The Key Elements of the Australian Legal System

Question 1

Arriving at a statement of the ratio is not always clear-cut because:

Answer 1

• it may be difficult to identify the ratio in the strict legal sense (ie - the judgment may not have articulated clearly the principles of law or the judge‟s process of reasoning;
• it may be possible to state the ratio at a higher or lower level of generality;
• there may be no majority in favour of a particular ratio; and
• it may be difficult to distinguish the ratio from the obiter dicta in the case.

Question 2

What are the 5 express rights included in the Australian Constitution?

Answer 2

s 116 - freedom of religion
s 117 - equal treatment of state residents
s 80 - right to trial by jury
s 50 (xxxi) - acquisition of property on just terms

Question 3

True/False:

The Australian Constitution does not contain an express right to vote nor an express right to freedom of speech.

Answer 3

True

Question 4

The Australian Constitution is based on the ______ tradition, thus does not have complete separation of powers. Instead, it follows the principle of _____ _____.

Answer 4

Westminster tradition;

Responsible Government

Question 5

What are the sources of law in Australia?

Answer 5

• Australian Constitution
• State constitutions
• State and Federal statutes
• Judicial interpretations of those statutes
• The common law (case law)
• International law?

Question 6

What are the 3 branches of government in Australia?

Answer 6

1. Parliament
2. The Executive
3. The Judiciary

Question 7

What are the 3 functions of government in Australia?

Answer 7

1. Legislative - power to make laws
2. Executive - power to administer law and carry on business of government
3. Judicial - power of courts to hear/settle disputes and to issue writs

Question 8

What is for formalism/legalism?

Answer 8

The theory that legal rules are separate from other social and political institutions; judges just work within the law by strictly adhering to it

Question 9

_____ law is the law governing relations between individual and the state.

Answer 9

public

Question 10

_____ law is the law concerned with relationship between citizens; law governing relations between individuals; including organisations.

Answer 10

private

Question 11

What is civil law?

Answer 11

The law of private disputes; The law dealing with disputes between individuals, or between organisations, or between both providing for compensation from the party in breach of an obligation.

Question 12

What is criminal law?

Answer 12

the system of law concerned with the punishment of offenders by the state