task 3 (statutory and common law)

precedent

the system used by courts to make law. Judgements of superior courts are recorded and reported in volumes called law reports, and applied to future cases with similar facts.

ratio decidendi

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

“reason for the decision”

obiter dictum

A judge’s state of opinion or observation (notes) made during a judgement (but not part of the reason for a decision)

“sayings by the way”

common law

a legal system based on binding judicial decisions and precedents, rather than solely on statutes passed by parliament. Often called "judge-made law," it involves courts interpreting laws and applying principles from previous similar cases to current disputes.

stare decisis

the basis of the doctrine of precdent, where inferior courts stand by and follow the decisions of superior courts

“stand on what has been decided”

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.

binding precedent

a precedent that must be followed - for instance, a decision of the Supreme or High Court must be followed by the magistrates, and district court

statute law

a legally enforceable Legislative Act, that has passed all stages of parliament, has received Royal Assent and has been proclaimed.

Legislation

This term can describe the activity of parliament in debating bills and establishin statutes or can be used as an equivalent term for an Act of parliament.

Bill

A legislative proposal which is formally introduced into parliament and if passed becomes a law.

Act of parliament

A legislative proposal or bill that has passed all the required stages in parliament when it has received Royal Assent and has been proclaimed

delegated legislation

Statutes that allow the executive to authorise the public service or other lawful authorities (such as local governments or statutory authorities) to create legally binding regulations of determine by-laws.

royal assent

when the governor general signs a bill on behalf of the monarchy so it becomes an Act.

Commencement

the date at which an Act of Parliament becomes legally enforced

Proclamation

the announcement of the official date a new law will take effect.

Sometimes an Act of Parliament does not come into force until a date fixed by the Crown; when the date is determined, an official announcement rederred to as a proclamation is made.

Private Members’ Bill

A non-executive bill. Any member of the opposition or other non-government parties, an independent or a government backbencher may intiate a Private Members’ bill.

Conscience Vote

a vote in parliament where members are free to vote on their iwn judgement and are not bound by party policy. Most often allowed on matters that involve moral judgement or religious belief.

standing orders

permanent rules covering the conduct of business of parliament. The standing orders cover such things as the rules of debate, the ways a Presiding Officer can maintain order and voting procedures in the chamber.

Parliamentary committee

A small cross-party group of members of parliament that inquires into specified matters and reports back to the parliament. A committee has only those powers assigned to it by the parliament.

legislative process

the process used by parliament to pass laws

parliamentary counsel

a public servant responsible for drafting legislation at the request of a member of parliament (usually a minister)

jurisdiction

‘where the law speaks’

• greographical: land and sea areas over which laws apply

• legal: the area of law that is covered

constitutional law

law created, defined and limited by a constitution.

purposes of constitutional law

• establishing the geographical and legal jurisdiction of power (unitary or federal);

• creating the three arms of government (parliaments, governments and courts);

• specifying the process of government (for example, how government is formed);

• protecting fundamental rights (for example, right to vote) and;

• codifies procedures for constitutional change.

key functions of parliament

• law making: through the proposal of financial and non-financial bills, the parliament can debate and pass laws or reject bills using the law-making process

• representative: through the election of members of parliament, this ensures that laws reflect the popular will expressed through citizen’s political participation via voting. Regular elections keep MPs accountable for the laws they make.

• debate: Parliamentary debate contributes to law-making through ensuring a wide range of opinions and ideas are contested. Debate in the legislative process exposes laws to scrutiny.

• responsibility: through the forming of the executive and by holding it accountable, the parliament ensures majority rule.

Gag

a motion passed in a house of parliament to curtail further debate. Used to end debate by a member (usually a minister) requesting that ‘the motion now be put’.

Guillotine

a motion passed in a house of parliament to impose a time limit on debate of a piece of legislation that has been declared ‘urgent’ by the government. This motion is a tactic used to rush legislation through the parliament with little debate.

Floodgating

A tactic employed by the government to rush through parliament a substantial amount of legislation, usually toward the end of a parliamentary sitting term. Standing orders can be manipulated by the government of the day to allow for mini,al debate using the guillotine.

Delegated legislation

law making power granted by the parliament to the executive. Executive made laws are called regulations, ordinances or instruments. To avoid a breach of the SOP, the parliament closely monitors the executive’s use of delegated legislative power.

neighbour principle

a person must take reasonable care to avoid acts or omissions that could forseeably injure their neighbors— those who are directly affected by their actions. emphasizes the duty of care owed to individuals who are closely and directly affected by one’s conduct.

tort

a civil wrong that causes harm or loss to another person, leading to legal liability. includes negligence, trespass, defamation, and nuisance.

duty of care

legal obligation requiring individuals or organizations to exercise reasonable caaution and responsibility to avoid causing harm to others.

negligence

failure to exercise the level of care that a reasonable person would in similar circumstances, resulting in harm or injury to another. occurs when someone’s careless or reckless actions/failure to act, cause damage or loss to others.

appeal

a legal process in which a party requests a higher court to review and change the decision of a lower court.

caveat emptor

buyer beware. buyers are responsible for inspecting and evaluating a product before making a purchase, and the seller is not automatically liable for defects or issues once the sale is completed.

abrogation

formal cancellation, repeal, or abolition of a law by a higher authority or legislative body. Involves officially removing or overriding a law or legal rule, rendering it no longer in effect.

codification

the process where parliament accepts a court-made (Common Law) decision as valid and formalizes it into statute law to strengthen it.

law report

detailed written account of a court case, including the facts, legal issues, arguments, and the court’s decision or judgement. serve as official records of judicial decisions and are used as precedents to guide future cases.

initiation

the bill and name of the member introducing it is listed on the Senate’s or House’s notice paper

1st reading

bill’s long title is read aloud

2nd reading

purpose of bill is outline and parliament debates it.

speech is made by the MP introducing the bill. Debate by MPs follows the speech

committee stage

• bill is scrutinised by the whole chamber

• bill may be referred to groups of MPs working in specialised committees.

• committees may invite public submissions

• they report back to their house with recommended amendments

• amendments are debated and voted upon

• HOR- consideration in detail

• SENATE- committee of the whole

3rd reading

usually a formality

further debate on the contents of the bill rarely occurs

voted on before moving onto next house or for royal assent

royal assent in the statutory law making process

only a formality

approval/sign of GG on behalf of monarchy to legally acknowledge new statute

on rare occasions, GG may ask parliament to reconsider minor details that do not affect the nature or substance of the bill