VCE Legal Studies Question Thread

[The Brightest Witch]

Sorry guys, but I'm still really confused as to how to analyse.

This question comes from the 2013 exam:
Question 12 (8 marks)
Using one successful referendum and one High Court case, analyse the impact of referendums and the High
Court’s interpretation of the Commonwealth Constitution on the division of law-making powers.

So what I'm getting from people I ask and the examiner's report kind of, is than analysing is more like stepping back and looking at the thing as a whole, and when you write it, it's more like an essay. So not just straightforward strengths and weaknesses, but bringing in stats and examples to show the impacts and what can/has happened. So basically just looking at heaps of aspects of the 'thing' that relate to the way the question is asked?

The reason I'm asking is that I kind of approached it like an evaluate but my teacher said I'm doing it wrong. Now I think I have an idea, so I'm putting it to you guys

Thank you!!

[Summers]

Sorry guys, but I'm still really confused as to how to analyse.

This question comes from the 2013 exam:
Question 12 (8 marks)
Using one successful referendum and one High Court case, analyse the impact of referendums and the High
Court’s interpretation of the Commonwealth Constitution on the division of law-making powers.

I don't really have much knowledge on the subject as of yet, as I'll be learning it all on Sunday as my SAC is on Monday. However ..

This is essentially an evaluate question. Analyse is basically the paradigm of evaluate.
Firstly (or lastly), you decide whether a referendum or a HC interpretation has more of an alteration on the division of powers. This is completely up to you and you just have to back it up.

Then you just explain what a referendum is, link it to the case such as the 1967 successful aboriginal referendum and explain the shift in power. You then outline the strengths and weaknesses of a referendum and relate it to your contention of which is better at altering the division of powers. Vice versa pretty much.

Then you can basically recap it after explaining it all in one sentence being like 'Whilst referendums can alter the division of powers, it has only occurred 4 times and thus is infrequent, whilst a high court interpretation is more frequent, and can thus alter the division of powers successfully more often.

[Summers]

Can someone please tell me if I'm answering this question right? I'll only do the first half, thus 3 marks.

Using two cases that you have studied this year, describe the impact of High Court decisions on the law-making powers of the Commonwealth and State Parliaments. (6 marks)

One high court case that has seen a shift in the division of powers is the Franklin Dam Case. The issue was whether Commonwealth Parliament could use their power of external affairs to legislate in areas of residual powers, which are the areas of law which primarily only the states can legislate in. Section 51 of the constitution outlines that Commonwealth Parliament have the power to legislate in the area of External Affairs. The Tasmanian Government wanted to log and dam the Franklin River, but Commonwealth used their External Affairs to stop the Tasmanian Government from log and damming the area by listing the site as World Heritage. The High Court ruled in favour of the Commonwealth Parliament, stating that Commonwealth can legislate in areas of residual powers if it falls under International Treaty. As a result, the state saw a decrease in their residual powers and the Commonwealth saw an increase in their specific (concurrent) powers.

[chasej]

Can someone please tell me if I'm answering this question right? I'll only do the first half, thus 3 marks.

Using two cases that you have studied this year, describe the impact of High Court decisions on the law-making powers of the Commonwealth and State Parliaments. (6 marks)

One high court case that has seen a shift in the division of powers is the Franklin Dam Case. The issue was whether Commonwealth Parliament could use their power of external affairs to legislate in areas of residual powers, which are the areas of law which primarily only the states can legislate in. Section 51 of the constitution outlines that Commonwealth Parliament have the power to legislate in the area of External Affairs. The Tasmanian Government wanted to log and dam the Franklin River, but Commonwealth used their External Affairs to stop the Tasmanian Government from log and damming the area by listing the site as World Heritage. The High Court ruled in favour of the Commonwealth Parliament, stating that Commonwealth can legislate in areas of residual powers if it falls under International Treaty. As a result, the state saw a decrease in their residual powers and the Commonwealth saw an increase in their specific (concurrent) powers.

That's a good answer, however it does sound a little convoluted, I think you would do better to explain the case in chronological order so it's easier to the marker to follow. That is, explain what Tasmania wanted to do, there were protests, commonwealth introduced legislation stopping etc. etc. That way it just looks better.

Also perhaps explain what residual powers are a bit more comprehensibly, to support your answer. That is, residual powers are any power, not explicitly given to the Commonwealth parliament as either a concurrent or exclusive power in the Australian constitution and thus are powers remaining with the states to legislate in as their own constitutions allow. That definition just sort of explains the constitutional implications a little bit more.

Also the last sentence could use with a bit more specific information. That is "the commonwealth parliament enjoyed an increase in power as per this high court interoperation, as following the decision the commonwealth was able to legislate in areas of, what previously was residual power, provided the area impacted on one of the Commonwealth's international treaties, thus this also means states residual powers were constrained by this high court interpretation as they are now subject to the Commonwealth parliament enforcing its international treaties.

[Summers]

Thanks. Here is part two to that answer. I'm not too worried about my answers being convoluted as I am able to write abnormally quickly during a SAC, but I am just wondering if I tick all the boxes for 3 marks? A lot of my answer I seem to be retelling facts of the case, but I'm not sure how I can string out 3 marks talking about the impact.

A second High Court case that had an impact on the division of powers was the Brislan case. The Brislan case required the High Court to interpret one of the areas of specific powers related to 'postal, telegraphic.... and other like services' as Commonwealth Parliament introduced a piece of legislation that required people who owned radios to hold a license, with Brislan arguing that broadcasting to a set is not a service as Section 51 had intended. The High Court decided in favour of the Commonwealth, interpreting 'other like services' to include 'broadcasting to a wireless set,' therefore extending the powers of Commonwealth. The impact of the High Court decision confirmed Commonwealth Parliament's power in making law in this area, and shifted the division of powers, as this area was once a residual power that only States had to power to legislate over but after the High Court's interpretation of the case it became a concurrent power, increasing Commonwealth powers and reducing State's power.

[chasej]

Thanks. Here is part two to that answer. I'm not too worried about my answers being convoluted as I am able to write abnormally quickly during a SAC, but I am just wondering if I tick all the boxes for 3 marks? A lot of my answer I seem to be retelling facts of the case, but I'm not sure how I can string out 3 marks talking about the impact.

A second High Court case that had an impact on the division of powers was the Brislan case. The Brislan case required the High Court to interpret one of the areas of specific powers related to 'postal, telegraphic.... and other like services' as Commonwealth Parliament introduced a piece of legislation that required people who owned radios to hold a license, with Brislan arguing that broadcasting to a set is not a service as Section 51 had intended. The High Court decided in favour of the Commonwealth, interpreting 'other like services' to include 'broadcasting to a wireless set,' therefore extending the powers of Commonwealth. The impact of the High Court decision confirmed Commonwealth Parliament's power in making law in this area, and shifted the division of powers, as this area was once a residual power that only States had to power to legislate over but after the High Court's interpretation of the case it became a concurrent power, increasing Commonwealth powers and reducing State's power.

You didn't really explain the facts of the case fully here. Remember to explain that Brislan was charged with a criminal offence for using a wireless under a commonwealth act requiring users of a wireless to have a licence, of which they were convicted. Brislan challenged the validity of the commonwealth criminal code on the basis that the commonwealth didn't have the power to legislate over wireless's as wireless's was not a power given to the commonwealth by the consittion, meaning it was a residual power left with the states, thus the criminal code under which they were convicted was ultre virus, essentially meaning it was unconstitutional.


The true impact of the case from what I understand is in the Justice's comments on the case where the say the main characteristic of the items mentioned in the constitution are that they're "communication" technologies, thus if any other new communication technology emerged in the future, it would likely be covered by the "other like services" wording.

I think the general marking scheme for this type of question would be. 1 mark for explaining background of case, 1 mark for explaining outcome of case, 1 mark for linking back to how it altered division of powers.

[M_BONG]

I actually don't agree, but I stand to be corrected.

If you read the assessor comments on similar questions, they stress all the time that they don't care if you know every single fact, background, outcome of the case.. The thing they are looking for is the impact on the division of power, not the facts of the case. Sure, by all means have an introduction on the facts of the case, the ratio decidendi of the outcome, but they don't want your whole answer chronologically stating what the court found with a one sentence impact statement on the div of power at the end.

A 6 marker would be marked holistically but I think a maximum of 2 marks (3 if they are generous) would be given for facts of case. The rest would be an analysis on how the powers changed because of the interpretation. You could possibly add in a few strengths and weaknesses of the whole process (eg. Courts being apolitical, objective etc).

[chasej]

I actually don't agree, but I stand to be corrected.

If you read the assessor comments on similar questions, they stress all the time that they don't care if you know every single fact, background, outcome of the case.. The thing they are looking for is the impact on the division of power, not the facts of the case. Sure, by all means have an introduction on the facts of the case, the ratio decidendi of the outcome, but they don't want your whole answer chronologically stating what the court found with a one sentence impact statement on the div of power at the end.

A 6 marker would be marked holistically but I think a maximum of 2 marks (3 if they are generous) would be given for facts of case. The rest would be an analysis on how the powers changed because of the interpretation. You could possibly add in a few strengths and weaknesses of the whole process (eg. Courts being apolitical, objective etc).

Actuallly, after reading the assessor's reports in more detail you seem to be correct. It's probably 1 mark for facts of the case, and 2 for explaining the impact after looking into it more.

[Summers]

1.   The Australian Constitution protects our rights by various means. Describe ‘structural protections’ and outline an example. (4 marks)
(Sorry for no structuring! Please tell me what I'd get out of 4. This question was given in class and the answers said you had to talk about Sections 7+24 and link it to representative government + how they must be voted in by the people, but I'd rather write all this than remember all the sections).

Structural protections are the mechanisms set up throughout the constitution that indirectly provides protections for human rights when dealing with Commonwealth Parliament. There are three clear examples of structural rights. One right refers to representative government, which means that the current government occupying parliament must be elected by the electorate or voters and that it must reflect the views and values of a majority, or it can be voted out of office or be forced to resign. A second right is representative government, which means that government is accountable to parliament, and are therefore accountable to the people. Ministers have a ‘chain of accountability’ and must answer questions during question timing about their government department, otherwise they can be forced to resign. A third right is the seperation of powers which ensures the judiciary, executive and legislative powers are held by separate bodies to ensure that no one body has an extreme rule over our legal system. In other words, structural protections ensure the government does not become too powerful.

[meganrobyn]

Do you see this stimulus?
This is a discriminating factor. If you don't list the other two means of protection (implied and explicit rights) you lose one mark.

The stimulus isn't important - the question only asks for structural protections, so no marks are allocated for the others. You only need to address the stimulus if the question refers to it in some way.

[meganrobyn]

1.   The Australian Constitution protects our rights by various means. Describe ‘structural protections’ and outline an example. (4 marks)
(Sorry for no structuring! Please tell me what I'd get out of 4. This question was given in class and the answers said you had to talk about Sections 7+24 and link it to representative government + how they must be voted in by the people, but I'd rather write all this than remember all the sections).

Structural protections are the mechanisms set up throughout the constitution that indirectly provides protections for human rights when dealing with Commonwealth Parliament. There are three clear examples of structural rights. One right refers to representative government, which means that the current government occupying parliament must be elected by the electorate or voters and that it must reflect the views and values of a majority, or it can be voted out of office or be forced to resign. A second right is representative government, which means that government is accountable to parliament, and are therefore accountable to the people. Ministers have a ‘chain of accountability’ and must answer questions during question timing about their government department, otherwise they can be forced to resign. A third right is the seperation of powers which ensures the judiciary, executive and legislative powers are held by separate bodies to ensure that no one body has an extreme rule over our legal system. In other words, structural protections ensure the government does not become too powerful.

- In your definition it would be good to specifically say they are created by principles established by the structure of the Constitution as a whole. Just as a slightly more specific phrase than "throughout".

- The task word 'describe' usually suggests a 2 mark allocation, while the task word 'outline' usually suggests a 1 mark allocation. Thus, the question is a little over-rewarded for the task words used. Even just for the 2 marks, though, you don't have enough description of structural protections - and it looks like it could be worth 3 marks here...

- The question only asks for one example, so unfortunately you gain no marks for the additional two (they don't even read them, as it's the *first* one that's marked, not the *best*). Just do one description and one example, and concentrate on pulling the complete four marks out of those.

- Just a small thing: try not to refer to SPs as 'rights', because they're indirect community protections rather than individually-vested rights. Best not to confuse them.

Basically, you just need more depth and less breadth. Right now, 2/4. But you apologised for your structure - and it's fine!

[meganrobyn]

Can someone please tell me if I'm answering this question right? I'll only do the first half, thus 3 marks.

Using two cases that you have studied this year, describe the impact of High Court decisions on the law-making powers of the Commonwealth and State Parliaments. (6 marks)

One high court case that has seen a shift in the division of powers is the Franklin Dam Case. The issue was whether Commonwealth Parliament could use their power of external affairs to legislate in areas of residual powers, which are the areas of law which primarily only the states can legislate in. Section 51 of the constitution outlines that Commonwealth Parliament have the power to legislate in the area of External Affairs. The Tasmanian Government wanted to log and dam the Franklin River, but Commonwealth used their External Affairs to stop the Tasmanian Government from log and damming the area by listing the site as World Heritage. The High Court ruled in favour of the Commonwealth Parliament, stating that Commonwealth can legislate in areas of residual powers if it falls under International Treaty. As a result, the state saw a decrease in their residual powers and the Commonwealth saw an increase in their specific (concurrent) powers.

Add an extra sentence at the end explaining *how* the powers increased/decreased and I'd give you 3/3. It's all correct, makes sense, and you've included the facts (1 mark), the legal question concerning the interpretation of external affairs (1 mark) and the impact (1 mark, but I'd love just a longer final sentence).

[meganrobyn]

The true impact of the case from what I understand is in the Justice's comments on the case where the say the main characteristic of the items mentioned in the constitution are that they're "communication" technologies, thus if any other new communication technology emerged in the future, it would likely be covered by the "other like services" wording.

Absolutely - that's the long-term, and most significant, impact. Directly as a result of the Brislan precedent, too - the states haven't even bothered challenging subsequent legislation because of it.

I think the general marking scheme for this type of question would be. 1 mark for explaining background of case, 1 mark for explaining outcome of case, 1 mark for linking back to how it altered division of powers.

100%

[Jawnle]

Hey guys just wondering if I've got my structure right and the relevant information is included. Any feedback would be appreciated! I've just done 1/2 of the question.

Discuss the significance of two High Court cases that have interpreted the Commonwealth Constitution. In your answer, indicate the impact these cases have had on the law-making powers of the State and Commonwealth Parliaments. (6 marks)

In the Franklin Dam Case, The Commonwealth attempted to stop the dam from being built in an area listed on the World Heritage List, in which Australia has signed an international treaty promising to protect heritage listed areas.
The High Court was asked to consider whether the Commonwealth could use its external affairs power (an exclusive power in section 51 (subsection 29) to interfere with a residual power of a state.
The High Court determined that the CW did have the power to intervene a residual power where it would be required that it uphold its external affairs power.
This case resulted in the Commonwealth Parliament’s law making powers to increase at the expense of the states because the Commonwealth is now able to legislate on areas of law that was previously a residual power if it were to uphold an international treaty. The Commonwealth had also used this “external affairs power” as precedent to create a variety of other laws to ‘uphold obligations under international treaties’. Hence, this changes the balance of power because under Section 109, any state law proposed that conflicts with the CW’s obligations to uphold treaties will be nullified to the extent of its inconsistency.

[Jawnle]

This is the second half of the question I posted above. I'm having trouble with the facts of this case, what was the actual case that led to the High Court being asked to interpret the Constitution? Thanks

In the Roads Case (1926) ie. Financial Power, Victoria challenged the Commonwealth’s ability under S96 to make conditional or tied grants of financial assistance to the states. The Commonwealth had provided funds to the States, yet the States preferred not to spend the funds on what the CW wanted, which were building roads.
The High Court found the case in favour of the Commonwealth and that the States would be required to follow its policies to receive a grant.
This substantially altered the balance of powers in favour of the Commonwealth because they could manipulate the states to the conditions on which grants given to the states had to be used eg. Road construction. It also meant that the Commonwealth is indirectly controlling many of the states’ residual powers.