Commerce Law Term 3

What are laws? -

Legal rules that everyone in society must follow, Enforced by police and courts.

Why do we have laws?

establish boundaries, protection, freedom, resolve disputes.

Establish boundaries

show what is acceptable (e.g., no drink-driving).

Protection

keep us safe from harm.

Freedom

allow us to do things (e.g., start a business, vote).

Resolve disputes

courts help settle arguments without violence.

Laws and values

Based on society’s morals and ethics (what is right/wrong), Reflect what we believe is fair or unfair

Adversarial system

two sides argue their case before a judge or magistrate

Appellate system

people can appeal decisions to higher courts

The Australian Constitution

outlines powers of the federal government

High Court of Australia

interprets the Constitution

Local Court

minor offences, no jury (magistrate only)

District Court

serious cases like armed robbery, sometimes has jury

Supreme Court

most serious cases (murder), has jury

Federal Court

deals with national laws (e.g., immigration, trade)

Children’s Court

young people under 18, closed to public

Coroner’s Court

investigates deaths, fires, explosions

Family Court

divorce, parenting, custody, property after separation

Drug Court

helps offenders with drug addiction recover

Land & Environment Court

deals with planning, environment disputes

Role of the high court

Interprets the constitution, can change the meaning of laws by interpreting them, can overrule state laws if they go against the constitution, Final court of appeal – no higher court.

1.

1-     Cabinet discusses idea for a new law (influenced by public pressure)

2.

1-     Government lawyers write a draft – called a Bill

3.

1-     First Reading – members read the Bill

4.

1-     Second Reading – Bill is debated

5.

1-     Committee Stage – each part is looked at and changed if needed

6.

1-     Third Reading – vote is taken

7.

Senate repeats process

8.

Governor-General gives royal assent – signs it into law

Private/Civil Law

between individuals, organisations and government agencies.

Main areas of Private/Civil Law

Contract law, Tort law.

Contract law

broken agreements

Tort law

includes negligence, defamation nuisance, trespass.

 

Negligence

careless actions causing harm

Defamation

damaging someone’s reputation

Nuisance

interfering with someone’s enjoyment of property

Trespass

entering property without permission

Public/Criminal Law

Offences against society

Elements of Public/Criminal Law

Mens rea, Actus reus.

Mens rea

guilty mind (intent)

Actus reus

guilty act (action)

Types of crimes

include against person, property, state, white collar crime, public order offences,

traffic offences.

Against persons

a crime which is committed by direct physical harm or force being applied to another person (e.g., assault, murder)

Against property

Crimes that affect another person's rights of ownership (e.g., theft)

White collar - a variety of nonviolent crimes usually committed in commercial situations for financial gain (e.g., fraud)

Against state

Crimes that affect the security of the state (e.g., treason)

Public order offences

criminal acts that disrupt the peace and order of the community (e.g., rioting)

Traffic offences

occurs when someone driving a vehicle, or someone in a vehicle, breaks a law (e.g speeding)

Civil law

"on the balance of probabilities"

Criminal law

"beyond reasonable doubt"

Domestic law

laws within Australia

International law

agreements between countries (UN, treaties)

Judge

leads trials in higher courts, decides sentence

Magistrate

handles local court cases

Jury

listens to evidence and decides verdict in court.

Barrister

argues the case in court

solicitor

gives legal advice, prepares documents

solicitor

gives legal advice, prepares documents

witness

gives evidence

sheriff

provides court security, delivers summons

court reporter

records everything siad

empanelment

process of selecting a jury from the public

Number of jurors

12 jurors for criminal, 6 for civil

Pros+Cons of Juries

Community involvement, representation of the values and additudes of society, although expensive and may be biased.

Bail

release from custody while waiting for trial

Who decides Bail?

Judge/magistrate decides if granted

Conditions of Bail

may include staying at home, no contact with victim

eligibility of bail

not everyone gets bail (depends of case)

Payment of Bail

By accused or surety

Refundability of Bail

Yes if conditions and agreement is followed

Fine

is a penalty of money that a court of law or other authority decides has to be paid as

punishment for a crime or other offense.

Capital punishment

death penalty (not used in Australia)

Cost impact on accessibility to law

fees and expenses needed to be considered and paid when hiring a law personal or representative.

Distance

very difficult in rural areas and timely and costly travelling.

Time

Can take up lots of time and impact or sacrifice jobs and family life

Procedures

Law and the proceedings that occur can be very confusing due to the extensive

information and interpretations.

Language barriers

If a person isn’t confident with English, then it can be hard to have access or understanding about Law in Australia

Legal Aid

independent statutory authorities that help provide a range of services, including information, legal advice and representation in courts and tribunals.

Customary Law in Australia

Aboriginal law existed before 1788, Based on tradition, passed by word of mouth and is focused on restoring relationships. It is only now being partially recognised in courts after years of unrecognition.

Actus reus

action or conduct which is a constitute element of a crime

Anarchy

a state of disorder due to an absence or non recognition of authority or other controlling systems.

Ankle bracelet

electronic ankle bracelets used to track and monitor individuals, on parole, probation or under house arrest.

Appeal

a formal request made to review a decision made in a higher court, of a decision made in a lower one.

Australian constitution

fundamental legal document that outlines the framework for governing Australia.

Bail

the temporary release of an accused person awaiting trial

Balance of Probabilities

“more likely than not”, evidence and circumstances are weighed to reach decision.

Beyond reasonable doubt

The prosecution must convince the jury that there is no other reasonable explanation that can come from the evidence presented in trial.

Bond

a formal written agreement by which a person undertakes to fulfil a certain act, e.g. showing up in court

Committal hearing

after all evidence and cross-examination, if the magistrate decides there is enough evidence, they will commit the matter to a higher court

Common law

“Judge made Law” law created by judicial decisions that are decided upon by judges and precedent, parliamentary law and legal principles

Community service

alternative to imprisonment when offenders complete unpaid work to repay society.

Court

a body of people presided over by a judge, judges, or magistrate and act as a tribunal in civil

and criminal cases

Customary law

laws that existed before the European occupation of Australia

Defendant

“accused person” a person who must defend their actions in court or is charged for their actions

Empanel(juries)

enrol someone onto a jury

Fines

a fine is a monetary penalty imposed by court or another authorised body as a punishment

for an offence

Indictable offences

a serious crime that can be prosecuted by an indictment, meaning it will be heard by a higher court or jury

International law

“The law of Nations” law existing between and outside states which is an independent system OIL “Office of International Law”.

Judge

a public officer appointed to decide cases in a court.

Judiciary

the judicial authorities of a country; judges collectively

Jury

a group of citizens selected to hear evidence and deliver a verdict in a legal case