TASC Legal Studies Level 3 flashcards

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

Rule of law

The principle that all people and institutions, including the government, are subject to the law, and that laws should be publicly known, applied equally and enforced by independent courts.

Separation of powers

The division of government functions into legislative, executive and judicial branches. In Australia the doctrine is partly qualified because ministers are also members of Parliament.

Federalism

A system in which power is divided between a national government and regional governments. Australia's Constitution allocates specific powers to the Commonwealth and leaves remaining powers to the states.

Common law

Law created by judges through decisions in cases, developed through precedent rather than enacted by Parliament. It operates alongside statute law and can be overridden by valid legislation.

Equity

A body of legal principles and remedies developed historically by the Court of Chancery to address harshness in common law. It provides remedies such as injunctions and specific performance.

Precedent

A rule that a court should follow legal principles established in earlier decisions by higher courts in the same hierarchy, promoting consistency and predictability in the law.

Ratio decidendi

The legal reason or principle essential to a court's decision. It is binding on lower courts in the same hierarchy and forms part of the precedent.

Burden of proof

The obligation on a party to prove disputed facts. In criminal cases the prosecution generally bears the burden; in civil cases the party bringing the claim usually does.

Parliamentary sovereignty

The principle that Parliament can make, amend or repeal any law within its constitutional powers, and that valid statutes prevail over common law and earlier legislation.

Bill

A proposed law introduced into Parliament. It becomes an Act only after passing both houses, receiving royal assent and commencing according to its terms.

Royal assent

The formal approval of a bill by the Governor-General or state Governor, which completes the legislative process. The bill then becomes an Act of Parliament.

Delegated legislation

Rules made by the executive under authority granted by an Act of Parliament. It is subject to the enabling Act and may be disallowed by Parliament.

Exclusive powers

Legislative powers given only to the Commonwealth Parliament by the Constitution, such as defence and currency, so that states cannot validly legislate in those areas.

Concurrent powers

Powers shared by the Commonwealth and state parliaments, such as taxation or marriage. If laws conflict, section 109 of the Constitution makes the state law invalid to the extent of inconsistency.

Residual powers

Legislative powers not expressly assigned to the Commonwealth and remaining with the states, such as education, health and criminal law, unless the Constitution otherwise provides.

Section 109

A constitutional provision stating that when a Commonwealth law and a state law are inconsistent, the Commonwealth law prevails and the state law is invalid to the extent of the inconsistency.

Original jurisdiction

The authority of a court to hear a case at first instance, before any appeal. It involves determining the facts and applying the relevant law.

Appellate jurisdiction

The authority of a court to review and decide appeals from decisions of lower courts. Appellate courts generally correct errors of law or fact.

Committal hearing

A preliminary proceeding in which a magistrate decides whether there is sufficient evidence for an accused person to stand trial on an indictable offence.

Bail

The conditional release of an accused person before trial or sentence. Legislation sets out presumptions, risk factors and conditions governing whether bail is granted.

Jury

A group of ordinary citizens, usually twelve in criminal trials, who determine disputed facts and reach a verdict. The judge directs them on the law.

Adversarial system

A trial process in which opposing parties present evidence and argument before an impartial judge or jury, who decide the case based on what the parties produce.

Judicial review

The power of courts to review the legality of decisions made by government officials and bodies. Courts may quash unlawful decisions but generally do not review their merits.

Alternative dispute resolution

Processes such as mediation, conciliation, negotiation and arbitration that resolve disputes without a full court trial. Outcomes may be agreement-based or, in arbitration, binding.

Express rights

Rights explicitly stated in the Australian Constitution, including trial by jury for Commonwealth indictable offences, freedom of religion and acquisition of property on just terms.

Implied freedom

The freedom of political communication implied from the Constitution's system of representative government. It limits laws that burden political communication without adequate justification.

Human rights charter

State or territory legislation, such as Victoria's Charter, requiring public authorities to consider human rights and courts to interpret laws consistently with those rights where possible.

Native title

The recognition in Australian law of Indigenous peoples' continuing rights and interests in land and waters according to their traditional laws and customs.

Anti-discrimination law

Legislation prohibiting less favourable treatment based on protected attributes such as race, sex, disability or age in areas including employment, education and accommodation.

Consumer guarantees

Statutory promises under the Australian Consumer Law that goods and services meet standards such as acceptable quality and fitness for purpose, giving consumers remedies against suppliers.

Privacy Act

Commonwealth legislation regulating how many organisations and agencies collect, use, store and disclose personal information through the Australian Privacy Principles.

Compulsory voting

An Australian electoral rule requiring eligible citizens to enrol and vote in federal elections, with failure to vote without a valid excuse attracting a penalty.