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1
Q

executive

A

crown, prime minister, other ministers
- put laws into action through parliament

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2
Q

judicial

A

courts, high courts
interpreting laws to make decisions

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3
Q

legislative

A

government, house of reps, senate
- make the laws

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4
Q

operating principles of a liberal democracy

A

majority rules
equality of political rights
political freedom
political participation

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5
Q

majority rules

A

will of majority should be reflected in the government and law
in representative democracy, majority rules is now expressed through elected parliament

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6
Q

equality of political rights

A

every citizen has the right and oppurtunity to take part in the conduct of political affairs
vote and be elected etc

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7
Q

political freedom

A

entitlements people have that enable them to participate in their government
make choices without intimidation, coercion or pressure from those with power

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8
Q

political participation

A

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

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9
Q

democracy

A

A form of goverment in which the people govern themselves

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10
Q

representitive democracy

A

sytem of goverment in which people elect a representative to govern on behalf of them

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11
Q

direct democracy

A

all citizens have a direct role

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12
Q

liberal democracy

A

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.

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13
Q

seperation of powers

A

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

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14
Q

4 types of law

A
  • statute law
  • common law
  • constitutional law
  • delegated law
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15
Q

functions of parliment

A

accountability: appointing and dissmissing the executive
legislation: initiating and debating + approving changes to statute law

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16
Q

statute law

A

parliment made law

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17
Q

common law

A

refers to the body of law created by the courts, courts create law through the establishment of precedent

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18
Q

stare decisis

A

to stand by things decided
- fairness cross cases, greater predictability, consistency between cases

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19
Q

ratio decidendi

A

reason for deciding

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20
Q

obiter dicta

A

sayings by the way
non critical judicial reasoning

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21
Q

doctrine of precedent

A

belief that that courts must deliver similar judgments on cases where there are past cases with similar facts and details

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22
Q

binding precedent

A

any precedent created by a higher court must be followed by lower courts

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23
Q

persausive precedent

A

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

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24
Q

statutory interpretation

A

process by which a court determines the meaning of a statute before applying it to a specific case

25
why do we need courts to interpret statutes
must interpret how to apply laws to unforeseen situations errors in drafting by parliment/contradictions
26
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"
27
noscitor a socis
known by the company it keeps meaning of a phrase can be determined by reference to other words around it
28
expressio unis est exclusion alterius
express mention of one excludes all others
29
common law rules of statutory interpretation
- literal meaning - golden rule - mischief/purpose rule
30
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
31
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
32
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
33
natural justice
common law doctrine that guarantees fairness in the rules and procedures for resolving legal disputes
34
parts of natural justice
- impartial adjudication - hearing both parties - evidence based decisions - transparency, as to promote public confidence
35
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
36
adversarial system
a system of trial based on the assumption that truth is is best determined through a contest between parties
37
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
38
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
39
balance of probabilities
plaintiff must present the most likely or believable case
40
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
41
rights of the accused
accuser bears the burden to prove to the standard of proof required defendant has no obligation to prove
42
right to silence
defedant in a criminal trial does not have to provide evidence at their trial
42
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
43
rules of evidence
rules of evidence ensure high-quality evidence is admitted into trial and low quality evidence is excluded
44
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
45
opinion
witnesses can only report observed facts as evidence. they cannot express their opinions
46
hearsay
witnesses can only give evidence based on what they have witnessed themselves. Evidence must be first hand
47
inquisitorial trial
assumption that the truth is discovered through vigorous investigation leading to the discovery of evidence by an active inquirer
48
mandatory sentencing
legislation sets minimum sentences for certain offences
49
sentancing basics
parlimet creates offences criminal code compilation act 1913 road traffic act 1974 - sentencing act 1995- judge must consider aggravating and mitigating factors
50
arguments for mandatory sentancing
- promotes consistency within sentancing - deters individuals from re offending - reflective of the democratic will of the people
51
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
52
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
53
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
53
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"
53
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
54
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
54
54
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

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