LEGAL STUDIES UNITS 3 AND 4
Suggested answers to Legal Studies Units 3 and 4 practice exam
2014
Question 1 (1 mark)
Explain the role of VCAT.
The role of VCAT is to provide Victorians with a low-cost, informal, accessible, efficient and
independent tribunal that delivers high-quality and timely dispute resolution.
Question 2 (2 marks)
Tilly sued Porthos in the Magistrates’ Court and was awarded $45 000. She is dissatisfied with
the outcome of the case. Knowing that you are a Legal Studies student she asks you for
advice on whether she can appeal this decision.
Explain the term ‘right of appeal’ and identify the court that would hear the appeal in this case.
Section 109 of the Magistrates Court Act 1989 (Vic.) provides for appeals only to the Supreme Court
on a question of law from a final order of the Magistrates' Court. A 'question of law' is a question that
was involved in the making of the order and that question must be the subject of the appeal. The
issue could have been that the magistrate acted on a wrong principle of law, misapprehended the
facts or made a wholly erroneous assessment of the issues.
Note: For full marks, students need to identify that the appeal would be heard by the Supreme Court
and that it must relate to a question of law.
Question 3 (6 marks)
a. Explain the difference between concurrent powers and exclusive powers, and include
one example of each type of power in your answer.
4 marks
The difference between concurrent powers and exclusive powers is that concurrent powers are
law-making powers shared by both Commonwealth and state parliaments, whereas exclusive
powers are law-making powers held only by the Commonwealth. Examples of concurrent
powers are Section 51 (ii) (taxation) and Section 51 (xxi) (marriage). Examples of exclusive
powers are Section 114 (defence), Section 115 (coining money/currency) and Section 90
(customs and excise).
Note: Students are required to provide one example of each type of power.
b. Explain the impact of Section 109 on the law-making powers of the states.
2 marks
If the Commonwealth Parliament and a state parliament make a law on the same area of law
(under concurrent powers), and the state law is inconsistent with the Commonwealth law, then
there is a conflict between the state and Commonwealth legislation. Therefore, the impact of
Section 109 on the law-making powers of the states is that if there is a conflict between state
and Commonwealth laws in an area of concurrent law-making power, the Commonwealth law
will prevail, to the extent of the inconsistency between the two pieces of legislation, and the
provisions of the state law that are inconsistent with the Commonwealth law will be invalid.
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LEGAL STUDIES UNITS 3 AND 4
Question 4 (3 marks)
Explain the structure of the Victorian Parliament.
The Victorian Parliament consists of the Upper House, known as the Legislative Council, the Lower
House, known as the Legislative Assembly, and the Crown, known as the Governor.
Question 5 (3 marks)
Outline the means by which the Commonwealth Constitution protects rights.
Note: The VCE Legal Studies Study Design (page 23) identifies three means by which the
Commonwealth Constitution protects rights: structural protection, express rights and implied rights.
Students should be able to identify each of these means and provide a brief definition of each one.
Sample answer:
There are three ways in which the Commonwealth Constitution protect human rights: structural
protection, express rights and implied rights.
Structural protection refers to the systems or mechanisms in the Commonwealth Constitution that
indirectly protect human rights by preventing the abuse of power, such as the separation of powers,
representative government, responsible government and the bicameral structure of parliament. These
are checks and balances that are built into the Constitution that prevent power being abused and
therefore protect human rights.
The Commonwealth Constitution contains a limited number of express rights, which were purposely
written into the document, for example the right to a trial by jury, the right to just compensation in the
case of compulsory acquisition of property, and the right to freedom of religion . These are entrenched
in the Constitution and can only be changed by referendum.
Implied rights are those that are not written explicitly into the wording of the Constitution, but that the
High Court has found to be implied by reading two or more sections together, for example the right to
freedom of political communication and the right to vote.
Question 6 (4 marks)
Evaluate one strength of arbitration as a dispute resolution method used by courts and VCAT.
One strength of arbitration is that the case is heard before an independent person who makes a
legally binding decision that is enforceable. This is a strength because the parties must follow the
decision made, whether they want to or not. However, there are also limitations. One weakness of
arbitration is that this method of dispute resolution does not allow for the parties to discuss the
problem; therefore, the parties do not have the opportunity to compromise and reach a mutually
agreeable resolution themselves. This is due to the fact that the judge, magistrate or VCAT member
makes the decision instead of the parties.
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LEGAL STUDIES UNITS 3 AND 4
Question 7 (4 marks)
Explain two relationships between courts and parliament when making laws.
Sample answer:
One relationship between courts and parliament when making laws is that parliament passes
legislation to create courts and their jurisdiction. For example, the Victorian Parliament passed the
Magistrates’ Court Act 1989 (Vic.) in order for the Magistrates’ Court to be created.
Another relationship between courts and parliament when making laws is that parliament can codify
laws made by courts. Parliament can pass legislation that incorporates common law principles,
thereby drafting and enacting common law as statute law. An example of this relationship is when the
Commonwealth Parliament codified common law principles in the Mabo Case (1992) into legislation,
that is, the Native Title Act 1993 (Cwlth).
Question 8 (6 marks)
Explain what a petition is and evaluate the effectiveness of petitions as a method used by
individuals to influence a change in the law.
A petition is a formal, written request to the government for action on a particular matter, such as
changing or abolishing a law that is considered outdated or unjust. It usually has a collection of names
and signatures on it, which have been gathered from supporters of a particular issue in order to raise
awareness about it. A petition is forwarded to a local member of parliament to present at the next
sitting of parliament. A petition can also be completed online, that is, as an ‘Internet petition’ or ‘epetition’, using a collection of email addresses rather than signatures.
One strength of petitions as a method used by individuals to influence a change in the law is that they
allow people to have a say in law-making decisions. The more people who sign a petition the greater
the chance of it being successful, because the success of a petition depends on the extent of public
support for the request for change. A large number of signatures collected on a petition indicates
widespread support for a suggested change in the law and helps to attract parliament’s attention,
thereby possibly influencing a change in the law. On the other hand, a weakness of petitions as a
method of influencing a change in the law is that there is no guarantee that parliament will take any
action. Parliament may ignore the petition and not change the law at all, and, therefore, collecting the
names and signatures will have been a waste of time.
Question 9 (3 marks)
Explain the difference between a binding precedent and a persuasive precedent.
The difference between a binding precedent and a persuasive precedent is that a binding precedent
is created by higher courts and must be followed by all lower courts in the same court hierarchy. A
persuasive precedent, on the other hand, is created by lower courts, courts at the same level or
courts from another hierarchy (interstate or overseas courts), and does not have to be followed by
higher courts. Instead, the higher courts can choose to refer to this type of precedent as a guide, for
information or as an example.
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LEGAL STUDIES UNITS 3 AND 4
Question 10 (4 marks)
Evaluate two strengths of law-making by courts.
Sample answer:
One strength of law-making by courts is that judges are appointed rather than elected like politicians;
in other words, courts are not subject to the views of the community or party politics, and therefore
make decisions based on the law, rather than on the policies of a political party or the views of people
in the community. However, one weakness of judges being appointed and not elected is that their
views might not be representative of the community’s views and values.
Another strength of law-making by courts is that courts apply legislation to day-to-day cases, ruling on
cases before them and making decisions in accordance with today’s circumstances. Also, courts can
quickly change the law through their decisions about cases before them, as they are not burdened by
the lengthy parliamentary processes involved in passing a Bill through parliament. However, courts
can only act on cases before them. This is a weakness because courts must wait for a case to come
before the court and then the law-making power is restricted to the nature of the case.
Question 11 (6 marks)
Evaluate the use of juries in a criminal trial and discuss one recent or proposed reform to
enhance the effectiveness of the jury system.
Sample answer:
One strength of using juries is that the decision-making is shared among 12 people in a criminal trial
or six people in a civil trial who are unbiased (impartial) when deciding the outcome of a case, rather
than having just one judge decide the case. This is a strength because it involves more than one
person in the decision-making process, allowing for different views to be considered before a verdict
of guilty or not guilty is reached. However, a weakness of the jury system is that juries may not
actually be impartial and could bring their own personal biases or prejudices into the courtroom. Also,
the fact that juries do not have to provide reasons for their verdict is another weakness because the
parties involved in the case do not know how the jury actually reached their verdict.
Another strength of using juries is that it can be argued that jury deliberations are considered to be
‘trial by one’s peers’, that is, by ordinary people who represent a cross-section of the community. This
is a strength because potential jurors who are Australian citizens over 18 years of age are selected
randomly from a pool of people of different ages, genders, occupations, education and cultural and
social backgrounds. However, juries may not represent a true cross-section of the community
because not all people are allowed to serve on a jury. Some people are disqualified or ineligible and
therefore are not allowed to serve on a jury, while other people may be eligible but temporarily or
permanently excused for a good reason. Also, some people may be challenged by lawyers during the
empanelling process, which not only leaves fewer people actually available to serve on a jury, but
also suggests that the jury is ‘handpicked’ by lawyers.
One proposed reform to the jury system is to require juries to provide reasons for their verdict so that
the parties are aware of how the case was decided and the reason(s) behind the jury’s verdict. Juries
providing reasons for their verdict would help an accused in the case of a criminal appeal and would
help victims of crime understand why a jury did not convict in certain cases.
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LEGAL STUDIES UNITS 3 AND 4
Question 12 (6 marks)
The following scenario contains errors.
The legal counsel charged Tommy, the accused, with rape. The judge in the County Court
found that there was sufficient evidence for the case to proceed to trial. Tommy pleaded not
guilty at his trial. During the trial, evidence was presented to the court and five witnesses were
questioned. The jury found Tommy guilty of committing the crime of rape. The jury then
sentenced Tommy to 10 years imprisonment.
Identify three errors in this scenario and explain the process or procedure that should have
occurred in each instance.
Error 1: ‘The legal counsel charged Tommy with rape.’
Correction: Police charge offenders, not legal counsel. The legal counsel is responsible for preparing
and presenting their client’s case (in this situation, the accused), and questioning witnesses in court to
reveal the truth about what happened.
Error 2: ‘The judge in the County Court found that there was sufficient evidence for the case to
proceed to trial.’
Correction: A magistrate in the Magistrates’ Court (not a judge in the County Court) determines
whether there is sufficient evidence for a case to proceed to trial, in a committal hearing, which is a
criminal pre-trial procedure held in the Magistrates’ Court.
Error 3: ‘The jury then sentenced Tommy to imprisonment.’
Correction: A jury does not sentence the accused. The jury decides on the verdict of guilty or not
guilty; the judge sentences the accused by imposing an appropriate criminal sanction.
Question 13 (12 marks)
Jonathan has been charged with murder. He has pleaded not guilty and is awaiting trial.
a. Identify the court that would hear this case and describe its criminal and civil
jurisdiction.
4 marks
The court that would hear this criminal trial is the Supreme Court—Trial Division because this
court has the jurisdiction to hear most serious indictable offences like murder. The Trial Division
hears among the most serious criminal and civil cases in Victoria, including: cases of treason,
murder, attempted murder and other major criminal matters; civil cases unlimited in the amount
of money that may be claimed; civil cases involving complex legal issues; and some appeals
from the Magistrates’ Court and Victorian Civil and Administrative Tribunal (VCAT) judicial
review.
Note: Students can identify the Supreme Court without identifying the Trial Division provided
that the description of the court’s jurisdiction is correct.
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LEGAL STUDIES UNITS 3 AND 4
b. Explain one criminal pre-trial procedure that would occur before this case goes to trial.
2 marks
Note: Students need to explain only one of the following criminal pre-trial procedures: bail,
remand or committal hearings (as listed in the VCE Legal Studies Study Design, page 28).
Bail is a criminal pre-trial procedure where an accused person is released from custody into
society on the condition that the person will appear in court at a later date. It gives the accused
time to prepare their case before being heard in court. The purpose of bail is to uphold the
presumption of innocence, and also to allow the accused some time to prepare their case.
OR
Remand is a criminal pre-trial procedure that involves the holding of a person in custody while
awaiting trial or sentencing. This means that the accused is not released from custody because
the accused was either refused bail or bail was granted but the necessary payments could not
be made or a surety could not be located.
OR
A committal hearing is a criminal pre-trial procedure held in the Magistrates’ Court, where a
magistrate determines whether there is a prima facie case, that is, sufficient evidence for an
accused person to proceed to trial and gain a conviction in a higher court—either the County
Court or Supreme Court depending on the crime committed.
c. Describe one criminal sanction that would most likely be imposed on Jonathan, and
explain two of its purposes.
6 marks
Sample answer:
One criminal sanction that would most likely be imposed on Jonathan is imprisonment.
Imprisonment, also referred to as prison or jail, is the act of detaining a person found guilty of a
crime in jail for a certain period of time. It is a severe punishment given to an offender as it
takes away a person’s liberty for the period of time of the jail sentence.
One purpose of imprisonment is to protect the community from the offender as this is only
guaranteed by the removal of an offender from society through imprisonment. For the duration
of the sentence, the offender cannot be a threat to the community due to their incarceration.
Another purpose of imprisonment is to punish the offender for the crime they have committed.
Note: Other purposes students could discuss include: to deter the offender and others in
society from committing similar crimes; and to rehabilitate the offender so that they do not reoffend.
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LEGAL STUDIES UNITS 3 AND 4
Question 14 (10 marks)
‘The adversary system of trial could be improved by considering features of the inquisitorial
system.’
Discuss the extent to which you agree or disagree with this statement. In your answer,
compare three features of the adversary system with the inquisitorial system and discuss
possible reforms to the adversary system of trial.
Sample answer:
I agree with the statement that the adversary system of trial can be improved by considering features
of the inquisitorial system. However, I think on balance that the adversary system of trial is a better
system than the inquisitorial system of trial.
One feature of the adversary system of trial is the role of the parties. The parties are responsible for
preparing and presenting their case. In an inquisitorial trial, the role of the parties is different as the
parties respond to the court’s directions when presenting arguments in their case.
A second feature of the adversary system of trial is the role of the judge. The judge does not have a
very active role in the adversary system of trial. The judge is impartial and oversees court
proceedings without favouring either party, ensuring that strict rules of evidence and procedure are
followed in the courtroom. The judge in this type of trial system decides questions of law, only asks
questions to clarify issues, directs the jury (if empanelled), sentencing an accused person who has
either pleaded guilty or been found guilty of committing a crime by imposing a criminal sanction or
deciding on a civil remedy in civil cases without a jury. In comparison, in the inquisitorial system of
trial the judge has a more active role in the examination of a case and is involved in investigating the
facts, determining which evidence is presented, questioning both the parties involved and the
witnesses, applying the law to the facts, and deciding on the outcome of the case.
A third feature of the adversary system of trial is the need for legal representation. Lawyers represent
their client by preparing and presenting their client’s case and questioning witnesses under oath in
court. Legal representation is necessary because lawyers are experts in articulating legal arguments,
presenting evidence and asking witnesses relevant questions to present the best possible case on
behalf of their client. Legal representatives also know and understand the strict rules of evidence and
procedure required to be followed in court. In comparison, in the inquisitorial system legal
representatives assist the judge to identify the issues for investigation and in determining the truth.
Sometimes legal representatives ask witnesses questions, but only after the judge completes their
questioning.
A reform is a change or improvement that could be made to the current adversary system to improve
it. One reform that could be made to improve the adversary system of trial is to increase the role of
judges so they have a more active role, similar to the inquisitorial system where the judge is much
more involved in the collection of evidence prior to the trial and in the questioning of witnesses during
a trial. This would also allow judges to bring more of their legal experience, expertise, knowledge and
skills to a trial. This would improve the adversary system of trial by preventing time-wasting and overelaboration in the presentation of evidence by the parties’ legal counsel and increase the efficiency of
civil and criminal trials. An expanded role in pre-trial proceedings in civil cases might assist parties to
resolve disputes and reach a settlement, thus leading to a more efficient court system. On the other
hand, it can be argued that it is best to preserve the neutrality of the judge as justice is more important
than truth.
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LEGAL STUDIES UNITS 3 AND 4
Another reform that could be made to improve the adversary system of trial is to simplify the strict
rules of evidence and procedure, similar to the inquisitorial system of trial. Possible changes include:
allowing more written evidence rather than mainly verbal evidence; allowing witnesses to give
evidence in their own words and not just answer lawyers’ questions; and imposing time limits on how
long witnesses are questioned in court. This reform would help juries to understand evidence, shorten
trials and reduce delays. On the other hand, it can be argued that strict rules of evidence are
necessary for the appropriate functioning of the adversary system of trial and lead to a fairer outcome
as unreliable and inadmissable evidence, such as hearsay, cannot be presented.
Even though the adversary system of trial could be improved by including features of the inquisitorial
system, it is still a more effective system of trial and should be retained. It is a fairer system because
in criminal trials defendants are judged by their peers, there are strict rules of evidence (so that
unreliable or inadmissable evidence is not allowed), and it allows less room for judges representing
the state to be biased against the defendant. It also gives the parties ample opportunity to uncover the
truth as the parties can scrutinise the evidence presented. However, if judges were more involved
prior to trials, the parties in an adversary trial would not have to rely as much on representation and
this would save a lot of money and court time. While the inquisitorial system may be more efficient in
some ways, as judges in inquisitorial trials collect and investigate the evidence in a case and question
witnesses in a search for truth rather than it being a ‘contest’ between the parties to the case, the
adversary system is more likely to lead to just outcomes because of strict rules of evidence and the
impartiality of the judge.
Note: Other features that students can compare are the need for rules of evidence and procedure,
and the standard and burden of proof.
Possible reforms, rather than actual reforms, must be outlined. The question requires students to
‘discuss’ possible reforms. Therefore, in addition to outlining the reform, students must also explain
how the reform will lead to an improvement in the adversary system by examining all sides of the
issue.
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