PAL FINAL EXAM Flashcards
Define liberal democracy?
A political system in which democratically based institutions of government are constrained by liberal inspired constitutional arrangements, political practices and popular expectations
List features of a liberal democracy?
- political representation
- political participation
- rule of law
- independent judiciary
- natural justice
- equality of political rights
- majority rule
- political freedom
How is political representation upheld in Australia?
- electoral system ( FPTP= preferential and proportional)
- voting ( roach 2007 & Rowe 2010)
- representation in HOR and Senate
- senate reform 2016
Issues with political representation in Australia?
- malaportionment
- Gerrymandering
- preference whisperering and GTV
- imbalance between society delegates eg. 50% women but only 29% in HOR and 39% in senate
Principles of rule of law
- everyone is equal under the law, everyone is subject to the law, government accountability, sop, can’t be retrospective and must be understandable
How is popular participation upheld in Australia?
- Voting- max sufferage,
- voter turnout rates/ compulsory voting
- ability to stand for election
- free media to discuss issues + implied right to political communication
- pressure groups
- political parties ( major, minor, micro, independent)
How is an Independent judiciary upheld?
- SOP
- judges can’t be held accountable
- parliamentary sovereignty
Limits to popular/ political participation?
- limits to suffrage
- limits to ability to stand for election
- some pressure groups are more powerful than others
issues with rule of law
- not complete SOP
- Dietrich v queen
Issues with independent judiciary?
- parliament can abrogate, codify or clarify ( parliamentary scrutiny)
- mandatory sentencing
How is natural justice upheld?
Adversarial trial procedure Jury reform Doctrine of precedent Miscarriages of justice Statutory interpretation
List 2 non democratic systems and outline the structures of the systems
ABSOLUTE MONARCHY
All legal powers rest in the decisions of an unelected monarch who held office on the basis of hereditary entitlement. (Non-democratic) e.g London.
OLIGARCHY
Non-democratic political system where power is held by a few powerful elites within society. E.g South American.
Role of executive as outlined in constitution
Executive function is to initiate policy proposal for legislative debates within cabinets then introduced into parliament.
- supervise administration of law passed by legislative -> ministers accountable
- manage business of government -> cabinet meetings to discuss policy
- GG gives royal assent
Consists of Queen represented by Governor General, PM and cabinet( Westminster convention)
- CHAPTER 2 of the constitution
Role of legislative as outlined in constitution?
- Task of modifying and creating the law
- they make statue law, delegated legislation. Parliament has sovereignty over all other parties.
- consists of the parliament (HOR and senate) and queen represented by the Governor General
role outlined in CHAPTER 1
How is Australia a representative and responsible government?
- executives must be supported by majority of parliament and be answerable to the people
- if defeated in a vote of no confidence in lower house or election government must resign
- accountable executives, free fair regular elections,
Define seperation of powers?
The division of government executive, legislative and judicial powers into seperate arms or institutions that act separately and are independent of each other
How does Australia uphold SOP?
- in Australia legislative arm has law making powers
- executive includes the administration of laws and business of government. the party that hold majority in the lower House of Parliament forms the government (sometimes there’s overlap because some members of parliament are also ministers of government)
- task of applying law, courts are independent of legislative and executive functions. Courts are not subject to political interference. Courts do however have ability to create common law, which legislative can abrogate
What is a responsible parliamentary government?
A system of gov derived from Westminster system principles in which
- executives must be supported by majority of parliament and be answerable to the people
- if defeated in a vote of no confidence in lower house or election government must resign
Role of judiciary as outlined in constitution?
Role is to
- interpret and apply the law
- settle disputes
- uphold seperation of powers
- judiciary can resolve disputes between the federal and state governments
P
-consists of high court and other courts.
- role is outlined in CHAPTER 3
List 3 cases to do which show how SOP allows checks and balances? Or doesn’t?
Mabo- recognition required the overruling of the common law doctrine of terra nullius. For this, the High Court has been criticised upon the basis that it thereby usurped a legislative function and so breached the separation of powers doctrine enshrined in the Australian Constitution.
Roach vs electoral commissioner- High Court held that the complete ban on prisoners voting was unconstitutional, as it was inconsistent with the principles of representative government. Abrogating legislation
Define parliament?
A representative body that has responsibilities which include initiation and passage of legislation. The federal parliament consists of the queen ( represented by the Governor General ), House of Representatives and senate
4 Functions of parliament?
- legislation: to make laws. The HOR Makes
And the senate reviews, as they must be passed by both houses - representation: to act on behalf of voters and citizens. The electoral system ensures the HOR represents the interests of majority of voters. Senate ensures that the states interests are equally represented.
- scrutiny: to examine the government in HOR legislation Is debated& Ministers questioned during question Time. Senate is responsible for supervising administrative laws, presenting conflicting views in open debate and disseminating information
- formation of government: government consists of members of the majority Party that wins. Prime minister selects members of majority party to be appointed as ministers of state, senior ministers are selected to be members of cabinet
Role of House of Representatives
Representative function- determining the will of the people + determining government through Westminster convention ( majority seats in house with party leader becomes prime minister)
- scrutinising legislation and having debates regarding bills
Role of the senate?
- 12 from each state 2 from territories
- representative role : reader diversity of opinion
- leg must pass through senate by Royale assent
Define exclusive powers
Powers set out in the constitution about which only the commonwealth government can make laws.
Eg. Power to collect customs and exercise duties(s90)
Laws about the operation of the federal public service (s52)
Define residual powers
Areas of law making authority not granted to the commonwealth alone, or jointly with the states , by the constitution. The power to make laws In these areas remained under the sole authority of the states.
Eg.law regarding public provision of education and health services, policing and criminal law
Define concurrent powers
A power that can be exercised by both the commonwealth and the states. They are set out in s51 of the Australian constitution
Define federalism
A system of government in which sovereignty is constitutionally divided between a central governing authority and states or provinces
Define federation?
The creating of a nation by uniting previously seperate states each of which retains some powers of government but also creeds some powers to a national government
Arguments for federalism?
- nationalism
- common goals ( transport, defence)
- external threats ( Germany, Russia)
- white Australian policy (‘Chinese threat’)
Arguments against federalism?
- different cultural traditions ( free v convict)
- physical distance
- rivalries ( vic and nsw)
- each colonies had its own policies
Features of Westminster government?
Constitutional monarchy- head of state is a hereditary monarch who acts on the advice of parliament
Parliamentary government- ultimate law making authority held by government
Bicameral parliament- British parliament has 2 houses: House of Lords (upper unelected house which examines legislation and reviews decisions) and House of Commons ( lower elected house who pass laws)
Features adopted from Westminster system of government in Australia?
Bicameral parliament: 2 houses. senate is considered house of review, we don’t have a House of Lords though so Aus looked to US for upper house.
- constitutional monarchy:Governor General has power to remove pm
- representative government + responsible government
- common law provided basis for constitutional arrangements ( parliamentary democracy, judicial independence and freedom from arbitrary arrest)
Features of USA system adopted by Australia?
- Dual federalism which divides power between federal and state government
- separation of powers: nature of federalism requires judicial arms to be able to determine boundaries of power
- dual federalism allows for legislation on matters of national importance
How is Australia considered a ‘washminster’ system?
The Commonwealth constitution is sometimes called a Washminster system because it combines elements of the Washington (US) and Westminster (UK) systems of government.
North Korea vs Australia
In regards to operating principles of liberal democracy
NK- communist state + dictatorship
No Political freedom- one main party, no pluralism, too much political pressure, censorship + threat of execution
Political participation- elections not fair, no secret ballot, extreme pressure, no one can simply form their own party like in Aus
Equality of political rights- ‘one vote, one value’, votes only valued if they vote for KWP
majority rule- concept to govern not based on maj. will instead nepotism.
Accountable government- not everyone subject to law, SPA granted immunity from arrest, judiciary accountable to leader no SOP. leader can do whatever he wants
North Korea rule by law political and legal system explained
Legislative ( supreme people’s assembly)
- article 88 states legislative power
- do not criticise, reject or Amend bills
- members granted inviolability and immunity from arrest
Executive ( president/ Vice President / CPC)
- no constitutional ability to remove president or limit his term in power
- president is head of CPC, members elected by SPA
judiciary ( courts and judges)
- legal education is not required
- main focus is political indoctrination
What are the functions of law?
- promote and represent values of community
- provide structure for creation, enforcement and alteration of the law in accordance with the wishes of society
- regulate and control basic activities of humans in a society
- to provide a clear statement of behaviour considered acceptable in a community
Characteristics of effective law?
- Is represented and acknowledged by the community
- applies universally though any arbitrary discrimination against or in favour of particular social groups or individuals
- has degree of flexibility to be able to cover various situations
- complements their laws on related issues
Define rule of law? And elements?
Rule of law is a concept which envisages that
- the law applies to everyone
- everyone is equal under the law
- law should express the will of the people
- there should be an effective way of holding government accountable
- and that the law should be clear, understandable and not retrospective
How is ROL upheld in Australia?
Isbester v Knox city council= presumption of innocence upheld.
Dietrich= equal under law
What is rule by law?
A system where Legal disputes between individuals are settled according to a consistent code but political leaders are not bound by the same laws
Eg. NK
Define statute law?
A leaf ally enforceable legislative act that has passed all stages of parliament, has received royal assent and been proclaimed
What is delegated legislation?
Statutes that allow executive to authorises the public service or other lawful authorities to create legally binding regulations or determine by laws
Advantages of delegated legislation?
- allow groups to take care of ‘minor’ issues leaving parliament to consider issues of public policy
- experts working on specialised areas such as water corporation and road safety
Disadvantages of delegated legislation?
- Quantity of regulations created makes it harder for citizens to know the law
- creates complexities for courts as it has lead to development of the whole area of administrative law as a part of statutory interpretation
What are some sources of legislative ideas?
- government party policy
- pressure group activity
- public opinion and review by reform groups
5 important principles about the role of parliament as a law making institution?
- parliament is one of 2 law making institutions in our society
- law made by parliament is known as statutes, law made by courts is common law
- parliament has supreme law making authority. Law made by parliament overrides law made by courts
- once enacted parliament law remains in effect unless it is repealed or amended (altered)
- state parliaments can only make law on things which thy have constitutional authority to
Process of law making?
- Initiation: proposed bill issued on notice board
- First reading: member presents bill
- Second reading: details of bill, intention of bill
- Consideration in detail: amendments proposed, debated and voted on. Content of bill finalised
- third reading: whole bill put into vote, may or may not be debate
- Presentation to other houses: bill passed in HOR goes to senate and steps are followed again
- First reading
- Second reading: if senate makes amendments, must return to HOR
- Third reading
- Royal assent: given to bill and signed by GG and becomes an act of parliament
- Proclamation: date becomes law, upon proclamation act is enforceable as law
Compare law making roles of parliament and courts?
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Outline court hierarchy
High court (original jurisdiction). ⬇️. Supreme ⬇️ District ⬇️ Magistrate
ALSO
appellate jurisdiction
Federal and family court (same lvl as supreme)
⬇️
Federal magistrate (same lvl as magistrates)
What is original jurisdiction?
The disputes that a court heard on first presentation ‘court of first instance’
What is apellate jurisdiction?
The authority of a higher court the hear appeals from lower courts
What is criminal law?
Deals with actions regarded as antisocial in a community
What is civil law?
Deals with disputes between 2 or more Individuals
Civil original jurisdictions of courts?
Magistrates
- claims up to 75,000
Supreme
- claims up to 750,000
District
- claims up to 750,000 unless relating to personal injury
Criminal original jurisdictions of courts?
Magistrates
- simple offences, minor crimes
Supreme
- very serious crimes like murder, armed robberies
District
- serious offences for which maximum penalty is 20 years imprisonment
Why does court hierarchy exist?
- provides structure that can allocate cases between courts according to legal basis, complexity, seriousness and amount claimed
- ensures greater consistency in judgements because lower courts must follow binding precedents of higher courts
- provides right to appeal against court decisions
2 categories of criminal offences and examples of each?
Indictable-murder, robbery, rape
Summary-careless driving, drink driving and unlicensed driving
Define common Law?
Law that is based on previous judgements of courts.
What is doctrine of precedent?
The principle that the lower courts are bound by the lea gal principles that are created by the decisions of the higher courts.
What is stare decisis?
To stand by what is decided. Lower courts stand by the decisions made by higher courts.
What is ratio decidendi?
A judges reason for deciding. The core principle underlying court judgement in common law.
What is obits dicta?
A statement made ‘by the way’. It refers to the comments made by the judge.
What is Persuasive precedent?
A common law precedent that may be used by a court in making judgement but is not binding. Sources of this precedent include courts at equal or lower level in the same hierarchy or different hierachy
What is binding precedent?
A decision of a higher court that must be followed by a lower court in the same jurisdiction
4 methods judges can use to create/ avoid/ change a precedent + examples are good :)
Reversing-Where a higher court hears a case on appeal and decides that the lower court which had heard the case had wrongly decided the case, it will reverse the decision. ( the chip,slip and the trip to court case)
Overrule- when a higher court decision in a similar but subsequent case departs from a lower courts judgement on the basis that the lower case wrongly decided the original case
Disapproving - Where a judge in a court refuses to follow an earlier decision of another judge at the same level, they are said to have disapproved the decision
Distinguishing- Courts are bound only by the decisions of higher courts in similar cases. Where the facts of a case are suf ciently different from a previous case, the decision in the previous case will not be considered binding.
How was common law made in donohue v Stevenson?
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How was common law made in grant v Australian knitting mills
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How was common law made in hedley Bryce v heller?
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What is the neighbour principle?
The neighbour principle says that the defendant ought to have their ‘neighbour’ in mind when taking action under their duty of care. A neighbor is anyone who might be affected through loss or injury by the actions of another
Advantages of common law?
- immediate response when case arises, common law is ‘expos factos’
- can determine say to day application of law, justice achieved in individual cases interpreting law while relating to facts of case
- flexibility for law to adapt to changing needs of society
Disadvantages of common law?
- case must come before the courts, even then law making power is restricted and limited to novel cases, developing… and unclear statute law.
- decision in a case only affects directly affected parties, not as widely reaching as statute law
- time consuming process
Define statutory interpretation?
The role of the courts to apply the law to resolve disputes as well as common law to resolve a case, courts may also need to apply statutes or acts of parliament
Why is statutory interpretation needed!
Ambiguity in law, broad terms in statute which courts need to interpret if they apply to the case before them, drafting problems, inconsistencies and contradictions
Three methods of statutory interpretation?
Golden- used when literal rule would result in an inconsistent or illogical outcome or when literal rule is inconsistent with the purpose of the act
Literal/ plain meaning- interpretation of words in an act as written in their literal sense
Purpose/ mischief- allows judges to refer to general purpose of legislation to find the mischief that the act set out to prevent
Examples are goooodd
What is ejusdem generis?
’ of the same kind’- refers to the words that can be grouped together and labeled under a general term. It allows judges to access if a new situation before them fits into the common class of the act
What is noscitur a socii?
Means that the meaning of an unclear word or phrase can be gained from its context
Define parliamentary sovereignty?
Concept that parliament has absolute sovereignty and supreme authority
Define franchise?
A franchise is the right to vote
Define compulsory voting and enrolment?
The requirement that all individuals with legal right to vote must register for the electoral roll and attend a polling station to vote. Failure to vote without good cause usually incurs a fine.
Explain and define concept of natural justice?
Natural justice is a form of justice concerned with fairness In the legal system. It ensures that the individual has access to due process, is able to argue their case before an unbiased judge and knows and acknowledges all allegations made against them. Everyone is entitled to a fair hearing
Functions of election?
- to provide a peaceful means of political change
- provide political legitimacy,
- create accountability to the people
- provide a basis for the duty of citizens to uphold the rule of law.
How does Australia provide for fair elections?
- free media/ no censorship
- full adult sufferage, compulsory voting
- requirements to run, open to most citizens
- participation is easily accessible
- AEC is a statutory authority, runs and counts elections independently.
BUT
- some moneys have more power and money :(
- prisoner disenfranchised
- compulsory voting can impact validity of elections and electoral outcome
Define negligence?
Where an act or failure to act by a person causes damage to another person or to their property
3 elements to prove negligence
duty of care + breach or duty of care + loss of injury ( reasonably foreseeable/ not too remote) = negligence
What happened in donoghue v Stevenson (refer to neighbor principle)
The neighbour principle says that the defendant ought to have their ‘neighbour’ in mind when taking action under their duty of care. A neighbor is anyone who might be affected through loss or injury by the actions of another
Some changes to elections since 1901, and impact on election fairness in Australia?
- compulsory enrolment introduced (1911)
- commonwealth electoral act of 1918 introduced preferential voting for federal elections
- compulsory voting (1924)
- indigenous Australians right to vote (1962)
- age of enrolment lowered to 18 (1973)
Outline preferential voting?
- single member electorates
- voters mark the ballot in order of preference 1 being most preferred
- winner is candidate who receives an absolute majority (50% +1)
- votes are counted in order of preference, if no candidate reaches an absolute majority first then the bottom candidate is removed and their second preferences redistributed. This is repeated until somebody has absolute majority
Outline proportional voting?
- multimember electorate
- require a proportion of the votes to get elected.
- two voting options 1. ATL and 2. BTL
- Voter places a number in one box only and the party then chooses preferences according to group ticket
- Voter numbers (preferentially) all of the boxes below the line
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Candidates require a proportion of the vote to get elected (quota)
(No. of formal votes per region/ no. Of MLC per region +1)+1
surplus votes are distributed via single transferable vote
(no. Of surplus votes/ total no of votes the candidates receive.)
Relationship between statute law and common law?
- unclear statute require statutory interpretation (3 rules)
- interpretation of act creates prevent= common law (studded belt case)
= if parliament doesn’t like interpretation it can legislate, abrogate or codify decisions if it doesn’t like outcome.
Negligence and Mabo were both codifies - parliamentary sovereignty excluding constitutional cases
Define fair election?
Means that elections offer equal opportunities for all competing parties and candidates. Such equality requires the ability for political parties and candidates to register for office without unreasonable requirements, balanced access to media for all candidates. The absence of campaign financial abuse and independent electoral process
How is a senator elected into the senate?
- proportional voting
- 1/2 reelected every 3 years
- post 2016 federal elections no longer involves group tickets. savings provisions now allow voters who allocate at least one vote above the line to have their ballot paper count as formal and the preferences counted, vote wastage is avoided through this.
How is a candidate elected into the HOR?
- preferential voting
- if a candidate receives absolute majority (50%+1) they are elected
- If no one receives absolute majority least preferred candidate is removed and their vote is transferred to their second preference
Explain the changes of the 2016 senate reform?
1) The abolishing of group voting tickets by replacing above the line voting with a system where voters have the option to allocate up to six parties or groups.
2) The removal of the ability for an person to be a registered officer of more than one political party at the same time.
3) The allowing for political party logos to be printed on ballot papers.
Define electorate?
Geographical area that is represented by a member of parliament
Define Gerrymandering?
The deliberate manipulation of electoral boundaries to gain electoral advantage
Define malapportionment?
The drawing of electoral boundaries to allow a large variation in the number of constituents in different electorates
Define mirror representation?
Representative government that constitutes a microcosm of the larger society, containing members from all groups and sections in society proportionally ( social class, gender, religion etc)
Define partisan representation?
Based on idea that in winning election party gains a popular mandate that authorises it to carry out whatever policies or programmes it outlined during an elections
Define delegate representation?
A delegate is a person who is chosen to act for another on the basis of clear guidance or instructions, they are expected to act as a conduit conveying views of others with little or no capacity to exercise their own judgement or preferences
Define trustee representation?
A trustee is a person vested with responsibility for another’s property or affairs. They can think for themselves and exercise independent judgement
Advantages and disadvantages of mirror representation?
Advantages- more participation, government can identify with societal issues more
Disadvantages- exclusive and narrow to believe that only women can represent women ect. And it would create social division and conflict
Advantages and disadvantages of partisan representation?
Advantages- provides justification for party unity and discipline, keeps party’s to their word
Disadvantages- suggests that voters select parties on basis of policies and doesn’t take into consideration other influences (media),
Advantages and disadvantages of delegate representation?
Advantages- provides broader opportunity for political participation and prevents possibility of self serving politicians
Disadvantages- creates narrowness of visions, fosters conflict and limits scope of leadership as they cannot exercise independent judgement
Advantages and disadvantages of trustee representation?
Advantages- trust between leaders and constituents
Disadvantages- if people are not educated enough to make political decisions then are they educated enough to cast a rational vote
Define political party
An organised group that seeks to achieve representation in parliament and exert influence or control over machinery of government
Define pressure group?
An organised group of people who share common interests attitudes or beliefs and take deliberate action that is aimed at influencing public policy, either to achieve some change in policy or administration or support the status quo and prevent change.
Define independent?
A parliamentarian who is not a member of a political party
How do political parties and pressure groups support popular participation?
Political parties: - campaigning - voting - nominate for elections - how to vote cards determining grop ticket
Pressure groups:
- allowing people to have a platform
- everyone can join
- allows people to access
- enables eveyone to have their say make the difference
Difference between criminal disputes and civil disputes?
Civil law disputes deal with disputes between 2 or more Individuals whereas criminal deal with acts regarded as antisocial or dangerous to the community as a whole
Aim of the civil pre trial process, and extent to which it is successful at achieving them?
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Civil pre trial process?
Pre trial
- Pleadings documents
- Further and better particulars
Certificate of readiness for trial
Civil trial process?
Trial -Opening Statements (P then D) - Examination-in-Chief - Cross Examination - Re-examination [Repeat] Closing Statement
Civil post trial process?
Post trial
- Sentancing / Verdict
- Judges decision is handed down, and any punishment the judge sees fit is applied
Types of remedies?
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Types of damages?
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Strengths of civil trial process?
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Weaknesses of civil trial process?
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Outline criminal pre trial process?
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Outline criminal trial process?
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Outline criminal post trial process?
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Problems with criminal trial process?
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4 features of adversarial trial law?
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Advantages of adversarial system?
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Disadvantages of adversarial system?
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Explain jury reform and how it has made the system more effective?
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Advantages of jury system?
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Disadvantages of jury trial system?
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Explain USA electoral system?
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