous traction, and many items and commodities that were formerly sold as low-value commodities or goods have improved in reputation due to their innovative design [1]. Because they carry an identity, today's movies, biotech products, online services, apparel, music, books, and computer software can all be purchased and sold with ease.

Trade-Related Aspects of Intellectual Property Rights (TRIPS), an agreement on intellectual property regulations in the global trading system, were developed by the WTO in response to shifting business patterns and went into force on January 1, 1995. The standards, enforcement, and dispute resolution are its three key components, making it the most comprehensive multinational IP agreement. IP is given substantial protection under the TRIPS agreement [3].

The rapid and dramatic advancement of technology is causing subtle and complex problems, such as the development of satellite broadcasting, which is relatively extremely inexpensive and, therefore, cannot be protected by a patent or copyright. Without permission, those who broadcast it retransmit it to other cable systems for profit. These measures make copyright less legitimate and make it harder to appropriate.

The same problem arises when proprietary material, such as data, is transmitted electronically, especially when using electronic devices. Given the number of users and utilization of inexpensive telecommunication networks, IP rights are practical but very expensive in these scenarios [6]. Information technology is particularly susceptible to widespread and inexpensive copying, which is creating concerns about international intellectual property rights.

Analysis of Issues Regarding Intellectual Property Rights

Intellectual property theory has not piqued the interest of many philosophers. The notion of utilitarianism is essentially the main idea used to explain utilitarian inventions. The development of IPR is encouraged by utilitarian theorists because it fosters innovation. This utilitarian philosophy has served as the foundation for US copyright legislation [4]. For a specific amount of time, the innovator is granted an exclusive privilege through the use of copyright, patents, trademarks, design patents, etc. There are many different ways to secure intellectual property, and each one has a different level of protection [2]. The non-utilitarian theories, on the other hand, highlight that the creator has a moral obligation to defend his creations.

Digitalization has had a significant impact on IPR. Technologies that make peer-to-peer networks, file sharing, digital conversion for mass consumption, and other activities on fast, affordable internet connections are proliferating at an enormous rate. Numerous unauthorized copies have been distributed thanks to technical tools [8]. The film, music, and software industries are particularly affected by this problem and are continually looking for different technical and legal solutions to combat this digital piracy. The music and film industries have been rattled by digital piracy. Mass copying without compromising the copyrighted content is possible with high-density digital copying. Peer-to-peer sharing among many users transforms the majority of unlicensed copyright material.

A wide range of technical solutions are being developed to combat digital piracy to prevent copy control, limitations on file sharing, file control, saving, printing, etc. Digital piracy is being prevented by using encryption, electronic watermarking, tagging, flagging, and other methods [5]. All of these copy safeguards are built into the device's operating system, hardware, or software. The music and film industries are promoting piracy filters in Internet service providers to screen or identify pirated digital content.

Recommendations: IP protection is a fundamental right in democratic economies and communities. Without a doubt, IPR encourages discovery and innovation and must be upheld. It is clear that IPR can encourage research and allow people the flexibility to profit from their innovations. IPR has various advantages, including preventing plagiarism and preventing others from utilizing it. It also supports strategies for generating cash and permits unrestricted entry into a cutthroat market. Your personal or business intellectual property, whether it be copyright, patent, insider knowledge, or trade secret, is more valuable than any tangible assets you may have.

Piracy and counterfeiting are widespread and will remain so, notwithstanding the provisions for intellectual property. Therefore, to address the piracy issues, proactive solutions and useful advice are required. Analytical investigations show that each individual must come up with a unique method of IP protection. Every organization relies on its intellectual property (IP), and if this is stolen, it is impossible to recover the stolen data, and it is tough to prosecute the offenders.
Therefore, it is crucial to safeguard intellectual property.

A few suggestions are:

• Become a member of the Intellectual Property Owners Association, which improves government cooperation efforts to combat counterfeiting both domestically and internationally. Additionally, it safeguards IP investments from trafficking, illicit dissemination, and copyrighted material copying.

• Developing and maintaining a strong IP portfolio.

• Working with IP attorneys with specialized knowledge.

Intelligence Property protection is now required. The biggest inventors in the world, including Apple, Microsoft, Google, and Amazon, are spending billions of dollars to safeguard and defend their intellectual property.

Conclusion:

Laws and intellectual property rights are intended to foster innovation and the free exchange of ideas while also benefiting the owner. A result of mental activity, intellectual property is an intangible asset. Our Law Assignment Help suggest to submitting fresh copyright or patent applications, obtaining new licenses, and adding value in a variety of inventive ways, the company must continually strengthen its IP portfolio. IP is at risk on a daily basis in the current environment. Digitalization has led to an increase in cyberpiracy. The movie, music, and pharmaceutical industries are now targets of copying and piracy. The creation of a statutory framework is necessary to safeguard intellectual property rights. Australia has well-developed regulations that safeguard both private and corporate intellectual property.

References

[1] P. E. Chaudhry, "Protecting your IP rights," Business Horizons, vol. 56, no. 2, pp. 131–133, 2013.

[2] S. Kinsella, "The case against intellectual property," Handbook of the Philosophical Foundations of Business Ethics, vol. 1, no. 3, 2013, pp. 1325–1357.

[3] S. Pathak, E. Xavier-Oliveira, and A. O. Laplume, "The Politics of Intellectual Property Rights Regimes: An Empirical Study of New Technology Use in Entrepreneurship," Technovation, vol. 34, no. 12, pp. 807-816, 2014.

[4] "Stage-dependent intellectual property rights," J. Dev. Econ., vol. 106, pp. 239–249, 2014. A. C. Chu, G. Cozzi, and S. Galli.

[5] "Intellectual Property Rights," by N. Chaudhari and V. Baliga, Unesco, 2015.

[6] Intellectual property and ideas of justice by A. Gosseries, A. Marciano, and A. Strowel 2008.

[7] "Intellectual property rights in publicly supported biobanks: Much ado about nothing?," Nat. Biotechnol., vol. 29, no. 4, pp. 319-323, 2011. S. Pathmasiri, M. Deschênes, Y. Joly, T. Mrejen, F. Hemmings, and B. M. Knoppers.

[8] Procedia Econ. Financ., vol. 16, pp. 548–552, 2014. L. Ilie, "Intellectual Property Rights: An Economic Approach."

DFVP20001 Domestic and Family Violence Theories and Perspectives Assignment Sample

Literature and references

In this assessment use at least 6 contemporary references (<10 years) to support your discussion. You may also use seminal scholarly literature where relevant. Suitable references include peer-reviewed journal articles as well as textbooks and credible websites. When sourcing information, consider the 5 elements of a quality reference: currency, authority, relevance, objectivity, and coverage. Grey literature sourced from the internet must be from reputable websites such as from government, university, or peak national bodies: for example, AIHW, AIFS, ABS, ANROWS, and AIC.

Requirements

• Use a conventional and legible size 12 font, such as Times New Roman or Arial, with 1.5 line spacing and 2.54cm page margins (standard pre-set margin in Microsoft Word).

• Include page numbers on each page in a header.
• Write in the third-person perspective.
• Use formal academic language.
• Use the seventh edition American Psychological Association (APA) referencing style.

The CQUniversity Academic Learning Centre has an online APA Referencing Style Guide.

• The word count excludes the reference list but includes in-text references and direct quotations.

Resources

• You can use unit provided materials and other credible sources (e.g. journal articles, books, grey literature) to reference your argument. The quality and credibility of your sources are important.

• We recommend that you access your discipline specific library guide: the Social Work and Community Services Guide.

• We recommend you use EndNote to manage your citations and reference list. More information on how to use EndNote is available at the CQUniversity Library website.

• For information on academic communication please go to the Academic Learning Centre Moodle site. The Academic Communication section has many helpful resources including information for students with English as a second language.

• Submit a draft before the due date to review your Turnitin Similarity Score before making a final submission. Instructions are available here.

Submission

Submit your assessment via the unit Moodle site in Microsoft Word format only.

Marking Criteria

Refer to the marking rubric below for more detail on how marks will be assigned.

Assessment 1 (Portfolio) Due 17th Dec - More info here

Type: Written assessment

Due date: 5.00pm (AEST) Friday, 17 December 2021 (Week 5)

Weighting: 30%

Length: 1500 words plus or minus 10% (excluding references)

Unit Coordinator: Dr Nicola Cheyne

Learning Outcomes Assessed

2. Identify and describe relevant research and other sources of data related to domestic and family violence integrating terminology appropriate to the field.

3. Analyse the basis for contemporary theories of domestic and family violence, with a focus on gender.

Aim

The aim of this assignment help is to guide your exploration of the relationship between gender and domestic and family violence (DFV), specifically intimate partner violence (IPV).

Instructions

Present your answers to the following tasks in paragraph/short answer format (no introduction or conclusion). Altogether your answers to these tasks will entail a detailed analysis of current knowledge regarding IPV victimisation/perpetration experiences of men compared to women.

Please follow the steps below to complete your assessment task:

1. Present current Australian national data (e.g., Australian Bureau of Statistics) on IPV perpetration and IPV victimisation. Are there gendered patterns of perpetration and victimisation? (i.e. who are the perpetrators and who are the victims?) (approx. 400 words).

2. What are the key points of agreement and disagreement in academic literature, regarding the gendered nature of IPV? Ensure you identify the arguments for viewing IPV as gendered, and identify the arguments against viewing IPV as gendered (approx. 800 words).

3. Has your examination of data and literature, challenged your previous understanding or beliefs about the nature of IPV? Explain your response (approx. 300 words).

Literature and references

In this assessment use at least 6 contemporary references (<10 years) to support your discussion. You may also use seminal scholarly literature where relevant. Suitable references include peer-reviewed journal articles as well as textbooks and credible websites. When sourcing information, consider the 5 elements of a quality reference: currency, authority, relevance, objectivity, and coverage. Grey literature sourced from the internet must be from reputable websites such as from government, university, or peak national bodies: for example, AIHW, AIFS, ABS, ANROWS, and AIC.

Requirements

· Use a conventional and legible size 12 font, such as Times New Roman or Arial, with 1.5 line spacing and 2.54cm page margins (standard pre-set margin in Microsoft Word).

· Include page numbers on each page in a header.

· Write in the third-person perspective.

· Use formal academic language.

· Use the seventh edition American Psychological Association (APA) referencing style. The CQUniversity Academic Learning Centre has an online APA Referencing Style Guide.

Dashboard / My units / 2021 Term 3 / DFVP20001_2213 / Assessment / Assessment 1 (Portfolio) Due 17th Dec - More info here
12/1/21, 12:34 PM DFVP20001_2213: Assessment 1 (Portfolio) Due 17th Dec - More info here
https://moodle.cqu.edu.au/mod/assign/view.php?id=2306395 2/3
DFVP20001 Assignment 1 (2).pptx 27 October 2021, 4:55 PM
DFVP20001_T3_2021_Assessment1.pdf 27 October 2021, 4:55 PM
Video on Portfolio 1.mp4 27 October 2021, 4:55 PM

· The word count excludes the reference list but includes in-text references and direct quotations.

Resources

· You can use unit provided materials and other credible sources (e.g. journal articles, books, grey literature) to reference your argument. The quality and credibility of your sources are important.

· We recommend that you access your discipline specific library guide: the Social Work and Community Services Guide.

· We recommend you use EndNote to manage your citations and reference list. More information on how to use EndNote is available at the CQUniversity Library website.

· For information on academic communication please go to the Academic Learning Centre Moodle site. The Academic Communication section has many helpful resources including information for students with English as a second language.

· Submit a draft before the due date to review your Turnitin Similarity Score before making a final submission. Instructions are available here.

Submission

Submit your assessment via the unit Moodle site in Microsoft Word format only.

Marking Criteria

Refer to the marking rubric below for more detail on how marks will be assigned.

Solution

1. Present current Australian national data (e.g., Australian Bureau of Statistics) on IPV perpetration and IPV victimization. Are there gendered patterns of perpetration and victimization? (i.e., who are the perpetrators and who are the victims?)

In case of IPV, perpetrators are accounted to be an individual who uses violence and abuse on the other partner while the person witnessing and experiencing the violence is termed as victim (Valtchanov & Parry, 2017). According to the Australian Bureau of Statistics (ABS), Personal Safety Survey of 2016, the female population who witness partner or intimate violence have direct or indirect relation with a disability, financial stress, long term health issues, low life satisfaction, as well as unemployment. These factors are altogether explained to be the nature of vulnerability by the Victoria Practice Guidelines. It was also assessed that the prevalence rate of the female population witnessing physical or sexual assault from their current or previous intimate partners in a duration of 12 months is around 132,000 of the female population. The statistics highlight the incidence rate to be common enough as it is experienced by one in every four female populations within diverse communities of Australia (Australian Bureau of Statistics, 2021). This female population have been shown to witness at least one such partners by whom they have experienced intimate partner violence from the age of 15 years. The report also highlighted that out of these female populations, 16 % of the individuals have experienced intimate partner violence in the past two years. Also, several studies have supported the fact that the female population living in capital cities have experienced a similar rate of intimate partner violence to those of the female population living in remote regions of Australia in the past two years.

Thus, the statistics and the report demonstrated by the Australian Bureau of Statistics (ABS)stated that the female population are mostly identified as the victims while their partners account for the male population as the perpetrators. According to Structural Feminist Perspective, domestic violence is a gender issue where the abuser uses violence to dominate the female population to reflect power. It states “examine the effects of societal structures and power relations between dominant and oppressed groups on female population” (Valtchanov & Parry, 2017, p. 557). It has also been found that the female population who is a single parent to their children are the most susceptible population who are highly associated with experiencing intimate violence within their lives in the current years (Australian Bureau of Statistics, 2021). The statistics of these single-parent household female population to witness intimate violence is three times higher than the other categories under which female population witnesses intimate violence as the prevalence rate is 8.1 among single mothers. Also, the female population belonging to the Aboriginal and Torres Strait Islander are more susceptible to IPV as compared to those of the non-indigenous populations. According to the subculture of violence theory, explains the willingness and intention of an individual to involve in violence and people within a community are influenced and promoted by the support ensured within a community. Thus, it can be stated the female population are the victims of intimate violence where the male population have been accounted to be the perpetrators.

2. What are the key points of agreement and disagreement in academic literature, regarding the gendered nature of IPV? Ensure you identify the arguments for viewing IPV as gendered, and identify the arguments against viewing IPV as gendered

There is a wide range of studies and research that have been carried out focusing on the gender difference in the case of intimate partner violence or IPV which demonstrated a range of unpredictable evidence and the agreement and the disagreement between the two. Many of the studies support evident learning that the prevalence of men witnessing IPV is similar to those of the statistics of the female population in similar conditions. While there are many other studies that state that men are the perpetrators of the intimate partner violence witnessed by the female population. The national data thus lacks major evidence on the prevalence of men witnessing IPV which often makes it difficult to evaluate the gendered nature of the condition within the premises of Australia. Men are found to be victims of violence but the statistics of witnessing intimate violence is quite low as men are assessed to face violence from strangers or others due to professionals and personal reasons. Intimate violence is found to be more likely to happen with a female population which is a figure of more than 17 per cent when compared to men where the statistics are less than half of the overall numbers of the female population experiencing violence (World Health Organization, 2021).

According to Dawson et al. (2019), the evidences agreed on the idea of IPV as gendered, as intimate partner violence is one of the public health concerns in worldwide nations with a 4 % prevalence rate in a duration of a year. The condition is widely conducted by men where the victims are mostly identified as the female population which explains the burned on the health care and social services along with the economy of every country. It is known to have a major impact on the physical and mental health of these victims as they withstand sexual, mental, and physical abuse from their past or present partners. The prevalence is identified to be higher in the female population belonging to the younger age group (Dawson et al., 2019). Thus, emergency departments are guided to refer these susceptible female populations to social service providers as soon as they recover from the injuries.

According to Cho et al. (2020), the research evidence agreed on the fact that IPV is gendered and the report provided by National Intimate Partner and Sexual Violence Survey showed that gender has a fair set of interaction with the nature of IPV. The research was carried out using 3878 survivors of intimate partner violence where 3009 were female while 869 were men. It reflected the fact that though the prevalence is much higher in the case of the female population, men are also found to witness some rate of violence in their intimate relationships carried out by the female population.
The independent variable that was identified in the research included race, income, gender as well as financial stability along with the pattern and outcome of victimization (Cho et al., 2020). It has been also identified in the study that the female population have experienced a negative impact of intimate violence on their health thrice than men. Also, physical injuries and harm have been identified to occur in the female population more likely than men which makes them susceptible to negative consequences of IPV.

One of the researchers disagreed on IPV being gendered and identified the incidences of the traditional view which is currently being followed, as the male was always accounted to be the perpetrator while the female population were identified to be victims. Thus, there is a limited range of research studies that have been carried out to assess the intimate partner violence rate within men as researchers mainly focus on assessing the victimisation of the female population towards IPV. Also, LGBT communities have been witnessed to sustain a major rate of intimate violence which is also neglected by most of the research studies and statistics surveys (Laskey, Bates& Taylor, 2019). It has been found in a study survey that men have reported to witnessed different types of consequences of intimate partner violence which includes sexual, physical, manipulative, and verbal abuse in their relationship. Also, the report states that men after reporting the experience of IPV have to sustain the increased rate of harassment and abuse by society, family, police and other service providers. It is because people find it difficult to accept that a man in relation would have experienced intimate violence due to traditional mindset and beliefs. Also, in such situations, men have been doubted as the perpetrators and were imprisoned for the same (Gerke et al., 2020).

In research carried out by Bates (2020), experiences of men with IPV are identified to impact the mental and physical health similar to those of the female population and often impact their future relationships with children or any other intimate partner. Men have been describing that the beliefs, attitude and response of the society and the service providers to the incidence of reporting of IPV on men has also developed a major threatening and harassing situation for these susceptible populations (Bates, 2020). It has been supporting the evidence that men are accounted to be abusers and often the issue they witness gets neglected due to the wide range of supportive measures precisely focusing on the female population accounted as the only victims of IPV. Thus, it has been found that the “Violence against Women and Girls” strategy has categorized intimate partner violence as a gendered crime due to the lack of consideration towards the male population.

3. Has your examination of data and literature, challenged your previous understanding or beliefs about the nature of IPV? Explain your response

Yes, with the understanding and evidence provided by the other research articles, a well-developed belief or mindset was developed where men were identified as the perpetrators of this kind of violence and abuse against the female population. The statical reports provided by the World Health Organization as well as theAustralian Bureau of Statistics (ABS) Personal Safety Survey provided an understanding of the rising issue of intimate partner violence in the female population (World Health Organization, 2021). The belief was biased in nature as evidence have mainly highlighted the abuse and violence witnessed by the female population, but as other researches were assessed and evaluated, a dissimilar understanding was examined. The research analyses of other research articles apart from the Australian Bureau of Statistics (ABS) Personal Safety Survey helped in acknowledging the fact that though the female population are mostly the victims of IPV, men have been provided less consideration and support as they have also sustained similar issue but in a lesser rate. The condition has a similar explanation to the System Tension and Feedback System Theory of domestic and family violence as it states that stress and conflict within intrafamilial factors often lead to maintaining violence within the family and even society (Sunitha, 2021). Focusing on the theory it can be stated that not only the female population, but men have also been witnessing severity of physical, sexual and mental abuse in their intrafamilial intimate relationship. These factors often get neglected due to deprived support and service provided to them due to a biased mindset. The feminist theories focus on the collection of feminist approaches which focuses on addressing the issue of violence faced by the female population and account men as the abuser for which they guide the female population to fight against the issue of abuse (Subirana-Malaret, Gahagan & Parker, 2019).It was found that men are frequently accounted to be the abuser or perpetrator in such conditions even when they are the victims and are penalized and imprisoned for a crime for which they were never convicted. Thus, it helped me understand the fact that both male and female populations are victims of intimate partner violence, though the statistics vary widely. It is necessary to ensure equal rights and support to both the male and female population within the society. It is essential for the community to ensure equal support, right and care to the men when they are identified to be the victims for which government need to provide equal position to men in terms of IPV victims.

References

Australian Bureau of Statistics. (2021). Partner Violence - In Focus: Crime and Justice Statistics, Partner Violence - January 2020. Australian Bureau of Statistics. Retrieved 2 December 2021, from https://www.abs.gov.au/statistics/people/crime-and-justice/focus-crime-and-justice-statistics/partner-violence-january-2020#characteristics-of-partner-violence

Bates, E. A. (2020). “No one would ever believe me”: An exploration of the impact of intimate partner violence victimization on men. Psychology of Men & Masculinities, 21(4), 497.Retrieved from: https://core.ac.uk/reader/169434710

Cho, H., Seon, J., Han, J. B., Shamrova, D., & Kwon, I. (2020). Gender differences in the relationship between the nature of intimate partner violence and the survivor’s help-seeking. Violence against women, 26(6-7), 712-729. https://doi.org/10.1177/1077801219841440

Dawson, A. J., Rossiter, C., Doab, A., Romero, B., Fitzpatrick, L., & Fry, M. (2019). The emergency department response to women experiencing intimate partner violence: insights from interviews with clinicians in Australia. Academic emergency medicine, 26(9), 1052-1062.https://doi.org/10.1111/acem.13721

Gerke, J., Rassenhofer, M., Witt, A., Sachser, C., &Fegert, J. M. (2020). Female-perpetrated child sexual abuse: prevalence rates in Germany. Journal of child sexual abuse, 29(3), 263-277. https://doi.org/10.1080/10538712.2019.1685616

Laskey, P., Bates, E. A., & Taylor, J. C. (2019). A systematic literature review of intimate partner violence victimisation: An inclusive review across gender and sexuality. Aggression and Violent Behavior, 47, 1 11. https://doi.org/10.1016/j.avb.2019.02.014

Subirana-Malaret, M., Gahagan, J., & Parker, R. (2019). Intersectionality and sex and gender-based analyses as promising approaches in addressing intimate partner violence treatment programs among LGBT couples: A scoping review. Cogent Social Sciences, 5(1), 1644982.https://doi.org/10.1080/23311886.2019.1644982

Sunitha, P. (2021). Domestic Violence And Theories, Retrieved 4 December 2021, from https://euroasiapub.org/wp-content/uploads/2017/01/18ESSDec-4386-1.pdf#:~:text=System%20Tension%20and%20Feedback%20System%20Theoahsry%3A%20This%20theory,

which%20maintain%20violence%20in%20family%20and%20in%20society.

Valtchanov, B. L., & Parry, D. C. (2017). Reclaiming the “F-word”: Structural Feminist Theories of Leisure. In The Palgrave Handbook of Leisure Theory, (pp. 557-576). Palgrave Macmillan, London. https://doi.org/10.1057/978-1-137-56479-5_32

World Health Organization. (2021). Apps.who.int. Retrieved 2 December 2021, from https://apps.who.int/iris/bitstream/handle/10665/77432/WHO_RHR_12.36_eng.pdf.

2105AFE Introduction To Business Law Assignment Sample

Weight: This assessment is worth 25% of the total marks for this course.

Due Date: This assessment must be submitted online via SafeAssign by 4.00 pm on Thursday, May 19, 2022.
Word Limit: Your answer to the Hypothetical ILAC Question must be no longer than 2000 words. There is a 10% allowance to account for any misunderstandings, so penalties will begin at 2201 words. Write clearly and concisely. Penalties apply to any answer which exceeds the maximum word limit and/or does not follow any of the instructions below.

HYPOTHETICAL ILAC QUESTION FOR ASSIGNMENT HELP

Victoria Jennings was severely injured in a car accident in 2015. As a result of her injuries, Victoria will become more disabled as she ages, and her health and mobility will deteriorate over time. Given her injuries, Victoria has a residual earning capacity of $500 a week and a working life which will end at 50 years in December of 2041. At the hearing of Victoria's personal injuries claim, she was awarded damages of $2.75 million, the bulk of which related to present and future medical and associated expenses of 1.7 million. Lacking any investment expertise or experience in receiving her damages award, Victoria engaged a financial planner, Bob Surething, to advise her on how to manage her present and future finances to ensure that she is able to pay her current and future medical expenses. Bob operated his financial advisory business through a company called Worthwhile Investments Pty Ltd (Worthwhile Investments).

On the basis of Bob's advice, Victoria invested $ 2 million in a share portfolio. The remaining $750,000 was spent on paying off the mortgage on Victoria's house and making home modifications to accommodate Victoria’s injuries. Initially, the share portfolio grew in value, with Bob Valuing Victoria's portfolio at 2.4 million in 2018. Victoria’s mother, Anita, was very interested in the value of Victoria’s share portfolio. Anita would regularly ask Victoria what shares Bob had recommended Victoria invest in. Anita would then buy the same shares in her name. Victoria requested on a fairly regular basis that Bob provide funds to her from her share portfolio so that Victoria could fund her own start-up businesses. Unfortunately, none of the start-ups was successful partly because of limitations caused by Victoria’s injuries.

By the end of 2020, Bob told Victoria the value of her share portfolio had dropped to $1.5 million, in part because of Victoria’s borrowings from her share portfolio to fund her failed start-ups and in part because of the continued decline in the value of shares held in Tourism and Accommodation companies in Victoria’s portfolio. In 2021 the value of the portfolio continued to decline. Victoria ended Bob’s appointment as her financial advisor in November 2021. In 2022, Victoria commenced proceedings against Worthwhile Investments, claiming that Bob Surething is liable for negligence. Victoria claims that Bob has breached his duty to her on two counts. Firstly, by not warning her against borrowing money from her share portfolio and investing in a number of failed start-up businesses. Secondly, by retaining shares in Tourism and Accommodation companies when Australia and the World were experiencing a COVID Pandemic, preventing domestic and international travel to a large extent.

Victoria's mother, Anita, has joined Victoria in claiming that Bob Surething is liable for negligence as Anita relied upon his advice in purchasing Tourism and Accommodation company shares and has suffered financial losses by doing so. Worthwhile Investments argue there is no duty owed by Bob to Victoria to oversee her spending and no duty owed by Bob to Anita as Bob was unaware that Victoria was sharing her personal investment plan with Anita.

Solution

Introduction

Tort law is a field of law that mainly deals with civil suits in a country. The main aim of the law is to redress an inappropriate act conducted against an individual to provide relief from the acts by providing adequate rewards to help the individual to deal with the monetary damages as compensation. Civil Liability Act 2003 (QLD) is applicable to civil claims for damages that caused harm to individuals. This law includes breach of duty, the liability of public and other authorities, proportionate liability, and excluding the right to claim damages due to certain unethical behaviour.

Issue

The main issue that the assignment mainly deals with is "Victoria and Anita come to you for advice on whether each has a claim in negligence against Bob Surething". Additionally, the key issues are against Bob Surething.
Evaluation of the issue

In the year 2015, Victoria Jennings was involved in a car accident that left her in critical condition. As Vicky gets older, her injuries will become more severe, and she will also experience a decline in both her health and mobility. As a consequence of the injuries she sustained, Victoria's potential earnings are restricted to a maximum of $500 per week, and she will turn 50 years old in December of 2041. At the hearing of her personal injury claim, Victoria was awarded a total of $2.75 million in damages, the majority of which was for present and future medical expenses and other costs related to her condition, which totalled $1.7 million. After Victoria was awarded her damages, she immediately went out and hired a financial planner by the name of Bob Surething to provide her with guidance regarding how to best manage her current and future finances in order for her to be able to pay her current and future medical bills. Bob's financial advisory business was run through a company called Worthwhile Investments Pty Ltd, which was the company that Bob used (Worthwhile Investments).

Following Bob's recommendations, Victoria put $2 million of her wealth into an investment portfolio. With the remaining 750,000 dollars, Victoria was able to pay off her mortgage and make the necessary modifications to her house so that she could recover from her injuries in a more comfortable environment. Additionally, it has been observed that Every so often, Victoria asked Bob for money from her stock portfolio so she could start her own start-up ventures. Sadly, none of the start-ups was able to succeed in part because of Victoria's physical limitations.

Victoria's share portfolio was valued at $1.5 million by Bob at the end of the year 2020, in part because Victoria had borrowed money against her portfolio to fund failed start-ups and in part because the value of Victoria's stock holdings in tourism and accommodation companies had continued to decline over the previous year. In 2021 the value of the portfolio continued to decline. Victoria ended Bob's appointment as her financial advisor in November 2021.

In the year 2022, Victoria filed a lawsuit against Worthwhile Investments, alleging that Bob Surething was negligent in his handling of the company's affairs. Victoria claims that Bob has breached his duty to her on two counts. Firstly, by not warning her against borrowing money from her share portfolio and investing in a number of failed start-up businesses. Secondly, by retaining shares in tourism and lodging companies during the COVID Pandemic, which severely restricted domestic and international travel, resulting in a significant loss of revenue. Victoria's mother, Anita, has joined Victoria in claiming that Bob Surething is liable for negligence as Anita relied upon his advice in purchasing Tourism and Accommodation company shares and has suffered financial losses by doing so.

Rule

Duty of Care:

An occupier owes a duty of care to protect visitors to their property from reasonably foreseeable harm or injury (Australian Safeway).

An occupier is:

• A person who has physical control of a location;

• A person in charge of maintaining the condition of a building, the activities that take place there, or the people who are permitted to enter the building.

Breach of Duty:

Section 9(1) of the CLA states that a person does not breach a duty to protect themselves from harm unless they fail to do so.

• Risks that could have been reasonably anticipated were present; therefore, the person should have known or had reason to believe that the risk existed.

• It was not a trivial risk; and

• A reasonable person would have taken precautions in the same situation.

Section 9(2) CLA: The court must consider the following (among other relevant factors) when determining whether a reasonable person would have taken precautions against a risk of harm:

• Risk of harm if proper precautions are not taken (Bolton).

• damage (Paris) and its likely severity

• The burden of avoiding harm by taking precautionary measures (Woods).

Causation and Scope of Liability

As required by CLA s11 (1), the claimant must demonstrate the following:

• The breach of duty had to have occurred ("factual causation").

• It is appropriate to include the harm caused by the person who violated the scope of the person's liability.

As required by CLA s11 (1), the claimant must demonstrate the following:

• The breach of duty had to have occurred ("factual causation").

• It is appropriate to include the harm caused by the person who violated the scope of the person's liability.

Analysis

As a "civil wrong," a tort protects a wide range of interests, including those of the occupants of the Earth and those of the rest of humanity, and is distinct from both criminal law and contract law. Rehabilitating an individual who has been hurt in an accident is the goal of this type of legal action.

In Australian tort law, unless the claimant can prove that the defendant owed them a duty of care and that that duty was breached, they cannot be held liable for negligence. If the defendant's conduct fell short of the expected standard in the given circumstances, they have breached their duty to the claimant.

1. There are three tests for causation in Australian law: remoteness, causation, and foreseeability. Australian criminal law and Australian contract law both make use of this concept. A claimant's damages and losses are directly linked to the defendant's negligence if causation is established. It's reasonable to hold the defendant responsible for the claimant's losses and damages if the defendant breached their duty of care to the claimant that resulted in those losses and damages. In Australian tort law, unless the claimant can prove that the defendant owed them a duty of care and that that duty was breached, they cannot be held liable for negligence. If the defendant's conduct fell short of the expected standard in the given circumstances, they have breached their duty to the claimant.

2. There are three tests for causation in Australian law: remoteness, causation, and foreseeability. Australian criminal law and Australian contract law both make use of this concept. A claimant's damages and losses are directly linked to the defendant's negligence if causation is established. It's reasonable to hold the defendant responsible for the claimant's losses and damages if the defendant breached their duty of care to the claimant that resulted in those losses and damages.

In 2002, Congress passed the Civil Liability Act, which gives people who have been hurt the legal right to sue in civil court for monetary damages. The Civil Liability Act 2003 (Qld) (Civil Liability Act) governs claims for personal injuries and lists the requirements for bringing a negligence action as well as possible defences. In Queensland, the Civil Liability Act is in place. In its most basic form, the Civil Liability Act QLD applies to any civil claim for damages for the harm that can be made. Notice that a "claim" is a request for compensation based on liability for property damage, economic loss, or personal injury. This definition can be found in the "claim" definition. The Act says that the word "harm" includes all possible types of loss, such as damage to property, loss of income, or personal injury. In the meantime, the word "harm" is defined so that it includes all of these types of loss.

The Civil Liability Act 2003 (Qld) ("the CL Act") went into effect on April 9, 2003, after the Bill that would become it was approved by the Governor in Council. Even though that date had passed, many of the parts of that act1 worked backwards in cases where the "breach of duty" happened on or after December 2002. Not all of the provisions, though, were like this. There are a lot of clauses about who is responsible, a clause about how to figure out general damages, and a clause about how to explain economic awards. No matter what happened, some rules were made to apply to the past. "An Act to amend the law of civil liability for negligent acts, and for other purposes" is the full name of the Civil Liability Act. This phrase is part of the long name of the act. With the exception of Section 5, which does not apply in this case, the Act applies to "any civil claim for damages for harm." Because the Act's definitions of "claim," "damages," and "harm" are so broad, many of its rules apply to situations other than claims for damages for physical injury or death that are directly caused by negligence.

Victoria filed a case against Worthwhile Investments based on negligence that deliberately harmed her portfolio and resulted in causing her massive losses. Anita also joined her in the whole litigation procedure. Other than the Civil Liability Act 2003 (Qld), the Tort of negligence also plays a very major role in this case. In the context of civil law, a tort is an unlawful act or omission that gives rise to a lawsuit against the perpetrator. In the legal sense, a tort is a wrongdoing for which a civil action can be brought against the party responsible in a court of law. As can see in our modern world, a variety of torts are recognised by courts, some of which date back to the mediaeval era. As most torts have common elements, they must show that the elements of negligence were violated in order to establish that a negligent misstatement occurred.

There must be evidence demonstrating that the wrongful act was undertaken either knowingly or negligently by one of the parties. The plaintiff would bear the burden of proving that the tortfeasor's actions caused them actual harm/injury/loss. The Court must determine that the defendant's conduct was responsible for the plaintiff's loss or injury in order to properly compensate the victim. After determining that there was a duty of care between the parties and that duty was breached, the Court will look at the resulting loss/injury and its connection to the standard of care breached by the defendant. In order to determine if Victoria's negligence claim is valid, it must first look at the characteristics of a typical negligence claim and then look at the presence of an unusual relationship.

Conclusion

In conclusion, it is highly likely that Victoria has suitable grounds to make a claim under the Tort of negligence. This is because the criteria for making such a claim currently exist, such as the existence of a duty of care, breach of the standard of care, the actual loss incurred, and the existence of a special relationship. Furthermore, it is highly likely that Victoria has suitable grounds to make a claim under the Tort of negligent behaviour. This is because Victoria indulged Bob while the transaction was carried out regarding the funds that were being allocated to the start-ups. Bob happens to be an employee of Worthwhile Investments, and since the communication took place transparently, the issue related to tort of negligence does not apply completely in this case.

References

Murray, C. K. (2021). The Australian housing supply myth. Australian Planner, 57(1), 1-12. Available at: https://files.au-1.osf.io/v1/resources/r925z/providers/osfstorage/5ddb5b09fbde360009912184?action=download&direct&version=2

Ralston, B. (2020). Does payroll tax affect firm behaviour? Economic Papers: A journal of applied economics and policy, 39(1), 15-27. Available at: https://www.econstor.eu/bitstream/10419/210399/1/twp-2018-02.pdf

Scott, J. (2019). Taxation of Life Insurance Policyholders in Australia and Eight Proposals for Taxation Law Reform (Doctoral dissertation, UNSW Sydney). Available at: http://unsworks.unsw.edu.au/bitstreams/4dad3b8b-ad41-49f1-a19d-2da7426ce172/download

Scott, S., Hughes, P., Hodgkinson, I., & Kraus, S. (2019). Technology adoption factors in the digitisation of popular culture: Analysing the online gambling market. Technological Forecasting and Social Change, 148, 119717. Available at: https://dro.dur.ac.uk/28975/1/28975.pdf

LAWS20059 Corporation and Business Structures Assignment Sample

Marks: 40 per cent of total grade.
Due date: Friday Week 7 (29 April 2022) 11:00 pm AEST
Four parts: Parts 1, 2 and and 3 requires you to write a memorandum of advice.

Parts 1, 2 and 3 must be structured as a professional memorandum of advice using the template/example in Moodle.

Style: All assignments must include a Title Page, Contents Page, Memorandum of Advice
and a Reference List (bibliography).

Format: The student’s name and student identification number must appear on the first page of the assignment and in the footer of each page. The assignment is to be formatted in a clear size 12 font (Calibri, Cambria or Times New Roman), double-spaced and include page numbers.

The total word count is to be stated on the first page of the assignment.
Word count: Assignments must not exceed a total of 2,000 words.

The word count excludes citations and the reference list.

Clearly state the word count in the Title Page.

Students may transfer unused words in a question’s word count to another part of the assignment.

Submission: Students must submit the assignment saved in Word as ‘.doc’ or ‘.docx’ file via the submission link in the ‘Assessment’ tab in Moodle for LAWS20059.

The name of the Word doc must include the student’s name, student identification number, unit number, assessment name, term and year.

Background Facts for Assignment Help

After graduating from your business degree at Central Queensland University you recently commenced working at a professional consulting services firm called “North Star Consulting” in the State or Territory in which you are undertaking your studies. You work in the legal compliance team and utilise your knowledge of commerce and law acquired from LAWS20059 to advise a diverse range of clients. You specialise in advising clients on how Australian law governs business structures in the operation of commercial activities.
Your firm wants you to interview a client who is seeking advice on what business structure to adopt for their business. In this assessment you must write a Memorandum of Advice as instructed by your supervisor (instructions are below). You must follow the firm template/example Memorandum of Advice posted on Moodle.

PART 1 – THE CLIENT INTERVIEW & BUSINESS

In Part 1 you must attend the week 3 class and work in groups of two (if class numbers are odd, you may be in a group of three). Students will be randomly allocated to a group by the unit coordinator or tutor. Under the supervision of the unit coordinator or your tutor, you must interview one other group member about a fictitious business which he or she has dreamed of starting (if you are in groups of three, just choose one person to interview). You will have 20 minutes to conduct the interview. The person being interviewed will, for the purposes of this exercise, pretend to be your client. You must obtain information about the client’s business from asking the client questions, and that information needs to be useful in informing what business structure is most suitable for their business. This means that the questions which you ask in the interview need to be designed to obtain the information needed to advise on which business structure is most appropriate for the business.

If you are unable to attend the week 3 class for a legitimate reason (such as work, family and carer responsibilities, etc) you must email the unit coordinator and ask for permission to interview a friend, relative, fellow student or someone else outside class time. Remember to let the person you are interviewing know that this is a University assignment, so the exercise is only for educational purposes and you are not qualified to give any advice.

In Part 1 of your Memorandum of Advice your supervisor, Jonathan, wants you to:

1. describe how you prepared for the interview

2. list the questions you which you asked at the interview

3. reproduce your file notes (your file notes will be the notes you took during the interview so as to remember what the client told you about the business, their needs, etc)

4. summarise the client’s business and responses to your questions

5. explain, using your knowledge of law covered in LAWS20059, why you chose to ask the questions which you asked in the interview [6 marks]. You must justify each question which you asked by explaining why the question was required to illicit information needed to understand the business and recommend a business structure for that business. This will require you to use your knowledge of business structures and the law, and explain how this knowledge shaped how you conducted the interview and informed what questions you asked.
The idea of Part 1 is to show that you prepared for the client interview, and that you used your knowledge of applicable law to shape the interview and inform the questions which you asked in the interview. Make sure that you press the client for information that you need (YOU need to guide the interview and obtain the information from the client, and if the client is vague or unsure or uncooperative YOU need to get clarity and the information).

PART 2 – IDENTIFY AND EXPLAIN BUSINESS STRUCTURE OPTIONS FOR YOUR CLIENT’S BUSINESS

In Part 2 you must identify business structure options for your client’s business, explain each of these options and the key legal differences between them in Australian law. In Part 2 of your Memorandum of Advice Jonathan wants you to:

1. identify at least three business structure options which can be used for your client’s business and

2. describe each of these business structures, and the key legal differences between the business structures. He wants to know why each of these business structures are an option for your client’s business, the key features of each business structure and the main legal benefits and disadvantages of using each business structure.

PART 3 – ADVISE WHICH BUSINESS STRUCTURE IS MOST APPROPRIATE FOR YOUR CLIENT’S BUSINESS

In Part 3 you must evaluate each business structure option which you identified and explained in Part 2 of the Memorandum of Advice to provide advice. In this part of the Memorandum of Advice you must advise which business structure is most appropriate for your client’s business. Jonathan wants your advice on what business structure is the best option for client’s particular business so the firm can consider your advice before advising the client. You are expected to use information which you gained from the interview (Part 1 of the assignment) and your research and knowledge of business structures (Part 2 of the assignment) to weigh up the various business structures and assess which business structure is best for your client’s business. You must tailor your analysis for your client’s specific business and circumstances, focusing on key issues, client needs, client preferences, etc that were teased out from the interview.

Solution

To: Charle Brown

From: John Parker
Date: 21.04.2021
Team: Legal Compliance team, North Star Consulting
Client: Charle Brown
Re: Advice on Business Structure

Memorandum of Advice

The client, Charle Brown wishes to begin a business of food handling plant in Australia. This reminder of exhortation gives data about the client interview, the client's business and business structures utilized in Australia, and prompts on which business structure is generally suitable for this client's business.

Part A: Client's Detail

Q: Good Morning Mr.Charle, How might I at any point help you?

A: Good Morning, I am Planning to maintain a business, and I am needing a word of wisdom on which business design would it be advisable for me I choose.

Q: Are you intending to maintain the business alone or you have a few companions?

A: Well, I have not made a choice about it yet. I have a school companion who will contribute however I am not exactly certain on whether to impart the business to him or run all alone.

Q: Have you considered what will be your portion, what agreements will be there in your organization understanding?

A: As referenced prior, I am in an issue regardless of whether to do an organization with her. She is my old buddy yet has not much information on business.

Q: What is she doing now?

A: She is a lecturer at college.

Q: What sort of business would you say you are thinking off?

A: I am intending to run a food handling plant.

Q: what number items would you say you are intending to create, who will be your objective client?

A: Actually I am intending to zero in a bigger number of on clients than the items. Allow me to expand, we will discover some organization selling an item in Australia.

Q. Well that sounds fascinating. It appears as though you will put away huge amount of cash. How much cash would you say you are intending to contribute? How might you source your asset?

A. I have not sorted out the specific sum we want to begin the business. Be that as it may, yes we want great amount of cash as we need to lease a major space for stockroom. Furthermore, we likewise need to purchase cooking pots and pressing apparatuses. In the event that I go for an association with my companion we will contribute 50/50. Assuming I will run alone I unquestionably need to get from bank.

Q. Have you pondered the quantity of workers you will employ?

A: I realize I really want individuals for kitchen, for bundling and for organization. The specific numbers will be realized solely after we start our business. It very well may associate with 15 or 20.
Q. How long would you say you are wanting to do this business?

It's my fantasy business and I need to develop it till my passing and believe that it should stay in the business for eternity. Through this business I believe individuals should recollect me.

Q. What might be said about rules and guidelines? Do you like guidelines or you need more opportunity in your business?

Honestly speaking, I like to have specific principles and guideline. In the event that we don't include guidelines inside our association, maintaining a business would be more troublesome. Appropriate guideline keeps us trained and we can zero in on more prominent objective.

Q. Shouldn't something be said about obligation? Is it true that you are prepared to bear every one of the commitments?

I wouldn't gamble all my own resources for this business. Yet, yes subsequent to maintaining a business I unquestionably have commitments to others or various gatherings and association.

Q. Last one, do you have any issue with respect to the exposure of your own data?

No, I wouldn't fret individuals seeing my profile with the location, telephone number or date of birth in it.

Part B: Research on Business Structure

Organization is one more type of business where at least two individuals convey a business in a similar manner as same objective to procure benefit. It implies that each accomplice can cause a commitment for which rest of the accomplices are capable. Accomplices have both guardian and legal obligations. They should show most elevated level of trustworthiness and entirely pure intentions, and there ought to be no irreconcilable circumstance. Partners has individual limitless risk to the untouchables or outsider. However, there is an arrangement where a few accomplices have limitless obligation while others can restrict their responsibility to their venture or capital contribution .

Joint Venture is the type of business where at least two individuals or business houses consent to cooperate in a specific undertaking and take advantage of advantage from it. Each party might have different interest in the specific undertaking. Not at all like association has each party in a joint endeavor had individual responsibility, one party can't tie the other. A joint endeavors will be an association on the off chance that it fulfills the legal definition-Canny Gabriel Castle Advertising Pty Ltd. Being the chief she has both legal obligations and general regulation obligations. She ought to be exceptionally cautious on her obligations. on the off chance that she neglected to play out her obligations she might need to confront common cures and in some cases even crook cures . Examining the upsides and downsides of various business construction and taking a gander at the conditions of the client, little restrictive organization will be the best other option.Organization is a different legitimate substance. It can sue and be sued, go into gets, own property and have other legitimate freedoms and commitments. The expense of laying out an association will be somewhat less expensive than shaping an organization. Since our client is beginning a business it will be not difficult to oversee reserve in the event that she share her speculation with her companion. In prior days organization probably won't acquire sufficient benefit or even endure misfortune. Both the benefit and misfortune will be divided between the accomplices causing less weight in her initial days. The most appealing attributes of organization is restricted responsibility. It implies that regardless of whether the association can't pay its liabilities, then, at that point, the financial backer of the association are not responsible to pay the obligation. The financial backers are not expected to pay anything else than their underlying or concurred venture to meet the organizations liabilities. Organizations are made by resolution. Everything the guidelines of an organization is represented by Corporation Act 2001('CA'). ASIC is the principle controller that has been managing monetary business sectors, protections, fates, partnerships, customer assurance in superannuation, protection and store taking .

Organizations are classified in view of risk of individuals and in light of capacity to propose to public. There can be organization restricted by shares, restricted by ensure, limitless risk and no responsibility organization. There are public organizations and exclusive organizations. Restrictive organizations are appropriate for private organizations of restricted size. Public organizations are more proper for huge association ready to get assets by offering offers and debentures. Corporate Veil safeguards the proprietor, or overseer of the organization. Yet, in a few extraordinary conditions court can lift the shroud and make individuals in charge of the organization at risk. Court can puncture the safeguard in the event that the individual behind the safeguard has not satisfied the legitimate obligation, or not observed the guidelines and guideline of the agreement - Gilford Motor Co. Ltd v Horne. The Corporation Act has an impact of eliminating the corporate safeguard. Organization's chief will be expected to take responsibility for corporate obligation under s 588 G of Corporation Act assuming they continue to exchange regardless of it was bankrupt to know that the organization.

So these are the attributes or subtleties of various business structures that may be applicable to the client.

Part C: Weighing up the other options and giving Recommendation

Sole Trading, Partnership and exclusive organization are the three potential choices for the client. She can be a sole merchant yet needs to bear limitless individual liabilities. Since she isn't asset of facing challenge, it wouldn't be a most ideal choice for her. She can diminish the gamble or offer her concerns by accepting her companion as an accomplice. The two of them will be at risk and will share the commitments. The expense of laying out an association will be somewhat less expensive than shaping an organization. Since our client is beginning a business it will be not difficult to oversee reserve in the event that she share her speculation with her companion. In prior days organization probably won't acquire sufficient benefit or even endure misfortune. Both the benefit and misfortune will be divided between the accomplices causing less weight in her initial days. Association is ordinarily shaped to share the ability of each other and get a cooperative energy impact in the business . In any case, our client referenced that her companion has no information about the business. In association each accomplice is obligated for the carelessness of the other accomplice- s 13 ('PA'). The two of them will have limitless individual risk towards the outsider.An exclusive organization will be the one more choice for her to maintain a business with restricted risk. Organization is seen to have specific drawback like greater expense, revealing prerequisite, and obligations forced by regulation for members. She can shape a solitary chief/investor organization. Later as the business develop, she can add the chiefs and investors, and her companion can join at that stage . She referenced that the representatives will be under 50 and income under $25 million, so she can go for little exclusive organization s 45 A(CA). Framing a little exclusive organization, she should not get ready fiscal reports and cabin with ASIC. The principles forced by the enterprise act might be problematic yet it makes corporate cover between the client and the organization safeguarding her in a few conditions. Assuming the organization is fruitless, liabilities might surpass its resources and the association can't pay its obligation . The client will lose her underlying venture however isn't expected to pay the obligation of the organization. In the event that she shapes an organization the organization keeps on existing even after her passing and her desire to interminable progression materializes. Being the chief she has both legal obligations and general regulation obligations. She ought to be exceptionally cautious on her obligations. on the off chance that she neglected to play out her obligations she might need to confront common cures and in some cases even crook cures . Examining the upsides and downsides of various business construction and taking a gander at the conditions of the client, little restrictive organization will be the best other option. She will have restricted risk, she will not need to fret over the mastery and carelessness of the accomplice, and having little organization will assist her with keeping away from a portion of the administrative prerequisites.

Bibliography

Gibson A, Business Law (Melbourne, Vic Pearson Australia 2018)

Latimer P, Australian Business Law 2016 (Cch Australia 2016)

Lloyd C, ‘Matthew Bacon, Taking Care of Business. Police Detectives, Drug Law Enforcement and Proactive Investigation’ (2017) 51 Australian & New Zealand Journal of Criminology 312

Prassl J, ‘Law, Corporate Governance and Partnerships at Work: A Study of Australian Regulatory Style and Business Practice’ (2012) 41 Industrial Law Journal 379

Raitt G, ‘Shifting the Goalposts: Current Issues in Australian Competition Law Affecting the Energy Sector’ (2016) 9 The Journal of World Energy Law & Business 424

Storey M, ‘The Australian Indigenous Business Exemption as a “Special Measure”: Questions of Effectiveness’ (2018) 21 Deakin Law Review 1

CL4304 Public Law Assignment Sample

Assignment Brief
Module credits 30
Assessment period - spring
Assessment value of this piece towards module mark - 100%

Rubric

There are NINE questions in this paper

All questions carry equal marks Answer TWO questions in total

You MUST answer ONE question from Part A (problem questions), and you MUST answer ONE Question from

Part B for assignment help

Word limit the word limit is 1000 words per answer You must combine your answers into one document

SECTION A

THIS QUESTION IS COMPULSORY

1. Section 7 of the Public Libraries and Museums Act 2021 (fictitious) provides that ‘it shall be the duty of every library authority to provide a comprehensive and efficient library service for all persons desiring to make use thereof’.

Last month, Caster Bridge Library Authority reopened its central library after a period of closure owing to the coronavirus pandemic. ‘Everyone who has been vaccinated against SARS-Cov-2 (the coronavirus at the centre of Covid-19) will be welcomed,’ announced Peter Hardy, the Authority’s head of library services.

Advise:

Dan Morgan is a local journalist and regular user of the library. He was recently refused entry to the library, despite being fully vaccinated against the virus. Morgan wrote to Hardy asking for an explanation, but his request was declined. Morgan suspects that the decision is connected with tweets from his twitter account alleging that Porter breached lockdown rules.

The Casterbridge Butterfly Society has learned that Hardy ordered the destruction of the ‘Frederick Sassoon Special Collection on Butterflies of Africa’, on grounds of the author’s associations with the African slave trade. The Society seeks to preserve this irreplaceable record of natural history for the benefit of the public.

After being approved access to the library, Emily Wing is informed that there is a new membership fee of £1000 a year to borrow books.

Dan Morgan, The Casterbridge Butterfly Society, and Emily Wing seek your advice on grounds and remedies available to them under the judicial review process.

SECTION B

ANSWER ONE QUESTION FROM THIS SECTION

2. ‘Brexit exposed the flaws of the UK’s uncodified constitution, strengthening the case for codification.’

Describe and analyse the case for a written constitution for the UK in light of this statement.

3. ‘The Constitutional Reform Act 2005 strongly separated the judiciary from the legislature and the executive, but the case for doing so is unclear. The 'old system' was not broken.'

Describe and analyse separation of powers under the UK constitution in light of this statement.

4. ‘In continuing to emphasise the reliance on common law constitutional rights the case of Unison [2017] UKSC 51 shows that Dicey’s concept of the rule of law is still highly prominent in the UK constitution.’

Describe and analyse the principle of rule of law within the UK constitution, drawing on cases to illustrate your answer.

5. ‘The concept of Parliamentary sovereignty which has been fundamental to the constitution... means that Parliament can do anything.’ [Lady Hale]

Describe and analyse the principle of parliamentary sovereignty, citing cases to illustrate your answer.

6. ‘UK ministers are being delegated some of the broadest legislative powers ever seen in peacetime.’

Describe and analyse the use of delegated legislation in light of this statement.

7. ‘Welsh devolution has progressed rapidly, to the point that the Parliaments of Cardiff and Edinburgh have broadly similar powers. That is to be welcomed.’

Describe and analyse devolution under the UK constitution in light of this statement.

8. ‘Conventions don’t just fill in gaps in constitutional law they alter the effect of the law itself. The UK constitution relies heavily upon them for its efficient and legitimate operation.’

Describe and analyse the role of conventions in the UK constitution.

9. Describe and analyse the case for reform of the Human Rights Act 1998.

Solution

Section A

Answer to question 1

Introduction

In the given discussion, there will be advice given to Dan Morgan, Caster bridge Butterfly Society, and Emily Wing. The advice would be given to these parties based on the fact that they should be able to have judicial remedies. In the case of Dan Morgan, he is not allowed to use the library even though he is vaccinated. The Caster bridge Butterfly Society has faced the challenge of stopping the demolition of Frederick Sassoon's Special Collection on Butterflies of Africa. Finally, Emily Wing will be advised that she has been informed about a new membership fee of 1000 pounds to borrow books from the library.

Discussion

Advice to Dan Morgan

In the per given case, Dan Morgan, a local journalist and a user of the library has been denied the usage of the library under the grounds of vaccination. However, Dan Morgan has claimed that he has been fully vaccinated and that he has been refused to enter the library because he had alleged Porter to have breached the rules of lockdown. Hence, Dan Morgan has insinuated that since he had alleged Porter, who is likely to be an ally of Peter Hardy, breaking the lockdown rules, he has been refused to use the library services. According to Section 7 of the Public Libraries and Museums Act 2021, every library authority has to provide a library service that is not only efficient but also comprehensive to every individual. However, due to Covid-19, the rules have changed, and people are compelled to vaccinate before using the library. Hence, people who are not vaccinated are not allowed. Therefore, if Dan Morgan had not been vaccinated, then refusing him the services of a library could have been understandable. However, he has been vaccinated; therefore, the refusal of Dan Morgan is a breach of the Act. Therefore, Dan Morgan can take three actions to resolve the situation, and the three options have been discussed below:

• Responding to the consultation of the council on the proposals for library services.
• Raising questions at the council meetings.
• Making an official complaint to the Secretary of the State (GOV.UK, 2022).

Since Peter Hardy has refused to explain to Peter Hardy, he should complain to the Secretary of the State and tell him that his refusal to attend the library services can be because of a personal vendetta that Peter Hardy has against him.

Advice to Casterbridge Butterfly Society

According to this case, the Casterbridge Butterfly Society has learned that Peter Hardy has ordered the collapse of the Frederick Sassoon Special Collection on the Butterflies of Africa. The grounds for complaint are that Peter Hardy has claimed that Fredrick Sassoon had an association with the slave trade in Africa. Society seeks to preserve the irreplaceable record because it is a part of history that is very important. Therefore, the records are being kept as a historic site. The Casterbridge Butterfly Society has to claim that natural history records show African history. Even if Frederick Sassoon had associations with the African Slave trades, the historical records would not qualify to be demolished because the records do not concern the association with Frederick Sassoon.

Furthermore, the law for protecting heritage in the UK states that historical sites must be retained and explained. Therefore, the records must be retained. It must be explained. Also, as per the current law in the UK, the people who want to remove a historical place will require planning permission or building consent. However, even if the government has granted the site's demolition, the society to which the records belong will be held questionable (Legislation.gov.uk, 2022). When the Casterbridge Butterfly Society is questioned, they will have to explain how the association of Frederick Sassoon does not necessarily demean the status of the records. There is another method by which the Casterbridge Butterfly Society can prevent demolition. That is to prove that Frederick Sassoon did not have any kind of association with the slave trade in Africa.

Advice to Emily Wing

The given case states Emily Wing, who has applied for the books borrowing services from the library, has been given access. However, after being approved, she has been informed that the new membership will cost 1000 pounds per annum to borrow the books. One thousand pounds per annum is a huge sum of money that might not be accepted from the part of Emily to pay the library for borrowing the books. Considering that Emily Wing was not informed about the fees and after getting access to the library, she was asked to subscribe 1000 pounds per annum to borrow books; she can have a judicial remedy.

As per the memberships provided by British Library, the normal membership fee per annum is 80 pounds, the joint membership fee is 120 pounds, and benefactor member fees is 500 pounds (The British Library, 2022). Therefore, it can be concluded by saying that the library whose access Emily has gotten is charging excess of membership fees. Therefore, giving Emily access before making her aware of the membership fee of 1000 pounds per annum qualifies to be a fraud. The UK library policies tolerate zero fraud policy therefore, Emily Wing should report the incidents to the Action Fraud either on the Action Fraud website or by calling in the number 03001232040 (Actionfraud.police.uk, 2022). The Action Fraud centre is where Emily Wing would receive advice on the scam or the fraud that had taken place with her.

Conclusion

As per the above discussion, it is fair to state that Dan Morgan and Emily Wing would easily get the justice they deserve. However, in the case of Casterbridge Butterfly Society, it might not be the case because it will depend on the intensity to which the society can convince the judiciary about the non-association of Frederick Sassoon with the slave trade in Africa.

Section B

Answer to question 9

Introduction

Human rights act 1998 is the law in the UK promoting the equality and fair treatment of all the people. It includes various rights that need to be followed by all the people. The important principles included are treating all people fairly with dignity, equality, respect, and independence. The government in the UK wanted to take steps regarding protecting human rights and the implementation of the Act led to change in the political and legal system. The main reason for reforming the Human Rights Law in the UK is that the framework had various flaws. There was an increase in the right culture which removed the importance of responsibility toward the individuals and the public. There was a presence of uncertainty in the legal environment and also confusion.

Discussion

Analysis of the case for reform of the Human Rights Act 1998

In the case of Abu Qatada, the person was from Jordan and was arrested and they wanted to send him to Jordan about the case. Still, he was not deported because the human rights act under article 6 stated that the people who argued against him were tortured to speak against him. In another case, Strasbourg Court provides the prisoners the right to vote. The Human Rights Act also aims to support the living instrument to increase the importance of rights and article 8 of the human rights gives a lot of importance to the private and human life. Various conventions are brought in by the Human rights act to protect children from abuse. The Human right act 1998 has all the cases setting up the substantive right listed in the convention. The human right act has made it mandatory for the courts in the UK to take the advice of the European human right for taking all types of decisions, or judgments. In the case of Lourd Tucson, who served as the supreme court judge, the court started considering the earlier decision taken by the court of Strasbourg. Still, it does not apply to all cases and taking the same decision may not be favourable. In the case of the human rights act 1998 it is argued that the people promote the various human rights changes regarding human rights like voting or others but they have not followed and causing harm to others is the main problem. In the case of one human rights case was filed by the prisoner about the community worship and another on medically fit food was not provided all this cost huge legal fees being paid. There are various cases filed with the human rights similarly but some of the cases files wasted the time and found that they were not so this led to the people not trusting the Human rights law. In the case of the Turkish National, there was physical harm caused his appeal was allowed on deportation in consideration of him married to a UK national and has residence under the law article 8 of Human right he was approved his appeal. The main reason for the UK Human right Act to be replaced is to reduce the problems and it is thinking to bring the Bill of Rights in place to replace the old system. The UK has updated the Human right Act and provision in 2020 and analysed if any changes need to be done. It wants to reform the law after analysing all the factors it wants to separate the power of courts and the parliament. It wants to make diverse changes in the legal system. The UK is asking for the point of view of all the nations of the UK to protect the rights of humans and have diversity in the formulation of decisions. The UK government has promised to consider all the responses that will be given. The human rights laws established in 1998 are a bit old and now require the application of common sense to be faithful and follow human rights principles. The replacement of human rights, which is the Bill of Rights, will help protect the right of humans and the right to life, which are the fundamental rights. The Human right Act is considered to function better today than before because before people had to take all their cases to the Strasbourg court only but today the people can take their cases to other courts as well. The Act of human rights is set by respecting the parliament as well. The court started the review of human rights in the year 2020. The various cases can be filed with the Human Right Act against government organizations, police, or others for treatment in an unfair manner, violating human rights. These rights are not only for the people of UK citizens but they also apply to all the people whether their citizens of the UK or not. The human rights laws have European conventions to be followed by the courts while giving the judgments about the various types of cases. The judges of the court need to decide according to conventions and it will be unlawful if any public authorities do not follow the conventions.

Conclusion

The Human rights act established in the UK and came into force in the year 2000 was mainly to make sure that the various authorities, the public, central, or the local government, try to protect the human rights of all the people leaving in the UK. This reform has helped the various individuals approach the UK court and fight against human rights. The human rights act does not come under the control of any political party and has over 16 human rights. Human rights apply to all people including children and it has become successful in the UK as it has a positive impact on all the people living in the UK. The Human rights law has brought into practice the rights which are included European human rights conventions into the domestic laws the government is in a plan to introduce the Bill of Rights as the replacement for Human rights law.

References

(Actionfraud.police.uk, 2022) <https://www.actionfraud.police.uk/contact-us> accessed 27 May 2022

Boyle, K. and Cochrane, L., (2018): The complexities of human rights and constitutional reform in the United Kingdom: Brexit and a Delayed Bill of Rights: Informing (on) the Process. Nw. UJ Int'l Hum. Rts., 16, p.22.

Caudwell and McGee (2018): From promotion to protection: Human rights and events, leisure and sport. Leisure studies, 37(1), pp.1-10.

Collins. H. (2021): An emerging human right to protection against unjustified dismissal. Industrial Law Journal, 50(1), pp.36-69.

Fairclough. Thomas (2019): The Human Rights Act 1998 in Constitutional Context: The Common Law, The Rule of Law, and Human Rights." Ph.D. diss., University of Cambridge, 2019.

'Libraries As A Statutory Service' (GOV.UK, 2022) <https://www.gov.uk/government/publications/guidance-on-libraries-as-a-statutory-service/libraries-as-a-statutory-service> accessed 27 May 2022

'Library Membership' (The British Library, 2022) <https://www.bl.uk/membership#> accessed 27 May 2022

Lima, V. and Gomez, M., (2019): Access to Justice: Promoting the Legal System as a Human Right. In Peace, Justice and Strong Institutions (pp. 1-10). Cham: Springer International Publishing.

'National Heritage Act 1983' (Legislation.gov.uk, 2022) <https://www.legislation.gov.uk/id/ukpga/1983/47> accessed 27 May 2022

Wolfsteller, R., (2020): Out of sync: The failed translation of international human rights in the creation of the UK Human Rights Act. Journal of Human Rights, 19(3), pp.325-343.

LAWS20058 Australian Commercial Law Assignment Sample

Assignment Brief

Marks: 40 per cent of total grade.
Word count: Assignments must not exceed a total of 2,000 words for assignment help The word count excludes citations and the reference list.

Format: The student’s name and student identification number must appear on the first page of the assignment and in the footer of each page. The assignment is to be formatted in a clear size 12 font (Calibri, Cambria or Times New Roman), double- spaced and include page numbers. The total word count must be stated on the first page of the assignment.

Students must use the appropriate answer structure from the workshops to answer all questions in Parts A, B and C. The assignment examines unit content covered in Weeks 1 to 5. The answer for each part must start on a new page, clearly state the question number and include the word count for the part.

Referencing: Students must use a consistent style of referencing and cite the relevant research source when appropriate. Students may either use in-text referencing in the American Psychological Association style guide (APA 7 th ed) or the Australian Guide to Legal Citation (4 th edition). Footnotes may be appropriate to cite cases and legislation. At the end of the assignment students must include a reference list of all research sources used in the assignment.

Plagiarism: This assessment task is an individual assignment. In completing the assignment students must comply with the CQUniversity academic integrity policies that can be accessed via Moodle. Breaching these policies will result in a student being subjected to the University’s student misconduct proceedings and related penalties.

BACKGROUND FACTS

You recently completed your postgraduate studies and started a graduate position in the corporate services group at Global Consultants Pty Ltd. Your manager learned that you studied LAWS20058 and assigned you to the role of a business law specialist to assist clients with the legal requirements of starting and then operating a business. Your first client is Jan, a graphic novel author and sports enthusiast, who recently migrated to Australia from England in order to embark on her business dream of owning a sporting goods store.

Jan lives in the Sydney suburbs where she will open her retail sports store called Reverse Swing Sporting Goods Pty Ltd. The business will sell sports equipment and uniforms for several sports at a store a suburban location. While Jan is very enthusiastic and knowledgeable about the sporting industry, she has a limited understanding of the Australian legal system and the relevant commercial laws that will govern her new business.

YOUR TASK

You must write a business report for Jan that provides advice on all business law questions in Parts A, B and C of this assignment. The report will be given to Jan at your first meeting as a resource she can use in setting up and then operating her business. Jan may also use the report to seek further advice on any specific legal issues.

ASSIGNMENT QUESTIONS

PART A – FINDING LAW

An important aspect of starting and operating a new business is finding relevant law. Numerous online legal resources now exist and the websites of government regulators (also known as statutory authorities) are a critical business resource for both finding law and legal education. Owners and managers of businesses need to be able to find reliable sources of law and evaluate their effectiveness and reliability. Such a skill is especially important for Jan to learn Australian law and to obtain guidance on the enforcement of law.

In Part A of your report you must:

1. Identify two online research sources that a business can use to find current Australian laws. Students must identify two different types of sources, for example courts, governments, statutory authorities or legal databases.

2. Identify one law in each online research source located in Part A.1 of your answer and then (1) identify whether the law is legislation (statute law) or case law (2) identify the relevant jurisdiction (3) describe the key features of the law.

3. Evaluate the user experience for each online source located in Part A.1 of your answer from the perspective of a business entrepreneur. Your evaluation may include the format of the website, the use of visual aids, explanations of laws and legal processes and links to additional information or support.

PART B – BUSINESS, LAW AND THE AUSTRALIAN LEGAL SYSTEM

Many people who start a small business may possess little knowledge of the Australian legal system and how the effect on the daily operations of their commercial activities. When undertaking the process to ‘start-up’ and then operate business, it is important for Jan to understand how the key features of Australia’s legal system will shape the nature and manner of her business dealings and activities.

In Part B of your report you must:

1. Identify three important legal rules, principles or concepts in the Australian legal systems that are relevant to the commercial activities of Australian businesses.

2. Describe the key aspects of each legal rule, principle or concept located in Part B.1.

3. Evaluate how each legal rule, principle or concept located in Part B.1 effects the commercial activities of Australian businesses.

PART C – OPERATING A BUSINESS AND CONTRACTS

To manage commercial and legal risk involved in business, entrepreneurs such as Jan need to recognise the legal obligations created by the common law of contract in forming and entering a legally enforceable contract and the available legal remedies if a term of the contract is breached. Another important skill for managers of a business is understanding how to validly exclude contractual liability. Your answer in Part B must answer both of the below questions.

1. Formation of contract

Even though Jan is English and enjoys cricket, she loves baseball and wants to help Australians learn how to hit a baseball. Jan has advised you that she will be selling a new and innovative product called ‘Wonder Bat’ that teaches players how to hit home runs. The advertising strategy is to record a short advertisement that can be used on the store’s website and on various social media platforms. Jan wants to state in the advertisement that if players use the Wonder Bat, then they will learn to hit home runs to the moon and will be able to hit more home runs than Babe Ruth.

In Part B of your report you must advise Jan whether a customer that views her proposed advertisement and then purchases the Wonder Bat but fails to hit home runs to the moon or more home runs than Babe Ruth can sue Reverse Swing Sporting Goods Pty Ltd for breach of contract. Your advice must focus only on whether the representations in an advertisement constitute an offer under the common law of contract. Your answer must be supported by legal principles and cases in the common law of contract. Do not discuss statute law.

2. Terms of a contract

As Jan is unfamiliar with Australian contract law, she requires advice on how to identify and manage the commercial and legal risk associated with entering business agreements. You need to provide advice that explains how contract terms and remedies apply to operating a business. Jan will use your advice as the basis for developing contracts related to her commercial and activities.

In Part B.1 of your report you must:

1. Identify one legal reason and one commercial reason why Jan needs to understand the terms of contracts Reverse Swing Sporting Goods Pty Ltd enters.

2. Describe the key legal differences between the express and implied terms of a contract. In your answer identify two commercial risks for the parties to a contract that exist when a term is implied in a contract.

3. Identify two forms of dispute resolution for resolving a contract dispute and describe the benefits of each form of dispute resolution for a business that is a party to the dispute.

Solution

PART A – FINDING LAW

Part A

Introduction

According to experts, some best keys to starting a business. These are research competitors, evaluate the aspects of the industry, consider business and personal finances, be realistic about the involved risks, understand the time and hire help. There are certain legal requirements that you must satisfy or comply with.

Those are-

• The legal structure of your business.
• Trademark
• Licenses
• Laws of zoning
• Insurance
• health and safety laws

Online Research Resources

The four primary sources are the laws, constitution, regulations, and lawsuits. The administration issues these types of laws and regulations from the three branches of government. Statutory refers to agencies and entities maintained by a statute or a ceremonial law.

According to (Raisi-Estabragh et al., 2021), the Australasian Legal Information Institute (Austlii) has been found to find current Australian laws. Other online research sources like GovPubs: the Australian Government Publications Guide, eResources portal, etc. This sheet of facts identifies the different types of laws governing Australia - legislation passed by the government, statutory laws passed by Parliament, and general laws enacted by the courts.

Identification of the laws

The laws are found in research sources that are –

• According to Coco v The Queen (1994) 179 CLR 427 at 437, the High Court restated these principles, which are listed as:

The legislature should not be accused of interfering with the fundamental rights of the court. Such a determination must be expressed with clarity in the unambiguous and unequivocal language (Zhang et al., 2018). In spite of the fact that the assumption’s goal is to safeguard fundamental rights, which can be overcome by a single word of mouth, this assumption involves a great lot of protection for the “principle of legitimacy.”

• The Second one is according to Income Tax (Cth) – Trusts – Wheres 97(1) of Income Tax Assessment Act 1936 (Cth)

Evaluation of the user experience

Beneficiaries of a trust estate are not subject to any legal disability. Beneficiary's income must be so substantial a fraction of the trust estate net profit that it is liable for the beneficiary's residency period in order to be eligible for a share of the trust estate's income (Sticht et al., 2018). No portion of the income is paid, applied for, separated, or credited; the income held on the trust for certain beneficiaries - where the trustee fails to pay, apply, separate, or deposit the income – is the trust’s income year. The share of income is kept in trust for the beneficiaries.

Conclusion

The online research sources provide funding for specific types of assistance, such as the Australian young Business and Family Enterprise Ombudsman, Disability Advocacy Services, Alumni Service agencies, Community Legal Centre, and the Legal Aid Commission. Research sources are also a guide on finding a private lawyer, migration agent, tax agent, or another person capable of providing advice, representation, or support.

Part B – business, law AND THE AUSTRALIAN LEGAL SYSTEM

Identification of three important legal rules, principles, or concepts in the Australian legal system

? The Australian legal and business regulation structures, which function on a two-tiered foundation at each federal and country degree, are in part a characteristic of history. If the law is considered to be a body of policies, then a person could question how those regulations follow the industrial sports of groups and what functions they have in the commercial enterprise network. Usually, business regulation accommodates a frame of regulations that adjust the everyday industrial operations of companies.

? In case of Australia, these regulations are enclosed in laws concerning contracts, company, patron protection, finance region law, agency, financial disaster, and partnerships. The most important feature an enterprise law has to facilitate, regulate, and adjudicate the industrial transactions (Mark Friezer, 2022).

? Being a facilitator, it has a function of facilitating business transactions. For instance, agreement law offers how to make an agreements legally binding, and what remedies harmless events can be searching for if the binding agreements are found to be breached. As an adjudicator, the main role is to pacify the disputes between enterprise operators, clients, shoppers, and sellers of goods or offerings.

1. Describe the key aspects of each legal rule, their principle or related concepts in Part B.1

? The courts are nonetheless a crucial source of law in Australia, but it's influence is fading away as more and more statutes are being enacted both at the state and Commonwealth levels to defend customers from the unethical activities of a few companies. Indeed, there can be an argument nowadays that, no matter what ancient pre-eminence of the common law is in the area of contract regulation, statute—and particularly the patron safety provisions of the Competition and Consumer Act 2010 and predecessor Trade Practices Act have undermined the importance of the conventional commonplace regulation concepts relating to contracts (Mark Friezer, 2022).

2. Evaluate how each legal rule, principle, or concept located in Part B.1 affects the commercial activities of Australian businesses

? Similarly, corporations advertising their goods or offerings at a particular fee without the purpose of supplying them on the advertised charge won't be capable of arguing that such advertisements were ‘invitations to deal with, thus the CCA imposes some liability on companies to interact in a moral and honest dealing with the aid of supplying protection to purchasers that the commonplace law may additionally in any other case now not offer.

? For the adjudication of the disputes, courts are frequently called upon in which the language of a particular statute needs an explanation. Each of these statutes are written in a popular language that may additionally want to accept a particular context. The statute language is sometimes unclear, or consists of more than one meaning or messages. Statutory interpretation by using courts can determine the means of a particular clause or a provision. When the statutes are interpreted, the courts are aware of the Acts Interpretation Acts at nation, federal tiers and territory (Mark Friezer, 2022). The acts define several common terms and most of them specify that courts should have regard to the underlying motive of the legislation.

PART C – OPERATING A BUSINESS AND CONTRACTS

1. Formation of Contract

Introduction

The setting of the given case is Australia. Jan is an English person who has an immense interest in baseball besides cricket. Now, Jan wants to enter the sports business in Australia. He wants to start a company named Reverse Swing Sporting Goods Pty. Ltd., and under the domain of this company, he wants to introduce an innovative product named “Wonder Bat”. With the help of this bat, he wants to teach the Australians how to hit the baseball hard. He wants to promote this product on online platforms by giving some punch lines. The punch lines that he assigns for the promotion of the product are, ‘the person playing with this bat can score more runs than Babe Ruth’, and ‘the person using this bat will learn to hit the home runs to the moon’. This report focuses on suggesting to Jan whether such punch lines are appropriate for the promotion or not.

Probable Situation

The punch line proposed by Jan is very much tempting for a customer to buy that product. However, there is no guarantee that only using the bat the customer can hit the home runs to the moon or score as many runs as Babe Ruth (Du Plessis, 2019). If the customer fails to get the things promised under the terms and conditions of the advertisement, he can lodge a disciplinary action against Reverse Swing Sporting Goods Pty. Ltd, which is owned by Jan.

Reaction to such a situation

The representation in the advertisements is given to attract the customer for that product. If the customer lodges a case against the company, there will be maximum chances where the customer will not get the degree because, in the representation, it is not mentioned for a single time that the bat will provide the technique with which Babe Ruth used to play. Moreover, it has not been mentioned once that the bat will give some extra strength to the customer to hit the home runs to the moon (Louw, 2018). If the strength and techniques are applied efficiently, with the help of this bat, the player can get the result mentioned in the representation. The common law of contract says that the opposite party should always acknowledge the promise given by a party. This means that the effort from one side cannot fulfil the promise, but the efforts from both sides are required to fulfill the promise.

Conclusion

Though the common law of contract can defend Jan, he should not give some representation that is too imaginary and hypothetical; Jan might need to compensate the customer if the promises made in the representations are not met. Therefore, it is better to use some realistic, funny, and attractive representations to promote the product on various shopping sites.

2. Terms of Contract

Entering contracts is part of operating a business, and it is most important to manage Jan’s contacts and relationships carefully. We found some legal risks associated with entering business agreements.

• Risk of regulation- Risks arising from the dynamic behaviour of rules and regulations that have a significant influence on a corporation or market are referred to as regulatory risks. For example, if the firm changes its tax compliance, IT authorities or associated agencies may levy a penalty (Rohr, 2019).

• Risk of compliance- In this case, company statutes, internal rules and best operation put in any business organisation. This case may result in facing financial loss and legal sanctions.

• Risk of contract- Contractual risk is some failure to meet contractual obligations. It is like failure to observe the terms and conditions of the contracts, Failure to meet contractual obligations, such as failing to incorporate risk-reduction provisions in the contract, may result in a claim.

• Risk of dispute - This risk of conflict results if a disruption caused by business stakeholders, customers and partners occur (Soper, 2018). In that case, it is recommended to resolve the dispute before it becomes a case as it will become a huge cost.

There also have other risks like a non-contractual obligation, Reputational risk etc. In some cases, businesses will face problems like Compensatory Damage, Consequential Damages, Nominal Damages, Incidental Damages, damage to Punitive etc.

They are something we should remember before entering into business law are

• Try to get a written copy of the agreement.
• Try to negotiate with the contact.
• Think about clauses of Include Termination and Dispute Resolution.
• Try to conduct with due diligence.

It’s necessary to read the contract carefully. Contracts become very important to the customers because they legally bind the companies into a relationship. If there are some breaches in the contract, they can be rectified, and damages can be terminated (Boisson de Chazournes et al., 2018). Drafting and testing should be done carefully and regularly before signing a commercial agreement. It is quite clear that when evaluating the rights and obligations of the companies to an agreement, the terms and conditions of the agreement must be considered from the reason of the contract or agreement.

There are some differences between the express and implied terms of the contract. The case of an express agreement is where the offer and acceptance, resulting in a contract, are enforceable by law and can be expressed orally. But the case of an implied contract refers to an agreement where proposals and obtaining, which led to the contract, are expressed non-verbally, in other ways (Torres et al., 2021). Some commercial risks like market and technical or physical risks were also observed. Market risks that may include changes in input and output prices vary from demand estimate levels. Whereas physical or technical risks may be related to the facility and the physical features of the construction area.

Dispute resolution is divided into two main types.

1. Adjudicative processes: this is such as litigation or arbitration, where a judge, administration, jury or arbitrator determines the output. The judgment makes an imposed, final decision that obliges the parties to respect (Torres et al., 2021). An alternative process, such as mediation, only creates voluntary agreements that can easily fail.

2. Consensual processes are like conciliation, collaborative law, and negotiations, where the parties try to reach an agreement (Aryanti, 2019). It is a quick and informal resolution of disputes, usually less stressful.

References

Aryanti, N. W. D. (2019). A Critical Analysis of Collaborative Law as a Dispute Settlement Mechanism. Udayana Journal of Law and Culture, 3(1), 78-94. Retrieved from: https://jurnal.harianregional.com/index.php/UJLC/article/view/44164

Australian Human rights commission. (2021). Legislation. Retrieved from: https://humanrights.gov.au/our-work/legal/legislation

Boisson de Chazournes, L., Ruiz Fabri, H., Mbengue, M. M., Das, R., & Gros, G. (2018). The Expert in the International Adjudicative Process: Introduction to the Special Issue. Journal of International Dispute Settlement, 9(3), 339-344. Retrieved from: https://academic.oup.com/jids/article-abstract/9/3/339/4975522

Du Plessis, H. (2019). Legal pluralism, ubuntu and the use of open norms in the South African common law of contract. Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad, 22(1). Retrieved from: https://www.ajol.info/index.php/pelj/article/view/216531

Friezer, M. (2022). Doing Business in Australia: Retrieved from: https://uk.practicallaw.thomsonreuters.com
Louw, A. M. (2018). The Common Law is… not what it used to be"*: Revisiting Recognition of a Constitutionally-Inspired Implied Duty of Fair Dealing in the Common Law Contract of Employment (Part 3).

Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad, 21(1). Retrieved from: https://www.ajol.info/index.php/pelj/article/view/183374

Metzger, S., Ayres, E., Durden, D., Florian, C., Lee, R., Lunch, C., Luo, H., Pingintha-Durden, N., Roberti, J.A., SanClements, M. and Sturtevant, C., (2019). From NEON field sites to data portal: a community resource for surface–atmosphere research comes online. Bulletin of the American Meteorological Society, 100(11), pp.2305-2325.

Nolan-Haley, J. (2020). International Dispute Resolution and Access to Justice: Comparative Law Perspectives. J. Disp. Resol., 391. Retrieved from: https://heinonline.org/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/jdisres2020&section=23

Raisi-Estabragh, Z., Harvey, N.C., Neubauer, S. and Petersen, S.E., (2021). Cardiovascular magnetic resonance imaging in the UK Biobank: a major international health research resource. European Heart Journal-Cardiovascular Imaging, 22(3), pp.251-258.

Rohr, J. G. (2019). Smart contracts and traditional contract law, or: the law of the vending machine. Clev. St. L. Rev., 67, 71. Retrieved from: https://heinonline.org/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/clevslr67&section=9

Soper, C. H. (2018). Contract, Conflict and Cooperation: A Critical Analysis of the Common Law Approach to the Breakdown of Modern, Complex, Symbiotic Contracts (Doctoral dissertation, University of Leicester). Retrieved from: http://pstorage-leicester-213265548798.s3.amazonaws.com/18376211/2018SoperCHawardPhD..pdf

Sticht, C., De La Torre, C., Parveen, A. and Gretz, N., (2018). miRWalk: An online resource for prediction of microRNA binding sites. PloS one, 13(10), p.e0206239.

Torres, L., Gliser, C. P., Formon, D. L., Hashimoto, N., & Gray, B. T. (2021). Forensic assessment in the time of COVID-19: The Colorado experience in developing videoconferencing for evaluating adjudicative competency. Psychology, Public Policy, and Law, 27(4), 522. Retrieved from: https://psycnet.apa.org/record/2022-09211-001

Zhang, G.Q., Cui, L., Mueller, R., Tao, S., Kim, M., Rueschman, M., Mariani, S., Mobley, D. and Redline, S., (2018). The National Sleep Research Resource: towards a sleep data commons. Journal of the American Medical Informatics Association, 25(10), pp.1351-1358.

BULAW5914 Commercial Law Assignment Sample

Assignment Brief

Topics covered by Assignment - Topics C & D
Maximum word limit - 3000 words
Total marks - 30
Percentage of final grade - 30
Referencing - APA 7th edition or AGLC 4th edition (available online)

Assessment criteria:

The assignment will be assessed on the extent to which the student has:

? Conducted independent research relevant to the topic, including the use of secondary legal sources including, several legal texts, authoritative materials from internet sites and academic (peer reviewed) journal articles and books.

? Answered the set question(s) through identification and discussion of relevant legal issues.

? Demonstrated an understanding of the topic, presented different points of view (if applicable), presented well-constructed arguments and demonstrated critical thinking.

? Provided proper citations for legal sources in footnotes and a bibliography or reference list.

? Used clear expression.

Assignment Topic:

Students should refer to relevant case law and legislation in their response for assignment help

Question 1 (15 marks)

Hubert is a solicitor in an old, established and respected law firm. Cyril is a longstanding client and friend, who has long entrusted some of his most delicate family matters to Hubert.

In the course of advising Cyril as to how best invest his large amounts of money, Hubert suggests that, given five years, a particular piece of property will probably be worth much more than it is now. Coincidentally, the property belongs to Hubert’s wife Marion.

Cyril enters into a contract to purchase the property, but before taking possession discovers that it is flood-prone and salt-affected, and that it is highly likely that he will make a loss on resale. Cyril desperately wants to get out of the contract.

Advise Cyril if he can avoid the contract? If yes, explain the principles of Contract Law he should rely on. Refer to at least one case in support of your answer. (15 marks)

Question 2 (15 marks)

The exit from Opal Ltd.’s loading dock is via a poorly lit alley between two buildings. The alley crosses a footpath before emerging into the main street. Drivers and passing pedestrians have difficulty seeing one another and Opal Ltd has, therefore, put a large sign near the end of the alley reading, ‘Drivers must sound horn’. It also considered placing convex mirrors on the side walls of the buildings at the end of the alley so that drivers could check for approaching pedestrians but discarded the idea because it would have been very expensive and because ‘no-one else does it anyway’. Phil, who had just made a delivery to Opal Ltd, drove out of the alley sounding his horn as he did so. Unfortunately, Quinlin, a profoundly deaf pedestrian who was approaching the entrance to the alley at the time, did not hear the horn and, as Phil emerged from the alley, his truck struck Quinlin and injured him badly.

Required:

Are either Opal Ltd or Phil liable to Quinlin in negligence? Analyse each elements of the tort of negligence with reference to relevant case laws in support of your answer. (15 marks)

Solution

Question 1

When an individual forms a contract with another individual, they must consider all the laws related to the agreement if any issue arises. Therefore, individuals need to understand the legal system that governs contracts. On the other hand, it is also necessary for both parties to understand the consequences they might face if any type of exception is made (Welmans & Naughton, 2018). If an individual or a party enters into a contract with the Australian parties, that is overseen by the Australian State or Territory. They should have a good idea of the various aspects and the principles of Australian contract law. Australian contract law is mainly based on the "English common law" and not on any type of statute law.

In the above case study, it can be seen that Hubert is a solicitor in a law firm, and Cyril is his client. Hubert and Cyril are closely associated with each other, and Hubert informs his friend that if he invests a large amount of money in a particular property, he might get a much bigger return from the property five years from the present time. Coincidentally, the property Hubert advised his friend Cyril to buy is the property of Hubert's wife. Therefore, with the assurance of his friend, Cyril entered into a contract to purchase the property mentioned above. However, before he took possession of the property, Cyril discovered that the property was highly damaged by salt and was prone to flood. Therefore, Cyril will experience significant losses other than earning a profit if he decides to sell the property years later.

One of the most important principles followed by the Australian contract law is the freedom of contract. This states that the parties bound by the contracts can choose to strike the bargain of their choices (Micklitz et al., 2018). However, it is observed that there are mainly six principles of contract law. These are known as agreement, consideration, intention, capacity, genuine consent and legality.

The first principle is called the principle of agreement. This principle states that both parties must agree to a particular offer, and to validate the offer, both parties must consent to the agreement. Therefore, one party must make a clear and precise offer to form a contract. Meanwhile, the other party has to accept that offer. The second principle is known as consideration. It states that other than a few exceptions, there must be considerations that have to be made before a contract is legally formed (Awdry & Newton, 2019). Other than that, contract formation cannot go ahead. Consideration is known to be the promised exchange between two parties. Therefore, it can be considered that consideration might be of any form, such as payment of money or delivery of products or services. Promises need to be made so that the other party cannot enforce any kind of new rule without consent.

The third principle is known as intention. According to this principle, each person or party, while they are entering into a contract, needs to have an intention of being bound by it. Therefore, if a person is to be bound by a legal contract, then they must have a serious intention to create "legal obligations" (Thompson, 2018). They must also intend that the contract is a form of a legal agreement and may have legal consequences. The fourth principle is known as capacity. According to this principle, both parties must possess the capacity to understand the actions taken by them. According to the common law observed and maintained in England, any individuals other than a few exceptions are eligible to enter into a legal contract.

However, the individuals that are considered exceptions might not have the necessary capacity to enter into a legal contract. These individuals are people under the age of 18, people with mental impairment and people under alcohol and drug influence (Phang, 2021). Therefore, if a person wants to avoid a contract, they must ensure that they lack the capacity to enter a contract and the other party is aware of their inability. On the other hand, the same can be said for individuals with mental instability or those who are intoxicated.

The fifth principle that is vital in Australian contract law is known as genuine consent. It states that both parties can enter into or form a contract of their free will. However, genuine contracts might be affected by some issues. For example, undue influence can be observed while a contract is being formed (Frawley, Goh & Law, 2019). This occurs when one party influences the other concerned party in a way where they enter into a contract involuntarily. Therefore, if the influence is “undue”, then the court may set aside the contract. It can also be seen that there might be any kind of misinterpretation while forming the contract. This happens when one party provides false information to the other party while they are forming a contract with each other. Therefore, if an individual forms a contract while relying on misleading information and suffers property loss, then they may cancel the contract.

Duress is known to be threatening violence that is used to earn a contractual promise (Wiseman, Sanderson & Robb, 2018). Therefore if it is observed that the contract is earned with duress, then the weaker party may avoid the contract with the stronger party. On the other hand, unconscionable conduct is also helpful in dealing with transactions between weaker and dominant parties. Therefore, it sometimes overlaps with undue influence and duress. The sixth and final principle is known as legality. It states that every part of the matter of the contract has to be legal. On the other hand, it is also seen that financial agreement, section 90UJ and 90G of the “family law act” are considered to be relevant (Foong, 2018). This requires every party to a financial agreement so that they can receive legal advice independently. This also states that the parties must meet certain requirements before proceeding with a financial agreement.

Therefore, the principle that can be applied in the case of Cyril is the genuineness of contract and agreement. As Hubert convinced Cyril to purchase the property concern, he entered into a contract to buy the property without giving much consideration to the property. One of the most notable cases that happened regarding the genuineness of contract in the case "Carlill vs Carbolic Smoke Ball", which took place in 1893 (Williams, 2019). In this particular case, the defendant, in this case, the “Carbolic Smoke Ball Company”, placed a particular advertisement in a newspaper to advertise their products. They stated that if any individual purchased their products and used them and still came into contact with influenza, then they would be given 100 British pounds in return. The company also deposited 1000 British pounds in a bank account so that this could act as a reward. Mrs Carlill, an individual living in England, purchased the smoke balls. Even after she used the smoke balls, she came in contact with influenza. Therefore, she proceeded to claim £100 from the company (Thompson, 2018).

Meanwhile, the defendant denied the claim and claimed that the advertisement was merely an invitation to a treat and was not an offer. The claim was not true to its intent and could not be made to the world. Meanwhile, the claimant stated that she could not accept the statement provided by the company and said that the wording used in the advertisement was not clear and was insufficient. She also said that the company did not keep any kind of consideration to the necessary law while creating a contract. This created an uncomfortable environment for both the defendants and the claimant. Therefore, they had to go to court to settle the issue (Micklitz et al. 2018).

After the case was presented to the "Court of Appeal", it was observed that the court was able to solve the case after a considerable amount of time. The court found the advert mainly amounted to the offer for a particular contract which is unilateral by the defendant. On the other hand, the court also found that Mts. Carlill agreed to the conditions provided by the defendants. However, the court also found that the assertion of the company in terms of a strong intent was negated by their own advertisement claims and strongly lacked sincerity (Welmans & Naughton, 2018). Therefore, the court rejected the arguments made by the company and stated that a contract was indeed in place. Therefore, the court provided a verdict that the company would have to provide £100 to the defendant, in this case, Mrs Carlill.

Therefore, it can be considered that Hubert provided false information to Cyril in terms of purchasing the property. On the other hand, it can also be visible that Cyril entered into a contract under the influence of Hubert. Therefore, Cyril might appeal to the court regarding this case and claim that he was given false information because the property that is being sold to him is the property of Hubert’s wife. Thus, the court can help him negate the contract.

Question 2

Negligence usually takes place when one person is responsible for causing damage to the property of another individual or the individual himself/herself carelessly or recklessly (Fraley, 2018). This occurs when an individual performs a certain action or fails to perform a necessary action at a given time. In the given case, it is seen that the entrance alley of Opal Ltd. is poorly lit, and drivers and pedestrians have trouble seeing each other while they are inside the alley. They also kept a sign in front of the alley and made it mandatory for the drivers to sound horns. They considered placing a convex mirror in front of the sidewalls of the company building but decided not to go forward with it. On the other hand, it can be seen that Phil, a delivery truck driver, sounded his horn while exiting the alley and came in contact with Quinlin, a deaf man. As Quinlin was unable to hear the sound of the horns, Phil unintentionally hit him and badly injured him.

Therefore, it can be seen that the company has been irresponsible to a great extent. According to the laws of the court, it can be considered a tort of negligence (Holly, 2020). It can be observed that there are several elements of negligence. These elements are known as the "duty of care", "breach of a duty of care", "cause of damages", and "damages".

The first element is known as the duty of care. Therefore, to determine negligence, it needs to be considered whether the defendant owes the plaintiff a "duty of care". It is seen that there ar4e multiple situations where a legal duty is formed in the relationship between the plaintiff and the defendant. Therefore, when the relationship is recognised by the law, then the duty of care appears. Therefore this states that one party has the same level of duty and obligations as the other party when a particular situation arises (Gordon, 2021). Therefore, in case of an unfortunate event, one party must take responsibility for the consequences suffered by the other party.

The next element of the tort of negligence is known as the breach of duty. This is considered to be the element that becomes valid when an individual does not perform any duty that he is supposed to do or is doing something that he is not supposed to do. A jury might consider the defendant to be negligible if an average person has knowledge of everything that the defender has knowledge of or might have been aware of the fact that their action might cause harm to any individual (Cooney, 2021).

On the other hand, the third element of the tort of negligence is known as the causation or the cause, in fact. It requires the defendant to show that the negligence or the breach of duty of the defendant is responsible for the injury suffered by the plaintiff. Another thing that needs to be considered is if the defendant was able to foresee whether his or her action had the potential to cause their injury. Therefore, if the action that is taken by the defendant was of an unexpected kind of nature and caused injury to the plaintiff, then they can be deemed as not responsible for the injury caused to the plaintiff, and charges cannot be taken against them (Gordon, 2021). On the other hand, the “proximate cause” is considered to be an event which is related to the injury and which might have been the cause of the injury in concern. It is also known to be an action that is responsible for the formation of predictable consequences without being intervened by any other party. This is also known as the “legal cause”.

Damage is known as the final element of negligence. If the plaintiff suffers any kind of injury or damage due to the actions of the defendant, then they are eligible for compensation. The plaintiff might experience damage in numerous ways. This includes the care of medical, any type of emotional turmoil or lost wages (Cheluvappa & Selvendran, 2020). Therefore, if the defendant, voluntarily or involuntarily, causes any kind of damage to the plaintiff when they are fully aware of the consequences, then they are bound to provide compensation to the plaintiff. On the other hand, if unforeseen events cause damage to the plaintiff, then the defendant might avoid giving expenses to the plaintiff.

One notable case in the tort of negligence is known as the “Bolam v Friern Hospital Management Committee'' case that took place in 1957. This is also known as a case that contributed to the reconstruction of the tort of negligence. In this case, it was seen that the claimant, known as Mr Bolam, was admitted into a mental healthcare hospital. He was undergoing electroconvulsive therapy to treat his mental illness. Therefore, it was the responsibility of the doctors to give proper care and healthcare services to the patient according to the practices observed in the hospitals and give assurance to him that the therapy is necessary for him to recover (Stoyanova, 2020).

Meanwhile, it can be observed that the patient had doubts and questioned the practices of the doctors. While undergoing the therapy, doctors did not give him any type of relaxant drug, and as a result, he suffered a fracture. However, if a relaxant drug was not given to him, then they could have suffered from a small chance of death instead of having a small chance of fracture. Therefore, it was deemed that the hospital did not breach its duty and did what was best for the patient (Allars, 2020).

On the other hand, in this case, it was observed that a test was performed to determine the care standards in the hospitals. This is also known as the “Bolam Test”. After performing the test, it was determined that there was no breach of duty or causation in this case. This is due to the fact that the healthcare professionals acted as per the practices recommended by other medical experts in that particular field of study (Goudkamp, 2019). Meanwhile, it was also found that the patient would have also experienced early demise if relaxant drugs were not used on him. Meanwhile, the fracture was unintentional; and unforeseen as it was an exceptional case, and this practice would be considered safe. Thus, the court gave a verdict in favour of the defendant.

Another instance where negligence has been found is the case of "Palsgraf v Long Island Railroad". This particular case took place in 1928. In this case, the claimant was standing on a railway platform and was purchasing tickets. While she was busy purchasing tickets, two men ran to catch a train that was leaving the station. However, one of those two men tripped. While the railway staff was busy helping him, they mistakenly caused a box full of fireworks to fall. As a result, the fireworks exploded. This also caused a set of scales to explore. Meanwhile, it can also be observed that due to the falling of scales, the plaintiff was injured. The defendant made an appeal to the supreme court of the US and stated that they were not responsible for the accident to take place.

In the end, the court stated that the defendant was not in any way liable to the plaintiff. Meanwhile, it was also determined that the plaintiff must bring proof of negligence so that she could prove that there had been some sort of violation of her rights. Even though it was determined that the railway guards were responsible for the fireworks to fall down and being ignited, they were not directly responsible for the injury caused to the plaintiff. There was no previous indication that the content inside the box was fireworks or it would cause any sort of injury to anyone. Meanwhile, the plaintiff was standing away from the box, and the injury caused to her was because of an accident. Therefore, the court gave a judgement in favour of the defendant.

In the current scenario, it can be seen that Opal ltd. had the responsibility to guide both the pedestrians and the drivers as the entrance to their office were dark and not suitable. They also had the responsibility to set up convex glasses that could have potentially prevented the accident for the plaintiff, Quinlin, in this case. However, they chose not to as it would be expensive. Therefore, Opal Ltd. is liable to Quinlin for negligence. They also need to pay compensation for the damages caused to Quinlin. However, Phil followed the guidelines set by Opal Ltd. and had not foreseen the accident that was caused to Quinlin. He tried his best to avoid the accident but, due to the unfortunate circumstances, could not manage to do so. Therefore, it can be stated that Phil is not directly Liable to Quinlin for negligence.

References

Allars, M. (2020). Private Law Remedies and Public Law Standards: An Awkward Statutory Intrusion into Tort Liability of Public Authorities. FIU L. Rev., 14, 5. https://heinonline.org/HOL/Page?handle=hein.journals/fiulawr14&div=5&g_sent=1&casa_token=

Awdry, R., & Newton, P. M. (2019). Staff views on commercial contract cheating in higher education: a survey study in Australia and the UK. Higher Education, 78(4), 593-610. https://link.springer.com/article/10.1007/s10734-019-00360-0

Cheluvappa, R., & Selvendran, S. (2020). Medical negligence-Key cases and application of legislation. Annals of Medicine and Surgery, 57, 205-211. https://www.sciencedirect.com/science/article/pii/S2049080120301989

Cooney, H. (2021). Causation and Contributory Negligence: The Use and Misuse of Causal Concepts in Cases of Misleading Conduct. University of Western Australia Law Review, Forthcoming, 49(1), 2022. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3966157

Foong, P. (2018, January). Stemming the tide of unproven autologous stem cell therapies in Australia. In University of New South Wales Law Journal Forum (No. 2018, pp. 1-9). https://search.informit.org/doi/abs/10.3316/INFORMIT.210819141631861

Forwood, M. R. (2018). Whither no-fault schemes in Australia: Have we closed the care and compensation gap?. Alternative Law Journal, 43(3), 166-170. https://journals.sagepub.com/doi/abs/10.1177/1037969X18787552

Fraley, J. M. (2018). Liability for Unintentional Nuisances: How the Restatement of Torts Almost Negligently Killed the Right to Exclude in Property Law. W. Va. L. Rev., 121, 419. https://heinonline.org/HOL/Page?handle=hein.journals/wvb121&div=15&g_sent=1&casa_token=

Frawley, T., Goh, E., & Law, R. (2019). Quality assurance at hotel management tertiary institutions in Australia: An insight into factors behind domestic and international student satisfaction. Journal of Hospitality & Tourism Education, 31(1), 1-9. https://www.tandfonline.com/doi/abs/10.1080/10963758.2018.1480961

Gordon, E. (2021). The Statutory Foundations of Negligence. By Mark Leeming.[Alexandria, NSW: The Federation Press, 2019. xxx+ 194 pp. Hardback $135.00. ISBN 978-1-760-02195-5.]. The Cambridge Law Journal, 80(1), 194-197. https://www.cambridge.org/core/journals/cambridge-law-journal/article/abs/statutory-foundations-of-negligence-by-mark-leeming-alexandria-nsw-the-federation-press-2019-xxx-194-pp-hardback-13500-isbn-9781760021955/A1DCE58DCEFC440ADD64902BC482A878

Goudkamp, J. (2019). Book review: A History of Australian Tort Law 1901-1945: England's Obedient Servant?'by Mark Lunney (Cambridge University Press, 2018). Professional Negligence, 35(2). https://ora.ox.ac.uk/objects/uuid:92112a98-abf5-4843-ab27-86f0a4a6dec3

Holly, G. (2020). Challenges to Australia's Offshore Detention Regime and the Limits of Strategic Tort Litigation. German Law Journal, 21(3), 549-570. https://www.cambridge.org/core/journals/german-law-journal/article/challenges-to-australias-offshore-detention-regime-and-the-limits-of-strategic-tort-litigation/E76D7E0F03251A5465314297262EC301

Micklitz, H. W., Howells, G., Marques, C. L., & Naude, T. (2018). Dissemination of Consumer Law and Policy in Africa, Asia, the Americas, and Australia. Journal of Consumer Policy, 41(4), 303-307. https://link.springer.com/article/10.1007/s10603-018-9395-y

PHANG, A. (2021). Giants of contract law–Some personal reflections. Singapore Law Journal (Lexicon), 2, 1-52. https://ink.library.smu.edu.sg/sljlexicon/17/

Stoyanova, V. (2020). Common law tort of negligence as a tool for deconstructing positive obligations under the European convention on human rights. The International Journal of Human Rights, 24(5), 632-655. https://www.tandfonline.com/doi/full/10.1080/13642987.2019.1663342

Thompson, S. (2018). Feminist relational contract theory: a new model for family property agreements. Journal of Law and Society, 45(4), 617-645. https://onlinelibrary.wiley.com/doi/abs/10.1111/jols.12132

Welmans, L., & Naughton, J. (2018). The'interest'based penalty tests in'Paciocco'and'Cavendish/Parkingeye'and the law of penalties and damages in Australia and the United Kingdom. University of Western Australia Law Review, 44(1), 174-189. https://search.informit.org/doi/abs/10.3316/INFORMIT.444215739612074

Williams, C. (2019). Protection of trade secrets in Australia. Message from the Immediate Past Section Chair, 32(1), 11. https://www.researchgate.net/profile/Seyed-Rowhani-2/publication/337089891_Weakening_the_Structure_of_Economic_Sanctions/links/5dc493214585151435f2f616/Weakening-the-Structure-of-Economic-Sanctions.pdf#page=11

Wiseman, L., Sanderson, J., & Robb, L. (2018). Rethinking Ag data ownership. Farm Policy J, 15(1), 71-77. https://research-repository.griffith.edu.au/bitstream/handle/10072/382094/WisemanPUB6097.pdf?sequence=1

LAW1121 English Law and Legal Method Assignment Sample

Question:

“While speaking of Parliamentary intention may be said to remind the courts of the need to avoid crossing the important constitutional line between interpreting and legislating, and in that sense it is a constant reminder of the separation of powers, it can too easily become a mask for judges to hide their true reasoning.”
Andrew Burrows, Thinking About Statutes (Cambridge 2018) 18

How should the meaning of statutes be determined?

Instructions for essay writing help -

• Write an essay plan (one side of A4 – font size 11 minimum) and research an initial bibliography for answering the question above.

• Your seminar tutor will contact you to arrange to meet for 15 minutes to discuss your plan.
Important Information

• This plan will be the basis for the 2,000 word formative and summative that you will write.

• Do not submit your plan to your tutor, just bring it to the meeting to discuss it with them.

• Meetings will occur in the weeks beginning the 29th Nov or the 6th of December.

• Meetings may be in person or online via Teams/Zoom.

• Due to the number of meetings each tutor has, meetings will need to start and end on time and it will be almost impossible to rearrange meetings if they are missed.

Solution

Introduction

Status is defined as the legislative law that has been passed through a body including legislative courts and parliaments. There is also a need for the firms to ensure that there is strong importance among the people in terms of obtaining their rights. Status plays an important in society in deciding the impact on the workplace for having a strong presence in the workplace (Kovacs, 2020). The statuesplay an important role in ensuring that there is a separation of power and also ensuring that there is a serving of justice among the people.

This report takes into consideration the role of the parliament and also ensures that there is a decision regarding constitutional importance. The significance of the consent is also important for the companies to ensure that there is a strong benefit for the work. The case study that is taken into consideration for the analysis is Thinking About Statues written by Andrew Burrows(Avant, 2022). The main intention of conducting the research is to find out the important ways in which the meaning of the statutes is determined.

Discussion

The parliamentary intention is identified to be the method that is used for making sure that there are strong characteristics through a single mind. It is also true that there are members from a group there is complete growth to ensure that there is strong growth in the workplace.

The implementation of the Parliament is also done for making sure that there is strong approval to ensure that there is the presence of house of commerce. There is also the presence of parliament and there is also government are considered to be very much independent to ensure that there is control for each other. There is also the presence of courts and interpretation of the legislation is done in a manner so that there is the development of law.

While analyzing the Statutes, there is a continuous form of growth among how the judges determine the meaning of the statute. The different ways to deal with the growth include restrictive, the literal,and being more and more permissive. There is also a need for knowing that making sure that there is a Purposive Approach is done for giving the true purpose of the legislation. The use of the word legislation is also needed to be used for making sure that the understanding in terms of the purpose of the specific legislation is also important (Eskridge et al.2020). Making identification of the Purpose is also considered to be important for the companies to ensure that there is growth among the staff. The use of the Pendulum has also swung for the purposive method regarding the construction to ensure that there is growth for the work.

The use of the Golden Rule is done for making sure that there is the possibility of making sure that there is literal meaning for the act (Aziz et al. 2021, pp.209-230). Along with this, it is also true that there is the possibility of making use of the Statutory interpretation of the application to ensure the application of the literal rule. There is the possibility of the Golden Rule to have their statute their basic and as a result of this, the presence of the illogical result is very much unlikely. Along with this, it is also true that there is the presence of the golden rule to ensure that it allows the judge to get completely departed from the meaning(Law, 2022). Along with this, it is also true that there are two different approaches through which the use of the Golden rule is done. The first rule if the Golden Approach and the second rule is the Narrow approach to ensure that it is used for literal meaning.

The use of the narrow approach is done at a time when there is the capability of having multiple literal meanings. Based on the narrow approach, there is the possibility of making sure that there is complete avoidance of the absurdity (Desai, 2020). The use of the narrow approach is done to ensure strong benefit for the staff in the workplace. This use of the golden rule is often used in making sure that normal definition is differentiated completely in the workplace. For example, during the time of the marriage-related cases, it is found that there is the possibility of finding a person to be guilty of a specific offense(Law, 2022). Under any form of general and internal interpretation, there is the offense of ensuring the complete absurdity of the result. However, there is also the possibility of making application of the Golden Rule during the time there is the narrow approach. The use of the narrow approach implies that the word many is interpreted differently and as a result of this the judgment is mitigated.

On the other hand, the use of the broad approach is also considered to be influential only when there is a literal meaning. But on the other hand, it is also true that the application of the broad approach is considered to be completely absurd in the workplace. There is various form of cases where the definition of absurdity is used and as a result of this, there is mitigation of judgment (Lemley, 2020). For example, under a specific act, it is considered to be an offense to ensure that there is a general vicinity for a prohibited place. The defendantregarding this casemakes use of personal liberty to enter a place that is completely prohibited for entry. In this case, the use of the Golden rule is applied by the court to ensure that there is a complete deduction of the individual choice. As a result of this, the court observed that there is the possibility of ensuring that a place is liable for being a completely forbidden place(Law, 2022). Hence, the process of conviction of the defendant was upheld completely before the law under the legal observation. Hence, it is true that the style of observation plays an important role in deciding the judgment in the court.

There is also the presence of the Mischief rule in making sure that there is a complete attempt to ensure rectification. The main role of any court is to ensure that there is a presence of Original Legislation to ensure that there is a full attempt to make identification of what is the fact that the parliament is trying to accomplish. In the case of the mischief rule, there is a need for the court to take into consideration the previous law based on which new law is created (Solan, 2020, pp.283-298). The main reason behind this is to find what was wrong that was corrected to the government in the new judgment. There is also a focus on how a parliament is looking to correcthow the law is being corrected. Such changes help the courts to gain indication regarding the direction of the parliament and as a result of this such mindset is used to make final judgment regarding the court (Huggins, 2020). Along with this, it is also true that the application of the rule is considered to be challenging to ensure that there is the development of work. Along with this, it is also true that there is a need for ensuring strong acts and as a result of this strong defection and also limitation within the law. It is also true that the specific interpretation is also important for the companies to ensure that there is complete defection to be adopted(Law, 2022). In such cases, there is also a need for ensuring that there is the possibility of ensuring challenge in ensuring strong defections.

On the other hand, the Purposive approach also ensures that there is complete focus on ensuring that there is a presence of parliament to ensure the establishment of new legislation. There is a chance of ensuring that Judges are also needed to be consultative to ensure that there is a strong benefit for the work (Choi, 2020). The use of the doctrine in thetranscripts is done to ensure that there is the actual intention of the government within the parliament. The use of the Purposive approach is done under the guidance of the European Union (EU) to ensure that there is a specific attempt to play an abstract role in the workplace. The use of the specific legislation developed by the EU is followed by various nations such as the United Kingdom to ensure effectiveness for the work. The presence of the judges is also done for making sure that there is a purposive approach to ensure the application of the EU law. The main reason for making use of the EU version is that there is a separate interpretation of legislation at the time when it gets translated intoa different language(Law, 2022). The main reason behind the use of the Purposive approach is that there is an interpretation of strong words to ensure benefit. The use of the purposive approach is that there is a presence of strong legislation to ensure that there is the interpretation of words. Hence, in such cases, there is an allowance for the judges to act in a certain way if they find the specific intention behind the legislation. There is also the help of various tools that can be used by the judges during the time of the legislation to ensure benefit in making a judgment. The tools include Extrinsic sourcessuch as non-legal words, the presence of textbooks, and find out the point of view of the law. The presence of the judges is also done to make sure that there is a creation for the work (Laser, 2020). But on the other hand, there is no power among the courts to make any form of amendment in the laws as per their will.

Hence, it is true that there is the presence of specific guideline that helps the applicants to ensure that there are specific boundaries. Even though there isa specific judgment that is used by the governments to ensure that there is the presence of General words and as a result of this there is a presence of the same nature. The use of specific language is also used by the statute that contains specific language that is followed by terms such as “the other”. In such cases, when the courts make use of judgment for any specific group of people then the legislation applies particularly for them(Law, 2022). The use of the term ‘ExpressioUnius Est ExclusionAlterius’ is also identified as a language that is used for ensuring the exclusion of one word for another. In such cases, the expression is included and the factors outside the work are completely excluded in the workplace. The presence of such journalists is also done for making sure that there is a presence of limestone to ensure that there is the development of the work(Law, 2022). On the other hand, it is also true that NosciturASociisis also influential for the companies to ensure complete ambiguous words to ensure that is dependent on the way it is used.

There is also a need for making sure that there is a presence of non-standard interpretation to ensure admission of the context ofEuropean human rights. There is also a need to ensure that there is growth for non-standard interpretation to ensure the statute is strained completely. There is also a need for ensuring non-standard interpretation to ensure thatsuch form of important factors plays a major role in the workplace.

Conclusion

Based on the above analysis, it is concluded that the process of determination of the statutes is done by the court during the time of legislation. The perception and also the tendency behind making the law plays an important role in defining the boundaries for the work. The implementation of this law and the intention behind making changes in the laws by parliament is also considered by the court to make a judgment in their laws. The presence of the specific language is also considered to be important in terms of making sure that there is growth for work.

Reference

Aziz, M., Ghofur, A., &Hidayati, N. N. (2021). Regulation on the Implementation of Halal Product Assurance in Indonesia: Statute Approaches Study. UlulAlbab: JurnalStudidanPenelitianHukum Islam, 4(2), 209-230. From (http://lppm-unissula.com/jurnal.unissula.ac.id/index.php/ua/article/view/13649)

Choi, J. H. (2020). The Substantive Canons of Tax Law. Stan. L. Rev., 72, 195. From (https://heinonline.org/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/stflr72&section=9)

Desai, A. C. (2020). The Dilemma of Interstatutory Interpretation. Wash. & Lee L. Rev., 77, 177. From (https://heinonline.org/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/waslee77&section=6)

Eskridge Jr, W. N., Slocum, B. G., &Gries, S. T. (2020). The meaning of sex: Dynamic words, novel applications, and original public meaning. Mich. L. Rev., 119, 1503. From (https://heinonline.org/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/mlr119&section=54)

Huggins, A. (2020). Executive power in the digital age: Automation, statutory interpretation and administrative law. Interpreting executive power, 111-128. From (https://eprints.qut.edu.au/180784/)

Laser, C. J. (2020). Equitable Defenses in Patent Law. U. Miami L. Rev., 75, 1. From (https://heinonline.org/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/umialr75&section=5)

Law, T. (2022). Approaches for Determining the Meaning of a Statute. Lawteacher.net. Retrieved 3 February 2022, from https://www.lawteacher.net/free-law-essays/english-legal-system/applications-of-the-literal-golden-and-mischief-rule.php.

Lemley, M. A. (2020). Chief Justice Webster. Iowa L. Rev., 106, 299. From (https://heinonline.org/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/ilr106&section=8)

Seidenfeld, M. (2020). Textualism's Theoretical Bankruptcy and Its Implication for Statutory Interpretation. BUL Rev., 100, 1817. From (https://heinonline.org/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/bulr100&section=55)

Solan, L. M. (2020). Corpus linguistics as a method of legal interpretation: Some progress, some questions. International Journal for the Semiotics of Law-Revue internationale de Sémiotiquejuridique, 33(2), 283-298. From (https://link.springer.com/article/10.1007/s11196-020-09707-8)

Tobia, K. P. (2020). Testing ordinary meaning. Harv. L. Rev., 134, 726. From (https://heinonline.org/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/hlr134&section=33)

LAW1081 The Individual and The State Assignment Sample

Word Limit: 1,500 words
(including footnotes and appendices, excluding bibliography,
contents, tables of cases and title pages)

Submission deadline:

Tuesday 5 April 2022 12noon (midday) UK time
Essay formatting: minimum 11 point legible font (eg Arial or Times New Roman), with minimum 1.5 line spacing and 1 inch margins. Place your anonymous code and word count in the header of your essay.

Essay Title for Essay Writing Help

Concerned by the potentially adverse economic and environmental impact of the proliferation of online grocery shopping since the Covid-19 pandemic, and keen to ensure an appropriate supply of food across the country to prevent shortages, Parliament has introduced legislation requiring local councils to license up to a specific number of grocery stores to take online orders for the local area – the (fictitious) Eat Local Act 2022. Section 1 of the Act makes it an offence for stores to take online orders from customers living in an area for which they do not hold a licence. The Act does not set out specific criteria for local authorities to employ in exercising their discretion, but Section 2 of the Act does state that local councils ‘must refuse all applications which are likely to reduce the competitiveness of local businesses.’ North Shire, a small county in the North of England, is allowed to licence up to four online grocery stores. Nomado, Caterose, and Resco (all of which are nationwide supermarkets) have been refused licenses by North Shire Council on the basis that their main storage facilities are too far away and that they are, therefore, not environmentally sustainable choices for North Shire residents.

The management of all three grocery stores feels that the decision not to issue the licences was unfair. In addition, they have the following individual complaints. Nomado, which is an online-only business with a warehouse situated 20 miles south of North Shire, is disappointed because it had requested the opportunity to make a presentation to explain its licence application, but this was refused. Caterose, which does not have a local branch and uses a warehouse around 125 miles south of North Shire for all online orders, claims that when its Managing Director, Lisa, sought clarification from the Council about the likelihood of obtaining a licence, Maria – the Council’s Chair – told her that the licence application was a 'mere formality.' On this basis, Caterose proceeded with the purchase of premises for a ‘Caterose On Demand’ store in North Shire, which would operate on a click and collect basis (i.e. clients would shop online and collect in store). Caterose now stands to incur substantial losses, as these premises do not have enough shopfloor space to operate profitably as a regular supermarket. Resco claims that Maria, is opposed to the grant of the license to Resco, because Maria’s daughter died after having an allergic reaction to calamari purchased at Resco’s North Shire store three years ago. Maria has often spoken about her experience tearfully on local television. While Resco’s main warehouse is nearly 600 miles south of North Shire, in an effort to improve its carbon footprint, Resco has started working actively through its local stores. The North Shire store has developed strong links with North Shire farmers and more than 60% of the produce delivered to North Shire online shoppers comes from the branch shelves, albeit that the rest is flown in from the warehouse. North Shire Council has received only one other online grocery store application, which it has granted. The application is from Redbury’s, a nationwide supermarket with a local branch opposite Resco’s. However, Redbury’s operates its online business mainly from a warehouse 100 miles south of North Shire and does not involve the local store in its processing of online orders. Advise the grocery stores as to the likelihood of bringing a successful claim in judicial review.

Solution

Introduction

A state is defined by the political structure of society or the legislative body, or, more specifically, the institutions of the state. States are distinct from other social organisations because of their aim, which is to maintain order and security; their tactics, which include the execution of the law; their territory, which is defined by their physical limits; and ultimately, their sovereignty. It is the collective agreement of people on the methods for resolving differences that constitute the state (Britannica).

An individual is defined as a human being or an organisation having the same rights and responsibilities as a human being. Counties and cities have the same legal status as corporations when it comes to dealing with them. When it comes to punitive damages, businesses, counties, and cities aren't accountable since they don't have human emotions like malice and hence aren't liable for them unless there is applicable legislation permitting them (Britannica).

The following essay is being conducted to recommend a successful claim in a judicial review regarding the Eat Local Act 2022, which prohibits local grocery stores from taking orders from consumers not being present in the area the store operates.

Discussion

Due to the occurrence of the Covid-19 pandemic, the UK has faced adverse effects on its economy, which has resulted in a shortage of food supplies within the area. To address this issue, the UK parliament has enacted legislation named the Eat Local Act 2022. This Act allows local grocery stores to obtain orders only from consumers who are currently residing within the surrounded premises of the store they are ordering from. Hence, prohibiting the grocery stores from obtaining orders from customers residing in areas they do not hold a licence for operating their business. This provision has been mentioned in Section 1 of the said Act. In addition, Section 2 of the Act states that local councils of the counties present in the nation have the right to refuse the applications for licenses for the reduction of competitiveness within the local businesses present in the nation. Due to the application of this Act, the county of North Shire is known to allow the licensing of a total of four online grocery retailers.

Concerning this step, the local authorities of the North Shire County have refused the providence of license to Nomado, Resco’s, and Caterose, which are supermarkets based on their storage facility is far away from their operating areas. This is considered by the Council to be environmentally harmful to the residents of North Shire County. The management of the above grocery retailers strongly agrees that this decision is unfair and is known to cause a loss in their business opportunities. Nomado is known to have its warehouse located 20 miles south of the county; despite their claim explained for applying for a licence to conduct online business in the region has not been provided with the licence. Caterose, which does not have a local store in the county, having its warehouse located 125 miles from North Shire, has been refused a licence from the local authority.

The reason behind the refusal has not been clearly stated by the local authorities of the Council.

Lastly, Resco has been refused the licence from the Council as the Council Chair of North Shire County expressed a personal incident that caused the death of their daughter due to an allergic reaction from calamari purchased from the supermarket. Even though Resco has been widely recognised for its contribution to the reduction of carbon footprint by operating its warehouse 600 miles from the county and actively providing groceries obtained from the local farmers of the North Shire County. In comparison, Redbury's, having a local branch located opposite Resco's, has been provided with the licence to conduct their online business despite having their warehouse located 100 miles south of North Shire, and no local shop is involved in online purchase processing.

According to The Electronic Commerce (EC Directive) Regulations 2002, all stores involved online delivery of goods are obligated to provide their consumers with the steps required to make a purchase. A contract is defined by its terms and conditions. The customer must be able to duplicate and store this information. It is also obligated to provide a precise price of the product and the cost of shipping and taxes incurred from the service. In addition, in the UK, the UK food legislation applies when a shop sells food through mail orders or the internet (legistlation.gov.uk). The Consumer Contracts (Information, Cancellation, and Additional Charges) Regulations 2013 is the primary legislation governing distance selling. All commodities sold through distance selling are covered by this rule; it is not limited to food. The following are some of the more specialised areas of law: safety, record-keeping, removal of goods, customer dissatisfaction, a clean and healthy environment, labelling, custom-tailored to your particular line of culinary products. There is a primary focus on the quality of food that is delivered to the customer. The following things are protected by the law: information that the seller must offer to the buyer before the deal may be finalised, contract cancellation rights, payment restitution in the event of cancellation, consumer's return of products that had been cancelled at home or office deliveries of food and beverages (legistlation.gov.uk).

Furthermore, in the UK, all food safety regulations apply to all firms in the food industry, submitting an environmental health registration form to the local government. This is mandatory under the Food Safety Act, 1990 (legistlation.gov.uk). In addition, A violation of the Competition Act 1998 is punishable by up to a year in prison and a fine of up to £25,000 per day. Companies that misuse their position of power to undermine competition are included below. A violation of EU treaty articles 101 and 102 that has an impact on commerce between member states shall be dealt with in accordance with those provisions. The CMA is in charge of enforcing the law as well (legistlation.gov.uk). It is against the law for companies to make anti-competitive agreements and exploit their market dominance. Competition law in the United Kingdom forbids anti-competitive behaviour.

Alongside these provisions, the Licensing Act 2003 of the UK is only applicable to businesses that are known for selling alcoholic drinks. The Licensing Act 2003 governs the licencing of establishments that sell alcoholic beverages in England and Wales. In the United Kingdom, it serves as the foundation of alcohol legislation and specifies the rules for any company selling alcohol, including which licences they must seek and what they must do to conduct their business in a responsible manner. Along with these licenced activities, late-night refreshment and controlled entertainment (such as presenting a movie or sporting event) are governed by the Act. By law, you need to apply for a licence from your licencing authority (LA). Generally, a local council is able to carry out certain regulated activities. The LA is obliged to have a licencing committee to accept or refuse any applications. The Home Office is in charge of all aspects of alcohol licencing legislation and regulation (legistlation.gov.uk). In defence of this Act, the grocery stores are only involved in the sale of grocery items.

Thus, the Eat Local Act’s provisions for having a licence to operate within a certain premise are arbitrary and are known to cause a financial loss for these businesses that are willing to operate their business in the nation. Therefore, the three grocery stores have the right to claim a judicial review for the biased Act that is known to cause biases and loss for such businesses. Judicial review is the judiciary's ability to analyse the activities of the legislative, executive, and administrative branches of government to see whether they are in accordance with the constitution is known as judicial review. Controversial actions are ruled unlawful and consequently invalid (Neal Tate). To appeal for a judicial review, the organisations are required to appeal the case to an Upper Tribunal or in the High Court. Magistrates and county courts are only eligible for the review of the decision (Courts and Tribunals Judiciary).

Conclusion

The above essay has been conducted to determine the legality of the legislation passed by the UK parliament to reduce the chances of food shortage and decrease competition among the local businesses within the nation. The Eat Local Act, 2022 is categorised as arbitrator legislation as it prohibits the right to conduct online business in grocery stores due to their geographical location. In addition, the licensing provisions demarcated by the Act are known to show personal bias against a grocery store. Furthermore, the licensing system is also not appropriate as they are unable to address the issues or grounds for rejecting the license of the organisation. This showcases that the licensing authority might be involved in the Act of corruption and favouring the ones that are bribing for acquiring a license. Hence, this practice is both unfair to the business and the legality of the situation. Therefore, the essay has provided valid grounds for claiming a judicial review regarding the Act.  

References

Black’s Law Dictionary, ‘Individual’ < https://thelawdictionary.org/individual/> accessed 04 April 2022

Britannica, ‘state’ < https://www.britannica.com/topic/state-sovereign-political-entity > accessed 04 April 2022

C. Neal Tate, ‘judicial review’ < https://www.britannica.com/topic/judicial-review> accessed 04 April 2022

Courts and Tribunals Judiciary, ‘Appeals process’ < https://www.judiciary.uk/you-and-the-judiciary/appeals-process> accessed 04 April 2022

Legistlation.gov.uk, ‘Competition Act 1998’ < https://www.legislation.gov.uk/ukpga/1998/41/contents> accessed 04 April 2022

Legistlation.gov.uk, ‘Food Safety Act, 1990’ < https://www.legislation.gov.uk/ukpga/1990/16/contents> accessed 04 April 2022

Legistlation.gov.uk, ‘Licensing Act 2003’ < https://www.legislation.gov.uk/ukpga/2003/17/contents> accessed 04 April 2022

Legistlation.gov.uk, ‘The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013’ < https://www.legislation.gov.uk/uksi/2013/3134/contents > accessed 04 April 2022

Legistlation.gov.uk, ‘The Electronic Commerce (EC Directive) Regulations 2002’ < https://www.legislation.gov.uk/uksi/2002/2013/contents > accessed 04 April 2022

CLWM4000 Business and Corporations Law Assignment Sample

Assignment Brief

Word Count - 2000 Words (+/- 10%)
Weighting: 30 %
Total Marks: 30
Submission: Via Turnitin
Due Date: Week 9

Your Task

Using the Case Study provided, you will need to undertake an analysis of the various legal issues that are identified, cite relevant rules applicable to the issues, explain the application of the rules to the facts/situation in the case scenario using the IRAC method.

Assessment Description

You are required to answer the following three (3) questions, based on the Case Scenario below
Assessment Instructions

• Your assessment is to be submitted via Turnitin in WORD format. “PDF submissions will not be accepted”

• You must follow the KBS presentation guidelines for assignment help

• Please refer to the assessment marking guide to assist you in completing all the assessment criteria and for information on the use of references and legal citations

CASE SCENARIO

Julia Brennan is an Australian Super Model who had started on an intensive fitness program to prepare for her new TV Commercial that will advertise a new type of gym equipment. She knows that she needs to be super fit. In addition to her fitness program, she decided to consultant dietician about what sort of food she should eat to accelerate her program. The dietician suggested that she have at least one protein smoothie every day. She had done a bit of research to find out what might be the best type of blender for her to buy. When she went to the local electrical store, she found that the only blenders that they had for sale did not meet her needs as they were no powerful enough for smoothies.

So, she decided that she needed to go to a larger store. She had heard good things about, the “Super Big Brand Store” so decided to go there to purchase a blender that met her needs. She was very happy to find that the blender was on sale at the “Super Big Brand Store” The Sale Sign stated “Buy it today and you will get 50% off” it is high quality, superb, safe and durable. You won’t regret it”.

When she went to the counter to pay for it, she was informed by the Sales Assistant that the blender was not on sale for 50% off as the Sale Sign had stated. The Sales Assistant told her “sorry that was yesterday, and I cannot give you 50% discount!

Julia was in a hurry and she just wanted to get started as soon as possible with her protein shakes, so she bought it and kept her receipt. She went back home, she plugged it in and as soon as the blender started the upper lid came straight off as did the sharp blender blades.

Unfortunately, the blades injured her right hand and she needed to go straight to the Hospital Emergency Department. The Doctor told her that she would need stitches in her hand, and she would be unable to use her hand for four weeks unless the cut had healed, and the stitches could be removed. Julia was very upset when she realized that she would not be able to participate in the planned TV Commercial and that another Super Model would have to take the job. She would also lose the $12,000 that was the agreed payment for the commercial.

Three weeks after the accident, Julia went back to the “Super Big Brand Store” to complain about the blender and about the injury to her hand finger! While she was waiting for the Store Manager, she noticed that the same Sales Sign was displayed “Buy it today and you will get 50% off” it is high quality, superb, safe and durable. You won’t regret it”.

She asked the Sales Assistant whether the blender was 50% off as the Sales Sign had stated. The Sales Assistant responded, “Sorry that was Yesterday”. She realized that the displayed Sales Sign did not mentioned the date, so it was difficult to figure out why the Sales Assistants kept saying “Sorry that was Yesterday”. She started to suspect that there was something wrong with the way that the store was operating. Instead of waiting for the Store Manager,

She decided to call a Solicitor from the firm “Injuries at Law” for legal advice.

QUESTION 1 – Contract Law (10 Marks)

• Please advise Julia, if she entered in a contract with the “Super Big Brand Store.”

o In your answer explain the meaning of Contract and which elements need to be satisfied to be in a simple contract and how to identify if this contract can be invalided.

o You will need to address all the “essential elements of a simple contract” including (Offer and acceptance, intention and consideration) as well as “elements of a valid contract” (Capacity, Legality, Genuine Consent, Mistake, Misrepresentation, Durres, Undue Influence and Unconscionability and explain if Julia can invalidate the contract.

o You will also need to address and explain what sort of remedies she will be entitled if she decides to void the contract under the Contract Law in Australia.

QUESTION 2 - TORT LAW (NEGLIGENCE) (10 Marks)

• Please advise Julia, if she has a claim under the tort of negligence.
o You need to address all the “essential elements under the tort of negligence”.
o You also need to address if the “Super Big Brand Store” has any defences under the tort of negligence.
o Explain what sort of remedies she will be entitled to claim under the tort of negligence in Australia.

QUESTION 3 – Australian Consumer Law (10 Marks)

• Please advise Julia, if “Super Big Brand Store” breached her Australian Consumer Law Guarantees under the Competition and Consumer Act 2010 (Cth) Schedule 2.
o You need to justify your view as to whether these guarantees are available. Don’t forget to explain if Julia will be entitled to claim the remedies and
o You also need to explain if the “Super Big Brand Store” will have to pay

SOLUTION

QUESTION 1

Issues in the prevailing case scenario

Present case scenario contained issue related with contract law. It is required to ascertain whether or not Julia has formed contract with the “Super Big Brand Store”?

Rules and regulations

A contract is a set of promises that are legally enforceable. Australian contract law is primarily governed by the ‘common law’. Some of the essential elements need to be satisfied for formations of valid contract are -

1. Offer and acceptance: When one party accepts the offer of another party it leads to the formation of a contract. Offer can be given to any single person or group of person, which can be observed in the case of Carlill v Carbolic Smoke Ball Co.

2. Legal relations: Contract is not just formed by acceptance of offer but there should be intention of parties for creation of legal relations (Tadros 2020).

3. Consideration: It is the price paid by one party to another; price is not just in terms of money but can also be in terms of risk, interest, rights.

4. Legally capable: Not everyone can enter into a valid contract, persons with issues related to legal consent like bankrupt, prisoners, mental issues cannot enter into a valid legal contract (Werbach & Cornell 2017).

5. Consent: These are the elements under the contract on which both the parties agree mutually it must avoid any miscommunication, misinterpretation, mistakes etc.

Apart from above aspects, a contract is invalid if these conditions are there:

1. Fraud has been committed.

2. Consent in the agreements is not understandable or not possible to be fulfilled.

3. Consent has been obtained through undue influence, duress, mistake, unconscionable conduct, and misrepresentation. In the case of Derry v Peek, contract is considered as void because consent is obtained through fraudulent misrepresentation (Clarke 2010).

One must have to convince the second party to agree on the contract if there is misrepresentation under the contract. Misrepresentation is an inaccurate statement which tries to persuade a person or a group to enter in the contract. It has no such effect until and unless the second party was aware of its existence. Further, duress takes place, when individual enter in a contract because of some force or violence their entry is not voluntary (Lamont, Stewart, & Chiarella, 2019). Undue influence occurs when an innocent party is threatened or misbehaved by the other party or even if someone is forced by their elders or any other ascend person for their own benefits is an act of influencing. In fact, a ‘mistake’ is something which exits but it shouldn’t have.

Remedies

Liquidated and damages Claims: Liquidating damages means providing a sum of money under a clause in contract for the breach to other party, further the sum mentioned above is not included in penalty. Damages could be viewed as replacement of the performance from the breached contract, which means a plaintiff is placed in a situation where he would have if the contract was performed correctly (Clarke, 2010).

Equitable Remedies: There are two main equitable remedies for breach of contract.

Specific performance – Under this the breaching party is ordered to perform in the way it was supposed to according to the laws. This order is laid only if the compensation could not be provided.

Injunctions – These are the order or you can say warning by court to not perform such breaches in contract.
Application

By application of above rules, it can be said that, there is valid contract has been formed between Julia and Store as all essential elements such as offer and acceptance, consideration, intention, and legal capacity has been satisfied. It should be noted that, there is violation of terms and conditions of the contract by Store as blender was not as per Sale Sign that states about its quality, safe, durable, and excellence. Based on this, Julia would entitle to claim remedies such as 50% discount on blender, medical expenses, and loss of income as damages under contract law designed in a manner to place plaintiff in a situation if the contract has been executed appropriately.

Overall, it has been concluded that, valid contract has been formed between Julia and Store. However, due to breach of terms and conditions by store, Julia can entitle to claim remedies from store.

QUESTION 2

Issues in the prevailing case scenario

Present case scenario contained issue related with tort law (negligence). In this, it is required to give advice whether or not Julia has a claim by application of tort of negligence?

Rules and regulations

Essential elements as per the tort of negligence are as follows -

Duty of care: It’s a legal responsibility to take reasonable care generally the scope of care not much it depends upon the relationship of the two parties. The duty of care involves the care which is not to harm intentionally or unintentionally to other party. In the legal case of Donoghue v Stevenson, it was held that, even if there is not any contractual relationship, an individual should be capable to sue another who assisted losses to them (Taylor 2020).

Breach: Under this the ‘duty of care ‘is breached that whether the occurred situation is reasonable or not, which means the plaintiff is not entitled to all the risks but if there is an obvious risk involved the plaintiff has to cover (Stoyanova 2020).

Causation: Under this the plaintiff has to prove that the injury which is occurred or the sufferings is the part of breach of duty of care. In the legal case, Amaca Pty Ltd v Ellis, there was inadequate causation to provide negligence.

Damages: The final element of the negligence is the damages. After the plaintiff proves the duty of care, breaching and causation they can receive the compensation for the loss.

The compensation is made on the basis of how the impact of lossinjury is on the plaintiff, like severity of injury, loss in financial terms or the impact of injury on the future of the plaintiff.

Defences

There are two defences a defendant can use where they are found liable for negligence:

Volenti non fit injuria: It means that the claimant has agreed that he had accepted the involvement of risk. Under this if the party successfully proved the acceptance he would not be liable for the loss (Armstrong 2019).

Contributory negligence: Under this the partial liability is taken away if the defendant can prove that there was the contribution of the claimant too in their losses.

Remedies for Negligence Claims

First remedy for negligence claims is the compensation. The claimant will be provided with the sum of compensation he had to suffer from the damages. Damages could be provided for both financial and non-financial losses (Gibbs Wright Litigation Lawyers 2020).

In case of personal injury, the claimant will be provided with additional damages like the loss of his income due to the injury or medical expenses (Eldar 2020).

Application

By application of above rules and regulations in the prevailing case scenario, it can be said that, Julia is eligible to claim as per tort of negligence as sales assistance owned duty of care towards Julia and due to violation of such duty of care, she has suffered from losses, and such losses was also not too remote. Further, there is not any defenses available to store as there is not any voluntary acceptance of risk by defendant and concept of contributory negligence would also not applied. Therefore, Julia would entitle to claim monetary compensation for the losses suffered by her along with loss of $12000 that was agreed payment for commercial performance.

Conclusion

Overall, conclusion can be drawn from above analysis that, Julia would be entitled to claim under tort of negligence and consequently remedies can be claimed by her, which includes loss of income as well as medical expenses.

QUESTION 3

Issues in the prevailing case scenario

Issue in the given case scenario is based on Australian Consumer Law. It is required to provide advice to Julia whether or not provisions of consumer guarantee as given in the schedule 2 of the Competition and Consumer Act 2010 has been violated by the “Super Big Brand Store”. In addition to this, suggestions should also be provided with respect to remedies of Julia and what is required to be paid by “Super Big Brand Store”.

Rules and regulations

Australian Consumer Law is explained in the schedule 2 of the Competition and Consumer Act 2010. As per the cited law, it is required by organizations to offer consumer guarantee for most of the products and services sold by them. It is essential that, organizations that are engaged in selling of goods must provide guarantee as explained in section 51 to 59 of the cited Act that such goods are –

• Goods must be as per the acceptable quality. It suggests that, products should be secure, has no mistake, seems acceptable, and performs all aspects that are expected generally.

• Goods should be appropriate for the purpose that customer made recognized to the company prior to purchasing.

• Goods should be described reliably (Bianchi 2018).

• Goods should be match as per demonstration.

• It should comply with any express warranty.

• They should have a clear title.

• There should not be any hidden charges.

• It should have repairing facility for a rational period of time except the advised is provided to customer otherwise.

If an organization sells goods to consumer that fails to fulfill above prescribed guarantee, then in such case, consumers are entitled for the remedies, such as repair, refund, replacement of goods, and monetary compensation for any significant losses, based on the situations (Pearson 2018). If the issue is significant or it could not be fixed, then in such case, customer can select to reject the product and gain a refund of whole amount or replacement of goods, or retain the product and avail compensation for the decrement in the value of product. In the legal case ACCC v Valve Corporation (2016), it was held that, Australian Consumer Law would also implement on the foreign companies. Therefore, company has liability for misleading customers through demonstrating that refund was not entitled to them and not including any guarantee connected to the quality of services.

Section 259 offers the right of Consumers to seek compensation for the losses sustained by them because of the issues in goods and services, consisting of repair, replacement, and refund of defective goods. Section 259(4) provides remedy for the consequential losses caused to the customer as a consequence of the issue in goods and services as decision is given in case of Barton v Transmissions and Diesels Ltd (Consumer rights obligation 2020). Normally; it is financial like expenses of repairing, transportation, inspection. Additionally, lost time and productivity could also be included in the damages.

Application

By application of above rules, it is advisable to Julia that Australia Consumer Law Guarantees has been violated by the store. It is because, there is implied guarantee given under cited Act, that goods must be as per reliable quality, however as soon as blender started by Julia, she has suffered from injury because store’s failure to comply with guarantee stated under the Act. It is mainly because of bad quality of blender. Since, problem in goods is major in nature, therefore Julia has right to reject the goods and obtain the refund of whole amount or replace the goods. She may also retain the goods and claim compensation for reduction in amount of goods. In addition to this, $12000 can also be claimed as it is consequential losses taken place from violation of consumer guarantee.

Conclusion

In a nutshell, store has breached the guarantee provided under schedule 2 of the cited Act, and therefore Julia is entitled to claim remedies, which may be either replacement of goods or refund the amount. Additionally, she also claims loss of income of $12000. Therefore, store is required to replace or refund the amount of blender along with losses of income suffered by Julia.

REFERENCES

Armstrong, A 2019,’Negligence and prescribing’, Journal of Prescribing Practice, vol 1, no. 10, pp.512-516, https://doi.org/10.12968/jprp.2019.1.10.512

Bianchi, L 2018, ‘Consumer law: Changes to Australian consumer law: Key benefits for vulnerable consumers’, LSJ: Law Society of NSW Journal, vol. 50, no. 3, pp.71-73, https://search.informit.org/doi/abs/10.3316/agispt.20181108003624

Clarke, J 2010, ‘Australian contact law’, Available through<https://www.australiancontractlaw.com/law.html> .[ Accessed on 27th August 2021].

Consumer rights obligation 2020, Available through < https://www.accc.gov.au/business/treating-customers-fairly/consumers-rights-obligations> . [Accessed on 27th August 2021].

Eldar, S 2020, ‘Cross-Victim Defences’, Criminal Law and Philosophy, pp.1-17. https://link.springer.com/article/10.1007/s11572-020-09552-7

Gibbs Wright Litigation Lawyers 2020, ‘Remedies for negligence claim’ ,Available through <https://gibbswrightlawyers.com.au/publications/negligence-disputes-australia> . [Accessed on 27th August 2021]

Lamont, S, Stewart, C, & Chiarella, M 2019, ‘Capacity and consent: knowledge and practice of legal and healthcare standards’, Nursing Ethics, vol 26, no. 1, pp.71-83, https://doi.org/10.1177/0969733016687162

Pearson, G 2018, ‘Enforcement and Effectiveness of Consumer Law in Australia’, In Enforcement and Effectiveness of Consumer Law (pp. 75-97), Springer, Cham, https://link.springer.com/chapter/10.1007/978-3-319-78431-1_3

Stoyanova, V 2020, ‘Common law tort of negligence as a tool for deconstructing positive obligations under the European convention on human rights’, The International Journal of Human Rights, vol 24, no. 5, pp.632-655. https://doi.org/10.1080/13642987.2019.1663342

Tadros, E 2020, ‘Elements of a contract’, Available through <https://fls.org.au/law-handbook/consumers-contracts-the-internet-and-copyright/how-contract-law-works/elements-of-a-contract/>. [Accessed on 27th August].

Taylor, 2020, ‘Elements of negligence’, Available through <https://www.taylorandscott.com.au/compensation-lawyers/four-elements-make-negligence-claim/>. [Accessed on 27th August 2021].

Werbach, K. & Cornell, N 2017, ‘Contracts ex machine’, Duke LJ, 67, p.313, https://heinonline.org/HOL/LandingPage?handle=hein.journals/duklr67&div=11&id=&page

BUS1006 Business Law Assignment Sample

Assignment Brief

Due date: Week 7
Group/individual: Individual
Word count/Time provided: 2500 words
Weighting: 30%
Unit Learning Outcomes: ULO4 & ULO5

Assessment 2

Students must search Australian legal databases and find a court decision that has been decided over the past few years. The court decision must be on legal issues that arise on contract law. Once you have chosen a relevant court decision, you must critically review the decision. In critically reviewing the decisions, you must address the following points:

- Summarise the facts of the case for assignment help

- Identify the legal issues

- Analyse the applicable laws and discuss the relevant aspects of contract law which are applied on the case.

- Critically review the decisions

Apart from critically reviewing the court decisions, students are required to do a literature review on the relevant contract law principles or rules. In that, an in-depth discussion must be included on the meaning, scope, and application of the relevant aspects of contract law.

Solution

Introduction

The criteria of Contract Law are mainly defined as the agreement between two individuals, people and businesses. If someone doesn't follow the agreement, then it is definitely termed as a breach of contract in the negotiation of legal terms legislations. The criteria of contract law also help to exchange major promises between two people in order to manage the affordability of obligations recognised by the enforced laws in a very optimised manner. In this study, a specific Australian court decision will be selected based on the legal issues of contract law. The selected court decision for this study is the High Court of Australia Bulletin [2021] HCAB 5 and it is significantly related to the execution of contract law based on the decision of anti-tendency direction.

Literature review on relevant contract law

Concept and scope of contract law

The idea of contract law is significantly referred to as the passing of unique promises between two or more individuals by following the rules and norms of legal entities in a very reliable and viable manner. The implication of contractual legal entities can easily follow the agreement between new sponsored business partners in a very reliable and viable manner. The major laws used in this specific case study mainly include constitutional law, criminal law and industrial law based on the implication of the High Court of Australia Bulletin (Amigud and Dawson, 2019). The accommodation of industrial law is mainly based on the agreement of enterprises that can be very useful to viably detect serious misconduct of code through the help of certain disciplinary actions in a more meaningful and viable manner. In industrial law, the breach code can be easily identified with the validity of breach of conduct through the help of new business knowledge based on cases of contravened EA in early intervals of time (Awdry and Newton, 2019). In the context of industrial contract law, the respondents are significantly required to append for the proceedings of federal circuits that mainly deals with the valid implication of sources based on the proper conduction of legal codes and authorities in a very suitable manner. According to the actions of Industrial Law in the given case study, almost 56% of casual employees are required to be resituated based on the satisfaction of leave entitlements with the valid negotiations of Fair Work Regulations At of 2009.

Principles of Contract Law

In the country of Australia, the optimum intention for the development of legal relations can be easily confined with the help of valid contract law. Meanwhile, the four major principles of contract law in Australia are Acceptance, Legal Obligation, Meaning and Elements (Bretag, 2019). In contract law, the criteria of acceptance deliberately occur when one party mainly attends the quality of the other party based on the implication of a new research plan and tactics on a reliable basis. The overall optimisation of compliance also helps to generate new amounts of money with the integration of authentic business systems that can be functionally categorised through the growth of new business management systems on a daily basis. The acceptance of a reliable contractual agreement will be done based on the negotiation of agreement papers by following the implications of rules and legal items for future prospects.

The major principle of contract law can also be used to measure the reliability of the concept of return on benefits. On the other hand, the criteria of legal obligations are mainly defined as those duties in which each party is legally contracted with the agreement of sources based on the money of products and exchanges for future activities. On both sides, the implication of legal obligations is required to be disputed through the exchange of productive tools and agreements by following the laws of the Australian government (Crosweller and Tschakert, 2021). The connections of major exchanges can also be easily deliberated by following the mandatory legal actions based on the implications of a lawful basis.

On the contrary, the meaning in contract law is mainly defined as the simplest definition of planning that can be used to functionally result in the requirements of legal access to a person based on the valid execution of mutual assent of disputes in a very predominant and reliable manner. Furthermore, the elements in contract law of Australia are mainly known to be mutual assent and consideration that can be used to viably implicate the authorisation of resources in a very reliable and viable manner with the implication of new business resources and tactics on a formal basis in the future (de Rochefort-Reynolds, 2020). According to this given case study, the major case laws used in terms of the negotiation between two parties in terms of contract mainly include Palmer v the State of Western Australia, Edwards v The Queen, Deputy commissioner of taxation v Shi and Hamilton v The Queen (Draper and Newton, 2017). In this given case study, the implication of industrial law is suitably based on the limited validation of enterprise agreement through which the prosperity of the legal code of conduct can be easily determined in the future. The reliability of new business tools and deliberations can also be judged based on the valid stability of business respondents in order to manage the special working holiday tax rate whose value is up to $3986 AUD.

Applications of Contract Law

The application of contract law is that it viably helps to exchange the authorisation of economic goods and services in the country of Australia. This law also helps to deal with the negotiation of sponsored partners that helps to mitigate the breach of the contract throughout the authorised meetings of minds by elongating the terms of the contract in the future. Meanwhile, the validity of legal documents is another application of contract law that deals with the implication of source based on the capacity as well as the viable legality of systems in a very suitable manner (Feinerman, 2019). According to the given case study, the main application for the perseverance of contract law is Immigration.

The criteria of immigration mainly help to implement the criteria of non-refoulment obligations in which granted refugee and humanitarian can also be negotiated through the execution of Global Special Humanitarian based on the implication of 12 months of imprisonment for the breach of contract in Australian subcontinents. As per the given case study, the other application of Australian contract law is the delegation of plaintiff procedural fairness under the valid assumption of the Mitigation Act (Harpur, 2018). This law is only applied after the decisions made by the constitution of the ministry for the optimum integration of large business resources in the future. Moreover, the valid applications of authorised contractual agreements can be negotiated through the help of non-revocation decisions made with the validity of pursuant to s 501CA (4).

Summarise the facts of the case

The case study named High Court of Australia Bulletins is mainly focussing on the implication of Australian contractual cases that are being decided and reserved for the purpose of judgement. This particular case study also provides valid information about the Court’s Original Jurisdiction by mainly granting a special and predominant leave to appeal based on proceedings and vacated in a very reliable and viable manner (Hemming and Daniel, 2018). In this case study, major laws that are being discussed mainly include constitutional law, immigration law, criminal law and industrial laws of Australia. In the study, the description of hand down cases by the High Court of Australia in June 2021 based on the association of legal terms and laws has also been provided. Moreover, this particular case also summarises the facts of aliens, deportation, duty to remove, vesting of judicial power and false imprisonment. In this case study, the idea of breach of contract in Australian legislation has also been provided that mainly helps to grant visas limited by implications in the future.

This study also provides a brief description of the case law named Commonwealth of Australia v AJL20. This particular case study also summarizes the facts of constitutional laws that are being implied by the freedom of communications on the behalf of foreign principal activities on the provision of a legitimate purpose in order to determine the breach of contract in the future (Hile, 2021). According to Migration Act 1958, the removal of the concerns of non-citizens in Australian residents can be widely deliberated through the removal in accordance with the Act in order to maintain the mortgage that is being extinguished due to the breach of contract.
Identification of legal issues

In this case study of the High Court of Australia Bulletins, the issues related to the Corporations Act of 2001 has been noticed by this limited assurance of leased engines and leaving engines and authentic engine leases for the major implications of third party activities. Meanwhile, the legal issues related to the effective consolidation of new breach of contract can be viably utilised that can be implicated by the formation of the Court of Appeal. This mainly results in the emergence of issues related to the implication of contested credibility within the business. The overall implantation of inadmissible and prejudicial evidence can be viably determined through the substantial miscarriage of justice in the future (Matulionyte, 2019). The implication of justice mainly helps to maintain the overall delegation of resources based on the authentic stability of criminal law and justice.

Moreover, the other legal issue systematically related to this specific case study is the 5 years’ minimum penalty of jurisdiction that is being implied by the magistrate of the district court in suitable intervals of time. On the other hand, the issue of unconscionable conduct of respondent lenders can easily cause the manual implication of breach of contract to appeal the findings of the primary judge within the navigation of future prospects (Schmulow and O’Hara, 2018). The other issue is the major apprehension of biases all around the courts that can be easily justified with the help of a hypothetical observer on a formula basis. On the other hand, the other legal issues of this case study mainly include the trial of the judge made through the implication of the interlocutory interpretation decision that is being punctually exhausted after the judgment made by the Australian Court in the future. Moreover, the issue of jurisdiction under the power of the primary judge can help to measure the affordability of legal contractual exercise between the two parties in the future.

Applicable laws and discuss aspects of contract law

In the case study of the High Court of Australia Bulletins, the major laws used are criminal law, industrial law, constitutional law, tax law and industrial law. In this study, the major implication of constitutional law is mainly to define a certain case law of the Australian Court named Commonwealth of Australia v AJL20 (Sherborne, 2017). In this case, the main judgement was delivered on 23 June 2021 through the execution of false imprisonment of people with the tactical execution of new business growth and technique in a very reliable and viable manner. The execution of new business formats can also be used to maintain the optimum integration of the latest business style and techniques based on the optimum configuration of Chapter III of the constitution in several business concerns with the attribution of contracted features in the future.

The constitutional law can be used to mainly impose the conflicts within the registration obligations that can be used to measure the holding of Conservative Political Action Conference with the negotiation of breach of contract in the future. On the other hand, the implication of constitutional law can be utilised through the methods of state legislative powers based on the implication of alternative sources with the prospects of Federalism (Sherman and Bosse, 2018). According to the Criminal Law of Australia, the foresight of profitability of consequence can be easily measured with the case-law of Aubrey v The Queen (2017) 260 CLR 305. This case law significantly helps to measure recklessness with the indication for the breach of agreement in the future (Steel, 2017). On the other hand, the tax law has also played a significant role in this case study by mainly pursuing the case law named Deputy Commissioner of Taxation v Huang. Moreover, the optimum practice of freeing order helps to determine the persuasion of Australian Foreign Assets that helps to seek judgement among well-renowned respondents for the attribution of Federal Court Rules in 2011.

Furthermore, the relevant aspects of contract law applied in this case study mainly include casual employees, privity of contract, declaratory relief and judicial power of the commonwealth. The implication of contractual matters can help to maintain the delegation of new business resources that results in the practical enforcement of new terms and agreements in the future. The authorisation of privity terms can also be used to respect in the negotiation of third party contracts with the doctrine of enforceable rights and desirable controversies of liability in the future. In this case of contact, the case law used to replicate the breach of contract mainly include the optimum mechanisms of judgements with the implication of Hobart International Airport Pty Ltd v Pacific Airports (Ullah and Al-Turjman, 2021). The attribution of payable amount can also be negotiated between valid appellants that helps to configure the cases of strong contractual business sources in the future. On the other hand, the corporations of insolvency will help to mandate the optimum benefits of contributors that can be obtained with the ASIC authorises of the person in the future. The suitable implications of NSW courts can be easily appealed through the raising of paying purpose among individuals during the effective time frame of the contractual agreement in the future.

Critically review the decisions

In this particular case study, some accurate and some falsified decisions have been made on the basis of behaviour concerns of non-citizens in the country of Australia. In the case-law of Migrant Services v Moorcroft, the huge had made wrong decisions related to the integration of contracts and based on the agreement of Migration Act of 1958. This decision is false as the agreement between two major parties has been cancelled and the third party cannot remove the implication of hard consequences in the future. On the other hand, the case of Chetcuti v commonwealth of Australia has also provided a valid limitation of action based on the exclusion of agreements between users (Whincop et al. 2018). Moreover, the decision of the judge in this case law is accurate due to the implication of the naturalisation of aliens in the country of Australia. The breach of contract was done with the navigation of British Subjects in the major colonies of 1949. Moreover, the formal and authentic justification of this court decision can be effectively managed through the constitution of power management in the future. In the end, the case law of Mineralogy Pty Ltd v The State of Western Australia, the court judge has decided the defendant of agreement relations between two business sources based on the optimisation of Amendment Act of 2020.

Conclusion

Hence, it is concluded that implication of Australian databases has been used to select the case study of High Court of Australia Bulletins that has mainly made the decisions of anti-tendency direction with the specifications of case laws. In the end, valid decisions have been made related to the original jurisdiction of the court based on the implication of constitutional laws and immigration acts from this case study.

References

Amigud, A. and Dawson, P., 2019. The law and the outlaw: is legal prohibition a viable solution to the contract cheating problem?. Assessment & Evaluation in Higher Education.

Awdry, R. and Newton, P.M., 2019. Staff views on commercial contract cheating in higher education: a survey study in Australia and the UK. Higher Education, 78(4), pp.593-610.

Bretag, T., 2019. Contract cheating will erode trust in science. Nature, 574(7780), pp.599-600.

Crosweller, M. and Tschakert, P., 2021. Disaster management and the need for a reinstated social contract of shared responsibility. International Journal of Disaster Risk Reduction, p.102440.

De Rochefort-Reynolds, A.J., 2020. Confused Seas: Identifying the Proper Law of Arbitration Agreements in Maritime Contracts-England, Singapore and Australia. Austl. & NZ Mar. LJ, 34, p.1.

Draper, M.J. and Newton, P.M., 2017. A legal approach to tackling contract cheating?. International Journal for Educational Integrity, 13(1), pp.1-16.

Feinerman, J.V., 2019. Legal institution, administrative device, or foreign import: The roles of contract in the People's Republic of China. In Domestic law reforms in post-Mao China (pp. 225-244). Routledge.

Harpur, P., 2018. Australia-The Licensing of Temporary Agency Work Arrangements: Australian Labour Hire Licensing Acts and the Regulation of On-Hire and Gig Work. American Bar Association, Section of Labor and Employment Law, International Committee Newsletter.

Hemming, A. and Daniel, M., 2018. Halsbury's laws of Australia: contract GC I_II_V. Update of contract GC I, II, and V.

Hile, J., 2021. Dude, Where’s My Data? The Effectiveness of Laws Governing Data Breaches in Australia. Journal of Telecommunications and the Digital Economy, 9(2), pp.47-68.

Matulionyte, R., 2019. Empowering authors via fairer copyright contract law. University of New South Wales Law Journal, The, 42(2), pp.681-718.

Schmulow, A.D. and O’Hara, J., 2018. Protection of Financial Consumers in Australia. In An International Comparison of Financial Consumer Protection (pp. 13-49). Springer, Singapore.

Sherborne, A.K.E., 2017. Restitution in the conflict of laws: characterization and choice-of-law in Australia. Journal of Private International Law, 13(1), pp.1-34.

Sherman, B. and Bosse, J., 2018. Regulating access and benefit-sharing in Australia. International Workshopon Access and Benefit-sharing for Genetic Resources for Food and Agriculture, p.89.

Steel, A., 2017. Contract cheating: Will students pay for serious criminal consequences?. Alternative Law Journal, 42(2), pp.123-129.

Ullah, F. and Al-Turjman, F., 2021. A conceptual framework for blockchain smart contract adoption to manage real estate deals in smart cities. Neural Computing and Applications, pp.1-22.

Whincop, M.J., Keyes, M. and Posner, R., 2018. Policy and Pragmatism in the Conflict of Laws. Routledge.

HI6027 Business and Corporate Law Assignment Sample

Assignment Brief

Purpose of the assessment (with ULO Mapping)

The purpose of the Group Assignment is to provide students with an opportunity to work in a collaborative environment in solving case problems by citing the relevant legal rules and cases and applying these to the facts of the case.

In this Group Assignments, Students are Required To:

- Critically analyses the main features of the Australian Legal System and the foundations of company law. (ULO 1)

- Critically analyses the basic principles of Contract, Tort, and privacy law and apply them in resolving legal issues arising in commercial transactions. (ULO 2)

- Research and advocate the appropriateness of the different types of business structures and the legal environment in which they operate and their advantages and disadvantages in various commercial contexts. (ULO 4)

Weight 40% - of the total assessments
Total Marks - 40%
Word limit Group Written Report of maximum 1,000 words
Due Date - Week 10

Submission Guidelines

? All work must be submitted on Blackboard by the due date along with a completed Assignment Cover Page.
? The assignment must be in MS Word format, no spacing, 12-pt Arial font and 2 cm margins on all four sides of your page with appropriate section headings and page numbers.
? Reference sources must be cited in the text of the report, and listed appropriately at the end in a reference list using the Adapted Harvard Referencing style.

Assignment Questions

Part A: Contracts Law Question (20 marks)

- Read the Contracts Law question below for assignment help

- In 1,000 words (+/- 10% is allowed), answer your chosen question using the IRAC method.

- Your answer must be supported by relevant Australian law and cases decided by Australian courts (preferably the High Court) and/or scholarly articles. A minimum of 6 genuine and relevant references are required for this part of the report.

- The full citations for all sources cited in your answer must be listed in a Reference list at the end of your report.

- In addition, any online sources cited in your answer and listed in your Reference List must include a valid hyperlink that allows access to the full text of the source.

Sierra Foxtrot Airport called for tenders for supplies of green seed for its runway surrounds, with a
closing date of 1 June.

The following tenders were submitted:

- Green Grow hand-delivered its tender on 29 May, which went into the tender box.

- Sow This! posted its tender on 15 May. This letter was received by Sierra Foxtrot on 17 May, by being submitted so early, one of the administrative assistants filed it with the intention of, later putting it in the box when she was properly organized.

- Grassy Plains posted its tender on 30 May. This letter arrived on 2 June but nevertheless
was put into the tender box.

It transpired that only two of the tenders were considered by the relevant Sierra Foxtrot officers. The administrative assistant forgot where she had filed the Sow This! tender and did not find it again until a week after the decision was made. The tender by Sow This! was actually the lowest and contained the most attractive features.

Green Grow’s tender was the next lowest, but Sierra Foxtrot had heard rumors about its unreliability. The airport, therefore, awarded the contract to Grassy Plains. Sierra Foxtrot posted a letter to Grassy Plains advising that its tender was successful. Unfortunately, this letter never reached Grassy Plains because it was destroyed by a disgruntled postal worker who had just been made redundant. Since it had not heard from Sierra Foxtrot, Grassy Plains instead committed its full stock of seed to another contract with a regional council.

Sierra Foxtrot became aware of the full situation concerning the tender by Sow This! and the position in which Grassy Plains now finds itself. It seeks advice concerning its contractual position in relation to all three tenders. Advise Sierra Foxtrot with reference to legal principles and rules taught on contract law.

SOLUTION

PART A

Issue

In the given case scenario, the issues are mainly concerned with contract law. In this, Sierra Foxtrot Airport has called for tenders for supply of seeds with the end date of 1st June. Three companies have submitted tenders, namely Green Grow, Sow This, and Grassy Plains. It is required to give advice to Airport in the context of all three tenders.

Rules and Regulations

A contract legally binds two parties; agreement is the most needed aspect to create a legal contract. A contract is created when the process of offer and acceptance is made, by communication between the parties who wants to enter in it (Harold, et al. 2016, p. 205(2)). In the case of Pharmaceutical Society of Great Britain v Boots, English Court of Appeal place give more focus on the business activities effect that an activity is classified as an offer in this situation. Offer must be distinct from the invitation to treat. The mere listing of price in and advertisement or on the product is not classified as an offer instead it is the invitation to customers to make an offer. Thus any statement or conduct classified as invitation to deal by the court must not be considered as an offer, if considered so it would be commercially inconvenient process. Invitation to tender also consist of offer within it (Pavlovich 2020, p. 448(1)) which might get rejected or accepted, hence it could also be said as invitation to deal. In the legal case of Blackpool&Flyde Invite for deal is invite for tender as under this situation offer has to be considered and opened for the tenders, accepted for the tender submission (Australian Contract Law 2019). Notably, the invitation to tender must also have separate offer along with it for the consideration of all the tenders submitted.

As communication is an important aspect of a contract, without this the contract cannot be created. The process of offer and acceptance create a contract so, when the offer is being communicated by the offeror to the offeree, and through the means of communication the offeree accepts the offer and the acceptance reaches to the mind of the offeror, creates a valid contract, which legally binds both parties under the agreed contract which was communicated between them (Ahmed 2018, p. 502(1)). The acceptance rule of postal, founded in the case of Adams v Lindsell (1818) 106 ER 250 is an exception rule related to the communication, that when the acceptance of offer reaches to the mind of the offeror it is considered to be an efficient communication. According to this rule when the mode of communication is nominated by the offeror, say by post it is been nominated, so when the acceptance letter is posted by the offeree, but not to be considered at some another date when the offeror received the acceptance, is considered as an effective acceptance. As the acceptance is expected to be posted so the offer will be formed at the time and place when the acceptance would be posted according to the legal rule of postal acceptance. This rule will only be applicable or applied if the offeror receive the acceptance until that it is not intended by offeree to enter into legal contract. If acceptance is not received the rule will not be applied and the contract will not be formed (Tucker 2020, p. 2365(1)).

The postal rule of acceptance is being highlighted in Australia more than in any other common law authority. As per the case of Tallerman & Co Pty Ltd v Nathan’s Merchandise (1957) Dixon CJ and Fullagar J states, as per usual norm contract is not created until the letter of acceptance is received or being communicated to the offeror from the offeree. The contract is not created until it is being concluded that the offeror has examined that his offer would be accepted by this act and it could not be justified by the completion of the posting of acceptance letter (Postal Acceptance Rule 2021).

Application

Usually, invitation to tender is not considered as offer obliging the principal to accept the minimum or any tender, as it is generally the only invitation to negotiate with the individual who respond to the invitation and not considered as offer to build a contract with the lowest tender or with any other. In the given case scenario, Airport is not bound to accept the offer of the minimum tender; therefore, they could choose to make contract with anyone. In the context of Green Grow, it has been noticed that, Airport had perceived rumors with respect to unreliability and therefore they do not want to make contract with Green Grow. In the given situation, there is not any contract has been formed between them and so not any contractual liability takes place. Further, in the context of Sow This, it has submitted tender application in timely manner and also it is received by Airport, but such tender has not been considered by the Airport, and therefore there is also not any contract has been formed.

At last, in the context of Grassy Plains, it has been seen that, tender has been submitted within time limit but it was reached at 2 June. Since, by application of postal rule, it can be said that, date of communication would be 30th May and therefore it is within time. Further, Airport has also awarded tender to Grassy Plains, and letter of acceptance has been posted by Airport. However, it should be noted that, actually such letter has never been received by Grassy Plains as it was destroyed and in the absence of any actual communication, there was not any contract has been formed between Airport and Grassy Plains. Therefore, Grassy Plains was eligible to make contract with another party such as regional council.

Conclusion

The conclusion could be drawn from above analysis is that, there is not any contract formed between Sierra Foxtrot Airport and Green Grow, Sow This, and Grassy Plains, and therefore not any contractual liabilities take place. 

REFERENCES

A Pavlovich (2020), ‘Reasonable Offers’ As a Defence to Unfair Prejudice Petitions: Prescott v Potamianos, Modern law review, 83(2), pp.443–450.https://doi.org/10.1111/1468-2230.12505

Australian Contract Law (2019). (Online). Available through <https://www.australiancontractlaw.info/law/agreement>[Accessed on 31st August 2021]

C Harold, et al.(2016), Investigating the Effects of Applicant Justice Perceptions on Job Offer Acceptance, Personnel psychology, 69(1), pp.199–227.https://doi.org/10.1111/peps.12101

L Tucker (2020), FROM CONTRACT RIGHTS TO CONTACT RIGHTS: RETHINKING THE PARADIGM FOR POST-ADOPTION CONTACT AGREEMENTS, Boston University law review, 100(6), pp.2317–2366.https://www.bu.edu/bulawreview/files/2021/01/TUCKER.pdf

M Ahmed(2018). The nature and enforcement of choice of law agreements, Journal of private international law, 14(3), pp.500–531.https://doi.org/10.1080/17441048.2018.1525062

Postal Acceptance Rule (2021). (Online). Available through <https://sklawyers.com.au/dictionary/postal-acceptance-rule/>[Accessed on 31st August 2021]

Constitutional Law Assignment Sample

Your essay must be submitted by 12 pm, 19th November 2021

Qestion

Answer only one of the following two questions.

Either:

‘The rules that allocate and control governmental power in the United Kingdom are diverse in nature, sometimes uncertain in content and nearly all of them are easy to change. As a result, it is doubtful that there is such a thing as the “constitution of the United Kingdom.”’

Critically analyze this statement.

Or:

‘The reliance of the UK constitution on conventions is both a defining feature and a fundamental weakness. While they are supposedly binding, conventions cannot effectively proscribe “unconstitutional” behavior and their content and enforcement is often at the mercy of executive whim.’

Discuss

Note the following carefully:

- The required length of these essays is no more than 1,500 words including footnotes but excluding the bibliography.

- Essays should be word-processed and double-spaced.

- Please ensure that the name of your TUTOR – the person who leads your tutorials – is clearly indicated on your essay.

- See guidance on essays in the UK Constitutional Law module handbook, in the Undergraduate Handbook on essay writing, as well as in the section below.

- Do NOT start to write your essay before reading all sets of guidance carefully.

UK Constitutional Law Formative Essay Guidance for assignment help 2021-22

Your formative essay is due to be submitted on the 19 the November. Below is some guidance which you may find useful.

Knowledge

Preparation of a formative/summative essay begins long before you consider writing a specific essay. Lectures and – more importantly – your preparation and participation in tutorials are central to developing an understanding of the topics in question. The core preparation for any kind of written work on a topic is therefore to know and understand the topic. This means:

(i) that you should be able to outline and describe the core features of a particular issue (e.g. constitutional conventions) using evidence to support your points (e.g. conventions are binding rules of ‘constitutional or political ethics’ (Dicey); which will not be enforced or defined by the courts ((R (Miller) v Secretary of State for Exiting the European Union); but which may be recognized in the course of adjudication (Attorney-General v Jonathan Cape); etc., etc.);

(ii) that you should have a good understanding of the broader context within which the issue operates (e.g. conventions complement the constitution’s legal elements (Jennings); conventions often influence how prerogative powers are exercised (Dicey); they form a core reason why the constitution is said to be unwritten (Dicey) and ‘political’ (Griffith); they have been, in some instances, ‘codified’ in recent years (Ministerial Code, Cabinet Manual, Sewel Convention), etc., etc.);

(iii) and that you should have a reasonable appreciation of the various critical perspectives on a given topic (e.g. difficulty pinning down the precise meaning/requirements of some conventions (Marshall, though see Jennings’ test and that some conventions – e.g. re granting Royal Assent – are both clear and consistently applied)); conventions policed by those whom they are meant to bind (e.g. Ministerial Code, see Tomkins); may be inconsistently applied in practice (Sewel convention is ‘normally’ to be observed), etc., etc. 1

From the perspective of preparing an answer to an essay question (i) will provide the backbone in terms of content, (ii) will provide depth, and (iii) will facilitate the kind of critical analysis that will lift a 2:2 level response into a solid 2:1. Your aim should be to build a bank of knowledge that you can deploy effectively (and flexibly) in response to the question with which you are confronted.

Planning and Preparation

It is trite to say so, but … ANSWER THE QUESTION. A vital element of essay technique is to respond to the specific question posed. This requires you to study the language/phrasing of the question carefully. Careful examination of the text of the question will ensure (i) that you are alert to all of the issues that are raised by the question and (ii) that you are able to structure your answer effectively in order to address those issues.

Take the following example from the 2016-2017 UK Constitutional Law Exam paper:

‘The debate over whether or not the UK constitution exists is a distraction from the really important task: undertaking a clear-eyed assessment of the strengths and weaknesses of the UK’s constitutional order as it operates in practice.’

Discuss

It should be immediately clear that this question raises a couple of issues worthy of distinct treatment. Therefore, you need to carefully break down the different

1 These examples are indicative, and absolutely do not provide a comprehensive map of the issues relating to constitutional conventions. elements / issues that the questions are asking you to address. For the question above, the issues are:

(i) the debate over whether or not the UK has a constitution;

(ii) the practical strengths and weaknesses of the UK’s constitutional order.

It should also be clear that – in order to tackle these issues effectively – you should address a number of implicit questions:

(i) what is a constitution?

(ii) why is there debate over whether the UK has one?

(iii) on what evidential basis are you judging characteristics of the UK constitutional system to be either strong or weak?

I would hope that it can be recognized that it is also implicit in the question that the debate over the existence of a ‘constitution’ is seen as being less important than the issue surrounding the practical strengths/weaknesses of the system as it operates in practice. You would therefore be expected to address this issue.

Structure

A good answer will almost always be the product of quite careful planning. Careful planning will almost always be the product of a careful reading of the question. Following a process through which you identify the core components of the question will often point towards a basic structural outline (and will often also point you towards those elements of the question which might require you to explain something, and those (perhaps uncertain or contested issues) which require discussion or analysis).

To take the first part of the above question as an example… on the issue of whether the UK has a constitution you can begin to plot a response:

- short intro – what are you going to demonstrate in this essay? You must tell us what you are going to argue in your essay and present the structure you have adopted so your reader can easily follow the development of your argument.

- characteristics of the UK system (no codified constitution, instead an amalgam of various ‘constitutional’ sources (statute, common law, prerogative, convention etc.));

- do these sources operate to discharge the general functions of a constitution (allocation/limitation of governmental powers etc.)?

- can these sources collectively be labelled (described as) a ‘constitution’? (see King, House of Lords Select Committee on the Constitution);

- do these sources satisfy those who argue for a more exacting definition of the term constitution? (e.g. Ridley); etc..

I should stress that the above is just one way to begin responding to this question, which seeks to emphasize the importance of paying attention to the language of the question posed. In responding to this particular question, once you reach the section which requires consideration of strengths/weaknesses of the UK’sconstitution/constitutional system you will have a good deal of scope to pick and choose from what you understand to be the best examples in support of your overall argument. Planning remains important here however, in order to ensure that your essay has a logical flow (and in order to ensure you don’t just end up writing directionless prose).

Ultimately your objective should be to structure (and evidence) a response which articulates/defends a position. The best responses will outline this at the outset – ‘in this essay I will demonstrate that…’ – and then build a logical argument in the subsequent paragraphs, before concluding.

Development and Analysis

Alongside a good structure, it is also important to fully develop – and evidence – the points you are seeking to raise. Compare these two short paragraphs (NB Harvard style referencing used in para 2 for convenience):
1: Conventions will not be enforced by courts. Though they are intended to be binding upon those to whom they apply, conventions must therefore be distinguished from the legal rules through which governments are regulated. This is not to say that courts will not recognize the existence of conventions, or that judges will not occasionally refer to the existence of a convention in determining legal liability. Rather, it is to say that accountability for the conventions will be a political matter.

And:

2: Conventions will not be enforced by courts (Dicey). Though they are intended to be binding upon those to whom they apply – ‘they have to be followed’ (Jennings) - conventions must therefore be distinguished from the legal rules through which governments are regulated. This is not to say that courts will not recognize the existence of conventions (Miller), or that judges will not occasionally refer to the existence of a convention in determining legal liability (AG v Jonathan Cape). Rather, it is to say that accountability for the conventions will be a political matter: ‘Judges therefore are neither the parents nor the guardians of political conventions; they are merely observers’ (R (Miller) v Secretary of State for Exiting the European Union).

Both paragraphs are reasonably accurate. Both say almost exactly the same things. But the second paragraph demonstrates a knowledge of the relevant case law and commentary, and – in the selected use of short quotes – is able to show to the reader a degree of specificity that the first paragraph cannot. Adding depth takes more time and words, of course, but will make a marked difference to the overall product. Combine depth with a logical structural backbone and you will be well on the way to writing a good essay.

Solution

Introduction

The constitution of the UK is unlike the constitution of other countries as it lacks a written or codified constitution. The essay aims to demonstrate the importance of conventions for the successful implementation of the constitution and the ways the UK constitution implementation is different from other countries. The essay will provide supportive evidence on the fact that uncertainty in conventions is one of the key factors affecting the proper implementation and scope of the UK constitution and about is unconstitutional behvaiour. The essay is presented on a systematic structure, in which the key parts are demonstrated- constitution and importance of the constitution, characteristics of UK constitution, the difference of UK constitution from other countries, the role of conventions in UK constitution and pros and cons of UK constitution.

Constitution and importance of constitution

A constitution is the body of principles and laws that guides the operation and organization of the state. The fundamental nature of the constitution is to support and shape the state, and the constitution is longstanding that is difficult to change. It is a social, legal, and political instrument that ensures human rights and develops the legal landscape. There are two forms of the constitution written and unwritten. In most countries, the written constitution is followed, and the least part of the legal structure is based on unwritten norms. The unwritten and uncodified nature of the constitution of UK indicates towards unconstitutional behaviour in the overall legal structure. In countries such as the UK, Israel, and New Zealand, the constitution is unwritten. The constitution provides the political and legal basis for enacting laws.

Characteristics of UK constitution

One of the first and most crucial characteristics of the UK constitution is it is mostly unwritten. The UK constitution is mostly unwritten, which means it is not documented well, not written, or precise, which is major reflection of its unconstitutional behaviour. There are some written parts such as parliamentary statues, historical documents, constitutional characters, and judicial decisions. UK constitution is evolutionary and is known as unbroken continuity of development. UK constitution is an example of a flexible constitution, and the flexibility element is based on adjustability and adaptability. In the constitution of the UK, the executive means the government who runs the country. The system of the executive is based on the parliamentary system rather than the presidential system. In the UK constitution, the executive is the main ruler who runs the country and holds lots of power. There are many debates on the UK constitution over time as it has an unwritten and uncodified constitution that works differently from other countries. Monarchy is one of the key components of the parliament. Queen in the parliament is the monarchy component and possesses an unchallengeable power. In the last century, there have been many acts of parliament that are considered on constitutional grounds to develop constitutional legislation. Many arguments are presented over time that the UK should have a written constitution, and the written constitution should be prepared in such a way that it engages everyone, not only based on the perceptions of parliamentarians and legal experts, but the British judiciary is somehow not able to consider the act of parliament as an unconstitutional behaviour. Elliot Bulmer and Paul Bickley (2019) presented their view on the fact that a written constitution is crucial to ensure a stable legal framework in a country, which indicates that UK system is somehow unconstitutional in nature. The recent tactical prorogation of government indicates an executive power manipulation. The case of Cherry/Miller v The Prime Minister (2019) is a joint constitutional case based on the power limitation of royal prerogative. The government's prerogative action in foreign affairs cannot be used to change the law.

Difference of UK constitution from other countries

The constitution of Britain is different from other countries' constitutions, which is basically the accumulation of conventions, statutes, treaties, and judicial decisions. The parliament enacts the law using the crown power, and the law enacted by the parliament is unchangeable by other bodies. The sovereignty of parliament is considered the key principle of the British constitution. In the UK constitution, the conventions are unwritten practices, and statutes are law and are the highest form of a law passed by parliament, which is one of the major examples of UK’s unconstitutional behaviour. There is no such document that reflects the UK constitution, so the politicians and lawyers rely on constitutional authorities. There are two key problems raised in such an uncodified constitution- easier to change at any time, which indicates instability, and difficult to know the exact state of the constitution. There are many constitutional reforms conducted in the UK constitution that indicate the flexibility in the constitution.

Convention is a key part of the UK's unwritten constitution

The key purposes of a constitutional convention are to develop and promote proposals for constitutional reforms. In the UK constitution, the convention is presented as an unwritten understanding regarding how the parliament should act. One of the conventions of the UK constitution is the sewel convention that is applicable when the parliament legislates on a specific matter. The UK parliament usually does not take such a step without relevant devolved institutions passing such consent motions. In the UK constitution, the uses of the convention are mostly for reform purposes, while in other countries, the use of convention is for other purposes too. The reforms in the convention model of the UK will be beneficial for the constitution. The British constitution has always been filled with contradictions, anomalies, and puzzles. The specification is one of the key issues in the UK constitution due to the lack of written convention. A written and proper structural model for the constitutional convention is necessary for the UK as the existing reforms that are made based on the unclear idea about the need for reforms require more clarity and to eliminate its unconstitutional behaviour. A fair and written constitutional convention will ensure that all the parts of the union are treated uniformly and fairly. The Democratic audit of 2012 in the UK indicates that coherent settlement in the UK is still lacking, which can create future problems in British democracy.

There are many opposing views regarding the proper constitutional convention in the UK. Chloe Smith MP rejected the constitutional convention idea by focusing on the fact that economic challenges are the top priority for the UK, so at the present moment, a change in the existing model of the convention is somehow difficult. There are other opinions that are presented against the constitutional convention, and most of them point towards the political realities to justify the fact. Political support is one of the key contributing factors for the proper implementation of constitutional changes, and in the UK, political support is somehow lacking. In other countries, constitutional conventions are successfully taken place due to strong political support. In the UK constitution, where the role of the executive is significant, the weak convention and unwritten constitution is a major problem for the overall legal framework as well as the roots of unconstitutional behaviour.

Pros and cons of UK constitution

There are different pros and cons of an unwritten constitution, like the UK constitution, which reflects whether the UK constitution is in urgent need of change or not. The key advantages of an unwritten constitution are- flexibility, dynamic, and evolving in nature. There are many disadvantages attached to the UK constitution as well, and one of the major disadvantages is UK constitution has a number of sources for reform, due to which it is less accessible and less transparent. The flexible nature of the UK constitution includes multiple interpretations, which creates uncertainty. The powers of judicial branches, executive and legislative branches are not well defined, which leads to conflict between different pillars of government, ambiguity, and uncertainty. Unwritten constitutions contain some difficulties as they are more reliant on the convention. A written constitution acts as an educative function and allows the general public to refer to and know about their constitutional rights. Brian Christopher Jones supports an opposite fact based on the importance of the written constitution and presents the view that there is no such huge difference between the written and unwritten constitution's performance. The UK constitution is based on conventions, legislation, common law, and parliamentary procedure. Even without the written constitution in the UK, parliamentary sovereignty is highly established, and no intentional lower ranking for the legislator and the statute takes place.

The governmental institutions in the UK are responsive and accountable to people, and the legislation in the UK system holds power. Despite several differences in the unwritten convention of the UK, it can be said that there are no such huge differences in terms of the performance of the constitution as well as its benefits on the overall legal system of the UK. In the UK constitution, parliament is the sole of the constitution, but in actual parliament cannot act solely as the main significant factor for the domestic constitution development. Despite having certain advantages of an unwritten constitution, the inconsistency and lack of transparency indicate that UK requires a written constitution to strengthen the legal control and develop the constitution based on individual needs rather than a guide of legal experts.

Conclusion

The fact presented in the essay indicates that even if the UK constitution has certain advantages, but a written constitution is more clear, transparent, and consistent compared to an unwritten and uncodified constitution. There are different advantages and disadvantages of an unwritten constitution, and the disadvantages of an unwritten constitution seem more peculiar in the UK constitution. The characteristics of the UK constitution are different in nature compared to the written constitution of other countries and it is unconstitutional in nature. There are facts presented in the essay that supports and are against the UK constitution. There are problems identified in the use of convention as well as the clarity of the constitution, and based on those facts, it can be concluded that the unwritten constitution of the UK requires a change for better constitutional implementation.

References

Bailii.org, 'Miller, R (On The Application of) V The Prime Minister [2019] UKSC 41 (24 September 2019)' (Bailii.org, 2021) <https://www.bailii.org/uk/cases/UKSC/2019/41.html> accessed 22 November 2021

Bamforth N, 'Current Issues in United Kingdom Constitutionalism: An Introduction' (academic.oup.com, 2021)

Blackburn R, 'Britain's Unwritten Constitution' (Bl.uk, 2015) <https://www.bl.uk/magna-carta/articles/britains-unwritten-constitution> accessed 22 November 2021

Bulmer E, and Bickley P, 'Do We Need A Written Constitution?' (Theos Think Tank, 2019) <https://www.theosthinktank.co.uk/comment/2019/10/24/do-we-need-a-written-constitution> accessed 22 November 2021

Hedling N, 'The Fundamentals Of A Constitution' (Idea.int, 2017) <https://www.idea.int/sites/default/files/publications/the-fundamentals-of-a-constitution.pdf> accessed 22 November 2021

Jones B, 'What’S So Great About A Written Constitution?' (The Atlantic, 2021) <https://www.theatlantic.com/ideas/archive/2020/10/written-constitutions/616628/> accessed 22 November 2021

Publications.parliament.uk, 'Do We Need A Constitutional Convention For The UK?' (Publications.parliament.uk, 2021) <https://publications.parliament.uk/pa/cm201213/cmselect/cmpolcon/371/371.pdf> accessed 22 November 2021

Renwick A, and Hazell R, 'Blueprint For A Uk Constitutional Convention' (Ucl.ac.uk, 2021) <https://www.ucl.ac.uk/constitution-unit/sites/constitution-unit/files/ccblueprint-2.pdf> accessed 22 November 2021

Ucl.ac.uk, 'What Is The UK Constitution?' (The Constitution Unit, 2021) <https://www.ucl.ac.uk/constitution-unit/what-uk-constitution/what-uk-constitution> accessed 22 November 2021

LAW6000 Business and Corporate Law Assignment 2 Sample

Assignment Brief

Length: 2000 words +/- 10%

Learning Outcomes

This assessment addresses the following subject learning outcomes:

a) Demonstrate a sound comprehension of the essential elements required to create, manage and discharge a contract and assess the remedies available for breach of a contract;

b) Examine legal principles related to the creation and operation of various forms of business organizations and critically evaluate their effectiveness across a range of business scenarios.

c) Explain the processes for incorporating, managing, and winding up a company, including key director duties, the importance of the Corporations Act 2001, and the role of regulatory bodies.

d) Evaluate the role of agency in contract formation for different business vehicles and identify the associatecd risks such as vicarious liability for negligent acts.

e) Employ legal skills (statute law and case law), critical reasoning, and make informed judgments as to likely legal outcomes of a range of business scenarios.

By 11:55 pm AEST/AEDT Sunday of Week 9 (Module 5.2)

Weighting: 25%

Total Marks: 100 marks

Context:

This assessment allows students to solve practical problems that arise from a fact scenario and to give appropriate advice to clients.

Instructions:

There are five case studies for case study assignment help you are required to critically analyse. With respect to each case study:

? Identify the legal issue(s) arising from the facts of the casestudy
? Identify the appropriate legal rules that requires discussion in the case study
? Apply the law to the facts of the case study
? Reach a conclusion/ give practical advice to your client.

Your analysis should refer to appropriate cases and statutes and be referenced using the APA
Reference system.

Submission is through SafeAssign by 11.55 AEST Sunday of Week 9 of the relevant trimester

Question 1 (20 marks)

James has recently decided to open up a consultancy business near the city. He has identified appropriate premises and immediately gets into negotiation with Bradley, the landlord. He wishes to lease the commercial property for a period of five years. James proposes to demolish some of the interior walls to allow for better lighting and to then fit out the space to suit the modern image that he desires for his business. James and Bradley agree that the work would be completed in one month. It is agreed that once a lease agreement is signed James can commence the work in preparation to move into the premises.

James signs his part of the agreement and sends it to the offices of Bradley’s solicitors. He then commences the work to demolish the walls and fit out the premises. Three weeks later as James was about to complete the fit out of the premises, he learns that Bradley has yet to sign the agreement and has in fact entered into negotiations with Simon with a view to leasing the premises to Simon.

James has completed a substantial amount of work and is preparing to move in. He has in fact printed all his stationery. He approaches Bradley who says that there was in fact no contract and that he is likely to lease the premises to Simon. James is distraught and seeks your advice.

REQUIRED:

With reference to relevant legal principles, use the IRAC legal problem-solving approach to advise James on whether he is able to enforce the agreement with Bradley and the remedies that may be available to him.
Use appropriate case law in support of your answer.

(20 marks)

Question 2 (20 marks)

Elizabeth is a major shareholder in Millennial-Relics Pty Ltd. Elizabeth and has noted that the company maintains the old-fashioned ‘memorandum of association’ which has been prepared for Millennial Relics Pty Ltd.

The objects clause as drafted, limits the objects of the company to the development, manufacture and sale of motor vehicle batteries. Elizabeth believes that the research work that Rahim is doing (and future technology which may be developed as the full implications of Rahim’s work are realized) may have spin- offs into a number of related areas including dynamos for driver-less electric cars.

Elizabeth has spotted an opportunity that may allow the company to enter into a contract with like-minded companies for the development of state of the art dynamos that will be compatible with all types of electric cars. She is however concerned that the narrowness of the ‘memorandum’ may hamper the company’s ability to move into the emerging lucrative area and also the development and commercial exploitation of the dynamos which the company’s ongoing research may uncover may not be pursued lawfully.

Elizabeth has read that there is no legal reason to have a memorandum or articles, even if they are now called a corporate constitution. The company’s research may also expose potentially exploitable products or secret processes in other areas related to artificial intelligence. When Elizabeth raised these concerns with the company’s other shareholders, they told her that they had been advised by the lawyers that this was the standard form for their companies, and that there was no cause for concern. Elizabeth is not convinced.

REQUIRED:

With reference to relevant legal principles use the IRAC legal problem-solving approach to advise Elizabeth of the company’s position regarding any new contracts that it may enter in connection with the development of dynamos for driver-less electric cars and also explain how the replaceable rules may be of use to the company in the future. (20 marks)

Question 3 (20 marks)

In December 2020 Greg Napole was driving along a busy street with his spouse and two children in the car.
As they approached a busier section of the road Greg had to slow down significantly and as he was driving past a nearby park, a southern blue gum tree fell onto the car that he was driving killing wife Marsha and seriously injuring his two children and himself. Greg and his two children were hospitalised for two months with several broken bones. Upon recovery, Greg learnt that the tree had fallen because its root system had been destroyed by underground water leaking from a water channel that had been constructed by the local council, City of Small-town Council, in the year 1998. Greg is keen to have the council compensate him for the injuries he and his children have suffered and for the loss of his wife.

The local council has denied liability. They claim not to have a duty of care to Greg and his family. Greg wishes to pursue his claim and has now come to you for advice.

REQUIRED:

With reference to relevant legal principles use the IRAC legal problem-solving approach to advise Greg as to
whether he would be successful in negligence against City of Small-town Council. Please explain fully, using relevant case law. (20 marks)

Question 4 (20 marks)

Jaswant and his two friends, Davinder and Lachlan have been in a partnership for the last three years. Their business has grown and they now wish to expand into other states and territories. Their other friend Nicholas is a solicitor and he advises them to incorporate their business under the Corporations Act 2001 (Cth) to take advantage of the principle of separate legal entity and to allow them to trade in any state without having to comply with local partnership legislation. Jaswant, Davinder and Lachlan have brought in some of their own assets into the business and their partnership agreement specifically states that the assets will remain their individual property. They are concerned that they may not be able to do this after incorporation. They are also concerned about whether they will be able to contract with the company for the provision of some of the services the national business will be delivering. They each have specialist skills and are hoping to be remunerated by the business for their skills.

The three friends have also agreed to appoint Nicholas as the company solicitor and would be the only solicitor used by the company. This would be set out in the constitution that Nicholas would draw for the company. Lachlan is however concerned that if their relationship with Nicholas becomes strained, it may be difficult to use another solicitor if he chooses to enforce the constitution. Lachlan now approaches you for advice.

REQUIRED:

With reference to relevant sections of the Corporations Act 2001 (Cth) and appropriate case law, use the IRAC legal problem-solving approach to advise Lachlan of the effect and consequences of converting their partnership into a company and further whether Lachlan would be able to enforce the envisaged constitution if they wanted to use a different solicitor. (20 Marks)

Question 5 (20 marks)

Rahab is an executive working for a large pharmaceutical company which has recently transferred her to an overseas branch to manage the roll out of a global vaccine. She decides to leave the apartment Where she lives and to put her household goods in storage. She contacts a company known as KingStore Pty Ltd, Which specialises in the storage of goods. The company agrees to store Rahab’s goods for the period she will be away.

Before signing the contract of storage, Rahab asks about the condition of the building in which her goods will be stored. She has heard about recent floods in the state and just wants to be sure that her be safe. The company manager replies: “Our building is in excellent condition. We built it only two years ago and we used the best building materials. Your goods are safe with us.”

Rahab decides to enter into a written contract with the company and stores her goods with them. The contract which she signs does not, however, say anything about the condition of the building, nor does it make any reference to the other statements made to Rahab by the company manager concerning the quality of the building materials.

Some months later, the company telephones Rahab at her new place of work and advises her that her goods have been badly damaged due to recent heavy rainfall which caused water to enter the building in which Rahab’s goods have been stored, and to damage them. The reason for the entry of the water into the building is that the building was badly built and poor building materials were used. As a result, the building’s foundations sank when the heavy rainfall fell, thereby causing a large gap between the bottom of the doors to the building and the floor of the building where the goods were stored.

Rahab now wants to sue the KingStore Pty Ltd for the loss she has incurred as a result of the damage to her goods.

REQUIRED:

With reference to relevant legal principles use the IRAC legal problem-solving approach to advise Rahab
Of her legal position at common law against the storage company and discuss what remedies would
flow from them. Give full reasons and use any relevant case law. Do not consider any statutory rights.

Solution

Question 1

Issue

Whether James can enforce the agreement entered with Bradley. If yes, then what are the remedies that can be availed by the James?

Rule

In Australia, in order to formulate a legal binding contract there must be presence of all the contract essentials which includes an offer, an acceptance, a consideration, the legal intention of the parties and the legal capacity of the parties. When there is a valid contract, then, the parties must comply with the contractual terms (Wong, 2017).

Now, at times an agreement is established between the parties which is subject to the formation of some formal contract. At times one party to the contract signs the agreement but the other party did not do so and decides to finalise the contract at some future time or date. In Masters v Cameron (1954) it was held that if the intention of the parties portrays that they wish to abide by the terms of the agreement, then, it makes no difference whether a formal contract is prepared or to be prepared at some future date or that the agreement would be signed at some later event. As per Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) in such situations, there is a valid contract amid the parties irrespective of the fact whether a final draft is executed by the parties or not. If there is lack of intention, then there is no contract amid the parties. (Tolhurst, 2011)

Application

James wants to take on lease the premises of Bradley for five years. James and Bradley agreed that once the lease is signed amid the two then James is permitted to carry out the repair work within the premises which would take a month to complete and then move into the premises. James signs his part of the agreement and sends the same to the solicitors of Bradley, however, the same was not signed by Bradley. James commences the work and after three weeks he learns that Bradley is not willing to sign the agreement with him, rather, he is in negotiations with Simon.

It is submitted that by applying Masters v Cameron, the intention of both James and Bradley depicts that they intend to enter into a contract immediately as James was permitted to carry out the work at the premises and can then enter the vicinity. Also, James has signed the document and had completed his part of the obligation of the contract. Thus, the head of the agreement is intended to be abide by both the parties and thus Bradley cannot deny the enforceability of the contract amid James and Bradley.

Conclusion

It is thus concluded that there is a binding contract that exists amid James and Bradley and if Bradley did not abide by the agreement, then, it is considered as a breach of contract and James is liable to seek the expenses incurred by him for the repairs and compensation and damages for the stationery.

Question 2

Issue

Whether Elizabeth can enter into contracts which are beyond the object clause of the constitution of the company? How replaceable rules can be used in future?

Rule

Salomon v A Salomon & Co Ltd [1896] when any company is incorporated, then, the same acquires the status of a separate legal entity, that is the acts of the company are considered its own acts and the officers are not held liable for the same. In common law, as per Ashbury Railway Carriage &amp; Iron Co v Riche (1875) the acts which are beyond the objects or powers of the company are held to be ultra-virus and thus not enforceable. However, as per section 125 of the Corporation Act 2001, no act by the company can be termed as ultra-virus even when the same is beyond the powers (object) of the company.Further, if there is no constitution, then, as per section 135 of the Act, the company can be run by the replaceable rules set under section 141 of the Act.

Application

As per the facts, Millennial-Relics Pty Ltd is a company in which Elizabeth is the major shareholder. The company follows its Memorandum of association. The object clause of the company only permits the company to the ‘development, manufacture and sale of motor vehicle batteries’. Elizabeth wants to expand the operations of the business to dynamos of driver less electric cars upon which Rahim is doing research but is restrained by the object clause.

It is submitted that if Elizabeth enters into contracts that are beyond the object clause, then, such contracts are not invalid as per section 125 of the Act 2001 and the company must honour the same.
Elizabeth can rely on the replaceable rules made part of section 141 of the Act to run the company in future.

Conclusion

It is concluded that even if Elizabeth enters into the contract that is beyond the object clause, still such contracts will held to be valid in the eyes of law.

Question 3

Issue

Whether the local council can be held negligent for the losses caused to Greg and his family?

Rule

When any defendant undertakes any acts or omission, then, he must make sure that no loss is caused to the plaintiff provided the plaintiff is his neighbour. To make any defendant negligent the main elements are:

i. The defendant is under duty to provide care to every plaintiff with whom he is sharing proximate relationship and who is reasonably foreseeable. The defendant must make sure that no harm of any kind should be caused to the plaintiff because of his acts and omissions;

ii. That if the duty of care is not comply with by the defendant, then the duty is held to be breached (Palsgraf v. Long Island Railroad Co);

iii. It is necessary that because of the breach, there should be some harm caused to the plaintiff which is not remote and which is caused because of the acts of the defendant (Home Office v Dorset Yacht Co Ltd [1970].

Application

Greg Napole was driving along a busy street along with his spouse and 2 children in December 2020. While he was driving one tree fell on the car killing his wife and causing injuries to him and his children. They took medical aid for 2 months.It is submitted that the local council can be held negligent because:

i. It is the duty of the local council to ensure that any acts that are undertaken by them should not cause any kind of harm to any person who are their neighbours.

It is submitted that Greg was a person who was using the road like any other travellers and the local council is aware of the same. Thus, Greg and local council are neighbours of each other and Greg is reasonably foreseeable. Thus, Local council owns the duty of care towards Greg and any person who was travelling with him;

ii. The duty of care was not complied with by the council as the tree that was fallen on the car of Greg was because of root system of the tree was destroyed because of the water leaking from the Channel that was constructed by the local council. Thus, the level of care that must be taken by the council was met while making the Channel. There was breach of duty of care.

iii. The loss that is caused to Greg was because of the breach on the part of council and the loss is not remote in nature.

It is thus stated that the local council is negligent towards Greg and his family and the council must compensate Greg for the losses so caused to him.

Conclusion

The council is negligent towards Greg and his family and thus must compensate for the losses so caused to him.

Question 4

Issue

Advice Lachlan of the effect and consequences of converting the partnership into a company?Whether Lachlan would be enforcing the constitution if they wish to use a different solicitor?

Rule

As per section 124 of the Corporation Act 2001, upon incorporation, a company has all the powers that of an individual including the power to make contracts.

Application

Jaswant and his friends, Davinder and Lachlan are sharing partnership relationship from past 3 years. If a company is established then:

The main effects of a company

i. The main effect is that the company will become a separate legal entity, that is, the acts of the company will be considered to be its sole acts and no officer will be held personally liable for the same (Shum, 1991).
So, if the three friends operates a company, then the actions taken by them will be on behalf of the company and they will not be held personally liable for the same.

ii. Since the company will be a separate legal entity thus it has the potential to enter into contractual relationships and thus itscan contract for the services of the national business.

iii. Since all the three have special skills, thus, they can be employed by the company and will be reimbursed by way of salary by the company.

iv. Nicholas can be appointed as the solicitor of the company by entering into a contract of employment.

The main consequences of a company

i. If the three friends establish a company, then, the assets that are brought by them in the business will become the property of the company and will be used to settle the liabilities at the time of winding up. Thus, they cannot treat the property as their own.

ii. The company has to pay taxes which will be ultimately borne by the officers;

iii. There are lots of paper work and time consuming in the formation of the company.

Conclusion

It is thus concluded that establishing a company will benefit the friends as the company will be a separate legal entity and has perpetual succession. The company can make contract but it will be lots of money and time that will be invested in its formation. Also, if Nicholas is appointed as lawyer then he will be an employee and he can be removed by terminating the contract of employment.

Question 5

Issue

Whether Rahab will be able to sue the King Store Pty Ltd for the losses so caused to him because of the damage of the goods by rainfall?

Rule

In common law, if any one party to the contract makes a false statement with the intention that the other party enters into a contract with him, then, the contract suffers from misrepresentation and is not enforceable by law. Any aggrieved party has the right to terminate the contract and sue the other party for damages as the contract was based on misrepresentation (Beever, 2007).

Application

Rahab was transferred to an overseas branch to deal with the roll out of a global vaccine. She left her house and put the goods in storage of a company King store Pty Ltd. The company specializes in storage and assured Rahab that their building is excellent and was built 2 years ago and is made with the best building material. That the goods will be safe with them.

Rahab decided to store the goods, however, nothing regarding the promises made by the company was mentioned in the contract. After few months, the company informed Rahab that the goods so stored were damages because of the heavy rain. The reason for the damage was that the building was badly built with poor quality material.

It is submitted that when the contract was made then the company knowingly made a representation that the building wasw made with a good quality material which in fact was not true. The false statement was made with the intention that Rahab enters into a contract with them and thus there was a misrepresentation made on the part of the company towards Rahab (Ciro et al., 2019).

So, Rahab can terminate the contract and seek damages.

Conclusion

It is thus concluded that Rahab can sue the company and seek damages for the losses so caused as the contract that was made amid them was based on misrepresentation.
 

Bibliography

Books/Articles/Journals

Beever, A. (2007). Rediscovering the law of negligence. Hart. https://lesa.on.worldcat.org/oclc/496273579

Ciro, T., Goldwasser, V., & Verma, R. (2019). Law and business ebook (5th ed.). Oxford University Press Australia. https://ebookcentral-proquest-com.torrens.idm.oclc.org/lib/think/reader.action?docID=5979408&ppg=1

Shum, C. (1991). Business associations : an introduction to agency, partnership and company law (2nd ed., Ser. Hku press law series). Hong Kong University Press. https://lesa.on.worldcat.org/oclc/650877514

Tolhurst, G. J., Carter, J. W., &Peden, E. (2011). 'masters v cameron' - again! Victoria University of Wellington Law Review, 42(1), 49–64.https://lesa.on.worldcat.org/oclc/4822652359

Wong, A. (2017). Company law. (E. Chapple, Ed.) (First). Wiley. https://lesa.on.worldcat.org/oclc/1040039461

Case laws

Ashbury Railway Carriage &amp; Iron Co v Riche (1875) L.R. 7 H.L. 635

Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622 (SC).

Donoghue v Stevenson [1932] UKHL 100;

Home Office v Dorset Yacht Co Ltd [1970] UKHL 2, [1970] AC 1004

Masters v Cameron (1954) 91 CLR 353.

Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 162 N.E. 99

Salomon v A Salomon & Co Ltd [1896] UKHL 1.

LAW6001 Taxation Law Assessment 2 Sample

Task

Summary In response to the issues raised in the case study provided, research and develop a 2000-word tax advice that addresses (a) assessable income (b) allowable deductions (c) calculations of income/deductions and (d) your conclusions and recommendations. Please refer to the Task Instructions for details on how to complete this business law case study help.

Context This assessment assesses your research skills, your ability to synthesise an original piece of work to specific content requirements and your ability to produce a comprehensible piece of advice which addressing the client’s needs. It also assesses your written communication skills. The ability to deliver to a brief is an essential skill in the workplace. Clients may well approach advisors seeking a combination of specific information needs and advice on the tax implications of a particular arrangement in the Australian tax jurisdiction. It is therefore important to be able to identify all the issues presented by an arrangement and to think about the potential consequences of different approaches to addressing the client’s needs.

Task Instructions

• Your case study needs to identify and discuss the tax implications of the various issues raised.

• A report (word document, approx. 2,000 words) must be submitted for the calculations of the assessable income; allowable deductions and taxable income of the taxpayer including identifying and discussing them. E.g., how the amounts of income & deductions have been derived. If any receipts and payments are not assessable or deductible, the reasoning for non-inclusion of these in assessable income or deductions as per relevant legislation or cases.

• Critically analyse the following case study. With respect to each task:

• Review relevant case law and legislation (ITAA1936, ITAA1997)

• Apply the law to the facts of the case study

• Reach a conclusion/ give practical advice to your client.

• You will be assessed in accordance with the Assessment Rubric.

• This case study must be presented as an individual effort. The case study requires individual research. It is expected the student will survey the relevant literature, including decided cases, and select appropriate additional resources.

• Your case study assignment help is not just a list of answers. Your reasons for your conclusions and recommendations must be based on your research into the relevant cases and legislation.

• The format of the report should be a business report and using APA referencing style

Case Study:

Comprehensive Individual Tax Return Advice Question 1 On 17 July 2020, Ken Fong acquired a restaurant as a going concern, paying $850,000 for the land and buildings, plant and equipment and goodwill. Upon taking possession Ken realised that the plumbing and electrical systems required repairing. In August 2020 he spent $27,000 for the repairs so that the restaurant could open for business. Shortly after opening, the tiles in the kitchen cracked and fell off the walls. Ken had them replaced, restoring them to their original condition, costing $6,400. In November 2020 Ken decided to replace all the kitchen cooking equipment in order to reduce the likelihood of having to replace it in the future. The cost was $30,000. At the same time Ken entered into a contract to have the equipment regularly inspected and serviced. The contract fee was $1,500 per year. At that time, he also decided to pay a pest control company $2,000 a year to rid the restaurant of pests and ensure health and safety standards were maintained. In January 2021 a violent summer hail storm caused damage to the roof of the restaurant. Instead of making repairs, Ken decided to replace the entire roof along with the roofing insulation and ducted air conditioning. The roof replacement cost $32,000 and the insulation and air conditioning added another cost of $7,400. At that time Ken contracted builders to construct an additional room to cater for increased patronage. The cost of the addition was $26,800. Required With reference to relevant legislation and cases, advise Ken on the deductibility of the expenditure incurred on repairs and improvements to his restaurant in August 2020, November 2020 and January 2021.

Question 2

Maurice is an individual tax resident of Australia for tax purposes. He has the following assets:

• His home was acquired on 20 February 1989 for $140 000. The home was never used for any income producing purpose. The estimated market value of the house on 1 March 2018 is $310,000

• Shares in FUL Pty Ltd acquired on 10 April 1984 at a cost of $15 000.

• Furniture acquired on 20 May 2010 for $10,500.

• Yacht acquired on 9 July 2020 for $25,000

• Block of vacant land acquired on 20 June 1997 at a cost of $100 000. The estimated market value of the vacant block on 15 May 2021 is $475,000. Maurice subsequently sold the following assets during 2020-2021 (arm’s length transactions):

• His home was sold on 1 March 2021 for $325,000

• The FUL Shares were sold on 15 March 2021 for $19,000

• The furniture was sold on 1 May 2021 for $5,000

• The yacht was sold on 29 June 2021 for $37,000

• The block of vacant land was sold on 30 May 2021 for $465,000. Maurice also has a carry forward capital loss of $12,500 from the sale of an antique drumkit and a carry forward capital loss $5,000 from the sale of underperforming shares in an earlier income year. Maurice is not a share trader. Maurice has also incurred interest expenses on the vacant block of land of $110,000 over the time he owned the vacant block. He never used the vacant block for any income producing purpose. Required With reference to relevant legislation and cases calculate the net capital gain or loss as applicable for Maurice for the 2020/21 income year. You must show all possible methods to calculate capital gains (you must reference each step in the process to the relevant legislation. The numbers in the calculation will not be sufficient) and identify reasons why inclusion/exclusion of all capital gains tax assets

Solution

Question: 1:

Facts and Issues of The Case:

In the current case, the taxpayer has made various repairs and maintenance from time to time to the business organization, the taxpayer has spent some money on pre-starting of the business, during the course of the business, and after the business. Therefore the question in this context arises that whether the expense of the repairs is deductible against the income of the taxpayer or the expense of the repairs is not a deductible expense (Razak, 2020).

Legislation:

In the income tax assessment act, 1997 there are different provisions are there that allow the business expenditure as a general deduction or a special deduction. Any expense that is incurred by a taxpayer for the purpose to meet their repair expense is deductible from the gross income of the taxpayer to get the assessable income of the taxpayer. Tax ruling 97/23 (Mcgregor Lowndes & Crittall) it is clearly established that the tax deduction in case of repairs expense is not admissible if the expense of the repairs is of a capital nature. The assessable income of any person means the income on which the tax is calculated the gross income is income earned by the person (Weltman, & J.K. Lasser Institute 2018).

The different Para of the same ruling provides an explanation and difference between the repairs and improvements. According to the tax, the ruling repair is the expense that incurs by the business for the purpose of restoring the functional efficiency of the organization and on the other side, the improvement in the asset refers to those expenses that incur for the purpose of increasing the functional efficiency of the asset. The expense related to the improvement of the asset is the capital expense and therefore the expenses are called the capital expense and therefore those expenses are not allowed to deduct while calculating the assessable income from the gross income (Property investors benefit from 'repair' year-end deduction. 2017).

If any amount is expenses or incurred as initial repairs of the asset, that is the repair that incurs before bringing such asset into use then such repairs have a nature of the capital repairs and therefore such expense of capital repairs incur as an initial expense is not allowed as a deduction. If any damage, the defect has an existence at the time of acquisition of the asset than in such case the repairs incur for removal of such defect, the damage is considered as the capital nature repairs and therefore such expense is not allowable as a deduction. Any expense on repairs of the organization if incurred for the purpose of complying with the government bodies and government regulations than in such case the expense of repairs is of revenue nature and deduction with respect of such repairs expense is allowable to the organization.

Applicability:

Expenditure for the month of august

During the month of August, the taxpayer incurs two major expenses for the asset as repairs the description and allowability of such expenses are as follows-

(i) The taxpayer incurred $ 27000 On the political and plumbing expense of the asset such damages and defects of the property were in existence when the asset was acquired and also the damages result from the previous owner and not with the actions of the Taxpayer. Since the expense of $ 27000 is an initial repair expense therefore according to the applicable laws such expense should be capitalized as a part of the cost of the asset and depreciation is allowable thereof (Anonymous. 2020).

(ii) Expense of $ 6400 Incurred for wall and kitchen – such expense is a revenue expense because they are damaged with the act of taxpayer and this is a revenue expense and revenue repairs that are associated with the building and therefore such expense is not considered a capital expense and deduction with respect of the same is allowable.

Expenditure incurred for November 2020

During the month of November, the taxpayer has incurred three types of repairs expense those are as follows-

(i) In the current month the taxpayer has incurred the expense of $ 30000 for the replacement of the cooking equipment that will increase the efficiency of the operations of the organization, therefore such expense is not repaired they are called as improvement and therefore such expense is capitalized in the books of accounts and depreciation is allowed on the same.

(ii) $ 1500 has been paid for the equipment inspection, equipment inspection is a revenue nature expense and therefore it can be considered as the revenue expense and charged against the income of the business organization, and deduction si allowed of the same expense.

(iii) For a compilation of health and safety standards the restaurant must conduct a pest control for every year, therefore such expense is a type of revenue expense and deduction in respect of the pest control expense is allowable for the business (Batter, &Biscopink, 2019).

Expenditure in the month of January

In the month of January, two major expenses is incurred, $ 32000 is incurred for the purpose of replacement of the roof, replacement of the roof is a major expense of the organization. The expense is treated as an improvement and such expense is allowed to be added to the cost of the asset and proper depreciation has been charged on such asset.

Expenditure incurred for the purpose of construction of additional rooms are a type of improvement of the building. and therefore such expenses incurred for the purpose of construction of additional rooms are of a capital nature and deduction is not allowed for the same expense incurred for the purpose of construction of additional rooms.

Conclusion:

From the above discussion, it can be concluded that the following amount is considered as an allowable deduction or the following amount is not allowed as the allowable deduction

Question: 2:

Legislation related to the case:

Definition of capital Gains – Capital gains and capital losses are gains and losses that are arrived in the capital gain tax event of the capital gain assets, if during the capital gains event if consideration price of the capital asset is higher than the cost of the capital gain asset or the indexed price of the cost of the capital asset, on the other side of the cost of the asset or the index price of the cost of asset if higher than the consideration of the capital asset, than there will be a capital loss of the assets (Healy, 2017).

Any capital asset that is acquired before 20 September 1985 or specified under the exempted assets is not liable to be any Capital gains tax.

Steps to calculate the capital gain or loss- For the purpose of calculation of the capital gains tax, the capital gain or loss should be first calculated, there are different steps that must be followed for the purpose of calculation of the capital gain or loss from the capital asset-

Step 1: the identification of the fair value of consideration is the first step for calculation of the capital gains, in the case of sale the exchange amount is the FVOC, or in the case of an exchange, the fair value is considered as the fair value of the consideration.

Step 2: After identification of the consideration price of the asset, the second step for the purpose of calculation of the capital gain is to calculate the cost base of the asset. The cost base of the asset is derived by including the acquisition cost of the asset along with any indexation if required. For the assets acquired before 20 September 1999 the indexation method is applied for the purpose of increasing the cost base (Pattison-Gordon, 2017).

Step 3: After identifying the proceeds of the capital assets and identification of the cost base of the asset. The cost base of the asset is being deducted from the proceeds of the capital gain event the difference comes positive then it is considered as the capital gains and if in any other case of the difference comes to negative then it will be considered as the capital loss.

Step 4: For every capital gain event, the same process till step 3 is being followed.

Step 5: Combine the capital gains and capital losses of each capital gain asset sold during the tax period.

Step 6: Adjust the previous year's cumulative carried forward losses.

Step 7: The net capital gain is taxable at the applicable rate and if the net capital loss is there then it is forwarded to the future tax period for the purpose of adjustment in the future years.

Calculation:

In the current tax period, the taxpayer has sold various capital gains assets the treatment of the capital gain and the capital loss from the capital gains asset is as follows-

Capital gains / Loss from sale of the home - Home is covered under the exempted list of the assets to be sold therefore in case there is a sale of the home to the other person such sale is not liable for the capital gains tax.
Capital gains / Loss on sale of FUL shares – The taxpayer acquire the shares of the FUL shares before 20 September 1985, therefore such sale of shares are not covered in the capital gains and capital loss, and the capital gains and loss are not liable for such sale of FUL shares.

Capital gain / Loss on the furniture sale – The furniture in the current case is acquired in 2010 at a cost of $ 10500, the said furniture is being sold at $ 5000. As the asset is being used for private purposes and there is no depreciation on such asset, therefore, the capital loss in the current case is $ 10500 - $ 5000 = $ 5500.
Capital gain / Loss on Yacht – In the current case, the taxpayer held the Yacht, for less than 12 months therefore the indexation and 50 % deduction is not allowed, therefore the capital gain on the sale of yatch is as follows-

Proceeds from the Yacht = 37000

Cost base of the assets = 25000

Tax on sale of yacht = 12000

Capital gain/loss on sale of land –

The taxpayer sold the block of land at a proceed of $ 465000, the cost price of the asset is $ 100000 and during the holding period of the asset, the taxpayer has incurred a cost of $ 110000. The capital gain on sale of a plot of land is as follows-

Capital gain as per indexation method

Capital gain as per 50 % CGT discount method

In the current case since the capital gain is less in the 50 % CGT discount scheme, therefore, taxpayer should adopt this scheme (Anonymous. 2019, pg 12(3)).

Capital gain / Loss from collectibles –

Loss of collectible will forward for future years and cannot be adjusted with other capital gains.
Previous year's capital loss of shares will be adjusted in a capital gain of the current year.

Net Taxable capital gains / Loss-

The net taxable capital gains / Loss is as follows- (5500) + 12000 + 127500 + (5000 )
= 129000
 

References

Anonymous. (2019). Arkansas: income tax: casualty loss deduction denied for failure to establish the pre-casualty fair market value of the real property. State Tax Review, 80(5), 2–3.https://lesa.on.worldcat.org/v2/oclc/7985344152

Anonymous. (2020). A renewed chance to revisit old assets for repairs and maintenance expenses. The Tax Adviser, 51(4), 236–237. https://lesa.on.worldcat.org/v2/oclc/8672699797

Batter, A., &Biscopink, E. (2019). Notice 2018-99 and the deduction disallowance for employer parking: the straw that broke the camel's back. Corporate Taxation, 46(3), 23–26.https://lesa.on.worldcat.org/v2/oclc/8181362429

Healy, B. (2017). Tax incentives for business owners. Businesses, 34(16), 37–57.https://lesa.on.worldcat.org/v2/oclc/7245418371

Pattison-Gordon, J. (2017). Millionaires' tax clears the legislature. The Boston Banner, 52(47), 1–7.https://lesa.on.worldcat.org/v2/oclc/8932426426

Property investors benefit from 'repair' year-end deduction. (2017). Spokesman-Review, E.2, 2.https://lesa.on.worldcat.org/v2/oclc/7250793193

Razak, S. H. A. (2020). Zakat and waqf as instrument of islamic wealth in poverty alleviation and redistribution. International Journal of Sociology and Social Policy, 40(3-4), 249–266. https://doi.org/10.1108/IJSSP-11-2018-0208

Weltman, B., & J.K. Lasser Institute. (2018). J.k. lasser's small business taxes 2018 : your complete guide to a better bottom line. John Wiley & Sons. Retrieved October 20, 2021.https://lesa.on.worldcat.org/v2/oclc/1012132648

BULAW 5916 Taxation Law and Practice Assignment Sample

Question 1:

The taxpayer, Components R Us Pty. Ltd., manufactures and sells car components. In 2016 it entered into a ten-year market sharing contract with XYZ, a company in China, whereby Components R Us agreed not to distribute its products in China and XYZ agreed not to distribute its products in Australia.

In January 2021 XYZ Ltd. paid Components R Us $20 million to terminate the 2016 contract. In return for receiving the $20 million, Components R Us agreed to give up its exclusive distribution rights in Australia. The $20 million was based on the estimation of the profit that Components R Us thought it would lose by allowing XYZ to compete with it in the Australian market.

Advise Components R Us as to whether the amount it has received as compensation constitutes assessable income. Refer to case law and statutory provisions in your answer. 15 marks

Question 2

Hardeep is a professional basketball player. On 1 January 2021, he entered into an eight year contract to play basketball for the Adelaide All Stars. Under the contract, Hardeep agrees to play in all of the club’s matches, provided that the coach selects him and he is fit to play. After signing the contract the All Stars pay Hardeep $300,000. The All Stars also agree to pay Hardeep $4,000 each month for his living costs. There is no requirement for Hardeep to repay any of the $300,000 if he fails to play because he is not selected or he is not fit to play.

Advise Hardeep whether he has to include the full amount of the contract monies received in advance in his assessable income for the 2020/2021 income year. Refer to case law, statutory provisions and tax rulings in your answer. 15 marks

Criteria Used to Grade This Assessment

In marking your assignment, your lecturer will place emphasis on whether you have demonstrated an ability to:
• Identify and appropriately explain the range of tax issues connected with the fact scenarios posed in the questions
• Apply case law, legislation, and tax rulings (where appropriate) to the fact scenarios posed in the questions
• Communicate in clear written English
• Format your assignment appropriately

Answer 1:

Issue

The prevailing case analysis reflects about the issue based on the concept of assessable income. It is required to determine whether or not compensation receipt received by the business for breach of contract would form part of assessable income of assesse.

Rules

As per section 6-1 of the ITAA 1997, assessable income is computed by considering ordinary income and statuary income (Awasthi & Engelschalk, 2018). There are mainly two prerequisites of income such as profit must be either is in cash or eligible for converted into cash, and there should be real gain that is also explained in the case of Hochstrasser v Mayes. In the legal case, Federal Coke Co Pty Ltd v FCT, it was contended by the court that, amount that could not be covered into cash by assesse, is not considered as income from ordinary sources.

In the case of compensation receipt, whether or not it is included in the assessable income would be based on the nature of compensation (Abramowicz & Blair-Stanek, 2019). In the context of payment received or compensation obtained due to cancellation of trading contracts it is treated as income and included in assessable income. If there is a breach of any ordinary trading contract, loss of predicted profits, or contract for the sale of goods, then in such case, compensation receipts are considered as ordinary income and therefore included in the assessable income of the person (Hasseldine & Fatemi, 2019). In case of, Heavy Minerals Pty Ltd v FCof T (1966), taxpayer has formed forward contract for sale of goods to its consumers, but because of collapse of market, consumers want to breach this contract. In this, consumer has provided some sum to taxpayer for agreeing to cancel contract and court treated this compensation as income of taxpayer. However, if breach of contract creates impact on fundamental structure of business, then in such case, compensation receipt are considered as capital in nature and same would not be included in the assessable income (Ford & Dibden, 2019). An example of this can be observed in the case of California Oil Products Ltd v FCT, termination of contract assists towards cessation of business, and therefore it is in capital nature. However, if cancelled contract is connectively minor element of the wider business of taxpayer, then compensation is considered as a substitution of income as explained in case of Kelsall Parsons & Co v IRC. Moreover, compensation received would be considered as capital nature if there is cancellation of structural contract, which is an integral element of running business activities of taxpayer as seen in case of Glenboig Union Fireclay & Co Ltd v IRC (Barkoczy, 2018).

In the legal case, Burmah Steamship Co v IRC, it was held by the court that, payment for the losses of capital assets are normally capital in nature and therefore it does not fall in ordinary income. It should be noted that, if the amount of compensation receipt received by assesse replaces the capital assets then it is considered as capital assets. Conversely, if the amount received by assesse leads towards replacement of income then it falls in assessable income (Compensation: CGT and the Replacement principle, 2021). The same aspect has been applied by the court in the legal case, FCT v Dixon; it was held that, compensation receipt takes on the nature of item that is replaced by it.

Apart from this, undissected lump sum amount consists of compensation received for loss of income and loss of capital assets. Where assesse received payment with respect to unliquidated damages, then in such case, courts are averse to apportion receipt into income and capital, and therefore whole sum is considered as capital receipt (Sadiq et al., 2020). In the legal case, Mc Laurin v FCT, property of assesse has been damaged because of fire and compensation has been received for damages. In the cited case, it was held by the court that, not any part of income was considered as ordinary income. Payment has been made for claiming of unliquidated damages and it is accepted by person under compromise, and therefore it is considered as single undissected amount (Taxation Ruling, 2021).

Application

By considering the given case scenario, it has been noticed that the compensation received by R Us of $20 million from the XYZ Ltd. This compensation has been received because of breach of contract as earlier both entities has been entered into contract for non-distribution of their goods in particular area. By this contract, R Us agreed not to sale its goods in China, and XYZ agrees not to sale its goods in Australia. However, by making payment of $20 million, XYZ limited has terminated contract and can sale goods in Australia. By applying the judgment given in the case of FCT v Dixon, compensation receipts treated as an item that is replaced by it. Since, in the given case, compensation is mainly for the loss of business profit of the R Us company and therefore such amount replaces its ordinary income. Further, by application of provisions of undissected lump sum receipts, it can be said that, compensation received by R Us is only for loss of income and not comprised with loss of capital assets. Therefore, $20million is not considered as undissected lump sum receipt, and therefore this amount is not considered as capital nature receipt of assesse. It has been given that; amount of compensation was based on anticipated loss of business profit of R Us, and does not create impact on fundamental business structure of an entity. All these aspects suggest that, $20 million replaces what will have been profit, and therefore it would be assessable as income.

Conclusion

On the basis of the afore-mentioned analysis, it can be concluded that, $20million received by R Us from XYZ Company would be included in the assessable income of taxpayer. It is because, $20million received by R Us for breach of contract or it can be said that, it is compensation for business losses of R Us, which would be suffered by it because of giving up of exclusive right of selling of goods in Australia.

Answer 2:

Issue

Prevailing case scenario contained issue of analysis of ordinary income of assesse and whether it would be included in the assessable income of taxpayer or not. With this aspect, by application of rules of ITAA 1997, it is required to provide advice to Hardeep, whether above mentioned sum would be included in assessable income.

Rule

According to section 6-5(1) of the ITAA 1997, assessable income of the taxpayer comprises with income as per ordinary sources. Therefore, ordinary income can be explained as income generated by person as per usual concept. There are several case laws that reflected income for the purpose of tax its general meaning, and it does not comply with any particular definition. In order to assess income as ordinary income, it is essential that there must be existence of prerequisites of income and characteristics (Stantcheva et al., 2020).

Following are the prerequisites of income:

• The profit should be received in cash or can be convertible into cash.

• Real gain should be availed by taxpayer (Lewis et al., 2019).
In the case of FCT v Cooker & Sherden, free holiday has been received by taxpayer from the company for selling of particular number of soft drinks. In the cited case, court held that, receipt from holiday would not be regarded as ordinary income as it was non-cash convertible.

Further, characteristics of income has been explained as follows:

• The profit should be regular or received in a periodic manner. It can be said that a profit that is received on regular basis is more probably considered as ordinary income as compared to lump sum amount (Plakhtii, Fedoryshyna, & Tomchuk, 2019).

• If anything ‘flows’, then it is more probable to consider as ordinary income.

• Ordinary income should be received by recipient (Bailey & Hagan, 2016). In this aspect, an amount is considered as ordinary income if it comes to the person in that specific income year. It has been stated under Section 6-5, if the amount is derived by entity, then it is considered as amount has come into entity. Due to this, unrealized amount could not be regarded as ordinary income for that specific income year.

It should be noted that, extraordinary and isolated transactions may leads towards capital nature, however it may be considered as ordinary income if it forms a business itself, and satisfy first and second criteria explained in case of FCT v Myer. In the context of forms of business itself, it is required to make difference between mere realization of a capital goods assisting towards capital gain, and profit made because of carrying business activities, assisting towards ordinary income (Taylor, Walpole, & Burton, 2020). Further, first strand of Myer reflects that, extraordinary and isolated transactions would be considered as ordinary income if there is commercial activity, profit generating intention at the time of entering into transactions, and it was generated by the way of consistent with original purpose (Managing employee relocation costs in a tax effective manner, 2021). Further, second strands of Myer reflects that, receipts from transactions would be considered as ordinary income if assesse sells the right of income from asset without selling of the underlying assets.

Further, it should be noted that, Section 15-2 states that, assessable income of person comprised with the amount of all allowance, compensation, benefits, bonus amount, premium that has been offered in relation to employment of or services provided in direct manner or in indirect way (Income tax assessment Act 1997, 2021). As per TR92/15, payment is considered as an allowance in which person has been paid a particular amount for covering of predicted expenses. It is paid notwithstanding of whether or not expenses has been incurred by assesse, and it is on the discretion of recipient whether to spend allowance (Burton, 2018).

Application

By considering the given case analysis, $4000 is definitely included in the assessable income of the taxpayer as it is generated from ordinary sources. There is clear connection between the services provided by Hardeep and this receipt, which reflects a number of indicators of income, consisting of regularity, connected with personal services, and some others. Therefore, there is not any doubt about inclusion of $4000 in the assessable income of person. Further, it has been identified that, All Star also paid $300000 to Hardeep for signing of the contract. Above analysis reflects that, it is not always essential that lump sum payment is in capital nature and therefore it does not included in the assessable income. Sometimes, extra ordinary and isolated transactions would also consider as ordinary income if profit has been made by carrying business activities. further, by considering the two characteristics of income, it can be said that $300000 is not regular or periodic gain of Hardeep, but it is just an indicator and only on the basis of this, it cannot be said that, cited amount is not ordinary income. Another characteristic is based on flow, which reflects that if something flows, then it is more probably considered as ordinary income. Further, by applying section 15-2, any allowance or benefits that have been offered in connection with employment would be included in the assessable income. Therefore, by application of statuary provision, it can be said that, $300000 has been provided to taxpayer directly in connection with services provided by him, and therefore it will be included in the assessable income.

Conclusion

On the basis of afore-mentioned analysis, it can be said that, $4000 would definitely include in the assessable income of Hardeep as it is considered as ordinary income as per section 6 of the ITAA 1997. Further, in the context of $300000, it is also considered as assessable income by application of section 15-2 of the ITAA 1997, which reflects that any amount or benefit received in relation to employment and personal services would be included in the assessable income. Overall, it can be said that, it is required by Hardeep to include $300000 and $4000 as contract money received from All Star in the assessable income of 2020-2021 income year.