Download Understanding the Australian Legal System: Levels and Branches of Government and more Exams Law in PDF only on Docsity!
system Questions and answers
Levels and branches of government: CORRECT ANSWERS✅ Australia has three different levels of government. These are:
- federal government.
- State / territory governments.
- local governments. Levels and branches of government: Federal Government CORRECT ANSWERS✅ The federal government deals with matters having a national concern, such as:
- foreign affairs
- defence. Levels and branches of government: State and territory governments CORRECT ANSWERS✅ The State and territory governments deal with matters of importance within each state or territory. Such matters include:
- public housing
- school education
- roads and transport within the State or territory Levels and branches of government: Local governments CORRECT ANSWERS✅ The local governments deal with matters of concern within smaller geographical areas called local government areas (there
system Questions and answers
are many such areas within each State and territory). The typical functions of local governments include:
- maintaining parks and gardens
- providing libraries, youth centres and other services to local residents
- removal of waste Levels and branches of government: Branches of government The federal and State / territory levels of government are each further divided into three branches of government. CORRECT ANSWERS✅ These are:
- the legislature
- the executive
- the judiciary Levels and branches of government: The legislature CORRECT ANSWERS✅ -The legislature is the branch of government responsible for creating and changing laws.
- The body in which legislation is made is called parliament. -There are parliaments of the Commonwealth, each of the States, the Australian Capital Territory and the Northern Territory. -Each parliament is constituted by members of parliament who are directly chosen by persons of voting age Levels and branches of government:
system Questions and answers
- the court does not take an active role in the proceedings but limits itself to ensuring the proper and fair conduct of the trial -the parties have the sole responsibility for preparing cases and presenting evidence to the court Common Law: Features of the common law system(how the courts operate): Trial by jury CORRECT ANSWERS✅ -Under the common law system a person accused of a serious crime is entitled to be tried by a jury
- In trial by jury a group of ordinary citizens (the jury) hears the evidence and decides on the outcome of the trial (Common Law) Fundamental principles of the common law: Procedural fairness CORRECT ANSWERS✅ -Procedural fairness is the principle that government agencies should deal with citizens using proper legal procedures and not some arbitrary process.
- The principle applies not only to the courts but also to members of the executive (the public service).
- The principle incorporates a number of specific requirements, including:
- the requirement for an impartial decision-maker 2.the right to be treated fairly. (Common Law) Fundamental principles of the common law: The rule of law CORRECT ANSWERS✅ -The rule of law is the principle that power must be exercised in accordance with valid laws and not otherwise.
- There are four specific aspects to the rule of law:
system Questions and answers
- Persons are to be governed by valid laws and not by the arbitrary exercise of power.
- Every person and organisation, including the government, is subject to the same laws.
- A person may only be punished for breach of the law and not otherwise.
- The government must have legal authority for every action that it takes (this is sometimes referred to as the 'principle of legality'). (Common Law) Fundamental principles of the common law: Representative government CORRECT ANSWERS✅ -A representative government is a system of government that requires members of the legislature (parliament) to be directly chosen by the people (Common Law) Fundamental principles of the common law: Parliamentary sovereignty CORRECT ANSWERS✅ -Parliamentary sovereignty Parliamentary sovereignty is the principle that the laws of the parliament are supreme
- This principle ensures that if the courts or the executive make a law that the people do not agree with then the parliament may change or remove the law -parliamentary sovereignty ensures that the people are ultimately responsible for the laws that govern them (Common Law)Special features of the English and Australian legal systems: Separation of powers CORRECT ANSWERS✅ -The separation of powers is the division of government into three separate branches as a means of preventing abuses of power
system Questions and answers
-All laws made within Australia must be consistent with the powers conferred by the Constitution. (Common Law)Distinctive features of the Australian legal system: Federal system of government CORRECT ANSWERS✅ - Australia was formed from the union of six separate British colonies. The resulting government structure, consisting of six State governments joined to one national government, is called a federal system of government.
- power is shared between the State governments and the national government
- national government deals with matters of national significance such as immigration, defence and foreign relations.
- State governments deal with matters of significance within each State (such as housing, health care and education). The legislature: What is the legislature? CORRECT ANSWERS✅ -The legislature is the branch of government responsible for creating and amending legislation. -Legislation is law created by parliament The legislature: Parliament is much better placed than the courts to make new laws for the following reasons: CORRECT ANSWERS✅ • Parliament has a prospective (forward-looking) outlook and may therefore make laws that anticipate future problems.
- No dispute is required in order for a new law to be declared.
- Different interests can be accommodated.
- Community input can be sought and acted upon.
system Questions and answers
The legislature: Legislation is of two different types: CORRECT ANSWERS✅ -Acts of Parliament: is a law made directly by the parliament. Acts of Parliament are enacted (created) to address matters of importance to all electors -Delegated legislation: Delegated legislation (otherwise known as subordinate legislation) is law made by members of the executive under the authority of parliament rather than by parliament directly. Delegated legislation is made to address matters of detail that are best dealt with by the public service The legislature :The Commonwealth Parliament is divided in to two separate chambers or houses of parliament informally known as the 'lower house' and the 'upper house' CORRECT ANSWERS✅ - The lower house is called the House of Representatives and is the house in which most legislation originates
- The upper house is called the Senate and its main function is to review proposed legislation The legislature: Limitations upon legislative power CORRECT ANSWERS✅ In creating new legislation, the lawmaker (whether parliament or its delegates in the public service) must satisfy two requirements:
- the legislation must not extend beyond the powers conferred upon the lawmaker
- the legislation must be properly created. If the courts find that either of the above requirements have not been satisfied they will declare the legislation to be invalid. If this happens the legislation will be of no further legal force The Executive: What is the executive? CORRECT ANSWERS✅ -The executive is the branch of government responsible for administering legislation.
system Questions and answers
-he Queen exercises her powers through appointed representatives
- the Queen's representative is called the Governor-General The Executive: Limitations upon executive power CORRECT ANSWERS✅ -the executive government must have a legal basis for every action that it takes.
- If an executive officer exceeds his or her legal authority then their actions may be declared invalid by the courts The Judiciary: What is the judiciary? CORRECT ANSWERS✅ -The judiciary (also known as the judicature) is the branch of government responsible for resolving disputes according to law.
- In order to resolve disputes the judiciary must interpret and apply the law (both legislation and judge-made law). -The courts are the bodies responsible for exercising judicial power. The Judiciary: Hierarchy of the court system CORRECT ANSWERS✅ -The court system of Australia is structured in a hierarchy (order of importance). -Courts further up in the hierarchy have the power to overrule decisions of courts lower in the hierarchy.
- this allows higher courts to review the decisions of the lower courts. The Judiciary: A proceeding in which a case decided by the lower courts is brought before a higher court is called an ______? CORRECT ANSWERS✅ A: Appeal
system Questions and answers
The Judiciary: The highest court in each state is ______? CORRECT ANSWERS✅ - Principles of law declared in the higher courts must be followed by the lower courts. -This is an important aspect of the doctrine of precedent. -It helps the law to develop in a principled fashion and assists in the consistency of judicial decision-making. The Judiciary: Responsibilities of the Federal courts (role of court/Types of matter most commonly dealt with ): High Court of Australia CORRECT ANSWERS✅ -Disputes under Commonwealth Constitution; appeals from other Federal and State courts (by leave). The Judiciary: Responsibilities of the Federal courts(role of court/Types of matter most commonly dealt with) : Federal Court of Australia CORRECT ANSWERS✅ -Civil trials (single judge); appeals from single judge (Full Court, consisting of three judges) -Constitutional matters;
- bankruptcy proceedings
- corporate law
- trade practices -competition and consumer protection law
- federal administrative law
- copyright; defence proceedings
- native title
system Questions and answers
Full Court or Court of Appeal (Western Australia Court of Appeal) CORRECT ANSWERS✅ Role: Civil appeals; criminal appeals. Types of matter most commonly dealt with: Appeals The Judiciary: Responsibilities of the STATE courts(role of court/Types of matter most commonly dealt with): Supreme Court (Supreme Court of Victoria) CORRECT ANSWERS✅ Role: Civil trials (unlimited value); criminal trials (the most serious offences). Types of matter most commonly dealt with:
- Negligence and personal injury
- contract
- professional liability -property -defamation
- State administrative law -partnerships
- trusts
- equitable remedies
- probate and deceased estate matters
- commercial disputes
- admiralty law; murder
system Questions and answers
-treason. The Judiciary: Responsibilities of the STATE courts(role of court/Types of matter most commonly dealt with): District or County Court (District Court of New South Wales CORRECT ANSWERS✅ Role :Civil trials up to a maximum value ($750,000 for the NSW District Court); criminal trials (serious offences Types of matter most commonly dealt with: Negligence and personal injury -motor accidents
- work accidents
- serious criminal offences (except murder and treason). The Judiciary: Responsibilities of the STATE courts(role of court/Types of matter most commonly dealt with): Local or Magistrates Court (Local Court of New South Wales) CORRECT ANSWERS✅ Role: Civil trials up to a maximum value ($100,000 for the NSW Local Court); criminal trials not requiring a jury; committal proceedings Types of matter most commonly dealt with: Smaller claims under contract and consumer laws
- negligence and property damage
system Questions and answers
- Once the court is satisfied that the parties are ready to proceed it will set down a hearing date. The Judiciary: Each party may, if it wishes, require the other to disclose documents in its possession that have relevance to the proceedings. This procedure is called ___? CORRECT ANSWERS✅ A: discovery. The Judiciary: The parties may also wish to arrange for witnesses to appear at the hearing and if so, a formal notice to appear called a ________ needs to be served on each witness. CORRECT ANSWERS✅ A: subpoena The Judiciary: The losing party may, if they believe the decision of the court to be in error, appeal the decision to a higher court. The party bringing the appeal is known as the ____? CORRECT ANSWERS✅ A: appellant. -The appellant is required to file a Notice of Appeal in the appeal court and to serve this notice on the other party. Note: If the appeal court is satisfied that the trial judge made an error it will allow the appeal and set aside the trial judge's orders. The Judiciary: What is the role of a solicitor? CORRECT ANSWERS✅ -deals with clients and take instructions from them. - deal with much of the paperwork involved in legal transactions and also deal with the details of preparing cases for trial.
system Questions and answers
-Solicitors may be either general legal advisors, capable of doing a wide range of work, or they may be specialists in one particular area of the law, such as property law or personal injuries litigation. The Judiciary: What is the role of a barrister? CORRECT ANSWERS✅ -Barristers specialise in court work and spend much of their time in court arguing cases on behalf of clients. -Barristers are experts in the complex laws of presenting evidence The Judiciary: Some alternatives to going to court CORRECT ANSWERS✅ 1. negotiate directly with the other party in an attempt to resolve the dispute informally 2.mediation: The mediator is hired to help the parties achieve a settlement of the dispute. The mediator is usually a lawyer or other professional skilled in resolving the type of dispute in question Purposes of court hierarchy is: CORRECT ANSWERS✅ -Principles of law declared in the higher courts must be followed by the lower courts. -This is an important aspect of the doctrine of precedent. -It helps the law to develop in a principled fashion and assists in the consistency of judicial decision-making.
