THE ESSENTIALS LECTURES 2013 YEAR 12 LEGAL STUDIES BOOK 1 & 2 STUDENT SOLUTIONS BOOK 1 PRACTICE EXAMINATION

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1 THE ESSENTIALS LECTURES 2013 YEAR 12 LEGAL STUDIES BOOK 1 & 2 STUDENT SOLUTIONS QUESTION 1 FOR ERRORS AND UPDATES, PLEASE VISIT BOOK 1 PRACTICE EXAMINATION The separation of powers is a theory designed to ensure that there is no abuse of power by any of those involved in the three functions performed in our legal system. The legislative function (power to make law-exercised through parliament); The administrative or executive function (power to administer laws in practice exercised by the government) and The judicial function (power to apply laws when disputes arise exercised by the courts and dispute settling bodies) are all kept separate from each other, and there should be no interference among the three branches associated with the governing of the society. QUESTION 2 One role played by the Crown in the parliamentary system is giving Royal Assent to bills. This is where the Governor (at state level) or the Governor-General (at federal level) signs proposed laws made by Parliament in the name of the monarch so that the bills can become laws. Other roles played by the Crown in the parliamentary system include: Appointing times for the holding of Parliament. Dissolving Parliament. Appointing ministers. QUESTION 3 A bill goes through many stages in its passage through parliament. One of the most important is the second reading speech. Explain the purpose of the second reading speech. At the second reading stage, the purpose of the Bill is outlined by the Minister who has introduced the Bill into the parliament. There is then a general debate on the purpose of the Bill. The School For Excellence 2013 The Essentials Legal Studies Solutions Page 1

2 QUESTION 4 (a) Petitions and demonstrations are the most popular methods explained by students. More successful answers explain that actions by individuals and groups (such as petitions and demonstrations) can influence change in the law because they draw the government s and parliament s attention to an area of law that requires attention. This is because the parliament is a representative and responsible body that must reflect the values and needs of the community. If petitions containing many signatures are ignored, the parliament risks the criticism of not representing the electorate. Some other methods that you could use to answer this question include: Taking part in opinion polls. Writing letters to MPs and Ministers. Organising and signing petitions. Joining associations/pressure groups and lobbying MPs. Taking part in strikes and demonstrations. Voting a particular party out of government. Returning a government because of a particular policy on change. Disregarding or flouting the law in dispute. Deciding to run for local council or Parliament to influence a change. Court challenges/initiating test cases. Private member s bill. (b) The Victorian Law Reform Commission is a formal law reform body. Their role of this body in assessing the need for change to the law is set down in legislation enacted by the Victorian Parliament. Most investigations into reform of the law are undertaken by the Commission as a result of a referral from the Attorney General, although the Commission can make recommendations for minor changes to the law without a reference. On receiving a referral it is the role of the Commission to undertake research into the need for reform and to make recommendations following widespread consultation with interested groups within the community. Although the government is not bound to adopt these recommendations the Commission s proposals on a number of issues have been implemented via legislation. Recent inquiries are: Guardianship Sex offenders registration The bail system (completed) Abortion (completed) (4 + 4 = 8 marks) The School For Excellence 2013 The Essentials Legal Studies Solutions Page 2

3 QUESTION 5 There are a number of reasons why the law may need to be changed. Technological advances, such as, in vitro fertilisation and stem cell research, require the enactment of new rules otherwise there will be gaps in the law. As society s needs and values evolve over time, the law must adapt so as to reflect these changes, for example, access to IVF technology for single women and same sex couples. QUESTION 6 The law-making bodies, parliament and the courts, within the legal system are tailored for a particular role. However their powers are linked with parliament holding the ultimate authority. The primary function of parliament is to make laws for the community, whereas the role of the courts is to settle disputes. Law-making is a secondary function for the courts. Parliament is the supreme law-making institution and can make or unmake any law made by courts, and can create or abolish any court (with the exception of the High Court) or alter their jurisdiction. For example, the Victorian Parliament abrogated the precedent followed by the Supreme Court in Brisbane v Cross 1978 by enacting the Wrongs (Animals Straying on Highways) Act This legislation highlighted the ability of the parliament to make law when and as required so as to remove out-dated common law principles thereby enabling the law to reflect society s current needs and values. The courts can make law in two ways. First, by declaring and developing common law principles, for example, manufacturers liability in Donoghue v Stevenson (1932) House of Lords and Grant v Australian Knitting Mills (1936) Privy Council. Second, by interpreting legislation when applying it to specific cases which come before them. For example, the Supreme Court s ruling as to whether a studded belt constitutes an offensive weapon. The court had to interpret the Control of Weapons Act 1990 (Vic) in Deing v Tarola Accordingly, the courts play a vital role in the law-making process by deciding whether a specific set of facts fall within the ambit of legislation. If the courts interpret an Act in a way that is contrary to parliament s intention the government can seek to have the ruling reversed on appeal. If this does not succeed the parliament can amend the legislation so as to avoid similar decisions in subsequent cases. The parliaments have enacted legislation to guide the courts in ascertaining the meaning of provisions where the wording is unclear. Although the vast amount of new law is now contained in acts of the federal and state parliaments, the courts continue to play a significant role in law-making. The superior courts must establish new legal principles when gaps exist within the law due to the failure of the legislature to act or when a test case is brought before them. The High Court s Mabo (1991) and Wik (1996) decisions are such examples. The supremacy of parliament and its law-making processes enhance the legislature s ability to meet the changing needs of society compared with the courts. One enactment can establish an entire system of laws, such as, the Family Law Act 1975 (Cth). Whereas the courts law-making is piecemeal as they are limited by the vagaries of litigation. This is highlighted by the evolution of the rules concerning negligence over the last 65 years. Parliament is elected by the people to enact laws and it has access to a wide range of experts, such as, the Australian Law Reform Commission, to recommend changes to the law that will overcome specific problems. Furthermore, some members of the judiciary see their role as simply declaring the existing law and leaving parliament to amend the law when necessary. This approach was adopted by the Supreme Court of Victoria in Brisbane v Cross (1978). (6 marks) The School For Excellence 2013 The Essentials Legal Studies Solutions Page 3

4 QUESTION 7 Judges may need to interpret statutes because the wording in the statute may be ambiguous. Parliament must make laws that are applicable to a large number of situations, and therefore, wording may be vague. Another reason why statutory interpretation is necessary is that an Act may be silent on an issue, and the courts may need to fill in the gaps in legislation. A parliament may not be able to take every eventuality into account when legislating, and therefore, a situation may occur that parliament did not take into account. Other reasons why statutes may require interpretation are: The meanings of some words may change over a period of time. The statute may be outdated and inappropriate for the current legal dispute before the court. The wording of the statute may be complex or unclear. QUESTION 8 Since 1906, 44 referenda have been put to the Australian people; however, only eight have been successful. Yes referenda have had limited success; changes have occurred. No referenda have been largely unsuccessful; therefore ineffective as a means to change the Commonwealth Constitution and in changing the balance of power between the Commonwealth and State Parliaments. Reasons for partial success include: It is hard to get a yes vote by the majority of electors in Australia and yes by the majority of states (at least four out of six). If a proposal is not supported by a major party, they may lobby against it and their supporters may vote against it. Voters may not understand the process of change and vote against it. Voters may not wish to increase the power of the Commonwealth, the focus of many referenda. The School For Excellence 2013 The Essentials Legal Studies Solutions Page 4

5 QUESTION 9 The Commonwealth Constitution protects the rights of Australians three ways. Firstly, through Structural Protection: The Australian Constitution is underpinned by constitutional doctrines that are important in protecting rights. These are Representative government, Responsible government and the separation of powers. These are in place to protect the rights of citizens and prevent abuse of power. The Constitution also protects rights through Implied Rights which are not those rights expressed in the Constitution but our founding forefathers meant for those rights to be protected. The High Court has found that the Constitution contains an implied right to free political communication. The first High Court decision to recognise this was Australian Capital Television v The Commonwealth. The case concerned new Commonwealth legislation which sought to substantially control political advertising on radio and television. The court has not found that a general right to free speech is protected by the Constitution, but only a right in regard to matters which can be described as political communications. The third way the Constitution protects rights is by the 5 expressed rights in our Constitution. These expressed rights cover the acquisition of property on just terms, trial by jury, freedom of interstate trade and commerce, freedom of religion and freedom from interstate discrimination. QUESTION 10 (3 marks) In addition to a successful referendum, the distribution of law-making powers between the Commonwealth and the State Parliaments can be altered informally by the High Court. The Constitution confers jurisdiction on the High Court to hear disputes as to the validity of Commonwealth or State law. By interpreting the words in the Constitution and applying them to specific cases the High Court can alter the division of law-making powers. Since federation there has been a series of landmark cases involving interpretation of the Constitution which have resulted in increased law-making powers for the Commonwealth. In Brislan s case (1935) the High Court was required to interpret Section 51(v). This section enables the Commonwealth to make laws in regard to postal, telegraphic, telephonic and other like services. The parliament enacted legislation requiring individuals owning a radio to purchase a listener s licence. When the Constitution was drafted radio had not been invented and so was silent on the matter as to which parliament had authority to make laws on radio broadcasting. The High Court broadly interpreted the phrase other like service and held that radio was included. Accordingly, the Commonwealth Parliament s legislation to regulate radio broadcasting was held to be valid. The School For Excellence 2013 The Essentials Legal Studies Solutions Page 5

6 QUESTION 11 Countries that you can refer to are: United Kingdom Human Rights Act 1998 United States of America Bill of Rights 1865, 1868, 1870 Canada The Canadian Charter of Rights and Freedoms 1982 New Zealand The New Zealand Bill of Rights 1990 South Africa The Republic of South Africa Bill of Rights 1996 For example: In the USA there is a Bill of Rights that contains a detailed list of the protection of rights for American citizens. Rights that are protected in the US Bill of Rights include: The right to bear arms. Freedom of speech and freedom of the press. Freedom of assembly. The right to trial by jury. The right to due process. The right to vote. Australia does not have a Bill of Rights. Our Constitution protects the rights of its citizens through its structures the principles of our parliamentary system and by limiting the actions of Parliament; implied rights, such as freedom of political communication and its 5 expressed rights. These are the acquisition of property on just terms, trial by jury, freedom of religion, freedom of interstate trade and commerce and freedom from interstate discrimination. QUESTION 12 The doctrine of precedent is a set of principles to guide the courts as to declaring and developing the common law or judge-made law. It requires courts to follow established precedents (reported judgements of a court that has established a point of law) in like, or similar circumstances. The underlying principle is to stand on what has been decided (stare decisis) thereby promoting the achievement of consistency, certainty, coherence and stability. The doctrine of precedent is closely linked to the hierarchy of courts. When determining the legal principles relevant to the case before the court the judge must determine if he or she is bound to follow a previous decision in a similar case heard by a higher court in the same hierarchy. If so, a binding precedent exists and the judge is bound to apply the legal reasoning or the ratio decidendi of the previous case to the one before the court. In the absence of a binding precedent the judge may rely on a persuasive judgement. That is, decisions of courts in another hierarchy in a similar case or obiter dicta comments (things said along the way) from an earlier case are referred to as persuasive precedents and can be followed. It is only superior courts of record who are able to create precedents, that is, the High Court, the Federal Court, the Supreme Court and the County Court in its appellate jurisdiction. When decisions of these courts create new legal principles they are recorded in the Law Reports and these bind courts lower in the hierarchy. The School For Excellence 2013 The Essentials Legal Studies Solutions Page 6

7 QUESTION 13 Students should expand the following suggested dot points: 4 main types of relationships: 1. Parliament passes legislation to create courts. Magistrate s Court Act 1989 (Vic) established court and now includes Koori Court jurisdiction. 2. Courts interpret legislation created by parliament. Especially when adjudicating cases must look at relevant legislation how interpret meaning of words and phrases). Relationship is legislation and precedent together create law eg. Studded Belt Case Parliament can change laws created by courts. Sovereignty of Parliament means that they can override any case Trigwell s Case The Victorian Parliament disagreed with common law made by High Court and passed legislation to override current common law. This is the Wrongs (Animals Straying on Highways) Act 1984 (Vic) abolished common law and stock owners are liable for the damage caused by their straying on animals. 4. Parliament can codify laws made by courts. Make common law into statute (codify) eg. Mabo case created the Native Title Act The School For Excellence 2013 The Essentials Legal Studies Solutions Page 7

8 For Question 14, indicate the part (a) or (b) you have chosen in the box provided. QUESTION 14 (a) A great strength of the Australian legal system is that it enables the courts and parliament to make law. The law-making processes of these institutions have no major faults. Critically evaluate the way our courts and parliaments make laws and indicate the extent to which you agree with this statement. Hints for obtaining a high score for this question: Your emphasis must be on a critical evaluation of the way the two bodies make law. The question requires a discussion of the advantages and disadvantages both the courts and parliaments as law-makers. Wherever possible use words contained in the quotation and question to assist your discussion in remaining relevant. You must state the extent to which you agree or disagree with the sentiments expressed. Parliament makes laws by passing a bill through the houses by a process of debate and questioning. This process is democratic because the members of parliament represent the needs sand values of the people who elected them. It also allows for ministers of departments and the parliament to be responsible to the people for the laws passed. Members of parliament can be voted out of power if they do not represent the needs and values of society. This is a major strength of parliamentary law-making because it ensures that laws are acceptable to the majority of members in society. However, sometimes parliament may legislate in an area because of political pressures, this is a fault because the laws may not represent the wishes of a majority of citizens but a vocal and influential minority. On the other hand the judges are not elected and therefore are not accountable to society. They cannot lose their position of they make an unpopular decision and this may mean that judges make laws that are not in keeping with the demands of society. For example, common law principles regarding rape in marriage. Although this can be seen as a fault of law-making by courts it may also be a strength because it means that judges can make decisions that a parliament would be too afraid to make because of its controversial nature. For example, the High Court s Mabo decision. (Total 60 Marks) The School For Excellence 2013 The Essentials Legal Studies Solutions Page 8

9 BOOK 2 SOLUTIONS INTRODUCTION TO UNIT FOUR ESSENTIAL KNOWLEDGE The focus of Unit 4 is on the way in which criminal cases and civil disputes are resolved through the Victorian legal system. Consideration is given to the dispute resolution bodies, and the processes and procedures that operate within them. You are also expected to evaluate the effectiveness of these processes and procedures. QUESTION 1 There are basically two types of disputes within our legal system: Criminal disputes, and Civil disputes. It is important that you know the difference between them. Make sure you make note of: Definitions, Key Words, Comparisons. CRIMINAL DISPUTES Criminal disputes are concerned with the suppression of behaviour that disturbs the peace and well being of the community. A crime is an offence against the community that is prosecuted and punished by the State. Such offences are usually associated with conduct that is of an anti-social nature. The protection of the public is the paramount justification for prohibiting such activity. Criminal cases concern breaches of the criminal law, from jaywalking, careless driving, stalking to assault, burglary, murder and treason. The government prosecutes the offender for allegedly breaking the law. QUESTION 2 List three other examples of criminal disputes: Armed Robbery Speeding Rape The School For Excellence 2013 The Essentials Legal Studies Solutions Page 9

10 CIVIL DISPUTES Civil matters involve disputes between people or between individuals and the government where the issue boils down to property, money, compensation or permission to do something. Disagreements over contracts, employment, custody, maintenance, adoption, negligence, defective products, motor vehicle accidents, defamation, the environment and breach of copyright are all examples of civil disputes. Generally any legal dispute that does not involve a crime would be classified under civil law. QUESTION 3 List three other examples of civil disputes: Trespass Nuisance Defamation Note: Many disputes involve both criminal and civil law, for example, assault can be a civil wrong, for which you can sue for damages, and a criminal offence which the police may decide to prosecute, seeking the imposition of a fine or jail sentence for the offender. This also applies to public nuisance, some trespass, negligence and car accidents causing injury. Jack had consumed a large quantity of alcohol and stupidly decided to drive home from the pub. Coming around a sharp bend his car left the road and smashed through Sarah s lovely white picket fence and into her front living room causing significant damage. Sarah was not hurt. 1. The police charged Jack with drink driving. In R v. Jack, the state prosecuted Jack. He was found guilty. The court disqualified him from driving and also fined him. 2. Sarah took Jack to court on the grounds of negligence. In Sarah v. Jack, Sarah sued Jack. He was found liable. The court ordered him to pay damages. QUESTION 4 Type of conduct being dealt with: CRIMINAL Offences against the State Indictable and Summary Offences CIVIL Infringement of Private Rights Torts, Breach of Contract Title of parties who initiate the dispute: CRIMINAL Police investigate crime and charge suspect CIVIL Individual who has suffered Alleged wrong plaintiff The School For Excellence 2013 The Essentials Legal Studies Solutions Page 10

11 Title of parties who lead the trial: Prosecutor/OPP CRIMINAL Defence Counsel CIVIL Counsel for the Plaintiff Counsel for the Defendant Pre-trial procedures: Bail & Remand CRIMINAL Committal hearing CIVIL Plaintiff issues Writ of Summons Defendant Notice of Appearance Pleadings; Discovery & Directions Hearings Standard of proof: CRIMINAL Prosecution must prove guilt beyond reasonable doubt CIVIL Plaintiff must prove allegations on the balance of probabilities Use of jury: CRIMINAL Compulsory in all trials before County & Supreme Courts 12 jurors (up to 15 in lengthy cases). CIVIL Optional jury of six or trial or trial by judge alone (up to 8 in lengthy cases) Trial decision: CRIMINAL Guilty or not guilty maybe a hung jury CIVIL Defendant liable or not liable Outcomes examples and aims: CRIMINAL Sanction, for example, prison sentence Protect society and deter offender CIVIL Remedy, for example, compensation Restore plaintiff to original position The School For Excellence 2013 The Essentials Legal Studies Solutions Page 11

12 QUESTION 5 INTRODUCTION TO UNIT FOUR ESSENTIAL KNOWLEDGE HOW CAN THE EFFECTIVENESS OF THE LEGAL SYSTEM BE EVALUATED? For each of the above elements explain three additional ways in which the legal system strives to be effective. These are some examples. Three ways in which the legal system strives to ensure a fair and unbiased trial or hearing: Trial by jury for indictable offences in the County and Supreme Courts. Courts presided over by impartial adjudicators. The state must prove the guilt of an accused person. Right to remain silent. Three ways in which the legal system provides access to mechanisms for resolving disputes: The provision of specialised courts and tribunals to resolve specific disputes. (Drug court; Koori court; Family violence division etc.) Increased referral and use of ADR methods by courts and individuals. Broadening the jurisdiction of lower courts to hear a wider range of disputes. Community legal centres aimed to assist parties with understanding their legal rights, eg. Legal Aid and Court Network at Magistrates Court providing free legal advice and appearing for the defendant in court. Three ways in which the legal system strives to provide for timely resolution of disputes: The introduction of directions hearings to streamline the trial process. Referral of disputing parties to ADR s for speedy settlement. Reforms, such as, hand-up brief procedure to reduce procedural delays. Committal hearings to test the evidence before it proceeds to a higher court. There are many more examples you could use. The School For Excellence 2013 The Essentials Legal Studies Solutions Page 12

13 THE HIERARCHY OF COURTS FUNCTIONS & JURISDICTIONS OF THE FOLLOWING COURTS: Crimes can be classified according to their severity, as either summary offences or indictable offences. QUESTION 6 Define the following terms: Summary Offences: Are less serious offences that are heard in the Magistrates Court, and decided by the presiding Magistrate. These are listed in legislation such as the Summary Offences Act 1966 (Vic) and examples include traffic offences, minor assault and theft. They are minor criminal offences. Indictable offences: Are serious criminal offences that are able to be heard before a judge and jury in the County and Supreme Court. These are listed in the Crimes Act 1958 (Vic), and examples include murder, manslaughter and fraud. Indictable offences heard summarily: Some less severe indictable offences are able to be heard, in the Magistrates Court, and without a jury, as though it was a summary offence. This is at the request of the defendant or the prosecutor, at the discretion of the Magistrate. EXAMPLE 13 VCAT EXTENDED RESPONSE PLAN A comparison requires you to consider the similarities and differences between the way VCAT and the Courts resolve disputes. Also needed was a description of ONE dispute resolution method. While there are many ways to approach this question below is a plan to ensure all aspects of the question is answered. Introduction: Points to make Both the courts and VCAT are dispute resolution bodies. Both have similar and different ways to resolve disputes. Both are needed for an effective legal system. Dispute resolution method used. BODY: Similarities (explain at least 3) Both make binding decisions. Both can use legal representation (could mention differences here). Both can refer a case to mediation (could explain this dispute resolution method here). The School For Excellence 2013 The Essentials Legal Studies Solutions Page 13

14 Differences (explain at least 3) VCAT is cheaper (explain how: appl. fee) VCAT is more informal (explain how no pre trial procedure; strict rules of evidence and procedure etc.) VCAT hearings faster (less stalling tactics; less use of legal rep) Many other strengths and weaknesses can be used. Try and use examples to explain these. Dispute resolution method used by both (explain process and how it used by courts and VCAT): Mediation Conciliation Arbitration Conclusion: Sum up main points outlined in intro. QUESTION 7 What are the 5 main features of the Adversary System? Role of the parties Role of the Judge Right to Legal Representation Standard and Burden of Proof Strict rules of evidence and procedure QUESTION 8 Possible reforms to the adversary system: (IMPROVE what already exists) Incorporating features of the inquisitorial system such as Expanding the role of the judge so they have a greater part to play during the trial (ask questions of witnesses; collect evidence etc.) Less reliance on legal representation (allowing witnesses to tell their story ; assisting the judge). Removing some of the strict rules of evidence and procedure (hearsay evidence allowed; verbal examination of witnesses etc.) The School For Excellence 2013 The Essentials Legal Studies Solutions Page 14

15 Other reforms: Greater assistance given to Aboriginals and other culturally disadvantaged groups by providing more funding for legal advice. Removal of means test for aid eligibility. Judges to be less formal by removing wigs and robes. Alternatives: Panel of at least 3 judges deciding. EXAMPLE 21 Error Anna s trial went directly to the Supreme Court Correct procedure As Anna was charged with murder, the case would most commonly be directed to the Magistrates Court for a committal hearing, which will determine whether or not the case should go to trial. A Magistrate presided in the Supreme Court A Magistrate does not preside over proceedings in the Supreme Court. Only a registered Judge of the Supreme Court may conduct proceedings in this Court. A majority verdict was reached in a murder trial The jury sentenced Anna A juror knew Anna s brother A majority verdict is not accepted in murder trials. If the jury were to find the defendant guilty (or not guilty), a unanimous verdict of 12 is required. The jury s role is limited to determining the guilt of the defendant. It does not extend to sentencing. A sentence will be handed down by the presiding judge at a later date during the sentencing hearing if the defendant is found guilty. Under s. 32 of the Juries Act 2000 (Vic), a potential juror should ask to be excused from the jury if they are unable to act impartially (particularly if they knew the accused s brother). This juror should have done so once they knew the name of the accused (information which is provided to potential jurors once they have been called from the jury pool). Alternatively, as soon as the juror became aware that he or she knew Anna s brother, he or she should have notified the court as to a potential problem with remaining impartial. The School For Excellence 2013 The Essentials Legal Studies Solutions Page 15

16 QUESTION 1 PRACTICE EXAMINATION SUGGESTED ANSWERS The principle of responsible government means that the Crown and its ministers are responsible and accountable to the parliament and ultimately, the voters, via the ballot box. If a minister misleads parliament they would be expected to resign. If the government loses the confidence of the lower house it should resign and call an election. A government who acts in an irresponsible manner would be expected to be defeated in an election. QUESTION 2 At the second reading stage the responsible minister explains the main purpose of the Bill and its likely benefits to the community. Detailed debate for and against the Bill commences and then a vote is held. If a majority of members vote in favour, the Bill moves to the next stage. At the third reading stage a final vote is held including voting on any amendments made at the committee stage. If a majority vote in favour, the Bill proceeds to the other house. QUESTION 3 Section 116 of the Commonwealth Constitution places a restriction on the federal parliament by forbidding it from enacting any law for establishing any religion or prohibiting the free exercise of any religion by an individual. The law-making powers of the states are also restricted by the Commonwealth Constitution. For example, state parliaments are forbidden by Section 114 to raise armed forces. QUESTION 4 A petition is an effective way for an individual or group to attempt to influence change in the law. A petition includes a statement about how a law needs to be changed and is followed by the names, addresses and signature of individuals who support the change. The greater the number of signatures the more impact the call for change will have on the elected representatives. Petitions are presented to local members or the responsible minister and are tabled before the parliament. Politicians are responsible to the voters and are expected to represent their needs; if they ignore them parliamentarians may lose their seat at the next election. QUESTION 5 The division of law-making powers between the federal and state parliaments can be altered via the holding of a successful referendum according to Section 128 of the Constitution. A referendum asks the electors to vote for or against a proposal to alter the Constitution. Since federation there have been a total of 44 referendums and only 8 have been approved. This figure alone highlights the lack of success of this method of change. However, the electorate has been asked to grant the federal parliament greater law-making powers on 28 occasions and 4 have succeeded. This is a success rate of only 14%. Accordingly, referenda have not been significant in altering the distribution of powers. Despite the insignificant impact of referendums there has been a massive shift in the division of law-making power from the The School For Excellence 2013 The Essentials Legal Studies Solutions Page 16

17 states to the federal parliament. This change has been the result of High Court interpretation of the Constitution when settling disputes between the federal and state governments. QUESTION 6 High Court decisions involving interpretation of the Constitution cannot change the actual words, only a successful referendum can do this. For example, the successful referendum in 1967 resulted in the phrase other than the aboriginal race being removed. The High Court can, however, interpret the meaning of the words and by doing so expand or narrow the application of the words in the Constitution. QUESTION 7 Judges may need to interpret an Act because there is uncertainty as to the meaning of a word or phrase used in it. This problem can arise because the words used attempt to cover a broad range of situations. As a result the meaning of words may be ambiguous. For example, the Supreme Court has had to give meaning to the phrases start to drive and attempt to drive. Another reason why interpretation may be necessary is because technical terms appearing in the Act may not be defined, or their definitions may be too broad. QUESTION 8 When individual rights and freedoms are incorporated into the constitution of a state they are referred to a constitutional bill of rights. Such rights cannot be removed or altered without the formal approval of the people, such as, the holding of a referendum. Statutory rights, on the other hand, are set down in an Act that can be repealed or altered by parliament enacting an amending Act. Accordingly, a constitutional bill of rights is more secure than a statutory bill of rights. QUESTION 9 The purpose of civil remedies is to restore the plaintiff to the original position they were in before they were wronged. One remedy is an injunction. This is a court order against the losing party that either prohibits or compels them to performing a particular act. Injunctions can be short term, long term or permanent. Injunctions restore the injured party to their original position by ordering the defendant to stop the behaviour that is causing the harm or to force them to perform the act. Another remedy available is to award damages. This is an amount of money paid by the defendant to settle the claim. The most common form of remedy, damages can be compensatory (special, general or aggravated), contemptuous or nominal. Whilst it is not always possible to restore a person to their original position with money, damages offer financial assistance. This could be through paying for medical costs and loss of income (future and past), for pain and suffering (general). QUESTION 10 To be effective the legal system needs to provide a fair and unbiased trial. This can be done by providing an independent adjudicator. Each party has an equal opportunity to present their case and be subject to the same rules of evidence and procedure. This ensures a fair hearing for those seeking dispute resolution. The School For Excellence 2013 The Essentials Legal Studies Solutions Page 17

18 The legal system also needs to ensure effective access to mechanisms for the resolution of disputes. This has occurred through the provision of tribunals, like VCAT, and other methods of dispute resolution rather than going through the courts. Courts can be very expensive and it might be more effective for less well off people to have their dispute heard in a tribunal rather than going to court. QUESTION 11 If the legal system is to be effective it must provide all individuals with a fair hearing. When there is an equal contest between the parties, in a trial conducted according to the adversary system, it is likely that the truth will be ascertained and a just result achieved. However, if one of the parties is not represented or their legal counsel is less experienced than the opposing lawyer the contest may not be equal. Accordingly, the chances of a fair trial are remote. A reform that could be introduced to overcome this problem is to increase the role of the judge. For example, by enabling the judge to call and question witnesses where it is deemed necessary for a fair trial, or where either party has overlooked a crucial witness or not asked a particular question. The number of unrepresented individuals appearing before our courts is increasing and this situation creates a dilemma for our judges who are supposed to be impartial. By enabling judges to intervene when the truth is not being ascertained the chances of a fair trial and hence a more effective legal system will be achieved. QUESTION 12 Prior to the introduction of majority verdicts in Victoria all juries had to return a unanimous verdict (that is, 12 out of 12) in all criminal trials. The unanimity rule was considered to be the cause of an unacceptably high number of hung juries. In an attempt to reduce the rate of mistrials the parliament amended the Juries Act to allow majority verdicts (11 out of 12) in all criminal trials except murder, treason, Commonwealth offences and cases involving trafficking or cultivating commercial quantities of drugs. QUESTION 13 (i) (ii) Committal proceedings are heard in the Magistrates Court. The criminal jurisdiction of this court is to hear cases involving summary offences, indictable offences that can be tried summarily; committal hearings; issue warrants and bail applications. John would have been taken into police custody, questioned and subsequently charged. He would then have applied for Bail. Although the granting of bail reflects the presumption of innocence, there are circumstances in which the release of a suspect would be inappropriate. The person responsible for this decision will take into account the character of the person (including prior convictions), and the seriousness of the offence. Factors relating to whether or not the alleged offender may be considered an unacceptable risk due to the reasonable belief that he or she may fail to appear in court, commit a further offence if released, be a danger to the community. If so, they may be held in Remand until trial. or interfere with witnesses or pervert the course of justice. John could be bailed on his own undertaking or be required to have a surety. (iii) John s trial is most likely to be heard in the County Court before a judge and jury. This is because armed robbery falls within the original criminal jurisdiction of this court which hears most indictable offences which are serious criminal offences. (1 mark) The School For Excellence 2013 The Essentials Legal Studies Solutions Page 18

19 (iv) John may receive a prison sentence. One purpose of such a sanction is deterrence. By his loss of freedom John may be deterred from re-offending following his release. By making an example of John those considering committing a similar offence may be deterred. (1 mark) QUESTION 14 One advantage of juries is that their decisions reflect the view of ordinary people and the community. Trial by one s peers makes those involved in a case more comfortable and more willing to accept the decision than one handed down by a judge. Another advantage is that the jury system involves the community s participation in the legal system. This leads to greater respect for the courts and an increased knowledge of the law. One disadvantage of the use of juries is that what is required is becoming too difficult for ordinary people. In cases that involve highly technical matters, such as forensic evidence and complex accounting procedures, jurors may not be able to understand or recall the volume of evidence presented to them. This could result in an incorrect verdict. Another disadvantage of the jury system is that it tends to lengthen the legal process by way of the time take to empanel a jury and also when there is legal argument and the jury may be asked to leave the courtroom. The longer the trial takes to reach a conclusion, the greater the costs involved for all parties. (6 marks) QUESTION 15 A recent recommendation by the Victorian Law Reform Commission was to abolish the jury in civil disputes. The VLRC s role is to make recommendations for law reform in Victoria to the Attorney General and although this recommendation has some merit and advantages, I don t believe the jury should be abolished in civil disputes. The VLRC came into operation in 2001 and has two main functions to do with law reform in Victoria. The first function is to investigate, develop, monitor and coordinate law reform activity in Victoria and the VLRC do this by including as many different community groups, expert opinions and persons who have an interest in the area of reform for their views to be included and considered. The VLRC may be asked to look into law reform by the Attorney General or it can do so by its own accord. The VLRC uses a number of methods to obtain these views such as submissions, forums, community meetings and surveys to allow interested person the opportunity to present their view and opinion on the matter. Once the VLRC has this information, it will formulate a report making a number of recommendations to the Attorney General who will then table these recommendations in parliament for the government of the day to decide upon. The government is not obliged to implement these but will usually do so if the Attorney General has referred the VLRC to look at a particular area. The second function of the VLRC is to educate the community in relation to law reform and possible changes to the law. The jury in a civil trial is optional and will consist of 6 members (possibly 8) if it is a lengthy trial. The role of a civil jury is to listen to all the evidence presented by both parties and then consider the facts in relation to the relevant law (which will be explained by the judge). The jury will make a decision based upon the balance of probabilities which means on balance who is more in the right. If they cannot reach a decision after three hours then a majority decision (5-6 jurors) will be accepted by the judge. If the jury finds in favour of the plaintiff then they will also be asked to determine the extend of damages to be awarded. The School For Excellence 2013 The Essentials Legal Studies Solutions Page 19

20 I believe the jury system should remain in civil trials because it allows the community to be involved in the legal system and also allows members of the community to experience an area of law that is not often known about. The jury is a representation of men and women from society who bring with them a wealth of different values and opinions from a cross section of the community and by allowing them be involved in the jury system ensures that these values and morals are upheld and represented in our legal system. It also allows for the defendant and plaintiff to be treated fairly as the responsibility of making a decision is shared amongst a number of people and not one person. However, there are also some problems having a civil jury in our legal system. As they are ordinary members of the community they do not have the experience and expertise of a judge and especially in the complex area of civil law may not understand the terminology or aspects of the evidence presented. The jury could also be easily influenced and swayed by emotion of the parties involved or their own biases and hence make a decision based upon these factors as opposed to the facts of the case. A civil jury s responsibility also involves a determination of the damages that will be awarded and sometimes a jury can make a huge award which is not appropriate to the civil wrong that has occurred. Perhaps, a reform that could be made to retaining the use of a jury in the Victorian legal system is that the judge involved in the case determines the damages that are to be awarded to the parties involved and not the jury. If this was to occur then the jury could be retained for civil cases to ensure parties receive a fair trial by their peers but the expertise of the judge is used to determine the appropriate amount of damages. The VLRC has an important role to play in legal reform in Victoria but I do not believe its recommendation to abolish the jury in civil trials is warranted for the reasons discussed. (12 marks) The School For Excellence 2013 The Essentials Legal Studies Solutions Page 20