The Australian Legal System - Basis of Government Flashcards
Difference between a legal rule and a non-legal rule?
A non-legal rule is not a law created by the parliament or courts, and therefore you cannot be sanctioned for breaking it.
What are the two main functions of law?
Social Cohesion Social Progress
What is Social Cohesion?
A social condition where the vast majority of the members of society act lawfully and freely to conduct their affairs and when disputes occur they are resolved according to law.
What is Social Progress?
The peaceful, orderly, and lawful progression of society from one generation to the next so that social cohesion can be attained in the future.
What are the elements to achieve social cohesion? (VADER)
Values of society Acceptable conduct Dispute resolution mechanisms Evolving society requires changing laws Rights of individuals and groups
What is the Rule of Law
A fundamental principle of democratic government that all people have equal rights before the law and that institutions can only exercise power consistent with constitutional law and with respect for human rights.
How is the Rule of Law upheld?
The rule of law is accomodated by the doctrine of the seperation of powers. Individuals uphold the rule of law through: Institutional Participation: Elected to Parliament Appointed to an executve position Appointed as a judicial officer Non-Institutional Participation: Comply with the law in relationships with citizens and organisations, and participate in organisational matters in accordence with the law.
What is a constitutional monarchy?
A national system of governance in which a person achieves the title of ‘head of state’ by hereditary means, and whom exercises power in accordance with constitutional law.
What is the federal system?
A federal system is a national system of governance in which political power is shared between a central tier of government and a number of autonomous states.
What is the Division of Powers?
The constitutional allocation (or sharing) of legislative powers between the Commonwealth and the States.
What is the doctrine of the separation of powers?
The separation of powers is a doctrine that divides the governance of a nation or state into distinct, but related, arms or branches, each with its own institutions and roles.
What are the two functions of the separation of powers?
Ensures power cannot be amassed in the hands of a dictator or small group of people. Accommodates a system of checks and balances so that each arm can supervise and review the powers exercised by the other two arms.
What are the three arms of government?
Legislature, Executive, Judiciary
What is the judicial arm?
This arm is comprised of all courts and judicial tribunals which exercise judicial powers to adjudicate legal disputes to bring about a just and lawful conclusion of a legal dispute.
What is the judiciary?
Refers specifically to judicial officers who preside in courts and judicial tribunals to administer justice (ie to resolve a dispute in accordance with law.)
What is the executive arm?
This arm consists of the Government (ie the collection of Ministers) and an array of government agencies created by enabling statutes. The primary role of this arm is to enforce and administer the statutes enacted by parliament.
What is the legislative arm?
The principal institution in this arm is an elected parliament. Primary role is to make statute law (legislation). Parliaments exercise legislative powers to make (enact) ‘Acts of Parliament’. Parliaments do not enforce or administer the laws they make.
What is representative government?
The principle upon which the legislative arm functions. The community elects fellow citizens to represent them in the lawmaking process. It is a form of indirect democracy called a parliamentary democracy.
What is responsible government?
Political system where the executive government, the Cabinet and Ministry, is drawn from, and accountable to, the legislative branch.
What are the essential elements of responsible government?
Adherence to the rule of law
Universal Franchise
Regular elections
Secret ballot
All votes are equal
Electorates for the lower house seats must have, as close as possible, the same number of voters
Parliamentary privilege (full and frank debate) Salaries for MPs - to allow all sections of society the chance to participate Right to protest, associate and communicate - to enhance debate
What is judicial independence?
The fundamental principle upon which the exercise of judicial power is founded. Judicial officers are completely independent of the other two arms of government, legislative and executive, and totally impartial to the two parties bringing a case for resolution to the court.
How was judicial independence recognised in the constitution?
Boilermakers case in 1956 - Formally recognised judicial independence in constitutional law as the High Court decided that it was implied in Chapter 3 of the Australian Constitution.
How are judges appointed and dismissed?
Appointed by the executive and dismissed by the legislature.
What are the elements of judicial independence>
Appointment and dismissal Fixed Tenure Fixed Renumeration
What is public law?
Public law deals with issues that affect the general public or state. (regulates the relationship between people and the state)
What is private law?
Private Laws regulates the relationship between private legal entities.
What is a civil wrong?
A wrongful act or omission which infringes on an individual’s rights, for which they can seek compensation.
What are the types of Public law? (5)
Admin law
Constitutional Law
Criminal law
Municipal law
International law
What is Admin law?
Laws that govern government agencies or state
What is Constitutional law?
Law relating to the interpretation and application of the constitution.
