QCAA Legal Studies flashcards

33 cards. Read the term and the definition here. The deck at the top of this page is optional.

Rule of law

Principle that law applies equally to all people and institutions, including government, and that laws are made publicly, applied consistently and adjudicated independently.

Federalism

System in which power is divided between a central Commonwealth Parliament and state parliaments, each with defined legislative authority under the Constitution.

Section 109 inconsistency

Constitutional rule that a state law is inoperative to the extent it is inconsistent with a valid Commonwealth law on the same subject matter.

Double majority referendum

Section 128 requirement that constitutional alteration be approved by a national majority of voters and a majority of voters in a majority of states.

Separation of powers

Division of governmental functions among legislature, executive and judiciary, intended to prevent concentration of power and preserve judicial independence.

Ratio decidendi

The binding legal principle or reason underlying a court's decision, which must be applied by lower courts in the same hierarchy in similar cases.

Bill to Act process

Sequence of first reading, second reading debate, committee consideration, third reading, passage and royal assent before a bill becomes an Act.

Royal assent

Formal approval of a bill by the Governor-General or Governor, after which it becomes an Act of Parliament subject to commencement provisions.

Delegated legislation

Rules made by the executive under authority of an enabling Act, subject to parliamentary scrutiny, disallowance and judicial review.

Obiter dicta

Remarks by a judge that are not essential to the decision; they do not bind later courts but may be persuasive.

Distinguishing precedent

Avoiding a binding precedent by showing the material facts of the current case differ sufficiently from those in the earlier decision.

Purposive interpretation

Statutory interpretation approach that promotes the purpose or object underlying an Act rather than a strictly literal reading of its words.

Original jurisdiction

The authority of a court to hear and determine a matter at first instance rather than on appeal from another court.

Appellate jurisdiction

The authority of a court to review and revise decisions made by lower courts, including questions of law, fact or sentence.

Balance of probabilities

Civil standard of proof requiring the plaintiff to show the alleged facts are more likely true than not.

Beyond reasonable doubt

Criminal standard of proof requiring the prosecution to establish guilt to a very high degree of certainty before conviction.

Mediation

Facilitated negotiation in which a neutral third party helps disputing parties reach their own voluntary, non-binding agreement.

Arbitration

Dispute resolution in which an independent arbitrator hears the parties and issues a binding award enforceable like a court judgment.

Procedural fairness

Common law requirement that decision-makers give affected persons a fair hearing and act without bias, also called natural justice.

Implied political freedom

Constitutional implication protecting communication about political and governmental matters, derived from the system of representative government.

Section 80 jury right

Constitutional guarantee of trial by jury for indictable offences against Commonwealth law, interpreted narrowly by the High Court.

Access to justice

Principle that people should be able to obtain legal advice, representation and fair resolution regardless of cost, location or disadvantage.

Jury duty

Citizen responsibility to serve on a jury when summoned, decide facts and reach a verdict according to judicial directions.

Actus reus

The physical element of an offence, comprising the prohibited act, omission or state of affairs, often requiring proof of causation.

Mens rea

The mental element of an offence, such as intention, recklessness or knowledge, which must coincide with the prohibited act.

Presumption of innocence

Principle that an accused is treated as innocent until the prosecution proves guilt beyond reasonable doubt, with the burden on the state.

Summary offence

Less serious offence heard and determined by a magistrate alone, without a jury, and carrying a lower maximum penalty.

Indictable offence

Serious offence generally tried in a higher court before a judge and jury, following committal proceedings in the Magistrates Court.

Sentencing deterrence

Sentencing purpose of discouraging the offender (specific) or the wider community (general) from committing similar offences in future.

Negligence elements

A defendant owes a duty of care, breaches that duty, and causes damage to the plaintiff that is not too remote.

Contract formation

A binding contract requires offer, acceptance, consideration, intention to create legal relations and capacity of the parties.

Specific performance

Equitable civil remedy ordering a party to perform its contractual obligations, available where damages would be inadequate compensation.

Costs follow the event

General civil rule that the unsuccessful party pays a proportion of the successful party's legal costs, subject to the court's discretion.