Politics and Law EXAM PREP

Court Hierarchy

Refers to the ranked order of courts.

Inferior=Magistrates

Intermediate=District

Superior=Supreme Court of WA

Significance of Court Hierarchy

Allows allocation of cases

Leads to more consistent outcomes

Allows appeals to flow up

Allows precedent to flow down

High Court Role

Judicial review, laws made by legislature and actions by executive

Deals with appeals of criminal and civil cases

Interprets the Constitution

Law-making role through statutory interpretation

Categories of Law

Categorised by sphere

• public law, individuals within a society eg criminal

• private law, private interactions of individuals with each other eg property

Categorised by jurisdiction

• International law

• Commonwealth/federal law

• State law

Categorised by source

• Constitutional

• Statutory

• Common

Characteristics of good laws

Legitimacy

Universal

Clarity

Prospective

Enforceable

Flexible

Appropriate remedies

Statutory Law Making Process

1. Initiation, bill is listed in the notice paper

2. First reading, minister announces the titles and reads explanatory memorandum

3. Second reading, minister gives speech outlining intent of bill & parliament debates

4. Committee/consideration in detail, bill may be referred to committee

5. Third reading, put to vote in house where it originated

6. Presentation to other houses, same steps in the other house

7. Royal Assent, bill presented to GG

8. Proclamation, law is published upon which it is enforceable

Importance of interpreting statutes

1. Statutes may be unclear

2. The Act may be silent on an issue and courts need to fill in the gaps

3. The meaning of words may change over time

4. The intention of the Act may not be clear

5. Inconsistencies or contradictions in the Act

6. Unclear definitions

Common law making process

Developed through judge made decisions, primarily based on the doctrine of precedent. Statutory law is supreme over it.

Importance of common law

Used to provide a flexible consistent legal system.

What are the main ways courts can avoid, change, or depart from precedent in the appeal process?

1. Overruling a decision, superior court may reconsider a case where the legal principle used was created in a previous judgement of a lower court

2. Disapproving a decision, occurs when a court decides not to follow a previous decision set by a court of the same level

3. Distinguishing a decision, if a court decided that the case before it is different enough to the case used for precedent

4. Reversing a decision, if the higher court finds that the law has been misapplied it will reverse the judgement and substitute a correct one

Rules of interpreting statutes

1. Literal Rule, judges must assess the Act in isolation and apply it in accordance with its words BUT!! this can lead to people being unfairly punished

2. Golden Rule, courts will interpret legislation in a way which will avoid unfair, absurd or inconsistent application if the literal rule= absurd golden rule is used

3. Mischief Rule, court will interpret legislation in a way which is consistent with its intention used when other two don’t work

Ejusdem Generis

Means ‘of the same kind’ where a list of words are followed by more general words, the meaning of the general words is restricted to the same ‘class’ of the words in the list.

Noscuitur a sociis

Means ‘a word known by the company it keeps’ this means that the meaning of an unclear word of phrase can be gained from its context.

Adversarial System

Used in Australia. The belief that justice is best achieved through “a battle of words between two adversaries”. Competition brings the best evidence out. Before an impartial adjudicator.

Inquisitorial System

Used in France. Based on the assumption that the truth is best discovered through an inquiry by an expert adjudicator. Responsibility of investigating the dispute rests with the adjudicator, rather than lawyers. Court lead trial.

Civil Procedure

1. Writ of summons, notifies defendant of legal action

2. Memorandum of appearance, notifies the plaintiff that the defendant intends to contest the case in court

3. Statement of claims, an itemised list of claims and facts provided by the plaintiff, also outlines allegations

4. Statement of defence, intemised list of respsonses to claims, defendant may agree or dispute each claim

5. Counterclaim (optional), defendant may make claims against the plaintiff

6. Discovery, each party prepares a list of documents relevant to the case, parties inspect each others

7. Interrogatories, questions sent from parties to the other, help clarify the facts and deciding what evidence is used

Persuasive vs binding precedent

Precedents are exclusively set by higher courts. All lower courts are bound by the decisions by higher courts (binding precedent). Decisions by courts in the same level are not binding but may be (persuasive precedent).

Rule of Law

The rule of law in Australia is a fundamental principle ensuring that everyone, including the government, is subject to the law, which is applied equally and fairly by an independent judiciary. It safeguards against the arbitrary exercise of power and protects individual rights, underpinning Australian democracy and legal equality.

Judicial Independence

Judicial independence in Australia is a cornerstone of the rule of law, ensuring judges are free from influence by the executive or parliament to decide cases solely on law and evidence. It is protected by the Constitution—specifically Chapter III—which separates the judiciary's power and guarantees tenure and remuneration for federal judges, who can only be removed for proven misconduct. It allows the judiciary to independently review laws made by legislature and actions of the executive.

Accountability (of the lower courts)

Lower courts in Australia (Magistrates/Local Courts) are held accountable through appeals, adherence to binding precedents set by higher courts, and adherence to natural justice. They are accountable to parliament through legislation regulating procedure and to the public through open court proceedings and mandatory publishing of reasons for decisions.

Democratic Legitimacy

The validation of a governing system based on the belief that its power is right, proper, and consented to by the governed. Eg elections.

Define the term Government (2 marks)

‘Government’ in a broad sense is the political and legal system of a nation-state. It consists of institutions and individuals that operate within a framework of laws and traditions, most significantly a Constitution. The Government has a monopoly on the use of force and for this reason it can be dangerous.

Outline the term Liberal Democracy (2 marks)

A democracy in which the rights of the individual are balanced against the will of the majority. There is always tension between balancing the rights of the individual and what the majority of a society want. Key examples include Australia, Canada and New Zealand.

What is meant by the phrase rule of law (2 marks)

Rule of law is a philosophy that states that people should be governed by laws, not the arbitrary use of power. It is a legal system where people obey the laws out of moral obligation, not fear of punishment. The rule of law ensures that everybody is equal before the law and that law making is transparent and open.

Outline what is meant by the term Constitution (2 marks)

The Constitution is a set of fundamental laws that govern governors. It ensures that the Government is held legally and politically responsible for their actions. It is the ‘supreme law’ of a nation and all other laws must conform to it.

Describe the meaning of the term Constitutionalism (2 marks)

Constitutionalism is the idea that power should be limited and not absolute. It includes the culture where people respect the laws that limit power. It emphasises the rule of law, popular soverignty and structured accountable power.

Outline the concept of separation of powers (2 marks)

Separation of powers is the idea that power shouldn’t be concentrated in one person to stop the abuse of power. In Australia we have the three arms of Government as stated in the Constitution. We have the legislature who have the ultimate authority to make laws, executive who administer the laws and judiciary who enforce the laws.

Outline the concept of division of powers (2 marks)

Division of powers refers to how the Constitution distributes law-making authority between federal and regional governments to prevent one person having all the power. Exclusive powers such as defence and currency are held solely by the Commonwealth. Concurrent powers such as taxation and marriage are shared between the Commonwealth and state/territory governments, but federal rules have more power. Residual powers such as education and healthcare are not listed in the Constitution so they remain with the states/territories.

Outline the concept of judicial review (2 marks)

Judicial Review is a process under which executive and legislative actions can be challenged. Judicial review is an example of checks and balances under the separation of powers. For it to be able to happen there needs to be an independent court system.

Outline political rights (2 marks)

Political rights are the rights of individuals to participate in government and civil society. They include the right to protest, free speech and free media. These rights are essential for fostering democratic accountability and protecting individuals from the arbitrary use of power.

Outline what is meant by the concept of federalism (2 marks)

Federalism is divided sovereignty between one national government and two or more regional governments. It depends on two levels of government, each sovereign within its sphere of power. It is an alternative to the undivided sovereignty of a unitary state like Britain.

Outline Sovereignty (2 marks)

Sovereignty is the unlimited authority of a nation-state or a state within a federation to govern itself. In democracy sovereignty is ultimately vested in the people, who elect their governing representatives. In Constitutional democracies like Australia, sovereignty is based on the consent of the people.

Impacts of America on Australia

• strong bicameralism

• constitutional court

• a written constitution

Impacts of Britain on Australia

• constitutional monarchy

• english common law

• bicameralism

Outline constitutional monarchy (2 marks)

A form of government in which the head of state is an inherited position with powers limited by a written constitution or unwritten constitutional conventions. The monarch is almost completely restricted to acting on the advice of an elected representative. An example of this is Australia.

Responsible Government

Westminster convention that states that the executive is drawn from and responsible to the legislative. The concept of responsible government refers to a form of government in which the people are sovereign but are represented in government by elected members of the legislative.

Representative Government

In Australia this means that Anthony Albanese must first be elected as the member for Grayndler and then becomes Prime Minister as he is the leader of the with the majority in the House of Representatives. In Australia representative government is enshrined in s7 and s24 of the Constitution.