legal defenitions unit 4 AOS2 (chapter 12)

Question 1

abrogate (abrogation)

Answer 1

to abolish or cancel or court-made
law (for example, the cancellation of common law by passing
an Act of Parliament)

Question 2

binding precedent

Answer 2

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

Question 3

codify (codification)

Answer 3

to collect all law on one topic together
into a single statute

Question 4

common law

Answer 4

law made by judges through decisions made in
cases. Also known as case law or judge-made law (as opposed
to statute law)

Question 5

doctrine of precedent

Answer 5

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

Question 6

judicial activism

Answer 6

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)

Question 7

judicial conservatism

Answer 7

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)

Question 8

precedent

Answer 8

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

Question 9

standing

Answer 9

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

Question 10

ultra vires

Answer 10

a Latin term meaning
‘beyond the powers’;
a law made beyond
(i.e. outside) the powers
of the parliament

Question 11

statutory interpretation

Answer 11

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

Question 12

separation of powers

Answer 12

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

Question 13

parliamentary counsel

Answer 13

lawyers who are
responsible for drafting
bills in accordance
with the policies
and instructions of a
member of parliament

Question 14

material facts

Answer 14

the key facts or details
in a legal case that
were critical to the
court’s decision

Question 15

court judgment

Answer 15

a statement by the
judge that outlines the
decision of the court
and the legal reasoning
behind the decision

Question 16

ratio decidendi

Answer 16

a Latin term meaning
‘the reason’; the legal
reasoning behind
a judge’s decision.
Ratio decidendi forms
the binding part of a
precedent

Question 17

stare decisis

Answer 17

a Latin term meaning
‘let the decision stand’.
The basic principle
underlying the doctrine
of precedent

Question 18

persuasive precedent

Answer 18

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)

Question 19

obiter dictum

Answer 19

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)

Question 20

reversing a precedent

Answer 20

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

Question 21

overruling a precedent

Answer 21

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

Question 22

distinguishing a
precedent

Answer 22

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

Question 23

disapproving a
precedent

Answer 23

when a court expresses
dissatisfaction with an
existing precedent but
is still bound to follow it

Question 24

mitigating factors

Answer 24

facts or circumstances
about the offender or
the offence that can
lead to a less-severe
sentence

Question 25

ex post facto

Answer 25

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

Question 26

law reform

Answer 26

the process of constantly updating and changing the law so it remains relevant and effective

Question 27

full bench

Answer 27

all seven justices of the High Court sitting to determine a case

Question 28

parliamentary committee

Answer 28

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

Question 29

extrinsic material

Answer 29

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

Question 30

terra nullius

Answer 30

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

Question 31

native title

Answer 31

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)

Question 32

litigant

Answer 32

a person who takes a matter to court to have it resolved

Question 33

legal aid

Answer 33

legal advice, education or information about the law and the provision of legal services (including legal assistance and representation)

Question 34

Koori Court

Answer 34

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