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Legal exam > Basis of government > Flashcards

Basis of government Flashcards

1
Q

Social Cohesion

A

– Allows society to function cohesively. Means that members of a community act lawfully and freely, considering the impact of their actions on others. Example: Traffic laws, tax laws, drug laws.

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2
Q

Social progress

A

Means that social cohesion must be maintained for future generations, and that laws must adapt with time. Example: Education laws, health law, environment laws and laws involving children.

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3
Q

VADER

A

Values/acceptable standard of behaviour/disputes/evolution/rights

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4
Q

What is Law

A

A law is legal rule that prescribes acceptable standard of behaviour in a certain situation. Speed limits are legal rules at prescribe an acceptable speed.

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5
Q

What is a non-legal rule

A

A non-legal rule is a guideline for acceptable behaviour but disobeying said rule is not unlawful, will not result in a legal sanction and did not originate from any of the arms. Curfews, sport rules, school rules, etc.

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6
Q

Types of public law

A
  • Constitutional
  • Criminal
  • International
  • Administrative
  • Municipal
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7
Q

Public law definition

A

Public law regulates acceptable standard of public conduct. It deals with the relationship between an individual and the state.

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8
Q

Constitutional law definition

A

protects the rights afforded to us in the constitution (Freedom of religion, right to a trial by jury).

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9
Q

Criminal law definition

A
  • deals with crime, outlines the unacceptable behaviour that warrants a sanction (Arson, murder)
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10
Q

International law defintion

A

Regulates the relationships between nations (Conventions and treaties)

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11
Q

Administrative law

A

Governs government bodies, outlines the rules and powers of the government and its institutions (If a government makes Ultra vires laws – beyond one’s authority).

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12
Q

Municipal law

A

By law and ordinances (Zoning, vender’s licences)

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13
Q

Three classifications of crime

A

Strict Liability
Summary offences
Minor indictable
Major indictable

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14
Q

Category of crime

A

Against person
Against property
Against public order

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15
Q

Why we sanction of crime

A

Rehabilitation, deterrents, protect others, punish/justice.

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16
Q

2 types of criminal sanctions

A

Loss of personal freedoms

Loss of financial freedoms

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17
Q

Two Elements of crime

A

Mens rea

Actus

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18
Q

Criminal citations

Magistrate

A

Police v West

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19
Q

Criminal Citations

District

A

DPP V West

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20
Q

Criminal citations

Supreme court

A

R V West

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21
Q

Criminal court of appeal citation

A

West v Queen

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22
Q

Private law types

A 
Contract law 
Tort Law 
Property law 
Succession law 
Family law
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23
Q

Contract law

A

deals with the rights and obligations of those entering contracts

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24
Q

Tort Law

A

Rights, obligations and remedies for someone who has been wronged

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25
Q

Property law

A

Ownership and transfer of property as well as tenant issues

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26
Q

Succession law

A

the transfer of estates

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27
Q

Family law

A

Family and domestic issues such as divorce

28
Q

Civil court citations (original)

A

Plaintiff vs defendant

29
Q

Civil court citations (Appellant jurisdiction)

A

Appellant v respondent

30
Q

Special damages

A

Economic loss where the dollar amount can be calculated such as medical bills or lost wages.

31
Q

General damages

A

non-economic loss where dollar amount cannot be calculated. Pain and suffering, loss of the amenities of life. `

32
Q

Preventative Injunction

A

prohibits certain behaviour (Ex. A restraining order)

33
Q

Compulsory injunction

A

requires the defendant to do a thing. Such as removing a nuisance from their property.

34
Q

Where do all criminal cases appeal to?

A

Court of criminal appeals

35
Q

Three federal courts

A

Federal magistrate court, federal court, family court

36
Q

Where do appeals go from the CCA

A

Full court of the high court

37
Q

The high court of Australia

A

only hear constitutional disputes

38
Q

Appeals

A

You can only appeal if you are challenging the evidence or the law. Courts specialise. Lower courts are bound by the precedents of higher courts. The right to appeal to a higher authority guarantees no error in the law has been made.

39
Q

Rule of law

A

The concept that all people are equal before the law and that government institutes should only be allowed to exercise power in line with the constitution (Ultra vires). There are three main aspects of ROL

40
Q

Three concepts of ROL

A

Supremacy of the constitution – Every entity is bound by the constitution.
Equality before the law – All people are treated equally.
Existence of human rights – All power must be exercised with fundamental human rights in mind.

41
Q

How of facilitate the ROL

A
  • Legal rights at trial
  • High court’s existence for constitutional disputes
  • Laws must be enacted through a democratic process.
42
Q

Role of the governor general

A
  • Acts on the advice of the prime minister
  • Has roles in each arm
    • Legislative: opens and closes parliament
    • Executive: appoints and dismisses ministers
    • Judicial: appoints and dismisses judges from the federal court.
43
Q

Powers of governor-general

A
  • Non-Reverse – Where the governor acts on the advice of the pm such as appointing ministers and proclaiming laws.
  • Reserve – Such as dissolving parliament (s64)
  • Administrative – Hosting foreign heads of state, supporting charities.
44
Q

Separation of powers

A

A doctrine that divides the three institutions of government into arms so that power is not concentrated in a single government body.

45
Q

Legislative arm sections

A

(1-60)

46
Q

Legislative arm

A

Built on the principle of representative government. The primary institute in our bicameral system, primary source of law. Forms government through constitutional convention. Parliament.

47
Q

Executive arm sections

A

(60-70)

48
Q

Executive arm

A

Built on the principle of responsible government where government is held responsible to parliament for their actions. Form from the lower house, therefore there is not a true separation of powers. Governor-general, ministers, council, police. Government bodies and enforcement of laws.

49
Q

Judicial arm sections

A

(70-80)

50
Q

Judicial arm

A

Built on the principle of judicial independence. Members of L or E cannot be part of J. Judicial independence is the key to the separation of powers, without it the rule of law and natural justice would not exist. Courts, judges. Resolve disputes, set precedents, interpret the words of the constitution.

51
Q

How do we protect judicial independence

A

permanency of tenure, fixed salary, judicial privilege, and judges being appointed and dismissed by seperate arms.

52
Q

Conditions to be PM

A

Their orders/actions must be in line with the constitution

  • They must possess a majority in the lower house
  • They must be able to pass the supply bill
53
Q

Functions of parliament

A

Democratic function (maintain democratic processes)

  • Legislative function (social cohesion and social progress)
  • Supply function (supply bill)
  • Scrutinising function (Checks and balances)
54
Q

Chain of accountability

A

A complex web of checks and balances within responsible government that ensures every person in the executive arm conduct their affairs in line with the constitution and the rule of law.
-The further up the chain of accountability, the more responsibility and the more benefits that person has.

55
Q

Division of Powers

A

The constitutional allocation of legislative powers between the commonwealth and the states and territories. Summarises how legislative powers are shared, protected and how they can be changed.
PERCS- prohibited, exclusive, residual, concurrent, specific.

56
Q

Specific powers

Commonwealth

A

Are expressly written in section 128 and 51 of the constitution.

57
Q

Exclusive powers

commonwealth

A

only the commonwealth can exercise these powers, such as national defence, external tariffs and printing money. Section 114 – national defence.

58
Q

Concurrent powers

Commonwealth and state

A
  • both the commonwealth and the state can legislate in, such as corporations, trade and taxation, however due to the inconsistency rule (s109) if the laws contradict the commonwealths law override the states. Section 51 (ii)
59
Q

Residual powers (state)

A

powers that the states retained for themselves upon federation, such as transport, education, transport, civil and criminal law.

60
Q

Prohibited Powers (state)

A

Powers that the commonwealth and/or the states cannot exercise

  • Commonwealth prohibited powers – Such as religion (s116) the CW cannot exercise
  • General prohibited powers – neither can make laws in such as impeding free trade between states. S92 free trade
  • State prohibited powers – states cannot make laws in such as defence and currency.
61
Q

Three ways to change these powers

A
  • Referendum (4/6 states need to pass it of 50% of population + 1 person. If it effects a specific state that state needs to pass it).
  • Voluntary referral of powers
  • Co-operative agreement to reach national aims.
62
Q

Judicial review

A

Any individual or organisation can challenge the exercise of power. The high court hears this dispute. Decides whether parliament has exceeded their power and acted ultra vires (i.e. making a law that is a residual power). Queensland v Commonwealth.
Whether a decision was made unlawfully.

63
Q

Representative Parliament

A
  • Rule of law
  • Universal franchise (everyone over 18 has the right to vote)
  • Regular elections
  • One vote = one value
  • Secret Ballot
  • Salaries of MPs (are high to prevent corruption)
  • Parliamentary privilege (cannot be sued)
  • Open parliamentary debate
  • Right to protest
  • Freedom of association and Political communication.
  • MP’s and Senators
    A principle of governance that member of a community is elected to sit in parliament and make laws. They are directly accountable to their electorate. They exercise legislative power.
64
Q

Responsible parliament

A
  • Basis of a constitutional monarchy
  • Exercise executive power
  • Chain of accountability
  • Role of senate (Senate is expected to pass supply bill – house of review)
  • Constitutional conventions (speaker having unlimited access to the governor general)
  • PM and ministers
  • 3 conditions the PM fulfils
  • Ministers responsible for folios.
    A principle of governance where ministers are selected from the party in power. These ministers exercise executive power to enforce statutes. They are directly accountable to parliament not the people.
65
Q

How do we change laws

A

Referendum to change the words in the constitution

  • Legislative change – amendments, repeals, etc.)
  • Judicial change – departing from precedents or interpreting laws.
66
Q

Negligence tort

A

Vicarious liability – The business of organisation is responsible for the actions or negligence of the employee
Contributory negligence – The defence argument that the plaintiff was partly at fault. If the court finds the plaintiff 25% responsible, they’d only be paid 75%. Used a lot in car accidents.

Legal exam (8 decks)

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