Legal Studies Stage 2

1. Legal StudiesStage 2 Student Evening September 2012

2. Short Response Questions General Guide Preparation Success in unseen examinations is only possible if a student conducts a structured 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 NOTREAD the question and, therefore, interpret it correctly.

3. Short Response Questions General Guide Applying the rules It is pointless reading and interpreting a question correctly, if a student subsequently does not apply the rules correctly Example A student states that a Regulation is assented or a Regulation can be amended by Parliament. 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 or cartoon. Stimuli are usually fictitious so students must use their common sense when applying the theory to meet the demands of the question.

4. Short Response Questions 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

5. How good is your legal spelling? Which words are spelt correctly?

6. 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

7. How good is your spelling? Parliament Parliment seperation of powers separation of powers appelant appellant admissable admissible hierarchy hierachy agreement agreeance No such word!

8. Legal Education Teachers Association of SA L•E•T•A•S•A Short response questions Some illustrations

9. Australian parliamentary process Question 1 Why was Ms Gillard able to become Prime Minister of Australia after the 2010 federal 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

10. Australian parliamentary process Briefly explain how the following concepts are implied in the text (i) REPRESENTATIVE GOVERNMENT COMMENT Read 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

11. Australian parliamentary process Briefly explain how the following concepts are implied in the text (ii) RULE OF LAW COMMENT Read 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

12. Australian parliamentary process (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? NOTE It is inadequate to simply state – “it is a constitutional dispute”, as it doesn’t explain WHY they are 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.

13. Australian parliamentary process (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 alternatively The decision swung the balance of the division of powers in favour of the Cwlth.

14. Australian parliamentary process (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.

15. 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 indicating they did not read the question correctly.

16. Australian Road Rule 300 • Question 2 • How has the South Australian Parliament directed courts to • interpret codified laws. NOTE This 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 GUIDANCE All Acts (that will eventually be interpreted) include Object Statements and/or Definition Sections, to outline the intention of the Act and/or to define key concepts. EXTERNAL GUIDANCE Every Australian parliament has passed an Acts (or Statutory) Interpretation Act outlining the general rules of interpretation courts must adopt.

17. Australian Road Rule 300 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 An “authority” is a name used by the legal profession for a precedent. 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.

18. Australian Road Rule 300 Question 2 (g) What can the SA Parliament do if it disagrees with the court decision in Tyriak’s case? NOTE While the SA Parliament has the sovereign power to override the actual decision of the court, by convention it never does this to respect the principle of judicial independence. Possible answers  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.

19. Australian Road Rule 300 (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/she could arrange for the statutory authority to amend the Rule, and have a new ARR 300 proclaimed. This is what actually happened.

20. Australian Road Rule 300 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 of road traffic law regarding the use of mobile phones in vehicles.

21. Australian Road Rule 300 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

22. Australian Road Rule 300 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 300 A 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 impairs driving, Mr Tyriak has a hearing disability and requires his hearing aid to enable him to 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 2005where 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.

23. Australian Road Rule 300 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 lawsin 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 NOTE A 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.

24. Can you identify this person? Australia’s first Governor-General, Lord Hopetoun

25. Can you identify this person? Australia’s Governor-General, Sir John Kerr, who dismissed Prime Minister Gough Whitlam in 1975

26. Can you identify this person? Chris Karoukis, Chief Justice of the South Australian Supreme Court

27. Can you identify this person? Adam Kimber, Director of Public Prosecutions

28. Can you identify this person? First Premier of South Australia, Boyle Travers Finniss

29. Can you identify this person? Ivan Milat Convicted serial murderer

30. Can you identify the following people? Nine Justices of the United States Supreme Court

31. Can you identify this person? Robert French Chief Justice of the High Court

32. What is this? The black hole into which Port Power has fallen.

33. Short Response Questions That’s all folks!