Yearly Commerce Flashcards

Law

Legally enforced, binding and recognised rule applying to all citizens of a nation.

Rules

Regulations based on customs, morals and ethics applying to set individuals/groups. Can carry consequences, not legally binding.

Features of laws

- Obeyed by all members of society

- Made by official law making party (e.g., elected parliament)

- Enforced by police & court system

- Breaches can lead to sanctions in a court.

Features of rules

- Obeyed by specific individuals/groups

- Consequences decided by a group leader

- Made by and enforced by individuals and groups.

Why do laws exist?

To prevent a state of anarchy and establish order:

1) Set boundaries: Define unacceptable behavior (e.g., stop/parking signs).

2) Protect: Safeguard people from harm (e.g., no violence, robbery laws).

3) Allow freedom: Define what people can do (e.g., marry, access education).

4) Resolve disputes: Prevent self-justice via courts, police, and detention.

Anarchy

A state of disorder and lawlessness due to absence of government authority.

Morals

Personal beliefs about what is right and wrong.

Values

Things you consider important in life (e.g. honesty, respect).

Ethics

Rules or principles that guide behaviour, often set by a group or profession.

Division of powers

Federal government, state government and local council

Separation of powers

Division of government responsibilities into distinct branches. Includes the legislative, executive, and judicial branches.

Australian Constitution

Sets out how country is governed; section 51 & 52 outlines division of power.

• Limits Federal Parliament’s powers

• State Parliament → Limited by State Constitution + Australian Constitution (to an extent)

Australian Constitution Section 109

Stipulates that in inconsistencies between state and Commonwealth legislation, Commonwealth laws will apply

State and Federal disputes

Disagreements settled by High Court

Federal government

Makes/changes federal laws, in charge of tax & currency, represents people of Australia, in charge of defense, foreign affairs & immigration

State government

Covers issues affecting people in states/territories, public transport, schools, hospitals, public housing & state police forces

Local councils

Covers issues affecting local communities; rubbish collection & recycling, parks, sports fields, swimming pools, pet control and parking regulations

Types of criminal offences

Summary and indictable

Summary offences

Less serious, less penalty than indictable, heard and sentenced in local court before magistrate (no jury)

- Penalties: bond/fine to jail sentence up to 2 years, up to 5 if convicted of more than one offence

- e.g., breach of WHS regulations

Indictable offences

Serious offences, heard in district court

- Committal hearing at local court, magistrate determines if prosecution evidence is sufficient to move to trial.

- Then heard and sentenced by judge, unless plead not guilty, case tried before judge and jury

- e.g., assault

Adversarial system

A trial system between two opposing sides, presenting arguments before judge/magistrate (used in Australia)

Lower courts

Receive authority and resources from municipal governments; cases can be appealed by higher courts: typically presided by a magistrate

- Children's court

- Local court

- Coroner's court

Intermediate courts

Courts between lower courts and the highest court: typically presided by a judge

- District court

Higher courts

Courts able to overrule decisions of those below them: typically presided by a judge AND jury (in more serious offences)

- State Court of Criminal Appeal

- State Supreme Court

- Land and Environmental Court

- Federal Courts

- High Court of Australia

Appeal

Passing a case up the court hierarchy

Local Court (NSW)

Presided over by a magistrate (no jury); minor criminal offences; civil disputes up to $100000; conducts committal and bail hearings; arrest and search warrants; AVOs

District Court

Trial court before judge (and sometimes jury); indictable criminal offences (e.g. armed robbery, manslaughter); civil cases $100000-$750000; appeals from Local and Children's Courts

Supreme Court (NSW)

Presided over by Chief Justice; jury may be used; most serious criminal cases; civil cases over $750000; appeals from lower courts

Court of Criminal Appeal

Branch of the Supreme Court; highest state criminal appeal court; appeals from District and Supreme Courts only (not Local Court)

High Court of Australia

Highest court in Australia (7 judges, no jury); final court of appeal; hears appeals from State Supreme Courts; interprets the Constitution; decisions bind all courts; can affect powers of Parliament

Children's Court

Specialised court for offenders under 18; care and protection matters; closed court; specially trained magistrate

Coroner's Court

Investigates cause and manner of death; examines fires, explosions and serious incidents

Land and Environment Court (NSW)

Specialised court for environmental protection planning, disputes and enforcement of environmental laws

Members of a court

Judge/magistrate, jury, lawyer, plaintiff, accused/offender, members of the public, media, tipstaff

Judge

Public official who presides over legal matters in court; decides outcome of disputes (guilty/innocent). Addressed as “Your Honour”.

Magistrate

Judicial officer in lower courts; handles minor offences and high-volume cases. Also addressed as “Your Honour”.

Judge and magistrate: evidence

• Cannot ask witnesses questions, except to clarify

• Decide if evidence is admissible in legal proceedings

Jury

Randomly selected group of citizens who decide the facts of a case and deliver a verdict to ensure community representation and reduce bias.

Hung jury

When jurors cannot reach a unanimous decision; judge may order a new trial.

Unanimous verdict (Australia)

All jurors must agree on the verdict.

Civil jury

Usually 6 jurors.

Criminal jury

12 jurors.

Empanelling a jury

The process of selecting jurors for a trial.

Peremptory challenge

Lawyer’s right to reject a juror without giving a reason (limited number).

Role of jury

Listen to evidence, follow judge’s directions, remain impartial, decide guilty/not guilty (criminal) or liability (civil).

• Juries exist to eliminate bias in a court, as judges may not be fully representative of total population.

Jury duty

Mandatory for Australian citizens 18+ on the electoral roll unless exempt.

Jury duty exceptions

Can be exempt if working occupations like doctors, dentists and emergency workers, having financial hardship, personal opinions/knowledge about the case, mental/physical disability or a criminal record.

Standard of proof (civil)

Balance of probabilities (>50% likely).

Standard of proof (criminal)

Beyond reasonable doubt → jurors must be firmly convinced of guilt with no practical doubt as criminal cases & consequences are very serious.

Burden of proof

The legal obligation on a party to prove their claims or allegations in a court of law; requiring sufficient evidence to support it.

Lawyer

Legal professional who represents and argues a party’s case in court.

Prosecutor

Lawyer representing the state in criminal cases.

Cross-examination

Questioning of a witness by the opposing party.

Plaintiff

Person or entity bringing a civil case seeking compensation.

Defendant

Person accused in a criminal case or being sued in a civil case.

Witness

Person who gives testimony under oath in court.

Types of law

Common & statute

Common law

• Developed by judges through court decisions over time.

• Created when no existing precedent applies.

• Built case-by-case using interpretation of past decisions.

Precedent

A past legal principle that binds similar future cases, ensuring equity.

Statute law

• Laws written and passed by parliament (highest form of law).

• A bill is drafted → debated/passed by both Houses → Royal Assent (signed by Governor/Governor-General) → Act of Parliament.

• Courts interpret Acts; interpretations become precedent for judges and courts.

• Overrides common law.

Which court can invalidate a statute?

Only the High Court of Australia, if deemed unconstitutional.

Parliament

Supreme law making authority; makes laws on anything deemed necessary; able to overcome precedent when passing an act.

Laws made by parliament

Legislation/acts/statutes

Customary law

Long-standing legal system based on Indigenous customs and rituals, rooted in kinship, binding in specific communities, passed orally through generations.

Kinship

Foundational system defining how individuals relate to one another, their community, family and the land (Country). 

Aboriginal customary law

1. Breach/offence

2. Offender/accused meets in public with the victim (or one affected)

3. Penalty decided by Aboriginal elders (ranging from banishment to death); carried out by tribe members

4. Restored law/unity

Aboriginal land recognition before 1992

Aboriginal and Torres Strait Islander peoples were denied land rights under terra nullius because British law did not recognise their customary land systems.

Aboriginal land recognition

1982 → Eddie Mabo challenged Queensland’s claim over Murray Island, arguing that the Meriam people were the traditional owners.

• 1992, High Court of Australia ruled in his favour, overturning terra nullius and legally recognising native title.

Native Title Act 1993

First federal law to formally recognise native title and aspects of Indigenous customary law.

• Provides legal framework to establish, protect, and manage native title claims via Federal Court and National Native Title Tribunal

Circle sentencing

Introduced NSW, 2002 → bridge gap by bringing together Aboriginal customary law and mainstream legal system.

• Involved bringing defendant, victim, legal representatives, elders, magistrate and other parties affected by the crime to decide on a sentence together

Public Law

Law regulating relationships between individuals and the state; maintains order and protects freedoms. Includes; industrial, constitutional, administrative, criminal

Industrial Law

Law governing employer and employee rights and obligations, including disputes, workers compensation and WHS.

Constitutional Law

Law outlining how a country is governed, the authority of parliament, and citizens’ rights.

Criminal Law

Public law dealing with offences against society, prosecuted by the state and punishable by judiciary action.

Administrative Law

Law relating to the powers, actions and decisions of government bodies.

Private Law

Law governing relationships, rights and duties between individuals. includes tort, contract, property, family and civil law

Family Law

Law regulating family relationships including marriage, divorce, de facto relationships and child custody.

Property Law

Law governing ownership and transfer of real property (land/buildings) and personal property (goods/services).

Civil Law

Branch of private law allowing individuals (plaintiffs) to bring legal action for civil wrongs.

Tort Law

Private law dealing with civil wrongs where one person infringes another’s rights and compensation may be awarded. Includes: negligence, defamation, nuisance and trespass.

Negligence

Failure to exercise a duty of care, resulting in harm.

Defamation

Publication of false, condemning statements that damage a person’s reputation.

Nuisance

Unreasonable interference with a person’s use or enjoyment of their property.

Trespass

Direct and unlawful interference with another person’s property or land.

Purposes of Punishment

Rehabilitation, retribution, deterrence and incarceration.

Age of Criminal Responsibility (Australia)

10 years old; minimum age a person can be prosecuted for a crime.

Domestic Law

Law that applies within a country and is enforced by its national legal system.

International Law

Rules governing relations between nations and setting global standards of behaviour.

State Sovereignty

The authority of a nation to decide whether to accept international law into domestic law.

United Nations (UN)

International organisation promoting peace and security and helping enforce international law through bodies such as the International Court of Justice and the United Nations Security Council; established by the Charter of the United Nations (1945).

Barriers to accessing the law: time & distance

Time: "Justice delayed is justice denied" → if cases drag on too long, people are not treated fairly; cases should be settled once all evidence is available. Distance: living in remote places = long-distance travel on multiple occasions to see police, a lawyer or the courthouse → time-consuming, costly and difficult to arrange; especially hard without a licence or public transport.

Barriers to accessing the law: procedures & language

Procedures: limited knowledge of the law / unawareness of rights and responsibilities (ignorance of the law); court procedures can seem intimidating and confusing; people may be denied access if they see the legal system as unresponsive to their needs. Language: if English is not a first language, legal terminology and procedures are hard to understand; may need an interpreter; being unable to communicate needs limits access to the law.

Why do laws change? + Law reform

The law is a set of dynamic legal rules → new laws develop and old ones are scrapped due to changes in (1) social values, (2) technology and (3) political circumstances. Citizens pressure govt to amend/introduce laws (e.g., protest). Law reform = updates or amendments to laws to keep them modern, fair and responsive to society's needs and values.

One-punch laws: definition & context

One-punch assault = a strong single blow that causes a person to lose consciousness, leading to a secondary impact between the individual and the environment (e.g., head hitting the ground). Context: 2012–2013 deaths of Thomas Kelly and Daniel Christie in Kings Cross from unprovoked single punches by strangers ('king hits'/'coward punches') → public outcry → major NSW reforms targeting alcohol-fuelled violence.

One-punch laws: the key legislation & mandatory sentencing

Crimes & Other Legislation Amendment (Assault & Intoxication) Act 2014 (NSW) → amended the Crimes Act 1900 (NSW) • Introduced new "one-punch" offences causing death when intoxicated • Created mandatory minimum sentences for fatal one-punch assaults • Part of broader measures incl. lockout laws and alcohol restrictions. Mandatory sentencing = courts must impose a predetermined minimum or fixed penalty for specific crimes, limiting judicial discretion regardless of individual circumstances.

One-punch laws: what the reform aimed to address (4)

1. Alcohol-induced violence – late-night assaults in entertainment precincts (e.g., Kings Cross).
2. Inadequate penalties – punishments for assault/manslaughter (both indictable) argued to be too lenient and inconsistent.
3. Deterrence – establish boundaries and prevent future assaults.
4. Community values – intoxication does not excuse or reduce the severity of a crime.

One-punch laws: conditions giving rise to the reform

• Thomas Kelly (2012) & Daniel Christie (2013) killed by single punches in Kings Cross → intense media coverage + public outrage • R v Loveridge → initial sentence for Kelly's killer seen as too low, sparking debate on sentencing adequacy and respect for victims • Concentration of licensed venues, binge drinking and late trading linked to more assaults • Victims' families criticised laws for not upholding justice • Perceived gap in the law: one-punch assaults relied on existing assault provisions, making sentencing harder and less fair

Cyberbullying law reform: context & Dolly Everett

Context: cyberbullying increased with social media, messaging apps and online gaming; harmful content spreads fast and stays online permanently; young people suffered mental-health issues, fear, humiliation and harassment → laws introduced to protect victims and punish serious online abuse. Dolly Everett: 14-year-old from the NT who experienced severe online bullying (leading to her suicide); her death in 2018 drew national attention → public pressure for stronger online safety protections and faster removal of harmful content; highlighted need for federal and state responses.

Cyberbullying: federal response

Online Safety Act 2021 (Cth) • Gave the eSafety Commissioner power to remove harmful content • Protects children and teens from serious cyberbullying • Enables investigation of complaints and fining of platforms

Cyberbullying: state (NSW) response

Stronger use of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) against cyber harassment and intimidation • NSW Police increased focus on charging online offenders for stalking, intimidation and threats via social media/messaging apps • Schools and police given clearer reporting and intervention processes for serious cyberbullying