Chapter 3 Legal foundations

House of Representatives

the lower house of the Commonwealth Parliament

damages

an amount of money that one party is ordered to pay to another party for loss or harm suffered. It is the most common remedy in a civil claim

abrogate (abrogation)

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

access

one of the principles of justice; in VCE Legal Studies, this means that all people should be able to engage with the justice system and its processes on an informed basis

accused

a person charged with a criminal offence but who has not been found guilty or pleaded guilty

Act of Parliament

a law made by parliament; a bill that has passed through parliament and has received royal assent (also known as a statute)

appeal

an application to have a higher court review a ruling (decision)

apprehended bias

a situation in which a fair-minded lay observer might reasonably believe that the person hearing or deciding a case (e.g. a judge or magistrate) might not bring an impartial mind to the case

bias

a prejudice or lack of objectivity in relation to one person or group

bicameral parliament

a parliament with two houses (also called chambers). In the Commonwealth Parliament, the two houses are the Senate (upper house) and the House of Representatives (lower house). In the Victorian Parliament, the two houses are the Legislative Council (upper house) and the Legislative Assembly (lower house)

bill

a proposed law that has been presented to parliament to become law. It becomes an Act of Parliament once it has passed through all the formal stages of law-making (including royal assent)

binding precendent

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

Cabinet

the group of senior ministers in a government made up of the Prime Minister (or the Premier at a state level) and senior government ministers who are in charge of a range of portfolios. This group decides which bills or legislation should be presented to parliament

civil dispute

a disagreement between two or more individuals (or groups) in which one of the individuals (or groups) makes a legal claim against the other

civil law

an area of law that defines the rights and responsibilities of individuals, groups and organisations in society and regulates private disputes

coalition

an alliance or joining together of two or more political parties, usually to form government

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)

contract law

an area of civil law governing the validity and enforceability of agreements made between two or more parties

court hierarchy

the ranking of courts from lowest to highest according to the seriousness and complexity of the matters they deal with

crime

an act (i.e. undertaking an action) or omission (i.e. failing to undertake an action) that is against an existing law, harmful both to an individual and to society, and punishable by law (by the state)

criminal law

an area of law that defines behaviours and conduct that are prohibited (i.e. crimes) and outlines sanctions (i.e. penalties) for people who commit them

defendant

(in a civil case) a party who is alleged to have breached a civil law and who is being sued by a plaintiff

disparity

a situation in which two or more things or people are not equal, and the inequality causes unfairness

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

election

the process whereby eligible people vote to choose a person to hold a position in a body or organisation (e.g. a member of a house of parliament)

equality

one of the principles of justice; in VCE Legal Studies, this means people should be treated in the same way, but if the same treatment creates disparity or disadvantage, adequate measures should be implemented to allow all to engage with the justice system without disparity or disadvantage

evidence

information, documents and other material used to prove the facts in a legal case

fairness

one of the principles of justice; in VCE Legal Studies, this means all people can participate in the justice system and its processes should be impartial and open

government

the ruling authority with power to govern, formed by the political party or parties (known as a coalition) that holds the majority in the lower house in each parliament. The members of parliament who belong to this political party form the government

governor

the King’s representative at the state level

Governor-General

the King’s representative at the Commonwealth level

Human Rights Charter

the Charter of Human Rights and Responsibilities Act 2006 (Vic). Its main purpose is to protect and promote human rights

imprisonment

a sanction that involves removing the offender from society for a stated period of time and placing them in prison

jurisdiction

the lawful authority (or power) of a court, tribunal or other dispute resolution body to decide legal cases

jury

an independent group of people chosen at random to determine questions of fact in a trial and reach a decision (i.e. a verdict)

lawyer

a general term used to describe somebody who has been trained in the law and is qualified to give legal advice (e.g. a barrister or a solicitor)

Legislative Assembly

the lower house of the Victorian Parliament

Legislative Council

the upper house of the Victorian Parliament

minister

a member of parliament who is a member of the party in government and who is in charge of a particular area of government (such as education)

obiter dictim

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)

offender

a person who has been found guilty of a criminal offence by a court

opposition

the political party that holds the second largest number of seats (after the government) in the lower house. This party questions the government about policy matters and is responsible for holding the government to account

parliament

a formal assembly of representatives of the people that is elected by the people and gathers to make laws

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

plaintiff

(in civil disputes) the party who makes a legal claim against another party (i.e. the defendant) in court

political party

an organisation that represents a group of people with shared values and ideas, and which aims to have its members elected to parliament

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 either be binding or persuasive"

private member's bill

a bill introduced into parliament by a member of parliament who is not a government minister

prosecution

the party that institutes criminal proceedings against an accused on behalf of the state

ratio decidendi

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

remedy

the situation where an accused is kept in custody until their criminal trial can take place

royal assent

the formal signing and approval of a bill by the Governor-General (at the Commonwealth level) or the governor (at the state level), after which the bill becomes an Act of Parliament (also known as a statute)

rule of law

the principle that everyone in society is bound by law and must obey the law, and that laws should be fair and clear, so people are willing and able to obey them

sanction

a penalty (e.g. a fine or prison sentence) imposed by a court on a person guilty of a criminal offence

secondary legislation

rules and regulations made by secondary authorities (e.g. local councils, government departments and statutory authorities) that are given the power to do so by parliament (also called delegated legislation)

Senate

the upper house of the Commonwealth Parliament

social cohesion

a term used to describe the willingness of members of a society to cooperate with each other in order to survive and prosper

stare decisis

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

statute law

law made by parliament; also known as Acts of Parliament or legislation (as opposed to common law)

statute

a law made by parliament; a bill that has passed through parliament and has received royal assent (also known as legislation or an Act of Parliament)

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

sue

to take civil action against another person, claiming that they infringed some legal right of the plaintiff (or did some legal wrong that negatively affected the plaintiff)

supremacy of parliament

the concept that the final law-making power rests with parliament, which can repeal and amend its own statutes and pass legislation to override common law (also known as ‘sovereignty of parliament’)

tort

a term that literally means `wrong’; a wrong that interferes with a person’s legally protected interests

Victoria Legal Aid (VLA)

a government agency that provides free legal advice to all members of the community and low-cost or no-cost legal representation to some people who cannot afford a lawyer