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P&L 2017 [Year 11 ATAR] > Semester One Exam Revision > Flashcards

Semester One Exam Revision Flashcards

1
Q

Define Liberal Democracy and list the main principles of one

A

A liberal democracy is a political system in which democratically based institutions of government are constrained by liberal inspired constitutional arrangements, political practices and popular expectations that limit the scope and capacity of the government sector.

  • Equality of political rights (everyone gets to vote and every vote is counted equally)
  • Majority Rule (consent to govern based on the majority of the people)
  • Political participation (free and fair elections, anyone can form a party, secret ballot, accessible voting and free media)
  • Political freedom (political pluralism, no pressure to vote for or support a particular party or ideology)
  • Accountable government (separation of powers and rule of law)
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2
Q

Identify two non-democratic systems and outline the structures of those systems

A

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.

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3
Q

Define representative and responsible government

A

REPRESENTATIVE GOVERNMENT
Gov. 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.

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4
Q

Define separation of powers

A

Legislative
— legislate (make laws)
— made up of parliament (House of Representatives and the Senate)
— also includes the Governor General acting on behalf of the Queen

Executive
— administers the law
— Prime Minister (comes from HOR)
— Cabinet (senior ministers)
— Queen represented by Governor General

Judiciary
— enforces laws
— court system (high, supreme, district, magistrates)

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5
Q

Outline the sections of the constitution that state the roles of the legislative, executive and judiciary.

A

Legislative – Chapter One
Executive – Chapter Two
Judiciary – Chapter Three

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6
Q

Discuss the extent to which separation of powers exists in Australia.

A

There is a mixing of the Legislative and the Executive but the Judiciary is completely different.

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7
Q

Define rule of law and outline the essential elements of rule of law.

A

Rule of Law is the restriction of the arbitrary exercise of power by subordinating it to well-defined and established laws.

  1. No one is above the law
  2. Everyone is treated equally under the law
  3. Law must be clear, known and understandable and not in retrospect
  4. Must be effective ways of holding government officials accountable
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8
Q

Using examples explain how rule of law is upheld in Australia.

A
  1. Even politicians are accountable and ruled under the law
    (e. g Craig Thompson)
  2. Everyone has the same right to legal aid and representation (e.g Dietrich v The Queen)
  3. All laws in Australia are made public and are debated by the two houses of legislature and all laws are checked for viability by the Judiciary (Judicial Review)
  4. There is free media and political plurality allowing for the government and all its officials to be scrutinised and held accountable for their actions (e.g Craig Thompson being convicted of thirteen charges of theft)
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9
Q

Define federalsim and federation

A

FEDERALISM
A system of government in which the powers and responsibilities of government are bewteen a national government and two or more state or relgional governments. Federations require a written constitution to allow for the settlement (usually by a constitutional court) of disputes over divisions of powers and ect.

FEDERATION
The creation of a nation by uniting previously separate states, each of which retains some powers of self government.

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10
Q

Outline the arguments for and against federalism

A

FOR
Political freedom is enhanced by federalism.
Competition between states pushes the stae forward.
Regional governments are closer to the people and therefore better representatives.

AGAINST
Leads to confusion and ‘over government’.
Divides ability to create solid legislation.
Exxagerates conflucts in politics.
Creates a surplus of unnecisary legislation.

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11
Q

Outline the Westminster system of government

A

Political system based on the conventions followed by the UK Parliament at Westminster in London.
Process of responsible parliamentary government in which the exec. is the party or faction that has the majority support in a democratic election.

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12
Q

Identify which features have been implemented into the Australian political and legal system, and explain how they have been implemented.

A

– Washminster system
– Dual Federalism
– Responsible Parliamentary Government
– Separation of Powers

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13
Q

Identify features of Australia’s federal system which have been adopted from USA.

A

Dual Federalism and the make up of the Senate.

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14
Q

Discuss the function of law

A

– Promote and represent the values and aspirations of a community
– Provide a structure for the creation, enforcement and alteration of the law in accordance with the wishes of society
– To regulate and control the basic activities of humans within a society
– To provide a clear statement of behaviours that are concidered acceptable within a community
– To provide a basis for the protection of people against behaviour that removes social and economic freedoms
– To provide a formal means of resolving disputes and conflicts between individuals, groups and intitutions in society.
– To encourage a culture of respect and observance of the law in order to prevent social anarchy.

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15
Q

Define statute law

A

Law made by Parliament

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16
Q

North Korea

A

LEGISLATIVE
Supreme People’s Assembly
— does not initiate legislation independently
— does not criticise, amend or refuse a bills
— elected every 5 years
— Article 88 of the constitution states that legislative power rests with the SPA
— Korean Workers Party approves a single list of candidates who stand for election unopposed
—Members are guaranteed inviolability and immunity from arrest

EXECUTIVE
President
— elected by the SPA
— no constitutional ability to remove or limit the presidents power
— judiciary are accountable to the president

Central People's Committee
— President is the head of the CPC
— Formal powers are all inclusive
— Directs the judiciary
— Members are elected by the SPA from the SPA

JUDICIARY

Courts and Judges
— selected by the executive (members of the CPC)
— legal education is not required
— main focus on political indoctrination

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17
Q

Outline three sources of legislative ideas

A
  1. Elections and competing policy ideas
  2. Media and pressure groups
  3. Direct actions by citizens
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18
Q

Explain the process by which parliament makes law

A
  1. Initiation
  2. First Reading
  3. Second Reading
  4. Consideration-in-detail
  5. Third Reading
  6. Presentation to other house
  7. First Reading
  8. Second Reading
  9. Third Reading
  10. Royal Assent
  11. Proclamation
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19
Q

Define delegated legislation and outline its advantages and disadvantages

A

Delegated legislation are statutes that allow for the executive to authorise the public service or other lawful authorities to create legally binding regulatios and/or determine by-laws.

PROS
Allows for specialised laws.
Allows for a quicker creation og necissary by-laws and regulations.

CONS
Undemocratic in the way that it gives power to unelected bodies.

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20
Q

Outline the 5 important principles about the role of parliament as a law-making institution

A
  1. Parliament is one of two law making bodies.
  2. Laws made by parliament are known as statutes, where as court made law is known as common law.
  3. In democratic societys based on rule of law, parliament has supreme law making authroity (and statutess overide common law)
  4. Once enacted by parliament statutes remain a law until it is repealed by parliament.
  5. Parliaments can only make laws on matters that fall under their constitutional right.
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21
Q

Define parliament and outline the functinons of parliament.

A
  1. Initiating, debating and approving changes to statute law.
  2. Appointing and dismissing the executive (government) and individual members (ministers).
  3. Approving expenditure by the executive and scrutinising the detail of administration.
  4. Representing the interests of individual citizens, electorates and majority will, as reflected in election results.
  5. Providing a forum for the debate of political issues.
  6. Acting as a court to judge anyone, parliamentarian or ordinary citizens alike, who breaches parliament’s own rules.
  7. Providing a focus for the political socialisation for all citizens, and acting as a training ground for future executive members.
22
Q

Define exclusive, residual and concurrent powers and provide an example of each

A

EXCLUSIVE
Powers set out in the constitution that state that only the commonwealth can legilate in certain areas.
e.g. Collection of customs (s90) and the creation of legislation regarding the operation of federal public services.

RESIDUAL
The areas of law making authority that are not specifiically granted to the Commonwealth or state governement.
e.g laws reguarding public health and education.

CONCURRENT
Power that is shared between federal and states levels.

23
Q

Ratio decedendi

A

A judges reason for deciding. The core principle underlying a court judgement in common law.

24
Q

Obiter dicta

A

A statement made ‘by the way’. It refers to the comments made by the judge.

25
Q

Stare decisis

A

To stand by what has been decided. Lower courts stand by the decisions made in the higher courts.

26
Q

Doctrine of Precedent

A

The principle that a lower court is bound by the legal principles that are created by the decisions of a higher court.

27
Q

Binding precedent

A

A decision of a higher court that must be followed by a lower court in the same jurisdiction.

28
Q

Persuasive precedent

A

A common law precedent that may be used by a court in reaching a judgement but is not binding. Sources of this type of precedent include courts at equal or lower level in the same hierarchy, or courts in different hierarchies.

29
Q

How to prove negligence

A
  1. Duty of Care
  2. Breach of Duty of Care
  3. Reasonably forseeable injury
30
Q

Methods of Statuatory Interpretation

A

The literal or plain meaning rule
The Golden rule
The mischeif or purpose rule

e.g The Studded Belt Case

31
Q

Statuatory Interpretation

A

The determine of the meaning of an Act of parliament by a court before they can apply it to a specific case.

32
Q

Negligence

A

– Most common Tort

– Refers to situations where an act or failure to act by a person causes damage to another person or to their property

33
Q

Explain the four methods judges can use to create, avoid or change a precedent, using examples is you can.

A

Reversing - basically an appeal
Overruling - court not following the precedent set in a lower court seems to overule that ruling
Disapproving - when courts on the same levels come to different outcomes to each other
Distinguishing - deciding if cases really relate

34
Q

Describe two categories of criminal offences and give examples of each.

A 
Inditable offences (serious crimes e.g rape) 
Summary offences (less serious crimes e.g supplying alcohol to a minor)
35
Q

Neighbour principle

A

The ratio of Donoghue v Stevenson created the neighbour priniciple that states that you owe a duty of care to your neighbour. Your neighbour being: any person you could reasonably forsee your actions closely and directly affected.

36
Q

Parliamentary Soverignty

A

Principle that where parliamentary statute and judge-made common-law conflict statutes always have precedent.

The only exception being High Court decisions on constitutional cases.

37
Q

Outline the relationship between statute law and common law.

A

The courts interpret statute law that creates precedent that is basically common law.
In a similar way once common law is created parliament can choose to abrogate or codify decisions.
e.g Mabo and Negligence.

38
Q

Donoghue v Stevenson [1932]

A

Created the neighbour principle and the common law tort of negligence in Scotland

39
Q

Grant v Australian Knitting Mills [1936]

A

Used Donoghue v Stevenson as persuasive precedent (from a different court system) established negligence in Australia

40
Q

Hedly Bryne v Heller [1963]

A

Principle of negligence can be applied to situations with professional services and advice

41
Q

Reasonably forseeable Injury

A

Must show that injury was caused by the defendants act or failure to act.
Must show that the injury or loss was not too remote.

e.g Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co [1961] AC 388
The damage to the warf was seen as too remote as there was no way for the shipping company to know that the oil would cause a fire.

42
Q

Court Heirarchy

A

Sorting of courts into a hierarchy determining their original and apppellate, as well as civil and criminal jurisdictions.

43
Q

Outline the court heirarchy

A

The highest court in both the state and federal hierarchy the High Court. Below the high court resides the Supreme Court and Federal court respectively. Below them is the District courts and Family courts. And below that is the Magistrate and Federal Magistrates.

44
Q

Describe the civil and criminal original jurisdiction of state courts.

A

SUPREME
Criminal – Serious inditable offences e.g murder
Civil – Personal injury and other civil matters if the claims exceed $200000

DISTRICT
Criminal – Some inditable offences (not murder or treason)
Civil – Personal injury claims irrespective of the amount

MAGISTRATE
Criminal – Summary offences and some inditable offences that are being tried summarily
Civil – Personal injury claims and other claims, with damages for exceeding $25,000 (in WA)

45
Q

Explain three reasons why the court heirarchy exists

A

Specialisation of courts

Doctrine of Precedent

46
Q

Duty of Care

A

Duty of care is owed when you should be able to reasonably foreseeable that your actions would closely and directly affect that person.

e.g Hay v Young [1943] AC 92
Duty of Care was not owed as the actions were not reasonably forseen to directly affect the plaintiff.

47
Q

Breach of Duty of Care

A

Could the defendant reasonably have foreseen the injury or loss?
Did the defendant fail to act as a reasonable person would have to counter this injury or loss?
Was the risk of injury or loss insignificant?
Did the defendant take reasonable precautions to remove the risk of this injury?

e.g Latimer v AEC [1953] AC 643
Duty of care was not breached at the defendant took all reasonable precautions to prevent injury.

48
Q

ejusdem generis

A

“of the same kind,” used to interpret loosely written statutes. Where a law lists specific classes of persons or things and then refers to them in general, the general statements only apply to the same kind of persons or things specifically listed. Example: if a law refers to automobiles, trucks, tractors, motorcycles and other motor-powered vehicles, “vehicles” would not include airplanes, since the list was of land-based transportation.

49
Q

noscitur a sociis

A

Idea that the meaning of a word may be known from accompanying words. Under the doctrine of noscitur a sociis, the meaning of questionable words or phrases in a statute may be ascertained by reference to the meaning of words or phrases associated with it.

50
Q

Common Law

A

Law that is based on previous judgments of the court.

P&L 2017 [Year 11 ATAR] (5 decks)

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