Introduction to Australian Law and Patient Consent Flashcards
Why is there a Commonwealth Constitution Act?
To bring unity among all the separate states of Australia eg- money army etc
Can constitutions be changed easily?
No they cannot
The Commonwealth Constitution Act establishes 3 main principle institutions of Australian government. What are they? hint PET
Parliament (legislation) Executive (Governor General and ministers) The Courts (judiciary)
Australia has a two teared parliamentary system. What are they and what are there powers in relation to passing laws?
Federal Parliament laws in relation to specific subjects e.g. section.114 Constitution - naval or military force shared powers set out in section 51 Constitution includes matters which allow for national uniformity e.g. currency
State Parliament laws made on virtually any subject relevant in that State only
What court hears matters dealing with laws made between parliaments ?
High court
What and who is the executive and what do they do?
Who- Governor general, Premier/PM and Ministers chosen by their party to hold office. The executive is based in the party which holds a majority in the Lower House and forms the government of the day. What they do- Makes policy decisions and ensure those
Explain the australian court hierachy system.
What court are most of the medical negligence cases heard in?
County Court
Treaties, declarations and conventions are all type of what law?
International Law
What is the doctrine of precedent mean and why is it used?
THe doctrine of precident means that ‘like cases should be treated alike’
It gives consistancy to ruling by judges.
What isthe difference between a binding precedent and a persuasive precedent?
And binding precedent much be followed where as a persuasive precedent the judges done have to follow however may persuade then to follow a previous case ruling.
There is a strong inter- relationship between common law and legislation- they co-exist. If there is any inconsistancy between the common law and legislation which prevails?
- Legislatin prevails over common law to the extent of any inconsistancy.
- The common law prevails when there is no specific statutes exists.
- Judges must interpret legislation made by parliament and apply common law precedents.
What is the difference between inquisitorial and adversarial court systems?
Inquisitorial - active judge, asks questions etc.
Adversarial- our system
Compare and contrast criminal law and civil law.
Criminal law e.g. Homicide, rape, assault
- Purpose – to punish
- initiated by the State
- Crown Prosecutor / Accused Appellant (appealing) / Respondent (won at the first case)
- beyond reasonable doubt (>99.9%)
Civil law e.g. negligence, trespass to the person
- Purpose – to compensate
- individual citizens, corporations
- Plaintiff / Defendant
- balance of probabilities (>51%)
