qce legal studies units 3 and 4 - sciencepress

QCE LEGAL STUDIES UNITS 3 AND 4

• Mohan Dhall • • Mohan Dhall •

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of Science Press. ABN 98 000 073 861

© Science Press 2020First published 2020

Science PressUnit 7, 23-31 Bowden StreetAlexandria NSW 2015 AustraliaTel: +61 2 9020 1840 Fax: +61 2 9020 [email protected]

Contents

Words to Watch iv

Introduction v

Dot Points

Unit 3 Law, Governance and Change vi

Unit 4 Human Rights In Legal Contexts viii

Questions

Unit 3 Law, Governance and Change 1

Unit 4 Human Rights In Legal Contexts 113

Answers

Unit 3 Law, Governance and Change 210

Unit 4 Human Rights In Legal Contexts 237

Appendix

Index 258

iii Contents

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Dot Point QCE Legal Studies Units 3 and 4

account, account for State reasons for, report on,

give an account of, narrate a series of events or

transactions.

analyse Interpret data to reach conclusions.

annotate Add brief notes to a diagram or graph.

apply Put to use in a particular situation.

assess Make a judgement about the value of

something.

calculate Find a numerical answer.

clarify Make clear or plain.

classify Arrange into classes, groups or categories.

comment Give a judgement based on a given

statement or result of a calculation.

compare Estimate, measure or note how things are

similar or different.

construct Represent or develop in graphical form.

contrast Show how things are different or opposite.

create Originate or bring into existence.

deduce Reach a conclusion from given information.

define Give the precise meaning of a word, phrase or

physical quantity.

demonstrate Show by example.

derive Manipulate a mathematical relationship(s) to

give a new equation or relationship.

describe Give a detailed account.

design Produce a plan, simulation or model.

determine Find the only possible answer.

discuss Talk or write about a topic, taking into account

different issues or ideas.

distinguish Give differences between two or more

different items.

draw Represent by means of pencil lines.

estimate Find an approximate value for an unknown

quantity.

evaluate Assess the implications and limitations.

examine Inquire into.

explain Make something clear or easy to understand.

extract Choose relevant and/or appropriate details.

extrapolate Infer from what is known.

hypothesise Suggest an explanation for a group of facts or phenomena.

identify Recognise and name.

interpret Draw meaning from.

investigate Plan, inquire into and draw conclusions about.

justify Support an argument or conclusion.

label Add labels to a diagram.

list Give a sequence of names or other brief answers.

measure Find a value for a quantity.

outline Give a brief account or summary.

plan Use strategies to develop a series of steps or processes.

predict Give an expected result.

propose Put forward a plan or suggestion for consideration or action.

recall Present remembered ideas, facts or experiences.

relate Tell or report about happenings, events or circumstances.

represent Use words, images or symbols to convey meaning.

select Choose in preference to another or others.

sequence Arrange in order.

show Give the steps in a calculation or derivation.

sketch Make a quick, rough drawing of something.

solve Work out the answer to a problem.

state Give a specific name, value or other brief answer.

suggest Put forward an idea for consideration.

summarise Give a brief statement of the main points.

synthesise Combine various elements to make a whole.

Words to Watch

ivWords to Watch

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What the book includes

This book provides questions and answers for each dot point in the Queensland Certificate of Education syllabus for the Year 12 Legal Studies course:

Unit 3 Law, Governance and Change

• Topic 1 Governance In Australia

• Topic 2 Law Reform Within a Dynamic Society

Unit 4 Human Rights In Legal Contexts

• Topic 1 Human Rights

• Topic 2 The Effectiveness Of International Law

• Topic 3 Human Rights In Australian Contexts

Format of the book

The book has been formatted in the following way:

1.1 Subtopic from syllabus.

1.1.1 Assessment statement from syllabus.

1.1.1.1 First question for this assessment statement.

1.1.1.2 Second question for this assessment statement.

The number of lines provided for each answer gives an indication of how many marks the question might be worth in an examination. As a rough rule, every two lines of answer might be worth 1 mark.

How to use the book

Completing all questions will provide you with a summary of all the work you need to know from the syllabus. You may have done work in addition to this with your teacher as extension work. Obviously this is not covered, but you may need to know this additional work for your school exams.

When working through the questions, write the answers you have to look up in a different colour to those you know without having to research the work. This will provide you with a quick reference for work needing further revision.

Introduction

v Introduction

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Topic 1 Governance In Australia

3.1 Governance in Australia 5

3.1.1 Key features of the Australian 5 Constitution.

3.1.2 Role of section 51 of the Australian 16 Constitution, and residual powers with reference to current and/or landmark cases.

3.1.3 Describe the structure and function 17 of the three levels of government in Australia.

3.1.4 Concepts of representative and 26 responsible government.

3.1.5 Accountability of parliament and 29 the rule of law.

3.1.6 Explain the role of the Crown 31 (Governor General, state governors and territory administrators), and the upper and lower houses of parliament.

3.1.7 Differing legislative powers of 34 federal and state parliaments under the constitution.

3.1.8 Implications of a unicameral 35 parliament, implications of a single majority, double majority and minority governments.

3.1.9 Function of parliament as a 37 law-making body and the legislative process.

3.1.10 Analyse the strengths and 42 weaknesses of parliament as a law-making body.

3.1.11 Describe the relationship between 43 legislation and case law.

3.1.12 Describe the relationship of 44 specialist courts and tribunals with state and federal jurisdictions.

3.1.13 The role of courts in law making 62 through the interpretation of statutes and the development of legal principles by application of the doctrine of precedent.

3.1.14 The role of landmark court 64 decisions in influencing legal change or law reform.

3.1.15 The ability of the Australian legal 65 system to achieve just and equitable outcomes in a range of real life situations.

3.1.16 Accountability of government. 69

Topic 2 Law Reform Within a Dynamic Society

3.2 Law reform within a dynamic society 74

3.2.1 Describe key terms using legal 74 terminology.

3.2.2 Describe why laws and related 75 processes may require change because of society’s changing values, needs, morality and ethics.

3.2.3 The influence of lobby and 80 advocacy groups and the media.

3.2.4 Patterns of crimes and civil offences. 83

3.2.5 Technological advances and the 91 changing nature of criminal activity.

3.2.6 Technological advances and 95 improvements in detection, the investigative process and resolution.

3.2.7 The change impetus of significant 96 events.

3.2.8 Explain the role of the law reform 98 commissions, and examine the guiding criteria of making laws and related processes more equitable, modern, fair and efficient.

3.2.9 Parliamentary inquiries. 100

3.2.10 Coronial inquests. 100

3.2.11 Specialist task forces. 102

3.2.12 The role of the Australian Institute 105 of Criminology in communicating patterns and costs of crimes and how this can influence law reform.

3.2.13 Analyse the challenges to law reform. 109

3.2.14 Contemporary law reform issues. 110

Answers to Law, Governance and Change 210


Dot Point Page Dot Point Page

viDot Points

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Topic 1 Human Rights

4.1 Human rights 117

4.1.1 Describe key terms using legal 117 terminology.

4.1.2 Describe the main features of 118 international law developed from the International Bill of Human Rights.

4.1.3 Describe the main features of 123 principal treaties.

4.1.4 Explain the process by which treaty 132 obligations translate into domestic law.

4.1.5 The effect of the Human Rights 133 (Parliamentary Scrutiny) Act 2011 (Cth).

4.1.6 The rights of states. 135

4.1.7 Role of the UN, its agencies and 142 other organisations.

4.1.8 Important legal documents. 145

4.1.9 Racial Discrimination Act 1975 (Cth). 148

4.1.10 Sex Discrimination Act 1984 (Cth). 153

4.1.11 Disability Discrimination Act 1992 (Cth). 155

4.1.12 Age Discrimination Act 2004 (Cth). 157

4.1.13 Describe and explain the role of 158 the Australian Constitution.

Topic 2 The Effectiveness Of International Law

4.2 The effectiveness of international 164 law

4.2.1 Monitoring and reporting human rights 164 – Special Rapporteurs.

4.2.2 Monitoring and reporting human rights 166 – inter-state complaints.

4.2.3 Monitoring and reporting human rights 168 – ancillary bodies and individuals.

4.2.4 The role of international legal 170 institutions in upholding rights.

4.2.5 The legal implications of becoming 174 a signatory to various internationally recognised treaties and conventions.

Topic 3 Human Rights In Australian Contexts

4.3 Human rights in Australian contexts 182

4.3.1 The rights that Australians have in 182 criminal and civil contexts.

4.3.2 The right to free speech. 188

4.3.3 The right to protest and the freedom 190 of assembly.

4.3.4 Freedom from discrimination. 191

4.3.5 The right to democratic 192 representation.

4.3.6 Freedom of religion. 193

4.3.7 The right to trial by jury. 194

4.3.8 Explain the legal processes 195 available to citizens for resolving human rights complaints in Australia.

4.3.9 Groups protecting and/or advocating 198 for human rights in Australia.

Answers to Human Rights In Legal Contexts 237

Unit 4 Human Rights In Legal Contexts

Dot Point Page Dot Point Page

vii Dot Points

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DOT POINT

Law, Governance and Change

In this unit you will:

~ Be introduced to the complexities of the Australian legal system and its capacity to deal with the diversity of competing needs.

~ Explore the role of legal institutions and law-making bodies that reflect the views of society.

~ Consider the range of forces that create catalysts for change and reform.

~ Examine how laws are changed or reformed to reflect shifting societal demands.

~ Study law, governance and change through relevant contemporary issues involving matters of governance and law reform, for example family law, technology law, criminal law, counter-terrorism laws, employment law and corporate law.

Unit 3

1 Unit 3 Law, Governance and Change

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DOT POINT

TOPIC 1

Governance In AustraliaIn this topic you will:

~ Examine the processes and role of government in shaping law in Australia, and how federal and state or territory legal institutions respond to forces of change and the impact of landmark cases.

~ Describe key terms using legal terminology and study important features of the Australian Constitution.

~ Investigate the three levels of government in Australia, the role of the Crown and the upper and lower houses of parliament.

~ Analyse the strengths and weaknesses of parliament as a law-making body.

~ Describe the relationship between legislation and case law, and the relationship between specialist courts and tribunals with state and federal jurisdictions.

~ Create responses that communicate legal meaning to suit the intended purpose.


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3.1 Governance in Australia.

3.1.1 Key features of the Australian Constitution.

Australian Constitution

Chapter 1The Parliament

Part I – General Part II – The Senate Part III – The House of Representatives Part IV – Both Houses of Parliament Part V – Powers of the Parliament

Chapter 2The Executive Government

s 61 Executive power s 64 Ministers of State s 67 Appointment of civil servants

Chapter 3 The Judicature

s 71 Judicial powers and the Courts s 73 Appellate jurisdiction of the High Court s 75 Original jurisdiction of the High Court

Section 51Powers of

Commonwealth Parliament

Separation of powers

Chapter V The States

s 109 Inconsistency of laws

Chapter VIII s 128 Mode of altering the Constitution

Source: Commonwealth of Australia Constitution Act

3.1.1.1 Define the following terms.

Constitution

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Separation of powers

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Legislative

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Executive

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Judicature

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Division of power

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Exclusive powers

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Residual powers

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Concurrent powers

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Referendum

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High Court

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Federal system

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Tiers of government

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6Unit 3 Law, Governance and Change

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House of Representatives

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Senate

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Bicameral

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Unicameral

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Legislation

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Crown

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Double majority

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Governor General

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Checks and balances

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Representative government

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Responsible government

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Double dissolution

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Joint sitting

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3.1.1.2 Outline the following parts of the Australian Constitution.

Chapter 1

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Chapter 2

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Chapter 3

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3.1.1.3 Explain how the structure of the Australian Constitution creates the separation of powers.

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3.1.1.4 Describe the role of checks and balances.

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3.1.1.5 How is the lower house of the commonwealth parliament related to the executive?

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Use the excerpt from s 51 of the constitution below and your own knowledge to answer the next SIX questions.

s 51 Legislative powers of the Parliament

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:

(i) trade and commerce with other countries, and among the States;(ii) taxation; but so as not to discriminate between States or parts of States;(iii) bounties on the production or export of goods, but so that such bounties shall be uniform throughout the

Commonwealth;(iv) borrowing money on the public credit of the Commonwealth;(v) postal, telegraphic, telephonic, and other like services;(vi) the naval and military defence of the Commonwealth and of the several States, and the control of the forces to

execute and maintain the laws of the Commonwealth;(vii) lighthouses, lightships, beacons and buoys;(viii) astronomical and meteorological observations;(ix) quarantine;(x) fisheries in Australian waters beyond territorial limits;(xi) census and statistics;(xii) currency, coinage, and legal tender;(xiii) banking, other than State banking; also State banking extending beyond the limits of the State concerned, the

incorporation of banks, and the issue of paper money;(xiv) insurance, other than State insurance; also State insurance extending beyond the limits of the State concerned;(xv) weights and measures;(xvi) bills of exchange and promissory notes;(xvii) bankruptcy and insolvency;(xviii) copyrights, patents of inventions and designs, and trade marks;(xix) naturalization and aliens;(xx) foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth;(xxi) marriage;(xxii) divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants;(xxiii) invalid and oldage pensions;(xxiiiA) the provision of maternity allowances, widows’ pensions, child endowment, unemployment, pharmaceutical,

sickness and hospital benefits, medical and dental services (but not so as to authorise any form of civil conscription), benefits to students and family allowances;

(xxiv) the service and execution throughout the Commonwealth of the civil and criminal process and the judgements of the courts of the States;

(xxv) the recognition throughout the Commonwealth of the laws, the public Acts and records, and the judicial proceedings of the States;

(xxvi) the people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws;

(xxvii) immigration and emigration;(xxviii) the influx of criminals;(xxix) external affairs;(xxx) the relations of the Commonwealth with the islands of the Pacific;(xxxi) the acquisition of property on just terms from any State or person for any purpose in respect of which the

Parliament has power to make laws;(xxxv) conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of

any one State;(xxxvi) matters in respect of which this Constitution makes provision until the Parliament otherwise provides;(xxxvii) matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States,

but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law

Source: Australian Constitution, section 51(29), selected articles


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3.1.1.6 Distinguish between exclusive, residual and concurrent powers.

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3.1.1.7 What does section 51 of the Australian Constitution do?

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3.1.1.8 Identify four areas of law over which the commonwealth has exclusive power.

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3.1.1.9 What is the effect of s 51(xxxi)?

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3.1.1.10 Explain the term cross-vesting with respect to s 51(xxxvii).

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3.1.1.11 Explain how s 51 creates the division of power between the commonwealth and the states.

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DOT POINT

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209 Answers

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Answers


3.1.1.1 Constitution: The document that sets out the rules of governance for the nation.

Separation of powers: The allocation of power between three arms of government: the legislature (commonwealth parliament), the executive (government departments) and the judiciary (courts).

Legislative: The arm of government that creates statutory law. It features two houses – the House of Representatives (lower house) and the Senate (upper house).

Executive: The arm of government that administers the law through ministers, government departments and the public service.

Judicature: The arm of government that involves the courts in the determination of whether the law has been breached by a defendant in an action.

Division of power: The term that applies to the allocation of powers to the commonwealth government (exclusive) and the residual powers to the states.

Exclusive powers: The law-making powers specified in s 51 of the constitution and which fall only under the control of the commonwealth government. An example is the power over defence.

Residual powers: The law-making powers that fall under the control of the state governments. An example is the power over road use.

Concurrent powers: Those areas of law making and governance that are shared between the commonwealth and the states. Examples are education and health care.

Referendum: A process by which the constitution can be altered. For a referendum to be successful it requires specific steps be followed, including that the majority of voters in the majority of the states vote in favour of the change.

High Court: The highest court in Australia and the one with the jurisdiction to hear original matters brought under the constitution, including disputes between the states, or the states and the commonwealth.

Federal system: A system characterised by parallel levels of government – typically a commonwealth government and smaller provincial (state) governments.

Tiers of government: The different levels of government – the first tier being the commonwealth government, the second tier the state governments and the lowest tier the local governments.

House of Representatives: The lower house of the commonwealth parliament and principally responsible for the creation of laws in any given parliamentary period.

Senate: The upper house of the commonwealth parliament with the role of acting as the house of review.

Bicameral: A two-house or two-chamber system of parliament, exemplified by the Australian parliament with a lower house and an upper house.

Unicameral: A parliament that consists of a single legislative chamber or house. Examples include the Queensland parliament and also the national parliaments of New Zealand and Denmark.

Legislation: Also called statute law, this is law made by the Parliament. In Australia this means passing through both houses ‒ the House of Representative and the Senate.

Crown: The Crown refers to the Queen and also the state ‒ meaning the overarching authority at the commonwealth and also the state level.

Double majority: When a referendum has been called, it will be passed only if there is a double majority. This means for a referendum to carry it must be passed by a majority of voters overall, and also a majority of the states (4 or more).

Governor General: The highest appointed representative of the Queen in Australia. The Governor General approves legislation by exercising the commonwealth’s executive powers on the advice of the government.

Checks and balances: The separation of powers of government into the legislative, the executive and the judicature which limits the power of each arm of government. Each ‘arm’ therefore acts to stop (check) the overuse of power by the other arms and across the three there is a balance of power.

Representative government: This means that the people selected for parliament are elected by the people to govern for the people (on behalf of the people).

Responsible government: The term used to describe a political system where the executive government (including the Cabinet and Ministry) is drawn from, and accountable to the parliament.

Double dissolution: A double dissolution occurs when both the Senate and the House of Representatives are shut down (dissolved), in order for a federal election to take place. A double dissolution election is different to regular elections, where only half the Senate seats are contested. In a double dissolution, the Governor General dissolves both the Senate and the House of Representatives at the same time, meaning every seat in both chambers is contested. This is the only time that all senators stand for election at the same time.

Joint sitting: After a double dissolution election, the bill(s) which triggered the double dissolution may be presented to both houses of parliament again. If a deadlock occurs once more, the Governor General may order a joint sitting of both houses of parliament. At a joint sitting, all members of parliament from both houses meet together to vote on the bill(s). A joint sitting has only occurred once in the Australian parliament, in 1974.

210Answers

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