Sources of Law

What does supremacy of Constitutional Law mean?

Every person and organisation as well as institutions of government are bound by the principles in constitutional law.

What does it mean that the Australian Constitution is supreme?

All laws of the nation draw their authority from it.

What does equality before the law mean?

No one is above the law, whatever their social, economic or political position.

What does existence of fundamental human rights mean?

All institutions of government must exercise power knowing that individuals have fundamental rights at all times and under all circumstances. Laws cannot be made to remove these rights.

What are the 3 features of the rule of law?

Australian Constitution supremacy, equality before the law, and the existence of fundamental human rights.

What is Constitutional Monarchy?

A system of Government where a British King or Queen is the hereditary head of state who exercises power in accordance with a written constitution.

What is Monarchy?

Where executive power is vested in the British King or Queen.

What is a Republic System?

Where a nation elects their own head

Explain the federal nature of the Commonwealth

Australia’s federation is currently the union of six independent states, three self-governing territories and one national government. 

Why do we need laws?

To prevent conflict and the infringement of rights

What is a legal system?

A framework of rules and institutions that govern a community

What is the separation of powers?

The arms of government act as checks and balances on each other’s power

Why do we need the separation of powers?

To protect human rights, as it prohibits arbitrary power, so that no one person or body of people become too powerful

How is power balanced?

By spreading the power between those who make the law (the legislative), those who enforce the law (the executive) and those who apply the law (the judiciary)

What is the Australian Constitution?

A legal document setting out the basic laws for the government of Australia

What is the purpose of the Constitution?

To define how power is shared within Australia

Why is the separation of powers incomplete?

The legislative and the executive overlap, as the leaders of the executive also sit in Parliament

What is judicial independence?

Judges must be free from interference, pressure or intimidation

Why is an independent judiciary imperative for democracy?

So disputes are resolved fairly, without bias and government interference

Which branches of government overlap in Australia’s Westminster system?

In the Westminster system which Australia adopts, the legislative and executive branches overlap, but the judiciary remains separated

How does judicial independence link to the Rule of Law?

It upholds equality before the law through impartial decision making and protection of arbitrary power

List some rules around judge appointment and dismissal

Federal judges are appointed by the government, but can only be dismissed by the parliament as a whole, and they can only be dismissed for proved misbehaviour or incapacity

Explain the permanency of Tenure

Judges are guaranteed employment, so their decisions aren’t made through fear of losing their jobs because of external pressures.

What age must judges retire at?

70

What is Fixed Remuneration?

A constitutional rule prevents the parliament from lowering a judge’s salary to the point where they must quit or retire

Why is Fixed Remuneration important?

It stops external pressures acting on the judges decisions

What is judicial privilege?

Judges need to have freedom of speech, without fear of being sued for defamation, however they must act professionally

What is laws made by judges called?

Case law

What is case law?

Laws made by judges to resolve an issue

How do judges make law?

Through judicial pronouncement and statutory interpretation

What is judicial pronouncement?

A judge creates case law where there is no current law in place to resolve the legal dispute, using past decisions to guide them

What is statutory interpretation?

Where judges give meaning to words or phrases in legislation to resolve a legal dispute

Why is representative government described as “indirect democracy”?

Because laws are not voted on by the people, only representatives are

What is delegated legislation

Law made by an authority other than Parliament

Who can make delegated legislation?

Ministers, government departments and local councils

What are some reasons for delegated legislation?

Efficiency, flexibility and local issues

Types of delegated legislation

Regulations, rules, by-laws and proclamations

What is an example of regulation in delegated legislation?

Road traffic rules under Road Safety Act

What is an example of rules in delegated legislation?

Court procedural rules

What is an example of by-laws in delegated legislation?

Local council parking or noise rules

What is an example of proclamations in delegated legislation?

When the Governor-General brings an Act into effect