LEGAL STUDIES UNITS 3 AND 4

Suggested answers to Legal Studies Units 3 and 4 practice exam

2015

Question 1 (4 marks)

On 30 October 2014, the Australian War Memorial Amendment Bill 2014 was introduced into
the Lower House of the Commonwealth Parliament. The purpose of this Bill was to ban the
imposition of entry and parking fees at the Australian War Memorial in Canberra.

a. Describe one of the stages the Australian War Memorial Amendment Bill 2014 would have
passed though before becoming a law. 2 marks
The Australian War Memorial Amendment Bill 2014 would have passed through the Second
Reading stage during the legislative process. During the Second Reading the Minister (or Member
of parliament) responsible for initiating the Bill into the House makes a speech explaining the
general purpose and broad reasons for the Bill. [1 mark] Parliament is then adjourned to allow
time for Members to study and consider public reaction to the proposed law. Upon returning, an
Opposition Member outlines the Oppositions opinion of the Bill and then the general principles of
the Bill are debated. After the debate has concluded, a vote is taken to decide whether it should
proceed to the next stage. [1 mark]
Alternative answers:
Other stages the Bill could have passed through on its progression through the legislative process
(in the House of Representatives) include:
Giving Notice and the First Reading is the stage where the Member of parliament who wants to
introduce a Bill (usually a Minister) gives prior written notice of their intention to the Clerk of the
House so they can list the Bill on the agenda (that is, the Notice Paper) for the next sitting day.
[1 mark] On the next sitting day, the Minister presents the Bill together with an Explanatory
Memorandum (which explains the reasons for the Bill and outlines its provisions) to the House.
The Clerk reads the long title and copies of the Bill (and the Explanatory Memorandum) are
distributed to Members and made available on the Parliament of Australia website. [1 mark]
Consideration in Detail is the stage where the specific details of the Bill are discussed and
debated in great depth, clause by clause, so that amendments can be suggested and agreed
to. [1 mark] During this stage the Bill can be discussed by the whole House or sent to a smaller
committee for investigation and scrutiny. If the Members of the House agree that a Bill does not
need to be examined in detail, this stage may be skipped. [1 mark]
Royal Assent is the stage where the Bill is signed and given approval by the Governor-General
on behalf of the Queen. [1 mark] The Bill then becomes an Act of parliament (that is, a law)
after it has successfully passed through both Houses of parliament. [1 mark]
Note: Students should select a stage that allows them to provide sufficient detail to earn 2 marks
(e.g. the Second Reading or Consideration in Detail stages). For this reason, the Third Reading
should not be described because it is usually a formality and debate at this stage is rare.

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b. Outline the role of the Lower House of the Commonwealth Parliament. 2 marks
One main role of the Lower House of the Commonwealth Parliament, the House of
Representatives, is to make laws that reflect the views of the Australian people because it consists
of one Member from each of 150 electorates throughout Australia. [1 mark] The party (or coalition
of parties) with the majority of Members in the House of Representatives also forms the federal
government (currently the LiberalNational Coalition). [1 mark]
Alternative answers:
The House of Representatives discusses and debates Bills and concerns of the Australian people.
[1 mark] It also scrutinies the work of the government. [1 mark]
OR
Most new laws, or changes to existing laws, are initiated in the House of Representatives.
[1 mark] It is the only House that may introduce appropriation Bills (that is, Bills passed to enable
the government to spend money). [1 mark]

Question 2 (2 marks)

The case of Poe v. Kylo (2015) is currently being heard before Justice Phasma in the Victorian
Supreme CourtTrial Division). In this case, the plaintiff is relying on a precedent established
in the Victorian Supreme CourtTrial Division) in the case of Leia v. Luke (2007).

Explain whether or not Justice Phasma must follow the precedent set in Leia v. Luke (2007).
Justice Phasma does not have to follow the precedent set in Leia v. Luke because the precedent has
been set in a court of the same standing (that is, the Victorian Supreme CourtTrial Division), and
according to the doctrine of precedent, only lower courts are bound to follow higher courts in the same
hierarchy in cases where the facts are similar. [1 mark] However, by convention, judges in courts of
the same standing rarely overrule their colleagues, so Justice Phasma will be highly persuaded by the
precedent set in Leia v. Luke and most likely follow it. [1 mark]

Question 3 (2 marks)
Outline one main difference between the adversary and inquisitorial systems of trial.
One main difference between the adversary and the inquisitorial systems of trial is that under the
adversary system the judge remains independent and does not intervene in, or assist the parties with,
the preparation or presentation of their case. [1 mark] By contrast, under the inquisitorial system, the
judges control the trial process and play a significant role in ascertaining the truth and determining the
outcome of a case, including being involved in investigating the case, gathering evidence and
questioning witnesses. [1 mark]
Alternative answer:
Under the adversary system of trial, strict rules of evidence and procedure exist to ensure each party
has an equal opportunity to present their case; for example, certain types of evidence, including
hearsay and previous convictions, are generally not permitted and there is a heavy reliance on verbal
evidence, allowing the authenticity of evidence to be tested. [1 mark] By contrast, under the
inquisitorial system there are no strict rules of evidence and procedure and so a greater range of
evidence can be presented to the court with the judges determining its relevance and weight. There is
also a greater reliance on written evidence, which saves time, stress and costs associated with verbal
examination of witnesses. [1 mark]

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Question 4 (3 marks)

In December 2014, the Victorian Attorney-General, Martin Pakula MP, asked the Victorian Law
Reform Commission (VLRC) to conduct an inquiry into whether or not the Victorian Parliament
should introduce legislation to allow people to be treated with medicinal cannabis in
exceptional circumstances.

Explain the role of the Victorian Law Reform Commission, after it receives a reference from the
Victorian Attorney-General, in relation to legislative change in Victoria.
After receiving a reference from the Attorney-General, the Victorian Law Reform Commission (VLRC)
conducts an inquiry into the designated area of law reform by undertaking preliminary research of the
area of law reform (including examining related laws and initiatives from interstate and overseas and
discussing the key issues surrounding the area of law reform with individuals, groups and experts who
may be affected by or have a particular interest in the area being examined) and preparing a
consultation paper, which is used as a basis for community discussion. [1 mark]
After the consultation paper has been prepared, members of the community, including individuals,
groups and interested parties (e.g. experts in fields of interest such as police, community welfare
workers and medical practitioners), are invited to make submissions (via public meetings, surveys,
forums, online submissions and written submissions) for the purpose of gathering a wide range of
views and suggestions regarding possible changes to the law. [1 mark]
Finally, once submissions have been received and considered, the VLRC will prepare a report for the
Attorney-General that includes recommendations for amending existing legislation and/or
implementing new legislation. [1 mark] The Attorney-General then tables or presents the final report
to the Victorian Parliament so that Members can consider whether to implement some or all of the
VLRCs recommendations.
Note: Students must provide sufficient depth (that is, at least three points) in their explanation to earn
3 marks. If students want to use the abbreviation VLRC, they should write Victorian Law Reform
Commission in full when first mentioned followed by the abbreviation in brackets (as shown in the
suggested answer above).

Question 5 (3 marks)
Suggest and evaluate the effectiveness of one method an individual or group could use to
influence legislative change in Victoria.
Sample answer:
A demonstration, which involves a group of like-minded individuals gathering together to express their
support for (or protest against) a change in the law (e.g. the 2015 protests against the proposed
forced closure of Aboriginal communities in Western Australia), is one method that can be used to
place pressure on the government to implement legislative change. Demonstrations, including
protests, marches and boycotts, can raise awareness of the need for legislative change and attract
free positive media coverage to help generate public support for the change, which is important
because to be representative and win voter approval, Members of parliament are more likely to
implement legislative reform that has majority support. [2 marks]
Demonstrations, however, will be less effective if they become violent, lead to breaches of the law or
cause significant public inconvenience (e.g. road closures) because such actions can detract from the
credibility of the demonstration and attract negative media coverage, which will in turn reduce public
support and the likelihood of legislative change. [1 mark]
Note: The VCE Legal Studies Study Design requires students to be able to explain and evaluate
three means by which individuals and groups influence legislative change, including demonstrations,
petitions and use of the media. Students must learn all three methods. 3 marks are allocated for
evaluating (that is, provide strengths and weaknesses) the chosen method of legislative change.

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Question 6 (5 marks)

Kurt has been charged under Section 75A of the Crimes Act 1958 (Vic.) with armed robbery of
goods to the value of $300 000. He has decided to plead not guilty. Kurt was granted bail by a
magistrate.

a. Explain the purpose of granting bail and state one specific reason why Kurt could have
been denied bail. 2 marks
The purpose of granting bail, or releasing an accused person from custody on a written promise
that they will appear at a later court hearing or trial, is to uphold the presumption of innocence (a
prevailing value within our criminal justice system) and thereby treat an accused person as
innocent until they are proven guilty or until they plead guilty, and to allow the accused time to
prepare for their next court appearance. [1 mark]
Specific reasons for Kurts denial of bail include:
The court is satisfied that there is an unacceptable risk that he may fail to appear at his next
court hearing or trial. [1 mark]
There is a likelihood that he will interfere with either evidence or witnesses. [1 mark]
Note: Students are required to state one reason only for why Kurt could have been denied bail.
Although not appropriate responses for this scenario, bail can also be denied if an accused is
charged with murder, treason or the importation of drugs, or is already in custody for another
offence. This does not address the question and should not be awarded a mark.
b. Explain the original and appellate jurisdiction of the court that will hear Kurts case.
3 marks
The County Court of Victoria will hear Kurts case because it has the original criminal jurisdiction to
hear all indictable offences except murder, attempted murder, certain conspiracies and corporate
offences. [1 mark] This means it can hear cases where the accused is charged with armed
robbery. This is not an indictable offence that can be heard summarily by the Magistrates Court.
The County Court can also hear criminal appeals from the Magistrates Court against the
conviction or sentence. [1 mark] It has original civil jurisdiction to hear cases for unlimited
amounts. [1 mark]

Question 7 (4 marks)
Identify and explain the significance of one High Court case in terms of its impact on the
division of law-making powers between the state and Commonwealth parliaments.
Sample answer:
The Brislan Case (1935) is a significant High Court case because it demonstrates the ability of the
High Court to interpret the Constitution and alter the division of law-making powers between the state
parliaments and the Commonwealth Parliament when resolving constitutional disputes between the
states, the Commonwealth and individuals. [1 mark] By interpreting the Constitution the High Court
can either expand or limit the Commonwealths law-making power.
In this case, the High Court was called upon to interpret whether the specific constitutional power of
the Commonwealth to make laws on postal, telegraphic and other like services, under Section 51(v),
included wireless sets (radios). [1 mark] In deciding in favour of the Commonwealth, the High Court
demonstrated its ability to expand the Commonwealths power (to legislate in the area of radios)
through its interpretation of the Constitution. [1 mark]

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The Brislan Case is also important because it established a legal principle that was followed in later
cases (e.g. Jones v. Commonwealth (1965)) to further expand the powers of the Commonwealth by
allowing it to make laws in other areas of communication, including television, the Internet and cable,
unimagined at federation. [1 mark]
Alternative answer:
The Franklin Dam Case (1983) is a significant High Court case because it demonstrates the ability of
the High Court to interpret the Constitution and alter the division of law-making powers between the
state parliaments and the Commonwealth Parliament when resolving constitutional disputes between
the federal and state governments and individuals. [1 mark] By interpreting the Constitution the High
Court can either expand or limit the Commonwealths law-making powers.
In this case, the High Court was required to interpret the Constitution to resolve a dispute between the
Government of Tasmania and the Commonwealth Government over whether the Commonwealth
could use its specific power to make laws on external affairs, under Section 51(xxix), to ban the
Tasmanian Government from building a dam on the Franklin River in an area of environmental
significance protected under an international treaty (that is, the World Heritage listing) to create a
hydro-electric scheme (considered by the Tasmanian Government to be an area of residual power). [1
mark]
In deciding the case, the High Court broadly interpreted the external affairs power to expand the
powers of the Commonwealth and allow it to make laws on any matters covered by an international
treaty, even if these areas relate to a residual power. [1 mark]
The immediate impact of the High Court decision was to allow the federal government to make laws to
stop the dam from being constructed to protect the heritage area and fulfil its commitment under the
World Heritage Convention (an international treaty, to which Australia is a signatory, designed to
protect listed areas of natural and cultural heritage), while the long-term impact has allowed the
Commonwealth to pass legislation in other areas covered by international treaties, for example the
passing of the Human Rights (Sexual Conduct) Act 1994 to override state laws that were considered
to be discriminatory and in breach of Australias international obligations under the International
Covenant on Civil and Political Rights (Article 17). [1 mark]

Question 8 (8 marks)

In May 2015 a successful referendum took place in Ireland allowing the Irish Constitution to be
changed so that same-sex couples have the right to marry. In response, the Australian Prime
Minister said there was no need for Australia to have a similar referendum because the
Commonwealth Parliament already had the specific power to legislate for marriage equality.

a. With reference to the Commonwealth Constitution, explain the meaning of specific

powers. Provide examples to support your answer. 3 marks
Specific powers refer to those areas of law-making power that are stated in the Constitution as
areas over which the Commonwealth Parliament has the power to make law. [1 mark] Specific
law-making powers may be either concurrent or exclusive. Exclusive powers refer to specific areas
of law-making power that only the Commonwealth Parliament can exercise, for example currency,
defence, and customs and excise duties, [1 mark] On the other hand, concurrent powers refer to
specific areas of law-making power that are shared by the Commonwealth Parliament and the
state parliaments, for example marriage, taxation, and census and statistics. [1 mark]
Note: 2 marks are allocated to explaining the meaning of specific powers (including distinguishing
between exclusive and concurrent powers) and 1 mark for providing an example of an exclusive
power and a concurrent power.

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b. Discuss the extent to which a referendum is an effective way to alter the Commonwealth
Constitution. 5 marks
Despite only eight out of 44 referendum proposals being successfully passed, referendums are still
an effective way to alter the Constitution because they require a compulsory public vote that
ensures the Constitution is only changed if it has the support of the entire the community rather
than just a small section who bother to vote. [1 mark] A public vote also prevents the federal
government or parliament from changing the Constitution on its own to benefit its own agenda. [1
mark] However, if a proposal for alteration does not have bipartisan support from the major
political parties, it is unlikely that it will succeed as voters are more likely to be divided on the issue.
[1 mark] Similarly, referendums tend to fail when many people are likely to vote against a proposal
for change because they do not understand the proposal, are not interested in the issue, or are
conservative and reluctant to support any change. [1 mark]
The requirement that a referendum proposal has the support of a double majority also enhances
the effectiveness of a referendum because it ensures any change to the Constitution has a high
degree of public support and it also protects the smaller populated states from being dominated by
the larger states. [1 mark] However, satisfying the double majority provision is very difficult,
particularly the states provision, and can increase the likelihood of a referendum being
unsuccessful. [1 mark]
Likewise, the timing of a referendum, which for cost and convenience factors are usually held at
the same time as a general federal election, may also diminish its effectiveness as voters can be
more concerned about electing the government of the day rather than constitutional reform.
[1 mark]
Note: This question requires students to discuss the effectiveness (that is, examine the strengths
and weaknesses) of altering the Constitution through a referendum. A variety of points can be
included in the evaluation of the referendum process, with a better answer providing at least 5
points to earn 5 marks (e.g. a discussion of two strengths and three weaknesses). This sample
answer includes 7 points.

Question 9 (7 marks)

Joel, a former schoolteacher, is suing Alana for defamation after she posted a series of false
and malicious statements about him on Twitter. The parties have been informed that a
directions hearing will take place prior to a trial by judge alone in the Victorian Supreme Court.

a. Explain the purpose of directions hearings in the pre-trial process and discuss the how
these hearings can promote a timely resolution of civil disputes. 4 marks
The purpose of a directions hearing, which takes place prior to trial, is largely to save time and
costs at trial by allowing the presiding trial judge to give instructions to the parties regarding how
the trial will proceed and that they should engage in any conduct that will assist a prompt and
efficient trial and promote a timely resolution of the dispute. [1 mark] This will include encouraging
parties to discuss key issues, make admissions and provide each other with a summary of
witnesses evidence. [1 mark] Directions hearings also promote an early and efficient settlement of
a dispute by enabling the establishment of a timeline for the discovery stage and the clarification of
legal issues and points of law, [1 mark] In addition, they give the judge the opportunity to direct the
parties to attend mediation in an attempt to reach a mutually acceptable resolution prior to trial.
However, it can be difficult for judges to narrow or limit the issues in dispute in more complex
cases and there is a possibility that case management procedures, such as directions hearings,
can become overly lengthy in themselves and offset or reduce any benefits associated with saving
time at trial. [1 mark]

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b. Describe one remedy that may be awarded should the plaintiff win this case and discuss
the extent to which this remedy could achieve its purpose. 3 marks
One remedy that could be awarded by the judge in this case would be compensatory damages,
that is, requiring the defendant, Alana, to pay the plaintiff, Joel, a sum of money to restore him, as
far as possible, to the position he was in prior to the breach of his rights, and compensate him for
any losses incurred. In this case, the compensatory damages awarded could include specific
damages to compensate Joel for amounts that can actually be quantified, for example any medical
expenses incurred for counselling and support and lost wages if he was unable to work due to the
stress associated with the loss of his reputation, and general damages to compensate him for
losses that cannot be easily quantified, such as for pain and suffering (e.g. loss of enjoyment of life
and emotional distress) caused by Alanas defamatory remarks. [2 marks] However, if Joels
reputation has been so severely damaged that it cannot be restored, or will take many years to
restore, it will be difficult for an amount of money to compensate for this loss and restore his good
name. Similarly, it may be difficult to estimate any future losses that may be incurred by Joel, for
example being denied future promotions or employment due to rumours that may persist long after
the case has been settled. This can be especially relevant in cases where defamatory remarks are
made online and can remain in circulation for many years. [1 mark]

Question 10 (7 marks)

Explain two means by which the Commonwealth Constitution protects the rights of the
Australian people and evaluate the extent of this protection.
Sample answer:
One way the Commonwealth Constitution protects rights is through structural protection, that is, by
outlining various structures, systems and parliamentary principles that indirectly protect various rights
of the Australian people. [1 mark] For example, the Constitution enshrines the parliamentary principle
of representative government, which ensures that the House of Representatives and the Senate are
elected by a direct vote of the people (Sections 7 and 24), thereby protecting the right of the people to
elect the Commonwealth Parliament. [1 mark]
The Constitution also contains five express rights that directly protect the rights of the Australian
people, as they are entrenched in the wording of the Constitution and can only be removed or altered
by changing the Constitution through the process of a referendum. [1 mark] For example, the
Constitution expressly protects the right of freedom of religion to the extent that the Commonwealth
Parliament cannot make laws that establish a state religion, impose any religious observance or
prohibit religious practice (Section 116). [1 mark]
All constitutional rights in Australia are well protected by being fully enforceable by the High Court,
which has the power to declare any legislation that infringes a right invalid, although the courts ability
to make such a ruling is reliant on parties having grounds and being willing to take their case to court,
which is expensive and time-consuming. [2 marks]
The extent to which the Constitution protects rights is limited because the Constitution expressly
protects only five narrow rights rather than including a constitutional bill or charter of rights that
protects an extensive number of rights (e.g. the US Constitution includes a Bill of Rights that protects
an extensive range of rights including the right to freedom of speech, assembly, religion and petition,
and the right to vote)*. However, Australia has a number of pieces of legislation that protect rights,
such as the right not to be discriminated against, common law rights, and is a party to seven major
human rights treaties. [2 marks]

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A constitutional bill of rights can help to protect rights by improving community awareness of basic
rights. However, as it is difficult to remove or alter express rights from a constitution, there is a risk
that these rights may become out of date and not reflect contemporary values, and so it may be
preferable to protect basic rights through state and federal legislation (as they are in Australia), or a
statutory bill of rights, so the parliament of the day can modify the rights to ensure they keep pace with
changes in societys views and values, and technology. [1 mark] For example, there is much debate
in the US about whether or not the constitutional right to bear arms has failed to keep pace with
changes in values and technology over time and, as such, should be removed from the US
Constitution, although this change would be most difficult to introduce as constitutional change
requires support from two-thirds of Congress and 75 per cent of the state legislatures. [1 mark]
*Note: Students can support their answer by comparing the approach to rights protection of the
country they studied with Australias.
Suggested marking scheme: 1 mark for each explanation of the two means by which the Constitution
protects rights, 1 mark for an example of each = 4 marks; 3 marks for the evaluation). The sample
answer includes 10 points.
Alternative answer to first part of question:
One means by which the Commonwealth Constitution protects the rights of the Australian people is
through the power of the High Court to interpret the Constitution and confirm the existence of implied
rights. [1 mark] For example, over the years, the High Court has ruled in a number of cases that the
Constitution implies the right to freedom of political communication. [1 mark] This principle is
illustrated in Australian Capital Television Pty Ltd v. Commonwealth (1992). In this case the High
Court found that a Commonwealth law restricting political broadcasts on radio and television during
election campaigns was unconstitutional and invalid because it breached the constitutional principle of
representative government that implies a right to freedom of political communication. [1 mark]
Another means by which the Constitution protects rights is through structural protection, that is, by
outlining various structures, systems and parliamentary principles that protect various rights of the
Australian people indirectly. [1 mark] For example, entrenched in the Constitution is the parliamentary
principle of the separation of powers that divides the institutions of government into three branches:
legislative, executive and judicial. These branches are separate and do not exercise the powers or
functions of the others, thereby indirectly protecting the rights of the Australian people by minimising
the likelihood of the parliament or government misusing its power. [1 mark] An illustration of this is
that an independent judiciary helps to ensure that the Commonwealth Parliament does not make laws
beyond its legislative power. [1 mark]
Note: The Constitution protects the rights of the Australian people in three main ways: it offers
structural protection of rights and provides for the existence of express and implied rights. For this
question students are only required to explain two means of rights protection. Higher scoring answers
should provide at least one example to illustrate their two chosen means of protection. Students must
also evaluate the extent of rights protection under the Constitution.
When giving an example of express rights, it is essential that students provide a precise answer. For
example, it is incorrect to simply state that the Constitution provides Australian people with the right to
freedom of religion. This statement is too broad as the Constitution only protects the right to freedom
of religion to a limited extent (that is, to the extent that the Commonwealth Parliament cannot impose
or prohibit religious practiceSection 116). Similarly, the Constitution does not protect the general
right to trial by jury because it only protects the right to trial by jury for an indictable Commonwealth
offence (Section 80).

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Alternative example of structural protection: The parliamentary principle of representative government

is entrenched in the Constitution and requires that Members of both Houses of the Commonwealth
Parliament be elected by a direct vote of the people (Sections 7 and 24). This indirectly protects the
right of the people to elect members of parliament and the government. [1 mark] The Constitution
also indirectly protects the democratic principle of one vote per person by requiring that each elector
only vote once (Sections 8 and 30). [1 mark]

Question 11 (7 marks)

A retiring judge recently said in his farewell speech that whilst judges are limited in their law-
making ability, they are still significant law-makers.

Discuss the extent to which you agree or disagree with this statement.
Despite parliament being the supreme law-making body, judges are significant lawmakers who are
called upon to make law, via the doctrine of precedent, when resolving disputes in which there is no
existing applicable law. In such cases, the legal principles established by the judges may become
precedents (that is, law) that must be followed by lower courts in the same hierarchy in cases where
the material facts are similar. [1 mark]
Judges are, however, limited in their ability to make law via the doctrine of precedent because they
must wait for a relevant case to be brought before them and only superior courts (that is, the Victorian
Supreme CourtTrial Division or higher) can make law, which is reliant on parties being willing and
able to afford to bring a case before the courts and to be determined to see the action through the
appeals process (both of which can be costly and time-consuming). [1 mark] Furthermore, judges in
superior courts are restricted to making law in relation to the issues or matters raised in the case
before them. [1 mark]
Judges in superior courts may also be reluctant to change the law through reversing or overruling on
appeal existing precedents, preferring to leave the law-making to parliament, which given its aim to be
representative should strive to make laws that reflect the views and values of the electorate. [1 mark]
For example, in the Trigwell Case (1979), the High Court did not overrule an earlier precedent set by
the Supreme Court of Appeal in Brisbane v. Cross (1978), stating that landowners are not responsible
for damage caused by their stray animals, preferring parliament to legislate in this area. [1 mark]
Similarly, judges in courts of the same standing, by convention, consider their own courts previous
decisions to be highly persuasive and rarely overrule them (with the exception of the High Court that
will overrule its own decisions to allow the law to develop over time). [1 mark] Judges are not,
however, bound to follow persuasive precedents from other hierarchies (such as interstate and
overseas) or from lower courts in the same hierarchy.
Judges in lower courts are limited in their ability to change the law because according to the doctrine
of precedent they are bound to follow all precedents set by higher courts in the same hierarchy in
cases where the facts are similar, and while they can distinguish between the facts and avoid
following a binding precedent, any new decision will only create a precedent if the court is of sufficient
standing. [1 mark] Lower courts that are bound by existing precedent can always, however, express
their disapproval, which may encourage a party to appeal the existing decision to a higher court. That
court may ultimately be able to alter an existing precedent, but such change is reliant on parties being
willing to pursue an appeal. [1 mark]
Judges are also significant lawmakers in their role of statutory interpreters and the parliament relies
on judges being able to clarify the meaning of words and phrases in legislation so it can be applied to
resolve disputes, although a judges interpretation will not directly change the actual wording of
legislation. [1 mark] Similarly, judges can only interpret legislation after a dispute has arisen and
hence clarify the law after a dispute has arisen (ex post facto), rather than before a conflict arises.
[1 mark] Judges may also be conservative in their interpretation in circumstances where it may lead
to a major or controversial change in the lawagain preferring parliament to investigate and make
controversial legislative changes. [1 mark]

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With the exception of High Court decisions in constitutional matters, parliament as the supreme law-
making body can also legislate to override court-made law and thus limit the ability of the judges to
make and change the law. [1 mark] With respect to constitutional matters, however, the justices of
the High Court have the ability to resolve disputes and change the law by declaring any legislation
that is made in breach of the Constitution to be invalid. [1 mark]
Note: This sample answer contains 13 points; students should provide sufficient depth and points in
their answer to earn 7 marks.

Question 12 (8 marks)

Compare the use and role of a jury in a criminal and civil trial in Victoria and discuss whether a
trial by jury is preferable to having the verdict in a criminal trial determined by a judge alone.
The role of a jury in both a criminal trial and a civil trial (when present, as juries are optional in
Victorian civil trials) is to listen to the evidence presented before the court and decide the facts of the
case, and apply the relevant law as explained by the judge to determine the verdict; in other words,
whether the accused in a criminal trial is guilty (beyond reasonable doubt) or whether in a civil trial it is
more probable than not (on the balance of probabilities) that the events occurred as claimed by the
plaintiff. [1 mark]
A major difference between the role of a jury in criminal trial and a civil trial is that a civil jury (of six in
number) is allowed to reach a unanimous or majority (5/6) verdict in favour of either the plaintiff or
defendant, whereas a criminal jury (of 12 in number) must generally deliver a unanimous verdict as to
whether the accused is guilty or not guilty, although a majority verdict of 11/12 jurors may be accepted
by the judge in cases other than the most serious ones (e.g. cases of murder, treason and drug
trafficking in large quantities, or Commonwealth offences) if a unanimous verdict cannot be reached
after six hours deliberation. [1 mark]
Similarly, while criminal juries (which are used in all trials for indictable offences held in the County
and Supreme CourtTrial Division) only determine the verdict, civil juries, when used, determine the
verdict and the level of damages to be awarded. [1 mark] The cost of a jury in a civil trial is also
usually borne by the party requesting the jury, while in criminal matters the cost of the jury is borne by
the state. [1 mark]
One reason why it is preferable for a jury to determine the verdict in a criminal trial rather than the
presiding judge is that while both judges and juries can act as independent and impartial deciders of
the facts and the verdict, juries are comprised of a randomly selected cross-section of the community
(often referred to as trial by ones peers) that can reflect the prevailing views and values of society in
their deliberations. [1 mark] Therefore, an accused person can feel that ordinary people, rather than
legal authorities (that is, judges), have determined whether they are guilty of the charge or not.
[1 mark] However, given that there are extensive categories of people who are excused from jury
service (e.g. due to self-employment, illness or incapacity) or excluded from jury service (that is, either
disqualified from serving as a juror because they are on parole or have been imprisoned for an
indictable offence, or ineligible due to their occupation or inability to understand the task) and the
accused and prosecution have the right to challenge and stand aside potential jurors during the
empanelment process, a jury may not be a true cross-section of society. [1 mark]
The use of a jury in a criminal trial might also be preferable to a judge alone determining the verdict
because it spreads the responsibility of decision-making over 12 people rather than having a single
judge determine the outcome. This may help increase the likelihood of a more correct result as
individual biases are likely to be counter-balanced by other members of the jury and should inevitably
allow a greater range of factors to be considered in the jurys deliberations. [1 mark] However, having
12 jurors rather than one judge determine the verdict might lead to more hung juries (especially in
criminal trials that require a unanimous or, upon directions of the judge, 11/12 majority verdict).
[1 mark] Juries can also lengthen the trial process because, in addition to the empanelment process,
the judge must explain matters of the law to the jury and give appropriate directions, which is costly
and time-consuming. [1 mark]

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Another reason why it might be preferable to have a jury determine the verdict in a criminal trial, rather
than the presiding judge, is that jurors generally have no experience or preconceived ideas regarding
the operation of the legal system and, due to the selection and empanelment process, should have no
knowledge of anyone involved in the case (e.g. the parties, key witnesses and legal representatives)
that might cause any bias. [1 mark] However, some jurors may have personal prejudices and
predetermined ideas that influence their decision and may be more likely to be intimidated or
persuaded by clever legal representatives compared to judges. [1 mark] Similarly, jurors may not fully
understand legal procedures and terminology and may feel overwhelmed or frustrated by their task,
which may influence their verdict. [1 mark] Jurors are also more likely to be influenced by the media
than an experienced judge and, despite being illegal and against the judges directions, may even
undertake personal online research into the facts of the case that they are adjudicating and the
background and any previous convictions of the accused, which may lead to an unfair trial. [1 mark]
Unlike judges, jurors also do not give reasons for their verdict, which may leave the parties to the
case, and the community, dissatisfied and uncertain as to the reasoning behind decisions and reduce
confidence in the capacity of the legal system to deliver justice. [1 mark] However, juries do establish
a useful link between the community and the legal system and help to instil confidence in our criminal
justice system. [1 mark]
Note: Compare means outline the similarities and differences. So this question does not mean
simply outline the role of a jury in a criminal and civil trial. While the sample answer contains many
points, 23 marks should be allocated to a comparison of the role and use of a jury in a criminal trial
and a civil trial (that is, outlining the similarities and differences) and 56 marks should be allocated to
a discussion of whether trial by jury is preferable to having the verdict in a criminal trial determined by
the presiding judge (with a total allocation of 8 marks). Students must ensure they examine the
strengths and weaknesses of having a jury determine the verdict in a criminal trial compared to a
judge alone and use appropriate legal terminology. Better answers will include an opinion and/or
concluding statement.

Question 13 (10 marks)

According to Justice Greg Garde AO, the President of the Victorian Civil and Administrative
Tribunal (VCAT), VCATs vision or main aim is to serve the community by resolving disputes
in a timely, cost-effective and efficient way.

Discuss the extent to which VCAT achieves its vision compared to the courts. In your answer,
explain how VCAT resolves disputes.
One way the Victorian Civil and Administrative Tribunal (VCAT) aims to ensure that it meets its vision
of providing a cost-effective, efficient and timely resolution of civil disputes is by encouraging parties,
where possible, to resolve their dispute through discussion and compromise at mediation or a
compulsory conference, and on occasions where these methods of dispute settlement fail or are
inappropriate, at a legally binding hearing. [1 mark] For example, where possible, VCAT encourages
disputes to be resolved at mediation where parties meet together before an independent and impartial
mediator who aims to facilitate communication and discussion between the parties in the hope that
they can reach their own mutually acceptable agreement. [1 mark]
If mediation is unsuccessful or inappropriate (e.g. in cases where mediation has failed in the past or
the dispute involves complex issues or a large amount of money), parties may attend, or be ordered
to attend, a compulsory conference where the dispute is generally resolved using conciliation, that is,
where the parties meet together with an independent VCAT Member who facilitates communication
and discussion between the parties (in the hope that the parties can resolve the dispute between
them). The VCAT Member may also offer an opinion regarding the strengths of each partys case and
suggest possible solutions. [1 mark]

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Resolving a dispute at VCAT, via a mediation or compulsory conference, is generally a more efficient
way to resolve a dispute compared to having a dispute resolved by a court using judicial
determination, because the dispute is resolved in a non-adversarial manner by the parties through
negotiation and discussion, so there is a greater likelihood that the parties will be more satisfied with,
and more likely to follow, the agreement compared to having a decision imposed upon them by a
magistrate or judge, as occurs in court hearings and trials. [1 mark]
Reaching an agreement through discussion and compromise might also be particularly beneficial in
cases where parties have an ongoing relationship, such as in disputes between family members,
neighbours, or employees and employers. [1 mark] Decisions reached through mediation (which is
the preferred method of dispute resolution at VCAT) are not legally binding, whereas court decisions
are, although in reality parties involved in complex and lengthy settlements or matters that involve
large amounts of money can choose to have their agreement made legally binding through an
independent contract. [1 mark] Similarly, unlike traditional conciliation, if the parties are able to reach
an agreement at a compulsory conference, the VCAT Member makes a legally binding order.
VCAT can also resolve disputes at hearings, which generally involve a dispute being resolved by way
of judicial determination where the parties present their case before an independent VCAT Member
who makes a legally binding decision. Although VCAT hearings and traditional judicial determination
both follow particular procedures (e.g. parties and witnesses give evidence under oath or affirmation),
the guidelines for the provision of evidence and for the procedure are not as strict for a VCAT hearing.
[1 mark]
Compared to a court hearing, each of the dispute settlement methods used by VCAT are relatively
informal, which assists VCAT in achieving its aim of resolving disputes in a more efficient, timely and
cost-effective manner. For example, the informal and less intimidating environment encourages
parties to present their case themselves without the use of costly legal representatives (e.g. in 2014
approximately 80 per cent of people who brought a matter to VCAT represented themselves), which
reflects the accessible and participatory nature of VCAT. [1 mark] This compares with courts where
the strict rules of evidence and procedure necessitate the use of lawyers. [1 mark] In addition, the
more informal nature of proceedings at VCAT may allow a more confident party to dominate
proceedings and cause one party to compromise too much. [1 mark] In contrast, while the existence
of strict rules of evidence and procedure in courts can be confusing and discourage a party from
pursuing their case, they do help to ensure that both parties have an equal opportunity to present their
case. [1 mark] The formality of court hearings may also discourage frivolous claims. [1 mark]
VCAT application fees are cheaper than court fees, thus improving the ability of individuals to access
VCAT. [1 mark] For example, it only costs approximately $44 to have a basic minor case heard and
resolved in the most common VCAT lists (such as the Civil Claims List and the Residential Tenancies
List). However, while still being much cheaper than taking a case to court, proposed VCAT application
fee increases over the next two years (201617) could see the basic fee rise and some free services,
such as the provision of mediation, incurring a cost of approximately $300 per day, which will detract
from the accessibility of VCAT. [1 mark]
Similarly, over recent years there has also been an increasing use of legal representatives at VCAT
that has significantly increased the cost of dispute resolution, although over recent years VCAT has
introduced various reforms that aim to keep costs low and improve access. For example, VCAT has
introduced more flexible processes and procedures that enable applications to be dealt with more
efficiently, including expanding the use of information technology in improving online application forms
and payment facilities and implementing iManage software, with the aim of achieving a paper-free
environment by 2017. [1 mark]

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VCAT also has focused on offering better support to individuals who represent themselves in a
dispute, with a particular focus on providing better services for disadvantaged individuals including
those from culturally and linguistically diverse communities, Indigenous communities and people with
a disability. In addition, it has implemented more flexible operating hours (e.g. by offering twilight
sessions sitting until 7 pm and Saturday morning hearings) and provides services at a range of
regional and metropolitan locations in unconventional settings (e.g. shopping centres and community
facilities) to help resolve disputes in a more flexible and timely manner and improve access for
individuals (e.g. on average, it takes 18 weeks to resolve a dispute from the time the matter is lodged
at the tribunal). [1 mark] Courts by contrast have lengthy pre-trial procedures that can delay the
resolution process and complex and strict rules of evidence and procedure that can deter parties from
pursuing a claim. [1 mark]
Note: When responding to this question students are required to outline how VCAT resolves disputes,
that is, through a mediation or compulsory conference, or if these fail or are inappropriate, a binding
hearing. Students are also required to discuss the extent to which VCAT resolves disputes in a timely,
cost-effective and efficient way, compared to the courts. This involves explaining not only how VCAT
resolves disputes in a more cost-effective, efficient and timely manner than the courts, but also some
of the limitations. This question should be globally marked and students should include sufficient
depth and points to earn 10 marks. The sample answer contains many possible points that can be
made.

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