Heyyy guys!
Since VCAA never give out solutions for sample exams, I thought I'd put mine up just in case (even though they may be wrong!
) and can someone pleaseeee tell me how they'd go about structuring Q.10 (
"Evaluate the way courts and VCAT operate to resolve disputes" - 8 marks) and if you guys see mistakes/inadequacies here (which you will!) can you pretty pleaseee tell me so I can rectify them
THANKS SOOO MUCH IN ADVANCE!
and Good Luck for Legal everyone! >.<
1- The role of the Victorian Civil and Administrative Tribunal is to be an alternative adjudicating legal body to the courts and to offer cheaper, more accessible, and informal and quality resolution of civil disputes than the courts, in a wide range of lists, such as the Residential tenancies list.
2- a) The purpose of bail is to uphold the offender’s presumption of innocence, to ensure that they are not unjustly treated by the legal system through being kept in custody, and is instead released into society until their guilt is actually determined.
b) The Victorian Law Reform Commission would be asked to carry out research and thorough investigations on current bail laws, to see if there is need for a change. In their investigation, the VLRC would consult various legal professionals and police to seek information on the current bail laws and their effectiveness, and may also invite submissions to be handed in from individuals and community groups regarding their views on the issue. The VLRC would then publish a report with recommendations about how they believe bail laws should be changed. This report would be tabled by the Victorian Attorney-General in Victorian Parliament, where the Parliament would then decide whether or not to implement the VLRC’s recommendations regarding any possible changes to the current bail laws.
3- a) (i) Pleadings refer to documents that are filed with the court and exchanged between parties to ensure that both parties to the civil dispute are informed of the details of the claim.
(ii) Injunctions refer to a court order that is imposed on the losing party in a civil case that either restricts them from doing something (prohibitive injunction) or compels them to perform a particular act (mandatory injunction).
b) For Paul’s case, the court could impose a mandatory injunction on Paul’s employer that would require him to perform a particular act, such as making a public apology for his defamatory comments about Paul. This would help to make amends for the civil wrong that had occurred between him and Paul and would also enable Paul to return to the original position he was in before the defamation took place.
4- a) Roach v. Electoral Commissioner (2007) – The High Court would have heard this case as it is the Guardian of the Commonwealth constitution, and the only court according to s.76 of the constitution, which can interpret the meaning of sections, words or phrases in the constitution as appropriate cases come before it.
b) The Roach v. Electoral Commissioner (2007) case exemplified the structural protection of ‘representative Government’ and how it protects our rights, namely our democratic right to vote. In 2006, the Commonwealth Parliament passed the Electoral and Referendum amendment (Electoral integrity and other measures) Act 2006 which prohibited prisoners charged of a Commonwealth, State or Territory offence from voting in Federal elections. Mrs. Roach, who was a prisoner herself, believed that the Commonwealth could not make such an amendment to the Electoral Act as it contradicted the very notion of representative Government which the Commonwealth Constitution mandated. The High Court, in its interpretation, found that sections 7 and 24 of the constitution indicated the notion of a representative Government, in that “members of Parliament should be chosen by the people”. Thus, the High Court decided that the Commonwealth’s amendment to the Electoral Act was indeed unconstitutional and invalid, and declared that the Commonwealth Parliament, despite its sovereignty, was restricted in some aspects of law-making power, such that it could not just legislate away the constitutionally protected right to vote as it was protected by the structural protection of representative Government.
5- a) The method being used by the residents of Kilsyth is a petition, which is a formal written request to Parliament to either pass a new law or to bring about changes and improvements to an existing law, through a collection of signatures which reflects community interest or support for a particular issue (in this case, for a new bus route).
b) Petitions can be effective because they enable ordinary members of the community to have their opinions acknowledged in Parliament and so they can contribute to changes in the law. However, although petitions are tabled in Parliament, often it is unclear whether Parliament is actually influenced by them in terms of changing the law, or whether they simply ignore the petition. Furthermore, Petitions may be effective because many signatures can reflect widespread community support for a certain issue that can bring about law reform. However, often this process of collecting a large number of signatures is extremely time consuming, and if Parliament does not give the petition adequate attention or thought, then it would result in a process that is a complete waste of time.
6- a) Jessica and Daniel’s case may involve Judicial determination; which would involve both parties to a criminal or civil dispute presenting their arguments and evidence to a judicial officer (judge, magistrate or VCAT member) who would analyse the arguments and evidence and arrive at a legally binding decision for the outcome of the case.
b) The Juries Act 2000 (Vic.) influences the composition of juries in Victorian Courts – through the removal of excused, disqualified, or ineligible jurors from the jury pool. Excused jurors may not be able to sit on a jury for reasons such as having a medical condition, being related to the offender or other personal circumstances. Disqualified jurors are those jurors who are not considered to hold the views and values of the wider community and are thus disqualified or disallowed from sitting on the jury. E.g. Criminals convicted of serious indictable offences. Ineligible jurors are not able to sit on a jury because they are too closely involved with the legal system, and thus may be potentially biased as jurors. E.g. lawyers, judges and the police are ineligible to sit on a jury.
7- a) Referendums generally have a very low success rate, with only 8 out of 44 referendums being passed since Federation. One reason that contributes to the low success rates of referendums is lack of voter understanding, as when voters do not understand the referendum proposal, they are likely to feel uncertain and thus vote “no” to the referendum. Also, the strict double majority provision indicated in s.128 of the constitution, that a successful referendum needs to fulfil a ‘yes’ vote in a majority of voters in Australia AND a majority of voters in a majority of states. This can be very difficult to achieve as it requires that only referendums with overwhelming support can be successful.
b) One successful referendum was the “Constitution Alteration (Aboriginals) Act 1967, which acknowledged Indigenous people as part of the Australian population and allowed the Commonwealth to legislate for the Aboriginal people. This referendum proposed the changing of s.51(xxvi) of the Constitution which stated that the “Commonwealth can make laws for any race, except the Aboriginal race in any state…” and “Aboriginal natives shall not be counted” (in terms of the census). It was deemed important to change these sections of the constitution in order to stop prejudice against the Aboriginal people. The referendum achieved great success, with 90.77% of voters across Australia giving a “yes” vote, and the majority of voters in a majority of states component also being fulfilled in all states. This greatly broadened the Commonwealth’s legislative power as it could now legislate in the area of Aboriginal Affairs, which had previously been a state power. Also, its newly broadened powers enabled even subsequent Governments to implement programs for the Aboriginal people, instead of just relying on the States to do so. E.g. The 1972 Whitlam Government establishing the “Department of Aboriginal Affairs” to devise programs for health, education, employment, housing and justice for the Aboriginal people.
8- The referral of powers is when the State Parliaments give some of their law-making powers to the Commonwealth Parliament to enable them to make consistent laws across states for the whole of Australia. According to s.51 (xxxvi) of the constitution, the Commonwealth can make laws on any matter that is referred to it by the States.
9- Judicial determination is an effective method of dispute resolution as the final decision that demarcates the outcome of the case is arrived at by a judge or other judicial officer, which means that it will be legally binding, and thus it must be followed by both parties. On the other hand, judicial determination can be ineffective as often there is no attempt to involve the parties in the decision that is made – this breeds animosity between parties as there is no sense of mutual understanding and the decision made indicates the clear notion of a “winner” and a “loser” of the case
10-
DON’T KNOW HOW TO STRUCTURE/GET MY HEAD AROUND THIS Q. AT ALL! – PLEASE HELP! 
11- The Commonwealth Constitution’s main purpose is to establish the legal and political framework of the Australian Parliamentary System. However, the constitution also has an indirect and extremely important role in protecting the rights of individuals through structural protection, express rights, and an implied right, which all aim to safeguard the democratic and human rights of all Australians.
The Structural protections refer to the systems, mechanisms and structures built into the Commonwealth Constitution and that provide a system of checks and balances to protect against the possible misuse of power by the Commonwealth Parliament, and thus indirectly protect our rights. Structural principles include principles of the Australian Parliamentary system such as representative Government, responsible Government and the Separation of powers. Representative Government aims to ensure that members of Parliament reflect the views and values of the community. Further, through sections 7 and 24, our constitutional right to vote is protected –as “members of Parliament should be chosen by the people..”. Responsible Government is one that is answerable to the Parliament and to the people, and thus must act fairly and responsibly, and be accountable and transparent and not attempt to misuse or abuse powers. The Separation of Powers ensures that no one body holds absolute authority over all the functions in the legal system and that corruption and possible misuse of power is minimised.
Express rights refer to those rights which are explicitly stated in the Commonwealth Constitution, and aim to protect the democratic and human rights of all Australians. The five main express rights are: The right to a trial by jury for indictable offences (s.80), The right to freedom of religion (s.116), The right to be free from interstate discrimination (s.117), Freedom of interstate trade and commerce (s.92), and the acquisition of property on ‘just’ terms s.51(xxxi). Express rights are contained within the constitution and are thus also known as ‘entrenched rights’ because these rights can only be changed through the holding of a successful referendum – and are somewhat protected in this sense as Parliaments cannot just legislate or vote away human rights such as freedom of religion.
Implied rights are those rights which are not expressly stated in the constitution but have been found by the High Court to have been intended to be protected by the Constitution. An example of one implied right Australians enjoy is the Freedom of Political communication – which enables potentially defamatory information to be published about political figures, as it is seen as an issue of interest by the general public, which promotes political discussion and ignites political debate. Thus, this implied right protects the rights of individuals to ‘have their say’ in terms of political opinion and political communication.
Ultimately, although Australia does not have a bill of rights, many of our democratic and human rights are protected by our Commonwealth Constitution itself. This is either through its structural protections, express rights or implied rights, which all aim to safeguard the democratic and human rights of all Australians.
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