Booklet 1 Flashcards
(151 cards)
1
Q
What is democracy?
A
A system of government based on the will of the people.
2
Q
Define direct democracy.
A
A system of government in which citizens govern themselves by personal participation in law making.
3
Q
What is representative democracy?
A
A form of government in which the people are sovereign but are represented by elected members in a parliament.
4
Q
What role do elections play in representative democracies?
A
They translate the will of the majority into parliaments and governments, and thus into laws.
5
Q
What is liberal democracy?
A
A system of representative government where authority to govern is determined by the people and protection of political and legal rights exists.
6
Q
What does equality of political rights entail?
A
Entitlements essential to a citizen’s ability to govern themselves and enable participation in government.
7
Q
What is majority rule?
A
Based on popular sovereignty and expression of will of the majority in government and law-making.
8
Q
What is political participation?
A
When people act by exercising their political rights and freedoms to influence law-making and executive decision-making.
9
Q
What is political freedom?
A
Individuals should be as free as possible from interference in their life to make their own choices without coercion.
10
Q
Define rule of law.
A
Concept that all people obey the law, and no one is above it.
11
Q
What is universality of the law?
A
The law overrides all other forms of social control and applies universally over the territory and people.
12
Q
What are the methods of upholding the law?
A
- Courts are separate from parliaments and government
- Providing fair, equal and transparent legal processes
- Allowing for appeals
- Legislative clarity
- Separation of powers
- Government accountability
13
Q
What does the separation of powers doctrine entail?
A
The allocation of law-making powers to separate and independent arms of government: legislative, executive, and judiciary.
14
Q
What is the legislature?
A
The law-making part of parliament, consisting of the House of Representatives and the Senate.
15
Q
What defines the House of Representatives?
A
151 members from different electorates; the party with majority support forms government.
16
Q
Describe the Senate.
A
76 senators, 12 from each state and 2 from territories, representing states equally regardless of population.
17
Q
What is the executive?
A
The government, made up of the Constitutional Executive, Political Executive, and Public Service.
18
Q
Define the Constitutional Executive.
A
The branch of government where the monarch is head of state without a democratic claim.
19
Q
What role does the Political Executive play?
A
Consists of Ministers and Prime Ministers who make/implement laws and policies.
20
Q
What is collective ministerial responsibility?
A
The whole ministry is responsible for government performance and must maintain the confidence of the lower house.
21
Q
What does individual ministerial responsibility mean?
A
Holds an incompetent or corrupt minister accountable to parliament for their portfolio and conduct.
22
Q
What is cabinet secrecy?
A
Cabinet meets in a secure environment, protected by law, to discuss policy and strategy.
23
Q
What is cabinet solidarity?
A
Once a cabinet decision is made, all members must publicly support it, or resign.
24
Q
What is the Westminster System?
A
A system of parliamentary democracy with the fusion of the legislature and executive arms.
25
Define constitutional monarchy.
A form of government where the head of state is an inherited position with limited powers.
26
What is judicial independence?
A democratic principle requiring judicial power to be exercised independently of legislative or executive influence.
27
What is judicial power?
The authority to decide the legality of arguments and impose a sentence or ruling.
28
What are exclusive powers?
Powers that can only be exercised by the federal parliament.
29
What are concurrent powers?
Powers that can be exercised by both the states and the commonwealth.
30
What are residual powers?
Powers that remain with the states after federation.
31
What does coercive federalism entail?
A strong central government with regional governments lacking autonomy.
32
What is cooperative federalism?
An even balance of power between central and regional governments with substantial cooperation.
33
What is the National Federal Reform Council (NFRC)?
A council of the PM, State Premiers, and others to set national priorities.
34
What is the National Cabinet?
A body consisting of the PM, Premiers, and chief ministers responding to national issues.
35
What role does the High Court of Australia play?
Interprets the constitutional division of powers and adjudicates disputes between governments.
36
What is a referendum?
A direct vote by the people on a particular question, often to change the constitution.
37
What is a double majority?
The requirement for a successful referendum to have a majority of voters and a majority of states.
38
What was the successful referendum in 1967?
It gave Indigenous people the right to be counted in the census and have laws made for them.
39
What was the outcome of the 2023 Indigenous Voice to Parliament referendum?
The proposed indigenous voice was rejected.
40
What was the outcome of the 2023 Indigenous Voice to Parliament referendum?
Rejected
## Footnote
The referendum was held on October 14, 2023, proposing an indigenous voice to make representations to federal parliament on matters relating to Aboriginal and Torres Strait Islander Peoples.
41
What elements does Australia's Washminster Hybrid combine?
Elements of the Westminster and Washington systems
## Footnote
It includes a constitutional monarchy, responsible government, federalism, a written constitution, and separation of powers.
42
What type of state is China classified as?
Authoritarian, one-party state
## Footnote
The Communist Party of China (CCP) monopolizes power and suppresses dissent.
43
What does socialism in the context of China's governance advocate for?
Nationalization of key parts of the economy and basic economic equality
## Footnote
It distrusts the market as the best means of achieving fair economic outcomes.
44
Who founded the Communist Party of China?
Mao Zedong
## Footnote
He rejected liberal democracy and argued that political rights should be granted only to supporters of the CCP.
45
What is the structure of the National People's Congress (NPC) in China?
Unicameral legislature with 2980 elected representatives
## Footnote
It meets annually to consider important legislation.
46
How often does the National People's Congress Standing Committee (NPCSC) meet?
Every two months
## Footnote
It consists of 175 representatives from the NPC.
47
What is the role of the President in China's executive branch?
Head of state and appoints all members of the State Council
## Footnote
The President is always a senior member of the CCP.
48
What is the judicial power exercised by in China?
People's Courts
## Footnote
Courts operate in a hierarchy and are not permitted to interpret the law independently.
49
True or False: The judiciary in China is independent.
False
## Footnote
Judges are appointed by the NPC, which is dominated by the CCP.
50
What are the limitations to political participation in China?
No tolerance for alternative political views
## Footnote
Candidates are pre-approved by party authorities.
51
What is required for a valid election in China?
Absolute majority with a minimum turnout
## Footnote
Only valid if over 50% of voters cast their vote.
52
What does Article 35 of the Chinese constitution guarantee?
Freedom of speech
## Footnote
However, it is limited by Article 51, which restricts rights that infringe upon state interests.
53
What event in 1989 highlighted the suppression of political freedom in China?
Tiananmen Square protests
## Footnote
Troops were deployed against student protesters, resulting in thousands of deaths.
54
What does the constitution of China lack in terms of government structure?
Effective checks and balances
## Footnote
The CCP's dominance over the NPC allows it to control both the judiciary and executive.
55
How can the constitution of China be amended?
By a two-thirds majority of the NPC
## Footnote
The NPC has no power to reject decisions made by the Politburo.
56
What is the principle of the Rule of Law in China?
The CCP is above the law
## Footnote
Politburo members rarely face punishment for breaking the law.
57
What is required for a bill to become law in Australia?
Majority vote in both the House of Representatives and the Senate, plus royal assent
## Footnote
This process is outlined in the Australian Constitution.
58
What is a bill in the context of Australian law?
A proposal for a new law or a change to an existing one
## Footnote
If passed, it becomes an Act of Parliament.
59
What does Section 51 of the Australian Constitution grant the federal parliament?
Power to make laws for the peace, order, and good government of the Commonwealth
## Footnote
This power is limited to certain matters.
60
What are pressure groups in the context of law-making?
Organizations that represent sectors of the economy and society
## Footnote
They bring expertise and can influence legislation.
61
Fill in the blank: The __________ Act 2022 addresses climate change in Australia.
Climate Change
## Footnote
This act was part of the Albanese government's campaign promises.
62
What is the purpose of money bills in Australia?
To authorize government expenditure
## Footnote
Money bills must be passed by parliament before the government can access taxpayer funds.
63
What is the significance of the Marriage Amendment Act 2017?
Amended the Marriage Act 1961 to legalize same-sex marriage
## Footnote
It was introduced by Senator Dean Smith as a private member bill.
64
What is the first stage of the legislative process in Australia?
Preparation of a bill
## Footnote
Bills are introduced by a minister and arranged by their department.
65
What happens during the second reading of a bill?
The minister explains the purpose and principles of the bill
## Footnote
This stage allows for debate and public discussion.
66
What is the final stage in the legislative process before a bill becomes law?
Assent by the governor general
## Footnote
This finalizes the bill as an Act of Parliament.
67
What are parliamentary committees?
Cross-party panels of parliamentarians appointed for specific tasks
## Footnote
They investigate and make recommendations on various issues.
68
What must happen for a bill to become an Act of Parliament?
The governor general approves the bill
## Footnote
This approval is necessary for the bill to become part of the law.
69
What are the parts of a bill?
* Title
* Date of operation
* List of definitions
* Schedule
* Clauses, subclauses, and paragraphs
70
What is the purpose of parliamentary committees?
To investigate issues, review legislation, and oversee government actions
71
What are standing committees?
Committees established for the life of a parliament
72
What are select committees?
Committees formed for a particular purpose and then disbanded after reporting to parliament
73
What is a gag in parliamentary terms?
A motion used to stop further debate on a bill or motion
74
What does a guillotine do in a parliamentary context?
Sets a pre-determined time limit for debate on a bill
75
What is a floodgate in legislative terms?
The introduction and passage of a large number of bills quickly, often at the end of a session
76
What is executive dominance?
The strong influence of the executive over the legislature
77
What is the Senate's role as a 'House of Review'?
To represent the states and ensure that bills are debated and scrutinized
78
What is a crossbench?
The minor parties and independents in either the House of Representatives or Senate
79
What is malapportionment?
When some states have more voting power than others due to population differences
80
What is the influence of crossbenches on lawmaking?
They can block mandates and extreme agendas, putting niche interests over national priorities
81
What is the significance of Private Members in lawmaking?
* Voting on bills
* Serving on parliamentary committees
* Initiating Private Member Bills
82
What was the Online Safety Amendment Act 2024 about?
Introduced a minimum age of 16 for social media usage
83
What is subordinate legislation?
Laws made by the executive body using law-making powers granted by an act of parliament
84
Why does parliament delegate law-making power to the executive?
* Efficiency
* Responsiveness
85
What is the judicial power?
The authority of courts to interpret and apply the law
86
What is the difference between common law and civil law systems?
* Common Law: courts develop bodies of law outside statute law
* Civil Law: courts apply detailed codified legislatures
87
What does Stare Decisis mean?
The principle that courts should follow legal precedents set by higher courts
88
What is jurisdiction?
The power to make legally binding decisions in certain areas
89
What is original jurisdiction?
The jurisdiction of a court to hear and determine proceedings 'in the first instance'
90
What is appellate jurisdiction?
The jurisdiction of a court to hear and determine appeals from inferior courts
91
What is binding precedent?
A decision that is binding on a court if made by a superior court
92
What is the ratio decidendi?
The critical reasoning that led to a judicial decision
93
What is persuasive precedent?
A decision that a court is not required to follow
94
What is obiter dicta?
Judicial remarks that do not form part of the reasoning in a decision
95
What is the significance of precedents set by the High Court?
They unify the entire common law system in Australia
96
What are judicial remarks that do not form part of the reasoning in a decision?
Persuasive (non-binding) on future similar cases
## Footnote
These remarks may influence future cases but do not establish binding legal precedent.
97
What is the significance of precedents set by the High Court in Australia?
The High Court's precedents bind all courts throughout the country
## Footnote
This unification of the common law system allows for consistent legal interpretations across different jurisdictions.
98
How does common law evolve over time?
Through gradual and conservative change with new precedents replacing old ones
## Footnote
Judges tend to resist radical changes to maintain stability in the law.
99
What principle did Lord Atkin establish in Donoghue v Stevenson?
The ‘neighbour principle’
## Footnote
This principle formed the foundation of modern law of negligence by establishing a duty of care extending beyond contractual relationships.
100
What was the outcome of Grant v Australian Knitting Mills?
The Privy Council held that the manufacturer owed a duty of care to the ultimate consumer
## Footnote
This case followed the precedent set in Donoghue v Stevenson, reinforcing the duty of care in negligence cases.
101
What did the High Court decide in Rogers v Whitaker regarding medical negligence?
Medical practitioners have a duty to warn of material risks
## Footnote
This case highlighted the importance of informed consent in medical practice.
102
What landmark decision did the High Court make in Mabo v Queensland?
The court rejected the doctrine of terra nullius and recognized native title
## Footnote
This decision fundamentally reshaped property and Indigenous rights law in Australia.
103
What was the initial ruling in Wilson v Bauer Media Pty Ltd before the appeal?
Rebel Wilson was awarded $4.7 million in damages for defamation
## Footnote
The Court of Appeal later reduced the damages to $600,000 due to insufficient evidence of economic loss.
104
What was the outcome of Sharma v Minister for the Environment?
The Full Federal Court ruled no duty of care existed to protect children from climate change harm
## Footnote
This case demonstrated the reluctance of courts to impose political or policy duties on ministers.
105
What does disapproving precedent mean?
When a court disagrees with a precedent but is still bound to follow it
## Footnote
Disapproval may influence future cases or encourage a higher court to overrule the precedent.
106
What is a landmark case?
Creates a new precedent that has legal significance and will impact how laws can be interpreted
## Footnote
Landmark cases often reshape legal principles and frameworks.
107
What is statutory interpretation?
The process courts go through to give meaning to words in statutes
## Footnote
Courts seek to determine the 'parliamentary intention' behind the wording of laws.
108
What is the plain meaning rule in statutory interpretation?
Statutes are to be interpreted using the ordinary meaning of the language
## Footnote
This approach assumes that parliament has clearly stated its intention in the wording of the law.
109
What does the golden rule of interpretation allow?
Judges to depart from a word’s normal meaning to avoid an absurd result
## Footnote
This rule helps ensure that statutes are interpreted in a way that aligns with their intended purpose.
110
What is the mischief rule?
Determines the 'mischief and defect' that the statute aims to remedy
## Footnote
Courts ask what part of the law was meant to be rectified by Parliament.
111
What is the purposive approach in statutory interpretation?
Considers the text, context, and purpose of a law before interpreting it
## Footnote
This broad inquiry gives judges discretion to consider various materials when interpreting statutes.
112
What does the legal maxim 'ejusdem generis' mean?
Of the same kind
## Footnote
It requires that the meaning of a general term be limited by reference to the specific terms that precede it.
113
What is parliamentary supremacy?
The ability of parliaments to pass legislation that regulates and controls much of the work undertaken by courts
## Footnote
This principle underscores the authority of the legislature in the legal system.
114
What is the difference between codification and abrogation?
Codification is the process of arranging laws into a written form, while abrogation is to cancel or repeal a law
## Footnote
Both processes impact how laws are interpreted and applied.
115
What is the role of Acts Interpretation Acts?
Create additional rules that judges must follow when interpreting statutes
## Footnote
These acts aim to limit judicial discretion and provide clarity in statutory interpretation.
116
What is judicial discretion?
The freedom of a judge to decide an appropriate outcome for a particular case
## Footnote
Judges retain significant discretion within the bounds of the law when interpreting statutes.
117
What is the role of parliament in relation to law-making?
Parliament is the supreme law-making body.
118
What is the function of courts in the context of statutes?
Courts interpret statutes, shaping how they are applied.
119
What is common law's role when statutes are unclear or absent?
Common law can fill gaps where no statute exists or where legislation is unclear.
120
What is codification?
The process of collecting and arranging laws, including common law principles, into a written and organised form usually as an Act of Parliament.
121
What does abrogation mean?
To cancel, overrule or repeal.
122
What principle of justice does natural justice encompass?
The rule against bias and the right to a fair hearing.
123
What are the four principles of Natural Justice?
* Impartial adjudication
* Hearing both parties
* Evidence based decisions
* Transparent and open court processes
124
What is the adversarial trial system?
A battle between parties aiming to convince a passive judge of the truth.
125
What is the fundamental purpose of any trial?
To find the truth.
126
What does the onus of proof refer to?
The responsibility of a party to prove their case in court.
127
Who bears the onus of proof in civil trials?
The plaintiff.
128
Who bears the onus of proof in criminal trials?
The prosecution.
129
What is the standard of proof in civil trials?
Balance of probabilities.
130
What is the standard of proof in criminal trials?
Beyond reasonable doubt.
131
What does 'beyond reasonable doubt' mean?
Any evidence that gives rise to doubt in the mind of a reasonable person requires the defendant to be found not guilty.
132
What does 'balance of probabilities' mean?
The plaintiff must prove that their version of the case was more likely than not.
133
In a civil trial, who are the parties involved?
Plaintiff and Defendant.
134
In a criminal trial, who are the parties involved?
Prosecution and Defendant.
135
What role does a judge play in the adversarial trial?
Ensures a fair trial by enforcing trial procedures designed to uphold natural justice.
136
What is the role of a jury in a criminal trial?
An impartial adjudicator of the facts composed of 12 of a defendant’s peers.
137
What is the presumption of innocence?
The defendant is presumed innocent and has a right to silence.
138
What is the purpose of legal representatives in a trial?
They bear the burden of running the case on behalf of a party and provide expertise.
139
Why is judicial independence important?
It is essential for upholding the rule of law and ensuring fair trials.
140
What are the phases of a trial?
* Pre-Trial Phase
* Trial Phase
* Post-Trial Phase
141
What occurs during the pre-trial phase?
Clarifying the dispute, discovering and preparing evidence.
142
What happens during the trial phase?
Parties present their best evidence and argument before an impartial adjudicator.
143
What is the closing address in a trial?
The final opportunity for each party to summarise the evidence presented.
144
What is a verdict?
The decision reached by the judge or jury determining the outcome of the case.
145
What is the remedy in a civil trial if the plaintiff wins?
A remedy to 'right the wrong'.
146
What is the solution if the prosecution wins a criminal trial?
A sanction (punishment).
147
What is the rule of relevance in evidence?
Evidence must be directly related to the case; irrelevant information is inadmissible.
148
What is hearsay?
A second-hand statement not made in court and generally inadmissible.
149
What is allowed for expert witnesses in terms of evidence?
They can give opinions based on their specialised knowledge.
150
When is character evidence allowed in court?
Generally not allowed unless the defendant raises it first or it is directly relevant.
151
What is propensity evidence?
Suggesting someone is likely to commit a crime based on past actions, usually inadmissible.
