ibl assessment quiz notes
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IBL Assessment: Quiz on Australia’s legal system notes
1. The nature of law
There is no proper definition of law but a general one is: set of rules made by the state
and enforeable by proseution or litigation. !or business law a general definition
would be: a set of rules regulating businesses and business ati"ities made by the stateand enforeable by proseution or litigation.
The #positi"ist’ definition of law an be ontrasted to definitions by natural law
theory. $atural law theory and legal positi"ism are % branhes of &urisprudene
'philosophy of law(.
) $atural law theory:
To desribe nature of law there is relationship between law and set of higher "alues.
They insist that some things are fair and others unfair and that the law should be
made* administered and interpreted in suh a way that it orresponds with ob&eti"e
standards. $atural law theory was important in de"elopment of +nglish ommon law.,hen parliament and monarh struggled parliament made referene to #fundamental
laws of +ngland’ whih embodied natural law priniples and set limits to monarhy
power.
) Legal positi"ism:
Legal positi"ists say we should fous on what the law is. -onsisteny with standards f
morality and &ustie is not neessary. The only uestion that is important is whether
the law was made properly and onsistent with reuirements of the rele"ant
onstitution.
The ideals of laws are:
o -ertainty) people should be able to ma/e agreements* form relationships and
ondut affairs onfidently aware of or able to asertain rele"ant legal rules.
0o law should be lear.
o !leibility) law must respond to hanges. If not then it an beome redundant
o !airness) law must be and seen to be fair by e"eryone.
o Aessibility) e"eryone is presumed to /now the law. Ignorane is no euse
but people should find out about rele"ant laws that affet them and these laws
should be aessible to people.
The purpose of law:o 2esol"e disputes
o 3aintain soial order
o 4reser"e and enfore ommunity "alues
o 3ehanism for ensuring resoures and opportunities are fairly distributed so
no one is disad"antaged
o 3aintains stability and eonomi growth
o +nsures go"ernment does not misuse its power and omplies with the rule of
law. The rule of law has 5 harateristis:
) e"eryone will be eual in the eyes of law inluding go"ernments
) ourts will uphold legal rights on itizen inluding right to personalfreedom
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e"en though it does not mean the person or organisations must be the itizen of the
lawma/ing state.
• 4ubli law: onerned with organisation and go"ernment and relationship
between go"ernment and people
• 4ri"ate law: onerned with areas in"ol"ing disputes o"er rights andobligations between people or organisations
• 0ubstanti"e law: atual rights and duties under law
• 4roedural law7ad&eti"al law: onerned with rules of i"il and riminal
proedure and e"idene that must be followed in the enforement of those rights and
duties
• -ommon law 'legal system(
) de"eloped in +ngland) Australia uses this system
) 9otrine of preedent applies where ourts loo/ at similar ases of the
past
) Aspet of stare deisis is that deisions of higher ourts are legally
binding upon lower ourts in same hierarhy
) Ad"ersarial trial method where disputes resol"ed by opposing parties
who argue their ases before an impartial ourt
) -ourt only ensures fair and proper ondut of trial and deides who
wins
) Aused an be tried by &ury
) There is also inuisitorial system in ommon law) some laws made bystatutes
• -i"il law system
) de"eloped from 2oman law and $apoleoni odes
) ourts bound by odes* ats and statues so they base their &udgement
based on these pro"isions
) preedent does not apply
) inuisitorial method whereby ase law generally not reorded nor
reognised as law soure
) ourts ta/e some responsibility of legal matters
• -ommon law 'area of law(: two ma&or laws are i"il and riminal law
# civil law
) ation bought by a person against another person
) mode of proedure is ausatorial and emphasis on remedies whih are
most often monetary ompensation
) plaintiff ommenes ation in first instane
) if a party is not happy with the outome then they an appeal to a
higher ourt. If this happens then the party that appealed is now /nown
as the appellant and the other party beomes the respondent.
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) the burden 'or onus( of proof on plaintiff to pro"e ase on balane of
probabilities that defendant bro/e a legally enforeable promise
) tort and ontrat laws are i"il laws
) rarely is &ury used
# criminal law) ation bought by rown on behalf of state
) onus on rown to pro"e #beyond reasonable doubt’ that aused is
guilty
) an be tried by &ury who deide uestions of fat and &udge deides
uestions of law
Laws in other ountries
) this is different between ountries
) u.s. has bill of rights
) eah ountry has different forms of go"ernment
• monarhy: head of state is /ing or ueen. There are % types:
onstitutional and absolute. In absolute the head of state is /ing or ueen
who eerises eeuti"e power diretly. In onstitutional* head of state
holding position sub&et to onstitution and with onsent of people
eerises little or no politial power. +euti"e power is eerised by
ministerial ounil led by prime minister who is also the leader of the
legislature. -ommonwealth ountries li/e Australia are onstitutional
monarhies whose head is the ueen. The ueen appoints a rown
representati"e i.e. go"ernor)general 'at federal le"el( and go"ernor 'at state
le"el( who ats as a representati"e to the ueen.
• presidential: head of state is president. There are % types: full
presidential and semi)presidential systems. In full presidential the head of
state and the head of eeuti"e go"ernment is the president. There is no
prime minister. In semi)presidential system the head of state is the
president who also has some eeuti"e power but eeuti"e power is also
eerised by ministerial ounil led by prime minister who is also the
leader of the legislature.
• parliamentary republis: head of state is president who eerises littleor no eeuti"e power and is mostly a figurehead. +euti"e power is
ati"ely eerised ministerial ounil led by prime minister who is also the
leader of the legislature.
• theoraies: head of state determined by rules of state religion.
• ne party state: politial power eerised by single politial party.
%. ;ustie* ethis and politis
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The definition of &ustie an be understood as fairness. 0oures of &ustie are:
) natural law
) di"ine ommand
) authoritati"e ommand
) mutual agreement
) onsuentialism
Types of &ustie
• 9istributi"e: fair and proper distribution within a group. But when is it #fair
and proper’6
) egalitarianism: resoures to be distributed eually within a group due
to eual opportunity or eual outome
) dessert theory: resoures to be distributed aording to what a member
of a group deser"es* the basis of whih euality is not a riteria but
something else li/e need
) utilitarianism: deisions should be made or resoures distributed to
maimise total7a"erage welfare aross all members of the group
• 2etributi"e: proper response to wrongful at. 0ome answers to uestions that
relate to wrongful at are:
) <tilitarianism: ompensation and7or punishment &ustified if o"erall
welfare of ommunity is maimised by deterring offenders through
rehabilitation of eisting offenders or by ompliane of law
) retributi"ism: punishment determined by what offender deser"es and
ompensation determined by what "itim deser"es
•4roedural &ustie: fair hearing or trial
+this is a system of moral standards of ondut and assoiated with #right’ or
#wrong’. The ma&or priniples of ethis are determined by % theories:
• 9eontologial ethis ha"e the approah to ethis aording to ethial rules that
are uni"ersal that apply to e"eryone where"er they are and whene"er they may
be there. The person must omply with these rules regardless of the
onseuenes.
• -onseuentialism is theory that emphasis the onseuenes of beha"iour li/e
utilitarianism.
An ethial person has 5 harateristis: integrity* wisdom and moral ourage.
5. The Australian legal system
0oures of law in Australia: ase law7 ommon law and statute7legislati"e law.
=owe"er* most laws that are enated in Australia ome from 4arliament.
0eparation of powers: priniple that di"ides the go"ernment into 5 arms both in state
and federal le"el. The 5 arms are:
) legislati"e: ma/e law) eeuti"e: administer law
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) &udiiary: interpreting law* reates law by dotrine of preedent
But separation of powers is not omplete in reality as legislati"e is eeuti"e. nly in
pure theory there are 5 distint arms.
,hat is uniue about the Australian legal system6
There are si /ey harateristis about the Australian legal system.
1. Liberal demoray
) representati"e demoray in whih laws are made by and the eeuti"e
go"ernment onsists of eleted representati"es who eerise their
power sub&et to the rule of law and the onstitution.
) Theorist* Larry 9iamond asserts ele"en harateristis of a liberal
demoray.
a. outomes of eletions determined by itizens and any group omplying
with onstitutional priniples is entitled to form a party and ontest
eletion.
b. military and other demoratially unaountable institutions aresubordinate to and answerable to authority of eleted representati"es.
. itizens ha"e many hannels of epression and representation whih
they ha"e freedom to form and &oin.
d. itizens ha"e substantial freedom of belief* opinion* disussion* speeh*
publiation* assembly* demonstration and petition.
e. alternati"e soures of information inluding independent media to whih
itizens ha"e politially unfettered aess.
f. eeuti"e power onstrained by go"ernment institutions li/e
independent &udiiary and parliament.
g. i"il liberties effeti"ely proteted by independent and non
disriminatory &udiiary whose deisions are respeted and enfored by
other go"ernment arms.
h. itizens are politially eual under law.
i. minority groups not oppressed.
&. rule of law protets itizens from human right abuses.
/. onstitution is supreme.
%. -ommon law legal system
) ur system is based on ommon law legal system
) Based upon British legal system
5. -onstitutional monarhy
) =ead of ommonwealth and "arious states is the ueen of +ngland.
) =old position not by fore of arms but aording to the will of the
Australian people as epressed in onstitution.
) Queen represented by rown representati"es of the federal and state
go"ernments who are the go"ernor) general and go"ernors
respeti"ely
>. !ederation
) we ha"e a system of go"ernment where power is shared between the
federal and state go"ernment
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?. 0eparation of powers
) Both state and federal go"ernments operate using dotrine of
separation of powers. In both le"els we ha"e:
• legislati"e: ma/e law
• eeuti"e: administer law
• &udiiary: interpreting and applying law
) But separation of powers is not omplete in reality as legislati"e
o"erlaps with eeuti"e due to dotrine of responsible go"ernment.
) This is different from di"ision of powers where power is shared
between the federal and state go"ernments
@. 2esponsible go"ernment
) 4riniple that eeuti"e go"ernment should be answerable to
legislature and omprised of members of legislature
) If people are not happy members of parliament an be fored to resign
by eletion
=istory
Aboriginal ustomary law was not reognised when the British arri"ed as indigenous
people were onsidered uni"ilised.
Australia was delared #terra nullius’ when olony was established. This meant
indigenous people were not reognised as owners of the land implying Australia was
deemed to ha"e been settled rather than onuered or auired by treaty. As a result
dotrine of reeption applied meaning priniple that settlors of new territory brought
with them the law of home ountry.
The 3abo -ase was signifiant beause the =igh -ourt of Australia re&eted that
Australia was #terra nullius’ and a/nowledged indigenous ustomary law. The led toreognition of nati"e title 'in 15(. But the high ourt did not re&et dotrine of
reeption and onfirmed that Australia was settled and that urrent laws are deri"ed
from British legal system.
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-olonial go"ernment
The olonies were initially ontrolled by the British go"ernment as represented by the
olonial go"ernor. The go"ernors applied British law to olonies problems anddisputes. But as time passed the British go"ernment granted olonies inreasing le"els
of independene by legislati"e enatments.
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In the late 1CCs si relati"ely independent self)go"erning olonies eisted* eah with
its own onstitution* legislature and ourt system. It was reognised gi"en similaritiesand ommon interests of the olonies that unifying legal system be established. The
reasons were:
) perei"ed need to defend Australia from enemies suh as Dermany
) trade disputes pro"o/ed by ustoms barriers between the olonies
) need for onsistent and effeti"e immigration poliy
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There is also the loal go"ernment whih are established by state and territory
go"ernments to ta/e responsibility for ommunity and loal ser"ies. They ha"e
legislature and eeuti"e but no &udiiary. The legislature is ounil of eleted
representati"es lead by a 3ayor and eeuti"e is a subset of the ounil omprised of
/ey offie holders.
Too muh law
There are laims that we are o"er)regulated by too muh law. In business this is alled
#red tape’ and is rele"ant as many of them struggle to omply with issues li/e ta*industrial relations* wor/plae safety* onsumer protetion and orporate go"ernane.
There is too muh paperwor/ and lodging of forms* reports and statements and a lot
of legal rules and regulations applying to business unfairly and inappropriately restrit
them in earning inome.
The pereption that Australia has tendeny to litigate too ui/ly and too easily has
arisen a number of de"elopment:
) -lass ation: legal ation bought against defendant on behalf of large
number of plaintiffs with similar auses of ation
) -ontingeny fee: an arrangement between a lawyer and lient where
lient has to pay only lawyer’s legal fees if the outome of a legalation is fa"ourable to the lient
) Litigation ulture: Australian’s following steps of <.0. in terms of
litigation. Indi"iduals and organisations willing to threaten* if not then
ommene legal ation to sol"e problems.
The onstitution
9efinition: set of rules determining how: a( a nation or state or b( an organisation* will
be go"erned.
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0truture of onstitution
-hapter =eading -ontent
-hapter I The 4arliament • "ests legislati"e
power in !ederal
4arliament 's. 1(
• sets out struture of
!ederal 4arliament
and powers of
!ederal 4arliament
-hapter II The +euti"e
Do"ernment• "ests eeuti"e
power in Do"ernor)
Deneral ating on
the ad"ie of the
!ederal +euti"e
-ounil 'ss. @1* @%(
• pro"ides !ederal+euti"e -ounil
onsists of
3inisters of 0tate
who must also be
3embers of
4arliament
-hapter III The ;udiature • "ests !ederal
&udiial power in
the =igh -ourt of
Australia and in
other !ederal-ourts 's. E1(
-hapter IF !inane and Trade • grants elusi"e
power to !ederal
4arliament o"er
ustoms and eise
duties 's. C(
• pro"ides that
#trade* ommere
and interourse
among the0tatesG.shall be
absolutely free’ 's.
%(
-hapter F The 0tates • preser"es the 0tate
onstitutions* 0tate
laws and powers of
0tate parliaments
'ss. 1C@) 1C(
• resol"es
inonsistenies
between 0tate and
!ederal laws 's.
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1C(
• prohibits 0tates
from oining
money 's. 11?(
• prohibits the
-ommonwealthfrom legislating
with respet to
religion 's. 11@(
-hapter FI $ew 0tates • pro"ides for the
0tates to be
appended by
-ommonwealth
'ss. 1%1* 1%>(
• establishes !ederal
4arliament’s power to ma/e laws with
respet to the
Territories 's.1%%(
-hapter FII 3isellaneous
-hapter FIII Alteration of the
-onstitution• sets out how
-onstitution may
be amended 's.
1%(
!ederal and 0tate relations
The onstitution sets out how legislati"e 'law)ma/ing( power is shared between the!ederal and 0tate parliaments. This is /nown as di"ision of powers.
!ederal parliament has elusi"e and onurrent powers. +lusi"e powers are those
eerised only by !ederal parliament. -onurrent powers are those eerised by both
!ederal and 0tate parliaments. 0tate parliaments ha"e onurrent and residual powers.
2esidual powers are those eerised by 0tate parliaments e"en though they an ma/e
laws using onurrent powers under s. 1CE of -onstitution where 0tate -onstitutions
ha"e been preser"ed sine olonial times.
+lusi"e powers '!ederal only(
) establishment of the seat of go"ernment of -ommonwealth and
o"ersight of -ommonwealth publi ser"ie 's. ?%() imposition of ustoms and eise duties 's. C(
) raising and maintaining of any na"al or military fore 's. 11>(
) oining of money 's. 11?(
) go"ernment of Territories 's. 1%%(
-onurrent powers '!ederal and 0tate(
There are >C onurrent powers under s.?1 of onstitution. Loo/ at pages ?C)?1 of
tetboo/ for the list. If the !ederal parliament has not legislated in relation to matters
listed in s.?1* then matter remains with the 0tates. If both the !ederal and 0tate
4arliament ma/e laws in regards to the same matter* s. 1C of the -onstitution
pro"ides that Hwhen a law of a state is inonsistent with a law of the -ommonwealth*
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the -ommonwealth 'latter( will pre"ail and the 0tate 'former( shall to the etent of
inonsisteny* be in"alid.
2esidual powers '0tate only(
) eduation
) health) riminal law
) torts and ontrats
) transport
) property and land
) loal go"ernment
This is why eah state has different systems. +"en if a matters falls within the residual
powers of the 0tate* the !ederal go"ernment may be able to influene law)ma/ing in
that area by ta/ing ad"antage finanial dependene of the 0tate upon the
-ommonwealth. nly !ederal go"ernment ollets inome ta and main soure of
inome for state go"ernments is money in the forms of grants pro"ided by the !ederal
go"ernment.
There are limitations on the powers of the -ommonwealth. These are:
) annot prefer one state o"er another in regards to taation 's. ?1 'ii((
) annot auire property without &ust ompensation 's. ?1 'i((
) must try by a &ury a person harged with offene under ommonwealth
law and the trial must be held in state where offene was ommitted 's.
C(
) annot restrit free trade between states 's. %(
) annot prefer one state o"er another in regards to trade* ommere or
re"enue 's. (
) annot ma/e law establishing* imposing nor prohibiting any religion 's.
11@(
) must pre"ent residents of states being disriminated against within
other states 's. 11E(
) must protet e"ery state against in"asion 's. 11(
There are limitations on the powers of the 0tates. These are:
) annot le"y ustoms and eise duties 's. C(
) ensure that trade between states is free 's. %(
) annot raise military fores 's. 1C(
) annot oin money 's. 11?(
=igh -ourt of Australia has stated onstitution has a number of implied limitations
upon ommonwealth powers. These are:
) annot ma/e law disriminating against the states or impairing their
ontinued eistene 'Joowarta " B&el/e) 4etersen K1% 1?5 -L2
1@(
) annot ma/e law that onflits with freedom of ommuniation about
politial* go"ernmental and publi affairs implied into the onstitution
as a result of the system of go"ernment established by the onstitution
'Australian -apital Tele"ision 4ty Ltd " -ommonwealth of Australia
K1% 11E -L2 1C@M $ationwide $ews 4ty Ltd " ,ills K1% 1EE-L2 1(
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-hanging the -onstitution
) it is not easy: only 7>C ha"e been suessful
) s. 1% sets out how onstitution should be amended
) There are 5 reuirements whih ha"e to be followed preisely. These
are:
a. 4roposed amendment must be passed by an absolute ma&ority of both =ouses of 4arliament
b. 4roposed amendment must be put to Australian "oters in the form of
a referendum and passed by
i( ma&ority of "oters and
ii( ma&ority of the 0tates '> or more(
. 4roposed amendment must reei"e royal assent from Do"ernor
Deneral
The legislature 'law ma/ers( aording to the -onstitution: Hthe legislati"e power of
the -ommonwealth shall be "ested in a !ederal 4arliament whih shall onsist of the
Queen* 0enate and =ouse of 2epresentati"es and whih is herein)after alled #The
4arliament’ or #The 4arliament of the -ommonwealth’ 's. 1(.This is similar for 0tate parliaments.
4arliament so"ereignty: 4arliament is the supreme law ma/er. A.F. 9iey eplained
this as the right of the British parliament #to ma/e or unma/e any law whate"er* and*
further* that no person or body is reognised by the lawGas ha"ing a right to o"erride
or set aside legislation of the 4arliament’. There are 5 important onseuenes:
1. laws made by parliament are not sub&et to any #higher law’ suh as priniples of
morality* international law or ommon law '&udge)made law(.
%. parliament annot ma/e a law binding future parliament that is a parliament is
always free to hange its own laws.
5. no person* not e"en a &udge or a member of the eeuti"e go"ernment an o"erride*ignore or disobey a "alid law made by a parliament.
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-ontrary to 9iey’s notion of absolute so"ereignty* power of parliament has a
limitation. They must eerise their power as with the terms of the onstitution whih
sets out law ma/ing powers aording to the rule of law. If they don’t do this the law
will be delared unonstitutional and in"alid by the ourts.
0truture of parliamentIn +ngland:
<pper house was /nown as house of tenants)in)hief and elesiastis but now /nown
as house of lords.
Lower house was /nown as house of eleted /nights and itizens but now /nown as
house of ommons.
Australia has a similar struture. ,e ha"e adopted ,estminster system 'biameral
parliament(. At federal le"el and also some state le"els we ha"e biameral parliaments
'there are a few eeptions whih ha"e a uniameral parliament(.
In !ederal parliament upper house is /nown as the 0enate and lower house is /nown
as the =ouse of 2epresentati"es.
In 0tate parliament upper house is /nown legislati"e ounil and lower house is/nown as legislati"e assembly 'it is alled house of assemble in Tasmania and 0outh
Australia(. The eeptions are $orthern Territory* Australia -apital Territory and
Queensland who ha"e only the lower house and therefore are a uniameral
parliament. Queensland passed the -onstitution At Amendment At 1%% 'Qld(
whih abolished the upper house in 1%%.
Lower =ouse
) eah member of the =ouse is eleted to represent a partiular
eletorate* where eah eletorate ontains roughly the same number of
people so that itizens ha"e eual representation in the Lower =ouse.
) aording to onstitution the number of members of the Lower =ouse
must be approimately twie the total number of 0enators. There are
1?C members in the Lower =ouse.
) eeuti"e go"ernment is formed by the party with ma&ority of members
in the lower house.
) the prime minister is the leader of the winning party in the Lower
=ouse.
) on a state le"el the premier is traditionally a member of the lower
house and also the leader of the winning party.
<pper house) /nown as 0tate’s =ouse or =ouse of 2e"iew.
) eah state has eual representation with 1% senators from eah state
and % from eah territory totalling to E@ senators.
) as most representation in the Lower =ouse are based upon population
distribution with most representati"es from populous states* the
founders of onstitution reognised the danger of the Lower =ouse
fa"ouring these states and so the 0enate was form to redue this ris/
and gi"e other 0tates to oppose biased legislation.
) +euti"e go"ernment neessarily ontrols the Lower =ouse but not so
muh the <pper =ouse and while a law proposed may automatially
pass the Lower =ouse* it may not pass the <pper =ouse. The 0enate
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) has power to "eto '"ote to blo/ or o"erride deision( any law
proposed by the eeuti"e go"ernment in the Lower =ouse.
The -rown 2epresentati"e
) represents the ueen
) onstitution grants signifiant eeuti"e powers to D)D but aordingto onstitutional on"ention* the D)D only ats on the ad"ie of the
+euti"e -ounil in the eerise of those powers
) has reser"e powers whih are unwritten powers that an be eerised
independently of the ad"ie of the eeuti"e go"ernment. There are >
powers:
a. appoint prime minister
b. dismiss prime minister
. fore a dissolution of parliament
d. refuse to dissol"e parliament
) when eerising reser"e power DD ordinarily ats in aordane with
on"entions suh as appoint prime minister under s. @> of theonstitution* the D)D must by on"ention appoint the leader of the
party that has ma&ority seats in Lower =ouse
) at !ederal le"el it is the Do"ernor Deneral
) at state le"el it is the Do"ernor
) at territorial le"el it is the administrator
) the rown representati"e is part of legislature: a Bill must reei"e
2oyal Assent from the rele"ant -rown 2epresentati"e
+euti"e power
Administer law* arry on business of go"ernment and maintain order and seurity
Aording to onstitution: the eeuti"e power of the -ommonwealth is "ested in the
Queen and is eerisable by the Do"ernor) Deneral as the Queen’s representati"e and
etends to the eeution and maintenane of this -onstitution and of the laws of the
-ommonwealth 's. @1(.
3inisters are members of 4arliament appointed by D)D on the ad"ie of the 43 to
administer "arious departments.
0imilarly state onstitutions "est eeuti"e power in Do"ernor as ad"ised by the
4remier and the ministers. They are /nown as Do"ernor in -ounil.
In territories eeuti"e power is "ested in the Administrator as ad"ised by the -hief
3inister and other ministers. They are /nown as +euti"e -ounil.
+"en though eeuti"e power is "ested in -rown representati"e in pratie it isDo"ernor in -ounil7 +euti"e -ounil and publi ser"ie that eerise eeuti"e
power. 4arliaments delegate to the eeuti"e go"ernment law ma/ing power of its
own.
9otrine of responsible go"ernment is the priniple that eeuti"e go"ernment should
be answerable to the legislature and omprised of ministers.
3inisters ha"e their own portfolio whih they are responsible for. There are different
types of ministers.
0enior ministers) minister responsible for one or more important portfolio
;unior ministers) minister responsible for one or more less important portfolio
Ba/benher) member of the ma&ority politial party who is not a minister
-abinet) subset of eeuti"e ounil onsisting of senior members.
8/12/2019 IBL Assessment Quiz Notes
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0hadow abinet) ministers of opposing party 'party with net to largest number of
seats in lower house appointed by leader of opposition( who srutinise and hallenge
deisions and ations.
uter) ministers not members of the -abinet
The 437premier and abinet are not epressly referred to in the federal7stateonstitution.
If a person is not happy with a deisions made by go"ernment department or ageny
they an:
) find an ombudsman who is a publi offiial in"estigating omplaints
about the go"ernment7organisation
) under !reedom of Information At 1% '-th( they an aess
douments and information held about them by any federal department
or ageny
Administrati"e Appeals Tribunal) reated by Administrati"e Appeals Tribunal At 1E? '-th(
) hears appeals from deisions of ministers* offiials and agenies.
) it is not a ourt rather part of eeuti"e go"ernment and eerises
administrati"e authority not &udiial authority.
) when a deision is re"iewed AAT substitutes its own deisions in plae
of original one
) ;udiial re"iew:
-ommon law offers remedies to those that ha"e suffered damage. The
remedy is for the ourt to issue prerogati"e writ whih is an order of
the ourt ordering an administrati"e offier or tribunal to at or to
refrain from ating in a partiular manner. There are > types of this
writ:
a. habeus orpus) person imprisoning another is direted to bring the
other person before a ourt of law
b. mandamus) ourt orders someone to perform their administrati"e
duties
. ertiorari) ourt orders that a reord of an administrati"e deision be
produed
d. prohibition) ourt prohibits an administrati"e offier or tribunal from
eeeding its powers
) ourts gi"en additional powers by Administrati"e 9eisions ';udiial2e"iew( At 1EE '-th( to re"iew:
a. breah of the rules of natural &ustie has ourred in onnetion with
ma/ing of the deision
b. proedures that were reuired by law to be obser"ed in onnetion
with ma/ing of the deision were not obser"ed
. person who purported to ma/e deision did not ha"e the &urisdition
to do so
d. deision was not authorised by legislation in pursuane of whih it
was purported to be made
e. ma/ing of deision was improper eerise of power onferred by the
legislationf. deision in"ol"ed error of law
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g. deision was indued or affeted by fraud
h. no e"idene or other material to &ustify ma/ing of deision
i. deision was otherwise ontrary to law
) order of re"iew may uash 'anel( earlier deision* order deision
ma/er to rema/e deision aording to law or ma/e a new order
delaring rights of parties ordering them to refrain from doingsomething or performing an at.
9elegated legislation
Legislation made by a body other than parliament and to whom parliament has
delegated law)ma/ing power
Ad"antages: parliaments do not ha"e time or epertise to debate and "ote upon e"ery
rule and regulation* omple and tehnial rules made better by ualified eperts in
that area and go"ernment departments and loal authorities are usually loser to
problem and an better onstrut a solution.
9isad"antages: <ndemorati natures of proess as laws are made by uneleted
offiials and as a result there are more rules to be made and the reason why there is somuh o"er)regulation.
The &udiiary
Interpret and apply law. Aording to onstitution: the &udiial power of the
-ommonwealth is "ested in a !ederal 0upreme -ourt* to be alled the =igh -ourt of
Australia and in suh other federal ourts as the 4arliament reates and in suh other
ourts as it in"ests with the !ederal &urisdition. The =igh -ourt shall onsist of a
-hief ;ustie and so many other ;usties* not less than two as the 4arliament
presribes 's. E1(.
+ah state and territory has their own ourt system and there is also a federal ourt
system and they are organised into a hierarhy system.
The ad"antage of ha"ing a hierarhy system:
permits ourts to be lin/ed by a"enues of appeal) if a party is not happy with a
deision they an appeal to a higher ourt within the hierarhy
enables partiular ourts to speialise in partiular types of trial and failitates
effiient alloation of legal resoures
failitates operation of the dotrine of preedent N deisions of higher ourts are
legally binding upon lower ourts
3ost ourts eerise original &urisdition 'hears and deides disputes for first time(and appellate &urisdition 'hears appeals from ourts lower on hierarhy(.
0ummary offene) less serious offene
Inditable offene) more serious offene
4reedent is important in ommon law. There are % types:
Binding preedent 'ratio deidendi of earlier ase deision( eah ourt is bound by
deisions of ourts of the same le"el or higher than it in the same hierarhy.
4ersuasi"e preedent an only influene a deision.
In some ases a deision an be both.
9istinguishing the preedent emphasis the differene between a preedent and the present ase in order to &ustify and refuse to follow the preedent.
8/12/2019 IBL Assessment Quiz Notes
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;udiial ati"ism) o"ert law ma/ing that is the eerise of legislati"e power by a &udge
or &udges.
A92) other methods rather than going to ourt. It is heaper* faster* pri"ate and less
stressful than going to ourt. Also it is less destruti"e to business relationships than
litigation. It also relie"es pressure on and osts of maintaining the ourt system.
Type of A92 ,hat is it6 Benefits
$egotiation !ailitati"e proess
in"ol"ing "oluntary and
onfidential disussion
between parties either with
or without third party.
utome remains
onfidential
3aintains ongoing
relationships
3ediation !ailitati"e proess
in"ol"ing "oluntary and
onfidential disussion between parties with an
independent and neutral
third party alled the
mediator who assists the
parties to resol"e disputes.
utome remains
onfidential
3aintains ongoing
relationships
-oniliation 0imilar to mediation where
the parties meet before
neutral third party alled
the oniliator who is
s/illed in the area ofdispute.
utome remains
onfidential
3aintains ongoing
relationships
-oniliator will gi"e
opinions about positions of
parties and suggest
solutions
-oniliator is s/illed in
that partiular area
Arbitration 0imilar to going to ourt
where the parties meet before neutral third party
alled the arbitrator who
onsiders merits of eah
ase and ma/es deision
binding upon both parties.
Laws eist that regulate
arbitration
Internationally reognised
9eision is binding upon
both parties