terminology Flashcards
1066
the year of the Normal Conquest of England, a seminal event in the development of the English common law
acquittal
a finding that a defendant is not guilty of a charge
Act of Settlement
a key step in the constitutional settlement passed in 1701 which, among other things, provided judges with security of tenure
agent
a persons used by a ‘principle’ to represent the ‘principle’ or take action on their behalf in a legal transaction
alienable
able to be transferred to a new owner, usually with reference to rights to land or other property
amending Act
limited to provisions that either repeal or amend other legislation (or both)
appeal
the opportunity for an unsuccessful litigant to seek to have an unfavourable decision overturned by a higher court
assent
(also called royal assent) formal approval, granted by the sovereign’s representative at the request of the Parliament, to the passing into law of a Bill, or one’s place
attorney
lawyer or other representatibe from the French word ‘a` tourner’ to stand in one’s turn, or one’s place
authorised legislation
the official version of legislation which can be relied on accordingly
authorised report
a report of a judgement, including the headnote, that has been approved by the court or tribunal from which it originated
bibliographic (or index) database
contains records with abstracts or summaries of documents, rather than the full text of those documents
bicameral legislature
a legislative body consisting of two Houses of Parliament (a unicameral legislature has one House)
Bill
a statute in draft before it is introduced and passed by Parliament
Bill of Rights
a statement of human rights, made in a constitution or other fundamental laws, that limits the legislature’s law-making power
Bill of Rights 1689
an Act of Parliament settling that basis on which William and Mary took the throne, including that taxation could be levied only with the consent of Parliament
cab rank rule
a barrister must accept a brief within their capacity, skill and experience (subject to limited exceptions)
Cabinet
the body of Ministers who are both Members of Parliament and responsible for executive departments
case citator
a research tool providing key information about a case including its complete citation(s), how the case has been interpreted and applied, and journal articles and other commentary referring to the case
case note
a summary of a case with analysis of the decisions in its legal context
catchwords
key words, principles and legislation that appear in bold before the beginning of the judgement or reasons
cause of action
the essential facts that must be proven to ground a legal claim for redress
champion
derived from the French word ‘champ’ meaning field; a champion was someone who would tke the field on your behalf
cession
the tranfser of land and authority from an indigenous people to a foreign state by a negotiated agreement of treaty
citation
reference to the legal authority for a source; this may be the citation for the case, or provision of legislation, or the secondary source being relied on
civil law system
a legal system based on Roman law, comprised primarily of legislated ‘codes’ with a lesser role for judge-made precedent
civil law
the law dealing with disputes between private parties (individuals or organisations), generally provided for compensation from the party in breach of an obligation
commencement
refers to a legal instrument commencing operation or coming into force as law; ‘commencement date’ is the date on which this happens
commission
a document certifying the appointment to a position of authority by the sovereign
contract law
the study of that branch of the law which deals with oral and written agreements associated with exchange of goods and services, money, and properties
costs
the expenses that a party incurs in connection with litigation, eg court fees, lawyer fees and payment of expert witnesses
discretion
something that involves choice, or something that may be done or performed
criminal law
the system of law concerned with the punishment of offenders by the state
defendant
the party to a case against whom the action is brought
delegated legislation
legal rules made by those to whom Parliament has delegated authority, usually members of the executive branch of government, such as Ministers; also known as ‘subordinate legislation’
digest
a book pr series in which cases are summarised and indexed by topics
discovery
an important element of an action brought before a court: ‘discovery of facts’ comprises answers on oath to questions by one party of another which may be used in evidence;
‘discovery of documents’ requires one party to file an affidavit of all the documents relevant to the action which are or have been in the party’s possession
distinguish
where the current court notes that a precedent involved different facts and so does not raise the same precise issue
disenfranchise
to deny representation or a voice; in the political context, to deny the right to vote
doctrine of precedent
the set of principles that determines whether the law expounded in a case should be followed in later, similar cases
ejusdem (or eiusdem) generis
Latin for ‘of the same kind’; if words of particular meaning are followed by general words, the general words are limited to the same kind as the particular words
embedding
the practice of inserting a clause within a main clause
endnotes
information found towards the end of piece of legislation, typically including an abbreviation key, date of commencement and amendment history
entrenchment
placement in the ‘Constitution’ so as to be protected against change or repeal by a regular Act of Parliament
equity
a body of law which, in opposition to the more rigid and formal common law, was applied flexibly according to notions of fairness
expert witness
a special kind of witness who, because of their specialist knowledge, may be called at trial to give evidence of their opinions about certain aspects of a case
exoneration
where a convicted defendant is later proven to be innocent, and is officially recognised as such
explanatory memorandum
a document to assist Members of Parliament, officials and the public by setting out the objectives of the Bill and outlining its provisions
extinguishment
the loss of a potential native title claim through authorised use of the land inconsistent with customary usage
expressio unius est exclusio alterius
Latin for ‘the express mention of one thing is the exclusion of the other’; an interpretive principle that when one thing is expressly mentioned, the omission of the other is significant
extrajudicial
where a judge makes statement about the law that is not part of a judgement about a case before the court; the statement does not carry the precedential weight of a judicial statement
feminism
a view that ass sexes have equal human rights and that laws reflect gender power imbalances in their creation and operation and should be challenged and changed
extrinsic material
documentary materials that exist outside the statue being interpreted which can shed light on its content
feudalism
a strongly hierarchical system of social and political organisation based on land ownership that was dominant in medieval Europe including the British Isles
formal equality
treating all people alike without regard for their individual differences
free (or full) text searching
to search selected documents in a database for words or phrases matching the search terms supplied by the user
future act
an act authorised by government after the commencement of the ‘Native Title Act 1993 (Cth)’ which impacts on an area the suject of a native title claim, such as the granting of an agricultural or mining lease
generalia specialibus non derogant
Latin for ‘general things do not derogate from special things’; an interpretive principle that general provisions do not derogate from or override specific provisions
golder rule
(in statutory interpretation) it is permissible to depart from the grammatical and ordinary meaning of words to avoid an absurd result
good faith
honest, sincere, without hidden or ulterior motives
‘Henry VIII’ clauses
(also called ‘chop off their head’ clauses) provide the executive with a power to use delegated legislation to override primary legislation, thus bypassing the scrutiny provided by the parliamentary process
human rights
fundamental, inalienable rights (which can be protected by law) to which people are entitled simply by virtue of being human
incriminating conduct
conduct that papears to indicate an admission of guilt by the accused in a criminal case
in pari materia
Latin for ‘in relation to the same matter’; an interpretive principle that when statutes are ‘in pari materia’, they are interpreted by reference to each other
Imperial Parliament
the British Parliament, legislating for colonies
independence of the judiciary
the principle that judges, in deciding disputes, should be free from political or other influence
indictable offence
a serious offence, potentially carrying a significant prison sentence, usually tried before a judge and jury
information literacy
the ability to locate, evalutate, manage and use information from a range of sources for problem-solving, decision-making and research
international agreement
a written instrument (eg treaty, protocol or convention) containing rules that states agree will govern their actions and create rights and duties among them
intestate
someone who dies without leaving a will
IRAC
Issue
Rule
Application
Conclusion
judicial review
review of executive action by the courts, limited to checking the legality of the action, as compared to the merits review
judicially considered
when a subsequent case has applied, approved, followed, considered, overturned, disapproved, not followed, or distinguished an earlier case
jurisdictional error
an administrative decision - ie, a decision by a decision maker under statute - is said to suffer from jurisdictional error where it is in excess of the powers granted, or it has been made without the criteria for the exercise of the power being satisfied
jurisdiction
has two meaning:
a) the territory over which legal power extends
b) the subject matter or types of disputes that the court has power to adjudicate (original or appellate)
legal encyclopedia
a book or series in which the law is summarised and indexed by topic
jurispudence
in the context of legal theory, the science of the study of law; in other contexts, the study of a particular body of law, such as tort law or constitutional law, or simply the case law in any branch of law
justicable
subject to challenge in a court of law; non-justiciable means ‘not’ subject to legal challenge
legal fiction
the legal acceptance of a fabricated version of facts so as to extend the reach of existing law to cover a novel situation
legal formalism
the theory that legal rules are seperate from other social and political institutions
legal professional privilege
a principle that protects from disclosure communications between a client and legal practitioner made for the dominant purpose of giving or obtaining legal advice
legally material
facts determined by the law to be applied
legislation
rules made by Parliament and by those to whom Parliament has delegated authority, generically known as delegated or subordinate legislation
lenity
refers to the rule that penal provisions are strictly construed
Letter Patent
letters from the Crown containing public instructions or directions
literal approach
(also known as the ‘literal rule’) words in a statute must be interpreted in the context in which they appear, according to their plain and ordinary meaning
‘Magna Carta”
the ‘Great Charter’, which King John was forced by nobles to sign in 1215, restricted the king’s power in numerous respects, making it an early statement of the ‘rule of law’
mediation
negotiations between parties in an attempt to resolve a dispute, with the assistance of a neutral third party
medium neutral citation
contains the year the case was decided; the abbreviation for the court or tribunal; and the court-or tribunal-assigned case number
mens rea
the subjective mental element of a crime, which must coincide with the physical element (or actus reus) for the defendant to be guilty
mischied rule
words in a statute may be interpreted with reference to the mischief they were enacted to address, so that the mischief is suppressed
merits review
review of executive decisions, undertaken by another part of the executive, usually a tribunal with power to set aside and re-make the decision
money Bill
a Bill proposing the appropriation of government revenue for spending or the imposition of taxation
native title
a right or interest over land or waters that may be owned according to the traditional customs of First Nations peoples
natural law
the law of nature; law as the emanation of the Diving Providence, rooted in the nature and reason of humankind
non-justiciable
‘noscitur a sociis’
the meaning of a word is known from the words that accompany it
not up
to check the subsequent history of the case, ie how later cases have used the case by following it, distinguishing it, or referring to it in judgements
nuisance
one of two torts or civil wrongs:
‘private nuisance’ involves the substantial and unreasonable interference with a person’s land or use or enjoyment of that land
‘public nuisance’ is the adverse effect of someone’s actions on the reasonable comfort and convenience of others
obiter dicta
something that must be done or performed
obligation
someting that must be done or performed
omnibus legislation
the name given to an Act which amends a number of other Acts
Orders in Council
royal orders made on political advice
online platform
a website (often a legal publisher website) providing access to a range of legal research products and tools
original jurisdiction
the jurisdiction or power of a court to hear matters that commence in that court, as the first hearing, rather than on appeal from a lower court
party/party costs
the fair and reasonable costs of conducting the litigation, including court fees and the solicitor’s costs; the unsuccessful party is usually ordered to pay the party/party costs of the successful party
‘per incuriam’
through want of care; a judgement made in ignorance of existing law
pinpoint reference
a reference to a specific page, paragraph, footnote or other section within a source being cited
plaintiff
the party to a case who brings the action
pleadings
court documents that must be submitted by parties engaged in a dispute, outlining competing claims and often narrowing the scope of the dispute
positivism
the theory that law is what humans declare it to be
primary sources of law
cases and legislation which state the law
presumption of interpretation
an assumption capable of being displaced by the words of a statute
principle Act
contains a comprehensive statement of the law; ie, it does not merely repeal or amend other legislation
principle
a person who uses another (an agent) to represent them or take action of their behalf in a legal transaction
principle of legality
the principle that people must comply with the law and conversely cannot be punished or denied a right to interest in relation to actions that do not transgress the law
private law
the law governing relations between non-state entities, including individuals and organisations
privative clause
a provision in a statute purporting to prevent review by a court of a decision made pursuant to a provision in that statute
‘pro bono publico’
means for the benefit of the public
‘pro tanto’
‘for so much’, or ‘to the extent’ required
procedural law
also known as ‘adjectival law’, the body of law that establishes institutions and mechanisms by which substantive law disputes may be resolved and enforced
proclamation
a legal instrument’s promulgation, announcement or publication by government authority; the instrument is ‘proclaimed’ on the date it appears in the government’s official gazette
public law
the law governing relations between individuals and the state
puisne
from Old French meaning ‘born later’; a puisne judge is a judge who is inferior or junior in rank (ie not the chief justice)
purposive approach
words in a statute may be interpreted so that they promote the purpose they were enacted to address
race power
the Commonwealth’s power to legislate with respect to the people of a particular race, provided by s51(xxvi) of the Constitution
radical title
the ultimate ownership rights over land, vested in the Crown
ratio decidendi
‘reason for the decision’, meaning the legal principle that is used to decide a case
Reformation
European movements in the 16th and 17th centuries in which Protestant churched were established after splitting from the older Roman Catholic Church
registrar
an official who maintains records, in this instance for a court; court registrars also can decide minor procedural disputes
retrospective operation
application of a provision to events occurring before the provision commenced operation
responsible government
a system of government in which the executive government (eg Prime Minister and Cabinet) is drawn from and responsible to the elected Parliament
retainer
the terms of engagement of a legal practitioner to undertake legal proceedings or provide legal advice
rule of law
a central constitutional principle imposing principled limits on the government’s power: individuals and government officials are all subject to the law as administered by the courts
second reading speech
a reading delivered in Parliament, by the Minister responsible for the Bill, that explains the purpose or rationale of the Bill, rather than the details of each provision
secondary sources of law
textbooks, journal articles, case notes, legal encyclopaedias and other sources which describe the law and provide commentary about the law
separation of powers
an important constitutional principle which avoids the concentration of government power by dividing it up between the three arms of government:
- the legislature
- the executive
- the judiciary
solicitor/client costs
the professional fees of a solicitor for their services; these are usually more generous than party/party costs
standard of proof
the degree to which a party must prove their case at trial in order to succeed: in criminal cases the prosecution must prove the defendant’s guilt ‘beyond reasonable doubt’; in civil case the plaintiff must prove the defendant’s liability on ‘the balance of probabilities’
standing
for a party to be recognised by the court as sufficiently connected to a harm to be able to commence a legal action relating to the harm
stare decisis
Latin maxim, in full ‘stare decisis et non quite movere’: to stand by decisions and not disturb the undisturbed’
statute of limitations
legislation that imposes time limits fir commencement of legal proceedings which, if not complied with, are barred
statutory authority
a body set up under its own Act to manage an activity (such as roads or competition policy): it is often authorised to make delegated legislation on the matters it administers
substantive equality
differential treatment having regard to individual differences, with the goal of achieving equality of outcomes
substantive law
the body of law that imposes obligations on legal actors, the breach of which may result in the imposition of civil or criminal liability
sui generis
Latin for ‘of its own kind’ or unique
summary offence
a minor criminal offence, usually tried before a magistrate, for which the penalty is a short prison sentence or fine
sunset clause
a provision which states that the Act is to cease to operate after a specified, fixed period
surplusage
excessive or non-essential material
‘terra nullius’
Latin, land belonging to no one
territories power
plenary Commonwealth power to pass legislation for the government of a territory under the s122 of the ‘Constitution’
treaty
one of the forms of international agreements
utilitarianism
the theory that ac action is morally correct if the consequences of adopting it are more favourable to the majority that the consequences of not adopting it
writ
a written command from the monarch that something that done
