VCE Legal Studies Question Thread

[melissaromeo]

Hello! I was wondering if someone could help me out to figure out how I can structure out this 10 mark question.
It's from the 2012 Exam Q13 

"Rights in Australia are well protected by the Commonwealth Constitution, in part because of section 128 of the Constitution. Discuss the extent to which you agree or disagree with the above statement.
In your answer, explain the significance of one High Court case that you have studied related to the constitution protection of rights in Australia"

Thank you!!

[meganrobyn]

Hello! I was wondering if someone could help me out to figure out how I can structure out this 10 mark question.
It's from the 2012 Exam Q13 

"Rights in Australia are well protected by the Commonwealth Constitution, in part because of section 128 of the Constitution. Discuss the extent to which you agree or disagree with the above statement.
In your answer, explain the significance of one High Court case that you have studied related to the constitution protection of rights in Australia"

Thank you!!

How are you currently thinking of structuring it?

[HopefulLawStudent]

Hiiiii.

Quick question.

"When will the interpretation of a statute form a precedent?" - 2 marks.

Drawing a complete blank. :/

[chasej]

Hiiiii.

Quick question.

"When will the interpretation of a statute form a precedent?" - 2 marks.

Drawing a complete blank. :/

It's a bit of a curious question but it does make sense.

Precedent is law courts make through their decisions. Courts make reasons for their decisions (ratio decidendi) which ultimately are binding on all courts lower than deciding court in the hierarchy. Thus when a court interprets statute they form a precedent in that the reasons for their decision are binding on all lower courts. In any situation where a court interprets legislation in a new way and there are courts lower in the hierarchy to bind - then a precedent has been formed.  [btw all decisions can be persuasive precedent]

[meganrobyn]

It's a bit of a curious question but it does make sense.

Precedent is law courts make through their decisions. Courts make reasons for their decisions (ratio decidendi) which ultimately are binding on all courts lower than deciding court in the hierarchy. Thus when a court interprets statute they form a precedent in that the reasons for their decision are binding on all lower courts. In any situation where a court interprets legislation in a new way and there are courts lower in the hierarchy to bind - then a precedent has been formed.  [btw all decisions can be persuasive precedent]

(except if it's the Mag's or County, assuming we're talking binding...?)

[meganrobyn]

Hiiiii.

Quick question.

"When will the interpretation of a statute form a precedent?" - 2 marks.

Drawing a complete blank. :/

Hey, can I just ask where this question comes from? As in, what company published the question if it's from a company paper or something? It's just that I find this question weirdly familiar.......

[HopefulLawStudent]

It's from the NEAP/A+ Notes/whatever it is they're called. My legal teacher uses A+ and NEAP interchangeably whenever he refers to these so I always get so confused as to what they're actually called.

Thanks meganrobyn and chasej for your help! I really appreciate it.

---

Also...

Would really love some help with this question:



The doctrine of precedent allows for both consistency and flexibility. To what extent do you agree? [6 marks]

The doctrine of precedent refers to the process by which lower courts in the same hierarchy are obligated to follow the decisions of higher courts in cases for which the material facts are the same. This process provides for consistency by ensuring that similar cases are dealt with in a similar way as judges are obligated to uphold the decisions of higher judges for similar cases. The problem with this, however, is that lower courts are obligated to uphold a higher court’s decision irrespective of whether or not it’s good or bad. Bad precedents may lead to injustice and poor judgements in cases as a precedent cannot be changed until a case comes before a higher court with similar material facts in order to change the precedent. There are also ways in which courts avoid precedent including reversals, overruling, distinguishing and disapproving which may lead to some inconsistency.

The courts also have some flexibility in avoiding precedents as they may choose to reverse, overrule, distinguish or disapprove the judgements of other judges. However, they are some inherent restrictions on the amount of flexibility they have. Reversing a judgement can also be done for cases upon appeal to a higher court in which the higher court has made a contrary judgement to the lower court. Overruling only occurs in higher courts on a case which is similar to one previously handled by a lower court in the hierarchy but chooses to make a contrary decision to the lower court. However, while this is possible, judges tend to be conservative and are typically more likely to follow a persuasive precedent than establish a new one. Distinguishing occurs only in instances in which there are key differences in the material facts of the case do not align. Finally, disapproving of a precedent can only occur in a court at the same level of the hierarchy; they may choose to not follow the existing persuasive precedent established by another court at the same hierarchy level. Thus, through the methods outlined above, the courts have some flexibility in avoiding established precedents.

Therefore, to a large extent, the doctrine of precedent allows for both consistency and flexibility.





Thoughts? Have I answered the question? Have I provided enough detail? How many marks do you think I'd have gotten if I'd actually written that in a VCAA exam? Have I structured my answer right? My teacher's always going on and on and on about structure in our answers and answering questions in the same order they're asked and blah blah blah.

[HopefulLawStudent]

Would also love your thoughts on my answer to the following question if possible:

Why is statutory interpretation necessary? How is it done? [8 marks]

Statutory interpretation is sometimes necessary because statutes and the meanings of words could be ambiguous. For example, in the Davies v. Waldron (1989) case, the words “in charge of a motor car” required interpretation as there was some ambiguity regarding whether or not those words extended to what Waldron alleged he had done – started a car for a friend while intoxicated.

Another instance in which statutory interpretation may be necessary is that the meanings of words may change over time. An example is the Attorney General v. Kevin and Jennifer (2003) case. In this case, the judge was required to ascertain whether the definition of “man” applied to transgender individuals. The implication of this case was that the strict meaning of “man” and “woman” are not as may have been originally envisaged by legislators due to medical and technological changes since marriage laws were originally passed.

Intrinsic and extrinsic sources may be used to interpret legislation. Examples of intrinsic sources include the actual words used in the Act, any definitions that may be provided at the beginning of the Act to clarify the meaning of technical terms of words that may have more than one meaning, or any margin notes or footnotes that can clarify sections of the act. Examples of extrinsic sources include the record of parliamentary debates, dictionary definitions of words and any acts interpretation legislation that may have been passed to provide guidelines on how judges should interpret statutes.



Iffy about whether or not I answered the "how is it done?" question properly. Should I have gone into the whole literal/purposive approaches stuff?

[chasej]

Would also love your thoughts on my answer to the following question if possible:

Why is statutory interpretation necessary? How is it done? [8 marks]

Statutory interpretation is sometimes necessary because statutes and the meanings of words could be ambiguous. For example, in the Davies v. Waldron (1989) case, the words “in charge of a motor car” required interpretation as there was some ambiguity regarding whether or not those words extended to what Waldron alleged he had done – started a car for a friend while intoxicated.

Another instance in which statutory interpretation may be necessary is that the meanings of words may change over time. An example is the Attorney General v. Kevin and Jennifer (2003) case. In this case, the judge was required to ascertain whether the definition of “man” applied to transgender individuals. The implication of this case was that the strict meaning of “man” and “woman” are not as may have been originally envisaged by legislators due to medical and technological changes since marriage laws were originally passed.

Intrinsic and extrinsic sources may be used to interpret legislation. Examples of intrinsic sources include the actual words used in the Act, any definitions that may be provided at the beginning of the Act to clarify the meaning of technical terms of words that may have more than one meaning, or any margin notes or footnotes that can clarify sections of the act. Examples of extrinsic sources include the record of parliamentary debates, dictionary definitions of words and any acts interpretation legislation that may have been passed to provide guidelines on how judges should interpret statutes.



Iffy about whether or not I answered the "how is it done?" question properly. Should I have gone into the whole literal/purposive approaches stuff?

I think a good place to start would be defining what statutory interpretation actually is.

And yes, I think for an 8 mark question when explaining how statutory interpretation is done the literal and purposive approaches are relevant to discuss, also talk about how it becomes binding through the doctrine of precedent and courts when statute interpreted is part of the ratio decidendi of a court judgment.

[nm4065]

Hey, I'm just wondering, what happens when a precedent is overruled by a court on the same level in the court hierachy that made the original precedent. Are both precedents then binding? I'm just a bit confused as to how the doctrine of precedent works on the same court.
Thanks.

[HopefulLawStudent]

Hey, I'm just wondering, what happens when a precedent is overruled by a court on the same level in the court hierachy that made the original precedent. Are both precedents then binding? I'm just a bit confused as to how the doctrine of precedent works on the same court.
Thanks.

Something I feel I must clear up before I answer your question.

Overruling occurs when judge A hears a case and a similar one was previously dealt with in a lower court in the same hierarchy by Judge B. Judge A chooses to make a decision that is different to the decision made by Judge B. This establishes a new precedent that overrules the one previously established by Judge B.

What you're talking about is disapproving.

Disapproving occurs when Judge A and Judge B are from the same level of the court hierarchy. Judge A has previously dealt with a case and made a judgement. This can serve as a persuasive precedent for Judge B in that they might choose to follow it. However, if they do not choose to follow it, they are disapproving. This forms two contradictory precedents that must later be overruled by either a decision by a higher court on the same issue or a statute as Parliament is the sovereign law maker in Australia.

Hope that helped.

If you have any further questions, feel free to ask.

[clarke54321]

This forms two contradictory precedents that must later be overruled by either a decision by a higher court on the same issue or a statute as Parliament is the sovereign law maker in Australia.

Hey HLS,

Does one of the contradictory precedents have to be later overruled or can both of them remain in force indefinitely (or until it is eventually overridden), allowing the next judge to decide which precedent he/she chooses to follow (providing it's on equal standing and is persuasive)?

Thanks 

[HopefulLawStudent]

Hey HLS,

Does one of the contradictory precedents have to be later overruled or can both of them remain in force indefinitely (or until it is eventually overridden), allowing the next judge to decide which precedent he/she chooses to follow (providing it's on equal standing and is persuasive)?

Thanks 

I feel like sooner or later, someone will have to clean it up because I personally do not think both can remain in force.

It's like saying to lower courts "here's a 'YES' case, here's a 'NO' case, do whatever y'all want." If that's the case, what's the point of having a binding precedent to begin with? It gets too messy. Eventually someone will challenge it in a higher court and/or parliament will come along and clean it up and voila, no more contradiction.

That's what I think anyway.

[clarke54321]

I feel like sooner or later, someone will have to clean it up because I personally do not think both can remain in force.

It's like saying to lower courts "here's a 'YES' case, here's a 'NO' case, do whatever y'all want." If that's the case, what's the point of having a binding precedent to begin with? It gets too messy. Eventually someone will challenge it in a higher court and/or parliament will come along and clean it up and voila, no more contradiction.

That's what I think anyway.

Yeah, that makes sense.

[clarke54321]

Hi all,

Is the High Court the only court which is not bound to follow past precedents?