Test 1 Flashcards
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What are the two main functions of law
- To achieve social cohesion
2. To facilitate socail progress
What are the 4 ways social cohesion is achieved
- By laws that protect values and rights
- By laws that define acceptable standards of behavior and impose consequences for breach
- By providing institutions and processes to make laws administer and enforce laws and resolve legal disputes
- By promoting law reform and changes the laws
What is social cohesion
Social cohesion is defined as the willingness of members of a society to cooperate with each other in order to survive and prosper
What is an example of a law that helps achieve social cohesion
The Criminal Code NT`
How is social progress achieved
by making laws that facilitate the lawful and peaceful transition of society from one generation to the next.
What is an Example of social progress
The Education Act NT
What is public law
Public Law regulates relationships between individuals and the state. It is designed to maintain law and order and to protect fundamental rights.
What does public law include
international law
constitutional law
administrative law
criminal law.
What is private law
Private Law regulates relationships between individuals and organizations.
What does private law include
family law
property law
contract law
torts like negligence
What is criminal law
Criminal law is concerned with behaviour that affects not only the individuals directly involved but also the welfare of society as a whole. Criminal law aims to regulate the behaviour of individuals as members of the community and to protect the interests of society.
What is civil law
Civil law is concerned with behaviour between one individual and another individual. It includes contract law and the law of torts. Criminal law and civil law are dealt with by different procedures and have different consequences for the individuals involved.
What are the criminal offenses from least to most important
Summary offences - less serious, heard in the Magistrates Court, maximum penalty of two years imprisonment
Minor indictable offences - intermediary offences, can be heard either in Magistrates Court or Supreme Court (District Court in SA), maximum penalty of five years imprisonment
Indictable offences - the most serious offences, heard in the Supreme Court (or District Court in SA), maximum penalty of life imprisonment
What are the democratic principles that our government is based on
- Rule of law
- Constitutional monarchy
- Federal system of government
- Separation of powers
- Representative government
- Responisble government
- Judicial independence
What is the rule of law
It is the fundamental principle that no one is above the law
What is a constitutional monarchy
It is a system where a hereditary monarch (King or Queen) is head of state and exercises power in accordance with a written Constitution. In Australia, the Queen is represented by the Governor-General at the federal level (and Governors at the state level).
What system of government does Australia have
Federal system
What does Australias federal system mean
This means that Australia has a national (Federal/Commonwealth) government (in Canberra) and 6 state governments, each with their own independent institutions and lawmaking powers
What is the doctrine of division of powers
doctrine of division of powers is the allocation of legislative (lawmaking) powers between the Commonwealth and States.
What are the 5 categories of legislative powers
- Specific
- Exclusive
- Concurrent
- Prohibited
- Residual
The Australian legal system establishes what
procedures and institutions to make, administer, adjudicate and enforce the law in the community.
What is the separation of powers doctrine
The separation of powers doctrine is designed to prevent the concentration of power in the hands of just one institution of government.
What is the structure of the Australian parliament
In the Australian legal system, the legislative (lawmaking) function is performed by our 9 parliaments: one federal parliament, 6 state parliaments, and two territory parliaments.
What is the structure of the house of representatives
150 members - each member represents an electorate
each electorate is an area with approximately the same number of voters
elections are held every three years
the preferential voting system used
sometimes referred to as the ‘people’s house’
the political party which wins a majority of seats in this house forms the government.
What is the structure of the Senate
76 members. Each state has 12 senators and each territory has two
equal representation of each state irrespective of population
senators are elected for six years, except for territory senators who are elected for three
half-senate election held every three years
the proportional voting system used
sometimes referred to as the ‘state’s house’.
What are the 4 roles of parliament
- Democratic functions
- Legislative functions
- Supplying function
- Scrutinizing function.
Australian parliaments operate on the principle of what
representative government
What are the features that are necessary for an effective representative
- rule of law
- universal franchise
- regular elections
- one vote / one value
- secret ballot
- salaries for members of parliament
- parliamentary privilege.
How is government formed
- There is an election for the House of Representatives.
- The party (or coalition of parties) which wins a majority of seats (75 + 1) in the House of Representatives forms Government. (The minority party forms the Opposition).
- The leader of that party becomes Prime Minister.
- The Prime Minister selects other members of the majority party to be appointed as Ministers (Ministers can be Senators or MHRs).
- The Governor-General swears in the Prime Minister and Ministers.
What is a responsible government
Responsible government is a system based on the British Westminster system of parliamentary democracy, whereby the Government is formed by the party which wins a majority in the lower house of parliament and is then directly responsible to the parliament for the decisions and laws it makes.
What does a responsible government operate under
Westminster Conventions.
What is the judiciary
The judiciary is the arm of government responsible for the administration of justice.
What is the main role of the judiciary
The main role of the judiciary is to resolve legal disputes. In doing this, judges may also need to interpret statutes and create common law where no statutory rule exists.
What is the principle of judicial independence
The principle of judicial independence is essential to uphold the basic freedom of all citizens.
What features guarantee judicial independence
- judges are appointed by the executive (government) but can only be dismissed by parliament
- judges have permanent tenure until 70
- judges’ salaries cannot be reduced during their tenure.
If you are found guilty of a criminal case you will receive a what
if found guilty or committing a crime will receive a sanction. Sanctions are generally a fine, community correction order or imprisonment.
What are the 2 elements in court cases
- ‘Mens rea’ translates as ‘to have in mind” from Latin. It is an important element of any crime because it relates to the need to determine whether the defendant held a sufficient state of mind to have the intent to commit the particular crime in question
- ‘Actus Reus’ translates as “to do an act” from Latin, i.e. the occurrence of the criminal act or an unlawful omission of an act.
What happens if a civil case is successful
a case is successful, the court may award monetary compensation (called damages) or issue a court order to stop further infringement.
What are citations used for in civil law
Instead of an arrest or continued detention, the citation releases the person on the promise to appear in court at a specified date and time.
What are the 5 elements of negligence
- Duty
- Breach of Duty
- Cause in fact
- Proximate cause
- Damages
Does Australia have a complete separation of powers
NO, because members of the executive are also members of the parliament
What are the governor generals non-reserve powers
The governor general exercises these powers on the advice of the Prime Minister. Eg swearing in of cabinet members and the high court justice system
What are the governor generals reserve powers
Powers the governor general can exercise without the advice of the prime minister
