COMMERCE – LAW AND SOCIETY

3.1 REASONS FOR LAWS

Rules and laws

rules: non-legal guidelines imposed by schools, families, sporting associations or clubs that
only apply to people directly and do not attract serious penalties if broken
laws: a set of legal rules
 society has laws which everyone in the community is expected to obey
o motorists have to obey traffic laws
o laws stop people under a certain age from entering alcohol-serving premises
Rules vs. laws
Rules Laws
Are not legal Are legal rules
Anyone can make these Are made by parliaments and courts
Apply only to people directly involved Apply to a whole community
Do not attract serious penalties if broken Have serious consequences or punishments if
broken
Enforced by school or club Enforced by police, courts and the law

Why do we need laws?

anarchy: disorder or confusion due to the absence of government or laws
 no laws  anarchy and people with power would dominate and weak and helpless would suffer
 the law has four main roles:
1. establish boundaries of acceptable behaviour and determine which actions would not be
tolerated
2. protection from the actions of others, as well as our own behaviour
o tells society what people cannot do
o law restricts individual freedom but provides protection for society
3. freedom to do many things by telling society what people can do
4. resolving disputes in order to stop people taking the law into their own hands
o legal system provides police force, court system and correctional centres to enforce and
administer the law

3.2 ORIGIN OF AUSTRALIA’S LAWS

Terra nullius: “land belonging to nobody”

substantially uninhabited: inhabited by a people who would not ‘cultivate the proverbial yard
of land’ and who were ‘not governed by laws’
 international 1700s law required that for settlement, a tract of land must be “terra nullius”
(substantially uninhabited)
 “terra nullius” criteria were judged by British against their own standards of farming and law
making

Aboriginal law
 traditional Aboriginal law was passed on by word of mouth
o oral law was very important and maintained stability
o white colonists interpreted that Aboriginal society had no laws because there were no
written rules, parliaments, courts, police or prisons
 Aboriginal tribal law often seen as harsh and brutal, but ensured order and discipline
 payback was key part of Aboriginal law
o perpetrator of law would expect some kind of payback from victim
 kinship outlined the correct way of living
o e.g. sharing food, marriage, education and trade

Law making in Australia post-colonisation

 six Australian states joined together in 1901 to form a nation
 at the time the nation formed, the legal system was developed
 system was largely based on British legal system

3.3 THE LEGAL SYSTEM

The public
 we are all involved in legal system because:
o it regulates our rights and responsibilities
o we elect the politicians who the laws

Police enforce laws

 police do not make the laws; only enforce them
 also prevent and investigate crime, protect life and property and maintain peace and order
 police assist in prosecution of suspected offenders
 there are rules that outline police powers and how they do their job
 have a role in prosecuting people who break the law in relation to non-indictable offences

Legal advisers specialise in the law

 lawyers (solicitors and barristers) provide legal advice and assistance
 represent their clients and conduct their cases at a court hearing
o advocacy role
 duty is to argue a case in the best interests of their clients

Solicitors Barristers
First point of contact for someone Appear in a case which requires a great deal of
time in court
Advices legal rights and responsibilities Takes instructions from solicitors handling case
Appear in court on your behalf Argues in court
Briefs barrister and prepares documents

Courts interpret laws

precedent: when courts make decisions based on what earlier courts have decided
 settle disputes according to strict rules of evidence and procedure
 custodians of the rights of citizens
 interpret laws passed by parliament and through their decisions, make the common law
 decide whether the law has been broken or what rights to uphold by:
1. establishing the facts
2. applying the law to the facts

Law-breakers are punished by court

 prisons hold people convicted by a crime
 imprisonment – loss of freedom – is the harshest form of punishment that can be imposed
 all offenders must be given chance of rehabilitation
o no death penalty
3.4 & 3.5 COURT STRUCTURE: HIERARCHY

Court hierarchy
 court system operates under hierarchy which relates to the seriousness of the offence
 higher courts at top hear most serious matters
 lower courts at bottom hear less serious matters
 laws made at state and federal level:
o each state has its own system of courts and laws
o federal government makes national laws which overlay legal framework created by
states
 each court deals with specific legal matters over which it has jurisdiction

 in criminal cases, higher courts deal with

most serious crimes
 in civil cases, higher courts hear cases that affect many people or involve large sums of money
 if an individual is unhappy with ruling of lower court  appeal  reviewed in higher court

Local and magistrates’ court

magistrate: a court official who hears cases in the lowest court of law
committal hearing: hearing in Local court to decide whether there is enough evidence for
trial
summary offence: minor criminal matter
 no jury, magistrates hear case, decide verdict and sets any punishment
 magistrate can imprison an offender for up to two years
 deals with minor civil disputed:
o sue for damage for property
o injury claims of up to $100 000
 hears summary offences:
o stealing
o drink driving
o assault
o possession of drugs
 magistrate presides over committal hearing dealing with indictable offence:
o armed robbery
o manslaughter
o homicide
The District Court
indictable trial: a trial for a serious criminal offence with a jury
 heard by judges who conduct the trial
 deals with more serious civil cases for claims over $100 000 - $750 000 and all motor vehicle
accidents
 hears appeals from local courts
 criminal jurisdiction deals with serious criminal matters:
o armed robbery and burglary
 jury will decide whether accused is guilty or not
o guilty  judge decides sentence

The Supreme Court

going on circuit: judges travel to regional locations to hear matters
 deals with most serious criminal cases:
o murder
o treason
o serious sexual assault
 most serious civil cases involving $750 000+
 headed by Chief Justice in Sydney
o however, Supreme Court judges hold sessions of their courts in major regional centres
 deals with appeals from two lower courts
 judgements binding on all lower courts

The High Court of Australia

 in Canberra, deals with appeals from Supreme Courts
 cases concerning interpretation of Constitution
 reaches verdict  creates laws that affect powers of parliament
 shifts balance of power away from states and towards Commonwealth
 decisions final
 federal  decisions apply to whole country

Advantages and disadvantages of court hierarchy

Advantages Disadvantages
Precedent allows for fairness and consistency Precedent may not always be appropriate for
among all cases heard certain circumstances in the case
Allows appeals to be heard and mistakes to be More people are needed to run each court,
fixed making them often costly to operate
More serious and complex cases can be heard Multiple courts sometimes confuse people
by judges with more experience without knowledge in law; single court system
would remedy this
Fewer delays in each court as serious cases
are not mixed with less serious cases

3.6 THE ROLE OF COURT PERSONNEL

adversarial system: system in which two opposing parties present their arguments
beyond reasonable doubt: the standard of proof required in a criminal trial
o enough certainty to prove the accused is guilty (99%)
balance of probabilities: the standard of proof required in a civil trial
o hearing both sides of a case and reaching a verdict that favours the stronger side (51%)
Roles
1. judge / magistrate
o umpire
o listens to evidence presented by both sides
o decision maker (no jury)
o decides on consequence
2. jury
o decision maker in serious, lengthy case
3. the accused / the respondent
o alleged criminal in a criminal case
o person who has a civil case brought against them
4. lawyers
o defence lawyer
o barrister
5. prosecutor (police)
o protects community from actions of the accused

Adversarial system
applicant: individual, organisation or cooperation who starts legal proceedings against
another person or persons
o also known as ‘plaintiff’ in civil cases and ‘prosecutor’ in criminal cases
respondent: individual, organisation or cooperation against whom / which legal proceedings
are commenced
o also known as ‘defendant’
o civil cases: applicant vs respondent
o criminal case: R vs respondent

Terms
parties: people involved in a court case
original jurisdiction: authority or legal power of the Court to hear a case in the first instance
appeal: an application to a higher court to review a decision of a lower court or tribunal
o two types of appeals:
1. conviction appeal – pleaded not guilty but found guilty
 defendant must either show trial was seriously unfair or that outcome is
miscarriage of justice
2. sentence appeal – unhappy with sentence
 defendant must show judge made important when they sentenced them and that
they are entitled to lesser sentence
precedent: a previous legal decision made by superior, higher court that serves as a rule or
pattern for all future cases
o promote consistency in decision-making, on basis that like cases should be determined
in a like matter

3.7 JURIES

 used in less than 5% of all legal cases

 jury made up of ordinary people in electoral role
 jurors must decide what they believe actually happened according to the evidence
 in a civil trial, they must decide on the balance of probabilities whether defendant is liable
 in a criminal trial, must decide on whether innocence of accused beyond reasonable doubt
o to do this effectively, jurors must be able to:
 listen to all the facts of evidence and remember and understand them
  decide what they believe actually happened according to evidence
 understand points of law the judge explains
 deliver a verdict
 not discuss the case with other people other than those on the jury
Impartiality
 put aside their own prejudices or bias
 be fair and impartial
 if there is any confusion, the jury can ask for:
o further clarification or explanation
o the definition of a word or legal principle
o a transcript of all or part of the testimony of a witness
Possible reasons to be excused from duty
 doctors or people 70+
 any disabilities (e.g. defective hearing) that may affect ability to fulfil duty of a juror
 lack of understanding of English
 anyone who works in legal system or has criminal record are illegible

The decision of the jury

Unanimous – all
 all members must reach the same conclusion
o whether prosecution had managed to prove accused’s guilt beyond reasonable doubt

Majority – 11 of 12 / 5 of 6
 allowed under following circumstances:
o jurors have deliberated for at least 8 hours and court considers that reasonable time
has been given considering nature and complexity of case
o court satisfied after questioning one or more jurors that it is unlikely a unanimous
verdict will be reached
 judge is not permitted to inform jury that majority vote is a viable option
 not allowed in cases where accused is being trialled for Commonwealth offence
o e.g. drug importation, breaking quarantine laws, tax and Centrelink fraud

Hung jury
 jury unable to agree one way or the other
 ‘hung jury’ declared  jury discharged
 prosecution and judge decide whether to retry the case

Jury selection
 three steps to jury selection
1. notice of inclusion on jury roll (pre-warning)
2. summons to jury service (specific date and court)
3. jury selection and empanelling

Empanelling a jury
 upon arrival, potential jurors are assembled in room adjacent to courtrooms
 all handed juror card with number on it and potential jurors taken into courtrooms
 judge will provide following information to jury panel:
1. length of trial
2. name of accused / parties
3. nature of charges / dispute
4. names of witnesses to be called and all others involved (judge, staff, lawyers, etc.)

Conflict of interest
 potential jurists are then given opportunity to be excused from trial
o conflict of interest or some knowledge or relationship which suggest lack of impartiality
o any reasons why juror may not be impartial must excuse themselves from matter

Challenges
 once jurors are in jury box, juror numbers are called a 2nd time
 both prosecutor and defence counsel can challenge a juror without giving reasons
o peremptory challenge

Benefits of a jury
 trial by peers
 fairer/more just for the defendant
 more people  more diverse views and values
 high standard of proof for criminal cases (beyond reasonable doubt)  unanimous verdict 
requires very strong evidence to reach verdict
 deterrent
 gives ordinary citizens opportunity to play a role in the legal system

Disadvantages of a jury
 lack of legal knowledge  confusion and explanation needed (requiring more time)
 bias > evidence
o biases can be so fixed in juror’s mind that case may not be decided on strength of
evidence
 no reason required to explain the jury’s verdict
 impacts jurors’ personal lives – time off work

3.8 AREAS OF LAW: PRIVATE AND PUBLIC

private law: deals with disputes between private citizens

public law: deals with disputes that affect the community
o regulates people’s behaviour within society as a whole
o protects freedom of individuals
o deals with conduct society expects from its government

Public Private
PURPOSE Protects public interest Protects private interest / freedoms
MAIN PARTIES Individuals and state Private entities or organisations
acting in private capacity
ROLE Regulates harmonious relation Regulating activities between two or
between citizens and the state more private entities in a just and fair
manner
PUNISHMENT Penal sanctions more severe Often compensation of injuries
caused in the form of payment
STANDARD & Beyond reasonable doubt, Balance of probabilities, plaintiff
BURNDEN OF defendant must prove there is no must prove their case is more
PROOF explanation from evidence that probable than defendant’s
suggest they are guilty

Higher standard as punishment is

more severe
EXAMPLES  constitutional – powers and  family – marriage (how and
authority of parliament, rights of who), de facto, divorce, custody
 each citizen  property – regulations about
 administrative – decisions and sale, leasing and hiring
powers of government  contract – legal agreements
 criminal – keep community safe between two or more people
from harm, order society  tort: a civil wrong – situations
 industrial – rights and when one people infringes rights
obligations of employers and of another
employees
 industrial – workers’
compensation, occupational
health and safety, discrimination

3.9 AREAS OF LAW: CIVIL LAW

 non-criminal matters
 allows individuals to bring actions against other members of public for a civil wrong done to them
 role in creation and protection of individual rights
 two main areas:
1. law of tort
2. contract law
 law of tort includes:
o negligence – person fails to take reasonable care, resulting in injury
 for negligence case to result in liability, plaintiff must establish:
1. defendant owed them duty of care
2. there was a breach of that duty by the defendant
3. damage to the plaintiff resulted from that breach
o defamation – person injures another person’s reputation
o nuisance – person causes interference with another person’s rights to quiet enjoyment
of their property
o trespass – person interferes with another person, or that person’s property rights
(directly, intentionally or negligence), does not have to prove damage or harm
 injunction: a judicial order restraining a person from beginning or
continuing an action threatening or invading the legal right of another
 in civil law, plaintiff sues defendant for compensation for damages
o compensation usually money – what is deemed sufficient to restore wronged person to
their state prior to incident

Tort
 when someone’s actions cause some type of harm to another
o physical harm to person, property, reputation

Why is a tort not a crime?

 tort is where an individual suffers a wrong or injury
o court may assist plaintiff to obtain redress or compensation
 crime is wrong committed against community
o court determines proper punishment for guilty person

Remedies to torts
 if defendant is found liable, can be order to:
o pay damages to compensate for harm suffered and/or
o stop causing the harm – court may apply for injunction to prevent defendant from
engaging in a certain act
Contract law
contract: legally binding voluntary agreement
 3 elements of contract:
1) offer
2) acceptance
3) consideration

What is a consideration?
 does not have to be a physical thing
 verbal agreement of exchange
o promise, act or transfer of value
Breach of contract
 failure to fulfil obligations as agreed in contract
 when time arrives for party to perform their responsibilities and don’t perform their end of bargain

Jury trials
 jury instructed to find party that has stronger evidence

3.10 AREAS OF LAW: CRIMINAL LAWS

 defined by legislation, enforced by police and prosecuted by the state

 set clear and firm boundaries of conduct for individual behaviour in a society
 have a strong range of sanctions or punishments, ranging from fines to imprisonment
 alleged offenders are prosecuted through our court system

3.11 HOW LAWS ARE MADE: COMMON LAW

common law: system of law based on the previous decisions of judges or precedents, which
later verdicts are based off of
precedent: a previous legal decision that serves as a rule or pattern in future cases
statute law: laws made by parliament

Common law
 law developed by courts in Australia
 regulates how to interpret the statute law
 record of judges/ decisions will be placed in books called Law Reports
o precedents

Precedent
 judges will give similar decisions in alike cases
o act of precedent
 precedent helps legal system achieve fairness in the application of statute law

Statutory interpretation
 courts also make laws when they interpret words in a law made by Parliament
 once court determines meaning of words, it becomes common law between judges

3.12 HOW LAWS ARE MADE: STATUTE LAW

Statute law
 in any democracy, Parliament is supreme law-making authority
 laws made by parliaments undergo parliamentary scrutiny (discussed, debated and published)
o authoritative source of law
 parliament makes new laws and amends existing laws
o proposed bill must be introduced to parliament
o bills are debated and voted on by members of parliament

Parliament
 there are nine parliaments (Commonwealth, state and territory) engaged in law-making process
in Australia
 each parliament in Australia comprises three elements:
1. lower house – House of Representatives or Legislative Assembly
2. upper house – Senate or Legislative Council
3. Queen – Governor General or Governor or Administrator

Act of Parliament
bill: proposal for new law or a change to an existing one
 bill can only become a law if both majority of House of Representatives and Senate vote in
favour
o bill must be agreed to an identical form by both chambers, given royal assent

3.13 HOW A BILL BECOMES A LAW

1) Proposed new law, or changed law is discussed in Cabinet

2) Government lawyers draft a bill
3) Copies of bill given to all members of House of Representatives to read (‘first reading’)
4) ‘Second reading’ – the responsible minister for issue describes main purpose and likely benefits
of bill  debate  vote (if majority, proceeds to next stage)
5) Committee stage – bill debated again by parliamentary committees, with possible changes
6) ‘Third reading’ – bill, including any changes is voted upon again
7) Bill moves to Upper House
a. If Senate decides to change something, bill referred back to Lower House for another
debate and vote and process repeats  vote
b. If Senate disapproves, bill is demolished
8) If Governor-General approves and sign bill, it becomes an Act of Parliament