Human rights guidance sheets glossary

Public sector guidance sheet

This list is intended to provide everyday definitions of some of the legal phrases used in the human rights guidance sheets.

For this reason it is not an exhaustive, legally accurate definition.

Term​​ Definition
Arbitrary detention Detention of a person which includes elements of inappropriateness, injustice and lack of predictability and which is not reasonable, necessary and proportionate in the circumstances.
Abrogation To annul, cancel or repeal. For example, rights duties or obligations may be abrogated by legislation.1
Administrative action Act or decision by an Australian Government department or agency.
Admissibility The principles determining whether or not particular items of evidence may be received by the court.2 The term is also referred to in the context of communications to UN Committees.
Appellate jurisdiction Power of a judge to hear appeals from a previous court decision.3
Common law Law derived from custom and judicial precedent (case law) rather than from legislation.4
Derogation Suspension of the operation of certain human rights protections in times of public emergency.
Double jeopardy A defence to a prosecution for a crime, raising the claim that the accused is being placed on trial for a second time for the same offence.5
Enforceable Remedy Binding orders of a court; the term is also relevant in the context of communications to UN Committees.
Extradition Surrender by one country to another of a person for trial on criminal charges or to serve a sentence already imposed for a criminal offence.6
Habeas Corpus The common law remedy allowing anyone illegally imprisoned to petition the court for immediate release.7
Incommunicado detention Where an individual being held by the authorities cannot communicate with anyone outside of the detention facility, including family, friends, independent lawyers or doctors.
Jurisdiction The power of a court to hear and decide a case or make a certain order; the territorial limits within which the jurisdiction of a court may be exercised.8
Limitation International human rights law recognises that most human rights may be limited in certain circumstances and subject to certain conditions. Some rights contain express limitation clauses that include prescribed purposes that may justify the limitation of the right. Other rights contain implied limitations that arise as a result of the interpretation of certain terms, such as 'fair', 'arbitrary' or 'reasonable.'
Mutual Assistance The process countries use to provide and obtain formal government to government assistance in criminal investigations and prosecutions.9
Negative obligations Duty not to act.
Non-refoulement The prohibition on returning a person to another country where they face a real risk of irreparable harm.
Positive obligations Obligations upon a state to act in such a way as to vindicate an individual right or prevent a breach of a right.10
Pre-trial decisions Orders made at a preliminary court hearing, before a criminal case goes to trial.
Proportionate Balanced; in proportion.
Public emergency State of affairs which threatens the life of the nation, the existence of which has been officially proclaimed.11
Ratification An act by which a State signifies an agreement to be legally bound by the terms of a particular treaty.12
Reparation Compensation for injuries or breaches of international obligations.13
Reservation A unilateral statement made by a state, when signing, ratifying, accepting, approving or acceding to a treaty, in order to exclude the legal effect of certain provisions of the treaty in their application to that state.14
Reverse onus Shift in the burden of proof; reverse onus is not a criminal offence, but rather a shift in the burden of proof.
Self-incrimination Directly or indirectly indicating that you were involved in a criminal offence.
Special leave The basis upon which the High Court of Australia will hear appeals from the Federal Court of Australia, Supreme Courts in States or Territories or other courts exercising federal jurisdiction. Appeals to the High Court are not automatic and require the leave of the Court.
Sureties Money handed over to the court by an individual as security to guarantee an appearance in court.15
Trials in absentia A trial conducted without the person accused being present.
Vesting of jurisdiction Where the jurisdiction of a superior court is conferred on an inferior court.
War crime Any violation of the laws or customs of war amounting to a criminal act.16
Writ of mandamus An order issued by a court to compel a public official to perform a public duty or to exercise a statutory discretionary power.17
Writ of prohibition An order issued by a superior court to an inferior court commanding it to abandon a cause pending before it over which it lacks jurisdiction.18
Wrongful imprisonment Unlawfully restraining the liberty of another person.19

 

1 LexisNexis, Encyclopaedic Australian Legal Dictionary, viewed 30 August 2011 .

2 (Ed.) EA Martin and J Law, Dictionary of Law, 2006, p 16.

3 Ibid at 33.

4 Attorney-General's Department, Annual Report 2009-10, Canberra, 2010, viewed 30 August 2011.

5 Above n2, p 177.

6 Above n4.

7 R Sharpe,'Habeas corpus', The New Oxford Companion to Law, viewed30 August 2011.

8 Above n2, pp 298-9.

9 Attorney-General's Department, 'Mutual Assistance' Extradition and Mutual Assistance, viewed 30 August 2011.

10 G Phillipson,'Positive obligations', The New Oxford Companion to Law, viewed30 August 2011.

11 Definition based on UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966,United Nations, Treaty Series, viewed 30 August 2011.

12 UNICEF, 'Definition of Key Terms', Introduction to the Convention on the Rights of the Child, viewed 30 August 2011.

13 Above n2, p 457.

14 Ibid at 460.

15 Ibid at 523.

16 Ibid at 571.

17 Attorney-General's Department, 'Glossary', Annual Report 2005-06, Canberra, 2006, viewed on 30 August 2011.

18 WM Wiecek,'Prohibition, Writ Of', The Oxford Companion to the Supreme Court of the United States, viewed 30 August 2011

19 Lexis Nexis, 'False Imprisonment', Encyclopaedic Australian Legal Dictionary viewed 30 August 2011.

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