p&l year 11

a government where members are elected by the people to reflect their values and concerns.

-make laws

-debate issues of national importance

-hold the government accountable in between elections

-administers the law

-cabinet, prime minister

the 'authority to govern' within their territory.

the arm of government which creates and modifies laws.

-majority rule

-political participation

-political freedom

-equality of political rights

a liberal democracy protects the rights of all citizens, even those who are not in the majority.

-using the law in action, resolving legal disputes and determining penalties.

-judges

-represent the people who elect them

based on popular opinion of the majority and the will in govt+decision making

executive, legislative and judiciary

political and legal system of a nation state

-includes courts, judges, public servants and politicians.

a democracy in which all citizens take a part in.

actively taking part in their own government by putting their political rights and freedoms to use

-voting in elections, joining political parties

-entitlements that are essential to citizens' ability to govern themselves

-voting

entitlements people have to participate in their government without any interruption or bias

limits to power

equivalence of different types of power

the rule of law is a philosophy that states that society should be governed by laws, not through the arbitrary use of power but through respect for the law.

-the law must be clear, consistent, coherent and known.

-made in an open and transparent way.

-no one and nothing is above the law, all people and parts of the political system must be subject to the law.

-the purpose of the rule of law is to protect citizens from abuse of power, whereby they follow the law by moral obligation rather than fear.

a democracy in which the rights of the individual are balanced against the will of the majority.

-by setting limits on the government's power, it ensures the govt is legally and politically held accountable for its' actions.

-prevents abuse of power by government; protecting citizens’ rights

1. outline basic structure of govt

2. outline division of power

3. establish how the constitution can be enforced

4. outlines how the people who serve the government are appointed (how they are replaced, how often they work)

5. outline limits on what the government can do

-"higher law" overrides other laws

-they are entrenched

-codeified

-written

refers to the idea that power should be limited and there is respect for rules that limit power.

a set of fundamental laws that "governs the governers"

-the law should apply to all, equally.

-applied to all parts of the political system

those rights which are written in the text of the constitution

rights that are not written in the constitution but which the constitutional court have interpreted to exist.

a form of government in which political and legal power is unlimited by any constitution.

the courts must be completely free from interference and influence from the government, the parliament of any person.

the organisation in such a way that prevents the concentration of power in one person or group.

-parliaments should have the ultimate authority to make law (the legislative function)

-prime ministers and their ministers (cabinet) should administer the law(executive function)

-the courts should decide legal cases and disputes (judicial function)

no one arm of government should be able to direct another.

-concurrent, residual and exclusive

shared powers between federal and state governments

for example:

-health (covid!!!!)

-education

-some taxation

power that only the central government holds

eg)only the federal government in canberra can make decisions on the military

“leftover power”

-areas of responsibility not mentioned on the constitution are called state powers

for example:

-state criminal law

-transport

-police

the process in which executive and legislative action can be challenged and reviewed by the high court.

purpose: to prevent the executive or legislative from acting out of power.

a system of government in which sovereignty is geographically divided between on central and two or more regional governments, each sovereign.

to prevent abuse of power through the concentration of power in the hands of one body.

the idea that power should be limited. includes a culture where there is respect for the law

a set of fundamental laws which “govern the governors”

division of powers in a federalist state refer to the different levels of government (federal, state/territory), whereas separation of powers are the different arms inside the government (legislative, executive, judicial)

the idea that the executive is drawn from and responsible to the legislative arm.

this only occurs in parliamentary systems in which the executive are also members of the legislative.

→legitimacy

→universal

→clarity

→prospective, not retrospective

→enforceable

→appropriate remedies

→flexible

when people follow the law out of moral obligation, not out of fear.

-applicable all the time

-applicable to a whole population

-applicable to a geographical jurisdiction

-the population which the law applies to must sovereignty

-laws have jurisdiction

-created by the referendum (greatest legitimacy)

made by parliament

made by unelected courts when new precedents are created

-which level of government created the law (fed, state)

-international law (special. different)

-commonwealth/fed law (parliament in canberra)

-state law(parliament of WA)

constitutional law is the ultimate law in australia.

→if a statute is inconsistent with the constitution, it is invalid.

statutory law overrides common law where there is an inconsistency between the two.

a sovereign parliament

the land and sea which the law applies to

fed - entire country

state - subnational regions

-highest court of appeal

-appointment, tenure and removal

-”special leave” must be given to appeal

the process by which judges interpret the words or phrases in statute in order to give the words meaning.

The need for statutory interpretation occurs when a case is brought before a court in which there is a dispute about whether the words of a statute apply to the facts relating to the dispute.

→statute may be unclear

→meaning of words can change over time

→the act may be silent on an issue

→the intention of the act is not clear

→inconsistencies in the act

→unclear definitions of particular words

→mischief rule

→golden rule

→literal rule

Judges must assess the Act in isolation and apply it exactly in accordance with its words.

→however, this can lead to people being unfairly ‘caught’ breaching the act, leading to absurd outcomes.

“Pedestrians are not allowed in the freeway.”

→a person whose car has broken down and is walking to the emergency phone is in breach of the law if the words are interpreted literally.

This is not a fair outcome.

courts will interpret legislation in a way which will avoid unfair, absurd or inconsistent applications of the Act.

—the court will look at the general aim of the statute to interpret an inconsistent Act.

If the literal rule yields an absurd outcome, the judge will apply the golden rule.

“Pedestrians are not allowed on the freeway”

thus, ‘pedestrian’ is interpreted so as not to include people walking to freeway phones in an emergency. Such people are not ‘pedestrians’ and can’t be charged under the Act.

the court will interpret the legislation in a way which is consistent with the intention or stated purpose of the law—the ‘mischief’ it was meant to remedy (second reading speech in parliament)

“Pedestrians are not allowed on the freeway”

Mischief: parliament is clearly aiming to prevent people walking on the freeway as regular pedestrians, not trying to prevent broken motorists from seeking help.

established authorities and legal principles

documents which do not form part of an Act but can be used in court to assist in the interpretation of that Act

reference to other sections of the same act

Legal maxims are unwritten rules that guide legal professionals such as judges in their work.

→developed by courts as another way to read unclear statutes

‘of the same kind’

‘a word known by the company it keeps’

where a list of words are followed by more general words, the meaning of the general words is restricted to the same ‘class’ of the words in the list.

in deciding the meaning of ‘scraps’ of meat in European laws on the export of beef, the judge ruled it meant pieces of meat unsuitable for human consumption, as it was in context with words ‘large tendons, cartilages and pieces of fat’.

a dispute in which a private party is the plaintiff and the defendant is accused of a civil wrong.

a dispute in which the State is the prosecuting party and the defendant is accused of a crime.

the trial system used in common law countries.

→’council-led trial’

→based on the idea that justice is best achieved through a ‘battle of words’ between adversaries

a trial system used in civil law countries (Indonesia, France)

→’court-led trial’

→based on the idea that the truth is best discovered through inquiry of an expert (i.e. the judge)

adversarial system trials are council-led trials, whereas inquisitorial system trials are court-led trials.

if the court is to discover the truth, it is essential that parties have the opportunity to verify the information provided by the witnesses, which is difficult to do if the court receives evidence in writing or via a third party (and are therefore unable to cross-examine the person).

→preamble

→definitions

→standard english dictionary

→legal dictionary

-the defendant does not need to prove their innocence, the persecution needs to prove they are guilty.

-has a persecution who brings the charge to court

less serious offences that are dealt with by summons (order) before a magistrate in the Magistrates Court

are more serious offences often involving an arrest, with the offender having a right to a trial by jury before a judge in either the District Court or the Supreme Court.

The pre-trial procedure for an indictable offence is more complex

-may include a bail or remand or detailed police investigation

traffic offence

violent assault, manslaughter, sexual assault

The money put up by a person accused of a crime to assure the court they will re-present themselves on the trial date. Bailing allows the accused to remain free until the trial date. Bail will not be granted if the accused is considered a danger to society.

the act of holding a person in detention between their arrest and trial. Remand is used when it is believed that the accused is a danger to society and is likely to fail to appear for trial.

the process by which ordinary citizens become directly involved in the administration of justice in WA by serving as jurors in the District and Supreme Courts.

The Electoral Commission will select by ballot the required number or jurors from the electoral roll.

Any person on the Western Australian electoral roll is liable to serve as a juror, except for:
—persons over 70 years

Persons excluded by the Juries act 1957 including Judges, Police Officers, Lawyers, Members of Parliament.

Persons convicted of an offence and sentenced to life imprisonment or an imprisonment exceeding two years

People who have in the last five years:

-served a sentence of imprisonment or been on parole

-have been found guilty of an offence and detained in a juvenile detention centre

-have been the subject of a parole order or community order.

-A person’s business or occupation makes it difficult to participate in jury duty at the time requested

-The person’s physical health

1. When a jury is required, the Jury Supervisor calls approx. 20-40 people from the jury pool (selected by ballot) to form the jury panel for that trial.

2. Of the 20-40 people selected, named are then drawn by the ballot. The jury who is selected then stands and walks to the jury box.

3. If no challenge (objection) is made then the person is ‘empanelled’ (enrolled) by taking an oath and becomes a member of the jury.

4. This process continues until 12 people have been selected. The remaining people who were not selected are free to go.

Each party may challenge up to 3 jurors without giving a reason ( peremptory challenges )

In addition, the prosecution or an accused may challenge a juror ‘for cause’ — on the ground that the juror is not qualified by law to act as a juror or that the juror has a relationship with the accused.

*The trial judge decided on the facts in such a challenge.

The process of empanelling jurors continues until the required number of jurors has been empanelled.

yes, there can be more than 12 jurors.

up to 18 jurors can be empanelled this occurs if the trial is to extend beyond a few days.

the large jury is required as a safety net, in the event of death or illness.

a hung jury will occur and the judge will discharge them.

Jury that cannot agree upon a verdict after extended deliberation and is unable to reach the required unanimity or supermajority

1)deterrence

2)incapacitation

3)rehabilitation

4)retribution

5)restoration

-punishment must be of the offender

-only imposed if the criminal had responsibility for their actions

-the punishment must be proportional to the crime

-must be imposed by a judge

-should apply the principles of natural justice

a principle of justice incorporating:

-the rule against bias

-the right to a fair hearing

-courts have a duty to act fairly.