Important definitions - EXAMS

Question 1

What is separation of powers?

Answer 1

There are three types of separate powers that are the legislative power, executive power and judicial power.

Question 2

What is responsible government?

Answer 2

Responsible government refers to a government being held answerable and accountable to the people

Question 3

What is representative government?

Answer 3

Representative government refers to a government that represents the view of the majority of the people.

Question 4

What is the crown?

Answer 4

The authority of the Queen is represented in Australia by the governor-general (federal) and the governor of each state

Question 5

what is a petition?

Answer 5

This involves the signing of at least one signature for proposed law change. The petition is then handed to a member of parliament who must table the petition in parliament.

Question 6

what is a demonstration?

Answer 6

a public protest taking action to alert the government to the need for a change in law

Question 7

what are residual powers? plus 2 examples

Answer 7

those law making powers left to the states at the time of federation. They are not set out in the constitution and CP cannot make laws in these areas. eg. secondary education

Question 8

what are specific powers? + 2 examples

Answer 8

those law-making powers of the CP specifically set out in the constitution. these specific powers can be exclusive powers or concurrent powers. Set out mainly S51 eg. coining money, marriage

Question 9

What are exclusive powers? plus 2 examples

Answer 9

those law-making powers in the constitution that are solely with the CP. The States cannot make laws in these areas. eg. coining money, customs

Question 10

What are concurrent powers? plus 2 examples

Answer 10

those powers in the constitution that are shared by the CP and one or more SP, S09. eg. taxation, marriage

Question 11

what is structural protection of rights? (constitution protecting rights)

Answer 11

mechanisms for indirect protection of human rights contained within the constitution by preventing the misuse or abuse of power e.g. seperation of powers, representative gov, responsible gov

Question 12

what are express rights? (constitution protecting rights)

Answer 12

they are entrenched, that is, clearly written into the constitution

Question 13

what are implied rights? (constitution protecting rights)

Answer 13

not explicitly written but inferred (implied) by the structure and text of the Constitution through HC rulings

Question 14

What is a precedent?

Answer 14

the reasoning behind a court decision. It establishes a principle of law that must be followed by other courts lower in the same hierarchy when deciding on similar future cases

Question 15

What is statutory interpretation?

Answer 15

When judges interpret the meaning of a word or phrase in an Act of parliament

Question 16

What is distinguishing?

Answer 16

a judge may find there are different material facts between the cases. The court may choose to distinguish its case from the new one, and create a new precedent (the old precedent still exists)

Question 17

What is reversing?

Answer 17

A judge in a higher court deciding on a case on appeal may rule the lower court wrongly decided that case. the superior court can change the decision which creates a new precedent

Question 18

What is overruling?

Answer 18

a judge deciding on a separate case in a higher court may not agree with precedent in other case in lower court. Superior court may decide overrule the precedent. (this creates a new precedent)

Question 19

What is disapproving?

Answer 19

a judge may refuse to follow earlier decision of another judge in same court. they are expressing their disapproval and lack of agreement with earlier decisions. (judges in lower court are still bound to follow)

Question 20

What is a court hierarchy?

Answer 20

ordering system of courts where there are higher, more superior courts, middle level courts and lower courts that hear less serious cases

Question 21

what is mediation?

Answer 21

method of dispute resolution using a third party (mediator(s)) to help the disputing parties reach a resolution. Mediators do not make suggestions, but help parties feel able to negotiate for themselves. The decision reached is not binding unless a deed of settlement is drawn up

Question 22

what is conciliation?

Answer 22

method of dispute resolution for civil disputes using third party to help them reach a solution. Third party can make suggestions, but does not make the decision. Decision isn’t binding unless a deed of settlement is drawn up

Question 23

What is arbitration?

Answer 23

method of dispute resolution for civil disputes, where a third party (arbitrator) listens to both sides of the dispute and the outcome is the making of an arbitration award which is enforceable through the courts

Question 24

what is judicial determination?

Answer 24

method of dispute resolution which involves the parties to the case presenting arguments and evidence to a judicial officer who makes a binding decision

Question 25

What is bail? (criminal pre-trial procedures)

Answer 25

The release from custody of a person accused of a crime and awaiting a hearing or trial, on an understanding that the person will attend the hearing or trial

Question 26

What is remand? (criminal pre-trial procedures)

Answer 26

refers to when a person is held in custody awaiting trial, during a trial or awaiting a sentence.

Question 27

What is a committal hearing? (criminal pre-trial procedures)

Answer 27

a hearing held in the Mag Court for an indictable offences to assess whether a prima facie case exists (that is whether there the evidence is of sufficient weight to support a conviction by a jury at trail)

Question 28

What is a sanction?

Answer 28

a legal punishment given to a person who has been found guilty of a crime

Question 29

What is a fine?

Answer 29

monetary penalty paid by the offender to the court

Question 30

What is a Community correction order?

Answer 30

supervised sanction that is served in the community, which includes compulsory conditions and at least one special condition

Question 31

What is imprisonment?

Answer 31

a custodial sentence, which means the loss of liberty and freedom of the prisoner

Question 32

What is a hearing?

Answer 32

A judicial examination of a case reaching a decision in a court of summary jurisdiction (the mag court) presided over by a magistrate

Question 33

What is a trial?

Answer 33

an examination and determination of a legal dispute in a higher court but not in a court of summary jurisdiction

Question 34

What are pleadings? (civil pre-trial procedures)

Answer 34

documents exchanged between the plaintiff and defendant in a civil case to establish the reason for the claim and which facts are in dispute

Question 35

What is a directions hearing? (civil pre-trial procedures)

Answer 35

a hearing between the judge and legal counsel for the plaintiff and defendant to address questions of law and fact

Question 36

What is discovery? (civil pre-trial procedures)

Answer 36

allows the parties to obtain further info about the dispute from the other party

Question 37

What are damages?

Answer 37

a sum of money awarded to a plaintiff by a court in a civil case, paid by the defendant for any loss or injury caused

Question 38

What is an injunction?

Answer 38

a civil remedy which is a court order that stops someone from doing something (restrictive) or compels someone to do something (mandatory)

Question 39

what are exemplary (or punitive) damages?

Answer 39

seeks to punish and deter the defendant for an extreme infringement of rights

Question 40

what are contemptuous damages?

Answer 40

small damages awarded to show contempt for the claim, while admitting the plaintiff’s right to make the claim

Question 41

what are nominal damages?

Answer 41

small amount of money awarded as the plaintiff may be seeking to make a point about being legally right, rather than seeking a large sum of money because they’ve not been financially disadvantaged

Question 42

what are aggravated damages? (type of compensatory damages)

Answer 42

can be awarded to compensate plaintiff further if the court believes the defendants conduct caused the plaintiff humiliation and insult

Question 43

what are general damages? (type of compensatory)

Answer 43

assessed by the court according to the magnitude of the wrong done and the long-term consequences of the wrong e.g such as pain and suffering and loss of enjoyment of life

Question 44

what are specific damages? (type of compensatory)

Answer 44

can be given presice quantifiable monetary value. e.g medical expenses or loss of wages

Question 45

What are compensatory damages?

Answer 45

compensate the plaintiff for losses they’ve suffered. Can be divided into specific, general and aggravated

Question 46

what is disqualified? plus 1 eg

Answer 46

unable to serve because they have been dealt with previously by the legal system and their objectivity is open to question (may be biased against the legal system and not base decision on the facts)

e.g. people convicted of an indictable offence

Question 47

what is ineligible? plus 2 egs

Answer 47

unable to serve as they are already in the legal system and could be overly influential, or if they are incapable of performing as a juror

eg. a lawyer, or someone who’s disabled

Question 48

what is excused? plus 2 egs

Answer 48

the juries commissioner will excuse the person if satisfied that there is a good reason for doing so

good reasons include: illness or poor health

Question 49

what is a challenge for cause? (unlimited) plus eg

Answer 49

a juror may be challenged for a legitimate reason

e.g. knowing the accused

Question 50

what are peremptory challenges? (criminal 6, civil 3)

Answer 50

a juror may be challenged without a reason, based on age, appearance or occupation