The Organization of Law and Government in Australia Flashcards
What are the 4 different kinds of laws?
Natural laws, moral and religious laws, custom, national laws
What is a legal system?
A legal system refers to the system of laws, including their source and enforcement, typically operating at a national level.
What are the 5 categories that legal systems can be divided into?
- Common law
- Civil law
- Customary law
- Religious law
Mix legal systems ( incorporate elements of 2 or more of these other systems)
What are the 2 dominant systems of law in the world today?
- Common law systems
- Civil law systems
What is the difference between civil law systems and common law systems?
- Application of the civil code involves solving problems by a process of deduction - that is making reference first to the code and then applying the relevant rule in the code to the facts.
- Unlike the process of deduction typically applied to dispute resolution in civil law jurisdictions, a process of induction is often used in common law where by a general rule is extrapolated from a series of different cases that raise similar issues and then that is applied to the new fact situation.
- Civil law systems typically adopt an inquisitorial approach to dispute resolution. This means that judges play an active role in litigation including preparing evidence and questioning witnesses to find the truth rather than leaving the task solely in the hands of the advocates for each of the parties.
- Common law is typically adversarial in nature rather than inquisitorial. This means that in common law countries, advocates present their case before an impartial judge whose role is to judicate or referee the dispute according to the law - they do not have a central active role in investigating or examining witnesses
What did the passing of the formal constitution for a new commonwealth establish and when was it passed?
Established Australia as a constitutional monarchy and instituted a federal system of government, with power distributed between the Commonwealth and the states.
- A federal system was created in which each of the six states, the former colonies, retain their existing governments and legal systems BUT an additional layer of government was added with responsibility for matters affecting the whole nation, including defence and trade.
- A new and independent High Court was also established to interpret the Constitution to operate as the final court of appeal from the state superior courts and to resolve disputes between states
- The Constitution also places limits on the areas in which federal parliament can make laws.
The Constitution provides for a separation of powers between three arms of government
This was passed following referendum with the Commonwealth of Australia being declared on the 1st of January 1901
What is the principle of the separation of powers?
The principle of separation of powers is that the power to govern should be divided between the legislature (Parliament), the executive and judiciary.]
Ensures that no single branch of government wields too much power and that each branch acts as a check and balance on the others
What are the 3 arms of the government and what powers do they hold?
- the parliament with the power to make laws, typically in the form of statutes or acts of parliament
- the executive with the power to implement the law
- the judiciary with power to interpret the law
Why is Australia’s system of government often referred to as the ‘Washminster system”
The Constitution has elements of the British ‘Westminster’ and United States ‘Washington’ systems; Australia’s system of government is therefore often referred to as the ‘Washminster system’.
What does the constitution provide and how does it differ from other laws?
- The Constitution provides a set of rules for the governance of Australia.
- It has a special status compared with other laws in that it cannot be changed by a normal act of Parliament, instead requiring a referendum
What does the legislature/parliament comprise of?
Parliament comprises the Queen, the Senate and, the House of Representatives.
This means that Parliament includes: Members of the government (majority party or coalition) Members of the opposition (second biggest party) Members of minor parties and Independent members.
What does the executive comprise of?
Comprises the Ministry, led by the Prime Minister and the Governor-General.
The Ministers of State Act 1952 designates how many ministers may be appointed. That number is currently up to 30 ministers that are not designated as Parliamentary Secretaries and up to a further 12 designated as Parliamentary Secretaries (in total, up to 42 members of the executive government).
What is the cabinet, what branch of government do they belong to, and what is their role?
- Cabinet is the Prime Minister and senior ministers
- Cabinet is part of the executive
- Exercise the executive power of the government.
What is delegated legislation?
Although it is the Parliament (legislature) that has the power to enact laws, Parliament frequently enacts legislation delegating power to the executive government or other specified bodies, to make ‘delegated’ legislation.
What are natural laws?
Rules of conduct that accord with our realised experiences of the physical world. We obey these laws because in our experience, that’s just how things work.
