ASSESSMENT 1 Flashcards
Part I: The Legal System - Basic Legal Concepts - Sources of Contemporary Australian Law + Common Law + Statute Law + Constitutional Law + International Law (172 cards)
1
Q
define law
A
A set of rules imposed on all members of a community that are officially recognised, binding and enforceable by persons or organisation such as the police and/or courts
2
Q
define customs
A
collective habits or traditions that have developed in a society over a long period of time
3
Q
define rules
A
Rules are regulations or principles governing procedure or controlling conduct
4
Q
how are laws similar to rules
A
They are both a set of instructions that typically have the interests of the people in mind to keep them safe
5
Q
how are laws different to rules
A
- Enforceable - laws can be used against a person if broken
- Applicable to all members of a society - rules only apply to that group/community
- Laws are officially recognized whilst rules are not
6
Q
how are laws similar to customs
A
Both are a guidance for behaviour within a society, defines the accepted and unaccepted
7
Q
how are laws different to customs
A
- Customs are subject to change - customs are different for particular groups, such as religious groups having different customs
- Laws are enforceable - not all members of a society are made to follow customs in contrast to law being enforceable on all peoples
- Laws are known - laws are written down and known whilst customs are learned by living within that society
8
Q
define values
A
The principles, standards or qualities considered worthwhile or desirable within a society
9
Q
define ethics
A
doing the right thing
10
Q
acronym for remembering the characteristics of just laws
A
CAKES
11
Q
characteristics of just laws
A
C current: laws that provide for and regulate the future acts of people
A accepted: laws must reflect the values of society
K known: laws are accessible and known to all people
E enforceable: laws must be enforceable by police and/or courts
S same: laws must treat everyone equally
12
Q
legislation relating to the nature of justice
A
Article 14 of the ICCPR
13
Q
define equality
A
Everyone should have equal access to the law and the law should treat everyone equally as no one is exempt or ‘above the law’
14
Q
define fairness
A
The law is applied impartially without bias, prejudice or discrimination (no one should have greater advantage than another before the law)
15
Q
define access
A
The law should be financially, physically and psychologically accessible for everyone
16
Q
define doli incapax
A
Incapable of wrong
- The presumption that a child under the age of 10 years old cannot be held legally responsible for their actions and cannot be guilty of a civil or criminal offense
17
Q
define justice
A
the legal principle of upholding generally accepted rights and enforcing responsibilities, ensuring that equal outcomes are achieved for those involved.
18
Q
what is procedural fairness
A
The body of principles used to ensure the fairness and justice of the decision making procedures of courts in Australia. It generally refers to the right to know the case against you and to present your case. The right to freedom from bias by decision makers and the right decision based on relevant evidence.
19
Q
what are the 3 rules in relation to procedural fairness
A
evidence rule, bias rule and fair trial rule
20
Q
what is the fair hearing rule
A
The fair hearing rule is the rule that the decision maker must give a person the opportunity to be heard before they make a decision that affects them. Everyone has the ability to present their case.
21
Q
what is the bias rule
A
The rule that the decision maker must not be biased in a way that prevents them from making a decision that is objective and impartial. A decision maker must be free of any bias as well as being free of any apprehension of bias. Must be a fair minded layminder.
22
Q
what is the evidence rule
A
The finding of an investigation needs to be based on evidence which is persuasive and reliable. The decision maker should only take into consideration the information that is relevant.
23
Q
what is the legislation relating to procedural fairness - and the elements of it
A
Article 14 of the ICCPR
- entitled to a fair and public hearing
- all persons should be equal before the courts
- POI
- tried without undue delay
- not compelled to testify against himself or to confess guilt
24
Q
define complaint
A
any formal legal document that sets out the facts and legal reasons that the filing party or parties believe are sufficient to support a claim against the party or parties against whom the claim is brought that entitles the plaintiff to a remedy
25
define plantiff
a party who initiates a lawsuit before court
26
example of a case that demonstrates the importance of procedural fairness
The importance of procedural fairness for justice is demonstrated in Dietrich v The Queen (1992). In this case, Mr Dietrich was found guilty of drug trafficking, but during his trial he did not have legal representation because Legal Aid refused to represent him unless he pleaded guilty. (Therefore denying procedural fairness as article 14 of the ICCPR states on should not be compelled to confess guilt)
27
explain the rule of law triangle
28
define rule of law
No one is above the law
29
how is the rule of law protected and separation of powers in australia explained and example of a country with and without seperation of powers
The rule of law is protected by checks and balances, also known as the separation of powers. The separation of powers is written into the Australian constitution, which is the legal document that sets out how Australia is governed - the constitution can only be changed with a referendum. Eg Australia has a separation of powers whilst Russia does not
30
legislation relating to origin of rule of law
The rule of law was established in the Magna Carta in 1215 which subjected the king to the law - this is now encapsulated in the Australian constitution.
31
access to justice/legal system for all people (the rule of law)
People who need the legal system to resolve a dispute or make a decision about whether they have broken a law, can go before a court of law and be able to receive a legal decision regardless of their status in society.
32
what is the magna carta
The magna carta is an important document in legal history which set out many of the principles on which we base the rule of the law. It was granted over 800 years ago in 1215, but the ideas about access to the courts, due process and that judges should know the law and follow it remain as important now as they were.
33
what are the elements of the magna carta
- the king is no longer exempt from the law
- we are ruled by the law and the law alone, punishment could only be given for a breach of the law and must be fit and fair
- must be a qualified independent jury that is not coerced by the king
- a fair trial must include an independent court, be open to the public, held promptly without undue delay and the accused must be considered innocent until proven guilty.
- the magna carta must be known to all
34
define anarchy
a state of lawlessness or political disorder due to the absence of governmental authority
35
define tyranny
a cruel, harsh, and unfair government in which a person or small group of people have power over everyone else.
36
case example of anarchy
Jan 6th 2021, capital riots
Anarchy in America was seen in the 2021 “capital riots” where the United States Capitol Building was attacked after the recent election of President Joe Biden.
37
case example tyranny
North Korea
The United Nations reports that thousands of enforced disappearances have been perpetrated by the State over the past 70 years (UNSC Meeting Notes, Democratic People’s Republic of Korea Increasingly Repressing Its Citizens Human Rights, Freedoms, High Commissioner Warns Security Council, August 2023),
38
similarities of anarchy and tyranny
- Lack of individual freedom
- absence of a fair legal system (none or oppressive)
- concentration of power either in group (anarchy) or individual (tyranny)
- political and social instability
39
differences of anarchy and tyranny
- anarchy = no government whilst tyranny is an oppressive government
- no laws for anarchy and strict laws for tyranny
- different potential outcomes - lawlessness and civil wars with anarchy and dictatorship and oppression for tyranny
40
describe how common law originated in england, when it was introduced in australia and what happened before common law
First developed in England, therefore often referred to as ‘British common law’. The law was introduced in Australia following the 1788 settlement. Before the common law, means of trialing the guilty were through trial by ordeal and battle. Trial by ordeal followed the belief that god knew who was innocent as those left unmarked by the heat stamp were innocent. Trial by battle was when the accused and victim would fight to prove who is innocent.
41
what is a remedy
when a court either enforces a right or orders redress for a wrong. Common law has one form of remedy; known as damages.
Common law damages is a payment for a common law claim
42
define common law
a collection of legal principles and rules that are derived from the decisions of judges in higher courts (eg via precedent), also referred to as judge made law
43
explain why common law is not suitable in all cases and what is used instead
The law of equity is the body of law that supplements the common law and corrects injustices by judging each case on its merits and applying principles of fairness
- Does not always provide a solution as its not specific
44
main principles of equity laws and eg of them
To modify a remedy in common law that is deficient or to create a new remedy (eg injunction)
- Used to be more nuanced
- Remedies in equity may include injunction and specific performance
45
how are common and equity laws used together
- Each case must be judges on its own merits
- Intentions of parties must be taken into account
46
define equity law
The body of law that supplements the common law and corrects injustices by judging each case on its merits and applying principles of fairness
47
define precedent
a judgement/legal principles that provides guidance for deciding cases with similar facts
48
similarities in equity and common laws
- both used to set a precedent to make compensation fair
- intentions of both parties in mind
- both involve remedies
49
differences in equity and common laws
- different origins (common in england and equity to resolve deficiency)
- common deals with damages only whilst equity deals with damages, injunction and specific performance
- each have their own divisions in the supreme court
50
example where common law was not suitable so equity law was better
The Flying Fox Case involved an application by a conservationist to restrain the mass culling of Spectacled Flying Foxes by a large aerial electric grid on a 60ha lychee farm in north Queensland. In this case, common law remedies in damages are not suitable, therefore remedies should be modified to suit the case.
51
describe an adversarial system of trial and a country that uses it
Common law countries use adversarial systems to determine facts in the adjudication process. The prosecution and defense fight against each other, the judge serving as the referee. It assumes the best way to get the truth of a matter is through a competitive process to determine the facts. Eg Australia and any of there cases
52
describe an inquisitorial system of trial and a country that uses it and eg
It is characterised by pre-trial investigation and integrations with the objective to avoid bringing an innocent person to trial. Described as an official inquiry to ascertain the truth. Grants more power to the judge who oversees the process. Eg Indonesia and the Bali nine
53
goal of adversarial system
Focuses on justice through a fair trial where the prosecution must prove guilt beyond a reasonable doubt.
54
role of parties in adversarial system
Control their own case (choose evidence, witnesses, and arguments). The prosecution aims to win, while the defense seeks to cast doubt.
Procedural fairness is ensured. Early guilty pleas may reduce sentencing (up to 25%).
55
role of judge in adversarial system and role of jury in adversarial system
JUDGE: Passive and neutral.Ensures procedural fairness but does not investigate. Decides the sentence in criminal cases
JURY: Used for indictable offenses only. Determines questions of fact. No transparency in jury decisions.
56
standard proof and evidence for adversarial
STANDARD PROOF: Prosecution must prove guilt beyond a reasonable doubt.
EVIDENCE: Mostly oral, with cross-examinations. Right to silence (no inference can be drawn from it). Hearsay evidence is generally not allowed. Prior convictions are usually not considered in sentencing.
57
legal representation for adversarial system and example of an adversarial case
needed for a fair trial. No automatic right to legal representation, but in some cases, it may be necessary (e.g., Dietrich v The Queen, 1992).
58
inquisitorial system goal
Focuses on truth-finding rather than winning a case.
59
inquisitorial system role of parties
Observe proceedings and provide statements.Follow court directions. Prosecutor acts as a neutral investigator. No plea deals for early guilty pleas.
60
inquisitorial system role of judge and jury
JUDGE: Actively controls the investigation. Selects witnesses and decides relevant facts. Questions parties directly.
JURY: Some jurisdictions allow juries, mainly for serious offenses. In some cases, three judges may be used instead.
61
standard proof and evidence for inquisitorial
STANDARD OF PROOF: No strict standard of proof; must be enough evidence to prove guilt.
EVIDENCE: Hearsay and prior convictions are allowed. Mainly documentary evidence (dossier format). No assumed right to silence. The judge collects evidence and relies less on judicial precedent.
62
legal representation in inquisitorial
Limited role compared to the adversarial system. Mainly supports the accused and explains legal proceedings.
63
Key Differences Between Adversarial and Inquisitorial Systems
1. Role of the Judge
Adversarial: Passive, neutral, ensures procedural fairness but does not investigate.
Inquisitorial: Active investigator, controls proceedings, selects witnesses, and questions them directly.
2. Role of Legal Representation
Adversarial: Essential for a fair trial; lawyers lead the case and argue on behalf of their clients.
Inquisitorial: Limited role; mainly supports the accused and explains legal proceedings.
3. Standard of Proof
Adversarial: Prosecution must prove guilt beyond reasonable doubt.
Inquisitorial: No strict standard; the judge determines if there is sufficient evidence to prove guilt.
64
reasons for a court hierarchy
- specialist: familiarity for lawyers if they have a specialty
- efficiency: makes it streamlined and quick
- system of review in the appeals process (to a higher court, you can only appeal if there is new evidence or a breach of evidence or rule of law)
- precedent (applies to lower down courts) to ensure the law is consistently applied
- appeals in general
65
what are the two types of precedent
Binding and persuasive
66
binding precedent (2 forms)
Stare decisis: decision followed by lower courts
Ratio decidendi: legal reason for judge for the judge decision (binding on lower courts
67
persuasive precedent
Obita dicta: remarks made by judge which are not part of the decision
Superior courts do not have to follow lower courts but can choose too
68
what is bail
an agreement made after the accused has been charged
The accused will attend court if they have been charged, but the accused will not be held in custody while the matter is in court
69
If an accused is charged with an offense the police may
- Give you a court attendance notice and no bail needed
- Release you on bail
- Refuse to give you bail
70
what is the purpose of bail
- Innocent until proven guilty (upholds the POI and thus the rule of law)
- Not series charges have no need for incarceration
- It is expensive to incarcerate (more than bail)
- Arbitrary detention (article 14 ICCPR)
71
impact of bail on the victim
- victim may feel unsafe with an offender on bail (mental health impacts of the chance of recidivism)
- the witnesses may feel targeted or unsafe
72
impact of bail on the offender
- upholds the POI (good for offender)
- ensures no arbitrary
73
impact of bail on the society
- denies society with the comfort and safety of a potentially dangerous individual at large
- reinforces rule of law
- less expensive than prison
74
bail legislation
Bail act 2013 NSW
75
example of bail
Post and boast:
- Minns government introduced new youth crime laws to make it harder for young repeat offenders to be given bail. Young teens have been stealing cars and then posting the process of this to social media to ‘brag’. In response to this the government made it extremely hard for youths to get bail and incarcerating them instead.
76
recent bail legislation nsw
Bail and crimes amendment bill 2024 (NSW)
77
International instruments that the Bail and crimes amendment bill 2024 defies
- ICCPR
- Article 14 saying the POI
- Article 14 saying we should be promoting rehabilitation
78
International instruments that the Bail and crimes amendment bill 2024 defies
- CROC Article 37
- not developing crucial life skills (school)
- is it in the child's best interest
- detention should be a last resort
79
outline the steps of the legislative process
Step 1: House of Representatives
1st Reading: The bill is introduced.
2nd Reading: Members debate and vote on the main idea.
House Committee (Optional): A public inquiry is conducted, and a report is given.
Consideration in Detail (Optional): Members discuss and suggest changes.
3rd Reading: Members vote on the final version of the bill.
Bill Passed: The bill moves to the Senate.
Step 2: Senate
1st Reading: The bill is introduced.
2nd Reading: Senators debate and vote on the main idea.
Senate Committee (Optional): Public inquiry and report.
Committee of the Whole (Optional): Senators discuss and suggest changes.
3rd Reading: Senators vote on the final version.
Bill Passed: The bill moves to the Governor-General.
Step 3: Governor-General
Royal Assent: The Governor-General signs the bill.
Bill Becomes Law: It is now an official Act of Parliament.
80
how can the order of the legislative process change
Its dependent on who brings the bill, eg the senate can be first if the senate brings the bill up
81
other information on the steps of the legislative process
- The Senate may refer the bill for more inquiry before voting.
Not all bills go through the optional steps.
- If the Senate makes changes, the bill may go back to the House for approval.
82
what is the Bail and crimes amendment bill 2024 (NSW) act addressing
repeat offending of young people on bail (increased car theft) resulting in no bail for this action
83
what section of the bail act is being changed and who are the key stakeholders
section 22C part 3, division 2A of bail act 2013
- offenders are 14-18 / accused
- victims
- police
84
what is the concern of the community and the concern of the young people relating to the Bail and crimes amendment bill 2024 (NSW) act
- social media posts are causing further harm to community and or victim (public ridicule)
- increased offending
- increased young people in detention
- not ‘closing the gap’
85
Effectiveness of the Bail and crimes amendment bill 2024 NSW on community safety (highly effective and ineffective)
Prioritises community safety
Ineffective
Other criminals on bail may be more dangerous
86
Effectiveness of the Bail and crimes amendment bill 2024 NSW on the young offender
Might reduce youth crime rates
Lead to a lifetime of crime
87
Effectiveness of the Bail and crimes amendment bill 2024 NSW on rehabilitation
Provides other offenders the chance to rehabilitate
Does not achieve rehabilitation (defying CROC)
88
Effectiveness of the Bail and crimes amendment bill 2024 NSW on the consistency with international law
Protects the rights of citizens
Not consistent of the ICCPR or CROC
89
define delegated legislation
Delegated legislation is legislation made by authorities that are responsible to parliament but not elected to parliament and are subordinate to it
90
reason for delegated legislation
Parliament doesn't have the time or expertise to pass every law that is required each year therefore it necessarily gives some of its power to other organisations to make laws
91
what are the two types of legislation
Primary legislation - act of parliament also known as statutes
Secondary legislation - delegated legislation of which there are 4 types
92
what are the four types of delegated legislation
Regulations: laws made by the governor general, state governors or members of the executive council, usually to add detail to primary legislation
Ordinances: laws made for Australian territories eg Norfolk Island act in 1979
Rules: legislation made for government departments usually made by the department involved
By laws: laws made by local councils which are restricted to the area governed by that council
93
delegated legislation by laws example
randwick council passes a by-law limiting the consumption of alcohol in parks, beaches and streets on Australia day
94
Why is delegated legislation necessary? (6)
1. Lack of parliamentary time
2. Allows for detail to be added at a later date
3. Makes use of local knowledge eg by-laws for local people
4. Makes use of expert technical knowledge
5. Easier to amend than an act of parliament
6. More time can be taken to consider secondary legislation
95
what is parole
is the supervised release from prison. The person serving their sentence while being supervised and living in the community. If they violate their parole agreements they can go back into prison.
96
what is a head sentence
maximum sentence before release
97
what is the non parole period
the minimum time a person must serve in prison before they can apply for parole
98
why is parole important
Parole is important as it is a structured way to integrate people into society. It is safer for the public and is aimed at rehabilitation for the offender
99
what is trial by media
the impact of television and newspaper coverage on a person's reputation by creating a widespread perception of guilt or innocence before, or after, a verdict in a court of law.
100
what are the five sources of law in order
1. Common law = case law (judgements from courts)
2. Statute law = legislation (federal, state, local)
3. Constitutional law = the constitution
4. Customary law = original inhabitants law
5. International law = international instruments (eg ICCPR)
101
BOCSAR stat on parole
BOCSAR - In 2016 30% of parole cases were unsuccessful
102
102
parole legislation
Crimes (administration of sentencing) Act 199 NSW
103
parole example
Terrance leary: Leary murdered 17-year-old Vanessa Hoson after she rejected his advances and was serving 22 years in prison.
He was later released on parole in 2016, where he attempted to rape a woman in Hunters Hill at a bus stop and was re-arrested.
104
parole quote
“His slip up will cause the same devastation to another family” - first victim's sister. From the SMH Stephanie Gardiner
105
what is the constitution
set of rules that sets out how an organisation or country is being governed, how the organisation or country decides who will have power and how that power will be exercised.
(The constitution of a country sets up the system of government for that country
106
what are the 6 key features of the australian constitution
- Nation consists of 6 states
- Bicameral federal parliament (lower and upper houses)
- High court of australia established
- The division of power
- The separation of power
- Constitution can only be altered by referendum
107
outline of the division of powers
The constitution allows for lawmaking powers to be divided between the commonwealth, states and territories and local government
108
what are the 4 types of division of powers
specific, exclusive, concurrent and residual
109
specific powers
these are lawmaking powers given to the federal parliament and listed in 51 and 52 of the constitution. They provide the commonwealth with the power to make laws for ‘peace, order and good government of australia’
110
exclusive powers
section 52, 86, 90 and 122 are all exclusive to the federal parliament and are not shared with the state
111
concurrent powers
the power to make laws in many but not all of the areas listed in section 51 of the constitution. This is shared with the states and are concurrent powers.
Section 109 of the constitution says federal will override state legislation
112
residual powers
the law making powers of the states are not written in the constitution. These are the law making powers each state can agree too.
113
constitution legislation
Commonwealth of Australia constitution act 1900
114
tasmanian dam case
division of powers case
The commonwealth had no power over the construction of the dam in tasmania. The commonwealth intervened arguing the area was patrolled under the international instrument of the world heritage convention and the passed the world heritage conservation act in 1983 to stop the dam
division of powers case
115
Examples of what each division of power is responsible for: Federal
- Defense
- Trade
- Tax
- Immigration
- Foreign affairs
116
Examples of what each division of power is responsible for: States/territories
(territories follow state model but the federal retains the right to legislate for the territories)
Schools
Prisons
Hospitals
Mining
Public transport
117
Examples of what each division of power is responsible for: local
Local roads
Parks
Waste disposal
Library
Street signs
118
define statutory law
Statutory law refers to any law that is detailed in legislation (laws passed by parliament). Legislation may be Commonwealth (relevant to all of Australia), state or territory. If there's a conflict, Commonwealth statutory law takes priority over state or territory laws.
119
parole law
crimes (administration of sentences) act 1999 NSW
120
2014 lockout laws case (can use on impact of laws on society)
The 2014 Sydney lockout laws were introduced to reduce alcohol-related violence. They imposed a 1:30 AM lockout and 3:00 AM last drinks for bars and clubs in Sydney's CBD and Kings Cross. The laws also restricted the sale of takeaway alcohol after 10:00 PM and banned high-alcohol shots after midnight. While they reduced violence, they were criticized for harming nightlife and businesses. The laws were gradually rolled back, with most restrictions lifted by 2021.
121
outline in order from highest to lowest in the Court hierarchy and Jurisdiction in NSW
High Court of Australia, NSW Court of Appeal & Court of Criminal Appeal, NSW Supreme Court, District Court, Local Court, specialist courts and drug court
122
Court hierarchy and Jurisdiction in NSW: what are elements of the high court (2 types of jurisdiction)
- Original jurisdiction: Constitutional matters, disputes between states/Commonwealth.
- Appellate jurisdiction: Appeals from federal/state courts.
- Decisions are final and binding.
123
Court hierarchy and Jurisdiction in NSW; elements of NSW Court of Appeal & Court of Criminal Appeal
- Court of Appeal (Civil Matters): Hears appeals on civil decisions.
- Court of Criminal Appeal (Criminal Matters): Hears appeals against criminal convictions/sentences.
124
Court hierarchy and Jurisdiction in NSW, elements in NSW Supreme Court
- Criminal: Serious indictable offences (e.g., murder).
- Civil: Unlimited damages claims, contract disputes.
- Other: Bail applications, administrative law, appeals from lower courts.
125
Court hierarchy and Jurisdiction in NSW, elements in district court
- criminal: Indictable offences (e.g., sexual assault).
- Civil: Matters up to $750,000, motor accident claims.
- Other: Bail applications, appeals from Local Court.
126
Court hierarchy and Jurisdiction in NSW, elements in local court
- Criminal: Summary offences (e.g., traffic offences).
- Civil: Cases up to $100,000.
- Other: AVOs, family law, minor disputes.
127
Court hierarchy and Jurisdiction in NSW, elements in specialist courts
- Children’s Court: Cases involving minors.
- Coroners Court: Investigates deaths, fires, and explosions.
128
Court hierarchy and Jurisdiction in NSW, elements in drug courts
Helps drug offenders with rehabilitation.
129
outline in order from highest to lowest in the australian overall court hierarchy
high courts, federal courts, state/territory courts
130
features of the high court of australia
The highest court, its decisions are final and binding on all lower courts. It ensures the rule of law and constitutional interpretation.
131
features of the federal court of australia (2 main types)
two main types
Federal Court of Australia: Handles federal law matters.
Federal Circuit and Family Court of Australia – Deals with family and other federal law cases.
132
features of the state/territory court of australia (4 main types)
4 main types
Supreme Courts: The highest courts in each state/territory, including Courts of Appeal.
Intermediate Courts: County/District Courts handling serious criminal and civil matters.
Lower Courts: Local/Magistrates’ Courts handling minor cases.
Specialist Courts: Include Children's, Youth Justice, Coroners, and Drug Courts (varies by state).
133
appeals system in relation to court hierarchy
Allows review of decisions to ensure fair and equal application of laws.
134
jurisdiction in relation to court hierarchy
Courts deal with criminal, civil, and administrative matters based on state or federal law.
135
outline of vickie roach case (this shows the importance of separation of powers) *CAN USE IN RELATION TO JUDICIAL REVIEW*
Vickie Roach, a First Nations woman serving six years for a 2004 offense, challenged a 2006 Howard government law banning all prisoners from voting. The High Court ruled that those serving three years or less retained voting rights, as it was unconstitutional. *CAN USE IN RELATION TO JUDICIAL REVIEW*
136
roach case name
Roach v electoral commissioner
137
separation of powers definition and what are the catagories
a principle explaining that the power to make and manage laws should be shared between different groups; the parliament, the executive and the judiciary; to avoid one group having all the power.
138
what are three groups that have power to govern Australia
Parliament/legislature
executive/government
judiciary/courts
139
what are checks and balances
Checks and balances limit/stop a group of people or person from becoming too powerful or from exceeding power
140
difference between parliament and government
Parliament is made up of all parties voting on all legislature whilst the government is one party that has the majority seats
141
Features of the legislature/parliament (seperation of powers)
- Power to make laws
- Made up of upper and lower house
- Acts as a check on judiciary and executive and has power to overrule them (can result in back and forth power struggles)
142
Features of the executive/government (seperation of powers)
- power to propose and give laws
- Made up of ministers
- Power to carry and enforce the law (this has the highest potential for corruption)
- There is judicial review and scrutiny to ensure no corruption
143
Features of the judiciary/courts (seperation of powers)
- Interprets the law and determines if an individual has been unlawful
- Right of appeal which is a check
- This is an important check for upholding rule of law
144
way to remember division of power
division symbol:
federal on top and state and local on the bottom
145
way to remember separation of powers
PIE: separating the pie lid
P- passes law (legislative)
I - interprets law (judiciary)
E - enforces (executive)
146
distinguish between separation of powers and division of powers
"Division of powers" refers to how power is distributed between different levels of government within a country, like federal, state/territorial, and local, while "separation of powers" refers to the distribution of power within a single level of government, dividing it into distinct branches like the legislature, executive, and judiciary, designed to prevent any one branch from becoming too powerful.
147
what 2 jurisdictions are fall under the high court
appellate and original jurisdiction
The court where a particular matter is heard for the first time has 'original jurisdiction'. If there is to be an appeal against the decision of the original court, the court that can hear the appeal has 'appellate jurisdiction'.
in original jurisdiction the case goes to the high court first
148
what section of the constitution gives the high court power
Section 71 of the constitution gives the high court judicial power
149
what is stated in section 76 constitution
Section 76 states that the parliament may make laws conferring original jurisdiction on the high court in any matter
Arising this under the constitution or involving its interpretation
150
what is judicial review
when a court is asked to decide on the lawfulness of a decision made by the Australian government or government department. This is important in assuring accountability
151
what happens if If someone sues the australian government
If someone sues the australian government it goes to the high court
152
what is the love v commonwealth case *can use as judicial review case or high court case*
Love v commonwealth was a historic high court case that made the high court reconsider the perimeters of aliens' power in the constitution. Love was found to have ancestral history tied to first nations people, but when committing a crime he was deemed an ‘alien’ and deported. He argued that he was not an alien, the case went under judicial review and he was deemed not an alien as a first nations person
*can use as judicial review case or high court case*
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what are the sources of contemporary australian law (that ive learnt so far)
- common law
- constitutional law
- statute law
- international law
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united nations general information
-Created in 1945 with 193 member states
- 5 members of the security council that are permanent, UK, Russia, France, USA and China
- There are 10 non permanent members elected on 2 year rotations
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UN legislation relating to the role of the UN
UN Charter, article 1 (1)
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what is the main role of the UN and the role of the UNSC
- Maintain international peace and security
- Protects human rights
- Delivers humanitarian aid
Support sustainable development and climate action
- Upholds international law
Role of UNSC: to maintain or restore international peace and security (article 41 and 42 of UN)
The role of the UN is encapsulated in the UN charter article 1 (1) which states that the purpose of the UN is to maintain international peace and security.
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UN security council
- Primary organ that maintains international peace and security
5P and 10 NP - for the UNSC to take action on a matter there must be 9 votes in favour including all P5
- The P5 hols a veto power: the P5 mostly abstain from voting rather than using this veto: The power of veto threatens peace and security of the UN, contradicting the role of the UN
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powers and functions of the SC
- To maintain peace and security (article 41 and 42)
- Investigate disputes
- Recommend methods for resolutions
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limitations of the SC (3)
- Corruption
- Abuse of power in the P5 and their veto powers: rather than advocating for world countries they veto in order to protect their own national interests eg Russia using 17 vetos on resolutions
- There are gaps in representation eg no african nations: The five permanent members are said to represent only 29% of the global populations and it is this concentration of power that allows powerful states to dictate policy
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a proposed remedy to resolve the issues of the abuse of the veto
Using a selective veto where the P5 can choose to not have the veto power
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Most challenging limitation overall of the SC
If a geopolitical interest involves conflict with a member of the p5 it is voted against eg the war on russia and ukraine and syria no action can be taken by the SC
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quote relating to UNSC limitations
Thomas Weiss: ‘ the primary obstacle threatening the capacity of the UN remains - how to deal with conflicts’
Then go on to mention how it has occurred for decades as seen in russia's amount of vetos
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syria case study outline
An intrastate conflict between the government and the people of Syria turned into a global phenomenon due to the involvement of other powers. This resulted in an international proxy. Powerful groups such as the US, UK and France (which are also 3 out of the 5 P5) have supplied Syria with weapons such as air strikes to support the uprising whilst the two other P5’s China and Russia are opposed the uprising and also supplying the government with weapons.
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How does the UN maintain peace?
UNSC can maintain peace and security through:
Providing humanitarian aid
Deploying peacekeepers
Protecting human rights
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UN effectiveness FOR syria
- 27 resolutions adopted since 2012, humanitarian aid provided to restore peace
- Humanitarian Aid: Provides crucial relief in war-torn areas; restoration of peace
- UNSMIS (supervision mission) 2043: lasted for less than 6 months
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UN effectiveness AGAINST syria
- The veto power is overused: russia vetoed 17 UNSC resolutions including sanctions on chemical weapons in 2017
- depend on member contributions: Funding and troop contributions depend on nations' willingness, causing operational constraints - In december 2017 the US government negotiated a significant cut in the UN budget, slashed by over 285 million
- UNSMIS (supervision mission) 2043: lasted for less than 6 months
- in 2016 a resolution was vetoed by russia (846) and airstrikes in aleppo hit 2 hospitals and 96 children were killed
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syria quote
former UN Secretary-General Ban Ki-moon, who stated in 2016:
“The Security Council has primary responsibility for maintaining international peace and security, but it has failed to live up to its responsibilities in Syria.”
*UNSC cannot stop the proxy war*
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specific resolution in yes effectiveness UNSC in syria
in 2021 2585 cross border provision and humanitarian aid
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specific case in UNSC not effective in syria
china and russia vetoed the prevention of chemical weapons in 2017 and 90 people and 30 children were killed by chemicals as a result
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structure of 10 marker
1. Thesis statement that responds directly to prompt. Use words from the prompt but DO NOT restate it: actually respond and answer each term and have a position
2. define key terms eg state the role of the UN/UNSC, its purpose and features
* include legislation* UN charter 1 (1)
3. saying how something is effective eg the UNSC is effective WHEN...
4. evidence eg a resolution, quote, data,
5. explanation of case and answering the sentence
6. concluding sentence ATQ
NEED FOR AND AGAINST FOR EFFECTIVENESS
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how to split up controlling idea
1. - have an intro including UN AND UNSC saying yes effective or no effective
- claim about the UNSC and UN (including syria)
2. counterclaim about UNSC and UN (including syria)
- concluding sentence saying yes effective or no effective
