legal defenitions unit 4 AOS2 (chapter 12) Flashcards
abrogate (abrogation)
to abolish or cancel or court-made
law (for example, the cancellation of common law by passing
an Act of Parliament)
binding precedent
the legal reasoning for a decision of a
higher court that must be followed by a lower court in the
same jurisdiction (i.e. court hierarchy) in cases where the
material facts are similar
codify (codification)
to collect all law on one topic together
into a single statute
common law
law made by judges through decisions made in
cases. Also known as case law or judge-made law (as opposed
to statute law)
doctrine of precedent
the rule that the reasons for the
decisions of higher courts are binding on courts ranked lower
in the same hierarchy in cases where the material facts are
similar
judicial activism
an expression used when judges consider
a range of social and political factors when interpreting Acts
of Parliament and deciding cases (i.e. consider the changing
political beliefs and the views of the community)
judicial conservatism
an expression used when judges
adopt a narrow interpretation of the law when interpreting
Acts of Parliament and deciding cases (i.e. avoid major or
controversial changes in the law and not be influenced by their
own political beliefs or the views of the community)
precedent
a principle established in a legal case that should
be followed by courts in later cases where the material facts
are similar. Precedents can either be binding or persuasive
standing
the requirement that a party must be directly
affected by the issues or matters involved in a case for the
court to be able to hear and determine it
ultra vires
a Latin term meaning
‘beyond the powers’;
a law made beyond
(i.e. outside) the powers
of the parliament
statutory interpretation
the process by which judges give
meaning to the words or phrases in an Act of Parliament (i.e. a
statute) so it can be applied to resolve the case before them
separation of powers
a doctrine established
by the Australian
Constitution that
ensures the three
powers of our
parliamentary system
(i.e. executive power,
legislative power
and judicial power)
remain separate
parliamentary counsel
lawyers who are
responsible for drafting
bills in accordance
with the policies
and instructions of a
member of parliament
material facts
the key facts or details
in a legal case that
were critical to the
court’s decision
court judgment
a statement by the
judge that outlines the
decision of the court
and the legal reasoning
behind the decision
ratio decidendi
a Latin term meaning
‘the reason’; the legal
reasoning behind
a judge’s decision.
Ratio decidendi forms
the binding part of a
precedent
stare decisis
a Latin term meaning
‘let the decision stand’.
The basic principle
underlying the doctrine
of precedent
persuasive precedent
the legal reasoning
behind a decision of
a lower (or equal)
court within the
same jurisdiction, or
a court in a different
jurisdiction, that may
be considered relevant
(and therefore used as
a source of influence or
followed) even though
it is not binding (see
binding precedent)
obiter dictum
a Latin term meaning
‘by the way’; comments
made by the judge in
a particular case that
may be persuasive
in future cases (even
though they do not form
a part of the reason for
the decision and are
not binding)
reversing a precedent
when a superior court
changes a previous
precedent set by a
lower court in the
same case on appeal,
thereby creating
a new precedent
which overrides the
earlier precedent
overruling a precedent
when a superior court
changes a previous
precedent, established
by a lower court in
a different and later
case, thereby creating
a new precedent
which overrules the
earlier precedent
distinguishing a
precedent
the process by which
a lower court decides
that the material
facts of a case are
sufficiently different
from those of a case
in which a precedent
was established by a
superior court so that
they are not bound to
follow it
disapproving a
precedent
when a court expresses
dissatisfaction with an
existing precedent but
is still bound to follow it
mitigating factors
facts or circumstances
about the offender or
the offence that can
lead to a less-severe
sentence
ex post facto
a Latin term meaning
‘out of the aftermath’.
A legal term used to
describe a law that is
established in relation
to an event that has
already taken place
law reform
the process of constantly
updating and changing
the law so it remains
relevant and effective
full bench
all seven justices of the
High Court sitting to
determine a case
parliamentary
committee
a small group of
members of parliament
who consider and
report on a single
subject in one or both
houses. Committee
members can come
from any party
extrinsic material
material (i.e.
information) that is
not part of an Act
of Parliament, but
may assist a judge to
interpret the meaning
of the Act
terra nullius
a Latin term meaning
‘empty land’; a false
common law principle
that was used by the
British to declare that
Australia belonged to
no one when they first
arrived in Australia to
establish a colony in 1788
native title
the legal recognition
of the right of First
Nations people to be
the owners of land and
waters based on their
traditional ownership
of the land (which
existed thousands
of years before the
British colonisation of
Australia)
litigant
a person who takes a
matter to court to have
it resolved
legal aid
legal advice, education
or information about
the law and the
provision of legal
services (including
legal assistance and
representation)
Koori Court
a division of the
Magistrates’ Court,
Children’s Court and
County Court that (in
certain circumstances)
operates as a
sentencing court for
First Nations people
