Chapter 1: The Organisation of Law and Government in Australia Flashcards
What is law? (OMG so existential)
Law consists of rules of conduct and organisation that the government of a particular governance recognises and enforces.
Where does each country gets its national law from?
Government states, to some extent, inherited or adopted laws that were originally developed in Western Europe. As a result many countries have national laws that share the same basic principles.
Four common types of laws:
- Natural laws
- Custom Law
- Moral and religious law
- National law
Mention examples of national public law.
- Constitutional Law
- Administrative Law
- Criminal Law
Mention examples of national private law
- Civil
- Tort
- Agency
- Corporations
- consumer protection
- property
- business
What is the constitution?
Constitution is a set of rules by which a state is formed and governed.
When is the Commonwealth of Australia formed? How is it established?
1901, established by the Commonwealth of Australia Constitution Act 1900, enacted by the British Parliament
How would you change the provisions of the Australian Constitution?
A majority of Australians approving the change in a national referendum
Describe the concept of ‘separation of powers’.
Australian governmental power is separated between the various branches that have different functions and responsibilities.
Mention the organs of the Australian Government.
- Head of State (Crown)
- Executive, Legislature, Courts
- Civil Services, Statutory Officers, Statutory Boards
- Local Governments
- Political parties
Mention the roles of the Governor-General and Governor.
- Formal heads of state of the Commonwealth and the six states
- Appoint individuals to particular office, signing treaties
- Giving Royal Assent to law assed by the legislature
- Commission judges
Explain the concept behind the shared law-making powers between the Commonwealth and the states/self-governing territory.
If there is no conflict between the federal and the state/territory legislation, both laws can co-exist. When there are conflict, the federal law prevails but only to the extent at which the state/territory law is inconsistent with the federal law, regardless of which is enacted first. As regards to territory legislation, Commonwealth government has the power to override any territory legislation.
What is the highest court in all Australian court hierarchy?
The High Court of Australia
How any judges are in the High Court of Australia? How are they appointed?
7, with one appointed as Chief Justice. They are appointed by the Governor-General on the advice of the Prime Minister.
Explain the jurisdiction of the High Court.
It has the power to hear and decide cases regarding the Commonwealth Constitution. Usually it deals with appellate cases, however has jurisdiction to hear cases in first instances.
How do you bring an appeal in the High Court?
The appellant must seek a ‘special leave’ from the High Court, granted if the case involves an important of uncertain point of law.
What are the superior courts called in the Commonwealth and state/territory court hierarchy?
Federal Court of Australia for Commonwealth and Supreme Courts for states/territory.
Explain the jurisdiction of the superior courts.
Superior courts have original jurisdiction, hearing cases in first instance. It can also sit as a court of appeal, to hear appeals from decisions of the lower court or from a single judge of a superior court.
What are the intermediate courts called in the Commonwealth and state/territory court hierarchy? Do territories have intermediate courts?
Federal Circuit Court for the Commonwealth and ‘County’ or ‘District’ courts in states. No.
Explain the jurisdiction of intermediate courts.
They have original jurisdiction, with limited appellate jurisdiction (only able to hear appeals of decisions for lower court)
Where are lower courts found? What are they called? Does a judge preside over them?
They are found in the state and self-governing territory. They are either called ‘Magistrates’, ‘Local’, or ‘Courts of Petty Sessions’. No, magistrates or Justice of Peace do.
Explain the jurisdiction of lower courts.
They have only original jurisdiction with cases that involve a limited amount of money.
Explain the way legal cases are normally resolved.
First, all the important facts of the case is established, which help reveal the origin, scope, and nature of the case. Next, the relevant rules of law are found and interpreted, which apply to the legal case in question. Finally, the relevant rules are applied to the case and the appropriate outcome is deduced by the presiding judge.
Explain the concept of ‘public service’, statutory officers, and statutory bodies.
A ‘public service’ consists of persons employed and paid by the government to carry out various aspects of government administration.
Statutory officers are persons who have been appointed to an office, created by legislation, with specified responsibilities.
Statutory bodies are organisation, created by LEGISLATION, consisting of persons appointed to their position by the government.
