exam revision Flashcards
executive
crown, prime minister, other ministers
- put laws into action through parliament
judicial
courts, high courts
interpreting laws to make decisions
legislative
government, house of reps, senate
- make the laws
operating principles of a liberal democracy
majority rules
equality of political rights
political freedom
political participation
majority rules
will of majority should be reflected in the government and law
in representative democracy, majority rules is now expressed through elected parliament
equality of political rights
every citizen has the right and oppurtunity to take part in the conduct of political affairs
vote and be elected etc
political freedom
entitlements people have that enable them to participate in their government
make choices without intimidation, coercion or pressure from those with power
political participation
putting to use their political rights and freedoms to actively take part in their government
allows them to influence law making and government decision making
- voting in elections
-protesting
joining pressure groups etc
democracy
A form of goverment in which the people govern themselves
representitive democracy
sytem of goverment in which people elect a representative to govern on behalf of them
direct democracy
all citizens have a direct role
liberal democracy
democratic system of government in which individual rights and freedoms are officially recognized and protected, and the exercise of political power is limited by the rule of law.
seperation of powers
organisation of the powers of goverment in such a way that prevents the concentration of power in the hands of one leader or elite group
power distributed between three branches
- legislative branch that makes laws
- executive branch that carries out laws
- judiciary that interprets laws
4 types of law
- statute law
- common law
- constitutional law
- delegated law
functions of parliment
accountability: appointing and dissmissing the executive
legislation: initiating and debating + approving changes to statute law
statute law
parliment made law
common law
refers to the body of law created by the courts, courts create law through the establishment of precedent
stare decisis
to stand by things decided
- fairness cross cases, greater predictability, consistency between cases
ratio decidendi
reason for deciding
obiter dicta
sayings by the way
non critical judicial reasoning
doctrine of precedent
belief that that courts must deliver similar judgments on cases where there are past cases with similar facts and details
binding precedent
any precedent created by a higher court must be followed by lower courts
persausive precedent
any precedent created by a lower court or equal court can influence a courts decision; however a court can also overturn past precedent and create new law
statutory interpretation
process by which a court determines the meaning of a statute before applying it to a specific case
why do we need courts to interpret statutes
must interpret how to apply laws to unforeseen situations
errors in drafting by parliment/contradictions
ejusdem generis
if a statute refers to specific words and includes a general
then the general words must be confined to things of the same kind as those specifically mentioned
“of the same kind”
noscitor a socis
known by the company it keeps
meaning of a phrase can be determined by reference to other words around it
expressio unis est exclusion alterius
express mention of one excludes all others
common law rules of statutory interpretation
- literal meaning
- golden rule
- mischief/purpose rule
literal rule
the law is what parliment says it is
interpret the words of the act literally
problem: sometimes there is more than one possible meaning
golden rule
qaulification of the literal rule
allows for courts to assume parliament had a wider meaning
interpret law in a way that avoids abusrd outcomes
mischief/purpose rule
The mischief rule provides that the court should look at the state of the law before an Act was passed to see what remedy the new legislation hoped to provide to cure the ‘mischief’, that is, problem which existed under the law as it was
natural justice
common law doctrine that guarantees fairness in the rules and procedures for resolving legal disputes
parts of natural justice
- impartial adjudication
- hearing both parties
- evidence based decisions
- transparency, as to promote public confidence
theories of justice
natural: the process for resolving disputes, treating parties fairly
retorative: dispute relosoution processes should be led by victims and offenders, with the intent of restoring their relationship
substantive: the content and consequence of law must be regarded as just
This could mean; like cases are treated alike etc
adversarial system
a system of trial based on the assumption that truth is is best determined through a contest between parties
burden of proof
the onus to prove the accusation against an accused is the responsibility of the party who brings the dispute to trial - the accuser
criminal= prosecution
civil= plaintiff
standard of proof
measure of how much proof is required to establish the liability or guilt of the accused
criminal= beyond reasonable doubt
civil= balance of probabilities
balance of probabilities
plaintiff must present the most likely or believable case
beyond reasonable doubt
means that any evidence that gives rise to doubt in the mind of a reasonable person requires the defendant to be found not guilty
rights of the accused
accuser bears the burden to prove to the standard of proof required
defendant has no obligation to prove
right to silence
defedant in a criminal trial does not have to provide evidence at their trial
presumption of innocence
if the accuser fails to achieve the standard of proof required- on the balance of probabilities or beyond reasonable doubt - then the defendant has not been proven liable or guilty and is thus, presumed innocence
rules of evidence
rules of evidence ensure high-quality evidence is admitted into trial and low quality evidence is excluded
relevance
evidence must be applicable to the case. it must bear relevance to establishing the act or inaction alleged and in some cases, the intent to commit the act
opinion
witnesses can only report observed facts as evidence. they cannot express their opinions
hearsay
witnesses can only give evidence based on what they have witnessed themselves. Evidence must be first hand
inquisitorial trial
assumption that the truth is discovered through vigorous investigation leading to the discovery of evidence by an active inquirer
mandatory sentencing
legislation sets minimum sentences for certain offences
sentancing basics
parlimet creates offences
criminal code compilation act 1913
road traffic act 1974
- sentencing act 1995- judge must consider aggravating and mitigating factors
arguments for mandatory sentancing
- promotes consistency within sentancing
- deters individuals from re offending
- reflective of the democratic will of the people
critisims of mandatory sentancing
- unaccpetably constrains judicial discretion
inconsistent with separation of powers and judicial independence
lack of discretion - contradicts the principle of imprisonment as a last resource
Mabo V Queensland
1992
landmark legal case for native land rights in australia
Legal issue: questions validity of the doctrine of terra nullils, which considers Australia as unoccupied land before british colonisation
precedent: overturned terra nullil
parliament passed the native title act of 1993
R V Chamberlin case
1984
flawed forensic evidence, trial by media
lindy chamberlain was wrongly convicted of murdering her baby based on circumstantial evidence + forensic findings e.g. blood stains in car, cuts on babies clothing
1988 - convictions were quashed ( new found evidence when babies jacket was found near dingo lair)
media propagated many unfounded rumours and theories
enormous media attention may have contributed to the acceptance of flawed evidence
challenging for jury to remain impartial
quote for mabo case
:the fictions by which the rights and interests of indigenous inhabitants in land were treated as non existent was justified by a policy which has no place in the contemporary law of this country”
R V Lehrmann
2022
- juror misconduct and judge only trials
- bruce lehrmann accused of sexually assualting brittany higgins
jury misconduct - jury conducting independent research which led to the discharge of the entire jury
judge only trials were a judge rather than jury decides verdict
mitigates the risk of external influences + ensures the decision is solely based on evidence provided in court
state of wa V edwards
2020
right to silence
no jury to prevent trial by media
sufficient evidence marked admissable
charged with two murders, as third could not be proved beyond reasonable doubt
Dietrich V Queen
1992
denied legal representation unless agreed to plead guilty to all charges
sentenced to life in prison for herion smuggling
appealed on the grounds that the lack of legal representation rendered his trial unfair
undescored principle of the right to a fair trial
