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Australian Legal System > Week 2 > Flashcards

Week 2 Flashcards

1
Q

Customary and Tribal Law

A

Entirely oral spoken and heard law did not change, handed down through the generations no provision for individual land ownership, care for but don’t own

Lead by elders not through courts or lawyers

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2
Q

Magna Carta

A

1215 limited power of the king

Established Rule of Law

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3
Q

What is the Westminster System of Government

A

The separation of powers - Legislature, executive and judiciary

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4
Q

What English law established parliament supreme

A

1689 Bill of Rights
Crown no right to suspend operation of laws
Tax need consent of parliament
Crown summon parliament on regular basis

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5
Q

What law gave judges tenure

A

1701 Act of Settlement

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6
Q

International English Law – Blackstone’s classifications

A

Conquered colonies

    Invade and beat 

   Recognition of existing legal system

Ceded colonies

    Purchase negotiated 

    Recognition of existing legal system 

Settled colonies 

   Land no fixed inhabitants  

   Settlers bring all their laws with them
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7
Q

1787 first charter of justice for NSW

A

criminal and civil courts established

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8
Q

1814 second charter of justice for NSW

A

Supreme Court established with legally trained judges

Eliminated the court martial justice system
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9
Q

1823 third charter of justice the New South Wales act
1823 NSW act (Imp)
(4)

A
  • established first legislative council
  • established a legislative council consisting of NSW residents appointed by the governor and empowered to make laws consistent with those of Britain
  • establish NSW as a full colony
  • established comprehensive court system in NSW
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10
Q

Move to Responsible Government NSW (3)

A
  • 1823 third charter of justice the New South Wales act
  • 1833 introduction of jury trials
  • 1840 transportation of convicts to NSW ends
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11
Q

1828 Australian courts act (imp)

4

A
  • increase the size of the legislative council
  • required the governor to consult with the legislative council
  • provided that the all British statutes and common law up to 1828 applied in New South Wales and Tasmania as at 25th of July 1828
  • British statute passed after 1828 would only apply to NSW and Tasmania if expressly stated to do so
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12
Q

Australia Move towards self-government

2

A

1855 NSW constitution act (Imp)

1865 colonial laws validity act 1865 (Imp)

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13
Q

1855 NSW constitution act (Imp)

A
  • transform NSW into a self governing colony
  • established a constitution for NSW
  • created a bicameral parliament consisting of a legislative assembly a legislative council and the governor as crown representative
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14
Q

1865 colonial laws validity act 1865 (Imp)

4

A
  • This gave the colonial parliament greater freedom to make their own laws
  • confirm the ability of the colonial parliaments to amend their own constitutions
  • permitted colonial parliaments to amend or repeal previous 1828 British laws as far as they applied to the colony
  • declared that the colonial parliaments had no power to pass laws inconsistent with British laws directly applicable to the colony IE the British government could still pass laws overriding colonial laws
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15
Q

Problems leading to federation

4

A

Difficultly between travel btw colonies, colonies trade was restricted, defense was in doubt , immigration

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16
Q

Federation steps from 1899 to 1902

A

1899: draft constitution put to referendum and approved
1900: draft constitution put to the British parliament + British parliament passes the Australian constitution act
1901: Commonwealth of Australia came into existence on the 1st of January the colonies now become the states of the new nation Australia
1902: constitution of the New South Wales act is revised and consolidates reforms and changes necessitated by federation

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17
Q

What were the Lingering Ties to Britain - 1931 to 1975?

4

A

1931: statute of Westminster passed by UK parliament - gave legal recognition to the independence of the British Dominions
1942: statute of Westminster adoption act (Cth) so that the UK can no longer override any law of the federal parliament (did not apply to the Aus. States which did not adopt the statute) . Was back dated to 1939.

1968 Privy Council (limitation of appeals) act 1968
matters which could be appealed from the High Court to the Privy Council were limited.
1975 Privy Council (appeals from the High Court) act
Abolish the appeals to privy council

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18
Q

What did the Australia Acts 1986 achieve?

4

A
  • removed all the remaining colonial ties to Britain
  • Since the 3rd of March 1986 when the Australia acts came into force Australia has been fully independent in a legal sense from Britain
  • there is no longer any appeal to British courts and the UK has no legislative power over Australia
  • Repealed colonial laws validity act 1865 as far as it applies to states. British parliament no longer able to override state laws
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19
Q

What does Parliaments are partially sovereign mean?

A

Parliaments are subject to the commonwealth constitution

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20
Q

What are the 4 aspects of the Rule of Law?

A
  • Persons are to be governed by valid laws and not by the arbitrary exercise of power
  • Every person and organisation, including the government, is subject to the same laws
  • a person may only be punished for a breach of the law and not otherwise
  • the ‘principle of legality’: the government must have legal authority for every action that takes
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21
Q

What does Legislature do and who is the legislature branch?

A

enacts laws

parliament

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22
Q

What does Executive do and who is the executive branch?

A

Ministers

administers the laws

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23
Q

What does Judiciary do and who is the judiciary branch?

How to remove a tenured judge?

A

judges and courts
interprets and applies the laws
Tenure of judges - only removed if inept and misconduct and incompetent

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24
Q

What is the Separation of powers significance and how does it achieve that?

A

Prevents abuses and accumulation of law
The principle that the legislature the executive and the judiciary should be as far as possible remain functionally separate

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25
Q

What is the Principle of Responsible Government? (3)

What is the other name for the Principle of Responsible Government?

A
  • Government is responsible to people
  • The executive government (the public service) is ultimately responsible to the electors
  • the principle that the executive branch of government should be answerable to the legislature rather than the monarch
    achieved by making the head of each government department a member of the legislature
  • The Westminster of government
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26
Q

What is the Division of Powers definition and what are the four types?

A 
refers to the division of lawmaking powers between the federal government and the various state governments
Specific
Exclusive
Concurrent
Residual
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27
Q

Specific power of Division of Powers

A

These are law making powers given to the Federal Parliament and listed in sections 51 and 52 of the Constitution. They provide the Commonwealth with the power to make laws for ‘peace, order and good government of Australia’.

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28
Q

Exclusive power of Division of Powers Definition.

What are 5 exclusive powers?

A

Some powers are also exclusive to the Commonwealth. They are powers that only the Commonwealth can make laws for and the States cannot.

the oversight of the Commonwealth public service 

the imposition of Customs and Excise duties 

the raising and maintaining of any naval or military force 

the coining of money 

the government of the territories
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29
Q

Concurrent power of Division of Powers

A

Some powers are non-exclusive and shared with the states. They are called concurrent powers because both the Federal Parliament and the State Parliaments can make legislation about these areas. However if a State were to make a law that conflicted with a law of the Federal Parliament, s 109 of the Constitution states that the Federal legislation will override state legislation.
Interstate and international trade and commerce

Taxation 

Corporations 

Marriage 

external affairs the relationship between Australia and other countries stop  S51
30
Q

Residual powers division of powers

A

These are the law making powers of each state agreed to at Federation when each of the colonies discussed the powers they wanted to retain and what they were willing to cede to the new Federal Parliament. The law-making powers of the states are not written in the Australian Constitution and are far-reaching, and the New South Wales Constitution does not list law-making powers either. Instead, it provides the Parliament with a broad grant to “make laws for the peace, welfare, and good government of New South Wales” (section 5 of the Constitution Act 1902)

the legislative power is able to be exercised only by this state parliaments 

power to make laws with respect to 

Education 

Health 

Criminal law 

Contracts and torts 

Transport 

Property and land 

local government
31
Q

S 109 Cth Constitution

A

With the concurrent powers disagreements between state and Cth, the Cth will be successful overall

32
Q

Constitutional Democracy

A

the head of state is a monarch

the monarch is represented in Australia by: 

the Governor General in the federal government 

the state governors in the various state governments
33
Q

Australian Constitution - how to change

A

S128 - referendum
Regulated by democracy – consistent elections

Principle of majority 

By  the people for the people

be passed by an absolute majority of both Houses of Parliament 

to be put to the Australian voters in the form of a referendum and passed by a majority of voters and the majority of the states 

receive royal assent
34
Q

Representational Government

A

The representatives elected by the people vote on laws for the people
Members of parliament representation people in their electorate

35
Q

Liberal Democracy

A

emphasis placed upon individual freedom and other liberal values.

the will of the majority and the decision-making power of the elected representatives are constrained by the rule of law 

constitution that emphasizes and protects the individual rights and liberties of citizens. 

Rule of law in accordance of valid laws and not otherwise
36
Q

Terra Nullius Doctrine of Reception

A

Considered there were no people in Australia (obviously wrong)

All land owned by the crown 
Terra nullius land unoccupied free to be settled
37
Q

Mabo V Queensland (No 2) (1992) 175 CLR 1

A

Native Title – live and hunt on land

Established in this case  

Made into legislation 

If government owned the land previously then they extinguish native land claim
The High Court did not reject the doctrine of reception it confirmed that Australia was settled rather than conquered and that Australia current lowest arrived everybody from the British legal system 
High Court decided 

Terra nullius at the time of British settlement was wrong 

THe Meriam people had traditional title to the Murray islands which had survived British settlement 

other indigenous Australians in a similar position could also have traditional title to their lands formally recognized 

such traditional rights of ownership could be taken away at anytime by express close to that effect 

by a narrow majority- where traditional rights of ownership were taken away by law no compensation was payable
38
Q

Independence from Britain (6)

A

1865 colonial validity act 1865 (Imp)

1900 Commonwealth of Australia constitution act 1900 (UK) 

1901 Commonwealth of Australia formed part of British Empire 

1931 statute of Westminster (Imp) gave legislative equality between self-governing dominions of the British Empire and the United Kingdom - Canada 

1942 statute of Westminster adopted in Australia back dated to the 3rd of September 1939 beginning of World War 2 

1986 Australia acts (Cth & UK) and ended the imperial connection
39
Q

federal system of government

A

power is shared between the state governments and the national government

to create a federation the colonies now states gave up powers rights and duties to the new central government called the Australian government or the Commonwealth government but retain certain legislative powers 

the Australian constitution defines the subject matters upon which the federal parliament may legislate
40
Q

The Commonwealth of Australia constitution act 1900 (Imp)

A

constitutional monarchy and parliamentary government

it recognizes the existence of the six Australian colonies to become states it continues in force their constitutions and laws except as changed by the Commonwealth constitution sections 106, 107, 108. 

it creates a new set of federal authorities and outlines their functions and powers chapter 1 parliament chapter 2 executive chapter 3 judicature 

it regulates relations between the States and the Commonwealth
41
Q

S 92 Constitution Act

A

Established Australian Common Market

42
Q

Commonwealth V Tasmania (1983) 158 CLR 1

The Tasmanian Dams case

A

the Commonwealth argued that the Commonwealth law was based on a number of areas over which it had legislative power for example under section 51 (xx) -corporations and under section 51 (xxix) external affairs - because of treaties imposing international obligations to protect heritage areas in section 51 (xxix)

The high court upheld the validity of the commonwealth legislation 

Commonwealth law will prevail over state laws in inconsistencies
43
Q

S 57 Commonwealth of Australia constitution act 1900

A

Deadlock procedure
Section 57: if the House of Representatives passes the bill and the Senate rejects or fails to pass it or passes it with amendments to that to which the HR will not agree

the HR needs to wait three months before HR again passes the bill 

if the Senate rejects or fails to pass or passes with amendments to which HR will not agree the Governor General may dissolve both houses simultaneously 

if after the dissolution the game passes the bill and the Senate rejects or fails to pass or passes with amendments to which the HR will not agree then the Governor General may convene a joint sitting 

if there is an absolute majority then the bill is duly passed by both houses and the bill then goes for royal assent 

Double Dissolution – 2016 election
44
Q

Democracy

A

is a form of government in which citizens have a say in the decisions that affect their lives, including participation in the proposal, development and passing of legislation.

45
Q

Direct Democracy

A

Citizens participate directly in processes of government

46
Q

Constitution

A

set of rules determining how a state will be governed how and by whom the legislative, executive and judicial powers will be exercised

Can be written or unwritten 

Can be accompanied by bill of rights (Not in Aus.)
47
Q

Civil Law system (Common Law system)

A

Most common

Legislation in form of codes, statutes and constitutions 

Cases not recorded and not recognised as source of law  Civil law is founded on the idea of separation of powers, which states that the job of the legislature is to legislate, while the role of the courts is to implement the law.
48
Q

Constitutional Monarchy

A

A country where the head of state is a king or queen who holds the position subject to the constitution and with the consent of the people and who exercises little or no actual power

49
Q

Six forms of Government

A

Monarchies

presidential systems 

parliamentary republics 

Theocracies 

one party states 

Commonwealth countries
50
Q

Unitary System of Government

A

a system of government or single government is responsible for the entire jurisdiction
NZ

51
Q

Separation of Powers - 3 characteristics

A

The same person should not form part of more than one of the three branches of government

one branch of government should not control or interfere with the functioning of another branch of government 

one branch of government should not exercise a function of another branch of government
52
Q

Bicameral

A

they consist of two houses each of which must vote upon and pass the law for it to be valid

53
Q

1902 constitution act (NSW)

A

established a constitution for NSW

54
Q

1922 statute of Westminster (Imp)

A

permitted Australia’s federal parliament to assume full legislative competence and if necessary override UK laws as far as they applied to Australia

55
Q

1942 statute of Westminster adoption act (Cth)

A

repealed colonial laws validity act 1865 as far as it applied to federal parliament British parliament no longer able to override federal laws or make laws applying to Australia

56
Q

1968 Privy Council (limitation of appeals) act (Cth)

A

abolished appeals from the High Court of Australia to the Privy Council in London on matters involving federal law

57
Q

1975 Privy Council (appeals from the High Court) act (Cth)

A

abolish appeals from the High Court of Australia to the Privy Council in London on all matters

58
Q

Local Government

A

Are established by state and territory governments to take responsibility for community and local service

they are a branch of state or territory government they are not as separate level of government in their own right 

local governments have a legislature and an executive but no judiciary branch 

legislature is a council of elected representatives led by a mayor 

the executive is a subset of the council comprised of key officeholders 

The responsibilities of local governments are typically limited to the provision of community facilities such as libraries and parks maintenance of local roads are planning regulations and the provision of local services such as waste disposal
59
Q

Political Parties

A

political parties are an important feature of the Australian political landscape

most members of the lower house and the upper house our members of a political party and are and are elected to parliament based not on the individual views of characteristics but on the basis of their membership of that party
60
Q

Political Parties

A

political parties are an important feature of the Australian political landscape

most members of the lower house and the upper house our members of a political party and are and are elected to parliament based not on the individual views of characteristics but on the basis of their membership of that party
61
Q

Structure of Constitution

A

chapter one the parliament

chapter 2 the executive government 

chapter 3 the judicature 

chapter four finance and trade 

chapter 5 the states 

chapter 6 new states 

Chapter 7 miscellaneous 

chapter 8 alteration of the constitution
62
Q

Constitutional Conventions

A

these are unwritten rules based on upon decades of tradition that dictate how the constitution should be interpreted and how it should operate in practice

the position of Prime Minister is not explicitly referred to in the constitution at all 

the leader of the political party with the most seats in the lower house should become the Prime Minister the head of cabinet and the countries political leader 

constitutional convention that obliges the Governor General to act on the advice of the Prime Minister when exercising his or her executive authority
63
Q

S 76 Australian Constitution

A

disputes between the federal and state governments about the interpretation of the Australian constitution are reserved by the High Court of Australia

64
Q

S 96 Australian Constitution

A

section 96 the federal parliament has the power to grant money to any state on such terms and conditions as the parliament sees fit

this enables federal government to make financial grants known as tide grants conditional upon the states cooperating with the federal government policies in areas technically beyond the federal government legislative authority
65
Q

Limitations The Commonwealth (8)

A

cannot prefer one state over another in relation to taxation

Cannot acquire property without just compensation 

Must tried by jury a person charged with an offence under Commonwealth law and the trial must be held in the state where the offenses committed 

Cannot restrict free trade between the states 

Cannot prefer one state over another in relation to trade commerce or revenue 

Cannot make any law establishing imposing or prohibiting any religion 

Must prevent residents of states being discriminated against within other states 

Must protect every state against invasion
66
Q

Limitations the States (4)

A

cannot levy Customs and Excise duties

Must ensure that the trade between the states is free 

Cannot raise military forces 

Cannot coin money
67
Q

High Court Ruling on what Commonwealth cant do

A

cannot make a law that discriminates against the states or impairs their continued existence

Cannot make a law that is in conflict with the freedom of communication about political government and pull public affairs implied into the constitution as a result of the system of government established by the constitution
68
Q

Territories regulation

A

there are eight other territories including the two major territories

in relation to these ten territories the federal parliament can make laws on any subject it does not share its lawmaking with power with the state parliament as it does in relation to the rest of Australia 

the federal department has confirmed a large degree of self government on the two major territories and on north lake island in most respects these territories function similar to the states but the parliament can override any legislation of their parliaments 

the other seven territories are directly regulated by the federal government usually through an administrator
69
Q

Legal cases relevant to aboriginal people

A

Milirrpum v Nabalco (1971) 17 FLR 141

R v Murrell (1836) 1 Legge 72

Mabo v Queensland (No 2) (1992) 175 CLR 1

70
Q

Milirrpum v Nabalco (1971) 17 FLR 141

A

was the first litigation on native title in Australia, and the first significant legal case for Aboriginal land rights in Australia, decided on 27 April 1971
Yolngu people could not prevent mining on their lands. He held that native title was not part of the law of Australia, and even had it existed, any native title rights had been extinguished.
Did not discuss Terra Nullius

71
Q

R v Murrell (1836) 1 Legge 72

A

Aboriginal people bound under NSW law

Only one legal system the Common law system

72
Q

Mabo v Queensland (No 2) (1992) 175 CLR 1

A

Native title is recognised at common law
Terra nullius was to be rejected
The nature and content of native title depended upon ongoing traditional laws and customs
Native title could be extinguished by an exercise of government power that was inconsistent with an ongoing native title interest.
The common law did not require compensation to be awarded for an extinguishing of native title interests.

Australian Legal System (2 decks)

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