Help with 2 questions from Study design!! please!

[hello_kitty]

Hey guys, ive been going thrrough the study design and have come across two questions im not to sure as to hwo to answer them:


9)   The significance of one High Court case relating to the constitutional protection of rights in Australia

does this want me to talk about the Roach vs. Electoral Commissioners 2007 Case? How in details should i go into it?

1)   The ability of Judges and Courts to make law

Below is what i have currenlty, but not sure if this is 1) answering the question and 2) if it is relevant

Judges can generally only make laws when:
•   The facts of a case before them call for it
•   There is no applicable law on the topic, either common law or statute
•   The court is a superior court in a hierarchy
•   Reversing, Overruling, Distinguishing and Disapproving

Role of the Courts
•   Resolve Disputes
•   Ensure consistent
•   Record judgements and apply to future cases
•   Make laws when a new issue arises in a case before them on which there is no previous statute or common law or When current common law needs  expanding through the interpretation of statutes as it applies to the case before the,


Any help would be aweseome and muchly appreciated!!!

[sabii]

1) Yes, the first question I believe does want you to talk about any High Court case that you have studied at school. This answer may differ from person to person, as students may choose to discuss a different case then yours.

How much detail you go into is dependent on the marks; there is no use writing an essay over 4 or 2 marks?

2) Yes, correct again! The ability of courts and judges to make laws, refers to precedent (consistency and fairness), RODD (which you mentioned) and whether a precedent already exist. You may also chose to talk about, High court interpretation, I reckon?

But GOOD!!! Everything you discussed, above seems perfectly fine to me.

[meganrobyn]

1. Structure it:

a) brief outline of facts (2 sentences max);

b) legal issue (ie what Roach argued in terms of the Constitution);

c) the impact of the outcome on the protection of rights (ie right created and type of right it is).


2.  In the first section, go over the rules for binding precedent versus persuasive precedent, and chuck in the final dot point from the second section. You can also discuss stare decisis and the role of appellate courts, and you can have short case examples. Make sure you have explanations of each individual RODD in terms of law-making, and not just a list of them.

The second section is overview on courts more than it is related to that question.

No (2) has been a high-mark question on a number of recent exams, so the Assessor Reports have good guidelines for answer options.

[sabii]

1. Structure it:

a) brief outline of facts (2 sentences max);

b) legal issue (ie what Roach argued in terms of the Constitution);

c) the impact of the outcome on the protection of rights (ie right created and type of right it is).


2.  In the first section, go over the rules for binding precedent versus persuasive precedent, and chuck in the final dot point from the second section. You can also discuss stare decisis and the role of appellate courts, and you can have short case examples. Make sure you have explanations of each individual RODD in terms of law-making, and not just a list of them.

The second section is overview on courts more than it is related to that question.

No (2) has been a high-mark question on a number of recent exams, so the Assessor Reports have good guidelines for answer options.

Can you talk about the roach case? I thought that is concerning implied rights, which are not found in the constitution? 

[meganrobyn]

Absolutely!!! In fact, being limited to cases only on the meaning of express rights would be really narrow.

Don't forget the way precedent works: something doesn't have to be *written explicitly* in the Constitution for it to still be IN the Constitution. Implied rights are in the Constitution, but through interpretation rather than express wording; structural protections are also in the Constitution, but also through interpretation and not wording. All three categories of rights are entrenched in that they are fully enforceable by the High Court and, unless HCA interpretation changes, cannot be removed without referenda.

As for the Roach Case, that's not an example of implied rights, because there is only one implied right (the freedom of political communication) and the right to vote isn't it. There is no right to vote. What Roach *did* decide, however, was that the collective public right to a democratically-elected parliament puts limitations on the power of government to restrict voting eligibility. Roach is thus a great example of a structural protection

[sabii]

^ oh, that makes sense! Are you a VCE examiner this year? And also, on the study design, it only mentions damages and injunction, and does not state rescission or restitution, does that mean we do not have to know or remember what rescission and restitution are becasue we cannot get examined on it, as it is not on the study design? Thank you!!!

[meganrobyn]

I'm not sure if we're allowed to talk about assessment appointments until after the exam period, sorry...! So just to be safe...

No, unless it's explicitly on the SD you don't need it (which helps with things like pre-trial procedures and court/VCAT jurisdiction as well). It's a pretty nice deal

[sabii]

Oh, thanks okay! And thank you 

[hello_kitty]

thanks for the help!! really appreciated!

Also, I cam across this practice exam question:

The following scenario contains errors - The judge charged Mark the accused with treason. At this committal hearing, the magistrate found that there was sufficient evidence for Mark to proceed to trial. he entered a plea of not guilty at his trial, which could be heard in either the magistrates court or supreme court. the jury sentenced Mark to imprisonment.

Identify two errors int his scenario and explain the correct definition, process or procedure that should have occurred.


I feel like it has something to do with him entering a plea of not guilty and the court it goes to??

Any help would be awesome!!

[eeps]

thanks for the help!! really appreciated!

Also, I cam across this practice exam question:

The following scenario contains errors - The judge charged Mark the accused with treason. At this committal hearing, the magistrate found that there was sufficient evidence for Mark to proceed to trial. he entered a plea of not guilty at his trial, which could be heard in either the magistrates court or supreme court. the jury sentenced Mark to imprisonment.

Identify two errors int his scenario and explain the correct definition, process or procedure that should have occurred.


I feel like it has something to do with him entering a plea of not guilty and the court it goes to??

Any help would be awesome!!

My understanding is that you'll only have the option for the case to be heard in either the Magistrates' or County Court, if the accused pleads guilty. In this case, because Mark pleaded 'not guilty' - he doesn't have the choice of getting his case heard in either court. The second error is that the 'jury sentenced Mark to imprisonment'. Because treason is a criminal offence, the judge in the case would determine the appropriate sanction to punish Mark - not the jury. Also, I think treason is considered a federal criminal offence and hence, would be heard in the High Court of Australia.

[meganrobyn]

The choice between courts is for minor indictable offences where the accused pleads not guilty (yeah, or guilty, I'm pretty sure, for softer sentencing) and applies to have the matter heard summarily in the Mag's Court - but that's only for minor indictable matters going to the County, so the choice between SC and MC would always be wrong.

In addition, the judge doesn't charge the defendant - the police do.

Also, the charges aren't laid at the committal - that would have happened approx 6 months earlier, before the bail hearing.

Treason is in the Vic Crimes Act, so Supreme Court would be fine, though; and you do enter a plea at the start of trial.

That extract was so incorrect it was actually really difficult to read!!