3

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

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

outcomes
A student can:
5.1 Apply consumer, financial, business, legal and employment
concepts and terminology in a variety of contexts
5.2 Analyse the rights and responsibilities of individuals in a range
of consumer, financial, business, legal and employment contexts
5.3 Examine the role of law in society
5.4 Analyse key factors affecting commercial and legal decisions
5.5 Evaluate options for solving commercial and legal problems
and issues
5.6 Monitor and modify the implementation of plans designed to
solve commercial and legal problems and issues
5.7 Research and assess commercial and legal information using a
variety of sources
5.8 Explain commercial and legal information using a variety of
forms
5.9 Work independently and collaboratively to meet individual
and collective goals within specified timelines.

glossary
access: equal opportunity for all people to make use of
the legal system
adversarial 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 order
judge: a court official who has the power to make
decisions on matters brought before a court of law
jury: a group of people (either 12 or six) selected to hear
the evidence in a court case
laws: a set of legal rules
magistrate: a court official who hears cases in the lowest
court of law
plaintiff: the party that commences a civil action
precedent: a previous legal decision that serves as a rule
or pattern in future cases
private law: deals with disputes between private citizens
public law: deals with disputes that affect the community
statute law: laws made by parliaments
sue: 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

3.1
Reasons for laws
You have to obey rules at school or on the sporting
field. 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 age
from entering premises where alcohol is served. The
difference between a rule and a law is that the police
and the courts can enforce laws. Laws, therefore, are
legal rules. This means that a person can be taken to
court and penalised if he or she breaks the laws.

The law-breakers
We cant cross now, said Jamahl. The Dont Walk
sign is showing.
Its okay, just hurry, yelled Ben. There are no
cars coming.
When they reached the other side of the busy
intersection, a police officer approached them. Do
you realise that it is illegal to disobey a Dont Walk
sign? If I see you breaking the law again, I will have
to fine you.
Jamahl and Ben were apologetic. Everyone does
it so we thought it would be okay, said Ben. We
wont do it again.
Thats good, said the police officer. The law is
there to protect you as well as drivers.
As they walked away, Ben and
Jamahl both realised they knew very
little about the law. They wanted to
know more.

chaos would occur. In extreme cases of conflict, a

state of anarchy would develop. The person with the
most strength would start to dominate, and the weak
and helpless would suffer. However, when people
obey the law, a sense of order is created, resulting in
a 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 telling
society what people cannot do. For example, we
cannot commit assault, murder or robbery. We
cannot drive while drunk or ride a bike without
a helmet. In this role, the law restricts our
individual freedom but provides safety for all
individuals in society.
2. Freedom to do many things by telling society
what people can do. For example, the law allows
us to own and operate a business, drive a car,
get married or divorced, or leave
school.

Why do we need laws?

Imagine what could happen if there
were no laws and people could do
whatever they liked. Confusion and

70
New Concepts in Commerce

3. Resolving disputes in order to stop people

taking the law into their own hands. The legal
system provides a police force (or service), court
system and correctional centres (jails and
juvenile detention centres) to enforce and
administer the law.
If society has too many laws, peoples freedoms are
severely restricted. However, a society that does not
have enough laws turns to chaos, and people become
very unhappy. So it is important for society to achieve
a balance between too many and too few laws.

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.

The police force, like the courts

and correctional centres, is
part of our legal system.
Without laws, society
would be in a state
of anarchy.

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

71
Law and society

The shopstealing story

3.2
The legal system
The law affects almost everything you do.
If you buy a mobile phone and it does not
work properly, there are laws that can
help you get it fixed, get an exchange or
receive a refund. If you rent a flat,
there are laws that say what you and
the landlord can and cannot do. If
you have an accident at work, there
are laws that say who has to pay
your doctors bills.
In each of these situations, the law
is there to protect you. The law therefore empowers you to seek a solution to
your problem. Without the protection of
a legal system, enforcement of a persons
rights would be based on physical violence:
might is right. In this situation, most people would
be powerless. Of course, the law operates in the
background, waiting for you to access it if you
should need its assistance.
Every society has developed its own set of laws.
These laws develop over time and form a countrys
legal system. Australia has a legal
system that began in England.
The legal system consists of a
number of institutions such
as parliaments, courts and
prisons. It also includes people
who 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
The people and institutions that make up Australias legal system

72
New Concepts in Commerce

UNDERSTAND
1 In the past, disputes were often resolved with the

2
3
4

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

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?
What is the role of police in our society?
What do you think would happen in our society if
police went on strike?
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.
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?

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

WORKSHEETS

3.2

73
Law and society

Join the police service

3.3
The court structure hierarchy
Often, the parties in a
dispute will settle the
issues themselves
without going to
court. However,
many disputes eventually require the
legal system to help
resolve the issues. This
is the role of the court
system. There is a variety of courts: which
one you use will depend
on which state you live in
and the nature of the
legal dispute.

The court hierarchy

Court hierarchy
If you break a minor rule during a lesson, your
teacher will decide your guilt and punishment. For
a more serious classroom offence, either your level
coordinator or the deputy principal will deal with the
matter. For very serious offences you will be sent to
the principal. The court system operates under a
similar hierarchy.
There are many courts at the bottom of the hierarchy. The number decreases the further up you go
until you reach the High Court, of which there is
only one. A serious issue facing our society is the cost
of a trial, which becomes more expensive if the trial
is held in a court that is higher up the hierarchy.

The Local Court

In the Local Court there is no jury. Instead, it is a
magistrate who hears the cases, decides the verdict
and sets any punishment. Magistrates are qualified
legal practitioners who have many years experience
in dealing with legal matters.
Inside a Local Court

The Local Court deals with minor civil disputes,

for instance, where people sue other people for
damage to property or for injury claims of up to
$40 000. This court also hears minor criminal
matters such as stealing, drink-driving,
indecent language and assault charges. A
magistrate presides over committal hearings dealing with major criminal offences
such as armed robbery, manslaughter and
homicide to decide if there is enough evidence for the case to go to trial in a higher
court. A magistrate also hears bail applications. The Local Court hears approximately
80 per cent of all cases, both civil and criminal.
The Coroners Court is a special Local Court that
investigates deaths by unnatural causes and suspected arson. The Childrens Court deals with cases
involving young people who committed offences
when under the age of 17. The court is closed to the
public and the media.

The District Court

In 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 appropriate sentence.
The District Court
of NSW

74
New Concepts in Commerce

The Supreme Court

This is the highest court in NSW. It deals with the
most serious civil cases involving large sums of
money. As well, the most serious criminal cases
such as murder are heard in this court. The
Supreme Court also deals with appeals from the
two lower courts.

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

The entrance to the main NSW Supreme Court building in

Sydney features a sculpture of Australias Coat of Arms.

The High Court

Located in Canberra, this court deals with appeals
from the state or territory Supreme Courts.
It also hears cases concerning the interpretation of
the Australian Constitution. Because it is the highest
court in Australia, its decisions are final. The High
Court is a federal court, which means that any
decision it makes applies to the whole country.

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

The High Court

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 states 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

75
Law and society

Caught and court

3.4
The role of court personnel
After being arrested, you may end up in court if the
police feel they have a strong case against you. If
you plead not guilty, a trial will be conducted. It
will take place in a courtroom. In Australia,
the method of trial used is called the
adversarial system. This means
two opposing sides will present their
arguments to an independent
umpire a judge or a magistrate.
Courts can be very tense
places. The decisions made in
them can have an enormous
impact on peoples lives. Courts
and the officials who work in
them deal with real-life dramas.
While each courtroom official
has a specific role to play, they
are all attempting to achieve
the same objective: justice.
The main roles include
magistrate,
judge,
juror,
prosecutor, and counsel for
the defence.

The judges associate is a

trained lawyer who manages
much of the paperwork.

Magistrate as
umpire
A magistrate is in charge of
the lowest court, where the
atmosphere is much more
informal. He or she does not
wear a wig or a robe, and is
a qualified legal practitioner. People address a
magistrate as Your Honour.
After hearing the cases
presented by both sides, the
magistrate decides whether a
person is guilty or innocent.
If people are found guilty,
the magistrate decides the
punishment or (in civil
cases) how much money
to award as damages. A
magistrate will refer very
serious criminal offences
to the District Court.

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.

Judge as umpire
whos who in a judges court
(criminal trial)

76
New Concepts in Commerce

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.

The tipstaff
helps the
judge keep
order in the
court.

UNDERSTAND
1 Explain how the adversarial

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.

system operates.
2 List the main courtroom

officials.
3 How many jurors are there

5
6
A prison officer
from the prison
where the accused
has been held

8
The
accused

Witness box, from

which people give
evidence

Members of the public,

who listen to and
observe the court
proceedings

for:
(a) a civil case?
(b) a criminal case?
How are magistrates
and judges addressed in
court?
When can a judge question
a witness?
What is the jurys
responsibility in a criminal
trial?
What is the difference
between the:
(a) magistrate and judge?
(b) defendant and plaintiff?
(c) prosecution and counsel
for the defence?
Compare the role of a
magistrate and a judge.
What is the role of the
counsel for the defence?

COMMUNICATE
10 In small groups,

Members of the media, who

observe proceedings so they
can report what happens

77
Law and society

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.

3.5
Juries
The idea of being tried by everyday members of the
community has its origins in England during the
reign of Henry II (115489 AD). He appointed
advisers who visited country towns to hold a court
and hear cases. He also introduced a system of
trial by jury. By the 1500s, England had developed a common legal system based on the right of a
person to be considered innocent until proven guilty.

Summoned for jury duty

Juror

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 judges
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.

Arguments for and against the jury

system
Arguments for the jury system
1. A jury is a cross-section of society and therefore reflects
societys 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.

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.

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.

78
New Concepts in Commerce

UNDERSTAND
1 What is the role of the jury?
2 Who may be called upon to do jury duty? What
3
4
5

COMMUNICATE
8 In groups of three or four, discuss these

exemptions are there to this?

In a criminal matter, how many jurors are on a jury?
What must they decide?
In a civil case, what are they mainly concerned with?
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.
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 persons prior charges or convictions?
(c) According to Justice Dunford, what is one effect
of the case?

INVESTIGATE
7 Find cases where the jurys verdict was later found to

be incorrect. What reasons could be given for the

jurys incorrect verdict? (One famous case is that of
Lindy Chamberlain.)

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 groups
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 a
murder verdict should stand after jurors ignored a
judges orders during a trial and found incriminating
information about the accused on the internet.
At least seven of the 12 jurors have admitted
knowing the man had faced an earlier murder charge,
leading Justice John Dunford to say there may be a
real suspicion that they may have been influenced.
The man, known as K, has faced two separate
charges of murder. He was found not guilty on the first
charge, but on the second he was sentenced to 24
years jail. His conviction was quashed on appeal and a
retrial ordered because the judge misdirected the jury
on DNA evidence. At the retrial he was found guilty
and sentenced to 22 years jail.
Murugan Thangaraj, for K, said the jury would have
been discharged if the judge had known that jurors had
defied his order to consider only evidence before the
court.
He said the information was capable of unconsciously affecting their deliberations and that some
might have believed K had a tendency to that type of
crime.

The NSW Solicitor-General, Michael Sexton, said

the verdict should stand because the Crown case was
overwhelming.
But Justice Dunford said the affidavits showed two
jurors knew K had received a lengthy jail term at his
first trial.
He said jurors one, four, five and six had accessed
information about the trial and knew there was an error
in 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 and
made comments that K was a double murderer.
Asked whether it was possible to say the information
did not affect any juror, Mr Sexton proposed a test
based on the significance of the material.
That is where I have big problems, Justice Grove
said, adding there was the fundamental issue of
affording the defendant a fair trial.
The court reserved its verdict, but Justice Dunford
hinted at one effect of the case: Jurors are going to be
told not to look at the internet.

79
Law and society

Source: Sydney Morning Herald, 8 December 2003

3.6
Areas of law
There are two main branches of the law that operate
in society. The first set of laws regulates peoples
behaviour with other individuals. It is known as
private law. The second broad area of law regulates

peoples behaviour within society as a whole. It is

referred to as public law.
Another way of classifying the law is to divide it
into civil and criminal law.

Civil law

For example, imagine you discover half a decomposed snail at the bottom of a soft-drink bottle from
which you have just drunk. You are then violently sick
and suffer serious stomach illness. You decide to sue
the manufacturer for negligence meaning that the
manufacturer did not take enough care to prevent an
injury. You, the plaintiff, go to court to prove your
case. You ask a judge to order the soft-drink manufacturer, the defendant, to pay you compensation. The
plaintiff does not always win such cases. Sometimes
the judge decides that the plaintiff is in the wrong and
can order him or her to pay the defendants legal costs.

Civil law, which is part of private law, deals with

non-criminal matters. It allows an individual to
bring actions against other members of the public for
a civil wrong done to them. Civil law involves such
matters as disputes between friends, business partners, consumers and retailers, neighbours or an
individual and a government department. Some
examples of civil wrongs include negligence, trespass, defamation and nuisance. Where a civil wrong
is successfully proven in court, the wronged party
will seek damages money as compensation.

In civil cases . . .

the injured person sues . . .

and can receive compensation.

Criminal law
Criminal law, which is part of public law, protects
individuals from others doing the wrong thing. It
outlines the way people should act what they can
and cannot do. Some of the most common crimes

In criminal cases . . .

are robbery, homicide (manslaughter and murder),

rape, assault, theft and drug offences. If a person
commits a crime, this is treated very differently
from other legal issues.

the police prosecute . . .

80
New Concepts in Commerce

and the courts impose a penalty

on a guilty party.

For example, if you rob a bank,

it does not remain just a dispute
between you and the bank.
Instead, your action is regarded
as an offence against the state
(society). The bank does not have
to try to catch you. Rather the
state organises its police to do
this. The bank does not take you
to court the police or representatives of the government do.
They will also be the ones who
prosecute you.
During the court case you will
have the opportunity to tell your
side of the story. If you are found
guilty, you will be punished with
either a fine and/or imprisonment.
Serious crimes, such as homicide, child abuse and rape, are
called indictable offences. These
offences are usually heard in a
higher court. For these offences,
the guilt of the defendant is
determined by a judge and jury.
Less serious crimes, such as
minor assaults, petty theft and
traffic infringements, are called
summary offences. They are dealt
with relatively quickly and
cheaply by a magistrate in a Local
Court.
There are many types of criminal
offences and civil wrongs in this
cartoon.

(f) A neighbours loud music at 3 am is disturbing your

peace.
UNDERSTAND
1 What is the difference between:

COMMUNICATE
4 Select a partner and cut out five newspaper articles

(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 caf.

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
3.5
3.6

81
Law and society

Dont break the law!

Crime does not pay
Lawyer chat

3.7
How laws are made
There are two ways of making laws. Those laws
that are written down beforehand are called
statute law, or Acts of Parliament. Alternatively,
they can be developed piece by piece by judges as
they come across new problems in the cases they
hear. These laws are referred to as common
(judge-made or case) law. In Australia, the law is a
combination of both types.

The beginnings of common law

The justice system in England and Australia is
based on common law. The reforms of King Henry
II (a great grandson of William the Conqueror) gave
rise to the system of common law.
When Henry II became King of England in 1154,
medieval people were tried at a number of different
courts. Most had to prove their innocence by trial
by ordeal or trial by combat. Henry II decided his
people should all have the opportunity for royal justice (that is, the justice of the kings court). Though
the other courts continued, the kings court began
travelling around, hearing cases. Judges started
keeping records of their decisions, referring back to
them when hearing similar cases.

Common law
Common law today continues to mean the decisions
given by judges. It may occur because a judge has to
decide on a case where there is no existing law that
regulates it. Consequently, it is up to the judge to
make a decision. A record of these decisions will be
placed in law reports so that they can be referred to
when needed. These decisions are known as legal
precedents.
Judges do not deliberately attempt to change or
make a law but this may happen as they try to
resolve the dispute before them. For example,
imagine you have a brother and sister who constantly argue over which television program to
watch. You resolve the issue by telling them that
each person can take it in turns to select a program. You have acted like a judge and made a new
law. Your brother and sister will now be expected
to 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.

Trial by ordeal: would justice have prevailed?

82
New Concepts in Commerce

Precedent
If your uncle bought your eldest sister a digital
camera for her eighteenth birthday, you might
expect to receive a digital camera for your eighteenth birthday, or at least a present of equivalent
value. This is because your uncle set a precedent
and you expect to be treated the same. Precedent
works the same way in law.
Traditionally, judges will give similar decisions in
cases that are alike. This is known as the act of
precedent. If a judge makes a decision in a case

Dr Grants itchy underpants

In 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

for which there is no precedent, then the decision

that is made will usually be followed by other
judges in the future. Generally, judges are obliged
to 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.

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?

Mrs Donoghue and the snail in her drink

Dr Grant and his itchy underpants

83
Law and society

Statutory interpretation
Courts also make laws when they interpret (decide
on the meaning of) words in a law made by Parliament. Laws made by Parliament often use complicated language. This language is used in an
attempt to fully explain what the law means and to
try to cover all the possible situations to which the
law is relevant. Consequently, the language can be
difficult to understand.
Although only Parliament can change the wording
of a law, when a court interprets a word, this new
meaning applies as law from then on. The principle
of precedent applies to interpretation as well.
Therefore, once a judge decides on the meaning of a
word or phrase, that meaning becomes law and
must be followed by other judges in lower courts.

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 law
The laws created by Parliament have the highest
status in the country and must be obeyed by all
people. Parliament makes most of the laws. Both
the Federal Parliament in Canberra and State
Parliament in Macquarie Street, Sydney, make
laws called statutes or legislation. Once each law
has been passed, it is binding on all courts and
judges. Most laws in Australia are made this way.
It would take far too long for Parliament to decide
all the details of the law, so the Act provides for the
appropriate minister or department to work out the
fine details regulations that, when passed,
become laws.
Parliament is often referred to as the supreme
law-making authority because it can virtually
make laws on whatever it likes, change laws when
it wants to and pass an Act to overcome the effects
of precedent. Statute law will always succeed over
common law and no court has the power to change
it.
The Australian Constitution limits the powers of
the Federal Parliament. State Parliament is
restricted by the states Constitution and, to some
extent, the Australian Constitution as well.

The beginnings of parliament

In 1215, King John was forced by his barons
to sign a document called the Magna Carta.
He promised to call up all his lords by name
(to discuss important matters) and to have
ordinary people elected to similar meetings
in certain communities. His actions gave rise
in time to what are known today in England
as the House of Lords and the House of
Commons.
These meetings of lords and commoners
were first referred to as parliaments in
1236 (from the French word parler, meaning
to speak). They were usually held to discuss the kings need for extra taxes. At this
stage, the king still always had the final
say.
By 1265, the Great Council was enlarged
to include two community representatives
from every city and county in England.
By around 1350, parliaments were divided
into two groups. The lords met in a separate
place (or house) to the elected community
members. In 1407, Henry IV decided that the
community members (House of Commons)
had to approve requests for grants of money
before these requests were considered by the
lords (House of Lords). By the fifteenth
century, formal requests of the House of
Commons, known as bills, were part of the
law-making process.

A twentieth-century illustration showing King John reluctantly

signing the Magna Carta.

84
New Concepts in Commerce

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

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 Grants 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.

Parliaments can make new laws and change existing

ones.

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

unconstitutional.

Federal and state constitutions

There are sometimes disagreements between the
Australian government and the state governments
over which has the power to make decisions on certain matters. For example, should areas of world
heritage be under state or federal control?
A document known as the Australian Constitution outlines the powers of the Australian government. A constitution is a set of rules by which a
country is governed. The state governments retain
the power to make laws unless the Constitution
hands this power to the Australian government.
When the various levels of government disagree on
who has responsibility for making laws on certain
issues, the matter is decided by the High Court. The
Constitution was drawn up just before Australia
became a federation in 1901.

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 judges decision in a landmark court case.
Underline the key words in the article.

85
Law and society

3.8
How a bill becomes a law
Without a set of rules in a society, there would be
chaos. Rules usually exist to create and maintain a
sense of order. However, rules must work, or they
are useless. Every country has its own laws legal
rules that can be enforced by a court of law. These
laws vary according to the beliefs, attitudes and
culture of a country. Most laws in Australia are
made by the federal and state parliaments. In fact,
making laws is their main job.
There are very definite procedures for how laws
are made or changed. Before any proposed laws can
become Acts of Parliament, they have to be debated

and passed by Parliament, and then approved by the

Executive Council. During the debate, the government explains why the law is needed and why it will
be good for Australia. The Opposition tries to argue
why this is not the case. Lets see, step by step, how
all of this happens in Federal Parliament.

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.

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.

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.

86
New Concepts in Commerce

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.

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.

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 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.

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 Speakers
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?

87
Law and society

3.9
The relationship of laws to
values, morals and ethics
Within society, there are often groups that have different standards of morality and ethics. This makes
it difficult to create a set of laws that reflects
everyones values. Consequently, as society
changes, so too must the laws.

Rules of morality and ethics

We develop a sense of what is right and wrong from
the moral and ethical values of our society. For
example, murder is considered a serious crime
because our society believes human life is precious
and should be protected. Usually societys moral
and ethical values reflect the beliefs, attitudes and
values of religious institutions.

Different country, different values,

different laws
Our laws in Australia are sometimes very different
to those of other countries. For example, in Australia,
adultery is considered morally wrong and not desirable behaviour, but because we do not consider such
behaviour bad enough or damaging enough to the
rest of society, it is not illegal. However, in some countries it is considered a serious threat to the stability
of the family and society as a whole. In these countries, a woman found guilty of committing adultery
can face the death penalty. In countries that have a
strong Islamic influence, the sale and consumption
of 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.

88
New Concepts in Commerce

Laws reflect changes in society

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.

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.

5 Research Aboriginal laws. Explain three of these laws

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 everyones 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 teachers
desk. Would you accept such information? Give
reasons for your answer.
INVESTIGATE
4 Research the laws of a non-Western country. Contrast

Australias laws with those of the non-Western one.

Present your information either as a PowerPoint
presentation or a word-processed report.

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.

89
Law and society

3.10
How laws are changed
As a member of the community, you
can have a say in making laws.
Through signing petitions, writing
letters, personal visits, participating
in demonstrations or joining lobby
groups, pressure can be applied to
politicians to introduce new laws or
change existing ones.

US study slams violent

video games

We encourage concerned community members to

contact their local politicians and express support
for our proposals. Its going to be tough, though, as
were taking on a billion-dollar commercial giant in
the video industry.
PAV members tell me they have seen children as
young as five playing games that involve killing
police and attacking women. We are calling on the
government to consider our research carefully and
to support our proposals, Ms Tortini said.
It is understood that the Premier has already
asked the Attorney-General to establish a taskforce
to investigate this latest research and to seek
further community consultation.

35
30
Percentage

A recent study of childrens use of

video games, undertaken by the US
organisation Children Now, found
that close to 90 per cent of all video
games studied contained violence
of some sort.
The study supports the findings of
the 1000 or so studies carried out
since the 1960s that show a clear connection between childrens exposure
to violence in the media and aggressive behaviour.
A spokesperson for the local community-based
group Parents Against Violence (PAV), Adriana
Tortini, said this report establishes a clear link
between violent video games and the increase in
violent juvenile crimes, especially assault and rape.
The problem is, she said, that the violence is
becoming more and more realistic. The games are
sending messages to our young people that violence
is fun. Rarely are
the characters in
games punished for
killing or practising
violence. In fact, they
are rewarded. Its
seen as okay.
Ms Tortini said this
provides
additional
backing for her organisation in pressuring
politicians to change
the law.
We want to ban the
sale of video games
that
contain
high
levels of violence, she
said.

25

Fantasy violence
Sports games (some
of which c
General entertainment
Violence to humans
Educational

20
15
10
5
0

Category

Video game preferences among young adolescents

(data from J. Funk, 1993 Re-evaluating the impact of
video games.)

Adriana Tortini, from

Parents Against Violence

90
New Concepts in Commerce

CHANGING LAWS

Video game
manufacturer disputes
findings

By Marion Newell,
Senior Lecturer in Legal Studies
The law is a set of dynamic legal rules. This means that
new laws develop and old ones are scrapped as society
changes or its values change. For example, for a woman
to swim without neck to knee bathers
was once against the law.
Often, citizens will pressure the
government to amend (or
change) an existing law or introduce a new one. If the government is convinced of the
citizens argument, it will do
this. Laws can also come
about when a judge makes
a decision after hearing a
case. A law is made or
changed when judges
give the reasons for their
decision on a case. This is
known as common law.

By media reporter Russ McCulloch

The Video Game Manufacturers Association (VGMA) has
criticised PAVs reaction to the recent research. I spoke
today with Kristina Winston, Executive Director of VGMA.
McCulloch: Why doesnt your association support
PAVs position?
Winston: We believe that much of the research has
been based only on very small samples. Some
data that PAV claims supports its position was
based on a sample of just 22 adolescents, all of
whom had previously been charged with assault.
The sample was biased and does not provide an
accurate picture of the real situation.
McCulloch: Your association will be releasing its own
research next week. What is it expected to reveal?

Anything else but this

attire for women
swimmers was once
considered obscene.

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.

Winston: Our research was conducted over an

18-month period and involved approximately
250 children aged 8 to 14. It shows theres no
link between the level of violence in video games
and the increase in violent juvenile crime. In fact,
our research highlights the increase in domestic
violence as the main cause of violent juvenile
crime.
McCulloch: What have you asked the government to
do?
Winston: The government must realise the importance of our industry. It employs over 16 800
people. Last year we generated sales of approximately $587 million, 28 per cent of which was
paid to the government as tax. Our association is
also a sponsor of several community environmental awareness projects. We applaud the
governments decision to establish a taskforce,
but see no need for any change to legislation.
McCulloch: Would your association consider a
warning label about the level of violence being
printed on video game packages?
Winston: Yes. In fact, in recent talks with the Premier
we suggested how a warning system could
operate.

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

91
Law and society

Changing the law

3.11
Accessing the law
One of the main functions of the legal
system is to safeguard peoples rights.
The legal system can only perform this
protective role if people have equal
access to the law. Access means equal
opportunity for all people to make use
of the legal system. If some people are
unable to access the law, then they are
discriminated against and consequently denied justice. Ideally, everyone
should have equal access. However,
in reality there are a number of
factors that create barriers to
accessing 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.

The barriers to justice

Cost
Not everyone can afford legal advice and representation. Obtaining legal advice can be very expensive. Fees charged by lawyers and barristers are
very high. If a legal case is prolonged or is subject

to appeal, the legal costs can very quickly mount

up. Often, legal aid can be difficult to obtain. This
may deter people from exercising their legal rights
to solve their problems.

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

92
New Concepts in Commerce

I put it to you that

Time

transparency in educational

The prospect of a lengthy trial is another barrier to equal access to the law. The saying
justice delayed is justice denied means
that if a trial drags on for a long period
then people are not treated fairly. For
example, a woman who sued a tobacco
company for compensation for the terminal cancer she argued was caused by
cigarette smoking died before the lengthy
case was settled. The case had dragged
on through the court system for
nine years!

deliberations is predicated on
operational efficiencies.
Do you agree?

Procedures
When confronted with a legal
issue, you face a number of
problems. Firstly, because of
your limited knowledge of the
law, you may not even be aware
that you have certain rights or
responsibilities. Your access may be
restricted because of your ignorance
of the law. If you have to go to court,
the procedures can be intimidating and confusing.

Language barriers restrict communication.

Language
If English is not your first language, it may be difficult to understand the legal terminology and procedures. Without the assistance of an interpreter,
you may not understand what is going on during a
court hearing. Even finding help from a lawyer or
the translation of legal documents may pose a
problem. Not being able to communicate your needs
can limit your access to the law.

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.

COMMUNICATE
8 In small groups, propose some solutions to
UNDERSTAND
1 What is meant by the term:

2
3
4
5

6
7

(a) access?
(b) discriminate?
List the four barriers that people face in accessing
the law.
Explain in your own words the expression justice
delayed is justice denied.
Why is it important for people to have equal access
to the law?
Refer to the Com Fact above about the Aboriginal
boy. Do you think the outcome of his case was
unjust? Why?
Choose two cases of discrimination you know
about. Write five lines on each.
How does the present legal system unintentionally
discriminate against some people?

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.

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Underline the key words in the article.

3.12
Issues of fairness in using the law
Imagine you and your friend are discovered cheating
during an exam. After an investigation, the school
decides to punish you by deducting 30 marks from
your final score. However, your friend has only 10
marks deducted. You would probably feel unfairly
treated because of the injustice of the two punishments. This example shows that the law should
ensure that people who break the same law are
treated in a similar way. This is known as justice.

There is an old saying that justice must not only be

done, but must be seen to be done.

Analyse a cartoon

Justice
There is an old saying that all people are equal
before the law. For this to happen, laws should
treat all people equally, regardless of whether
they are male or female, rich or poor,
white or black, young or old. This
means that the interpretation and
enforcement of the law should not
discriminate unjustly.
However, in reality, the legal
system may not always be able to
provide justice for all. Consequently, there are certain groups
in society that may experience
difficulties in achieving equal
access to the law. The main
groups to experience this type
of
discrimination
include:
people in poverty; young
people; Indigenous peoples,
especially those living a traditional lifestyle; and non
English speaking migrants.

The 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.
Who do the figures represent?
Look for clues in the way they are
drawn. Do any details emphasise a
persons 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?

Symbols of justice
The symbols of justice attempt
to reinforce the idea of fairness
and equality. The symbols are:
1. the scales, which represent
the legal system weighing up
both sides of the argument
equally
2. the sword, which symbolises
the punishment to be imposed
on any guilty party
3. the blindfold, which demonstrates that justice is impartial
it is not influenced by
wealth, race, religion, gender
or status and that all people
will be treated as equal.

One law for the rich and another for the poor

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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.

Analyse a cartoon

A fair and unbiased hearing

Our legal system seeks justice by providing the
opportunity for all parties to present their arguments before an impartial and independent adjudicator. This is usually a magistrate or a judge. In
serious cases, juries hear the evidence and assist a
judge in deciding who is telling the truth.

Look 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?

A courtroom hearing

Ned Kelly justice or

injustice?
It would appear that justice should be an
easy term to define. However, it
can have different meanings
depending on a persons
point of view. For example, take
the case of the Australian bushranger
Ned Kelly.
Ned Kelly had his first brush with the
law at the age of 12. At 17, he had his
first jail sentence. Over 13 years he
stole cattle and horses, robbed two
banks, and killed three police officers.
Yet, after Ned was sentenced to
hang in 1880, 60 000 Victorians
signed a petition to save his life.
Ned Kelly
They saw him as a person who
had been treated unfairly by the
legal system. They respected him because they felt
he 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 he
was hung, Ned is reported to have said, Such is life.

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.

Addressing issues of unequal access

Laws are often complex and you may find the legal
system confusing. Therefore, when you have a legal
problem you may require help, especially if you are
required to appear in court. If you are in such a
situation, where do you go to find the law or legal
advice that may apply to your circumstances?
Fortunately, there are a number of government
departments that provide a wide range of services
to help you access the law.

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Legal Information Access Centre (LIAC)

The Legal Information Access Centre (LIAC) is
based at the State Library of New South Wales and
operates through the state-wide public library
network. The aim of LIAC is to provide access to
quality legal information for the general public in
New South Wales.
All 376 public libraries in New South Wales have
plain language legal information. Of particular
value are the Legal Tool Kit collection and Hot
Topics, a magazine that deals with contemporary
legal issues. Some 78 regional libraries offer a wider
range of legal resources including:
law texts
Acts and cases
free pamphlets
trained staff.
The State Library in Sydney provides in-depth
resources and specialist staff. LIAC can also be
accessed through their website. Use the LIAC
pathway on the website to find current legal
information on a particular subject.

LawLink NSW
The New South Wales Attorney Generals Department provides free legal information, referral or
advice either by phone or through their website.

The LawLink home page

This website provides an extensive range of links

to legal information covering topics such as:
going to court
resolving disputes
the law and young people
victims of crime
your rights.

The Legal Information Access Centre (LIAC) logo

LawAccess NSW
LawAccess is a free service providing a wide range of
information on legal and related assistance services
in New South Wales. LawAccess can be contacted by
phone or via their website. They also offer a service
for people with hearing or speech difficulties, and
translation and interpreter services.

NSW Legal Aid Commission

The Legal Aid Commission provides legal advice
and representation to people who would otherwise
not be able to afford court proceedings. It thus
prevents those people on lower incomes being
discriminated against in access to the legal system.
Regardless of a persons income, the Legal Aid
Commission will provide the applicant with free legal
advice, but legal representation is only available to
people on low incomes or with few assets.

The Legal Aid Commissions logo

Chamber magistrate
Free advice about legal matters can also be obtained
from the Chamber Magistrate and his or her staff,
whose office will be located in the local courthouse.
These court officials have legal training and are
particularly helpful in explaining the technical
features and procedures of the legal process.

The LawAccess logo

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New Concepts in Commerce

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 twominute 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.
Title

Address

(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
childrens 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
3.9

Telephone number

Legal crossword
Topic test law and society
Website address

1. NSW Attorney
Generals
Department

Free legal
information, referral
or advice

2. LawAccess

www.lawaccess.nsw.gov.au

3. NSW Legal Aid

Commission
4. Law Society of
NSW

Assistance provided

170 Philip St, Sydney

5. NSW Aboriginal
Legal Service
6. Legal Information
Access Centre
7. Local Chamber
Magistrate

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Law and society

Check & challenge

The legal framework

2 Which sort of society would you prefer to live in

1 Match the following definitions to the words

underneath 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.

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.

murder
judge
guilty
counsel for the defence

prosecution
jury
appeal

6 Create a simple illustrated childrens book to

explain the differences between the courts in

Australia.
7 In a court, who wears a wig and is addressed as
Your Honour?

Areas of law

A court official who hears cases in the

lowest court of law

8.

one with too many laws, or one with too few?

Explain.
3 List the basic rules that apply within your
home. 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:

8 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 the
values 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 system

12 What is meant by the term access?
13 What factors create barriers to accessing the

A hearing in a Local Court to decide

whether there is enough evidence to put
a person on trial for an indictable
(serious) offence

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?

bail
plaintiff
beyond reasonable
doubt
judge
sue

16 List three government websites that provide

appeal
committal hearing
trial
anarchy
magistrate

information about legal issues.

17 What is meant by the statement, justice

delayed is justice denied?

18 Draw the figure used to represent justice. Highlight and explain the three symbols of justice.
19 What is the role of the Legal Aid Commission?

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New Concepts in Commerce

Informed citizen
participation

Judicial and enforcement

structures

16 Some people can be excused from jury duty,

19 Read the article below and then complete the

such as those who are too ill or cannot travel.

Others, such as those who work in the legal
system, are not allowed to be jurors. Who else,
do you think, should be excused from jury duty
or should not be allowed to sit on a jury? Give
reasons for your choice.
17 Imagine you and three of your friends have
been shipwrecked on a deserted island. You
have very few provisions, although the island
has 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 circumstances 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, and
has helped to significantly reduce crime in that
state. It involves four strategies: asking people
in the
neighbourhood to
identify all their valuables
(by engraving them, for
example), encouraging them
to report any suspicious
activity to the police,
helping them to become
more aware of security and

safety issues, and erecting

lots of Neighbourhood Watch signs (see the logo
at right) in the area as a warning to would-be
criminals.
Work in groups of about six to roleplay a
monthly meeting of your local Neighbourhood
Watch Committee. Before you start, assign
roles (including the Chair) and develop an
agenda for discussion.

following 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 sentence
would you impose? Be
prepared to justify
your decision.
(g) Until the age of 18, a
person is considered a
minor and is entitled
to special protection
from the legal system.
Do you think this is
fair?

Boy 13, charged

with armed
robbery
A 13-year-old boy charged with armed robbery appeared in the local Childrens Court
today. He faces charges of using a knife to
rob Georges Eatery at Glebe early Saturday
morning. The court ruled that the accused
cannot be identified.
The boy, wearing jeans, joggers and a blue
shirt, sat with his head bowed during most of
yesterdays hearing.
The court heard that five days before the robbery, the teenager was put on a good behaviour
bond on charges relating to shopstealing.
Magistrate John Nicholson was told that the
accused lived with his uncle, and that he would
plead not guilty. Magistrate Nicholson was concerned that the boy had been roaming the streets
at 3 am. The boy was ordered not to leave home
between 5 pm and 9 am unless accompanied by
an adult.
The committal hearing is expected to continue
today.

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