Yr 11 Legal Studies Key Terms / Vocab (Part 1)

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anarchy

Back 1

the absence of laws and government

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customary law

Back 2

principles and procedures that have developed according to the customs of a people or nation, or groups of nations and are treated as obligatory

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customs

Back 3

collective habits or traditions that have developed in a society over a long period of time

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equality

Back 4

the state or quality of being equal, that is, of having the same rights or status

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ethics

Back 5

1. moral principles that govern a person's behaviour or the conducting of an activity
2. a major branch of philosophy, which investigates the nature of values and of right and wrong conduct

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fairness

Back 6

free from bias, dishonesty, or injustice; conformity with rules or standards

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justice

Back 7

the legal principle of upholding generally accepted rights and enforcing responsibilities ensuring that equal outcomess are achieved for those involved

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law

Back 8

a set of rules imposed on all members of a community which are officially recognised and enforceable by persons or organisations such the police and/or courts

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legal system

Back 9

system of courts, prosecutors and police in a country

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natural justice

Back 10

the body of principles used to ensure the fairness and justice of the decision making procedures of courts; in Australia it generally refers to the right to present your case, the right to freedom and from bias by decision-makers and the right to a decision-based on logically relevant evidence

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procedural fairness

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2 main principles
-right to be heard (and right to a fair hearing)
-right to have a decision made by an unbiased decision-maker - even tiny appearance of bias is enough - R v Sussex Justices Exparte McCarthy, dangerous driving[1924] a clerk was also a solicitor representing McCarthy's opposition in another case

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rule of law

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noone is above the law, not even law makers

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rules

Back 13

regulations or principles governing procedure or controlling conduct

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tyranny

Back 14

rule by a single leader holding absolute power in a nation-state

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values

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principles, standards or qualities considered worthwhile or desirable in a society

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adversarial system

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a system of resolving legal disputes, common to England and Australia, that relies on the skill of representatives for each side (eg. defense, prosecution, lawyers), who present their cases to an impartial decision-maker

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appeal

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an application have a higher court reconsider a lower court's decision, on the basis of an error of law

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appellate jurisdiction

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the ability or power of a court to hear appeals of lower courts and to regret, affirm or modify those decisions

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bicameral

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(of a legislative body): having 2 chambers

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bill

Back 20

a drafted law that has not yet been passed by parliament

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committal hearing

Back 21

inquires held in the Local or Magistrates' Court to determine whether there is enough evidence against the defendant to warrant a trial in a higher court (establishing a prima facie case)

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common law

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law made by the courts and judges; and historically law common to England

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concurrent powers

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state parliament however, can also make laws in most of the s51, concurrent powers are powers existing at the same time, powers held by both state and federal parliaments

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defamation

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the act of making statements or suggestions that harm someone's reputation in the community

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delegated legislation

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laws made by authorities other than parliament, who are delegated to do this by an act of parliament (and non-parliamentary)

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domestic law

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the law of a nation

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equity

Back 27

the body of alw that supplements the common law and corrects injustices by judging each case on its merits and applying principles of fairness

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courts of equity

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historically, courts whose decisions are more discretionary and based on moral principles which served as an antidote to the inflexibility of common law

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exclusive powers

Back 29

s52, powers that can be exercised only by the federal parliament outlined
1. the seat of government of the commonwealth, and all places acquired by the Commonwealth for public purposes
2. matters relating to any department of the public services controlled by the Commonwealth, according to the Constitution
3. Other matters declared by the constitution to be within the exclusive power of the Commonwealth parliament

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ex parte

Back 30

(latin) 'from one side' in a case this means the other side is absent or unpresented

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external affairs power

Back 31

the power of the Commonwealth to legislate on International matters involving Australia; interpreted by the HC to mean that when the Commonwealth signs an International treaty or convention it has the authority to enact to this international law within Aus

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federation

Back 32

the process of uniting several states to form a single national government

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indictable offences

Back 33

serious criminal offences that require an indictment ( a formal written charge) and a preliminary hearing; they are typically tried before a judge and jury and are subject to a greater penalty

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inquisitorial system

Back 34

legal systems where the court or a part of the court (eg. the judge) is actively involved in conducting the trial and determining what questions to ask; used in some countries with civil legal systems as opposed to common law systems

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jurisdiction

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powers of a court, depending on its geographic area, the type of matters that can be decided and the type of remedies that can be sought

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legislative powers

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the legal power or capacity to make laws,'enumerated powers', the federal parliament has the power to all of the matters of s51

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mediation

Back 37

a process in which 2 parties are brought together for the purpose of discussing and resolving a conflict

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obiter dicta

Back 38

(latin) comments from a judge in case that are not directly relevant to the case, and therefore not legally binding

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opinio juris sive necessitatis

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(latin) 'opinion that an act is necessary by rule of law': the principle that for the practice of a state to be a customary international law, the state must believe that international law requires it

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original jurisdiction

Back 40

ability or power of a court to hear a case in the first instance or before any any appellate juris.
pg39 for their juris.

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precedent

Back 41

judgement that is authority for a legal principle and that serves to provide guidance for deciding cases that have similar circumstances
binding: lower courts are bound to follow decisions of high courts, regardless of judge's thesis
persuasive: when higher courts use lower court's decisions to help make a decision

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ratify

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to formally confirm that the country intends to be bound by the treaty, for some countries such as France, treaties that are ratified automatically become part of the domestic law, other countries may require domestic legislation to pass into law

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ratio decidendi

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(latin) legal reason for a judge's decision

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referendum

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the referral of a particular issue to the electorate for a vote

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residual powers

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those remaining matters on which the state can legislate what are not referred to in the Constitution

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sanction

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penalty or punishment imposed for breaking the law

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stare decisis

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(latin) 'the decision stands'; doctrine that a decision made by higher courts must be followed by lower courts

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summary offences

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criminal offences that can be dealt with by a single judge without a jury and do not require a preliminary hearing, does not need an indictment

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statute law

Back 49

law made by parliament

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terra nullius

Back 50

(latin) 'land belonging to noone'

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treaty

Back 51

an international agreement concluded between states in written form and governed by the guidelines of international law: an agreement, between legal equals and may cover any sphere of international
bilateral - lombok treaty
multilateral - UN charter

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ultra vires

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(latin) beyond the power or authority legally held by a person, institution or statute to perform an act

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doli incapax

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a latin term meaning: 'incapable of wrong'; the presumption that a child under 10 years of age cannot be held legally responsible for his or her actions and cannot be guilty of a criminal or civil offence

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coronial inquests

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investigations into death that have occured in unusual, suspicious, held in the Coroner's Court and overseen by a Magistrate called the coroner

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corporations law

Back 55

legislation that regulates corporations, the security of it and future industries in Australia, it is administered by the Australian Securities Investments Commission (ASIC)

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act of parliament

Back 56

statute law, resulting from a bill successfully passing through parliament and gaining royal assent

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White Australia Policy

Back 57

the government policy of allowing persons of European descent and English speaking people to migrate to Australia

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tariff

Back 58

a tax that must be put on imports or exports

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s

Back 59

abbreviations for 'section of any legislation', 'ss' is the abbreviation for 'sections' (plural)

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bipartisan

Back 60

having the support of the two major political parties

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Montesquieu's 3 organs of gov

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legislative - the lawmakers (in Aus. this is the parliament (HoR and Senate))
executive - the ministers and gov. departments who administer the laws made by parliament (in Aus. the GG, PM and cabinet are part of executive)
judiciary - the courts which interpret and apply the law
if 1 individual or group controls all 3, dictatorship

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civil liberties

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basic individual rights, such as freedom of speech and religion which are protected by law

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mandamus

Back 63

a court order compelling a gov. official or organisation to perform a particular task

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prohibition

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a court order that forbids a lower level court from having or taking further action in a case or matter

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injunction

Back 65

a court order, that forbids an individual or organisation from performing a particular action

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fiscal

Back 66

relating to governmental financial matters

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R

Back 67

'R' at the beginning of a case name refers to Regina (latin for 'Queen'). Since Aus. is a constitutional monarchy this refers to an head of state on whose behalf the prosecution case is run. When head of state is male R stands for Rex (latin for King)

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special leave

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where the HC grants approval for the case to go before it on appellate jurisdictione

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questions of law

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a disputed legal contention that is left for the judge to decide (eg. whether evidence is admissable

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merits review

Back 70

analysis of the facts presented in a case and often in policy choices that led to the decision

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Elders

Back 71

edlder men and women of recognised wisdom and authority who are the keeper of traditional knowledge within idigenous communities, they are responsible for such things as initiation, and handing out of sanctions

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mitigation

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making the severity of an offence or sanction milder or less severe, esp. in the case the individual commits the crime because of customary law

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state

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autonomous entity that is recognised by other states on an international basis, it must have:
-defined territory
-effective government
-permanent population
-capacity to enter into international negotiations

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sovereignty

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the state has the authority to make rules to its population and to power to enforce those rules

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United Nations

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a world organisation dedicated to world peace and the sovereignty and equality of all its members

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declaration

Back 76

formal statements of a party's position on a particular issue, not legally binding, but under Int. law eg. UDHR

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Regional organisation

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eg. European Union, an economic and political partnership of European Nations that have agreed to co-operate for the common good

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consent

Back 78

free and voluntary agreement to sexual intercourse