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Legal Studies > The Australian Legal System > Flashcards

The Australian Legal System Flashcards

1
Q

What is the Rule of Law?

A

Broad concept based on 3 key ideas.
- Supremacy of Constitutional Law
- Equality before the Law
- Acknowledgement of and respect for fundamental human rights

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2
Q

What is the supremacy of Constitutional Law?

A

The Constitution prevents government bodies from exceeding their powers and ignoring individual rights and freedoms.

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3
Q

Who’s job is it to uphold the supremacy of Constitutional Law?

A

It is the role of the High Court to uphold this. Pieces of legislation can be challenged in the High Court if they are considered to be ‘ultra vires’.

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4
Q

What does ultra vires mean?

A

Ultra vires involves a government authority acting beyond one’s legal power or authority.

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5
Q

What does intra vires mean?

A

Intra vires means that the government or authoritative body is acting within their legal power or authority.

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6
Q

What is equality before the law?

A

When exercising power the government should ensure that all people are treated equally before the law, and that no individual or group/s are arbitrarily discriminated against.

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7
Q

What is the existence of and respect for fundamental human rights?

A

Governments need to ensure that they are maintaining individuals fundamental human rights.

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8
Q

Who upholds the rule of law?

A

Parliaments and the courts

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9
Q

How does Parliament uphold the rule of law?

A

They make laws that are consistent with their powers set out in the Constitution.
They pass laws to assist with democratic processes.
They create laws to protect fundamental human rights.

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10
Q

How do the courts uphold the rule of law?

A

Through the resolution of legal disputes they ensure the rule of law is upheld.
The High Court of Australia, in its original jurisdiction, resolves Constitutional disputes, ensuring parliaments act within their constitutional powers.
Uphold human rights by maintaining the presumption of innocence, fairness to both parties.

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11
Q

What are some examples of the Rule of Law in action?

A

The separation of power provides checks and balances to prevent the abuse of power.
Independent judiciary
Open and transparent elections
Procedural fairness in trials
Democratic law making with strict rules
Laws are accessible and applied equally, fairly and consistently to all

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12
Q

What is the separation of powers?

A

The 3 branches of government at the federal, state and territory level are divided into separate, but related institutions: the legislative (parliament), the executive (government), and the judiciary (the courts).

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13
Q

How does the separation of powers protect the public?

A

Protects the public by avoiding the concentration of power in one government authority.

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14
Q

What is an example of the separation of powers in action?

A

South Australian Parliament passed the Road Traffic Act to define unlawful motorist behaviour. The police in the executive arm apprehend motorists who break the road rules and charge them with traffic offences. The Magistrates Court under the judicial arm hears the complaints against the offending motorist. If the offender admits guilt or is found guilty at trial the court can impose a sanction to punish him or her to deter others from breaking the road rules.

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15
Q

What is representative government?

A

Members of the community are elected as decision makers and law makers. In Australia, members of the community are elected to parliament as the sovereign (main) decision and law-makers.

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16
Q

How many key features must exist for a genuine and effective model of representative government to function?

A

8

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17
Q

What are the forms of representative government?

A

Direct democracy and indirect democracy

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18
Q

What is a direct democracy?

A

A direct democracy is where the people vote on the rules and laws.

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19
Q

What is an indirect democracy?

A

An indirect democracy is where the people elect a representative to vote on rules and laws on their behalf.

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20
Q

What are the 8 key features of a successful model of representative government?

A

Salaries for members of parliament, universal franchise, open parliamentary debates, one vote/one value and secret ballot, regular elections, rule of law, parliamentary privilege, right to protest, freedoms of association and political communication. (Stalin Used Overly Oppressive Rules, Regulations and Procedures in Russia)

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21
Q

Mnemonic device for 8 key features of successful model of representative government.

A

Stalin Used Overly Oppressive Rules, Regulations and Procedures in Russia

22
Q

Why do members of parliament need a salary?

A

Politicians need to be paid for their services to allow all sections of the community to participate fairly and equitably in the democratic process.
Without payment for Members of Parliament working-class people may be prevented financially from standing for Parliament.

23
Q

What does universal franchise mean?

A

Means that all adults are able to vote regardless of sex, race, cultural background or political beliefs.
Voting is compulsory in federal and state elections in Australia

24
Q

Why are open parliamentary debates important?

A

People need to have access to parliamentary sittings so they can make informed decisions about the workings of parliament and the standard of representation they are receiving.

25
Q

Why are open parliamentary debates important?

A

People need to have access to parliamentary sittings so they can make informed decisions about the workings of parliament and the standard of representation they are receiving.

26
Q

What is an example of an open parliamentary debate?

A

Question Time.

27
Q

What is meant by one vote/value & secret ballot?

A

Every vote (ballot) should be of equal value.
If this does not occur the elected government may not reflect the majority of support in the community.
Voting should be secret to prevent intimidation and corruption

28
Q

Why are regular elections important?

A

Elected representatives are held accountable to voters through regular elections.
The more time between elections, the greater the likelihood that MP’s will ignore the wishes of the electorate.

29
Q

What is the rule of law?

A

Means that all citizens are equal before the law when voting and standing for election.
We need strict rules for elections to ensure the legal and political rights of all citizens are treated equally.

30
Q

What is parliamentary privilege?

A

MP’s must be able to engage in full and frank debate on all issues before Parliament without fear of reprisal.
This (should) ensure that laws are made with all information being presented for consideration.

31
Q

Why must the right to protest, freedom, freedom of association and political communication be protected?

A

The right to freedom of peaceful protest, association and expression must be protected by law.
Without these freedoms, political ideas and debates may be stifled and democratic processes restricted.

32
Q

How often are elections held at federal level?

A

Every 3 years

33
Q

How often are elections held at state level?

A

Every 4 years.

34
Q

What is the tenure for the House of Representatives?

A

Up to 3 years.

35
Q

What is the tenure for the Senate?

A

Senators are elected for a period of six years. A system of rotation, however, ensures that half the Senate retires every three years.

36
Q

What is the tenure for the House of Assembly?

A

4 years.

37
Q

What is the tenure for the Legislative Assembly?

A

Elected for a term of eight years, with half of the Legislative Council’s 22 seats declared vacant at each election.

38
Q

Where did we adopt the system of responsible government from?

A

The Westminster System (United Kingdom)

39
Q

What is the parliamentary democratic model?

A

A model to ensure the government is democratically formed and accountable. It is part of the system of responsible government

40
Q

How does the parliamentary democratic model work?

A

Parliament is directly elected by the people. The executive is not.
The executive is drawn from elected members of Parliament.
The executive is decided by parliament, not the public.
The executive is directly responsible to parliament and indirectly responsible to the public.

41
Q

What is a convention?

A

Unwritten rule

42
Q

How is the Federal Government chosen?

A

By convention, the Federal Government is chosen from elected members of parliament in the political party that receives the majority of seats in the (House of Representatives).

43
Q

How is the Prime Minister chosen?

A

The leader of the majority party becomes the Prime Minister, and selects members as ministers in the Federal Cabinet.

44
Q

How are the Prime Minister and Ministers responsible to Parliament?

A

The Prime Minister and their Ministers are directly responsible to the Parliament, because that is where government was formed.

45
Q

In a system of responsible government, does the Prime Minister and Governor-General need to be separate?

A

In a system of responsible government the head of state (Governor-General) and the head of government (Prime Minister) need to be separate.

46
Q

How do principles of responsible government mainly exist?

A

Through conventions

47
Q

What are key principles of responsible government?

A

Key principles of responsible government are the relationship between the legislature, the executive, the exercise of executive power and the role of the Senate.

48
Q

By convention, the Governor-General accepts the advice of the Prime Minister providing

A

The Prime Minister’s Party maintains the support of a majority of seats in the House of Representatives
The Government can guarantee the passage of supply (passing of bills to pay for government expenditure)
The Prime Minister’s advice is consistent with Constitutional Law

49
Q

What is the relationship between the legislature and the executive?

A

Ministers must be elected members of parliament.
All ministers are directly accountable to parliament for advice tendered to the Governor-General, and for the administration and enforcement of federal statutes.
A Minister’s public performance is scrutinized by parliament through Question Time, grievance debates, the general debating stages of Bills, and is special committees created by parliament.

50
Q

Why does cabinet meet and deliberate privately?

A

Despite ministers sometimes disagreeing in private, in public they present a united front on government policy to display unity in the ranks, preserve confidence of back-benchers and govern for the full term. Cabinet unity also assists the Australian government to enter into agreements and treaties with other countries.

51
Q

How is executive power exercised?

A

By convention the Governor-General must use their constitutional powers on the advice of the Prime Minister.

Legal Studies (29 decks)

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