Module 1 - legislation Flashcards
Jurisdiction
The scope and reach of a body’s power and authority (e.g. federal vs state or courts vs government)
Separation of powers
Power of the state is separated into 3 arms: legislature, executive, judicial
Helps ensure no one arm becomes too powerful
Do we have true separation of powers?
No - but we have a ‘responsible system of government’ and a strong independent judiciary
Legislature
Makes the law (parliament)
Primary function is to make law, other functions include ensuring accountability of executive
Executive
Implements/administers the law (cabinet, ministers, public service agencies)
Judiciary
Determines whether actions are lawful (courts)
Australia’s Westminster system…
Leaders of the executive (cabinet ministers) also sit in parliament
Federalism
Power is divided among different governments - federal, state, local
Federal division of power
Different to separation of powers - means power is divided among different governments
Doctrine of precedent
Where a court has decided a case in a particular way, then subsequent cases involving similar facts should be decided same way
Ensures consistency
Ratio decidendi
Reasons for the decision (ratio creates precedent)
Obiter dicta
Remarks in passing - very persuasive in lower courts
Common law
3 different meanings: system of law, type of law, judge-made law
Common law = case law/judge-made law
Supreme law-makers
Parliaments are supreme law-makers
Legislation reigns supreme over case law
Legislation
= parliament-made law
Law - two forms
Legislation (parliament-made) Case law (judge-made)
Court hierarchy
High Court Court of Appeal Supreme Court District Court Magistrates Court
Federal Court hierarchy - 4 principle federal courts
High Court of Australia
Federal Court of Australia
Family Court of Australia
Federal Court Circuit (FCC) of Australia
Queensland court hierarchy
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
How is legislation made?
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(3 readings) Receives assent from both houses and G-General After assent come into legal force Can be amended and/or repealed
Two types of legislation…
Act/statutes (primary legislation)
Subordinate/delegated legislation (refs, by-laws etc)
Explanatory memorandum… (explanatory notes)
Explains the intent of the legislation, what parliament intended
Stare decisis
Process of following doctrine of precedence ensures certainty, equality and efficiency
