2017 Legal Studies October Test: Revision

1. 2017 Legal Studies October Test: Revision

2. Question 1: Define the following terms: • Statutory Interpretation (1 Mark) Sample high level answer: • Statutory interpretation is where a judge or judges who are presiding over a legal dispute examine and give meaning to the words, phrases or sections contained in a relevant statute, before applying these to the facts of the case before them.

3. Question 1: Define the following terms: b. Judicial Determination (1 Mark) Sample high level answer: • Judicial determination occurs when a judicial officer which includes a judge or president or vice-president of VCAT, hears a dispute and makes a binding decision about the outcome of the case.

4. Question 1: Marking Scheme • 1 mark for each of the correct definitions = 2 marks.

5. Question 2: To what extent does the separation of powers operate in practice within the Commonwealth Parliament?

6. Question 2: Sample high level answer: • The principle of separation of powers operates in Australia to a certain extent. The principle of separation of powers refers to the fact that there are three types of separate powers in our parliamentary system and that these powers are held by separate bodies so no one body has absolute power or control over the functions of the legal system.

7. Question 2 The legislative branch has the power to make laws and is exercised by parliament. The executive branch has the power to implement and administer the laws and is exercised by the Governor General and the government (Prime Minister and Cabinet). The last branch is the judicial branch. It has the power to enforce the laws and to settle legal disputes. This is exercised by the courts and the judges. The judicial branch is completely independent from the other two branches and free from political pressure and

8. Question 2 Continued…. influence, which is needed to maintain confidence in our legal system. In theory, all three powers are kept separate from each other and there should be no interference between the three branches however this is not in full operation within the Commonwealth Parliament due to there being some overlap between the legislative and executive branches as the Governor General and government are part of both the executive and the legislative branches. Therefore, the principle of separation is not entirely practiced within the Commonwealth Parliament.

9. Question 2 continued Marking Scheme • 1 mark for stating to what extent the principle of separation of powers operates in Australia = 1 mark • 1 mark for explaining each of the three separate power branches = 3 marks. • 1 mark for explaining to what extent the principle of separation is in operation = 1 mark. Total marks = 5

10. Question 3: Critically evaluate parliament as a lawmaker. Critically evaluate requires students to consider both sides, provide strengths and weaknesses, in addition to making an overall evaluative statement.

11. Question 3 continued… For a critically evaluate question students need to state to what extent they believe parliament is or is not an effective law maker, 1 mark. • Parliament is somewhat effective in making laws.

12. Question 3 continued… Students then need to be able to identify both strengths and weaknesses of parliament as a law maker for a total of 4 marks. They should discuss two strengths and the corresponding two weaknesses. They must be able to present both points of view and provide reasoning/evidence behind why the points are strengths or weaknesses. A maximum of only 2 marks will be awarded if they merely just state strengths and weaknesses without reasoning or supporting evidence.

13. Question 3 continued… Possible strengths of parliament as a law making body that could be discussed include: • Parliament’s primary role is to make laws. • Parliament can make laws in futuroto try and deal with potential future issues. • Parliament can change the law as the need arises. • Parliament has access to expert information and support to make effective laws. • Parliament is democratically elected by the people and, therefore, should make laws that represent the values and beliefs of the majority of people. • Parliament provides the opportunity for debate. • Parliament has the authority to delegate its power to expert bodies so the most relevant people are making laws and the laws are effective.

14. Question 3 continued… • Possible weaknesses of parliament as a law making body that can be used as points of discussion include: • Parliament may not always be able to foresee future circumstances and so laws become out-dated. • Parliament is not always sitting and so cannot always change law as the need arises. • Sub-ordinate authorities/bodies have been delegated power to them and are not elected. • Investigation and implementation is very time consuming. • It is not always possible to respond to changing needs and values of the community.

15. Question 3 continued… • 1 mark will also be given for an overall conclusive evaluative statement on how effective you believe parliament is as a law making body after considering the points of discussion in the body of the response. • Overall parliament is an effective method of law making. Its primary purpose is to make laws and the process, although long and time consuming, ensures that laws are made that reflect the values and beliefs of the majority of society, thereby making parliament an effective law maker.

16. Question 3 continued… Marking Scheme • 4 marks for discussion and evidence regarding two strengths and/or weaknesses and the corresponding two weaknesses and/or strengths. • 1 mark for making an evaluative statement. Total marks = 5

17. Question 4 Explain the significance of one High Court case relating to the Constitutional protection of rights. (3 Marks)

18. Question 4 continued… High Court Case: • Possible High Court cases students could use include: • Roach v. Electoral Commissioner (2007) HCA 43 (26 September 2007) , structural protection of right to vote. • Attorney-General (Vic); ex rel Black v. Commonwealth (1981) HCA 2; (1981) CLR 559 (2 February 1981) (DOGS Case), express rights case regarding freedom of religion. • Street v. Queensland Bar Association (1989) HCA 53; (1989) 168 CLR 461 F.C. 89/048 (16 November 1989), express rights case regarding not being discriminated on the basis of state. • Brown v. R (1986) HCA 11, express rights case regarding trial by jury. • Lange v. Australian Broadcasting Corporation (1997) 189 CLR 520, implied right to freedom of political communication. • Plaintiff M70/2011 v Minister for Immigration and Citizenship and Plaintiff M106 of 2011 by his litigation guardian, plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) HCA 32, case regarding rights protected by Acts of parliament or common law.

19. Question 4 continued… Marking Scheme • 1 mark for identifying a correct protection of rights High Court Case. • 1 mark for explaining the case. • 1 mark for explaining the significance of the case. Total marks = 3

20. Question 4 continued… Sample high level answer: Case: Roach – right to vote case. • The Roach case involved a lady convicted of multiple offences and sentenced to 6 years prison calling into question the validity of the amendments that were made to the Electoral Act in 2006. These changes prohibited all prisoners who were serving a sentence of imprisonment from a Commonwealth, state or territory offence from voting in federal elections. The High Court Held that the 2006 amendment that imposed a complete ban on voting rights for all prisoners was invalid and unconstitutional as it was inconsistent with the principle of representative government as outlined in section 7 and section 24 of the Constitution. This is significant as the High Court affirmed that there is a structurally protected right to vote however, it can be restricted but not without good reason.

21. Question 5 The Commonwealth Constitution of Australia outlines how the law making powers are divided between the states and the Commonwealth parliaments. • a. Using examples, describe the difference between specific and residual powers. (4 marks)

22. Question 5 continued… Sample high level answer: • Specific powers are those powers, which are specifically stated or enumerated in section 51 of the Constitution such as trade. Either specific powers can be exclusive powers which are powers which are given solely to the Commonwealth for example defence or they can be shared between the states and Commonwealth which are known as concurrent powers for example taxation. Whereas residual powers are those powers that belong solely to the states such as the environment that are not specifically stated in the Constitution.

23. Question 5 continued… Marking Scheme • 1 mark for specific powers. • 1 mark for exclusive powers. • 1 mark for concurrent powers. • 1 mark for residual powers. Total marks = 4

24. Question 5b Describe the significance of s109 of the Constitution on the division of law making powers. (2 marks) Sample high level answer: • Section 109 is significant as it clearly states that if there is a conflict between state and Commonwealth legislation in relation to an area of concurrent power then the Commonwealth law will prevail thereby restricting the powers of the states only to the extent of the inconsistency. In areas of concurrent power (when it is challenged) the High Court gives the Commonwealth Parliament overriding authority thereby extending the Commonwealths law making powers in that specific area of inconsistency within the concurrent power.

25. Question 5b Marking Scheme • 1 mark for describing the significance of the section • 1 mark for describing the impact on division of law making powers.

26. Question 6 Discuss the significance of two High Court cases involving the interpretation of the Commonwealth Constitution in relation to the impact on the law making powers of the states and Commonwealth Parliaments. (8 Marks)

27. Question 6 continued…. • Students can use any relevant High Court cases they have studied some relevant cases include: • R V. Brislan; Ex Parte Williams (1935) HCA 78- The Brislan’s Case. • Commonwealth of Australia & Anor V. The State of Tasmania & Ors (1983) 46 ALR 625 – The Tasmania Dam Case. • State of Queensland v. The Commonwealth (1989) 167 CLR 232- Queensland Rainforest Case. • Polyukhovichv. The Commonwealth (1991) 172 CLR 501 – War Crimes Case. • New South Wales v Commonwealth of Australia (2006) HCA 52 – Workplace relations Case or Work choices case.

28. Question 6 continued…. Marking Scheme Case 1 – 4 marks • 1 mark for correctlyidentifying a relevant case and outlining the general facts of the case. • 1 mark for identifying the section of the Constitution in question. • 2 marks for explaining the impact of the interpretation in regards to extending or restricting the Commonwealth and/or States lawmaking powers.

29. Question 6 continued…. Case 2 – 4 marks • 1 mark for correctlyidentifying a relevant case and outlining the general facts of the case. • 1 mark for identifying the section of the Constitution in question. • 2 marks for explaining the impact of the interpretation in regards to extending or restricting the Commonwealth and/or States lawmaking powers.

30. Question 7 Explain why a court hierarchy is required for the doctrine of precedent to operate. (2 Marks)

31. Question 7 continued…. Sample high level answer: • The doctrine of precedent relies on the existence of the court hierarchy of courts as the decisions of the superior courts within the court hierarchy are binding on all inferior courts in the same court hierarchy and persuasive for those on the same level or those who are outside the hierarchy. The doctrine of precedent is based on the concept of stare decisis, which means that courts will stand by what has been decided. Without the existence of a court hierarchy there would be no way to establish which court’s decision held more weight and authority.

32. Question 7 continued…. Marking Scheme • 2 marks for explanation of the court hierarchy’s role in the operation of the doctrine of precedent.

33. Question 8 Explain two features of the relationship between the courts and parliament in law making. (2 Marks)

34. Question 8 continued…. Students could explain any two of the following features: • Parliament passes legislation to create the structure and jurisdiction of the courts. • Courts apply and interpret legislation created by parliament. • Parliament can codify laws made by courts. • Parliament can change laws created by courts. • Statements made by courts can influence parliament. 1 mark for each of the two features explained.

35. Question 8 continued…. Sample high level answer for Courts apply and interpret legislation created by parliament: • One relationship between courts and parliament is when presiding over a dispute courts need to apply the legislation to the case before them. In order to do this they often have to interpret the meaning of the words or phrases within the legislation in order to understand how the legislation applies to the case before them. For example in the Studded Belt case the court was required to interpret the meaning of the word weapon and then apply that meaning to the case before them. This interpretation created a precedent that then must be read and applied together with the legislation to form the law. The wording of the legislation does not change just the meaning of the wording which will either narrow or broaden the meaning of the original legislation.

36. Question 8 continued…. Marking Scheme • 1 mark for each of the two features explained.

37. Question 9 Describe two reasons why an Act of Parliament may need to be interpreted by the courts.

38. Question 9 continued…. Students can choose to describe any two of the following reasons for statutory interpretation: • Mistakes in drafting the bill: Sometimes bills are not clear and courts need to interpret the legislation according to the intention of parliament when they passed the act and decided on its meaning. • Changing nature of words: The meaning of words can change over time and as such the legislation needs to be interpreted to clarify the meaning and to give the Act its current meaning.

39. Question 9 continued…. • Words within the act may be ambiguous: This can happen as a result of them wanting to keep the legislation broad to cover a range of situations. • Future and changing circumstances: Wording of an Act may not cover future circumstances, which may arise due to technological advancements and developments.

40. Question 9 continued…. Marking Scheme • 1 mark for each reason described. Total marks = 2

41. Question 10 Distinguish between two methods of dispute resolution other than judicial determination.

42. Question 10 continued…. Students could choose to distinguish between any two of the following dispute resolution methods: • Mediation • Conciliation and/or • Arbitration.

43. Question 10 continued…. High level sample answer for mediation and conciliation: • Mediation is the process where two or more people attempt to resolve a civil dispute between themselves with the assistance of an independent third party known as a mediator. Conciliation is the process where two or more people attempt to resolve a civil dispute themselves with the assistance of an independent third party known as a conciliator. How mediation differs from conciliation is in the role of the independent third party. In mediation, the third party is to maintain order and to keep communication flowing between the parties and ensure that they are able to get their points across to the other.

44. Question 10 continued…. They do not offer advice or suggestions on how to resolve the dispute but just help the discussions run smoothly. However, a conciliator takes on a more active role compared to that of a mediator with them being permitted to offer advice and make suggestions on possible solutions that could resolve the dispute. While the parties still come to the final solution, they do so with the advice and help of the conciliator.

45. Question 10 continued…. Marking Scheme • 1 mark for explaining mediation. • 1 mark for explaining conciliation. • 2 marks for identifying and discussing points of difference. Total marks = 4

46. Question 11 All cases resolved through the courts benefit both parties. • Discuss and state to what extent you agree with this statement.

47. Question 11 continued…. • Strengths: • Decision is final and legally binding and therefore enforceable. • Strict rules of evidence and procedure ensure that both parties have an equal opportunity to present their case and are treated fairly and equally. • Both parties are able to use legal representation. Use of lawyers ensures cases are prepared and presented in the best possible manner. • If a party is unhappy with the outcome the appeal process allows for the dissatisfied party to appeal their case to a superior court, so long as there are valid grounds for appeal. • The operation of precedent means that the courts decisions are consistent and are likely to be predictable.

48. Question 11 continued…. Weaknesses: • Costly, it is complex, alienating and creates the need for lawyers, which is costly and intimidating. • Adversarial nature of proceedings means the courts decide a winner and a loser rather than looking for a compromise or a win-win outcome which may damage the party’s ongoing relationship. • Parties may be less satisfied as the decision is imposed.

49. Question 11 continued…. Marking Scheme • 1 mark for stating to what extent they agree with the statement (completely agree, partially agree or completely disagree). • 6 marks for discussion and evidence regarding three strengths and/or weaknesses and the corresponding three weaknesses and/or strengths. Total marks = 7

50. Question 12 Nathaniel and Sarah are partners in a large construction firm who specialise in residential apartment builds. They are currently involved in a dispute with a property developer regarding the payment of a $175,000 bonus, which was part of their contract if they completed the build by a designated date. They are claiming they met this element of the contract and the property developer is refusing to pay. The court ruled in favour of Nathaniel and Sarah, ordering the property developer to pay the $175,000, plus interest and the legal fees associated with the case.