VCE legal Studies

accused

the person charged with an indictable offence and committed for trial

acquittal

when a defendant is found not guilty by a court

Act

a law passed by parliament

aggravating factors

evidence presented which increases the seriousness of the offence and so contributes to a harsher sentence: for example, use of a weapon

amend

to make changes to legislation

appellate jurisdiction

the power of a court to hear and determine an appeal

arraignment

the formal reading of the charges against an accused person - this happens in court

bail

allows a person to be released into the community while he or she awaits trial or the next hearing; conditions are often attached

balance of probabilities

the standard of proof required in a civil case; to be successful, litigants must prove that their case, their version of the facts, is more probable than the other party's version

bicameral

a parliament with an upper and a lower house

Bill

a proposed law to be considered by parliament

binding precedent

a precedent that must be followed - for instance, a decision of the Supreme or High Court

burden of proof

the party who has the responsibility, or onus, of proving the case: in a criminal matter, the burden of proof rests with the prosecution

Cabinet

the leader of the government and the most senior ministers

charge sheet

the written statement of the charges to be laid against an accused person

civil law

laws regulating the behaviour of private individuals

committal hearing

a pre-trial hearing in the Magistrates' Court to determine if the prosecution has enough evidence to commit the accused to trial in a higher court

committal proceedings

the first time an accused person appears in court: the time at which the accused is formally charged

common law

case law developed in the courts - this term is sometimes used to describe all case law or judge-made law

Community Correction Order (CCO)

a sentencing order requiring an offender to undertake conditions while in the community: can include doing unpaid community work, and/or drug/alcohol treatment or curfews

concurrent powers

specific law-making powers in the Constitution that may be exercised by both the Commonwealth and State parliaments

constitution

a set of rules or principles according to which a state or other organisation is governed

contract

a legally enforceable agreement

counter-claim

a cross-action that, although capable of supporting an independent action, is pleaded in an existing claim

court hierarchy

a ranking of courts from inferior to superior

criminal law

laws concerned not only with the rights of individuals directly involved but also with the welfare of society as a whole

Crown

the authority of the monarch, represented in Australia by Governors and the Governor-General

custodial sentence

a sentence handed down by a magistrate or judge that consists of the custody of an accused in a prison or another institution (such as Thomas Embling Hospital)

damages

a monetary award: this is the most common outcome of a civil case

defendant

in criminal law, a person who has been brought to court charged with a criminal offence

delegated legislation

law-making powers given by parliament to subordinate bodies such as local councils, government departments and statutory authorities

demonstration

a public exhibition of sympathy or support for/opposition to a particular issue

directions hearing

a hearing conducted by a judge that allows the court to establish timelines for the completion of the pre-trial stages in a civil matter

discovery

the pre-hearing stage in civil proceedings where the parties exchange further details and information: it may include documents, written interrogatories (questions) and/or an oral examination

division of powers

the system in which law-making powers are divided between the Commonwealth and the States

doctrine of precedent

the system used by courts to make law: judgments of superior courts are written and reported in law reports, and applied to future cases with similar facts. Note: the expression 'doctrine of precedent' refers to the overall system used to create law in courts, not to specific judgments

double majority

for a referendum to be passed it must have a 'yes' vote from the majority of electors overall, plus a 'yes' vote from the majority of electors in the majority of States

Executive Council

the ministers and parliamentary secretaries in the Commonwealth parliament

ex post facto

a term used to refer to when a law that is made to establish a legal consequence for a situation that has already occurred

exclusive powers

law-making powers set out in the Australian Constitution that may only be exercised by the Commonwealth parliament

express rights

a right that is entrenched within the Australian Constitution

extrinsic sources

in the context of interpreting an Act, includes dictionaries, second reading speeches, legislative guidelines and previous decisions

Federation

the joining together of separate States to form one nation

financial Bill

a proposed law concerned with government spending

government

the party (or parties in coalition) holding a majority of seats in the lower house

Hansard

the transcript of the proceedings of both houses of the Commonwealth and all State parliaments and their parliamentary committees

High Court

the highest court in Australia, established by the Constitution, and the only court with the authority to interpret the Constitution

House of Representatives

the lower house of the Commonwealth parliament

indictable offence

a more serious criminal offence, usually heard before a judge and jury in the County Court or Supreme Court: an example is murder

indictable offence heard summarily

an indictable offence triable before a magistrate without a jury

indictment

a formal accusation

injunction

an order for a party to do, or refrain from doing, a particular action; a court order for an action to be taken or for the deferment of an action

inter partes

a decision between the parties, in which one wins and one loses

interrogatories

written pre-trial questions sent by one party to another to find out the basis of a civil dispute

intrinsic sources

in the context of an Act, includes margin notes, footnotes, the definition sections and the object or purpose clause

judge-made law

the development of legal principles through the declaration of common law or the interpretation of statutes

jurisdiction

which courts have the power to hear and determine which offences

legal maxim

a traditional rule, convention or practice

legal rules

laws created by institutions within the legal system and enforced by the legal system

legislation

an Act of Parliament or piece of delegated legislation

Legislative Assembly

the lower house of the Victorian parliament

Legislative Council

the upper house of the Victorian parliament

legislative process

the process used by parliament to make laws

listing

the setting of dates for future hearings

litigation

engaging in court action over a civil matter

mitigating factors

evidence presented which reduces the seriousness of the offence or the offender's culpability (for example, the defendant's good character), resulting in a lower sentence

non-legal rules

rules established within a group but not generally enforceable in the community

norms

social expectations within social groups

oath

a verbal promise to tell the truth: oaths are made while holding the Bible, the New Testament or the Old Testament, or the Qur'an, but can be sworn on another relevant religious text or even without a religious text

obiter dictum

a judge's statement of opinion or observation made during a judgment but not part of the reason for a decision

offender

a person who has been convicted of breaching a criminal law

original jurisdiction

the authority of a court to hear and determine a case in the first instance

parliament

the supreme law-making body, consisting of elected representatives and the Crown

parliamentary committees

select, standing or joint committees composed of members of parliament, formed by the parliament for specific purposes

parole

the conditional release of a prisoner before the end of the original sentence

persuasive precedent

a precedent that a court does not have to follow but which is nevertheless very influential - applies to decisions of a lower court or a court at the same level

petition

a written request that parliament take action

plaintiff

the party who initiates a civil action

plea negotiation

where the defence counsel and prosecutor negotiate as to which charges will stand up in court and/or the defendant's plea

precedent

law made by courts: it may refer to a single judgment ('a precedent') or several judgments ('precedent'), and is taken to be the law for that situation in future similar cases

pressure group

a group that acts to advance a particular issue or interest

presumption of innocence

a person charged with a criminal offence has the right to be presumed innocent until proven guilty according to law

primary victim

the person who directly had a crime committed against them

principles of sentencing

long-established values, prescribed in legislation, to be considered by courts when sentencing (for example, it should be fair and proportional)

private member's Bill

a proposed law introduced by a member of parliament without Cabinet approval

pro bono

legal work undertaken for free

proportional representation

system in multi-member electorates (such as the States, in the Commonwealth parliament, and the regions, in Victoria), groups and independent candidates are elected in proportion to the number of votes they receive

prosecution

bringing a criminal charge, supported by evidence, to court: a prosecution may be initiated by a police prosecutor, or by the Office of Public Prosecutions on behalf of the Crown

ratio decidendi

the legal reasoning, or rule, upon which a decision is based

recidivism

a person relapsing into criminal behaviour

referendum

the process set out in section 128 of the Constitution to allow the Constitution to be formally altered

remand

to hold an accused in custody until their trial or next hearing

remedy

broadly, any means by which a wrong is redressed

repeal

to remove or annul a law or an Act of Parliament

residual powers

law-making powers that remained with the State parliaments after Federation

royal assent

the final stage in the approval of a Bill: after a Bill has been passed by both houses it must be approved by the Crown

royal commission

an inquiry appointed by the Governor-General-in-Council (or the Governor-in-Council), with extensive powers of investigation

sanction

a penalty handed down by a court for someone found guilty of breaching a law; for example, a fine or imprisonment (sometimes interchanged with 'sentence')

Senate

the upper house of the Commonwealth parliament

sentence

a penalty handed down by a court for someone found guilty of breaching a law in a criminal trial: to declare a sentence on a guilty person (sometimes interchanged with 'sanction')