Notes on Commerce and Law
Commerce Studys Accused: To be charged with an alleged crime offence Arbitration: A method of resolving disputes whereby a judge in court gives a decision Arrest: To detain a person suspected of having committed a crime Capital Punishment: An offender is put to death Civil Law: Deals with non-criminal matters involving disputes between individuals and organisations Conciliation: A method of settling a dispute where a third party acts as an interventionist mediator Criminal Law: Law involving cases where the government has declared some action to be illegal Evidence: Information presented that helps the court reach a decision in a case
Legal Aid: Free legal advice or representation Mediation: When a third party helps those involved in a dispute to reach a solution acceptable to both sides Oath: A promise to tell the truth or something is true Victim: A person who is injured or killed by another person Witness: A person who gives evidence in court Legal Capacity When young people reach the age of eighteen, they become adults. They have legal capacity. (Legal power to make decisions affecting themselves) * Responsible for their actions * Able to sign contracts and are held responsible for carrying out terms of contract * Can be held responsible for their crimes.
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Law recognises they are able to for “Mens Rea” (legal term for guilty mind) Doli Incapax Rate at which children mature varies considerable. Children learn difference between right and wrong at different ages. Legal doctrine doli incapax recognises the varying ages of maturity In Australia, juveniles 10 – 13yo inclusive considered doli incapax Doli Incapax (rebuttable legal presumption that child is incapable of crime under legislation/common law) In court, the prosecution is responsible for rebutting this and proving the accused juvenile was able at the time to adequately distinguish between right and wrong.
Contested trial can only result in conviction is prosecution successfully rebuts presumption More Legal Capacity Child cannot be charged until 10yo Under 10 not seen not mature enough to commit offences 10 – 14yo may be responsible 14+yo responsible for crimes committed Children’s Court deals with offences committed by young people Under 16 and guilty, no conviction recorded unless serious Conviction recorded, can be wiped after 3 years is no more trouble Ages of Criminal Responsibility
Jurisdiction| No Criminal Responsibility| Presumption Against Criminal Responsibility| Treatment as Child/Juvenile| ACT| Under 10 years| 10 to less than 14| Under 18| NSW| Under 10 years| 10 to less than 14| Under 18| NT| Under 10 years| 10 to less than 14| Under 18| QLD| Under 10 years| 10 to less than 14| Under 17| SA| Under 10 years| 10 to less than 14| Under 18| Tasmania| Under 10 years| 10 to less than 14| Under 18| VIC| Under 10 years| 10 to less than 14| Under 18| WA| Under 10 years| 10 to less than 14| Under 18|
Elements of Criminal Responsibility Mens Rea: Intention, foresight and planning that accompanies a criminal act, accused’s state of mind and level of intention to commit the physical act Actus Rea: Voluntary activity which forms the criminal activity. In order for a conviction, prosecution must establish all activity was voluntary, physical act of carrying out a crime Causation: Link between action and actual injury caused. Example: 2 people have intention to murder same man, same time. One man has bow and arrow, one has gun.
If man dies from bullet wound, then no causation by person with bow and arrow, however, bow and arrow may be charged with attempted murder Injury to State: Established by examining statue law and common law. Both pieces of law dictate whether action is actually crime Accused: Person involved in a crime, blamed for committing crime Victim: Person involved in a crime, can be injured as result of the crime Witness: Innocent bystander, witnesses the crime Many crimes require proof of both actus reus and mens rea. Physical element of the offence must be accompanied by mental state
Ages Leaving Home: No age, may be difficult after leaving before 18yo Alcohol: 18yo to purchase and consume; offence to supply to persons under 18yo Work: No age, but 14 years and 9 months to work door – to – door sales work Gambling: Under 18yo not allowed in taking part in any form of gambling Marriage: Both under 18 not allowed. If under 18, but partner over 18, need permission from magistrate and parent/guardian Credit Card: Over 18, but may obtain a prepaid visa card which uses pre-loaded money Driving: To get L’s, need to be at least 16yo Graffiti: Illegal.
If under 18, illegal to possess spray can Cigarettes: Illegal to supply person under 18yo with cigarette Responsibilities Witness: Person who testifies under oath in a trial with first hand, potential leads or information from personal presence or perception * Called to give evidence * Officer reads out oath and asks witness to swear to tell truth * Then asked to say name and occupation * Crown Prosecutor or Director of Public Prosecution (DPP) lawyer asks questions, then accused’s lawyer cross examines you. Victim: Role of victim of crime in criminal justice system is that of witness.
Victims have needs and certain rights including right to be treated with compassion and respect throughout the court proceedings Punishment for Crime Fine: Payment of money for breaking the law Community Service: Offender must do unpaid work i. e. tree planting Weekend Detention: Person needs to spend weekend in gaol Capital Punishment: Person sentenced to death Good Behaviour Bond: Agree to be of good behaviour for period of time or you will forfeit sum of money Purposes of imposing sentence * Ensure offender adequately punished for offence Prevent crime by deterring offender and other persons committing similar offences * Protect community from offender * Promote rehabilitation of offender * Make offender accountable for his/her actions * Denounce conduct of offender * Recognise harm done to victim of the crime and to the community Compensation Order Order of the Court where person found guilty or convicted of an offence directed to pay compensation to any person who suffered injury or loss, destruction or damage to property as a direct result of offence. Application must be made within 12 months of offender being found guilty or convicted and can be made by: * Victim On Victim’s behalf by any person if victim is child or incapable of making application * By informant or police prosecutor (In Magistrate’s Court) Compensation Order can cover: * Pain and suffering experience by victim as a direct result of the offence * Some or all of any expenses incurred or reasonably likely to be incurred by the victim for counselling services * Some or all of any medical expenses incurred or reasonably likely to be incurred by the victim as a result of the offence * Some or all of any other expenses incurred r reasonably likely to be incurred by the victim as a direct result of the offence, not including any expense arising from loss of or damage to property Community service is donated service of activity performed for the benefit of the community Punishment would be given to offender instead of imposing sentence of imprisonment of offender, a court may make a community service order directing the offender to perform community serve work for a specified number of hours. Offenses including littering, swearing, spraying graffiti, stopping traffic and damaging public property Laws Public Laws Concerned with regulating people’s behaviour within society as a whole and protects the freedom of individuals * Deals with the conduct society expects from the state (government) Private Laws * Deals with how individuals deal with other individuals * Deals with the rights and duties people have towards each other Tort is a wrongful act that results in the injury of a person Civil Law Negligence: Where a person fails to take reasonable care and injures another person Defamation: Where a person injures another person’s reputation Nuisance: Where a person interferes with another person, or that person’s rights
Meanings Contract: * Legally binding agreement * A person under 18 years may enter into a contract to purchase essential goods * A contract for these services/goods can be enforced through the court * Mobile Phone contract for example Negligence: * Where a person/organisation fails to exercise reasonable care and causes damage to another person * For example, an employer has a duty of care to provide a safe workplace System of Law System of law in England and Australia is based on the common law * 1154 AD Henry II court began travelling around English country hearing cases * Judges who did this kept records of their decisions and referred back to those decisions when hearing similar cases * Today, common law means decisions given by judges * Common law evolves because judge may have to decide a case where there is no existing law * Record of these decisions are called law reports * Nowadays reports are easily accessible via internet Rights and Responsibilities In Australia, rights guaranteed by constitution are rights to * Vote Freedom of Religion * Freedom of Movement * Own Property * Trial by Jury * Fair Trial Family * All parents are responsible for the children in their care until they reach the age of 18 People in Court Person| Right| Responsibility| Offender| Regarded as innocent until proven guilty| Tell the Truth| Victim| Have the wrong put right (seek justice)| Tell the Truth| Witness| Safe from threats about the evidence given| Tell the Truth| Arrested 1. Police must say why the person is under arrest and exactly what he or she is charged with 2. Police must read person their rights 3. Person may be questioned or placed in custody . Person may request legal representative before answering any questions that the police may ask 5. Person may apply for bail 6. Person who is a danger to themselves or others may be kept in custody 7. Person innocent until proven guilty Law Stuff Scene of an accident Stop Must stop immediately after you have had an accident, no matter how minor Assist If driving a car or riding a motorbike that is involved in an accident where a person or animal has been killed or injured, or where any property damaged, you have legal obligation to stop and give possible assistance to anyone injured. Assisting is required by law.
If deliberately failed to stop or give assistance, could be fined heavily and/or imprisoned and lose licence for at least a year Call police Police do not always have to be called to scene of accident. However, they should be called if someone is injured or killed, or if vehicle has to be towed. Even if police aren’t called, you may have to report accident to police station Give and Get details If you are driver involved in an accident where someone was injured, killed or any property was damaged, you have legal obligation to give certain information to anyone who has reasonable grounds for asking (another driver, police officer etc. Information you must give is: * Name and address * Registration number of your vehicle * Name and address of person who owns vehicle You do not have to provide information if you did not know the accident happened or damge was to your own property or if you are unable to because of injuries you have suffered. You also have the right to get this information from other drivers involved Remove Debris Report to police If involved in an accident where someone has been injured or killed, you need to report to police within 24 hours. You must give police: * Details of accident * Registration numbers of all vehicles involved Names and addresses of everyone involved You do not have to report if: * You have already given the above to a police officer * Unable to because of injuries suffered in the accident Borrowing Money People borrow money time to time Few people can pay cash for car or house People use credit cards or loans to purchase furniture, electrical goods etc. To use item immediately, people borrow money to pay Repayments are made in parts and an additional charge called interest is payed Pros| Cons| Immediate Satisfaction| Interest Charges| Convenient| Impulse Buying| Possible Savings| Additional Costs|
Emergencies| Loss of Control| Improve Quality of Life| Inability to Repay| Forced Saving| False Sense of Security| Getting a Loan * Decide how much to borrow * Decide if enough for a deposit * Decide is income is sufficient to repay * Shop around for best loan Types of Loans Personal Loan: * Secured Loan: Something deposited as guarantee to fulfil payment of loan * Unsecured Loan: Nothing deposited as guarantee Mortgage Loans: Taken out when purchasing house/land. Bank owns property as security. If unable to repay, bank claims security. Interest rate is usually lower than personal loan.
Bank Overdraft: Arrangement allows business owners to write cheques greater than amount in account. Usually high interest rate Credit Cards: Allows people to spend money and pay back later. Usually has credit limit. If not repaid by specific date, interest charged Ability to Repay Ability to repay linked to your financial position. Includes: * Income (what you earn) * Value of Assets (what you owe) * Any outstanding debts (what you owe) Credit rating Application for loans can be rejected or approved according to: * Past problems, late repayments or defaulting loans * Address and age Employment details Applying for first loan, must convince lender credit worthiness. Credit history is important because it is a record of your credit reputation. Lenders interested in age, employment record and availability of security of loan Poor credit rating may be asked for guarantor. Guarantor is someone that guarantees to pay money back if borrower does not Consequences of Poor Financial Management Financial Consequences * As part of contract, mortgagor (you) give mortgagee (lender) right to repossess something if failed to keep up repayments * Repossession means lender takes goods away In addition to repossession, you may have to pay what it costs to repossess * Sometimes, people have wages garnisheed. This means lender can apply for legal order to take a certain amount from owing person’s wages. Money deducted until debt paid * Debt at early age can affect financial independence later in life Legal Consequences * Any money owing is a debt * Person who owes is a debtor or borrower * Creditor is person who is owed money * Debtors have certain liabilities and obligations to fulfil * Failure to do so can result in legal action Social Consequences Financial Pressures created by over-commitment can have social consequences * Debt pressure may cause stress * As debts build up, they can affect a person’s wellbeing * Pressure can cause domestic violence, physical and emotional illness, family breakdown and even suicide Can’t Repay? Ignoring will make it worse Contact lender as soon as possible to explain situation If receive a default notice (document from lender stating you have failed to carry out terms of contract) seek legal advice Advice from solicitor, financial counsellor or organisation such as Consumer Credit Legal Centre 8 Options: . Pay amount owing 2. Negotiate change in repayments 3. Apply for hardship variation 4. Negotiate postponement of repossession 5. Refinance loan 6. Sell goods to repay loan 7. Voluntary surrender 8. Apply for bankruptcy Financial Counselling If finding credit difficult, you can contact Financial Counsellor’s Association of NSW Organisation aims to help people in managing finances Offers advice on dealing with issues, including bankruptcy, credit debt, uninsured car accidents and rental problems Credit Bureaus * Organisation that keeps credit records of consumers on file Information recorded is usually: Previously overdue accounts * Court judgements or bankruptcy orders * Records of current credit accounts * Records of previous applications for credit * Previous defaults with members of credit bureau People find it difficult to manage finances is lacking self-discipline Wage: Money received by workers for services Fee: Payment for a service performed Salary: Based on a yearly income Royalties: Sum paid to writers, musicians as a percentage of the proceeds from their work Commission: Percentage of sales price received by a salesperson for services Welfare: A payment for someone who is unemployed
Expenses Fixed include: Insurance (house, car, etc. ), council rates Variable include: Food, Bills (electricity, gas, water), Petrol, clothing Insurance People protect themselves from risks by taking out insurance This means paying an annual or monthly amount to an insurance company in return for the company’s guarantee to pay for certain damages or losses When people purchase any insurance, they pay a premium, a sum of money The greater the risk, the higher the premium Health Insurance: * If you get sick, the company will pay for your medical expenses.
Medicare is a compulsory health insurance scheme for all Australians. It does not cover all expenses so people take out private health insurance as well Car Insurance: * Third party personal injury insurance is compulsory for all car owners. When registering a car, you must provide green slip, evidence you have taken out this insurance. If you hurt another person in an accident, it covers their medical expenses. Other car insurance like car damage cover is optional Home and Contents Insurance: Covers damage done to your property and possession in case of fire, accident, etc. Income Protection Insurance: * If unable to work, you will be eligible for help from government in form of pension or allowance. Much lower than regular income. If you have income protection insurance, the company will pay you for the tie you are unable to work Life Insurance: * When you die, the person you have nominated will receive a sum of money Travel Insurance * Covers lost luggage and pays overseas medical expenses.
Also can refund you if you have paid for a holiday and are unable to go Why Consumers Don’t Pay Loss of Income (48%) * Unemployment (24%) * Illness (16%) * Other (Divorce/Death etc. ) (8%) Overextension (25%) * Poor Money Management * Emergencies * Materialism * Need for instant gratification Defective Goods and Services (20%) Fraudulent Use of Credit Card (4%) Other (3%) Warning Signs * You don’t know how much you owe * You often pay bills late * You get a loan to pay old loans * You only pay minimum balance each month * You’re spending more than you owe
Responsibilities and Legal Obligations of Lenders and Financial Advisers Any advice provided by a financial planner must * Be realistic and suit your needs * Be honest, fair and reasonable * Take into account your long term goals and present financial position * Follow strict legal guidelines Additionally, all planners must * Hold a current licence from Australian Securities and Investment Commission * Supply you with a copy of the Financial Services Guide, outlines how the advisor is paid and who the advisor works for * Advise you how complaints are handled Provide you with a product disclosure statement (PDS) informing you of the risk, cost and features of the financial product, and provide taxation information * Advise you of the total costs or fees charged, showing any commission gained by the advisor * Determine your attitude to risk * Provide you with a written copy of any plans, recommendations, and receipts for any money paid * Abide by full confidentiality with your financial details * Inform you of their qualifications and experience * Act ethically and professionally FIDO – ASIC’s Industry Watchdog
The Australian Securities Investments commission is responsible for * Monitoring the industry * Monitoring the provision of financial services such as investment advice * Providing consumer protection The Financial Services Act Reform (FSRA) 2001 * Administered by ASIC Resulted in 3 key changes to consumer laws * Provision of a Product Disclosure Statement (PDS) * Licensing of all Financial Organisations * Licensing of all financial planners ASIC has the function of monitoring the financial services industry If something goes wrong and you are unhappy with your advisors response, there are avenues for assistance.
You can speak to: * The Financial Planning Association * The Financial Planning Complaints Service * ASIC Reasons for Investing Major Purchases People often need to save for large purchases. By investing, a small amount can gradually grow into a large amount Extra Income By investing, people can earn extra income. If $1000 was deposited at the start of the year at a rate of 7. 5% pa, $75 would have been made at the end of the year Retirement People invest to have a secure source of money in their old age. BY investing soner, they will have more money during retirement