VCE Legal Studies Question Thread

[upandgo]

would it be advisable to know a variety of recent changes in the law, or a few (say, <5)? i thought by knowing less it'd be easier to remember the facts of each change and draw on them in the exam if necessary, but the textbook (justice + outcomes) advised to keep a folder of them... so i thought i'd ask you guys 

thanks in advance!

[clarke54321]

Express rights are NOT the same as entrenched rights. I would advise not to conflate them.

Express rights are all rights which are expressly stated [or as you said explicitly listed], that is they are not implied. That is really all you need to define them as.

Whereas entrenched rights are codified in such a way [usually in a constitution]  that it is difficult to change them, and they cannot be changed by a normal parliamentary vote, and thus they are entrenched in the legal system and there is a special process to change them (in Australia a referendum).

The constitution in Australia has a handful of entrenched express rights but that's doesn't mean express rights are synonymous to entrenched rights.

Like other countries, Australia has express rights in Statute at both a state [e.g. vic charter of human rights and responsibilities) and federal level (e.g. anti-discrimination legislation].

No I understand this however in the examiners report last year it was said that students should not write 'expressly' in answers and somewhere should mention 'entrenched' because Australia's 5 express righs are entrenched into the Constitution.

[meganrobyn]

No I understand this however in the examiners report last year it was said that students should not write 'expressly' in answers and somewhere should mention 'entrenched' because Australia's 5 express righs are entrenched into the Constitution.

I'm totally onboard with chasej except for this point - it is always safer to define something without using the word in the term. My general definition is that they are rights explicitly written (or listed, whatevs) in one section of the Constitution (one section to differentiate them from implied rights, and in the Constitution because the SD is only talking about constitutional rights at this point). I often add that the wording of these rights can only be altered by referendum.

[meganrobyn]

Isn't that what I've done? Gone into the good and the bad about each technique?

1. Express rights: don't have a lot but what we have is permanent.
2. Implied rights: not stated in Constitution so somewhat temporary and dependent on HC maintaining a reading of the Constitution that says it exists?
3. Structural protection: not actually a right; just ensures what rights we do have it protected?

So you wouldn't give definitions for what they are if not asked to in the question?


What do you mean by this?

Re: mark allocation -- The first question was worth 10 marks and the second question was worth 6 marks.
Sorry... I completely forgot about including mark allocations. Are they important when it comes to answering questions? Do they determine how long our responses should be?

We were only told to answer that question with knowledge from Area of Study 2. Don't ask why, I don't claim to understand the mind of my teacher at all.

Like never? In the exam, if there's like 10 minutes left and you have 2 questions remaining, is it better to have dot points or to have a half-answer that's in sentences?

I don't know. I am honestly struggling to wrap my head around structural protections. And my teacher confuses me every time I ask him for clarification cuz he just keeps going into what they are (e.g. the role of the high court, what representative and responsible government and separation of powers and bicameral parliament is) so I thought we didn't need to know how.

What would be a more likely question we would get in an exam situation regarding structural protections? My teacher gave us these questions as part of like a handout of "exam standard questions" for us to try over the holiday that we could do "just for the experience" but he would not be marking at all.

Legal studies makes my brain hurt...

No, you've kind of listed things that *could* be the basis of an argument in your definitions, but you haven't gone into any detail about them or given any reasons why they are good or bad. For instance, I could argue that express rights being difficult to change was good, but also that it was bad - just saying they're difficult to change isn't actually a strength or weakness by itself. So, in terms of an evaluation, you're missing an argument/opinion, detail/depth in your points, and why/how they are good/bad.

Unless the task word asks for a definition (eg 'explain the concept of express rights' or similar), you use the definition as part of your answer rather than having it as a chunk sitting by itself. You need to brush up on your task words. I could be totally self-serving here and recommend my textbook or lectures through CPAP... (sorry)

If you have a think about it, what point would mark allocations have if they didn't relate to how long and detailed your answers were supposed to be? Work out how many minutes per mark you get on the exam: that's how many minutes (with a bit of wiggle-room) of HARD writing each question should get. Your 10-marker should be about three pages of solid writing.

All the stuff I listed is from that AOS - you just need to think more broadly about it.

Never. Ever. If you only have two minutes left you write in shitty short sentences and make it look like a paragraph. Using dot points makes you automatically lose half marks.

Yeah, you always need your definitions. Then you add examples to illustrate.

It's more about asking you for an example, or two examples etc. Subjective words such as 'main' are impossible to mark.

[clarke54321]

I'm totally onboard with chasej except for this point - it is always safer to define something without using the word in the term. My general definition is that they are rights explicitly written (or listed, whatevs) in one section of the Constitution (one section to differentiate them from implied rights, and in the Constitution because the SD is only talking about constitutional rights at this point). I often add that the wording of these rights can only be altered by referendum.

So would I have to mention anything about how they are entrenched in Australia's Constitution seeming it is relating to the Constitution?

[HopefulLawStudent]

No, you've kind of listed things that *could* be the basis of an argument in your definitions, but you haven't gone into any detail about them or given any reasons why they are good or bad. For instance, I could argue that express rights being difficult to change was good, but also that it was bad - just saying they're difficult to change isn't actually a strength or weakness by itself. So, in terms of an evaluation, you're missing an argument/opinion, detail/depth in your points, and why/how they are good/bad.

Unless the task word asks for a definition (eg 'explain the concept of express rights' or similar), you use the definition as part of your answer rather than having it as a chunk sitting by itself. You need to brush up on your task words. I could be totally self-serving here and recommend my textbook or lectures through CPAP... (sorry)

If you have a think about it, what point would mark allocations have if they didn't relate to how long and detailed your answers were supposed to be? Work out how many minutes per mark you get on the exam: that's how many minutes (with a bit of wiggle-room) of HARD writing each question should get. Your 10-marker should be about three pages of solid writing.

All the stuff I listed is from that AOS - you just need to think more broadly about it.

Never. Ever. If you only have two minutes left you write in shitty short sentences and make it look like a paragraph. Using dot points makes you automatically lose half marks.

Yeah, you always need your definitions. Then you add examples to illustrate.

It's more about asking you for an example, or two examples etc. Subjective words such as 'main' are impossible to mark.

Okay. So I've considered your feedback and attempted to reword my answers for the first question so that I have more of an opinion. Does this work better now?

1) Evaluate the means by which the rights of Australians are protected by the Constitution.

There are three means by which the rights of Australians are protected by the Constitution: structural protections, expressed rights and implied rights.

The fact express rights are explicitly outlined in the Constitution and cannot be amended or taken away without a successful referendum ensures the rights of Australians are firmly protected as the parliament of the day cannot simply revoke the rights of constituents as they so desire. However, we have very few express rights (only five in number – s. 51, s. 80, s. 92, s. 116 and s. 117) and those express rights are often limited by nature. An example of this is s. 80, to do with trial by jury; it applies only to indictable Commonwealth offences. There is no such guarantee for indictable State offences. Thus, while express rights can be effective in protecting the rights of Australians, the fact that there are so few and that the ones we do have are so limited in nature means that the express rights outlined in the Constitution are not very effective in the long run in protecting the rights of Australians.

Implied rights are inferred by the High Court and therefore exist only so long as the High Court says they do. The High Court, however, has no obligation to maintain previous rulings in similar cases when presented with a similar case; thus, it is possible they could rule completely to the contrary to their previous rulings. This means that whether or not an implied right exists depends on the interpretation of the High Court and the judges presiding at the time. As a result, the implied rights of Australians could very easily be taken away by the High Court. Thus, while implied rights can broaden what rights Australians have, the fact that they exist only so long as the High Court says it does means that they do not very securely protect the rights of Australians.

Structural protections are mechanisms written into the Constitution. They are not in and of themselves rights but they should ensure the protection of our rights because they protect against an abuse of power. Thus, while they do ensure the protection in rights as they are structures, they do nothing to broaden the base of rights protected in the Constitution.

--

I still have no idea how structural protections could protect the rights of Australians though. Can someone please explain?

Side note: In your original answer you referred to "HCA interp" is that High Court Interpretation? And what's "full enforceability"?

Wait... you wrote a Legal studies textbook? 

[chasej]

No I understand this however in the examiners report last year it was said that students should not write 'expressly' in answers and somewhere should mention 'entrenched' because Australia's 5 express righs are entrenched into the Constitution.

I'm totally onboard with chasej except for this point - it is always safer to define something without using the word in the term. My general definition is that they are rights explicitly written (or listed, whatevs) in one section of the Constitution (one section to differentiate them from implied rights, and in the Constitution because the SD is only talking about constitutional rights at this point). I often add that the wording of these rights can only be altered by referendum.

I think it's quite pedantic they won't accept 'expressly listed' as a definition because expressly is a common, not a legal, word and it isn't a circular definition. But best to go with the examiners report regardless.

I was pointing out that for constitutional purposes express and entrenched rights go together, but they do not always and to say express rights are inherently entrenched rights is wrong.

I agree with everything you both wrote.

[ccdes0001]

Just a quick question about structuring. For a question such as this:
'Analyse one method of changing constitutional power and its impact on the division of power'
Would is be better to have a structure like this:
- intro
-strength + weakness
-strength + weakness
-example
OR
-Intro
- all strengths in one paragraph
-all weaknesses
-determine if its effective\
-example
This is kinda of a mess but I didn't know how to describe it properly

[chasej]

Just a quick question about structuring. For a question such as this:
'Analyse one method of changing constitutional power and its impact on the division of power'
Would is be better to have a structure like this:
- intro
-strength + weakness
-strength + weakness
-example
OR
-Intro
- all strengths in one paragraph
-all weaknesses
-determine if its effective\
-example
This is kinda of a mess but I didn't know how to describe it properly

I always found it better to match strengths with weaknesses. But what you actually write and how much will depend on available marks.

[upandgo]

if a question asked me to analyse the impact of referendums, HC and referral of powers on the division of legislative powers, do i address the effectiveness of these methods in initiating change (referendum's in altering words in the constitution, high court interpreting words, states referring residual power to cth)? or do i simply state that either the states or the commonwealth gains more power, and use case examples to illustrate this point?

thanks in advance! 

[clarke54321]

Hi everyone,

When a state refers it's powers to the Commonwealth Parliament, my teacher said that the states still have their power yet they must comply with the Commonwealth Parliament or else the S.109 provision will come into play. Yet, I thought that the question of whether referred powers are concurrent or not was still an area of uncertainty.

Could someone please clarify this for me. Thanks very much 

[Cristiano]

Hi everyone,

When a state refers it's powers to the Commonwealth Parliament, my teacher said that the states still have their power yet they must comply with the Commonwealth Parliament or else the S.109 provision will come into play. Yet, I thought that the question of whether referred powers are concurrent or not was still an area of uncertainty.

Could someone please clarify this for me. Thanks very much 

Your teacher is correct, but i think you are getting mixed up between concurrent powers and exclusive powers. The question of uncertainty is whether or not powers become exclusive (so not concurrent).

Remember:

Concurrent powers = Powers that Commonwealth and State parliaments share jurisdiction over. (and since they share, s109 provision will come into play)
Exclusive powers = Powers that can only be solely exercised by the Commonwealth Parliament.

So the question that lies is:
"Is a referral of powers exclusive? – If a state has referred power in an area of law-making to the Commonwealth, does the state still have the power to make laws in this area or does it automatically become an area of exclusive power once the referral has been made?"

The states will still have their concurrent power, just not the referred residual power. (remember: states refer their residual powers to the Commonwealth. Residual powers are not stated in the Constitution and unlike exclusive powers, rest solely with the states)

[chasej]

Hi everyone,

When a state refers it's powers to the Commonwealth Parliament, my teacher said that the states still have their power yet they must comply with the Commonwealth Parliament or else the S.109 provision will come into play. Yet, I thought that the question of whether referred powers are concurrent or not was still an area of uncertainty.

Could someone please clarify this for me. Thanks very much 

No one knows for sure.

We don't know whether powers can be taken back nor do we know if referred powers are concurrent or exclusive to the Cth. The high court needs to decide but since there's no case of a state wanting the power back it is unlikely to occur.

[meganrobyn]

if a question asked me to analyse the impact of referendums, HC and referral of powers on the division of legislative powers, do i address the effectiveness of these methods in initiating change (referendum's in altering words in the constitution, high court interpreting words, states referring residual power to cth)? or do i simply state that either the states or the commonwealth gains more power, and use case examples to illustrate this point?

thanks in advance! 

Obviously the detail of your answer and arguments would depend on the mark allocation. Okay, so, apart from that, the question is actually great for you to answer because it is so open. As long as you link everything back to the impact, all of those options are open to you.

- You can say they each have big impact or small impact because... (or sometimes big and sometimes small depending...)
AND/OR
- You can say they are likely to have an impact or unlikely to have an impact because...
AND/OR
- You can say the impact they have is good or the impact they have is bad because...
AND/OR
- Am I missing anything???

And, great news, you can illustrate any of these points with any examples or cases you like (Note: as long as they're appropriate, naturally, and I wouldn't spend ages on the factual backstory of them - just get to the point.)

[clarke54321]

Hi everyone,

Can I just confirm that when the High Court is interpreting the Constitution and comes across an implied rights (eg. freedom of political communication) that a referendum is not able to ever change this, because it is not entrenched or expressly written?

Thanks