Legal Studies glossary – A to D


This Legal Studies glossary contains terms and concepts relevant to Australian law, courts and legal processes. This page contains words from ‘A’ to ‘D’. This glossary is written and maintained by lawgovpol.com authors:

A

abet
To abet is to encourage or induce someone to undertake a course of action, often illegally.

accessory
An accessory is a person who assists to plan or conceal a particular crime, though they were not directly involved in committing the crime.

accessory after the fact
An accessory after the fact is not involved in a particular crime but fails to report the crime and/or acts to protect or conceal those who committed the crime.

accessory before the fact
An accessory before the fact is aware that a criminal act will be committed but fails to report or attempt to stop the crime.

accused
In criminal law, the accused is a person who appears in court, charged with an offence.

acquittal
Acquittal is the release from a criminal charge by the verdict of a jury or magistrate.

Act of Parliament
An Act of Parliament is a statute or item of legislation, a law made by a Federal, State or Territorial parliament.

adjourn
To adjourn is to postpone a trial or hearing until a later time, or to end it altogether.

admissible evidence
Admissible evidence is evidence that may be tendered before a court and considered during its deliberations. The judge or magistrate determines which evidence is admissible, using legislation and his or her own interpretation.

ADR (see alternative dispute resolution)

adversarial system
The adversarial system is a system of law derived from medieval ‘trial by combat’. In adversarial systems, two advocates (usually lawyers or barristers) present arguments and evidence on behalf of their clients. A verdict or decision is then made by an impartial judge or jury.

affidavit
An affidavit is a written statement of truth, signed by the individual and witnessed by a public official.

affirmation
An affirmation is a declaration or commitment to tell the truth. An affirmation is made by an individual before giving evidence in a court. Unlike an oath, the affirmation has no religious content.

alibi
An alibi is testimony or evidence that an accused person did not commit the alleged offence, usually because he or she was elsewhere or with another party when the offence was committed.

alternative dispute resolution (ADR)
Alternative dispute resolution or ADR is a means of resolving civil disputes without going to court. Examples of ADR include arbitration, conciliation, mediation and negotiation.

amending act
An amending act is legislation that changes the content of an existing act by adding, deleting or modifying its text.

appeal
An appeal is a legal process where a party dissatisfied with the result of a case seeks to have it re-examined by a different court.

appellant
An appellant is a party that has requested an appeal (see above).

appellate court
An appellate court hears appeals from other courts. In most cases the appellate court is a superior or higher court in the court hierarchy.

apprehended violence order (AVO)
An apprehended violence order or AVO is a court order requiring one individual to refrain from approaching, contacting or intimidating another individual. Breaching an AVO can result in a range of sanctions, including fines or imprisonment.

appropriation bill
An appropriation bill is a bill that authorises the government to spend public money. In the Federal parliament, appropriation and taxation bills may not be introduced in the Senate.

arbitration
Arbitration is a form of alternative dispute resolution (ADR) where the parties in dispute present their case to an independent decider (the arbiter or arbitrator). All parties submitting to arbitration agree to be legally bound by the arbitrator’s decision.

arraignment
An arraignment is the first appearance of an accused person in a superior court, following their committal in a lower court. At an arraignment the charge is read out and the accused is invited to enter a plea.

arrest
An arrest is the formal detention of an individual suspected of committing a criminal offence.

arrest warrant
An arrest warrant (sometimes reduced to warrant) is a judicial order to detain and arrest an individual. Arrest warrants are most commonly issued for non-attendance at a committal hearing or a criminal trial.

arson
Arson is an indictable offence, the act of setting fire to buildings or bushland to purposefully cause destruction.

assault
Assault is physical contact inflicted upon another person that is both unwanted and violent.

attachment of earnings
An attachment of earnings is an order to deduct part of an individual’s earnings and forward them to another individual who has been awarded damages. They are generally issued following a civil dispute.

attorney-general
An attorney-general is the government minister responsible for upholding and overseeing the law. He or she also acts as the government’s chief legal advisor.

Australian Law Reform Commission (ALRC)
The Australian Law Reform Commission or ALRC is a Commonwealth agency that investigates areas of law in need of review or reform. The ALRC makes law reform recommendations to the Federal parliament.

B

backbencher
A backbencher is a member of parliament who is not a minister or shadow minister. They occupy the rear benches of parliament and are not directly involved in the executive government.

bail
Bail is a payment or surety to the court. It allows a person arrested and charged with a criminal offence to remain free from custody, until the time of their trial. Most bail is some form of property, such as a cash deposit, which may be surrendered if the person absconds or does not appear at trial. Conditions may be attached to bail, such as surrendering one’s passport, reporting to police on a regular basis and refraining from contacting witnesses or other persons.

bailiff
A bailiff is an officer of a superior court, such as a County, District or Supreme Court. Bailiffs are responsible for serving orders and executing judgements of the court.

balance of probabilities
The balance of probabilities is the standard of proof required to establish facts in a civil dispute.

barrister
A barrister is a lawyer who represents defendants or clients in court.

bequest
A bequest is money, a gift or property left to another party in a will.

beyond reasonable doubt
‘Beyond reasonable doubt’ is the standard of proof required to establish the facts in a criminal case.

bicameral
A bicameral parliament or assembly has two houses or chambers, rather than one. Bicameral systems allow for greater representation and reviewing of legislation.

bill
A bill is a proposed item of legislation, prior to being passed by the parliament.

bill of rights
A bill of rights is a series of clauses that outline, guarantee or protect rights. A bill of rights can be found in a constitution or legislation.

binding precedent
A binding precedent is a precedent made in a superior court. It requires all lower courts to follow the same principles when dealing with similar cases.

blackmail
Blackmail is an indictable offence where a person attempts to extract goods of value or force particular behaviours, by making threats of violence.

bona fide
Latin for ‘in good faith’. The demonstration of actions undertaken with good, honest intentions. Also a colloquial term for evidence of one’s identity.

burden of proof
In a trial or hearing, the burden of proof is the obligation to produce evidence to prove a charge or complaint. The burden of proof falls upon the party bringing the charges or complaint (for example, the prosecutor or plaintiff).

by laws
By laws are rules and regulations made by a local government body, such as a council.

C
cabinet
In Westminster political systems the cabinet is a group of senior ministers. Along with the head of state, the cabinet constitutes executive government.

capacity
Capacity is an individual’s ability to make an informed decision. Examples of capacity are being over a particular age and being free from the influence of alcohol or drugs. A person acting under the influence of drugs or alcohol might be said to have reduced capacity.

capital offence
A capital offence is a criminal offence punishable with the death penalty.

capital punishment
Capital punishment is an execution carried out by the state. It is sometimes used as a sanction for very serious crimes, particularly murder.

case law
Case law is a term of the body of law made by courts, through judicial precedents, rulings and statutory interpretations. It is sometimes called common law, court-made law or judge-made law.

caution
A caution is a formal warning given to an offender by police or a court, without any conviction, record or sanction.

caveat
Latin, ‘warning’. A caveat can take various legal forms, such as the declaration of interest on property or a block on the sale of an item.

caveat emptor
Latin, ‘let the buyer beware’. Caveat emptor is a common saying and principle in property law. It warns buyers to exercise due caution when purchasing or entering into contracts.

Children’s Court
Children’s courts are specialist courts that hear criminal charges against minors. They also deal with matters pertaining to the safety and well-being of children.

circumstantial evidence
Circumstantial evidence is material presented in a trial or hearing that supports an assertion but does not conclusively prove it. Circumstantial evidence is a weaker form of evidence than direct evidence, however it can be useful for building an understanding of the facts. Forensic reports collected after an offence are an example of circumstantial evidence.

citizen’s arrest
A citizen’s arrest is an arrest made by an individual who is not a member of a police force. In most Australian jurisdictions citizens are entitled to arrest individuals, provided there are reasonable grounds they have committed an indictable offence.

Civil Claims List
The Civil Claims List is a branch of the Victorian Civil and Administrative Tribunal. It deals with minor disputes, usually between businesses or traders and consumers or purchasers. It was formerly known as the Small Claims Tribunal.

civil law
Civil law is the area of law dealing with disputes between individuals or organisations.

claim
A claim is an assertion of fact or a demand for compensation or damages, submitted to a court or hearing.

class action
A class action is legal action initiated by a group of individuals, against the same party for the same reasons. It is sometimes called a multi-plaintiff action.

codification
Codification is the process of writing common law principles and precedents into legislation. This is done to clarify, strengthen or place them beyond the reach of further precedents.

committal hearing
A committal hearing is a preliminary hearing for an indictable offence, held in the Magistrates’ Court. A committal hearing considers whether there is sufficient evidence for a trial to proceed in a higher court.

common law (see case law)

community-based order (see community service order)

community service order (or CSO)
A community service order, or CSO, is a sanction imposed by a court for a criminal offence or non-payment of a fine. The offender is required to undertake a specified amount and/or type of work in the community.

complementary legislation
Complementary legislation is similar or identical legislation that is passed by different parliaments, in order to achieve uniformity of laws.

conciliation
Conciliation is a form of alternative dispute resolution (ADR) where a neutral third party (the conciliator) meets independently with the parties in dispute. The conciliator then acts as a ‘go-between’, making representations, suggesting and encouraging compromises and attempting to negotiate a settlement.

concurrent powers
In constitutional law, concurrent powers are powers granted to both Federal and State governments, such as the authority to levy taxes.

concurrent sentence
A concurrent sentence is a sentence of two or more prison terms that are served at the same time, rather than cumulatively (one after the other).

consolidating legislation
Consolidating legislation is legislation that repeals two or more acts and re-forms them under a single act.

constitution
A constitution is a fundamental law that underpins a political and legal system. Constitutions establish government and legal bodies, procedures and law-making powers.

constitutional interpretation
Constitutional interpretation is the process of extracting or clarifying the meaning of a constitution and applying these to the law. Constitutional interpretation is carried out by the High Court.

constitutional monarchy
A constitutional monarchy is a political system where a monarch acts as the head of state but his or her power is limited by a constitution. In most constitutional monarchies political and law-making power resides with a parliament, while the monarch exercises little or no discretionary power.

contempt of court
Contempt of court is an order that penalises an individual for refusing an instruction or failing to recognise the authority of a court. Examples of contempt of court include failing to show sufficient respect to the court of its officers, or engaging in behaviour or public comment that may prejudice the outcome of a case.

contract
A contract is a binding agreement between two parties, usually to facilitate the exchange of goods or services.

contributory negligence
Contributory negligence is a situation where an individual contributes to their own loss or harm, potentially reducing their right to compensation.

conviction
A conviction is a formal record of guilt, made after a court finds a person guilty of committing a criminal offence.

copyright
Copyright is the ownership of intellectual property such as art, literature, software or music. Copyright allows the creator and/or owner of this material to publish, distribute and profit from it.

coroner
A coroner is a court official who investigates deaths, judges the cause of death and, where a cause cannot be quickly established, conducts and oversees an inquest.

Coroner’s Court
The Coroner’s Court is a specialist court that conducts inquests into sudden and unexplained deaths, to ascertain the cause of death.

County Court
The County Court is the intermediate court in the court hierarchy of Victoria. It hears all but the most serious indictable offences, as well as criminal appeals from the Magistrates Court. The County Court is the equivalent to District Courts in other States.

court hierarchy
The court hierarchy is the order or structure of courts in a jurisdiction, from superior (higher) courts to inferior (lower) courts. Legal processes like precedents and appeals are based on court hierarchies.

criminal law
Criminal law is the area of law that deals with offences against persons, property or society. Criminal law is investigated by the police and prosecuted by the state.

cross-vesting
Cross-vesting is the sharing of law-making powers between two courts in the same jurisdiction.

culpability
From the Latin culpa for ‘fault’, culpability is the degree to which a person is considered blameworthy for criminal conduct.

culpable driving
Culpable driving is an indictable offence, where a person causes the death of another person or persons, through their reckless or dangerous driving.

customary law
Customary law describes the traditional laws and rites of indigenous peoples, based on tribal and historical practices.

D
decree nisi
A decree nisi is a court order that comes into effect after a prescribed period of time. Before the order comes into effect, other parties may lodge objections or new evidence. It is most commonly used for divorce proceedings.

defamation
Defamation is the act of publishing or circulating derogatory or harmful information about another individual. The individual may initiate a civil action and seek damages if this derogatory information has caused them personal, professional or financial loss.

defence
In criminal law, the defence refers to the accused party and their counsel in court. A defence is also a legal argument put forward by the accused in response to the charge, either to avoid a finding of guilt or to show mitigating circumstances.

defiance
Defiance is the act of deliberately ignoring or disobeying a law, often to draw attention to the law and to bring about law reform.

delegated legislation
Delegated legislation is a set of regulations or by-laws made by a statutory authority, such as a government department or local government.

demonstration
A demonstration is a gathering of people or groups to attract public attention and/or cause disruption. Some demonstrations seek to draw attention to existing laws and create pressure for change.

direct evidence
Direct evidence is evidence presented in a trial or hearing that clearly supports an assertion of fact, without having to draw inferences or implied conclusions. An eyewitness account of a murder, for example, would constitute direct evidence.

directions hearing
A directions hearing is a preliminary hearing before a trial, where the judge seeks to obtain a clearer understanding of the facts and issues involved.

Director of Public Prosecutions (DPP)
The Director of Public Prosecutions, or DPP, is a statutory authority that examines, decides, prepares and conducts prosecutions for indictable offences, on behalf of the Crown.

disapproving precedent
A disapproving precedent is a ruling where a judge follows a precedent set in a higher court but expresses disagreement or dissatisfaction with that precedent.

discovery
Discovery is a pre-trial phase in civil disputes, where the plaintiff and respondent can request or summons documents and other evidence from each other.

discretion
Discretion is the ability to exercise personal judgement and interpretation in legal decision-making. Judges, for example, have the ability to apply discretion when sentencing.

distinguishing
Distinguishing is when a judge avoids following a precedent by ruling the material facts in his/her case are not sufficiently similar to the case where the precedent was set.

District Courts
District Courts are the intermediate courts in the hierarchies of most States of Australia. District Courts hear all but the most serious forms of indictable offence. They also act as appellate courts and hear civil matters below a particular threshold.

double jeopardy
Double jeopardy is a legal principle that suggests a party should not be tried twice for the same offence, on the same set of facts. Many Australian states now allow retrials for serious indictable offences, or if new evidence comes to light.

due process
Due process is a legal requirement that protects the rights of individuals and ensures they are treated equally before the law. It ensures that the same rights and procedures are granted to each individual who is subject to criminal or civil action.

duty of care
Duty of care describes the legal responsibility of professionals such as doctors, nurses, teachers and the police, when dealing with those in their care.


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