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.
What is Criminal law?
Criminal law relates to infringements of the acceptable standards of behaviour set out by law-makers. Criminal law disputes are between the state and the offender.
What is municipal law?
Delegated Legislation - ordinances, regulations and by-laws
What are international laws?
Laws that oversee relations between citizens of foreign nations.
What are the types of private law? (5)
Contract law
Tort law
Property law
Succession Law
Family Law
What is contract law?
Governs the rights and obligations of these entering into contracts
What is tort law?
Concerns the rights, obligations and remedies provided to someone wronged by another individual.
Torts of Negligence Misrepresentation, Tresspass
What is property law?
Govern forms of property ownership, transfer, payment and tenant issues
What is succession law?
Succession law governs the transfer of estates, wills and trusts.
What is family law?
Governs family-related and domestic-related issues.
What are the types of criminal offence?
Summary Offence
- Up to 2 years imprisonment
Minor Indictable Offence
- Up to 5 years imprisonment
Indictable Offence
- Greater than 5 years imprisonment
What are the classifications of a criminal offence?
Crimes against person
Crimes against property
Crimes against society (public order)
What are the elements of an offence necessary to prove guilt?
Mens Rea (Guilty Mind)
Actus Reus (Guilty Act)
What is a strict liability offence?
An offence whereby only the guilty act (Actus Reus) must be proved to find guilt.
Where do civil cases appeal?
To the next highest court in the hierarchy?
Where do criminal cases first appeal?
Court of Criminal Appeal (Surpreme Court)
Where do criminal appeals go after CCA?
Full Bench of High Court
Criminal citation (Original Jurisdiction)
Police/DPP/R v Smith
Prosecution v Defendant
Criminal citation (Appellate Jurisdiction)
Smith v Police/DPP/R
(Appellent v Respondent)
Civil citation (Original Jurisdiction)
Smith v Brown
(Plaintiff v Defendant)
Civil Citation (Appellate Jurisdiction)
Brown v Smith
(Appellent v Respondent)
Citation for if the state challenges the commonwealth
South Australia v Commonwealth
What are the categories of legal disputes?
Constitutional Disputes Criminal Disputes Industrial Disputes Administrative Disputes International Disputes Civil Disputes
What are the two types of constitutional disputes?
Inter se disputes - disputes between federal partners. Commonwealth v Tasmania 1983 (Tasmanian dam case) Ultra vires disputes - disputes between a private entity and an executive of legislative institution regarding the exercise of powers. Cheatle v The Queen 1993 (HCA held a jury verdict in federal criminal law must be unanimous)
What is a criminal dispute?
These are disputes in which a person is alleged to have committed a crime by an executive agency (such as a police force) and the outcome will be decided in courts of criminal jurisdiction.
What are the characteristics of a summary offence?
Less serious. Imprisonment of up to two years can apply.
What are the characteristics of a minor indictable offence?
More serious. Imprisonment of up to five years.
What are the characteristics of a major indictable offence?
Mosts serious. Imprisonment of up to life.
What are the two possible outcomes of a criminal case?
There are two final outcomes to a criminal case. An accused person is either convicted (found guilty) or acquitted (found not guilty). If a jury is unable to reach a statutory verdict a “hung jury’ situation results and there is mistrial.
What are the two categories of sanctions?
Denial of personal freedoms Denial of financial freedoms
What are some rights in a criminal dispute?
The principle of the presumption of innocence Right to apply for bail Right to remain silent Freedom from obituary arrest Right to know all allegations made against an accused Right to access the prosecution’s evidence Right to present a case before a judge Right to a trial by jury Right to appeal
What is a civil wrong
These are disputes in which a private party instigates civil action (ie litigation) against another private party. These cases arise because an aggrieved party (called the plaintiff in court proceedings) alleges the another party, called the defendant, committed a civil wrong which caused him or her harm, such as a personal injury or a loss of some kind.
What are the categories of civil dispute?
Tort Contract
Who has the burden of proof in a civil case?
The plaintiff
Who has the burden of proof in a criminal case?
The prosecution
What is the standard of proof in civil case?
The balance of probabilities
What is the standard of proof in a criminal case?
Beyond reasonable doubt
What are the elements needed to prove a case of negligence
The defendant owed the plaintiff a duty of care as a legal neighbour The defendant breached that duty of care The breach was a direct cause of the harm to the plaintiff that would have been foreseeable to a reasonable person
What are the three possible outcomes of a civil trial?
Liable Not liable Contributory liability
What is contributory negligence
Refers to a finding that both parties contributed to the harm created and liability is apportioned. For example, a court could find that the plaintiff was 50% liable for his or her own harm, so the defendant only has liability to pay 50% of the damages decided by the court.
What are damages?
Monetary compensation to place the plaintiff back into the same position, had the civil wrong not occurred, as much as money can do it.
What are the two categories of damages?
Special Damages Monetary damages to compensate for a specific economic injury or loss, such as medical expenses or repairs to property. General Damages Monetary damages to compensate for non-economic matters, such as pain and suffering.
What is an injunction?
This a court order compelling a defendant to do something or not do something.
Where do criminal appeals go after CCA?
Full Bench of High Court
Citation for if the state challenges the commonwealth
South Australia v Commonwealth
What happens when state laws contradict federal laws?
Federal law overrides state law as per section 109 of the comstitution (Inconsistancy rule)
When does case law override statute law?
When case law is made by the high court
