3

Law and society

Focus statement

In this chapter we focus on how laws affect individuals

and groups and regulate society. In particular we
examine the way laws are made and how different
laws impact on the way society operates.

In this chapter you will learn

about:
the reasons we have laws
our legal system
the structure of the courts
the role of juries in the legal system
the ways laws are classified
how laws are made
the relationship of laws to values,
morals and ethics
how laws are changed
accessing the legal system
issues of fairness in using the law.

3.1 The legal framework

Getting technical
anarchy When there is no law or government, people are
free to do as they please and society is unable to function.
burden of proof The legal principle that the prosecution
must prove that the accused is guilty of the crime.
case A proceeding in a court of law.
fundamental rights Those rights to which every human is
entitled.
indictable offences Serious offences that require a full trial
with a jury. Examples are armed robbery, murder and serious
drug offences.
judge A highly trained legal professional who presides over
District, Supreme and High Courts. The judges role is to
advise the jury and pass the sentence.
jury A group of people chosen randomly from the
community to determine the guilt or non-guilt of the accused
in serious criminal law matters.
legally binding decision An order that is given by a court
and must be followed.
natural justice The right to be treated fairly in legal
matters.

Anarchy erupts in Baghdad

In March 2003, troops from the United States, Great
Britain and Australia launched an attack on Iraq due to
fears that Iraq might be in possession of weapons of
mass destruction. After fewer than three weeks of fighting,
coalition troops entered the capital city, Baghdad, and
British Royal Marines seized control of Iraqs second largest
city, Basra.
The government of Iraqs dictator, Saddam Hussein,
collapsed and there was no effective control of the nation
or its people. In the power vacuum that existed until order
could be restored by Iraqi officials and American and British
troops, anarchy erupted. Thousands of mostly young men
rampaged through the streets of both cities, looting public
offices, shops and even hospitals. The National Museum
was ransacked, with thousands of priceless artefacts
being stolen or damaged. Television footage showed many
buildings in Baghdad set alight in the mayhem.
Property owners, armed with axes, sticks and even rifles,
began acting as vigilantes in a bid to restore some order.
Without the rule of law to control this disruptive and criminal
group the cities of Iraq fell into anarchy, demonstrating the
need for effective laws (and law enforcement) to ensure the
safety of all members of society and their property.

presumption of innocence The belief that a party accused

of a crime is innocent unless it is proven that the party has
committed the crime.
summary offences Less serious crimes that are dealt with
by the Local Court. An example is shoplifting.

Reasons for laws

Laws exist to regulate our society. They are designed to
protect us and our property and to ensure that everyone
in society behaves the way the community expects
them to. Without laws there would be anarchy. This
would mean that people could do whatever they liked,
whenever they liked and to whomever they liked. To
some people this might seem to be a good thing; after
all, being able to do whatever we want sounds great.
However, imagine driving on a highway if there were no
laws about who has right of way or which side of the
road to drive on. Clearly this would be a disaster. We
need to have laws to help us survive in such a complex
society.

60

Commerce.dot.com

Figure 3.1a The 2003 overthrow of the regime of Saddam Hussein

left Iraq in a state of anarchy for many weeks. There was a total
collapse of law and order. Looters were arrested by American troops
in an attempt to restore order.

to students who attend that particular school and apply

only when they are wearing their school uniform. When
they get home and change their clothes this rule no
longer applies.
Rules vary greatly because each family or organisation
has different expectations of what behaviour is
acceptable. They also have different needs for rules. For
example, the rules for cricket arent the same as those
for netball because the games are quite different.
The law, however, is not specific. It applies to all of
us all of the time. For example, the Motor Traffic Act
1909 (NSW) is the law that governs the use of roads

Figure 3.1b Without laws and justice there would be anarchy.

Laws and rules influence every aspect of our lifefrom

cradle to grave. When a child is born, the parents
are required to register the birth. A persons death
must also be registered. Laws and rules govern our
behaviour throughout life. When we do not comply with
them there are consequences.

Rules and laws

We are all familiar with rules. Parents usually have rules
for their children, dictating how late they can stay up
or how much television they can watch. Schools also
have many rules and regulationsmost of which are
designed to ensure that students are safe and get the
most out of their education. Regulations are similar
to rules but tend to be more general. For example, a
school will have regulations about the type of uniform
that must be worn but the school rules will specifically
state how the uniform is to be worn.
However, rules and regulations are not laws. A rule is
specific and applies only to some people some of the
time. For example, one school may require students to
wear a tie with their uniform, while another school may
require students to wear a hat. These rules only apply

Figure 3.1c Laws such as the Motor Traffic Act must be followed by
all drivers all the time.

in New South Wales. Anyone who uses a NSW road

must obey this law all the time. The law, for example,
requires drivers to stop at a red light. We must do this
whether it is 10 am and there is a lot of traffic or 3 am
and little traffic.

The courts
Australia has a hierarchical court system. This means
that the courts are graded into inferior and superior
courts (see Figure 3.1d, page 62). Each of the courts
deals with different matters and has certain powers.
Within the courts there are various professionals who
ensure the smooth running of cases. Each person in
the legal system has a particular task to fulfil.

Law and society

61

magistrate (see page 63). This court aims to deal with

matters quickly and cheaply.

High Court of
Australia

Federal Court of
Australia

Family Court of
Australia
State
Supreme
Court
State
District
Court
State
Local
Court
Figure 3.1d The court hierarchy in Australia.

For many legal matters the courts are the final place
to resolve legal disputes, not the first. Courts are
expensive and time-consuming places to have legal
problems resolved. Therefore, people are encouraged
to use all their other legal options first. However, when
all else fails the courts can be used to reach a legally
binding decision that must be obeyed.

It deals with all minor criminal matters (known as

summary offences) and conducts committal proceedings for serious matters (known as indictable
offences). The aim of these proceedings is for the
police to demonstrate that there is sufficient evidence
to show that there is a case to answer. If the magistrate
considers there is sufficient evidence then the case will
be scheduled for a trial in a higher court.
The Local Court also hears relatively minor civil matters,
such as debt claims. Matters of more than $3000 but
less than $40 000 will be heard in the Local Court.
The District Court
The District Court is a more senior court and is presided
over by a judge. In some states, such as Victoria, it is
called the County Court. It deals with serious criminal
and civil law matters. In criminal matters the District
Court conducts trials that include a jury of 12 people.
Civil law matters involving between $40 000 and
$750 000 and any matter involving compensation for
motor vehicle accidents are dealt with by the District
Court. Matters involving more than $750 000 must be
heard in the Supreme Court .
The Supreme Court
The Supreme Court is the highest court in the state
hierarchy. It hears the most serious cases and those
that involve difficult points of law. The Supreme Court
of each state is a court of record. This means that its
decisions can create common law (see page 72).

NSW courts
In Australia most legal matters are the responsibility of
state governments. As a result, most of our courts are
state courts.
New South Wales, like all the other states, has a
hierarchical court structure. This means that courts are
ranked. The position of a court within the hierarchy
indicates the type of case that will be dealt with by the
court. There are three main tiers within the hierarchy:
inferior
the Local Court
intermediate
the District Court
superior
the Supreme Court.
The Local Court
The Local Court is the lowest court and is often called
the Magistrates Court as it is presided over by a

62

Commerce.dot.com

Figure 3.1e Courts are expensive and time consuming and should
be used as a last resort in resolving legal disputes.

Federal courts
When a legal matter involves an aspect of federal law
it will be dealt with by a federal court. Family law is
one such matter and is dealt with by the Family Court
of Australia. Matters involving taxation, immigration,
copyright and companies are dealt with by the Federal
Court of Australia.

The High Court of Australia

The High Court of Australia is the most senior court in
Australia. Its main role is to ensure that law-makers do
not breach the constitution (see page 67), but it also
hears appeals. A decision made in a less senior court
can be appealed to a more senior court. For example,
a Local Court decision can be appealed to the District
Court and so on. The High Court acts as the last court
of appeal. The right of appeal is not automatic and
application to the court must be made. The court will
consider whether there are grounds for an appeal.

Court personnel
Judges and magistrates
Judges and magistrates are the presiding officers of
the court. Magistrates preside over local courts and,
except in New South Wales, are referred to as Your
Worship. Since May 2004, NSW magistrates have been
referred to a Your Honour. In a criminal law matter
their role is to determine whether the accused person
is guilty of a crime. If the accused is found guilty, the
magistrate issues a sentence. In civil law matters the
magistrate must arrive at a verdict and then decide on
what compensation, if any, should be made.

Info.com.tech
NSW courts and tribunals
Activities
Access the NSW courts and tribunals page on the
LawlinkNSW website <www.lawlink.nsw.gov.au>.
Divide the class into groups. Each group is assigned a
different NSW court to research.
1

Describe the purpose and role of the selected court.

How are cases heard before the court?

Summarise one recent case heard in this court. Recent

cases can be accessed by clicking on the Court
Decisions link on the side navigation bar.

Figure 3.1g Judges are highly respected members of the community.

Judges sit in the District, Supreme and High Courts and

in some specialist courts, such as the Family Court.
They are referred to as Your Honour and they usually
have considerable legal experience. Criminal cases in
these courts involve juries, whose task is to determine
whether a person is guilty. The role of the judge is to
instruct the jury on legal matters and, if the jury finds
the accused guilty, impose a sentence. In civil matters
where a jury is involved the judge fulfils a similar role.

Lawyers
In every case there are two opposing legal teams. In
criminal cases the role of the prosecutor is to prove
to the court that the accused person has committed a
crime and should be punished. The defence lawyer is
there to help the accused person show the court that
he or she is innocent or, if the accused is shown to be
guilty, to minimise the sentence imposed by the court.
Figure 3.1f A typical courtroom.

Law and society

63

The jury
Juries are an important part of our legal system. They
date back to medieval England when villagers were
given the opportunity to pass judgment on their peers.
In the Australian legal system the jury consists of a
group of 12 adults who are drawn at random from the
community.
The role of the jury is to determine whether an accused
person is guilty of a crime. In order to convict a
person, the jury must be satisfied that the evidence
presented to them shows that the person is guilty
beyond reasonable doubt. This means that if a juror (a
member of the jury) has some doubt about the accused
persons guilt, then the juror must find the accused not
guilty of the charges.
Juries are used in all criminal trials (cases heard in
the District or Supreme Courts). They have no role in
passing a sentence. In some serious civil matters, juries
of four or six people are sometimes used. In cases tried
in NSW courts, the members of the jury must reach a
unanimous verdict; that is, they must all agree. If the
verdict is not unanimous, the judge will order a new trial
with a different jury.
In recent years there has been much debate among the
legal profession about whether juries should remain
part of the legal system. Some argue that juries do not
have the legal expertise to make fair judgments and
that jurors often let their personal views get in the way
of making just decisions. Others, however, claim that
the system ensures that biased jurors are removed and
that it is important for members of society to participate
in the legal system by acting as jurors.

Comprehending the text

Info.com.tech
Jury duty
In New South Wales it is the responsibility of the State
Sheriff to handle all matters dealing with jury duty.

Activities
Access the Office of the NSW Sheriffs jury duty website
<www.lawlink.nsw.gov.au/ots.nsf/pages/juryindex>.
1

Explain how juries are selected.

List the people who are exempted from jury duty.

What types of cases are juries involved in?

What is the pay rate for jurors?

LawAccess NSW Online

LawAccess NSW Online <www.lawaccess.nsw.go
v.au/lawaccess.asp> is a service provided by the
NSW Government and contains details of the various
classifications of laws in New South Wales, the operation of
these laws and how they affect society.

Activities
1

As a class, discuss what would happen in your school

if there were no rules at all. What does this tell us about
the importance of the law to society?

In small groups, make a list of the main rules of your

school. Beside each rule note down why you think this
rule exists. Are there laws similar to this rule? Explain
why or why not.

Copy the following table into your notebook and then

complete it.

Court

Explain why we have laws.

Local Court

What is anarchy? Describe the situation faced by Iraq in

2003 after the collapse of government and law.

District Court

Distinguish between a rule and a law.

Federal Court

Explain what is meant by a hierarchical system of courts.

High Court

Explain the difference between an indictable offence and

a summary offence.

What is the difference between a judge and a

magistrate?

In a criminal trial what role does the judge play?

Outline the role of the prosecutor and defence lawyer.

Explain the role of the jury in a criminal trial.

64

Commerce.dot.com

Criminal matters

Civil matters

Supreme Court

Assume that you have been appointed by the NSW

Attorney-General to recruit more lawyers to become
magistrates and judges. Write a job advertisement for
these positions. Consider the legal experience and
character required and the communitys expectations of
magistrates and judges.

In small groups, brainstorm what society would be like

if there were no laws and no way for people to receive
justice. Share your ideas with the rest of the class,
making a mindmap of the problems that would exist if
there was no legal system in Australia.

3.2 Areas of law

Classifying laws

Getting technical
civil law Laws that govern the legal relationship between
individuals and organisations.
codification Making common law into statute law.
common law Also known as judge-made law. These are
laws that are established by the decisions of judges.
concurrent powers Those constitutional powers that are
held by both the state and Commonwealth governments.
criminal law Laws to protect the general public from harm.
duty of care Responsibility to ensure your actions do not
harm other people or their property.
ethics Values that relate to doing what is believed to be
right.
exclusive powers Those constitutional powers that are
held by the Commonwealth Government.
family law The body of law that deals with family issues,
such as marriage, de facto relationships, same-sex
relationships and the relationship between parents and their
children.
morality Values that relate to doing what is believed to be
good.
referendum A vote by the people to change the
constitution.
residual powers Those constitutional powers that are held
by the state governments.

Modern law is very complex and there are many areas

of speciality. Generally, however, laws can be classified
into two main types:
public lawThese are laws that deal with the
standards of behaviour that society expects from
its government and people and those who work
within the government. It includes criminal law as
well as laws that relate to how governments operate
(constitutional and administrative law).
private lawThese are laws that deal with the way
individuals interact with each other. It includes laws
that regulate the behaviour of people towards each
other and the behaviour of businesses. This type of
law is commonly referred to as civil law.

Public law: criminal law

Criminal law exists to protect the general public from
harm. When a person breaks a criminal law he or she
is considered to be harming all members of society.
Therefore, the police, on behalf of society, investigate
the matter and bring the case against the accused.
In criminal law the prosecution presents the case on
behalf of the Crown (the term used to represent the
government). It is the prosecutions role to prove beyond
reasonable doubt that the accused person committed
the offence. If this is proven then a punishment will be
issued on behalf of all of society.

statute law Laws made by parliament.

statutory rights Those rights that are derived from laws
passed by parliament.

Family law

Areas of law

Criminal law

Civil law
Figure 3.2a The main types of law.

Figure 3.2b Criminal law involves the police prosecuting accused

offenders on behalf of society.

Law and society

65

Info.com.tech
Crime statistics
The Bureau of Crime Statistics and Research is a special
branch of the Attorney-Generals Department. The bureaus
role is to analyse crime statistics, look for trends and crime
hotspots and identify factors that may lead to crime. Each
year the bureau collates statistics relating to crimes reported
in New South Wales and publishes its findings.

Activities
Access the Bureaus crime statistics page <www.lawlink.
nsw.gov.au/bocsar1.nsf/pages/crimestatsindex>.
1

Outline the trends in the statistics for murder, assault,

motor vehicle theft, and break and enter into a dwelling.

Are the trends discovered by the bureau similar to the

perceptions of crime that seem to be held by most
people in New South Wales? Why might this be the
case?

What are the crime hotspots for break and enter into a
dwelling, assault and motor vehicle theft?

There are six main types of criminal activity:

crimes against personsThese are crimes involving
injury caused to another person. Such crimes
include
homicidethe intentional killing of another person
manslaughterthe accidental killing of
another person or the killing of another with a
justifiable reason; for example, when a person
kills another but does so in self-defence
assaultcausing or threatening to cause
injury to another person.
crimes against propertyThese are crimes that
result in property being stolen or damaged. Typical
offences in this category include
larcenyremoving another persons property
without that persons consent
break and entera person illegally entering a
building to commit an offence
robberyusing violence or the threat of
violence to take another persons property.
white-collar crimeThese crimes are usually
committed by professional people and are not
associated with violence or damage to property.
Typical white-collar crimes are tax evasion and
computer hacking.

66

Commerce.dot.com

crimes against the state (country)These include

seditionencouraging a hatred of the state
treasona more serious offence than sedition.
It is where a person or organisation actively tries
to bring about the collapse of a government or
assists the enemies of a country.
public order offencesThese are crimes that disrupt the activities of our society. They include a wide
variety of offences, such as swearing in public, and
being drunk and disorderly.
traffic offencesThese are the most widely
committed offences in our society. They involve
crimes such as driving without a seatbelt and
running a red light. Most of these offences are dealt
with by issuing on-the-spot fines but more serious
offences, including drink-driving, result in court
proceedings.

Figure 3.2c It is important for everyone to know his or her rights.

Info.com.tech
Your rights when arrested
To learn about a persons rights when placed under
arrest visit the NSW Attorney-Generals website
<www.lawlink.nsw.gov.au/crd.nsf/pages/community4>.

Proving a crime
You have the right to remain silent. This is one of the
best-known rights that Australians enjoy. When someone
is accused of committing a crime the prosecution must
prove the person is guilty; the defendant has the right to say
nothing. There are two things the prosecution must prove in
order to gain a conviction. They are the elements of a crime:
mens reaThis means guilty mind. It must be proven
that the accused person intended to commit the crime
and that the actions of the accused were not accidental.
The only exception to this is traffic offences, where no
mens rea needs to be proven.
actus reusThis means criminal act. It must be proven
that the accused person actually committed the offence.

Under 18? What are your rights in

criminal law?
International law, common law and statutory rights all
provide Australian children with many special rights. The law
recognises that children need special protection to ensure
that their rights are not breached.

Can I be charged with a criminal offence?

In New South Wales any person over the age of 10 can be
charged with a criminal offence. However, children aged
between 10 and 14 are given special protection. At this age
the prosecution has a special responsibility to prove that the
children knew that they were committing a crime when they
broke the law.
Any person under the age of 18 who is charged with an
offence will have his or her case heard in the Childrens
Court. This court has specially trained judges and is not
open to the public, so that the identity of the child is kept
confidential.
These important rights are designed to protect the legal
rights of children. It is recognised that children usually
have little understanding of the legal process and could,
therefore, be easily misled.

Can the police interview me?

The police have the right to ask members of the public
questions. In most cases we are all required to give the
police our name and address but apart from providing this
information we may remain silent.
Like everyone else in Australia, children have the right to
seek legal advice before they answer any question or sign
any statements. Before they begin to interview a child, the
police must ensure that the childs parent or a responsible
adult (often a Salvation Army representative) is present.

Info.com.tech
Whereas the people . .: preamble
to the Australian Constitution
Most constitutions have a preamble. This is a statement
that outlines the aspirations and intentions of the nation.
The Constitution of the United States has a very formal
preamble that talks of the desire of the American people
to live in freedom and to pursue happiness. The preamble
to the Australian Constitution does not do this. Instead it
simply discusses the legal authority for the formation of the
Commonwealth of Australia. In recent years there have been
calls for the preamble to be changed. In 1998 a proposed
change was put to the people in a referendum but was
unsuccessful.

Activity
The Commonwealth Senate website
<www.aph.gov.au/senate/general/constitution> contains
the full version of the Australian Constitution. Access this
website and read the preamble to our constitution. In a small
group, rewrite the preamble to signify what Australia stands
for in the twenty-first century.

entitled. The Australian Constitution does not contain

such a statement on the rights of citizens. Instead,
most of our rights come from statute and common law.
The Australian Constitution is essentially a document
outlining the powers of the Commonwealth and state
governments (see Figure 3.2d).
Exclusive
powers

Can I be called as a witness?

Children may be asked to give evidence in court. When
doing so they have certain special rights, including the right
to have a carer present, and sometimes the right to give
their evidence by closed-circuit television from a room away
from the courtroom itself.

Public law: constitutional and

administrative law
Constitutions are special documents that are sets
of rules outlining how a government is to be run. A
government has a responsibility to follow the rules
of the constitution. Failure to do so could result in
the government being dismissed from office. Some
constitutions, such as the Constitution of the United
States, also outline the rights to which citizens are

Commonwealth
Parliament

Division of
power

Concurrent
powers

State
parliaments

Residual
powers
Figure 3.2d The division of power.

Law and society

67

The constitution also details how power is to be divided

between the three branches of the Commonwealth
Government (see Figure 3.2e).
At the time of Australias Federation in 1901, the state
parliaments held considerable powers, which they were
reluctant to give up. Therefore, the constitution grants
many powers to the states, particularly in the areas of
health, law and order, education and the environment.
These powers are known as residual powers.
Separation of
power

The executive

The legislature

The judiciary

Prime Minister
and Cabinet

Commonwealth
Parliament

The High Court

of Australia

Those powers that were transferred from the states

to the Commonwealth Government are referred to
as exclusive powers. The most important of these
powers are known as external powers. These are
powers that enable the Commonwealth to deal with
other nations. External powers include customs and
quarantine laws, foreign relations with other nations,
defence and, most importantly, the right to enter into
international agreements with other nations, such as the
United Nations Convention on the Rights of the Child
(see page 257). Some powers are shared between
the state and Commonwealth parliaments. These are
known as concurrent powers.

attempt to abuse their power then the judiciary and

the legislature can stop this from occurring. Likewise,
the executive can stop abuses from one of the other
groups. Figure 3.2e shows the separation of power at
the federal level. There is also separation of power at
the state level.

The US Bill of Rights

During the debates preceding the adoption of the
Constitution of the United States, its opponents argued that
the document, as drafted, would open the way to tyranny
by the federal government. Fresh in their memory was the
British abuse of civil rights before and during the American
Revolution. They demanded a bill of rights that would spell
out the rights of individual citizens. Eventually a compromise
was achieved. Following the formal acceptance of the
constitution a number of amendments would be made by
Congress (the US Parliament).
On 25 September 1789, the First Congress of the United
States passed 10 amendments to the constitution. These
became known as the Bill of Rights.
Amendment II reads: A well-regulated Militia, being
necessary to the security of a free State, the right of the
people to keep and bear Arms, shall not be infringed. This
right, which still exists, means that American citizens can
own weapons and it is very difficult for the government to
introduce gun control.
If the US Bill of Rights was being written today it is unlikely
that Amendment II would have been included. This is
because, today, the values regarding gun ownership have
changed. In the eighteenth century it was important that
people owned a gun. There was no police force and people
feared that Britain would invade. The United States now has
a defence force and law-enforcement officers to defend its
people. Despite this, some US citizens still believe they have
a right, and need, to defend themselves.

Where a conflict arises between the powers of the

states and the Commonwealth, the Commonwealths
rights take precedence; that is, they will be considered
the most important. An example of a concurrent power
is law enforcement of drug offences. State and federal
forces both deal with drug trafficking.
One of the most important aspects of our constitution
is that it aims to ensure that no one person or group
can take control of Australia. Therefore, the constitution
separates powers between the three most important
groups in the ruling of Australia: the executive, the
legislature and the judiciary. By splitting the power
between these groups, each group can act as a
check and balance on the other groups. For example,
should the executive (the Prime Minister and Cabinet)

68

Commerce.dot.com

Figure 3.2f Societys values relating to gun ownership were different

when the US Bill of Rights was written in the eighteenth century.

Info.com.tech
US National Archives and Records
Administration
The US National Archives and Records Administration
(USARA) website <www.archives.gov> provides access to
many important documents. These include the American
Constitution; the Declaration of Independence; famous
speeches, such as the Gettysburg Address; documents
held in presidential libraries; and information relating to the
assassination of president Kennedy.

Activities
Using the USARA website, access the 10 constitutional
amendments that make up the US Bill of Rights.
1

List the rights covered by the 10 amendments.

Which of these applies in the Australian legal context?

Which do not?

Australia does not have a bill of rights. Undertake

Internet research using the key words bill of rights and
Australia to find out why.

As a class, compile a list of the arguments for and

against having a bill of rights.

Hold a class debate on the topic: Australia should have

its own bill of rights. Then conduct a secret ballot to
resolve the issue.

There are three main areas of civil law (see Figure 3.2g):
contract lawA contract is a legally binding agreement between two parties. The majority of civil law
cases involve contracts; that is, where one party
claims that the other party has not done what they
agreed to in a contract.
property lawProperty 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 in their property dealings with others.
tort lawTorts are civil wrongs. They involve the
actions of people that cause discomfort to others.
Civil law exists to help people receive compensation
if they have been inconvenienced by the actions of
another person. There are four types of torts
negligencea lack of duty of care
nuisancewhen a person interferes with
another persons rights
defamationwhen one persons reputation is
damaged by the actions of another
trespasswhen property is interfered with.

Contract law

Administrative laws deal 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. This law will
outline the role and powers of the department. For
example, the role and powers of Sydney Water are
outlined in the Sydney Water Act 1994 (NSW) and the
role and powers of the Department of Education and
Training are outlined in the Education Reform Act 1990
(NSW).

Civil law

Tort law

Private or civil law

Figure 3.2g Civil law.

Civil law governs the legal relations between

individuals and organisations. Civil law matters are
launched by individuals or organisations who feel that
they been wronged by the actions of other individuals
or organisations. There is no criminal activity involved
and the police are not involved.

Family law

In a civil law matter, the person or organisation bringing

the case is referred to as the plaintiff. They have the
responsibility of proving that the defendant (the person
or organisation they are accusing) has wronged them
in some way.

Property law

Family law is the body of law that regulates marriage

and divorce, the relationship of parents with their
children, and other family issues, such as adoption.
Family is one area of the law that has been greatly
influenced by the moral and ethical values of society.
For this reason it is constantly changing. As the
attitudes and values of society change so does the
law.

Law and society

69

In Australia, most family law is a federal issue and is

dealt with by the Family Court of Australia. This court is
staffed by specially trained judges and deals solely with
family law matters. Couples (including homosexual
couples) who are not married but live in de facto
relationships are dealt with under state law; although
they have similar rights and responsibilities as married
couples.
The Family Court of Australia deals with many issues.
These include parenting orders (determining the rights
and responsibilities of parents over children after a
divorce) and the division of property as a result of
divorce. Under Australian family law a couple can
choose to divorce for any reason. In the past, in order
to obtain a divorce, one partner had to prove that the
other had done something wrong. This is no longer the
case.
New reproductive technology is an area of family law
that has created a great deal of controversy in recent
years. The use of in-vitro fertilisation (IVF) and surrogacy
(where a woman gives birth to another couples baby)
has created moral and ethical dilemmas. The ability to
genetically modify foetuses will pose similar problems
in the future.

Comprehending the text

1 Distinguish between public law and private law.
2 Who brings the case in a criminal matter?
3 Briefly outline the six main types of criminal law.
4 Outline the protections granted to a person aged less
than 18 in criminal matters.
5 What is a constitution?
6 Explain the concepts of the separation of power and
division of power.
7 Explain what residual, concurrent and exclusive powers
are.
8 What does civil law aim to regulate?
9 Outline the main areas of civil law.
10 Distinguish between criminal law and civil law.
11 What areas are controlled by family law?
12 What is a parenting order?
13 Explain how the law in relation to divorce has changed.

70

Commerce.dot.com

Activities
1

Copy the following table into your notebook and then

complete it using the information in the text.

Type of law

Description

Example

Public law
Private law

Write a paragraph explaining the meaning of

mens rea and actus reus. Include examples in your
explanation.

b Write a paragraph either in support of or against

the need to prove both mens rea and actus reus
before the accused can be found guilty.
3

Write an exposition explaining why the separation and

division of power, as outlined in the constitution, are so
important.

In a small group, write a script for a role-play about an

aspect of tort law. In your script consider what types of
actions would result in different torts being broken. Act
out your role-play for the class.

Making laws
The Australian legal system very closely follows the
legal system that developed in Britain. This system of
lawknown as English Common Lawis based on
laws coming from two sources:
statute lawlaws made by parliaments
common lawlaws that originate from the decisions
of judges.

Statute law
Statute law is now the most common form of lawmaking in Australia. It involves parliament passing a
Bill, which is a proposed law or a change to an existing
law. The process for passing a Bill in the Australian
Parliament is summarised in Figure 3.2h.
Making statute law can be a lengthy process and
involves considerable debate. Each member of
parliament (MP) may speak either for or against the Bill
before it is voted on. In the Commonwealth and NSW
parliaments, where there are two Houses of Parliament,
both the Upper and Lower Houses must agree to the
Bill. This means there are many checks and balances to
ensure that the Bill will be of benefit to society.
In addition to being voted on, the Bill must receive
royal assent. This means that the Governor-General
(in the case of federal laws) or the Governor (in the
case of state laws) must approve the Bill. Their role is
to ensure that Bills do not breach the constitutionthe
laws governing the rights and responsibilities of

Sent to the
Governor-General
(representative of the Crown)
for royal assent
(Bill becomes an Act of
Parliament)

Info.com.tech
The Governor-General
To learn more about the role of the Governor-General visit
the Governor-Generals website <www.gg.gov.au>.

e yes
Vote no
Third reading

Senators vote

Second reading
Senators debate Bill
First reading

Introduced to the Senate

Vote yes
Vote no
Third reading

MPs vote

Second reading

First reading

Bill returned to the

House of Representatives
for changes and
reintroduction

Bill redrafted

Bill abandoned

MPs debate Bill

Introduced to the
House of
Representatives
Figure 3.2h Statute law making: passage of a Bill in the Australian Parliament.

Bill drafted

Law and society

71

government. Once passed by the parliament and given

royal assent, the Bill will become an Act of Parliament
and therefore law.

Common law
Common law is unique to those legal systems that
adopted English Common Law. Common laws are
based on the rulings of judges. This type of law is
used when there is no appropriate statute law. When
the judge makes a decision in relation to the matter, all
lower courts must follow the decision. This is known as
following precedent.

Is that a snail in my ginger beer?

The case of Donoghue v. Stevenson (1932) AC 562 is one of
the most famous common law cases. Mrs Donoghue visited
a cafe with her friend and ordered a ginger beer. While she
was drinking the ginger beer a semi-decomposed snail
floated to the surface.
Mrs Donoghue suffered severe gastroenteritis and she
launched legal proceedings against the ginger beer manufacturer. No one else had ever tried to sue a manufacturer
for failing to provide safe goods. Initially Mrs Donoghue lost
the case and several appeals. However, she continued to
fight until eventually the House of Lordsthe highest court
in Britainagreed to hear her case.
Lord Atkin agreed with Mrs Donoghue, stating that
consumers have the right to expect that the goods they
use are safe. His decision set an important precedentthat
every person and business must ensure that their actions
do not cause harm to others; a concept now known as duty
of care. Lord Atkins decision has become an important part
of common law in Britain, Australia and other nations of the
Commonwealth.

Superior courts, known as courts of record, are the

only courts that have the power to set precedents
and, therefore, make common law. In Australia, the
Supreme Courts of each state, the High Court of
Australia and the Federal Court are all superior courts.
Once a precedent is set it must be followed by all
lower courts (see Figure 3.1d, page 62). Precedents
established in other jurisdictions may be followed if the
court wishes. For example, a precedent established by
the NSW Supreme Court must be followed by all NSW
courts, but Victorian courts may choose whether or not
to follow the precedent.
Common law is more easily changed than statute law.
A decision by a higher court can abolish precedent, and
parliament can also pass new statute law to overrule
common law. To ensure important common laws are
not lost, parliaments often act to make common law
into statute law. This process is known as codification.
For example, the crime of rape was, until relatively
recently, a common law crime. However, because of
the serious nature of the offence, the NSW Parliament
created the statutory crime of sexual assault.

Constitutions
Constitutions are not made in the same way as other
laws. Usually they are not made by parliaments or
courts, but rather by committees of notable leaders
and often with a great deal of input from citizens.
The Australian Constitution was formally created by
an Act of the British Parliament: the Commonwealth
of Australia Constitution Act 1900 (UK). This Act
created the Australian Constitution and the High Court
of Australia. While this Act of the British Parliament
allowed the constitution to come into being, the
articles (details) of the constitution were prepared by
Australians, led by Sir Henry Parkes. Various meetings,
public debates and, finally, a special vote were held to
allow the people of Australia to have a significant say in
the drafting of the constitution.
Each state also has its own constitution. Each
states constitution works in the same way as the
Commonwealth (Australian) Constitution in that it
regulates the behaviour of the state parliament. If a
state constitution is in conflict with the Commonwealth
Constitution on a matter where the Commonwealth
has either concurrent or exclusive powers then the
Commonwealth Constitution has precedence.

Figure 3.2i Manufacturers have a duty of care.

72

Commerce.dot.com

Laws, values, morals and ethics

The laws that are made in a society are a very close
reflection of that society. They reflect the moral
and ethical values that the society holds and are
influenced by the main social, economic, religious

and political factors of the time. This means that laws

are sometimes seen as being out of date because
the values of society have changed but the law has
not. For example, many people have argued that the
smoking of marijuana should be made legal. These
people state that smoking this drug is widespread in
the community. Other people have argued against the
legalisation of marijuana, saying that it is a dangerous
drug. These groups of people have very different
moral and ethical views on the issue. When society
is divided in this way it is difficult for the law to be
reflective of societys attitudes.
Morality can be considered as doing good things.
There are two types of morality: private and public.
Private morality refers to the values that we each have
personally. For example, one person may consider it
immoral to swear while another person may consider
this to be acceptable. Public morality refers to the
values that are held by society as a whole. These
will often become laws. For example, our society
considers it immoral to steal from another person and
so theft has been made illegal.

Moral values

The law

Ethical values

Figure 3.2k Influences on our laws.

the moral view that once a couple married they should

remain married for life. Today, however, our society
has a different view towards marriage and divorce. No
longer is it considered wrong to divorce. Therefore, in
1975 the law was changed so that a divorce could be
obtained more easily.
There are other ways in which our laws have changed.
In the past it was considered illegal to engage in a
homosexual act; it was a crime that was punishable
by a prison sentence. This was a reflection of the
morality of society, which saw homosexuality as being
immoral. But our societys attitudes regarding samesex relationships have changed. Consequently, our
laws have changed. It is no longer illegal to engage
in a homosexual act. Furthermore, it is now illegal to
discriminate against homosexual people.
Societys view of young people has also changed and
again this is reflected in our laws. In the past a person
was not considered an adult until they turned 21.
People could not drink alcohol, play a poker machine
or even vote before this age. Now the age of adulthood
is 18 years and young people have a great deal more
control over their lives. The way the law views women
has also changed as our society has come to recognise
that discrimination against women, and stereotypes
relating to the role of women were wrong.

Figure 3.2j Our society considers it immoral to steal.

Ethics are different from morals because ethics relate

to what is right rather than what is good. Sometimes
what is right may not be what is good. For example,
a lawyer has an ethical duty to try to win a legal case
for his or her client. This could mean the lawyer has
to try to stop the court from punishing the client even
though the lawyer knows the client is guilty. It would be
considered unethical for lawyers to not try their hardest
to win cases for their clients.
As the influences on our society change so do our
moral and ethical values. Religion plays less of an
influence in our society than it did in the past and this
is now reflected in our laws. In the past, it was quite
difficult to obtain a divorce in Australia. This reflected

Figure 3.2l Not everyone is ethical.

Law and society

73

Changing laws

Changing common law

Effective laws are those that reflect the wishes of the

majority of society. When most people agree with the
laws that are made the laws will be respected and
can, as a result, be enforced. It is therefore important
that laws can be changed when the moral and ethical
values of society change.

Changing common law is a relatively easy process.

This is one reason why some people are critical of it.
As you have learnt, common law is created through
the decisions of judges. This process is affected by the
hierarchical structure of Australian courts. A lower court
judge can make a decision that creates a common law.
However, that law can be changed by the decision of a
judge in a higher court.

Changing statute law

In order to change a 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. In 1987 the Children
(Care and Protection) Act 1987 (NSW) was passed by
the NSW Parliament. This Act was designed to help
and protect children. However, in 2000 the Act was
repealed (removed) and replaced with a new Act: the
Children and Young Persons (Care and Protection Act
2000 (NSW). This new Act was developed because
the 1987 Act was considered to be insufficient. One of
the most important changes in the 2000 Act was that
a distinction was made between children who need
better care (such as those who are being neglected)
and young offenders who need to be placed in the
care of the government because they have committed
offences against the law.
It can be very difficult for parliament to know which
laws need changing. To assist it in this role there exists
a Law Reform Commission in each state and at the
federal level. The task of these commissions is to conduct research into laws that they think may be out of
date and to advise the government on how these laws
might be amended. The commissions have no role in
actually changing the law; they simply provide advice.

For example, lets assume that a common law was

made by the decision of a single judge of the High
Court in relation to copyright. First, for this decision
to remain valid there must have been no statute law
appropriate to the case. Let us assume that there was
not and that the judges decision has now created
common law about this aspect of copyright. Six years
later there is another case being heard in relation to
a similar copyright matter. This time the case is being
heard on appeal to the full bench of the High Court,
meaning that all seven justices of the High Court are
hearing the case. In this case the court takes a different
view from the original single judge. Is the full bench a
higher court than a single judge? Yes, and therefore the
common law will be changed in accordance with the
ruling of the full bench.
Sometimes parliaments are not pleased with a judges
decision that has created common law. Under our legal
system, statute law takes precedence over common
law. Consequently, the parliament can pass a statute
that changes an aspect of the common law.

The Native Title Amendment Act

1998 (Cwlth): changing common law
In 1996, the High Court of Australia heard a case involving
Native title (the right of Aboriginal and Torres Strait Islander
peoples to have control over traditional lands that are
not owned by other people). The caseThe Wik People
v. The State of Queensland and Others, The Thayore
People v. The State of Queensland and Others (1996) 187
CLR 1 became known as the Wik Case. The case involved
whether Indigenous Australians had the right to claim Native
title over pastoral leases (land leased by farmers from the
federal government). The court ruled that both farmers and
the traditional owners could coexist on the land; although if
the pastoral and traditional land uses came into conflict the
pastoral rights would take precedence.

Figure 3.2m The High Court can change common law decisions of
lower courts.

74

Commerce.dot.com

The federal government and many farming organisations

felt that the High Courts decision created uncertainty and
they wanted the common law amended. The Native Title
Amendment Act 1998 (Cwlth) was passed. This Act made
it more difficult for Indigenous peoples to claim Native title
over any pastoral lease granted prior to 1994.

Changing the constitution

Constitutions are difficult to change. Because they
outline the way in which a nation is governed they can
only be changed with the consent of the people, from
whom all power is derived. In a democracy, such as
Australia, it would be inappropriate for a government to
alter the rules under which it exercises power.
However, like all laws in Australia, the constitution
needs to be updated from time to time to better reflect
the needs and aspirations of Australian society.
Any change requires a referendum. This is a specific
vote by the people to change an aspect of the
constitution. In Australia the constitution requires that a
majority of people in a majority of states must agree to
the change. This means that more than 50 per cent of
all Australians must agree, together with a majority of
people in at least four of the states.
Before a referendum can be held, the Federal Parliament
must first pass a Bill that contains the proposed
change. If parliament agrees to the change then the
referendum will go ahead. Usually this involves asking
the people a question to which they answer either yes
or no. Very few referendums have been successful in
Australiajust eight from forty-two proposals.

The 1967 referendum

The 1967 referendum on Aboriginal people was the most
successful in Australian history, with more than 90 per
cent of Australians voting yes. This referendum asked the
people to change section 127 of the Australian Constitution,
enabling the federal government to make laws on behalf
of Aboriginal people (until then Aboriginal matters were the
concern of each state) and include them in the census.
These changes meant that Aboriginal people would gain
the same rights as the rest of the Australian population and
would become classed as Australian citizens.

Comprehending the text

1 What is a Bill?
2 Describe how statute law is made.
3 Under what circumstances can common law be made by
judges?
4 Explain what the term precedent means.
5 What is a court of record?
6 Briefly explain how the Australian Constitution was
created.
7 Distinguish between public and private morality.
8 Describe what ethics are.
9 Outline the process for changing statute law.
10 Explain how common law is changed.
11 Under what circumstances can the Australian
Constitution be changed?
12 Briefly outline the events of the 1967 referendum.

Activities
1 Explain why the case Donoghue v. Stevenson was
important to the formation of common law.
2 As a class, discuss how the law is affected by morals
and ethics.
3 Some people have argued that it is too difficult to
change the Australian Constitution. Write a speech either
in support of or against making it easier to change the
constitution.
4 In a small group, discuss whether you think the law really
reflects the values held by most people in our society.
In particular consider those laws that relate to young
people, such as the legal drinking age.

As a result of the successful referendum, the constitution

was changed to read:
. . . the people of any race, other than the
Aboriginal race in any State, for whom it is
deemed necessary to make special laws.
(Note: Any deletion to the constitution is made by striking
out the deleted section. Additions are shown by inserting the
new text in bold.)
This referendum profoundly changed the status of
Australias Indigenous people. It reflected the changing
views Australians had towards Aboriginal and Torres Strait
Islander peoples. All the major political parties campaigned
for Australians to agree to the change. It was argued
that Australians had a moral and ethical duty to ensure
Indigenous Australians enjoyed the same rights as all other
Australians.

Figure 3.2n Referendums are constitutional votes.

Law and society

75

3.3 Using the legal system

Getting technical
mediation Using a neutral third party to help resolve a
legal dispute between two parties.

The legal system exists to help all Australians resolve

disputes in a peaceful and fair way. However, this does
not mean that Australians have an automatic right to
legal representation. In other words, we do not have
a right to a lawyer. We can represent ourselves in
the court; although this is often difficult as the law is
complex and most people would struggle to understand
the legal terminology and processes associated with
the operation of our courts.
While there is no automatic right to a lawyer, there is
a right to a fair trial. Many lawyers and judges have
questioned whether a person who does not have
a lawyer will receive a fair trial. Barristers (lawyers
who are trained to represent clients in courts) often
charge several thousands of dollars for each day they
represent their client in court. This means that many
people are unable to afford access to the court system
and use it to resolve their disputes. In criminal matters,
when a persons freedom is at stake, this creates an
even more serious problem.

Legal Aid
To ensure that people obtain fair treatment from the
legal system, Legal Aid was introduced by the Whitlam
Labor Government in 1972. Each Australian state and
territory now has a Legal Aid Commission, whose role
is to provide legal assistance to people who are unable
to afford their own lawyer. Any person can gain 15
minutes of free legal advice on any criminal, civil or
family law matter.
If further advice is needed then a formal application for
assistance must be made. The high costs associated
with providing Legal Aid mean that applicants for
assistance must pass a number of qualifying tests.
These include:
the means testThis assesses whether the person
is able to afford to pay for a lawyer. For example,
someone who owns their own home or earns a good
income is unlikely to gain access to Legal Aid.
the merit testThis assesses the likelihood of the
case succeeding. If the case is weak, and it is likely
that the court will disagree with the applicant, Legal
Aid may be refused. If the Legal Aid Commission
believes that it is impossible to win a certain criminal
case it may require the accused to plead guilty
before it will agree to provide representation.
the jurisdiction testLegal Aid is only provided for
certain legal matters. These include criminal cases,
family cases and a small number of civil cases,
including discrimination and human rights matters.
The special legal needs of children mean that they have
an automatic right to Legal Aid and are not required to
pass the means or merit tests.

Figure 3.3a People tried in court will usually need a barrister to

represent them and this can be expensive.

76

Commerce.dot.com

Figure 3.3b Legal aid was introduced to ensure people obtain fair
treatment from the legal system.

(NSW) and the Trade Practices Act 1974 (Cwlth). These

Acts help to protect consumer rights. In addition the
federal government has established the Australian
Competition and Consumer Commission (ACCC). The
ACCC has wide-ranging powers to protect consumers.
It prosecutes businesses that do not follow the Trade
Practices Act, meaning that consumers do not have to
take their own legal action.

Info.com.tech
Legal Aid
The NSW Legal Aid Commission has an
extensive website
<www.legalaid.nsw.gov.au>.

Activities
Access the NSW Legal Aid Commission website.
1

Outline the nature of the free legal advice that Legal Aid
provides.

Explain the role of the duty lawyer.

Describe two of the different courses and/or conferences

offered by Legal Aid. What do the nature of these
conferences indicate about the work of Legal Aid and
who it feels needs its assistance?

Issues of fairness in accessing

the law
When attempting to determine a persons ability to
access the legal system there are four key issues we
must consider: cost, time, procedures and language.

Time

Procedures
Figure 3.3d The rights of consumers are protected by the Australian
Competition and Consumer Commission.

Factors affecting
access to the
legal system
Cost

nguage

Figure 3.3c Factors affecting access to the legal system.

While Legal Aid helps many people who cannot afford

to hire their own lawyers, many people are unable
to exercise their legal rights due to the high costs
involved. This is particularly a problem in civil law
matters, which usually do not pass the jurisdiction test
for Legal Aid. Consider the example of a consumer on
an average income who has been mistreated by a large
company and wants to take that company to court.
The consumer will not have the financial resources to
fight a legal battle against a large corporation, which
can afford to hire a team of lawyers. Therefore, while
the consumer has important legal rights the cost of
exercising those rights may to too great.
To help overcome this problem the federal and state
governments have passed numerous consumer
protection laws, such as the Fair Trading Act 1987

Family law is another area of law that creates concerns

over accessibility. Legal Aid does provide assistance in
family law matters, but many families are considered
too wealthy under the means test. As a result, many
people can be disadvantaged. For example, one
partner in a divorce may be able to afford a highly
qualified legal team, while the other partner may
be forced to represent themselves or risk losing an
important asset, such as the family home.
As a result of the problems many families face in
gaining access to family law courts there has been a
greater emphasis placed on mediation. This should
help reduce the reliance on courts to resolve disputes
between families.
The costs associated with using the legal system are
not the only problem in gaining access. Time can
sometimes act as a barrier. Many cases, especially
civil law matters, can take years to be heard in the
courts. This often discourages people from launching
legal proceedings, even if they are likely to win. It
may take years to receive compensation and they

Law and society

77

will not have the financial resources to undertake

such a lengthy case. In a bid to reduce the time and
cost of proceedings, more and more people are being
encouraged to access alternatives to the courts to help
resolve their legal disputes (see Chapter 12 for greater
detail).
Legal proceedings are very formal and the language
used is not typical of everyday language. This can
often exclude individuals who are not familiar with
the law and can also mean that their rights are more
easily eroded. While judges will attempt to explain
legal terminology to witnesses and other participants,
court hearings can be confusing and daunting events,
discouraging people from accessing the legal system.
A lack of understanding of legal rights is another
factor that reduces access. For instance, many people
do not understand their rights as consumers and
employees. Consider the example of a person who
has been wrongfully dismissed by an employer. Unless
the person knows that the dismissal was unlawful,
he or she will not seek redress. Lack of knowledge
about legal rights is a particular issue for people with
a language other than English. To help overcome this
problem, information about a persons rights and
responsibilities is often available in multiple languages.

Figure 3.3f Living a considerable distance from legal advice can

be a problem.

Comprehending the text

1

Explain why it is important for people to have legal

representation in court.

What is the role of Legal Aid?

Outline the process involved in accessing Legal Aid.

Explain how cost and time can impact on a persons

ability to access the legal system. How has the law
changed to help consumers overcome these problems?

How has the law changed to help people deal with the
language and complex procedures used in the legal
system?

Outline how mediation has helped families gain better

access to the legal system.

How does geography influence a persons access to the

legal system?

Activities

Figure 3.3e Know your rights.

Geography can also reduce a persons ability to access

the legal system. Those people living in remote areas
have less opportunity to gain information about their
legal rights, due to a lack of technology, government
services and, in some cases, lawyers.

78

Commerce.dot.com

Take on the role of a newspaper columnist. Write an

article explaining why many people are excluded from
accessing the legal system. In your article consider
which groups are disadvantaged and why.

In a small group, take on the role of a special

parliamentary committee that has been created to help
reduce the problems people face in accessing the law.
Prepare an oral presentation on ways that access could
be improved and the legal system could be made fairer.

The government has been trying for many years to

address the issue of access to the legal system through
the use of Community Justice Centres, alternative
dispute resolution and Legal Aid. Using the Internet,
conduct research into one of these initiatives in New
South Wales. Evaluate the effectiveness of this initiative;
that is, make judgments about its effectiveness.

Chapter review
Activity 1: multiple choice

2 Statute laws are made by parliaments.

1 Common law can be best described as:

a laws made by judges
b laws that regulate how companies act
c laws used to decide who has access to publicly
owned land
d laws that are prepared by politicians after they
have spoken to members of the general public.

3 Australians have the right to appeal court cases to

the Commonwealth Senate as a last resort.

2 As a result of civil war a country is left with no

effec-tive government. Members of society do
whatever they want and many laws are being
broken. This country now has a political system
based on:
a democracy
b communism
c anarchy
d statutory.
3 Sarah is 19 years old and is caught shoplifting from
her local newsagency. This is the first time she has
been arrested. Sarahs case will be heard in which
court?
a the District Court
b the Summary Offences Court
c the Childrens Court
d the Local Court
4 In the Australian Constitution, residual powers are:
a the powers held by the Commonwealth
Government
b the powers held by the state governments
c powers to change statutory laws
d the right of the parliament to dismiss judges.
5 The Australian Constitution can be changed when:
a the Australian Parliament receives the approval
of the Governor-General
b the majority of state parliaments agree to the
change
c a Bill is successfully passed by the Australian
Parliament
d a referendum is successful.

Activity 2: true or false

Select true or false for each of the following
statements.
1 The role of the jury in a criminal case is to
determine the guilt of the accused and then to
pass an appropriate sentence.

4 A child under the age of 16 cannot be arrested by

the police.
5 In a civil law case the person making the
accusation is known as the plaintiff.
6 The Commonwealth executive includes the Federal
Cabinet, the Governor-General and the Prime
Minister.
7 The main role of the High Court is to hear cases
involving the most serious offences.
8 Mens rea means guilty mind, meaning that the
accused must have knowingly committed a crime.
9 Australias Constitution grants some powers to the
states and some to the Commonwealth. This is
known as the separation of power.
10 Juries consist of 12 people who are selected based
on their knowledge of the legal system.

Activity 3: looking at the law

1 Assume the role of a lawyer with Legal Aid. With a
partner, prepare a short brochure on the legal rights
to assistance that are held by each person in New
South Wales. Consider who can access Legal Aid
and what conditions are placed on the assistance
given.
2 Local Courts are found in most large country
towns and in multiple locations in large cities. If
possible, visit your Local Court to see how the law
really works. Typical cases you are likely to see
will include people charged with drink-driving and
other serious traffic offences, assaults and stealing.
It is important that you remain quiet and show
respect while in the court. During your visit to the
court, record information on:
a the people involved in the casewhat was their
situation?
b the charge or, if a civil law matter, what the
problem was
c the plea of the accusedbriefly outline the case
of the prosecution and the defence
d if the accused is found guilty, the sentence
imposedevaluate whether the punishment is
suitable.

Law and society

79

Activity 4: literacy taskwrite a

newspaper article
Write a newspaper article on the topic: Australian
children need to know more about their rights. In
your article, consider issues such as:
the special legal rights that Australian children
have at present
whether you think these rights are adequate
the problems that arise from children not being
aware of their rights.
When preparing to write a newspaper article there
are several important points to consider. Newspaper
articles are written to inform the reader in a way that
is entertaining and easy to understand. Therefore, an
article should have fairly simple and short sentences,
be less formal than a typical extended response and
try to engage the reader through a narrative style
(similar to telling a story).

Activity 5: cloze passage

Copy the following passage, using the words below
to fill in the gaps. You can only use each word once
and there are more words than you need.
anarchy

assent

business

civil

common

country

defence

defendant

dictatorship

District

division

family

Federal Cabinet

government

statute

guilty

High

indictable

inferior

statute

judges

jury

legislature

less

magistrate

plaintiff

police

Prime Minister

Representatives

rules

Senate

separation

state

Governor-General

summary

Supreme

80

Commerce.dot.com

Without laws _______ would exist. This is where

people are able to do whatever they please. Here
in Australia a hierarchical court system exists. This
means that courts are divided into superior courts and
_______ courts. The highest court in Australia is the
_______ Court, and in each state the _______ Court is
the most senior.
In New South Wales the Local Court deals with ______
offences. These are _______ serious offences.
This court also conducts hearings for _______
offences. Judges preside over cases in all courts
except for the Local Court, where a _______ presides.
In the Australian legal system there are two opposing
sides: the _______ and the prosecution. The role of the
prosecutor is to prove to the court that the _______ is
guilty of the charge. A _______ is used in more serious
cases. They have the role of deciding whether the
defendant is guilty of the charge.
There are two main types of law in Australia: criminal
and _______ law. In addition, there is an important part
of the law called constitutional law. The constitution
is a special document that outlines how the _____
__ is to be run. The Australian Constitution divides
power between the Commonwealth and _______
governments. It also contains a special clause called
the _______ of powers that divides power between
the executive, the _______ and the judiciary. This is
designed to ensure that no one group has too much
power.
In Australia laws are made by one of two methods:
statute law and common law. Common law is made
by the decisions of _______. Where the common and
statute laws conflict with each other, _______ law has
precedence. Before the Federal Parliament passes a
law, it must first be passed by the House of _______
and then by the _______. If it successfully passes both
of these houses then it goes to the _______ _______
for royal _______.

Activity 6: cartoon
Draw a cartoon that could be used to help people
understand the difference between a rule and a law.