Studied by 14 peoplewhat is a representative government?
a government where members are elected by the people to reflect their values and concerns.
what is the role of the govt?
-make laws
-debate issues of national importance
-hold the government accountable in between elections
executive branch
-administers the law
-cabinet, prime minister
what is sovereignty?
the 'authority to govern' within their territory.
legislative arm
the arm of government which creates and modifies laws.
what are the operating principles of a liberal democracy?
-majority rule
-political participation
-political freedom
-equality of political rights
how is a liberal democracy different from a pure democracy?
a liberal democracy protects the rights of all citizens, even those who are not in the majority.
judicial arm
-using the law in action, resolving legal disputes and determining penalties.
-judges
role of parliament
-represent the people who elect them
majority rule
based on popular opinion of the majority and the will in govt+decision making
what are the 3 arms of government?
executive, legislative and judiciary
what is a government?
political and legal system of a nation state
-includes courts, judges, public servants and politicians.
what is a direct democracy?
a democracy in which all citizens take a part in.
political participation
actively taking part in their own government by putting their political rights and freedoms to use
-voting in elections, joining political parties
political rights
-entitlements that are essential to citizens' ability to govern themselves
-voting
political freedom
entitlements people have to participate in their government without any interruption or bias
checks
limits to power
balances
equivalence of different types of power
rule of law?
the rule of law is a philosophy that states that society should be governed by laws, not through the arbitrary use of power but through respect for the law.
-the law must be clear, consistent, coherent and known.
-made in an open and transparent way.
-no one and nothing is above the law, all people and parts of the political system must be subject to the law.
-the purpose of the rule of law is to protect citizens from abuse of power, whereby they follow the law by moral obligation rather than fear.
liberal democracy
a democracy in which the rights of the individual are balanced against the will of the majority.
purpose of a constitution
-by setting limits on the government's power, it ensures the govt is legally and politically held accountable for its' actions.
-prevents abuse of power by government; protecting citizens’ rights
functions of a constitution
outline basic structure of govt
outline division of power
establish how the constitution can be enforced
outlines how the people who serve the government are appointed (how they are replaced, how often they work)
outline limits on what the government can do
characteristics of constitutions
-"higher law" overrides other laws
-they are entrenched
-codeified
-written
constitutionalism
refers to the idea that power should be limited and there is respect for rules that limit power.
political constitution
a set of fundamental laws that "governs the governers"
how should the rule of law be applied?
-the law should apply to all, equally.
-applied to all parts of the political system
explicit rights
those rights which are written in the text of the constitution
implied rights
rights that are not written in the constitution but which the constitutional court have interpreted to exist.
autocracy
a form of government in which political and legal power is unlimited by any constitution.
judicial independence
the courts must be completely free from interference and influence from the government, the parliament of any person.
the separation of powers
the organisation in such a way that prevents the concentration of power in one person or group.
-parliaments should have the ultimate authority to make law (the legislative function)
-prime ministers and their ministers (cabinet) should administer the law(executive function)
-the courts should decide legal cases and disputes (judicial function)
no one arm of government should be able to direct another.
division of powers in a federalist system
-concurrent, residual and exclusive
what is concurrent power?
shared powers between federal and state governments
for example:
-health (covid!!!!)
-education
-some taxation
what is exclusive power?
power that only the central government holds
eg)only the federal government in canberra can make decisions on the military
what is residual power?
“leftover power”
-areas of responsibility not mentioned on the constitution are called state powers
for example:
-state criminal law
-transport
-police
judicial review
the process in which executive and legislative action can be challenged and reviewed by the high court.
purpose: to prevent the executive or legislative from acting out of power.
federalism
a system of government in which sovereignty is geographically divided between on central and two or more regional governments, each sovereign.
purpose of federalism?
to prevent abuse of power through the concentration of power in the hands of one body.
constitutionalism
the idea that power should be limited. includes a culture where there is respect for the law
political constitution
a set of fundamental laws which “govern the governors”
difference between division of powers and separation of powers
division of powers in a federalist state refer to the different levels of government (federal, state/territory), whereas separation of powers are the different arms inside the government (legislative, executive, judicial)
responsible government
the idea that the executive is drawn from and responsible to the legislative arm.
this only occurs in parliamentary systems in which the executive are also members of the legislative.
characteristics of good laws
→legitimacy
→universal
→clarity
→prospective, not retrospective
→enforceable
→appropriate remedies
→flexible
how do legal systems function well?
when people follow the law out of moral obligation, not out of fear.
characteristics of laws
-applicable all the time
-applicable to a whole population
-applicable to a geographical jurisdiction
-the population which the law applies to must sovereignty
-laws have jurisdiction
source of constitutional law
-created by the referendum (greatest legitimacy)
source of statutory law
made by parliament
common law
made by unelected courts when new precedents are created
characterisations of law by jurisdiction
-which level of government created the law (fed, state)
-international law (special. different)
-commonwealth/fed law (parliament in canberra)
-state law(parliament of WA)
how do constitutional law and statutory law interact?
constitutional law is the ultimate law in australia.
→if a statute is inconsistent with the constitution, it is invalid.
how do statutory and common law interact?
statutory law overrides common law where there is an inconsistency between the two.
parliamentary sovereignty
a sovereign parliament
geographical jurisdiction
the land and sea which the law applies to
fed - entire country
state - subnational regions
features that ensure the high court stays independent
-highest court of appeal
-appointment, tenure and removal
-”special leave” must be given to appeal
statutory interpretation
the process by which judges interpret the words or phrases in statute in order to give the words meaning.
when is statutory interpretation needed?!
The need for statutory interpretation occurs when a case is brought before a court in which there is a dispute about whether the words of a statute apply to the facts relating to the dispute.
why is is necessary for courts to interpret statutes ?
→statute may be unclear
→meaning of words can change over time
→the act may be silent on an issue
→the intention of the act is not clear
→inconsistencies in the act
→unclear definitions of particular words
rules of statutory interpretation
→mischief rule
→golden rule
→literal rule
literal rule
Judges must assess the Act in isolation and apply it exactly in accordance with its words.
→however, this can lead to people being unfairly ‘caught’ breaching the act, leading to absurd outcomes.
example of applying literal rule
“Pedestrians are not allowed in the freeway.”
→a person whose car has broken down and is walking to the emergency phone is in breach of the law if the words are interpreted literally.
This is not a fair outcome.
golden rule
courts will interpret legislation in a way which will avoid unfair, absurd or inconsistent applications of the Act.
—the court will look at the general aim of the statute to interpret an inconsistent Act.
If the literal rule yields an absurd outcome, the judge will apply the golden rule.
example of applying golden rule
“Pedestrians are not allowed on the freeway”
thus, ‘pedestrian’ is interpreted so as not to include people walking to freeway phones in an emergency. Such people are not ‘pedestrians’ and can’t be charged under the Act.
mischief rule
the court will interpret the legislation in a way which is consistent with the intention or stated purpose of the law—the ‘mischief’ it was meant to remedy (second reading speech in parliament)
example of applying mischief rule
“Pedestrians are not allowed on the freeway”
Mischief: parliament is clearly aiming to prevent people walking on the freeway as regular pedestrians, not trying to prevent broken motorists from seeking help.
extrinsic and intrinsic materials
established authorities and legal principles
extrinsic materials
documents which do not form part of an Act but can be used in court to assist in the interpretation of that Act
intrinsic materials
reference to other sections of the same act
legal maxim
Legal maxims are unwritten rules that guide legal professionals such as judges in their work.
→developed by courts as another way to read unclear statutes
ejusdem generis
‘of the same kind’
noscuitur a sociis
‘a word known by the company it keeps’
example of ejusdem generis
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.
example of noscuitur a sociis
in deciding the meaning of ‘scraps’ of meat in European laws on the export of beef, the judge ruled it meant pieces of meat unsuitable for human consumption, as it was in context with words ‘large tendons, cartilages and pieces of fat’.
civil case
a dispute in which a private party is the plaintiff and the defendant is accused of a civil wrong.
criminal case
a dispute in which the State is the prosecuting party and the defendant is accused of a crime.
adversarial legal system
the trial system used in common law countries.
→’council-led trial’
→based on the idea that justice is best achieved through a ‘battle of words’ between adversaries
inquisitorial system
a trial system used in civil law countries (Indonesia, France)
→’court-led trial’
→based on the idea that the truth is best discovered through inquiry of an expert (i.e. the judge)
adversarial vs. inquisitorial
adversarial system trials are council-led trials, whereas inquisitorial system trials are court-led trials.
idea of the hearsay rule
if the court is to discover the truth, it is essential that parties have the opportunity to verify the information provided by the witnesses, which is difficult to do if the court receives evidence in writing or via a third party (and are therefore unable to cross-examine the person).
example of intrinsic materials
→preamble
→definitions
example of extrinsic materials
→standard english dictionary
→legal dictionary
characteristics of a criminal trial
-the defendant does not need to prove their innocence, the persecution needs to prove they are guilty.
-has a persecution who brings the charge to court
summary offence
less serious offences that are dealt with by summons (order) before a magistrate in the Magistrates Court
indictable offence
are more serious offences often involving an arrest, with the offender having a right to a trial by jury before a judge in either the District Court or the Supreme Court.
The pre-trial procedure for an indictable offence is more complex
-may include a bail or remand or detailed police investigation
example of summary offence
traffic offence
example of indictable offence
violent assault, manslaughter, sexual assault
what is bail?
The money put up by a person accused of a crime to assure the court they will re-present themselves on the trial date. Bailing allows the accused to remain free until the trial date. Bail will not be granted if the accused is considered a danger to society.
what is remand?
the act of holding a person in detention between their arrest and trial. Remand is used when it is believed that the accused is a danger to society and is likely to fail to appear for trial.
what is jury duty?
the process by which ordinary citizens become directly involved in the administration of justice in WA by serving as jurors in the District and Supreme Courts.
how are juries selected?
The Electoral Commission will select by ballot the required number or jurors from the electoral roll.
who can be a juror?
Any person on the Western Australian electoral roll is liable to serve as a juror, except for: —persons over 70 years
who is disqualified from jury duty?
Persons excluded by the Juries act 1957 including Judges, Police Officers, Lawyers, Members of Parliament.
Persons convicted of an offence and sentenced to life imprisonment or an imprisonment exceeding two years
People who have in the last five years:
-served a sentence of imprisonment or been on parole
-have been found guilty of an offence and detained in a juvenile detention centre
-have been the subject of a parole order or community order.
how can jury duty be excused?
-A person’s business or occupation makes it difficult to participate in jury duty at the time requested
-The person’s physical health
steps to empanelling a jury?
When a jury is required, the Jury Supervisor calls approx. 20-40 people from the jury pool (selected by ballot) to form the jury panel for that trial.
Of the 20-40 people selected, named are then drawn by the ballot. The jury who is selected then stands and walks to the jury box.
If no challenge (objection) is made then the person is ‘empanelled’ (enrolled) by taking an oath and becomes a member of the jury.
This process continues until 12 people have been selected. The remaining people who were not selected are free to go.
how can jurors be challenged?
Each party may challenge up to 3 jurors without giving a reason ( peremptory challenges )
In addition, the prosecution or an accused may challenge a juror ‘for cause’ — on the ground that the juror is not qualified by law to act as a juror or that the juror has a relationship with the accused.
*The trial judge decided on the facts in such a challenge.
The process of empanelling jurors continues until the required number of jurors has been empanelled.
can there be more than 12 jurors?
yes, there can be more than 12 jurors.
up to 18 jurors can be empanelled this occurs if the trial is to extend beyond a few days.
the large jury is required as a safety net, in the event of death or illness.
what happens if a unanimous verdict has not been decided after deliberation
a hung jury will occur and the judge will discharge them.
what is ‘hung jury’ ?
Jury that cannot agree upon a verdict after extended deliberation and is unable to reach the required unanimity or supermajority
what are the potential reasons for punishing offenders?
1)deterrence
2)incapacitation
3)rehabilitation
4)retribution
5)restoration
what is ‘just punishment’
-punishment must be of the offender
-only imposed if the criminal had responsibility for their actions
-the punishment must be proportional to the crime
-must be imposed by a judge
-should apply the principles of natural justice
what is ‘natural justice’?
a principle of justice incorporating:
-the rule against bias
-the right to a fair hearing
-courts have a duty to act fairly.
Note 
Flashcard (24)