Module 1 - legislation

Question 1

Jurisdiction

Answer 1

The scope and reach of a body’s power and authority (e.g. federal vs state or courts vs government)

Question 2

Separation of powers

Answer 2

Power of the state is separated into 3 arms: legislature, executive, judicial

Helps ensure no one arm becomes too powerful

Question 3

Do we have true separation of powers?

Answer 3

No - but we have a ‘responsible system of government’ and a strong independent judiciary

Question 4

Legislature

Answer 4

Makes the law (parliament)

Primary function is to make law, other functions include ensuring accountability of executive

Question 5

Executive

Answer 5

Implements/administers the law (cabinet, ministers, public service agencies)

Question 6

Judiciary

Answer 6

Determines whether actions are lawful (courts)

Question 7

Australia’s Westminster system…

Answer 7

Leaders of the executive (cabinet ministers) also sit in parliament

Question 8

Federalism

Answer 8

Power is divided among different governments - federal, state, local

Question 9

Federal division of power

Answer 9

Different to separation of powers - means power is divided among different governments

Question 10

Doctrine of precedent

Answer 10

Where a court has decided a case in a particular way, then subsequent cases involving similar facts should be decided same way

Ensures consistency

Question 11

Ratio decidendi

Answer 11

Reasons for the decision (ratio creates precedent)

Question 12

Obiter dicta

Answer 12

Remarks in passing - very persuasive in lower courts

Question 13

Common law

Answer 13

3 different meanings: system of law, type of law, judge-made law

Common law = case law/judge-made law

Question 14

Supreme law-makers

Answer 14

Parliaments are supreme law-makers

Legislation reigns supreme over case law

Question 15

Legislation

Answer 15

= parliament-made law

Question 16

Law - two forms

Answer 16

Legislation (parliament-made)
Case law (judge-made)

Question 17

Court hierarchy

Answer 17

High Court
Court of Appeal
Supreme Court
District Court
Magistrates Court

Question 18

Federal Court hierarchy - 4 principle federal courts

Answer 18

High Court of Australia
Federal Court of Australia
Family Court of Australia
Federal Court Circuit (FCC) of Australia

Question 19

Queensland court hierarchy

Answer 19

Supreme Court (Trial Division Court of Appeal)
District Court
Planning and Enviro
Land Appeal
Land
Magistrates Court
Specialty Courts e.g. drug, children’s, mental health, Murri, dv and fv tribunals

Question 20

How is legislation made?

Answer 20

Bill originated from parliament 
Pass through parliament (3 readings)
Receives assent from both houses and G-General
After assent come into legal force
Can be amended and/or repealed

Question 21

Two types of legislation…

Answer 21

Act/statutes (primary legislation)

Subordinate/delegated legislation (refs, by-laws etc)

Question 22

Explanatory memorandum… (explanatory notes)

Answer 22

Explains the intent of the legislation, what parliament intended

Question 23

Stare decisis

Answer 23

Process of following doctrine of precedence ensures certainty, equality and efficiency