March 19, 2016


Word or phrase Use in Legal Studies
accountable In reference to government. All decision makers have to answer to someone, for example Ministers to the Parliament, Members of Parliament to the people.
accused The person appearing in a court charged with committing a criminal offence.
actus reus The Latin expression which loosely translated means real events. This is the ‘fact’ element of a crime, or the physical deed that is regarded as a crime.
adversary, adversarial The system of dispute resolution used in countries evolved from the British legal system. The parties to the dispute are adversaries and each side does their best to prove their case and the court decides which one ‘wins’.
amendment When an Act of Parliament is no longer appropriate it can be amended (changed) or repealed (it is no longer an active law). These things can only be done by Parliament passing another Act which outlines the changes.
annulment The declaration that something no longer exists as a legal entity. In divorce it results from a ‘declaration of nullity’
arbitrate When a dispute cannot be settled by the involved parties themselves a third party (such as a judge or tribunal member) makes a binding decision on them. Distinct from mediation where the third party only tries to steer the disputing parties to a decision.
appeal A claim by a party to a dispute that the court’s decision is wrong either in law or in process. Appeals are made to a more superior court. For example, from the District Court to the Supreme Court.
appellant The person who is making an appeal against a legal decision.
appellate jurisdiction The courts’ ability to decide disputes where a party is claiming that a lower court in the hierarchy has made an error. For example, the District Court has the jurisdiction to have one judge hear appeals against decisions of a magistrate in the Minor Claims division.
assent, Royal Assent This is the name given to the approval granted by the head of state to a new law. For state Acts of Parliament, ‘Royal Assent’ is granted by the Governor, and for the Commonwealth, by the Governor-General. For regulations made at either level the term is simply ‘assent’.
assimilation Absorbing or incorporating one culture into another.
Attorney General The Government Minister who has responsibility for most aspects of the state (or federal) judicial system.
autonomy The condition of being responsible for your own state.
balance of powers The sharing of legislative powers between the Commonwealth and the states.
balance of probabilities The standard of proof required in a civil trial. It means that the case has been more proven than not and it is more likely than not that the defendant has wronged the plaintiff.
beyond reasonable doubt The standard of proof required in a criminal trial. It means that the prosecution has proven to the judge or judge and jury, by the presentation of evidence, that the charges against the accused are true.
bicameral Consisting of two chambers. As in the parliament’s upper and lower houses.
bilateral treaty An international agreement signed by just two countries.
binding Any legal document or ruling that must be followed by the affected parties. It can be a legally binding contract or a binding judgement used as a precedent.
bill A proposal for legislation which is introduced to Parliament.
breach Break. As in ‘breach of contract’.
broad interpretation When interpreting statutes, courts can apply the widest possible meaning to words and phrases so the common sense interpretation prevails.
burden of proof The responsibility of proving the case. That is, ‘The burden of proof in a criminal case lies with the Prosecution’.
Cabinet The Ministers of government collectively. They make decisions about what bills will be introduced to Parliament as proposals for legislation.
capacity The legal ability to take a decision, usually in relation to contracts, indicated by elements such as being over 18 or not being intoxicated.
case law The development of precedent and its application in subsequent disputes. Similar to common law but includes decisions of statutory interpretation.
cause In law the cause is the argument or grounds which give rise to the legal dispute.
cause list The daily published list of matters being resolved in a particular court.
caution Generally a formal warning given to someone by the police or the court, who has admitted an offence but is not having a conviction recorded.
cite The name of a case – the way it is written. For example, R v Smith or Smith v Brown.
civil law Refers to all areas of law which do not involve the state as a party, but concern the relationships between individuals and groups. Ranges from multi-million dollar contract disputes to claims of negligence against drivers involved in collisions.
class action A civil dispute where many plaintiffs are claiming to be harmed by the negligence of one defendant. A judgement for one is then able to flow on to many others.
criminal law The area of law dealing with breaches of the defined acceptable standards of behaviour in the community. Defined in Acts of Parliament.
codify To take unwritten rules and write them as laws or to take common law decisions and consolidate them into a statute.
cohabit Live in the same place as another person. Used in ‘cohabitation agreements.’
committal Hearing in a Magistrates Court to determine whether a person is committed for trial in a higher court. Also ‘preliminary hearing’.
common law Law made by judges when they hand down decisions which are recorded and may be used as guides to judges in subsequent cases.
Commonwealth Used to describe matters concerning the whole of Australia . Full name of the country is the Commonwealth of Australia. This name is often interchanged with ‘Federal’.
complainant The person who brings or commences a dispute in a court or a tribunal. The party that is claiming to have suffered some form of wrong.
conciliation Usually applied to industrial disputes, but can include any form of negotiated dispute resolution where the parties are not bound to abide by the decision
concurrent powers The Constitution of Australia describes the law-making powers of the States and the Commonwealth. Some of these legislative powers are held ‘concurrently’ by both levels of government. They may both make laws in the same area, but if there is any conflict the Commonwealth law prevails. Examples of Concurrent legislative powers include marriage, divorce and bankruptcy. (s. 51)
Congress The name for the seat of Government in the USA (compared with Australia ’s ‘parliament’).
contributory negligence When a person’s loss or harm is partly as a result of their own behaviour. In a dispute it reduces the amount of their compensation.
conscience vote When the major political parties represented in Parliament do not wish to tie their members to party policy on an issue they allow their members free voting. This is usually confined to socially divisive issues. Examples have included proposals to change laws on euthanasia or prostitution.
constituent Person or organisation that is part of the overall electorate or section of the community that a member of an elected body represents.
constitution The document that contains the rules for creation and operation of an organisation. The Australian Constitution describes the creation of the Commonwealth Government of Australia and describes its powers.
convention In political and legal terms, a convention is an unwritten rule.
copyright Is the term used to describe the right of a person to reproduce and publish that which they have created. The copyright to a painting, for example, can be bought and sold independently of the actual work. Copyright can be applied to things as diverse as musical recordings, visual art and computer software.
criminal law Is the area of law where the standards of acceptable behaviour in the community are defined, and where breaches of those standards are described and appropriate punishments set out.
cross-vesting One body with exclusive control of an area shares that with another. The Family Court and the State Courts cross vest their jurisdiction re children.
custody A place where somebody is detained – denied their freedom such as prison, remand centre or police lock-up.
customary law Another way of describing the laws and rules that are accepted as being part of the way of life of the traditional Aboriginal communities.
damages Money paid by a defendant to a plaintiff as compensation for the wrong done to return the plaintiff, as close as possible, to the situation he or she was in before the harm or injury occurred.
declarations Statements made b y the parties to a dispute often in a “Declarations Hearing” where each side gains an understanding of the others’ evidence. Used in both civil and criminal cases.
decree nisi A provisional order made by a court, especially in relation to divorce, which is in place for a month and a day to allow for any appeals against it.
decree absolute If no appeals are made against the decree nisi, then it automatically becomes final and the parties are free to remarry.
de jure, de facto Latin. In law or in fact (as in family relationships). A legal marriage is de jure, a couple who live together are in a de facto relationship.
defamation Harming somebody in legal terms through injury to their good name or reputation.
defence A defence in law can be a standard argument that may be offered to reduce a criminal charge.
defendant The defendant is the person responding to a legal claim made against them. The name can apply to both the person responding to the plaintiff in a civil trial, and to the person responding to criminal charges (most often in the Magistrates Court ).
delegate, delegated legislation The giving of certain powers to someone else to act on your behalf. The Parliament can delegate law making power to government departments.

representative democracy

A system of government where the people have a say in the decision-making process. In Australia , this is achieved by electing representatives to Parliament to make laws on their behalf.
directions hearings These are pre-trial hearings where the parties outline how many witnesses they will call and how long they think the case will take, the magistrate decides how long to allocate for the trial and ensures both parties are ready.
disallow, disallowance motion All regulations become effective when they are proclaimed upon assent by the Governor/Governor-General. They must still be tabled in parliament for a specified time, after which they are automatically ‘allowed’ to stay as law, unless any Member of Parliament moves a motion of disallowance, which is a procedural motion which allows for a debate and vote on the new regulation.
discretion The making of decisions based on the particular circumstances of each event. A judge has discretion when imposing a sentence from within the legislated range.
distinguish Legal argument that the material facts of a case are sufficiently different to preclude the use of another case as a precedent.
diversion court This court has a general criminal court but with special processes for offenders with intellectual or mental impairment.
drafting The process of creating a proposal for a new law. It involves expert legal personnel and checks to make sure there is no conflict with any existing laws.
double jeopardy The principle in common law that a person may not be tried twice for the same offence. It can also be applied to the notion of being punished twice for the same offence.
duty of care The responsibility in law of a party to behave in a particular way in certain circumstances to prevent harm to other parties.
duties Requirements on a person to act in a certain way such as parents having a duty to care for their children.
empanel In relation to juries, the selection of people to perform jury service.
Enabling Act, Parent Act The Act of Parliament that gives the law making power to another body such as a government department.
enforceable A person can be forced to abide by the judgement of a court or tribunal. Some bodies, such as some Commonwealth tribunals, must have determinations ‘ratified’ by a court before they are enforceable.
exclusive powers Some of the law making powers specified in the Constitution are exclusive to the Commonwealth Parliament. Examples are the raising of armed forces (s. 114) and the coining of money (s. 115).
executive The branch of government that administers laws. It is headed by the various government ministers and includes all government departments.
expiate, expiation fee Expiate means to pay the penalty for some wrong doing or to repair some damage caused. In law it is generally used to describe the settlement of a legal dispute. When a fine is issued for a simple traffic offence, the payment of the fine is the expiation of the offence.
extra legal Outside of the legal system, such as a friendly agreement.
federalism The process of more and more power accruing to the Commonwealth government at the expense of the states.
Federation The process of creating one nation from the separate colonies.
first reading The introduction of a Bill for an Act of Parliament, into the Parliament.
forensic evidence Evidence presented in court which is gained from scientific analysis of other physical or medical evidence.
gazetted All legislation must be published in a government gazette where its proclamation is made public and a date for its commencement is announced.
government The general name for the ‘executive’ arm which makes decisions about the operation of the country, as distinct from the ‘legislature’ and the ‘judiciary’. It also refers to the political party which gains the majority of representatives in the lower house of Parliament, while the minority (generally) form the ‘opposition’.
hierarchy The arrangement of things (especially courts) in order of importance.
High Court Most superior Court of the Australian legal system. Created by the Constitution s. 71.
hearsay Evidence that has not come to the court first hand, or by the person who directly experienced it. Not admissible in the adversary system of trial.
hereditary A system of passing qualities or status from one generation to the next. A hereditary title (such as Monarch) is inherited by the child from the parent, not won through election or appointment.
hung jury A jury that is unable to reach a unanimous verdict. In the case of murder trials this will cause a re-trial to be called.
indictable offences Crimes where the defendant has the right to a trial where guilt or innocence is determined by a jury. All jury trials are in the District or Supreme Courts.
indigenous The name given to the original inhabitants of a place that have evolved there. It is often applied to discussions of Aboriginal people and their issues.
indissoluble Cannot be undone. As in the Commonwealth of Australia .
industrial disputes Legal disputes that arise between an employee and his or her employer. Industrial disputes refer to the legal relationship between them about the conditions and terms of employment.
injunction An order by a court instructing someone to do something (such as remove a wall) or not do something (such as not go to a certain place).
integration To combine separate parts into a whole without diminishing the aspects of either.
intestate The state of dying without having made a will about disposing of a person’s property. (their ‘estate’).
inquisitorial A system of dispute resolution in which it is not the parties to the dispute but the court (in particular the judge, magistrate or presiding officer), which is in charge of discovering information to move the dispute to resolution.
invitation to treat In contract law, this is the function of some displays or signs which invite a potential buyer to make an offer on something which is available for purchase.
Judiciary The collective name for the courts and judges and magistrates who apply the laws of the community and resolve legal disputes.
judgement The final decision of the judge in a civil trial. It includes who is liable and the nature of the remedy that is needed to right the wrong.
jurisdiction The area or group of areas in which a court or other decision making body is authorised to act.
jury A body of 12 people chosen at random from the electoral roll, whose task in a criminal dispute is to listen to all the evidence, be directed by the judge on matters of law and reach a verdict of guilty or not guilty. Not used for civil trials in South Australia .
justice/Justice 1. The word which describes the concepts attached to law in our society, of fairness and equality. 2. The title given to a judge in either the state Supreme Court or the Commonwealth High Court.
kinship Descriptions of family and community identification. A particular community’s definition of the relationships between each member.
laws The rules which govern our behaviour and are enforced by the community through the courts and the police.
lay person Someone who is not formally qualified in whatever role they are performing. Examples include ‘lay ministers’ of religion and lay persons who sit on the bench assisting the enquiring judge in an inquisitorial trial.
    legal disputes  Arise when individuals or groups of individuals are in conflict and that conflict involves the laws of Australia . They can be disputes between the ‘State’ and individuals, such as criminal disputes, or between private parties such as yourself, others or even the government, known as civil disputes. Disputes involving the law can only be resolved by courts.
legislation, Acts, statutes These are all words used to describe the law made by Parliament.
liability In relation to negligence or other civil disputes, the person who is found to be liable is the party that is responsible for making good the wrong, most often by the payment of ‘damages’.
liberal Literal meaning is a philosophy that favours social and political progress and reform.
litigants The general term used to describe the parties on either side of a civil dispute.
magistrate The person who presides over the lowest level of courts in the hierarchy. Appointed from experienced lawyers.
mandatory A sentence or punishment which must be imposed and where the court has no discretion to vary it. The mandatory sentence for murder is ‘life imprisonment’.
man of straw (also straw-man) A person with little or no financial resources.
manslaughter The unlawful killing of a person without intending to do so. It involves a significant degree of negligence on the part of the offender and is punishable by ‘up to life imprisonment’.
marriage The voluntary union of a man and a woman entered into for life to the exclusion of all others. Included in the Marriage Act 1961 in an amendment in 2004.
mediator A person who is trained to assist people who are in dispute with each other to reach an agreement that both are satisfied with. They do not impose any aspect of the decision.
members All elected members of Parliament. Sometimes used specifically for lower house members to distinguish them from senators.
mens rea The Latin expression which loosely translated means the intention. This is the ‘guilty mind’ element of a criminal act.
ministers The members of Parliament who are selected by their party and then appointed by the Governor (SA) or Governor-General ( Australia ) as the heads of government departments. They collectively form the Cabinet.
minor indictable An indictable offence where the maximum penalty is less then 5 years imprisonment. The defendant may waive the right to a trial by jury and opt for summary jurisdiction in the Magistrates Court .
mitigating Lessening. Mitigating factors or circumstances can be given as an explanation for behaviour and actions that lessens the culpability of a person charged with an offence. Often used to try and reduce a sentence in criminal cases.
multilateral treaty An agreement signed by the representatives of many countries.
narrow interpretation Court interpretation of words and phrases in legislation that follows strict definitions.
natural justice A collection of general understandings about what is fair in legal relationships. Includes the right to know charges against you, the opportunity to hear evidence against you and be able to present your own defence.
necessaries Things which are regarded by the law as being essential for a person’s normal activities, such as food and accomodation.
negligence The tort that arises directly out of somebody or an organisation breaching its duty of care to another through carelessness and causing them harm.
nolle prosequi (Latin) A submission, usually by the prosecution in a criminal case, that they decline to continue their action. (Most often because of a lack of evidence.)
nuisance Nuisance in law is the substantial, unreasonable and repeated interference with someone’s enjoyment of their own property (for example, smoke, smells or noise).
nuptial, ex-nuptial Relating to a marriage or outside a marriage. Legislative power to deal with ex-nuptial children was referred to the Commonwealth government in 1988.
obiter dicta Latin parts of a judgement which may be a comment on the case and do not form part of the legal reason (see ratio decidendi).
objective judgement Decision based only on real evidence.
opposition The party which does not have enough representatives in Parliament to be asked by the Governor or Governor-General to form the government.
ordinance A form of legal regulation often associated with government property.
original jurisdiction A court’s or tribunal’s ability to hear certain kinds of disputes for the first time  (compare with ‘Appellate Jurisdiction’).
overrule A legal rule established by applying a precedent from one case to another can be overruled by a higher court when deciding a different case.
Parent Act The Act of Parliament which contains clauses that gives the authority to a local council or government department to make regulations.
penal Relating to punishment for breaches of the law. Used in ‘penal colony’.
peremptory challenge The right of both the prosecution and the defence, at the empanelment of a jury for a criminal case, to challenge a potential juror without having to give a reason.
plaintiff The person or party who brings a civil dispute to court, aiming to right a wrong that has been done to them.
political party A group of people who have common and agreed aims and who use the electoral process to try and gain representation in Parliament to achieve their aims.
polygamy Polygamy is the state of being married to one person and then also marrying more then one other person.
portfolio The specific area of government for which an individual minister is held responsible. Examples: ‘education’ or ‘health’.
preamble The introductory remarks to a text. In the Australian Constitution it is the 3 paragraphs before section 1 of the Act which ‘constitutes the Commonwealth of Australia’.
precedents Cases which have been decided in superior courts at some time in the past and are then used as a guide to making decisions in a current case. A precedent can be binding which means it must be followed, or persuasive, which means that the court may choose to be guided by the previous decision.
preferential voting The system of selecting representatives used in most elections in Australia . Voters allocate votes to all candidates in order of preference and second and third preferences may be counted if their first preference selection doesn’t win.
Premier, Chief Minister Position created by the various state Constitutions. This person is the elected leader of the state government. In the Northern Territory the position is Chief Minister.
presiding officer The person who is responsible for the procedures and decisions in a judicial body such as a tribunal or a court. Not always a judge or magistrate.
pressure group Any group of people who have a common interest and believe that their cause can be advanced by the making or changing of laws. They pursue various methods to influence the lawmakers ranging from street protest to meetings with ministers.
pre-trial conference Prosecution and defence outline their cases to each other, indicating whether they are ready, and exchange documents.
Prime Minister Created by convention, this person is the leader of the government of the Commonwealth of Australia. The position is not defined in the Constitution.
private law Law that deals with the relationships between parties that does not involve the values of the community. Generally equated with civil law.
Privy – privity A person who is privy to a contract has a private relationship with another. The same persons might be described as having privity to a contract which means that there relationship is recognised in law.
proclamation, proclaim The public announcement of the creation of a new law, through the Government Gazette.
prohibition The banning of something, for example a prohibition on alcohol in the central parklands.
prohibited powers Under the ‘division of powers’ when the Australian Constitution was adopted, some legislative powers were expressly prohibited or strictly not allowed to either the Federal government (such as laws on religion) or the State governments (such as raising armed forces).
proportional representation The system of voting used in the upper houses of Parliament, both state and federal, where members are elected according to the proportion of the total votes cast across the whole of each state.
public law Law which prescribes the behaviour and values of the whole community. Includes criminal law, Constitutional law.
punitive Containing an element of punishment. Extra damages are sometimes awarded to a plaintiff as a way of punishing the plaintiff for their actions. Not very common in Australia.
pursuant to This phrase is used to describe the relationship between a regulation and its Parent Act. The regulation is made because the Act makes it possible.
putative Accepted in common understanding. A putative spouse is not a de jure partner but is acknowledged by the community.
quasi legal Not quite a legal entity like a conciliation conference; -it’s decisions carry no possibility of being enforced or consequences.
Queen’s Counsel The most senior legal counsel. The title originated from Britain when the Chief Law officer, who was independent from the government, made the appointments on behalf of the monarch. That role is now assumed by the Attorney General.
ratio decidendi Latin: the legal reason for a court’s decision. The binding part of the judgement (see obiter dicta).
rebuttable presumption An assumption made in law as a starting point, but which is able to be challenged in a dispute.
received law The legal system of England , imposed on Australia in 1788.
regulations, delegated legislation, by-laws, ordinances These are all names given to the laws that are made by government departments, local councils and some semi-government authorities. They are made under the powers delegated to that body by an Act of Parliament.
referendum A form of decision making where all those involved have a vote. Must be used in Australia to change the Constitution.
referral of powers The ceding of lawmaking by the States to the Commonwealth government as per the Constitution s. 51(xxxvii).
remand, on remand Being sent back to custody to await trial or being given bail to return to court at a later date.
remedy The solution to a civil dispute. Ranges from payment of damages to enforcing of contracts.
repeal To undo or remove an Act of Parliament.
representatives The people that the community select to represent them in the decision making process. Can be delegates to a conference or Members of Parliament representing an electorate.
republic A system of government where the head of state (president) is elected by the people.
repugnant When the enactment of a new law would make an existing law inoperable.
rescission The ending of a contract, releasing the parties from their legal obligations as parties to it.
residual powers Many lawmaking powers were specified for the Commonwealth Parliament in the Constitution in 1901. Anything not mentioned remains as a residual (left-over) power of the States (see s. 106, 107, 109). Most criminal law falls into this category.
respondent The person against whom a claim is made. Applies in appeals generally, and in divorce applications and many tribunal hearings.
restitution To make good the damage caused or to restore a plaintiff to the situation they were in before the events of a dispute.
restraining order A court order instructing a party to behave in a specific way, such as not approaching another specific person or attending at particular places.
reverse When a decision is appealed and the higher court decides that a particular precedent should not have been applied.
rights The areas of activity that are fundamental to an individual’s normal existence, including personal, economic and social rights.
Royal Commission A commission of inquiry appointed by the Crown on the recommendation of the government, reporting back to the Crown who’s representative (appropriate minister) tables the report in Parliament.
rule of law The general principal of laws being made according to very strict rules, and once made, having to be obeyed equally by all members of the community, even those who made the law.
rules Any set of prescribed behaviours. Distinct from laws in that there are no direct legal consequences for breaking the rules.
sanctions Penalties imposed by the state as a result of a conviction for a criminal offence. Can include fines, imprisonment, behaviour orders and licence suspension.
self help Generally applied to civil disputes, when the parties to a dispute find their own solution either by abandoning or direct negotiation.
separation of powers The Westminster concept of the separating of lawmaking power between the three arms of government (Executive, Legislature and Judiciary), so that each can check on the other, and none can exert absolute power.
silent Legislation can be silent on a particular issue if it doesn’t refer to it at all. For example, the Constitution makes no reference to aviation.
social cohesion This describes the ability of a society of many people with complex relationships to function together and progress through change and evolution. Maintaining social cohesion is one of the fundamental reasons why we have laws.
social progress This occurs when the social cohesion is maintained as a society changes. It is able to be achieved because the laws can be changed and adapted to meet new circumstances and parliament can also make laws with future generations in mind.
standard of proof In a criminal trial the prosecution must prove its case beyond reasonable doubt. In a civil case the plaintiff must prove his or her case on the balance of probabilities.
statutes Acts of Parliament. Another name for legislation.
straw – man see ‘man of straw’
strict liability offences Criminal offences which only require proof of the facts, not the intention. Also known as ‘Statutory offences’.
subjective judgement Based on an individual’s personal assessment and reflecting only their opinion.
subordinate Refers to laws made by a lesser authority. A government department can be referred to as a subordinate authority, and the regulations it makes can be subordinate legislation.
summons An official order from a court requiring a person’s attendance either to answer a charge or give evidence.
summary offences Crimes where the charges against the defendant are heard in a Magistrates Court . Maximum penalty 2 years in prison or $120 000 fine.
sunset clause A section written into legislation or regulations that stipulates a date when it must be either repealed or reviewed.
supervising The ability of one branch of government to regulate another. The courts can check that legislation and regulations are valid. Parliament can create new legislation to override court decisions and can ‘disallow’ regulations.
supply (bills) Proposals for legislation dealing with the raising and spending of money by the Parliament. Particularly ‘The Budget’.
suspended sentence When a court imposes a custodial sentence on a defendant, it may suspend the sentence, that is not apply it, as long as the offender obeys the conditions of behaviour that the court decides.
terra nullius Unoccupied land (Latin). The presumption about Australia in 1788.
torts The areas of law other than contract where one person’s actions or inaction can be alleged to have caused some form of harm or injury to another who can seek compensation. Known as civil wrongs.
trafficking The buying and selling of illegal substances, often drugs.
trespass The offence of being unlawfully on premises after being asked to leave.
unanimous Where a jury is asked to reach a verdict in a criminal trial, all 12 members must be in agreement to convict the accused. In some cases the judge may direct that they can find someone guilty with a majority of only 10 or 11 members agreeing.
valid votes Votes cast must be according to the electoral laws. For instance a valid preferential vote must place a different number next to every candidate.
verdict The decision in a criminal case as to whether the accused is guilty or not-guilty of the charges against them.
void A legal agreement , or even a law itself, which is deemed to be no longer in existence. A contract might be “voidable” if one or both parties is able to cancel it.
Westminster The place in London where the British Parliament is found. The Westminster system is the name given to models of parliamentary government based on principles developed in England, such as Australia’s and Canada’s.