VCE Legal Studies - Extended Response Mastery Thread

[Glasses]

Hi all,

So as a number of you may be aware, the ATARNotes English Sub-forum has a "Language Analysis Club", where sample language analysis tasks are posted by Lauren and Heidi on a weekly basis; and with AN members going over one another's practice essays, based on that week's language analysis task.

With this in mind, I thought we could try something similar here, under the Legal Sub-forum. It would obviously depend on member participation, so if it doesn't really work, or if you guys aren't interested, I'll unsticky the topic and we'll never speak of it again. But if it does work, it could potentially be an awesome way of maximising extended response abilities.

So, I thought it might work as follows:

- Every 7-14 days, I'll post an extended response question (out of 10 marks).
- Members can post sample responses (with spoilers hopefully) to said weekly question.
- Other legal forum members (hopefully those who post sample responses) will look over, comment on and correct those of others.
- Then, to replicate the exam as much as possible, we could look at 'globally marking' each week's responses, to see whose is the best. Then we could use that response as a sample answer to that week's question, which members can look over (which I'd add to the heading/this post, with a spoiler to avoid clogging up the thread).
- And we could even have a member/participant leaderboard for 'best extended responses', if you are interested and to keep things fun, with a little healthy competition?

I'll try to get this started (at least as a trial) in the next couple of days, but if you have any suggestions or comments you'd like to share, please feel free to do so!

Round 1 (5 August, 2016 to 25 August, 2016)

QUESTION:
A legal reporter once wrote, “Unlike Members of Parliament, Judges lack the expertise to create law. Additionally, Judges cannot create law in an objective manner, and with the views of the majority of the community reflected."

Evaluate the above statement, and justify which body, Parliament or the courts, you believe is better equipped to create law. (10 marks).

ANSWER:
(Courtesy of HopefulLawStudent (HLS))
The legal reporter’s statements are only partially correct. While it is not the role of judges to create law, they do, to some extent, have the expertise and objectivity needed to create law. However, to a large extent, the legal reporter’s insistence that judges cannot create law that reflects the views of the community is correct.

To some extent, judges lack the expertise needed to create law. This is because their primary function within the legal system is to resolve disputes that may arise from a law established by parliament. As such, in theory, they should not need to or be experienced in creating the law. In practice, however, this is not the case. In reality, judges may be required to create case law in instances wherein there is no existing statute or binding precedent. In such instances, judges are required to use their intimate knowledge of the legal system to create law. Therefore, while judges may not have the expertise that would be required to create statute law, they do have the expertise and the ability to create case law.

Similarly, judges can create law in an objective manner only to some extent. By definition, a judge is an impartial and independent third party. As such, whatever judgement they reach and whatever case law they may establish as a result is in theory objective. Their objectivity as a lawmaker is, however, undermined by the fact that they are ultimately creating law through the case that they are presiding over. As such, any precedent that they may develop will ultimately be more specific to that case as opposed to if parliament had been creating a law as parliament has the freedom to legislate on an entire topic; as such, statutes will typically be more general and objective than precedents.

To a large extent, judges cannot be expected to create law that reflects the views of the majority of the community. This is because they are ultimately not subject to the same level of public scrutiny as a parliamentarian would be. Parliamentarians are obliged to ensure the laws they create adhere to the views of the community because they may expect to maintain their seat in parliament only so long as they do so. No such obligation exists for judges and as such, they are less inclined to be concerned with or be guided by the views of the majority of the community. This does not however mean that they are completely removed from the community; judges are also a part of the community and as such, it is possible that their views will align with the community, leading to the creation of laws that align with the views of the majority when such opportunities should arise. There is, however, no such guarantee that this will be the case and therefore, to a large extent, judges cannot be expected to create law that reflects the views of the broader community.

Ultimately, Parliament is better equipped to create law than the Courts. Unlike the courts, Parliament can legislate on an entire issue whereas courts can only create case law on a case by case basis and even then, courts can only create law when there is no existing statute or binding precedent. As a result, it is typically faster to legislate on an issue through Parliament than through the Courts. In addition to this, parliament has the ability to create laws in futuro, anticipating the future legislative needs of their constituents. However, it is not entirely without its faults as a law maker. The principle of representative government underpinning the Australian legal system means that means that parliamentarians are very conscious of their voters. As a consequence, they may avoid making laws in contentious or controversial areas irrespective of how much of a demand there is for such laws. No such restriction exists for judges who are not subject to the same level of public scrutiny and have no obligation to seek the approval of constituents prior to making law. Ultimately, while parliament as a law maker is not without its flaws, it is comparatively better equipped than the courts to create law.

Round 2 (3 September, 2016 to 18 September, 2016)

QUESTION:
"Senator Pauline Hanson has called for the abolition of the express right relating to religion, as outlined in the Commonwealth Constitution."

Evaluate two ways in which the Commonwealth Constitution protects the rights of Australians. In your response, explain one way that an express right outlined in the Constitution can be changed or abolished. (10 marks).

ANSWER:

Moderator Action: Routinely update.

[Glasses]

Round 1 (5 August 2016 to 25 August 2016)

Let's see how this goes!!

This round's extended response question is:

A legal reporter once wrote, “Unlike Members of Parliament, Judges lack the expertise to create law. Additionally, Judges cannot create law in an objective manner, and with the views of the majority of the community reflected."

Evaluate the above statement, and justify which body, Parliament or the courts, you believe is better equipped to create law. (10 marks).

Please feel free to join in - regardless of skill or ability! Everyone is welcome!!
(Also, can you guys please use a spoiler when posting your responses - if you're unsure how to do this, let me know and I'll do it for you)

NOTE: I've extended the cut-off date, so please feel free to join in!!!

[meganrobyn]

I won't post an answer (duh), but I know I've got my marking scheme already worked out!

[HopefulLawStudent]

Is this still a thing? I'd love to participate but I didn't see this til now cos I'm not as active as I was...

[meganrobyn]

Is this still a thing? I'd love to participate but I didn't see this til now cos I'm not as active as I was...

It's absolutely a thing! I think it's just getting off the ground, though.

Since no-one answered the first question, how about we keep it for another week? Post an answer if you like It should be the same rough number of words you could write by hand in 20-25mins.

[Glasses]

It's absolutely a thing! I think it's just getting off the ground, though.

Since no-one answered the first question, how about we keep it for another week? Post an answer if you like It should be the same rough number of words you could write by hand in 20-25mins.

Sounds like an awesome idea, thanks MeganRobyn!!!!!!
Kept till the 25th

Seriously, anyone who feels a bit reluctant to join in or whatever, please do so!!

[ish708]

Here's my response. Went over time though. I love this idea, it'd great to improve 10 markers. Thank in advance

Spoiler

Contrary to this legal reporters beliefs judges do have the expertise to create law. Judge’s make laws through the precedents set in their cases. This is referred to as common law. Judge’s spent a large majority of time applying the law in the courts and therefore do have the expertise to create laws.

Courts act as reliable law maker as they are independent. Judge’s are appointed they are not elected by the people and therefore are free from political pressure. This allows the judges to do what is right, rather than what is popular. This is evident in the Mabo decision in which the High Court recognised the concept of native title and that terra nullius did not apply. Due to the fact that the judge’s don’t need to please the people and stand for re-election their decisions can reflect the law and legal principles rather than the populist view. The role of the judge is to interpret and apply the law fairly, not represent the people and using their extensive expertise are able to create common law in an objective manner.
However this is also undemocratic. When parliament creates a law they are utilising the authority given to them by their electorates. This makes a representative government. Judges are not elected by the people and therefore do not need to represent the people in their decisions. Anyone affected by common law have no way of challenging the decision. Judge’s do not need to represent the interests, values and expectations of the people and are not answerable to the people therefore laws made may not reflect the publics views.
Whilst judge’s ways of making law may at times be undemocratic, I believe that their vast expertise and objective position are well equipped to create law.

Judge’s provide consistency and fairness in the courts. When solving disputes courts rely upon the doctrine of precent to aid them. The doctrine of precedent states that inferior courts must follow the decisions of superior courts in their jurisdiction where the facts are materially similar. This applies consistency to all cases where the material facts are alike as the cases are treated alike. This also provides certainty to those in court and helps to ensure that all people are treated fairly and equally before the law. Therefore these supposedly ‘incompetent’ judges do not always need to call upon their expertise when ruling on a case allowing them to remain objective.
Courts can be conservative in their decisions which may not appease the majority of the community. This is because law-making is not their primary role, solving disputes is. Therefore some judges may be reluctant to distinguish or overrule current precedents and create new laws. This conservative decision can be seen in Searle v Wallbank where both the Victorian Supreme Court and High Court where unwilling to overrule an outdated precedent. Courts also do not have a scope for public input. The parliament has access to law reform bodies to investigate particular areas of law requiring change. Judge’s do not have access to any of these bodies and must deliberate cases themselves. They can only rely on information presented at court by the parties. Therefore courts law-making powers are limited because judge’s are not privy to the consultation that parliament has, making parliament better equiped to create law.
Whilst the courts do allow for consistency and fairness in all cases due to the doctrine of precedent, their lack of scope for input can disadvantage them making parliament better equiped for law-making.

Courts do have the ability to provide flexibility in cases. The doctrine of precedent not not require judges to follow every precedent ever set. Judges have the ability to distinguish, reverse, over-rule and disapprove precedents. Distinguishing allows the judges to determine that the facts of the case are not materially similar and therefore the precedent is persuasive not binding and the judge does not need to follow it, this creates a new precedent but the old one remains. Reversing is when a judge hears a case on appeal and decides not to follow the previous precedent, which removes the precedent and creates a new one. Overruling a precedent is when a judge of a higher court does not follow a decision of a lower court in a separate case, this creates a new precedent and removes the other. Disapproving a precedent is when a judge on the same level does not follow a previous decision and makes a different ruling, this creates a new precedent and allows the other to remain. This allows the courts a degree of flexibility when making decision and ensures the law does not remain old and inappropriate.
Whilst judges do have some flexibility it can be argued the doctrine of precedent is too restrictive. Forcing inferior courts to apply precedents set by superior courts, regardless of whether or not the judge agrees with the precedent. While this promotes consistency and certainty, it costs flexibility. Parliament however has the ability to abrogate decisions made by courts. This overrides the precedent. Further courts do not then have to follow the precedent.
Whilst courts have the ability to be flexible, courts are still restricted by the doctrine. Parliaments ability to abrogate common law therefore makes them much more equipped to create laws.

Judges have a wide expertise when it comes to the law, both applying and creating it. Judge’s do create laws in an objective manner as they act as an unbiased, third-party in disputes. Decisions made by judges by no means need to reflect the communities views as they do not represent us. This is the opposite of Parliament where they represent the voters interest, values and expectations. Parliaments access to input through separate bodies and ability to abrogate laws however makes them better equipped to create laws in my opinion.

[meganrobyn]

Here's my response. Went over time though. I love this idea, it'd great to improve 10 markers. Thank in advance

Firstly, well done on covering all parts of the question; many people would miss bits out.

Spoiler

Contrary to this legal reporters beliefs judges do have the expertise to create law. Judge’s It's not as important for Legal, but no apostrophe in a plural - "judges" - and you do this a few times make laws through the precedents set in their cases. This is referred to as common law. Judge’s spent a large majority of time applying the law in the courts and therefore do have the expertise to create laws. Good response to the first part of the question - could be dealt with a little more thoroughly, but at least you've ticked the box.

Courts act as reliable law maker as they are independent. Judge’s are appointed they are not elected by the people and therefore are free from political pressure. This allows the judges to do what is right, rather than what is popular. This is evident in the Mabo decision in which the High Court recognised the concept of native title and that terra nullius did not apply. Due to the fact that the judge’s don’t need to please the people and stand for re-election their decisions can reflect the law and legal principles rather than the populist view. The role of the judge is to interpret and apply the law fairly, not represent the people and using their extensive expertise are able to create common law in an objective manner. I like this level of explanation, and good use of eg.
However this is also undemocratic. When parliament creates a law they are utilising the authority given to them by their electorates. This makes a representative government. Judges are not elected by the people and therefore do not need to represent the people in their decisions. Anyone affected by common law have no way of challenging the decision. Not true. What about test cases? Seeking standing for a challenge? Even just public comment? Or lobbying parliament to abrogate? Judge’s do not need to represent the interests, values and expectations of the people and are not answerable to the people therefore laws made may not reflect the publics views. The second part of this para was dealt with too peremptorily.
Whilst judge’s ways of making law may at times be undemocratic, I believe that their vast expertise and objective position are well equipped to create law. Feels like you didn't do enough to support this conclusion.

Judge’s provide consistency and fairness in the courts. Be more clear about how this relates to the question. When solving disputes courts rely upon the doctrine of precent to aid them. The doctrine of precedent states that inferior courts must follow the decisions of superior courts in their jurisdiction where the facts are materially similar. This applies consistency to all cases where the material facts are alike as the cases are treated alike. This also provides certainty to those in court and helps to ensure that all people are treated fairly and equally before the law. Therefore these supposedly ‘incompetent’ judges do not always need to call upon their expertise when ruling on a case allowing them to remain objective. Good to link it all to a relevant point.
Courts can be conservative in their decisions which may not appease the majority of the community. This is because law-making is not their primary role, solving disputes is. Therefore some judges may be reluctant to distinguish or overrule current precedents and create new laws. This conservative decision can be seen in Searle v Wallbank where both the Victorian Supreme Court and High Court where unwilling to overrule an outdated precedent. Courts also do not have a scope for public input. The parliament has access to law reform bodies to investigate particular areas of law requiring change. Judge’s do not have access to any of these bodies and must deliberate cases themselves. They can only rely on information presented at court by the parties. Therefore courts law-making powers are limited because judge’s are not privy to the consultation that parliament has, making parliament better equiped to create law. Two good arguments in this para; not 100% sure how they relate at this stage, but they're both good.
Whilst the courts do allow for consistency and fairness in all cases due to the doctrine of precedent, their lack of scope for input can disadvantage them making parliament better equiped for law-making.

Courts do have the ability to provide flexibility in cases. The doctrine of precedent not not require judges to follow every precedent ever set. Judges have the ability to distinguish, reverse, over-rule and disapprove precedents. Distinguishing allows the judges to determine that the facts of the case are not materially similar and therefore the precedent is persuasive not binding and the judge does not need to follow it, this creates a new precedent but the old one remains. Reversing is when a judge hears a case on appeal and decides not to follow the previous precedent, which removes the precedent and creates a new one. Overruling a precedent is when a judge of a higher court does not follow a decision of a lower court in a separate case, this creates a new precedent and removes the other. Disapproving a precedent is when a judge on the same level does not follow a previous decision and makes a different ruling, this creates a new precedent and allows the other to remain. Technically, disapproving is criticising and can be done by any court - THEN courts at the same level or higher can choose to depart. But disapproving by itself doesn't change anything. This allows the courts a degree of flexibility when making decision and ensures the law does not remain old and inappropriate. Never ever just go through a list of RODD - so many teachers hate it.
Whilst judges do have some flexibility it can be argued the doctrine of precedent is too restrictive. Forcing inferior courts to apply precedents set by superior courts, regardless of whether or not the judge agrees with the precedent. While this promotes consistency and certainty, it costs flexibility. Parliament however has the ability to abrogate decisions made by courts. This overrides the precedent. Further courts do not then have to follow the precedent. This is turning into a bit of a list of short statements rather than a discussion.
Whilst courts have the ability to be flexible, courts are still restricted by the doctrine. Parliaments ability to abrogate common law therefore makes them much more equipped to create laws.

Judges have a wide expertise when it comes to the law, both applying and creating it. Judge’s do create laws in an objective manner as they act as an unbiased, third-party in disputes. Decisions made by judges by no means need to reflect the communities views as they do not represent us. This is the opposite of Parliament where they represent the voters interest, values and expectations. Parliaments access to input through separate bodies and ability to abrogate laws however makes them better equipped to create laws in my opinion. For me, this conclusion is too long and too repetitive (of content already covered).

Overall, a good number of points and you covered all parts of the question. Some good examples. Some points could receive more attention/detail, and I think the answer could hang together a little more smoothly. 8/10 for me - well done.

[ish708]

Thank you!

[HopefulLawStudent]

Love this idea so much. Hopefully we can get this thing off the ground.

My contribution. Feedback would be très appréciée. Hopefully my answer is much better than my French.

Spoiler

QUESTION: A legal reporter once wrote, “Unlike Members of Parliament, Judges lack the expertise to create law. Additionally, Judges cannot create law in an objective manner, and with the views of the majority of the community reflected."

Evaluate the above statement, and justify which body, Parliament or the courts, you believe is better equipped to create law. (10 marks)

The legal reporter’s statements are only partially correct. While it is not the role of judges to create law, they do, to some extent, have the expertise and objectivity needed to create law. However, to a large extent, the legal reporter’s insistence that judges cannot create law that reflects the views of the community is correct.

To some extent, judges lack the expertise needed to create law. This is because their primary function within the legal system is to resolve disputes that may arise from a law established by parliament. As such, in theory, they should not need to or be experienced in creating the law. In practice, however, this is not the case. In reality, judges may be required to create case law in instances wherein there is no existing statute or binding precedent. In such instances, judges are required to use their intimate knowledge of the legal system to create law. Therefore, while judges may not have the expertise that would be required to create statute law, they do have the expertise and the ability to create case law.

Similarly, judges can create law in an objective manner only to some extent. By definition, a judge is an impartial and independent third party. As such, whatever judgement they reach and whatever case law they may establish as a result is in theory objective. Their objectivity as a lawmaker is, however, undermined by the fact that they are ultimately creating law through the case that they are presiding over. As such, any precedent that they may develop will ultimately be more specific to that case as opposed to if parliament had been creating a law as parliament has the freedom to legislate on an entire topic; as such, statutes will typically be more general and objective than precedents.

To a large extent, judges cannot be expected to create law that reflects the views of the majority of the community. This is because they are ultimately not subject to the same level of public scrutiny as a parliamentarian would be. Parliamentarians are obliged to ensure the laws they create adhere to the views of the community because they may expect to maintain their seat in parliament only so long as they do so. No such obligation exists for judges and as such, they are less inclined to be concerned with or be guided by the views of the majority of the community. This does not however mean that they are completely removed from the community; judges are also a part of the community and as such, it is possible that their views will align with the community, leading to the creation of laws that align with the views of the majority when such opportunities should arise. There is, however, no such guarantee that this will be the case and therefore, to a large extent, judges cannot be expected to create law that reflects the views of the broader community.

Ultimately, Parliament is better equipped to create law than the Courts. Unlike the courts, Parliament can legislate on an entire issue whereas courts can only create case law on a case by case basis and even then, courts can only create law when there is no existing statute or binding precedent. As a result, it is typically faster to legislate on an issue through Parliament than through the Courts. In addition to this, parliament has the ability to create laws in futuro, anticipating the future legislative needs of their constituents. However, it is not entirely without its faults as a law maker. The principle of representative government underpinning the Australian legal system means that means that parliamentarians are very conscious of their voters. As a consequence, they may avoid making laws in contentious or controversial areas irrespective of how much of a demand there is for such laws. No such restriction exists for judges who are not subject to the same level of public scrutiny and have no obligation to seek the approval of constituents prior to making law. Ultimately, while parliament as a law maker is not without its flaws, it is comparatively better equipped than the courts to create law.

[Glasses]

Love this idea so much. Hopefully we can get this thing off the ground.

My contribution. Feedback would be très appréciée. Hopefully my answer is much better than my French.

Spoiler

QUESTION: A legal reporter once wrote, “Unlike Members of Parliament, Judges lack the expertise to create law. Additionally, Judges cannot create law in an objective manner, and with the views of the majority of the community reflected."

Evaluate the above statement, and justify which body, Parliament or the courts, you believe is better equipped to create law. (10 marks)

The legal reporter’s statements are only partially correct. While it is not the role of judges to create law, they do, to some extent, have the expertise and objectivity needed to create law. However, to a large extent, the legal reporter’s insistence that judges cannot create law that reflects the views of the community is correct.

To some extent, judges lack the expertise needed to create law. This is because their primary function within the legal system is to resolve disputes that may arise from a law established by parliament. As such, in theory, they should not need to or be experienced in creating the law. In practice, however, this is not the case. In reality, judges may be required to create case law in instances wherein there is no existing statute or binding precedent. In such instances, judges are required to use their intimate knowledge of the legal system to create law. Therefore, while judges may not have the expertise that would be required to create statute law, they do have the expertise and the ability to create case law.

Similarly, judges can create law in an objective manner only to some extent. By definition, a judge is an impartial and independent third party. As such, whatever judgement they reach and whatever case law they may establish as a result is in theory objective. Their objectivity as a lawmaker is, however, undermined by the fact that they are ultimately creating law through the case that they are presiding over. As such, any precedent that they may develop will ultimately be more specific to that case as opposed to if parliament had been creating a law as parliament has the freedom to legislate on an entire topic; as such, statutes will typically be more general and objective than precedents.

To a large extent, judges cannot be expected to create law that reflects the views of the majority of the community. This is because they are ultimately not subject to the same level of public scrutiny as a parliamentarian would be. Parliamentarians are obliged to ensure the laws they create adhere to the views of the community because they may expect to maintain their seat in parliament only so long as they do so. No such obligation exists for judges and as such, they are less inclined to be concerned with or be guided by the views of the majority of the community. This does not however mean that they are completely removed from the community; judges are also a part of the community and as such, it is possible that their views will align with the community, leading to the creation of laws that align with the views of the majority when such opportunities should arise. There is, however, no such guarantee that this will be the case and therefore, to a large extent, judges cannot be expected to create law that reflects the views of the broader community.

Ultimately, Parliament is better equipped to create law than the Courts. Unlike the courts, Parliament can legislate on an entire issue whereas courts can only create case law on a case by case basis and even then, courts can only create law when there is no existing statute or binding precedent. As a result, it is typically faster to legislate on an issue through Parliament than through the Courts. In addition to this, parliament has the ability to create laws in futuro, anticipating the future legislative needs of their constituents. However, it is not entirely without its faults as a law maker. The principle of representative government underpinning the Australian legal system means that means that parliamentarians are very conscious of their voters. As a consequence, they may avoid making laws in contentious or controversial areas irrespective of how much of a demand there is for such laws. No such restriction exists for judges who are not subject to the same level of public scrutiny and have no obligation to seek the approval of constituents prior to making law. Ultimately, while parliament as a law maker is not without its flaws, it is comparatively better equipped than the courts to create law.

Feedback

For obvious reasons (i.e. - I'm in year 12/not MeganRobyn) I'm not an expert on 10-markers, but here's just a bit of feedback which I hope will be of some value:
- Firstly, I think this is a really, really good extended response.
- I particularly noticed and liked the fact that you mentioned some things which I hadn't even thought of - such as the fact that judge-made law isn't greatly objective, because it stems from the specific case before the court.
- I liked the fact that you used key terms and phrases such as 'statute law' and 'case law.'
- I also really liked the fact that you identified what the key functions of the courts and parliament; but on that note, it might have even been worth mentioning that this is due to the separation of powers (therefore you're coming back to the elements of an effective legal system and that key terminology, which I believe really accentuates your understanding of the content) [although this isn't entirely necessary, but may be advantageous].
- It might have also been worth coming back to the legal reporter's comments in the conclusion (and even briefly mentioning the comments where relevant in your body paragraphs), just because (I think) examiner's like it when students come back to the question material (but without restricting every comment to said material) - so I guess it's about finding a balance
- Lastly, it might have been helpful to have one more point (advantage/disadvantage), maybe about something that isn't specified in the actual question (such as the fact that parliament has access to resources and bodies such as the VLRC, unlike the courts) - therefore you show that you're able to go beyond the scope of the strengths/weaknesses identified in question, and really have a sound knowledge of the information.

All in all, I think this is definitely a higher-end response (maybe a 8.5-9/10?), and I don't believe there is anything you wrote that is 'wrong', but more so, that there are some things which could've been added to strengthen your response, and make yours stand out from other students.

[ish708]

Are we continuing this?

[Glasses]

Are we continuing this?

Yes absolutely - I've been rather busy over the past few days, so I haven't had a chance to write and post a question, but I'll get one out as soon as I can

[Glasses]

Round 2 (3 September 2016 to 18 September 2016)

This round's extended response question is:

"Senator Pauline Hanson has called for the abolition of the express right relating to religion, as outlined in the Commonwealth Constitution."

Evaluate two ways in which the Commonwealth Constitution protects the rights of Australians. In your response, explain one way that an express right outlined in the Constitution can be changed or abolished. (10 marks).

Once again, everyone is welcome to join in - regardless of skill or ability!
(Also, can you guys please use a spoiler when posting your responses - if you're unsure how to do this, let me know and I'll do it for you)