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Pub Law Test 1
Terms in this set (61)
What is public law?
The body of legal principles that apply to public power. Public law principles limit the scope of public power
What is the rule of law?
Everybody has to follow the law as nobody is above the law
Thin conceptions of the rule of law
Focus on the procedures of which law is made or carried out
Thick conceptions of the rule of law
Concerned with the justice and fairness of the legal system. Procedure also needs to be fair.
Who coined the phrase rule of law?
Dicey point number 1
Only can be punished for a breach in the law.
Dicey Point number 2
No man is above the law
Dicey Point number 3
Constitution is pervaded by the rule of law
Fuller- Thick or thin
Law should be accessible
Raz- thick or thin
What did Raz think of the rule of law?
People should be ruled by the law and obey it. the law needs to be able to be followed
Bingham- Thick or Thin
All persons and authorities of the state bound by the law. Human rights and equality
Allan- Thick or Thin
Rule of law restricts the violation of citizens rights
Australian Communist Party v The Commonwealth
Politicians are not above the law (must follow constitution)
Government power is limited and controlled
Cannot be changed easily. Aus constitution can only be changed by referendum. On the other hand, Aus state constitutions just pieces of legislation
Public power is constrained by political rules. consequence for breaking a political rule is a political sanction
Public power is enforceable by the courts. Substantial legal limits on government powers
Has both legal and political constitutionalism. Conventions (political) Constitution (legal)
citizens have a direct input into how legal systems operate
We have our say by voting for different members of parliament if not happy with parliament vote for somebody else in the next election
Instrumental grounds for democracy
Produces good outcomes, creates better citizens
Inherently fairer to give people a say in how they are governed
Problems with democracy
System only pleases the majority, tyranny of the majority
tyranny of the majority
The potential of a majority to monopolize power for its own gain to the detriment of minority rights and interests.
Who is restricted from voting?
Prisoners have limited abilities and children
Corruption in the public sector
Functions of government- provide
Goods, services and infrastructure
Functions of government- distribute
Taxes, Welfare payments
Functions of government- regulate
Behaviour rules govern what we can eat and who we can marry
Functions of government- constitutes
legal framework needed for a society to function (property rights, courts for adjudicating disputes)
A system in which power is divided between the national and state governments
Defence, separate from UK, National pride
Exclusive power example
Customs and excise
Concurrent powers example
Ministers are responsible to the people
and parliament for the actions taken within their portfolio. Parliament can question ministers about the way they are managning their department. If a minister loses the confidence of parliament they should resign
A political rule that is not backed up by legal sanction, There may be political consequences if they are breached but there will not be legal consequences
Entered into by two or more nations. Known as: Treaties, conventions, covenants
International legal bodies
UN, International Courts
Laws develop over years. Nations consider themselves bound
a legal system that does not deem treaties enforceable domestically until and unless they are incorporated into domestic law, usually by passing similar legislation
In certain circumstances indigenous law can survive the imposition of British Law
Mabo- Didn't recognise
No entitlement to indigenous self-government; acquisition of sovereignty by the British and the receipt of British law cannot be challenged
Pre Uluru Convention (racial non-discriminative guarantee)
remove references to race and replace with A and TI, Insert symbolic language
Uluru Statement 1
We call for the establishment of a First Nations Voice enshrined in the Constitution.
Uluru Statement 2
We seek a Makarrata Commission to supervise a process of agreement-making between governments and First Nations and truth-telling about our history.
Reasons for Uluru Statement rejection
Contrary to principle of equality - myth of constitutional neutrality . Would be a "third chamber of Parliament". Indigenous MPs are the First Nations Voice . Too short on detail. Too late in the process . Australians won't support it
Referendum Council Recommendation 1
That a referendum be held to provide in the Australian Constitution for a representative body that gives Aboriginal and Torres Strait Islander First Nations a Voice to the Commonwealth Parliament.
Referendum Council Recommendation 2
That an extra-constitutional Declaration of Recognition be enacted by legislation passed by all Australian Parliaments, to articulate a symbolic statement of recognition to unify Australians.
Which constitutions are written?
USA, Aus CTH, Aus state
Which constitutions are rigid
Aus CTH, USA
Which countries have SOP
Australia (partially), USA
Who has constitutionally entrenched rights protections?
USA, Aus CTH (minimal)
English Law in Aus- What happened
in 1788 based on Terra Nullis, Governor Phillip said that British law would apply from then onwards.
English law in Aus- Did the Aboriginals agree?
No, no treaty was signed. They never ceded sovereignty to the British
Why do Aborginals want a treaty?
would break the 200-year-old cycle of governments not negotiating with the Aboriginal people. Would provide a framework for how negotiations are held on indigenous issues such as health and land ownership
Whats happening with Aboriginal treaties?
Victorian state government organising treaty now. Not happening on federal level though
Other sets by this creator
Rights, Utilitarians and runaway trains
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