Chapter 12 The courts

statutory interpretation

the process by which judges give meaning to the words or phrases in an Act of Parliament (i.e. a statute) so it can be applied to resolve the case before them

abrogate (abrogation)

to abolish or cancel a law (e.g. the cancellation of common law by passing an Act of Parliament)

binding precedent

the legal reasoning for a decision of a higher court that must be followed by a lower court in the same jurisdiction (i.e. court hierarchy) in cases where the material facts are similar

codify (codification)

to collect all law on one topic together into a single statute

common law

law made by judges through decisions made in cases. Also known as case law or judge-made law (as opposed to statute law)

court judgment

a statement by the judge that outlines the decision of the court and the legal reasoning behind the decision

disapproving a precedent

when a court expresses dissatisfaction with an existing precedent but is still bound to follow it

distinguishing a precedent

the process by which a lower court decides that the material facts of a case are sufficiently different to that of a case in which a precedent was established by a superior court so that they are not bound to follow it

doctrine of precedent

the rule that the reasons for the decisions of higher courts are binding on courts ranked lower in the same hierarchy in cases where the material facts are similar

ex post facto

a Latin term meaning ‘out of the aftermath’. A legal term used to describe a law that is established in relation to an event that has already taken place

extrinsic material

material (i.e. information) that is not part of an Act of Parliament, but may assist a judge to interpret the meaning of the Act

full bench

all seven justices of the High Court sitting to determine a case

judicial activism

an expression used when judges consider a range of social and political factors when interpreting Acts of Parliament and deciding cases (i.e. consider the changing political beliefs and the views of the community)

judicial conservatism

an expression used when judges adopt a narrow interpretation of the law when interpreting Acts of Parliament and deciding cases (i.e. avoid major or controversial changes in the law and not be influenced by their own political beliefs or the views of the community)

Koori Court

a division of the Magistrates’ Court, Children’s Court and County Court that (in certain circumstances) operates as a sentencing court for First Nations people

law reform

the process of constantly updating and changing the law so it remains relevant and effective

legal aid

legal advice, education or information about the law and the provision of legal services (including legal assistance and representation)

litigant

a person who takes a matter to court to be resolved

material facts

the key facts or details in a legal case that were critical to the court’s decision

mitigating factors

facts or circumstances about the offender or the offence that can lead to a less severe sentence

native title

the legal recognition of the right of First Nations people to be the owners of land and waters based on their traditional ownership of the land (which existed thousands of years before the British colonisation of Australia)

obiter dictum

a Latin term meaning ‘by the way’; comments made by the judge in a particular case that may be persuasive in future cases (even though they do not form a part of the reason for the decision and are not binding)

overruling a precedent

when a superior court changes a previous precedent, established by a lower court in a different and later case, thereby creating a new precedent which overrules the earlier precedent

parliamentary committee

a small group of members of parliament who consider and report on a single subject in one or both houses. Committee members can come from any party

parliamentary counsel

lawyers who are responsible for drafting bills in accordance with the policies and instructions of a member of parliament

persuasive precedent

the legal reasoning behind a decision of a lower (or equal) court within the same jurisdiction, or a court in a different jurisdiction, that may be considered (and therefore used as a source of influence or followed) even though it is not binding

precedent

a principle established in a legal case that should be followed by courts in later cases where the material facts are similar. These can be either binding or persuasive

ratio decidendi

a Latin term meaning ‘the reason’; the legal reasoning behind a judge’s decision. This forms the binding part of a precedent

reversing a precedent

when a superior court changes a previous precedent set by a lower court in the same case on appeal, thereby creating a new precedent which overrides the earlier precedent

separation of powers

a doctrine established by the Australian Constitution that ensures the three powers of our parliamentary system (i.e. executive power, legislative power and judicial power) remain separate

standing

the requirement that a party must be directly affected by the issues or matters involved in a case for the court to be able to hear and determine that case

stare decisis

a Latin term meaning ‘let the decision stand’. The basic principle underlying the doctrine of precedent

terra nullius

a Latin term meaning ‘empty land’; a false common law principle that was used by the British to declare that Australia belonged to no one when they first arrived in Australia to establish a colony in 1788

ultra vires

a Latin term meaning ‘beyond the powers’; a law made beyond (i.e. outside) the powers of the parliament