Semester 1 Flashcards
What is a liberal democracy
A political system in which democratically based institutions of government are constrained by liberal inspired constitutional arrangements, political practices and popular expectations
What are some democratic ideas?
They promote the notion that government should be accountable to citizens: elected by majority of citizens in a free vote and should govern the interests of the community
What do liberal ideals promote
The notion that government should be held in check by having only limited powers. Seek to ensure that governments where democratically elected by majority of citizens or not are significantly constrained in their capacity to override the interests of minority’s
What are the operating principles of liberal democracy
- equality of political rights
- majority rule
- political participation
- political freedom
What is a responsible and representative government!
REPRESENTATIVE GOVERNMENT
Government in which the public elects a leader to represent the needs of the people as well as the will of the people.
RESPONSIBLE GOVERNMENT
A system of government derived from British Westminster principles in which the executive must be supported by a majority of the parliament that is itself answerable to the people.
What is a direct democracy
A form of democracy where all citizens are directly involved in all key decisions affecting their lives.
5 Keys principles of a democracy and a free society?
- Free and fair elections
- majority rule
- representative parliaments
- Accountable executives
- open political participation
- just and equitable (fair and impartial) legal systems
What is the rule of law?
Principle that outlines that all individuals are all equal befor the law. Subject to it, that there should be an effective way of holding the government accountable and that the law should be clear, understandable and not retrospective.
It Rejects Arbitrary and absolute power.
What is the division of powers
An arrangement where the responsibilities of government are allocated to the different levels in a federation.
Some times referred to as the ‘federal balance’
Eg. Federal authorities and state
What is sovereignty?
The supreme authority to govern an independent nation.
In constitutional democracies sovereign power is based on the consent of the people and operates through the rule of law.
In non democratic governments sovereignty may be based on traditional or religious authority or on coercive power.
In federation sovereignty is divided with each level of government holding sovereign powers to make laws in distinct areas.
Role of legislative in Australia
Legislative
To legislate (make laws)
made up of parliament (House of Representatives and the Senate) and also includes the Governor General acting on behalf of the Queen
Role of executive in Australia
To administers the law
Made up of Prime Minister, cabinet (senior ministers) and Queen represented by Governor General
Initiate policy proposals for legislature, supervises the administration of laws passed by legislature, manage the business of government, Governor General gives royal assent to pass laws passed by parliament.
Role of judiciary in Australia
To enforces laws
Includes court system (high, supreme, district, magistrates)
How does Australia apply the rule of law?
- Australia has a responsible government in which executive must be supported by majority of parliament
- parliament is answerable to the people
- the Government must resign if defeated in a vote of no confidence in the lower House of Parliament or in an election
Separation of powers in Australia?
- in Australia legislator 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.
Who holds sovereignty in Australia?
The federal parliament holds supreme sovereignty in Aus?
Checks and balances put in place by the separation of powers
- ensure all branches are accountable to each other
- power is shared and not concentrated in one branch
What is an ideology?
A set of doctrines or beliefs that form the basis of a political, economic or other system they tell us the proper place of an individual in society, the best means of organising the economy and the way one group or culture should relate to another
What is liberalism?
A democratic political ideology that emphasises individual autonomy.
5 things liberals believe in?
Personal freedom, religious freedom, free market economy, individualism and limited government interference
5 necessary features of a democracy?
Free and fair elections Majority rule Representatives Parliaments Accountable executives Open political participation
4 non democratic government types
Anarchism, absolute monarchy’s, totalitarian systems, aristocracy
What is conservatism?
Commitment and belief in values of stability and opposing change. Believe in sticking to traditional institutions and values and argue for limited government involvement in economic and social matters.
4 operating principles of conservatism?
- emphasise importance of nationalism, loyalty and moral uprightness
- seek to use institutions of government to reinforce these institutions and values
- believe in free markets
- tend to defend pass and oppose change
What is socialism?
The belief in a social organization which advocates that the means of production, distribution, and exchange should be owned or regulated by the community as a whole.
List some principles of socialism
- public ownership (no individual can hold a private property beyond a limit)
- economic, social and political equality
- work and wages according to ability and needs
- classless society
What is 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
4 principles of rule of law?
- law applies to all citizens
- must be an effective way of holding Governments accountable
- citizens are equal before the law
- law must be clear and understandable
What is constitutionalism?
The belief that the powers of government should be limited and subject to the rule of law.
It requires that the powers of parliament must be set out in a written or unwritten constitution.
3 types of democracy
Direct
Representatives
Liberal democracy
Tensions in Australian liberal democracy
- vote of the majority and personal freedoms conflicting
- democracy can sometimes cause a threat to individualism so many liberals believe the gov power should be limited
- Governor General has power to dismiss government ( conflict!!) unelected general has the ability to dismiss an elected go
Structure of the parliament
Bicameral- the crown & the 2 houses Upper house- representing regions Lower house - representing majorities Federalism- commonwealth and states Representative and responsible government Separation of powers
What is federalism?
The division of powers between levels of government such as federal and state
Features of federalism
- Both groups cannot encroach each other and have capacity to raise revenue
- must have a written constitution with responsibilities defined
- constitutional arbiter ( formal provisions of the constitution are interpreted by a Supreme Court
- must have linking constitution - all state gove voice in policy making (upper house reps the states)
What is a constitution?
A group of principles that set the basic laws which a state or nation is governed- codified in Aus
Purpose of a constitution
Restrict gov power, and define how decisions should be made
What happens which inconsistency of state and federal law?
When the state law is inconsistent with the federal the latter shall prevail, and the former shall to the extent of the inconsistency be invalid
Democratic accountability In another country?
In the US citizens can directly elect new president every 4 years and congress every 3?
What is equality of political rights
Everyone gets to vote, all votes counted equally
What is majority rule?
Consent to govern is based on the will of the majority. No censorship or pressure
What is political participation?
Free and fair elections, secret ballots, anyone can form a political party
What is an accountable government?
Everyone is subject to the law, everyone treated equally under it, separation of gov to increase checks and balances
What is a constitutional convention?
Unwritten non legal laws
What are some constitutional conventions in Australia?
- the existence of a prime minister,Cabinet, and political parties
- the fact that the Prime Minister must be a member of the House of Representatives.
What is government?
The body that has the legal authority to set political policy.
In Australia the government is the party (ies) that maintain majority in the lower House of Parliament. It is also used more narrowly to describe political executive.
What is parliament?
A representative body that has responsibilities which include initiation and passage of legislation.
The federal parliament consists of queen (represented by Governor General), House of Representatives and senate
What are the 4 main functions of parliament
Legislation, representation, scrutiny and formation of government
Explain parliaments role in legislation?
To make laws. The HOR makes and the senate reviews these laws as they must be passed by both houses.
Parliaments role in representation?
To action on behalf of voters and citizens. The electoral system ensures that the HOR represents the interests of the majority of voters. The senate ensures that the states interests are equally represented. (Representative government)
Explain the role of parliament in scrutiny?
To examine he gov in the HOR , legislature is debated, ministers make policy statements. matters of public importance are discussed and ministers are questioned during question time. Senate is responsible for supervising administrative laws, presenting conflicting views in an open debate and disseminating information.
Parliaments role in formation of government ?
Gov consists of members of the majority political party that wins an election. Prime minister selects members of the majority party to be appointed as ministers of state. Senior ministers are selected to be members of the cabinet who form the executive council
What is a bicarmel parliament?
A parliament with 2 houses.
Role of executive according to the constitution?
Executive is vested in the queen and exercised by the Governor General. Misleading as the powers of the exec.
Lie with the prime minister, the cabinet and politically from the people at elections for the HOR.
This is a convention that is custom and tradition
Case study: Rule of law in Australia- what happened?
- isbester vs Knox city council 2015 hca
- Tania isbesters dog attacked another dog and its owner
- council coordinator Mrs Hughes led the investigation and was involved in the charges being made. And involved in the panel discussion
- Tania challenged this claiming she had apprehended bias, went to Supreme Court, ruled that there was no apprehended bias
- then high court where it was ruled that the judge Mrs Hugues might have not been impartial due to her role in the investigation.
Examples of rule by law In North Korea?
- workers party of Korea has a high tear authority than their constitution
- during criminal investigation agencies are allowed to arrest, search and seize without judiciary screening
- judges have a political responsibility for their judgment
Case study, Rule of law Australia: what happened?
- legal aid: Dietrich v the queen ( 1992) hca
- Olaf Dietrich charged of drug trafficking offences
- Victoria legal aid commission and Supreme Court refused to represent him unless he pleaded guilty
- appealed to the high court and they ruled that he had a right to a fair trial and lack of legal representation meant that the original trial was unfair
Define rule of law
A concept which establishes that
- the law applies to ALL
- there must be an effective way of keeping government accountable
- citizens have equal status
- law must be easily understood and not retrospective
What is democracy?
Democracy is a political and legal system where citizens participate in decision making or choose representatives to act on their behalf.
What is the separation of powers
The separation or distribution of power between legislative, executive and judicial to avoid abuse of power
What is judicial review?
Judicial review is a process under which executive and (in some countries) legislative actions are subject to review by the judiciary.
Elements of access to justice?
- people require access to courts and legal processes
- people who make legal decisions must be free from bias
- legal aid is important
- pro bono where legal aid is not available
- the legal system must make resonable allowances for self represented litigants
3 main features of government accountability?
- s.o.p, judicial independence, fair hearing
Laws must be known, …… and…..
Understandable and enforceable
What is sedition?
Conduct or speech inciting people to rebel against a state or monarch
What does abrogated mean?
To do away with or repeal ( a law, right or formal agreement)
Define rule by law?
Is where oppressive laws are used to limit the rights of the common people, while the rule of law envisages to limit the power and and right of the state to impose restrictions on the common mans basic fundamental human freedoms
Law can be classified in two different sections, what are they?
Criminal and civil
What is criminal law?
A crime that the act is harmful to society. Criminal law Is concerned with behaviour that not only affects individuals but the wider society
Examples of crimes under ‘criminal law’?
Terrorism, destruction of public property, murder, robbery and assault
What 3 categories are criminal offences divided into?
- Indictable offences
- summary offences
- indictable offences tried summary
What are indictable offences?
Serious crimes which are heard by a judge and jury in superior courts such as the district supreme courts. Eg. Murder, robbery and rape
What is a summary offence?
Crimes which are considered to be less serious and heard at the lowest level of court, by a magistrate and without a jury (magistrate) eg. Driving through a red light, supplying alcohol to under 18s
What is an indictable offence tried summarily?
Less serious offences which can be heard before a magistrate in a magistrates court. Eg. Theft not exceeding 25000, assault except rape and illegal pawning
What is a civil law?
Civil law is concerned with resolving disputes between members of society ( 2 people, different groups etc.)
Who is involved in a criminal case?
Crown (R) v accused
Parties involved in civil case?
Plaintiff and defendant
Standard of proof required for a criminal case?
Proof must be beyond reasonable doubt
Standard of proof required for a civil case?
Proof Is based on the balance of probabilities
State Court hierarchy?
1- high court
2- Supreme Court
3- district court
4- magistrate court
Federal court hierarchy ?
1- high court
2- federal court & family court
3- federal magistrate court
Roles of court hierarchy?
- provide structure
- ensure consistency in judgments
- provides right to appeal
What is original jurisdiction?
’ court of first appeal’
Hears evidence, determines facts presented, applies the law and forms a decision.
What is appellate jurisdiction?
The authority of a higher court to hear appeals from a lower courts.
What is precedent?
Principles that establish past legal decisions
What is doctrine of precedent?
Principle that lower courts are bound by the legal principles that are created by the decisions of a higher court
List 3 advantages of having a court hierarchy?
Doctrine of precedent- provides consistency and predictability for solicitors
Appeals- provides fairness for any mistakes to be corrected, and high courts to monitor lower court decisions
Specialisation-promotes uniformity and consistency, judges focus on areas that they are familiar with
3 disadvantages of a court hierarchy
Doctrine of precedent- could lead to an unjust outcome, binding precedent may not be appropriate for circumstances
Appeals- appeals take long, cause delays in court system
Specialisation- argument of lower cases not receiving same level of expertise
What is a novel case in court?
A case where there is no preexisting statute or common law principle at hand, a judge will make a decision
What is a developing precedent?
Where no statue law exists and common law principle is out of date, the court will establish a new precedent for the case at hand
How can precedent created when a statute law already exists?
Words or sections of the statute are unclear or uncertain and the court has to interpret them and apply them to the case at hand.court interpretation becomes precedent applicable only to the words or sections it has interpreted.
On what basis can someone appeal to a higher court?
Reconsiders a lower court decision on the basis that:
- and error was made on question of law
- a mistake of fact
- errors in sanction ( sentence given)
