VCE Legal Studies Question Thread

[chasej]

indirectly on SD- role of GG in lawmaking- be prepared.

true but you don't need to know about double dissolutions specifically.

[HopefulLawStudent]

I have no idea if I'm answering these questions to an "acceptable exam standard". Could someone read through and tell me if I'm answering the question right and point out where my answers need improvement/more clarity? Please? I would seriously appreciate any help you can offer me. I have a SAC first week back and I'm super stressed because I keep losing marks for "lack of clarity" and "not answering the question."   

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: separation of powers, expressed rights and implied rights.

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.

Express rights are rights explicitly outlined in the Constitution. We don’t have many; we only have five (s. 51, s. 80, s. 92, s. 116 and s. 117) but what we do have is very much permanent. s. 128 theoretically allows for them to be amended or taken away by means of a referendum but it is highly unlikely a referendum to strip constituents of their votes would meet the already difficult criteria.

Implied rights are not explicitly stated in the Constitution; they are inferred by the High Court. They exist only so long as the High Court says it does which means these are somewhat temporary; as soon as the High Court rules otherwise on a case addressing this issue, we no longer have an implied right.

They can only be amended or taken away by a referendum, as outlined by s. 128

2) What is meant by "structural protection of rights" in the Constitution. Describe the main structure that exist in the Constitution to protect rights.

Structural protections are not rights in and of themselves; they are mechanisms or structures that are designed to protect against an abuse of power, thereby protecting the rights of Australians if these mechanisms are working as they were designed to.
The main structures that exist in the Constitution to protect rights are:

1) The High Court
The protector of the Constitution, they provide people, groups or bodies with a means to affirm their rights if they believe they have been impinged.

2) Representative Government
Members of Parliament are supposed to represent the people, working in the people’s best interests; they can expect to retain their seats only so long as they do so. They should therefore not seek to strip their constituents of their rights.

3) Separation of Powers
No single person can have absolute power as the power to govern in Australia is divided into three arms – legislative, executive and judicial. This system provides checks and balances to ensure no one can abuse their power and revoke the rights of Australians because, in theory, the other two branches of power would prevent them from doing so.

4) Bicameralism of Parliament
The two houses should complicate the law-passing process. This should ensure any proposed legislation that may infringe upon the rights of the Constituents do not have free passage through parliament and would, in theory, be rejected by parliament.

5) Responsible Government
Within parliament, there exists a chain of accountability; members of parliament are accountable to the parliament and the parliament is accountable to the people. Members of Parliament are expected to be honest and accountable for their actions and, in the case of members of the cabinet, the actions of their respective department. This means that members of parliament would not act against what the people want because they would be held completely accountable for their actions.

[meganrobyn]

I have no idea if I'm answering these questions to an "acceptable exam standard". Could someone read through and tell me if I'm answering the question right and point out where my answers need improvement/more clarity? Please? I would seriously appreciate any help you can offer me. I have a SAC first week back and I'm super stressed because I keep losing marks for "lack of clarity" and "not answering the question."   

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: separation of powers, expressed rights and implied rights.

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.

Express rights are rights explicitly outlined in the Constitution. We don’t have many; we only have five (s. 51, s. 80, s. 92, s. 116 and s. 117) but what we do have is very much permanent. s. 128 theoretically allows for them to be amended or taken away by means of a referendum but it is highly unlikely a referendum to strip constituents of their votes would meet the already difficult criteria.

Implied rights are not explicitly stated in the Constitution; they are inferred by the High Court. They exist only so long as the High Court says it does which means these are somewhat temporary; as soon as the High Court rules otherwise on a case addressing this issue, we no longer have an implied right.

They can only be amended or taken away by a referendum, as outlined by s. 128

Here, you've missed the task word: evaluate. All 'discussion' questions (evaluate, analyse, critically examine, etc) have a similar structure: opinion, arguments for and against (NOT the same as definitions or statements of fact), then usually sum up your opinion. Opinions should be specific to your arguments, but not a summary of those arguments; instead, just have one overall response to the question, no more than one sentence long. In your answer you've given three definitions, with virtually no responsiveness to 'evaluate'. It's not asking you for definitions - it's asking you for arguments for and against. Use the definitions in your arguments, to illustrate strengths and weaknesses.

There are, also, more ways than this that the Constitution protects rights (eg HCA interp, full enforceability, etc). So you don't have to limit yourself to the three types.

Finally, you can't be marked on a question without the marker knowing how many marks were allocated to the question. It's impossible. So always have the mark allocation.

2) What is meant by "structural protection of rights" in the Constitution. Describe the main structure that exist in the Constitution to protect rights.

Structural protections are not rights in and of themselves; they are mechanisms or structures that are designed to protect against an abuse of power, thereby protecting the rights of Australians if these mechanisms are working as they were designed to.
The main structures that exist in the Constitution to protect rights are:

1) The High Court
The protector of the Constitution, they provide people, groups or bodies with a means to affirm their rights if they believe they have been impinged.

2) Representative Government
Members of Parliament are supposed to represent the people, working in the people’s best interests; they can expect to retain their seats only so long as they do so. They should therefore not seek to strip their constituents of their rights.

3) Separation of Powers
No single person can have absolute power as the power to govern in Australia is divided into three arms – legislative, executive and judicial. This system provides checks and balances to ensure no one can abuse their power and revoke the rights of Australians because, in theory, the other two branches of power would prevent them from doing so.

4) Bicameralism of Parliament
The two houses should complicate the law-passing process. This should ensure any proposed legislation that may infringe upon the rights of the Constituents do not have free passage through parliament and would, in theory, be rejected by parliament.

5) Responsible Government
Within parliament, there exists a chain of accountability; members of parliament are accountable to the parliament and the parliament is accountable to the people. Members of Parliament are expected to be honest and accountable for their actions and, in the case of members of the cabinet, the actions of their respective department. This means that members of parliament would not act against what the people want because they would be held completely accountable for their actions.

Ditto re the mark allocation.

Never ever ever have dot points or lists in your answers.

Again, you've just gone for straight definitions a lot, without linking that content back to the question. How, therefore, are rights structurally protected?

Finally, the wording of the question is itself unlikely. What the 'main' structures are is totally subjective, so how would that be marked? What if I disagree? It's not a good example of an exam question.

[HopefulLawStudent]

Here, you've missed the task word: evaluate. All 'discussion' questions (evaluate, analyse, critically examine, etc) have a similar structure: opinion, arguments for and against (NOT the same as definitions or statements of fact), then usually sum up your opinion. Opinions should be specific to your arguments, but not a summary of those arguments; instead, just have one overall response to the question, no more than one sentence long. In your answer you've given three definitions, with virtually no responsiveness to 'evaluate'. It's not asking you for definitions - it's asking you for arguments for and against. Use the definitions in your arguments, to illustrate strengths and weaknesses.

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?

Opinions should be specific to your arguments, but not a summary of those arguments;

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.

Never ever ever have dot points or lists in your answers.

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?

Again, you've just gone for straight definitions a lot, without linking that content back to the question. How, therefore, are rights structurally protected?

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.

Finally, the wording of the question is itself unlikely. What the 'main' structures are is totally subjective, so how would that be marked? What if I disagree? It's not a good example of an exam question.

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...

[clarke54321]

Hey everyone,

Since the study design states that we need to only compare Australia's constitutional protection of rights with only one of the four countries, is it still worth studying them all?

Thanks in advance 

[upandgo]

hey guys!

the A+ note guide mentioned that a benefit of the high court as a method of altering legislative power, is that it's better than a referendum; would this be an effective point to argue? i feel by saying that im not being impartial in my evaluation...rather, i would be implying that the high court is ultimately more effective, (ie. due to the precedents it sets through interpretations) than referendums, solely due to their low sucess rate... any advice on this would be appreciated 

[chasej]

hey guys!

the A+ note guide mentioned that a benefit of the high court as a method of altering legislative power, is that it's better than a referendum; would this be an effective point to argue? i feel by saying that im not being impartial in my evaluation...rather, i would be implying that the high court is ultimately more effective, (ie. due to the precedents it sets through interpretations) than referendums, solely due to their low sucess rate... any advice on this would be appreciated 

If you simply say it's 'better than a referendum' without explaining than you likely won't get any marks for it fyi.

But i don't think it's so relevant to mention referendums unless the question mentions/asks you to compare/etc. the high court and referendums. If you are asked a question on the high court only I think it's better to stick to talking about just the high court. for example the benefit you mentioned would be 'the court is bound to decide cases brought to it and thus when questions or inconsistencies arise in the law they can be resolved by the court by a binding resolution', and then match it with a negative if you are asked to evaluate like 'however the court is not democratically elected and thus decisions may not reflect the will of the people' or 'courts can only deal with cases brought to it by parties and thus the range of issues it can resolve are limited'.

I think the high court and referendum in altering legislative power can't really be compared because their roles are different. the High Court gives effect to words in the constitution and decides how those words actually effect parliament's powers, whereas a referendum is completed to actually change the words in the constitution to remove or add whole new types of powers, or change the governmental structure, and thus those changes can be far greater than a simple interpretation of words. The High Court can interpret words in a way which expands the federal parliament's power but the High Court doesn't just do it for the sake of it and always makes long and justified judgments as to their decisions so I don't think having the High Court alter parliament's powers is such as easy task - and even then the High Court is limited to re-interpreting the constitution in the rare, few and far between cases which actually end up dealing with these issues in the first place.

It's easy to say referendum's are a pain and it's hard to get the double majority and most referendums fail and thus high court interpretation avoids the voting issue and the cost of an election etc., but how many times has the government tried to argue for an expansive interpretation of its powers in the High Court and how often have they succeeded? Not that much.

[HasibA]

Hey everyone,

Since the study design states that we need to only compare Australia's constitutional protection of rights with only one of the four countries, is it still worth studying them all?

Thanks in advance 

don't study all of them, waste of time. Choose one and study it well. I did USA and found it to be the most straightforward

[upandgo]

If you simply say it's 'better than a referendum' without explaining than you likely won't get any marks for it fyi.

But i don't think it's so relevant to mention referendums unless the question mentions/asks you to compare/etc. the high court and referendums. If you are asked a question on the high court only I think it's better to stick to talking about just the high court. for example the benefit you mentioned would be 'the court is bound to decide cases brought to it and thus when questions or inconsistencies arise in the law they can be resolved by the court by a binding resolution', and then match it with a negative if you are asked to evaluate like 'however the court is not democratically elected and thus decisions may not reflect the will of the people' or 'courts can only deal with cases brought to it by parties and thus the range of issues it can resolve are limited'.

I think the high court and referendum in altering legislative power can't really be compared because their roles are different. the High Court gives effect to words in the constitution and decides how those words actually effect parliament's powers, whereas a referendum is completed to actually change the words in the constitution to remove or add whole new types of powers, or change the governmental structure, and thus those changes can be far greater than a simple interpretation of words. The High Court can interpret words in a way which expands the federal parliament's power but the High Court doesn't just do it for the sake of it and always makes long and justified judgments as to their decisions so I don't think having the High Court alter parliament's powers is such as easy task - and even then the High Court is limited to re-interpreting the constitution in the rare, few and far between cases which actually end up dealing with these issues in the first place.

It's easy to say referendum's are a pain and it's hard to get the double majority and most referendums fail and thus high court interpretation avoids the voting issue and the cost of an election etc., but how many times has the government tried to argue for an expansive interpretation of its powers in the High Court and how often have they succeeded? Not that much.

thanks for the insight! yeah i wasnt going to simply state that it's better than a referendum without further explanation, but i too felt that it wasnt worth mentioning because i'd then have to compare the high court with the referral of powers, which makes my argument too superfluous and i wouldn't be answering the question  not sure why the guide mentioned that actually, haha but thanks again!

[HopefulLawStudent]

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...

Bump. Anyone?

[huehue]

Hello! Does anyone have a definition for death penalty/capital punishment (preferably one from an offical source)? I've looked some up and they give varying versions ranging from state sanctioned murder to the sentence of execution. Thanks in advance for all help  .

[clarke54321]

When defining express rights, what other word is appropriate apart from 'express.' It wouldn't be correct for me to use entrenched unless talking about Australia, as some express rights are listed in statutory bills of rights.

Since express rights are also known as explicit rights could I say rights that are explicitly listed...?

Thanks in advance 

[gunsforhands]

When defining express rights, what other word is appropriate apart from 'express.' It wouldn't be correct for me to use entrenched unless talking about Australia, as some express rights are listed in statutory bills of rights.

Since express rights are also known as explicit rights could I say rights that are explicitly listed...?

Thanks in advance 

For express rights you can definitely call them entrenched, or just say they are the rights explicitly listed in the constitution.

[clarke54321]

For express rights you can definitely call them entrenched, or just say they are the rights explicitly listed in the constitution.

Would it be okay to call them entrenched since other countries have these rights within a statue rather than a constitution?

[chasej]

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].