Unit 2: The Judiciary Flashcards
5 express rights
- Freedom of religion
- Right to acquisition of property on just terms
- Trial by jury for indictable offences
- Trade between states shall be free
- Right to not be discriminated against based on state of residence
How does the High Court act as a check on parliament’s power
Safeguards to ensure parliament does not overstep and mechanisms to ensure the court can correct parliament operations outside their jurisdiction
3 roles of the High Court
- Acts as the highest court of appeal
- Protects the rights of Australians
- Acts as ‘check on commonwealth law making powers
Define express rights
Rights that are written / embedded into the wording of the constitution that cannot be changed without a referendum
Original jurisdiction
The authority / legal power of a court to hear a case on its first instance
Appellate jurisdiction
The authority / legal power of a court to hear or determine a matter on appeal
Appeal
A party attempting to seek a review of the trial judges decision from a more superior court to correct or reverse the decision that was made
Jurisdiction of the Magistrates court
- Lowest court in hierarchy
- Summary offences eg jaywalking or traffic infringements
- Committal hearings –> determines if sufficient evidence for a more serious offence to go to trial
Jurisdiction of children’s court
- Criminal charges for anyone under 18 at time of arrest and under 19 at age of trial
- Cases concerning children who commit criminal offences (not homicide)
- Young people who need care / protection - abandoned, ill-treated, parent incapable
Role of prosecution
- Acts on behalf of state
- Prove guilt of accused beyond reasonable doubt
- Start trial and provide judge and jury with opening address
- Present evidence and witnesses
Role of accused
- Party that is charged with criminal offence
- Present evidence
- Present defence
- Call witnesses
Role of Judge / Justice
- Judge = County court / Justice = Supreme court TD
- Ensure both parties obey evidence and procedure rules
- Protects rights of witnesses and victims when testifying - prevent reliving trauma etc
- Ensure both parties receive equal opportunity to present case
Role of Magistrate
- Oversees conduct of minor offence hearings
- Determine verdict if accused pleads not guilty
- Chooses appropriate sanction to fit offence
Strengths of jury
- Impartial and independent - physical characteristics of the accused aren’t taken into account –> unbiased decision
- Spreads decision making - eliminates bias or corruption –> 12 ppl instead of 1 judge
- Encourages transparency (????)
Weaknesses of jury
- Jury does not need to provide a reason for their decision - guilty verdict may be based on bias / discrimination
- Delays and extra costs - state needs to pay jurors / jurors need legal jargon and law procedures explained to them
- #3
Ratio decedendi
“Reason for the decision” - the reasoning behind the decision the judge came to (binding precendent)
Obiter dictum
“Statements made by the way” - comments made by the judge that may be persuasive in guiding future cases (persuasive precedent)
Precedent
A principle established in a legal case that should be followed by the courts in future cases where material facts are similar
“Stare decisis”
“Let the decision stand” - where consistency is ensured through the following of precedent when similar matters arise in the future
