Law, Government & Policy Flashcards
Federal system
so there are both State Courts, and Federal Courts (depending on the law to be examined)
Terra Nullius
First fleet 1788.
Australian Federation
1901 & the creation of the constitution
Common law
“But most important for us…common law = judge-made law.
>That is, this is the law that arises from cases decided by Judges over time.”
Doctrine of Precedent
“Where a court has decided a case in a particular way, then subsequent cases involving similar facts should be decided in the same way. The legal principles that apply to a particular set of facts should always apply to situations with similar facts” (Carvan, p. 79)
ratio decidendi
means the reasons for the decision
State Courts
deal with legislation passed by the State parliament, and with matters of common law.
Federal Courts
deal with legislation passed by the Commonwealth parliament.
Local (Magistrates) Court
> Has both a criminal jurisdiction and a civil jurisdiction
>No appellate jurisdiction (except some administrative decisions, e.g. parking fines, licensing etc)”
District Courts
“Criminal and civil jurisdiction
Limited appellate jurisdiction – can hear matters from Local (Magistrates) Court “
Supreme Court: Trial Division
> Original jurisdiction (trial division)
both civil and criminal jurisdiction
Has appellate jurisdiction – Court of Appeal”
Supreme Court: Court of Appeal
> Hears appeals from D.C and S.C (and sometimes M.C)
Can review questions of law and fact, but usually only reviews law
From Court of Appeal, a party can appeal (usually by leave) to High Court”
Federal Circuit Court of Australia
hears more minor family, migration, administrative, bankruptcy, industrial relations etc matters
Family Court of Australia
appeals on family matters from Federal Circuit Court
Federal Court
original jurisdiction to hear range of Cth matters, and appeals from FCC (non-family matters)
High Court
"Original Jurisdiction
State v Commonwealth, or State v State cases
Appellate Jurisdiction
Appeals from State Court system
Appeals from Federal Court system
Usually require special leave
High Court also interprets Constitution"Legislation Types
TWO TYPES: Statutes or Acts AND Delegated or subordinate
Statutes or Acts
made by parliament
Delegated or subordinate
“Made by office-holders or bodies to whom parliament has delegated law-making power
Delegated legislation includes rules, regulations, ordinances, by-laws and legislative instruments”
Bills
“1)Originate from party policy, government departments, judges’ decisions, law reform or royal commissions or public pressure.
2) Pass through parliament & receive assent from the G-G/Governor before becoming law
3) After assent, Acts only have legal force once they commence “
Legislation IS?
"Is made by Parliament, Is prospective, Is an active intervention in society, The terms are ascertainable from printed versions, Can be changed relatively quickly"
Case law IS?
"Is made by courts, Is retrospective, Is responsive to disputes, Is difficult to ascertain, Can be resistant to change"
Traditional approach to interpreting legislation
literal rule
Rule of law
“The principle that every person and organization, including the government, is subject to the same laws” (Butterworths Australian Legal Dictionary, 1977, 1041)
Golden rule to interpreting legislation
avoiding absurdities
Purpose rule to interpreting legislation
court may depart from the literal meaning where that does not conform with the legislative purpose and policy of the Act – now enshrined in Acts Interpretation Acts
Acts Interpretation Acts
contains definitions of terms that commonly recur in legislation.
Jurisdiction
“(1) The scope and reach of a body’s power and authority, particularly a court’s power and authority to hear and determine a justiciable matter.
(2) The territory over which a sovereign state, court, tribunal or other body exercises such power.” “
International law
“>A domain that is still under construction
>Some international institutions of political and judicial power exist
>Still depends on ‘buy-in’ from sovereign states
>Australia is a signatory to many international treaties and conventions
>But, needs to fashion domestic law to give effect to these obligations”
Australia has two distinct political traditions
Liberal tradition and Democratic tradition
Liberal tradition
Derived from political philosophers in 17th Century England
Democratic tradition
Has its origins in the Ancient world, particularly Athens in the 5th Century BC
Liberalism
“– liberty of the individual against constraints imposed by society or the state
>Freedom of the individual to make his/her own choices
>Resistance to perceived interference from government
>Defence of freedom of speech
>Limits to government determined by social contract (often manifested as a constitution)”
Democratic
“–emphasis on equality and fairness. This may necessitate limitations on the liberty of the individual
>Government is elected by a majority of the people, and this collective will needs to be respected
>Expectation that government provides services and facilities for its citizens
>Belief in the necessity for government to act in the best interests of the nation
>All citizens share the opportunities and challenges posed by society”
The French Revolution
“The Declaration of the Rights of Man and of the Citizen (1789)
>Central to defining individual rights which should not be infringed upon by the state or the law
>Discussion of the ‘harm principle’
>Highlights the importance of the rule of law (and its limits)
>Freedom of expression and religion
>Fair taxation system
>Separation of powers
>Right to own and maintain property”
The Idea of Individual Liberty
“John Stuart Mill, On Liberty (1859)
>Rulers should represent not themselves but the will and interest of the nation
>Even in democratic government not every person is properly represented, only the majority are
>The tyranny of the majority
The government is now responsible only to the stronger and more powerful elements of public expression
>This tyranny may often interfere inappropriately in the lives of the individual
The individual needs protection against this
>The only reason for the state to interfere with our lives is to prevent harm to others”
Ruling and Consent
“Consent as a Liberal ideal
‘>No one can be subjected to the power of another without his own consent’ - John Locke, Second Treatise (1689)
>Our government is only legitimate on account of it having been granted the collective consent of the people”
Social Contract
a method of defining consent - Government could only fulfill the obligations set out by the people
CONSERVATISM
“Revolution destroys the very ideas it was designed to create
>Disillusionment on account of the widespread atrocities committed by the French revolution led to reappraisal of their ideas and methods
>Edmund Burke and others contended that respect for traditions is the key to preserving the social fabric of society
>Conservatism should only disapprove of new proposals which threaten key existing values and institutions which society is based on
>Perversity thesis – radical change invariably leads to unintended consequences
Governments
“>Consist of Ministers who sit in cabinet, as well as parliament
>Under the Westminster system, governments should resign if they do not enjoy the confidence of parliament”
The State
"They are responsible to parliament which is elected by the people via the electoral process. >>>>Responsible for: the public service the police force the military welfare and taxation offices "
Economic liberals
believe that capitalism provides economic freedom, which is in itself a goal to be pursued
White Australia Policy
excluded all non-white immigrants from Australia
