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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.