The Key Elements of the Australian Legal System Flashcards

1
Q

Arriving at a statement of the ratio is not always clear-cut because:

A
  • it may be difficult to identify the ratio in the strict legal sense (ie - the judgment may not have articulated clearly the principles of law or the judge‟s process of reasoning;
  • it may be possible to state the ratio at a higher or lower level of generality;
  • there may be no majority in favour of a particular ratio; and
  • it may be difficult to distinguish the ratio from the obiter dicta in the case.
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2
Q

What are the 5 express rights included in the Australian Constitution?

A

s 116 - freedom of religion
s 117 - equal treatment of state residents
s 80 - right to trial by jury
s 50 (xxxi) - acquisition of property on just terms

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3
Q

True/False:

The Australian Constitution does not contain an express right to vote nor an express right to freedom of speech.

A

True

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4
Q

The Australian Constitution is based on the ______ tradition, thus does not have complete separation of powers. Instead, it follows the principle of _____ _____.

A

Westminster tradition;

Responsible Government

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5
Q

What are the sources of law in Australia?

A
  • Australian Constitution
  • State constitutions
  • State and Federal statutes
  • Judicial interpretations of those statutes
  • The common law (case law)
  • International law?
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6
Q

What are the 3 branches of government in Australia?

A
  1. Parliament
  2. The Executive
  3. The Judiciary
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7
Q

What are the 3 functions of government in Australia?

A
  1. Legislative - power to make laws
  2. Executive - power to administer law and carry on business of government
  3. Judicial - power of courts to hear/settle disputes and to issue writs
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8
Q

What is for formalism/legalism?

A

The theory that legal rules are separate from other social and political institutions; judges just work within the law by strictly adhering to it

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9
Q

_____ law is the law governing relations between individual and the state.

A

public

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10
Q

_____ law is the law concerned with relationship between citizens; law governing relations between individuals; including organisations.

A

private

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11
Q

What is civil law?

A

The law of private disputes; The law dealing with disputes between individuals, or between organisations, or between both providing for compensation from the party in breach of an obligation.

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12
Q

What is criminal law?

A

the system of law concerned with the punishment of offenders by the state

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