New Concepts in Commerce

3Law and society

You have probably never committed a serious crime. Hopefully, you are not planning a robbery or an assault. Most likely you are not wanted by the police and have not been required to attend a court hearing. Like the vast majority of Australians, you are a law-abiding citizen.

Why then do you need to know about the law? The answer is because laws affect everything you do: the wearing of a helmet when riding a bike, the age you can leave school, the movies you are permitted to watch and the rights you have as a citizen. Therefore, you should know something about the law. Ignorance is no excuse. You can be found guilty of breaking a law even if you didn’t know about it.

The law is a set of legal rules that the government and the courts have made for everyone to follow.

focusOn completion of this chapter you will have developed an understanding of how laws affect individuals and groups and regulate society.

outcomesA student can:5.1 Apply consumer, financial, business, legal and employment

concepts and terminology in a variety of contexts5.2 Analyse the rights and responsibilities of individuals in a range

of consumer, financial, business, legal and employment contexts5.3 Examine the role of law in society5.4 Analyse key factors affecting commercial and legal decisions5.5 Evaluate options for solving commercial and legal problems

and issues5.6 Monitor and modify the implementation of plans designed to

solve commercial and legal problems and issues5.7 Research and assess commercial and legal information using a

variety of sources5.8 Explain commercial and legal information using a variety of

forms5.9 Work independently and collaboratively to meet individual

and collective goals within specified timelines.

glossaryaccess: equal opportunity for all people to make use of

the legal systemadversarial system: system in which two opposing

parties present their arguments to a magistrate or judge

anarchy: disorder or confusion due to the absence of government or laws

appeal: an application for a legal decision to be reviewed in a higher court

bail: to release an accused person who is awaiting trial. Another person usually guarantees to pay a large sum of money if the accused does not later appear in court on a certain date

beyond reasonable doubt: the standard of proof required in a criminal trial

committal hearing: a hearing in a Local Court to decide whether there is enough evidence to put a person on trial for an indictable (serious) offence

common law: system of law based on the previous decisions of judges, or precedents

constitution: a document which sets out how a body or a country will be governed

court: a place where people can resolve disputes relating to law

defendant: the party in a criminal or civil trial against whom an action has been brought

discriminate: to treat somebody differently or less favourably because of her or his personal characteristics, such as sex, nationality, religion. This type of behaviour is called discrimination

double dissolution: a decision made by the head of state to dissolve both houses of Parliament

Executive Council: in Australia, a group that comprises the head of state and selected government ministers

hierarchy: any system of things in a graded orderjudge: a court official who has the power to make

decisions on matters brought before a court of lawjury: a group of people (either 12 or six) selected to hear

the evidence in a court caselaws: a set of legal rulesmagistrate: a court official who hears cases in the lowest

court of lawplaintiff: the party that commences a civil actionprecedent: a previous legal decision that serves as a rule

or pattern in future cases private law: deals with disputes between private citizenspublic law: deals with disputes that affect the communitystatute law: laws made by parliamentssue: to bring a civil action against another person for

causing damage or injury trial: a process to determine whether someone committed

a criminal act or caused another person a loss

New Concepts in Commerce70

3.1

Reasons for lawsYou have to obey rules at school or on the sportingfield. Society also has a set of rules called laws,which everyone in the community is expected to obey.For example, motorists have to obey traffic laws.There are also laws to stop people under a certain agefrom entering premises where alcohol is served. Thedifference between a rule and a law is that the policeand the courts can enforce laws. Laws, therefore, arelegal rules. This means that a person can be taken tocourt and penalised if he or she breaks the laws.

The law-breakers‘We can’t cross now,’ said Jamahl. ‘The “Don’t Walk”sign is showing.’

‘It’s okay, just hurry,’ yelled Ben. ‘There are nocars coming.’

When they reached the other side of the busyintersection, a police officer approached them. ‘Doyou realise that it is illegal to disobey a “Don’t Walk”sign? If I see you breaking the law again, I will haveto fine you.’

Jamahl and Ben were apologetic. ‘Everyone doesit so we thought it would be okay,’ said Ben. ‘Wewon’t do it again.’

‘That’s good,’ said the police officer. ‘The law isthere to protect you as well as drivers.’

As they walked away, Ben andJamahl both realised they knew verylittle about ‘the law’. They wanted toknow more.

Why do we need laws?Imagine what could happen if therewere no laws and people could dowhatever they liked. Confusion and

chaos would occur. In extreme cases of conflict, astate of anarchy would develop. The person with themost strength would start to dominate, and the weakand helpless would suffer. However, when peopleobey the law, a sense of order is created, resulting ina society where people can live peacefully.

The law therefore has three main roles:1. Protection — from the actions of others as well

as our own behaviour. It does this by tellingsociety what people cannot do. For example, wecannot commit assault, murder or robbery. Wecannot drive while drunk or ride a bike withouta helmet. In this role, the law restricts ourindividual freedom but provides safety for allindividuals in society.

2. Freedom — to do many things by telling societywhat people can do. For example, the law allowsus to own and operate a business, drive a car,

get married or divorced, or leaveschool.

Law and society71

3. Resolving disputes — in order to stop peopletaking the law into their own hands. The legalsystem provides a police force (or service), courtsystem and correctional centres (jails andjuvenile detention centres) to enforce andadminister the law.

If society has too many laws, people’s freedoms areseverely restricted. However, a society that does nothave enough laws turns to chaos, and people becomevery unhappy. So it is important for society to achievea balance between too many and too few laws.

The police force, like the courts and correctional centres, is part of our legal system.

UNDERSTAND

1 What are laws?2 How are laws of the land different from school or

sport rules?3 What is meant by the term ‘anarchy’?4 Why does society need laws?5 Imagine you have been elected ruler of

Australia. What laws would you introduce to make sure people lived in harmony? Explain why you would choose these particular laws.

6 Provide three examples of things the law says you:(a) cannot do(b) can do.

7 Write a short story or create a cartoon about a city that has no traffic laws.

COMMUNICATE

8 Obtain a copy of your school rules. In groups of three or four, answer the following questions:(a) Do you think your school rules are

laws? Why?(b) Who makes these rules?(c) What might happen if these school rules did

not exist?(d) What happens if someone breaks the rules?(e) Are there too many or too few rules? Why?(f) What rules would you like to get rid of?

Why?(g) What rules should be introduced? Why?

9 Are there situations in which breaking a law could be acceptable? For example, what do you think about a group of environmental activists who break the law when protesting against tree clearing?

With this in mind, debate the following topic: ‘That it is acceptable to break the law sometimes’.

E-LEARNING

10 Use the Internet to find out the age at which a person in Australia can legally:(a) drive a car on a public road(b) drink in licensed premises (c) get married(d) buy cigarettes(e) sign a contract.You will find the information you need by going to www.jaconline.com.au/commerce, choosing weblinks and clicking on the LawAccess link for this textbook.

WORKSHEETS

3.1 The shopstealing story

Without laws, society would be in a state of anarchy.

http://www.jaconline.com.au/commerce


3.2

The legal system

The people and institutions that make up Australia’s legal system

The law affects almost everything you do. If you buy a mobile phone and it does notwork properly, there are laws that canhelp you get it fixed, get an exchange orreceive a refund. If you rent a flat,there are laws that say what you andthe landlord can and cannot do. Ifyou have an accident at work, thereare laws that say who has to payyour doctor’s bills.

In each of these situations, the lawis there to protect you. The law there-fore empowers you to seek a solution toyour problem. Without the protection ofa legal system, enforcement of a person’srights would be based on physical violence:‘might is right’. In this situation, most people wouldbe powerless. Of course, the law operates in thebackground, waiting for you to access it if youshould need its assistance.

Every society has developed its own set of laws.These laws develop over time and form a country’slegal system. Australia has a legalsystem that began in England.

The legal system consists of anumber of institutions suchas parliaments, courts andprisons. It also includes peoplewho work within this system:judges, lawyers, police officers,prison officers and politicians.

Politicians make laws• Parliament is our main law-making institution

• It can make new laws and changes existing ones

• These laws are binding on all courts and judges

• All people are expected to obey these laws

Legal advisers specialise in the law• Lawyers (solicitors and

barristers) provide legal advice and

assistance

• They represent their clients and conduct

their cases at a court hearing

Law-breakers are punished by court• Prisons hold

people convicted

of a crime

• Prison staff

manage the prison

Law and society73

UNDERSTAND

1 In the past, disputes were often resolved with the belief that ‘might is right’. (a) What is meant by this expression?(b) Why is this system of resolving disputes unfair

to most people?(c) What advantages are there for individuals and

society in having a comprehensive legal system?

2 What is the role of police in our society?3 What do you think would happen in our society if

police went on strike?4 Watch an Australian and an American police

television show to compare the policing methods used. Either write a half-page word-processed report or make a two-minute oral presentation outlining the main similarities and differences.

5 Arrange for a police officer to speak to your class. Ask the officer to describe her or his duties, power of arrest and the events of an average day.

COMMUNICATE

6 As a class, brainstorm how laws empower individuals and groups in our society.

7 Add extra elements to the mind map started below to summarise the people and institutions that make up the legal system.

INVESTIGATE

8 Research the legal system of another country and compare it with what you know of the Australian legal system. What are the similarities and differences? Present your information either as a PowerPoint presentation or a word-processed report.

9 What was the origin of our present-day laws?

WORKSHEETS

3.2 Join the police service

Police enforce laws• Police do not make the laws; they only

enforce the laws that all people must

obey

• They also prevent and detect crime,

protect life and property, and maintain

peace and order

Courts interpret laws• Courts settle disputes according to strict rules of

evidence and procedure

• Court officials are responsible for the administration of

the court and the efficient running of a case

• Judges have the ability to create law through the

decisions they make when hearing a case: an act of

precedent


3.3

The court structure — hierarchyOften, the parties in a dispute will settle the issues themselves without going to court. However, many disputes even-tually require the legal system to help resolve the issues. This is the role of the court system. There is a var-iety of courts: which one you use will depend on which state you live in and the nature of the legal dispute.

Court hierarchyIf you break a minor rule during a lesson, yourteacher will decide your ‘guilt’ and ‘punishment’. Fora more serious classroom offence, either your levelcoordinator or the deputy principal will deal with thematter. For very serious offences you will be sent tothe principal. The court system operates under asimilar hierarchy.

There are many courts at the bottom of the hier-archy. The number decreases the further up you gountil you reach the High Court, of which there isonly one. A serious issue facing our society is the costof a trial, which becomes more expensive if the trialis held in a court that is higher up the hierarchy.

The Local CourtIn the Local Court there is no jury. Instead, it is amagistrate who hears the cases, decides the verdictand sets any punishment. Magistrates are qualifiedlegal practitioners who have many years experiencein dealing with legal matters.

Inside a Local Court

The Local Court deals with minor civil disputes,for instance, where people sue other people fordamage to property or for injury claims of up to

$40000. This court also hears minor criminalmatters such as stealing, drink-driving,

indecent language and assault charges. Amagistrate presides over committal hear-ings dealing with major criminal offencessuch as armed robbery, manslaughter and

homicide to decide if there is enough evi-dence for the case to go to trial in a highercourt. A magistrate also hears bail appli-cations. The Local Court hears approximately

80 per cent of all cases, both civil and criminal.The Coroner’s Court is a special Local Court that

investigates deaths by unnatural causes and sus-pected arson. The Children’s Court deals with casesinvolving young people who committed offenceswhen under the age of 17. The court is closed to thepublic and the media.

The District CourtIn the District Court of NSW, cases are heard by judges. The District Court deals with more serious civil cases for claims of up to $750 000, and serious criminal matters such as armed robbery, rape and burglary. It also hears appeals from the Local Court. In some cases a jury will decide whether the accused is guilty or not. If the accused is found guilty, the judge will decide on an appro-priate sentence.

The court hierarchy

The District Courtof NSW

Law and society75

The Supreme CourtThis is the highest court in NSW. It deals with themost serious civil cases involving large sums ofmoney. As well, the most serious criminal casessuch as murder are heard in this court. TheSupreme Court also deals with appeals from thetwo lower courts.

The entrance to the main NSW Supreme Court building in Sydney features a sculpture of Australia’s Coat of Arms.

The High CourtLocated in Canberra, this court deals with appealsfrom the state or territory Supreme Courts.

It also hears cases concerning the interpretation ofthe Australian Constitution. Because it is the highestcourt in Australia, its decisions are final. The HighCourt is a federal court, which means that anydecision it makes applies to the whole country.

UNDERSTAND

1 Name the four different levels of courts.2 Why do we have a number of courts?3 Which court is the highest in Australia?

4 Why do you think courts are necessary in our society?

5 In which court are the following likely to be heard?(a) A murder trial(b) An appeal from the NSW

Supreme Court(c) A hearing for a minor traffic

offence(d) An investigation into a

suspicious death(e) An armed robbery trial(f) The preliminary hearing of a

rape case(g) A civil dispute between

business partners involving $100 million

(h) A case dealing with an aspect of the Australian Constitution

6 Explain the difference between a judge and a magistrate.

INVESTIGATE

7 Imagine you are a magistrate hearing a case against a person accused of assault. What evidence would you require in order to reach a decision? To help you answer this question, collect some newspaper articles dealing with similar cases.

COMMUNICATE

8 Using the information in this spread to give you ideas, design a poster to show the different levels of courts and their main functions. Display your poster in the classroom.

9 Write a jingle to help you remember the difference between the different courts. You might like to sing it for your class.

E-LEARNING

10 Mark on an outline map of NSW the locations of the state’s Local Courts. You will find all the information you need by going to www.jaconline.com.au/commerce, selecting weblinks and clicking on the Magistrates Courts link for this textbook.

WORKSHEETS

3.3 Caught and court

The High Court



3.4

The role of court personnelAfter being arrested, you may end up in court if thepolice feel they have a strong case against you. Ifyou plead not guilty, a trial will be conducted. Itwill take place in a courtroom. In Australia,the method of trial used is called theadversarial system. This meanstwo opposing sides will present theirarguments to an independentumpire — a judge or a magistrate.

Courts can be very tenseplaces. The decisions made inthem can have an enormousimpact on people’s lives. Courtsand the officials who work inthem deal with real-life dramas.While each courtroom officialhas a specific role to play, theyare all attempting to achievethe same objective: justice.The main roles includemagistrate, judge, juror,prosecutor, and counsel forthe defence.

Magistrate as umpireA magistrate is in charge ofthe lowest court, where theatmosphere is much moreinformal. He or she does notwear a wig or a robe, and isa qualified legal prac-titioner. People address amagistrate as ‘Your Honour’.

After hearing the casespresented by both sides, themagistrate decides whether aperson is guilty or innocent.If people are found guilty,the magistrate decides thepunishment or (in civilcases) how much moneyto award as damages. Amagistrate will refer veryserious criminal offencesto the District Court.

Judge as umpire —who’s who in a judge’s court

(criminal trial)

The judge’s associate is a

trained lawyer who manages

much of the paperwork.

Anyone whose name is on

the electoral roll can be called

as a juror. In a criminal case, the

jury consists of 12 people. In a civil matter,

only six people decide how much money

should be paid for damages. In a criminal

trial, the jury must decide beyond

reasonable doubt whether a person is

guilty. All the jurors have to agree.

In criminal cases, the prosecutor has to

convince the jury that a person is guilty. This

is done by asking questions of witnesses to

draw out relevant information. In civil cases,

a barrister will act on behalf of the plaintiff.

Their role is to present reasons why their

client should receive compensation.

Law and society77

UNDERSTAND

1 Explain how the adversarial system operates.

2 List the main courtroom officials.

3 How many jurors are there for:(a) a civil case?(b) a criminal case?

4 How are magistrates and judges addressed in court?

5 When can a judge question a witness?

6 What is the jury’s responsibility in a criminal trial?

7 What is the difference between the:(a) magistrate and judge?(b) defendant and plaintiff?(c) prosecution and counsel

for the defence?8 Compare the role of a

magistrate and a judge.9 What is the role of the

counsel for the defence?

COMMUNICATE

10 In small groups, discuss whether you think judges and lawyers should wear wigs and

gowns.11 Roleplay a mock

trial of a person who has been charged with robbing a bank. Refer to the illustration and labels to help you.

(a) Divide up the courtroom roles and allow people sufficient time to prepare their case.

(b) After the mock trial, discuss the advantages and disadvantages of the adversarial system.

The judge is addressed as ‘Your Honour’. He or she listens to arguments

presented by the prosecutor and the counsel for the defence, and is not

allowed to ask a witness questions (except to clarify a point). When there

is a jury, the judge has to make sure jury members understand the

proceedings and evidence presented. If a jury announces a guilty verdict,

the judge decides the sentence or punishment.

In criminal cases, the counsel for the defence represents the

accused. If the accused pleads guilty, the counsel for the defence

presents arguments to try to lessen the punishment. If the accused

pleads not guilty, defence counsel must convince the

judge or jury that their client is innocent. In a civil

case, the counsel for the defence attempts to

convince a judge (and occasionally a

jury) that no wrong has been

committed. If successful, the

accused does not have to

pay damages.

The tipstaff

helps the

judge keep

order in the

court.

A prison officer

from the prison

where the accused

has been held

Witness box, from

which people give

evidence

The

accused

Members of the public,

who listen to and

observe the court

proceedings

Members of the media, who

observe proceedings so they

can report what happens


3.5

JuriesThe idea of being tried by everyday members of thecommunity has its origins in England during thereign of Henry II (1154–89 AD). He appointedadvisers who visited country towns to hold a courtand hear cases. He also introduced a system oftrial by jury. By the 1500s, England had devel-oped a common legal system based on the right of aperson to be considered innocent until proven guilty.

Summoned for jury duty

Juror

Arguments for and against the jury system

Arguments for the jury system

1. A jury is a cross-section of society and therefore reflects society’s values and attitudes.

2. There is widespread acceptance of the jury system.

3. The final decision is made by more than one person.

4. Juries are independent and impartial decision makers who are not controlled by the government.

5. Ordinary citizens are given the opportunity to play an active role in the administration of justice.

6. It provides an opportunity for the community to understand the final decision.

Arguments against the jury system

1. Because some people are exempt from serving, the jury is not a true cross-section of society.

2. Ordinary people may not understand complex legal technicalities.

3. Juries do not have to give reasons for their decisions.

4. Juries can be persuaded by the skills of clever lawyers.

5. It is difficult for people to remain completely impartial, especially if they are influenced by the media coverage of the trial.

6. It costs a lot of money to operate and the jury selection process can be time consuming.

‘As a juror, I help decide on a verdict in a

specific case. If your name is on the electoral roll, you are eligible to be selected

for jury duty. A court officer called the sheriff selects names at random and those selected are

notified by mail. In a criminal case, the jury consists of 12 people but, in a civil matter, only six people decide how

much money should be paid for damages. In a criminal trial,I have to listen to all the evidence and to the judge’s

instructions and then decide beyond reasonable doubt whether a person is guilty or not. The decision must be

unanimous; that is, all 12 jurors must come to the same decision before a judge can hand down a sentence. My main

task then is to decide upon the truth from all the information presented. This is not always easy to

do. Some people such as doctors or people over 65 years of age can be excused from jury duty. Other people, such as anyone who works in the legal system or has a

criminal record are ineligible.’

Analyse a cartoon Examine the cartoon below.1. In the second frame, all the people who are sitting

together make up the 2. If the cartoon was set in Australia, why would this

not be a local court? Would the person presiding over this court be a judge or magistrate?

3. Explain the problem that has occurred in the selection of the jury.

4. Outline the difficulties faced by a jury in reaching its verdict.

Law and society79

UNDERSTAND

1 What is the role of the jury?2 Who may be called upon to do jury duty? What

exemptions are there to this?3 In a criminal matter, how many jurors are on a jury?

What must they decide?4 In a civil case, what are they mainly concerned with?5 Select the advantage and the disadvantage from the

list on page 78 that you consider to be the most important. Give reasons for your selection.

6 Read the article below.(a) What was the reason for the murder verdict to be

in doubt?(b) Why should jury members not be informed about

an accused person’s prior charges or convictions?(c) According to Justice Dunford, what is one effect

of the case?

INVESTIGATE

7 Find cases where the jury’s verdict was later found to be incorrect. What reasons could be given for the jury’s incorrect verdict? (One famous case is that of Lindy Chamberlain.)

COMMUNICATE

8 In groups of three or four, discuss these questions.(a) Should the membership of a jury be restricted

by age and/or education?(b) Should jury members be allowed to publicly

discuss the reasons for their decision after a case has finished?

(c) Should jury decisions always be unanimous?Choose a spokesperson to share the group’s comments with the rest of the class.

E-LEARNING

9 Divide the class into two teams. Each person in the class should work out one question to ask the other team about juries. See which team knows most! You will find all the information you need by going to www.jaconline.com.au/commerce, choosing weblinks and clicking on the LawAccess link for this textbook.

You may wish to divide up the information so certain people only have to learn the answers to certain sections.

Murder charge in doubt after jurors accessed net

By Michael Pelly

The Court of Criminal Appeal is considering whether amurder verdict should stand after jurors ignored ajudge’s orders during a trial and found incriminatinginformation about the accused on the internet.

At least seven of the 12 jurors have admittedknowing the man had faced an earlier murder charge,leading Justice John Dunford to say ‘there may be areal suspicion that they may have been influenced’.

The man, known as K, has faced two separatecharges of murder. He was found not guilty on the firstcharge, but on the second he was sentenced to 24years’ jail. His conviction was quashed on appeal and aretrial ordered because the judge misdirected the juryon DNA evidence. At the retrial he was found guiltyand sentenced to 22 years’ jail.

Murugan Thangaraj, for K, said the jury would havebeen discharged if the judge had known that jurors haddefied his order to consider only evidence before thecourt.

He said the information was ‘capable of uncon-sciously affecting their deliberations’ and that somemight have believed K had a tendency to that type ofcrime.

The NSW Solicitor-General, Michael Sexton, saidthe verdict should stand because the Crown case wasoverwhelming.

But Justice Dunford said the affidavits showed twojurors knew K had received a lengthy jail term at hisfirst trial.

He said jurors one, four, five and six had accessedinformation about the trial and knew there was an errorin the summing up that led to a new trial. Jurors three,seven and eight knew he had been accused and jailed.One had even gone to the alleged crime scene andmade comments that K was a double murderer.

Asked whether it was possible to say the informationdid not affect any juror, Mr Sexton proposed a testbased on the significance of the material.

‘That is where I have big problems,’ Justice Grovesaid, adding there was the fundamental issue ofaffording the defendant a fair trial.

The court reserved its verdict, but Justice Dunfordhinted at one effect of the case: ‘Jurors are going to betold not to look at the internet.’

Source: Sydney Morning Herald, 8 December 2003



3.6

Areas of lawThere are two main branches of the law that operatein society. The first set of laws regulates people’sbehaviour with other individuals. It is known asprivate law. The second broad area of law regulates

people’s behaviour within society as a whole. It isreferred to as public law.

Another way of classifying the law is to divide itinto civil and criminal law.

Criminal lawCriminal law, which is part of public law, protectsindividuals from others doing the wrong thing. Itoutlines the way people should act — what they canand cannot do. Some of the most common crimes

are robbery, homicide (manslaughter and murder),rape, assault, theft and drug offences. If a personcommits a crime, this is treated very differentlyfrom other legal issues.

Civil lawCivil law, which is part of private law, deals withnon-criminal matters. It allows an individual tobring actions against other members of the public fora civil wrong done to them. Civil law involves suchmatters as disputes between friends, business part-ners, consumers and retailers, neighbours or anindividual and a government department. Someexamples of civil wrongs include negligence, tres-pass, defamation and nuisance. Where a civil wrongis successfully proven in court, the wronged partywill seek damages — money — as compensation.

For example, imagine you discover half a decom-posed snail at the bottom of a soft-drink bottle fromwhich you have just drunk. You are then violently sickand suffer serious stomach illness. You decide to suethe manufacturer for negligence — meaning that themanufacturer did not take enough care to prevent aninjury. You, the plaintiff, go to court to prove yourcase. You ask a judge to order the soft-drink manufac-turer, the defendant, to pay you compensation. Theplaintiff does not always win such cases. Sometimesthe judge decides that the plaintiff is in the wrong andcan order him or her to pay the defendant’s legal costs.

In civil cases . . . the injured person sues . . . and can receive compensation.

In criminal cases . . . the police prosecute . . . and the courts impose a penalty

on a guilty party.

Law and society81

For example, if you rob a bank,it does not remain just a disputebetween you and the bank.Instead, your action is regardedas an offence against the state(society). The bank does not haveto try to catch you. Rather thestate organises its police to dothis. The bank does not take youto court — the police or represen-tatives of the government do.They will also be the ones whoprosecute you.

During the court case you willhave the opportunity to tell yourside of the story. If you are foundguilty, you will be punished witheither a fine and/or imprison-ment.

Serious crimes, such as homi-cide, child abuse and rape, arecalled indictable offences. Theseoffences are usually heard in ahigher court. For these offences,the guilt of the defendant isdetermined by a judge and jury.

Less serious crimes, such asminor assaults, petty theft andtraffic infringements, are calledsummary offences. They are dealtwith relatively quickly andcheaply by a magistrate in a LocalCourt.

There are many types of criminaloffences and civil wrongs in this

cartoon.

UNDERSTAND

1 What is the difference between:(a) private and public law? (b) civil and criminal law?

2 Explain the difference between:(a) plaintiff and defendant(b) indictable offences and summary offences.

3 Decide whether the following cases involve criminal law or civil law.(a) You are held up at knifepoint and your money is

stolen.(b) A woman slips on a wet supermarket floor and

breaks an ankle.(c) A man is convicted of driving with a blood alcohol

content of 0.08.(d) Your friend is caught smoking marijuana.(e) You find maggots in a tuna sandwich you just

bought from a café.

(f) A neighbour’s loud music at 3 am is disturbing your peace.

COMMUNICATE

4 Select a partner and cut out five newspaper articles describing civil law cases and five describing criminal law cases. Paste these on a large sheet, then list the laws being broken in each case.

INVESTIGATE

5 Examine the cartoon above. List as many examples as you can of civil wrongs and criminal actions.

6 Use a legal dictionary to find the meaning of: defamation, negligence and nuisance. Write the meanings in your own words in your notebook.

WORKSHEETS

3.4 Don’t break the law!3.5 Crime does not pay3.6 Lawyer chat


3.7

How laws are madeThere are two ways of making laws. Those lawsthat are written down beforehand are calledstatute law, or Acts of Parliament. Alternatively,they can be developed piece by piece by judges asthey come across new problems in the cases theyhear. These laws are referred to as common(judge-made or case) law. In Australia, the law is acombination of both types.

The beginnings of common lawThe justice system in England and Australia isbased on common law. The reforms of King HenryII (a great grandson of William the Conqueror) gaverise to the system of common law.

When Henry II became King of England in 1154,medieval people were tried at a number of differentcourts. Most had to prove their innocence by trialby ordeal or trial by combat. Henry II decided hispeople should all have the opportunity for royal jus-tice (that is, the justice of the king’s court). Thoughthe other courts continued, the king’s court begantravelling around, hearing cases. Judges startedkeeping records of their decisions, referring back tothem when hearing similar cases.

Trial by ordeal: would justice have prevailed?

Common lawCommon law today continues to mean the decisionsgiven by judges. It may occur because a judge has todecide on a case where there is no existing law thatregulates it. Consequently, it is up to the judge tomake a decision. A record of these decisions will beplaced in law reports so that they can be referred towhen needed. These decisions are known as legalprecedents.

Judges do not deliberately attempt to change ormake a law but this may happen as they try toresolve the dispute before them. For example,imagine you have a brother and sister who con-stantly argue over which television program towatch. You resolve the issue by telling them thateach person can take it in turns to select a pro-gram. You have acted like a ‘judge’ and made a new‘law’. Your brother and sister will now be expectedto obey this new ‘law’.

Judges make new laws.

After hearing a case, judges must write down their reasons for making their decisions. It is at this stage they change or make a law. These decisions and some facts about the case are recorded in books called Law Reports.

Law and society83

PrecedentIf your uncle bought your eldest sister a digitalcamera for her eighteenth birthday, you mightexpect to receive a digital camera for your eight-eenth birthday, or at least a present of equivalentvalue. This is because your uncle set a precedentand you expect to be treated the same. Precedentworks the same way in law.

Traditionally, judges will give similar decisions incases that are alike. This is known as the act ofprecedent. If a judge makes a decision in a case

for which there is no precedent, then the decisionthat is made will usually be followed by otherjudges in the future. Generally, judges are obligedto follow acts of precedent made by higher courts.

The lawyer who asks that precedence be followed is saying, ‘Your Honour, you can decide this case in this way because that is what happened in a previous case’.

Dr Grant’s itchy underpantsIn 1936, Dr Grant of Adelaide purchased a pair of knitted underpants from a retailer. The underwear was contaminated with a chemical residue and after wearing them Dr Grant developed dermatitis, a skin irritation, which caused him great discomfort and pain.

At this time, there was no law stating that a manufacturer must produce a good suitable for the purpose for which it is being sold. Dr Grant sued the

manufacturer of the underwear, Australian Knitting Mills, for compensation for suffering, relying on a decision made in a previous case in a higher court. This case, Donoghue v. Stevenson (1932), involved a woman who, after drinking some cordial from an opaque green bottle, noticed the rotting remains of a decomposed snail at the bottom. She became violently ill and successfully sued the drink manufacturer for injuries. Where, after all, was the rest of the snail?

Dr Grant and his itchy underpants Mrs Donoghue and the snail in her drink


Statutory interpretationCourts also make laws when they interpret (decideon the meaning of) words in a law made by Parlia-ment. Laws made by Parliament often use compli-cated language. This language is used in anattempt to fully explain what the law means and totry to cover all the possible situations to which thelaw is relevant. Consequently, the language can bedifficult to understand.Although only Parliament can change the wording

of a law, when a court interprets a word, this newmeaning applies as law from then on. The principleof precedent applies to interpretation as well.Therefore, once a judge decides on the meaning of aword or phrase, that meaning becomes law andmust be followed by other judges in lower courts.

The beginnings of parliament In 1215, King John was forced by his baronsto sign a document called the Magna Carta.He promised to call up all his lords by name(to discuss important matters) and to haveordinary people elected to similar meetingsin certain communities. His actions gave risein time to what are known today in Englandas the House of Lords and the House ofCommons.

These meetings of lords and commonerswere first referred to as ‘parliaments’ in1236 (from the French word parler, meaning‘to speak’). They were usually held to dis-cuss the king’s need for extra taxes. At thisstage, the king still always had the finalsay.

By 1265, the Great Council was enlargedto include two community representativesfrom every city and county in England.

By around 1350, parliaments were dividedinto two groups. The lords met in a separateplace (or ‘house’) to the elected communitymembers. In 1407, Henry IV decided that thecommunity members (House of Commons)had to approve requests for grants of moneybefore these requests were considered by thelords (House of Lords). By the fifteenthcentury, formal requests of the House ofCommons, known as bills, were part of thelaw-making process.

A court can avoid following a precedent by reversing it. This occurs when a higher court hears a case on appeal from a lower court and decides that the original court made a wrong decision, so the decision is reversed.

Statute lawThe laws created by Parliament have the higheststatus in the country and must be obeyed by allpeople. Parliament makes most of the laws. Boththe Federal Parliament in Canberra and StateParliament in Macquarie Street, Sydney, makelaws called statutes or legislation. Once each lawhas been passed, it is binding on all courts andjudges. Most laws in Australia are made this way.It would take far too long for Parliament to decideall the details of the law, so the Act provides for theappropriate minister or department to work out thefine details — regulations — that, when passed,become laws.

Parliament is often referred to as the supremelaw-making authority because it can virtuallymake laws on whatever it likes, change laws whenit wants to and pass an Act to overcome the effectsof precedent. Statute law will always succeed overcommon law and no court has the power to changeit.

The Australian Constitution limits the powers ofthe Federal Parliament. State Parliament isrestricted by the state’s Constitution and, to someextent, the Australian Constitution as well.

A twentieth-century illustration showing King John reluctantly signing the Magna Carta.

Law and society85

Parliaments can make new laws and change existing ones.

Federal and state constitutionsThere are sometimes disagreements between theAustralian government and the state governmentsover which has the power to make decisions on cer-tain matters. For example, should areas of worldheritage be under state or federal control?

A document known as the Australian Constitu-tion outlines the powers of the Australian govern-ment. A constitution is a set of rules by which acountry is governed. The state governments retainthe power to make laws unless the Constitutionhands this power to the Australian government.When the various levels of government disagree onwho has responsibility for making laws on certainissues, the matter is decided by the High Court. TheConstitution was drawn up just before Australiabecame a federation in 1901.

Parliament is often referred to as the supreme law-making institution because it can make laws on virtually anything and change (amend) laws when it wants to.

The High Court may overturn a law, but only if it is unconstitutional.

UNDERSTAND

1 What is the difference between statute law and common law? How did they both begin?

2 What is meant by the term ‘precedent’?3 Who may overrule a statute law? What is

the only reason this may occur?4 What is the purpose of a constitution?5 Where does the word ‘parliament’ come

from? Why is it appropriate?6 What is the purpose of the Law Reports?7 Explain why we need both statute law

and common law for an effective legal system.

8 Provide two examples of precedents that are used in your classroom or family. What is the advantage of having such precedents?

9 How can a court avoid following a precedent?

COMMUNICATE

10 In small groups, read the information about Dr Grant and then answer the following questions:(a) Which case was used as a precedent?(b) Explain how precedent assisted Dr Grant

in winning his case.(c) Why might the court in Dr Grant’s case

be bound by the decision of the Donoghue v. Stevenson case? After all, they were about different things — snails and underpants.

(d) In what circumstances might the court not be bound by a previous decision?

11 Conduct a class discussion, the topic being: ‘Courts should determine all cases on their merit and should not have to follow precedent’. Compile a list of the main points on the board.

INVESTIGATE

12 Find an example of a constitution that affects you. It might be the constitution of your SRC, School Council or a sporting team. Use a word-processing application to present some of the important sections of the document. Be sure to include:(a) the name of the group represented by the

constitution(b) any specific rules(c) the procedures involved in altering the

constitution(d) any powers conferred to others.

13 Find a newspaper article that reports on a new law being made by:(a) Parliament(b) a judge’s decision in a landmark court case.Underline the key words in the article.


3.8

How a bill becomes a lawWithout a set of rules in a society, there would bechaos. Rules usually exist to create and maintain asense of order. However, rules must work, or theyare useless. Every country has its own laws — legalrules that can be enforced by a court of law. Theselaws vary according to the beliefs, attitudes andculture of a country. Most laws in Australia aremade by the federal and state parliaments. In fact,making laws is their main job.

There are very definite procedures for how lawsare made or changed. Before any proposed laws canbecome Acts of Parliament, they have to be debated

and passed by Parliament, and then approved by theExecutive Council. During the debate, the govern-ment explains why the law is needed and why it willbe good for Australia. The Opposition tries to arguewhy this is not the case. Let’s see, step by step, howall of this happens in Federal Parliament.

A proposed new law, or changed law, is

discussed in Cabinet. Often, people in

Australia put pressure on the government

to change something. A decision is then

made on what to do.

The Bill goes through

a ‘second reading’.

During this stage, the

responsible minister

(for example the

Minister for

Immigration if the

Bill is to do with

migrants) describes

the main purpose

and likely benefits of

the Bill. Speakers

from the government

and Opposition say

what they think

about it. Debates

may take weeks.

Then there is a vote.

If the majority vote in

favour, the Bill moves to

the next stage.

If the government decides to proceed, government lawyers

are asked to draft a Bill. A Bill is basically a ‘first draft’ of an

Act of Parliament.

Copies of the Bill are given to all members of the House

of Representatives. The members read the material in

their own time. This is known as the ‘first reading’.

Law and society87

UNDERSTAND

1 Why do you think it is so important for a Bill to be debated so often?

2 Would you say the process by which laws are made in Australia is fair? Does it give full opportunity for the people, through their elected representatives, to have their say? Justify your answer.

3 Explain the ‘readings’ a Bill has to go through before it becomes an Act of Parliament.

COMMUNICATE

4 Work in groups of about six people. Design a board game based around the steps involved in making federal laws in Australia. Be as imaginative as you can. Design the board and pieces needed to play the

games and type out the rules. Swap your board game with that of another group.

5 Roleplay the second reading in the House of Representatives of a Bill for a proposed new law that the class decides is important.(a) Divide up the different roles and responsibilities.

Debate the Bill after all class members have read a typed copy of it. Remember to ask the Speaker’s permission to speak, and to obey his or her instructions if called to order.

(b) After the debate conduct a vote by moving to the right (yes) or the left (no) of the room. Did the Bill pass its second reading? How much was your opinion altered by the comments of others? Is this a good or a bad thing?

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. Changes to

the Bill may be made.

The Bill, including any

changes made during step

5, goes through a ‘third

reading’ in the house. A

vote is taken. If the majority

vote for it, the Bill is passed

through to the Senate.

Similar processes to those outlined in steps 3 to 6

occur in the Senate. If the Senate decides to change

something, the Bill is referred back to the House of

Representatives for another debate and vote.

Sometimes the Senate may refuse to approve a Bill. If

it is a money supply Bill, the Governor-General calls a

double dissolution of Parliament (as the government

cannot govern without money). If the Senate votes to

approve the Bill, it is sent to the Governor-General for

royal assent.

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.


3.9

The relationship of laws to values, morals and ethicsWithin society, there are often groups that have dif-ferent standards of morality and ethics. This makesit difficult to create a set of laws that reflectseveryone’s values. Consequently, as societychanges, so too must the laws.

Rules of morality and ethicsWe develop a sense of what is right and wrong fromthe moral and ethical values of our society. Forexample, murder is considered a serious crimebecause our society believes human life is preciousand should be protected. Usually society’s moraland ethical values reflect the beliefs, attitudes andvalues of religious institutions.

Different country, different values, different lawsOur laws in Australia are sometimes very differentto those of other countries. For example, in Australia,adultery is considered morally wrong and not desir-able behaviour, but because we do not consider suchbehaviour bad enough or damaging enough to therest of society, it is not illegal. However, in some coun-tries it is considered a serious threat to the stabilityof the family and society as a whole. In these coun-tries, a woman found guilty of committing adulterycan face the death penalty. In countries that have astrong Islamic influence, the sale and consumptionof alcohol is illegal. This is the case in Saudi Arabia.

Christians adopted the Ten Commandments, a set of laws written down by the Hebrew lawgiver Moses in the thirteenth century BC.

Buddhism, a religion founded in India in the sixth century BC by Gautama, or the Buddha (‘the enlightened one’), follows the Rules of the Middle Path.

Today, some limited recognition is given to Aboriginal customary law — a system of law that has existed for many centuries.

Muslims live according to the Five Pillars of Islam, a set of beliefs and practices based on the teachings of the prophet Mohammed during the seventh century AD.

Law and society89

UNDERSTAND

1 Give an example of a society that has placed a different value on a behaviour to that found in Australia.

2 Using examples, explain why it is difficult to create a set of laws to reflect everyone’s values.

3 Outline what you believe to be the most ethical way to behave in the following situations:(a) A customer is unaware that you have accidentally

overcharged her. Do you inform the customer and give back the money or keep it yourself?

(b) A friend gives you the answers to the next Commerce test. He took them from the teacher’s desk. Would you accept such information? Give reasons for your answer.

INVESTIGATE

4 Research the laws of a non-Western country. Contrast Australia’s laws with those of the non-Western one. Present your information either as a PowerPoint presentation or a word-processed report.

5 Research Aboriginal laws. Explain three of these laws that are different to European Australian laws.

COMMUNICATE

6 As a class, brainstorm a list of moral or religious rules followed in our society. Identify which of these are also laws. Display the list in the classroom.

7 Set up a class debate to consider the following topic: ‘Indigenous people should be able to live under their tribal laws if they so wish’.

Share roles so that those not debating are involved either in assisting with research or in running the debate and keeping notes on the arguments on both sides.

8 In groups of four or five, create a one-minute play using mime to explain the difference between morally right and morally wrong behaviour. Present your mime to the class.

9 Create a rap song explaining how laws reflect the values, morals and ethics of society.

Laws reflect changes in society

Before the arrival of Europeans in 1788, law in

Australia existed as traditional Aboriginal law,

passed on by word of mouth. This oral law was very

important and helped maintain a stable society. A

group of elders administered this law and could

punish offenders. Punishments included being

banished from the tribe. In Australia today the legal

system can still take into account some parts of

Indigenous law.

The First Fleet brought the

English legal system to Australia.

This is why our laws are very

similar to those of England.

Aboriginal people were expected

to obey these laws, which created

many misunderstandings and

problems for everyone.


3.10

How laws are changedAs a member of the community, youcan have a say in making laws.Through signing petitions, writingletters, personal visits, participatingin demonstrations or joining lobbygroups, pressure can be applied topoliticians to introduce new laws orchange existing ones.

US study slams violent video games A recent study of children’s use ofvideo games, undertaken by the USorganisation Children Now, foundthat close to 90 per cent of all videogames studied contained violenceof some sort.

The study supports the findings ofthe 1000 or so studies carried outsince the 1960s that show a clear con-nection between children’s exposureto violence in the media and aggressive behaviour.

A spokesperson for the local community-basedgroup Parents Against Violence (PAV), AdrianaTortini, said this report establishes a clear linkbetween violent video games and the increase inviolent juvenile crimes, especially assault and rape.

‘The problem is,’ she said, ‘that the violence isbecoming more and more realistic. The games aresending messages to our young people that violence

is fun. Rarely arethe characters ingames punished forkilling or practisingviolence. In fact, theyare rewarded. It’sseen as okay.’

Ms Tortini said thisprovides additionalbacking for her organ-isation in pressuringpoliticians to changethe law.

‘We want to ban thesale of video gamesthat contain highlevels of violence,’ shesaid.

‘We encourage concerned community members tocontact their local politicians and express supportfor our proposals. It’s going to be tough, though, aswe’re taking on a billion-dollar commercial giant inthe video industry.’

‘PAV members tell me they have seen children asyoung as five playing games that involve killingpolice and attacking women. We are calling on thegovernment to consider our research carefully andto support our proposals,’ Ms Tortini said.

It is understood that the Premier has alreadyasked the Attorney-General to establish a taskforceto investigate this latest research and to seekfurther community consultation.

Video game preferences among young adolescents (data from J. Funk, 1993 ‘Re-evaluating the impact of video games’.)

Perc

enta

ge

Category

Fantasy violence Sports games (someof which cGeneral entertainmentViolence to humansEducational

35

30

25

20

15

10

5

0

Adriana Tortini, from Parents Against Violence

Law and society91

UNDERSTAND

1 Do you think Ms Tortini and Ms Winston are biased in their arguments? Why?

2 List three new laws that you would like the government to introduce in order to deal with(a) pollution(b) truancy.

3 Find and paste into your notebook a newspaper article that reports on a new law being made through an important court case. Underline the important words. Briefly outline the new law.

COMMUNICATE

4 Form groups of three or four. Imagine your group is the government. How would you deal with the issue of violent computer games? What laws would you introduce? Outline the case for your decision to the rest of the class.

INVESTIGATE

5 When technological advances are thought to pose a threat, people expect laws to be introduced to control them. A recent example is in-vitro fertilisation (IVF).(a) Investigate the current laws dealing with IVF.(b) Why do you think it is difficult for law-makers to

deal with technological issues?

WORKSHEETS

3.7 Changing the law

Video game manufacturer disputes

findingsBy media reporter Russ McCulloch

The Video Game Manufacturers Association (VGMA) hascriticised PAV’s reaction to the recent research. I spoketoday with Kristina Winston, Executive Director of VGMA.

McCulloch: Why doesn’t your association supportPAV’s position?

Winston: We believe that much of the research hasbeen based only on very small samples. Somedata that PAV claims supports its position wasbased on a sample of just 22 adolescents, all ofwhom had previously been charged with assault.The sample was biased and does not provide anaccurate picture of the real situation.

McCulloch: Your association will be releasing its ownresearch next week. What is it expected to reveal?

Winston: Our research was conducted over an18-month period and involved approximately250 children aged 8 to 14. It shows there’s nolink between the level of violence in video gamesand the increase in violent juvenile crime. In fact,our research highlights the increase in domesticviolence as the main cause of violent juvenilecrime.

McCulloch: What have you asked the government todo?

Winston: The government must realise the impor-tance of our industry. It employs over 16 800people. Last year we generated sales of approxi-mately $587 million, 28 per cent of which waspaid to the government as tax. Our association isalso a sponsor of several community environ-mental awareness projects. We applaud thegovernment’s decision to establish a taskforce,but see no need for any change to legislation.

McCulloch: Would your association consider awarning label about the level of violence beingprinted on video game packages?

Winston: Yes. In fact, in recent talks with the Premierwe suggested how a warning system couldoperate.

CHANGING LAWSBy Marion Newell,Senior Lecturer in Legal Studies

The law is a set of dynamic legal rules. This means thatnew laws develop and old ones are scrapped as societychanges or its values change. For example, for a womanto swim without ‘neck to knee’ batherswas once against the law.

Often, citizens will pressure thegovernment to amend (orchange) an existing law or intro-duce a new one. If the govern-ment is convinced of thecitizens’ argument, it will dothis. Laws can also comeabout when a judge makesa decision after hearing acase. A law is made orchanged when judgesgive the reasons for theirdecision on a case. This isknown as common law.

Anything else but thisattire for women

swimmers was onceconsidered obscene.


3.11

Accessing the lawOne of the main functions of the legalsystem is to safeguard people’s rights.The legal system can only perform thisprotective role if people have equalaccess to the law. Access means equalopportunity for all people to make useof the legal system. If some people areunable to access the law, then they arediscriminated against and conse-quently denied justice. Ideally, everyoneshould have equal access. However,in reality there are a number offactors that create barriers toaccessing the law.

Legal Aid New South Wales has an important role in helping people who might otherwise have difficulty accessing the law, including:• financially disadvantaged people• disabled people• people from non-English speaking backgrounds• women• Aboriginals and Torres Strait Islanders • people who are institutionalised.

CostNot everyone can afford legal advice and represen-tation. Obtaining legal advice can be very expen-sive. Fees charged by lawyers and barristers arevery high. If a legal case is prolonged or is subject

to appeal, the legal costs can very quickly mountup. Often, legal aid can be difficult to obtain. Thismay deter people from exercising their legal rightsto solve their problems.

The cost of legal representation can deter people from accessing the law.

The barriers to justice

Law and society93

UNDERSTAND

1 What is meant by the term:(a) access?(b) discriminate?

2 List the four barriers that people face in accessing the law.

3 Explain in your own words the expression ‘justice delayed is justice denied’.

4 Why is it important for people to have equal access to the law?

5 Refer to the Com Fact above about the Aboriginal boy. Do you think the outcome of his case was unjust? Why?

6 Choose two cases of discrimination you know about. Write five lines on each.

7 How does the present legal system unintentionally discriminate against some people?

COMMUNICATE

8 In small groups, propose some solutions to overcome the barriers that hinder people from accessing the law.

Share your solutions with the rest of the class. You may wish to prepare this as a PowerPoint presentation.

9 Write and perform a song that highlights the barriers to equal access to the law and the injustice this creates. Video the performance and discuss the issues raised.

10 You have been asked by the Legal Access Centre to design a home page for their Internet site. On your web page, make reference to the issues presented in this spread.

INVESTIGATE

11 Find a newspaper article that reports on legal aid. Underline the key words in the article.

TimeThe prospect of a lengthy trial is another bar-rier to equal access to the law. The saying‘justice delayed is justice denied’ meansthat if a trial drags on for a long periodthen people are not treated fairly. Forexample, a woman who sued a tobaccocompany for compensation for the ter-minal cancer she argued was caused bycigarette smoking died before the lengthycase was settled. The case had draggedon through the court system fornine years!

ProceduresWhen confronted with a legalissue, you face a number ofproblems. Firstly, because ofyour limited knowledge of thelaw, you may not even be awarethat you have certain rights orresponsibilities. Your access may berestricted because of your ignoranceof the law. If you have to go to court,the procedures can be intimidating and confusing.

LanguageIf English is not your first language, it may be diffi-cult to understand the legal terminology and pro-cedures. Without the assistance of an interpreter,you may not understand what is going on during acourt hearing. Even finding help from a lawyer orthe translation of legal documents may pose aproblem. Not being able to communicate your needscan limit your access to the law.

Language barriers restrict communication.

A case highlighting the problem of communication and understanding involved an Aboriginal boy who spoke only Luritje and could not understand English. The lawyer struggled with the absurdity of processing people through a system that has little meaning for them. Since the boy did not understand community service, he was unfairly jailed instead.

I put it to you that

transparency in educational

deliberations is predicated on

operational efficiencies.

Do you agree?


3.12

Issues of fairness in using the lawImagine you and your friend are discovered cheatingduring an exam. After an investigation, the schooldecides to punish you by deducting 30 marks fromyour final score. However, your friend has only 10marks deducted. You would probably feel unfairlytreated because of the injustice of the two punish-ments. This example shows that the law shouldensure that people who break the same law aretreated in a similar way. This is known as justice.

JusticeThere is an old saying that ‘all people are equalbefore the law’. For this to happen, laws shouldtreat all people equally, regardless of whetherthey are male or female, rich or poor,white or black, young or old. Thismeans that the interpretation andenforcement of the law should notdiscriminate unjustly. However, in reality, the legalsystem may not always be able toprovide justice for all. Conse-quently, there are certain groupsin society that may experiencedifficulties in achieving equalaccess to the law. The maingroups to experience this typeof discrimination include:people in poverty; youngpeople; Indigenous peoples,especially those living a tra-ditional lifestyle; and non–English speaking migrants.

Symbols of justiceThe symbols of justice attemptto reinforce the idea of fairnessand equality. The symbols are:1. the scales, which represent

the legal system weighing upboth sides of the argumentequally

2. the sword, which symbolisesthe punishment to be imposedon any guilty party

3. the blindfold, which demon-strates that justice is impartial— it is not influenced bywealth, race, religion, genderor status — and that all peoplewill be treated as equal.

Analyse a cartoonThe legal system aims to provide justice for all. However, the cartoon below suggests that there is one law for the rich and another for the poor. Study it carefully. It seems simple, but it provides quite a lot of information.

One law for the rich and another for the poor

Who do the figures represent?

Look for clues in the way they are

drawn. Do any details emphasise a

person’s wealth or power. What does

this tell you?

Look at the position of the figures and

have more influence? Why?

Does the car

discrimination and injustice? What

might this be? What is the overall

‘message’ of this cartoon?

There is an old saying that ‘justice must not only be done, but must be seen to be done’.

Law and society95

A fair and unbiased hearingOur legal system seeks justice by providing theopportunity for all parties to present their argu-ments before an impartial and independent adjudi-cator. This is usually a magistrate or a judge. Inserious cases, juries hear the evidence and assist ajudge in deciding who is telling the truth.

A courtroom hearing

Ned Kelly — justice or injustice?

It would appear that justice should be aneasy term to define. However, it

can have different meaningsdepending on a person’s

point of view. For example, takethe case of the Australian bushrangerNed Kelly.

Ned Kelly had his first brush with thelaw at the age of 12. At 17, he had his

first jail sentence. Over 13 years hestole cattle and horses, robbed twobanks, and killed three police officers.

Yet, after Ned was sentenced tohang in 1880, 60 000 Victorians

signed a petition to save his life.They saw him as a person who

had been treated unfairly by thelegal system. They respected him because they felthe fought for the rights of people who had no power.To kill him, they argued, would be unjust.

As the hood was put over his head just before hewas hung, Ned is reported to have said, ‘Such is life’.

There is a striking imbalance in the number of Indigenous people in jail. Indigenous males make up only 2 per cent of the general population, but 20 per cent of the prison population.

Ned Kelly

Addressing issues of unequal accessLaws are often complex and you may find the legalsystem confusing. Therefore, when you have a legalproblem you may require help, especially if you arerequired to appear in court. If you are in such asituation, where do you go to find the law or legaladvice that may apply to your circumstances?Fortunately, there are a number of governmentdepartments that provide a wide range of servicesto help you access the law.

Analyse a cartoonLook carefully at this cartoon.(a) Who are the four characters?(b) Who do you think has more influence within the

legal system? Why?(c) Compare the appearances and body language of

the teenager and the adults. What does this reveal about how they might be feeling? What does this cartoon suggest about the legal system? Do you think this suggestion is justified? Why?

Because legal aid relies on government funding, at times there may not be enough money to provide advice or representation to everyone who needs it.


Legal Information Access Centre (LIAC)The Legal Information Access Centre (LIAC) isbased at the State Library of New South Wales andoperates through the state-wide public librarynetwork. The aim of LIAC is to provide access toquality legal information for the general public inNew South Wales.

All 376 public libraries in New South Wales haveplain language legal information. Of particularvalue are the ‘Legal Tool Kit’ collection and HotTopics, a magazine that deals with contemporarylegal issues. Some 78 regional libraries offer a widerrange of legal resources including:• law texts• Acts and cases• free pamphlets• trained staff.

The State Library in Sydney provides in-depthresources and specialist staff. LIAC can also beaccessed through their website. Use the LIACpathway on the website to find current legalinformation on a particular subject.

The Legal Information Access Centre (LIAC) logo

LawAccess NSWLawAccess is a free service providing a wide range ofinformation on legal and related assistance servicesin New South Wales. LawAccess can be contacted byphone or via their website. They also offer a servicefor people with hearing or speech difficulties, andtranslation and interpreter services.

The LawAccess logo

LawLink NSWThe New South Wales Attorney General’s Depart-ment provides free legal information, referral oradvice either by phone or through their website.

The LawLink home page

This website provides an extensive range of linksto legal information covering topics such as:• going to court• resolving disputes• the law and young people• victims of crime• your rights.

NSW Legal Aid CommissionThe Legal Aid Commission provides legal adviceand representation to people who would otherwisenot be able to afford court proceedings. It thusprevents those people on lower incomes beingdiscriminated against in access to the legal system.

Regardless of a person’s income, the Legal AidCommission will provide the applicant with free legaladvice, but legal representation is only available topeople on low incomes or with few assets.

The Legal Aid Commission’s logo

Chamber magistrateFree advice about legal matters can also be obtainedfrom the Chamber Magistrate and his or her staff,whose office will be located in the local courthouse.These court officials have legal training and areparticularly helpful in explaining the technicalfeatures and procedures of the legal process.

Law and society97

Title Address Telephone number Website address Assistance provided

1. NSW Attorney

General’s

Department

Free legal

information, referral

or advice

2. LawAccess www.lawaccess.nsw.gov.au

3. NSW Legal Aid

Commission

4. Law Society of

NSW

170 Philip St, Sydney

5. NSW Aboriginal

Legal Service

6. Legal Information

Access Centre

7. Local Chamber

Magistrate

UNDERSTAND

1 Explain the symbolism attached to the:(a) scales (b) blindfold (c) sword.

2 Generally, the word ‘justice’ means ‘fairness’. However, fairness is a personal idea: what is ‘fair’ depends on what each person believes is fair in a particular situation. Consider the following cases and decide whether you think the punishment is fair or unfair. Give reasons for your answers then discuss them with other class members.(a) A year 8 student is suspended for three months

for smoking at school.(b) A 15-year-old is let off with only a police caution

when caught shopstealing.(c) An 11-year-old boy is not allowed to join the

under-13 girls’ ice hockey team.3 Use the Internet or library to find out more about

Ned Kelly. Do you think he was fairly treated? Why or why not?

PARTICIPATE

4 As a class, discuss whether it is fair that you can be found guilty of breaking a law that you did not even know about.

5 In groups of three or four, write and perform a two-minute roleplay about the trial of Ned Kelly.

INVESTIGATE

6 Fill in the blank areas in the following table. Look under the appropriate headings in the White Pages and the Yellow Pages, or in the Government and Community section. To help you locate the appropriate website address, go to www.jaconline.com.au/commerce, choose weblinks and click on the relevant link for this textbook.

7 After you have completed the table, advise the following people where they can obtain legal advice.

(a) A migrant who has very limited English and who has been charged with theft

(b) An Aboriginal woman who alleges she was insulted by racist comments from her employer

(c) An elderly man who cannot afford legal representation in his court case

(d) An angry woman who believes her solicitor gave her incorrect advice

(e) A young man who wants to enquire about jury duty

(f) A year 10 Commerce student researching children’s rights

8 Evaluate the usefulness of the Internet in helping overcome the problem of unequal access to the law.

COMMUNICATE

9 Design a leaflet, aimed at secondary school students, which outlines a range of services available to help access legal advice. You may wish to use desktop publishing software to present the leaflet with text and graphics.

E-LEARNING

10 To find out more about LawLink, LIAC and LawAccess, go to www.jaconline.com.au/commerce, choose weblinks and click on the relevant links for this textbook. Present a two-minute oral presentation on one area of interest selected from any of these websites.

11 Outline the situations for which legal aid is available. You will find all the information you need by going to www.jaconline.com.au/commerce, selecting weblinks and clicking on the LawLink link for this textbook.

WORKSHEETS

3.8 Legal crossword3.9 Topic test — law and society





Check & challengeThe legal framework

1 Match the following definitions to the wordsunderneath the grid.

1. The party that commences a civil action

2. A process to determine whether someone committed a criminal act or caused another person a loss

3. An application for a legal decision to be reviewed in a higher court

4. To bring a civil action against another person for causing damage or injury

5. Disorder or confusion due to the absence of government or laws

6. The standard of proof required in a criminal trial

7. A court official who hears cases in the lowest court of law

8. To release an accused person who is awaiting trial. Another person usually guarantees to pay a large sum of money if the accused does not later appear in court on a certain date

9. A court official who has the power to make decisions on matters brought before a court of law

10. A hearing in a Local Court to decide whether there is enough evidence to put a person on trial for an indictable (serious) offence

bailplaintiffbeyond reasonable

doubtjudgesue

appealcommittal hearingtrialanarchymagistrate

2 Which sort of society would you prefer to live in— one with too many laws, or one with too few?Explain.

3 List the basic rules that apply within yourhome. How are these rules different to laws?

4 What is the role of the court?5 Write a brief report of a court case using the

following words:

6 Create a simple illustrated children’s book toexplain the differences between the courts inAustralia.

7 In a court, who wears a wig and is addressed as‘Your Honour’?

Areas of law8 What is the difference between:

(a) criminal and civil law?(b) indictable offences and summary offences?(c) common law and statute law?

9 Provide examples of two laws that reflect thevalues of our society.

10 Explain how laws can be changed.11 Should decisions made by judges 50 years ago

set a precedent for what happens today?

Using the legal system12 What is meant by the term ‘access’?13 What factors create barriers to accessing the

law?14 Identify those groups in society that may have

trouble in achieving equal access to the law.15 You can be found guilty of breaking a law even

if you did not know about it. Is this fair? Why?16 List three government websites that provide

information about legal issues.17 What is meant by the statement, ‘justice

delayed is justice denied’?18 Draw the figure used to represent justice. High-

light and explain the three symbols of justice.19 What is the role of the Legal Aid Commission?

murderjudgeguiltycounsel for the defence

prosecutionjuryappeal

Law and society99

Informed citizen participation

16 Some people can be excused from jury duty,such as those who are too ill or cannot travel.Others, such as those who work in the legalsystem, are not allowed to be jurors. Who else,do you think, should be excused from jury dutyor should not be allowed to sit on a jury? Givereasons for your choice.

17 Imagine you and three of your friends havebeen shipwrecked on a deserted island. Youhave very few provisions, although the islandhas lots of edible vegetation and water.(a) Write out a list of five rules your group

agrees to follow until rescued.(b) How will you ensure everyone

obeys them?(c) How will you decide

that someone is responsible for breaking a rule?

(d) What will be the consequences if somebody is found to have broken the rules?

(e) Who will enforce the rules?

(f) Under what circum-stances may it be acceptable to break a rule? Explain.

(g) How will you resolve disputes?(h) Who will have the power to either change

an existing rule or create a new one?18 The Neighbourhood Watch Program has been

operating in New South Wales since 1984, andhas helped to significantly reduce crime in thatstate. It involves four strategies: asking peoplein the neighbourhood toidentify all their valuables(by engraving them, forexample), encouraging themto report any suspiciousactivity to the police,helping them to becomemore aware of security andsafety issues, and erectinglots of Neighbourhood Watch signs (see the logoat right) in the area as a warning to would-becriminals.

Work in groups of about six to roleplay amonthly meeting of your local NeighbourhoodWatch Committee. Before you start, assignroles (including the Chair) and develop anagenda for discussion.

©

Judicial and enforcement structures

19 Read the article below and then complete thefollowing tasks.(a) Underline the words in the article that

indicate this is a criminal case.(b) Why do you think the magistrate placed the

accused under a curfew?(c) What is the role of the magistrate in this

case?(d) Why has the court ruled that the accused is

not to be identified?(e) If the boy is committed for trial, in which

court would the trial take place?(f) If the boy is found to be

guilty, what sentencewould you impose? Beprepared to justifyyour decision.

(g) Until the age of 18, aperson is considered aminor and is entitledto special protectionfrom the legal system.Do you think this isfair?

Boy 13, charged with armed

robberyA 13-year-old boy charged with armed rob-bery appeared in the local Children’s Courttoday. He faces charges of using a knife torob George’s Eatery at Glebe early Saturdaymorning. The court ruled that the accusedcannot be identified.

The boy, wearing jeans, joggers and a blueshirt, sat with his head bowed during most ofyesterday’s hearing.

The court heard that five days before the rob-bery, the teenager was put on a good behaviourbond on charges relating to shopstealing.

Magistrate John Nicholson was told that theaccused lived with his uncle, and that he wouldplead not guilty. Magistrate Nicholson was con-cerned that the boy had been roaming the streetsat 3 am. The boy was ordered not to leave homebetween 5 pm and 9 am unless accompanied byan adult.

The committal hearing is expected to continuetoday.

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New Concepts in Commerce