stage 2 legal exam big questions
constitution
functions and sources of law
origins of the constitution
movement to federation
federal institutions of government
altering the constitution
interpretation
Why are the following underlying principles of the Australian legal system important?
constitutional development of the commonwealth
reasons for slow progress
reasons for federation (DITTIC)
1 pre-convention stage
2 australasian conventions
3 colonial ratification
4 british approval
5 proclamation and inauguration
1885 federal council
defence complaints- major general edwards
1889 tenterfield oration
1890 australasian federation conference
1891 sydney convention
prominent figures: Edmund barton, charles kingston, samuel griffith
1st (1897 march) & 2nd session of 2nd national australasian conference (NAC)
models for the constitution
1898
1899
1900
1899
further steps towards independent nationhood
1 jan 1901
rule of law
separation of powers
responsible government
representative government
judicial independence
big questions - write responses
How adequately do laws provide for future generations? (Consider: competing rights and responsibilities
Are the institutions of government fair and efficient? (Consider: fairness and efficiency)
Is a power imbalance between a government and its people necessary for a democratic government to be effective and functional? (Consider: the empowered and the disempowered)
dispute resolution
Are laws responsive to change? (Consider: certainty and flexibility)
To what extent does case law and legislation adequately compensate for the lack of explicit human rights in the Constitution? (Consider: certainty and flexibility)
Do judges have too much power? (Consider: the empowered and the disempowered)
How do courts balance the need to facilitate predictability, certainty and fairness, while also re-examining established legal principles to ensure a progressive society? (Consider: certainty and flexibility)
Is the law fair if it is subject to interpretation? (Consider: fairness and efficiency)
Are traditions worth maintaining?
How adequately does the Australian legal system achieve the rule of law?
Do the institutions of government, and its laws, adequately reflect the people?
Do people influence laws, or do laws influence people?
Should Australia have a complete separation of powers?
How effective are the mechanisms for supervising the exercise of power by government institutions?
What is the distinction between rule of law and rule by law?
Should judges make law?
Does the court hierarchy facilitate just outcomes?
other areas:
What is the structure, composition, and role of the Commonwealth parliament, and one state or territory parliament?
What is the structure and purpose of one state or territory court hierarchy?
How and why are laws made by Commonwealth parliament, and one state or territory parliament, and delegated bodies?
How and why are laws made by the Commonwealth courts, and one state or territory court, including the High Court?
What is the relationship between the three arms of government, and the laws they make?
How and why are laws supervised?
What are the strengths and weaknesses of different law-making processes and the laws that result?
How do the institutions of government protect the rights of groups and individuals in the Australian community, including Aboriginal and Torres Strait Islanders?
big questions-plan extended responses
What is justice? (Consider: the empowered and the disempowered, competing rights and responsibilities)
Is justice accessible? (Consider: the empowered and the disempowered)
Is justice reliant on the abilities of lawyers/interpretation of judges? (Consider: fairness and efficiency)
Are too many rights afforded to an accused person in the adversarial system of trial? (Consider: competing rights and responsibilities)
Do common understandings of fairness have a place in the legal system? (Consider: fairness and efficiency)
Do courts resolve disputes fairly? Fairly for whom? (Consider: fairness and efficiency)
Is being fair and being lawful the same thing? (Consider: fairness and efficiency)
Would fairness be better achieved by another justice system? (Consider: fairness and efficiency)
Are the rules of evidence too strict to allow just outcomes? (Consider: certainty and flexibility)
Is the adversarial system or inquisitorial system of trial more likely to result in just outcomes? (Consider: fairness and efficiency)
Should juries be used in the justice system? (Consider: fairness and efficiency
What is the role of the following features of the adversary system, and why are they important?
burden and standard of proof
rule of law
role of the judge
role of parties, witnesses, and other participants, including juries
rules of evidence and procedure
other areas
How are criminal and civil disputes resolved with and without a trial?
What are the key features and principles of criminal and civil law(s)?
How effective is the adversary system of trial compared with inquisitorial systems?
How does the adversary system of trial protect the rights of groups and individuals in the community, including Aboriginal and Torres Strait Islanders?
rule of law definition: states that all people are equal before the law and all action will be undertaken in accordance with constitutional law. it is important in Australia's legal system as it provides the cornerstone for the functioning of a just and democratic society with 3 features that protect individual rights, provide legal certainty and prevent arbitrary actions from institutions of government.
equality before the law is important as it states that all institutions of government must at all times exercise their powers so that people may be considered equal before the law and no individual or section is arbitrarily discriminated against -this underpins a just society
supremacy of constitutional law- states that the Australian constitution is supreme and every person and organization as well as institutions of government are bound by the principles prescribed by const. law.
fundamental human rights- all insts. of government exercuise power om the assumption thta onfcidal certain rights exist at all tiomes and under all circumstances and laws cannot be made to remove them.
judicial
executive
legislative
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How institutions of government facilitate the rule of law:
parliament functions: heed advice of of chief legal officers to enact laws within the prescribed powers of the constitution, enact laws to facilitate legal processes e.g. pass electoral laws for reps at regular elections, enact laws for the protection of human rights such as the RDA 1975 (cth)
court functions:
HCA original jurisdiction resolves const. disputes about validity of state/federal statutes to ensure parliaments exercise their power in accordance with the const.
courts resolve disputes by observing the legal rights of an individual e.g. presumption of innocence
constitutional monarchy
a constitutional monarchy has two interrelated elements: a monarchy and a constitutional government
Answer: The rule of law is therefore a fundamental aspect of the Australian legal system to uphold a functioning democratic society, as it provides a basis for the grounds on which laws will be made and followed i.e. the 3 elements of the rule of law and establishes that every indivudla will be equally susceptible to these laws while maintaining the integrity of the legal system.
Commonwealth parliament has 3 elements: