Fundamentals of Australian legal system

Question 1

What is common law?

Answer 1

The body of judge made law based on doctrine of precedent and principles interpretation - commonly supported by statutes

Question 2

What is government?

Answer 2

The ruling party in Parliament from which the cabinet is formed which the leader of the the government is chosen

Question 3

What is the crown?

Answer 3

The queen/king, represented by Governor General who by convention exercises power in accordance with the wishes of the Government

Question 4

How many crowns does Australia have?

Answer 4

7 crowns, the crown of the commonwealth and the crown of each Australian states

Question 5

What is the rule of law?

Answer 5

• government can act only in accordance with the rule of law
• no man or women is above the law subject to ordinary laws of the country regardless of ranks

Question 6

What is parliamentary sovereignty?

Answer 6

• parliament can legislate on any subject matter
• no parliament can bind a later parliament
• no court or other person can override legislation

Question 7

What is separation of powers?

Answer 7

Main branches of government should not mix their powers
Parliament is responsible for making laws
Executive is responsible for implementing laws
Judiciary is responsible for adjudicating laws

Question 8

Who was Montesquieu and his influence on separation of powers?

Answer 8

French philosopher (1689-1755) who saw two types of powers existing; the sovereign and the administrative (legislative, executive, judiciary)

Question 9

Limitations of Separation of Powers doctrine in Australian system

Answer 9

Assumes powers of modern government can be legally divided and categorised however, ministers of government are drawn from parliamentarians (parliamentary responsibility) thus functions of parliament and executive are mixed

Question 10

Public law

Answer 10

Relevant to matters affecting the entire community e.g. matters about the environment, criminal activity
Criminal law, constitutional law, administrative law

Question 11

Private law

Answer 11

Relevant to individuals e.g. property ownership, employment contracts
Property law, contracts trust and equity

Question 12

Civil law

Answer 12

Dealing of enforcement of rights of individuals
Property, contracts, families, defamation

Question 13

Criminal law

Answer 13

Effect stability and peacefulness of wider community
Laws against theft and murder

Question 14

Common law

Answer 14

Law determined by judges in cases which form precedence

Question 15

Constitutional law

Answer 15

Relates to way constitution is interpreted

Question 16

Statute law

Answer 16

Law made by parliament

Question 17

What are the three main sources of law?

Answer 17

Legislation
Delegated legislation
Judicial precedents

Question 18

How is the Australian government categorised?

Answer 18

‘Wash-minster system’ is the unofficial way of describing hybrid system in Australia - a constitutional monarchy combined with a modified doctrine of Separation of Powers

Question 19

How does international law work?

Answer 19

Whilst there is a UN assembly, it is up to the good will of member states whether they choose to be bound by these laws.

There is also an international court of justice but country is free to accept or reject findings

Question 20

Criminal law v civil law

Answer 20

Criminal law is an action by the state to punish a wrongdoer and standard of proof is higher as it must be ‘beyond reasonable doubt’

Civil law involves the enforcement of rights of individuals and requires a ‘balance of probabilities’

Question 21

What is criminal procedure?

Answer 21

Process used when dealing with violations in criminal law or steps and methods used when conducting a criminal action (majority of work undertaken by victorian magistrates court)

Question 22

What is civil procedure?

Answer 22

The written set of rules that points out the steps courts will follow when hearing cases of a civil nature e.g. when law suit should commence, how courts must function etc