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: 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 and Court System
- 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.
The law-making process (Bill to Law)
- Step 1 – Cabinet discusses idea for a new law (influenced by public pressure).
- Step 2 – Government lawyers write a draft – called a Bill.
- Step 3 – First Reading – members read the Bill.
- Step 4 – Second Reading – Bill is debated.
- Step 5 – Committee Stage – each part is looked at and changed if needed.
- Step 6 – Third Reading – vote is taken.
- Step 7 – Senate repeats process.
- Step 8 – Governor-General gives royal assent – signs it into law.
Private/Civil 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
- Public/Criminal Law - Offences against society.
- Elements of Public/Criminal Law: Mens rea, Actus reus.
- Mens reas – guilty mind (intent).
- Actus reus – guilty act (action).
- Types of crimes:
- Against person – crimes involving direct physical harm or force (e.g., assault, murder).
- Against property – crimes affecting ownership rights (e.g., theft).
- White collar – nonviolent crimes usually in commercial settings for financial gain (e.g., fraud).
- Against state – crimes affecting the security of the state (e.g., treason).
- Public order offences – acts that disrupt peace and order (e.g., rioting).
Traffic offences
- Occurs when someone driving a vehicle, or someone in a vehicle, breaks a law (e.g., speeding).
Civil law vs Criminal law: standard of proof
- Civil law – on the balance of probabilities.
- Criminal law – beyond reasonable doubt.
Domestic and International Law
- Domestic law – laws within Australia.
- International law – agreements between countries (UN, treaties).
Key roles in court
- Judge – leads trials in higher courts, decides sentence.
- Magistrate – handles Local Court cases.
- Jury – listens to evidence and decides verdict in serious cases.
- Barrister – argues the case in court.
- Solicitor – gives legal advice, prepares documents.
- Witness – gives evidence.
- Sheriff – provides court security, delivers summons.
- Court Reporter – records everything said.
- Empanelment – process of selecting a jury from the public.
- Number of Jurors:
- Criminal – 12 jurors.
- Civil – 6 jurors.
- Pros & Cons of Juries:
- Pros: community involvement, fair trials.
- Cons: expensive, slow, and people may be biased.
Bail and related concepts
- Bail – release from custody while waiting for trial.
- Who decides bail? – Judge/magistrate.
- Conditions of bail – may include staying at home, no contact with victim.
- Eligibility of bail – not everyone gets bail (depends on case).
- Payment of bail – by accused or surety.
- Refundability of bail – yes, if conditions followed.
- Fine – a penalty of money that a court or other authority decides has to be paid for a crime or offense.
- Capital punishment – death penalty (not used in Australia).
Cost and accessibility to law
- Cost impact – fees and expenses needed to hire a lawyer or representation.
- Distance – very difficult in rural areas; costly travel.
- Time – can take long and impact jobs and family life.
- Procedures – can be confusing due to extensive information and interpretations.
- Language barriers – lack of English proficiency can hinder access.
- Legal Aid – independent statutory authorities that help provide 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, focused on restoring relationships.
- Only now being partially recognised in courts after years of unrecognition.
Additional legal concepts (glossary-style entries used in the transcript)
- Actus Reus – action or conduct which is a constituting 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 in a higher court.
- Australian constitution – the 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 weighed to reach a decision.
- Beyond reasonable doubt – the prosecution must convince the jury there is no other reasonable explanation from the evidence.
- 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 commit the matter to a higher court.
- Common law – “Judge-made Law”; law created by judicial decisions and precedents, as opposed to statutes.
- Community service – alternative to imprisonment; offenders complete unpaid work to repay society.
- Court – a body of people presided over by a judge or magistrate acting as a tribunal in civil and criminal cases.
- Defendant – the accused person; a person who must defend their actions in court.
- Empanel – enroll someone onto a jury.
- Fines – monetary penalties.
- Indictable offences – serious crimes that can be prosecuted by indictment, heard by a higher court or jury.
- International law – law between states and nations; independent system.
- OIL – Office of International Law.
- Judge – 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.
- Kinship – blood relationship.
- Laws – system of rules recognized by a country or community to regulate actions and enforce penalties.
- Magistrate – official who acts as a judge in law courts handling minor crimes or disputes.
- Mens Rea – intent or knowledge of wrongdoing that constitutes part of a crime.
- Precedent – unwritten laws established by courts to guide future decisions in similar cases.
- Prison – a building where people are held as punishment or awaiting trial.
- Private Law – relates to relations between individuals or institutions.
- Public Law – law relating to relations between individuals and the state.
- Prosecutor – legal official who accuses someone of committing a crime.
- Statute Law – law made by Parliament; introduced as a bill and passed into an act.
Tort and Trial concepts
- Tort – a wrongful act or infringement of a right (not under contract) leading to legal liability.
- Trial – formal examination of evidence by a judge, typically before a jury to decide guilt in criminal or civil proceedings.
- Weekend detention – periodic detention; a form of imprisonment where the offender lives at liberty during the week and spends weekends in a detention centre.