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LEGAL
PERSONALITY - NATURAL AND ARTIFICIAL PERSONS
URL: http://www.spatialgovernance.com/governance/gov-03.htm
© John S. Cook - Created on 17 February 2005
Last modified
05/04/11 11:01
Australian EST |
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INTRODUCTION |
Authority and Social Control
Where a family or small group feels inclined to respect and
follow the observations, opinions and advice of an individual,
that individual gains some semblance of informal authority as a
leader. In
larger and more complex communities, a new problem emerges of how
to develop an understanding within each community of exactly who
has authority to give directions with an expectation they will be
followed.The processes whereby
individuals acquire authority to do particular things is
fundamental to how modern societies organise themselves. Under a 'rule of
law', conferring authority requires written rules that can provide
a formal description of rights and responsibilities attached to
that authority. Examples of these institutionalised forms of
authorisation abound, but important examples include:
 | ownership of property - evidenced in
registration of land titles, motor vehicles, corporations, and
the like; |
| official appointments (often accompanied by
oaths of office) - judges, police officers, commissioners,
commissioned military officers, members of parliament, and the
like: |
| occupational registrations - persons
authorised by registration to perform particular occupations -
doctors, nurses, teachers, lawyers, surveyors, architects,
landscape architects, and the like; |
| various licenses and permits - driver's
license, pilot's license, dog owner's licenses, development
permissions, and the like. |
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Requirements for
Formal Description
The following elements are needed to create a formal description
of an authority:
| a description of a 'person' as an entity that
can exercise the authority |
| a description of rights and duties that the
person has in exercising authority over a particular thing or things |
| a description of the thing or things over
which the person has authority - such as land |
Controls over Abuse of Authority
The granting of an authority carries with it a potential for abuse
of that authority. Such abuse might include:
| falsifying evidence leading to authorisation - including abuses
such as bribery in how
people become authorised, licensed or permitted to do things |
| impersonating an authorised person |
| exceeding bounds of an authority |
Abuses of authority usually amount to some form of official
corruption. Most organisations establish procedures to detect and
penalize such abuses.
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References:
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STATUTORY INTERPRETATION OF 'PERSON' |
Interpreting Acts of the
Australian Parliament
A common practice in making legislation is for a parliament to pass a
general statute - usually called an 'Acts Interpretation Act' - to
provide general guidance on the meaning of frequently used terms used in
statutes. Thus, one of the first Acts passed by the Australian
Parliament was the
Acts Interpretation Act 1901 (Cwlth).
At
s.22(1),
the Act provides that in any Act, unless the contrary intention appears:
| (a) expressions used to denote
persons generally (such as 'person', 'party', 'someone',
'anyone', 'no-one', 'one', 'another' and 'whoever'), include a
body politic or corporate as well as an individual; (aa)
individual
means a natural person |
At
s.34C relating to periodic reports, the Act refers
to a 'person' as follows:
| "person" includes a body corporate, office,
commission, authority, committee, tribunal, board, institute,
organization or other body however described. |
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Interpreting Acts of the
Queensland Parliament
The
Acts Interpretation Act 1954 (Qld) relates to Interpretation of
Acts of the Queensland Parliament. In references to persons generally,
s.32D
states:
| (1) In an Act, a reference to a
person generally includes a reference to a corporation as well as
an individual. (2) Subsection (1) is not
displaced merely because there is an express reference to either
an individual or a corporation elsewhere in the Act. |
In a Queensland Act, words indicating a gender include
each other gender - by virtue of
s.32B. |
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References:
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Australian Government, Attorney
General's Department, 'Review of the Commonwealth Acts
Interpretation Act 1901',
Discussion Paper, (1998) |
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NATURAL
PERSONS AND LEGAL CAPACITY |
Natural Persons as Individuals
A 'natural person' is someone who is born, lives and dies
according to natural processes. When born, a person has rights as
a child. The community expects that a child will accept increasing responsibility
with increasing age until reaching a full responsibility at the
age of majority. The age of majority is determined by statute and
generally occurs at the age of 18 years in Australia. At this age,
an individual acquires particular rights and duties that include a
right to vote, enter into contracts, own property and make a will.
Before reaching the age of majority, the law regards individuals
as children. Generally, parents have some say in how they care for
their natural or adopted children. However, parental control is
not not absolute. Basic education for children is compulsory, and
civil authorities and courts may intervene if there is concern for
the welfare of a child. Moreover. intervention of the Family Court
may become necessary if people cannot agree.
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Evidentiary Requirements
Proof of identity, birth, marriage or death may be important in
deciding what are the rights and responsibilities of individuals
in their various undertakings. In modern society, the system of
public registers provides evidence for use in legal and other
transactions. Thus, a certificate of birth may be necessary to
prove age and therefore eligibility to receive the rights and
undertake the duties of adulthood.
Limits on Legal Capacity
Exceptions occur where a person has a diminished capacity to
understand as in the case of a young child or a mentally disabled
person. As an example, Queensland's Criminal Code 1899
provides at s.29(1-2):
| (1) A person under the age
of 10 years is not criminally responsible for any act or
omission. (2) A person under the age
of 14 years is not criminally responsible for an act or
omission, unless it is proved that at the time of doing the
act or making the omission the person had capacity to know
that the person ought not to do the act or make the
omission. |
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References:
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ARTIFICIAL PERSONS - BODIES POLITIC AND CORPORATE |
Attributes of an Artificial Personage
An essential feature of an 'artificial person' - more generally
known as a body corporate or corporation - is that it is created
and dissolved by legislative or administrative fiat. A body
politic can be established similarly through legislation.
Examples include the Commonwealth of Australia, established by
an Act of the Imperial Parliament passed in 1900; or local
governments in Queensland, established by Acts of the Queensland
Parliament. A body politic can also be established by revolution
- usually through some unilateral declaration of independence
followed by development of a written constitution. The formation
of the United States of America is an archetype for the
formation of a revolutionary government.
Since the continuity of a body corporate or politic is
indefinite, it is said to be capable of perpetual succession.
However, natural persons supply the thoughts and actions
necessary for the continuing operations carried on in the name
of a corporation. Accordingly, perpetual succession implies an
arrangement to elect or appoint natural persons to provide
continuity despite losses of persons occasioned by retirement or
death. Thus, the notion of an artificial person has many
applications in government and commerce where provision of goods
and services may continue for generations.
Apart from
perpetual succession through ongoing elections and appointments of
officials, the operation of a corporation as a productive entity
implies a continual input of human and material resources to
provide outputs consistent with the purpose for which the
corporation was formed.
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The Corporate
Template as a Basis for Organisational Variety
A limited number of
corporations - such as the Corporation of the City of London - still rely
on an ancient Royal Charter as the authority for their
incorporation. The growth in power of the English Parliament
led to incorporation of companies in accordance with Acts passed by the
Parliament.Government itself has perpetual
succession with attributes of a corporate entity. The government
of the United Kingdom is somewhat unique in having no particular
founding document relating to its incorporation. Nowadays,
corporations owe there existence to some enabling statute. Examples include:
| Governments - established in accordance with
a written constitution in one or more founding documents - as in
the Australian
Constitution |
| Statutory corporations, local governments and
universities - incorporated under provisions of particular Acts
of Parliament and associated regulations - as in
Queensland University of Technology Act 1998
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| Private corporations - incorporated under
general corporations law according to particulars contained in
their memorandums and articles of association |
| Bodies corporate - established under laws
regarding group or community titles schemes |
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References:
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KEY ELEMENTS IN WRITINGS THAT ESTABLISH CORPORATIONS |
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KEY ELEMENT |
PARTICULARS |
| CORPORATE IDENTITY |
| Name - a unique name by which the corporate
entity can be known |
| Address - an address for carrying on business
and receiving written correspondence |
| Corporate Seal - provisions regarding use,
safekeeping and evidentiary effect of a corporate seal to authenticate
documents |
| Legal Capacity - usually including authority
to own property, enter into contracts, and to sue or be sued in ways
that are consistent with the purpose of the corporation |
| Creation - by processes such as the coming
into force of an enabling statute or the registration in an official
register of corporate entities |
| Dissolution - circumstances under which a
corporate entity may be dissolved |
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OPERATIONAL OVERSIGHT
AND FUTURE DIRECTIONS |
| Periodic election or appointment of directors to
achieve a perpetual succession, exercise oversight of on-going
operations and establish corporate policy for future directions - as in
members of parliament; boards of directors in commercial
corporations; the Senate of a University |
| Responsibility for making particular rules under
which the corporation is to operate, given the purpose of the
corporation and the need to comply with laws of the land |
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| EXECUTIVE |
The functions of an
executive are to give effect to decisions of the directors in
the day-to-day operations of the corporation. The executive
usually comprises:
| A Chief Executive Officer or equivalent -
as in the CEO of a commercial corporations a local government;
or the Prime Minister, Premier or First Minister in the
various forms of government in Australia |
| Other executive officers - as appointed by
boards of directors in commercial corporations; or the various
ministers appointed in governments that owe their origins to
the Westminster System |
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| RESOURCE INPUTS AND
ACCOUNTABILITY ISSUES |
Corporations rely on resources or inputs to do things;
that is, to produce outputs. Outputs cover a wide range of goods and
services including the delivery of law and order through government
itself. In general, corporations deal
| In government - the parliament represents taxpayers
through formal budgeting processes, legislation to appropriate funds for
government purposes, accounting practices to exercise financial
controls, auditing processes that oversee accounting practices and
reviews in parliamentary accounts committees and in |
| In private commercial corporations - investment funds
provided by shareholders with returns on investment quantifiable in
dividends, capital gains and |
| In non-commercial non-government organisations -
revenue derives from membership contributions and charges for various
services |
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| DISPUTE RESOLUTION |
| resolution of problems in interpreting the rules
under which an artificial person is created - that is, interpretations
that are constitutional in character - a function of the High Court of
Australia in relation to the Australian Constitution; and to
other courts in relation to the founding documents of various
bodies politic and corparte |
| resolution of problems in interpreting rules made by
the artificial person - with interpretations that are usually
administrative in character |
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JOINT OWNERSHIPS, OPERATIONS AND VENTURES |
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