Commerce Notes
Nature and structure of government in Australia
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Democracy: society based around the idea that a government’s power is derived from the will of the people and is exercised by them
either directly or indirectly.
Federal Government: decides on matters that affect the whole nation. E.g. immigration, defence, foreign affairs, taxation,
communication and quarantine.
To become prime minister, you need to rely on a majority of votes in the House of Representatives. A ministry is appointed for
responsibility over various functions of government. Senior ministers are members of the Cabinet.
State Government: responsible for: e.g. health, water/power supplies, transport, consumer affairs, education and law and order. All
state governments except Queensland consist of the Legislative Assembly and Legislative Council
Local Government: responsible for small areas e.g. local roads, libraries, child care, garbage collection, recreational facilities. An
individual local government is called a shire/council.
Political action and decision making
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Some issues will affect all Australians, but there are others that target specific groups, e.g. age groups ( Younger Australians are
affected by housing, interest rates etc. Older Australians will be affect by superannuation, pensioner benefits etc.
In a democracy, we have the right to voice opinions and protest if we do not agree with anything. We engage in political action to
influence the decision making process. We can also influence the process by joining a political party, taking individual action,
becoming an activist in interest groups, or contacting the media.
Interest groups can include trade unions, community based groups or professional or trade associations. Interest groups raise public
awareness of an issue.
The media is the main means by which politicians communicate with the public and provide a public forum in which members may
voice their comments and opinions.
Factors that often influence the decision making process are Governments, Business, Welfare organisations and the media.
Political parties
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Labor Party: formed 1891. Representing the concerns of trade unions.
Liberal Party: formed 1944. Representing big and small businesses.
Nationals: formed 1919. Representing farmers and regional Australians.
Democrats, representing ‘ordinary’ people in policy development.
Greens, green activists from various environmental groups.
Independents tend to vote on the merits of a proposition.
Parties select candidates to contest elections for public office. This is known as preselection. These candidates must follow the party
line and argue in favour of their policies.
Participation in democratic process
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Right and responsibility of all Australians over 18 to vote in federal, state and local elections. Federal elections must be held at least
once every 3 years.
Two methods of voting, first-past-the-post voting or preferential voting.
First-past-the-post is simply where the most favoured candidate wins. Used from 1901 to 1918.
In preferential voting, a voter must show their preferences by giving each candidate a number, in order of preference. For the vote to
count, all candidates must have a number next to their name. If a ballot paper is incomplete, illegible or is missing a number, it is
considered an informal vote, and not counted.
If candidates are numbered sequentially down the ballot paper, it is a donkey vote.
To win a seat in preferential voting, a candidate needs an absolute majority of votes (more than 50%) If no candidate has over 50%
of votes, the candidate with least votes are eliminated, and that candidates votes are redistributed to all remaining candidates by
their second preferences. This procedure is repeated until a candidate with an absolute majority appears.
Ensures the most widely preferred candidate is elected and minor political parties can still have an influence.
Optional preferential offers the voter a choice to either select just one candidate, or allocate preferences. In NSW’s optional
preferential proportional representation voting system for the Upper House, a group (consisting of 15 candidates) determines the
order of their own candidates. The position of the group is decided by a draw conducted by the electoral commissioner.
Two ways to vote, above the line and below the line. Above the line is done by placing a ‘1’ in the in the group voting squares,
recording a vote for the first candidate, while the preferences go to the other candidates in that group. Below the line voting is where
the voter selects their own order of preferences by placing the numbers 1 to 15 in order of preference.
To be elected, candidates must obtain a quota (4.5% of total formal votes). Any votes a candidate receives above the quota are
known as surplus votes and may be distributed to remaining candidates in order of preference.
Interest groups
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Interest groups are often compared to political parties because both are organisations that communicate the views and concerns of
citizens to governments.
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Interest groups are set apart from policital parties as they: do not seek to win elections. Often campaign continuously on issues,
whereas political parties tend to be most active before elections. Interest groups are more issue orientated than political parties and
depend on supporters, while political parties depend on mobilising voters.
Two main types of interest groups. Sectional and promotional groups.
Sectional groups aim to promote the interests of specific sections of a community and include trade unions, professional associations,
religious organisations, motorist groups, pensioner groups, ethnic associations and business/farming groups.
Promotional groups seek to promote a particular cause, e.g. environmental and moral issues.
Strategies of interest groups
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Deputation to members of parliament – a small group meets with a member of parliament, who then approaches the relevant
minister or raises the issue in parliament.
Direct appeals to ministers
Petitions to parliament
Letter writing
Advertising
Protests and demonstrations
Legal intervention
Direct political intervention
Advantages for interest groups
Disadvantages to interest groups Allows people to participate in the
process
May not be run democratically
Representing minority groups with little influence
May put own interests before majority’s
Educates public on certain issues
Some groups have greater influence
Highlight ignored problems
May offer one-sided or biased information
Keeping check on government actions
Informing government of electorate’s feelings
Law and Society
The legal framework
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Laws exist to regulate our society, designed to protect us and our property and to ensure that people behaves the way the
community expects them to.
Regulations: similar to rules but are more general and less specific.
The law is not specific and applies to all of us all the time.
Hierarchical court system, court is graded into inferior and superior courts, each dealing with different matters.
Courts are generally the final place to settle legal disputes, and people are encouraged to use all other legal options first. If this fails,
courts are used to reach a legally binding decision.
The most inferior court in Australia is the local court, presided over by a magistrate. This court aims to deal with matters quickly and
cheaply. Deals with minor criminal offences (summary offences) and conducts committal proceedings foe serious matters (indictable
offences). The aim of this court is to determine whether there is enough evidence to make a case. If there is, the case will be moved
to a higher court.
The district court is a more senior court and is presided over by a judge, dealing with serious and civil law matters. Includes a jury of
12 people.
The supreme court is the highest court in the hierarchy system, hearing the most serious cases and those that involve difficult points
of law. Its’ decisions can create common law.
If a legal matter involves an aspect of federal law it will be dealt with by a federal court. Deals with taxation, immigration, copyright
and companies.
The High Court of Australia is the most senior court in Australia, used to ensure that law-makers do not breach the constitution, but
also hears appeals.
Judges and magistrates are the presiding officers of a court. In a criminal law matter, a magistrates’ role is to determine whether the
accused person is guilty of a crime. A sentence is then issued if found guilty. In civil law matters the magistrate arrives at a verdict
and decides on any compensation.
Judges’ role in court is to instruct the jury on legal matters and if found guilty, to impose a sentence.
In every case, there are two opposing legal teams. The prosecutor’s role is to prove to the court that the accused is guilty and should
be punished. The defence is there to help the accused show that he was innocent, or to reduce the sentence imposed by the court.
The jury consists of 12 adults randomly chosen from the community. The role of the jury is to determine whether the accused is
guilty. In order to convict a person, the jury must be satisfied that the evidence presented shows that the person is guilty beyond
reasonable doubt. If a juror has any doubt about the accused guilt, the juror must find the accused not guilty.
Juries are used in all criminal cases, but have no role in passing sentences. In some serious civil matters, only 4 or 6 people are used.
In cases in NSW, there must be a unanimous verdict.
Areas of Law
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Laws are generally generalised into two groups, public law and private law. Public law deals with the standards of behaviour that
society expects from its government and people and those who work within the government. Includes criminal, constitutional and
administrative law. Private law (civil law) deals with the way individuals interact with each other, including laws that regulate the
behaviour of people towards each other, and the behaviour of businesses.
Criminal law is to protect the public from harm. If a person breaks a criminal law, they are considered to be harming all members of
society. The police investigate the matter and bring the case against the accused.
Crimes against person –
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Homicide – intentional killing of another
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Manslaughter – accidental or justifiable killing of another e.g. in self defence
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Assault – causing or threatening to cause injury to another
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Crimes against property o
Larceny – removing a person’s property without their consent
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Break and enter – illegally entering someone’s property without their consent
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Robbery – using violence or threat of violence to take another person’s property
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White collar crimes – usually committed by professional people and are not associated with violence or damage to property, such as
tax evasion and computer hacking.
Crimes against the state (country) –
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Sedition – encouraging a hatred of the state
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Treason – If a person or organisation actively tries to bring about the collapse of a government or assists the enemies of a
country
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Public order offences – crimes that disrupt activities of our society. They can include swearing in public and being drunk or disorderly.
Traffic offences – Most widely committed offences in our society. Involves crimes such as speeding or driving without a seatbelt. Most
of these are dealt with by on-the-spot fines, but more serious offences, e.g. drink-driving, result in court proceedings
The constitution
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Constitutions are documents that set the rules outlining how a government should be run. The Australian Constitution does not
contain the rights of the Australian citizens. Most of our rights come from statute and common law. The Australian Constitution
outlining the powers of the Commonwealth and State governments and details how power is to be divided between the three
governments (local, state, federal).
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The powers that were transferred from the states to the Commonwealth government are referred to as exclusive powers. The most
important, external powers, deal with other nations e.g. customs, foreign relations, defence, rights to enter into international
agreements.
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Powers shared between state and Commonwealth government are concurrent powers
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One of the most important aspects of our constitution is that no one person or group can take control of Australia, and therefore
separates the powers between the three most important groups in the ruling of Australia; the executive, the legislature and the
judiciary.
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Administrative law deals with the rules regulating the powers of government agencies and departments. When the government
creates a department, it is done so through the making of a statute law, outlining the role and powers of the department.
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Civil law governs the legal relations between individuals and organisations. Civil law matters are launched by individuals or
organisations who feel that they have been wrong by actions of others. No criminal activity is involved. The person bringing the case
is the plaintiff, who must prove that the defendant has wronged them in some way. There are three main areas of civil law:
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Contract law – A contract is a legally binding agreement between two parties. The majority of civil law cases involve
contracts.
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Property law – Property is anything that can be bought and sold. Laws govern the way goods are to be purchased and the
way people or organisations must behave.
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Tort law – Torts are civil wrongs, involving actions of people that cause discomfort to others. There are 4 main types of tort
law.
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Negligence – a lack of duty of care
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Nuisance – when a person interferes with other’s rights
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Defamation – when one’s reputation is damaged by another
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Trespass – when property is interfered with
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Family law is the body of law that regulates marriage and divorce, the relationship of parents with their children, and other family
issues (adoption, etc) Greatly influenced by moral values of society. Dealt with in the Family Court of Australia.
Making Laws
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English Common Law based on laws coming from two sources, statute and common law.
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Statue law involves parliament passing a Bill (proposed law).
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Common law is based on the ruling of judges and is used when there is no appropriate statute law. When a judge makes a decision
in relation to the matter, all lower courts must follow that decision, known as following precedent.
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Common law is more easily changed than statute law. To ensure important common laws are not lost, many common laws are
changed into statute law.
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Morality can be considered as doing ‘good things’. There are two types of morality: private and public. Private morality refers to
values we each have personally. Public morality refers to the values that are held by society as a whole.
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Ethics relate to what is ‘right’, which may not always be good. E.g. a lawyer defending a guilty client
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As the influences on our society change, so do our ethical and moral values.
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In order to change statute law a new bill must be passed by the relevant parliament. These bills are known as amendments and must
go through the same process as any other bill. There are commissions who provide advice on which laws may be out of date and
need changing.
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A common law can be changed by the decision of a judge in a higher court.
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To change constitutions, a referendum must be held. More than 50% of the country in at least four of the states must agree for the
change to take place. A bill must be passed before the referendum is held.
Using the legal system
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We do not have a right to have a lawyer in court, we may choose to represent ourselves, but we do have a right to a fair trial.
Legal Aid
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To ensure people obtain fair treatment from the legal system, the Whitlam government introduced legal aid. Each state has a Legal
Aid Commission, whose role is to provide legal assistance to people who cannot afford a lawyer. Anyone can gain 15 minutes of free
legal advice.
If further advice is needed, the applicant must pass several qualifying tests
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Means test – Assesses whether the person is able to afford to pay for a lawyer.
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Merit test – Assesses the likelihood of the case succeeding.
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Jurisdiction test – Whether the case is provided by Legal Aid (criminal, family and certain aspects of civil law)
Children have an automatic right to Legal Aid
There are four factors that we must consider to determine a person’s ability to access the legal system; cost, time, procedures and
language.
Law in Action
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Legal capacity is the legal rights and responsibilities that come with the age of a person.
The age of majority, that is, the age at which the law recognises the person as an adult.
Legal capacities
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Be convicted of a criminal offence : > 10 years
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Receive a criminal record : > 16 years, except in cases of serious crimes
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Leave home : > 16 years
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Stop attending school : > 14 and six months
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Get a job : > 15 years
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Drive : > 16 years
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Marry: > 16 years
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Drink alcohol: > 18 years
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Laws placing certain restrictions on the type of activities young people can do are called public behaviour laws.
If an accused in under 18 years, the case is heard in the Children’s Court.
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To prove that a person is guilty, the prosecution has the responsibility called the burden of proof. They must prove the accused had:
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mens rea – meaning the accused had a guilty mind, committing the illegal act with intent, recklessness or negligence
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actus reus – the prosecution must show that the accused is the person who committed the crime.
If a person has mens rea, but not actus reus, it is considered a conspiracy.
Penalties:
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Imprisonment: Offender is held in prisoner for a set period of time
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Fines: Offender is require to pay money
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Bonds: Offender must meet certain conditions. Failure do so will result in punishment
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Home Detention: Offender must remain at home for a period of time. If they leave the home, they will be sent to prison
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Community service orders: Offender is to work for a community organisation.
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Periodic Detention: Offender attends prison at regular intervals.
A contract in civil law is a legally binding contract. If you sign a legal contract, we become party to the contract and are now liable for
the contract, that is, we must do what the contract states.
Before a contract becomes legally binding, a number of steps are taken, known as the elements of the contract:
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The offer – one party offering something to another party.
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The acceptance – the accepting of the offer that has been made, some negotiations would have taken place.
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The consideration – a legal principle that states that a contract should benefit all the parties involved.
A guarantor is someone who guarantees to pay the loan should the borrower be unable to.
Negligence is the failure to exercise a duty of care to others and their property. Two key factors are required to sue for negligence.
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That the accusing party was owed a duty of care by the negligent party
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That the negligence has resulted in the accused party suffering an injury or hardship
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Rights and responsibilities
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A family is two or more people living in the same household who share a relationship
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Nuclear family – A married man and woman living with their child(ren)
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Single parent family – One parent living with their child(ren)
Extended family – Parents and their child(ren) living with other relatives
Blended family – A couple living with their child(ren) from previous relationships
Married couple – A married man and woman with no children
De facto couple – A man and woman who have lived together for > 6 months but are not married. May (not) have children.
Includes homosexual couples.
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Each family member has a right to live free of violence or fear of violence. Violence within a family is known as domestic violence.
There are several statute laws that prohibit domestic violence and give police considerable power to deal with it. Police must report
domestic violence to a magistrate who can issue an apprehended violence order (AVO)
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Parents have special responsibilities placed on them by law, such as to exercise care and responsibility over a child and their actions.
The law ensures that a child is educated, receives proper medical care, and lives in an environment that will not cause harm.
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When a parent fails to fulfil these responsibilities the law will step in to protect the children if they are subject or at risk of being
subject to neglect or emotion/physical/sexual abuse.
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The most important rights of family members during divorce are the distribution of property and the payment of maintenance. The
couple may choose how to distribute the property, and if this is not possible, they can ask the court to do it for them, who will
consider the contribution each partner has made, the current/future needs of each partner and children.
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If the couple have children, the court can be asked to decide which parent the child(ren) should live with. These are known as
parenting orders
Rights and responsibilities in the workplace
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Employees have the:
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Right to have the employer pay for work-related expenses (e.g. uniform)
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Right to a safe and healthy workplace (workers compensation, protection from unfair dismissal and protection from
harassment)
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Right to be paid the appropriate wage ( pay for extra work, superannuation guarantee levy, regular pay slips, holiday leave
loading)
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Leave entitlements ( sick leave, other leave entitlements, four weeks annual leave)
Responsibilities of employees include:
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Responsibility not to give away company secrets (duty of confidence)
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Responsibility to exercise care and skill
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Responsibility not to work for a competitor at the same time
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Responsibility to follow reasonable instructions
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Legal duties are responsibilities that members of society must accept, which stem from society’s religious, ethical and moral
standards.
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Areas of common law that set out the legal responsibilities of Australians are:
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Defamation law – a responsibility not to make defamatory statements
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Contract law – a responsibility to honour the conditions of any contracts
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Tort law – a responsibility to ensure our actions are not harmful to others
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All accused are given a presumption of innocence, that is, they are innocent until proven guilty.
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Accused people have rights including:
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The right to remain silent
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The right not to be detained unless they have been formally arrested
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The right to have their interviews with police recorded
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The right to not have their past convictions mentioned in court.
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A victim has several rights:
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To have the police investigate any allegations
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The right to protection from the accused
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The right to be made aware of the progress of the case
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The right to make a victim impact statement
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A victim impact statement is a right for the victim or their family to make a statement before the judge or court.
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Witnesses who present evidence have the right to give evidence free from fear or revenge.
Protection provided by the law
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Rights that every person is entitled to every person are called fundamental human rights, and these cannot be denied to any person.
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Other rights are known as international legal rights, which citizens receive as a result of international laws being passed, often
through treaties between nations
Resolving disputes
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The police play a crucial role in resolving disputes, often requiring them to protect people and property and to assist people reach
agreement.
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Courts are viewed as last resort in dispute resolution as they are expensive and can take a long time to come to a conclusion
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Community conferencing can be used for a person between ages 10 and 17 who commit a criminal offence. It is only an option if the
person confesses to the crime, and cannot be used for serious crimes. Victims, offenders, families involved and friends are invited.
Police, legal professionals and community leaders may also attend.
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Mediation involves using a neutral third party to help those in dispute talk through their concerns
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Conciliation is similar to mediation, however, if both parties cannot reach an agreement, the conciliator can make a ruling.
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Tribunals now provide a cheaper and quicker way to resolve legal disputes