COMMERCE NOTES - legal system

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Reasons we have laws!
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to regulate our society!
to protect us and our property!
to ensure that everyone in society behaves in the way the community expects them to!
without laws, there would be anarchy!
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Legal System!
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Court Structure!
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Court Hierarchy:!
Local Court: Presided over by a
magistrate, aims to deal with matters
quickly and cheaply. Deals with all minor
criminal and civil matters.!
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District Court: Presided over by a judge.
Deals with serious criminal and civil law
matters. In criminal matters, the District
Court uses a jury.!
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Supreme Court: Hears the most serious
cases and those that involve difficult
points of law. Its decisions can create
common law.!
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Federal Courts: Deals with aspects of
federal law, such as family law, tax,
immigration and copyright.!
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High Court: The most senior court in Australia and the last court of appeal. Ensures that
law-makers do not breach the constitution. !
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Court Personnel: !
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Magistrates: Magistrates preside over local courts. In a criminal law matter, their role is to
decide if the accused person is guilty and issue a sentence if guilty. In civil matters, the
magistrate must arrive at a verdict and decide on compensation.!
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Judges: Judges sit in all other courts. H ave considerable legal experience. The role of the
judge is to instruct the jury on legal matters and impose a sentence.!
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Magistrates and judges are both referred to as ‘Your Honour.’!
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Lawyers: The role of the prosecutor is to prove the accused person has committed a crime.
The defence lawyer is there to help the accused person show the court that they are
innocent or to minimise the sentence.!
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The Jury: Consists a group of randomly selected 12 adults. The role is to determine
whether an accused person is guilty. The jury must be satisfied that the evidence is beyond
reasonable doubt and the verdict must be unanimous.!
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Ways Laws are Classified!
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Modern law is classified into two main types, as well as family law:!
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Public law: Laws that deal with the standards of behaviour that society expects from its
government and people. It relates to criminal law and constitutional and administrative
law (how governments operate). In criminal law, the prosecution presents the case on
behalf of the Crown.!
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Private law: Deals with the way individuals interact with each other. It includes laws that
regulate the behaviour of people and businesses. Commonly referred to as civil law.!
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Main types of criminal activity:!
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Type Examples

Crimes against persons Homicide, manslaughter, assault

Crimes against property Lacerny (theft without violence), break and

enter, robbery (theft with violence)

White-collar crime Tax evasion, hacking

Crimes against the State Sedition (encouraging a hatred of the state),

treason (actively tries to bring about the
collapse of a government or assists enemy)

Public order offences Swearing in public, being drunk and disordery

Traffic offences Driving without a seatbelt, running a red light,

drink-driving (results in court proceedings)
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Public Law: Constitutional and Administrative Law!
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constitutions have a set of rules about how governments are to be run!
the constitution also details how power is to be divided between the three branches of
the government!
the constitution grants many powers (residual powers) to the states, such as health,
law and order, education and the environment!
 the powers transferred from the states to the Commonwealth Government are
exclusive powers!
the most important exclusive powers are known as external powers, which include
customs and quarantine laws, foreign relationships, defence and the right to enter into
international agreements!
concurrent powers are shared between the state and Commonwealth parliaments!
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Legal System!
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Proving a crime: Two things the
prosecution must prove are
mens rea (guilty mind, meaning
the accused intended to commit
the crime, only exception is
traffic offences) and actus reus
(criminal act, meaning the
accused actually committed it).!
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Rights:!
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statutory rights provide
Australian children with special
rights!
any person over the age of 10
can be charged!
children aged between 10 - 14
can only be charged if they knew
they were committing a crime!
any person under the age of 18
will have their case heard in the
Children’s Court!
the police have the right to
interview any member of the
public, who are entitled to give
their name and address at least!
children can only be
interviewed with a parent or
responsible adult present!
children have the right to give evidence with a parent present or by closed-circuit
television in a room away from the courtroom!
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Civil Law: The person/organisation bringing the case is referred to as the plaintiff. They
have the responsibility of proving the defendant is guilty.!
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Area of civil law Explanation

contract law laws regarding contracts e.g. one party claims the other did not do
what they agreed to in a contract

property law laws govern the way goods are to be purchased and the way
people/organisations behave in property dealings

tort law civil wrongs, e.g. negligence, nuisance, defamation, trespass

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Family Law!
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dealt with by the Family Court!
couples who are not married but live in de facto relationships are dealt with under
state law!
parenting orders, divorce, new reproductive technology!
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How Laws are Made!
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The system of law is based on statute law (made by parliaments) and common law
(originate from the decisions of judges).!
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Statute law:!
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parliament passes a Bill (proposed law/change)!
introduced to House of Representatives!
MPs debate and vote!
introduced to the Senate!
Senators debate and vote!
must receive royal assent (approved by Governor-General in federal laws and
Governor in state laws)!
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Common law:!
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a decision by a higher court can abolish precedent!
a parliament can pass new statue law to overrule common law!
parliaments often act to make common law into statute law (codification)!
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Constitutions!
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often includes votes from citizens!
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Relationship of Laws with Values, Morals and Ethics!
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Morality: Can be separated into private and public (values held by society as a whole)!
Ethics: Relate to what is right rather than what is good.!
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How Laws are Changed!
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Statute Law: A new Bill must be passed by the parliament. These Bills are known as
amendments and must go through the same process as other Bills.!
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Common Law: Can be changed by the decision of a judge in a higher law. Sometimes
parliaments can pass a statue law that changes the common law.!
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Constitution: Any change requires a referendum (a vote in which a majority of people in a
majority of states must agree). The Federal Parliament must first pass a Bill before the
referendum.!
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Accessing the Legal System/Issues of Fairness!
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nobody has an automatic right to legal representation!
without a lawyer, it can be difficult to understand the legal terminology and structure
of court!
lawyers are too expensive for some people!
Legal Aid was introduced to provide people with 15 minutes of free legal advice and a
chance to apply for more, but applicants need to pass 3 tests (except for children)!
Means Test: assesses whether the person is able to pay for a lawyer!
Merit Test: assesses the likelihood of the case succeeding!
Jurisdiction Test: needed because Legal Aid is only provided for certain legal
matters!
many people who do not pass the tests cannot exercise their legal rights e.g. a
consumer trying to sue a large company but being unable to get justice!
many families are considered too wealthy for Legal Aid so even if one partner is
significantly poorer than the other during a divorce, they still can’t get help!
time can act as a barrier because many cases take years!
the language is difficult especially for migrants!
living a distance from legal advice!
people discriminated:!
poor!
young people!
Indigenous!
non-English migrants!
women !
disabled!
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A fair legal system means that the interpretation and enforcement of the law should not
discriminate.!
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EMPLOYMENT ISSUES
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Types of Employment!
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full time (35 or more hours per week) !
part time !
casual employment (employed on a short-term or irregular basis without entitlements,
but usually paid more to compensate for that)!
voluntary/unpaid work!
self-employed!
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Changing patterns of work!
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people today will have more than one occupation/career during their lifetime, unlike
the older generations!
the impact of technology has resulted in more career changes!
different forms and employment and working hours are now more commonplace than
the rigid 9 to 5 full time schedule!
increasing number of women!
relatively high unemployment!
government restructuring of the economy !
increased ability to sell products globally!
adaptation of new management strategies of employers that emphasise workforce
flexibility (more part-time and casual employees)!
less people are employed in primary/secondary sectors!
employment has grown significantly in the services sector!
technology has reduced the demand for labour and creation!
more white-collar workers!
part-time employment has increased while full-time employment has changed
relatively little!
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Benefits of Education and Training!
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Type Explanation

Personal Increased employment prospects.!

Jobs with more levels of prestige e.g. fringe benefits.!
Overall increase in proportion of the workforce with post-school
qualifications.

Society Skilled workforce contributes to a more prosperous country.!

Australia can only prosper with a strong workforce.
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Types of Employment Contracts!
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Type Description Advantages Disadvantages

Enterprise Agreement - an employer and an - consultation and - undermining of

union/group of involvement of award standards!
employees! employees! - job losses are
- deals with the pay - improved pay and possible!
and workplace conditions! - greater inequity of
conditions! - access to training! wage rates
- can replace award - greater flexibility
(set of minimum
terms/conditions)
or act as an add-on !
- must comply with
all NSW laws !
- must be in writing
and signed by each
party!
- for a fixed term,
although they
remain in force after
that term has
rescinded

Common Law - do away with - right to sue! - no union

Contract agreements in - flexibility for representation!
award/enterprise individual needs! - possible
agreement! - individual initiative exploitation of
- covers employees rewarded employees due to
not under award/ unfair bargaining
enterprise positions!
agreement! - expense of any
- signed individually! court case if either
- secret (not open to party sues
public scrutiny)
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Unemployment: May be short term (process of changing from one job to another/due to
seasonal job e.g. operating ski lifts) or long term (unemployed due to technological
advances that make your job redundant, or economic crisis).!
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Advantages and Disadvantages!
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Type Advantages Disadvantages

Full time Job security! Hours may be long and rigid.

Entitlements e.g. leave!
Fringe benefits e.g. bonuses, car
Type Advantages Disadvantages

Part time Employee entitlements on a pro-rata May not provide adequate income.!
basis.! Few senior management positions
Flexible working hours! are part time
Can experience more than one job at
a time

Casual Readily available! No entitlements!

Often unskilled work! Less job security!
Usually for a designated time frame! May not be adequate pay!
Paid a loading Work on weekends/public holidays

Self employed Freedom Responsible for all decisions

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The Government’s Role in Education and Training!
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Young people have to complete Year 10 and remain in school or undertake a training
course/combination of training and employment until they are 17. !
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Government schemes:!
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- Youth Allowance (16-21, Year 12 certificate, looking for full-time work)!
- Newstart Allowance (22+, unemployed)!
- Austudy (25+, full-time students/apprentices)!
- ABSTUDY (Indigenous students/apprentices)!
- Youth Connection (helps young people complete their Year 12 certificate)!
- Local Connections to Work (LCTW) (disadvantaged youth and unemployed find work)!
- Australian Apprenticeship Access Program (helps people gain new apprenticeship/
enter employment/return to further study)!
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