Yearly Commerce Term 2 2024 Law PDF

TERM 2 - LAW STRUCTURE OF LAW PARAGRAPHS CONTROLLING IDEA (AREA OF FOCUS) - Need supporting evidence, eg; - Laws - Media - Case Examples - Documents - Statistics - Quotes Controlling Idea - ESSAY 2 Paragraphs 1. P...

TERM 2 - LAW STRUCTURE OF LAW PARAGRAPHS CONTROLLING IDEA (AREA OF FOCUS) - Need supporting evidence, eg; - Laws - Media - Case Examples - Documents - Statistics - Quotes Controlling Idea - ESSAY 2 Paragraphs 1. Positive points (aspects of effectiveness/success) 2. Negative points (failures or limitations) 4.1 - What is Law? AND 4.2 - Reasons for Law Morals - Refer to standards of behaviour and principles of right and wrong. Ethics - Refer to moral principles that govern a person’s behaviour or the conducting of an activity Laws - A set of legal rules that everyone in a community is expected to obey. - Laws are created, changed and interpreted within an official government framework. - Put in place to prevent stealing, murder, assault and other crimes - Anarchy would exist if such laws did not exist - Allows people to live in peace, punishing those who disobey the rules 4 Main Roles; 1. Establish boundaries 2. Protection 3. Freedom 4. Resolving Disputes Rules - Based on established customs that have evolved in a society over time, morals and ethics and reflect the values that a society believes in. Justice - Everyone is equal before the law - A balance of the needs of victims, offenders and society  - Individuals being treated in a fair and equal manner - Achieved when offenders receive a fair trial, a fair sentence and victims gain retribution and community safety is upheld. Retribution - punishment imposed for revenge for the wrong committed 4.3 - Values, Morals, Ethics Morals - Refer to standards of behaviour and principles of right and wrong. Ethics - Refer to moral principles that govern a person’s behaviour or the conducting of an activity Judges make up a term of imprisonment or other punishment that fits a crime in all but TWO circumstances. Judges will use precedents (past cases), the maximum penalty the law states and other factors to come up with a punishment. In NSW, there are 2 scenarios where there are mandatory sentences (judges have no flexibility) 1. Murder of a police officer - Life in jail 2. One punch killings - 8-year mandatory sentence 4.10 - Types of Laws 2 MAIN CLASSIFIERS Private - Laws that govern the legal relationship between individuals and organisations Public - It deals with standards of behaviour that society expects from its government and those that work in it. (laws that determine how governments operate) International - Covers laws about war, diplomacy, economic relations, human rights TYPES OF PUBLIC TYPES OF PRIVATE CRIMINAL LAW Tort Law (Civil Wrong) - Laws to protect the general public from harm - Deals with situations when 1 party infringes - Offenders are punished if they choose to put the rights of another, resulting in distress or people and property at risk. injury - (It is a public law because when a crime is committed, all members of society are harmed) Administrative Law Contract Law - Deals with the decisions and powers of - Legally binding agreements between 2 or government departments more people - Allows courts to review and change - If one party fails to carry out their side of the government decisions if necessary agreement, that person can be sued for breach of contract. Constitutional Law Property Law - A constitution is a legal document outlining - Regulations about the sale, lease and hiring the powers and authority of the parliament; of property (land, buildings) the rights of each citizen and powers between federal and state governments Family Law - Regulates family relationships - Sets out rules about marriage, de facto relationships, divorce, custody, and other aspects of involving family Industrial Law (employment) - Deals with resolving industrial disputes, worker’s compensation, workplace safety laws, and discrimination in the workforce. 4.11 - Civil Law Civil law deals with NON-criminal matters - Allows an individual to bring action against other members of the public for a civil wrongdoing - If the person whose rights have been infringed wins, there is usually damages (money) for compensation TWO MAIN CLASSIFIERS Tort Law Negligence - where a person fails to take reasonable care and, as a result, injures another person - Employers have a duty of care to a safe working environment - Employees who are injured are entitled to worker’s compensation Defamation - where a person injures another person’s reputation Nuisance - where a person causes unreasonable interference with another person’s right to quiet enjoyment of their property Trespass - where a person interferes with another person or that person’s property rights. - assault, unlawful imprisonment, public trespass Plaintiff - The person’s rights whose rights have been violated Defendant - Wrongdoer The plaintiff can seek compensation from the defendant The judge can decide; 1. The plaintiff is in the wrong AND can order them to pay the defendant’s cost. 2. Both parties are wrong (ie; 40/60 responsibility) and damages are reduced Juries are optional - they decide the outcome and amount of damages Not all civil cases go to court - often the case is settled outside of court to save money and time Contract Law - A legally enforced agreement between 2 or more persons or parties - A person under 18 years old can enter a contract to purchase goods and services that are needed; - Food, housing, services - Renting a house - Seller CAN NOT enforce a contract if; 1. A person under 18 buys goods (laptop purchase) 2. Entered into a loan agreement 3. obtained credit Must follow the structure of; 1. OFFER 2. ACCEPTANCE 3. CONSIDERATION 4.12 - Criminal Law System of laws concerned with punishing those that commit crimes Crime; - Any act which results to harms society at large and is punishable by the state, including the court system - Crimes Act 1900 (NSW) sets out the majority of criminal offences for the state SUMMARY OFFENCE - Relatively minor offences - Eg; traffic offences, minor assault, property damage - Heard in a LOCAL court by a magistrate with no jury Penalties range from; - Bond/fine to jail sentence of 2 years (MAX) - Max 5 years if more than 1 offence INDICTABLE OFFENCE - Serious criminal offences - Eg; murder, sexual assault, fraud - Heard in a DISTRICT or SUPREME court with a judge and jury Penalties range from; - Imprisonment or a large fine - No time limit for when charges must be laid 4.13 - Customary Law Customary legal system based on kinship and traditions developed Features of ATSI law; - Family and kinship ties - Based on rituals and traditions Native Title Act (1993) was the first piece of Australian legislation that recognised customary law. Laws were not written down but passed orally through stories, songs, and dances. Europeans interpreted the lack of written law as evidence that ATSI people were uncivilised. Punishments included; - Public shaming - Public ridicule - Exile - Spearing into the thigh of the accused Circle Sentencing - A method in which Aboriginal offenders are sentenced through a discussion involving a Magistrate, local elders, and family members. 4.8 - How Laws are Made - Statute Law Created by the government (parliament) and has the highest status, must be obeyed by the people Parliament can; - Make most laws - Change laws - Pass an Act (law) to overcome its precedent - Statute law ALWAYS succeeds over common law Each parliament (federal, state) has a constitution that outlines its powers and restrictions to its lawmaking authority. Federal; Currency, defence, immigration, tax State; Schools, hospitals, police Local; Parking, parks, swimming pools If there is a disagreement over who has the power to make laws on a certain issue, the matter is decided by the High Court 4.7 - How Laws are Made - Common Law Common Law is developed by judges when there is no existing law in place that regulates their case Developed through decisions of courts and similar tribunals Precedent - ‘A precedent is something that precedes, or comes before’. The 'doctrine of precedent' is the rule that a legal principle that has been established by a superior court should be followed in other similar cases by that court and other courts The body of precedent is called “common law” and future decisions are bound by it. How Precedents are made; 1) A precedent is created when a judge arrives at a decision when there is no existing common or statute law. EG. Native Title - Mabo case example. 2) A precedent can be created by way of a judge interpreting legislation, also known as ‘statutory interpretation’. Court Hierarchy System In a common law system, decisions of superior courts are binding on inferior courts. So, for example, precedents set by the High Court of Australia must be followed by the Supreme Court of New South Wales, the District Court of New South Wales, and the Local Court of New South Wales. Ratio Decidendi ‘The reason for the decision’ – binding on courts in later cases where the material facts are similar. Ratio decidendi: the part of the decision that forms the precedent Obiter Dictum ‘Sayings by the way’ – statements made in judgements that are not part of the final reason. Not binding, although may be persuasive if concerned with the same material facts. Obiter dicta (dictum - singular): remarks made by a judge at the time of decision which may shed light on the decision but are not a necessary part of the court’s decision  The ratio decidendi (the reason for deciding) is the legal reasoning upon which the decision in a particular case is based and may be used by judges in future cases when confronted with similar facts. Obiter dicta (singular obiter dictum) are observations made by the judge on a matter of law. The obiter dicta are not essential for the decision, and are therefore not part of the binding precedent established by the case, but may be persuasive 4.6 - Role and Selection of Juries Selection of juries occurs in the District and Supreme Court to; - Hear and determine serious criminal matters - Hear and determine civil matters with large monetary claims Civil Trials - Standard of Proof - Juries must decide on the balance of probabilities, whether the defendant is liable Criminal Trials - Standard of Proof - Jury must decide whether the accused is innocent or guilty beyond reasonable doubt - Jurors are chosen by the electoral roll at random Serve impartially means serving with no bias Legislation; Jury Act 1977 (NSW) Advantages Disadvantages A cross-section of society, therefore reflects Some people are exempt from serving, not a true society’s values and attitudes cross-section of society Widespread acceptance of the jury system Ordinary people may not understand complex legal terminology The final decision is made by more than 1 person Juries do not have to give reasons for their decisions Are independent and impartial decision-makers Can be persuaded by the skills of clever lawyers who are not controlled by the government or bias Ordinary citizens are allowed to play an active Difficult for jurors to remain completely impartial, role in the administration of justice especially with social media and coverage of the trial Provides an opportunity for the community to Costs a lot of money to operate and time understand the final decision consuming when selecting the jury Reduce the opportunity for bribery or corruption Can be biased and influenced by their prejudice if only one person decides the outcome 4.5 - Role of Court Personnel Judges and Magistrates - Both preside over their respective courts - Legally qualified experts (high experience in law) - Judges - sit in intermediate and superior courts (District and Supreme) - Required to issue sentencings and rulings - May decide the outcome (verdict) of a case in a judge only trial Magistrate - sit in lower courts (Local) - Required to determine cases and reach a verdict - Can also issue sentences and rulings Prosecution Known as the “State” which represents the Commonwealth and is also referred to as the Crown Most criminal trials, the Director of Public Prosecutions (DPP) conducts the prosecution If a criminal matter is dealt in Lower Court, it is done by a Police Prosecutor Defendant - The accused - They will be represented by; - A solicitor or barrister - Legal Aid - Themselves Solicitors and Barristers Both types of lawyers, with different roles 9.4 - Punishment for a Crime Courts try to achieve 1-5 purposes when sentencing; 1. Just Punishment a. Sentence punishes offender that the community considers fair in all circumstances 2. Deterence a. The sentence will discourage the offenders (and others) from doing it again 3. Rehabilitation a. Sentence helps offender recover from personal circumstances (drugs, alcohol) that contributed to that offence 4. Denunciation a. Sentence sends a message to the community that what the offender did is unacceptable 5. Community Punishment a. Sentence will protect the community from the offender Legal Aid - Legal services to socially and economically disadvantaged people across NSW Forms of Punishment Fines - Pay money back for breaking the law Community service More serious criminal cases have punishments of; - Court mandated behaviour course (drink driving, education) - Orders to pay compensation to the victim - Community based sentences - Compulsory treatment - Bans on associating with certain people or attending certain places Imprisonment Positives Negative Leglisation - “measure of last resort” Does not act as a deterrent Protects needs of society (76%) of ppl in NSW prisons have served before Acheives justice Prison least likely place to rehabilitate 9.2 - Contract with the Law - Young Offenders Adult - a Person 18 years above Minor - person below 18 years of age Young Offenders - Minors that have committed a crime and are treated differently under the law - Focus of the Legal system in dealing with young offenders is a combinatioon of welfare and justice with the hope of rehabilitating young people Doli Incapax Principle Latin term for - Incapable of wrongdoing - Presumption that children under 10 years of age are incapable of having criminal intent The Young Offenders Act 1997 (NSW) - Warnings - Formal cautions - Youth Justice Conference - Children’s Court 4.15 - Accessing the Law Barriers to accessing the Law; 1. Cost a. Can be expensive b. Costs can mount up over time 2. Time a. Prospect of lengthy trial 3. Distance a. Travel long distances if you live in remote places b. Time consuming 4. Procedures a. Limited knowledge of law if no lawyer available b. Can be intimidating and confusing c. Can be denied if necessary 5. Language Issues a. If English is not their first language, it is difficult to understand legal terminology without a translator b. Cannot communicate your needs 4.4 - Australia’s Court System The court filters cases according to their seriousness Higher court = more serious offence Each court has specific legal matters they deal with and have complete authority over Each court becomes an expert in dealing with aspects of criminal and/or civil law For example; the Local and District courts hear matters of criminal and civil law while the Family Court only civil matters. Local Court - The presiding officer is a magistrate - No jury Civil Matters Criminal Matters 90% of civil cases begin here Hears summary/minor offences such as shoplifting and drink driving About disputes over money or property such Committal hearings are heard in the Local as; Court - Loan agreements - Unpaid bills - Damages from a motor vehicle - Property not returned NSW Local Court deals with civil disputes for Hears bail applications, issues arrest warrants claim up to $100,000 and search warrants, and applications for Apprehended Violence Orders (AVOs) Specialist Local Courts Coroner’s Court - Investigates deaths by unnatural courses and suspected arson - The presiding officer is the Coroner Children’s Court - Deals with cases involving young people who committed offences under the age of 18 years old - The presiding officer is a magistrate - Hears applications for Compulsory Schooling Orders where a child or young person is required by law to attend school. Specialist Courts Family Court of Australia - Resolve more complex family law matters - Divorce, parenting disputes and the division of property when couples separate - Couples need to have been separated for over 12 months Drug Court of NSW - Provide long-term solutions for offenders who have been caught up in the cycle of drug use and crime by encouraging the person to become free of their substance abuse, gain employment and reduce the need to commit crimes to support the drug habit District Court - Presided over by a judge and in some cases a jury Civil Matters Criminal Matters  All motor accident cases Hears indictable offences such as armed robbery and sexual assault Claims from $100,001 to $750,000 (if both May be a jury of 12 parties agree then it can exceed this amount) Breach of Contract, personal injury and Decisions can be appealed to the NSW Court defamation of Criminal Appeal Decisions can be appealed to the Supreme Court or Court of Appeal if there are appropriate grounds Maybe a jury of 4 for some matters Supreme court Presided over by a judge Civil Matters Criminal Matters A jury up to 4 people may preside over some Hears only the most serious criminal matters civil matters - Murder, major drug trafficking Highest court in NSW May be a jury of 12 people Unlimited civil jurisdiction Appeals may be made to the NSW Court of - Means that there is NO limit on the Criminal Appeal amount that can be claimed High Court of Australia Decides on issues around the Consitution and issues between states and the Commonwealth - Highest Court in Australia - Located in Canberra Hears appeals from the Supreme Courts and Federal Courts around Australia 4.9 - How a Bill becomes a Law A bill is a draft proposal to introduce a new law or amend an existing law that is presented to the House of Reps (lower) and Senate (upper) 1. A proposed new law, or changed law, is discussed in Cabinet 2. government lawyers are asked to draft a bill. A bill is basically a ‘first draft’ of an Act of Parliament  3. Copies of the bill are given to all members of the House of Representatives, known as the ‘first reading’ 4. The bill goes through a ‘second reading’. During this stage, the responsible minister describes the main purpose and likely benefits of the bill. Speakers from the Government and Opposition debate, which may take weeks. Then there is a vote. 5. 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 6. The bill, including any changes made during step 5, goes through a ‘third reading’ in the house. A vote is taken 7. Similar processes to those outlined in steps 3 to 6 occur in the Senate 8. 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 4.14 - Domestic VS International Law International law is about all behaviours and actions of persons, companies states and countries in cross-border situations - Concerned about setting standards of acceptable behaviour for nations and their citizens with issues that cross borders or are of concern to society - Developed from treaties and conventions between countries - Treaty; form of contract between two countries or organisations from different countries - The UN is responsible for establishing and enforcing international law - International Court of Justice - Deploys peacekeepers to areas of conflict around the world - Governed by an international treaty called the Rome Statute Domestic law arises from the legislature that is created within one country Eg; A citizen of Australia living in Sydney must follow the laws of NSW and the Commonwealth of Australia 9.9 - Dispute Resolution outside of Courts Advantages Disadvantages Quick time Cannot afford to go to court Cheaper Surrendering their legal rights Goodwill between the parties Power imbalance Flexible and meets individuals needs Mediation - Parties involved in a dispute meet with a neutral 3rd party to negotiate an agreement - Form of compromise Conciliation - Same as mediation but with much more intervention - Offer opinions and views - Common in industrial disputes Arbitration - An impartial 3rd party decides on a settlement agreement that is then legally bonded to the parties of the dispute - The arbitrator decides for them if a decision cannot be reached Restorative justice allows the victim and the offender to discuss the situation face-to-face - Youth Justice Conference Circle sentencing - Circle of people including Aboriginal elders, the victim, the offender, lawyers, magistrate will sit together to attempt to decide an appropiate sentence - Offender must of pled or found guilty of the offence