Commerce (Semester 1) Flashcards
What are laws?
A set of legal rules
Why do we need laws?
Without laws, anarchy could develop as people would be able to do as they want. However, law creates order, resulting in a peaceful society.
Outline the main roles of laws.
- To establish boundaries of acceptable behaviour
- Protect from the actions of others and our own behaviour
- To define freedom
- To resolve disputes via the legal system, in order to prevent people from taking the law into their own hands
What are the features of a good law?
- In the interest of the people
- Does not discriminate
- Reasonable, and not rigid
- Flexible
- Able to be enforced
- Known to the public
- Unoppressive
Why is “balance” important in the number of laws in a society?
- If society has too many laws, people’s freedoms are severely restricted.
- However, if there are too little laws society turns into chaos.
- Thus, balance ensures that order is kept while allowing freedom.
What are the origins of Australian law?
Our current legal system is based (largely) on the British legal system. The foundation of our legal system is the Constitution.
What type of legal system existed before the arrival of Europeans to Australia in 1788?
Kinship, used in Aboriginal law - kinship outlined the correct way of living in everyday situations (sharing food, marriage etc.)
What are the core set of principles that our legal system is based on?
- Fairness - decisions made on basis of known established rules
- Transparency - what happens in legal system can be seen and understood by general public
- Equality before the law - everyone treated in same way by legal system regardless of status
- Freedom from bias - decision maker must not have personal interest in decision
- The right to be heard - person who is affected by legal system’s decision has right to present views and facts that support evidence to decision maker before decision made.
What’s another name for the core set of principles that our legal system is based upon?
Principles of natural justice
Outline the role of the key institutions and individuals in our legal system.
- Parliament - alters law, upholds it
- Courts - uphold rule of law, resolve disputes and test and enforce laws
- Tribunals - reviews government administrative decisions
- Police - enforces Commonwealth criminal law
What does the Parliament do in our legal system?
Alters the law and upholds it.
What do the Courts do in our legal system?
uphold rule of law, resolve disputes and test and enforce laws
What do tribunals do in our legal system?
They review government administrative decisions
What do the Police do in our legal system?
They enforce Commonwealth criminal law.
What is empowerment?
strengthening the capacity of all people to exercise their rights and represent their interests, either as individuals or as members of a community
How do laws (and the legal system) empower individuals and groups in our society?
Laws and the legal system allow individuals and groups to improve or transform their social, political or economic situations.
Give an example of legal empowerment.
Legal empowerment of the poor allows them to utilise legal services to improve their economic situation and livelihoods, allowing them to alleviate or escape poverty.
What are courts?
a place where people can resolve disputes relating to law
What is the court hierarchy?
The variety of courts and tribunals at the federal, state and territory levels, organised into the severity of offences that they hear.
Describe the relationship of the courts within the hierarchy.
Local court -> District Court -> Supreme Court -> (Appeals) Court of Criminal Appeal) -> High Court of Australia
Where is the Local Court in the hierarchy?
The Local Court is the lowest in the hierarchy.
Where is the Children’s Court in the hierarchy?
The Children’s Court is equal to the Local Court in the hierarchy.
Where is the Coroner’s Court in the hierarchy?
Equal to Local Court
Where is the District Court in the hierarchy?
Above Local Court.
- It’s considered the ‘middle’ court
Where is the Supreme Court in the hierarchy?
Above District Court.
- Highest court in NSW
Where is the High Court in the hierarchy?
Above Supreme Court, as the highest court in Australia
Where is the Family Court in the hierarchy?
The Family Court is a Commonwealth court.
What type of civil matters does the Local Court deal with?
Deals with minor civil disputes with monetary value up to $100 000 or injury claims up to $100 000.
What type of civil matters does the Children’s Court deal with?
Deals with cases involving care and protection of children and young people
What type of civil matters does the Coroner’s Court deal with?
Investigates deaths by unnatural causes
What type of civil matters does the District Court deal with?
Deals with more serious civil cases for claims $100 000 - $750 000 and all motor vehicle accident cases
What type of civil matters does the Supreme Court deal with?
Deals with most serious civil cases involving $750 000+
What type of civil matters does the High Court deal with?
The High Court doesn’t deal with civil matters.
What type of civil matters does the Family Court deal with?
Deals with family law matters (e.g. divorce, separation of children)
What type of criminal matters does the Local Court deal with?
Hears (majority of) summary offences (minor criminal matters) - e.g. stealing, drink-driving, assault, possession of drugs and indecent language
Hears committal hearings.
What type of criminal matters does the Children’s Court deal with?
Deals with criminal matters committed by young people under the age of 18
What type of criminal matters does the Coroner’s Court deal with?
Investigates cause and origin of fires and explosions
What type of criminal matters does the District Court deal with?
Deals with serious criminal matters such as armed robbery/burglary.
What type of criminal matters does the Supreme Court deal with?
Deals with most serious criminal cases such as murder, treason and serious sexual assault.
What type of criminal matters does the High Court deal with?
Hears cases concerning interpretation of Australian Constitution
What type of criminal matters does the Family Court deal with?
The Family Court does not deal with criminal matters. It deals with family law.
What’s the maximum amount of money that the Local Court can deal with in civil disputes?
$40 000
What’s the maximum amount of money that the Local Court can deal with in injury claims?
$100 000
What’s the minimum/maximum amount of money that the District Court can deal with in civil disputes?
$100 000 - $750 000
What’s the minimum amount of money that the Supreme Court deals with in civil cases?
$750 000
Are the High Court’s decision’s final?
Yes.
Where do appeals from Family Court go?
To the Full Court of Family Court, then to High Court.
Who presides over the different courts?
- Local court: Magistrate
- District court: Jury/judges
- Supreme court: Jury/judges
- High Court: Seven judges
Who presides over the Local Court?
Magistrate
How many judges are there in a jury?
12
How many judges are there in the High court?
7
What is an adversarial trial system?
A system in which two opposing parties present their arguments to a magistrate or judge, the independent party
Who is the accused person/defendant?
The person charged with crime, who defends his/her actions.
What does the court reporter/transcriber do?
court staff member who records hearing & writes/types what’s being said
What does the court officer do?
He/she helps judicial officer and people coming into courtroom. Organises court lists, calls witnesses and administers oaths.
What does the corrective service officer do?
provides transport and security for people in custody
What’s another name for the accused?
The defendant.
What does the defence lawyer / counsel do?
represents the defendant, and attempts to convince a judge/jury that no wrong has been committed
What court is the Magistrate in charge of?
Local
What is the Magistrate addressed as?
“Your Honour”
What does the Magistrate do?
Decides whether a person is guilty or innocent, and decides punishments/monetary value of damages. Refers very serious criminal offences to District court.
What’s another name for a judge?
Judicial officer
What does the judicial officer do?
public officer appointed to decide cases in a law court and administer justice impartially.
What does the judge’s associate do?
helps judge in court with documents and exhibits used in case
Who are the jurors?
Public citizens.
What do the jurors do?
sit on jury panel, consider evidence in court and decides on matters of fact.
Who is the prosecutor, and what does he/she do?
represents police/state in criminal matters
What do support people do?
offer support to particular witnesses
What does the witness do?
gives evidence in case under oath/affirmation. Answers questions asked by prosecutor and defense.
What are juries?
a body of people sworn to decide a verdict in a legal case on the basis of evidence submitted to them in court.
What is the role of jureis
to ensure that legal verdicts are impartial & reflect community’s behaviour standards
How are jurors summoned for jury duty (process)?
A jury summons/notice is sent out a month before the date of attendance.
How are jurors selected (empanelled)?
Juries are selected at random from people in community who are enrolled on the State electoral roll
Who may be exempt from jury duty?
- People with a conflict of interest
- People with an occupation which may not allow them to serve impartially
- People with a permanent mental or physical impairment that makes them incapable of doing jury service
- People wth a disability that impairs their ability to serve as a juror
- If jury service would cause undue hardship / serious inconvenience to you, your family or the public
- People with good cause to be excused (etc. care of children, lectures/exams, advanced stage of pregnancy, unable to read/understand English)
What are the advantages of the jury system?
- Jury is a cross-section of society and reflects society’s values/attitudes
- Wide-spread acceptance
- Decision made by more than one person
- Juries are independent and impartial decision makers who are not controlled by the government
- Juries are comprised by ordinary citizens
- Provides opportunity for community to understand final decision
- Reduces possibility of bribery or corruption
What are the disadvantages of the jury system?
- Some people are exempt from serving, thus jury is not cross-section of society
- Ordinary people may not understand complex legal technicalities
- No reasons have to be given for decisions
- It is difficult to be completely impartial
- The jury selection process can be time consuming, and costs money to operate
- Jurors could be biased and influenced by their own personal prejudices
List four types of private law.
tort, contract, family, property
List four types of public law
criminal, Constitutional, administrative, industrial
What’s the difference between private and public law?
Private law: deals with relations between individuals
Public law: deals with relations between individuals and state / behaviour within society as a whole
What’s the difference between civil and criminal law?
- Civil law: deals with non-criminal matters / disputes between private parties
- Criminal law: deals with criminal matters / wrongs committed against the government
What does civil law fall under?
Private law
What does civil law focus on?
Tort and contract law.
How is the burden of proof different between civil and criminal cases?
- The plaintiff in a civil case has the burden of proving his case by BALANCE OF PROBABILITIES.
- The burden of proof lies with the State in a criminal case, who must PROVE BEYOND REASONABLE DOUBT.
What is bail?
the temporary release of an accused person awaiting trial, sometimes on condition that a sum of money is lodged to guarantee their appearance in court.
How can you be granted bail?
You may have to ‘show cause’ (e.g. why locking you up isn’t justified). The court will also consider ‘bail concerns’.
What are bail concerns?
Four things:
will you attend court when you have to?
will you commit serious offences?
will you endanger any person or the community?
will you interfere with witnesses or evidence?
What’s the difference between common law and statute law?
Common law: the decisions given by judges / law established by court decisions
Statute law: formal written legislation that has been passed through Parliament.
What are precedents?
A decision, made by a judge when there is no existing law that regulates the case, that is regarded as a standard to be followed in subsequent similar circumstances.
Describe how laws are made in Parliament – how do bills become laws?
- First reading - bill introduced to House of Representatives
- Second reading - members debate and vote on main idea of bill
House committee - public inquiry into bill and report back into house
Consideration in detail - members discuss bill and changes in detail - Third reading - members vote on bill in final form
- Bill passed in House of Representatives and sent to Senate
- Senate - first reading
- Senate - second reading
Senate committee
Committee of the whole - senators discuss bill in detail - 3rd reading - senators vote on bill in final form
- Bill passed in Senate and sent to Governor-General
- Royal assent - Governor General signs bill
- Bill becomes act of parliament
What is a constitution?
A document that outlines the powers of the parliaments and any restrictions to its law-making authority.
What is the difference between the Federal and State constitutions?
The Australian constitution limits the powers of the Federal Parliament.
What is the significance of the Australian constitution for Federal and State legislation? Consider the Separation and Division of Powers.
The Australian constitution governs who makes laws, and overrides everything else. It thus separates powers and prevents one body from having majority control over the law of Australia.
How do laws change?
They go through Parliament (statute law), or through judge’s decisions in courts (common law)
Why do laws change?
Laws change because they reflect changes in society (e.g. political circumstances, new technology, pressure from citizens)
What is the process for changing laws?
- Statutory law changes through Parliament.
- Common law changes when judges make decisions that become precedents, which become the building blocks of common law.
Which groups are involved in the process of change?
- Australian Law Reform Commission / ALRC - permanent and independent federal statutory body that examines how areas of law may be changed/reformed upon request of Attorney-General
- Lobby groups - advocate private and public interests
What are the positives of changing laws?
- Laws remain relevant to our society
- Laws reflect our social values, technology and political circumstances
What are the negatives of changing laws?
- Laws may be inconsistent as they change
- Change can be so rapid that new laws may be outdated by the time they come into force.
What are some contemporary Australian examples of changing laws?
- Sex Discrimination Act 1984 - created due to feminist movement and pressure created by increasing numbers of women in workforce (social change)
- Telecommunications (Interception and Access) Act 1979 - reformed in 2006 to include communications stored by telecommunications carrier (e.g. SMS, voicemail, email), due to volume of telecommunications methods used today
Why is it important that people can access the law?
- To ensure that everyone has equal access to the law, and thus allow the law to safeguard people’s rights
- To ensure transparency of the justice system
Which groups may have difficulty accessing the law? Why – what are the key barriers?
- People with low income - obtaining legal advice expensive (cost)
- People in remote areas - trials are lengthy, and having to travel back and forth may cost time (time)
- People for whom English is not their first language - hard to understand legal terminology without interpreter (language)
- People who are unemployed / uneducated / have a mental disability - limited knowledge of law restricts awareness of rights and responsibilities, and thus access
How are these issues to accessing the law addressed?
- There are various free government services that provide legal information and referrals via various methods such as telephone, web access or physical offices
- e.g. LawAccess NSW, Legal Aid NSW
- Interpreters are available to alleviate language barriers
What does legal capacity refer to?
A person’s authority under law to engage in a particular undertaking
What’s the difference between a minor and an adult?
A minor is under 18
A adult is over 18
What are some examples of minimum age requirements for when rights and responsibilities are granted to young people?
- Leaving home: minimum age 16, provided you have a safe place to live and you can financially provide for yourself
- Get a full-time job: minimum age 15. To work full-time before 15, you need permission from the Minister for Education
- Drinking alcohol: 18, on licensed premises
- Purchasing cigarettes: 18
Why do the minimum age requirements differ?
These differences exist, because some things may negatively impact young people whereas other things may allow minors to provide for themselves (etc.). It prevents discrimination by age.
When is a young person considered to be an adult as an accused person? What can the outcome of this be?
- Once 10, you can be accused.
- Between 10-14 years of age, you have limited responsibility and it must be proven that you knew what you did was ‘seriously wrong’.
- If under 10, you are not seen as mature enough to commit a criminal offence.
When is a young person considered to be an adult as an witness? What can the outcome of this be?
No age limit
Children can be called as witnesses only if it can be shown that they understand the ‘oath’. If not, this may impair their evidence.
When is a young person considered to be an adult as an victim? What can the outcome of this be?
You can be a victim at any age.
What are the two elements that must be proven to in a criminal case?
Actus reus, mens rea
Explain actus reus.
the guilty act committed by the accused voluntarily
Explain mens rea.
the intention of wrongdoing that constitutes part of the crime.
Explain the two elements that must be proven to in a criminal case.
- Actus reus: the guilty act committed by the accused voluntarily
- Mens rea: the intention of wrongdoing that constitutes part of the crime.
List three different punishments.
Fines, imprisonment, community service
What would be suitable punishments for hooning?
Fines, impounding vehicle
What would be suitable punishments for graffiti?
Imprisonment, fines, community service
What would be suitable punishments for shoplifting, stealing, fraud or burglary?
fine, imprisonment, community service
What would be suitable punishments for drug offences?
Imprisonment
What would be a suitable punishment for assault?
Imprisonment
What would be suitable punishments for murder, attempted murder and manslaughter?
Imprisonment
What would be a suitable punishment for transport fare evasion?
Fine, appearance in court, imprisonment
What are the advantages of fines?
- Penalises criminal only
- Can be used to compensate victim
- Appropriate punishment for non-violent crimes
What are the disadvantages of fines?
- Inadequate for violent crimes
- Poor criminals may be unable to pay
- May give other people financial incentive to frame other people for crimes they didn’t commit
What are the advantages of prison?
- Deterrent
- Prevents criminals from committing more crimes
What are the disadvantages of prison?
- Costly
- Does not compensate victim of crimes
- Facilitates training of criminals
- Immoral and inappropriate for non-violent crimes
- Does not rehabilitate at times
What are the advantages of community service?
- Avoids custodial sentence
- Allows person to begin rehabilitation immediately
- Positive and publicly visible contribution to society
- Disadvantages
What are the disadvantages of community service?
- Limited potential to compensate victim
- May not be seen as adequate punishment
- Does not work on some people (addictive behaviours)
How can some incidents lead to both civil and criminal law action?
This can occur if the incident affects the individual and is also a crime against the state.
Provide an example of how incidents can lead to both civil and criminal law action.
Lee snatches Fiona’s bag and breaks her arm, making it impossible for her to work and causing her pain and suffering. (Individual)
The police catch him and charge him with assault and robbery. (State) He is given a large fine and a suspended jail sentence (criminal law action). Fiona then takes a civil case against Lee (tort law) seeking compensation for her pain and suffering / lost wages.
What is a contract?
a legally binding agreement.
What are the elements of a contract?
- Agreement (the offer and acceptance of it)
- [The] Consideration (money, or the promise to undertake / not undertake a particular act)
- Capacity (the ability of a party to enter into a legally binding contract)
- Intention (the intention to create legal relations)
- Formalities (etc. written [sale of land])
- Certainty (the certainty that the agreement will be carried out)
What’s an example of a contract?
A minor buys stereo equipment. Since a minor is not considered to have the capacity to enter into a legally binding contract, the contract is null and unenforceable by the seller
What is negligence?
when a person or organisation fails to exercise reasonable care and causes damage to another person.
Provide an example of negligence.
An employer is negligent and as a result of this an employee is injured in the workplace. The worker can now sue his employer.
What is duty of care?
a moral or legal obligation to ensure the safety or well-being of others
Provide an example of duty of care.
An employer has a duty of care to ensure that its workplace is safe and does not cause injury to its workers.
What is perjury?
The offence of telling a lie under oath.
What is the separation of powers?
The division of the power to make and manage federal law.
How many people sit on a civil jury?
Four people.
