Common Law

Democracy

A system of government where the power is vested in the people, the country is ruled by the people

Sovereignity

The right to govern a territory and it’s people, power is vested in its rulers

Direct democracy

All citizens directly exercise their sovereignity, all laws and policies are decided by the people themselves without a representative member, only works for a small population

Liberal democracy

Based off the idea of liberalism; all people have basic entitlements. It’s operating principles include majority rule, equality of political rights, political freedoms, political participation, a direct democracy cannot function by these principles

Representative democracy

Allows millions of citizens to enjoy political rights and participate in government by electing a representative member into government, the elected member represents the majorities values, comes in several forms including constitutional monarchies (UK and AUS) and democratic republics (USA)

Illiberal democracy

Fails to protect the weak and vulnerable, i.e minorities

Majority rule

2 principles; legislatureis drafted to reflect the popular will, an executive is elected to execute legislature

Political rights

Entitlements essential to citizens ability to govern themselves, enables political participation

Political freedoms

Entitlements enabling people to participate in government, include freedom of speech, assembly, association and press - mainly protected by common law

Political participation

Occurs when people exercise their political rights and freedoms to influence government and law making

Rule of law

The belief that all members of society are equal subjects before the law, no one is above or below the law, it must apply universally, be know, consistent and coherent, be supported by equality before the law (undiscriminatory), be upheld using effective methods

Separation of powers

Creates checks and balances on each branch, legislative is the most powerful (parliamentary sovereignty), executive carries out the law, judiciary holds legislative and executive accountable

Judicial independence

Leg. and exec. must have some overlap, judges must be a-political, courts are independend from leg. and exec., - s. 75 and 76 allow courts to ensure leg. and exec. follows the constitution, judges are appointed by the executve and can only be dismissed by the legislative

Structure of the Australian Constitution

Chapter 1: The Parliament - legislative power is vested in parliament and the queen

Chapter 2: The executive - executive power is vested in the queen and exercised through the governer general

Chapter 3: The Judicature - judicial power is vested in the high courts and all other courts

Chapter 4 - 7: Finance and Trade - creation of an economic union, the states, new states, miscellaneous

Chapter 8: Alteration of the constitution - double majority referendum

Types of law in Australia

Constitution (superior law), statute law (ordinary), common law (ordinary), delegated law (subordinate)

Making federal (statutory) law

Bill is proposed, agreed on by HoR after members debate and vote, agreed by Senate after members debate and vote, signed by GG (royal ascent) - becomes an act of parliament and becomes a law

Almost all bills are introduced by government ministers, members and senators can suggest ammendments to the wording of the bill, 90% of bills become a law

Functions of Parliament

Forum for debate of political issues, holding the government accountable, scrutinising government and policies, electing and dismissing executive members, representation of the public, creating new legislation (statutory law)

Sources of legislation

Internal: laws formed from party policy, made through public service advice, proposed by private members, suggested by committees and commisions

External: encouraged by pressure groups, public opinion, media and outside experts, proposed by individual law reform groups

Good legislation: has received input from a wide variety of stakeholders inside and out of parliament,part of a mandate of the elected government, subject to effect scrutiny throughout parliament

Common law

Created by the courts, established through 2 types of precedent binding; set by the high court and must be followed by all courts, persuasive precedent; used as judgement, mostly created by lower courts

Ratio decendi: reason for decision

Obiter dictum: statements by the way, judge’s opinion

Constitutional law

Superior form of law, established jurisdiction of power, forms 3 branches, outlines government processes, codifies procedure for constitutional change

Statute law

Acts of parliament/legislation

Delegated law

Law passed on to lower levels of government

Role of the courts

Primary function: resolving disputes
Secondary function: making new laws through dispute resolution

Doctorine of precedent

Decisions must be applied equally

S. 71

Judicial power is vested into the high court, other courts are created by the parliament, high court consists of a chief justice and not less than 2 other justices

S. 72

Justices are appointed by the G-G (executive), shall not be removed except by GG on command from HoR and Senate, remuneration fixed by parliament - cannot be diminished during time in office

S. 73

Appellate (appeal) jurisdiction, established the high court as the highest court of appeal

S. 75 and 76

Roles of the courts; interpreting constitution, observes aruements between state and federal government, protects the rights of australians, international treaties

Disapproving binding precedent

Lower court judges can express their disapprobal of precedent to encourage appeal

Reversing a decision

During appeals courts review the evidence and ratio decedendi, can substitute their own ratio decedendi if necessary to reverse the decision

Distinguishing a case

Judge believes facts are not similar enough to the cases before them

Overturning old precedent

Overturning outdated precedent to avoid injustices from old common law