Commerce

1.        Outline the nature of laws and the reasons for laws (establish boundaries, protection, freedom, resolving disputes) in society in relation to values, morals and ethics

·        Laws are a set of legal rules established by the government

-            They are inflexible

-            Consequences of breaches can be serious

-            Enforced by police and courts

·        Ethics, morality and Law

-            We develop a sense of what is right and wrong from the moral and ethical values of our society.

-            Letter of the law à legal

-            Spirit of the law à ethics

·        Criminal law:

-            The purpose of criminal law is to protect individuals from others doing the wrong thing – to make the community feel safe from harm.

-            A criminal act is seen as an attack on the ethical and moral standards of society, so it is the responsibility of all to punish those found guilty.

-            Constantly evolving area of the law

·        Civil law:

-            Aim is to address the defendant’s wrong by way of a remedy or court order in favour of the plaintiff

·        Why do we need laws/reasons for laws

-            Establish boundaries

Ø  Laws establish boundaries of acceptable behaviour and determine which actions might not be tolerated

Ø  E.g. drink-driving laws reflect society’s attitude that placing other road users at risk through intoxication is unacceptable

-            Protection

Ø  Laws provide protection from the actions of others as well as our own behaviour

Ø  Does this by telling society what it cannot do

Ø  In this role, law restricts our individual freedom but provides safety for all individuals in society.

-            Freedom

Ø  Laws provide freedom to do many things by telling society what people can do

Ø  For example, the law allows us to own and operate a business, drive a car, get married and divorced or leave school

2.        Outline key features of Australia’s court system

·        Adversarial system

-            In Australia, the method of trial used is called the adversarial system – two opposing sides present their arguments to an independent umpire, judge or a magistrate.

-            Game of ‘tug o’ war’ – two opposing sides, often a lot of ‘tension’ in the court room when arguments are being presented!

·        Appellate system

-            The Appellate system or jurisdiction refers to the power of a court to hear appeals from lower courts.

-            Appeals can only be considered if new information is available or the legal process has not been undertaken correctly.

·        The Australian Constitution and High Court

-            High Court:

Ø  Is the highest court in Australia

Ø  Is the final court of appeal

Ø  Presided over by the Chief Justice and six other judges (also referred to as justices)

Ø  Some cases are heard by an individual justice

Ø  The most serious cases are heard by the full bench (all 7 justices)

Ø  Most cases it hears are appealed from lower courts

Ø  Also hears a range of cases including disputes over constitutional matters, disputes between states, disputes between a state and the federal government, issues where the commonwealth government is being sued by a person or organisation.

·        Federal Court and State courts (Local, District, Supreme)

-            Local courts:

Ø  Both civil and criminal matters are heard in this court

Ø  Presided over by a magistrate who makes a decision based on evidence

Ø  Solicitors/lawyers represent their clients and usually wear a suit – no wig or gown

Ø  NO JURY

Ø  The Magistrate determines both the verdict and the sentence

Ø  A range of summary or minor offences are presented

Ø  less than 2 years in prison.

Ø  Compensation < $100,000.

Ø  Is the court where committal hearings are undertaken à all cases are heard here initially, to determine the court in which proceedings will take place.

Ø  Classed as inferior courts

-            District Courts:

Ø  Presided over by a judge

Ø  The judge may be supported by a jury, especially in criminal matters.

Ø  Judges listen to the evidence and then determine the sentence with no jury.

Ø  The jury for a criminal matter is made up of 12 people.

Ø  The jury or judge determines the verdict

Ø  Hears indictable matters (serious criminal matters)

Ø  Compensation in civil cases $100,000-$750,000.

Ø  Clients are usually represented by a barrister who is supported by a solicitor/lawyer. The barrister wears a wig and gown.

Ø  Is the first appellate court, hearing appeals granted on decisions made in the lower court.

Ø  District courts are classed as intermediate courts.

-            Supreme Court:

Ø  Highest court in NSW

Ø  Classed as a superior court

Ø  Has both an appellate and trial jurisdiction

Ø  Presided over by a judge or panel of judges who deal with the most serious criminal and civil matters.

Ø  Judges wear a wig and gown

Ø  A jury can also support the judge in trials

Ø  Compensation >$750,000

Ø  Jury or judge decide the verdict

3.        Specialised Courts (Children’s Court, coroner’s court, family court, land and environment court).

·        Land & Environment

-            Hears cases dealing with building or development applications

-            Enforces cases under the planning and environment laws

-            Also hears criminal matters that involve environmental offenses such as the dumping of waste or illegal land clearing

-            Matters are heard by a judge

-            No juries

·        Coroner’s

-            Investigates cases where sudden, unexpected or unexplained deaths, suspected deaths, fires and explosions have occurred

-            The Coroner cannot find someone guilty or impose a sentence but has the power to investigate and discover the facts that contribute to the unexplained outcomes

-            The coroner has the power to make recommendations following an inquest, to improve public safety and prevent future deaths

·        Children’s

-            Deals with matters that involve children and young people under the age of 18

-            Presided over by a magistrate

-            Closed to the general public – the only people admitted to the courtroom are those directly involved in the case

-            Operates under a less formal atmosphere than other NSW courts

-            Identity of children kept confidential

·        Family Court

-            Is a superior court in Australia

-            Deals with a range of issues that arise from the breakdown of personal relationships

-            E.g. matters of divorce and separation, custody of children etc.

4.        Explain the role of the High Court in interpreting the Australian Constitution

·        It reads, interprets and applies the Constitution and, in reaching verdicts, it creates laws that then affect the powers of parliaments.

·        The High Court, through its interpretation of the Constitution, has shifted the balance of power away from the states and towards the Commonwealth.

·        The High Court can declare any law invalid if it is contrary to the Constitution.

5.        Explain how laws are made including the role of Cabinet, private members, committees, passage through both houses of parliament and the granting of royal assent by the Governor General

a)        A proposed new law, or change law, is discussed in Cabinet. Often, people in Australia put pressure on the government to change something. A decision is then made what to do.

b)       If the government decides to proceed, government lawyers are asked to draft a bill. A bill is basically a ‘first draft’ of an Act of Parliament.

c)        Copies of the bill are given to all members of the House of Representatives. The members read the material in their own time. This is known as the ‘first reading’.

d)       The bill goes through a ‘second reading’. During this stage, the responsible minister (e.g., the minister for Immigration if the bill is to do with migrants) describes the main purpose and likely benefits of the bill. Speakers from the government and Opposition say what they think about it. Debates may take weeks. Then there is a vote. If the majority vote in favour, the bill moves to the next stage.

e)        The bill is debated again, this time bit by bit. This stage is known as the committee stage, as the debate occurs in parliamentary committees. Changes to the bill may be made.

f)          The bill, including any changes made during e), goes through a ‘third reading’ in the house. A vote is taken. If the majority vote for it, the bill is passed through to the Senate.

g)        Similar processes to those outlined in steps c) – f) occur in the Senate. If the Senate decides to change something, the bill is referred back to the House of Representatives for another debate and vote. Sometimes the Senate may refuse to approve a bill. If it is a money supply bill, the Governor-General calls a double dissolution of parliament (as the government cannot govern without money). If the senate votes to approve the bill, it is sent to the Governor-General for Royal assent.

h)        The Governor-General meets with a select number of government ministers in a meeting of the Executive council. If he or she approves and signs the bill, it becomes an act of Parliament. It is now legally binding for all Australians.

Summary:

a)        Proposed bill is discussed in cabinet

b)       Govt. lawyers draft the new bill

c)        Bill is given to the members in the HOR (150 MP) – first reading

d)       2^nd reading discuss and vote

e)        Bill goes to the Committee stage – more detailed discussion

f)          3^rd reading – vote taken – if passed is handed to the Senate

g)        Read and voted on 3 times (if changed must go back to HOR)

h)        If bill approved (majority vote) then must be signed by GG à Royal Assent

6.        Outline types of laws including:

Every Australian has two main legal relationships – the first being between a person and the state (government) – “public law”, and the second the relationship of one Australian with another – “private law” or “civil law”.

·        Private/civil (contract law, 4 torts – negligence, defamation, nuisance, trespass)

-            Tort law

Ø  Deals with situations where one person infringes the rights of another resulting in distress or injury, e.g. the mental distress caused by being bullied.

Ø  Negligence – where a person fails to take reasonable care and, as a result, injures another person.

Ø  Defamation – where a person causes unreasonable interference with another person’s rights

Ø  Trespass – where a person interferes with another person, or that person’s property rights

-            Contract law

-            Property law

-            Family law

·        Public/criminal – the elements of criminality (mens rea, actus reus), 6 types (crimes against person, crimes against property, white collar crime, crimes against the state, public order offences and traffic offences)

-            Elements of criminality

Ø  Actus reus –

o   Latin term meaning ‘guilty act’ refers to the physical act of carrying out the crime.

o   Physical evidence and witness testimony can help the prosecution prove that it was the accused who carried out the act.

o   Often easiest element for prosecution to prove

o   Must be a voluntary act but can also include an omission or failure to act, particularly in cases of criminal negligence

Ø  Mena rea –

o   Latin term meaning ‘guilty mind’, refers to the mental state of the accused.

o   In order for the prosecution to succeed, must be able to prove that, to the necessary degree, the accused intended to commit the crime.

o   Defendant understands what is happening when act is committed

-            criminal law

Ø  Criminal Acts are defined by the Crimes Act 1900 (NSW) and other statutes and by common law.

Ø  Criminal offences – summary = minor, indictable = serious

-            administrative law

-            constitutional law

-            industrial law

·        Link the concepts of balance of probabilities and beyond reasonable doubt

-            Guilty beyond reasonable doubt – the standard of proof required in a criminal case for a person to be found guilty.

Ø  vote among jurors for guilty verdict is unanimous

Ø  The Crown must prove its case beyond reasonable doubt in a criminal case – if any other reasonable conclusion besides proving the criminal charges can be drawn from the evidence, there is reasonable doubt

Ø  If there is any doubt as to the guilt of the defendant, a ‘not guilty’ verdict must be given.

-            Balance of probabilities

Ø  Civil law differs from this, as a much lower standard of proof is required – the balance of probabilities

·        Domestic vs international law

7.        Describe the role of legal personnel (judge, magistrate, jury, witness, barristers, solicitors, sheriff, court reporter)

·        Counsel for the defence:

-            In a criminal case represents the accused, or the defendant.

-            accused pleads guilty, presents arguments to try to lessen the punishment.

-            accused pleads not guilty, attempts to convince the judge or jury that the defendant is innocent.

-            In a civil case, attempts to convince a judge (and occasionally a jury) that no wrong has been committed – if successful, accused doesn’t have to pay damages.

·        Prosecutor:

-            Has to convince the jury that a person is guilty.

·        Judge:

-            Judge cannot question a witness, except to clarify a point

-            Must listen to arguments presented by the prosecutor and counsel for defence.

·        Jury:

-            Responsibility in a criminal trial is to decode upon whether the accused is innocent or guilty beyond reasonable doubt.

·        Sheriff – the Sheriff’s officers serve summonses and provide security for the court

8.        Describe selection of juries including the empanelling process and discuss their role in Australia’s legal system – arguments for and against.

·        In a criminal case, jury = 12, civil jury = 6

·        Role:

-            To be independent and decide on the facts of the case.

-            Must decide what they believe actually happened according to the evidence they have heard.

-            In a civil trial they must decide on the balance of probabilities whether a defendant is liable

-            in a criminal trial they must decide on whether the accused is innocent or guilty beyond reasonable doubt

-            To do this they must:

Ø  Listen to all the facts of the evidence, and remember and understand them

Ø  Decide what they believe actually happened according to the evidence they have heard.

Ø  Put aside their own prejudices or bias

Ø  Be fair and impartial

Ø  Understand points of law the judge explains

Ø  Deliver a verdict on the guilt or innocence of the accused in a criminal trial, or decide if a party is liable to a civil trial

·        Points for and against:

-            For:

Ø  A jury is a cross-section of society and therefore reflects society’s values and attitudes

Ø  There is widespread acceptance of the jury system

Ø  The final decision is made by more than one person

Ø  Juries are independent and impartial decision makers who are not controlled by the government

Ø  Ordinary citizens are given the opportunity to play an active role in the administration of justice

Ø  It provides an opportunity for the community to understand the final decision.

Ø  It reduces the possibility of bribery or corruption which might occur if only one person is to decide the outcome of the case

-            Against:

Ø  Because some people are exempt from serving, the jury is not a true cross-section of society

Ø  Ordinary people may not understand complex legal technicalities

Ø  Juries do not have to give reasons for their decisions

Ø  Juries can be persuaded by the skills of clever lawyers

Ø  It is difficult for people to remain completely impartial, especially if they are influenced by the media coverage of the trial.

Ø  It costs a lot of money to operate and the jury selection process can be time consuming.

Ø  Jurors could be biased and may be influenced by their own personal prejudices./

·        Empanelling process:

-            Juror number assigned – anonymity – open court rooms

-            300 jurors waiting to be allocated to a case/court room

-            Clerk handles all administration/documents – methodological, slow, specific processes

-            Initially 50 potential jurors (witnesses, lawyers, police, accused) – avoid conflict of interest/bias

Ø  Judge asked whether all potential jurors were ok with the details of the case – avoid mis-trial

Ø  Random selection of jury members by clerk – defence attorney have the right to ask you questions and can dismiss jurors

-            12 jurors confirmed – foreperson elected by the jury – deliver the verdict

-            Jury deliberation room (along ‘secret’ corridor at back of court room)

-            Turn phones in – not allowed at cafes/exclusion zone

-            No interaction between judge/jury/accused/witnesses

-            Very formal processes “jury your honour”

-            Sheriff Dept – bailiff

-            Jury members not allowed to look up the Trial – avoid mistrial

-            Juror can be jailed and/or large fine

-            Justice prevails

Glossary: