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Apply Foundation Legal Principles > Week One - The Australian Legal System > Flashcards

Week One - The Australian Legal System Flashcards

1
Q

Why do we have laws?

A
  • Social cohesion (meaning to cooperate and live in harmony)
  • Resolve disputes - conflict resolution
  • Protect people from harm
  • Protect individual rights
  • Reflect social values and attributes
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2
Q

Difference between legal and non-legal rules

A

Legal rules are laws created by institutes within the legal system whereas non-legal rules are rules established within a group but are not laws, they are generally enforced in the community

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3
Q

What is law?

A

Laws enable people to live togethr by recognising our rights and providing a means to resolve conflict

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4
Q

What do laws provide?

A

Laws:

  • set out peoples rights as members of society
  • Establish peoples responsibilities to otheer members of the community
  • Provide a range of dispute settlement institutions
  • Enforcement occurs through the legal system
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5
Q

Where do laws within Australia come from?

A
  • Statute law (laws created by parliament)
  • Delegated legisaltion (laws made within the authority of parliament)
  • Common law (laws made through the courts)
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6
Q

What is the Australian legal system?

A

It is a serious of different institutions and organisations developed by our society to make, administer, adjudicate and enforce the law

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7
Q

What does the Australian legal system include?

A
  • The constitution (both Federal and State)
  • The Commonwealth and State Parliament
  • The courts and tribunal system
  • Investigate and enforcement bodies (i.e. the police)
  • Correction facilities
  • Independent legal services and the legal profession
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8
Q

What does Aboriginal Lore cover?

- Question on test

A
  • Property
  • Laws around special events like marriage, coming of age and death
  • Sacred knowledge
  • Leadership and etiquette
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9
Q

What is parliamentary sovereignty?

A

This means that parliament is the ultimate law-making power

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10
Q

What does the Australian Parliamentary System?

A

The parliament in Australia pass written laws in the form of acts, legislation & statute

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11
Q

What can parliaments do?

A

They can make, change or repeal (cancel) previous legislation as well as override common law

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12
Q

What limits the power of the parliament

A

Parliaments are only limited by the Constitutions

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13
Q

Commonwealth & state law

A

Australia has a federal system of government the power to make laws is shared between a central parliament & state & territory parliaments

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14
Q

Federal law or Commonwealth law

A

Is legislation created by the Federal Parliament and applies throughout Australia in all states & territories

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15
Q

State law

A

Is any legislation created by any state parliament and applies only within the state in which it was created

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16
Q

Where is local council located within the law making hierarchy

A

It is at the lowest level

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17
Q

How is the local council recognised by the Victorian Constitution act 1975?Federation

A

Is a distinct & essential tier of government

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18
Q

What does the local council represent?

A

This level of government is closest to the people and gives people a say in matters which directly affect their local area. It provides a vehicle for the expression of local democracy.

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19
Q

What are the main functions of parliament

A

Provide a place for the elected representatives to form government

Debate issues to enact and repeal laws

Establish committees that can investigate issues of concern & scrutinise the actions of the government of the day

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20
Q

Federation

A

A federation is a joining together of states for a common purpose.

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21
Q

What does federal parliament have the power to do?

A

It has the power to make laws about matters that affect the whole country

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22
Q

Federation - Australia united

A

The British parliament passed the Commonwealth of Australia Constitution act 1900.
The Commonwealth of Australia was declared on Jan 1st 1901
The Colonies gave up powers to new central government, but retained individual identities and certain legislative authority.

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23
Q

What power does each state parliament have?

A

State parliaments can exercise powers relating to certain issues

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24
Q

When was the commonwealth of Australia declared?

A

It was declared on the 1st of January 1901

25
Q

Before federation

A

Most migrants to Australia came from Britain and Ireland

26
Q

What does traditional aboriginal lore refer to?

A

It refers to the traditional customs and stories that aboriginal peoples learned from dreamtime. It refers to the common features of acceptable and unacceptable behaviour in Aboriginal communityes
It was not a set of laws that ruled all aboriginal people throughout Australia

27
Q

During federation what happened to the colonies powers

A

The colonies gave up powers to a new central government but retained individual identities & certain legislative authority

28
Q

Before Federation

A

The six colonies of Australia were not constitutionally connected to each other instead it was to Britain.
As each colony had its own parliament, courts and a written constitution however, the laws of each colony were still subject to the law of the British Parliament. Governments were not elected by the people to run the colonies instead they were appointed by the British Parliaments instead

29
Q

Immigration Restriction Act 1901 (“white Australia policy)

A

After federation on of the first actions the new parliament took was to pass a legislation that restricted non-white, non-British immigration. It became the cornerstone of a policy aimed at keeping Australia white.

30
Q

Impact on migration to Australia

A

Non-European population in Australia declined dramatically after 1901 (to a totally of about 47,000)
Merchants, students and tourists could on enter on temporary permits.
Wives & children of non-British were banned from joining in Australia after 1903
The use of contract Pacific island labour was banned after May 1904, as the pacific island labourers acts enabled the deportation of islanders already living & working in Australia

31
Q

A constitutional monarchy

A

The powers & procedures for how Australia is governed are defined by a written constitution
The Constitution sets the Head of State
The Queen is the head of state for Australia

32
Q

Why is Australia a constitutional monarchy?

A

This is because the queen is the figurehead but the country is not governed as such by the monarchy

33
Q

What does it mean when you say Australia is a representative democracy

A

This is because Australian citizens vote for delegates to represent their interests in Parliament

34
Q

Indigenous Australians

A

Were excluded from being given the same protections as all other Australians and from being counted in the Australian Census

35
Q

What did Section 51 (xxvi) give commonwealth the power to do

A

It gave them the power to make laws with respect to ‘people of any race, other than the Aboriginal race in any state, for whom it was deemed necessary to make special laws

36
Q

What Section 127 of the constitution do

A

It provided that ‘in reckoning the number of people of the Commonwealth, or of a state or other part of the Commonwealth, aboriginal natives shall not be counted

37
Q

Separation of powers

A

The Australian Constitution established three groups
- the Parliament (make, change and remove laws)
- the Executive (put laws into action)
- the judiciary (power to make judgements on laws.
It also describes the role each group plays in Australian government
The division between the groups is based on the principle of the ‘separation of powers’

38
Q

What are specific powers (concurrent & exclusive)

A

The powers of the Commonwealth parliament to make laws is limited to matters that are specifically stated in the Constitution such as taxation, immigration, defence and foreign trade. It is stated in section 51 and 52 of the Australian Constitution

39
Q

Concurrent powers

A

Law making powers shared between both the state parliament and the Commonwealth parliaments. They can make laws relating to taxation, quarantine and bankruptcy

40
Q

Exclusive powers

A

Specific powers in the constitution that can only be used by the commonwealth parliament eg. postal services, immigration, defence and currency (printing money)

41
Q

Section 109

A

If laws relating to the same issue is made by the state parliament and the commonwealth parliament when exercising their concurrent powers are inconsistent, the federal law prevails due to section 109. As was shown in the McBain v State of Victoria case.

42
Q

Residual powers

A

State parliaments have the power to make laws in relation to matters not contained within the constitution such as criminal law, police, education, health, prisons and road laws.

43
Q

Bicameral system

A

Upper and lower house in all states except for Queensland

44
Q

Victorian parliament

A

The crown - represented by the governor
The legislative council - upper house
The legislative assembly - lower house

45
Q

Commonwealth parliament

A

The crown - represented by the governor-general
The senate - upper house
The House of Representatives - The lower house

46
Q

The legislative process

A

This process is used by all parliaments in Australia both federal and state to make laws
Parliaments can make statutory laws in the form of legislation
A draft law put to parliament is known as a bill
If it is passed by the majority in both houses of parliament it becomes an act

47
Q

What is the role of the lower house?

A

Form government
Decide matters of state or national interest
Represent the interests o people in their electorate
Propose, debate and vote on bills and amendments
Examine issues in Committees
Scrutinise executive government

48
Q

Role of the Senate (house of review)

A
  • It does not form government

Proposes and debates and votes on bills and amendments

49
Q

Delegated legislation

A

Parliament often passes specific powers onto delegated bodies. Through an act of parliament (enabling act) it outlines broad guidelines or principles and leaves administration to be defined later in regulations

50
Q

What are some examples of Delegated bodies (subordinate authorities)

A

Executive councils
Government departments
Local councils

51
Q

Australian court hierarchy

A

Each court operates within their own jurisdiction
Magistrates court, coroners court, children’s court and VCAT
County court
Supreme court (trial division, and court of appeals)
High court

52
Q

What is jurisdiction?

A

The power of a court to hear and determine a cases which is established by its enabling act

53
Q

What is Original jurisdiction?

A

The authority to hear a case when the case is first brought before a court

54
Q

What is Appellate jurisdiction?

A

The authority of a court to hear appeals from decisions of courts of a lower level in the same court hierarchy

55
Q

What are the three main reasons for a court hierarchy

A

To filter cases
To permit an appeal structure
To allow for the doctrine of Precedent

56
Q

Criminal law

A

The state or prosecution brings the action
The main aim is to punish and deter
The standard of proof is ‘beyond reasonable doubt’

57
Q

Civil law

A

An individual plaintiff brings the action
The main aim is compensation
The standard of proof is ‘on the balance of probabilities’

58
Q

Magistrates court of Victoria

A

All criminal cases start in the magistrates court and more than 90% will be completed their
It is the lowest level in the victorian court hierarchy
They hear summary offences and conduct committal proceedings in criminal matters
Hear minor civil disputes up to $100,000
There is no jury - the magistrate decides the outcome and imposes the sentence

Apply Foundation Legal Principles (1 decks)

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