legal studies stage 2 student evening september 2012

Legal StudiesStage 2

Student Evening September 2012

Short Response Questions

General Guide

Preparation

Success in unseen examinations is only possible if a student conducts astructured and timely revision programme.

Some people read, others read!

Many students provide quite good factual answers, except that they are irrelevant because they don’t answer the question.

This happens because students do NOT READ the question and, therefore, interpret it correctly.

General Guide

Applying the rules

It is pointless reading and interpreting a question correctly, if a student subsequentlydoes not apply the rules correctly

Using common sense

A common comment by students is, “Our teacher never taught us that!”

Often those comments are directed at a stimuli in the paper, such as a text orcartoon. Stimuli are usually fictitious so students must use their common sensewhen applying the theory to meet the demands of the question.

ExampleA student states that a Regulation is assented or a Regulation can be amendedby Parliament.


General Guide

General rules

Only use the lines provided. If you write in other places you are writing too much.

Write an answer to meet the mark allocation. eg One sentence for 3 marks will be inadequate.

Don’t use inappropriate abbreviations. eg RTRS

Use the correct spelling of fundamental concepts. Marks are not deducted for incorrect spelling but poor spelling does create concern for markers


How good is your legal spelling?

Which words are spelt correctly?

How good is your legal spelling?How good is your spelling?

Remember!Legal language is your tool of trade.

If you spell Legal Studies’ terms incorrectly it will not imbue confidence in markers of your written answers

How good is your spelling?

Parliament Parliment

seperation of powers separation of powers

appelant appellant

admissable admissible

hierarchy hierachy

agreement agreeance

No such word!

Short response questionsSome illustrations

Legal Education Teachers Association of SA

L•E•T•A•S•A

Australian parliamentary process

Question 1

Why was Ms Gillard able to become Prime Minister of Australia after the 2010federal election?Common response from past examinations of a similar nature:

Because her party won a majority in the House of Representatives

A much better response would be:

Selected as leader of the Labor Party in the House of Representatives Able to gather support of the majority of MHRs (76) Sworn in as Prime Minister (of a minority government) by the Governor-General in accordance with the conventions of responsible government


Briefly explain how the following concepts are implied in the text(i) REPRESENTATIVE GOVERNMENT

COMMENTRead the question carefully, it states “implied in the text”, so you cannot provide a general answer

Possible answers:

Members of the community were elected to the Cwlth Parliament at the 2007 and 2010 federal elections to make laws on behalf of the community.

Elected representatives of the community debated and passed the Work Choices Act and Fair Work Act in the Commonwealth Parliament

Briefly explain how the following concepts are implied in the text(ii) RULE OF LAW

COMMENTRead the question carefully, it states “implied in the text”, so you cannot provide a general answer

Recommended answer

Cwlth Parliament can only enact legislation where it has a specific power

or

The States challenged the validity of the Work Choices Act in the High Court arguing the Cwlth had exercised a legislative power ultra vires the Constitution



NOTEIt is inadequate to simply state – “it is a constitutional dispute”, as it doesn’t explainWHY they are heard in the High Court.

(c) What legislative power would Ms Gillard use to have the Fair Work Act enacted?

Specific legislative power (Corporations power)

(d) Why was the States’ challenge to the Work Choices Act heard in the High Court?

Australian Constitution prescribes (in section 75) that the High Court is vested with original jurisdiction to resolve constitutional disputes regarding an interpretation of the Constitution.


(e) Why will the High Court’s work choices decision remain unchanged after the 2007 election?

High Court is the sole independent judicial body with the power to decide constitutional cases.

Its decisions can only be overruled by constitutional change by referendum or the High Court departing from precedent.

Arbitrary factors, like federal elections, have no impact on a High Court’s decision.

(f) What was the impact of the High Court’s decision on the Australian federal system?

The decision broadened the corporations (specific) power of the Cwlth, and therefore increased the Cwlth’s specific powers at the expense of the residual powers of the States.

Stated alternativelyThe decision swung the balance of the division of powers in favour of the Cwlth.


(g) Why have Labor Governments faced stricter scrutiny of their Bills than the Howard Government?

The Howard (Coalition) Government commanded a majority in the Senate from 2004 to June 2008, so its Bills could pass unamended if Mr Howard instructed his Coalition Senators to support his legislation.

All subsequent Labor Governments (under Rudd and Gillard) have faced a hostile Senate as they could not use their party numbers to guarantee passage of their Bills.

The Gillard Government continues to face a hostile Senate.

Australian Road Rule 300

Question 2(a) What legislative power did the South Australian Parliament exercise to enact the Road Traffic Act?

Residual power

Some students wrote “legislative power” indicating they did not read the question correctly

(b) From where did the delegated authority get the power to make Australian Road Rule 300?

An enabling Act, Road Traffic Act.

(c) Why do judges need to interpret Australian Road Rule 300?

To give legal meaning to a “hand-held mobile phone” so that only defendants who have breached the Rule are convicted and sanctioned.

Some students gave a general answer re reasons for statutory interpretation indicatingthey did not read the question correctly.


Question 2(d) How has the South Australian Parliament directed courts to interpret codified laws.

NOTEThis is a general question that can be answered with respect to all codified laws – statutes and/or regulations

Students have two choices re answering this question. As it is valued at 2 marks, an answer could give an explanation of one way or a brief outline ot two ways.

Choices include

INTERNAL GUIDANCEAll Acts (that will eventually be interpreted) include Object Statements and/or DefinitionSections, to outline the intention of the Act and/or to define key concepts.

EXTERNAL GUIDANCEEvery Australian parliament has passed an Acts (or Statutory) Interpretation Act outlining the general rules of interpretation courts must adopt.


Question 2(e) What authority would the following cases have had at the Magistrates Court? Give a reason for your answer.Wilson v The Queen (2005) Supreme Court of New South Wales

Persuasive precedent as it was created in a court in another State’s court hierarchy.

Christie v Police (2006) Full Court of Supreme Court of South Australia

Binding precedent as it was created in a superior court in the SA court hierarchy.

(f) How could the Supreme Court respond to the decision of the Magistrates in Tyriak’s case?

Two possibilities: Up hold the decision and endorse the interpretation making that precedent settled in State road traffic case law.

Reverse the decision, and create another precedent, which will become settled in State road traffic case law.

An “authority” is a name used by the legal profession for a precedent.


Question 2(g) What can the SA Parliament do if it disagrees with the court decision in Tyriak’s case?

Possible answers

NOTEWhile the SA Parliament has the sovereign power to override the actual decision ofthe court, by convention it never does this to respect the principle of judicialindependence.

As ARR300 is a regulation made by an executive government agency, the SA Parliament cannot amend or repeal it.

It could amend the Road Traffic Act to address any issue it perceived needs attention but this is most unlikely, particularly if it doesn’t have the support of the Government.


(h) What could the responsible Minister do about public concern over the Tyriak case outcome?

As the Minister would have advised the Governor to proclaim the Regulation, he/shecould arrange for the statutory authority to amend the Rule, and have a new ARR 300 proclaimed.

This is what actually happened.


Question 2(i) Identify one strength of the application of the doctrine of precedent in the Tyriak case.

While there was no precedent for the Magistrate to follow, he/she would have used judicial and statutory guidance to interpret the Rule.

These rules bring consistency and predictability to the application of case law.

When a precedent is finally settled case law it will bring consistency to the application ofroad traffic law regarding the use of mobile phones in vehicles.


Question 2(j) Using the relevant authorities, present a legal argument why Mr Tyriak has either breached or not breached ARR 300.

General answering guidance and advice

Do NOT simply repeat the factual circumstances. That is not legal argument.

Must refer to at least TWO authorities, one of which should be the codified rule being interpreted.

Advisable to refer to the Acts Interpretation Act.

Markers do not expect sophisticated legal argument as Legal Studies in NOT a law course


Question 2(j) Using the relevant authorities, present a legal argument why Mr Tyriak has either breached or not breached ARR 300.

A possible answer in Mr Tyriak’s defence

Australian Road Rule 300A hearing aid is not a mobile phone so Mr Tyriak has not committed an offence. As a consequence Christie v Police 2006 does not apply.

Acts Interpretation Act 1915 (SA)While the purpose of ARR 300 is designed to prohibit driver behaviour that impairsdriving, Mr Tyriak has a hearing disability and requires his hearing aid to enable himto drive safely on public roads so he can react appropriately to noises, He needs it To drive carefully so he is not involved in accident, or causes one. This argument is supported by Wilson v The Queen 2005 where the Court held an ashma inhaler was not in breach of ARR 300 as it was necessary to enhance a driver’s ability to control a vehicle, not hinder it.


Question 2(k) Briefly explain how Australian Road Rule 300 was made uniform throughout Australia.

As road traffic is a residual power of the States, the Cwlth CANNOT make laws in this head of power

The most logical answer is:The States entered into a Federal Co-operative Agreement, undertaking to proclaim The Australian Road Rules as Regulations pursuant to the Road Traffic Act

NOTEA number of students wrote the Cwlth could use the grants power to “force” the States to pass uniform laws.

The Cwlth cannot “force” the States to do anything.

Can you identify this person?

Australia’s first Governor-General,Lord Hopetoun


Australia’s Governor-General,Sir John Kerr, who dismissed Prime Minister

Gough Whitlam in 1975


Chris Karoukis, Chief Justice of the South AustralianSupreme Court


Adam Kimber, Director of Public Prosecutions


First Premier of South Australia,Boyle Travers Finniss

Ivan MilatConvicted serial murderer


Nine Justices of theUnited States Supreme Court

Can you identify the following people?

Robert FrenchChief Justice of the High Court


The black hole into which Port Power has fallen.

What is this?

That’s all folks!


legal studies stage 2 student evening september 2012

Documents

legal spelling

common response

poor spelling

incorrect spelling

better response

legal language

legal studiesstage

good factual answers