VCE Legal Studies Question Thread

[El-Baba]

Question which requires an answer please.

Is this statement wrong?

Nevertheless, there are five explicit individual rights in the Constitution. These are the right to vote (Section 41), protection against acquisition of property on unjust terms (Section 51 (xxxi)), the right to a trial by jury (Section 80), freedom of religion (Section 116) and prohibition of discrimination on the basis of State of residency (Section 117).
http://www.humanrights.gov.au/how-are-human-rights-protected-australian-law

I thought these were the explicit, express rights:

Right to "just terms" with the compulsory acquisition of property in section 51 (xxxi)

Right to trial by jury in section 80

Right to free interstate trade and trade in section 92

Freedom from discrimination based on one's state of residence in section 117

Freedom of religion (Section 116)

Someone please answer the question and provide clarification.

[Duyyy11]

Express rights: Those rights that are expressly written within the wording of the Constitution. Also called explicit rights

Everything you have said in your statement is correct (or at least it's identical to how I've learnt it and as listed in numerous references).

Wikipedia fails to acknowledge either s.92 or s.41 within the express rights section.

As far as I know he study design is only concerned about the 5 express rights you listed, but perhaps someone with more experience could explain why there is a discrepency.

[meganrobyn]

It's just a matter of trying to find legal/judicial consensus, and often the wording of judgments differs - not all judges are going to say outright, "Yes, I class this definitively as an express right!"

Section 92 is sometimes read as purely a restriction (like s114, for instance) - but since this restriction affords a layer of protection to individual people it becomes a freedom or a 'right'. That's essentially all a right is: a restriction on power that increases every individual's freedom to do/not to something.

Section 41 is not a right to vote. We don't have a right to vote. We do have a non-specific community entitlement to a representative government, called a structural protection. But s41 was included as a 'transitional' (temporary, moving from colonies to a country) provision to get the very first Cwlth Parliament elected, and has no contemporary application. In other words, it's a dead section.

[El-Baba]

Thanks guys, bless you all

[Jawnle]

Hey guys, I'm confused as to why the Australian constitution does not imply that we have the right to vote.
Section 24 states that  "The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth". If it is "directly chosen" by the people, then shouldn't it be implied that we have the right to vote?

In addition, the principle of representative government is central to the constitution. If it is vital that we are able to choose who represents us, then it would be fair to imply that we have the right to vote.

The High Court has only established a firm standing on one implied right, which is the freedom of political communication. For representative government to function properly, we need to have the right to access political information and to engage in political debates in order to make an informed decision.

So this is where I stand at the moment

Representative government -----> implied right to vote for who represents us -----> If we had the right to vote, for it to be effective, we need access to political info (freedom of political communication)

But there is no implied right to vote

[chasej]

Hey guys, I'm confused as to why the Australian constitution does not imply that we have the right to vote.
Section 24 states that  "The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth". If it is "directly chosen" by the people, then shouldn't it be implied that we have the right to vote?

In addition, the principle of representative government is central to the constitution. If it is vital that we are able to choose who represents us, then it would be fair to imply that we have the right to vote.

The High Court has only established a firm standing on one implied right, which is the freedom of political communication. For representative government to function properly, we need to have the right to access political information and to engage in political debates in order to make an informed decision.

So this is where I stand at the moment

Representative government -----> implied right to vote for who represents us -----> If we had the right to vote, for it to be effective, we need access to political info (freedom of political communication)

But there is no implied right to vote

The limited right to vote protects groups from having their right to vote taken away for no substantial reason. However it doesn't protect an individual's right to vote in every election. Hence it's moreso a restriction on government, than a right afforded to Australian citizens.

[Jawnle]

The limited right to vote protects groups from having their right to vote taken away for no substantial reason. However it doesn't protect an individual's right to vote in every election. Hence it's moreso a restriction on government, than a right afforded to Australian citizens.

So it's rather a way to protect the privilege to vote rather than to give them the right to vote?

[chasej]

bump.

There's no need to bump. People see your question and it stays at the top of the page here as it's a sticky.

[M_BONG]

Hi, if you are asked to explain the operation of the doctrine of precedent for 4 marks, would this be good enough?

The doctrine of precedents is the process whereby courts follow the legal principles that have been developed in past cases before them, and apply those legal principles to the case in the present. Then I would talk about the latin terms stare decisis and ratio decidendi, and if time allowed it both binding/persuasive precedents.

How would you get 4 marks doing it? It seems like if you do all that it would be enough, but if you left out lets say the two types of precedents you are short a mark.

Ok here's two things you're missing:

You haven't made it clear that higher court decisions need to be followed by lower courts in the same hierachy, for consistency and predictability. You haven't slipped in the buzz word "Material facts" of a case... your answer says that all past decisions must be followed but that's incorrect. Only cases with similar material facts need to be followed by a lower court..

For four marks you should be talking about ratio decidendi, obiter dictum and stare decisis and you can always slip in binding precedent without explaining if you're running out of space/time.

eg. "Higher court decisions act as binding precedents (legal principles) on lower courts in the same hierachy "

[M_BONG]

Thanks - you clarified what I needed to know! So would this be a decent model answer?

The doctrine of precedent is the process whereby courts refer to the legal principles that have been developed before them and apply those legal principles to a current case, which epitomises the term 'stare decisis.' Stare decisis is the principle that underpins our legal system which essentially means 'to stand by what has already previously been decided,' which promotes consistency and predictability within the law. In order to stand by what has already been decided, the material facts of the case must be similar to the previous case in order to apply the precedent. If no applicable precedent or piece of legislation covers an area of law, the ratio decidendi which is the 'reasoning behind the decision' will form a brand new precedent and become binding on all lower courts. The ratio decidendi can also become persuasive in influencing judges and their decisions whilst not being bound to follow a precedent with the obiter dictum which refer to the 'statements made along the way in coming to the decision' which can also be persuasive but not bound.

mmmm. How would I cut that down? :-) Thanks for the answer Zeima!

AND ANOTHER QUESTION: When would you find a question to discuss the techniques to do with RODD? I really only have like 10 questions to practice with for this SAC and I'm not sure how you'd find a question with RODD, or if you integrate that with the doctrine of precedent explanation.

Ok before I give you advice, keep in mind I did Legal last year so my memory might fail me..
But I think your current answer/explanation for four marks is really good. You could be a little concise in your opening sentence. Here's how I would have started.

I think you miss two key things: the term "superior court of record" (ie. not all courts can make precedents); and the words "in the same court hierachy". But the rest of your answer is good. I mean those two things are petty, and you probably wouldn't lose a mark for it.

You could slip in RODD in there - eg. to avoid following precedents, a judge could reverse, overrule, distinguish or disapprove of a precedent. (I wouldn't proceed into explaining what each of them mean since it's only four marks).

You only need to apply RODD if the question *specifically* asks you to do so.

A question on the 2012 exam - Explain why a Supreme Court (trial division) judge does not have to follow a decision by the Court of Appeal/
Here, you would apply RODD. But no, don't bother with going into RODD in detailed form if it's a 4 marker on a doctrine of precedent question.

[hweeyi]

hey guys, im having my first legal assignment titled "the Australian Constitution is adaptable"
any ideas how to approach and answer this question?

[chasej]

Hi guys I'm trying to work out what I got for my first GA for Legal Studies - pretty happy because I think I may get my first A+

A+ is 92+/100 from 2013.

For the first area of study I had 2 SACS - 18/20 + 19/20
For the second area of study I had 1 SAC - 29/30
For the third area of study I had a SAC out of 25 today - I would be expecting like ~21/25 (That's really a lenient guess, I would hopefully do better).

Would that give me an A+ I Don't really get it. Thanks!

It's impossible to say as SAC results are scaled against exam performance. However those results look to put you in good stead for results at the end of the year.

[Jawnle]

What's the difference between common law and precedent?

What's the difference between binding and persuasive precedent and what are the conditions?

[chasej]

1. What's the difference between common law and precedent?

2. What's the difference between binding and persuasive precedent and what are the conditions?

1. Common law refers to the general body of law which has been made by judges through their decisions. Precedent refers to the ratio decidendi judges make in individual cases which ultimately becomes binding on lower courts in the same hierarchy when the are dealing with similar cases, hence individual precedents form part of the larger body of common law.

2. Binding precedent is a precedent a court has to follow as it was set by a court higher up in the same hierarchy to it, and the material facts of the precedent case are sufficiently similar to the current case the court bound to the precedent is hearing, hence the current case's judge is bound by the decisions the judge in the higher court has made. Persuasive precedent is a precedent a judge is not bound to follow, but may consider a good point of law/decision which may strongly influence their decision in a current case, there is a plethora of reasons where judges may not be bound by a precedent, such as a precedent existing in a separate court hierarchy or a precedent having been made in a lower court in the same hierarchy.

[Jawnle]

1. Common law refers to the general body of law which has been made by judges through their decisions. Precedent refers to the ratio decidendi judges make in individual cases which ultimately becomes binding on lower courts in the same hierarchy when the are dealing with similar cases, hence individual precedents form part of the larger body of common law.

2. Binding precedent is a precedent a court has to follow as it was set by a court higher up in the same hierarchy to it, and the material facts of the precedent case are sufficiently similar to the current case the court bound to the precedent is hearing, hence the current case's judge is bound by the decisions the judge in the higher court has made. Persuasive precedent is a precedent a judge is not bound to follow, but may consider a good point of law/decision which may strongly influence their decision in a current case, there is a plethora of reasons where judges may not be bound by a precedent, such as a precedent existing in a separate court hierarchy or a precedent having been made in a lower court in the same hierarchy.

Thanks chasej, the 2nd point made sense but I'm still slightly confused about the first one. Is common law a set of precedents? Could you provide an example?